Rose v. Garland Community Hospital

168 S.W.3d 352, 2005 Tex. App. LEXIS 5815, 2005 WL 1763049
CourtCourt of Appeals of Texas
DecidedJuly 27, 2005
DocketNo. 05-01-01813-CV
StatusPublished
Cited by4 cases

This text of 168 S.W.3d 352 (Rose v. Garland Community Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rose v. Garland Community Hospital, 168 S.W.3d 352, 2005 Tex. App. LEXIS 5815, 2005 WL 1763049 (Tex. Ct. App. 2005).

Opinions

OPINION ON REMAND

Opinion by

Justice SUE LAGARDE (Retired).

In our original opinion in this case,2 we held that Debi Rose’s claim against Garland Community Hospital for negligent credentialing was not a health care liability claim governed by the Medical Liability and Insurance Improvement Act (MLI-IA).3 On November 5, 2004, the Texas Supreme Court held that “a claim for negligent credentialing is a claim against a health care provider for a departure from an accepted standard of health care, and as such it is a health care liability claim that carries all the statutory and common law burdens associated therewith.” Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 547 (Tex.2004). The supreme court reversed our judgment and remanded the case to us for further proceedings. Id.

On remand, the narrow issue we must decide is whether Rose’s expert report constituted a good faith effort to comply with the MLIIA. See id. at 547. Supplemental briefing on remand was permitted. Having reviewed Rose’s expert report, we hold the trial court did not abuse its discretion in concluding the report did not constitute a good faith effort to comply with the statute. Consequently, we affirm the trial court’s order dismissing Rose’s case against the hospital.

Background

The facts of this case are set out in our original opinion and in the supreme court’s opinion. Accordingly, we will not repeat them, except as necessary to our analysis.

Two separate affidavits were before the trial court and are before this Court: one [355]*355dated April 10, 2001 and one dated July 10, 2001. Both affidavits were by Robert A. Ersek, M.D. The trial court considered both affidavits. Likewise, we consider both affidavits and will sometimes refer to them together as “Rose’s expert report.”

The April 10, 2001 report speaks only to medical treatment and not to negligent credentialing. The July 10, 2001 report states, in relevant part:

I have reviewed the treatment records of Debi Rose from James H. Fowler and the Cosmetic Surgery Center of North Dallas beginning on October 30, 1998 and ending on July 14, 1999. As stated in my April 10, 2001 report, a hospital/patient relationship existed between Garland Community Hospital and Debi Rose. The standard of care requires hospitals to do the following:
1. vigorously investigate complaints and allegations of medical negligence by patients against physicians who have privileges at the hospital;
2. ascertain a physician’s qualifications and ensure that a physician has the proper training before permitting him/her to perform surgical procedures;
3. to limit, curtail or restrict a physician’s privileges where multiple complaints and/or allegations of medical negligence are lodged against a physician or to supervise that physician during surgery.
I have concluded that Garland Community Hospital breached the standard of care in the following areas:
1.Garland Community Hospital knew or should have known of multiple prior incidents involving poor surgical skills on the part of Dr. James H. Fowler and took no action to prevent or restrict Dr. Fowler’s surgical privileges;
2. Dr. Fowler, as an Ear, Nose and Throat specialist, is not board certified in plastic surgery and should not have been permitted to perform plastic surgery. There was a failure of credentialing on the part of Garland Community Hospital for permitting Dr. Fowler to perform plastic surgery.
3. To the extent that the nurses and surgical staff participated and acquiesced in the performance of plastic surgery by Dr. Fowler, Garland Community Hospital incurred liability for same.

The trial court granted the hospital’s motion to dismiss, pursuant to section 13.01 of the MLIIA, on the ground Rose had not made a good faith effort to comply with the MLIIA’s requirement that she timely file an expert report. Rose, 87 S.W.3d at 189. Rose appeals from that dismissal.

Standard of Review and Applicable Law

The issue for the trial court was whether Rose’s expert report represents a good-faith effort to comply with the statutory definition of an expert report. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex.2002) (citing Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(i); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001)). In its order of dismissal, the trial court found that “[n]either the April 10 nor the July 10, 2001 report states the causal relationship, if any, between the alleged failure of [the hospital] in connection with its credentialing activities and the injury, harm or damages claimed.” The trial court also found, even considering both the April 10 and July 10, 2001 affidavits together, the affidavits do not satisfy the requirements of article 4590i.

[356]*356We review a trial court’s order dismissing a claim for failure to comply with section 13.01(d)’s expert-report requirements under an abuse of discretion standard. Id. (citing Palacios, 46 S.W.3d at 878). And we review a trial court’s decision about whether a report constitutes a good-faith effort to comply with the MLIIA under an abuse of discretion standard. See id. (citing Palacios, 46 S.W.3d at 878). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for that of the trial court. See id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989)).

A negligent credentialing claim involves a specialized standard of care. Rose, 156 S.W.3d at 546 (citing Mills v. Angel, 995 S.W.2d 262, 275 (Tex.App.-Texarkana 1999, no pet.)). Therefore, expert testimony is required to establish liability because procedures ordinarily used by a hospital to evaluate staff privileges are not within the realm of a juror’s ordinary experience. See Mills, 995 S.W.2d at 275. Medical experts are not necessarily credentialing experts. In fact, a credentialing expert need not be a physician but may be a witness who is familiar with the standard of care for credentialing because of training and experience. See id. (citing Lopez v. Cent. Plains Reg’l Hosp., 859 S.W.2d 600, 603-04 (Tex.App.-Amarillo 1993, no writ), disapproved on other grounds by St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 n.

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168 S.W.3d 352, 2005 Tex. App. LEXIS 5815, 2005 WL 1763049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-garland-community-hospital-texapp-2005.