Simonson v. Keppard

225 S.W.3d 868, 2007 Tex. App. LEXIS 4349, 2007 WL 1586128
CourtCourt of Appeals of Texas
DecidedJune 4, 2007
Docket05-06-00842-CV
StatusPublished
Cited by69 cases

This text of 225 S.W.3d 868 (Simonson v. Keppard) 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
Simonson v. Keppard, 225 S.W.3d 868, 2007 Tex. App. LEXIS 4349, 2007 WL 1586128 (Tex. Ct. App. 2007).

Opinions

OPINION

Opinion by

Justice WRIGHT.

Dr. Robert Simonson, Dr. Joan Wilkin, and Nurse Donald Lehman appeal the trial court’s order denying them motions to dismiss for the plaintiffs’ failure to file an adequate expert report. Nurse Lehman filed a separate brief from Doctors Simon-son and Wilkin. In his brief, Nurse Lehman asserts in three points of error that the trial court abused its discretion in denying his motion to dismiss because (1) the expert was not qualified to opine on the conduct of a nurse practitioner; (2) the expert did not set forth the applicable standard of care for a nurse practitioner; and (3) the expert failed to adequately set forth causation. We sustain Nurse Lehman’s first point of error, reverse the trial court’s order with respect to Nurse Lehman, and dismiss the lawsuit against Nurse Lehman.

In a single point of error, Doctors Si-monson and Wilkin contend the trial court abused its discretion in denying their motion to dismiss. We overrule their point of error and affirm the trial court’s order as to Doctors Simonson and Wilkin.

Background

On December 29, 2002, Carol Keppard went to the emergency room at Methodist Hospital. The admitting physician was Dr. Simonson. Keppard was seen by Nurse Lehman who noted her symptoms as a two-week long headache, nausea, and vomiting. Nurse Lehman diagnosed Kep-pard with a migraine and administered medication accordingly. He released her several hours later after noting slight improvement. Doctor Wilkin signed off on Nurse Lehman’s diagnosis. The following day, Keppard was taken by ambulance to Baylor Hospital where she died from a massive intracranial hemorrhage.

The family of Carol Keppard (the Kep-pards) filed this lawsuit. In compliance with the statutory requirements, they filed an initial expert report. Doctors Simon-son and Wilkin and Nurse Lehman filed objections to the report. The trial court [871]*871sustained the objections. The Keppards filed an amended expert report. The doctors and Nurse Lehman filed objections to the amended report and sought dismissal of the lawsuit. The trial court denied the motions, and this interlocutory appeal timely followed. See Cayton v. Moore, 224 S.W.3d 440, 444 (Tex.App.-Dallas, no pet. h.).

Expert Report

We review a trial court’s decision on a motion to dismiss a medical malpractice action because of an inadequate expert report for an abuse of discretion. See American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding).

When a party files a medical malpractice action, he must file an expert report within 120 .days of filing the petition. Tex. Civ. PRAc. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2006). The expert report must provide a fair summary of the expert’s opinion regarding the applicable standard of care, the manner in which the care rendered failed to meet the standard, and the causal relationship between the failure to meet the standard and the injury. Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(r)(6) (Vernon Supp.2006). “A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not fulfill [the purposes of the Act].” Palacios, 46 S.W.3d at 879. A report that omits any of the statutory requirements is not a good faith effort to comply with the Act. Id. A trial court must dismiss a cause if it determines that the report does not represent a good faith effort to comply with the statute’s requirements. See Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003).

The standard of care for a doctor or health care provider is what an ordinarily prudent doctor or health care provider would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880. Identifying the standard of care is essential because whether a defendant breached his or her duty to a patient cannot be determined without specific information about what the defendant should have done differently. Id.

1. Nurse Lehman

In his first point of error, Nurse Lehman contends the trial court abused its discretion in denying his motion to dismiss appellees’ claims on the ground of an inadequate expert report because the expert, Dr. Jeffrey Thomas, failed to show that he was qualified to testify as to the standard of care for a nurse practitioner.

Nurse Lehman gave the following three reasons for objecting to Dr. Thomas’s amended expert report: (1) the report failed to outline Dr. Thomas’s qualifications to comment on the standard of care applicable to him; (2) the report failed to provide a fair summary of the standard of care applicable to him; and (3) the report failed to describe how any alleged deviation caused the plaintiffs injuries.

To qualify as an expert in a claim against a health care provider, including nurses, the statute provides as follows:

(a) For purposes of this section, “practicing health care” includes:
(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, [872]*872or registered in the same field as the defendant health care provider.
(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert ■witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Tex. Civ. PRAC. & Rem.Code Ann. § 74.402(a) & (b) (Vernon 2005) (emphasis added).

In his affidavit, Dr. Thomas stated that Nurse Lehman “appears to have been a licensed Nurse Practitioner acting under the supervision of Joan Wilkin, M.D.” Dr.

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Bluebook (online)
225 S.W.3d 868, 2007 Tex. App. LEXIS 4349, 2007 WL 1586128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simonson-v-keppard-texapp-2007.