Texas San Marcos Treatment Center, L.P. D/B/A San Marcos Treatment Center v. Veronica Payton

• Court: Court of Appeals of Texas
• Decided: January 23, 2015
• Docket: 03-14-00726-CV
• Status: Published

Opinion

ACCEPTED 03-14-00726-CV 3887778 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/23/2015 6:20:41 PM JEFFREY D. KYLE CLERK NO. 03-14-00726-CV

FILED IN IN THE COURT OF APPEALS FOR THE 3rd AUSTIN, COURT OF APPEALS TEXAS THIRD DISTRICT OF TEXAS 1/23/2015 6:20:41 PM JEFFREY D. KYLE Clerk TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a SAN MARCOS TREATMENT CENTER Appellant

v.

VERONICA PAYTON Appellee

On Appeal from Hays County, Texas, 428th Judicial District Court Trial Court Case Number: 13-2658

BRIEF FOR APPELLANT

Ryan L. Clement Texas Bar No. 24036371 SERPE JONES ANDREWS CALLENDER & BELL, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499 Email: rclement@serpejones.com

Attorneys for Appellant, Texas San Marcos Treatment Center, L.P. d/b/a San Marcos Treatment Center

ORAL ARGUMENT RESPECTFULLY REQUESTED IDENTITY OF PARTIES AND COUNSEL

In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellant provides the following complete list of all parties and counsel to the trial

court’s order that forms the basis of this appeal.

Trial and Appellate Counsel for Appellant Texas San Marcos Treatment Center, L.P. d/b/a San Marcos Treatment Center:

Ryan L. Clement Texas Bar No. 24036371 SERPE JONES ANDREWS CALLENDER & BELL, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499 Emails: rclement@serpejones.com

Trial and Appellate Counsel for Appellee Veronica Payton:

Adam S. Ward Texas Bar No. 00788615 Aaron Allison Texas Bar No. 24055098 Allison & Ward 2001 N. Lamar Blvd. Austin, Texas 78705-4907 Telephone: (512) 474-8153 Facsimile: (512) 474-9703 Email: allison-ward@sbcglobal.net Email: aaron@allisonwardllp.com

ii TABLE OF CONTENTS Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF THE CASE ..................................................................................2

ISSUES PRESENTED...............................................................................................2

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENT & AUTHORITY ................................................................................6

I. STANDARD OF REVIEW ..........................................................................6

II. The Trial Court Abused Its Discretion When Finding Dr. Reid’s Report Satisfied The Requirements Of Chapter 74 And Denying Appellant’s Motion To Dismiss. ...........................................................7

A. Legislative Intent Of Chapter 74.................................................7

B. Chapter 74’s Expert Report Requirements. ................................8

C. Dr. Reid’s Report Does Not Constitute A Good Faith Effort to Comply With Section 74.351....................................................12

1. Dr. Reid’s report provides no facts to support his conclusions and thus does not constitute an expert report under Chapter 74.............................................................12 2. Dr. Reid fails to identify the standard of care applicable to San Marcos Treatment Center ....................................15

iii 3. Dr. Reid fails to explain how San Marcos Treatment Center breached the applicable standard of care. ...........19 4. Dr. Reid’s report fails to explain how an alleged breach in the standard of care by San Marcos Treatment Center caused Appellee’s injuries. .............................................23 D. By Serving A Report Like Dr. Reid’s, Appellee Effectively Negates The Purpose Of Chapter 74’s Expert Report Requirement. .............................................................................29

CONCLUSION & PRAYER ...................................................................................30

CERTIFICATE OF COMPLIANCE .......................................................................32

CERTIFICATE OF SERVICE ................................................................................32

APPENDIX TRIAL COURT ORDER ...............................................................................A

CASES .................................................................................................... B

iv TABLE OF AUTHORITIES Cases American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) ........................................................................... passim Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ............................... 11, 20, 27 Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (Tex. App.-Fort Worth 2011, no pet.)........................... 17, 18, 28 Bogar v. Esparza, 257 S.W.3d 354 (Tex. App.—Austin 2008, no pet.) ..............................................8 Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) ............................................................................. passim Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999) .................................................................................10 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ................. 11, 20 Hebert v. Hopkins, 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) .................................... passim Jelinek v. Casas, 328 S.W. 3d 526 (Tex. 2010) ........................................................................ passim Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006) .....................................................................................9 Kingwood Pines Hospital, LLC, v. Gomez, 362 S.W.3d 740 (Tex. App.-Houston [14th Dist.] 2011, ............................... passim Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454 –5 (Tex. App.— Austin Aug. 22, 2014, no pet.) ..............................................................................24

v Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068 (Tex. App.— Eastland Mar. 23, 2006, pet. denied) ....................................................................14 McKenna Memorial Hosp., Inc. v. Quinney, No. 03-06-00119-CV, 2006 WL 3246524 (Tex. App. – Austin, Nov. 10, 2006, no pet. h.) .................................................................. 10, 27 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013) ...................................................................................8 Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave, 300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................28 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (Tex. App. – Texarkana 2004, pet denied) ......................... 10, 11 Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538(Tex. App.— Houston [1st Dist.] Dec. 29, 2011,................................................................. 14, 19 Smith v. Wilson, 368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) .................................... passim Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216 ........................................................................................ 10, 11, 15 Taylor v. Fossett, 320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...................................... 13, 23 Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana, 2012) ............................... 10, 17, 25, 28 Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012) ...................................................................................8 W.B.M. Mgmt. Co. v. Flores, No. 07-14-00008-CV, 2014 WL 1691362 –6 (Tex. App.— Amarillo Apr. 25, 2014, no pet.) .................................................................... 13, 23 Wood v. Tice, 988 S.W.2d 829 (Tex. App.—San Antonio 1999, pet. denied) ..............................7

vi Statutes

TEX. CIV. PRAC. REM. CODE § 74.351(a)-(c) .............................................................8 TEX. CIV. PRAC. REM. CODE § 74.351(b) .......................................................... 1, 6, 8 TEX. CIV. PRAC. REM. CODE § 74.351(l) ................................................................7, 9 TEX. CIV. PRAC. REM. CODE § 74.351(r)(6) ...............................................................9 TEX. REV. CIV. STAT. ANN. art. 4590i ..................................................................7, 30

vii NO. 03-14-00726-CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a SAN MARCOS TREATMENT CENTER Appellant

On Appeal from Hays County, Texas, 428th Judicial District Court Trial Court Case Number: 13-2658

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellant Texas San Marcos Treatment Center, L.P. d/b/a San Marcos

Treatment Center (“San Marcos Treatment Center” or “Appellant”) files this

appeal from an order denying its motion to dismiss pursuant to section 74.351(b)

of the Texas Civil Practices and Remedies Code in Trial Court Case Number 13-

2658; Veronica Payton v. Texas San Marcos Treatment Center, L.P. d/b/a San

Marcos Treatment Center, in the 428th Judicial District Court of Hays County,

Texas, before the Honorable R. Bruce Boyer. STATEMENT OF THE CASE Appellee Veronica Payton (“Ms. Payton” or “Appellee”) filed a health care

liability claim against Appellant, following the physical assault she experienced

by a patient on January 2, 2012. In her petition, Appellee has alleged San Marcos

Treatment Center failed to meet the standards of care with regard to patient care

and safety and the safety of employees resulting in the assault and her injuries. (CR

4–14). On January 27, 2014, Appellee served a report authored by William H.

Reid, M.D., M.P.H. (“Dr. Reid”). (CR 32-39, 89). Appellant timely objected to Dr.

Reid’s report because it failed to satisfy any of the expert report requirements

under Chapter 74. (CR 22-39). Appellee never served any new, supplemental or

amended reports. Following the expiration of the statutory deadline to serve expert

reports under Chapter 74, Appellant moved to dismiss Appellee’s claims in

conjunction with the previously filed objections to Dr. Reid’s report. (CR 90-91).

After a hearing on the matter, the trial court entered an order finding that Dr.

Reid’s report was adequate and denying Appellant’s motion to dismiss. (CR 118).

Appellant subsequently filed this interlocutory appeal from that order. (CR 119-

126).

ISSUES PRESENTED 1. Whether the trial court abused its discretion by finding Dr. Reid’s

report was adequate under Chapter 74 despite the report’s lack of sufficient

2 specificity, use of vague generalizations, and conclusory opinions that do not link

the relevant facts to the conclusions.

2. Whether the trial court abused its discretion in denying Appellant’s

motion to dismiss pursuant to section 74.351 of the Texas Civil Practices and

Remedies Code because Dr. Reid’s report does not represent a “good faith” effort.

STATEMENT OF FACTS San Marcos Treatment Center is a facility licensed in the State of Texas to

provide behavioral health care and treatment to adolescent patients. (CR 5). In

2011, Ms. Payton was an employee of San Marcos Treatment Center. (CR 5). On

December 7, 2011, a patient was admitted to San Marcos Treatment Center and

was placed on the unit on which Ms. Payton worked. (Id.). Since the date of his

admission, the patient had been quiet and cooperative. (CR 7). However, on

January 2, 2011, the patient assaulted Ms. Payton while she escorted him from the

laundry room alone. (Id.).

In her petition, Ms. Payton alleges San Marcos Treatment Center failed to

adequately staff for patient care and staff and patient safety; failed to provide

adequate training to staff; failed to provide staff with adequate notification of the

patient’s assaultive propensity; failed to meet the applicable standards by admitting

the patient or housing the patient without adequate containment and/or supervision;

3 and failed to ameliorate and/or eliminate the risk of danger and protect patients

and/or staff. (CR 9-11).

On January 27, 2014, Appellee served San Marcos Treatment Center with a

curriculum vitae and report from William H. Reid, M.D., M.P.H. dated December

16, 2013 (“Dr. Reid’s report”). (CR 32-89). Dr. Reid’s report is the only report

served by Appellee.

As addressed more fully below, Dr. Reid’s report fails to include relevant

facts, if any at all, concerning the staffing on January 2, 2011, the education and

training provided to Ms. Payton and other health care staff, the information shared

with health care staff concerning the patient’s condition and propensities, factual

information concerning the admission process at San Marcos Treatment Center and

the admission of the patient and placement on the unit, the supervision and

monitoring provided, and efforts to reduce the risk of danger and protect patients

and/or staff. (CR 32–39).

San Marcos Treatment Center timely objected to Dr. Reid’s report. (CR 22-

89). In its objections, San Marcos Treatment Center specified that Dr. Reid’s report

failed to identify the applicable standard of care, failed to identify the alleged acts

or omissions by San Marcos Treatment Center that amounted to a breach in the

applicable standard of care, and failed to explain the causal relationship between

each alleged breach and the injuries alleged. (Id.). Despite having knowledge of

4 these objections since February 18, 2014, Appellee has never amended or

supplemented Dr. Reid’s report at any time.

After the deadline for serving expert reports expired, San Marcos Treatment

Center filed its motion to dismiss in conjunction with the previous objections. (CR

90-91). On July 29, 2014, Appellee filed her response to San Marcos Treatment

Center’s objections and motion to dismiss arguing that Dr. Reid’s report was

sufficient and also moved for sanctions. (CR 92-107). On September 19, 2014, San

Marcos Treatment Center filed its reply to the response and its response to the

motion for sanctions. (CR 108-117). On September 22, 2014, the trial court held a

hearing on San Marcos Treatment Center’s objections and motion to dismiss. (RR

1–26).

On October 30, 2014, the Honorable Judge R. Bruce Boyer issued a letter

ruling stating “Having taken the Motion to Exclude medical report under

advisement the Court is of the opinion that the motion is denied (over-ruled).” (CR

118). On November 19, 2014, San Marcos Treatment Center timely filed its notice

of appeal of the court’s order denying the motion to dismiss and this interlocutory

appeal ensued. (CR 119-126).

SUMMARY OF THE ARGUMENT The trial court abused its discretion in holding that Dr. Reid’s report was

adequate under Chapter 74 and in denying San Marcos Treatment Center’s motion

5 to dismiss under Chapter 74. In his report, Dr. Reid fails to provide sufficient

specificity and instead relies on vague generalizations concerning the required

statutory elements. Further, Dr. Reid also fails to link relevant facts to his

conclusions on any of the required elements of a Chapter 74 expert report. The

Texas Supreme Court holds that, when a report lacks any explanation linking the

expert’s conclusion to the relevant facts, a trial court abuses its discretion if it

denies the defendant’s motion to dismiss. Because of these deficiencies, Dr. Reid’s

report fails to identify the standard of care applicable to San Marcos Treatment

Center, fails to explain how San Marcos Treatment Center breached the standard of

care, and fails to explain the causal link between San Marcos Treatment Center’s

alleged breach and the injuries alleged by Appellee. Accordingly, Dr. Reid’s report

does not constitute a good faith effort to comply with the requirements of section

74.351, and the trial court erred in overruling the objections and denying San

Marcos Treatment Center’s motion to dismiss.

ARGUMENT & AUTHORITY

I. STANDARD OF REVIEW A trial court’s ruling on a motion to dismiss for failure to comply with

section 74.351(b) of the Texas Civil Practice and Remedies Code is subject to

review for abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Chapter 74 imposes a mandatory duty

6 on a trial court to grant a motion challenging the adequacy of an expert report if it

appears to the court that the report does not meet the statutory requirements.

Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex. App.—Austin 2013, no pet.) (citing

to TEX. CIV. PRAC. REM. CODE § 74.351(l)). If an expert report contains only

conclusions about the statutory elements in section 74.351, the trial court has “no

discretion but to conclude ... that the report does not represent a good-faith effort”

to satisfy the statute. Smith v. Wilson, 368 S.W.3d 574, 577 (Tex. App.—Austin

2012, no pet.) (citing Palacios, 46 S.W.3d at 877, 880).

II. The Trial Court Abused Its Discretion When Finding Dr. Reid’s Report Satisfied The Requirements Of Chapter 74 And Denying Appellant’s Motion To Dismiss. A. Legislative Intent Of Chapter 74. The Legislature enacted Article 4590i (now codified in Chapter 74),

including its expert reporting requirement, for the purpose of deterring frivolous

lawsuits against health care providers. TEX. REV. CIV. STAT. ANN. art. 4590i;

Palacios, 46 S.W.3d at 879 (citing Wood v. Tice, 988 S.W.2d 829, 830 (Tex.

App.—San Antonio 1999, pet. denied)). “The Legislature has determined that

failing to timely file an expert report, or filing a report that does not evidence a

good-faith effort to comply with the definition of an expert report, means that the

claim is either frivolous, or at best has been brought prematurely. This is exactly

7 the type of conduct for which sanctions are appropriate.” Bogar v. Esparza, 257

S.W.3d 354, 371 (Tex. App.—Austin 2008, no pet.).

As evidenced by this case, the purpose of deterring frivolous lawsuits is

effectively negated when a claimant serves an expert report that omits relevant

facts, lacks sufficient specificity and relies on vague statements, and reaches

conclusory opinions on the required elements of a Chapter 74 expert report.

B. Chapter 74’s Expert Report Requirements. Given the nature of Appellee’s claims against San Marcos Treatment Center,

her claims are health care liability claims and, therefore, are subject to and

governed by the provisions of Chapter 74, including the expert report

requirements. Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex.

2012); Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013).

Chapter 74 requires that, when a claimant asserts a health care liability

claim, she must serve each defendant physician or health care provider with one or

more expert reports and curriculum vitae of each expert no later than the 120th day

after each defendant’s original answer is filed. See TEX. CIV. PRAC. REM. CODE §

74.351(a)-(c). Chapter 74 further provides that a failure to serve a report within

120 days mandates that the trial court dismiss the case and award attorneys’ fees

and costs. Id at § 74.351(b).

8 In order to comply with Chapter 74, an expert report must represent an

objective good faith effort to comply with the definition of an expert report under

Chapter 74. See TEX. CIV. PRAC. REM. CODE § 74.351(l). The good faith effort

standard requires the report to provide an adequate analysis for each of the

following elements of a health care liability claim: (1) the applicable standard of

care; (2) the manner in which the care rendered by the physician or health care

provider failed to meet the standard; and (3) the causal relationship between that

failure and the injury, harm or damages claimed. Id. at § 74.351(r)(6); Palacios, 46

S.W.3d at 879. The Texas Supreme Court holds that a report will not constitute a

good faith effort if it omits any of these statutory requirements. Jernigan v.

Langley, 195 S.W.3d 91, 94 (Tex. 2006). Further, in order to constitute a good

faith effort, the report must, at a minimum: (1) inform the defendant of the specific

conduct called into question; and (2) provide a basis for the trial court to conclude

the claims have merit. Palacios, 46 S.W.3d at 879.

The Texas Supreme Court also holds that, while a report need not marshal

all of the plaintiff’s proof, it must include the expert’s opinion on each of the

elements identified in section 74.351. Palacios, 46 S.W.3d at 878. A report cannot

merely state the expert’s conclusions about the statutory elements. Id. at 879.

“Rather, the expert must explain the basis for his statements to link his conclusions

to the facts” and not merely state conclusions. Bowie Mem’l Hosp. v. Wright, 79

9 S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.

1999)). It is not enough that the expert report provides “insight” about the

plaintiff’s claims. Id. “A report that merely states the expert’s conclusions about

the standard or care, breach, and causation does not fulfill the two purposes of a

good-faith effort.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex. App.—Austin

2013, no pet.) (quoting Jelinek v. Casas, 328 S.W. 3d 526, 539 (Tex. 2010)).

Whether a defendant healthcare provider breached its duty cannot be

determined absent specific information about what the defendant should have done

differently. Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 341-42 (Tex. App. –

Texarkana 2004, pet denied) (quoting Palacios, 46 S.W.3d at 880)). In other

words, one must be able to determine from the report what was required by the

standard of care, which requires “specific information about what the defendant

should have done differently”. Texarkana Nursing & Healthcare Center, LLC v.

Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana, 2012) (quoting Palacios, 46

S.W.3d at 880)). Moreover, the standard of care is defined by what an ordinarily

prudent health-care provider would have done under the same or similar

circumstances. McKenna Memorial Hosp., Inc. v. Quinney, No. 03-06-00119-CV,

2006 WL 3246524, *4 (Tex. App. – Austin, Nov. 10, 2006, no pet. h.) (mem. op.)

(citing to Palacios, 46 S.W.3d at 880; Strom v. Memorial Hermann Hosp. Sys., 110

S.W.3d 216, 222 (Tex. App. – Houston [1st Dist.] 2003, pet. denied)). Identifying

10 the standard of care is critical because whether a defendant breached its duty

cannot be determined absent specific information about what the defendant should

have done differently. See id. (citing to Bowie Mem’l Hosp. v. Wright, 79 S.W.3d

48, 53 (Tex. 2002) (per curium); Russ, 128 S.W.3d at 343).

Additionally, an expert cannot simply opine that the breach caused the injury

because such a brief statement would fail to satisfy the second element of Palacios

and does not provide the trial court with any reasonable basis to conclude the

lawsuit has merit. Jelinek, 328 S.W. 3d at 539. Without any explanation tying the

conclusion to the facts, an expert’s conclusion that one event caused another differs

little from an ipse dixit, which the Supreme Court has consistently criticized. Id.

Rather, the report must explain how and why the breach caused the injury based on

the facts presented. Id. at 539-40. Further, the report must include sufficient detail

regarding how the breach caused the plaintiff’s injuries to allow the trial court to

determine if the claim has merit. Id. at 540.

Importantly, the only information relevant to determining whether a report

complies with the statute is “within the four corners of the document.” Palacios, 46

S.W.3d at 878. “This requirement precludes a court from filling gaps in a report by

drawing inferences or guessing as to what the expert likely meant or intended.”

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no

pet.) (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189

11 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court

recognized, “neither the trial court nor this Court may infer additional opinions or

underlying facts to fill in gaps that the report itself leaves open.” Hebert, 395

S.W.3d at 890.

C. Dr. Reid’s Report Does Not Constitute A Good Faith Effort to Comply With Section 74.351. In addition to Dr. Reid’s failure to provide any facts supporting his

conclusions as to each of the required statutory elements, Dr. Reid also failed to

make a good faith effort to comply with section 74.351’s requirements. For ease of

reference, San Marcos Treatment Center provides herein selected paragraphs from

Dr. Reid’s report that clearly evidence the lack of any factual foundation for his

conclusions, an absence of sufficient specificity in his opinions, and the

inadequacies of his report. As explained herein, the report fails to satisfy any of

the elements of a Chapter 74 expert report as to San Marcos Treatment Center and,

therefore, does not constitute an expert report under Chapter 74 and does not

represent a good faith effort.

1. Dr. Reid’s report provides no facts to support his conclusions and thus does not constitute an expert report under Chapter 74.

Before addressing Dr. Reid’s specific failures to satisfy the statutory

elements of a Chapter 74 expert report, it is important to note that Dr. Reid’s report

provides no relevant factual information in support of his opinions as to each

12 required element. (CR 32-39). While, Dr. Reid provides a list of items he

reviewed, he wholly fails to provide the details of any “factual” information he

gleaned from his review of the materials as they may relate to his opinions

concerning the required statutory elements. (Id.). It is well established that an

expert must link his conclusions to the facts in order satisfy Chapter 74’s expert

report requirement. Recently, the Texas Supreme Court held in Jelinek v. Casas

that, when the report in question lacked any explanation linking the expert’s

conclusion to the relevant facts, the trial court abused its discretion in denying the

defendant’s motion to dismiss and the court of appeals erred by affirming that

ruling. 328 S.W.3d at 540 (citing Bowie Mem’l, 79 S.W.3d at 52).

Several Texas appellate courts have reached the same conclusion. The

appellate courts recognize that an expert’s failure to provide any facts in the report

to support his or her conclusions on standard of care, breach, and causation

prevents the trial court from concluding the plaintiff’s claims have merit. See

Taylor v. Fossett, 320 S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding

trial court abused its discretion in denying physician’s motion to dismiss since

expert report provided only conclusory opinions without supporting facts); W.B.M.

Mgmt. Co. v. Flores, No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—

Amarillo Apr. 25, 2014, no pet.) (holding that expert report was not a good faith

effort to provide a fair summary of his opinions and warranted dismissal since

13 expert failed to provide facts to support his conclusion); Shenoy v. Jean, No. 01-

10-01116-CV, 2011 WL 6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29,

2011, pet. denied) (holding that “an expert report that merely asserts that a

defendant physician’s breach caused the plaintiff’s injury without providing a

factual basis does not provide the trial court with the information necessary to

evaluate the merits of the plaintiff’s claim.”).

The failure to set forth facts supporting an expert’s opinions on the standard

of care, breach, and causation is not an argument based on “semantics.”

Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—

Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining

whether the plaintiff’s claims have merit. Id.

Dr. Reid’s report omits key facts supporting his conclusions. Instead, Dr.

Reid’s report simply offers conclusory opinions about the standard of care, breach,

and causation. For example, Dr. Reid plainly acknowledges from the outset of his

report that “not all the expected records have been available for review, and I have

not yet examined Ms. Payton.” (CR 32). Dr. Reid further acknowledges,

“Specific staffing data from SMTC is no yet available to me.” (CR 33).

Nonetheless, Dr. Reid offers conclusory opinions relating to these very matters (i.e.

adequacy of staffing) while omitting key relevant factual information.

14 Because Dr. Reid failed to provide any relevant facts to support his

conclusions, his report does not constitute a good faith effort to comply with

section 74.351 of the Texas Civil Practices and Remedies Code. Given the lack of

facts to support Dr. Reid’s conclusion, the trial court abused its discretion in

finding the report was sufficient. See Smith, 368 S.W.3d at 577. 1 As a result, San

Marcos Treatment Center requests that the Court reverse the trial court’s order.

2. Dr. Reid fails to identify the standard of care applicable to San Marcos Treatment Center

In his report, Dr. Reid fails to identify the standard of care applicable to San

Marcos Treatment Center. The standard of care for a health care provider or a

physician is what an ordinarily prudent health care provider or physician would do

under the same or similar circumstances. See Strom, 110 S.W.3d at 222.

Identifying the standard of care is “critical” because “[w]hether a defendant

breached his or her duty to a patient cannot be determined absent specific

information about what the defendant should have done differently.” Palacios, 46

S.W.3d at 880. From Dr. Reid’s report, San Marcos Treatment Center cannot

determine what, specifically, was required or what it should have done differently.

As explained above, a good faith report must, at a very minimum: (1) inform

the defendant of the specific conduct called into question; and (2) provide a basis

1 Also, without the relevant facts, the trial court either misapplied the law regarding the sufficiency of expert report or inferred additional underlying facts to fill in gaps that the report itself left open. This amounts to an abuse of discretion. See Hebert, 395 S.W.3d at 890.

15 for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. A

report cannot merely state the expert’s conclusions about the statutory elements. Id.

at 879. “Rather, the expert must explain the basis of his statements to link his

conclusions to the facts.” Bowie, 79 S.W.3d at 52. As this Court recognizes, “[a]

report that merely states the expert’s conclusions about the standard or care,

breach, and causation does not fulfill the two purposes of a good-faith effort.”

Hebert, 395 S.W.3d at 890.

In his report, Dr. Reid provides the following conclusory opinions

concerning the applicable standard of care.

Ms. Payton was an employee of San Marcos Treatment Center (hereafter “SMTC”) at the time of the incident that gave rise to her alleged damages (January 2, 2012; see below)

That employer (SMTC), by itself and through its various parts or assigns, had duties to its unit employee Ms. Payton, which included, but may not have been limited to, (a) adequate staffing and staff support in her work environment (sufficient to meet reasonable levels of staff safety, as well as patient safety and care), (b) adequate training with regard to recognizing and managing situations that might arise in which her safety could be compromised, (c) adequate notification of work situations or persons in her work environment that could reasonably present a danger to her or others, (d) adequate care in avoiding or declining admission of patients/clients who are inappropriate for the unit on which she worked, and (e) elimination or amelioration of reasonably known risks to her and other staff or patients created by patients/clients who are admitted to and housed on the unit on which she worked.

(CR 32-33). However, Dr. Reid fails to set forth any facts in support of his

conclusory opinions concerning the applicable standards of care. Dr. Reid also

16 fails to sufficiently specify the standard of care applicable to San Marcos

Treatment Center given the factual circumstances of this case. Dr. Reid’s

conclusory opinions about the standards of care are nothing more than vague,

generalized statements that lack any factual basis and the required specificity. Dr.

Reid’s vague, generalized statements concerning the standards of care mirror those

found in other reports provided in assault cases, wherein those reports were found

to be deficient. E.g. Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388

S.W.3d 314 (Tex. App. – Texarkana, 2012); Baylor All Saints Medical Center v.

Martin, 340 S.W.3d 529 (Tex. App.-Fort Worth 2011, no pet.); Kingwood Pines

Hospital, LLC, v. Gomez, 362 S.W.3d 740 (Tex. App.-Houston [14th Dist.] 2011,

no pet.).

In Baylor All Saints Medical Center, the expert report contained similar

vague, generalized statements concerning the standard of care, which, according to

the report, required the hospital employ “a sufficient number of security personnel”

and to ensure the “training of staff” to prevent unauthorized persons from

committing assaults, and that such standards must be “adequately implemented.”

Baylor All Saints Medical Center, 340 S.W.3d at 534. The report was found to be

inadequate because such mere conclusions about the standard of care are

insufficient, because the standard of care is what an ordinary prudent hospital

would do under the same or similar circumstances, and that even a fair summary

17 must set out what care was expected. See id. The report in Baylor All Saints

Medical Center failed to satisfy the statutory requirements because, among other

things, it did not identify the number of security personnel required or specify the

type of training staff should have received and, therefore, lacked sufficient

specificity. See id. (citing to Palacios, 46 S.W.3d at 880). Dr. Reid’s report

suffers from the same nature of deficiencies.

Also, in Kingwood Pines Hosp., LLC, the two reports examined contained

similar conclusory statements regarding the provision of a secure environment, the

supervision of patients, and the prevention of harm. Those reports were also found

to be deficient because they failed to indicate what an ordinarily prudent health

care provider would do under the same of similar circumstances and, therefore, the

reports did not meet the requirements of Chapter 74. Kingwood Pines Hosp., LLC,

362 S.W.3d at 749. (citing to Palacios, 46 S.W.3d at 880). Dr. Reid’s report is

similarly deficient because the opinions expressed concerning the standard of care

are nothing more than the vague, generalized statements disapproved of in the

aforementioned cases.

Because Dr. Reid’s report is no different than those provided in Baylor All

Saints Medical Center and Kingwood Pines Hosp., LLC it effectively provides no

standard of care opinion with regard to San Marcos Treatment Center, and

18 therefore, the trial court abused its discretion in denying Appellant’s motion to

dismiss.

3. Dr. Reid fails to explain how San Marcos Treatment Center breached the applicable standard of care.

Dr. Reid’s report also fails to explain how San Marcos Treatment Center

allegedly breached the applicable standards of care. The need for sufficient

specificity as to the applicable standard of care becomes more obvious when

considering the alleged breaches. In other words, without a sufficiently specific

standard of care identified any alleged breach simply cannot be determined.

In what appears to be Dr. Reid’s opinions concerning the alleged breaches,

he states, “The information available to me indicates that evening shift was

inadequate on Ms. Payton’s unit on January 2, 2012.” (CR 33). However, this

statement is almost immediately followed by Dr. Reid’s admission, “Specific

staffing data from SMTC is not yet available to me.” (CR 33). The inconsistency

of these two statements reveals the lack of any connection between his conclusory

opinions and any facts. An expert report that merely asserts a breach without

providing a factual basis does not provide the trial court with the information

necessary to evaluate the merits of the plaintiff’s claim. Shenoy v. Jean, No. 01-

10-01116-CV, 2011 WL 6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29,

2011, pet. denied).

19 The lack of any connection between Dr. Reid’s conclusions and relevant

facts, combined with vague, generalized statements concerning the standards of

care, renders all of Dr. Reid’s opinions regarding any alleged breach conclusory.

Under the heading of “adequate training,” Dr. Reid’s states,

Review of Ms. Payton’s SMTC personnel file and relevant portions of the SMTC Employee Handbook reveals no indication that Ms. Payton received any SMTC training regarding her safety in the workplace, and particularly none related to recognizing potentially dangerous patients, recognizing potentially assaultive patients, or protection herself from patient assault.

(CR 33). However, because Dr. Reid’s report never provides sufficiently

specific information as to what “adequate training” is, nor does it describe how San

Marcos Treatment Center is to provide “adequate training” to its employees, any

alleged breach cannot be determined absent a conclusory opinion. Dr. Reid’s

statement regarding his review of Ms. Payton’s personnel file and the “relevant”

portions of the Employee Handbook also infers what materials should be present

within the files and handbook thereby requiring the court to fill in those gaps.

Because of the lack of sufficient specificity, Dr. Reid’s conclusory opinion as to

this alleged breach relies on inferences and requires the court to fill in the gaps (i.e.

what constitutes “adequate training” and how that is provided). However, a court

is precluded from filling gaps in a report by drawing inferences or guessing as to

what the expert likely meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d

at 279 (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189

20 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court

recognized, “neither the trial court nor this Court may infer additional opinions or

underlying facts to fill in gaps that the report itself leaves open. Hebert, 395

Notably, while he reviewed her personnel file, Dr. Reid omits many relevant

facts, such as the fact that Ms. Payton had been employed at San Marcos

Treatment Center for over five (5) years, since June of 2006, had worked with

many other patients like this patient, and had received throughout those years

annual education and training through the Crisis Prevention Institute (CPI) and

other programs on how to observe, identify and manage difficult and challenging

behavior, utilize verbal de-escalation skills, engage in a physical restraint when

necessary, and more. 2

Again, in Kingwood Pines Hosp., LLC, the Court explained that whether a

defendant breached the standard of care cannot be determined without specific

information about what the defendant should have done differently. 362 S.W.3d at

750 (citing to Palacios, 46, S.W.3d at 880). Dr. Reid provides no information as to

what San Marcos Treatment Center should have done differently as to training.

2 Appellant includes this information not for the purpose of determining the sufficiency of Dr. Reid’s report but to illustrate why an expert is required to provide factual support so that the trial court may assess whether the claims have merit.

21 The same lack of sufficient specificity and a failure to connect his

conclusions to relevant facts renders his additional opinions as to the alleged

breaches concerning notification, the admission and placement of patients, and

patient supervision and monitoring conclusory as well. Dr. Reid never provides

sufficiently specific information as to what San Marcos Treatment Center’s

methods of informing its staff about patients’ behaviors were or should have been,

how/when the admission of a patient is determined to be appropriate, or even what

constitutes “adequate” containment, supervision, and/or monitoring. Dr. Reid

relies on ipse dixit and his generalized statements alone to support his conclusory

opinions as to breach and, therefore, his report fails to satisfy the requirements

under Chapter 74.

Dr. Reid’s opinions as to breach are not linked to relevant facts. For

example, Dr. Reid’s conclusion that Mr. Simon “should have been physically

contained and/or supervised by more than one, female, staff person” (CR 34)

conflicts with his prior admission that “specific staffing data from SMTC is not yet

available to me” (CR 33) revealing a lack of factual foundation for his opinion.

Dr. Reid also states, “Many, perhaps all, other patients on the boys’ unit were

apparently much younger and smaller than Mr. Simon.” (CR 34). However, Dr.

Reid likewise has not had any access to the other boys’ medical records to reach

such a conclusion. Dr. Reid’s conclusions, combined with his deliberate omissions

22 of relevant facts, should be precluded because they are evidence of the

insufficiencies of his report. Dr. Reid’s conclusory statements are careful and

calculated attempts to mischaracterize the facts by excluding vital information. As

explained earlier, Dr. Reid’s failure to provide facts to support his opinion

mandates dismissal. Jelinek, 328 S.W.3d at 540; Taylor, 320 S.W.3d at 578;

Flores, 2014 WL 1691362, *5–6.

Because Dr. Reid’s report lacks sufficiently specific information based on

relevant facts, the trial court could not have determined whether Appellee’s claims

have merit. Rather, in order to conclude the report was sufficient as to San Marcos

Treatment Center, the trial court needed to draw inferences and fill in gaps with

regard to both the standard of care and breach and, therefore, the trial court abused

its discretion in drawing inferences and filling in gaps to find the report was

sufficient.

4. Dr. Reid’s report fails to explain how an alleged breach in the standard of care by San Marcos Treatment Center caused Appellee’s injuries.

Dr. Reid’s report completely fails to explain how an alleged breach in the

standard of care by San Marcos Treatment Center caused the assault and

Appellee’s injuries. As the Supreme Court has recognized, “[a]n expert cannot

simply opine that the breach caused the injury. … Instead, the expert must go

further and explain, to a reasonable degree, how and why the breach caused the

23 injury based on the facts presented.” Jelinek, 328 S.W.3d at 539–40. (emphasis

added). Without this explanation, the trial court cannot conclude the claims have

merit. Id.; see also Smith, 368 S.W.3d at 578 (Austin Court reversing trial court’s

denial of motion to dismiss after finding report failed to provide facts explaining

the causal link between alleged breach and the occurrence or injury); Kocurek v.

Colby, No. 03-13-00057-CV, 2014 WL 4179454, *4–5 (Tex. App.—Austin Aug.

22, 2014, no pet.). Here, Dr. Reid’s report fails to establish a causal link between

an alleged breach in the standard of care by San Marcos Treatment Center and

Appellee’s alleged injuries.

Dr. Reid’s opinions under his “Damage and Causation” heading commence

with identifying Ms. Payton’s injuries as a result of the assault. (CR 34-35). Dr.

Reid then offers, “My psychiatry specialty and that fact that I have not examined

Ms. Payton preclude detailed opinions about the extent of physical damage.” (CR

34). This statement is tantamount to an admission of a lack of qualification to

opine on her physical injuries. Nonetheless, Dr. Reid cannot resist opining (again

without any factual support) that “significant damage existed, and may still exist.”

(CR 34). Dr. Reid’s bald assertions without factual support, in the face of an

admission that he is not qualified to opine on her physical injuries, cannot

constitute a good faith effort under Chapter 74’s expert report requirements.

24 Further, as to causation, Dr. Reid states, “But for one or more of the

breaches by SMTC, summarized in items 2-6, it is more likely than not that the

January 2, 2012, assault would not have occurred, and thus the above damages to

Ms. Payton, would not have occurred.” (CR 035). However, Dr. Reid’s causation

opinion is purely conclusory because it fails to explain how and why the alleged

failures by San Marcos Treatment Center resulted in the assault. Kingwood Pines

Hosp., LLC, 362 S.W.3d at 750.

In another assault case, it was held that “if the report is not sufficiently

detailed in its statement of the standard of care and breach, and thus, fails to advise

the defendant of what it should have done differently to provide a safe and secure

environment, then it logically follows that causation should be described in terms

of the specific shortcomings that created a situation in which assault could occur.”

Texarkana Nursing & Healthcare Center, LLC, 388 S.W.3d at 323. As explained

in Section II(C)(1)-(3), Dr. Reid’s report is not sufficiently detailed in its

statements of the standard of care and breach. Further, Dr. Reid’s opinions on

causation fail to describe the specific shortcomings, if any, of San Marcos

Treatment Center that created the situation in which this assault occurred. Rather,

Dr. Reid offers causation opinions focused on what Ms. Payton would have done

in a variety of scenarios. (CR 35-36).

25 Further, as this Court recently noted in Smith v. Wilson, an expert must

explain, with supporting facts, how the defendant’s alleged breach in the standard

of care caused the injury in question. 368 S.W.3d at 577–78. A conclusory

statement on causation is wholly insufficient. Id. Dr. Reid’s report offers no

explanation, with supporting facts, how San Marcos Treatment Center’s alleged

breach caused Ms. Payton’s injuries, or for that matter, caused her to decide to go

to the laundry room with the patient alone.

Dr. Reid’s earlier admission that specific staffing data was unavailable to

him (CR 33) undermines his conclusory statement that “[i]f staffing had been

adequate (that is, at least one more capable staff person on the 17-patient unit), Ms.

Payton would not have believed it necessary to accompany Leroy Simon to the

laundry alone. (See her statement.) (CR 35) because it, like many other statements

in his report, lacks any factual support. Likewise, his opinion that “[i]f there had

been adequate male staffing on the boys’ unit, Ms. Payton would not have been in

the position of being a sole female vulnerable to attack by a physically stronger,

younger male” (CR 35) is similarly without factual support when contrasted with

his admission that he has no staffing data (CR 33) and, therefore, it too is entirely

conclusory. Furthermore, while he refers to a statement of Ms. Payton, nowhere in

his report does he provide any details of her statement. Consequently, Dr. Reid’s

26 report relies on inference and forces the court to fill in the gaps as to her statement,

which is specifically precluded. Austin Heart, P.A., 228 S.W.3d at 279.

Also, Dr. Reid opines Ms. Payton would not have escorted him to the

laundry room alone if she had received “adequate training” and been “adequately

informed” (CR 35). However, as explained in Section II(C)(1)-(3), neither of these

standards or breaches are sufficiently specific so as to apprise San Marcos

Treatment Center as to what an ordinarily prudent health-care provider would have

done under the same or similar circumstances nor do they provide specific

information about what it should have done differently. McKenna Memorial

Hosp., Inc. v. Quinney, No. 03-06-00119-CV, 2006 WL 3246524, *4. Further, Dr.

Reid never describes how “adequate staffing”, “adequate training”, or “adequate

notification”, would have prevented the assault. An expert report must explain

how taking the suggested measures would have prevented the particular injuries

complained of. Smith, 368 S.W.3d at 577-578.

Dr. Reid’s additional causation opinion that had the patient not been

admitted and housed on Ms. Payton’s boys’ unit she would not have been assaulted

(CR 35) not only suffers from the same lack of factual support but clearly does not

represent a good faith effort to comply with the requirements of an expert report

under Chapter 74. Dr. Reid’s report fails to describe in any detail why admission

of this patient to San Marcos Treatment Center was inappropriate and how the

27 selection of where he was placed was a breach. Dr. Reid’s conclusory opinion that

the patient should not have been admitted simply demonstrates his willingness to

embrace the many “what if’s” (i.e. what if Ms. Payton had not worked that day)

and provides another example of how his report fails to rely on relevant factual

information or provide sufficient specificity to satisfy the requirements of an expert

report under Chapter 74.

Dr. Reid’s final causation opinion that had the patient been placed on

“adequate safety precautions” Ms. Payton would not have escorted him to the

laundry alone is akin to those opinions offered in other reports in assault causes

where such bare assertions were made and found to be inadequate because they

failed to explain what “adequate safety precautions” are. Such bare assertions fail

to meet the requirements under Chapter 74. E.g. Texarkana Nursing & Healthcare

Center, LLC v. Lyle, 388 S.W.3d 314 (Tex. App. – Texarkana, 2012); Baylor All

Saints Medical Center v. Martin, 340 S.W.3d 529 (Tex. App.-Fort Worth 2011, no

pet.); Kingwood Pines Hospital, LLC, v. Gomez, 362 S.W.3d 740 (Tex. App.-

Houston [14th Dist.] 2011, no pet.). Conclusory statements on causation, like those

offered in Dr. Reid’s report, will not satisfy Chapter 74’s expert report

requirements. See Palacios, 46 S.W.3d at 875; Regent Care Ctr. of San Antonio II,

Ltd. P'ship v. Hargrave, 300 S.W.3d 343, 346 (Tex. App.—San Antonio 2009, pet.

denied).

28 Since Dr. Reid only offered conclusory opinions concerning the statutory

elements required of an expert report, the trial court had “no discretion but to

conclude ... that the report does not represent a good-faith effort” to satisfy the

statute. Smith, 368 S.W.3d at 577. Nonetheless, the trial court in this case, “Having

taken the Motion to Exclude medical report under advisement [was] of the opinion

that the motion [was] denied (over-ruled)”. (CR 118). The trial court’s ruling

amounted to an abuse of discretion. Smith, 368 S.W.3d at 577. San Marcos

Treatment Center requests that this Court reverse the trial court’s ruling and

remand with an order to grant Appellant’s motion to dismiss.

D. By Serving A Report Like Dr. Reid’s, Appellee Effectively Negates The Purpose Of Chapter 74’s Expert Report Requirement.

As stated above, the purpose of section 74.351 is to prevent the filing of

frivolous lawsuits against physicians and health care providers in Texas. One of the

central purposes of the expert report is to provide a basis for the trial court to

conclude the claims have merit. Palacios, 46 S.W.3d at 879. Stated otherwise, the

report should let the trial court know the claims are not frivolous. When an expert

report omits relevant facts, or simply has no factual support, and instead provides

only conclusory opinions on the three elements of a health care liability claim, a

plaintiff effectively negates the purpose of the expert report requirement and

circumvents section 74.351.

29 This is precisely what Appellee has done in this case. Dr. Reid’s report fails

to provide any relevant facts in hopes that his vague, generalized statements and

conclusory opinions will be sufficient to circumvent the requirements of Chapter

74. If the trial court’s decision is upheld, the purposes behind Chapter 74 will

effectively be nullified and claimants would likely use this Court’s decision to file

frivolous claims against physicians and health care providers by simply ignoring or

omitting relevant facts in favor of vague, generalized statements and conclusory

opinions. This is certainly not what the Legislature intended when enacting

Chapter 74 (formerly article 4590i).

CONCLUSION & PRAYER In conclusion, Dr. Reid’s report suffers from a number of fatal flaws. Dr.

Reid provides absolutely no facts to support his conclusions on the applicable

standard of care, breach, and causation. Dr. Reid also fails to inform San Marcos

Treatment Center of the specific conduct called into question so as to notify the

trial court of what San Marcos Treatment Center should have done differently.

Moreover, Dr. Reid’s report fails to identify the applicable standard of care, fails to

describe any act or omission by San Marcos Treatment Center that amounted to a

breach in that standard of care, and fails to show how any alleged breaches by San

Marcos Treatment Center caused Appellee’s injuries. To the extent Dr. Reid does

offer opinions on any of these elements, he only offers baseless conclusions that do

30 not provide sufficiently specific information as to the required statutory elements

in connection with any relevant facts. Accordingly, the trial court abused its

discretion when holding that Dr. Reid’s report was “adequate” under Chapter 74

and denying San Marcos Treatment Center’s motion to dismiss.

WHEREFORE, PREMISES CONSIDERED, San Marcos Treatment Center

respectfully requests that this Court reverse the trial court’s order denying

Appellant’s Chapter 74 Motion to Dismiss and remand to the trial court with an

order that all claims and causes of action asserted by Appellee against San Marcos

Treatment Center be dismissed with prejudice and that San Marcos Treatment

Center be awarded its reasonably attorneys’ fees and costs as allowed by Chapter

74 of the Texas Civil Practices and Remedies Code. San Marcos Treatment Center

further prays for such other relief that it may be justly entitled.

Respectfully submitted,

SERPE, JONES, ANDREWS, CALLENDER & BELL, PLLC

By: /s/ Ryan L. Clement Ryan L. Clement Texas Bar No. 24036371 rclement@serpejones.com America Tower 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499

31 Attorneys for Appellant, Texas San Marcos Treatment Center, L.P. d/b/a San Marcos Treatment Center

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Brief for Appellant is computer generated, has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes, contains 6,759 words according to word count function of the computer program used to prepare this Brief, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas Rule of Appellate Procedure 9.4.

/s/ Ryan L. Clement Ryan L. Clement

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all known counsel of record in accordance with the Texas Rules of Appellate Procedure on this the 23rd day of January, 2015.

Adam S. Ward Aaron Allison Allison & Ward 2001 N. Lamar Blvd. Austin, Texas 78705-4907

559152v1

32 APPENDIX A

TRIAL COURT ORDER

A APPENDIX B

CASES

B American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

medical-malpractice claims against American Transitional 46 S.W.3d 873 Care Centers, Inc., d/b/a American Transitional Hospital, Supreme Court of Texas. because it determined that the Palacioses’ expert report did not show a good-faith effort to provide a fair summary AMERICAN TRANSITIONAL CARE CENTERS of the expert’s opinions about the standard of care, OF TEXAS, INC. d/b/a American Transitional breach, and causation, as required by section 13.01. See Hospital, Petitioner, id. § 13.01(d), (e), (l), (r)(6). The court of appeals, after v. evaluating the trial court’s decision as it would a Teofilo PALACIOS and Maria Palacios, summary-judgment decision, reversed, holding that the individually and a/n/f of Gloria Janeth Palacios report did meet the statutory requirements. 4 S.W.3d 857, and Rocio Daniela Palacios, minors, Maria 860. Angelica Palacios, and Sentry Insurance, a mutual company, Respondents. We hold that a trial court’s decision to dismiss a case under section 13.01(e) is reviewed for abuse of discretion. No. 99–1311. | Argued Dec. 6, 2000. | Decided May We further hold that to constitute a good-faith effort to 10, 2001. | Rehearing Overruled June 28, 2001. provide a fair summary of an expert’s opinions under section 13.01(l ), an expert report must discuss the Medical malpractice action was brought against hospital standard of care, breach, and causation with sufficient to recover for injuries patient allegedly suffered in fall at specificity to inform the defendant of the conduct the hospital. The 280th District Court, Harris County, Tony plaintiff has called into question and to provide a basis for Lindsay, J., dismissed case for failure to file expert report, the trial court to conclude that the claims have merit. In as required by Medical Liability and Insurance this case, the trial court did not abuse its discretion in Improvement Act. Patient appealed. The Houston Court concluding that the challenged report does not meet the of Appeals, First District, reversed and remanded, 4 statutory requirements and in dismissing with prejudice S.W.3d 857. On petition for review, the Supreme Court, the claims against American Transitional. Accordingly, Hankinson, J., held that: (1) trial court’s determination we reverse the court of appeals’ judgment and dismiss about adequacy of expert report under Act is reviewed with prejudice the Palacioses’ claims. under abuse-of-discretion standard, and (2) expert’s report did not provide fair summary of standard of care and how Teofilo Palacios suffered brain damage and other severe it was breached. injuries following a two-story fall at work. After almost a year in an intensive rehabilitation program, he was Court of Appeals’ judgment reversed. transferred to American Transitional Hospital for further rehabilitation. Although Palacios at that time was able to *876 communicate with others and respond to simple Attorneys and Law Firms commands, he required assistance with most daily tasks. In addition, due to the severity of his brain damage, *875 Matthew T. McCracken, John C. Marshall, James C. Palacios’ physicians prescribed bed restraints for him. Marrow, Dee L. Dawson, Marshall & McCraken, Nevertheless, while a patient at American Transitional, Houston, for Petitioner. Palacios fell from his bed and required additional medical care for his injuries. His family claims that this fall caused D. John Leger, Leger & Coplen, Levon G. Hovnatanian, him to sustain further brain injury, which impaired his Martin Disiere & Jefferson, Houston, Mickey C. Shyrock, ability to communicate with others and to assist them in Law Office of Mickey C. Shyrock, Athens, for his care. Respondents.

Opinion Palacios and his family sued American Transitional and the treating doctors, respectively, for negligently failing to Justice HANKINSON delivered the opinion of the Court. prevent the fall and negligently treating him after the fall. After ninety days passed from the date the Palacioses filed suit, American Transitional, along with the other In this medical-malpractice case we determine the defendants, moved to require the Palacioses to file a standards for reviewing an expert report under section $7,500 cost bond, as required by section 13.01(b) of the 13.01 of the Medical Liability and Insurance Medical Liability and Insurance Improvement Act. See Improvement Act. TEX.REV.CIV. STAT. ANN.. art. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(b) 4590i, § 13.01. The trial court dismissed the Palacioses’ (authorizing a trial court to order a plaintiff to file a © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

$7,500 cost bond for each defendant physician or health- opinions early in the litigation an obvious place to start in care provider if the plaintiff has not complied with the attempting to reduce frivolous lawsuits. See HOUSE expert-report or $5,000 cost-bond requirement in section COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 13.01(a)); id. § 13.01(a) (requiring the plaintiff to file 971, 74th Leg., R.S. (1995). either an expert report or a $5,000 cost bond for each defendant physician or health-care provider within ninety Accordingly, in section 13.01, the Legislature requires days of filing suit). The trial court granted the motion, and medical-malpractice plaintiffs, within 180 days of filing the Palacioses filed a cost bond for each defendant. suit, either to provide each defendant physician and health-care provider with an expert report and the expert’s After 180 days passed from the date the Palacioses filed curriculum vitae, or to nonsuit the claims. TEX.REV.CIV. suit, American Transitional moved to dismiss the case STAT. ANN.. art. 4590i, § 13.01(d). If the plaintiff fails against it because the Palacioses did not file an expert within the time allowed either to provide the expert report and curriculum vitae, or nonsuit the claims against reports and curriculum vitae, or to nonsuit the case, the American Transitional, as section 13.01(d) of the Act trial court must sanction the plaintiff by dismissing the requires. Id. § 13.01(d), (e). The Palacioses moved for an case with prejudice, awarding costs and attorney’s fees to extension of time to file the report, which the trial court the defendant, and ordering the forfeiture of any granted. See id. § 13.01(f), (g). The Palacioses then filed a applicable cost bond necessary to pay that award. Id. § report prepared by Dr. Catherine F. Bontke, who treated 13.01(e). If the plaintiff does timely file a report, the Palacios at the first rehabilitation hospital. American defendant may move to challenge the adequacy of the Transitional again moved to dismiss under section report, and the trial court must grant the motion if “it 13.01(e), claiming that the report did not satisfy the appears to the court ... that the report does not represent a statutory requirements. See id. § 13.01(l), (r)(6). The trial good faith effort to comply with the definition of an court granted the motion, dismissed with prejudice the expert report.” Id. § 13.01(l). The statute defines an expert claims against American Transitional, and severed those report as “a written report by an expert that provides a fair claims to make the judgment against American summary of the expert’s opinions ... regarding applicable Transitional final. See id. § 13.01(e). standards of care, the manner in which the care rendered ... failed to meet the standards, and the causal relationship The Palacioses appealed, and with one justice dissenting, between that failure and the injury, harm, or damages the court of appeals reversed and remanded after using claimed.” Id. § 13.01(r)(6). If a trial court determines that summary-judgment review standards to evaluate the an expert report does not meet these statutory sufficiency of the expert report. 4 S.W.3d at 860. After requirements and the time for filing a report has passed, it indulging every reasonable inference in the Palacioses’ must then dismiss with prejudice the claims against the favor and eliminating any deference to the trial court’s defendant who has challenged the report. Id. § 13.01(e). decision, the court of appeals concluded that the trial court erred in dismissing the case because the Palacioses American Transitional contends that a trial court’s made a good-faith effort to provide a report that met the determination about the adequacy of an expert report requirements of section 13.01(r)(6). Id. at 862–63. should be reviewed under an abuse-of-discretion standard. American Transitional petitioned for review challenging The Palacioses respond that whether a report meets the both the standard of review applied by the court of requirements of subsections 13.01(l) and (r)(6) is a appeals and the sufficiency of the Palacioses’ report. question of law. They suggest that a trial court’s decision on the adequacy of a report should be reviewed as a court [1] Texas courts have long recognized the necessity of would review a summary-judgment decision: that is, by expert testimony in medical-malpractice cases. E.g., Hart indulging every reasonable inference and resolving any v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. doubts in the nonmovant’s favor, and eliminating any Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). deference to the trial court’s decision. We agree with “There can be no other guide [than expert testimony], and American Transitional. where want of skill and attention is not thus shown by [2] [3] expert evidence applied to the facts, there is no evidence The plain language of section 13.01 leads to the of it proper to be submitted to the jury.” Hart, 399 S.W.2d conclusion that abuse of discretion is the proper standard. at 792. Because expert testimony is crucial to a medical- First, the statute directs the trial court to grant a motion malpractice case, *877 knowing what specific conduct the challenging the adequacy of an expert report if it “appears plaintiff’s experts have called into question is critical to to the court” that the plaintiffs did not make a good-faith both the defendant’s ability to prepare for trial and the effort to meet the statutory requirements. Id. § 13.01(l). trial court’s ability to evaluate the viability of the This language plainly vests the trial court with discretion. plaintiff’s claims. This makes eliciting an expert’s See TEX. GOV’T CODE § 312.002. (“[W]ords shall be

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

given their ordinary meaning.”). Second, the statute states then look outside the report at the plaintiff’s conduct to that dismissal under section 13.01(e) is a sanction: If the determine whether the plaintiff made a good-faith effort requirements of section 13.01(d) are not met, the court to meet the statutory requirements, id. § 13.01(l ). The must “enter an order as sanctions” dismissing the case and Palacioses, on the other hand, argue that the statute granting the defendant its costs and attorneys’ fees. requires only one inquiry—whether the report evidences a TEX.REV.CIV. STAT. ANN .. art. 4590i, § 13.01(e). good-faith effort to provide a fair summary of the expert’s Sanctions are generally reviewed under an abuse-of- opinions. According to the Palacioses, the trial court does discretion standard. Koslow’s v. Mackie, 796 S.W.2d 700, not have to make any factual determinations because the 704 (Tex.1990). And we presume the Legislature was only relevant information is in the report itself. We agree aware of the standard of review ordinarily applied in with the Palacioses that a trial court should look no sanctions cases when it explicitly identified a court’s further than the report in conducting a section 13.01(l ) dismissal under section 13.01(e) as a sanction. *878 See inquiry. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1943) ( “All statutes are presumed to be enacted by the The issue for the trial court is whether “the report” legislature with full knowledge of the existing condition represents a good-faith effort to comply with the statutory of the law and with reference to it.”). definition of an expert report. Id. § 13.01(l ). That definition requires, as to each defendant, a fair summary Nevertheless, the court of appeals concluded that the of the expert’s opinions about the applicable standard of usual standard of review for sanctions should not apply care, the manner in which the care failed to meet that here. The court reasoned that the provisions of article standard, and the causal relationship between that failure 4590i at issue here were intended to discourage frivolous and the claimed injury. Id. § 13.01(r)(6). Because the lawsuits, while sanctions, in contrast, are a response to statute focuses on what the report discusses, the only litigation misconduct. We disagree with this distinction. information relevant to the inquiry is within the four corners of the document. Filing a frivolous lawsuit can be litigation misconduct [5] [6] subject to sanction. See TEX.R. CIV. P. 13 (imposing Under subsections 13.01(l ) and (r)(6), the expert sanctions for filing groundless motions, pleadings, or report must represent only a good-faith effort to provide a other papers in bad faith or for the purposes of fair summary of the expert’s opinions. A report need not harassment). And one purpose of the expert-report marshal all the plaintiff’s proof, but it must include the requirement is to deter frivolous claims. HOUSE COMM. expert’s opinion on each of the elements identified in the ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, 74th statute. See *879 Hart v. Wright, 16 S.W.3d 872, 877 Leg., R.S. (1995). The Legislature has determined that (Tex.App.—Fort Worth 2000, pet. denied). In setting out failing to timely file an expert report, or filing a report the expert’s opinions on each of those elements, the report that does not evidence a good-faith effort to comply with must provide enough information to fulfill two purposes if the definition of an expert report, means that the claim is it is to constitute a good-faith effort. First, the report must either frivolous, or at best has been brought prematurely. inform the defendant of the specific conduct the plaintiff See id. This is exactly the type of conduct for which has called into question. Second, and equally important, sanctions are appropriate. See TransAmerican Natural the report must provide a basis for the trial court to Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) conclude that the claims have merit. See 4 S.W.3d at 865 (holding that “death-penalty” sanctions are appropriate (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d 829, 830 when a party’s discovery abuse justifies a presumption (Tex.App.—San Antonio 1999, pet. denied) (noting that that its claims lack merit). For these reasons, we hold that one of the purposes of article 4590i is to deter frivolous an abuse-of-discretion standard of review applies to a trial claims). court’s decision to dismiss a case under section 13.01(e). [7] [8] [9] [10] A report that merely states the expert’s [4] We next consider whether the trial court abused its conclusions about the standard of care, breach, and discretion in dismissing the Palacioses’ claims against causation does not fulfill these two purposes. Nor can a American Transitional. The parties disagree about how to report meet these purposes and thus constitute a good- determine a report’s adequacy under section 13.01(l ). faith effort if it omits any of the statutory requirements. American Transitional argues that the trial court must See, e.g., Hart, 16 S.W.3d at 877 (holding that a report engage in a two-step process: (1) the trial court must was inadequate because it stated that the patient had a determine whether the report constitutes a fair summary heart attack and the doctor breached the standard of care, of the expert’s opinions, TEX.REV.CIV. STAT. ANN.. without describing the standard of care); Wood, 988 art. 4590i, § 13.01(r)(6); and (2) if the trial court S.W.2d at 831–32 (holding that an expert report did not concludes that the report is not a fair summary, it must meet the statutory requirements because it did not name

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

the defendants, state how the defendants breached the minutes,” that Dr. Bontke believes American standard of care, demonstrate causation and damages, or Transitional’s staff should have tied the restraints to the include a curriculum vitae). However, to avoid dismissal, bed more securely. a plaintiff need not present evidence in the report as if it [12] were actually litigating the merits. The report can be The standard of care for a hospital is what an informal in that the information in the report does not ordinarily prudent hospital would do under the same or have to meet the same requirements as the evidence similar circumstances. See Birchfield v. Texarkana Mem’l offered in a summary-judgment proceeding or at trial. Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the See, e.g., TEX.R. CIV. P. 166(f) (setting out the standard of care is critical: Whether a defendant breached requirements for the form and content of affidavits his or her duty to a patient cannot be determined absent offered as summary-judgment proof); TEX.R. EVID. 802 specific information about what the defendant should (stating that most hearsay is inadmissible). have done differently. “While a ‘fair summary’ is something less than a full statement of the applicable [11] American Transitional contends that Dr. Bontke’s standard of care and how it was breached, even a fair report does not meet the statutory requirements because it summary must set out what care was expected, but not does not represent a good-faith effort to provide a fair given.” 4 S.W.3d at 865 (Taft, J. dissenting). The summary of her opinion on the standard of care and how statement the Palacioses rely upon—that precautions to American Transitional breached that standard. The prevent Palacios’ fall were not properly used—is not a Palacioses respond that the following parts of Dr. statement of a standard of care. Neither the trial court nor Bontke’s report establish these elements: American Transitional would be able to determine from this conclusory statement if Dr. Bontke believes that the Based on the available documentation I was able to standard of care required American Transitional to have conclude that: Mr. Palacios fell from his bed on 5/14/94 monitored Palacios more closely, restrained him more while trying to get out of it on his own. The nursing securely, or done something else entirely. “It is not notes document that he was observed by nursing on the sufficient for an expert to simply state that he or she hour for two hours prior to the fall. In addition, ten knows the standard of care and concludes it was [or was minutes before the fall, the nursing notes documents not] met.” See Chopra v. Hawryluk, 892 S.W.2d 229, 233 [sic] the his wrist/vest restraints were on. Yet, at the (Tex.App.—El Paso 1995, writ denied). Knowing only time of his fall he was found on the floor with his that the expert believes that American Transitional did not vest/wrist restraints on but not tied to the bed. It is take precautions to prevent the fall might be useful if unclear how he could untie all four of the restraints American Transitional had an absolute duty to prevent from the bedframe in under ten minutes. Obviously, falls from its hospital beds. But as a general rule, res ipsa Mr. Palacios had a habit of trying to undo his restraints loquitur does not apply in medical-malpractice cases. and precautions to prevent his fall were not properly TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting utilized. res ipsa loquitur in medical malpractice to the limited classes of cases to which it applied as of August 29, .... 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990). All in all, Mr. Palacios sustained a second brain injury with a left subdural hematoma while he was an When the expert report’s conclusory statements do not put inpatient at [the Hospital].... [I]n my opinion, the the defendant or the trial court on notice of the conduct medical care rendered to Mr. Palacios at the time of his complained of, section 13.01(l ) affords the trial court no second brain injury was below the accepted and discretion but to conclude, as the trial court did here, that expected standard of care which he could expect to the report does not represent a good-faith effort to provide receive. Moreover, this [sic] below the accepted a fair summary of the standard of care and how it was standard of care extends to both the cause of the second breached, as section 13.01(r)(6) requires. And because the injury as well as the subsequent treatment.... statutory 180 day time period had passed when the trial court here made that determination, section 13.01(e) The Palacioses rely mostly on one sentence in the report required the court to dismiss with prejudice the to establish the standard of care: “Mr. Palacios had a habit Palacioses’ claims against American Transitional. See of *880 trying to undo his restraints and precautions to TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e). prevent his fall were not properly utilized.” They argue Accordingly, we reverse the court of appeals’ judgment that the inference can be made from that sentence, along and dismiss with prejudice the Palacioses’ claims. with the statement that “[i]t is unclear how he could untie all four of the restraints from the bed frame in under ten

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

Parallel Citations 44 Tex. Sup. Ct. J. 720

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

Before Justices PATTERSON, PEMBERTON and 228 S.W.3d 276 WALDROP. Court of Appeals of Texas, Austin.

AUSTIN HEART, P.A. and David J. Kessler, M.D., Appellants, v. OPINION Christian L. WEBB and Marilou Webb, Appellees. G. ALAN WALDROP, Justice. No. 03–06–00607–CV. | May 9, 2007. Austin Heart, P.A. and David J. Kessler, M.D. appeal the district court’s order denying their motion to dismiss Synopsis Christian and Marilou Webb’s medical malpractice Background: Patient brought medical malpractice action claims. Austin Heart and Dr. Kessler contend that the against physician and physician’s professional association expert report served on them pursuant to civil practice and alleging that physician failed to diagnose and treat the remedies code section 74.351 did not comply with the medical condition which caused patient’s severe heart statute because it did not sufficiently identify either palpitations and other health conditions. Physician and Austin Heart or Dr. Kessler as the parties responsible for professional association moved to dismiss on the basis the alleged breach of the standard of care or the cause of that patient’s expert report did not identify them as the the alleged injury to Mr. Webb. See Tex. Civ. Prac. & parties responsible for breaching the standard of care or Rem.Code Ann. § 74.351 (West 2005 & Supp.2006). We causing injury to patient. The District Court, 98th Judicial agree that the plaintiffs’ expert report was deficient and District, Travis County, Paul Davis, P.J., initially granted that the district court erred in denying the motion to the motion to dismiss, but, on patient’s motion for a dismiss. However, we are of the view that the cure rehearing, reversed its ruling to deny the motion to provisions of section 74.351(c) are designed to allow the dismiss. Physician and professional association appealed. plaintiffs an opportunity to address and correct the defect. Consequently, we reverse the district court’s order denying the motion to dismiss and remand this cause to Holdings: The Court of Appeals, G. Alan Waldrop, J., the district court to consider whether a 30–day extension held that: of the deadline for serving the report to allow the plaintiffs to address the deficiency is appropriate. [1] patient’s expert report was deficient as it did not specifically state that the defendant physician was the The Webbs sued Austin Heart and Dr. Kessler in January physician that breached the relevant standard of care and of 2006 alleging that Dr. Kessler failed to “diagnose and caused alleged injury to patient, but treat the medical condition which caused [Mr. Webb’s] severe palpitations and resulting associated health [2] patient was entitled to a 30-day extension to cure such conditions.” The palpitations and other symptoms deficiencies. described by the Webbs were related to Mr. Webb’s pacemaker. On May 31, 2006, the Webbs filed and served the expert report and curriculum vitae of Dr. Alan E. Reversed and remanded. Cororve pursuant to the requirements of section 74.351 of the civil practice and remedies code setting forth Dr. Jan J. Patterson, J., filed a dissenting opinion. Cororve’s opinions regarding Mr. Webb’s treatment for his problems with his pacemaker. Austin Heart and Dr. Kessler filed a motion to dismiss on June 21, 2006, Attorneys and Law Firms claiming that Dr. Cororve’s report did not identify either Dr. Kessler or Austin Heart as the parties responsible for *278 Robert L. Hargett, Emily J. Davenport, Davis & breaching the standard of care or causing Mr. Webb Wilkerson, P.C., Austin, for appellant. injury and, therefore, the report was not a timely report as to them. In response, the Webbs claimed that the report James L. Wright, Watts Law Firm, L.L.P., Austin, for was sufficient as written and, in the alternative, filed a appellee. motion for a 30–day *279 extension to cure in the event the court found the report deficient. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

required information within its four corners.”); see also The district court initially granted the motion to dismiss Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 on August 22, 2006, and did not grant a 30–day extension (Tex.App.-Houston [1st Dist.] 2006, no pet.). to allow the plaintiffs to attempt to cure the deficiency. [4] The Webbs filed a motion for rehearing and a motion for We review a district court’s ruling on a motion to new trial on September 15, 2006, arguing that the court dismiss under section 74.351 for an abuse of discretion. had misinterpreted case law relating to what constitutes a Palacios, 46 S.W.3d at 877–78. A trial court abuses its sufficient report under section 74.351 and that Dr. discretion when it acts in an arbitrary or unreasonable Cororve’s report was sufficient. They also re-urged their manner or without reference to any guiding rules or request for a 30–day extension to cure in the event the principles. Downer v. Aquamarine Operators, Inc., 701 court denied their motion for rehearing. The district court S.W.2d 238, 241–42 (Tex.1985). A trial court does not then reversed its original ruling, granted the motion for abuse its discretion simply because it may decide a matter rehearing, and entered an order denying the motion to within its discretion differently than an appellate court. Id. dismiss. This appeal followed. at 242. However, a trial court has no discretion in determining *280 what the law is or applying the law to [1] Section 74.351 requires a claimant pursuing a health the facts. Walker v. Packer, 827 S.W.2d 833, 840 care liability claim to serve one or more expert reports on (Tex.1992). A clear failure by the trial court to analyze or each party no later than the 120th day after the filing of apply the law correctly will constitute an abuse of the original petition. Id. § 74.351(a). The expert report discretion. Id. must provide “a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of In a single issue, Austin Heart and Dr. Kessler argue that care, the manner in which the care rendered by the section 74.351(b) mandates dismissal of the Webbs’ physician or health care provider failed to meet the lawsuit. Their argument is straightforward: Read literally, standards, and the causal relationship between that failure without any inferences or reliance on information outside and the injury, harm, or damages claimed.” Id. § of its four corners, Dr. Cororve’s report does not identify 74.351(r)(6). A court shall grant a motion challenging the either Dr. Kessler or Austin Heart as having breached the adequacy of a report only if the report “does not represent standard of care or having caused Mr. Webb injury. The an objective good faith effort to comply” with the Webbs respond that, while the sections of Dr. Cororve’s definition of “expert report” in the statute. Id. § 74.351(l ). report relating to the breach of the standard of care and To constitute a good faith effort, the report must provide causation do not identify any specific physicians, the enough information to fulfill two purposes: (1) it must meaning of the report read as a whole is apparent and inform the defendant of the specific conduct the plaintiff reveals that Dr. Cororve is referring to Mr. Webb’s has called into question, and (2) it must provide a basis treatment by Dr. Kessler. for the trial court to conclude that the claims have merit. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 Dr. Cororve’s two and one-half page report is divided into (Tex.2002) (citing American Transitional Care Ctrs., Inc. five sections—“Qualifications,” “Materials Reviewed and v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). Background,” “Standard of Care,” “Standard of care not met,” and “Causation.” In the section titled Materials [2] [3] The Texas Supreme Court has also stated that a Reviewed and Background, Dr. Cororve lists the various report need not marshal all of the plaintiff’s proof, but it medical records he reviewed.1 He then sets out selected must include the expert’s opinion on each of the elements portions of these records detailing the relevant aspects of identified in section 74.351. Palacios, 46 S.W.3d at 878. Mr. Webb’s history of treatment for a trial fibrillation and A report cannot merely state the expert’s conclusions palpitations over a period of nearly four years beginning about the statutory elements. Id. at 879. “Rather, the with the placement of his pacemaker in November 2001. expert must explain the basis of his statements to link his This review of Mr. Webb’s treatment history includes a conclusions to the facts.” Bowie Memorial, 79 S.W.3d at number of references to Dr. Kessler’s office notes, 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 comments by Dr. Kessler in those notes, complaints by (Tex.1999)). In addition, since the statute focuses on what Mr. Webb contained in the notes, a reference to the office is required in the report, the only information relevant to notes of a Dr. George Rodgers, an email from Mr. Webb determining whether a report complies with the statute is to Dr. Kessler, a response email from Dr. Rodgers,2 and a “within the four corners of the document.” Palacios, 46 general statement that “[Mr. Webb] was seen by various S.W.3d at 878. This requirement precludes a court from physicians, including several electrophysiological filling gaps in a report by drawing inferences or guessing consultations.” The background section concludes with as to what the expert likely meant or intended. See Bowie the observation that “[f]urther evaluation eventually Memorial, 79 S.W.3d at 53 (“The report must include the documented diaphragmatic stimulation and a new right

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

ventricular lead was placed on September 7, 2005. The Cororve is identifying Dr. Kessler as the physician who patient was subsequently discharged in excellent breached the standard of care and caused injury. Had Dr. condition.”3 The background section of the report offers Cororve referenced only actions by Dr. Kessler in the no opinions regarding the appropriateness of the treatment background section of his report, the link between Dr. or the responses of the physicians to Mr. Webb’s Cororve’s opinions and the responsible physician might complaints. It is strictly a recitation of historical material be more apparent. However, Dr. Cororve also refers to contained in the medical records reviewed by Dr. actions taken by Dr. Rodgers and makes a vague Cororve. reference to Mr. Webb having been “seen by various physicians, including several electrophysiological The report then concludes with the following three consultations” after he was treated by Dr. Kessler but sections: before his condition improved.6 There is nothing in the report that links Dr. Kessler to Dr. Cororve’s opinions regarding the breach of the standard of care and causation any more than Dr. Rodgers or the other “various Standard of Care physicians” referenced.

The standard of care in a patient such as this requires The Webbs point out that (1) Dr. Kessler is the only more intensive investigation as to the source of a defendant physician and (2) the essence of Dr. Cororve’s patient’s symptoms and subsequent corrective actions opinions is that the breach of the standard of care was the to ameliorate the problem. Attempts at adjusting the failure of the treating physicians, implicitly including Dr. ventricular pacing outputs should routinely be Kessler, to properly adjust the ventricular pacing outputs. attempted and would most likely have pinpointed the *282 However, that Dr. Kessler is the only defendant problem much earlier. This standard of care was not physician is not relevant to an analysis of whether an met. expert report complies with section 74.351. The fact that he is the only defendant physician and, therefore, very likely to be the subject of the report is outside the four Standard of care not met corners of the report. See Palacios, 46 S.W.3d at 878. It also does nothing to clarify to whom the opinions of the The diagnostic and corrective action eventually taken, expert supplying the report apply. The expert’s opinions specifically the increase *281 in the ventricular pacing are, of course, confined to the report and must tell the output, should have been implemented much sooner. reader not only what conduct breached the standard of care, but whose conduct breached the standard of care. Causation The plaintiffs’ allegation that a particular physician was at fault does not substitute for the requirement that they Had the corrective action described occurred, Mr. supply an expert report demonstrating that the expert is of Webb would not have undergone the physical and the same opinion. mental problem(s) he had and could have continued his normal lifestyle much earlier than he did. We also do not agree that the substance of Dr. Cororve’s [5] Dr. Kessler and Austin Heart point to these sections opinions could only be associated with the conduct of Dr. and argue that, while they may articulate an opinion on Kessler. The essence of Dr. Cororve’s opinion is that the the breach of the standard of care and on causation, the physicians who treated Mr. Webb should have adjusted sections do not identify Dr. Kessler as breaching the his ventricular pacing outputs sooner and the failure to do standard of care or causing injury.4 The Webbs concede so was a breach of the standard of care. This opinion that these sections do not expressly mention Dr. Kessler. could apply or not apply equally to Dr. Kessler, Dr. They argue, however, that the background section of the Rodgers, or the various unnamed physicians. The report report makes it clear Dr. Cororve’s opinions relate to Dr. must state, in some manner, who breached the standard of Kessler because it is primarily Dr. Kessler’s actions that care and who caused the alleged injury, and whether that are noted in the relevant history.5 Thus, they argue the includes Dr. Kessler. In the words of the supreme court in report should be read to mean that the opinions in the Palacios, “the report must inform the defendant of the standard of care and causation sections refer to the actions specific conduct the plaintiff has called into question.” and conduct of Dr. Kessler set out in the background Palacios, 46 S.W.3d at 879. This includes informing the section of the report. defendant of the specific conduct in question of that defendant. See Palacios, 46 S.W.3d at 878 (The statute The problem with this argument is that it requires the requires, as to each defendant, a fair summary of the reader to infer or make an educated guess that Dr. expert’s opinions about the applicable standard of care, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

the manner in which the care failed to meet that standard, Kessler, the court has no discretion but to dismiss the and the causal relationship between the failure and the plaintiffs’ claims with prejudice. See Jernigan v. Langley, claimed injury). 195 S.W.3d 91, 94 (Tex.2006); Marichalar, 185 S.W.3d at 73–74. This overstates the holding in Garcia. The We are mindful that a report’s adequacy under section physician in Garcia was not mentioned in the report at all. 74.351 does not depend on whether the expert uses any There was literally nothing in the report that related to the particular magic words such as “the standard of care was physician in any way. Thus, the report was no report as to breached by Dr. Kessler.” See Bowie Memorial, 79 him. The Garcia court then held that this was a situation S.W.3d at 53. However, the report must communicate in where no expert report was timely filed with respect to the some fashion—within its four corners—how the care physician in question, precluding the trial court from rendered by the physician failed to meet the applicable considering an extension to cure because there was no standard of care and the causal relationship between that timely report to cure. 185 S.W.3d at 74 (trial court had no failure and the injury suffered by the claimant. Tex. Civ. authority to allow a cure period for a nonexistent report). Prac. & Rem.Code Ann. § 74.351(r)(6). We recognize that this information could be communicated in a number A closer case is Jernigan v. Langley, 195 S.W.3d 91 of ways and it could be communicated in sections of a (Tex.2006). In Jernigan, the supreme court noted that a report other than sections titled “Standard of Care” or mere “passing reference” to a physician in a report, “Causation.” The form of the report and the location of without explanation of how the physician breached the the information in the report are not dispositive. However, standard of care or caused the injury, would not constitute in this case, Dr. Cororve’s report is silent as to whether a a sufficient report. 195 S.W.3d at 94. The only reference single physician, multiple physicians, or all physicians to Dr. Jernigan in the report was “[a]t 4:30 p.m. [John mentioned in the report failed to meet the standard of care Langley’s] case was discussed with Dr. Jernigan and at and caused injury to Mr. Webb. It simply does not state 4:50 p.m. a lactulose enema was ordered.” The expert’s that the care rendered by Dr. Kessler failed to meet opinion on breach of the standard of care had to do with applicable standards and caused injury. the failure to examine certain x-rays. The report did not link Dr. Jernigan or the referenced discussion with Dr. [6] While we are of the view that Dr. Cororve’s report is Jernigan to a breach of the standard of care or to the deficient under section 74.351 because it requires the failure to examine x-rays in any way. It made no other reader to make an educated guess regarding an essential mention of him or what he did at all. The supreme court element, we are also aware that the defect might well be noted that the single reference to Dr. Jernigan in the curable. The tenor of Dr. Cororve’s report, coupled with report was so oblique that there was no connection at all the fact that there is only one physician defendant, makes between the reference to him and the expert’s opinions it quite likely that Dr. Cororve intended to opine that Dr. regarding the standard of care and causation. It affirmed Kessler breached the standard of care and caused injury the trial court’s dismissal of the lawsuit based on the even though the report did not contain that opinion. The insufficiency of the report, stating that “the trial court had report’s failure on this point is the kind of defect that the no discretion but to conclude, as it did here, that cure provisions of section 74.351(c) were designed *283 Langley’s claims against Dr. Jernigan must be to address. Since the district court ultimately found the dismissed.” Id. report to be sufficient, the court did not consider whether a 30–day extension of the report deadline to allow the The report in Jernigan, as in Garcia, amounted to no Webbs to attempt to cure a defect would be appropriate. report at all as to Dr. Jernigan and warranted dismissal for In light of our ruling that the report does contain a defect, failure to serve a timely report. There was no discretion we believe consideration by the trial court of the Webbs’ for the court to grant an extension to cure because there request for an extension to attempt to cure the defect is was no timely report—with respect to Dr. Jernigan—to warranted. cure.7 Any attempt by the plaintiffs *284 to “cure” the reports in Jernigan and Garcia would, in effect, have Austin Heart and Dr. Kessler argue that Garcia v. been to create and serve new reports—that did not exist at Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, all within the time period for serving reports—with no pet.), supports the proposition that an expert report that respect to the physicians in question in each case. This is references multiple health care providers but fails to conceptually no different from the situation where a delineate the standard of care, breach and causal plaintiff simply missed the deadline for serving a report. connection as to specific, individual defendants is tantamount to no report at all with respect to those Jernigan and Garcia differ from this case in crucial defendants. They then posit that since Dr. Cororve’s respects. Here, a timely report plainly discusses the report should be considered no report at all as to Dr. conduct of the physician in question and the report

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discusses opinions on the standard of care and causation JAN P. PATTERSON, Justice, dissenting. that could be linked to the conduct of the physician set out in the report, but simply are not. The report is not While the expert report requirement in medical deficient because it does not relate to Dr. Kessler at all. It malpractice cases is designed to weed out frivolous is deficient because the link between Dr. Kessler’s claims, it is not meant to be an insurmountable hurdle. conduct and the expert’s conclusions is not expressly The majority *286 raises the bar, however, by requiring a stated. The report in this case is, therefore, some report as fastidious reading of the report. The expert report to Dr. Kessler (among others), but it is not sufficient to proffered by the Webbs may not be a perfect report, but it meet all of the requirements of section 74.531. It is an is clear when viewed as a whole whose conduct is at example of what section 74.351(c) refers to as a report issue—Dr. Kessler’s. I therefore cannot agree that the trial that “has not been served within the [120–day period for court abused its discretion in finding the report adequate. I serving reports] because elements of the report are found would affirm the order of the trial court. deficient.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c). In such a circumstance, section 74.351(c) grants the trial Even assuming the report is merely “some report as to Dr. court discretion to allow a 30–day extension of the Kessler (among others),” the remand fashioned by the deadline “in order to cure the deficiency.” Id. Jernigan majority is not appropriate in this case and alters the and Garcia cannot be read to mean that any deficiency in statutory scheme crafted by the legislature. Austin Heart a report requires dismissal without the possibility of an and Dr. Kessler moved to dismiss the Webbs’ lawsuit extension to cure because that would mean section solely on the ground that the expert report was “no report” 74.351(c) has no possible application and is superfluous. and, thus, the trial court had no discretion to consider an Section 74.351(c) contemplates that there are extension to cure deficiencies. Having found that the circumstances where a timely report will be deficient, but report is indeed some report for which the trial court the deficiency can be cured. To be consistent with the could have granted an extension, the majority has rejected statute, Jernigan and Garcia must be read to allow for at Austin Heart’s and Dr. Kessler’s sole ground for least some situations where a timely report is deficient, dismissal. The appropriate remedy would be a remand to but the trial court should consider whether the deficiency the trial court for the cause to proceed without the need is such that it warrants allowing a cure period.8 Id. for an extension. For these reasons, I respectfully dissent.

*285 We are of the opinion that the report in this case falls into that category. It was served timely, it makes more than a passing reference to Dr. Kessler, and it notes conduct by Dr. Kessler that could be linked to the expert’s FACTUAL AND PROCEDURAL BACKGROUND conclusions regarding the breach of the standard of care and causation. It is deficient only because it does not On January 31, 2006, the Webbs filed suit against Austin expressly make the link between the expert’s conclusions Heart and Dr. Kessler, alleging that Dr. Kessler, and the referenced conduct by Dr. Kessler. If the expert is individually, and Austin Heart, through the actions of Dr. of the opinion that Dr. Kessler’s conduct breached the Kessler, negligently failed to diagnose and treat Christian standard of care and caused injury, he will not have to Webb for a medical condition related to his pacemaker generate a new, previously nonexistent report. He will that caused him to experience “severe palpitations” and simply have to add the link between his already stated other associated health conditions. On May 31, 2006, the conclusions and the already referenced conduct of Dr. Webbs filed the expert report and curriculum vitae of Dr. Kessler. Therefore, the circumstances here are not similar Alan Cororve pursuant to section 74.351 of the civil to the situation where a plaintiff simply has missed the practice and remedies code. See Tex. Civ. Prac. & deadline for serving a report with respect to the conduct Rem.Code Ann. § 74.351(a) (West Supp.2006). Austin of a physician. Heart and Dr. Kessler filed a motion to dismiss under section 74.351(b), asserting that the Webbs had failed to We reverse the district court’s order denying the motion file an expert report specifically addressing the standard to dismiss filed by Austin Heart, P.A. and Dr. Kessler and of care, breach of the standard of care, or causation as to remand this cause for further proceedings. either Austin Heart or Dr. Kessler. See id. § 74.351(b). The district court initially granted the motion to dismiss. The Webbs filed a motion for rehearing and motion for new trial, and the district court granted the motions. The district court then denied Austin Heart’s and Dr. Kessler’s Dissenting Opinion by Justice PATTERSON. motion to dismiss, and this interlocutory appeal followed.

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question and provide a basis for the trial court to determine that the claims have merit. Id. at 879.

ANALYSIS The supreme court has stated that “to avoid dismissal, a plaintiff need not present evidence in the report as if it In their single issue on appeal, Austin Heart and Dr. were actually litigating the merits. The report can be Kessler argue that dismissal was mandated by section informal in that the information in the report does not 74.351(b). have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Id. Because the statute focuses on what the report should discuss, the only information relevant to the inquiry is that Abuse of discretion standard which appears within the four corners of the document. We review a trial court’s ruling on a motion to dismiss Id. at 878. When examined in its entirety, an expert report under section 74.351(b) for an abuse of discretion. may be so deficient as to a particular defendant that it American Transitional Care Ctrs. of Tex., Inc. v. constitutes no report as to that defendant. See, e.g., Garcia Palacios, 46 S.W.3d 873, 877–78 (Tex.2001). A trial v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San court abuses its discretion if it acts in an arbitrary or Antonio 2006, no pet.) (Garcia II); Garcia v. Marichalar, unreasonable manner or without reference to any guiding 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.) rules and principles. Downer v. Aquamarine Operators, (Garcia I ). Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for Dr. Cororve’s report that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003). To satisfy the expert report requirement, the Webbs served Austin Heart and Dr. Kessler with a two-and-one- half-page report from Dr. Cororve. The report begins by stating that “[a]ny reference in this report to Dr. David J. The expert report requirement Kessler, M.D. refers to Dr. Kessler individually, and his In a health-care liability claim, the claimant must provide employer, Austin Heart, P.A.”1 In a section titled each defendant with one or more expert reports, including “Materials Reviewed and Background,” the first a curriculum vitae for each expert, within 120 days of paragraph begins, “My opinions are based upon my filing the original petition. Tex. Civ. Prac. & Rem.Code review of ...,” then lists specific medical records and Ann. § 74.351(a). An “expert report” is: office notes from four medical facilities and five doctors, and states that “[i]n addition, my opinions are based upon my experience, training, knowledge, and qualifications as a written report by an expert that a physician.” The report next discusses Mr. Webb’s provides a fair summary of the treatment history following the implantation of his expert’s *287 opinions as of the pacemaker on November 30, 2001: date of the report regarding applicable standards of care, the manner in which the care rendered Subsequent to that procedure, Mr. Webb complained by the physician or health care on various occasions concerning his sensing the provider failed to meet the pacemaker pacing or being aware of forceful standards, and the causal heartbeats. To that extent, Dr. Kessler noted on relationship between the failure and 01/18/02 “possibly diaphragmatic stimulation the injury, harm, or damages intermittently.” With the office visit of 03/19/03, Dr. claimed. Kessler notes this was the second complaint of abdominal twitching. The pacemaker was reduced to Id. § 74.351(r)(6). Failure to serve an adequate expert see if abdominal symptoms could be relieved with less report mandates dismissal with prejudice. Id. § 74.351(b). frequent pacing. On 04/25/03, Dr. Kessler states the A report need not marshal all of the plaintiff’s proof, but patient was aware of pacing intermittently and was it must include the expert’s opinion on each of the suspicious of diaphragmatic stimulation. elements identified in the statute. Palacios, 46 S.W.3d at 878. To constitute a good faith effort, the report must inform the defendant of the specific conduct called into © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

*288 Dr. Kessler states he had previously assessed The diagnostic and corrective action eventually taken, this and had not found it to be present. On that day, specifically the increase in the ventricular pacing he tested the pacemaker with various outputs, the output, should have been implemented much sooner. patient was aware of pacing at higher outputs, but the doctor did not believe the patient had true diaphragmatic stimulation. Causation

During a pacemaker check performed on 06/08/03, Had the corrective action described occurred, Mr. the patient stated he still had “hiccup” feelings in his Webb would not have undergone the physical and abdomen, and Dr. Rodgers’ office note of 05/06/04 mental problem(s) he had and could have continued his stated the patient had some feelings of hiccup-like normal lifestyle much earlier than he did. discomfort. Austin Heart and Dr. Kessler do not challenge the adequacy of the report’s description of these three On 12/16/04, Dr. Kessler references the patient’s elements; rather, they assert that it is not clear to which ongoing anxiety, use of Xanax and his request for the doctor they apply because the report mentions five PCP’s assistance managing the anxiety. Mr. Webb’s doctors and four health care institutions, but fails to email to Dr. Kessler on 04/27/05 states how the reference any of the providers in the analysis of patient’s “been suffering two years.” The patient’s standard of care, breach and causation. They urge, *289 email of 05/04/05 asks if the pacemaker lead might therefore, that Dr. Cororve’s report is essentially “no be in the wrong place, and Dr. Rodgers responded report” as to Austin Heart and Dr. Kessler. “no.”2 Dr. Kessler’s note of 05/27/05 states the Because Austin Heart and Dr. Kessler do not contest the patient was complaining of palpitations but “I am adequacy of the report’s descriptions of the statutorily reluctant to place a new lead at this time.” required elements, the only question before this Court is whether the trial court abused its discretion in determining Subsequent to these events, Mr. Webb continued to that the report sufficiently ties Dr. Kessler to the analysis have palpitations and problems with diaphragmatic of the statutory elements. From the context and structure stimulations. He was seen by various physicians, of the report, it is clear that Dr. Cororve’s listing of the including several electrophysiological consultations. notes and records of the doctors and health care The persistence of his symptoms significantly impaired institutions in the “Materials Reviewed” paragraph of the his quality of life and ability to concentrate at work. report was not intended to make the doctors or health care Because of this, he was presecribed an anti-depressant institutions themselves the focus of Dr. Cororve’s and anti-anxiety medication. Further evaluation analysis. Thus, the focus is on the section of the report eventually documented diaphragmatic stimulation and discussing Mr. Webb’s medical treatment and the sections a new right ventricular lead was placed on September setting out the statutorily required elements. In the 7, 2005. The patient was subsequently discharged in medical-treatment discussion, only two doctors are excellent condition. named—Dr. Kessler and Dr. Rodgers—and there is one The report has three final sections setting out the three reference to unnamed “various physicians.” No doctor is statutorily required elements: expressly mentioned in the sections addressing the statutorily required elements.

Standard of Care Austin Heart and Dr. Kessler contend that Dr. Cororve’s report did not adequately tie Dr. Kessler to the statutory The standard of care in a patient such as this requires elements, citing this Court to Jernigan, 195 S.W.3d 91, more intensive investigation as to the source of a Garcia II, 198 S.W.3d 250, Garcia I, 185 S.W.3d 70, and patient’s symptoms and subsequent corrective actions Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d to ameliorate the problem. Attempts at adjusting the 913 (Tex.App.-Texarkana 2006, no pet.). These cases are ventricular pacing outputs should routinely be distinguishable. attempted and would most likely have pinpointed the problem much earlier. This standard of care was not In Jernigan, the plaintiff filed suit against a hospital and met. several physicians including Dr. Jernigan. 195 S.W.3d at 92. The plaintiff served two expert reports; however, the first failed to mention Dr. Jernigan at all, and the second Standard of care not met mentioned him in only one sentence: “At 4:30 p.m. [the plaintiff’s] case was discussed with Dr. Jernigan....” Id. at 93. The supreme court concluded that the report was

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inadequate as to Dr. Jernigan, stating that “[t]his passing concluded that Dr. Garcia had not been served with a reference does not identify with specificity any action or report and, thus, the trial court did not have authority to inaction by Dr. Jernigan that breached the applicable grant the extension. Id. at 74. In Garcia II, the appellate standard of care. This perfunctory mention alleges no court addressed Dr. Garcia’s motion to dismiss. 198 misconduct whatsoever, much less discusses the required S.W.3d 250. The court concluded that “neither report elements with ‘sufficient specificity’ to inform Dr. informed Dr. Garcia of the specific conduct he allegedly Jernigan of ‘the conduct the plaintiff has called into performed that [the plaintiff] had called into question,” question.’ ” Id. (quoting Palacios, 46 S.W.3d at 875). and, thus, the expert reports did not constitute a good- faith effort to comply with the statutory requirements. Id. In Longino, the plaintiffs sued two doctors and a hospital at 255. The court therefore held that the trial court abused for failing to diagnose their child’s bacterial meningitis its discretion in denying Dr. Garcia’s motion to dismiss, sooner. 183 S.W.3d at 915. The plaintiffs served a single and the cause was remanded with instructions to the trial expert report that did not distinguish between the actions court to render judgment dismissing the claims against of the two doctors. Id. at 917. The report stated that, “[i]n Dr. Garcia with prejudice and to award him his reasonable consultation with Dr. James Longino,” Dr. Cameron attorney’s fees and costs of court. Id. at 256 (citing Tex. ordered tests and admitted the plaintiffs’ child to the Civ. Prac. & Rem.Code Ann. § 74.351(b)). hospital, and in the discussion of the standard of care, the report stated that Unlike Jernigan, Longino, and Garcia, in this case, the Webbs have filed a lawsuit complaining of the actions of Dr. Cameron[’s] and Dr. Longino’s only one doctor, Dr. Kessler, and their expert report is not care of [the plaintiffs’ child] fell one in which they mentioned him only in passing, in below the standard of care.... Their connection only with another doctor, or not at all. Instead, failure to either recognize or he is the subject of the majority of the report and is named acknowledge the obvious eleven times.3 The first paragraph, which states that any symptoms of fever, altered mental reference to Dr. Kessler refers to him individually and to status, and neck pain; to perform a his employer, Austin Heart, may be fairly read as timely diagnostic lumbar puncture; signaling that the report is about Dr. Kessler. In addition, and to aggressively treat [the Dr. Cororve’s description of Mr. Webb’s medical history child’s] bacterial meningitis with covers five visits with and one e-mail to Dr. Kessler an appropriate combination of spanning two and one half years in which Dr. Kessler antibiotics led to an unnecessary noted the following: “possibly diaphragmatic stimulation exacerbation of his symptoms. intermittently,” a second complaint about abdominal twitching, Mr. Webb’s awareness of pacing intermittently Id. The court concluded that the report contained “no and suspicion of diaphragmatic stimulation, Mr. Webb’s specific information concerning how Longino breached awareness of pacing at higher outputs, disbelief that the the standard of care apart from Cameron’s conduct,” and patient had true diaphragmatic stimulation, Mr. Webb’s therefore did not demonstrate a good-faith effort as to ongoing anxiety and request for assistance managing the Longino. Id. anxiety, and Mr. Webb’s complaining of palpitations, but “I am reluctant to place a new lead at this time.” The In the Garcia cases, the plaintiff filed suit against three report’s two references to comments from Dr. Rodgers—a doctors, two nurses, and a hospital. Garcia II, 198 S.W.3d notation that the patient had some feelings of hiccup-like at 252. The plaintiff served two expert reports, but neither discomfort and a response of “no” to Mr. Webb’s e-mail report mentioned Dr. Garcia at *290 all. Id. Dr. Garcia asking if the lead might be in the wrong place—as well as filed a motion to dismiss the claims against him asserting the single reference to unnamed “various physicians,” do that he had not been “served” with a report. Id. The trial not obscure the report’s focus on the actions of Dr. court initially granted the motion, but later dissolved its Kessler. In addition, unlike Longino, the actions of the order and granted the plaintiff a 30–day extension to cure two doctors named are distinguishable. any deficiencies in the report. Id. In Garcia I, the appellate court addressed the extension, distinguishing Dr. Cororve’s analysis of the statutory elements states that situations in which a deficient report is filed from those in the standard of care required “more intensive which no report is filed—a trial court has discretion to investigation,” “[a]ttempts at adjusting the ventricular grant a 30–day extension in the former situation, but not pacing outputs should routinely be attempted,” and “[t]he the latter. 185 S.W.3d at 73. Because the reports served diagnostic and corrective *291 action eventually taken, by the plaintiff focused on the acts of other defendants specifically the increase in the ventricular pacing output, and failed to mention Dr. Garcia at all, the court should have been implemented much sooner.” In the

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discussion of Mr. Webb’s medical history earlier in the prejudice and has no discretion to grant a 30–day report, it appears that both Dr. Kessler and Dr. Rodgers extension. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)- investigated Mr. Webb’s symptoms; however, only Dr. (c); Garcia I, 185 S.W.3d at 73. Yet, if the report is Kessler is named in connection with testing and making merely “deficient” (and timely filed, as here), the trial adjustments to the pacemaker. In addition, Dr. Kessler’s court is not required to immediately dismiss and has notations contradict what Dr. Cororve states is the discretion to grant a 30–day extension to cure the standard of care. According to Dr. Cororve’s report, Dr. deficiencies. Tex. Civ. Prac. & Rem.Code Ann. § Kessler “did not believe the patient had true 74.351(c). diaphragmatic stimulation” however, “[f]urther evaluation eventually documented diaphragmatic stimulation and a Austin Heart and Dr. Kessler elected to move for new right ventricular lead was placed.” Under “Standard dismissal solely on the ground that the report was “no of Care,” Dr. Cororve states that “[a]ttempts at adjusting report.”5 Having concluded that the report is “some report the ventricular pacing outputs should routinely be as to Dr. Kessler (among others),” the majority has attempted and would most likely have pinpointed the rejected the sole ground for dismissal. As such, the problem much earlier.” After reviewing the report in its appropriate remedy would be a remand to the trial court entirety, I cannot conclude that the trial court abused its for the cause to proceed without the need for an discretion in determining that the report represents a extension. good-faith effort to address the actions of Dr. Kessler.

The Remand CONCLUSION

The majority concludes that Dr. Cororve’s report is In summary, I disagree with the majority’s holding that deficient and remands this cause to the district court to the trial court abused its *292 discretion in finding that consider whether a 30–day extension is appropriate to the expert report proffered by the Webbs adequately links address the deficiency. This remedy is inappropriate Dr. Kessler to the elements of standard of care, breach of because it provides relief to Austin Heart and Dr. Kessler the standard, and causation. I would affirm the order of on a ground not raised in the trial court or on appeal. See the trial court. I further disagree with the remedy Tex.R.App. P. 33.1. fashioned by the majority because it grants relief to Austin Heart and Dr. Kessler on a ground that they did Austin Heart and Dr. Kessler challenged Dr. Cororve’s not raise in the trial court or on appeal. For these reasons, report solely on the ground that it was “no report,” not I respectfully dissent. that it was a “deficient report.”4 The difference between the two is strategically significant. If the report is “no report,” then the trial court must dismiss the case with

Footnotes 1 These included records of five physicians, three hospitals, and a clinic.

2 In their brief, the Webbs state that the email response was actually by Dr. Kessler rather than Dr. Rodgers and the reference in the report is a typographical error. However, there is no evidence in the record on this point other than Dr. Cororve’s report. 3 The report does not mention who was responsible for the diagnosis of diaphragmatic stimulation or placing a new right ventricular lead. 4 Austin Heart, P.A. is alleged to be vicariously liable for the conduct of Dr. Kessler. Dr. Cororve’s report notes at the outset that “[a]ny reference in this report to David J. Kessler, M.D. refers to Dr. Kessler individually, and his employer, Austin Heart, P.A.” Consequently, for the purposes of this appeal, the report must link Dr. Cororve’s opinions to the actions of Dr. Kessler. 5 The Webbs suggest that a tally of the number of times a physician is mentioned in a report is significant. They note that Dr. Kessler’s name appears eleven times in Dr. Cororve’s report (as opposed to three times for Dr. Rodgers and once for “various physicians”). They argue that this could lead to a reasonable conclusion that the report must be about Dr. Kessler and his actions. However, we are not persuaded that such a tally is relevant to the analysis. A physician may be named in a report any number of times simply because he was intimately involved in the treatment of a patient, yet the complaint may be with the conduct of a physician who saw the patient only once and is mentioned in the report only once. The number of times a physician © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

is mentioned in a report, by itself, has little bearing on whether the opinions expressed in the report concern that physician. What matters, of course, is how the physician is mentioned and what the report communicates about that physician. 6 It is not clear what the reference to “various physicians” and “electrophysiological consultations” in the report means or is intended to communicate. 7 Jernigan interpreted a prior version of the statute that had a different standard for granting an extension to cure. Under the previous iteration of the statute, the trial court could grant an extension only if it found that the failure to comply with the statute was “not intentional or the result of conscious indifference but was the result of an accident or mistake.” See former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g) repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. The Jernigan opinion does not discuss the application of this standard, the trial court’s failure to grant an extension under this standard, or whether the trial court could have considered such an extension if it had made such findings. Thus, the Jernigan opinion is distinguishable from this case on this basis alone. However, even if the trial court’s discretion to dismiss claims under either version of the statute is viewed as the same, the expert report in Jernigan would still constitute “no report” for the purposes of dismissal under either version of the statute. 8 The dissent argues that by remanding to allow the trial court to consider whether a section 74.351(c) extension is appropriate we are granting Dr. Kessler and Austin Heart more relief than they requested or are entitled to. The dissent’s theory is that there is a distinction under section 74.351 between (1) seeking dismissal on the basis that no report was served and (2) seeking dismissal on the basis that a report was served, but it does not meet the requirements of the statute and is deficient. According to the dissent, if a defendant seeks dismissal only on the basis that no report was served, then dismissal is not appropriate if the court finds that a report, no matter how deficient, was served. There are two problems with this theory. First, the dismissal mechanism of section 74.351 does not work the way the dissent suggests. Under section 74.351, a claimant must serve an “expert report,” as defined in the statute, or be subject to dismissal. If a claimant does not serve a report that complies with the statutory requirements, then the claimant has not served an “expert report” as defined in the statute. Whether a claimant actually fails to serve a report at all or serves a deficient report the effect under section 74.351(b) is the same—the claimant has failed to serve the required “expert report” and dismissal is the remedy. However, section 74.351(c) provides a potential cure period for situations where the claimant has served a report, but the report does not constitute the required “expert report” because “elements of the report are found deficient.” The claimant then has an opportunity to fix the defect in the report that was served. If there is a failure to cure the defect by the extended deadline, then dismissal is mandatory because the claimant has failed to serve an “expert report” as defined in the statute. While section 74.351(b) does not distinguish between a complete failure to serve a report and the failure to serve a complying report, there is a distinction between the two for the purposes of 74.351(c). When a claimant fails to serve a report at all, section 74.351(c) does not provide a basis for the trial court to grant any extension of the deadline for serving a report. Consequently, dismissal is mandatory without any cure period. When a claimant serves a report, but it is deficient, section 74.351(c) gives the trial court the discretion to grant an extension to cure. Regardless of whether a claimant has failed to serve a report at all or has served a deficient report, the statutory basis of the motion to dismiss by a defendant is the same—the claimant has failed to serve an “expert report” as required by section 74.351(b). The fact that the claimant who files a deficient report may request and receive an extension of time to cure the deficiencies does not alter the nature of the defendant’s motion to dismiss. The motion to dismiss is on the ground that the plaintiff has failed to serve an “expert report.” Second, the defendants in this case did request dismissal on the basis that, while the Webbs had served a report that mentioned Dr. Kessler, the report “fails to address the standard of care applicable to Dr. Kessler, the breach of the standard or any alleged causal link.” This is an allegation that the report served was deficient. The defendants acknowledge that a report was served and that the report addresses conduct of Dr. Kessler, but they claim it is deficient in failing to address the statutorily required elements. They are aware that section 74.351(c) grants the trial court some discretion in allowing an extension to cure certain deficient reports. But, they argue that the report in this case is so deficient that it should be viewed as “no report,” requiring dismissal rather than remand for consideration of an extension period. By alleging that the deficiency is severe enough to constitute “no report” the defendants are trying to avoid the possibility of a cure period. They are not altering their claim that the report they received is deficient and will require dismissal if not corrected. We have concluded that the report is deficient, but not so deficient as to constitute “no report.” Therefore, our options are (1) reverse the trial court order denying the motion to dismiss and render judgment of dismissal or (2) reverse the trial court order and remand for consideration of whether an extension should be granted to give the plaintiffs an opportunity to attempt to cure. Remanding for the case to proceed on its merits, even though we agree with the appellants that the report is deficient, is not an option. 1 While Dr. Cororve’s report explicitly mentions Austin Heart, the Dallas court of appeals has held that when a defendant is only alleged to be vicariously liable for the negligence of another defendant, the expert report need not specifically name or address the negligence of the defendant to whom liability will be imputed. University of Tex. Southwestern Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.). What is relevant is that the report specifically identify the person whose conduct the plaintiff is calling into question and show how that person’s conduct constituted negligence. Id.

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2 Earlier in the report, under the materials reviewed section, Dr. Cororve refers to an e-mail from Mr. Webb to Dr. Kessler dated 05/04/05. In their brief on appeal, the Webbs assert that the report erroneously attributes the response to that e-mail as being from Dr. Rodgers when it was actually from Dr. Kessler. There is, however, no evidence in the record indicating who sent the e- mail. 3 While it is true that the number of times a physician is named, by itself, does not indicate the report complains of that physician’s conduct, it is more likely that a report discussing mainly the conduct of one physician is about the conduct of that physician. 4 The motion to dismiss clearly distinguishes the two scenarios, stating: This is not an occasion in which a report was served on Austin Heart, P.A. or David J. Kessler, M.D. wherein the expert failed to address a requisite element, such as the standard of care, the alleged breach of the standard, or the alleged causal link, thus making the report deficient. Here, the report constitutes no report at all. Thus, Austin Heart and Dr. Kessler did not, as the majority contends, “argue that the report in this case is so deficient that it should be viewed as ‘no report.’ ” 5 The remand fashioned by the majority grants Austin Heart and Dr. Kessler relief not requested because the majority treats their motion to dismiss as if it were based on two grounds: (1) that the report was “no report” and (2) that even if the report was some report that it was deficient. Austin Heart’s and Dr. Kessler’s motion, however, was based solely on the first ground. Without a motion to dismiss based on deficiency, there is no basis for a finding of deficiency and no need for a 30–day extension “to cure the deficiency.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (2011)

340 S.W.3d 529 I. Introduction Court of Appeals of Texas, Fort Worth. In one issue, Appellant Baylor All Saints Medical Center asserts that the trial court erred when it determined that BAYLOR ALL SAINTS MEDICAL CENTER, the expert report filed by the Appellees Pamela and John Appellant, Martin met the requirements of section 74.351 of the civil v. practice and remedies code. See Tex. Civ. Prac. & Pamela MARTIN and John Martin, Appellees. Rem.Code Ann. § 74.351 (Vernon 2011). We reverse and remand. No. 02–10–00402–CV. | April 14, 2011.

Synopsis Background: Patient sued hospital for negligence based II. Factual and Procedural History on alleged sexual assault on patient in her hospital room. Hospital objected to sufficiency of patient’s expert report, The Martins sued Baylor for negligence, alleging that moved to dismiss, and requested attorney fees. Following Pamela was sexually assaulted in her hospital room as she a hearing, the 17th District Court, Tarrant County, recovered from surgery. In support of their claim, the Melody Wilkinson, J., overruled hospital’s objections and Martins served Baylor with Dr. John C. Shershow, M.D.’s denied motion and request for attorney fees. Hospital expert report and curriculum vitae. Baylor objected to the appealed. report’s sufficiency, moved to dismiss the Martins’ claim, and requested attorney’s fees. The trial court overruled Baylor’s objections after a hearing and denied Baylor’s [Holding:] The Court of Appeals, Bob McCoy, J., held motion to dismiss and request for attorney’s fees. This that patient’s expert report was deficient in establishing appeal followed. appropriate standard of care for the hospital and the breach of that standard.

III. Expert Report Reversed and remanded. Baylor appeals the trial court’s order overruling its objections that the Martins’ expert witness report does not Attorneys and Law Firms comply with section 74.351, arguing that the report failed *531 Cantey Hanger LLP, Stephen L. Tatum, Carol J. to adequately set forth the standard of care applicable to Traylor and David Speed, Fort Worth, TX, for Appellant. Baylor and how that standard was breached.

King Law Office, P.C. and Russell W. King, Stephenville, TX, for Appellee. A. Standard of Review [1] PANEL: LIVINGSTON, C.J.; McCOY and GABRIEL, We review a trial court’s denial of a motion to dismiss JJ. for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006); *532 Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex.App.-Fort Worth 2008, pet. denied); Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.App.-Fort Worth 2008, pet. denied). A trial court abuses its discretion when it acts in OPINION an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine BOB McCOY, Justice. Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an

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appellate court would in a similar circumstance does not other documents or tangible things, related to the demonstrate that an abuse of discretion has occurred. Id. patient’s health care[.] However, a trial court has no discretion in determining what the law is, or in applying the law to the facts, and Tex. Civ. Prac. & Rem.Code Ann. § 74.351. thus “a clear failure by the trial court to analyze or apply [2] [3] the law correctly will constitute an abuse of discretion.” The purpose of the expert report requirement is to Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. inform the defendant of the specific conduct the plaintiff proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624 has called into question and to provide a basis for the trial (Tex.App.-Fort Worth 2004, pet. denied). court to conclude that the claims have merit. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). When a defendant moves B. Applicable Law to dismiss a plaintiff’s claims for failure to provide the Section 74.351 of the civil practice and remedies code, required expert report, entitled “Expert Report,” provides, The issue for the trial court is (a) In a health care liability claim, a claimant shall, not whether “the report” represents a later than the 120th day after the date the original good-faith effort to comply with petition was filed, serve on each party or the party’s the statutory definition of an expert attorney one or more expert reports, ... report. That definition *533 requires, as to each defendant, a .... fair summary of the expert’s opinions about the applicable (c) If an expert report has not been served within the standard of care, the manner in period specified by Subsection (a) because elements of which the care failed to meet that the report are found deficient, the court may grant one standard, and the causal 30–day extension to the claimant in order to cure the relationship between that failure deficiency.... and the claimed injury. Because the .... statute focuses on what the report discusses, the only information (l ) A court shall grant a motion challenging the relevant to the inquiry is within the adequacy of an expert report only if it appears to the four corners of the document. court, after hearing, that the report does not represent an objective good faith effort to comply with the Palacios, 46 S.W.3d at 878 (citations omitted). definition of an expert report in Subsection (r)(6). [4] [5] [6] [7] [8] [9] An expert report “need not marshal all the .... plaintiff’s proof.” Id. at 878–79. While the report must do more than simply state the expert’s conclusions about the (r) In this section:.... standard of care, breach, and causation, to avoid dismissal “a plaintiff need not present evidence in the report as if it (6) “Expert report” means a written report by an were actually litigating the merits. The report can be expert that provides a fair summary of the expert’s informal in that the information in the report does not opinions as of the date of the report regarding have to meet the same requirements as the evidence applicable standards of care, the manner in which the offered in a summary-judgment proceeding or at trial.” Id. care rendered by the physician or health care at 879. provider failed to meet the standards, and the causal relationship between that failure and the injury, [t]he standard of care for a hospital is what an harm, or damages claimed. ordinarily prudent hospital would do under the same or similar circumstances. Identifying the standard of care (s) Until a claimant has served the expert report and is critical: Whether a defendant breached his or her curriculum vitae as required by Subsection (a), all duty to a patient cannot be determined absent specific discovery in a health care liability claim is stayed information about what the defendant should have done except for the acquisition by the claimant of differently. “While a ‘fair summary’ is something less information, including medical or hospital records or than a full statement of the applicable standard of care

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and how it was breached, even a fair summary must set information to establish the appropriate standard of care out what care was expected, but not given.” and breach thereof, and hence, further discovery should be allowed. Id. at 880 (citations omitted). Assaults of the type alleged by the Martins are covered by section 74.351. See, e.g., We observe that the Martins were well aware, as set out in Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, their petition, of the alleged facts of the assault. Hence, it 853, 855 (Tex.2005) (holding that a patient’s claim was incumbent upon their expert to articulate the standard against a nursing home for negligence in failing to of care applicable to the hospital to prevent such an provide sufficient staff and supervision to prevent her assault, which does not require a factual inquiry into the sexual assault by another patient is a health care liability measures taken by the hospital to meet this standard of claim). care.

Dr. Shershow’s report opines (1) that Baylor is expected to adhere to “specific standards of care” for its patients, C. Analysis (2) that there must be policies in place to safeguard [10] Baylor argues that Dr. Shershow’s report fails to patients from assault, including employing “a sufficient adequately identify the standard of care and that he does number of security personal [sic] to insure that no not include specific information about what Baylor should unauthorized persons assault patients and training staff to have done differently. Dr. Shershow’s report presents the identify persons not authorized to enter patients[’] rooms following as Baylor’s standard of care under the facts of and prevent them from doing so,” and (3) that these this case: standards must be adequately implemented. These opinions do not establish what specific policies and Standard of Care safeguards should have been in place. For example, the “policies in place to safeguard patients” are not identified; A hospital such as Baylor All Saints Medical [C]enter neither are the number of security personnel required nor is expected to adhere to specific standards of care in the training the staff should have received regarding regard to all of its patients. A bedrock principal [sic] in identifying unauthorized persons. See Wright, 79 S.W.3d providing care to its patients is the understanding that at 52 (stating that the expert must explain the basis of his all of a hospital’s patients by nature of their disease or statements to link his conclusions to the facts). injury are potentially vulnerable and necessarily need to receive treatment in a safe and secure environment. [11] Keeping in mind that mere conclusions about the The Joint Commission on Accreditation of Health Care standard of care are insufficient, that the standard is “what Organizations (JCAHO) has established in its Hospital an ordinary prudent hospital would do under the same or Standards that all healthcare organizations must have in similar circumstances,” and that “even a fair summary place policies which safeguard patients from assault by must set out what care was expected,” see Palacios, 46 hospital staff and by strangers that enter the hospital. S.W.3d at 880, we cannot agree that Dr. Shershow’s The JCAHO requires that hospitals adequately report fulfills the required specificity. implement these standards, and monitor this implementation. The JCAHO patient security and [12] And although the Martins specifically complain that safety expectations would require at a minimum that section 74.351(s) only allows discovery of medical hospitals should employ a sufficient number of security records and billing records, which do not contain the personal [sic] to insure that no unauthorized persons circumstances surrounding the assault and hence provide enter patients [’] rooms and physically assault their no discovery as to whether security standards were met, patients. Additionally, the JCAHO standards would this is a misreading of the discovery allowed under expect that all hospital staff should be trained to section 74.351(s). Section 74.351(s) allows discovery “of identify persons that are not authorized to enter information, including medical or hospital records or patients[’] rooms and should monitor and prevent other documents or tangible things, related to the unauthorized persons from *534 having access to patient’s health care.” See Tex. Civ. Prac. & Rem.Code patients receiving treatment at the hospital. Ann. § 74.351(s) (emphasis added). Furthermore, as assaults of the type here are covered by section 74.351, The Martins reply that the trial court did not abuse its see Rubio, 185 S.W.3d at 851, logically, discovery of the discretion by denying Baylor’s motion to dismiss, hospital’s policies and procedures regarding the claiming that Dr. Shershow’s report was adequate. They protection of patients from assault must be covered by alternatively argue that the medical records that section section 74.351(s). See Tex. Civ. Prac. & Rem.Code Ann. 74.351(s) allows them to discover do not contain adequate § 74.351(s) (stating that all discovery is stayed except for

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acquisition by the claimant of information related to the deficient, and the trial court abused its discretion by patient’s health care); see also Bogar v. Esparza, 257 finding otherwise. We sustain Baylor’s sole issue.1 S.W.3d 354, 371–72 (Tex.App.-Austin 2008, no pet.) (op. on reh’g) (noting that the plaintiff has the burden to establish that section 74.351’s discovery limitations have in fact prevented her from satisfying the statute’s expert report requirements and pursuing her claim). But cf. IV. Conclusion Simmons v. Texoma Med. Ctr., 329 S.W.3d 163, 174 (Tex.App.-El Paso 2010, no pet. h.) (interpreting section Having sustained Baylor’s sole issue, we reverse the trial 74.351(s) to preclude “[d]iscovery of issues such as court’s order and remand this case to the trial court to financial information, insurance and indemnity consider whether to grant a thirty-day extension to cure agreements, corporate organization, *535 and even the deficiency. See Tex. Civ. Prac. & Rem.Code Ann. § bylaws, policies, and procedures” until an expert report is 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 served). (Tex.2008); Foster v. Richardson, 303 S.W.3d 833, 845– 46 (Tex.App.-Fort Worth 2009, no pet.). Therefore, we hold that with respect to the establishment of the appropriate standard of care for Baylor and the breach of that standard, the Martins’ expert report was

Footnotes 1 Based on our resolution, we do not reach Baylor’s other arguments. See Tex.R.App. P. 47.1.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Bogar v. Esparza, 257 S.W.3d 354 (2008)

Diane Henson, J., filed dissenting opinion on denial of motion for en banc reconsideration. 257 S.W.3d 354 Court of Appeals of Texas, Austin. Attorneys and Law Firms Mark D. BOGAR, M.D., Appellant *357 Carla Garcia Connolly, Connolly & Castagna, v. L.L.P., Austin, for Appellant. Dolores G. ESPARZA, Individually and as Administrator of the Estate of Katherine G. Robert C. Alden, Don L. Davis, Byrd, Davis & Furman Guerrero; Deceased; Fernando Guerrero; Sofia G. LLP, Austin, Stephen B. Pershing, Center for Butschy; Gilberto Guerrero; Antonio Guerrero; Constitutional Litigation, P.C., Washington, DC, for Rosie G. Garza; Benito Guerrero; Josey G. Selvera; Appellees. and Frances G. Faz, Appellees. Before Justices PATTERSON, PEMBERTON and No. 03–07–00037–CV. | May 16, 2008. WALDROP.

Synopsis Background: Survivors of deceased patient brought medical malpractice action against patient’s physician and hospital after patient died from post-surgery OPINION pharmaceutical drug overdose. Physician and hospital filed a joint motion for dismissal and attorney fees based BOB PEMBERTON, Justice. on survivors’ alleged failure to file an expert report that complied with statutory requirements. The Probate Court We withdraw our opinion, dissenting opinion and No. 1, Travis County, Guy S. Herman, J., denied the judgment dated June 28, 2007 and substitute the motion for dismissal. Physician appealed. following in its stead. We overrule the Appellees’ Motion for Rehearing.

We again address issues arising from the expert report Holdings: On denial of rehearing, the Court of Appeals, requirements of section 74.351 of the civil practice and Bob Pemberton, J., held that: remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § [1] 74.351 (West Supp.2006). Appellant Mark D. Bogar, statute allowed physician to file an interlocutory appeal M.D. appeals the probate court’s denial of his motion to from trial court’s denial of the motion to dismiss; dismiss appellees’ health care liability claims under [2] section 74.351(b) for failure to serve an expert report. expert report failed to comply with the statutory Their appeal requires us to consider (1) whether we have requirements, entitling physician to sanction; subject-matter jurisdiction to consider it; (2) whether [3] appellees served the required expert report; and, if not, (3) the expert report constituted “no report” as to the appropriate appellate remedy. We conclude that we physician, such that dismissal of the action against him have jurisdiction over Dr. Bogar’s interlocutory appeal was required without any opportunity to cure the report; and that the controlling law and “four corners” of and appellees’ report leave us no alternative but to reverse and [4] render judgment dismissing appellees’ claim and discovery limitations set forth in expert-report statute awarding attorney’s fees and costs. See id. § 74.351(b). In did not deny survivors due process. their motion for rehearing and en banc *358 reconsideration, appellees have urged that our application of section 74.351 violates due process and due course of Reversed, rendered, and remanded in part. law. We disagree, for reasons we will explain herein. We will remand to the probate court to determine the amount Jan P. Patterson, J., filed a dissenting opinion and of attorney’s fees to which Dr. Bogar is entitled. dissented from the denial of en banc reconsideration.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Bogar v. Esparza, 257 S.W.3d 354 (2008)

BACKGROUND Both Dr. Bogar and Healthsouth timely filed notices of Appellees sued Dr. Bogar and Healthsouth on May 1, interlocutory appeal. In the interim, Healthsouth settled 2006, alleging negligence in connection with medical care with appellees. We accordingly address only the appellate provided to Katherine R. Guerrero by Dr. Bogar and the issues presented by Dr. Bogar. “agents, servants, employees, representatives, and staff” of Healthsouth Rehabilitation Hospital of Austin between December 28, 2004, and January 12, 2005, when Ms. Guerrero died. Appellees alleged that following surgery, Ms. Guerrero was placed under the care of Dr. Bogar and ANALYSIS Healthsouth and, in the course of her rehabilitative treatment, was given a fatal overdose of pharmaceutical In a single issue, Dr. Bogar argues that the probate court products. Appellees pleaded that an autopsy report from abused its discretion in denying his motion to dismiss and the Travis County Medical Examiner concluded that Ms. request for attorney’s fees and costs. In addition to Guerrero “died as a result of an overdose of oxycodone disputing the merits of this contention, appellees have and propoxyphene.” filed a motion to dismiss *359 Dr. Bogar’s interlocutory appeal for want of jurisdiction, contending that no statute On or around June 6, 2006, Appellees served on Dr. authorizes him to appeal the order he seeks to challenge. Bogar and Healthsouth an expert report prepared by Dr. Jesse Adame that purported to comply with the requirement of subsection 74.351(a). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (“In a health care liability Jurisdiction [1] claim, a claimant shall, not later than the 120th day after Appellate courts generally have subject-matter the date the claim was filed, serve on each party or the jurisdiction only over appeals from final judgments and party’s attorney one or more expert reports ... for each have jurisdiction over appeals of interlocutory orders only physician or health care provider against whom a liability when that authority is explicitly granted by statute. claim is asserted.”). Both defendants timely filed Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d objections to the sufficiency of Dr. Adame’s report. See 184, 185 (Tex.App.-Austin 2005, no pet) (citing Stary v. id. (“Each defendant physician or health care provider DeBord, 967 S.W.2d 352, 352–53 (Tex.1998)). Section whose conduct is implicated in a report must file and 51.014(a) of the civil practice and remedies code serve any objection to the sufficiency of the report not authorizes an interlocutory appeal from two types of later than the 21st day after the date it was served, failing orders regarding expert reports under chapter 74. First, an which all objections are waived.”). Each defendant interlocutory appeal may be taken from an order that contended that Dr. Adame’s report failed to satisfy the “denies all or part of the relief sought by a motion under statutory definition of an “expert report” by failing to Section 74.351(b), except that an appeal may not be taken provide a fair summary of the expert’s opinions regarding from an order granting an extension under Section applicable standards of care, the manner in which the care 74.351(c).” Tex. Civ. Prac. & Rem.Code Ann. § rendered by each defendant failed to meet the standards, 51.014(a)(9) (West Supp.2006). Second, an interlocutory and the causal relationship between such failure and Ms. appeal may be taken from an order that “grants relief Guerrero’s death. See id. § 74.351(a), (l ), (r)(6). Further, sought by a motion under Section 74.351(l ).” Id. § Dr. Bogar urged that Dr. Adame, a pathologist, had failed 51.014(a)(10). to demonstrate that he was an “expert” qualified to render [2] opinions concerning the standards of care applicable to Appellees assert that the order from which Dr. Bogar Dr. Bogar, a physical medicine rehabilitation physician. seeks to appeal is neither of these. They suggest that “the See id. § 74.351(r)(5), § 74.401 (West 2005). relief sought by a motion under Section 74.351(b)” is available only where a claimant has failed to timely file Subsequently, after appellees’ 120–day deadline for an instrument purporting to be an “expert report” by the serving their expert reports expired, see id. § 74.351(a), 120–day deadline of subsection (a), not when a purported Dr. Bogar and Healthsouth filed a joint motion seeking “expert report” is timely filed but is found to be dismissal with prejudice, attorney’s fees and costs for inadequate. See id. § 74.351(b) (“If ... an expert report has failure to file an expert report complying with section not been served within the period specified by Subsection 74.351. See id. § 74.351(b). Dr. Bogar later filed an (a)....”). Here, appellees maintain, there is no dispute that amended motion to dismiss adding his earlier challenge to “the expert report of Dr. Adame was served within the Dr. Adame’s qualifications. On January 10, 2007, the required period of time.” Appellees further assert that probate court denied the dismissal motions. challenges to the adequacy or sufficiency of expert

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reports, as contrasted with their absence or timeliness, are provider failed to meet the standards, and the causal governed exclusively by section 74.351(l ). Section relationship between that failure and the injury, harm, or 74.351(l ) states that “[a] court shall grant a motion damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § challenging the adequacy of an expert report only if it 74.351(r)(6); see id. § 74.351(r)(5) (definition of appears to the court, after hearing, that the report does not “expert”). Thus, if the report does not comply with represent an objective good faith effort to comply with the subsection (r)’s “expert report” definition, it does not definition of an expert report in Subsection (r)(6).” Id. § satisfy the claimant’s requirement under subsection (a) 74.351(l ). Because Dr. Bogar’s motion, in appellees’ and exposes the claimant to potential sanctions under (b), view, is “a motion under section 74.351(l ),” they assert including dismissal. that his right of interlocutory appeal is controlled by section 51.014(a)(10) rather than (a)(9), and no appeal is Subsection (c), however, provides that “[i]f an expert available from the probate court’s order denying him report has not been served within the period specified by relief. See id. § 51.014(a)(10) (permitting appeal from an Subsection (a) because elements of the report are found order that “grants relief sought by a motion under Section deficient,” the trial court is afforded discretion to grant a 74.351(l )”) (emphasis added). They equate this case to single 30–day extension “in order to cure the deficiency.” Academy of Oriental Medicine, L.L.C. v. Andra, where we Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (emphases held that an order denying a motion challenging the added); See Ogletree, 262S.W.3d at ––––, 2007 WL sufficiency of an expert report was governed by section 4216606, at *2–3, 2007 Tex. LEXIS 1028, at *7–8 (“the 74.351(l ) rather than section 74.351(b) and that Legislature recognized that not all initial timely served “[b]ecause this appeal challenges an order that is neither reports would satisfy each of the statutory criteria. As a an order denying the relief sought by a motion under § result, the [2003] amendments explicitly give trial courts 74.351(b) nor one granting relief sought by a motion discretion [in subsection (c) ] to grant a thirty-day under § 74.351(l ), we lack jurisdiction to hear it.” 173 extension so that parties may, where possible, cure S.W.3d at 186–89. We disagree with appellees’ views of deficient reports.... In this important respect, a deficient section 74.351 and Andra. report differs from an absent report.”). Conversely, “[i]f no report is served within the 120–day deadline provided [3] Under section 74.351(b), as the supreme court has by 74.351(a)—i.e., an ‘absent report’—the Legislature recently explained, a plaintiff may fail to “serve” an denied trial courts the discretion to deny motions to “expert report” within the period specified by Subsection dismiss or grant extensions.” Ogletree, 262S.W.3d at ––– (a) not only by failing to serve any expert report within –, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at that deadline (an “absent report”), but also by failing to *6; see also id. at –––– & n. 2, 2007 WL 4216606, at *2 provide a report within the deadline that satisfies the & n. 2, at *7 & n. 2 (“section 74.351’s language is statutory requirements for “expert reports” (a “deficient somewhat confusing, as the statute uses the phrase “has report”). See Ogletree *360 v. Matthews, No. 05–0502, –– not been served” to refer both to deficient and absent – S.W.3d ––––, –––– & n. 2, 2007 WL 4216606, at *2–3 reports.”). & n. 2, 2007 Tex. LEXIS 1028, at *6–8 & n. 2, (Tex. Nov. 30, 2007); Austin Heart P.A. v. Webb, 228 S.W.3d The supreme court also reiterated the concept that a report 276, 284 (Tex.App.-Austin 2007, no pet.); Apodaca v. served within the 120–day deadline that fails entirely to Russo, 228 S.W.3d 252, 257–58, (Tex.App.-Austin 2007, implicate the conduct of a defendant is not merely no pet.); cf. Walker v. Gutierrez, 111 S.W.3d 56, 61 deficient, but is in effect an absent report or no report as (Tex.2003) (dismissal under former article 4590i to that defendant. See id. at –––– – ––––, 2007 WL warranted for “failure to comply” with report deadline by 4216606, at *2–3, at *6–8 (citing with approval Garcia v. either failure to file or failure to file adequate report). This Marichalar, 185 S.W.3d 70, 73 (Tex.App.-San Antonio conclusion is apparent from the text and structure of 2005, no pet.) for the principle that an “expert report” that section 74.351. Subsection (a) requires the claimant to file mentioned other providers but not Garcia was in effect no one or more “expert reports” not later than the 120th day report as to Garcia and concluding that an extension was, after the date the original petition was filed, and therefore, improper); cf. Austin Heart, 228 S.W.3d at 284 subsection (b) mandates sanctions “[i]f, as to a defendant (holding that timely report that “plainly discusses the physician or health care provider, an expert report has not conduct of the physician in question” but was deficient in been served within the period specified by Subsection failing to explicitly link the physician to the *361 report’s (a).” “Expert report” is defined within section 74.351 as: stated opinions regarding standard of care and causation “a written report by an expert that provides a fair was potentially curable and should be remanded for summary of the expert’s opinions as of the date of the consideration of whether a subsection (c) extension report regarding applicable standards of care, the manner should be granted). in which the care rendered by the physician or health care

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Recently, the Texas Supreme Court has laid to rest any question as to whether the availability of interlocutory review of an order denying relief under section 74.351(b) differs depending on whether the motion’s grounds relate Dr. Adame’s report to (1) the absence of any timely-served expert report, (2) a We turn now to Dr. Bogar’s issue. Dr. Bogar asserts that timely expert report that is nonetheless not “served” on a the probate court abused its discretion in denying his defendant because it is deficient as to one or more section 74.351(b) motion because appellees failed to statutory criteria, or (3) a timely expert report that is “serve” him with an expert report. Specifically, Dr. Bogar effectively “no report” as to a defendant because it fails to urges that (1) Dr. Adame’s report did not represent a good implicate that defendant’s conduct. The supreme court faith effort to comply with the statutory requirements for concluded, as we did on original submission, that it does “expert reports” and, in fact, constituted no report as to not. See Lewis v. Funderburk, 253 S.W.3d 204, 207–08 him; and (2) Dr. Adame, as a pathologist, was not (Tex.2008). A potential limitation on this right to appeal qualified as an “expert” to evaluate Dr. Bogar’s exists, however, where a timely expert report implicates a performance as a rehabilitative *362 medicine specialist. defendant’s conduct: the trial court, in its discretion, may We need not reach the latter contention because we agree grant an extension under section 74.351(c), in which case that Dr. Adame’s report was deficient with regard to the the order denying the motion under section 74.351(b) is statutory requirements for expert reports. not appealable. Tex. Civ. Prac. & Rem.Code Ann. §§ [4] [5] [6] 51.014(a)(9), 74.351(b)-(c); see Ogletree, 262 S.W.3d at As noted above, the “expert report” or reports that ––––, 2007 WL 4216606, at * 3–4, 2007 Tex. LEXIS a health care liability claimant must serve under section 1028, at *6–8 (“If no report is served within the 120 day 74.351(a) must provide “a fair summary of the expert’s deadline provided by 74.351(a), the Legislature denied opinion as of the date of the report regarding the trial courts the discretion to dismiss or grant extensions, applicable standards of care, the manner in which the care and a trial court’s refusal to dismiss may be immediately rendered by the physician or health care provider failed to appealed.... [But] even when a report is deemed not meet the standards, and the causal relationship between served because it is deficient, the trial court retains that failure and the injury, harm, or damages claimed.” discretion to grant a thirty-day extension, and the Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). A trial Legislature explicitly stated that such orders are not court, again, must grant a motion challenging the appealable.... [I]f a deficient report is served and the trial adequacy of a report only if the report “does not represent court grants a thirty-day extension, that decision—even if an objective good faith effort to comply” with this coupled with a denial of a motion to dismiss—is not definition of “expert report.” Id. § 74.351(l ). To subject to appellate review.”). In other words, an order constitute a “good faith effort,” the report must provide denying relief under subsection (b) is immediately enough information to fulfill two purposes: (1) it must appealable unless the trial court has discretion under inform the defendant of the specific conduct the plaintiff subsection (c) to grant a 30–day extension and actually has called into question; and (2) it must provide a basis does so. for the trial court to conclude that the claims have merit. Austin Heart, 228 S.W.3d at 279 (citing Bowie Mem’l Here, Dr. Bogar filed objections to Dr. Adame’s expert Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American report within 21 days of service, see Tex. Civ. Prac. & Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 Rem.Code Ann. § 74.351(a), and a motion, after the 120– S.W.3d 873, 879 (Tex.2001)). Although a report need not day deadline had expired, explicitly invoking subsection marshal all of a claimant’s proof, it must include the (b) and asserting that the probate court should dismiss expert’s opinion on each of the elements identified in appellees’ claim against him with prejudice and award section 74.351. Id. (citing Palacios, 46 S.W.3d at 878). It attorney’s fees and costs for failure to file “a statutorily is not enough for the report merely to state the expert’s defined expert report” by the deadline. See id. § conclusions about the statutory elements. Id. (citing 74.351(b). The probate court denied that motion without Palacios, 46 S.W.3d at 879). “Rather, the expert must granting an 30–day extension. Id. § 74.351(b), (c). That explain the basis of his statements to link his conclusions order “denies all or part of the relief sought by a motion to the facts.” Id. (quoting Bowie Mem’l, 79 S.W.3d at 52) under Section 74.351(b),” and we have subject-matter (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 jurisdiction to adjudicate Dr. Bogar’s appeal from that (Tex.1999)). order. Id. § 51.014(a)(9); see Lewis, 253 S.W.3d at 207; [7] Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *2– Importantly, because the statute dictates what is 3, 2007 Tex. LEXIS 1028, at *6–8; Andra, 173 S.W.3d at required in the report, the only information relevant to 186–87. We accordingly deny appellees’ motion to determining whether a report complies with the statute is dismiss Dr. Bogar’s appeal. that within “the four corners” of the report. Id. (citing

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Palacios, 46 S.W.3d at 878). This requirement “precludes with the Duragesic patch, her dose a court from filling gaps in a report by drawing inferences was reduced back to 25 mcg. She or guessing as to what the expert likely meant or was also given Protonix for intended.” Id. (citing Bowie Mem’l, 79 S.W.3d at 53). gastrointestinal prophylaxis. Despite a fairly stable hospital [8] We review a trial court’s ruling on a section 74.351(b) course, her pain increased. On motion under an abuse of discretion standard. Palacios, January 7, 2005, after her records 46 S.W.3d at 877–78. A trial court abuses its discretion were reviewed and she was cleared when it acts in an arbitrary or unreasonable manner or for surgery, she was taken to the acts without reference to any guiding rules or principles. operating room at Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, Seton/Brackenridge Hospital for 241 (Tex.1985). A clear failure by the trial court to open reduction and internal fixation analyze or apply the law correctly also constitutes an of her left femur. Her surgery went abuse of discretion. Walker v. Packer, 827 S.W.2d 833, well and she was transferred back 840 (Tex.1992). to HealthSouth Rehabilitation Hospital of Austin on January 8, The document prepared by Dr. Adame recites his 2005. She resumed her medical qualifications and concludes that “I am qualified based on regimen along with physical and my education, training and experience to offer an expert occupational therapy. Her pain opinion regarding the cause and mechanism of death of persisted and she was taken off of Mrs. Katherine Ramirez Guerrero. As a pathologist, I am Duragesic patch post surgery. familiar with the standard of care required of physicians OxyContin was added to her not to prescribe drugs either alone or in combination that therapy, initially at 10 mg and later will cause a fatal overdose.” “Such conduct,” Dr. Adame increased to 20 mg. She had bouts adds, “falls below the standard of care required of of constipation and loose stool physicians.” which was medically managed. On January 12, 2005 at 9:34 p.m. she Dr. Adame then lists the medical records and other experienced cardiopulmonary materials he had reviewed, and summarizes Ms. arrest. Despite cardiopulmonary Guerrero’s medical history. Dr. Adame notes that Ms. resuscitation until 10:13 p.m., she Guerrero was 76 years of age, and had a “past medical was pronounced dead. history of hyperlipidemia, *363 osteoarthritis, poorly controlled hypertension, and chronic dizziness.” He Dr. Adame then summarizes the “significant findings” of recounts that Ms. Guerrero had complained of left hip the autopsy report from the Travis County Medical pain following a December 25, 2004 fall and had been Examiner’s Office, including “the conclusions ... that “admitted to Seton/Brackenridge Hospital after is was Mrs. Guerrero died as a result of an overdose of determined that she had a nondisplaced fracture of the left oxycodone and propoxyphene.” femur,” but “[i]t was also determined at that time, that no surgical intervention was needed.” Adame then states: Adame then states his “opinions and conclusions.” He begins: “I concur with the autopsy conclusions.” He Her medical problems and observes that the medical examiners “performed a rehabilitation were managed by complete autopsy with toxocological analysis of blood, HealthSouth Rehabilitation vitreous humor, and urine,” and references certain Hospital of Austin. She was autopsy findings. Dr. Adame describes the composition transferred to that facility on and effect of oxycodone and propoxyphene as various December 28, 2004. She was dosing levels, including the levels indicative of toxicity placed on a Duragesic patch at 25 and death. Drawing on these observations, he states the mcg on December 29, 2004. It was following: increased to 50 mcg on December 30, 2004 because of continued Mrs. Guerrero had postmortem blood oxycodone significant pain. She was also given concentration of 0.25 mg/L. This level and the clinical her usual home medications findings of nausea and labored breathing (noted in including Doxepin, Norvasc, nursing notes shortly before her death) indicates that Zescril, Tenormin, and Imdur. the oxycodone was inducing respiratory depression. Because of significant drowsiness © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Bogar v. Esparza, 257 S.W.3d 354 (2008)

..... [the patient] more closely, restrained him more securely, or done something else entirely”). In essence, Dr. Mrs. Guerrero had postmortem blood propoxyphene Adame’s report is a second autopsy report, opining about levels of 1.0 mg/L. This concentration of propoxyphene the cause of Ms. Guerrero’s death without explaining who and the clinical findings of nausea, labored breathing, caused it or how. See Sherman v. Austin State Hosp., No. and cardiac arrest (noted in nursing notes shortly before 03–05–00296–CV, 2006 WL 305300, at *1, 2006 her death) indicates that the propoxyphene was Tex.App. LEXIS 1115, at *30–4 (Tex.App.-Austin 2006, inducing respiratory depression, cardiac arrhythmia, pet. denied) (mem.op.)(“A report finding only the cause and circulatory collapse and subsequent death. In of death does not satisfy the statutory requirements.”), addition, the respiratory depression was exacerbated by cert. denied, 549 U.S. 1133, 127 S.Ct. 976, 166 L.Ed.2d the high concentrations of oxycodone (see above). 740 (2007). We hold that the probate court abused its discretion in denying Dr. Bogar’s motion for sanctions Dr. Adame then concludes: under section 74.351(b). We sustain Dr. Bogar’s issue. In summary, Mrs. Guerrero had toxic levels of oxycodone along with lethal levels of propoxyphene which caused her *364 demise. The mechanism of Remedy death was respiratory depression, cardiac arrhythmia, [10] In the probate court, appellees requested that, in the and circulatory collapse. Additionally, autopsy event Dr. Adame’s report was found deficient, the court examination failed to demonstrate an anatomic cause of grant them a discretionary 30–day extension under section death. 74.351(c) to enable them to cure any deficiencies in the report. See Tex. Civ. Prac. & Rem.Code Ann. § All of my opinions above are predicated upon a 74.351(c). Because the probate court held that Dr. reasonable medical probability. Adame’s report “is sufficient in meeting the requirements [9] of ... Ch. *365 74,” it did not reach the extension issue. As Dr. Adame’s report fails to comply with the earlier noted, trial courts have discretion to grant requirements of section 74.351. Most notably, it does not extensions under subsection (c) where “an expert report identify in any way the person or persons whose conduct has not been served within the period specified by is the subject of any of his opinions regarding standard of Subsection (a) because elements of the report are found care, causation, and death. We have held that where a deficient.” See id. § 74.351(c). Conversely, where an defendant is not identified at least in some manner within expert report has not been “served” as to a defendant the “four corners” of the report, the report is, for that within the 120–day period because no report is timely reason alone, deficient as to that defendant because it served or a report fails to implicate the defendant’s would require the reader to infer or make an educated conduct, the trial court has no discretion but to dismiss guess as to whose actions the expert is complaining. upon a section 74.351(b) motion. Ogletree, 262 S.W.3d at Austin Heart, 228 S.W.3d at 281; Apodaca, 228 S.W.3d ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at 257–58; see Marichalar, 198 S.W.3d at 255.1 The at *6 (citing Marichalar, 185 S.W.3d at 73). In Austin report likewise fails to describe the standard of care Heart, we discerned from this statutory scheme legislative potentially applicable to Dr. Bogar, other than a broad intent that in “at least some situations where a timely reference to “the standard of care required of physicians report is deficient [but not entirely absent or no report] ... not to prescribe drugs either alone or in combination that the trial court should consider whether the deficiency is will cause a fatal overdose,” which he never applies or such that it warrants allowing a cure period.” 228 S.W.3d analyzes in light of specific facts and circumstances. at 284. Because we concluded that the report at issue in Further, Dr. Adame never describes how Dr. Bogar might the case was deficient as opposed to no report regarding have breached a standard of care or link such a breach to the physician defendant, we deduced that subsection (c) Ms. Guerrero’s death. See Jernigan v. Langley, 195 required us to remand to the trial court, in lieu of S.W.3d 91, 93–94 (Tex.2006) (affirming dismissal under rendering a judgment of dismissal and sanctions, to afford former article 4590i where report made only “passing the court the opportunity to exercise its discretion whether mention” of defendant physician and failed to state how to grant a 30–day extension. Id. Appellees urge that the he breached the standard of care or how his alleged same appellate relief is appropriate here if we reverse the breach caused injury); see also Palacios, 46 S.W.3d at probate court’s order denying Dr. Bogar’s section 879–80 (conclusory statement that “precautions to prevent 74.351(b) motion. [patient’s] fall were not properly utilized” did not sufficiently apprise physician whether the expert believed Our disposition of this question turns on whether the that the standard of care required him “to have monitored flaws in Dr. Adame’s report render it merely deficient

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with respect to the statutory criteria or, as Dr. Bogar report that links Dr. Kessler to Dr. Cororve’s opinions argues, render the report no report as to him. If we hold regarding the breach of the standard of care and causation the former, we would, under Austin Heart, remand to any more than Dr. Rodgers or the other ‘various afford the trial court the opportunity to exercise its physicians’ references.” Id. at 281. Although we discretion whether to grant a 30–day extension under emphasized that “a report’s adequacy under section section 74.351(c) to cure the deficiency. If we conclude 74.351 does not depend on whether the expert uses any that Dr. Adame provided no report as to Dr. Bogar, we particular magic words such as ‘the standard or care was would instead render the judgment the trial court should breached by Dr. Kessler,’ ” we observed that “Dr. have rendered—dismissal. Austin Heart, 228 S.W.3d at Cororve’s report is silent as to whether a single physician, 284; see Ogletree, 262 S.W.3d at ––––, 2007 WL multiple physicians, or all physicians mentioned in the 4216606 at *3, 2007 Tex. LEXIS 1028, at *8–9 (“If no report failed to meet the standard of care and caused report is served within the 120 day deadline provided by injury to Mr. Webb.” Id. at 281–82. Nonetheless, we 74.351(a), the Legislature denied trial courts the distinguished Dr. Cororve’s deficient report from the “no discretion to dismiss or grant extensions....”). We report” found in Marichalar: accordingly compare Dr. Adame’s report to those in other cases under section 74.351 in which the distinction Here, a timely report plainly discusses the conduct of between a timely report constituting no report versus a the physician in question and the report discusses merely deficient report has been addressed. opinions on the standard of care and causation that could be linked to the conduct of the physician set out In Marichalar, the plaintiff asserted claims for medical in the report, but simply are not. The report is not negligence relating to a sponge that was left in her body deficient because it does not relate to Dr. Kessler at all. during abdominal surgery. She named as defendants three It is deficient because the link between Dr. Kessler’s physicians—Prieto, Garcia–Arecha, and Garcia—two conduct and the expert’s conclusions is not expressly nurses, and the hospital. Marichalar timely served an stated. The report in this case is, therefore, some report expert report prepared by an obstetrician-gynecologist, as to Dr. Kessler (among others), but it is not sufficient Dr. Miller, in which he stated that Prieto, the surgeon, and to meet all of the requirements of section 74.351. It is Garcia–Arecha, the assistant surgeon, deviated from the an example of what section 74.351(c) refers to as a standard of care because they allowed “the lap sponges report that “has not been served within the [120–day not to be counted correctly and then noted in the chart that period for serving reports] because elements of the they were correct” and then “failing to diagnose and report are found deficient.” remove the laparotomy sponge in a timely manner.” However, neither Dr. Miller nor a nurse expert implicated Id. at 284; see also id. at 285 (suggesting that “[i]f the Dr. Garcia, as opposed to the other providers, in their expert is of the opinion that Dr. Kessler’s conduct respective reports. See Garcia v. Marichalar, 198 S.W.3d breached the standard of care and caused injury, he will 250, 253 (Tex.App.-San Antonio 2006, no pet.). The San not have to generate a new, previously nonexistent report. Antonio Court of Appeals concluded that “with regard to He will simply have to add the link between his already Garcia, there was no timely served expert report,” stated conclusions and the already referenced conduct of requiring the trial court to dismiss Marichalar’s claims Dr. Kessler. Therefore, the circumstances here are not against Garcia and depriving it of any discretion to grant a similar to the situation where a plaintiff simply has 30–day extension. Marichalar, *366 185 S.W.3d at 73; missed the deadline for serving a report with respect to Marichalar, 198 S.W.3d at 252. the conduct of a physician.”).

In Austin Heart, the expert, Dr. Cororve, repeatedly More recently, the supreme court in Ogletree, although referred in the report’s background section to defendant apparently endorsing the “no report” concept of physician Dr. Kessler by name and discussed various acts Marichalar, see Ogletree, 262 S.W.3d at ––––, 2007 WL by him and other identified and unidentified caregivers. 4216606, at *2, 2007 Tex. LEXIS 1028, at *6 (citing However, Dr. Cororve did not explicitly link Dr. Marichalar with approval), also indicated that the Kessler’s acts to Cororve’s subsequent opinions regarding omission of a defendant’s name would not categorically the applicable standard of care, how it was breached, and render a report “no report” as to that defendant. The how the breach caused injury. Austin Heart, 228 S.W.3d plaintiffs alleged negligence by Dr. Jan Ogletree, a at 280–81. We concluded that the report was deficient urologist, in performing a urinary catheterization because “it requires the reader to infer or make an procedure on John Burke Matthews in a manner causing educated guess that Dr. Cororve [the expert] is identifying him injuries and ultimate death. The plaintiff timely Dr. Kessler as the physician who breached the standard of served the one-page expert report of Dr. Richard Karsh, care and caused injury” and that “[t]here is nothing in the which stated, in relevant part:

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In my opinion (but I would have to defer to a urologist “where there is an absence of a report, rather than a report on this) given the inability of the nursing staff to pass that implicated a provider’s conduct but was somehow the Foley catheter into the bladder and the necessity deficient.” Ogletree, 262S.W.3d at –––– n. 2, 2007 WL *367 for the urologist to utilize a stiff metallic “wire” 4216606, at *7 n. 2, 2007 Tex. LEXIS 1028, at *7 n. 2. to transverse the urethra, such manipulation and These statements imply that a defendant provider’s catherization should have been performed under conduct can be “implicated” by a report even if the fluoroscopic guidance. Had that been done the provider is not explicitly mentioned by name and that perforation might well have been avoided but certainly although such an omission might render the report could have been diagnosed at the outset, with the deficient, it would not for that reason alone render the likelihood of a smaller tear having resulted. report “no report” as to the provider.2

If not recognized in a timely manner, such a tear could *368 [11] Turning to Dr. Adame’s report, it is, as noted, lead to long-term problems, including bladder (or, if a essentially a second autopsy report, opining about the urethral tear, urethral) dysfunction, infection, etc. It is cause of Ms. Guerrero’s death without explaining who apparent that a cystogram was performed shortly after caused it or how. There are only cursory references to the the catherization, although the exact timetable is conduct of anyone connected to Ms. Guerrero’s care. In unclear; nor do I have records to determine whether or the “History” section of his report, Dr. Adame notes that not the response of the physician to the tear was after her fall, Ms. Guerrero’s “medical problems and appropriate. (Of course, those might be best reviewed rehabilitation were managed by HealthSouth by a urologist). Rehabilitation Hospital of Austin,” where she was later “transferred back ... on January 8, 2005” following her Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *1, hip surgery at Brackenridge. Adame then recounts: 2007 Tex. LEXIS 1028, at *2–3. Dr. Ogletree complained that Dr. Karsh, as a radiologist, was not qualified to She resumed on her medical render opinions on a urologist’s standard of care. Because regimen along with physical and of this defect, Ogletree asserted, no “expert report” was occupational therapy. Her pain “served” within the 120–day deadline, the trial court had persisted and she was taken off of no discretion to grant a 30–day extension and its denial of Duragesic patch post surgery. his section 74.351(b) motion should therefore be OxyContin was added to her immediately appealable. The supreme court, however, therapy, initially at 10 mg and later characterized this type of complaint as a report being increased to 20 mg. She had bouts “deemed not served because it is deficient,” and subject to of constipation and loose stools a discretionary 30–day extension under section 74.351(c). which were medically managed. Id. at ––––, 2007 WL 4216606, at *3, at *7–8. It held that On January 12, 2005, at 9:34 p.m., “[b]ecause a report that implicated Dr. Ogletree’s conduct she experienced cardiopulmonary was served and the trial court granted an extension, the arrest. Despite cardiopulmonary court of appeals could not reach the merits of its motion resuscitation until 10:13 p.m., she to dismiss.” Id. at ––––, 2007 WL 4216606, at *4, at *9 was pronounced dead. (emphasis added). In his “opinions and conclusions” regarding the cause of Although the supreme court did not squarely address the death, Dr. Adame does not elaborate on the specific significance of Dr. Karsh’s omission of Dr. Ogletree’s conduct or persons to whom he attributes the overdose name from his report, it characterized the report as other than vaguely alluding to “clinical findings” of “directed solely to Dr. Ogletree’s care (although it did not “nausea, labored breathing, and cardiac arrest” that, to mention him by name),” id. at ––––, 2007 WL 4216606, him, confirmed that the amounts and combination of at *1, at *2, and “implicating” Dr. Ogletree’s conduct. Id. oxycodone and propoxyphene were inducing respiratory at ––––, 2007 WL 4216606, at *4, at *9 (“a report that depression, cardiac arrhythmia, circulatory collapse, and implicated Dr. Ogletree’s conduct”). The supreme court’s subsequent death. references to a report “implicating” a provider’s conduct appears to allude to section 74.351(a)’s 21–day deadline Although the distinction between “no report” and a by which “[e]ach defendant physician or health care deficient-but-potentially curable report can be elusive, we provider whose conduct is implicated in a report must file conclude that Dr. Adame’s report is no report as to Dr. and serve any objection to the sufficiency of the report.” Bogar. Dr. Adame, again, never mentions Dr. Bogar in his Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis report. Although that omission alone may not alone added). Elsewhere the court distinguishes between cases render the report “no report,” the report entirely fails to

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implicate Dr. Bogar’s conduct—if any person’s conduct. recovery. It may be that once The report is simply silent regarding how the overdose discovery is complete and the case occurred and who, if anyone, was responsible for it. Dr. is tried, there is no need for expert Adame does not identify any acts or omissions, by testimony.... But the Legislature persons identified or unidentified, to which he attributes envisioned that discovery and the the overdose. Cf. Ogletree, 262 S.W.3d at ––––, 2007 WL ultimate determination of what 4216606, at *1, 2007 Tex. LEXIS 1028, at *2–4 (report issues are submitted to the opining that “the urologist” should have performed factfinder should not go forward manipulation and catheterization under fluoroscopic unless at least one expert has guidance and attributing patient’s injuries to same). Nor, examined the case and opined as to even assuming Adame’s passing references to Ms. the applicable standard of care, that Guerrero’s “medical regimen” and receipt of oxycodone it was breached, and that there is a could implicate the conduct of any person, would his causal relationship between that report implicate Dr. Bogar’s conduct as opposed to failure to meet the standard of care unidentified agents of Healthsouth. See Marichalar, 185 and the injury, harm, or damages S.W.3d at 73; Marichalar, 198 S.W.3d at 252. Dr. Adame claimed. Thus, because res ipsa cannot cure these omissions simply by “add[ing] the link loquitur is an evidentiary rule while between his already stated conclusions and *369 the the expert report is a threshold already referenced conduct” of Dr. Bogar. See Austin requirement for bringing a lawsuit, Heart, 228 S.W.3d at 285. There is nothing in the report we do not believe that the regarding Dr. Bogar that could be linked to anything. Legislature intended for section Consequently, Dr. Adame could “cure” the deficiencies in 74.201 to eliminate the procedural his report only by “generat[ing] a new, previously requirement of an expert report at nonexistent report” as to Dr. Bogar. See id. Such a the commencement of litigation. remedy, as we have explained, is proscribed by section 74.351.3 See Marichalar, 198 S.W.3d at 255–56. (internal citations and quotes omitted). We find this analysis persuasive. [12] Consequently, even if res ipsa loquitur applied to In their motion for rehearing and reconsideration en banc, appellees acknowledge that “[t]he report did not appellees’ claims against Dr. Bogar, it would not excuse assign blame for the victim’s harm to a specific physician their failure to serve him with an expert report. or hospital employee by name” and is silent regarding “who exactly did what.” They suggest that “Dr. Adame’s report shows a fatal overdose of medications given to an inpatient in the hospital, a lapse with all the hallmarks of Constitutional issues [13] res ipsa loquitur ” that “create[s] a powerful presumption In their motion for rehearing and for reconsideration that the overdoses were the result specifically of en banc, appellees attribute their noncompliance to negligence by the treating physician of record.” Even chapter 74’s *370 limitations on discovery, urging that assuming res ipsa loquitur applied in this case, this “the report could not have [complied] without compulsory evidentiary presumption would not create an exception to process, as the precise facts regarding which named section 74.351’s expert report requirement. The individuals administered each dose, failed to comprehend Marichalar court rejected a similar contention in a the danger or catch the error, or failed to remedy its “sponge case”—surgeons left surgical sponges inside the effects, were then and remain today in the sole possession plaintiff during abdominal surgery. The court explained: of the defendants.” Section 74.351(s) provides:

Until a claimant has served the expert report and While section 74.201 allows for the curriculum vitae as required by Subsection (a), all application of res ipsa loquitur, we discovery in a health care liability claim is stayed do not interpret it as an exception except for acquisition by the claimant of information, to section 74.351’s expert report including medical or hospital records or other requirement. Res ipsa loquitur is an documents or tangible things, related to the patient’s evidentiary rule. In contrast, section health care through: 74.351’s expert report requirement establishes a threshold over which (1) written discovery as defined in Rule 192.7, Texas a claimant must proceed to Rules of Civil Procedure; continue a lawsuit; it does not establish a requirement for © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Bogar v. Esparza, 257 S.W.3d 354 (2008)

(2) depositions on written questions under Rule 200, in particular, we are mindful of two general principles. Texas Rules of Civil Procedure; and First, “there are constitutional limitations upon the power of courts ... to dismiss an action without affording a party (3) discovery from nonparties under Rule 205, Texas the opportunity for a hearing on the merits of his [or her] Rules of Civil Procedure. cause.” Thoyakulathu v. Brennan, 192 S.W.3d 849, 855 (Tex.App.-Texarkana 2006, no pet.) (quoting Walker, 111 Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s). S.W.3d at 66 (quoting TransAmerican Nat. Gas Corp. v. “Notwithstanding any other provision of this section, after Powell, 811 S.W.2d 913, 917–18 (Tex.1991))). Second, a claim is filed all claimants, collectively, may take not the filing of a frivolous lawsuit can be misconduct subject more than two depositions before the expert report is to sanction. Id. (citing Palacios, 46 S.W.3d at 878). served as required by Subsection (a).” Id. § 74.351(u). “[O]ne purpose of the expert-report requirement is to These provisions thus bar oral depositions of parties and deter frivolous claims.” Walker, 111 S.W.3d at 66. “The allow only two oral depositions of non-parties before the Legislature has determined that failing to timely file an expert report is served. They also bar pre-suit depositions expert report, or filing a report that does not evidence a to investigate potential claims under rule 202. In re good-faith effort to comply with the definition of an Jorden, 249 S.W.3d 416, 420 (Tex.2008). expert report, means that the claim is either frivolous, or [14] [15] at best has been brought prematurely. This is exactly the Appellees urge that their inability to orally depose type of conduct for which sanctions are appropriate.” Dr. Bogar before serving their expert report creates “an Palacios, 46 S.W.3d at 878. Consequently, the supreme intolerable procedural conundrum” or “catch–22” by court rejected a due-process challenge to former article preventing them from obtaining the very information they 4590i’s mandatory dismissal of health care liability need to prepare a sufficient expert report.4 This claims for failure to comply with statutory requirements. “conundrum,” appellees assert, imposes an “impossible Walker, 111 S.W.3d at 66 (“The Gutierrezes’ failure to condition” on medical malpractice claimants’ property file an adequate report thus raised the presumption that rights in their causes of action that violates the due their claims were frivolous, or at best, premature.... We do process clause of the fourteenth amendment to the United not believe the Constitution requires prior notice that the States Constitution and due course of law under article I, law is serious about a clearly stated consequence for section 19 of the Texas Constitution. See U.S. Const. failing to comply with its terms. The sanction imposed ... amend. XIV; Tex. Const. art. I, § 19.5 Appellees was a direct result of their failure to file an expert report acknowledge that “Texas courts construe Article I, that complied with the statutory requirements. Section 19, in line with the federal due process Consequently, dismissal was appropriate and did not guarantees” and that “[s]tandards for Texas constitutional violate the due process clause, even in the absence of a claims regarding access to the courts are the same under notice of noncompliance prior to the motion to dismiss.”); due process and open courts.” See University of Tex. Med. see Brennan, 192 S.W.3d at 855–56 (applying Walker to Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995); Sax v. section 74.351). Votteler, 648 S.W.2d 661, 664 (Tex.1983).6 Appellees stop short of “contend[ing] that the expert report Turning to appellees’ specific challenge, they have the requirement must be invalidated for all cases,” but instead burden of establishing that section 74.351’s discovery urge us to “construe Section 74.351 to avoid a limitations have in fact prevented them from satisfying constitutional problem” by either “declar[ing], for cases the statute’s expert-report requirements and pursuing their where medical negligence by one or more defendants claim. See McGlothlin v. Cullington, 989 S.W.2d 449, *371 is clear but where the plaintiff cannot allocate fault 453 (Tex.App.-Austin 1999, pet. denied) (burden on among them without discovery, that Section 74.351(s) claimant asserting open-courts violation is to provide does not stay the discovery necessary to obtain the fault sufficient evidence that the expert report requirement, and allocation facts that would perfect the required expert not her own inaction, actually functioned to keep her from report; or declar[ing] the expert report in such a case pursuing her claim). Appellees suggest in their motion sufficient without those facts, since they are unnecessary that they were forced to “prepare their report[ ] on to demonstrate at the threshold that the case has merit.”7 medical records alone” and that these records were [16] [17] [18] [19] inadequate, but do not suggest they ever actually pursued We begin with the presumption that section the discovery permitted under section 74.351(s) beyond 74.351 is constitutional. Walker, 111 S.W.3d at 66. serving requests for disclosures at some unspecified point Additionally, the party challenging the constitutionality of in *372 time.8 Nor is there any evidence in the record to a statute bears the burden of establishing that the support such an assertion. We observe that section enactment fails to meet constitutional requirements. Id. 74.351(s) and (u) authorize claimants to obtain discovery With regard to restrictions on health care liability claims via not only requests for disclosure, but interrogatories,

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requests for production, requests for admissions, and specifically of *373 negligence by the treating physician depositions on written questions to parties (i.e., forms of of record,” whom they assert was Dr. Bogar. We disagree discovery that could have been directed to Dr. Bogar); that it is irrational, in light of the legislature’s goal of and rule 205 requests for production, depositions on curtailing frivolous health care liability claims, for it to written questions, and up to two oral depositions of non- require that appellees serve an expert report explaining parties.9 The rules further provide mechanisms for why or how this outcome was actually caused by the enforcing compliance with discovery requests.10 Appellees conduct of Dr. Bogar, as opposed to some other person or dismiss the significance of “[t]he limited written health care provider. See Walker, 111 S.W.3d at 66 discovery that Section 74.351(a) nominally permits before (explaining that the plaintiffs’ failure to comply with the service of the expert report,” asserting that it is “widely expert-report requirements “raised the presumption that understood not to extend beyond the medical records their claims were frivolous, or at best, premature” and specifically mentioned in that subsection, and defense dismissal did not violate due process); Marichalar, 198 counsel in health care liability actions uniformly refuse S.W.3d at 254–55 (“Section 74.351(r)(6) requires that an any other written discovery.” If that could be so, it is not expert report explain how the care rendered by the because of anything the legislature actually provided in physician failed to meet the applicable standard of care section 74.351, nor do appellees present evidence that any and the causal relationship between that failure and the such application of section 74.351(s) in fact prevented injury suffered by the claimant.”); see also Brennan, 192 them from obtaining any necessary discovery they had S.W.3d at 855–56 (applying Walker to reject as-applied actually sought. See Brennan, 192 S.W.3d at 854 n. 5 challenge to expert-report requirement where claimant (rejecting similar due-process argument “premised on had attempted to serve report timely, but fax machine [claimant’s] failure to receive discovery from another failed; “Section 74.351 need not provide an exception party” as “ignor[ing] the remedies available to him to geared toward such misfortune in order to provide enforce lawful discovery requests”); see also Marichalar, constitutionally adequate safeguards.”). 198 S.W.3d at 254 n. 1 (observing that “if the medical records are indeed conflicting” as to assistant surgeon’s We accordingly reject appellees contentions that our identity, as counsel had orally contended, “Marichalar application of section 74.351 on the present record could have propounded discovery to Dr. Garcia to violates due process or due course of law. discovery whether he was the assistant surgeon ... [a]nd if Dr. Garcia failed to timely answer the discovery requests, Marichalar could have moved to compel his answers.”). Like the Brennan court, “we can certainly imagine a due process deprivation to a health care liability claimant CONCLUSION pinned between a firm expert report deadline and a hypothetical absence of discovery tools,” but must As the Texas Supreme Court recently acknowledged, the similarly conclude that appellees have not carried their requirements of section 74.351(b) “can lead to seemingly burden of demonstrating that they were denied due harsh results.” Ogletree, 262S.W.3d at ––––, 2007 WL process by such a situation here. Brennan, 192 S.W.3d at 4216606, at *3, 2007 Tex. LEXIS 1028, at *3. Here, they 856 n. 8; see McGlothlin, 989 S.W.2d at 453 (claimant’s require us to render judgment dismissing appellees’ affidavit made “no mention of any actual attempt to claims against Dr. Bogar with prejudice and awarding Dr. obtain an expert report,” in lieu of article 4590i bond Bogar attorney’s fees and costs. See Tex. Civ. Prac. & requirement, “only some perceived financial barrier”). Rem.Code Ann. § 74.351(b). Further, our performance of our duty to effectuate these legislative mandates does not, [20] Appellees also question whether there is a rational on this record, exceed constitutional limitations. We relationship between chapter 74’s expert-report accordingly reverse and render a judgment of dismissal requirement as applied here and the legislature’s goal of and remand to the probate court for a determination of the discouraging frivolous lawsuits. See Lucas v. United amount of the attorney’s fee award. States, 757 S.W.2d 687, 691 (Tex.1988) (holding that it was “unreasonable and arbitrary for the legislature to conclude that arbitrary damage caps, applicable to all claimants no matter how seriously injured, will help Dissenting Opinion by Justice PATTERSON. assure a rational relationship between actual damages and the amounts awarded.”). This argument is predicated upon appellees’ view that the bare fact Ms. Guerrero died JAN P. PATTERSON, J., dissenting. of a drug overdose while in the hospital “create[s] a powerful presumption that the overdoses were the result

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Given the length of time this accelerated interlocutory care; he was the only doctor named in the lawsuit. An appeal has been pending, I will adopt my prior dissent autopsy established that Ms. Esparza, who was admitted with an additional observation, substituting this opinion for post-operative hip surgery rehabilitation, died of an and dissenting to the denial of appellees’ motion for overdose of Oxycodone and Vicodin. After a hearing, the rehearing. In Palacios, the supreme court held that (i) a trial court expressly found the report to be sufficient and trial court’s decision whether to dismiss a case under this denied the motion to dismiss.1 statute is reviewed for abuse of discretion, and (ii) to constitute a good-faith effort to provide a fair summary of The supreme court has recently held that an expert report an expert’s opinions, “an expert report must discuss the that implicates the doctor’s conduct, but fails to mention standard of care, breach, and causation with sufficient the doctor by name, is merely deficient and subject to the specificity to inform the defendant of the conduct the trial court’s discretionary power to grant a 30–day plaintiff has called into question and to provide a basis for extension as allowed under section 74.351(c). See the trial court to conclude that the claims have merit.” Ogletree v. Matthews, No. 05–0502, ––– S.W.3d ––––, –– American Transitional Care Ctrs. v. Palacios, 46 S.W.3d ––, ––––, 2007 WL 4216606, at *1, 4, 2007 Tex. LEXIS 873, 875 (Tex.2001) (predecessor statute). In that case, 1028, at *2, 14 (Tex. Nov. 30, 2007). While the majority the court found that the trial court did not abuse its recognizes this recent supreme court holding, it fails to discretion in its ruling and reversed the court of appeals. apply it to an expert report that plainly implicates Based upon Palacios, I would hold that the trial court did appellant’s conduct in prescribing a lethal dose of not abuse its discretion here. For these reasons, I Oxycodone and Vicodin—choosing instead to ignore the respectfully dissent. statutory discretion imparted to the trial court by the legislature. See id. The majority has stepped into both shoes of the trial court: (i) overruling its determination that the expert report is Although the trial court’s determination is not shielded sufficient and the litigation should go forward, and (ii) from review, we may not substitute our judgment for that finding the report to be not just deficient, but “no report,” of the trial court charged with a gatekeeping function in thus foreclosing *374 an opportunity to cure any asserted the first instance under this statute. Indeed, the trial court deficiency. As the reviewing court, we are admonished is charged not only with exercising its discretion in that a trial court abuses its discretion if it acts in an affirming or denying the motion to dismiss, but the trial arbitrary or unreasonable manner without reference to court may—in its discretion—grant a 30–day extension to guiding rules or principles. See Garcia v. Martinez, 988 cure any deficiency. Tex. Civ. Prac. & Rem.Code Ann. § S.W.2d 219, 222 (Tex.1999). When reviewing a trial 74.351(c) (West Supp.2007). Because the trial court here court’s decision for an abuse of discretion, we recognize found the report to be sufficient—and not deficient or “no that such discretionary choices are left to a court’s report”—it did not consider whether to grant a judgment, and its judgment is to be guided by sound legal discretionary extension to amend the report. principles. Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting I believe the trial court did not abuse its discretion in United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807) concluding that the report was sufficient. Because (i) the (Marshall, C.J.)). We may not substitute our own standard of review recognizes that there is a range of judgment for that of the trial court. Bowie Mem’l Hosp. v. decisions that are appropriate as long as the trial court Wright, 79 S.W.3d 48, 52 (Tex.2002). While a trial does not act in an arbitrary or unreasonable manner or court’s failure to analyze and apply the law correctly without reference *375 to guiding rules and principles, would constitute an abuse of discretion, Walker v. Packer, and (ii) the trial court acted in accord with the supreme 827 S.W.2d 833, 840 (Tex.1992), “[t]he test for abuse of court’s holdings in Palacios,2 I would conclude that the discretion is not whether, in the opinion of the reviewing trial court was guided by and employed sound legal court, the facts present an appropriate case for the trial principles and properly denied the motion to dismiss. I court’s action.... [I]t is a question of whether the court would affirm the trial court’s order. acted without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 Alternatively, because the trial court found the report to S.W.2d 238, 241–42 (Tex.1985). A trial court does not be sufficient and not deficient or “no report,” I would abuse its discretion merely because it decides a follow this Court’s precedent in Austin Heart, P.A. v. discretionary matter differently than an appellate court Webb, 228 S.W.3d 276 (Tex.App.-Austin 2007, no pet.), would in a similar circumstance. Id. at 242. and remand this cause for further proceedings to allow the trial court to exercise its discretion and determine whether The parties agree that Dr. Bogar was the physical a 30–day extension should be granted.3 medicine rehabilitation doctor in charge of Ms. Esparza’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Bogar v. Esparza, 257 S.W.3d 354 (2008)

By cherry-picking language from the supreme court’s trial court under section 74.351(c), the appellees should Ogletree opinion to support its admitted “elusive” line be given a 30–day extension of time in order to cure any between a deficient report and a “nonexistent” report, the deficiencies in the expert report.1 majority overlooks the supreme court’s common sense approach regarding expert reports that implicate a health The majority reverses the trial court’s determination that provider’s conduct: The supreme court reasoned that Dr. Adame’s expert report is sufficient and renders “while the 2003 amendments were intended to decrease judgment of dismissal, holding that this report constitutes claims, they do not mandate dismissal for deficient, but “no report” as to Dr. Bogar and therefore that the trial curable, reports.” Ogletree, 262 S.W.3d at ––––, 2007 court did not have discretion to allow a 30–day extension. WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *9. In See id. § 74.351(b) (stating that trial court shall dismiss finding this report “no report,” we are beyond cherry- claim if expert report has not been served within 120 picking and into hair-splitting for which the aim is not to days); Ogletree v. Matthews, No. 06–0502, –––S.W.3d –– seek the statutory mandate nor substantial justice. ––, ––––, 2007 WL 4216606, at * 3, 2007 Tex. LEXIS 1028, at *8 (Tex. Nov. 30, 2007) (“If no report is served I would, therefore, grant the motion for rehearing. within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions.”). If an expert report fails to implicate the conduct of a particular JAN P. PATTERSON, Justice, dissenting. defendant, it is treated as “no report” as to that particular defendant. See Apodaca v. Russo, 228 S.W.3d 252, 257 For the reasons expressed in my dissenting opinion to this (Tex.App.-Austin 2007, no pet.) (report that described Court’s disposition of this case on rehearing, I conduct of other doctors and health-care providers but respectfully dissent from the denial of appellee’s motion failed to mention appellee at all constituted “no report” as for en banc reconsideration. See Bogar v. Esparza, No. to appellee); Garcia v. Marichalar, 185 S.W.3d 70, 72–73 03–07–00037–CV, 257 S.W.3d 354 (Tex.App.-Austin (Tex.App.-San Antonio 2005, no pet.) (report that focused May 16, 2008) (Patterson, J., dissenting). on conduct of other defendants and did not mention appellant at all was considered “no report” as to appellant). However, an expert report that does not fully satisfy the statutory criteria but is not so inadequate as to DIANE HENSON, Justice, dissenting. be deemed “no report” is treated as a deficient report, and trial courts have discretion to allow parties an extension The expert reports required by section 74.351 of the civil of time in order to cure the deficiencies. See Ogletree, 262 practice and remedies code “are simply a preliminary S.W.3d at ––––, 2007 WL 4216606, at *3, 2007 Tex. method to show a plaintiff has a viable cause of action LEXIS 1028, at *10 (“[A] deficient report differs from an that is not frivolous or without expert support.” Kelly v. absent report. Thus, even when a report is deemed not Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th served because it is deficient, the trial court retains Dist.] 2008, no pet. h.). One of the benefits behind the discretion to grant a thirty-day extension.”). expert-report requirement is that the screening mechanism frees up judicial resources to address non-frivolous While Dr. Adame’s report does not mention Dr. Bogar by claims. See House Comm. on Civil Practices, Bill name, it unambiguously implicates Dr. Bogar’s conduct. Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995) (noting Unlike the reports in Apodaca, see 228 S.W.3d at 257, or that predecessor statute to section 74.351 “would help Marichalar, see 185 S.W.3d at 72–73, the report in the focus judicial resources on legitimate claims”). The present case does not implicate, identify, or describe the present case, which arose after a patient *376 suffered a conduct of any physicians or medical professionals other fatal overdose of oxycodone and propoxyphene while than Dr. Bogar. Furthermore, Dr. Adame’s report receiving post-operative care for hip-replacement surgery, describes “the standard of care required of physicians not does not appear to be the type of meritless claim that the to prescribe drugs either alone or in combination that will legislature intended to prevent by imposing the gate- cause a fatal overdose.” (Emphasis *377 added). The keeping measure of the expert report. report states that “[s]uch conduct falls below the standard of care required of physicians,” and details how the levels I join Justice Patterson’s dissent in holding that the trial of oxycodone and propoxyphene found in Guerrero’s court acted within its discretion in finding the expert blood exceeded the amounts known to cause death. In report sufficient, but write separately to further address light of this language, it is clear from the four corners of the majority’s failure to remand this case for a the report that Dr. Adame is implicating the conduct of determination of whether, in the discretion afforded to the the physician who prescribed oxycodone and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Bogar v. Esparza, 257 S.W.3d 354 (2008)

propoxyphene to Guerrero. See American Transitional opinion. The report’s failure on this Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 point is the kind of defect that the (Tex.2001) (“[T]he only information relevant to the cure provisions of section inquiry is within the four corners of the document.”). See 74.351(c) were designed to also Ogletree, 262S.W.3d at ––––, 2007 WL 4216606at address. *1, 2007 Tex. LEXIS 1028, at *2 (where expert report implicated appellant’s conduct but did not mention Id. at 282–83 (emphasis added). appellant by name, report was merely deficient and subject to extension allowed under section 74.351(c), Significantly, the Austin Heart opinion also states, “Had rather than “no report” as to appellant). Dr. Cororve referenced only actions by Dr. Kessler in the background section of his report, the link between Dr. An expert report does not have to meet the same Cororve’s opinions and the responsible physician might requirements as evidence offered in a summary-judgment be more apparent.” Id. at 281. The link between Dr. proceeding or at trial, but is merely required to “discuss Adame’s opinions and Dr. Bogar could not be more the standard of care, breach, and causation with sufficient apparent in the present case, where no other physicians or specificity to inform the defendant of the conduct the health-care professionals are named as defendants or plaintiff has called into question.” Palacios, 46 S.W.3d at mentioned in the expert report. 875, see also 879. The trial court, in its discretion, may have reasonably concluded that Dr. Bogar was Furthermore, the Texas Supreme Court’s mandate that sufficiently informed of the conduct that the plaintiff in only information within the four corners of the expert this case was calling into question—prescribing a report *378 may be reviewed for sufficiency, see combination of drugs in amounts that resulted in a fatal Palacios, 46 S.W.3d at 878, does not necessarily preclude overdose. the trial court from conducting an independent analysis of the information contained in the report. In IHS The majority’s holding in the present case conflicts with Acquisition No. 140, Inc. v. Travis, No. 13–07–00481– this Court’s holding in Austin Heart, P.A. v. Webb, 228 CV, 2008 WL 1822780, 2008 Tex.App. LEXIS 2950 S.W.3d 276 (Tex.App.-Austin 2007, no pet.), in which we (Tex.App.-Corpus Christi Apr. 24, 2008, no pet. h.), the held that an expert report’s failure to specifically identify appellant argued that the trial court made an improper a physician as having breached the standard of care or inference about causation that extended outside of the having caused the patient’s injury merely results in a four corners of the expert report. The report failed to deficient report, subject to the cure provisions of section address a one-month gap between treatment of the 74.351(c), rather than “no report.” Id. at 282–83. The patient’s eye abscess and her death, and the trial court report in Austin Heart not only discussed the conduct of commented that the gap was the time which “causes the the appellant without identifying the appellant as having abscess to grow in the system and proliferate.” Id. at * 3, breached the standard of care or caused the injury, but at *24. The court of appeals held that the trial court did also discussed the conduct of various other physicians not abuse its discretion in making such a comment, noting without making it clear that the report related to the that expert reports may contain some level of ambiguity appellant physician. Id. at 280. Despite these omissions, “that is subject to the independent analysis of the trial this Court stated: court.” Id. The court further stated:

While we are of the view that Dr. [T]he trial court’s explanation was only beyond the Cororve’s report is deficient under ‘four corners’ of the report in the sense that the trial section 74.351 because it requires court explained medical concepts—such as abscess and the reader to make an educated cardiogenic shock—which Dr. Starer did not explain. guess regarding an essential The trial court, however, did not propose unique element, we are also aware that the causation theories that were not discussed in the expert defect might well be curable. The report. tenor of Dr. Cororve’s report, We believe that Dr. Starer’s report, which explained coupled with the fact that there is causation, but which did not explain certain medical only one physician defendant, concepts that would perhaps need to be explained at makes it quite likely that Dr. trial, was ‘less than all the evidence necessary to Cororve intended to opine that Dr. establish causation at trial,’ but still provided a ‘fair Kessler breached the standard of summary’ of causation.... The trial court’s comments care and caused injury even though the report did not contain that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Bogar v. Esparza, 257 S.W.3d 354 (2008)

were not an improper ‘inference’ and do not constitute meet the statutory requirements, “consideration by the an abuse of discretion. trial court of [the appellees’] request for an extension to attempt to cure the defect is warranted.” See Austin Heart, Id. at * 9, at *25 (quoting Tovar v. Methodist Healthcare 228 S.W.3d at 283. Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68 (Tex.App.-San Antonio 2005, pet. denied)). I agree with Justice Patterson’s dissent that the trial court acted within its discretion in determining that Dr. Similarly, the trial court’s conclusion that the report Adame’s report was sufficient. However, assuming that implicated the conduct of Dr. Bogar—the only physician the report was not sufficient, I would hold in the named as a defendant—where no other physicians or alternative that Dr. Adame’s report is merely deficient, healthcare providers were implicated in the report can rather than “no report” as to Dr. Bogar, and therefore that best be characterized as an analysis of the information the proper remedy is a remand to allow the trial court to included in the report, rather than an impermissible determine whether to grant a 30–day extension of time venture outside the four corners of the expert report. under section 74.351(c), giving the appellees an opportunity to cure any deficiencies.2 As a result, I Because the trial court found Dr. Adame’s report to be respectfully join the dissent. sufficient, no 30–day extension was ever required, although the appellees requested an extension in the event that the report was found to be deficient. In light of the majority’s ruling that Dr. Adame’s expert report fails to

Footnotes 1 As we emphasized in Austin Heart—and as suggested by the supreme court in Ogletree, as we discuss below—this is not a “magic words” test. There may be a number of ways that a defendant may be referenced within the four corners a report so as to comply with the legislature’s mandate that the report “provide[ ] a fair summary as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (emphasis added). 2 In Apodaca v. Russo, 228 S.W.3d 252, 255–58 (Tex.App.-Austin 2007, no pet.), this Court affirmed a trial court order dismissing a health care liability suit under section 74.351(b) and refusing to grant a 30–day extension under section 74.351(c). The lone defendant was Dr. Russo, a general surgeon, who was alleged to have acted negligently in failing to implement precautions against pulmonary embolism or stroke. The report described various deviations from the standard of care, including failures to properly address deep venous thrombosis prevention or to insert an IVC filter, but did not identify Dr. Russo by name or otherwise. The panel observed that “[a]lthough appellant has sued only Dr. Russo, other doctors and health-care providers are implicated by the facts set forth in the report. The report references other providers as well as their conduct and refers to another doctor by name, but fails to mention Dr. Russo at all.” Id. at 257. The panel found the report deficient and no report, reasoning that it did not “specifically identify the defendant and apply the statutory elements to that defendant,” id. at 258, and “[i]f a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30–day extension.” Id. at 257. We need not consider Ogletree’s implications for Apodaca’s analysis of the “no report” issue because it is dicta. See Ogletree, 262 S.W.3d at ––––, ––––, 2007 WL 4216606, at *2–3, 2007 Tex. LEXIS 1028, at *6–8 (emphasizing discretionary nature of 30–day extension when trial court finds expert report deficient). 3 The dissent criticizes this holding, suggesting that we could remand to the probate court in the same manner as in Austin Heart, 228 S.W.3d at 285 (Patterson, J., dissenting). As the dissent has acknowledged in Austin Heart and elsewhere, section 74.351 does not permit such a remedy where, as here, the report constitutes no report. See Austin Heart, 228 S.W.3d at 291 (Patterson, J., dissenting) (“[t]he difference between the two is strategically significant. If the report is ‘no report,’ then the trial court must dismiss the case with prejudice and has no discretion to grant a 30–day extension.”) (emphasis in original); Apodaca, 228 S.W.3d at 257 (“If a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30–day extension.”) (citing Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.)). 4 Appellees similarly suggest that this regime incentivizes medical malpractice defendants to “maintain[ ] silence until the expert report deadline [to] entirely defeat a valid claim that in any other tort case they would each work affirmatively to defect onto a co-defendant as early as possible.” 5 Dr. Bogar does not dispute that appellees preserved their constitutional arguments in the trial court.

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6 However, as appellees further recognize, the open courts guarantee, see Tex. Const. art. I, § 13, is not directly implicated in this case because it applies only to common-law causes of action, not their statutory wrongful-death or survival claims. 7 Appellees similarly urge us to “avoid a constitutional confrontation” by remanding the case to afford them the opportunity to amend their expert report. 8 In a footnote in their motion, appellees complain that “Texas courts have never implemented the regime of preliminary disclosures provided in principle in Section 74.352; the plaintiffs had to request disclosures from the defendants, who responded—after the expert report was served—with little or nothing of substance.” 9 See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u); Tex.R. Civ. P. 192.7(a) (defining “written discovery”); see generally Tex.R. Civ. P. 194, 196–98, 200–01. 10 See Tex.R. Civ. P. 215.

1 The hospital settled and was dismissed from the lawsuit.

2 In Palacios, the court faulted the expert report for its conclusory statement that the standard of care required the hospital to have monitored Palacios more closely, restrain him more securely or done something else entirely. The court stated: “Knowing only that the expert believes that American Transitional did not take precautions to prevent the fall might be useful if American Transitional had an absolute duty to prevent falls from its hospital beds.” American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 880 (Tex.2001). Here, the trial court may have concluded that the standard of care and duty were clear from the report detailing the “toxic levels of oxycodone along with lethal levels of propoxyphene” that caused the death. 3 The majority’s criticism of this approach relies on Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-Austin 2007, no pet.), and Garcia v. Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, no pet.), but those cases are distinguishable in that both involved multiple defendants, whereas here we have only one defendant—Dr. Bogar. 1 I do not take issue with the majority’s holding that the appellees, who failed to take full advantage of the discovery tools provided by section 74.351 of the civil practices and remedies code, cannot now argue that the statute imposes an unconstitutional burden by restricting discovery until after expert reports have been served. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u) (West Supp.2007). However, while the appellees may not have established that section 74.351’s discovery limitations prevented them from serving a sufficient expert report, they have also not been given any opportunity to cure deficiencies in Dr. Adame’s report, which, until this Court’s holding on appeal, had been deemed sufficient as to Dr. Bogar. 2 In addition to arguing that Dr. Adame’s report constituted “no report,” Dr. Bogar also argues that Dr. Adame, a pathologist, was not qualified to render opinions concerning the standard of care applicable to physical medicine rehabilitation physicians, such as Dr. Bogar. While the majority does not address this contention in light of their holding that the expert report constituted “no report” as to Dr. Bogar, I would hold that even if Dr. Adame is deemed unqualified to render an expert opinion in this case, the appellees should still be afforded the opportunity to request the 30–day extension provided by section 74.351(c). A similar argument regarding expert qualifications was made in Ogletree, in which the appellant asserted that a radiologist was incapable of opining on the standard of care applicable to urologists. Ogletree v. Matthews, No. 06–0502, ––– S.W.3d –– ––, ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *4 (Tex. Nov. 30, 2007). In a concurring opinion, Justice Willett stated that the defect in the expert report consisted of “designating the wrong type of medical professionals to opine on standard of care,” and that using the wrong type of expert “is the type of defect for which a trial court may grant a discretionary section 74.351(c) extension.” Id. at *6, at *18 (Willett, J., concurring).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

Accordingly, we reverse the court of appeals’ judgment 79 S.W.3d 48 and dismiss with prejudice the Wrights’ claims against Supreme Court of Texas. Bowie Memorial Hospital.

BOWIE MEMORIAL HOSPITAL a/k/a Bowie Barbara Wright was admitted to Bowie after she sustained Hospital District d/b/a Bowie Hospital District injuries in a car accident. While at Bowie, Michael Layne, Authority d/b/a Bowie Memorial Hospital, a physician’s assistant that Bowie employed, x-rayed Petitioner, Barbara’s right knee and foot and diagnosed her with a v. fractured patella. However, Layne allegedly misplaced or Barbara WRIGHT and P.L. Wright, Respondents. misread the foot x-ray and, therefore, did not discover that Barbara had also fractured her right foot in the accident. No. 01–0814. | June 13, 2002. Shortly after Barbara was admitted to Bowie, Dr. Hodde, Layne’s supervisor, recommended that Bowie refer her to Patient brought medical malpractice action against an orthopedic surgeon. Barbara was immediately referred hospital, physician, physician’s assistant, and others, to an orthopedic surgeon and transferred to another alleging that failure to timely discover that her foot was hospital. Her accompanying medical report, which Layne fractured led to necessity of two additional surgeries. The prepared, only indicated that Barbara had a fractured 78th District Court, Wichita County, Keith Nelson, J., knee. dismissed patient’s claims. Patient appealed. The Fort Worth Court of Appeals, 48 S.W. 3d 443, affirmed in Nearly a month after the accident, Barbara’s orthopedic part, reversed in part, and remanded. Upon grant of surgeon discovered Barbara’s fractured foot. By that time, hospital’s petition for review, the Supreme Court held that the surgeon had already operated on Barbara’s knee. The expert report submitted by patient did not constitute a Wrights claim that the surgeon could have operated on good-faith effort to summarize causal relationship Barbara’s foot at the same time if he had known about the between hospital’s alleged failure to meet applicable injury. Instead, Barbara had two additional surgeries over standards of care and patient’s injury under Medical the next ten months. Liability and Insurance Improvement Act. Barbara and her husband sued Bowie, Layne, and Dr. Reversed. Hodde for medical malpractice. The Wrights also sued the orthopedic surgeon, another treating doctor, and three medical clinics not associated with Bowie. The Wrights’ Attorneys and Law Firms allegations pertinent here are that Bowie personnel did not: diagnose Barbara’s foot fracture; protect her foot; *50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles & review diagnostic tests ordered and administered at the Thompson, Dallas, Susan Irene Nelson, Dallas, for hospital; or properly supervise Layne. Petitioner. The Wrights filed an expert medical report about Britta Jean Gordon, Michael Kevin Queenan, Queenan Bowie’s, Dr. Hodde’s, and another doctor’s alleged Law Firm, DeSoto, for Respondents. negligence. See TEX.REV.CIV. STAT. art. 4590i, § Opinion 13.01(d). The expert report states, in part:

PER CURIAM. I have reviewed the material you sent me on the above case. I believe that the hospital fell below the appropriate standard of care in not having a defined This case involves the Medical Liability and Insurance mechanism in place whereby x-rays taken in the E.R. Improvement Act’s (“the Act”) expert-report are read by a physician specialized in interpreting the requirements. See TEX.REV.CIV. STAT. art. 4590i, § films in a timely manner (i.e., less than 24 hrs). X-rays 13.01. The trial court dismissed the plaintiffs’ medical taken in the E.R. need to have re-reads performed malpractice claims after it determined that their expert within 24 hrs and if *51 there is a discrepency [sic] in report did not satisfy the Act’s requirements. The court of the x-ray readings a system should be in place to appeals concluded that the trial court abused its discretion inform the patient of this. There did not appear to be when it dismissed the plaintiffs’ claims, because the any procedure that the hospital has for tracking x-rays. expert report represented a good-faith effort to comply The hospital also doesn’t seem to have a system of with the Act. 48 S.W.3d 443, 448. We disagree. orienting health care professionals working in the E.R.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

nor any form of Q/A for P.A.’s staffing the E.R. There art. 4590i, § 13.01(d); American Transitional Care Ctrs. didn’t appear to be any organized system or protocols of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). for P.A. supervision in the E.R. The expert report must provide “a fair summary of the expert’s opinions as of the date of the report regarding ... applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to I do believe that it is reasonable to believe that if the x- meet the standards, and the causal relationship between rays would have been correctly read and the that failure and the injury, harm, or damages claimed.” appropriate medical personnel acted upon those TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6). If a findings then Wright would have had the possibility of plaintiff timely files an expert report and the defendant a better outcome. moves to dismiss because of the report’s inadequacy, the trial court must grant the motion “only if it appears to the Bowie moved to dismiss the Wrights’ claims, alleging court, after hearing, that the report does not represent a that the expert report “fails to establish how any act or good faith effort to comply with the definition of an omission of employees of Bowie Memorial Hospital expert report in Subsection (r)(6) of this *52 section.” caused or contributed to Ms. Wright’s injuries.” TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis Therefore, Bowie argued, the report does not satisfy the added). Act’s requirements. [2] We recently discussed the Act’s expert-report The trial court held two hearings to determine if the report requirement for medical-malpractice cases. See Palacios, represents a good-faith effort to meet the Act’s 46 S.W.3d at 877–80. In Palacios, we explained that, requirements. See TEX.REV.CIV. STAT. art. 4590i, § when considering a motion to dismiss under section 13.01(l ). At the first hearing, the trial court asked about 13.01(l ), “[t]he issue for the trial court is whether ‘the the causal relationship between Bowie’s conduct and report’ represents a good-faith effort to comply with the Barbara’s injury. The Wrights explained that if Bowie had statutory definition of an expert report.” Palacios, 46 diagnosed Barbara’s fractured foot earlier, then she S.W.3d at 878. To constitute a “good-faith effort,” the “probably would have had a better outcome.” They also report must provide enough information to fulfill two conceded that the orthopedic specialist Barbara saw purposes: (1) it must inform the defendant of the specific immediately after leaving Bowie “had an independent conduct the plaintiff has called into question, and (2) it duty to verify” Bowie’s medical report. Nevertheless, the must provide a basis for the trial court to conclude that the Wrights claimed that, if Bowie’s report had indicated that claims have merit. Palacios, 46 S.W.3d at 879. Barbara had a broken foot, it would have been “much easier” for the orthopedic doctor to make a proper [3] [4] [5] The trial court should look no further than the diagnosis. After the second hearing, the trial court granted report itself, because all the information relevant to the Bowie’s motion to dismiss. The record indicates that the inquiry is contained within the document’s four corners. trial court did not believe the Wrights’ claims against Palacios, 46 S.W.3d at 878. The report need not marshal Bowie, “the people who transferred [Barbara],” had merit, all the plaintiff’s proof, but it must include the expert’s given that the orthopedic surgeon “could have done his opinion on each of the three elements that the Act own work.” identifies: standard of care, breach, and causal relationship. Palacios, 46 S.W.3d at 878. A report cannot The court of appeals reversed and remanded, holding that merely state the expert’s conclusions about these the trial court abused its discretion when it dismissed the elements. Palacios, 46 S.W.3d at 879. “[R]ather, the Wrights’ claims against Bowie. 48 S.W.3d at 448. The expert must explain the basis of his statements to link his court concluded that the report inadequately summarizes conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d the causal relationship between Bowie’s alleged 882, 890 (Tex.1999). negligence and Barbara’s injury. However, it determined that the report represents a good-faith effort to comply [6] [7] [8] We review a trial court’s order dismissing a claim with the Act, because it raises the possibility that, but for for failure to comply with section 13.01(d)’s expert-report Bowie’s breach, Barbara “would have had a better requirements under an abuse-of-discretion standard. outcome.” 48 S.W.3d at 447. Palacios, 46 S.W.3d at 878. A trial court abuses its [1] discretion if it acts in an arbitrary or unreasonable manner Medical-malpractice plaintiffs must provide each without reference to any guiding rules or principles. defendant physician and health-care provider an expert Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, report with the expert’s curriculum vitae, or they must 241–42 (Tex.1985). When reviewing matters committed voluntarily nonsuit the action. See TEX.REV.CIV. STAT. to the trial court’s discretion, a court of appeals may not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

substitute its own judgment for the trial court’s judgment. rather than the “reasonable medical probability”—that See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 Barbara might have had a better outcome, the court of (Tex.1989). appeals concluded that the report’s adequacy should not turn “solely upon the claimant’s failure to use magical Here, the parties do not dispute that the expert report words like ‘reasonable probability.’ ” 48 S.W.3d at 447. fairly summarizes the alleged standard of care, because it Accordingly, the court of appeals held that the report met states that a hospital should have established procedures the good-faith effort test, because it gave the trial court a to read and interpret x-rays in a timely manner and to basis to conclude that the Wrights’ claims against Bowie inform patients about the results. See TEX.REV.CIV. have merit. 48 S.W.3d at 448. STAT. art. 4590i, § 13.01(r)(6). Also, the parties do not dispute that the report fairly summarizes how Bowie We agree with the court of appeals’ conclusion that a allegedly breached the standard of care, because the report’s adequacy does not depend on whether the expert report states that Bowie did not have a procedure to track uses any particular “magical words.” Nothing in the Act’s x-rays. See TEX.REV.CIV. STAT. art. 4590i, § plain language, or in Palacios, suggests that, for these 13.01(r)(6). Consequently, the parties only contest purposes, an expert report must express the causal whether the report constitutes a “good-faith effort” to relationship in terms of “reasonable medical probability.” fairly summarize the causal relationship between Bowie’s However, we disagree with the court of appeals’ alleged breach and Barbara’s injury. See TEX.REV.CIV. conclusion that the trial court abused its discretion in STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at dismissing the Wrights’ claims against Bowie. We have 879. held that the only information relevant to whether a report represents a good-faith effort to comply with the statutory Contrary to the court of appeals’ conclusion, it is not requirements is the report itself. Palacios, 46 S.W.3d at enough that the expert report “provided insight” about the 878. And, we have held that we review a trial court’s plaintiff’s claims. See 48 S.W.3d at 447. Rather, to decision about whether a report constitutes a good-faith constitute a good-faith effort to establish the causal- effort to comply with the Act under an abuse-of-discretion relationship element, the expert report must fulfill standard. Palacios, 46 S.W.3d at 878. Palacios ‘s two-part test. See Palacios, 46 S.W.3d at 879. Thus, under the Palacios test, we must determine whether After reviewing this report, we conclude that the trial the trial court acted unreasonably and without reference to court could have reasonably determined that the report guiding principles when it dismissed the Wrights’ claims does not represent a good-faith effort to summarize the against Bowie. See Downer, 701 S.W.2d at 241–42. causal relationship between Bowie’s failure to meet the applicable standards of care and Barbara’s injury. See The Wrights primarily rely on one statement in the report TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6); to establish causation: “if the x-rays would have been Palacios, 46 S.W.3d at 879. That is because the report correctly read and the appropriate medical personnel *53 simply opines that Barbara might have had “the acted upon those findings then Wright would have had the possibility of a better outcome” without explaining how possibility of a better outcome.” In their brief to this Bowie’s conduct caused injury to Barbara. We cannot Court, the Wrights contend that this statement “explains infer from this statement, as the Wrights ask us to, that why Petitioners’ damages were caused by Bowie Bowie’s alleged breach precluded Barbara from obtaining Hospital’s breach: if the proper medical personnel at a quicker diagnosis and treatment for her foot. Rather, the Bowie had reviewed the x-rays, [Barbara] would have had report must include the required information within its a chance of diagnosis and treatment of her foot fracture.” four corners. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 878. Because the Bowie responds that the report’s statement about report lacks information linking the expert’s conclusion causation is conclusory, because it does not explain how (that Barbara might have had a better outcome) to Bowie’s failing to correctly read or act upon the x-rays Bowie’s alleged breach (that it did not correctly read and caused injury to Barbara. Moreover, Bowie asserts, the act upon the x-rays), the trial court could have reasonably statement does not even identify the specific injuries determined that the report was conclusory. See Palacios, Bowie’s conduct allegedly caused. 46 S.W.3d at 880; Earle, 998 S.W.2d at 890. A conclusory report does not meet the Act’s requirements, In reviewing the report’s adequacy, the court of appeals because it does not satisfy the Palacios test. Palacios, 46 focused on “whether the report provides a basis to S.W.3d at 879. conclude that the claims have merit.” 48 S.W.3d at 447 (citing Palacios, 46 S.W.3d at 878–79). Although the *54 For these reasons, we hold that the trial court did not causation statement recognizes only the “possibility”— abuse its discretion when it concluded that the report did

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

not represent a good-faith effort to meet the Act’s appeals’ judgment and dismiss with prejudice the requirements. Therefore, the trial court had no discretion Wrights’ claims against Bowie. See TEX.R.APP. P. 59.1. but to dismiss the plaintiffs’ claims against Bowie. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ); Palacios, 46 S.W.3d at 880. In reviewing the trial court’s order, the court of appeals improperly substituted its own judgment Parallel Citations for the trial court’s judgment. See Flores, 777 S.W.2d at 41. Accordingly, we grant Bowie’s petition for review. 45 Tex. Sup. Ct. J. 833 Without hearing oral argument, we reverse the court of End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Earle v. Ratliff, 998 S.W.2d 882 (1999) 42 Tex. Sup. Ct. J. 919

Opinion 998 S.W.2d 882 Supreme Court of Texas. *884 Justice HECHT delivered the opinion of the Court. Stephen EARLE, M.D., Petitioner, v. This medical malpractice case raises several issues, but Michael RATLIFF and Shirley Ratliff, our attention centers on whether the plaintiff’s claim that Respondents. the defendant negligently performed surgery on him is barred by limitations. The plaintiff contends that No. 98–0115. | Argued April 7, 1999. | Decided July limitations did not begin to run on his claim until his post- 1, 1999. | Rehearing Overruled Oct. 7, 1999. surgical course of treatment by the defendant ended, and Patient sued surgeon who performed two back surgeries until he became aware that the defendant had fraudulently involving metal bone plates and pedicle screws, asserting concealed from him the truth about the surgery and the medical malpractice and lack of informed consent. The treatment that followed. Further, the plaintiff asserts, to 288th Judicial District Court, Bexar County, David bar his claim would violate the Open Courts provision of Peeples, J., granted summary judgment for surgeon on the Texas Constitution.1 On each of these matters we statute of limitations grounds. Patient appealed. The San disagree with the plaintiff, but on other claims described Antonio Court of Appeals, 961 S.W.2d 591, reversed and below, we believe the plaintiff is correct. The district remanded. Surgeon filed petition for review. The court granted defendant summary judgment on all Supreme Court, Hecht, J., held that: (1) any negligence by plaintiff’s claims. The court of appeals reversed summary surgeon concerning initial surgery occurred on or before judgment on all claims.2 We partially affirm, and partially date of that surgery, and limitations period thus began to reverse, the judgment of the court of appeals and remand run on that date rather than when surgeon quit treating the case to the district court for further proceedings. patient; (2) surgeon did not fraudulently conceal known wrong, so as to toll limitations periods for medical malpractice claim; (3) open courts provision of state constitution did not preclude limitations bar of patients’ I claims relating to initial back surgery; (4) genuine issue of material fact existed, precluding summary judgment for Michael Ratliff, a thirty-eight-year-old freight handler in surgeon, on whether he was negligent concerning second good health, sustained a work-related back injury in June surgical implant of devices in patient’s back; (5) surgeon 1991, for which he was treated by Dr. Stephen Earle. On could not be held negligent concerning disclosure of risks November 21, 1991, Earle operated on Ratliff, fusing his attendant to second spinal implant surgery, where surgeon lumbar spine at three levels, decompressing nerves at four disclosed all risks identified by Texas Medical Disclosure levels, and inserting metal bone plates and screws Panel and thus complied with Medical Liability Insurance manufactured by AcroMed Corporation. Unfortunately, Improvement Act; and (6) Medical Liability and Ratliff’s condition gradually worsened. Earle continued to Insurance Improvement Act barred patient’s Deceptive treat Ratliff, and on November 16, 1993, Earle operated Trade Practices-Consumer Protection Act (DTPA) claims again to remove and replace the instrumentation that surgeon misrepresented and concealed truth implanted in the first surgery. Following this surgery, concerning back surgeries. Ratliff’s condition deteriorated even further, to the point where he was in constant pain and unable to walk, talk, or Judgment of the Court of Appeals affirmed in part and care for himself. A month later, Ratliff saw a television reversed in part, and case remanded. report on the risks associated with the AcroMed instrumentation that had been surgically implanted in him and removed. Ratliff contends that this was his first Attorneys and Law Firms inkling that Earle’s treatment had been improper. Ratliff returned to Earle on January 4, 1994, for a final visit, and *883 George H. Spencer, Sr., Phylis J. Speedlin, San not quite two months later, on February 28, he and his Antonio, for Petitioner. wife (collectively, “Ratliff”) sued Earle and others. We Donna J. Bowen, Michael L. Slack, Austin, James A. are concerned only with Ratliff’s action against Earle. Hall, San Antonio, for Respondents. Ratliff sued Earle for negligence, fraudulent concealment, strict liability, and violations of the Deceptive Trade © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Earle v. Ratliff, 998 S.W.2d 882 (1999) 42 Tex. Sup. Ct. J. 919

Practices–Consumer Protection Act.3 Ratliff alleged that (Ratliff has dismissed his strict liability claim in Earle was negligent in: order to participate in a settlement reached in In re Orthopedic Bone Screw Products Liability Litigation (Fanning v. Acromed Corp.).4) · misdiagnosing his condition; Earle moved for summary judgment on several grounds, including: that Ratliff’s claims relating to his 1991 · performing unwarranted and unnecessary surgery were barred by limitations; that with respect to surgeries on him; the 1993 surgery, Earle did not breach the standard of care owed Ratliff or cause him any injury; that Earle · implanting in his back pedicle devices not obtained from Ratliff the consent to treatment and surgery approved by the Federal Food and Drug required by statute;5 and that Earle did not knowingly Administration; make any misrepresentation to Ratliff. In connection with the last ground, Earle argued that Ratliff’s health care · failing to warn him of the risks of the surgery liability claims could not be recast as DTPA violations. and the causes of his subsequent pain; and Earle supported his motion with his own affidavit and · misrepresenting throughout the entire course certain medical records. Ratliff responded, relying on his of treatment the risks of pedicle instrumentation own affidavit and that of an expert witness, Dr. Vert and the problems experienced by other patients Mooney, as well as other medical records. The district from such a procedure. court granted Earle’s motion “on all grounds”, and Ratliff appealed. Ratliff further alleged that Earle had fraudulently concealed: The court of appeals reversed, holding that Earle was not entitled to summary judgment on any ground raised in his · that the surgeries were unwarranted and motion.6 Concerning limitations, the court concluded “that unnecessary; the allegations of this case [involving] elements of both misdiagnosis and mistreatment mak[e] it difficult to · that objective reports did not support Earle’s ascertain a specific date when the malpractice claim diagnosis and recommendation of surgery; arose.”7 Under the circumstances, the court found that limitations did not begin to run on Ratliff’s claims until · that statements Earle made to induce Ratliff to the date of Earle’s last treatment,8 which, as we have said, have surgery were incorrect; was less than two months before Ratliff filed suit. · that assurances Earle gave Ratliff about his We granted Earle’s petition for review.9 We first consider condition and the reasons *885 for his whether Ratliff’s claims relating to the 1991 surgery are continuing pain were misleading, incomplete, barred by limitations, and then whether Earle was entitled and inaccurate; and to summary judgment on Ratliff’s other claims. · the risks of using spinal fixation devices, some of which were printed on an insert in the packaging of the instrumentation Earle implanted in Ratliff. II Finally, Ratliff alleged that Earle violated the DTPA Ratliff’s negligence claims are “health care liability by telling him that: claims” within the meaning of the Medical Liability and Insurance Improvement Act.10 Section 10.01 of the Act · he needed surgery; provides in pertinent part that · he would get “95% better” and would be able no health care liability claim may be commenced to return to work; unless the action is filed within two years from the occurrence of the breach or tort or from the date the · the devices implanted in Ratliff were safe, medical or health care treatment that is the subject of approved for such use, and permanent; and the claim or the hospitalization *886 for which the · the pain he endured was to be expected and claim is made is completed....11 would get better. Thus, under this statute limitations is to run from one of three dates: the date of the breach or tort, the completion

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Earle v. Ratliff, 998 S.W.2d 882 (1999) 42 Tex. Sup. Ct. J. 919

of treatment, or the completion of hospitalization. We Gormley’s motion for summary judgment stated that have repeatedly held that a plaintiff cannot choose the the health care of which Stover complained occurred most favorable of the three dates specified, and that “if before or during surgery. None of the excerpts of the date of the negligence can be ascertained, ... Stover’s and her expert witness’ deposition testimony, limitations must be measured from the date of the tort.”12 attached to Gormley’s motion, mentioned any negligence occurring after surgery. Gormley’s affidavit Ratliff contends, and the court of appeals agreed, that stated that if Stover was injured at all, it was during limitations did not begin to run on his claims regarding surgery. Stover’s affidavit did not assert that Gormley the 1991 surgery until Earle quit treating him, shortly was negligent following surgery. Her affidavit did before he filed suit. Earle asserts that limitations began to assert that Gormley represented to her after her surgery run on those claims the date surgery was performed. that her pain would shortly subside, but she does not Ratliff also contends that the running of limitations was claim that her continued pain was attributable to his suspended by Earle’s fraudulent concealment of certain post-surgical treatment of her. In short, Gormley’s facts about the surgery and his prognosis. Earle responds affidavit established as a matter of law that no that Ratliff has failed to raise a genuine issue of material actionable negligence occurred after surgical treatment fact on the elements of fraudulent concealment. Finally, was completed, and nothing else in the *887 summary Ratliff argues that his claims cannot be barred by judgment record raises a fact issue on the matter. The limitations without violating the Open Courts provision of trial court correctly granted summary judgment for the Texas Constitution. Earle responds that Ratliff has Gormley on Stover’s negligence claims in their failed to raise a fact issue that he did not have a entirety.14 reasonable opportunity to sue, and thus he is not entitled As far as we have been able to determine, the only courts to the protection of the Open Courts provision. We of appeals to consider this issue have reached the same address each of these issues—when limitations began to conclusion.15 run, fraudulent concealment, and Open Courts—in turn. The court of appeals in the present case was concerned about the lingering effects of Earle’s alleged misdiagnosis, leading to unnecessary surgery, continued pain and complications, and finally another surgery. But if A the running of limitations on negligent surgery were [1] deferred while the patient continued to experience the Ratliff neither complains nor offers evidence of any effects of that surgery, then the first clause of section negligence by Earle in the treatment following the 1991 10.01 pegging the date of the breach or tort as the surgery. Ratliff does not contend, for example, that Earle beginning of the limitations period would seldom apply to should have done something after the surgery to relieve surgery. his pain or improve his back. Ratliff alleges that Earle did not tell him the truth about the surgery, the reasons for his Our conclusion does not suggest that limitations is not continued pain afterward, or his prognosis, but he does affected when a physician who can correct a misdiagnosis not assert that Earle’s alleged post-surgical statements or or lessen its consequences fails to do so. On the contrary, concealments affected his treatment or his condition. we suggested in Rowntree v. Hunsucker that a claim for continued mistreatment is not barred simply because Rather, Ratliff contends that Earle was negligent in treatment was based on a much earlier misdiagnosis.16 misdiagnosing the need for surgery, in failing to disclose Rowntree did not present such a situation,17 but Chambers the attendant risks of surgery beforehand, and in v. Conaway,18 the case on which the court of appeals performing unwarranted surgery. Assuming Ratliff is relied, did. Conaway claimed that Chambers, her family correct, Earle’s negligence occurred on or before the date physician, failed to diagnose cancer on two occasions he performed surgery, and limitations on Ratliff’s claim when she complained of a lump in her breast and on began to run on that date. We reached the same several other visits to him for general health care. Based conclusion in similar circumstances in Gormley v. on evidence that Chambers had a duty to follow up on Stover.13 There, Stover complained that Gormley was Conaway’s complaints each time he saw her, we held that negligent in performing skin graft surgery to improve her the tort Conaway complained of did not occur, and ability to wear dentures, but she argued that limitations limitations did not begin to run, until the last time did not begin to run until Gormley quit treating her. We Chambers failed to diagnose her cancer, which was her explained: last visit.19 We did not apply the course-of-treatment limitations provisions of section 10.01 to allow Conaway to complain of the initial misdiagnosis, but neither did we

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Earle v. Ratliff, 998 S.W.2d 882 (1999) 42 Tex. Sup. Ct. J. 919

allow that first misdiagnosis to bar Conaway’s complaints therefore fraudulent concealment is imputed to Dr. about later visits. Carrell because of his failure to inform the plaintiff that the gauze sponge had been left inside the plaintiff’s Nor does our conclusion suggest that limitations on body. The proposition is essentially unsound. In claims of post-surgical negligence runs from the date of conducting a surgical operation on his patient, and in surgery. If treatment is negligent following surgery, then respect to any treatment he may administer, a surgeon section 10.01 provides that limitations begins to run from is under the duty to exercise due care. His failure to the date of the breach or tort or from the date that discharge this duty constitutes negligence and therefore treatment was completed. Thus, limitations on a claim is wrongful—but the failure does not, of itself, that a physician has improperly treated a patient’s constitute fraud or expose the surgeon to the imputation infection following surgery does not begin to run on the of fraudulent concealment. Among other essential date of surgery merely because the infection would not ingredients, a fraudulent concealment in cases of this have occurred but for the surgery. sort includes, first, actual knowledge of the fact that a wrong has occurred, and, second a fixed purpose to Ratliff does not allege that Earle misdiagnosed or conceal the wrong from the patient. Neither of these mistreated his condition after surgery or that he failed to ingredients appears from the allegations of the do anything following surgery to rectify or ameliorate his plaintiff’s petition. The trial court did not err in earlier misdiagnosis that surgery was appropriate. Under sustaining the special exception in question and in these circumstances, limitations began to run on Ratliff’s dismissing the suit.24 complaints concerning the 1991 surgery the date it was In other words, proof of fraudulent concealment requires performed. more than evidence that the physician failed to use ordinary care; it also requires evidence that the defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff.25

B [3] [4] [5] A person who asserts fraudulent concealment to avoid summary judgment on limitations must raise a Although section 10.01 prescribes the limitations period genuine issue of material fact that would support his for all health care liability claims “[n]otwithstanding any assertion.26 Of course, fraudulent concealment may be other *888 law,”20 we held in Borderlon v. Peck that the shown by circumstantial evidence as well as direct statute “does not abolish fraudulent concealment as an evidence.27 We therefore must examine the evidence equitable estoppel to the affirmative defense of Ratliff offered to support his claim of fraudulent limitations”.21 Proof of fraudulent concealment, we added, concealment: Ratliff’s affidavit and that of his expert, Dr. does not prohibit an assertion of limitations altogether, Mooney. but does suspend the running of limitations until such time as the plaintiff learned of, or should have discovered, Mooney’s affidavit focuses on whether Earle was the deceitful conduct or the facts giving rise to the cause negligent, not whether Earle deliberately concealed facts of action.22 Ratliff contends that because Earle from Ratliff to deceive him. Mooney states that Earle fraudulently concealed that the 1991 surgery was *889 must have known that his recommendation of unnecessary and risky, limitations on claims concerning surgery was negligent because it was contraindicated by that surgery did not begin to run until he learned the truth the objective test results set out in Ratliff’s medical in a television broadcast more than two years later, a few records and because information available to Earle months before he filed suit. concerning pedicle implementation showed that surgery [2] should not have been attempted. While this evidence We considered the effect of fraudulent concealment in certainly shows a difference of opinion between Mooney the medical malpractice context in Carrell v. Denton.23 and Earle and raises a question whether Earle was There the defendant physician had left a gauze sponge in negligent, it falls short of showing Earle’s “actual plaintiff’s body after surgery. To avoid having his knowledge of the fact that a wrong ... occurred” necessary negligence claim barred by limitations, plaintiff asserted for fraudulent concealment. In addition, Mooney refers to fraudulent concealment. We rejected plaintiff’s argument, portions of Earle’s deposition testimony as evidence that explaining: Earle knew about, but did not inform Ratliff of, certain serious risks associated with spinal fixation surgery. This The proposition which lies at the bottom of this testimony, too, reflects a difference of professional contention is to the effect that the relation between a opinion and does not show that Earle intended to deceive surgeon and his patient involves trust and confidence, Ratliff.

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treatment by Dr. Earle was negligent and had caused the Ratliff’s affidavit does not show that Earle fraudulently problems he was experiencing until, at the earliest, in concealed facts from him. Ratliff states that Earle December 1993 when he saw the [television broadcast].” “assur[ed] me that I would be ‘95 ≠tter’ and would return The district court correctly struck this latter *890 back to work soon”, that Earle “did not inform me that my statement as being conclusory. Even if the sentence had surgery could make my condition even worse” and “never not been struck, neither it nor Mooney’s broad statements explained the permanency and severity of my condition”, about justified reliance on a physician’s advice would and that Earle “told me the [1993] surgery was necessary support Ratliff’s constitutional claim. Mooney’s statement because I had four broken screws” when in fact the that he had seen no evidence that Ratliff could have surgery was necessitated by loose, not broken, screws. discovered Earle’s alleged negligence sooner is not But Ratliff offers no evidence, direct or circumstantial, conclusive of the record. Between the 1991 and 1993 that Earle actually knew these statements were in fact surgeries, Ratliff made twenty-four visits to Earle’s false when he made them, let alone that Earle’s purpose in office. Medical records establish that he repeatedly making them was deceit. Earle may have been negligent complained of pain and a lack of improvement in his in what he said to Ratliff, just as he may have been condition. In his own affidavit, Ratliff reiterates that his negligent in performing the 1991 surgery, but Ratliff has pain persisted during that period and that there was little offered no summary judgment evidence that Earle acted improvement in his condition. Ratliff’s condition was not fraudulently by concealing a known wrong. latent, nor does he assert that the risks associated with his surgery were generally unknown to medical practitioners. Because Ratliff has failed to raise an issue of fact concerning fraudulent concealment, we conclude that he The record establishes that Ratliff had an opportunity to cannot thereby avoid the bar of limitations. learn of any negligence by Earle in performing the 1991 surgery, and the fact that he waited more than two years to do so does not raise constitutional concerns. Accordingly, we conclude that Ratliff’s claims concerning the 1991 surgery are barred by limitations. C [6] [7] The Open Courts provision of the Texas Constitution28 does not permit a well-established common-law cause of action to be restricted by statute in III a way that is unreasonable or arbitrary in view of the statute’s purpose.29 In Jennings v. Burgess, we held that We now turn to three additional claims Ratliff makes: that the limitations provisions of section 10.01 do not violate Earle was negligent in performing the 1993 surgery, that the Open Courts guarantee if a plaintiff has had a Earle failed to disclose the risks attendant to that surgery, reasonable opportunity to discover the alleged wrong and and that statements Earle made violated the DTPA. bring suit before the limitations period expired.30 We assumed in Jennings, without expressly explaining our reasons, that the plaintiff must raise a fact issue concerning the applicability of the provision to avoid a summary judgment on limitations.31 We believe that the A same rule should apply for asserting the Open Courts [8] guarantee in response to a motion for summary judgment Ratliff claims that Earle was negligent in performing on limitations as is applied in asserting fraudulent the 1993 surgery. In his affidavit supporting his motion concealment. for summary judgment, Earle states that he did not breach the applicable standard of care in performing the 1993 Ratliff’s affidavit establishes that he did not learn of the surgery. “Both in 1991 and 1993,” Earle’s affidavit states, risks of pedicle implantation until he saw a television “use of Steffe pedicle screws and plates met the standard broadcast about a month after his second surgery. of care.” Mooney’s affidavit states with respect to the However, the only evidence Ratliff has offered to show 1993 surgery: “Considering the degree of spinal that he could not have learned of the risks sooner consists instability created by Mr. Ratliff’s first surgery, and the of statements in Mooney’s affidavit that he was justified fact that Mr. Ratliff’s first set of AcroMed screws and in trusting Earle and the following statement: “From the plates resulted in hardware failure with loosening, the information that I have reviewed, there is no evidence that insertion of another device was medically unwarranted.” Mr. Ratliff could have known that his care and continued The district court struck this statement in Mooney’s affidavit as being conclusory, but we do not regard it as © 2015 Thomson Reuters. 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any more conclusory than statements in Earle’s affidavit. presumption Ratliff could and did rebut with Mooney’s Mooney’s statement raises the question whether, given affidavit stating that Earle should have disclosed certain Ratliff’s failure to improve following the first surgical risks beyond those enumerated by the Texas Medical implantation and his increased spinal instability, a second Disclosure Panel.41 The court relied on another court of implant was warranted. Earle’s affidavit and other appeals’ decision, Penick v. Christensen,42 which summary judgment evidence do not address this issue. concluded that a physician who makes disclosure for a List A procedure or treatment as prescribed by the Panel [9] Summary judgment can be granted on the affidavit of can nevertheless be negligent for failing to make an interested expert witness, like Earle, but the affidavit additional disclosures. Penick based its conclusion on must not be conclusory.32 An expert’s simple ipse dixit is section 6.07(a)(1) of the Act, which provides that insufficient to establish a matter; rather, the expert must disclosure made as prescribed for a List A procedure explain the basis of his statements to link his conclusions “shall create a rebuttable presumption that the to the facts.33 Earle’s affidavit does not explain why requirements of [the Act] have been complied with”.43 implantation of additional devices in the 1993 surgery was medically warranted, given Ratliff’s history; the We do not agree that the Act permits a finding that a affidavit states only the conclusion that Earle met the physician who made disclosures as prescribed by the applicable standard of care. Panel was negligent for not disclosing other risks and hazards associated with the recommended procedure. Accordingly, the court of appeals did not err in reversing Were it so, the Act would afford a physician who summary judgment on this claim. complied with Panel directives no protection from liability for nondisclosure if there were any evidence that additional disclosure was appropriate. The entire purpose of the Panel decisions would thus be thwarted. Section 6.07(a)(1) is not entirely clear, but we agree with the B weight of scholarly authority that, read in the light of the [10] other provisions of the Act, it permits the presumption of Ratliff contends that Earle was negligent in failing to proper disclosure to be rebutted only by showing the *892 disclose the risks attendant to the 1993 surgery. This invalidity of the consent form, such as by proof that the claim *891 is governed by the Medical Liability and patient’s signature was forged, or that the patient lacked Insurance Improvement Act.34 The Act creates the Texas capacity to sign.44 Medical Disclosure Panel and gives it the responsibility to “identify and make a thorough examination of all medical Ratliff produced no evidence that his written consent was treatments and surgical procedures ... to determine which ineffective due to incapacity or was otherwise invalid, and ... do and do not require disclosure of the risks and thus he has raised no issue that Earle was negligent in hazards to the patient”.35 The Panel prepares and publishes disclosing the risks of surgery. Accordingly, we hold that two lists, one (List A) of treatments and procedures for the court of appeals erred in reversing summary judgment which the risks must be disclosed, and the other (List B) on this claim, and we disapprove Penick to the extent its of treatments and procedures for which disclosure of risks reasoning is contrary to ours. is not required.36 For all List A procedures, the Panel must also state what risks must be disclosed and the form in which disclosure must be made.37 The Act then provides that a physician who discloses to a patient the risks of a List A procedure in the substance and form prescribed by C the Panel “shall be considered to have complied” with the [12] Act,38 and that a patient’s consent to a List A procedure Finally, Ratliff claims that Earle misrepresented and obtained as prescribed “shall be considered effective”.39 It concealed the truth concerning both the 1991 and the is undisputed that both of Ratliff’s surgeries were List A 1993 surgeries in violation of the DTPA. Section 12.01(a) procedures.40 Earle’s affidavit states in effect that he of the Medical Liability and Insurance Improvement Act disclosed all risks identified by the Texas Medical precludes application of the DTPA to physicians “with Disclosure Panel in the manner required, and Ratliff’s respect to claims for damages for personal injury or death signed consent form shows that Earle is correct. resulting, or alleged to have resulted, from negligence”.45 Ratliff and Earle both argue whether Ratliff’s DTPA [11] The court of appeals held, however, that Earle’s claims are thus precluded. affidavit only raised a rebuttable presumption that he was not negligent in disclosing the risks of surgery to Ratliff, a

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In Sorokolit v. Rhodes, we held that section 12.01(a) does the DTPA when the plaintiff’s complaint was that her not preclude a DTPA claim that is not based on a deceased husband had been negligently treated.52 physician’s breach of the accepted standard of medical care.46 We added, however, that “[c]laims that a physician The representations Ratliff alleges Earle made are all or health care provider was negligent may not be recast as related to Earle’s treatment of him and the surgeries DTPA actions” to avoid the provisions of the Act.47 We performed, as in Gormley, Walden, and MacGregor, and held that a physician’s promise that his patient’s do not resemble the representations that were possible appearance following cosmetic surgery would be identical DTPA violations in Sorokolit. The gist of all of Ratliff’s to a specific photograph was actionable under the claims, variously phrased and labeled, is that Earle did not DTPA.48 hold to the applicable standard of care. Such a claim sounds only in negligence. Summary judgment on these In Gormley v. Stover, however, we held that a dentist’s claims was therefore proper. statements that he could perform surgery on the plaintiff with no problems, that a skin graft would work as well as a bone graft, that after surgery the plaintiff could wear dentures with no problems, and that her pain and numbness would subside following surgery were not ***** actionable under the DTPA.49 All these statements, we concluded, related to whether the dentist’s choice of Accordingly, the court of appeals’ judgment is affirmed in surgical procedure and his performance of it met the part and reversed in part, and the case is remanded to the applicable standard of care.50 In Walden v. Jeffery, we district court for further proceedings. held that a dentist’s failure to provide the plaintiff dentures that fit was a negligence claim, not a DTPA claim.51 More recently, we held in MacGregor Medical Parallel Citations Ass’n v. Campbell *893 that a clinic’s statements in its HMO literature that it provided qualified personnel and 42 Tex. Sup. Ct. J. 919 resources, the best services possible, and emergency service twenty-four hours a day were not actionable under

Footnotes 1 TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”). 2 961 S.W.2d 591.

3 TEX. BUS. & COM.CODE §§ 17.41–.63.

4 176 F.R.D. 158, 165–166 (E.D.Pa.1997).

5 TEX.REV.CIV. STAT. ANN. art. 4590i, §§ 6.05–.06 (Vernon Supp.1999).

6 961 S.W.2d 591.

7 Id. at 597.

8 Id.

9 42 TEX. SUP.CT. J. 335 (Feb. 4, 1999).

10 “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” TEX.REV.CIV. STAT. ANN. art. 4590i, § 1.03(4) (Vernon Supp.1999).

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11 Id. § 10.01.

12 Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998) (per curiam); accord Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex.1995) (per curiam); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). 13 907 S.W.2d 448 (Tex.1995) (per curiam).

14 Id. at 449–450.

15 See Winkle v. Tullos, 917 S.W.2d 304, 310 (Tex.App.—Houston [14th Dist.] 1995, writ denied); Desiga v. Scheffey, 874 S.W.2d 244, 248–249 (Tex.App.—Houston [14th Dist.] 1994, no writ); Shook v. Herman, 759 S.W.2d 743, 745–746 (Tex.App.—Dallas 1988, writ denied). Cf. Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (holding that limitations began to run from the last date of treatment rather than the date of the last of two eye surgeries because plaintiff alleged negligence in the follow-up treatment). 16 833 S.W.2d 103, 105 (Tex.1992).

17 Id. at 108.

18 883 S.W.2d 156 (Tex.1993).

19 Id. at 158–159.

20 TEX.REV.CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp.1999).

21 661 S.W.2d 907, 909 (Tex.1983).

22 Id.; Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974).

23 138 Tex. 145, 157 S.W.2d 878 (1942).

24 Id. at 879.

25 See Borderlon, 661 S.W.2d at 908 (holding that a physician has a duty to disclose a negligent act or the fact that an injury has occurred). 26 Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam); American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.1994). 27 See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986).

28 TEX. CONST. art. I, § 13.

29 See Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.1997).

30 917 S.W.2d 790, 794 (Tex.1996).

31 See id.

32 Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam).

33 Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726–727 (Tex.1998) (quoting General Elec. Co. v. Joiner, 522 U.S.

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136, 146, 118 S.Ct. 512, 523, 139 L.Ed.2d 508 (1997); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711–712 (Tex.1997); Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202–204 (Tex.1980)). 34 TEX REV. CIV. STAT. ANN. art. 4590i, §§ 6.01–.08 (Vernon Supp.1999).

35 Id. § 6.04(a).

36 Id. § 6.04(b), (c).

37 Id. § 6.04(b).

38 Id. § 6.05.

39 Id. § 6.06.

40 The Texas Medical Disclosure Panel lists “spine operation” as a procedure requiring written disclosure, and defines the procedure as including “laminectomy, decompression, fusion, internal fixation or procedures for nerve root or spinal cord compression”. 25 TEX. ADMIN. CODE § 601.2(m)(3) (1998). The Panel has identified six risks which must be disclosed prior to a spine operation: “pain, numbness or clumsiness”, “impaired muscle function”, “incontinence or impotence”, “unstable spine”, “recurrence or continuation of the condition that required the operation”, and “injury to major blood vessels”. Id. 41 961 S.W.2d at 597.

42 912 S.W.2d 276, 285–286 (Tex.App.—Houston [14th Dist.] 1995, writ denied).

43 TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.07(a)(1) (Vernon Supp.1999).

44 See Jim M. Perdue, The Law of Texas Medical Malpractice, Chapter X: Informed Consent, 22 HOUS. L. REV. 399, 426 n. 190 (1985) (observing “[t]here appears to be no avenue for disputing th[e] presumption” of sections 6.05 and 6.06, that written disclosure of the panel’s enumerated risks is sufficient for List A procedures); Frank W. Elliott, The Impact of the Texas Medical Liability and Insurance Improvement Act on Informed Consent Recovery in Medical Malpractice Litigation, 10 TEX. TECH L. REV . 381, 387 (1979)(“[I]t appears that evidence that could rebut the presumption of disclosure under Section 6.07(a)(1) is evidence that would attack the validity of the consent.”); COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES & PRODUCTS PJC 51.15, cmt. (1997) (“If the physician has obtained the patient’s signature on a consent form ... containing the risks enumerated on list A, the only means by which the patient may recover for failure to obtain informed consent is to prove the invalidity of the form and that the risks had not otherwise been disclosed to him.”); see also Crundwell v. Becker, 981 S.W.2d 880 (Tex.App.—Houston [1 st Dist.] 1998, pet. denied) (holding that the trial court’s directed verdict on an informed consent claim was not error when the patient who signed the consent form offered no evidence of incapacity). 45 TEX.REV.CIV. STAT. ANN. art. 4590i, § 12.01(a) (Vernon Supp.1999).

46 889 S.W.2d 239, 242 (Tex.1994).

47 Id.

48 Id. at 242–243.

49 907 S.W.2d 448, 449–450 (Tex.1995) (per curiam).

50 Id. at 450.

51 907 S.W.2d 446, 447–448 (Tex.1995) (per curiam).

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52 985 S.W.2d 38, 40–41 (Tex.1998) (per curiam).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

CHCA Bayshore L.P. d/b/a Bayshore Medical Center 189 S.W.3d 855 (Bayshore) and Ira H. Rapp, M.D. The trial court Court of Appeals of Texas, dismissed Gray’s suit with prejudice after concluding that Houston (1st Dist.). the expert report she filed failed to satisfy the requirements set forth in section 74.351 of the Texas Civil Sylvia GRAY, Appellant, Practice and Remedies Code. See TEX. CIV. PRAC. & v. REM.CODE ANN. § 74.351 (Vernon Supp.2005). In her CHCA BAYSHORE L.P. d/b/a Bayshore Medical sole issue on appeal, Gray argues that the trial court erred Center and Ira H. Rapp, M.D., Appellees. in finding that her expert report did not comply with the statute. No. 01–04–00918–CV. | Jan. 26, 2006. We affirm.

Synopsis Background: Patient brought medical malpractice action against hospital and doctor, seeking to recover damages resulting from the injury to her knee during surgical BACKGROUND treatment of chronic sinusitis and nasal septal deformity. The 281st District Court, Harris County, David Jorge In 2001, Gray was admitted to Bayshore for surgical Bernal, J., dismissed patient’s suit, and patient appealed. treatment of chronic sinusitis and nasal septal deformity. For the surgery, Gray was administered a general anesthetic by Dr. Rapp. Upon regaining consciousness after the operation, Gray became aware of severe pain in [Holding:] The Court of Appeals, Evelyn V. Keyes, J., her left knee. Subsequent examination by an orthopedist held that expert report did not satisfy statutory and a neurologist revealed a dislocation of the knee’s requirements of medical liability statute, and thus, patella. Gray, age 39, had no prior history of knee dismissal of patient’s medical malpractice action was injuries. warranted. In November 2003, Gray brought suit against Bayshore, Dr. Rapp, and Phillip A. Matorin, M.D., seeking to Affirmed. recover damages resulting from the injury to her knee.1 Gray’s suit alleged that the injury was caused by the flexing of her left leg during surgery and that the injury Attorneys and Law Firms could have *857 been prevented had Dr. Rapp and the Bayshore’s nursing staff properly monitored Gray’s *856 Michael D. Farmer, Plummer & Farmer, Houston, extremities during the operation. In March 2004, Gray TX, for Appellant. filed the report of her medical expert, Dr. Richard F. Toussaint, M.D., as required by section 74.351 of the Larry D. Thompson and Robert G. Smith, Lorance & Texas Civil Practice and Remedies Code. See id. Both Thompson, P.C., Griffin Vincent and Solace Kirkland Bayshore and Dr. Rapp moved to dismiss Gray’s suit, Southwick, Andrews Kurth LLP, Houston, TX, for arguing that Dr. Toussaint’s expert report failed to Appellees. comply with the requirements of section 74.351. See id. Panel consists of Justices NUCHIA, KEYES, and The trial court then granted Gray a 30–day extension to HANKS. cure any deficiencies in her expert report. See id. § 74.351(c).

Gray filed her amended expert report in June 2004. The report, again by Dr. Toussaint, reads in pertinent part:

OPINION Ms. Gray was administered a general anesthetic for the sinus surgery by Ira H. Rapp, M.D. During the surgery, EVELYN V. KEYES, Justice. Ms. Gray’s knees and arms had become flexed, and when she awoke from the anesthetic, she noted severe This appeal arises from a medical malpractice claim pain upon attempting to move from a bedpan. She was brought by appellant, Sylvia Gray, against appellees, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

noted to have a negative history of knee injury. Ms. negligence is the failure to use ordinary care, *858 Gray was seen by John H. Ownby, M.D., neurologist, failure to do what a physician, or operating room nurse, and Ronald B. Heisey, M.D., orthopedist, who upon of ordinary prudence would have done under the same subsequent workup of Ms. Gray’s knee pain or similar circumstances. I also understand that determined that her left patella had become dislocated. proximate cause is a cause which in a natural and continuous sequence produces an event, and without Based on the forgoing and my education, training, which, such an event would not have occurred. I also experience, and reasonable medical probability, it is my understand that in order to be a proximate cause, an act opinion that Dr. Ira H. Rapp, M.D., Dr. Phillip A. or omission complained of must be such that a person Matorin, M.D., and the nursing staff of Bayshore using ordinary care would have foreseen that the event, Medical Center breached the standard of care for or some similar event, might reasonably result failing to properly monitor, treat, and prevent the therefrom. resultant left knee injury and dislocation of the left patella. Based on these definitions, and on a reasonable degree of medical probability, Dr. Ira H. Rapp, M.D., Dr. Based on the Texas definitions, Dr. Ira H. Rapp, M.D., Phillip A. Matorin, M.D., and the Bayshore Medical Dr. Phillip A. Matorin, M.D., and the Bayshore Center perioperative nursing staff failed to meet the Medical Center perioperative nursing staff were standard of care when they neglected to monitor and negligent by failing to properly monitor, treat, and detect a malpositioned left knee resulting in a prevent Ms. Gray’s left patella dislocation. The dislocated left patella on December 5, 2001. The failure negligence was in the following: to monitor and detect the malpositioned left knee resulted in a dislocated left patella, severe pain and 1. Dr. Ira H. Rapp, M.D. failed to monitor the suffering, and subsequent medical treatment. positioning of Ms. Gray’s left knee to prevent the subsequent dislocation of the patella while under a After receiving Gray’s amended expert report, Bayshore general anesthetic. The standard of care in this and Dr. Rapp again moved to dismiss the suit, arguing circumstance would be for a physician to monitor the that the report still did not comply with section 74.351. positioning of the patient’s extremities to prevent injury After a hearing, appellees’ supplemental motions to during surgery and post operatively. dismiss were granted, and Gray timely appealed. 2. The Bayshore Medical Center perioperative nursing staff failed to monitor the positioning of Ms. Gray’s left knee to prevent the subsequent dislocation of the patella while in the operating room. The standard of DISCUSSION care in this circumstance would be for the perioperative nursing staff to monitor the positioning of the patient’s In her sole issue on appeal, Gray contends that the trial extremities to prevent injury during surgery and post court erred in its determination that Dr. Toussaint’s report operatively. did not comply with section 74.351 of the Civil Practice and Remedies Code. Specifically, she argues that Dr. In the above instance, had Dr. Ira H. Rapp, M.D., Dr. Toussaint’s report constituted an objective good faith Phillip A. Matorin, M.D., and the Bayshore Medical effort to comply with the requirements of section 74.351, Center perioperative nursing staff monitored and and thus contends that the trial court acted improperly in detected the flexing of Ms. Gray’s arms and legs during dismissing her suit. See id. § 74.351(l ) (stating that a general anesthesia in a timely fashion, then in court shall grant a challenge to an expert report “only if it reasonable medical probability, the pain and suffering appears to the court, after hearing, that the report does not experienced by Ms. Gray from the dislocated left represent an objective good faith effort” at compliance). patella would not have occurred along with the resultant necessary treatments. The failure to monitor, detect, diagnose, and timely treat a malpositioned left knee during a general anesthetic was negligence and Standard of Review [1] [2] [3] [4] proximately caused the dislocated left patella and We review all section 74.351 rulings under an subsequent pain and suffering experienced by Ms. Gray abuse of discretion standard. Am. Transitional Care Ctrs. on December 5, 2001. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court abuses its discretion if it acts in an arbitrary or This opinion is based on the available medical records unreasonable manner without reference to guiding rules that you have provided for my review. I understand that or principles. See Garcia v. Martinez, 988 S.W.2d 219, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

222 (Tex.1999). When reviewing matters committed to Dr. Toussaint’s Report the trial court’s discretion, we may not substitute our own Dr. Toussaint’s amended report essentially states that, as judgment for that of the trial court. Walker v. Packer, 827 to both Bayshore and Dr. Rapp: (1) the applicable S.W.2d 833, 839 (Tex.1992). A trial court does not abuse standard of care required monitoring the positioning of its discretion merely because it decides a discretionary Gray’s extremities; (2) appellees failed to monitor the matter differently than an appellate court would in a positioning of Gray’s left knee; and (3) had appellees similar circumstance. See Downer v. Aquamarine monitored the knee’s position, Gray, within reasonable Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). medical probability, would not have suffered a dislocated patella. Although the report, at first glance, thus appears to articulate the three statutorily required elements of an Section 74.351 of the Texas Civil Practice and Remedies expert report, we are compelled, under an abuse of Code discretion standard, to conclude that the trial court did not act unreasonably in granting appellees’ motions to Pursuant to section 74.351, medical malpractice plaintiffs dismiss. must provide each defendant physician and health care provider with an expert report or voluntarily nonsuit the [9] [10] The supreme court held in Palacios that medical action. See TEX. CIV. PRAC. & REM.CODE ANN. § malpractice plaintiffs must provide an expert report 74.351. If a claimant timely furnishes an expert report, a detailing standard of care, breach, and causation as to defendant may file a motion challenging the report’s each defendant. Id. Here, the report states, without adequacy. See id. at § 74.351(a). The trial court shall explanation, that a single standard of care applied to both grant the motion only if it appears, after hearing, that the Bayshore and Dr. Rapp. While it is possible that an report does not represent a good faith effort to comply identical standard of care regarding limb monitoring with the statutory definition of an expert report. See id. § during and after surgery attaches to an anesthesiologist 74.351(l ). The statute defines an expert report as a (Dr. Rapp) and a perioperative nursing staff (Bayshore), written report by an expert that provides, as to each such generic statements, without more, can reasonably be defendant, a fair summary of the *859 expert’s opinions deemed conclusory. Conclusory statements regarding as of the date of the report regarding: (1) applicable standard of care, breach, or causation, do not constitute a standards of care; (2) the manner in which the care good faith effort to comply with section 74.351 in that provided failed to meet the standards; and (3) the causal they fail to adequately inform each defendant of the relationship between that failure and the injury, harm, or specific conduct called into question by the plaintiff’s damages claimed. See id. § 74.351(r)(6); Palacios, 46 claims. See id. S.W.3d at 878–79. [11] Similar weaknesses undermine Dr. Toussaint’s report [5] [6] [7] [8] Although the report need not marshal all the in regard to how appellees breached the applicable plaintiff’s proof, it must include the expert’s opinions on standard of care. Whether a defendant breached the the three statutory elements—standard of care, breach, standard of care due a patient cannot be determined and causation. See Palacios, 46 S.W.3d at 878–79. In without “specific information about what the defendant detailing these elements, the report must provide enough should have done differently.” See id. at 880. Here, Dr. information to fulfill two purposes if it is to constitute a Toussaint’s report contains only a general statement that good faith effort. First, the report must inform the appellees failed to monitor Gray’s left knee properly. The defendant of the specific conduct the plaintiff has called report provides no specific information concerning what into question. Id. at 879. Second, the report must provide actions appellees should have taken in the event they a basis for the trial court to conclude that the claims have observed Gray’s knee flexing. Indeed, a literal reading of merit. Id. A report that merely states the expert’s the report’s most direct statements concerning breach conclusions as to the standard of care, breach, and leads to the conclusion that simply monitoring Gray’s causation does not fulfill these two purposes. Id. The extremities, *860 and taking no corrective action, would expert must explain the basis for his statements and must have prevented her injury. In view of such general and link his conclusions to the facts. Bowie Mem’l Hosp. v. conclusory statements concerning breach, we cannot Wright, 79 S.W.3d 48, 52 (Tex.2002). Furthermore, in conclude that the trial court abused its discretion in assessing the report’s sufficiency, the trial court may not dismissing Gray’s suit.2 See id. at 879. draw any inferences, and must instead rely exclusively on the information contained within the report’s four corners. Conclusory statements also plague the report’s efforts to See Palacios, 46 S.W.3d at 879. satisfy the statutory element of causation. Specifically, Dr. Toussaint’s report does not state with any specificity how appellees departure from the stated standard of care

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

caused Gray’s knee injury. Instead, the report provides person in that position, causing damage that would not only the conclusory statement that the failure to monitor have happened had ordinary professional care been used. caused Gray’s injury. By not fleshing out how appellees’ Considering that the trial court is limited to the four failure to monitor Gray’s extremities caused her injury, corners of the report in making its determination, one the report does not convincingly tie the alleged departure could reasonably conclude that the conclusory language from the standard of care to specific facts of the case. in the report, together with the inconsistency as to Such a failure has been found to be a sufficient reason for appellant’s complaint, convinced the trial court that the concluding that an expert report is statutorily inadequate. report failed to satisfactorily inform each appellee of the See Bowie Mem’l Hosp., 79 S.W.3d at 53. specific conduct being challenged. Palacios, 46 S.W.3d at 878–79. We further note that the report appears to be inconsistent with respect to the relationship among the standard of In view of the conclusory, and at times inconsistent, care, breach, and the cause of Gray’s injury. Specific statements within Dr. Toussaint’s expert report, we language in the report indicates that the applicable cannot conclude that the trial court abused its discretion in standard of care breached by the defendants was granting appellees’ motion for dismissal. We thus “monitor[ing] the positioning of the patient’s overrule Gray’s sole issue on appeal. extremities.” The report then appears to depart from this limited standard of care and breach, stating, “The failure to monitor, detect, diagnose, and timely treat a malpositioned left knee during general anesthetic was negligence, and proximately caused the dislocated left CONCLUSION patella.” (Emphasis added.) The report thus fails to put the appellees on notice as to who had what responsibility We affirm the trial court’s order of dismissal. and how that person or persons departed from the standard of ordinary medical care of a patient under anesthesia in failing to do some specific act required by a

Footnotes 1 Dr. Matorin was the admitting physician. He was non-suited in July 2004.

2 We note that in Strom v. Mem’l Hermann Hospt. Sys., this court upheld a trial court’s decision to dismiss a remarkably similar suit due to the filing of an inadequate expert report. 110 S.W.3d 216 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In Strom, the plaintiff similarly alleged that she sustained an injury to her left knee due to improper positioning of her extremities during surgery. Id. at 219. The expert report Strom provided contained considerably more detail than Dr. Toussaint’s report, referring specifically to the need to properly pad, strap, and place a patient’s extremities during surgery. Id. at 224.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

William E. Zook, Jr., David W. Townend, Ted B. Lyon & 395 S.W.3d 884 Associates, P.C., Mesquite, TX, for appellant. Court of Appeals of Texas, Austin. Before Chief Justice JONES, Justices PEMBERTON and ROSE. Richard HEBERT and Janet Hebert, Appellants v. Timothy E. HOPKINS, M.D., and Shannon Clinic, Appellees.

No. 03–11–00419–CV. | March 1, 2013. OPINION

BOB PEMBERTON, Justice. Synopsis Background: Patient filed health care liability claim Richard Hebert and his wife, Janet Hebert, appeal from a (HCLC) against neurosurgeon and clinic in connection district court judgment dismissing, for failure to serve the with spinal-fracture surgery that purportedly rendered expert report required by chapter 74 of the civil practice patient a quadriparetic. The District Court, Tom Green and remedies code, a health care liability claim they County, 391st Judicial District, Thomas J. Gossett, J., asserted against Timothy Hopkins, M.D., and Shannon dismissed claim after concluding patient had failed to Clinic.1 The Heberts bring two issues, urging respectively serve an expert report meeting statutory requirements. that (1) the district court abused its discretion in Patient appealed. concluding that they failed to serve an expert report complying with chapter 74; and (2) chapter 74’s expert- report requirement violates various constitutional protections. We will overrule these contentions and affirm Holdings: The Court of Appeals, Bob Pemberton, J., held the district court’s judgment. that: [1] trial court did not abuse its discretion in concluding that patient’s expert report did not adequately describe standard of care or alleged breach thereof; BACKGROUND [2] statutory requirements applicable to expert reports in The Heberts filed the underlying suit alleging that Dr. support of HCLCs were rationally related to legitimate Hopkins, a neurosurgeon, committed professional state purpose and therefore did not violate equal negligence in performing spinal surgery on Richard protection based on disparate treatment of health care Hebert at Shannon in September 2008 after Richard broke liability claimants and other litigants; his neck in a fall. Specifically, they pled that Richard had presented with a fracture of the cervical 6(C6) vertebra [3] those requirements did not violate separation-of-powers that was “very unstable” due to a preexisting condition principles; and known as ankylosing spondylitis that had self-fused his spinal vertebrae on either side of the fracture; that the [4] patient failed to demonstrate that those requirements, as standard of care in such circumstances had required applied to him, violated open-courts provision of Texas Hopkins to perform “an anterior and posterior fusion constitution. surgery” to ensure stability; that Hopkins had performed “an anterior fusion with plates and screws at C4–C7 but took no appropriate surgical measures to stabilize the Affirmed. fusion posteriorly;” and that the anterior-only fusion had subsequently “failed as one or more of the screws had J. Woodfin Jones, C.J., filed a dissenting opinion pulled out causing the vertebral segments to move and compress the spinal cord at C4–C7,” rendering Richard a quadriparetic (i.e., paralyzed in all four limbs). The Attorneys and Law Firms Heberts asserted that Shannon was vicariously liable for Hopkins’s negligence by virtue of Hopkins’s status as a *888 Dana D. Banks, Smith Rose Finley, P.C., San “partner or member” of the clinic. Angelo, TX, for appellee. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

provider failed to *890 meet the standards, and the causal Within 120 days thereafter, in an attempt to comply with relationship between that failure and the injury, harm, or chapter 74’s expert-report requirement, the Heberts damages claimed.”8 “A court shall grant a motion served a report from P. Merrill White, M.D., along with challenging the adequacy of an expert report only if it Dr. White’s curriculum vitae.2 Hopkins *889 and Shannon appears to the court, after hearing, that the report does not timely objected to the sufficiency of Dr. White’s report, represent an objective good faith effort to comply” with asserting that the report had failed to adequately set forth, this definition of “expert report.”9 To constitute a “good and was “conclusory” with respect to the underlying faith effort,” as the Texas Supreme Court has explained, factual bases of, opinions regarding the applicable the report must include the expert’s opinion on “each of standard of care for Hebert in light of his underlying the three main elements: standard of care, breach, and medical conditions, the manner in which Hopkins’s care causation,” and must provide enough information to fulfill had failed to meet that standard, or a causal linkage to the two purposes with respect to each element: (1) it must fusion failure and Richard’s injuries.3 By now, the 120– inform the defendant of the specific conduct the plaintiff day period for serving an “expert report” had expired, so has called into question; and (2) it must provide a basis appellees also moved to dismiss the Heberts’ suit with for the trial court to conclude that the claims have merit. prejudice and sought a mandatory award of attorney’s See Jelinek v. Casas, 328 S.W.3d 526, 538–40 & n. 9 fees.4 Both sides submitted briefing on the merits of (Tex.2010); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, appellees’ objections. Following a hearing at which the 52 (Tex.2002) (per curiam); American Transitional Care parties presented argument, the district court sustained Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79 appellees’ objections but granted the Heberts a thirty-day (Tex.2001). Although these requirements do not require a extension to cure any deficiencies.5 plaintiff to marshal all of his or her proof or to present expert testimony in a form that would be admissible at Within the extension period, the Heberts served a trial, see Jelinek, 328 S.W.3d at 539–40 & n. 9, they do supplemental report from White. Contending that White’s necessitate that “the expert must explain the basis for his supplemental report had failed to cure the deficiencies in statements to link his conclusions to the facts” and not his original report, appellees again moved to dismiss the merely state conclusions. Id. (quoting Wright, 79 S.W.3d Heberts’ suit with prejudice.6 The Heberts filed a response at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 joining issue regarding the sufficiency of the two reports (Tex.1999))); see also id. at 539–40 (observing, with and also asserting that chapter 74’s expert-report respect to the causation element, “the expert must ... requirement violates various protections of the U.S. or explain, to a reasonable degree, how and why the breach Texas constitutions. Following a hearing, the district court caused the injury based on the facts presented”). This is granted appellees’ motion to dismiss. Subsequently, after so, in the supreme court’s view, because “ ‘[a] report that hearing evidence, the district court awarded appellees merely states the expert’s conclusions about the standard attorney’s fees as required by chapter 74,7 and this order or care, breach, and causation’ does not fulfill the two also served to make the court’s prior dismissal order final. purposes of a good-faith effort.” Id. at 539 (quoting The Heberts then timely perfected this appeal. Palacios, 46 S.W.3d at 879); see also id. at 540 (expert “must include sufficient detail” regarding how breach caused plaintiff’s injuries “to allow the trial court to determine if the claim has merit”).

ANALYSIS [3] Importantly, the only information relevant to determining whether an expert report complies with these Sufficiency of expert reports requirements is that contained within “the four corners” of In their first issue, the Heberts urge that the district court the report itself. Palacios, 46 S.W.3d at 878. abused its discretion in holding that Dr. White’s report, Consequently, neither the trial court nor this Court may either in its original form or as supplemented, did not infer additional opinions or underlying facts to fill in gaps represent an objective good faith effort to comply with the that the report itself leaves open. See Wright, 79 S.W.3d statutory definition of an expert report. at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d [1] [2] 276, 279 (Tex.App.-Austin 2007, no pet.) (this The standards governing the contents of the expert requirement “precludes a court from filling gaps in a report or reports required by chapter 74 are well report by drawing inferences or guessing as to what the established. Chapter 74 defines an “expert report” as “a expert likely meant or intended” (citing Wright, 79 fair summary of the expert’s opinion as of the date of the S.W.3d at 53)). report regarding applicable standards of care, the manner in which the care rendered by the physician or health care

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

[4] Our standard of review is likewise limited. Chapter 74 S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, 111 imposes a mandatory duty on a trial court to grant a S.W.3d 56, 63 (Tex.2003)). motion challenging the adequacy of an expert report “if it [5] appears to the court” that the report does not meet the Applying this deferential abuse-of-discretion standard above-described requirements. See Tex. Civ. Prac. & of review, we cannot conclude that the district court acted Rem.Code Ann. § 74.351(l ) (“A court shall grant a arbitrarily, unreasonably, and without guiding rules and motion challenging the adequacy of an expert report only principles in determining that Dr. White’s reports did not if it appears to the court ... that the report does not supply it sufficient information regarding his opinions represent an objective good faith effort to comply with the concerning standard of care and breach, as they relate to definition of an expert report in Subsection (r)(6).”) the underlying facts, to enable it to determine whether the (emphasis added). *891 Conversely, the trial court is Heberts’ claims had merit. prohibited from granting such a motion unless such noncompliance “appears to the court.” Id. (“A court shall In his initial report, White summarized medical records grant a motion challenging the adequacy of an expert reflecting that Richard Hebert sought treatment at report only if it appears to the court ....”) (emphasis Shannon in the early morning hours of September 7, added). But the linchpin determination that controls which 2008, following a fall in which he injured his neck, and of these two alternative sets of mandatory duties that Richard was placed under Hopkins’s care. According applies—whether “it appears to the court” that the report to White, CT scans and other evaluations revealed that does not comply with the requirements—has been Richard had suffered “a trace traumatic subarachnoid committed to the trial court’s sound discretion by the hemorrhage” (i.e., bleeding on the brain) and a “fracture Legislature. See Palacios, 46 S.W.3d at 877–78. through the superior vertebral body of C6 with a fracture Consequently, we review the trial court’s determination extending through the posterior elements of C5–6.” The for abuse of that discretion. See Wright, 79 S.W.3d at 52 injury “was initially managed in a cervical collar which (citing Palacios, 46 S.W.3d at 878). was changed to a Philadelphia collar and spinal precautions were ordered” within about five hours. That A trial court abuses its discretion when it acts in an same evening, White indicated, Hopkins performed a arbitrary or unreasonable manner without reference to any surgical procedure in which the neurosurgeon *892 fused guiding rules or principles. See id. (citing Downer v. Richard’s C5–C6 vertebrae and implanted “C4 through Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 C7 anterior instrumentation”—a plate over or along the (Tex.1985)). “When reviewing matters committed to the front of Richard’s spine, attached by screws to his bone— trial court’s discretion, a court of appeals may not to provide stability and support while the fracture healed. substitute its own judgment for the trial court’s On the following day, White continued, the medical judgment.” Id. (citing Flores v. Fourth Court of Appeals, records indicated that Richard had showed signs of 777 S.W.2d 38, 41 (Tex.1989)). We do not, in other recovery progress and that “[c]ervical collar is words, examine the contents of Dr. White’s reports and discontinued per Dr. Hopkins’[s] order.” But four days make our own de novo determination as to whether he has later, during the afternoon of September 12, Richard had a provided sufficient information, with respect to his decline in neurological function and subsequent CT scans opinions regarding standard of care, breach, and “confirm[ed] failure of implant fixation at C6 and C7” causation, to (1) inform appellees of the specific conduct and injury to the spinal cord. Although another the Heberts have called into question; and (2) provide a neurosurgeon, Dr. Duarte, operated on Richard thereafter basis for the district court to conclude that the claims have to remove the failed anterior instrumentation and merit. See Jelinek, 328 S.W.3d at 538–40 & n. 9; Wright, implement a different type of fixation method, Richard 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878–79. Instead, ended up with “increased neurological deficit we determine only whether the district court acted (quadriparesis).” arbitrarily, unreasonably, and without reference to guiding rules and principles in determining that the reports failed The medical records, as summarized by White, to provide that information. See Wright, 79 S.W.3d at 52; additionally reflected that Richard had a history of see also Jelinek, 328 S.W.3d at 542 (Jefferson, C.J., “coronary artery disease treated with cardiac stints, dissenting) (“The dividing line between a sufficient and Plavix, and aspirin; cerebrovascular accident [ (i.e., a an inadequate report is impossible to draw precisely. We stroke) ] on two occasions with residual left hand have said, therefore, that the determination must be made paraesthesias [ (tingling or prickling sensations) ] treated in the first instance by the trial court, and review of that with Plavix and aspirin; and hypertension,” as well as decision asks not how an appellate court would have “ankylosing spondylitis,” a degenerative condition of the resolved that issue, but instead whether the trial court spine that causes both brittleness of bones and self-fusion abused its discretion.”) (citing Jernigan v. Langley, 195 of vertebrae. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

However, in the next sentence, within the same Although he did not indicate whether or how Richard’s paragraph, White acknowledged that “clinical situations” other medical conditions impacted the standard of care, could arise in which anterior-only instrumentation, White emphasized his opinion that a patient with coupled with “supplemental protection” other than ankylosing spondylitis warranted special precautions posterior implementation, would be consistent with the when performing surgery to address spinal fracture: standard of care:

In the surgical treatment of cervical spine fractures If the clinical situation in which the complicating ankylosing spondylitis, the prudent spine surgeon finds himself and the surgeon must recognize the unstable nature of these patient allows only inadequate fractures. The instability is contributed to by the long internal fixation, the surgeon is level arms cranial and caudal to the fracture site obligated to protect the patient resulting from the multilevel autofusion and poor bone supplementing the internal fixation quality associated with ankylosing spondylitis. These with external bracing and/or two factors result in increased susceptibility to spine activity limitations. The fractures as a result of relatively minor trauma, greater supplemental protection should instability, and a greater likelihood of neurologic deficit continue until the patient can be resulting from a cervical fracture than found in patients returned to the operating room for with cervical spine fractures and otherwise normal additional internal fixation or the spinal anatomy. fracture becomes stable through healing. The prudent spine surgeon should design a surgical plan of care allowing decompression of the spinal cord, reduction of the traumatic deformity, and immediate Following these statements regarding standard of care, stabilization of the spinal column to protect the spinal White turned to whether or how Hopkins breached an cord and to facilitate mobilization and nursing care to applicable standard. Consistent with the first portion of the patient in the short term and healing of the spinal his explanation of the standard of care, White began by fusion in the longer term. asserting that Hopkins breached the standard by utilizing “anterior only plate/screw fixation”: As for the standard of care regarding the specific means by which these objectives should be achieved, White Dr. Timothy Hopkins’[s] choice of initially suggested that anterior-only internal anterior only plate/screw fixation instrumentation was inconsistent with the standard of care fails to meet the applicable and that some form of posterior internal instrumentation, standard of care. Constrained either additionally or as an alternative to anterior anterior cervical plates function as instrumentation, would instead be preferable: tension band devices and require relative stability of the posterior Over the recent years, the debate of the spinal elements. In extension these community has been in which circumstances fusion devices resist distraction of the with posterior only fixation or fusion with anterior and anterior column. These devices do posterior fixation is appropriate. Anterior not effectively resist flexion forces instrumentation only is predictably inadequate in a and require stable posterior fracture pattern with gross anterior and posterior elements to limit deformity column instability such as Mr. Hebert’s. Adequate resulting from flexion forces. In the treatment of Mr. Herbert’s [sic] fracture requires absence of adequate posterior anterior and posterior instrumentation in order to meet stability, anterior plate/screw the standard of care. constructs typically fail in flexion by plate breakage or, as in this In Mr. Herbert’s [sic] situation, the standard of care case, by screw pullout. Mr. requires fixation stable *893 enough to allow Herbert’s [sic] fracture resulted in mobilization of the patient without loss of fixation significant instability of both the resulting in increased neurological deficits. This goal is anterior and posterior elements at more likely to be achieved by multilevel posterior the C5–6 level. Anterior only internal fixation in addition to at least single level plate/screw fixation, in this setting, anterior internal fixation with fusion at appropriate is predictably doomed to failure. levels. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

But in the next sentence, White seemed to allude to his Among their objections to the sufficiency of White’s previously expressed view that a surgeon could act within initial report, appellees urged that the report did not the standard of care by “supplementing” otherwise represent an objective good faith attempt to comply with “inadequate internal fixation” with some form of chapter 74’s requirements—i.e., that it discussed the “external bracing and/or activity limitations” as an standard of care, breach, and causation with sufficient alternative to posterior surgical fixation: specificity to (1) inform them of the conduct called into question and (2) provide a basis for the district court to The prudent spine surgeon must determine that the claims have merit—because it was recognize the limitations of the internally inconsistent as to the standard of care that various internal fixation constructs applied and did not address whether or not Hopkins available and if necessary must complied with the standard of care through the use of the compensate for the predictable “external bracing and/or activity limitation” White had weaknesses by adequate external contemplated. And these asserted deficiencies, appellees bracing and/or activity limitation. further suggested, in turn undermined any factual bases underlying White’s assertions that the standard of care Then White ended his discussion of breach with the either required Hopkins’s use of anterior-only internal following conclusion: fixation or was breached by his choice not to use posterior interior fixation. The standard of care for the surgical treatment of this fracture In arguing that the district court abused its discretion in requires a multilevel posterior sustaining appellees’ objections, the Heberts emphasize fixation and a fusion in conjunction the portions of White’s initial report focusing on the with anterior fixation and fusion relative merits of anterior versus posterior internal with or without supplemental fixation. But the district court was within its discretion external fixation as was ultimately also to consider White’s recognition of an apparent performed by Dr. Duarte on exception, qualification, or limitation to his broader September 12, 2008. criticisms of anterior fixation: “the clinical situation in which the surgeon finds himself and the patient” may White then offered the following opinions as to causation, “allow[ ] only inadequate internal fixation,” in which case now referencing perceived inadequacies in internal and the standard of care could be met by “supplementing the external fixation without elaborating as to the nature or internal fixation with external bracing and/or activity identity of any of the latter category: limitations.” Along with White’s recognition of this aspect of the standard of care, the court also could have The failure to choose the internal reasonably considered that White never elaborated on the and external fixation construct nature or type of “clinical situation” that would “allow [ ] capable of providing stability to only inadequate internal fixation” or whether such a allow mobilization of the patient, situation did or did not exist in regard to Richard, a prevent spinal displacement, and patient who, as White acknowledged in his report, had a protect the spinal cord is the history of coronary artery disease, two strokes, and proximate cause of Mr. Herbert’s hypertension, not to mention bleeding on the brain from [sic] *894 increased neurologic his fall. The court likewise could reasonably have viewed deficit (quadriparesis). This White’s references to “external bracing” or “activity occurred as a result of the limitations” as an alternative to further internal fixation as constrained anterior plate/screw begging the question as to whether the unspecified “spinal construct’s predictable inability to precautions” Hopkins had ordered, the cervical collar neutralize flexion forces resulting Richard wore following surgery, or other “external in screw pullout at C6 and C7 bracing” or “activity limitations” Hopkins imposed had or levels followed by displacement of had not satisfied the standard of care. the spinal column through the C5–6 fracture/allograft site with In short, we cannot conclude that the district court acted subsequent spinal cord injury and arbitrarily, unreasonably, or without regard to guiding deterioration of neurologic principles in determining that White’s initial report fell function. short of describing the applicable standard or care or breach thereof, as applicable to the underlying facts, with sufficient specificity to provide the court a basis to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

determine that White’s claims have merit. See Jelinek, day extension; (2) the requirements focusing judicial 328 S.W.3d at 538–40 & n. 9; Wright, 79 S.W.3d at 52; analysis of a report’s sufficiency solely on the “four Palacios, 46 S.W.3d at 878–79. And in the face of such corners” of the report and prohibiting courts from deficiencies regarding standard of care and breach, the considering extrinsic evidence of a claim’s merits; and (3) district court would have acted within its discretion in the mandatory requirement that courts dismiss health care determining that any assertions by White to the effect that liability claims with prejudice for failing to serve an anterior-only internal fixation breaches the standard of adequate expert report and also award attorney’s fees. The care or that only posterior internal fixation can suffice Heberts contend that these mechanisms unfairly “single lack an underlying factual basis— *895 i.e., are out” health care liability claimants for unconstitutional “conclusory”—and fail to satisfy chapter 74. See Wright, “disparate treatment,” deprive courts of judicial discretion 79 S.W.3d at 52 (“the expert must explain the basis of his in violation of the separation-of-powers protections of the statements to link his conclusions to the facts” (quoting Texas Constitution, and deprive claimants of access to the Earle, 998 S.W.2d at 890)). courts in violation of due-process or open-courts protections.10 The Heberts urge us to indulge a “fair reading” that White’s opinions regarding unspecified “clinical *896 When reviewing the constitutionality of a statute, situations” refers to a surgeon who is attempting to we begin with a presumption that it is constitutional. perform a combined anterior and posterior procedure but Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460–61 gets interrupted by “surgical complications such as delays (Tex.App.-Austin 2006, no pet.) (citing Walker, 111 or blood loss,” and that no such complications arose here. S.W.3d at 66); see also Tex. Gov’t Code Ann. § The dissent similarly relies on inferences or implications 311.021(1) (West 2005). The wisdom or expediency of that such “extraordinary circumstances” were not present. the law is the Legislature’s prerogative, not ours. Smith v. But the problem with these arguments is that White never Davis, 426 S.W.2d 827, 831 (Tex.1968). We presume that actually says any of this in his initial report, and the the Legislature has not acted unreasonably or arbitrarily. established rule is that the report must stand or fall on the Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983) (quoting contents within its “four corners.” Palacios, 46 S.W.3d at Davis, 426 S.W.2d at 831). The party challenging a 878. This requirement, again, “precludes a court from statute’s constitutionality has the burden of proving that filling gaps in a report by drawing inferences or guessing the statute fails to meet constitutional requirements. as to what the expert likely meant or intended.” Austin Walker, 111 S.W.3d at 66. A party must show that a Heart, P.A., 228 S.W.3d at 279 (citing Wright, 79 S.W.3d statute is unconstitutional either on its face or as applied at 53). to that party. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n. 16 (Tex.1995); see also City of Nor did the district court abuse its discretion in holding Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, that such deficiencies were not cured by White’s 240–41 (Tex.2001) (per curiam) (Owen, J., concurring). supplemental report. In his supplement, although White To sustain a facial challenge, the party must show that the reiterates and emphasizes at length his conclusions and statute, by its terms, always operates unconstitutionally. assertions regarding anterior versus posterior fixation Garcia, 893 S.W.2d at 528 n. 16. To sustain an as-applied generally, nowhere does he address the deficiencies challenge, the party must show that the statute is concerning the standard of care and breach that the unconstitutional when applied to that particular person or district court could have perceived in his initial report. set of facts. Id.

We overrule the Heberts’ first issue. We note at the outset that the Heberts face an uphill battle because every court that has considered similar challenges to chapter 74’s expert-report requirement, including this Court, has rejected them. See, e.g., Stockton v. Offenbach, Constitutional claims 336 S.W.3d 610, 618 (Tex.2011) (denying open-courts [6] [7] In their second issue, the Heberts bring forward challenge); Hightower v. Baylor Univ. Med. Ctr., 348 constitutional challenges to chapter 74’s expert-report S.W.3d 512, 521–22 (Tex.App.-Dallas 2011, pet. denied) requirement. While not appearing to quarrel with the (rejecting special-law, vagueness, due-course-of-law, and general concept that the Legislature can validly impose separation-of-powers challenges); Broxterman v. Carson, some form of threshold report requirement for asserting 309 S.W.3d 154, 159 (Tex.App.-Dallas 2010, pet. denied) health care liability claims or other types of civil claims, (rejecting due-process challenge); Gulf Coast Med. Ctr., the Heberts complain about three basic features of chapter LLC v. Temple, No. 13–09–00350–CV, 2010 WL 196972, 74’s expert-report requirement: (1) the fixed deadline of at *6 (Tex.App.-Corpus Christi Jan.21, 2010, no pet.) 120 days to serve an expert report, subject to a single 30– (mem. op.) (rejecting due-process and due-course-of-law

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challenges); Bogar v. Esparza, 257 S.W.3d 354, 372–73 but was the result of an accident or mistake. Id. § (Tex.App.-Austin 2008, no pet.) (same); Wilson–Everett 13.01(d), (g). v. Christus St. Joseph, 242 S.W.3d 799, 802–04 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) The Heberts also assert that “4590i did not mandate what (rejecting separation-of-powers challenge); Ledesma v. had to be included in the contents of the report,” and that Shashoua, No. 03–05–00454–CV, 2007 WL 2214650, at “there was no requirements or authorization for the court *9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. to summarily dismiss the case based on the deficiencies in op.) (rejecting due-process and open-courts challenges); the language of the report.” They also contend that parties Thoyakulathu v. Brennan, 192 S.W.3d 849, 855–56 opposing an article 4590i expert report had to “satisfy (Tex.App.-Texarkana 2006, no pet.) (due process does not summary judgment procedures to secure a dismissal with require “exceptions [to the expert-report requirement] that prejudice.” To the contrary, a court considering the would encompass any conceivable complication in order sufficiency of an expert report under article 4590i, as to pass constitutional muster”); Herrera, 212 S.W.3d at under chapter 74, was limited to the “four corners” of the 461–62 (rejecting equal-protection, due-process, due- report. See Palacios, 46 S.W.3d at 878. Likewise, if a course-of-law, and open-courts challenges). Texas courts claimant failed to serve a report, or served a report that also uniformly rejected constitutional challenges to an the trial court concluded did not represent a good faith expert-report requirement under chapter 74’s predecessor effort to comply with the statutory definition of expert statute, article 4590i. See, e.g., Strom v. Memorial report, the trial court was required to dismiss the case Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex.App.- with prejudice and award costs and attorney’s fees to the Houston [1st Dist.] 2003, pet. denied) (rejecting due- opposing party. See former art. 4590i, § 13.01(e), (l ), process, equal-protection, and jury-trial challenges); Villa (r)(6); see also Palacios, 46 S.W.3d at 877. v. Hargrove, 110 S.W.3d 74, 81 (Tex.App.-San Antonio 2003, pet. denied) (rejecting due-process and equal- protection challenges); Walker, 111 S.W.3d at 66 (rejecting due-process challenge); *897 Perry v. Stanley, “Disparate treatment ” [8] 83 S.W.3d 819, 825 (Tex.App.-Texarkana 2002, no pet.) The Heberts contend that chapter 74 irrationally singles (rejecting open-courts challenge); Mocega v. Urquhart, them out for disparate treatment in violation of their rights 79 S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.] 2002, to due process and equal protection. The due-course-of- pet. denied) (same); Gill v. Russo, 39 S.W.3d 717, 718–19 law guarantee of the Texas Constitution provides: “No (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same); citizen of this State shall be deprived of liberty, property, Knie v. Piskun, 23 S.W.3d 455, 467 (Tex.App.-Amarillo privileges or immunities, or in any manner 2000, pet. denied) (rejecting equal-protection, due- disenfranchised, except by due course of the law of the process, open-courts and free-speech challenges); Schorp land.” Tex. Const. art. I, § 19. Similarly, the federal due- v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 736–38 *898 process clause provides: “No state shall make or (Tex.App.-San Antonio 1999, no pet.) (rejecting due- enforce any law which shall abridge the privileges or process, open-courts, and jury-trial challenges).11 immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, The Heberts acknowledge the constitutional validity of without due process of law;....” U.S. Const. amend. XIV, the expert-requirement in chapter 74’s predecessor § 1. While the Texas Constitution is textually different in statute, article 4590i, but attempt to distinguish it as “less that it refers to “due course” rather than “due process,” draconian.” See Act of May 5, 1995, 74th Leg., R.S., ch. Texas courts regard these terms as without substantive 140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985–88, distinction unless and until a party demonstrates repealed and recodified as amended by Act of June 2, otherwise, and the Heberts suggest no reason to construe 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351, 2003 them differently here. See University of Tex. Med. Sch. at Tex. Gen. Laws 847, 875–77 (amended 2005) (current Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995) (citing version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351). Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, They emphasize differences in the deadlines article 4590i 252–53 (1887)). imposed for serving expert reports and the extent of [9] [10] [11] [12] [13] discretion vested in trial courts to extend deadlines. Under federal and state guarantees of due Specifically, article 4590i allowed claimants to either process, legislation that does not affect a fundamental serve an expert report within 90 days of filing suit or file a right or interest is valid if it bears a rational relationship to cost bond. See former art. 4590i, § 13.01(a). An expert a legitimate state interest. Rylander v. B & A Mktg. Co. ex report was required within 180 days of suit, though the rel. Atl. Richfield Co., 997 S.W.2d 326, 333–34 court could grant a 30–day extension if the failure to serve (Tex.App.-Austin 1999, no pet.) (citing Williamson v. Lee was not intentional or the result of conscious indifference, Optical, 348 U.S. 483, 491, 75 S.Ct. 461, 99 L.Ed. 563

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(1955); Garcia, 893 S.W.2d at 525). Similarly, the Accordingly, the expert-report requirement applies constitutional guarantee of equal protection requires only equally to all physicians and health care providers and that disparate treatment of different classifications be rationally relates to the interests of the State “in ensuring rationally related to a legitimate state purpose, unless the that medical practitioners were not ‘being placed in the classification impinges on the exercise of a fundamental situation of defending frivolous claims at a high cost’ to right or distinguishes between people on a “suspect” the health care system.” Id. (quoting Schorp, 5 S.W.3d at basis, such as race or national origin.12 The Heberts have 737). Recently, the Dallas Court of Appeals adopted the not demonstrated that chapter 74 impinges on a Smalling analysis and applied it to chapter 74. See fundamental or important right or a suspect class. By its Hightower, 348 S.W.3d at 521. terms, chapter 74 is facially neutral and applies to any party asserting a health care liability claim. Consequently, While Smalling and Hightower dealt with special-law in addressing the Heberts’ due-process and equal- challenges, we previously rejected an equal-protection protection claims, we must determine whether chapter 74 challenge to chapter 74’s predecessor for similar reasons. bears a rational relationship to a legitimate state interest Fields v. Metroplex Hosp. Found., No. 03–04–00516–CV, and whether the Legislature had a rational basis in 2006 WL 2089171, at *4 (Tex.App.-Austin July 28, 2006, differentiating between health care liability claimants and no pet.) (mem. op.) (“[T]he legislature determined that other litigants. “In so doing, we must uphold the law if we medical liability plaintiffs should be treated differently can conceive of any rational basis for the Legislature’s because of the negative effects of the numbers and cost of action.” Owens Corning v. Carter, 997 S.W.2d 560, 581 their lawsuits had on the provision of health care.”). In (Tex.1999). that case, the claimant failed to show article 4590i’s expert-report requirement was not rationally or In enacting chapter 74, the Legislature made a number of substantially related to the government’s interest in findings about the state of the health care system in reducing the aggregate costs of defending against Texas. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § frivolous costs and reducing the costs of insurance and 10.11, 2003 Tex. Gen. Laws 847, 884–85. Specifically, it medical care to all. Id.; see also Bogar, 257 S.W.3d at found the frequency of claims and the amounts paid out 373 (in addressing due-process challenge to chapter 74: by insurers in judgments and settlements had risen “We disagree that it is irrational, in light of the inordinately since 1995, which created a public problem legislature’s goal of curtailing frivolous health care in the availability and affordability of adequate medical liability claims, for it to require that appellees serve an professional liability insurance. Id. § 10.11(a)(1), (3), (4). expert report explaining why or how this outcome was This “crisis” increased costs to physicians, hospitals, actually caused by the conduct of [the defendant], as patients, and the public. Id. § 10.11(a)(5), (7). As a result, opposed to some other person or health care provider.”). the Legislature concluded the “adoption of certain modifications in the medical, insurance and legal The Heberts challenge the Legislature’s rationale as “pre- systems” would “have a positive effect on the rates textual, not supported by empirical data and refuted by charged by insurers for medical professional liability surveys showing there aren’t excessive frivolous medical insurance.” Id. § 10.11(a)(12). In enacting various malpractice suits.” They reason that because the measures, including chapter 74, the Legislature intended Legislature had previously acted to curb frivolous medical to reduce the frequency and severity of health care malpractice claims by enacting article 4590i, its liability claims, decrease costs of claims, and ensure *899 subsequent enactment of chapter 74 reflects intent to that awards were rationally related to costs, but “do so in “single out medical malpractice claimants for special and a manner that will not unduly restrict a claimant’s rights harsh treatment by making it so onerous to file and any more than necessary to deal with the crisis.” Id. § prosecute [a claim] that they or their counsel will not take 10.11(b)(1), (2), (3). the case, or once it is filed, to make it so difficult to prosecute the case that they or their counsel will just give In Smalling v. Gardner, the Fourteenth Court of Appeals up.” The Heberts likewise complain that chapter 74 strips recognized that the “legislature has broad authority to them “of all the rights accorded to other litigants in the create classifications for legislative purposes, so long as Texas Rules of Civil Procedure,” but does not place they have a reasonable basis and operate equally on all similar restrictions on “major corporations like insurance persons within the class.” 203 S.W.3d 354, 371 companies and banks suing for breach of contract, or on (Tex.App.-Houston [14th Dist.] 2005, pet. denied) individual or corporate clients suing attorneys, *900 (addressing special-law challenge to constitutionality of accountants, bankers and brokers.” According to the article 4590i).13 The expert report is required only for Heberts, no compelling state interest or rational basis claims against healthcare providers for departures from supports this “arbitrary” classification. accepted standards of medical or health care or safety. Id.

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[14] [15] We find no merit in the Heberts’ argument that the serving the expert report does not restrict the trial court’s Legislature, evaluating the impact of 4590i, could not power to hear evidence, determine the facts of a case and have rationally concluded that a problem had nonetheless the rights of the parties, apply the law to the facts and to persisted in the cost and availability of health care due to enter a judgment appropriate to the case, any more than a the prevalence of medical-malpractice suits. To the extent statute of limitations does.”). The same is true of chapter the Heberts challenge the underlying policies of chapter 74’s requirement that courts award attorney’s fees upon 74, it is not our place to question the Legislature’s policy dismissal. Hightower, 348 S.W.3d at 522 (rejecting decisions when conducting a rational basis review. See separation-of-powers challenge based on attorneys’ fees Bell v. Low Income Women of Tex., 95 S.W.3d 253, 264 provision because “court still retains its constitutional (Tex.2002) (“The restriction clearly serves [the act’s] authority to determine the reasonable fees based on the purposes, and it is not for us to second-guess the law and the evidence presented by the parties”). The Legislature’s policy choices.”). The Heberts fail to Heberts offer no persuasive authority to the contrary. demonstrate that the Legislature lacked any rational basis Accordingly, we reject the *901 Heberts’ separation-of- in differentiating between health care liability claimants powers constitutional challenge. and other litigants. Accordingly, we reject the Heberts’ “disparate treatment” constitutional challenges.

Right of access [18] [19] [20] [21] Finally, the Heberts argue chapter 74 Separation of powers violates their right of access to the courts and due course [16] [17] For similar reasons, the Heberts’ other of law. The open-courts provision of the Texas constitutional challenges fail. They claim the Legislature Constitution guarantees litigants the right to redress their has impermissibly interfered with the judicial branch grievances. Tex. Const. art. I, § 13; LeCroy v. Hanlon, through chapter 74. The Texas Constitution vests the 713 S.W.2d 335, 341 (Tex.1986). It protects a person judicial power of the State in the courts. Tex. Const. art. from having his or her right to sue cut off by a legislative V, § 1. The separation-of-powers requirement prohibits act before the individual has been afforded a reasonable one branch of government from exercising a power opportunity to discover the wrong and bring suit. Shah v. inherently belonging to another branch. Id. art. II, § 1; Moss, 67 S.W.3d 836, 842 (Tex.2001). It is premised on Wilson–Everett, 242 S.W.3d at 802 (citing General Servs. the rationale that the Legislature has no power to make a Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 600 remedy by due course of law contingent upon an (Tex.2001)). Only when the executive or legislative impossible condition. Hightower, 348 S.W.3d at 522 branch interferes with the functioning of the judicial (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, process in a field constitutionally committed to the control 355 (Tex.1990)); see also Stockton, 336 S.W.3d at 618 of the courts does a constitutional problem arise. Wilson– (rejecting open-courts challenge based on chapter 74’s Everett, 242 S.W.3d at 802. 120–day deadline). To prove that the statute violates the open-courts provision, the Heberts must show that: (1) a Chapter 74’s expert report imposes a threshold procedural cognizable common law cause of action is being requirement aimed at filtering out meritless or premature restricted, and (2) the restriction is unreasonable or lawsuits from proceeding until a claimant makes a good- arbitrary when balanced with the statute’s purpose and faith effort to demonstrate that at least one expert believes basis. Sax, 648 S.W.2d at 666. that a breach of the applicable standard of care caused the [22] claimed injury. Id. at 802–04 (rejecting argument that A claimant bringing an as-applied open-courts chapter 74 “interefere[d] with the judiciary’s challenge to chapter 74 must show that the expert-report constitutional power to decide when and how to render requirements actually prevented him from bringing his judgments” (citing Murphy v. Russell, 167 S.W.3d 835, claims. Herrera, 212 S.W.3d at 461; McGlothlin v. 838 (Tex.2005) (per curiam); Walker, 111 S.W.3d at 66). Cullington, 989 S.W.2d 449, 453 (Tex.App.-Austin 1999, Though the Heberts contend chapter 74 “prohibits the pet. denied). The Heberts failed to prove how the courts from using the rules of procedure and directs the provisions of chapter 74, as opposed to their own failure courts in every respect,” in actuality, the courts retain the to provide an adequate report, prevented them from judicial power to determine whether a timely served pursuing their claims. See Ledesma, 2007 WL 2214650, report is adequate in this regard and to render a decision at *9 (rejecting open-courts challenge when plaintiff accordingly. See Tex. Civ. Prac. & Rem.Code Ann. § failed to serve sufficient reports); see also Stockton, 336 74.351(l ), (r)(6); see also Carrick v. Summers, 294 S.W.3d at 618–19 (rejecting as-applied open-courts S.W.3d 886, 891 (Tex.App.-Beaumont 2009, no pet.) challenge when plaintiff failed to exercise due diligence (“[I]mposing a strict, non-discretionary time limit on in serving expert report on defendant physician).

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and Jelinek v. Casas, 328 S.W.3d 526 (Tex.2010). [23] [24] As discussed above, the Heberts have also failed to Together, those three cases describe and clarify the show chapter 74 is unreasonable or arbitrary when standards by which courts are to evaluate an expert report. balanced with the statute’s purpose and basis. Health care Because those standards are appropriately set forth in the liability claims require expert testimony at trial. See majority opinion, I will not repeat them all. But it is Smalling, 203 S.W.3d at 371. The expert-report crucial to remember that all that is necessary to avoid requirement “ ‘does not violate the open-courts provision dismissal is that the report represent a “good faith effort” by requiring an expert report sooner rather than later in to comply with the statutory definition of an expert report, the litigation.’ ” Id. (addressing article 4590i (quoting which in turn requires only that the report provide “a fair Mocega, 79 S.W.3d at 64)); see also Gill, 39 S.W.3d at summary of the expert’s opinions” regarding standard of 718–19 (article 4590i expert-report requirement did not care, breach, and causation. Most important, the supreme violate open-courts provision because plaintiff raising court has defined “good faith effort” as “one that provides medical negligence claim required to prove claim by information sufficient to (1) ‘inform the defendant of the competent expert testimony to avoid summary judgment specific conduct the plaintiff has called into question,’ and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d and (2) ‘provide a basis for the trial court to conclude that 464, 466 (Tex.App.-Waco 2010, pet. denied) (“This Court the claims have merit.’ ” Jelinek, 328 S.W.3d at 539 and others have determined that the expert-report (quoting Wright, 79 S.W.3d at 52). I believe the report in requirement itself does not violate the open-courts the present case easily meets that test. guarantee because it ‘is rationally related to the purpose of the statute to discourage frivolous malpractice suits.’ ” The first prong of the good-faith test is that the report (quoting Powell v. Clements, 220 S.W.3d 138, 140 must “inform the defendant of the specific conduct the (Tex.App.-Waco 2007, pet. denied))); Fields, 2006 WL plaintiff has called into question.” In this regard, the 2089171, at *4 (holding report requirement not so expert report in this case could not be clearer: the standard onerous that it “effectively deprived the litigant of access of care requires that a spinal fracture complicated by pre- to the court”).14 existing ankylosing spondylitis must be treated by posterior internal fixation, either alone or in combination *902 [25] [26] The Heberts have failed to demonstrate a with anterior internal fixation, not by anterior fixation constitutional defect in chapter 74’s expert-report alone, as was done by the defendant physician here. By requirement.15 Accordingly, we overrule their second my count, the medical expert’s report contains no less issue.16 than nine separate statements and/or explanations of this requirement, four in his original report and five more in his supplemental report.

• “Anterior instrumentation only is predictably CONCLUSION inadequate in a fracture pattern with gross anterior and posterior column instability such as Mr. Having overruled the Heberts’ issues on appeal, we affirm Hebert’s. Adequate treatment of Mr. Herbert’s the district court’s judgment. fracture requires anterior and posterior instrumentation in order to meet the standard of care.”

• “Dr. Timothy Hopkins’ choice of anterior only *903 Jones, C.J., dissent. plate/screw fixation fails to meet the applicable standard of care.” J. WOODFIN JONES, Chief Justice, dissenting. • “In the absence of adequate posterior stability, Because I believe the expert report in this case represents anterior plate/screw constructs typically fail in a good-faith effort to comply with the statutory definition flexion by plate breakage or, as in this case, by screw of an expert report, I respectfully dissent. pullout.... Anterior only plate/screw fixation, in this setting, is predictably doomed to failure.” The three significant Texas Supreme Court opinions that • “The standard of care for the surgical treatment of address the issue of determining the adequacy of an this fracture requires a multilevel posterior fixation expert report are American Transitional Care Centers of and a fusion in conjunction with anterior fixation and Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex.2002);

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fusion with or without supplemental external performing a multilevel posterior fixation....” instrumented fusion caused permanent and irreversible spinal • “Dr. Hopkins performed an anterior (front) only cord injury when the screw plate and screw fixation.... The standards of care predictably pulled out in the post governing a prudent surgeon require that he not perioperative period.... When the perform anterior only fixation with plate and screw pulled out of the vertebral screws....” segments of C–6 and C–7, the C–5 vertebral body was allowed to • “The standards of care governing a prudent surgeon move on C–6 resulting in cord require that he perform a multilevel posterior compression. The screw instrumented fusion alone or in conjunction with an predictably failed because the anterior instrumented fusion....” anterior only approach was insufficient in the absence of *904 • “My opinion is that Dr. Hopkins breached the inherent or surgically created standard of care by performing a multi-level anterior posterior element stability, to only fusion and fixation with plate/screws without stabilize the fracture and resist also performing a multi-level posterior fusion and deformation due to flexion forces. fixation with instrumentation.” When the screws failed, the vertebral segments moved resulting • “The factual basis for this opinion is that a prudent in cord compression. As a result, surgeon following the standards of care would not Mr. Hebert is now a quadraparetic, have performed an anterior only fusion with meaning he is nearly completely instrumentation to attempt to stabilize this very paralyzed from the chest down. If, unstable fracture but would have performed an instead of the anterior only surgery, anterior instrumented fusion with plates/screws and a Dr. Hopkins had performed an multilevel posterior instrumented fusion or a anterior and posterior instrumented multilevel posterior instrumented fusion alone.” fusion, like Dr. Duarte did on • “[P]erforming an anterior only fusion with 9/12/08, it is highly probable the instrumentation without also performing the anterior implants would not have posterior fusion and fixation was a breach of the failed as they did, the resulting cord standard of care because the standards of care require compression would have been performing both procedures to adequately stabilize avoided and Mr. Hebert would not the very unstable fracture and anterior only surgery have sustained his spinal cord was doomed to fail....” injury and paralysis.

There can be no doubt what conduct is being called into In the face of the expert report’s highly detailed question. explanation of all of the elements required by Palacios, Wright, and Jelinek, the majority holds that a single The second prong of the supreme court’s good-faith sentence from the original report was so “internally definition is that the report must “provide a basis for the inconsistent” as to the applicable standard of care that all trial court to conclude that the claims have merit.” Here, of the report’s detailed explanations and opinions were the expert report goes into great detail in explaining the vitiated: standard of care, why the actions of the defendant physician constituted a breach of the standard, and “how If the clinical situation in which the and why the breach caused the injury based on the facts surgeon finds himself and the presented.” Jelinek, 328 S.W.3d at 539–40. The report patient allows only inadequate does not contain mere conclusions of the expert. Quite the internal fixation, the surgeon is contrary. As to causation, for example, the report explains obligated to protect the patient at length the process by which the breach of the standard supplementing the internal fixation of care resulted in the plaintiff’s paralysis: *905 with external bracing and/or activity limitations. My opinion is that performing an anterior only fusion with There are several things to note about this sentence. First, instrumentation without also it does not say that anterior only internal fixation could © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

ever meet the standard of care in treating a patient with during discovery and possibly trial, not as part of a the conditions existing here. Indeed, the sentence does not gatekeeper effort to deter frivolous lawsuits. This is explicitly reference anterior internal fixation at all. It is especially true in light of the fact that the medical records simply a general reference to a hypothetical situation in available to the expert in preparing his report may not which “inadequate internal fixation” is, temporarily, the have reflected whether any such extraordinary only available option under some presumably circumstances existed at the time of the surgery.1 To extraordinary circumstances. Second, whatever the require a report to negate possible defenses at this stage of general references to “clinical situation” and “inadequate the litigation creates an extra-statutory burden and is internal fixation” mean, the report goes on to specify that unfair to both the plaintiff and the medical expert. the defendant breached the standard of care in this case, as to this patient. This is an implicit statement that, to the I believe the expert report in this case constituted a good- best of the expert’s knowledge, there were no faith effort to comply with the definition of an expert extraordinary circumstances in this case. Third, and report, as required by the applicable statutes and supreme perhaps most important, the possible existence of court precedent. Accordingly, I respectfully dissent. extraordinary circumstances that might—or might not— justify the defendant physician’s temporary use of anterior only internal fixation is a matter to be fleshed out

Footnotes 1 The parties have advised us that Richard Hebert died shortly after the Heberts perfected their appeal. As contemplated by rule 7.1 of the rules of appellate procedure, the parties have proceeded on appeal as if all parties are alive, and so have we. See Tex.R.App. P. 7.1(a)(1). 2 See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011) (“In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.”). In the absence of material intervening substantive changes, we have cited the current version of chapter 74 for convenience. 3 See id. (“Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.”). 4 See id. § 74.351(b) (“If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall ... enter an order that: (1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.”); see also id. § 74.351(c) (recognizing that “an expert report has not been served within the period specified by Subsection (a)” when “elements of the report are found deficient”). 5 See id. § 74.351(c).

6 See id. § 74.351(b), (c).

7 See id. § 74.351(b)(1).

8 See id. § 74.351(r)(6). Chapter 74 also imposes requirements regarding the qualifications of the “expert” who may prepare an “expert report,” see id. § 74.351(r)(5), but appellees have not disputed that White meets those standards here. 9 Id. § 74.351(l ).

10 The Heberts acknowledge that Richard’s death during the pendency of this appeal may have terminated his open-courts claim. “[W]rongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to bring either.’ ” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex.2000) (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex.1995)). The Texas Supreme Court also has declined to rule on an open-courts argument in a similar situation when the claimant died during the pendency of the appeal. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (per curiam).

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While we have similar reservations, we will address the Heberts’ open-courts argument to the extent its substance implicates due-process and due-course-of-law protections they have also raised. See, e.g., Bogar v. Esparza, 257 S.W.3d 354, 370 n. 6 (Tex.App.-Austin 2008, no pet.) (noting open-court protections not directly implicated in statutory wrongful-death and survivor action before conducting similar due-process analysis). 11 In their reply brief, the Heberts attempt to distinguish some of these cases on the basis that they involved “a complete failure to file an expert report,” instead of “addressing the legislature’s restriction placed on the courts in deciding the issue” of a report’s sufficiency. However, Texas courts, including this Court, have rejected constitutional challenges where, as here, an expert report was served, but found deficient. See, e.g., Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 520 (Tex. App.-Dallas 2011, pet. denied) (upholding dismissal of deficient reports); Ledesma v. Shashoua, No. 03–05–00454–CV, 2007 WL 2214650, at *7–8 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (same). 12 Classifications that impinge upon the exercise of a fundamental right or distinguish between people on a suspect basis (i.e., race, national origin, and alienage) “are subject[ ] to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (plurality opinion). When a statute burdens a sensitive class or impinges on an important right, the statute is subject to an intermediate level of scrutiny, which requires a showing that the statute is substantially related to an important state interest. Id. at 440–41, 105 S.Ct. 3249. 13 Though the Heberts did not explicitly claim chapter 74 was an unconstitutional special law prohibited by the Texas Constitution, many of their complaints track arguments raised by parties who have raised such claims. Accordingly, we find cases addressing special-law challenges instructive. 14 The Heberts also argue that chapter 74 “effectively revives the general demurrer practice which permitted judges to dismiss cases on the pleadings.” They argue that summary judgment is the preferred method for defendants to obtain a dismissal on the merits. Our rules of procedure prohibit the use of general demurrers. Tex.R. Civ. P. 90. However, “[w]hen a rule of procedure conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute....” Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000) (per curiam). The current version of chapter 74 was passed in 2003 and amended in 2005; rule 90 was approved in 1940 and amended in 1980. Thus, to the extent chapter 74 and rule 90 conflict, chapter 74 controls. See Mitchell v. Berry, No. 05–06–01328–CV, 2007 WL 4111923, at *4 (Tex.App.-Dallas Nov. 20, 2007, pet. denied) (mem. op.) (rejecting argument Tex. Civ. Prac. & Rem.Code Ann. § 13.001 allowing for dismissal in inability-to- pay cases was a general demurrer in contravention of Rule 90); see also Smalling v. Gardner, 203 S.W.3d 354, 367 n. 8 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (distinguishing dismissal under general demurrer from dismissal for failure to serve expert report). 15 The Heberts make passing reference to infringement of their right to trial by jury, but provide no authority or argument in support of any challenge based on that provision that is distinct from their other arguments. To the extent the Heberts intended to advance a distinct challenge based on their right to jury trial, it too would fail. The right to a jury trial is not an absolute right in civil cases, but is subject to certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 738 (Tex.App.-San Antonio 1999, no pet.) (citing Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d 344, 346 (Tex.Civ.App.-Dallas 1968, no writ)). “Imposing the requirement to file an expert report and the failure to meet that requirement allows the trial court to dismiss the case. This dismissal is not based on the merits, but merely operates to dismiss the case on a procedural requirement which is directly related to the statute’s purpose of limiting the number of frivolous suits.” Id. (addressing article 4590i (citing Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 149 (Tex.1982) (holding that failure of plaintiff to fulfill bonding requirement for challenging school board election did not deny taxpayer right to jury trial on merits))). 16 The Heberts point to decisions from other jurisdictions that, in their view, struck down expert-report requirements similar to chapter 74 based on constitutional provisions analogous to the protections on which they rely here. See, e.g., Putman v. Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 216 P.3d 374, 378–79 (2009) (law requiring certificate of merit from expert at time of filing violated separation of powers and right of access as it cut off rights of discovery and abrogated pleading requirements in rules of procedure); Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008) (law requiring certificate of merit violated separation of powers); Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415, 421 (2007) (law requiring expert affidavit within 30 days of suit violated separation of powers); Zeier v. Zimmer, Inc. 152 P.3d 861, 873 (Okla.2006) (law requiring affidavit of merit with petition barred right of access). They also acknowledge that courts in at least two jurisdictions upheld laws similar to chapter 74. See McAlister v. Schick, 147 Ill.2d 84, 167 Ill.Dec. 1021, 588 N.E.2d 1151, 1157–58 (1992); Mahoney v. Doerhoff Surgical Servs. Inc., 807 S.W.2d 503, 512–13 (Mo.1991). Additionally, they favorably cite cases from other jurisdictions that upheld similar laws “so long as the Legislature [does] not direct[ ] the Courts how to decide the legitimacy of the case.” Texas decisions regarding chapter 74 are consistent with that reasoning. See, e.g., Wilson–Everett v. Christus St. Joseph, 242 S.W.3d 799, 803 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (rejecting argument that chapter 74 “interfere[d] with the judiciary’s constitutional power to decide when and how to render judgments”). In any event, cases from other jurisdictions have no precedential value for this Court. Instead, we are bound to follow the Supreme Court of Texas and

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our own precedent, as well as the persuasive cases of our sister courts. Texas authorities have consistently rejected constitutional challenges similar to those advanced by the Heberts. 1 Medical issues, like legal ones, are seldom black and white. One can imagine a hypothetical conversation between a plaintiff’s attorney and the plaintiff’s medical expert, in which the expert says something like, “In the overwhelming majority of cases like this, the standard of care is X. But I have to be candid: in a very small percentage of such cases, extraordinary circumstances may call for a different treatment approach. Nothing in the medical records I have seen indicates that such extraordinary circumstances existed in this case, but I would not be completely honest if I did not at least mention that possibility.”

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*529 Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez, L.L.P., McAllen, for Michael T. Jelinek, M.D. 328 S.W.3d 526 Supreme Court of Texas. John N. Mastin, San Antonio, Francisco J. Rodriguez, Michael T. JELINEK, M.D. and Columbia Rio Rodriguez Tovar & Lopez, LLP, McAllen, for Francisco Grande Healthcare, L.P. d/b/a Rio Grande Casas. Regional Hospital, Petitioners, Mike A. Hatchell, Sarah B. Duncan, Elissa Gail v. Underwood, Locke Lord Bissell & Liddell, LLP, Austin, Francisco CASAS and Alfredo DeLeon, Jr., as Raul Javier Guerra, Green, DuBois & Guerra, San Personal Representatives of the Estate of Eloisa Antonio, Susan A. Kidwell, Locke Lord Bissell & Casas, Deceased, Respondents. Liddell, LLP, Austin, for Columbia Rio Grande No. 08–1066. | Argued Feb. 18, 2010. | Decided Dec. Healthcare, L.P. 3, 2010. Opinion

Synopsis Justice GUZMAN delivered the opinion of the Court, in Background: Patient’s surviving family members which Justice HECHT, Justice WAINWRIGHT, Justice brought medical malpractice action against hospital and MEDINA, Justice JOHNSON, and Justice WILLETT physician, arising out of treatment of patient at hospital. joined, and in which Chief Justice JEFFERSON, Justice Following non-suiting of physician, and following jury GREEN, and Justice LEHRMANN joined as to Parts I trial, the 275th District Court, Hidalgo County, Juan R. and II.A. Partida, J., entered judgment for family members. Hospital and physician appealed. The Corpus Christi When circumstantial evidence is consistent with several Court of Appeals, 2008 WL 2894889, affirmed. Hospital possible medical conclusions, only one of which and physician petitioned for review. establishes that the defendant’s negligence caused the plaintiff’s injury, an expert witness must explain why, based on the particular facts of the case, that conclusion is Holdings: The Supreme Court, Guzman, J., held that: medically superior to the others. If the expert fails to give any reason beyond an unsupported opinion, the expert’s [1] testimony is legally insufficient evidence of causation. In lay testimony of family members did not present some evidence in support of finding that hospital’s alleged this case, we determine whether legally sufficient negligence caused patient’s additional pain and suffering; evidence supports the jury’s verdict in favor of the estate of Eloisa Casas1 against Rio Grande Regional Hospital [2] (the Hospital).2 Following her admission to the Hospital expert testimony did not present some evidence in support of finding that hospital’s alleged negligence with abdominal pain, doctors placed Casas on antibiotics caused patient’s additional pain and suffering; and used to treat and prevent certain intra-abdominal infections. Two days later she underwent major [3] abdominal surgery and continued on the antibiotics for expert report was conclusory with regard to causation and, thus, was deficient. another five days, but the Hospital allowed the prescriptions to lapse for four-and-a-half days. The Hospital admits it should have continued the antibiotics Reversed and rendered in part; reversed and remanded in but denies that the lapse caused Casas any additional pain. part. We hold that the Casases failed to present legally sufficient evidence that Casas suffered from an infection Jefferson, C.J., dissented in part, and filed opinion in the omitted antibiotics would have treated. Accordingly, which Green and Lehrmann, JJ., joined. we reverse the court of appeals’ judgment and render judgment that the Casases take nothing.3 Lehrmann, J., filed opinion dissenting in part. In a separate petition, Dr. Michael Jelinek, one of Casas’s treating physicians sued by the Casases, argues that the Attorneys and Law Firms trial court should have granted his motion for sanctions and dismissal because the Casases’ expert report was deficient. We agree and hold that an award of attorney’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

fees is proper. Therefore, we reverse and remand to the on July 23, he informed Casas and then prescribed trial court for an award of attorney’s fees and costs. different antibiotics, Levaquin and Vancomycin. On July 25, after a CAT scan showed no abscess, Dr. Garcia– Cantu removed the drain. Casas left the Hospital on August 23, but she returned in early September and died two months later. *530 I. Background In May 2003, several members of Casas’s family, In 2000, Eloisa Casas was diagnosed with colon cancer including her husband and son, filed suit against the and underwent surgery, radiation, and chemotherapy. A Hospital, Dr. Garcia–Cantu, and Dr. Jelinek. The year later, doctors told her that the cancer appeared to be plaintiffs claimed that the defendants’ negligence caused in remission, and she thought she was cured. But on July Eloisa Casas to “suffer grievous embarrassment and 10, 2001, she was admitted to the Hospital with humiliation, as well as excruciating pain the remainder of abdominal pains; she also had a fever and a mildly her life which she would not have suffered to such degree elevated white-blood-cell count, potentially indicating an or extent if properly diagnosed, treated and cared for.” infection. To treat this possible infection, her surgeon and The plaintiffs sought to recover damages for Casas’s primary physician, Dr. Carlos Garcia–Cantu, consulted injuries and mental anguish. They twice amended their with an infectious disease specialist at the Hospital, Dr. petition, ultimately leaving the Casases as the sole Michael Jelinek, who on July 11 prescribed two plaintiffs. medications, Maxipime (a broad-spectrum antibiotic), and Flagyl (an antibiotic used to treat anaerobic bacteria). *531 As required by former article 4590i § 13.01 of the Medical Liability and Insurance Improvement Act, see The Hospital performed several diagnostic tests, which TEX.REV.CIV. STAT. art. 4590i § 13.01,5 the Casases revealed abnormal collections of fluid in Casas’s filed an expert report within 180 days of filing the original abdomen. On July 13, she underwent major abdominal petition. In the report, Dr. John Daller opined that Dr. surgery during which Dr. Garcia–Cantu discovered that Garcia–Cantu and Dr. Jelinek were negligent in failing to “fairly extensive” metastatic cancer had perforated discover that the antibiotics were not being given to Casas Casas’s colon and allowed material to leak into her and that within “reasonable medical probability” this abdominal cavity, causing an intra-abdominal abscess. Dr. negligence resulted in a prolonged hospital stay and Garcia–Cantu drained the abscess, repaired Casas’s colon, increased pain and suffering. Dr. Jelinek later filed a and inserted a Jackson–Pratt drain to prevent further motion for sanctions and dismissal under article 4590i § problems. Following the surgery, Dr. Garcia–Cantu 13.01(e), alleging that the expert report was deficient continued the Maxipime and Flagyl prescriptions, and a because, among other things, it failed to explain any culture of the removed abscess revealed an E. coli causal connection between the negligence and the infection, which is effectively treated with Maxipime. purported injury. The trial court denied the motion. Casas received Maxipime and Flagyl for another five Before trial began, however, the Casases nonsuited Dr. days, but hospital staff inadvertently failed to place a Jelinek and Dr. Garcia–Cantu. prescription renewal form on Casas’s chart, resulting in a four-and-a-half-day period between July 18 and 23 during At trial, Dr. Daller testified as the Casases’ medical which Casas did not receive either medication. Even so, expert. During direct examination, he analyzed the Casas never tested positive for E. coli again and a culture Hospital’s daily patient notes regarding Casas and of the incision site on July 18 instead grew Candida (a identified the significant events. He noted changes in fungus) for which Diflucan (an antifungal) was Casas’s vital signs on July 21 and 22, such as increased prescribed. Then, on July 21, a second culture from a heart rate and temperature, inflammation, and tenderness blood sample grew coagulase-negative staph, for which of the surgery site. Dr. Daller stated that “in medical Vancomycin was prescribed.4 Neither Maxipime nor probability” there was an infection in the abdomen, but on Flagyl would have treated the Candida or coagulase- cross-examination he admitted that “there was no negative staph infection. objective evidence present to demonstrate that intra- abdominal infection.” When reviewing the patient notes On July 23, Dr. Garcia–Cantu noted an abscess in the for July 24, which noted the presence of a foul smell, he wound, which he drained by removing the staples and suggested that the smell was consistent with an anaerobic opening the wound. The next day, records indicate that a infection that would be difficult to culture because foul smell was emanating from the wound site, and anaerobic bacteria die when exposed to air. Dr. Carl hospital staff brought fans into the room to dissipate the Berkowitz, the Hospital’s expert, offered several other odor. When Dr. Jelinek learned of the lapsed prescription

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explanations for the smell, such as the Candida infection A. Sufficiency of the Evidence [1] or dying tissue. The facts of this case are unfortunate: a woman with advanced colon cancer underwent surgery to repair her The Casases also called Casas’s relatives to testify about cancer-perforated and infected colon, and in the course of her condition. Consistent with Dr. Daller’s testimony, treatment for her many symptoms the Hospital failed to Casas’s son linked the smell with the opening of the renew her antibiotic prescriptions for a four-and-a-half- wound to drain the abscess: “The odor that I noticed was day period. The Hospital admits it should have continued after they had taken out the staples on her incision, and the antibiotics. Even so, the plaintiff bears the burden to one day that I went to see her as soon as they opened the prove that the negligence caused an injury: “[A]t trial the door the whiff of this putrid smell just engulfed me.” He plaintiff must establish two causal nexuses in order to be also testified that Casas was upset upon learning that she entitled to recovery: (a) a causal nexus between the had not received the antibiotics but was even more upset defendant’s conduct and the event sued upon; and (b) a when the incision had to be opened and drained: “Well, causal nexus between the event sued upon and the after she was told and I was told that she wasn’t getting plaintiff’s injuries.” Morgan v. Compugraphic Corp., 675 antibiotics, like I said, she was upset. What really upset S.W.2d 729, 731 (Tex.1984). Only the second nexus is at her more was when they had to—they had to take out the issue here. staples out of her incision, and they had to open her [2] [3] [4] incision up again.” Casas’s husband testified that, while In City of Keller v. Wilson, we considered at she was upset and did not trust the nurses or doctors after length the parameters of legal sufficiency review, quoting learning of the lapsed prescription, “she was still fighting. with approval Chief Justice Calvert’s seminal article on She ... wanted to beat this cancer she had.” The son the topic: testified that Casas did not lose hope until she witnessed the events of September 11, 2001, following her re- “No evidence” points must, and admission to the Hospital: “That’s why I remember that may only, be sustained when the day so vividly in my mind because that was the turning record discloses one of the point in my mom. She seemed to just give up, not fight, following situations: (a) a complete not want to fight anymore like she used to. And that was a absence of evidence of a vital fact; very, very sad day.” (b) the court is barred by rules of law or of evidence from giving *532 The jury found that the negligence of the Hospital, weight to the only evidence offered Dr. Jelinek, and Dr. Garcia–Cantu proximately caused to prove a vital fact; (c) the Casas’s injury. The jury apportioned ninety percent of the evidence offered to prove a vital negligence to the Hospital, five percent to Dr. Jelinek, and fact is no more than a mere five percent to Dr. Garcia–Cantu. It awarded $250,000 in scintilla; (d) the evidence damages to the Casases as compensation for Casas’s pain establishes conclusively the and mental anguish. opposite of the vital fact.

The Hospital appealed, arguing that the evidence was 168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W. legally and factually insufficient to prove causation or Calvert, “No Evidence” and “Insufficient Evidence” damages for mental anguish. Dr. Jelinek also appealed, Points of Error, 38 TEX. L.REV. 361, 362–63 (1960)). challenging the trial court’s denial of his motion for “When the evidence offered to prove a vital fact is so sanctions and dismissal. The court of appeals affirmed on weak as to do no more than create a mere surmise or all issues. ––– S.W.3d ––––. suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The same is true when the evidence equally supports two alternatives: “ ‘When the circumstances are equally II. Analysis consistent with either of two facts, neither fact may be inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting We address in turn the two issues raised in this appeal: the Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 legal sufficiency of the causation evidence and the S.W.2d 801, 805 (Tex.1991)). When considering such sufficiency of the Casases’ expert report. cases, “we must ‘view each piece of circumstantial evidence, not in isolation, but in light of all the known circumstances,’ ” id. at 813–14 (quoting Lozano v. Lozano, 52 S.W.3d 141, 167 (Tex.2001) (per curiam)),

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and we “must consider not just favorable but all the recognized treatment, unless he proves by a doctor of the circumstantial evidence, and competing inferences as same school of practice as the defendant: (1) that the well.” Id. at 814. diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate [5] To meet the legal sufficiency standard in medical cause of the patient’s injuries.”). We have allowed lay malpractice cases “plaintiffs are required to adduce evidence to establish causation “in those cases in which evidence of a *533 ‘reasonable medical probability’ or general experience and common sense will enable a ‘reasonable probability’ that their injuries were caused by layman to determine, with reasonable probability, the the negligence of one or more defendants, meaning causal relationship between the event and the condition.” simply that it is ‘more likely than not’ that the ultimate Morgan, 675 S.W.2d at 733 (citing Lenger v. Physician’s harm or condition resulted from such negligence.” Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970)). Care Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399– must be taken to avoid the post hoc ergo propter hoc 400 (Tex.1993) (citations omitted). Thus, we examine the fallacy, that is, finding an earlier event caused a later record to determine if the Casases presented legally event merely because it occurred first. Stated simply, sufficient evidence that “in reasonable medical correlation does not necessarily imply causation. As we probability” the Hospital’s negligence caused Casas noted in Guevara, “[e]vidence of an event followed additional pain and suffering. closely by manifestation of or treatment for conditions which did not appear before the event raises suspicion When distilled to its essence, the Casases’ claim is that the event at issue caused the conditions. But predicated on the presence of an infection—treatable by suspicion has not been and is not legally sufficient to the lapsed antibiotics—that caused Casas pain and mental support a finding of legal causation.” 247 S.W.3d at 668. anguish above and beyond that caused by the cancer, the [10] surgery, and the other known infections. The absence of When lay testimony is credited as evidence of an infection treatable by Maxipime and Flagyl would causation, it usually highlights a connection between two undermine the Casases’ claim, for then the prescription events that is apparent to a casual observer. In Morgan, lapse would amount to an unfortunate, but harmless, for example, a previously healthy employee, upon occurrence. The Hospital argues that the Casases exposure to leaking chemicals, suffered watering of the presented no evidence that the Hospital’s negligence eyes, blurred *534 vision, headaches, and swelling of the caused such an infection. The Casases’ expert admitted breathing passages. 675 S.W.2d at 733. In such a there is no direct evidence of an anaerobic infection, circumstance, lay testimony sufficed to connect the leaving the jury to consider the circumstantial evidence specific injury to the negligence with no evidence of and make proper inferences from it. In reviewing the causation beyond the leaking chemicals. Id. Likewise in record, we initially decide if jurors can determine Guevara, we stated that determining causation of “certain causation under these facts unaided by expert testimony— types of pain, bone fractures, and similar basic that is, whether lay testimony regarding causation is conditions” following an automobile accident was within legally sufficient. the competence of lay jurors. 247 S.W.3d at 668. But we held that expert testimony was required to prove that a patient’s medical expenses resulted from the accident, noting that “[p]atients in hospitals are often treated for more than one condition brought on by causes 1. Lay Testimony of Causation independent of each other.” Id. at 669. These cases [6] [7] [8] [9] illustrate this basic premise: “[N]on-expert evidence alone Lay testimony may be used as evidence of is sufficient to support a finding of causation in limited causation in certain circumstances, but “[w]hen expert circumstances where both the occurrence and conditions testimony is required, lay evidence supporting liability is complained of are such that the general experience and legally insufficient.” City of Keller, 168 S.W.3d at 812. In common sense of laypersons are sufficient to evaluate the medical malpractice cases, expert testimony regarding conditions and whether they were probably caused by the causation is the norm: “The general rule has long been occurrence.” Id. at 668. that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and The present case does not fall within this rule. Unlike in experience of jurors.” Guevara v. Ferrer, 247 S.W.3d Morgan, an otherwise healthy person did not suddenly 662, 665 (Tex.2007); see also Bowles v. Bourdon, 148 experience health difficulties following the defendant’s Tex. 1, 219 S.W.2d 779, 782 (1949) (“It is definitely negligent conduct when the plaintiff’s symptoms were settled with us that a patient has no cause of action against reasonably attributable to the negligence and to nothing his doctor for malpractice, either in diagnosis or else. Rather, a patient with terminal colon cancer did not © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

receive antibiotics for four-and-a-half days following husband and son is evidence of her suffering, but not of major abdominal surgery and after having received the its cause. Thus, we hold that the lay testimony presented medications for eight days. There is no direct evidence by the Casases is legally insufficient to establish that the that she suffered from an infection treatable by the Hospital’s negligence caused Casas additional pain and omitted antibiotics, but there is evidence that she had two suffering. other infections that accounted for all of her symptoms during that time. Given Casas’s medical condition, expert testimony was crucial to link the prescription lapse to an infection causing additional pain and suffering beyond what she would otherwise have experienced. See Kaster v. 2. Expert Testimony Woodson, 123 S.W.2d 981, 983 (Tex.Civ.App.-Austin [11] 1938, writ ref’d) (“What is an infection and from whence The Casases also presented expert testimony regarding did it come are matters determinable only by medical causation. The Casases’ expert, Dr. Daller, testified that experts.”); see also Hart v. Van Zandt, 399 S.W.2d 791, the Hospital’s negligence “in medical probability” caused 792 (Tex.1966) (“In determining negligence in a case Casas additional pain and suffering. He based this opinion such as this, which concerns the highly specialized art of on the presence of an intra-abdominal infection that could treating disease, the court and jury must be dependent on have been treated using Maxipime and Flagyl. Admitting expert testimony. There can be no other guide, and where that no direct evidence indicated such an infection, Dr. want of skill and attention is not thus shown by expert Daller pointed to various circumstantial indicators that evidence applied to the facts, there is no evidence of it suggested an infection. These indicators were primarily proper to be submitted to the jury.”). Casas’s changed vital signs, such as fever and increased heart rate: “Well, given the fact that two to three days The Casases point to testimony by Casas’s husband and after the antibiotics had been mistakingly [sic] stopped son to support their argument that she deteriorated rapidly her fever curve went up and her heart rate went up, to me after discovering she did not receive the antibiotics. But that suggests the presence of on going [sic] infection.”6 this characterization overstates the evidence. While But on cross-examination, he conceded these data were Casas’s husband testified she was upset and did not trust equally consistent with two other infections cultured from her doctors following the discovery, she was still Casas’s incision and blood—Candida and coagulase— determined to fight her cancer. The son also observed negative staph—neither of which is treatable by Casas’s anger and lack of trust but testified that the Maxipime or Flagyl: opening of her wound, which occurred the same day she learned of the lapse, upset her even more. As Dr. Daller Q. Now, Candida, infection of a wound like this, they admitted, Candida likely caused the abscess that required can cause high temperatures. Correct? Dr. Garcia–Cantu to drain the wound. Further, based on his experience at Casas’s bedside, her son pinpointed the A. Fungal infections can cause a high temperature, tragic events of September 11, 2001, and their effect on yes. his mother as the turning point in her mental state. The latter event was some seven weeks after discovery of the Q. It can cause increased heart rate? lapsed prescriptions and after Casas’s discharge from and re-admission to the Hospital. This evidence does not bear A. That is correct. out the Casases’ claim of a marked shift in Casas’s mental resilience following the omission of the medications. Q. And inflammation?

*535 More importantly, Casas’s husband and son were A. That is correct. unable to precisely identify the cause of her suffering. While they could accurately describe her discomfort, they Q. Pain? were unable to say if it was the cancer, the surgery, the A. That is correct. other infections, or the lapse that caused it. Even testimony that Casas suffered after learning of the Q. How about an abscess? omission raises no more than a mere suspicion of causation, and that is not enough, see Guevara, 247 A. It caused or is part of the abscess in that wound S.W.3d at 668, particularly in light of the evidence that that was present, that wound infection that needed to Casas thought she was cured of cancer before the surgery be opened. and then learned that not only was it “back with a vengeance,” it was terminal. The testimony of Casas’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

Q. So when Doctor Garcia went in on 7/23 ... and defendant’s negligence. The expert must explain why the drained that wound at bedside that abscess was inferences drawn are medically preferable to competing within a reasonable degree of medical probability inferences that are equally consistent with the known caused by the Candida? facts. Thus, when the facts support several possible conclusions, only some of which establish that the *536 A. That was one of the organisms that was defendant’s negligence caused the plaintiff’s injury, the there. It was the organism that was cultured. That is expert must explain to the fact finder why those correct. conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion. See Lenger, .... 455 S.W.2d at 707 (“[E]xpert testimony that the event is a possible cause of the condition cannot ordinarily be Q. ... This coagulase negative staph causes fever? treated as evidence of reasonable medical probability except when, in the absence of other reasonable causal A. Correct. explanations, it becomes more likely than not that the Q. Increased heart rate? condition did result from the event.”); Hart, 399 S.W.2d at 792 (“The burden of proof is on the plaintiff to show A. The fever will cause increased heart rate. that the injury was negligently caused by the defendant and it is not enough to show the injury together with the .... expert opinion that it might have occurred from the doctor’s negligence and from other causes not the fault of Q. It can cause pain? the doctor. Such evidence has no tendency to show that negligence did cause the injury.”). A. Depending upon the site. Correct. By conceding that Casas’s symptoms were consistent Q. Okay. All of these things can be caused by with infections not treatable by Maxipime or Flagyl, Dr. coagulase negative staph and Candida, which we Daller undermined his conclusion that an undetected know were present 7/18 through 7/23, the time infection was also present. While it is possible that Casas period she did not get antibiotics? did have such an infection, its presence can only be inferred from facts that are equally consistent with the A. That’s correct. Candida and coagulase-negative staph infections. “ Q. Neither one would have been killed by Maxipime ‘When the circumstances are *537 equally consistent with or Flagyl? either of two facts, neither fact may be inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting Tubelite, 819 S.W.2d A. That’s correct. at 805). Here, objective data—the cultures—support the [12] [13] It is not enough for an expert simply to opine that Candida and staph infections but not the supposed the defendant’s negligence caused the plaintiff’s injury. anaerobic infection.7 The expert must also, to a reasonable degree of medical [14] [15] probability, explain how and why the negligence caused Based on the record evidence, an anaerobic the injury. We have rejected expert opinions not grounded infection cannot be proved or disproved. It is equally in a sound evidentiary basis: “[I]f no basis for the opinion plausible that Casas had such an infection or that she did is offered, or the basis offered provides no support, the not. Dr. Daller opined that she did, but he did not explain opinion is merely a conclusory statement and cannot be why that opinion was superior to the opposite view. Such considered probative evidence, regardless of whether evidence raises no more than a possibility of causation, there is no objection. ‘[A] claim will not stand or fall on which is insufficient. As we said in Bowles v. Bourdon, “ the mere ipse dixit of a credentialed witness.’ ” City of ‘[t]he proof must establish causal connection beyond the San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009) point of conjecture. It must show more than a possibility. (quoting Burrow v. Arce, 997 S.W.2d 229, 235 Verdicts must rest upon reasonable certainty of proof. (Tex.1999)); see also Whirlpool Corp. v. Camacho, 298 Where the proof discloses that a given result may have S.W.3d 631, 637 (Tex.2009) ( “Conclusory or speculative occurred by reason of more than one proximate cause, and opinion testimony is not relevant evidence because it does the jury can do no more than guess or speculate as to not tend to make the existence of material facts more which was, in fact, the efficient cause, the submission of probable or less probable.”). When the only evidence of a such choice to the jury has been consistently condemned vital fact is circumstantial, the expert cannot merely draw by this court and by other courts.’ ” 219 S.W.2d at 785 possible inferences from the evidence and state that “in (quoting Ramberg v. Morgan, 209 Iowa 474, 218 N.W. medical probability” the injury was caused by the 492, 498–99 (1928)).

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when those findings are not supported by credible The Casases argue that the foul smell, which is consistent evidence. When the evidence compels the jury to guess if with an anaerobic infection, is strong evidence of such an a vital fact exists, a reviewing court does not undermine infection. Looking at the patient notes for July 24, Dr. the jury’s role by sustaining a no-evidence challenge. The Daller commented on the smell: evidence in this case—being consistent with an anaerobic infection that was treatable by Flagyl, a fungal infection A. The text says something about drainage to the that was not, or even with dying tissue, cancerous or abdomen with moderate amount of drainage. And it otherwise—did not provide the jury a reasoned basis from says that it is foul smelling. which to infer the presence of a negligence—induced infection. Because the jury could not reasonably infer an .... infection caused by the Hospital’s negligence, we agree with the Hospital that no evidence supports the jury’s Q. The [previous notes] that I remember that we have verdict. gone over didn’t say anything about foul smelling? We understand the Casas family’s predicament and A. That’s correct. They were just described as I recall frustration at the Hospital’s conduct, and we recognize the as being purulent and looking like puss [sic]. difficulty of proving that the lapsed prescriptions caused a Q. What does that mean when it says “foul smelling”? painful infection. But the Casases shouldered that burden and must prove the causal link with reasonable certainty. A. When you have foul smelling, it suggests that the In that quest, the Casases offered the testimony of Dr. organism is an anaerobe. In other words, one of those Daller, but he did not explain why an undetected, bacteria that didn’t need oxygen in order to grow that, anaerobic infection is medically more probable than one for example, Flagyl would treat. based on the known infections and the dying tissue, leaving the jury to guess if the lapsed prescriptions caused Q. Okay. Does that give you clinical evidence that had additional pain and suffering. Without probative medical she been continued on Maxipime and Flagyl that they testimony that the lapse caused—by means of an infection would have had some effect with regards to the treatable by Maxipime and Flagyl—more pain than the condition as we see it on the 24th? cancer, the surgery, and the other infections already inflicted, there is no legally sufficient evidence of A. Well, like I said, most anaerobes are sensitive or causation. Dr. Daller did not provide that causal link; susceptible to Flagyl. And she had previously been on accordingly, we hold that his testimony is legally Flagyl and at this time she is not. So I would have insufficient to support the jury’s verdict. Because the expected that that would be an appropriate antibiotic Casases failed to prove causation, we reverse the that would have covered the organism that’s causing judgment of the court of appeals and render judgment that that foul smell. the Casases take nothing.

Dr. Berkowitz, the Hospital’s expert, offered several other explanations for the smell, including necrotic tissue, dead cancer tissue, and the Candida infection.8 As *538 noted, B. Adequacy of the Expert Report [18] [19] Casas’s son noticed the smell after the incision was In his petition, Dr. Jelinek raises a single issue: opened to drain the abscess, which Dr. Daller admitted whether the trial court abused its discretion by denying was likely caused by Candida. his motion for sanctions and dismissal because the Casases’ expert report was deficient under former article [16] [17] Here again, there are competing explanations for 4590i § 13.01, the statute in effect at the time. See the smell, which amounts to no more than circumstantial TEX.REV.CIV. STAT. art. 4590i § 13.01. Article 4590i evidence of some kind of infection or possibly dying required the report to provide “a fair summary of the tissue. Because there is no direct evidence of the infection expert’s opinions as of the date of the report regarding and the circumstantial evidence is meager, we “must applicable standards of care, the manner in which the care consider not just favorable but all the circumstantial rendered by the physician or health care provider failed to evidence, and competing inferences as well.” City of meet the standards, and the causal relationship between Keller, 168 S.W.3d at 814. Courts should not usurp the that *539 failure and the injury, harm, or damages jury’s role as fact finder, nor should they question the claimed.” Id. § 13.01(r)(6). “If a plaintiff timely files an jury’s right to believe one witness over another. But when expert report and the defendant moves to dismiss because reviewing a verdict for sufficiency of the evidence, courts of the report’s inadequacy, the trial court must grant the need not—indeed, must not—defer to the jury’s findings motion ‘only if it appears to the court, after hearing, that

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the report does not represent a good faith effort to comply Palacios element—it does not give the trial court any with the definition of an expert report in Subsection (r)(6) reasonable basis for concluding that the lawsuit has merit. of this section.’ ” Bowie Mem’l Hosp. v. Wright, 79 See 46 S.W.3d at 879. An expert’s conclusion that “in S.W.3d 48, 51–52 (Tex.2002) (per curiam) (quoting § medical probability” one event caused another differs 13.01(l )). Dismissal for failure to serve an adequate little, without an explanation tying the conclusion to the expert report also carried mandatory sanctions, requiring facts, from an ipse dixit, which we have consistently an award to the defendant of his costs and attorney’s fees criticized. See Pollock, 284 S.W.3d at 818 (citing Burrow, against the plaintiff or the plaintiff’s attorney. See Am. 997 S.W.2d at 235); Earle, 998 S.W.2d at 890 (“An Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 expert’s simple ipse dixit is insufficient to establish a S.W.3d 873, 877 (Tex.2001) (citing § 13.01(e)). matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.”). Instead, [20] [21] We have defined a “good-faith effort” as one that the expert must go further and explain, to a reasonable provides information sufficient to (1) “inform the degree, *540 how and why the breach caused the injury defendant of the specific conduct the plaintiff has called based on the facts presented. While we have said that no into question,” and (2) “provide a basis for the trial court “magical words” need be used to meet the good-faith to conclude that the claims have merit.” Wright, 79 requirement, mere invocation of the phrase “medical S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). All probability” is likewise no guarantee that the report will information needed for this inquiry is found within the be found adequate. See Wright, 79 S.W.3d at 53. four corners of the expert report, which need not “marshal all the plaintiff’s proof” but must include the expert’s Under these standards, the Casases’ report is conclusory opinion on each of the three main elements: standard of on causation. It offers no more than a bare assertion that care, breach, and causation. Id. Importantly for this case, Dr. Jelinek’s breach resulted in increased pain and the “report cannot merely state the expert’s conclusions suffering and a prolonged hospital stay. Beyond that about these elements,” but “ ‘the expert must explain the statement, the report offers no explanation of how the basis of his statements to link his conclusions to the breach caused the injury. Again, the plaintiff need not facts.’ ” Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 marshal all of his proof in the report, but he must include (Tex.1999)). “A report that merely states the expert’s sufficient detail to allow the trial court to determine if the conclusions about the standard of care, breach, and claim has merit. Because the Casases’ report lacks any causation” does not fulfill the two purposes of a good- explanation linking the expert’s conclusion to the relevant faith effort. Palacios, 46 S.W.3d at 879. facts, we hold that the trial court abused its discretion by denying Dr. Jelinek’s motion and the court of appeals [22] [23] We review the trial court’s grant or denial of a erred by affirming that ruling.9 See id. at 52. Accordingly, motion for sanctions and dismissal under the abuse-of- we remand the case to the trial court for an award of discretion standard. Palacios, 46 S.W.3d at 877–78. A attorney’s fees and costs10 under former article 4590i § district court “abuses its discretion if it acts in an arbitrary 13.01(e) against the Casases and their counsel.11 or unreasonable manner without reference to any guiding rules or principles.” Wright, 79 S.W.3d at 52 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)). *541 III. Conclusion Dr. Jelinek argues that the Casases’ report is deficient in two ways, failing (1) to state the applicable standard of For the foregoing reasons, we reverse the court of care, and (2) to provide more than conclusory statements appeals’ judgment, render judgment that the Casases take of causation. We focus on the latter. Dr. Daller’s report nothing, and remand to the trial court for an award of Dr. concluded that Dr. Jelinek’s breach of the appropriate Jelinek’s attorney’s fees and costs consistent with this standard of care in “reasonable medical probability, opinion. resulted in a prolonged hospital course and increased pain and suffering being experienced by Ms. Casas.” Aside from repeating essentially the same phrase twice more, the report says nothing more regarding causation. The Chief Justice JEFFERSON filed an opinion, dissenting in Casases argue this statement is sufficient to meet the part, in which Justice GREEN and Justice LEHRMANN good-faith requirement. We disagree. joined.

An expert cannot simply opine that the breach caused the Justice LEHRMANN filed an opinion, dissenting in part. injury. Stated so briefly, the report fails the second

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Chief Justice JEFFERSON, joined by Justice GREEN and Dr. Jelinek and the hospital appealed the trial court’s Justice LEHRMANN, dissenting in part. judgment. The hospital complained that the evidence was legally insufficient to support the verdict. Dr. Jelinek We must decide whether an expert report gave a “fair complained that the trial court improperly denied him summary” of the expert’s opinions regarding standard of attorney’s fees, as the expert report was not a good faith care, failure to meet the standard, and the link between effort to comply with statutory requirements. The court of that failure and the patient’s damages. We must consider appeals affirmed, 2008 WL 2894889, *9–*10, 2008 the expert’s opinions “as of the date of the report.” Tex.App. LEXIS 5647, *28–*29 (Tex.App.-Corpus TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6) (repealed Christi July 29, 2008), and the appellants below are now 2003). To do so, we must disregard today’s holding that, petitioners here. I fully join the *542 Court’s rendition of at trial, there was no evidence linking the discontinuation judgment for the hospital. I disagree with the Court’s of antibiotics to increased suffering by Casas. The expert holding as to the doctor. report submitted in this case gave fair notice of a meritorious claim—that the doctor failed to ensure that his patient received antibiotics, thereby increasing her pain and suffering. I would affirm the court of appeals’ II. Good faith effort; fair summary judgment with respect to the doctor. Former article 4590i provided that “[a] court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does I. Background not represent a good faith effort to comply with the definition of an expert report in [the statute].” Eloisa Casas, a patient recently diagnosed with colon TEX.REV.CIV. STAT. art. 4590i § 13.01(l ). “That cancer, was admitted to Rio Grande Hospital for definition requires, as to each defendant, a fair summary abdominal pain. The cancer had perforated her colon, the of the expert’s opinions about the applicable standard of contents of which leaked into her abdominal cavity, care, the manner in which the care failed to meet that causing an abscess. After the doctor drained and standard, and the causal relationship between that failure surgically removed the abscess, he discovered that Casas and the claimed injury.” Am. Transitional Care Ctrs. of had an E. coli infection, for which the doctor prescribed Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) two antibiotics. Although those prescriptions were (citing TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6)). supposed to have been renewed five days later, they Because an expert report is filed long before discovery is lapsed. Casas contends this mistake occurred because the complete, we cannot judge it according to what doctor failed to ensure that hospital staff complied with subsequent discovery reveals or how the evidence his renewal order. During the four days after the develops at trial. The question is whether the report fairly prescriptions expired, Casas’s surgical incision began to summarizes the malpractice elements before the case is emit a putrid odor. She developed several infections in tested in a full adversary process. For that reason, “to addition to E. coli, exacerbating her pain and extending avoid dismissal, a plaintiff need not present evidence in her stay in the hospital. Casas died two months after she the report as if it were actually litigating the merits. The was discharged. report can be informal in that the information in the report does not have to meet the same requirements as the Casas’s estate sued the Hospital and two of the treating evidence offered in a summary-judgment proceeding or at doctors, Dr. Garcia–Cantu and Dr. Jelinek, for negligently trial.” Id. at 879. causing Mrs. Casas “grievous embarrassment and humiliation, as well as excruciating pain the remainder of The report must also give the defendant notice of the her life which she would not have suffered to such degree conduct the plaintiff challenges, and the trial court must if properly diagnosed, treated and cared for....” The trial have a basis to determine whether the claim has merit. Id. court denied Dr. Jelinek’s motion to dismiss the case The dividing line between a sufficient and an inadequate against him. Nevertheless, the estate nonsuited both report is impossible to draw precisely. We have said, doctors more than a year before Casas’s claim against the therefore, that the determination must be made in the first Hospital was tried to a jury. At that trial, the jury found instance by the trial court, and review of that decision the hospital 90% negligent, and each doctor 5% negligent. asks not how an appellate court would have resolved the The trial court rendered judgment against the hospital, issue, but instead whether the trial court abused its and the court’s order non-suiting Dr. Jelinek “with discretion. See, e.g., Jernigan v. Langley, 195 S.W.3d 91, prejudice” merged into that final judgment. 93 (Tex.2006); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003).

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did not abuse its discretion by dismissing the plaintiff’s claim for lack of a good faith effort to summarize the expert’s opinions. III. Dr. Daller’s report Subsequently, in Bowie Memorial Hospital v. Wright, we Dr. Daller is a physician and an expert on intra-abdominal held that the trial court did not abuse its discretion in abscesses and infection. His report states that a doctor concluding that an expert report failed to comply with the treating a patient like Casas must ensure that the statute, as the report did not “establish how any act or antibiotics he prescribes are actually administered. omission of employees of Bowie Memorial Hospital Despite that standard, Dr. Daller states that antibiotics caused or contributed to [the patient’s] injuries.” See prescribed for Ms. Casas were not administered from July Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–53 17 through July 23, even though “[t]here [wa]s no order (Tex.2002) (quoting the expert in that case as speculating, to discontinue the antibiotic therapy.” He concluded that “I do believe that it is reasonable to believe that if the x- Dr. Jelinek breached the standard of care by his “failure to rays would have been correctly read and the appropriate recognize that the antibiotics were not being administered medical personnel acted upon those findings then [the as ordered.” Dr. Daller concludes that “[t]his breach in the plaintiff] would have had the possibility of a better standard of care ..., within reasonable medical probability, outcome.”). We observed that a report must satisfy resulted in a prolonged hospital course and increased pain Palacios’s two-part test. Id. at 52. Because the report and suffering....” “lack[ed] information linking the expert’s conclusion (that [the plaintiff] might have had a better outcome) to [the defendant’s] alleged breach (that it did not correctly read and act upon the x-rays), the trial court could have IV. Dr. Daller gave a “fair summary” of the required reasonably determined that the report was conclusory.” standard of care and how the allegedly inadequate Id. at 53. care fell below that standard. In each of those cases, the trial court could not have The Court concludes that Dr. Daller’s report lacks the evaluated the claim’s merit without speculating about detail necessary to conclude that the estate’s lawsuit has actions the defendant could have taken to prevent injury. merit. But the cases it cites as support involve situations No such speculation is required here. Dr. Daller states that in which a hindsight view is entirely appropriate. Earle v. had the antibiotics been administered from July 17 Ratliff, for example, is a summary judgment case; it through July 23, Eloisa Casas would have suffered less. presents the higher evidentiary standard that Palacios Dr. Daller could have stated that conclusion in greater rejected for expert reports. Earle v. Ratliff, 998 S.W.2d detail, of course, but “[a] report need not marshal all the 882, 890 (Tex.1999) (“Summary judgment can be granted plaintiff’s proof.” Palacios, 46 S.W.3d at 878. Daller’s on the affidavit of an interested expert *543 witness, ... report includes his opinions on (1) the applicable standard but the affidavit must not be conclusory.... [R]ather, the of care (to maintain vigilance over a patient’s treatment), expert must explain the basis of his statements to link his (2) the manner in which the care failed to meet that conclusions to the facts.”). Similarly, the standard standard (failing to ensure the treatment he ordered was employed in City of San Antonio v. Pollock, 284 S.W.3d actually administered), and (3) the causal connection 809, 817–18 (Tex.2009), also cited by the Court, is between the failure and the claimed injury (without the inapplicable here, since it examined an expert report antibiotics, the patient’s pain and suffering increased and under the “no evidence” standard of review. See ––– she required additional hospitalization). S.W.3d at ––––. A “good faith effort” does not require that the report In Palacios we held that an expert report that failed to “meet the same requirements as the evidence offered in a articulate a standard of care or explain how the defendant summary-judgment proceeding or at trial”; therefore, an hospital breached that standard was not a good faith effort expert report does not fail the good faith effort test merely to comply with the statutory requirements. Palacios, 46 because it may not later prove legally sufficient to support S.W.3d at 880. The expert in that case blamed the hospital a judgment. Id. at 879. So, here, whether the Casas estate for taking no action to prevent a patient from falling out ultimately amassed sufficient proof in an adversarial trial of his bed, even though the patient “had a habit of trying is beside the point; the claim itself was far from frivolous. to undo his restraints.” Id. at 879–880. The report, as See id. at 878 (noting that “one purpose of the expert- such, was not a fair summary of the evidence because it report requirement is to deter frivolous *544 claims”). neglected to articulate what actions the hospital should The law imposes a penalty for filing a frivolous suit. Only have taken that it did not. Id. at 880. Thus, the trial court by today’s decree does it also punish a claimant for failing © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

to win an arguably meritorious case. Cf. TransAmerican period provisions of section 13.01(g).” Walker v. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). Thus, health (1991) (holding that “sanctions cannot be used to care claimants could receive an opportunity to rectify adjudicate the merits of a party’s claims or defenses deficiencies in a report if they could show that they did unless a party’s hindrance of the ... process justifies a not intentionally, or with conscious indifference, submit presumption that its claims or defenses lack merit.”). an inadequate report.

I agree with the Court that the Estate failed to prove Here, the Casases never had the chance to request an causation at trial; I disagree that, as to Dr. Jelinek, the opportunity to cure any deficiencies in their report expert report was not a good faith attempt to comply with because the trial court determined that the report the statute. I respectfully dissent in part from the Court’s adequately complied with section 13.01(d). In Gutierrez, judgment. we were guided by our recognition that it would be “perverse” to allow a claimant who filed no report a second chance to comply with the statute’s expert report requirement, while “punishing those who attempt to Justice LEHRMANN, dissenting in part. comply with the statute but fail.” Id. In this case, perversely, the Casases may have been in a better position I fully join Chief Justice Jefferson’s dissent. I write *545 than they are now if the trial court had found that the separately, however, to highlight the incongruity inherent report was inadequate; they might have had an in the Court’s decision to remand the case for an award of opportunity to eliminate any deficiencies. attorney’s fees and costs under former article 4590i § 13.01(e), given this case’s circumstances. See I agree fully with Chief Justice Jefferson that the report TEX.REV.CIV. STAT. art. 4590i § 13.01(e) (repealed represents a good-faith effort to comply with section 2003)1. The Court presumes that Dr. Michael Jelinek is 13.01. Even if it did not, however, I would remand the entitled to attorney’s fees because the expert report filed case to allow the Casases an opportunity to show that by Eloisa Casas’s estate2 was, on appeal, determined to be their failure to present an adequate report was not insufficient. But, after a pre-trial hearing was held on the intentional or the result of conscious indifference. See defendant’s motion to dismiss the lawsuit, the trial court City of DeSoto v. White, 288 S.W.3d 389, 401 (Tex.2009) rejected Dr. Jelinek’s contention that the report was (remanding in the interest of justice sua sponte to allow inadequate; consequently, the Casases had no opportunity police officer “to make an appellate election with full to rectify any deficiencies as the statute and our precedent knowledge of his appellate rights and with knowledge of” would have allowed. the guidance provided in Court’s opinion). In my view, the Casases should not be assessed attorney’s fees and Section 13.01(e) of article 4590i provided for an order costs if they can make the showing section 13.01(g) awarding attorney’s fees and costs if a health care requires and then submit a report complying with the claimant failed to supply an expert report within the time statute. For these reasons, as well as those expressed by required under subsection (d)—180 days. But the statute Chief Justice Jefferson, I respectfully dissent in part. provided several avenues for health care claimants to obtain an extension of the 180–day deadline, including section 13.01(g). That provision required the trial court to grant a thirty-day extension of the statutory deadline if a Parallel Citations claimant’s failure to provide an expert report was not intentional or the result of conscious indifference. And we 54 Tex. Sup. Ct. J. 272 have expressly held that “a party who files a timely but inadequate expert report may seek relief under the grace

Footnotes 1 Francisco Casas and Alfredo DeLeon Jr., Casas’s husband and son, respectively, serve as personal representatives of her estate. We refer to them collectively as “the Casases.” 2 Columbia Rio Grande Regional Healthcare, L.P., d/b/a/ Rio Grande Regional Hospital.

3 Because we conclude legally insufficient evidence supports the jury’s verdict, we do not reach the Hospital’s second issue— whether the Hospital preserved error regarding its proposed unavoidable accident instruction.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

4 There was a several-day lag between taking the culture and ordering the prescription, presumably to allow the culture to grow and to transmit the results to the treating physicians. Thus, the Diflucan was prescribed on July 21 and the Vancomycin on July 23. 5 See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Former article 4590i § 13.01 was replaced by Texas Civil Practice and Remedies Code § 74.351, as amended. 6 When asked if the lapsed prescriptions affected Casas’s hospital stay, Dr. Daller equivocated: A. I think that it certainly did impact it. However, I cannot quantitate that because there are multiple variables that are present in a clinical condition. Whether it lengthened her stay by one day, two days, three days, I cannot say that. What I would say from a scientific standpoint is that for four and a half days she did not receive appropriate therapy. Had she received the appropriate therapy then you would expect her length of stay to be shortened somewhat. To quantitate that, I could not do that. .... A. Obviously, not receiving antibiotics is not going to shorten your stay. Therefore, if it impacted the stay it must have lengthened it. (emphases added). 7 Admittedly, anaerobic bacteria are hard to culture because they are averse to oxygen.

8 Dr. Berkowitz testified: I think that there are a number of things that can cause things smelling bad besides just infection. Tissue that dies doesn’t smell good. There’s bacteria and products released by the dead tissue that don’t smell good. And we know based on the pathology report of the cancer that they took out of her abdomen, that this had grown enough that it was dying. In other words, it was probably outgrowing it’s [sic] blood supply and was starting to die. That in and of itself can smell bad. Then you have a wound that is infected; although Candida itself does not typically smell bad, not like something dead. It smells funky and people don’t like the way it smells. The wound itself when it wasn’t healing was probably having some necrotic tissue, as well, or dead tissue that is in the wound. I’m sure that smelled bad, as well. And they were never able to completely get rid of all that dead cancer tissue that was in her abdomen. I think there’s a number of reasons why she would have had a bad smell, none of which can be explained by four or five days of not getting Flagyl [or] Maxipime. 9 In his dissent, CHIEF JUSTICE JEFFERSON argues that an expert report need not meet the legal sufficiency requirements necessary to support a judgment and suggests that we hold it must. We agree that an expert report need not “meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. But, as we stated earlier, the report must provide more than conclusory statements concerning applicable standards of care, breach of those standards, and causation. See id. An expert report must instead, within its four corners, provide some explanation as to each of these elements. TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6); Wright, 79 S.W.3d at 52. The report here offered only a conclusory statement concerning causation with no explanation as to how the lapse in antibiotic treatment resulted in longer hospitalization, increased pain and suffering, or ultimately Casas’s death. 10 In her dissent, JUSTICE LEHRMANN indicates that (1) she would remand the case to allow the Casases an opportunity to show that their failure to present an adequate report was not intentional or the result of conscious indifference, and (2) Dr. Jelinek should not be entitled to attorney’s fees and costs if the Casases can make this showing and submit an adequate report. We note that the Casases did not request a remand of this nature, nor brief the attorney’s fees issue. See State v. Brown, 262 S.W.3d 365, 370 (Tex.2008) (observing that “[a] party generally is not entitled to relief it does not seek” and refusing to sua sponte grant relief that was not sought); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex.1997) (noting that ordinarily, failure to brief an argument waives error on appeal); TEX.R.APP. P. 38.1(h). 11 We briefly note that under former article 4590i a trial court’s order denying a motion to dismiss premised on an inadequate expert report was not immediately appealable, as it now is under Texas Civil Practice and Remedies Code §§ 51.014 and 74.351. Nor did we definitively say that mandamus review was appropriate for such orders until almost four years after the trial court denied Dr. Jelinek’s motion for dismissal and sanctions. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–62 (Tex.2008). Thus, we do not fault Dr. Jelinek for waiting until final judgment to seek review of the trial court’s order. See Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“Generally, appeals may only be taken from final judgments....”). We mention this point because we have since cautioned that a defendant—having foregone the interlocutory appeal now available—risks losing the right to appeal following final judgment if, after a trial on the merits, the jury finds the defendant liable. See id. at 321. Even if the present statute applied here, this caution would not bar Dr. Jelinek’s appeal because he was not a party at trial, having been nonsuited earlier. We will not bar a nonsuited defendant’s appeal after final judgment because the jury finds him liable at a former codefendant’s trial. Such a defendant did not call or cross-examine witnesses, present © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

evidence, or otherwise participate at trial and should not be bound by what happens there. 1 See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. For ease of reference, I will refer to the relevant provisions as they were identified in article 4590i. 2 I refer to the estate, which was represented by Casas’s husband and son, as “the Casases.”

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Jernigan v. Langley, 195 S.W.3d 91 (2006) 49 Tex. Sup. Ct. J. 717

Opinion 195 S.W.3d 91 Supreme Court of Texas. PER CURIAM. Floyd E. JERNIGAN, M.D., Petitioner, v. The issue in this medical malpractice case is whether the Marie LANGLEY, Individually and as plaintiff’s expert reports meet the specificity requirements Representative of the Estate of John Langley and of section 13.01 of the Medical Liability and Insurance Mariah Langley, a Minor, Respondent. Improvement Act (the “MLIIA”). Former TEX. REV. CIV. STAT. art. 4590i, § 13.01.1 No. 05–0299. | June 9, 2006. In September 1998, Marie Langley brought suit alleging Synopsis that the death of her 46–year–old husband, John Langley, Background: Wife of patient who died two days after resulted from the negligence of Providence Hospital in emergency surgery brought medical malpractice action Waco and several physicians, including Dr. Floyd against attending physician and others. The 19th District Jernigan. The trial court dismissed Langley’s suit against Court, McLennan County, Ralph Strother, J., dismissed Dr. Jernigan for failure to provide an expert report that action against attending physician for failure to provide an satisfied the requirements of section 13.01 of the MLIIA. expert report that satisfied the requirements of the The court of appeals reversed the trial court’s dismissal. Medical Liability and Insurance Improvement Act. Wife We reverse the judgment of the court of appeals and appealed. The Court of Appeals, 76 S.W.3d 752, reversed. dismiss with prejudice Langley’s claims against Dr. Attending physician petitioned for further review. The Jernigan. Supreme Court, 111 S.W.3d 153, reversed. On remand, the Court of Appeals initially affirmed the district court’s On the morning of October 6, 1996, John Langley went to dismissal, but upon grant of wife’s motion for rehearing, Providence Hospital complaining of stomach pain. An the Court of Appeals, 2005 WL 486759, reversed. abdominal x-ray was performed, and John was diagnosed Attending physician petitioned for review. with fecal impaction. He was given a gallon of GoLYTELY to drink at home and was instructed to return that evening. He returned a few hours later in acute pain and was admitted to the hospital. John’s condition Holdings: The Supreme Court held that: worsened, and he underwent emergency surgery that evening. He fared poorly overnight and was operated on [1] expert reports failed to identify with specificity any again the following day. John died the next morning, action or inaction by attending physician that breached the October 8, 1996. applicable standard of care, and thus reports failed to comply with the Act, and Marie Langley filed this suit in September 1998, and filed two timely expert reports thereafter. In June 2000, Dr. [2] expert reports could not constitute a good faith effort to Jernigan filed a motion to dismiss with prejudice under comply with the Act, and thus trial court had no discretion section 13.01(e) of the MLIIA based on alleged but to dismiss claims against attending physician. deficiencies in Langley’s expert reports. At the hearing on the motion to dismiss, Langley argued that Dr. Jernigan had waived his statutory right to seek dismissal because Judgment of Court of Appeals reversed. he had waited more than 600 days to challenge the reports. Langley also moved for an extension of time to allow the late filing of a third expert report. The trial court Attorneys and Law Firms denied Langley’s motion for an extension of time, and then severed and dismissed Langley’s claims against Dr. *92 Greg White, Nancy Napier Morrison, Waco, Bob Jernigan. The court of appeals reversed, holding that Dr. Burleson, Naman, Howell, Smith & Lee, L.L.P., Temple, Jernigan had impliedly waived his rights under section for Petitioner. 13.01. 76 S.W.3d 752 (Tex.App.—Waco 2002). This Thomas B. Cowart, Law Offices of Windle Turley, P.C., Court disagreed, reversing and remanding the case back Dallas, for Respondent. to the court of appeals. 111 S.W.3d 153 (Tex.2003).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Jernigan v. Langley, 195 S.W.3d 91 (2006) 49 Tex. Sup. Ct. J. 717

On remand, the court of appeals initially affirmed the trial [4] court’s dismissal, *93 No. 10–00–00373–CV, 2004 WL Limiting our section 13.01(1) adequacy analysis to the 1211607, 2004 Tex.App. LEXIS 4972 (June 2, 2004), but four corners of Langley’s two timely-filed expert reports, nine months later issued a new opinion holding that id. at 878, it is notable that one report does not mention Langley’s reports were adequate under section 13.01, and Dr. Jernigan at all, and the other report only mentions him therefore the trial court abused its discretion in dismissing in this single sentence: “At 4:30 p.m. [John Langley’s] Langley’s claims against Dr. Jernigan, 2005 WL 486759, case was discussed with Dr. Jernigan and at 4:50 p.m. a 2005 Tex.App. LEXIS 1687 (Mar. 2, 2005). lactulose enema was ordered.” Alternatively, the court concluded that the trial court abused its discretion in refusing to grant Langley a 30– Dr. Jernigan appears in only one line of one report. This day grace period under section 13.01(g) because passing reference does not identify with specificity any Langley’s failure to comply was not intentional or the action or inaction by Dr. Jernigan that breached the result of conscious indifference. Id. 2005 WL 486759, at applicable standard of care. This perfunctory mention *5, 2005 Tex.App. LEXIS 1687 at *10–18. alleges no misconduct whatsoever, much less discusses the required elements with “sufficient specificity” to [1] Under section 13.01(d)(1) of the MLIIA, a plaintiff inform Dr. Jernigan of “the conduct the plaintiff has bringing a health care liability claim must furnish an called into question.” Id. at 875. expert report within 180 days of filing suit. Former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)(1). The expert As to the standard of care applicable to Dr. Jernigan, the report need not marshal every bit of the plaintiff’s court of appeals found that the following stand-alone evidence, but it must provide “a fair summary of the statement in one of the reports captured the standard *94 expert’s opinions as of the date of the report regarding of care for each defendant-physician: “surgical applicable standards of care, the manner in which the care consultation should have been obtained once the x-rays rendered by the physician or health care provider failed to demonstrated obstruction.” 2005 WL 486759, at *2, 2005 meet the standards, and the causal relationship between Tex.App. LEXIS 1687 at *8–9. Even assuming arguendo that failure and the injury, harm or damages claimed.” Id. that the standard of care applicable to every doctor § 13.01(r)(6). If a claimant fails to file an adequate expert reviewing such x-ray results is to obtain an immediate report timely, the trial court must dismiss a claimant’s suit surgical consult, neither of Langley’s expert reports with prejudice upon motion by the defendant. Id. § asserts that Dr. Jernigan was ever provided with the x-ray 13.01(e). The trial court must grant a motion challenging results or had any independent duty to review them. the adequacy of an expert report only if the report does Instead, the court of appeals indulges multiple inferences not represent a good faith effort to comply with section that are simply unsupported by the scant reports. 13.01(r)(6)’s definition of an expert report. Id. § 13.01(1). Finally, upon timely motion, the trial court must grant the Moreover, according to the reports, the x-rays were taken claimant a 30–day grace period to comply with the statute on John Langley’s first visit to Providence Hospital at if the trial court finds that the claimant’s failure to comply 6:40 a.m. on October 6, 1996, whereas Dr. Jernigan did was “not intentional or the result of conscious not become involved in John’s treatment until the case indifference but was the result of an accident or mistake.” was “discussed” with him at 4:30 p.m., nearly ten hours Id. § 13.01(g). later. The expert reports state that the surgeons were called at 6:40 p.m., but do not assert that Dr. Jernigan [2] [3] A trial court’s decision to dismiss under section personally failed to order a surgical consult prior to that 13.01(e) is reviewed for abuse of discretion. Am. time or that the roughly two-hour gap between when the Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 surgeons were called and when they arrived at 8:30 p.m. S.W.3d 873, 877–78 (Tex.2001). Denial of a section was attributable to Dr. Jernigan. 13.01(g) grace period is also reviewed for abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 63 We agree with the dissent below that Langley’s expert (Tex.2003). reports failed to comply with section 13.01 because “[e]ven if we assume that the reports address the standard We held in Palacios that in order to constitute a good- of care with respect to each doctor, ... neither report faith effort under section 13.01(1), an expert report must addresses how Dr. Jernigan breached the standard or how “discuss the standard of care, breach, and causation with his unstated breach of duty caused John’s death with sufficient specificity to inform the defendant of the sufficient specificity for the trial court, and Jernigan, to conduct the plaintiff has called into question and to determine that the allegations against Jernigan had any provide a basis for the trial court to conclude that the merit.” 2005 WL 486759, at *14, 2005 Tex.App. LEXIS claims have merit.” 46 S.W.3d at 875. 1687 at *51–52 (Gray, C.J., dissenting). A glancing © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Jernigan v. Langley, 195 S.W.3d 91 (2006) 49 Tex. Sup. Ct. J. 717

statement that John’s case was “discussed” with Dr. Jernigan sheds no light whatsoever on what Dr. Jernigan The trial court did not abuse its discretion in dismissing allegedly did wrong, much less how his alleged error(s) Langley’s claims against Dr. Jernigan. Accordingly, proximately caused John’s death. Thus, we conclude that without hearing oral argument, we reverse the court of the reports omitted statutory elements of Marie Langley’s appeals’ judgment and dismiss with prejudice Langley’s claim against Dr. Jernigan. claims against Dr. Jernigan. TEX. R. APP. P. 59.1. [5] Because Langley’s expert reports omit at least one of the three specifically enumerated requirements of section 13.01(r)(6), they cannot constitute a good faith effort to Parallel Citations meet the statutory requirements. Palacios, 46 S.W.3d at 879. Accordingly, the trial court had no discretion but to 49 Tex. Sup. Ct. J. 717 conclude, as it did here, that Langley’s claims against Dr. Jernigan must be dismissed. Id. at 880.

Footnotes 1 Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985–87 (adding expert report requirement, at former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898–99 (“House Bill 4”) (adopting chapter 74 of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after September 1, 2003, and continuing prior law in effect for actions filed before that date) (current version at TEX. CIV. PRAC. & REM CODE § 74.351).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)

Panel consists of Justices FROST, SEYMORE, and 362 S.W.3d 740 JAMISON. Court of Appeals of Texas, Houston (14th Dist.).

KINGWOOD PINES HOSPITAL, LLC, Horizon Health Corporation, Psychiatric Solutions, Inc. and Yolanda Bassett, Appellants, OPINION v. R. GOMEZ, Individually and a/n/f of V.G., MARTHA HILL JAMISON, Justice. Appellee. This is a health care liability case governed by the No. 14–11–00050–CV. | Nov. 22, 2011. Medical Liability Act.1 Appellants bring an interlocutory appeal from the trial court’s order denying appellants’ motions to dismiss based on the asserted inadequacy of an Synopsis expert report served by appellee R. Gomez, individually Background: Mother, individually and as next friend of and as next friend of her daughter V.G. We reverse the her daughter, brought negligence, aiding and abetting trial court’s order denying the motions to dismiss and assault, assisting or encouraging assault and medical remand this cause to the trial court to consider whether a malpractice action against physician, counselor and 30–day extension of the deadline for serving the report to hospital, where daughter was being evaluated for a allow Gomez to address deficiencies is appropriate. psychiatric condition following a history of sexual abuse, after daughter was molested by another patient. The 127th District Court, Harris County, R.K. Sandill, J., denied defendants’ motion to dismiss based on an inadequate expert report. Defendants filed interlocutory appeal. Background

V.G., a minor, was admitted into Kingwood Pines Hospital for evaluation of a psychiatric condition relating Holdings: The Court of Appeals, Martha Hill Jamison, J., to her past history of being raped and subjected to sexual held that: molestation in two separate incidents. As alleged, while in [1] the care of Kingwood Pines Hospital, V.G. was molested trial court did not abuse its discretion by finding that by another female patient.2 According to Gomez’s expert, mother’s expert was qualified to give an opinion; but Dr. Mark Blotcky, Gomez asserted in an affidavit that [2] hospital staff knew the other patient was aggressive, had expert report did not adequately set forth the standards been sexually abused, and had sexually molested others, of care and how those standards were breached; but allowed the two patients to share a room and, [3] accordingly, *744 did not prevent the other patient from expert report did not adequately describe the causal having physical access to V.G.3 relationship between defendants’ failure to meet the standards of care and daughter’s injury; and Gomez filed suit on February 24, 2010, against appellants [4] and others,4 alleging that they failed to provide a doctrine of res ipsa loquitur did not apply. reasonably safe environment for V.G. and the other patient by allowing them to share a room. Gomez asserted claims against appellants for negligence, aiding and Reversed and remanded. abetting assault, assisting or encouraging assault, and medical malpractice. She seeks actual and special damages. Attorneys and Law Firms

*743 Ryan Lee Clement, Houston, for appellants. On May 28, 2010, Gomez served an expert report and curriculum vitae prepared by Dr. Mark Blotcky, a board David K. Mestemaker, Norman Louis Straub, Jonathan certified psychiatrist, in support of her claims. After Brian Zumwalt, Houston, for appellee. appellants objected to the adequacy of the report, Gomez served a supplemental expert report.5 Appellants objected

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)

to the adequacy of the supplemental report on the same (Tex.2001); Group v. Vicento, 164 S.W.3d 724, 727 grounds as their former objections and moved to dismiss (Tex.App.-Houston [14th Dist.] 2005, pet. denied). the claims with prejudice pursuant to the Act.6 See Tex. Similarly, we review a trial court’s determination of Civ. Prac. & Rem.Code § 74.351(b). Appellants whether a physician is qualified to opine in a health care contended that the initial report was inadequate because liability case under an abuse of discretion standard. Blotcky (1) did not establish his qualifications to opine Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex.2006) regarding the standards of care for the admission, (per curiam); Mem’l Hermann Healthcare Sys. v. Burrell, treatment, and care of patients in a psychiatric facility; (2) 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] failed to articulate a fair summary of his opinions 2007, no pet.). A trial court abuses its discretion if it acts regarding the applicable standards of care, the manner in in an unreasonable or arbitrary manner or without which those standards were breached by appellants, and reference to any guiding rules or principles. Larson, 197 the causal relationship between any breach and the injury S.W.3d at 304–05; see also Jelinek, 328 S.W.3d at 539. and damages claimed; and (3) attempted to apply a single [3] [4] standard of care to multiple health care providers. After The Act specifies requirements for an adequate considering appellants’ challenges to the expert report and report and mandates “an objective good faith effort to supplemental report and hearing arguments of the parties, comply” with the requirements. Tex. Civ. Prac. & the trial court entered an order denying appellants’ Rem.Code § 74.351(l ), (r)(6); Scoresby, 346 S.W.3d at motions to dismiss. 549. It also authorizes a trial court to give a plaintiff who meets the 120–day deadline an additional 30 days to cure any deficiencies in the report. Tex. Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346 S.W.3d at 549. The trial court should err on the side of granting the extension Discussion and must grant it if the deficiencies are curable. Scoresby, 346 S.W.3d at 549. When determining if a good faith In two issues, appellants contend the trial court abused its effort has been made, the trial court is limited to the four discretion in denying appellants’ motions to dismiss corners of the report and cannot consider extrinsic because the expert and supplemental reports neither evidence. See Jelinek, 328 S.W.3d at 539; Palacios, 46 establish Blotcky’s qualifications to render an opinion S.W.3d at 878. regarding licensed professional counselors, nursing staff, and hospital personnel nor include a fair summary of [5] [6] [7] [8] [9] [10] [11] An expert must establish that he is Blotcky’s opinions in connection with the statutory qualified to provide an acceptable report. Tex. Civ. Prac. elements required by section 74.351—the applicable & Rem.Code § 74.351(r)(5)(B). Qualifications must standards of care, the manner in which the care rendered appear in the expert report and cannot be inferred. Baylor failed to meet those standards, and the causal relationship Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 between the failure and the injury, harm, or damages (Tex.App.-Houston [14th Dist.] 2009, no pet.). claimed. See id. Gomez contends the reports meet the Additionally, an expert report must provide a fair standards required by section 74.351, but even if they do summary of the expert’s opinions regarding (1) the not, an expert report was not required because the applicable standard of care; (2) the manner in which the doctrine of res ipsa loquitur applies. care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem.Code § 74.351(r)(6); Palacios, 46 S.W.3d at 879. In *745 A. Standard of Review and Applicable Law [1] [2] compliance with these standards, the expert report must The Act entitles a defendant to dismissal of a health incorporate sufficient information to inform the defendant care liability claim if he is not served with an expert of the specific conduct the plaintiff has called into report showing that the claim has merit within 120 days of question and provide a basis for the trial court to conclude the date suit was filed. Tex. Civ. Prac. & Rem.Code § the claims have merit. Patel v. Williams, 237 S.W.3d 901, 74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 904 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (citing (Tex.2011). The trial court’s refusal to dismiss may be Palacios, 46 S.W.3d at 879). A report may not merely immediately appealed. Tex. Civ. Prac. & Rem.Code § contain the expert’s conclusions about these elements. 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879. trial court’s denial of a motion to dismiss under section The expert must explain the basis for his statements and 74.351 for abuse of discretion. Jelinek v. Casas, 328 must link his conclusions to the facts. Jelinek, 328 S.W.3d S.W.3d 526, 539 (Tex.2010); Am. Transitional Care Ctrs. at 539. However, a plaintiff need not present all the of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 evidence necessary to litigate the merits of his case.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (2011)

Palacios, 46 S.W.3d at 879; Patel, 237 S.W.3d at 904. Id. § 74.402(a). To determine whether an expert is The report may be informal in that the information need “qualified on the basis of training or experience,” a court not *746 fulfill the same requirements as the evidence must consider whether the expert: offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Patel, 237 S.W.3d at 904. (1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the B. Dr. Blotcky’s Qualifications claim; and Within their second issue, appellants argue that the expert and supplemental reports do not establish that Blotcky (2) is actively practicing health care in rendering health was qualified to render an opinion regarding a licensed care services relevant to the claim. professional counselor7 or nursing staff and hospital personnel. Id. § 74.402(c). [12] To be qualified to provide opinion testimony regarding Blotcky has been a licensed physician for 40 years and whether a health care provider departed from the accepted has practiced psychiatry for almost 35 years. He also has standard of health care, an expert must satisfy section been a clinical professor in the Department of Psychiatry 74.402. See Tex. Civ. Prac. & Rem.Code § of The University of Texas Southwestern Medical Center 74.351(r)(5)(B). Section 74.402 lists three specific at Dallas for almost 35 years. He is board certified in qualifications an expert witness must possess to provide child and adolescent psychiatry and general psychiatry. opinion testimony on how a health care provider departed When the expert report was served, he maintained a from accepted standards of health care. The expert must: private practice, and approximately 66% of his patients were children and adolescents.8 He previously served on (1) [be] practicing health care in a field of practice that the managing board of directors of a psychiatric hospital, involves the same type of care or treatment as that was director of the hospital’s Child and Adolescent delivered by the defendant health care provider, if the Psychiatry Residency Program, and clinical director of the defendant health care provider is an individual, at the hospital. He examined *747 child psychiatrists for time the testimony is given or was practicing that type certification by the American Board of Psychiatry and of health care at the time the claim arose; Neurology for over ten years and served as Chair of the Committee for Certification of Child and Adolescent (2) [have] knowledge of accepted standards of care for Psychiatry for that board. health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in Based on Blotcky’s education, training, and experience in the claim; and treating patients similarly situated to V.G.—an adolescent who was seeking treatment for her psychiatric (3) [be] qualified on the basis of training or experience conditions—and in working in a hospital setting, the trial to offer an expert opinion regarding those accepted court acted within its discretion in concluding that standards of health care. Blotcky is qualified to render an opinion on the standard of care at issue in this case. See Pokluda, 283 S.W.3d at Id. § 74.402(b) (emphases added). 120. Similarly, Blotcky’s hospital experience qualifies him to opine on the standards of care required for nursing The above emphasized terms are specifically defined in staff and hospital personnel. See Tex. Civ. Prac. & subsections (a) and (c) of section 74.402. “Practicing Rem.Code § 74.402(c)(2); see also Pokluda, 283 S.W.3d health care” includes: at 118–19 (“The test is whether the report and curriculum vitae establish the witness’s knowledge, skill, experience, (1) training health care providers in the same field as training, or education regarding the specific issue before the defendant health care provider at an accredited the court that would qualify the expert to give an opinion educational institution; or on that particular subject.”). (2) serving as a consulting health care provider and We hold that the trial court acted within its discretion by being licensed, certified, or registered in the same field denying appellants’ motions to dismiss as to Blotcky’s as the defendant health care provider. qualifications, and we overrule that portion of appellants’ second issue attacking the expert and supplemental reports on that basis.

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Burkhalter, 227 S.W.3d 221, 227 (Tex.App.-Houston [1st Dist.] 2007, no pet.). While it is possible that a single standard of care may apply to several defendants, generic C. Standard of Care and Breach statements that the same standard of care attaches to each [13] In both issues, appellants contend that the expert and defendant without further explanation are conclusory. See supplemental reports do not adequately address each Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 element required by subsection 74.351(r)(6) (standards of (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also care, breach, causation and damages) because the reports Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 753 are conclusory as to each element and do not represent an (Tex.App.-El Paso 2011, no pet.) (“If the standard of care objective good faith effort to comply with the statutory is the same for each defendant, then the report must state definition of an expert report. We first address whether so.”). the reports set forth the applicable standards of care and how appellants breached these standards. We conclude [19] Blotcky’s expert report addresses standards of care that they do not. and breach as follows:

As set forth above, the two-fold purpose of an expert • Kingwood Pines Hospital was required to report under section 74.351 is to inform the defendants of “supervise[ ] closely and house [ ] safely” any the specific conduct the plaintiff has called into question “aggressive [or] sexually aggressive 14 year old girl and to provide the trial court with a basis to determine with a history of being both sexually molested and whether or not the plaintiff’s claims have merit. Kelly v. perpetrating sexual molestation herself so she could Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th not harm another patient”9 and provide treatment of Dist.] 2008, no pet.). A report that merely states the patients such as V.G. “in a safe environment.” The expert’s conclusions about the standard of care, breach, hospital staff “breached both these standards of and causation does not fulfill these two purposes. care—effective, careful supervision of a predator and Palacios, 46 S.W.3d at 879. Rather, the expert must careful, effective protection of a molestation victim.” explain the basis of his statements to link his conclusions to the facts. Jelinek, 328 S.W.3d at 539; see also Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999) (“An expert’s • Dr. Torres10 and Bassett were required “to ensure simple ipse dixit is insufficient to establish a matter; that there were appropriately trained and adequate rather, the expert must explain the basis of his statements staffing and milieu structure” so that a “young” to link his conclusions to the facts.”); Davis v. Spring patient “would not be sexually molested.” They Branch Med. Ctr., 171 S.W.3d 400, 406 (Tex.App.- breached “their duties to [V.G.]” by failing to do so. Houston [14th Dist.] 2005, no pet.) (“[T]he expert report The supplemental report further addresses these issues as has to set out, in nonconclusory language, the expert’s follows: opinion about [the] three [statutorily required] elements of the claim.”). • While they “may each have different standards of care in some areas,” Kingwood Pines Hospital, [14] [15] [16] [17] [18] Standard of care is defined by what an Torres, and Bassett “share the most rudimentary ordinarily prudent health care provider or physician responsibility for the safety and security of their would have done under the same or similar patients ... in whatever therapeutic milieu their circumstances. Palacios, 46 S.W.3d at 880; Strom v. patient is being treated. The safety and security of Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 222 any patient is always a most basic element in the (Tex.App.-Houston [1st Dist.] 2003, pet. denied). standard of care.” The “treating team” must “provide Identifying the standard of care is critical: whether a additional supervision” to patients with histories “of defendant breached his or her duty to a patient cannot be hurting themselves and being vulnerable to being determined absent specific information about what the hurt by others.” Kingwood Pines Hospital, Torres, defendant should have done differently. Palacios, 46 and Bassett breached this standard of care, as S.W.3d at 880. While a “fair summary” is something less “[V.G.] was not afforded the most basic supervision than a full statement of the applicable standard of care and under their care.” how it was *748 breached, even a fair summary must set out what care was expected, but not given. Id. When a • Kingwood Pines Hospital must not “allow any plaintiff sues more than one defendant, the expert report harm to occur to any of its patients.” The standard of must set forth the standard of care for each defendant and care for the hospital “is to supervise the behavior explain the causal relationship between each defendant’s *749 of each and every patient.” “Based on the facts individual acts and the injury. CHCA Mainland L.P. v. contained in the medical records,” the hospital

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breached its standard of care by failing to provide “a appellants’ argument that Blotcky improperly applies the safe and secure environment” and “allowing” V.G. same standard of care to multiple health care providers. “to be molested by another patient.” Conclusory Articulation of Standard of Care. Other than • Bassett was required to “do anything necessary” to containing conclusory statements regarding the provision “insure that any patient she treats in [the] hospital ... of a secure environment, the supervision of patients, and has been admitted to a safe and secure milieu” by the prevention of harm to patients, the reports do not “be[ing] aware of the treatment milieu, patient indicate what an ordinarily prudent health care provider population, and the structure and safety measures” in would do under the same or similar circumstances. See place. She breached the standard of care by failing to Palacios, 46 S.W.3d at 880. They merely include “insur[e] her patient’s basic safety using any number Blotcky’s conclusion that appellants did not provide a of measures available.” safe and secure environment for V.G., but do not specify how this should have been accomplished. They are thus Appellants complain that Blotcky’s articulation of the deficient in this regard. See id. applicable standards of care is deficient in two regards, first, that Blotcky improperly applies a single standard of *750 Breach of the Standard of Care. Blotcky’s care to multiple health care providers and second, that his statements regarding breach of the standard of care, such articulation of the standard is conclusory. as Bassett’s “failing to ensure that there were appropriately trained and adequate staffing and milieu Single Standard of Care Applied to Multiple Health structure such that a young girl (about whom they were Care Providers. In the expert report, Blotcky applies a forewarned was vulnerable) would not be sexually standard of care to Kingwood Pines Hospital separate molested” and “breach[ing] the standard of care by not from the standard he applies to Bassett and Torres. He insuring her patient’s safety using any of the number of states that the hospital was required to supervise known measures available ” and appellants’ failing to “provide sexually aggressive patients and protect molestation additional supervision” and “not afford[ing] [V.G.] ... the victims from aggressive patients. By contrast, he applies a most basic supervision ” are similarly conclusory. single standard of care to Torres and Bassett—to insure (Emphases added.) Whether a defendant breached the that the hospital had properly trained and adequate standard of care cannot be determined without “specific staffing so that a patient would not be molested. In the information about what the defendant should have done supplemental report, Blotcky clarifies that, although “they differently.” Id. For example, the reports do not provide may have different standards of care in some areas,” the information about how Bassett was to insure that hospital hospital, Torres, and Bassett all shared the same staff were appropriately trained and adequately staffed or responsibility for the safety and security of their patients. what “measures” were available to her to insure her He further articulates the standard as to each party. The patient’s safety. Nor do the reports indicate what kind of hospital was required to supervise every patient. Torres supervision by the hospital or Bassett was necessary or was required to “admit patients only to ... facilit[ies] that “basic” to provide a secure environment for V.G.11 provide[ ] a safe and secure environment,” “work with the Blotcky, moreover, states that the hospital breached its treatment team to understand his patient’s treatment and standard of care “[b]ased on the facts contained in the other needs,” “consult with ... staff to insure ... his orders medical records,” but does not indicate on what “facts” he are understood and followed” and “know the inpatient relies to reach that conclusion. program and how it implements a safe structure for patients who have been either victims or perpetrators of We conclude that Blotcky’s reports are deficient because sexual assault.” Similarly, Bassett was required to insure they do not adequately describe applicable standards of her patients are being treated in a safe and secure care or breaches of those standards by each appellant. environment by being aware of the environment, patient population, and safety measures taken by the hospital.

We conclude that Blotcky articulates a standard of care D. Causation [20] for each appellant, although conclusorily, as set forth Conclusory statements also plague Blotcky’s efforts to below. In the supplemental report, he adequately explains satisfy the statutory element of causation. In the expert why the standards of care overlap as to the parties, which report, he simply states, “In medical probability, V.G. cures any deficiencies with regard to his applying the would be expected to suffer significant psychological same standard to Torres and Bassett in the expert report. damage especially from sexual molestation occurring to See Tenet, 347 S.W.3d at 753. We thus find without merit her in a treatment setting. The proximate cause of this was the hospital’s failure as well as that of ... Ms. Bassett to

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meet the standard of care.” Likewise, he states in the [25] supplemental report that appellants’ breaches of the While the nature of Gomez’s claims of malpractice standards of care caused V.G.’s damages and “[h]ad and V.G.’s alleged injuries may be plainly within the [V.G.] and the other patients been properly supervised, common knowledge of laypersons, Gomez would still [V.G.] would not have been assaulted.” have to show that her claim fell within one of the pre– 1977 categories of cases in order for res ipsa loquitur to These reports do not adequately describe the causal apply. See Losier, 362 S.W.3d at 642–43; Hector, 175 relationship between appellants’ failures to meet the S.W.3d at 837. Because it does not, we find without merit standards of care and V.G.’s injury: Blotcky provided no Gomez’s argument that she was not required to serve an explanation regarding how and why these failures resulted expert report. in the alleged molestation. Rather, he provided bare assertions that appellants’ failure to “properly supervise” We hold that the trial court abused its discretion by the patients resulted in V.G.’s damages. He did not denying the motions to dismiss because they do not attempt to explain what constitutes proper supervision. adequately describe the elements required by subsection Because the reports do not contain this required 74.351(r)(6). We thus sustain that portion of appellants’ information, they are deficient. See Jelinek, 328 S.W.3d at issues attacking the adequacy of the expert and 539–40; Palacios, 46 S.W.3d at 879 (holding reports that supplemental reports because they are deficient. merely state expert’s conclusions about causation are deficient).

F. Opportunity to Cure [26] In their second issue, appellants assert that because of E. Res Ipsa Loquitur the reports’ deficiencies, no “expert report” has been Gomez also contends she was not required to serve expert timely served and this case should be dismissed. As reports because the *751 negligence alleged in this case discussed above, Gomez’s reports are deficient. But even rises to the level of res ipsa loquitur. with these deficiencies, the trial court still has discretion to grant Gomez a thirty-day extension under section [21] [22] [23] Res ipsa loquitur is not a cause of action 74.351(c). See Tex. Civ. Prac. & Rem.Code § 74.351(c); separate from negligence; rather, it is a rule of evidence Scoresby, 346 S.W.3d at 554. Gomez requested such an by which the jury may infer negligence. Losier v. Ravi, extension in the trial court, and the trial court has not 362 S.W.3d 639, 642–43 (Tex.App.-Houston [14th Dist.] ruled on this request. The appellants have not shown that 2009, no pet.). It applies to situations in which two factors Gomez is not entitled to a ruling on her request for a are present: (1) the character of the accident is such that it thirty-day extension under section 74.351(c).12 See Tex. would not ordinarily occur in the absence of negligence, Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346 and (2) the instrumentality causing the injury is shown to S.W.3d at 554. Therefore, while we agree with appellants have been under the management and control of the that the reports are deficient, we conclude that this case defendant. Id. Further, the doctrine applies only when the should be remanded for the trial court to consider granting nature of the alleged malpractice and injuries are plainly a 30–day extension to cure the reports’ deficiencies under within the common knowledge of laypersons, requiring *752 section 74.351(c). Accordingly, we overrule no expert testimony. Id. appellants’ second issue. [24] The legislature limited the applicability of res ipsa loquitur in health care claims only to those instances in which the doctrine had been applied by Texas appellate courts as of August 29, 1977. See Tex. Civ. Prac. & Conclusion Rem.Code § 74.201. The three recognized areas in which res ipsa loquitur applies to health care claims are We reverse the trial court’s order denying the motions to negligence in the use of mechanical instruments, dismiss filed by appellants and remand this cause to the operating on the wrong body part, and leaving surgical trial court to consider whether a 30–day extension to instruments or sponges inside the body. Losier, 362 allow Gomez to address the deficiencies in the reports is S.W.3d at 642–43 (citing Haddock v. Arnspiger, 793 appropriate. S.W.2d 948, 951 (Tex.1990)); Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

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Footnotes 1 Tex. Civ. Prac. & Rem.Code §§ 74.001–.507. All references to the Act are to these provisions.

2 The other patient, also a minor, allegedly got into bed with V.G., “made out with her,” touched her private parts, left visual marks (hickeys) on her, and threatened to beat her up if she told anyone. 3 The affidavit is not in the record, but the expert reported prepared by Dr. Mark Blotcky describes the affidavit and states that Blotcky relied on the affidavit in reaching his conclusions. 4 Gomez sued Kingwood Pines Hospital, LLC; Horizon Health Corporation; Psychiatric Solutions, Inc.; Psychiatric Solutions, P.C.; Fernando Guillermo Torres, M.D. and Yolanda Bassett. Gomez alleged that Kingwood Pines Hospital is owned by the other corporate defendants. Only Kingwood Pines Hospital, Horizon Health Corporation, Psychiatric Solutions, Inc., and Bassett filed this appeal. 5 The supplemental report was served on June 24, 2010, the 120th day after Gomez filed suit, so both reports were timely under the Act. See Tex. Civ. Prac. & Rem.Code § 74.351(a). 6 Kingwood Pines Hospital, Horizon Health Corporation, and Psychiatric Solutions, Inc. jointly filed their objections and motion to dismiss, and Bassett filed her objections and motion to dismiss separately. All of appellants’ objections were based on the same grounds. 7 Bassett is a licensed professional counselor.

8 We assume this is still the case, but the record reflects only Blotcky’s qualifications when the report was served.

9 We note that Blotcky bases his opinion on Gomez’s affidavit stating that the patient who allegedly molested V.G. “was known by the hospital staff to be aggressive, to have been sexually abused and to be a sexual molester.” We assume without deciding the accuracy of this allegation because we are confined to the four corners of the expert report in our consideration of its adequacy. See Palacios, 46 S.W.3d at 878. While an expert may rely on a statement that otherwise would not be admissible in evidence in formulating his opinions, see Gannon v. Wyche, 321 S.W.3d 881, 890–91 (Tex.App.-Houston [14th Dist.] 2010, pet. denied), it is unclear how Gomez obtained this information. Cf. id. at 892 (“[A]ll that is required is that [the] expert report informs the defendants of the specific conduct the plaintiffs have called into question and provides a basis for the trial court to conclude that the claims have merit.”). 10 As set forth above, Torres is a defendant in the underlying case, but not an appellant.

11 Gomez argues that this case is akin to Russ v. Titus Hospital District, 128 S.W.3d 332 (Tex.App.-Texarkana 2004, pet. denied), which held that an expert report was sufficient relating to a claim filed by a mentally ill patient who was allowed access to an unsecured window out of which she fell. Id. at 344. But the expert report in that case specifically outlined that the standard of care required a suicidal patient not to be placed in a room with unlocked windows and what steps the hospital, doctors, and nurses should have taken to secure the windows, id. at 342, whereas the reports in this case merely state that V.G. should have been placed in a secure environment where patients were supervised, without specifying how this should have been accomplished. 12 Even if appellants had argued that Gomez’s reports amount to no report at all and even if it were appropriate to address that argument at this juncture, we would still conclude that the reports satisfy the minimal standard in Scoresby. See Scoresby, 346 S.W.3d at 557.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Kocurek v. Colby, Not Reported in S.W.3d (2014)

Colby was under Kocurek’s care for approximately two months after sustaining injuries on the job; his primary 2014 WL 4179454 Only the Westlaw citation is currently available. medical complaints were numbness and pain in his left hip and tingling in his right hand. According to Colby, SEE TX R RAP RULE 47.2 FOR DESIGNATION Kocurek performed no physical examination on him and AND SIGNING OF OPINIONS. instead had only oral conferences with him. Further, Kocurek indicated to him orally that she would refer him MEMORANDUM OPINION to a specialist, but never did. Court of Appeals of Texas, Austin. After receiving treatment from Kocurek, Colby moved out of state and transferred his care to an orthopedic Kristen KOCUREK, M.D., and Texas MedClinic, specialist there. Shortly thereafter, however, Colby Appellants returned to see Kocurek, claiming new symptoms. v. According to Colby’s petition, at that visit Kocurek again Anthony D. COLBY, Appellee. failed to examine him physically, ignored his symptoms, and displayed an inappropriate demeanor toward him. No. 03–13–00057–CV. | Aug. 22, 2014. Colby filed suit against Kocurek and Texas MedClinic,2 From the District Court of Travis County, 419th Judicial alleging departures from accepted standards of medical District No. D–1–GN–12–000186, Tim Sulak, Judge care that proximately resulted in injuries to him. Colby Presiding. alleged that Kocurek failed to meet the applicable standards of care in failing to (1) perform a thorough Attorneys and Law Firms examination of him; (2) secure appropriate treatment for Anthony D. Colby, Austin, TX, pro se appellee. him; (3) properly diagnose and treat him; (4) refer him to or consult with a specialist; and (5) monitor his condition. Laura A. Macom, George F. Evans Jr., Brett B. Rowe, Colby also made a claim for fraudulent Evans & Rowe, PC, San Antonio, TX, for appellant. misrepresentation/common-law fraud relating to Kocurek’s documentation of his injuries and treatment. In Before Chief Justice JONES, Justices GOODWIN and addition, Colby claimed that Kocurek’s actions caused (1) FIELD. a pinched nerve in his right hand to become entrapped, (2) his left hip to develop bursitis and soft-tissue nerve damage, (3) limited range of motion in his hip, as well as constant pain and nerve damage that will worsen with age, and (4) a need for surgery in his right hand due to numbness, tingling, and serious pain. MEMORANDUM OPINION After filing suit, Colby served appellants with the expert SCOTT K. FIELD, Justice. report of Dr. Ronald Devere, a neurologist, to comply with the expert-report requirement of section 74.351 of *1 Appellants Kristen Kocurek, M.D., and Texas the Texas Civil Practice and Remedies Code. See id. MedClinic appeal from the trial court’s denial of their Appellants then filed a motion to dismiss the suit, motion to dismiss appellee Anthony D. Colby’s1 suit for claiming that Devere’s expert report failed to satisfy the medical malpractice based on Colby’s alleged failure to statutory elements under section 74.351. After a hearing, provide an adequate expert report as required by chapter the trial court agreed with appellants that Devere’s expert 74 of the Texas Civil Practice and Remedies Code. See report was deficient, but granted Colby a 30–day Tex. Civ. Prac. & Rem.Code § 74.351. We will reverse extension to cure the deficiencies. In response to the trial the trial court’s judgment and remand for dismissal and a court’s ruling, Colby served appellants with an amended determination of attorneys’ fees. report from Devere. Appellants again filed a motion to dismiss, contending that Devere’s amended report remained deficient. After a hearing, the trial court denied appellants’ motion to dismiss.3 Appellants then filed this FACTUAL AND PROCEDURAL BACKGROUND interlocutory appeal. See id. § 51.014(a)(9).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kocurek v. Colby, Not Reported in S.W.3d (2014)

ANALYSIS dismiss the plaintiff’s claims. See id. § 74.351(a), (b). In two appellate issues, appellants contend that the trial court Jurisdiction abused its discretion in denying their motion to dismiss *2 In response to appellants’ appeal, Colby contends that because (1) Devere is not a qualified expert to provide a this Court lacks jurisdiction over the appeal. Colby report in this case, and (2) Devere’s report is conclusory appears to argue that once a trial court grants a 30–day with regard to the element of causation. We will begin extension for a plaintiff to file an amended report and the with analysis of whether Devere’s report adequately plaintiff files an amended report, no appeal may be taken demonstrates causation. with regard to the trial court’s ruling on the adequacy of the amended report. Colby argues that, in any event, a *3 When a party challenges the adequacy of an expert party may not appeal the denial of a motion to dismiss report, the trial court should sustain the objection only if it relating to the adequacy of the expert report. In support of determines that the report does not represent an “objective his argument, Colby relies on this Court’s opinion in good faith effort to comply with the definition of an Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d expert report.” Id. § 74.351(l ). To constitute a good-faith 184 (Tex.App.-Austin 2005, no pet.). Our opinion in effort, the report must inform the defendant of the specific Andra, however, does not support Colby’s position. In conduct called into question and provide a basis for the Andra, the defendant filed an interlocutory appeal of a trial court to determine whether the claims have merit. denial of a motion to strike an expert report, not a motion American Transitional Care Ctrs. of Tex., Inc. v. to dismiss as in this case. Id. at 186. Because of the Palacios, 46 S.W.3d 873, 879 (Tex.2001). A report does unique procedural posture in the Andra case, we not fulfill these purposes if it fails to address the standard concluded that the motion for relief was a motion under of care, breach of the standard of care, and causation, or if section 74.351(l ), for which there is no provision for an it merely states the expert’s conclusions regarding these interlocutory appeal when denied. Id. at 189; see Tex. elements. Id. The expert must link his conclusions to the Civ. Prac. & Rem.Code § 51.014(a)(10) (allowing facts of the case. Bowie Mem’l Hosp. v. Wright, 79 interlocutory appeal of order granting relief under section S.W.3d 48, 52 (Tex.2002). We review a trial court’s 74.351(1 )). That is not the type of motion appellants filed denial of a motion to dismiss under section 74.351 under in this case. an abuse-of-discretion standard. Palacios, 46 S.W.3d at 878. However, “if an expert report contains only Appellants filed a motion to dismiss and request for conclusions about the statutory elements, the trial court attorneys’ fees under section 74.351(b). See Tex. Civ. has ‘no discretion but to conclude ... that the report does Prac. & Rem.Code § 74.351(b) (providing that physician not represent a good-faith effort’ to satisfy the statute.” provider may move to dismiss when sufficient expert Smith v. Wilson, 368 S.W.3d 574, 577 (Tex.App.-Austin report not served and 120–day deadline has expired). The 2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880). denial of a motion to dismiss and request for attorneys’ To perform its review, the trial court must look only to the fees under section 74.351(b) is subject to interlocutory four corners of the report itself. Palacios, 46 S.W.3d at appeal under section 51.014(a)(9) of the Texas Civil 878. Practice and Remedies Code. Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.2008). Colby’s jurisdictional Devere’s eight-page report contains a paragraph on his complaint is overruled, and we now turn to the merits of qualifications, lists the issues he is reviewing and the this appeal. materials used in that review, and states the background facts. The report then turns to a discussion of the standards of care for Kocurek’s treatment of Colby and a discussion applying those standards of care to the facts Sufficiency of Expert Report presented. Finally, it contains a conclusion section. The In a health-care-liability claim, a claimant must provide report contains some detail of Colby’s complaints, the each defendant with an expert report and curriculum vitae standards of care applicable to those complaints, and an for each expert within 120 days of filing suit. Tex. Civ. opinion as to whether Kocurek breached the applicable Prac. & Rem.Code § 74.351(a). The expert report must standards of care. Devere’s report, however, contains summarize the expert’s opinions “regarding applicable nearly no discussion of causation to link Colby’s alleged standards of care, the manner in which the care rendered harm to Kocurek’s actions. by the physician or health care provider failed to meet the standards, and the causal relationship between that failure Looking only to the four corners of the report, the and the injury, harm, or damages claimed.” Id. § following are the only statements from Devere’s report 74.351(r)(6). After an expert report is filed, the defendant that could potentially be considered as touching on may object to the sufficiency of the report and move to causation: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kocurek v. Colby, Not Reported in S.W.3d (2014)

• “Based on Dr. Kocurek’s failure to act, secure alleged breaches of the standards of care to any one of treatment and properly execute a referral for Mr. Colby’s injuries. Colby, his condition has worsened and he has suffered tremendously and unnecessarily.” (from An expert report must explain, to a reasonable degree, Background Facts section of report) how and why the alleged breach caused the injury based on the facts presented. See Jelinek v. Casas, 328 S.W.3d • “By not making this referral [to a specialist], 526, 539–40 (Tex.2010). The closest Devere’s report Defendant, Dr. Kocurek, deceived Mr. Colby, comes to providing a causal link is in his statement that created anxiety in Mr. Colby by making him think “[b]ased on [Kocurek’s] actions or failures to act, Mr. that a referral to a specialist was coming when it was Colby suffered and [Kocurek’s] actions or failures to act not and resulted in a delay in Mr. Colby receiving were a direct cause of worsening pain and numbness to any needed care, treatment or therapy that might Mr. Colby. Her violations of the standard of care resulted have been recommended by a specialist, if that in a delay of Mr. Colby receiving appropriate care for his referral had been made.” (from Application of injuries, and the worsening of his symptoms.” This Standard of Care section) statement, however, never identifies which breach of which standard of care by Kocurek led to a worsening of *4 • “In my expert opinion, the Defendant violated Colby’s pain and numbness. Further, the statement fails to the applicable standard of care for physician’s [sic] identify how any specific injury sustained by Colby operating in the State of Texas based on the reasons would have been prevented or lessened had he received mentioned above. Based on her actions or failures to “appropriate care” sooner. Devere’s statement that act, Mr. Colby suffered and her actions or failures to referring Colby to a specialist might have made a act were a direct cause of worsening pain and difference in Colby’s condition—“treatment or therapy numbness to Mr. Colby. Her violations of the that might have been recommended by a specialist, if that standard of care resulted in a delay of Mr. Colby referral had been made”—amounts to nothing more than receiving appropriate care for his injuries, and the speculation. See id. at 539 (concluding that statement in worsening of his symptoms.” (from the Conclusion expert report that breach of standard of care “in section) reasonable medical probability resulted in [injury]” was insufficient). The report does not explain what treatment • “Based on these worsening injuries, Mr. Colby has or therapy a specialist would have provided had Colby endured and will continue to endure significant pain, been referred earlier or how such treatment or therapy numbness and incapacity until he can receive the would have prevented Colby’s injuries. As a result, the appropriate treatment to correct these conditions.” statements in Devere’s report regarding causation amount (from the Conclusion section) to “no more than a bare assertion that [Kocurek’s] breach resulted in increased pain and suffering.” See id. at 540. The issue is whether these statements, which appear to be the only attempts made at establishing causation in *5 This Court has consistently required more than what Devere’s report, are sufficient to meet the requirements of Devere has provided in terms of expert testimony on section 74.351. We conclude they are not. causation in the context of section 74.351. See Smith, 368 S.W.3d at 577–78 (holding that expert report failed to The problem with Devere’s report is that it fails to show, show how doctor’s alleged breach of standard of care within its four corners, what specific actions Kocurek did caused patient to commit suicide); Constancio v. Bray, or did not take, or could have taken, that would have 266 S.W.3d 149, 157–58 (Tex.App.-Austin 2008, no pet.) prevented Colby’s symptoms or injuries. See Tex. Civ. (holding that expert report that alleged that breach of Prac. & Rem.Code § 74.351(r)(5) (expert report must standard of care by doctor caused patient’s death is include “fair summary” or expert’s opinion as to “causal insufficient when report did not explain how increased relationship” between medical defendant’s failure to meet monitoring of patient, detection of hypoxemia, and other standard of care and injury). Nowhere in the report does actions would have prevented patient’s death); Perez v. Devere actually state what specific violation of which Daughters of Charity Health Servs. of Austin, No. 03–08– standard of care led to a particular health problem of 00200–CV, 2008 WL 4531558, at *4 (Tex.App.-Austin Colby’s. The report lists five standards of care that Oct. 10, 2008, no pet.) (mem.op.) (concluding expert Kocurek allegedly violated in her treatment of Colby and report insufficient on causation because it did not link the specific ways Devere believes Kocurek violated those hospital’s actions to patient’s death or any cause of death standards of care. Devere, however, did not provide facts and did not identify any specific injury that would have that would explain a causal link between any of those been prevented had hospital complied with standard of care). To find Devere’s report sufficient on causation, we © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kocurek v. Colby, Not Reported in S.W.3d (2014)

would have to make inferences from beyond the four corners of his report; this we are not allowed to do.

Based on the record before us and the four corners of the expert report, we are left with no choice but to conclude CONCLUSION that the report does not provide an adequate causal link between Kocurek’s alleged shortcomings and Colby’s We reverse the trial court’s order denying appellants’ symptoms or injuries. Because the report is insufficient as motion to dismiss. We remand the cause to the trial court to Kocurek, it is also insufficient as to Texas MedClinic, for a determination of attorneys’ fees, see Tex. Civ. Prac. which Colby sued solely on the basis of its alleged & Rem.Code § 74.351(b), and for entry of a final order vicarious liability for Kocurek’s actions. See Smith, 368 dismissing Colby’s claims against appellants. S.W.3d at 579. Accordingly, we sustain the appellants’ second issue on appeal.4

Footnotes 1 Colby represents himself in this appeal as he did in the trial court proceedings.

2 Colby’s claims against Texas MedClinic were solely for vicarious liability arising from Kocurek’s actions.

3 The trial judge who denied appellants’ motion to dismiss Devere’s amended expert report was not the same trial judge who ruled that Devere’s expert report was deficient in the context of appellants’ first motion to dismiss. 4 Because appellants’ second issue is dispositive of this appeal, we need not reach appellants’ first appellate issue challenging the trial court’s conclusion that the expert report adequately demonstrated Devere’s qualifications as an expert.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

2006 WL 728068 Only the Westlaw citation is currently available. MEMORANDUM OPINION SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. RICK STRANGE, Justice. MEMORANDUM OPINION *1 This is a medical malpractice action. Michael J. Court of Appeals of Texas, Dragun, M.D. and West Texas Urology filed a motion to Eastland. dismiss contending that Kelly and Terry Kuykendall’s expert report did not satisfy the requirements of Kelly KUYKENDALL and Husband, Terry TEX.REV.CIV. STAT. art. 4590i, § 13.01 (2001).1 The Kuykendall, Appellants trial court granted appellees’ motion to dismiss and v. denied appellants’ request for an extension of time to file Michael J. DRAGUN, M.D. and West Texas an amended report. We find no error and affirm. Urology, Appellees.

No. 11-05-00230-CV. | March 23, 2006.

Synopsis Facts Background: Patient filed medical malpractice action Kelly Kuykendall underwent a bilateral salphingo- against surgeon who was brought in during surgery to oophorectomy and a laparoscopic-assisted vaginal address complications from perforation of patient’s hysterectomy on June 24, 2002. The surgery was bladder. The 142nd District Court, Midland County, performed by Dr. Brady Locke. Kelly’s bladder was granted surgeon’s motion to dismiss. Patient appealed. perforated during the surgery. Dr. Dragun was contacted and was asked to repair the injury. He performed a laparotomy and was assisted in the procedure by Dr. Holdings: The Court of Appeals, Rick Strange, J., held Locke. that The original surgery was scheduled for two hours. [1] expert report submitted by patient did not satisfy Because of the bladder complication, the surgery lasted statutory requirements, and six hours. Appellants allege that Kelly’s peripheral nerves were damaged during the extended surgery. [2] trial court did not abuse its discretion when it denied patient’s request for a 30-day grace period to amend Appellants filed a medical malpractice action against Dr. report. Dragun and other health care providers on May 29, 2003. They timely filed the expert report and curriculum vitae of Dr. Mearl A. Naponic. Appellees filed a motion to Affirmed. dismiss, contending the expert report did not satisfy the requirements of Article 4590i, section 13.01. Appellants responded that Dr. Naponic’s expert report was sufficient On Appeal from the 142nd District Court, Midland and, alternatively, requested an Article 4590i, section County, Texas, Trial Court Cause No. CV45114. 13.01(g) thirty-day extension. The trial court conducted a hearing and granted appellees’ motion to dismiss and Attorneys and Law Firms denied appellants’ request for an extension.

Rick Dunbar, for Appellants.

Jack Tidwell, for Appellees. Issues Panel consists of WRIGHT, C.J., and McCALL, J., and STRANGE, J. In two issues, appellants contend that their expert report satisfies the requirements of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

or, alternatively, that the trial court abused its discretion not fulfill these two purposes. Nor can a report meet by denying their request for an Article 4590i, section these purposes and thus constitute a good-faith effort if 13.01(g) thirty-day grace period to amend their report. it omits any of the statutory requirements. However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as Standard of Review the evidence offered in a summary-judgment proceeding or at trial. (citations omitted) A trial court’s decision to dismiss a lawsuit because of an inadequate expert report is reviewed under an abuse of Courts have identified additional considerations when discretion standard. Am. Transitional Care Ctrs. of Tex., multiple defendants are sued. In that instance, the expert Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). A trial report must provide an explanation of how each defendant court’s decision to grant or deny an Article 4590i, section specifically breached the applicable standard of care and 13.01(g) grace period is also reviewed under an abuse of how that breach caused or contributed to the cause of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, injury. Taylor v. Christus Spohn Health Sys. Corp., 169 62 (Tex.2003). S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.).

A trial court abuses its discretion if it acts in an arbitrary That portion of Dr. Naponic’s expert report which or unreasonable manner without reference to any guiding addressed Dr. Dragun’s actions contained the following rules or principles. Downer v. Aquamarine Operators, language: Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing court is not allowed to substitute its judgment for that of On June 24, 2002, Kelly Kuykendall underwent the trial court when reviewing a discretionary decision. bilateral salphingo-oophorectomy, as well as a Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 laparoscopic assisted vaginal hysterectomy. Theses (Tex.1989). The mere fact that a trial court may decide a [sic] surgical treatments were performed in an effort to matter within its discretionary authority in a different relieve pre-operative symptoms of pelvic pain, manner than an appellate court in a similar circumstance dysmenorrhea and menorrhagia and failed medical does not demonstrate that an abuse of discretion has management of same. The initial procedure scheduled occurred. Downer, 701 S.W.2d at 241-42. for two hours was performed by Dr. Brady Locke and was complicated by an intra-operative injury to the bladder. The perforation of the bladder necessitated surgical repair; and, thus this two hour surgery evolved into a six hour surgery, involving a laparotomy to Does Dr. Naponic’s Report Satisfy Article 4590i? repair an incision into the bladder of approximately eight to nine centimeters. This second surgery was *2 [1] In Palacios, 46 S.W.3d at 878-79, the supreme court performed by Dr. Michael Dragun and assisted by Dr. outlined the criteria for evaluating the efficiency of expert Brady Locke. reports. Specifically, the court wrote: The standard of care for such procedures as described [T]he expert report must represent only a good-faith above, necessarily require[s] that the peripheral nerves effort to provide a fair summary of the expert’s in and adjacent to the operative site be identified and opinions. A report need not marshal all the plaintiff’s protected. This is particularly true when a self-retaining proof, but it must include the expert’s opinion on each retractor is used and the length of the surgery is of the elements identified in the statute. In setting out prolonged. Complications, including nerve injuries, the expert’s opinions on each of those elements, the from self-retaining retractors are well-known and well- report must provide enough information to fulfill two described in the relevant literature. Failing to properly purposes if it is to constitute a good-faith effort. First, pad the self-retaining retractor, failure to adequately the report must inform the defendant of the specific position the patient and/or leaning on the patient during conduct the plaintiff has called into question. Second, this prolonged surgery are the most likely cause of the and equally important, the report must provide a basis intra-operative injuries and complications suffered by for the trial court to conclude that the claims have Kelly Kuykendall and are below the accepted standard merit. of care for these procedures. As both Dr. Locke and Dr. A report that merely states the expert’s conclusions Dragun performed the bladder repair, they shared the about the standard of care, breach, and causation does

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

responsibility to protect Kelly Kuykendall against this The supreme court’s holding in Palacios, 46 S.W.3d at injury. 873, that a trial court’s decision to grant a motion to dismiss is subject to an abuse of discretion review, *3 A fair summary is something less than a full statement mandates that we provide trial courts with some deference of the applicable standard of care and how it was when determining what constitutes a good faith effort to breached. A fair summary must set out what care was comply with the statute in a particular case. Because Dr. expected but not given. Palacios, 46 S.W.3d at 880 Naponic’s report failed to provide specific information (“[w]hether a defendant breached his or her duty to a concerning Dr. Dragun’s conduct, because he assumed patient cannot be determined absent specific information the two doctors were equally responsible for Kelly’s about what the defendant should have done differently”). injury, and because Dr. Naponic relied upon assumptions An expert report must show causation beyond mere to determine the “most likely” cause of her injury, we conjecture. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, hold the trial court did not abuse its discretion when it 52 (Tex.2002). Knowing what specific conduct the granted appellees’ motion to dismiss. Appellants’ first plaintiff’s expert has called into question is critical to both issue is overruled. the defendant’s ability to prepare for trial and the trial court’s ability to evaluate the viability of the plaintiff’s claims. Palacios, 46 S.W.3d at 876-77. Dr. Naponic’s report does not provide this level of information because his analysis is premised on several assumptions and Were Appellants Entitled To A Thirty-Day Extension To because he fails to distinguish between the actions of Dr. Amend Their Report? Locke and Dr. Dragun. *4 [2] Article 4590i, section 13.01(d) required claimants to Dr. Naponic’s analysis is similar to a res ipsa approach. furnish an expert report within 180 days after the claim Because Kelly suffered from peripheral nerve damage and was filed. Article 4590i, section 13.01(g) gave trial courts because the relevant literature documents a connection the discretion to provide a thirty-day grace period to file between that injury and the failure to properly pad self- an amended report if the failure to timely file an adequate retaining retractors, improperly positioning the patient, or report “was not intentional or the result of conscious leaning on the patient, Dr. Naponic assumes that these are indifference but was the result of an accident or mistake.” the “most likely” causes of her injury. He assumes further that Dr. Locke and Dr. Dragun are collectively In their response to appellees’ motion to dismiss, responsible for one or more of these actions.2 appellants included an alternative request for a thirty-day extension based upon their belief that Dr. Naponic’s There are several problems with this approach. First, Dr. report was adequate and, if not, contended that their Naponic’s report does not document that a self-retaining failure to provide an adequate report was due to accident retractor was even used or, if so, by whom. This is not a or mistake and not an intentional act or conscious question of mere semantics. Dr. Dragun cannot be held indifference. Appellants’ request was supported by the responsible for any actions taken before he arrived in the testimony of their trial counsel who stated that he operating room, nor can he be held responsible for contacted Dr. Naponic based upon the referral of a improperly using equipment that was never utilized. general surgeon, that he provided Dr. Naponic with the Knowing what Dr. Naponic alleges Dr. Locke did during relevant records and caselaw, that they discussed this the initial portion of the procedure and what Dr. Naponic case, that Dr. Naponic indicated that it would be difficult alleges happened during Dr. Dragun’s portion of the to distinguish from the medical records which defendant procedure are vital. caused the intraoperative injuries absent an admission, but that Dr. Naponic informed him that all the health care Second, even assuming Dr. Dragun used a self-retaining providers shared a duty to protect Kelly. Counsel testified retractor, Dr. Naponic did not document how it was that he relied upon Dr. Naponic, who was a board- padded or how it should have been padded. Third, the certified obstetrician and gynecologist, to provide him report does not document how Kelly was positioned at with a sufficient report and that he believed Dr. Naponic any point in time during her surgical procedure, nor how had done so. she should have been positioned during Dr. Dragun’s procedure. Finally, the report provides no support for his The Texas Supreme Court faced a similar situation in hypothesis that Dr. Dragun leaned on Kelly beyond his Walker, 111 S.W.3d at 56. There, as here, claimant’s contention that this is frequently the cause of her type of counsel mistakenly believed that his expert’s report was injury. sufficient. The supreme court comprehensively reviewed intermediate court decisions on

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

13.01(g) extensions, finding that some courts were records would contain information on the surgical erroneously holding that any mistake of law was equipment utilized, the manner in which the patient was sufficient to support an extension while others were positioned, and the surgery conducted. Because two impermissibly applying a standard that precluded an different doctors operated on Kelly, their respective extension because of a mistake of law. Id. at 63-64. records would provide information unique to each doctor According to the supreme court, some-but not all- and their procedures. The trial court could have mistakes of law may negate a finding of intentional reasonably concluded that in this case appellants had the conduct or conscious indifference and, therefore, support ability to distinguish between the actions of the two an extension. The distinction turns on the knowledge and doctors and determine what surgical equipment and acts of the claimant. Id. at 64. procedures were utilized and that their failure to do so precluded a thirty-day grace period. The supreme court concluded that counsel’s belief that his expert’s report was sufficient, despite clear statutory The cases decided since Walker indicate that the trial requirement to the contrary, “does not establish a court’s decision to grant or deny a thirty-day grace period ‘sufficient excuse’ necessary to support a finding that a when counsel argues that his mistaken belief that a report party made a mistake of law.” Id. at 64-65. This follows was sufficient constitutes a mistake of law, are afforded because a medical malpractice claimant is charged with great deference due to their individual factual patterns. knowledge of Article 4590i, section 13.01 and its Compare In re Zimmerman, 148 S.W.3d 214, 217 requirements. Id. Appellants distinguish Walker by (Tex.App.-Texarkana 2004, orig. pro-ceeding) (affirming alleging it involved a report which was absent the relevant the trial court’s decision to grant a thirty-day grace period standard of care and how the defendants breached that based upon mistake of law) with Sandles v. Howerton, standard. Appellants contend that, if their report is 163 S.W.3d 829, 838 (Tex.App.-Dallas 2005, no inadequate, it is not because of the absence of a critical pet.)(affirming the trial court’s decision to not grant a element but simply insufficient information. thirty-day grace period based upon a mistake of law).

*5 The trial court is best positioned to assess what We cannot say that the trial court abused its discretion appellants knew and to evaluate their actions. The extent when it denied appellants’ request for a thirty-day grace and quality of the information available to a medical- period. Appellants’ second issue is overruled. malpractice claimant will vary from case to case. That information directly impacts the report a good faith effort will produce. We have found that the trial court did not abuse its discretion when it held Dr. Naponic’s report was insufficient because Dr. Naponic failed to distinguish Conclusion between the actions of the two doctors and because his analysis relies heavily on assumption. During oral The trial court did not abuse its discretion when it granted argument, appellants’ counsel pointed out that physicians appellees’ motion to dismiss and denied appellants’ are unlikely to admit to errors in their medical records request for a thirty-day grace period. The trial court’s and, therefore, that one cannot expect doctors to judgment is affirmed. affirmatively state that they leaned on their patient during surgery. Even if we accept this as true, the medical

Footnotes 1 Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now governed by TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2005). 2 In Palacios, the supreme court noted that, as a general rule, res ipsa loquitur does not apply in medical malpractice cases. 46 S.W.3d at 880. Consequently, an expert report must do more than simply assume that a health care provider is responsible for any surgical complication.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)

Before Chief Justice LAW, Justices PATTERSON and 2006 WL 3246524 PEMBERTON. Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION MEMORANDUM OPINION Court of Appeals of Texas, Austin. JAN P. PATTERSON, Justice. McKENNA MEMORIAL HOSPITAL, INC.; and *1 This accelerated interlocutory appeal arises out of a Robert Donovan Butter, D.O., Appellants health-care liability claim. Appellants McKenna v. Memorial Hospital, Inc., and Robert Donovan Butter, Sandra QUINNEY, Appellee. D.O., appeal the trial court’s denial of their motions to dismiss appellee Sandra Quinney’s lawsuit. They urge No. 03-06-00119-CV. | Nov. 10, 2006. that she failed to provide a sufficient expert report as required by section 74.351 of the civil practice and Synopsis remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § Background: Patient brought health care liability action 74.351 (West Supp.2006). Because we conclude that the against emergency care physician and hospital alleging trial court abused its discretion by finding that the expert that physician negligently failed to diagnosis her report was sufficient, we reverse the trial court’s orders infection. Physician and hospital moved to dismiss the and remand for proceedings consistent with this opinion. action based on patient’s alleged failure to provide a sufficient expert report. The District Court, 207th Judicial District, Comal County, Charles R. Ramsay, P.J., denied the motion. Physician and hospital brought an accelerated FACTUAL AND PROCEDURAL BACKGROUND interlocutory appeal. On February 23, 2003, two weeks after giving birth, appellee Quinney visited McKenna’s emergency room. Holding: The Court of Appeals, Jan P. Patterson, J., held The intake form filled out by the triage nurse noted that that the expert report offered by patient did not set forth Quinney complained of a two-day history of hip pain the applicable standard of care, as required by statute. radiating down both legs. The report filled out by Dr. Butter, the emergency room treating physician, noted the chief complaint as “LBP” (low back pain), and Reversed and remanded. “radiation” was circled under the report’s musculoskeletal section. Dr. Butter diagnosed Quinney with radiculopathy, a disease of the spinal nerve roots, gave From the District Court of Comal County, 207th Judicial her prescriptions for Motrin and a muscle relaxer, and District, No. C2005-1102B, Charles R. Ramsay, Judge discharged her the same day. Presiding. On February 28, 2003, Quinney returned to McKenna’s Attorneys and Law Firms emergency room, where she was diagnosed with a methicillin-resistant Staphylococcus aureus (MRSA) Rebecca A. Copeland and Stephanie S. Bascon, for infection. She was admitted to the intensive care unit that McKenna Memorial Hospital, Inc. day and discharged from the hospital on March 11, 2003.

Susan Cooley and Dena B. Mastrogiovanni, for Robert Quinney filed suit on February 14, 2005, alleging that Donovan Butter. McKenna and Dr. Butter were negligent in failing to diagnose and treat her MRSA infection during her first Kevin B. Miller and Mark A. Cevallos, for Sandra visit to McKenna’s emergency room.1 She alleges that as Quinney. a result of the defendants’ negligence she has suffered damages, including “mitral valve problems.” In support of J. Truscott Jones, for Katharina A. Klouda, M.D. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)

her claims and in order to comply with section 74.351 of the civil practice and remedies code, see id., Quinney Because the statute focuses on what the report should proffered a report by Robert J. Lowry, M.D., which discuss, the only information relevant to the inquiry is included Dr. Lowry’s curriculum vitae. McKenna and Dr. within the four corners of the document. American Butter objected to the report and moved to dismiss Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 Quinney’s lawsuit pursuant to section 74.351. See id. S.W.3d 873, 878 (Tex.2001). A report need not marshal Specifically, McKenna and Dr. Butter argued that the all of the plaintiff’s proof, but it must include the expert’s report failed to state the standard of care and the causal opinion on each of the elements identified in the statute. relationship between the alleged breach of the standard of Id. To constitute a good faith effort, the report must care and Quinney’s damages. McKenna also contended inform the defendant of the specific conduct called into that Dr. Lowry, as a physician, was not qualified to render question and provide a basis for the trial court to an expert opinion as to nursing care. The trial court determine that the claims have merit. Id. at 879. A report determined that the report was sufficient and denied does not fulfill these two purposes if it fails to address the McKenna’s and Dr. Butter’s motions to dismiss. This standard of care, breach of the standard, and causation, or accelerated interlocutory appeal followed. if it only states the expert’s conclusions regarding these elements. Id.

Failure to serve an adequate expert report mandates dismissal with prejudice. Tex. Civ. Prac. & Rem.Code ANALYSIS Ann. § 74.351(b). However, if an expert report cannot be considered served because elements of the report are On appeal, McKenna and Dr. Butter urge that the trial found to be deficient, the trial court has discretion to grant court erred in determining the report was sufficient one thirty-day extension to the claimant to cure the because the report does not discuss the standard of care deficiency. Id. § 74.351(c). and the causal relationship between the alleged breach of the standard and Quinney’s damages. McKenna also argues that the trial court erred in accepting the report because Dr. Lowry is not qualified to give an expert Standard of review opinion on nursing care. We review a trial court’s ruling on a motion to dismiss under section 74.351(l ) for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (per curiam) (citing Palacios, 46 S.W.3d at 877-78). A trial Requirements for expert reports court abuses its discretion if it acts in an arbitrary or *2 In a health-care liability claim, the claimant must unreasonable manner or without reference to any guiding provide each defendant with one or more expert reports rules and principles. Downer v. Aquamarine Operators, and include a curriculum vitae for each expert. Id. § Inc., 701 S.W.2d 238, 241-42 (Tex.1985). When 74.351(a). An “expert report” is defined as: reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for a written report by an expert that that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56, provides a fair summary of the 63 (Tex.2003). expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the Report of Dr. Lowry physician or health care provider In Dr. Lowry’s three-and-one-half-page report, he opines failed to meet the standards, and that the problems in the health care Quinney received the causal relationship between the began with the nursing care during Quinney’s first failure and the injury, harm, or emergency room visit. In discussing how the triage nurse damages claimed. filled out the intake form, he states: Id. § 74.351(r)(6). A court must grant a motion *3 The interesting concern about how this page was challenging the adequacy of the report “only if it appears filled out, is that despite the fact that this patient was to the court, after hearing, that the report does not two-weeks post-partum, and she was having pain represent an objective good faith effort to comply with the anywhere near the pelvis, with a mild fever to boot, the definition of an expert report.” Id. § 74.351(l ). GU, the GYN, and the Abdomen sections of the form

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)

were checked-off as “N/A” (not applicable). These Although these two areas (hip and low back) [sic], the areas should have been at the top of the concern here. It situation is such that the pain was apparently not appears to me that the triage nurse got stuck on the idea specific enough to pinpoint one small spot and should that this was a musculoskeletal issue and did not even have further lead the doctor to investigate the nature of consider that there was a potential post-partum medical the pain further. There is no listed characterization, or issue at hand, despite the prompting via the pre-printed investigation of the nature of the pain listed in the form. history. So he did not take a thorough enough history, and failed to perform a thorough enough exam to even .... justify the “radiculopathy” diagnoses, let alone an ER visit for (any) pain, in a woman who also has a fever, The exam by the triage nurse totally dismisses an and rapid pulse and being 2-weeks post partum. OB/Gyn possibility here, which becomes one of the Furthermore, with what little he did do for an exam, his early mistakes in my opinion. findings actually go away from a true radiculopathy- which again should have led him to investigate things After discussing the performance of the triage nurse, Dr. further. The worst thing is that he neglected to do a Lowry reviews Dr. Butter’s examination of Quinney: thorough history (and thus missed the OB issue completely), and then did not examine the patient to the Here I see a few problems and the following bullet extent that the history (at least the one written down by points will set-through my thinking here: the triage nurse) should have had him delve into the 1. The patient presents and thus is known to have pain possibility of an OB etiology-and most of those options around the low back, hip, and down into the lower on the differential would be extremely life-threatening. extremities; He didn’t even take any labs (from a person complaining of pain anywhere close to the pelvis, and 2. She gave a history of being 2-weeks post partum; two weeks out from a delivery!)-any one of several would have likely pointed towards the presence of a 3. a mild fever was noted at triage time, and her pulse is significant problem. 123bpm; *4 Dr. Lowry then discusses Quinney’s second visit to the With just that information above, most doctors I know McKenna emergency room, identifying as a mistake that would automatically be thinking a Gyn/Ob issue is Quinney was released even though “she was noted to possibly going on here and the “hip” or low-back pain have a fever just a few hours before release.” He states may be being caused by this. There is also the chance that “she should not have been released unless she was that she truly has a direct low-back pain issue from a afebrile for at least a whole uninterrupted 24 hours musculoskeletal standpoint given she has recently immediately prior to release.” delivered a child. Both possibilities needed to be evaluated. In summarizing his comments, Dr. Lowry states, in part:

.... [I]t appears to me that the Triage nurse for the ER visit of 2/23 was [W]hen the physician (Dr. Don Butler?) performs his provided [sic] sub-par history, he does not inquire about the noted (and treatment/care (for not at least already given) history of the 2-weeks post-partum recognizing the possibility of a issue, or of fevers, or anything else down that pathway, Ob/gyn problem existing and but just writes a brief note of the LBP. It appears he evaluating and recording such), and had already made his diagnoses before even seeing the certainly for the ER doc that day patient. Worse yet, his exam was not one which was who clearly didn’t recognize the inclusive enough to actually have been examining for significant potential of an OB/gyn the cause of the LBP (essentially no orthopedic tests issue being at the root of the visit, were listed as being performed). So although he came and also for performing a sub- up with a diagnoses of “radiculopathy”, his exam notes standard evaluation for the history do not reflect such findings (no SLR test even being presented by the patient to the ER, done, no neuro deficits found in the lower extremities, and even for a radiculopathy for etc.) sufficient enough to lead anyone to come up with that matter. Likely, had the source that diagnoses. Also, the intake form listed “hip” pain, of the problem actually been he listed LBP (low back pain) as the chief complaint. looked for (simple labs and a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)

minimally complete physical exam) intake form the triage nurse checked off as “N/A (not at this visit, the answers would applicable)” three areas that “should have been at the top have been staring them right in the of the concern here,” but he does not state what the triage eye and she would have been nurse should have done differently in filling out the form. admitted that day, and undergone a Dr. Lowry’s report criticizes Dr. Butter for not conducting much less exhaustive course the a “thorough enough history,” for failing to perform a next couple months. “thorough enough exam to even justify the ‘radiculopathy’ diagnoses,” for not “delv[ing] into the possibility of an OB etiology,” and for not taking any labs or x-rays. While in hindsight it may be possible to point Standard of care out additional steps that could have been taken to In health-care liability claims, the standard of care is diagnose Quinney’s MRSA infection, Dr. Lowry’s report defined by what an ordinarily prudent health-care does not explain what steps an ordinarily prudent provider or physician would have done under the same or physician would have been required to take. Dr. Lowry similar circumstances. Palacios, 46 S.W.3d at 880; Strom does reference other doctors in his report when he states v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 222 that “most doctors I know would automatically be (Tex.App.-Houston [1st Dist.] 2003, pet. denied). thinking a Gyn/Ob issue is possibly going on here and the “Identifying the standard of care is critical: Whether a ‘hip’ or low-back pain may be being caused by this.” This defendant breached his or her duty to a patient cannot be comment falls short of invoking an appropriate standard determined absent specific information about what the of care, which inquires as to what an ordinarily prudent defendant should have done differently.” Palacios, 46 doctor would have done under the same or similar S.W.3d at 880. The required statutory elements must be circumstances. See Palacios, 46 S.W.3d at 880. present within the four corners of the report and, thus, the courts will not make inferences to supply omitted Dr. Lowry’s assessment of Quinney’s second visit when, elements. See, e.g., Bowie Mem’l Hosp. v. Wright, 79 according to his report, she was released just a few hours S.W.3d 48, 53 (Tex.2002) (per curiam) (stating that court after showing a fever is also deficient. While Dr. Lowry could not infer causation where expert report stated that states that Quinney “should not have been released unless plaintiff might have had “the possibility of a better she was afebrile for at least a whole uninterrupted 24 outcome,” but did not explain how the defendant’s hours prior to release,” it is not clear that the standard of conduct caused the injury); Russ v. Titus Hosp. Dist., 128 care required McKenna’s staff to wait 24 hours. To the S.W.3d 332, 343 (Tex.App.-Texarkana 2004, pet. denied) extent that the report states what an ordinarily prudent (stating that it was not an abuse of discretion for the trial health-care provider or physician would not have done, it court to dismiss a suit against some parties where is addressing a breach of the standard of care rather than ascertaining the standard of care as to them required an the applicable standard of care itself. Strom, 110 S.W.3d inference; expert report detailed omissions of two nurses at 223. but did not address what conduct was necessary or required).

In Palacios, a case involving a patient’s fall from a bed, the plaintiffs relied mainly on one statement in the expert CONCLUSION report to establish the standard of care: “Mr. Palacios had Because Dr. Lowry’s report does not provide enough a habit of trying to undo his restraints and precautions to information to inform McKenna or Dr. Butter of the prevent his fall were not properly utilized.” 46 S.W.3d at specific conduct Quinney has called into question or to 879-80. Holding that this statement was not a statement of allow the trial court to determine that Quinney’s claims a standard of care, the supreme court reasoned that neither have merit, see Palacios, 46 S.W.3d at 878, it was an the trial court nor the defendant would be able to tell from abuse of discretion for the trial court to find that Dr. this conclusory statement whether the expert believed that Lowry’s report was sufficient under the statute. We the standard of care required the defendant “to have therefore reverse the trial court’s orders denying the monitored Palacios more closely, restrained him more defendants’ motions to dismiss and remand for further securely, or done something else entirely.” Id. at 880. proceedings consistent with this opinion.2 *5 Dr. Lowry’s report includes conclusory statements similar to the statement in Palacios. He states that on the

Footnotes

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 McKenna Memorial Hosp., Inc. v. Quinney, Not Reported in S.W.3d (2006)

1 Quinney also brought suit against her obstetrician and the hospital where she delivered her baby, but she non-suited claims against both of those parties. 2 Because the expert report, although deficient, was timely filed, the trial court has discretion to grant Quinney an extension of time to cure the deficiency. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (West Supp.2006); Wells v. Ashmore, No. 07-06- 0232-CV, 2006 Tex.App. LEXIS 8182, at *8 n. 1 (Tex.App.-Amarillo Sept.15, 2006, no pet. h.); Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d 913, 917 n. 2 (Tex.App.-Texarkana 2006, no pet.).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013) 56 Tex. Sup. Ct. J. 946

414 S.W.3d 724 In Texas West Oaks Hospital, LP v. Williams, we held Supreme Court of Texas. that a mental health professional employee’s claims against his employer, a mental health hospital, alleging PSYCHIATRIC SOLUTIONS, INC. and Mission inadequate security and training were health care liability Vista Behavioral Health Services, Inc. d/b/a claims (HCLC) based on the 2003 amendments to the Mission Vista Behavioral Health Center, Texas Medical Liability Act (TMLA).1 Here, we consider Petitioners, the claims of an employee health care provider against his v. employer, also a health care provider. The employee’s Kenneth PALIT, Respondent. claims arise from an incident similar to that in West Oaks, and we thus determine whether the employee’s claim that No. 12–0388. | Aug. 23, 2013. the employer provided improper security of a *725 psychiatric patient and inadequate safety for the employee is an HCLC under the TMLA. As in West Oaks, we Synopsis conclude here that the employee’s claim is an HCLC, the Background: Mental health professional brought employee is a claimant, and his failure to serve the negligence action against employer stemming from defendant with an expert report within the TMLA’s 120– injuries sustained while physically restraining a day deadline mandates dismissal of his suit. Because the psychiatric patient during a behavioral emergency. The court of appeals concluded otherwise, we reverse its 166th Judicial District Court, Bexar County, Solomon judgment. Casseb, III, J., denied employer’s motion to dismiss. Employer appealed. The San Antonio Court of Appeals, 415 S.W.3d 9, affirmed. Employer petitioned for further review, which was granted. I. Background

Kenneth Palit was employed as a psychiatric nurse at Holding: The Supreme Court, Guzman, J., held that Mission Vista Behavioral Health Center, operated by mental health professional’s negligence claim against Psychiatric Solutions, Inc., and Mission Vista Behavioral employer was health care liability claim (HCLC) that Health Services, Inc. (collectively “Mission Vista”). On required expert report. April 2, 2008, he was injured at work while physically restraining a psychiatric patient during a behavioral emergency. Palit subsequently filed suit asserting a cause Reversed and remanded with instructions. of action for negligence against Mission Vista, seeking damages for personal injuries. Boyd, J., filed concurring opinion in which Lehrmann, J., joined. Over 120 days later, Mission Vista moved to dismiss Palit’s suit, claiming the suit alleged an HCLC and must be dismissed because Palit failed to serve an expert report Attorneys and Law Firms as required by section 74.351 of the TMLA. The trial court denied the motion to dismiss, and the court of *724 Ryan Lee Clement, Sepe Jones Andrews Callender appeals affirmed. 415 S.W.3d 9, 10. & Bell, Houston, TX, for Petitioners Psychiatric Solutions, Inc.

Mark A. Cevallos, Kevin B. Miller, Law Offices of Miller & Bicklein, San Antonio, TX, for Respondent Kenneth II. Discussion Palit. Under the TMLA, a claimant is “a person ... seeking or Opinion who has sought recovery of damages in a health care liability claim.” TEX. CIV. PRAC. & REM.CODE § Justice GUZMAN delivered the opinion of the Court, in 74.001(a)(2). When a claimant asserts an HCLC, the which Chief Justice JEFFERSON, Justice HECHT, claimant must comply with the TMLA’s requirements, Justice GREEN, Justice JOHNSON, Justice WILLETT, one of which is to serve an expert report within 120 days and Justice DEVINE joined. of filing suit. Id. § 74.351. Palit, is a claimant under the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013) 56 Tex. Sup. Ct. J. 946

TMLA if his suit is seeking damages in an HCLC. Tex. We addressed the second element in West Oaks, which W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179 involved a negligence claim by a mental health (Tex.2012) (holding the change from “patient” to professional against his mental health hospital employer “claimant” in the 2003 amendment to the HCLC for injuries sustained in a physical altercation with a definition in the TMLA now includes an employee of a patient. Id. at 174–75. We reasoned that a “health care health care provider who brings an HCLC). We must facility’s ‘training and staffing policies and supervision therefore determine whether Palit’s claim is an HCLC to and protection of [a patient] and other residents are resolve whether Palit’s suit must be dismissed for failing integral components of [the facility’s] rendition of health to comply with the TMLA’s expert-report requirement. care services.’ ” Id. at 181 (quoting Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex.2005)) In West Oaks, we held that a mental health professional (alterations in original). Importantly, “by specific employee’s claims against his employer mental health statutory directive[,] health care claims must involve a hospital regarding inadequate security and training were patient-physician relationship,” and claims involving HCLCs based on the 2003 amendments to the TMLA. Id. employee supervision of a patient at a mental health care at 181. The 2003 Legislation amended the definition of an facility can still qualify as a health care claim because the HCLC to mean: patient’s presence at the facility is due to their patient- physician relationship. Id. Thus, because appropriate a cause of action against a health supervision and security of patients and “providing a safe care provider or physician for ... workplace ... [for] caregiver[s] at a psychiatric facility are claimed departure from accepted integral to the patient’s care and confinement,” those acts standards of medical care, or health or omissions constitute “health care” under section care, or safety or professional or 74.001(a)(10) of the TMLA. Id. at 182. administrative services directly related to health care, which Following the 2003 amendments, HCLCs now include proximately results in injury to or “departure[s] from accepted standards of medical care, or death of a claimant, whether the health care, or safety or professional or administrative claimant’s claim or cause of action services directly related to health care.” TEX. CIV. sounds in tort or contract. PRAC. & REM.CODE § 74.001(a)(13). Of these types of claims, safety is the only term not defined in the TMLA. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, See, e.g., id. § 74.001(a)(10), (a)(19), (a)(24) (defining 2003 Tex. Gen. Laws 847, 865 (current version at TEX. “health care,” “medical care,” and “professional or CIV. PRAC. & REM.CODE § 74.001(a)(13)) (emphases administrative services”). Because “safety” is not defined, added). it is construed “according to its common meaning as being secure from danger, harm or loss.” Tex. W. Oaks, We explained in West Oaks that an HCLC has three basic 371 S.W.3d at 184. elements: Here, Palit’s claim alleges he was injured “as a result of (1) a physician or health care improper security of a dangerous psychiatric patient” provider must be a defendant; (2) because Mission Vista “failed to provide a safe working the claim or claims at issue must environment and failed to make sufficient precautions for concern treatment, lack of [his] safety.” As in West Oaks, these allegations fall under treatment, or a departure from both the safety and health care components of an HCLC, accepted standards of medical care, indicating both an alleged departure from the accepted or health care, or safety or standards of safety, see id. at 186, and that Palit’s health professional or administrative care provider employer violated the standard of health services directly related to health care owed to its psychiatric patients, id. at 182. In West care; and (3) the defendant’s act or Oaks we noted that Texas mental health statutes and omission complained of must regulations require that inpatient mental health facilities “ proximately cause the injury to the ‘provide adequate medical and psychiatric care and claimant. treatment to every patient in accordance with the highest standards accepted in medical practice,’ ” id. at 181 *726 371 S.W.3d at 179–80. The parties only dispute the (quoting TEX. HEALTH & SAFETY CODE § second element here. 576.022(a)) (emphasis added), and that “[i]t would blink reality to conclude that no professional mental health judgment is required to decide what those [standards] © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013) 56 Tex. Sup. Ct. J. 946

should be, and whether they were in place at the time of therefore concur in the Court’s judgment, but write [the] injury,” id. at 182. As such, we have held “that if separately to express and explain the nature of my expert medical or health care testimony is necessary to disagreement. prove or refute the merits of a claim against a physician or health care provider, the claim is a health care liability The Texas Legislature has defined a “health care liability claim.” Id. Thus, because Palit’s allegations implicate a claim” to mean “a cause of action against a health care standard of care that requires expert testimony to prove or provider or physician for treatment, lack of treatment, or refute it, his claim is an HCLC. See id.2 other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action *727 III. Conclusion sounds in tort or contract.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). Prior to 2003, this In sum, Palit’s suit claims that Mission Vista departed definition included only “claimed departure [s] from from the accepted standards of safety and health care, accepted standards of medical care, or health care, or which requires the use of expert health care testimony to safety”—that is, it did not include the language “or support or refute the allegations. Id. at 182, 193. Thus, the professional or administrative services directly related to claim is an HCLC. Id. at 182. As a person seeking health care.” Act of May 30, 1977, 65th Leg., R. S., ch. recovery of damages in an HCLC, Palit is a claimant and 817, § 1.03(a)(4), 1977 TEX. GEN. LAWS 2039, 2041 was required to serve an expert report within 120 days of (former TEX.REV.CIV. STAT. art. 4590i, § 1.03(a)(4)), filing suit. TEX. CIV. PRAC. & REM.CODE § repealed by Act of June 2, 2003, 78th Leg., R. S., ch. 204, 74.351(a). Because he failed to serve an expert report, § 10.09, 2003 TEX. GEN. LAWS 847, 884. Mission Vista is entitled to a dismissal of the claim and reasonable attorney’s fees and costs. Id. § 74.351(b). This Court has struggled to reach a consensus on the Mission Vista requested its attorney’s fees and costs in meaning of the word “safety,” as used in both the prior the trial court pursuant to section 74.351(b)(1) of the and current versions of the statute. Under the prior TMLA. Accordingly, without hearing oral argument, version, a five-member majority of the Court first held TEX.R.APP. P. 59.1, we grant the petition for review, that the Legislature’s inclusion of the reference to reverse the court of appeals’ judgment, and remand to the “safety” standards “expands the scope of the statute *728 trial court with instructions to dismiss Palit’s claim beyond what it would be if it only covered medical and against Mission Vista and consider Mission Vista’s health care,” and thus includes “[p]rofessional request for attorney’s fees and costs. Tex. W. Oaks, 371 supervision, monitoring, and protection of the patient S.W.3d at 193. population.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex.2005) (Wainwright, J., joined by Hecht, Medina, Johnson, and Willett, JJ., joined by Jefferson, C.J. as to Part III.B.3 (“Safety”)). Chief Justice Justice BOYD filed a concurring opinion, in which Jefferson joined the Court’s discussion of “safety” and Justice LEHRMANN joined. concluded in his concurring and dissenting opinion that the “statute’s plain text” and “plain meaning” did not Justice BOYD, joined by Justice LEHRMANN, limit safety claims only to those that “involve health care” concurring. or “safety as it relates to the provision of health care.” Id. at 860–61 (Jefferson, C.J., concurring in part and I agree with the Court’s conclusion that Palit’s claims are dissenting in part). Dissenting from the judgment, three health care liability claims subject to the Texas Medical Justices disagreed with Chief Justice Jefferson and agreed Liability Act (TMLA), and I agree with the Court’s instead “with the Court” that the Act encompassed disposition of those claims, which is consistent with the “safety” claims only “when those claims are directly Court’s prior decision in Texas West Oaks Hospital, L.P. related to the provision of health care.” Id. at 866 v. Williams, 371 S.W.3d 171 (Tex.2012). I do not agree, (O’Neill, J., dissenting, joined by Brister and Green, JJ.). however, with the West Oaks majority’s broad construction of the “safety standards” component of the The Court addressed the prior version of the statute again TMLA’s definition of a “health care liability claim.” in Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d Although this disagreement does not alter the proper 658 (Tex.2010). There, two members of the Court disposition of this case, it relates to an important issue concluded that a cause of action alleging departures from that I anticipate the Court will face again in future cases. I accepted safety standards is a health care liability claim © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013) 56 Tex. Sup. Ct. J. 946

only if the safety standards are “an inseparable or integral administrative services,” and thus claims asserting a part of the patient’s care or treatment,” and held that the departure from accepted safety standards are health care plaintiff’s claims did, in fact, involve “an integral and liability claims only if the safety standards are “directly inseparable part of the health care services provided” to related to health care.” him. Id. at 664 (Medina, J., joined by Hecht, J.).1 Four Justices disagreed that the plaintiff’s claims involved an First, I believe this construction is required in light of the integral component of his treatment, but noted that the statutory context and under the principle of ejusdem claims would have satisfied the broader construction of generis. See Marks, 319 S.W.3d at 663 (observing that the “safety” that Chief Justice Jefferson advocated in “the principle of ejusdem generis warns against expansive Diversicare, which the Court had rejected. Id. at 675–76 interpretations of broad language that immediately (Jefferson, C.J., joined by Green, Guzman, and follows narrow and specific terms, and counsels us to Lehrmann, JJ., concurring in part and dissenting in part). construe the broad in light of the narrow”). Even before Two other Justices separately concurred and expressly the Legislature added the phrase “directly related to health agreed with Chief Justice Jefferson’s broader construction care,” some Justices on this Court concluded that, for this of the “safety” component in Diversicare. Id. at 672–74 reason and others, the statute’s reference to safety (Johnson, J., joined by Willett, J., concurring).2 One standards included only those standards related to patient Justice declined to join any of the others’ constructions of care or treatment. See Marks, 319 S.W.3d at 663–64 “safety” because “it is not necessary in this case, as it was (plurality op.); Diversicare, 185 S.W.3d at 866 (O’Neill, not in Diversicare, to define the precise scope of ‘safety’ J., joined by Brister and Green, JJ., dissenting). Several of under the [Act].” Id. at 667 (Wainwright, J., concurring). these Justices concluded that the Legislature’s later addition of the phrase “or professional or administrative More recently, in West Oaks, the Court addressed the services directly related to health care” after the term statute’s current definition of a “health care liability “safety” indicates the Legislature’s agreement with the claim,” and a six-member majority held that “the safety narrower construction of the term “safety.” See component of [health care liability claims] need not be Diversicare, 185 S.W.3d at 867 (O’Neill, J., joined by directly related to the provision of health care.” West Brister and Green, JJ., dissenting). Reading the statutory Oaks, 371 S.W.3d at 186. The Court concluded, inter language in context, I agree that the most appropriate alia, that the Legislature intended that the new phrase conclusion is that the Legislature added the phrase “directly related to health care” modify only the newly- “directly related to health care” to modify the term added terms “professional or administrative services,” and “safety” as well as the terms “professional or not the previously-existing term “safety.” Id. at 185. The administrative services.” Court thus construed the statute to mean that any cause of action against a health care provider or physician claiming Second, I believe we must attribute meaning to the departure from accepted standards of “safety” is a health Legislature’s choice not to insert a comma after the word care liability claim, even if the safety standards are not “safety” when it inserted the phrase “or professional or “directly related to health care.” Id. at 186. Three Justices administrative services directly related to health care.” dissented in West Oaks, concluding that, in adopting the Although I acknowledge the debate over usage of the 2003 amendments, the Legislature intended that the new Oxford or “serial” comma,3 I necessarily attribute phrase “directly related to health care” modify the term meaning to the lack of such usage in this instance. By “safety” *729 as well as the terms “professional or inserting a comma after “safety,” the Legislature would administrative services.” See id. at 198–99 (Lehrmann, J., have clearly indicated its intent to separate that term from joined by Medina and Willett, JJ., dissenting). They read the newly-added language, so that health care liability the statute to mean that a cause of action claiming claims would include claims alleging a departure from departure from accepted standards of “safety” is a health accepted standards of: care liability claim only if it “arise[s] from a breach of a health care provider’s duty to adequately ensure a patient’s safety in providing health care services.” Id. at 1. medical care, or 198. 2. health care, or As in West Oaks, the current statutory definition of a “health care liability claim” governs this case. I agree 3. safety, or with the Justices who dissented in that case. For three *730 4. professional or administrative services primary reasons, I conclude that the Legislature intended directly related to health care ... the phrase “directly related to health care” to modify the term “safety” as well as the terms “professional or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013) 56 Tex. Sup. Ct. J. 946

By choosing not to insert the comma, the Legislature be a health care liability claim under the Court’s holding instead tied the term “safety” to the new language, so West Oaks. Unless I assume that the Legislature that health care liability claims include claims intentionally avoids the use of the Oxford comma, I am alleging a departure from accepted standards of: aware of nothing in the TMLA that indicates their intent to accomplish something so far outside the stated purpose 1. medical care, or of the statute and its amendments. I cannot attribute such great weight to such an assumption. 2. health care, or So far, the Court’s disagreements over the construction of 3. safety or professional or administrative the statute have been of little consequence, because each services directly related to health care ... time we have held that a claim satisfied the “safety” component we have also held the claim satisfied the In my view, we must read the Legislature’s choice “health care” component or that the safety standards were not to insert a comma after “safety” as an indication directly related to health care. See West Oaks, 371 S.W.3d of its intent that “safety” be included with at 181 (holding that hospital caregiver injured by mental “professional or administrative services,” and thus health patient under his supervision asserted health care modified by the requirement that the claim be liability claims “based on claimed departures from “directly related to health care.” accepted standards of health care”); Marks, 319 S.W.3d at Finally, as other Justices have noted, this construction is 666 (holding that claim of recovering surgical patient most consistent with the purposes of the TMLA. See id.; injured when hospital bed footboard collapsed was a Marks, 319 S.W.3d at 663–64. The Legislature enacted health care liability claim “[b]ecause the provision of a the TMLA’s predecessor statute in 1977 for the express safe hospital *731 bed was an inseparable part of the purpose of relieving a “crisis [having] a material adverse health care services provided during [the patient’s] effect on the delivery of medical and health care in convalescence from back surgery”); Diversicare, 185 Texas.” West Oaks, 371 S.W.3d at 177 (quoting Act of S.W.3d at 849 (concluding that claims against nursing May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 home for failing to prevent sexual assault by another TEX. GEN. LAWS 2039, 2040 (repealed 2003)); Marks, patient were “claims for breaches of the standard of care 319 S.W.3d at 663 (same). In 2003, when the Legislature for a health care provider because the supervision of codified the TMLA and amended the definition of a Rubio and the patient who assaulted her and the health care liability claim, it noted that the State was protection of Rubio are inseparable from the health care “facing another ‘medical malpractice insurance crisis’ and and nursing services provided to her”). a corresponding ‘inordinate[ ]’ increase in the frequency of [health care liability claims] filed since 1995.” West Here too, Palit alleges that Mission Vista departed from Oaks, 371 S.W.3d at 177 (quoting Act of June 2, 2003, safety standards that, in my view, are “directly related to 78th Leg., R. S., ch. 204, § 10.11(a), 2003 TEX. GEN. health care,” so these claims are health care liability LAWS 847, 884); Marks, 319 S.W.3d at 663 (same). The claims under section 74.001(a)(13).4 Thus, although I purpose of both the original statute and the 2003 disagree with the Court’s construction of the statute, I amendments was to address crises affecting “medical and concur in the Court’s judgment. In light of the difficulty health care” and “medical malpractice insurance.” that the Court has had in reaching a consensus about the meaning of this statute, and because I anticipate that the As Justice Medina observed in Marks, “given the object Court will one day be required to address claims based on of the statute and the Legislature’s express concern, it is safety standards that are not directly related to health care, apparent that the Legislature did not intend for standards I write separately to express and explain my disagreement of safety to extend to every negligent injury that might with the Court’s construction. befall a patient.” Marks, 319 S.W.3d at 664. Construing section 74.001(a)(13) to encompass all “safety” claims takes the statute far beyond the Legislature’s stated purpose. For example, if a hospital visitor who is Parallel Citations assaulted at night in the hospital’s parking lot sues the hospital alleging that the hospital failed to provide 56 Tex. Sup. Ct. J. 946 adequate lighting and security, the visitor’s claim would

Footnotes 1 371 S.W.3d 171, 179 (Tex.2012).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (2013) 56 Tex. Sup. Ct. J. 946

2 The concurrence believes that the Legislature’s 2003 amendments to the TMLA indicate that claims alleging a departure from the accepted standards of safety must be directly related to health care to qualify as HCLCs. 415 S.W.3d 9, 11 (Boyd, J., concurring). Because the concurrence itself concedes that the claim here directly relates to health care, the opinion is advisory at best. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex.2012). 1 Justices Wainwright, Johnson, and Willett joined other parts of Justice Medina’s opinion, including the disposition.

2 Justices Hecht and Wainwright joined other parts of Justice Johnson’s concurring opinion.

3 See Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 282 (Tex.App.–Texarkana 2008) (discussing use of serial comma and debate), rev’d on other grounds 344 S.W.3d 392 (Tex.2011) and abrogated by Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex.2012); see also Lynne Truss, EATS, SHOOTS & LEAVES: THE ZERO TOLERANCE APPROACH TO PUNCTUATION (Gotham 2004) (“There are people who embrace the Oxford comma, and people who don’t, and I’ll just say this: never get between these people when drink has been taken.”). 4 As the Court agrees, Palit’s claims “arise from an incident similar to that in West Oaks,” ante at 724, and “[a]s in West Oaks, [Palit’s] allegations fall under both the safety and health care components of [a health care liability claim].” Ante at 726. As to the safety claims issue, this case is essentially identical to West Oaks, and it was as unnecessary to address the issue in West Oaks as it is to do so here; or, alternatively, it is as necessary to do so here as it was to do so there. If addressing the issue here constitutes an “advisory” opinion, then the Court’s addressing of the issue in West Oaks was also an advisory opinion and the issue remains unresolved, which is exactly why I have addressed it here.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

ON APPELLEES’ MOTION FOR REHEARING 300 S.W.3d 343 Court of Appeals of Texas, Opinion by: REBECCA SIMMONS, Justice. San Antonio. The motion for rehearing filed by appellees Barbara REGENT CARE CENTER OF SAN ANTONIO II, Hargrave, Individually and as Executrix of the Estate of LTD. PARTNERSHIP d/b/a Regent Care Center of Dorothy Montgomery, and Vernon Lloyd Pierce, Oakwell Farms and RCCSA II, Inc., Appellant, Individually, is denied. This court’s opinion and judgment v. dated April 3, 2009, are withdrawn, and this opinion and Barbara HARGRAVE, Individually and as judgment are substituted. Executrix of the Estate of Dorothy Montgomery, and Vernon Lloyd Pierce, Individually, Appellees. This case is on remand from the Texas Supreme Court. See Regent Care Ctr. of San Antonio II, Ltd. P’ship v. No. 04–05–00274–CV. | Aug. 31, 2009. Hargrave, 251 S.W.3d 517 (Tex.2008). On original submission, we dismissed the appeal for lack of Synopsis jurisdiction holding that this Court lacked subject matter Background: Executrix of nursing home resident’s estate jurisdiction to review the denial of the motion to dismiss filed medical malpractice action against hospital. Hospital and for sanctions which was rendered moot by the trial motioned to dismiss based on inadequate expert report. court’s subsequent nonsuit. This court, however, never The 150th Judicial District Court, Bexar County, Lori reached the merits of the appeal. On remand, the sole Massey, J., denied hospital’s motion. Hospital appealed. remaining issue is the adequacy of the expert report.

Appellants Regent Care Centers of San Antonio II, Limited Partnership d/b/a Regent Care Center of Oakwell [Holding:] The Court of Appeals, Rebecca Simmons, J., Farms and RCCSA II, Inc. (Regent Care) appeal the *345 held that expert report did not contain necessary elements trial court’s denial of its motion to dismiss based on an of causation. inadequate expert report under former article 4590i of the Texas Revised Civil Statutes. Appellees Barbara Hargrave, Individually and as Executrix of the Estate of Reversed and remanded. Dorothy Montgomery and Vernon Lloyd Pierce, Individually (collectively Hargrave) contend that the Opinion, 2009 WL 902233, superseded. expert report, taken in its entirety, provided sufficient information for the trial court to determine that the See also 251 S.W.3d 517. allegations against Regent Care had merit. On remand, we hold the trial court erred in denying Regent Care’s motion to dismiss in accordance with the requirements set forth in Attorneys and Law Firms article 4590i. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, *344 D. Ann Comerio, Law Offices of Ann Comerio, San 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. Antonio, TX, for Appellant. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Alex M. Miller, Mikal C. Watts, Francisco Guerra, IV, Watts Guerra Craft LLP, San Antonio, TX, for Appellee.

Sitting: Chief Justice ALMA L. LÓPEZ1, SANDEE FACTUAL BACKGROUND BRYAN MARION, Justice, REBECCA SIMMONS, Justice. On November 15, 2000, Dr. Rafael Parra performed back surgery on seventy-two year old Dorothy Montgomery. Approximately six days later, Mrs. Montgomery was discharged for rehabilitation into the custody of Regent Care. On December 18, 2000, Mrs. Montgomery was OPINION transferred from Regent Care back to the hospital with acute renal failure. By the time of her transfer, Mrs. Montgomery was suffering from a staphylococci infection © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

and was septic due to an open and draining surgical standards, and (3) the causal relationship between that wound on her back. Mrs. Montgomery was transferred failure and the injury, harm, or damages claimed. See Act back and forth between the hospital and Regent Care of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. several times before her death on February 18, 2001. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 987 (repealed 2003). If a plaintiff fails to comply with section 13.01(d), Hargrave filed a medical malpractice lawsuit against two a defendant may seek sanctions pursuant to section physicians and Regent Care. In order to comply with the 13.01(e) and the trial court shall grant the motion to Texas Medical Liability and Insurance Improvement Act dismiss with prejudice and award costs and attorneys’ (the Act), Hargrave timely filed an expert report prepared fees to the defendant. See id. sec. 13.01(e), (f), 1995 Tex. by Dr. Christopher M. Davey. See id.2 Regent Care Gen. Laws 985, 986. The dispositive question is whether subsequently moved to dismiss the lawsuit, with the expert report represents a good-faith effort to comply prejudice, claiming the report did not comply with the with section 13.01(r)(6). Bowie Mem’l Hosp. v. Wright, statutory requirements. See id. sec. 13.01(e), (l ), (r)(6), 79 S.W.3d 48, 51–52 (Tex.2002) (citing Act of May 30, 1995 Tex. Gen. Laws 985, 986–87. The trial court denied 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(r)(6), 1995 Regent Care’s motions to dismiss, and this appeal Tex. Gen. Laws 985, 987 (repealed 2003)). followed. [3] [4] [5] [6] [7] To constitute a good-faith effort to establish the causal relationship element under the Act, the expert “report need not marshal all the plaintiff’s proof,” or present evidence as if the plaintiff was actually litigating ADEQUACY OF EXPERT REPORT the merits. See Bowie Mem’l Hosp., 79 S.W.3d at 52–53; accord Palacios, 46 S.W.3d at 878. No magic words such Regent Care asserts that the trial court abused its as “reasonable medical probability” are required for the discretion in denying Regent Care’s Motion to Dismiss report to comply with the Act. Bowie Mem’l Hosp., 79 with Prejudice and for Statutory Sanctions and the motion S.W.3d at 53. The report must (1) “inform the defendant to reconsider the same because the expert report of the specific conduct the plaintiff has called into inadequately explains causation. Hargrave contends the question,” and (2) “provide a basis for the trial court to expert report contains sufficient information regarding conclude that the claims have merit.” Palacios, 46 S.W.3d causation for the court to have reasonably concluded the at 879. A report that merely sets forth the expert’s claims against Regent Care had merit. conclusions is insufficient to satisfy these two purposes. Bowie Mem’l Hosp., 79 S.W.3d at 53. In assessing the adequacy of the report, the trial court may not make inferences and is confined to the four corners of the A. Standard of Review [1] report. Id. The standard of review of a trial court’s order either dismissing or refusing to dismiss a medical malpractice claim for failure to comply with the expert report provisions of section 13.01(d) of article 4590i is abuse of C. Causation discretion. See Walker v. Gutierrez, 111 S.W.3d 56, 62 Regent Care argues that the expert report filed by Dr. (Tex.2003); Am. Transitional Care Ctrs. of Tex., Inc. v. Davey is inadequate and, consequently, dismissal was Palacios, 46 S.W.3d 873, 877 (Tex.2001). An abuse of mandatory. Regent Care challenges only the causation discretion occurs when a trial court acts arbitrarily or element of the report, and contends the report does not unreasonably and “without reference to any guiding rules meet the statutory requirements because it is conclusory or principles.” Walker, 111 S.W.3d at 62. A clear failure and based upon mere conjecture and possibility.3 In by the trial court to analyze or apply the law correctly will particular, Regent Care complains that Dr. Davey’s constitute an abuse of discretion. Baylor Univ. Med. *346 report: (1) contains conclusory statements as to causation Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas and fails to link the alleged breaches to the injuries and 2007, pet. denied). damages alleged, and (2) fails to address the numerous allegations contained in the First Amended Original Petition. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(l ), 1995 Tex. Gen. Laws 985, 987 B. Sufficiency of the Expert Report [2] (repealed 2003). The Act defines an expert report as a written report by an expert that provides a fair summary of the expert’s [8] [9] As to causation, in the concluding paragraph, Dr. opinions regarding: (1) applicable standards of care, (2) Davey opines “the Breach of the Standard of Care as set the manner in which the care rendered failed to meet the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

forth for each Physician and[/]or Nursing Home in this and care provided by Dr. Wilcox in December. See report was a proximate cause of the death of Dorothy Costello v. Christus Santa Rosa Health Care Corp., 141 Montgomery.” Regent Care argues that the one sentence S.W.3d 245, 247 (Tex.App.–San Antonio 2004, no pet.) conclusion on causation is insufficient to satisfy article (criticizing the expert report as insufficient because it 4590i. We agree. While a claimant is not required to does not “explain the causal connection between [the conclusively prove her case through a preliminary expert hospital’s] claimed omissions (failed to appropriately report, the report may not merely state conclusions *347 triage and evaluate) and [the patient’s] death”). Dr. about any of the elements. Palacios, 46 S.W.3d at 879. “ Davey’s opinion fails to articulate facts connecting the ‘[T]he expert must explain the basis of his statements to criticized deviations from the standard of care by Regent link his conclusions to the facts.’ ” Bowie Mem’l Hosp., Care with Mrs. Montgomery’s dehydration, sepsis, or 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d death. 882, 890 (Tex.1999)). Bowie cautions that no “ ‘magical words’ ” are required to establish the necessary causal Bowie cautions that no “ ‘magical words’ ” are required to link. See Bowie Mem’l Hosp., 79 S.W.3d at 53. But, to establish the necessary causal link. See Bowie Mem’l avoid being conclusory, “the expert must explain the basis Hosp., 79 S.W.3d at 53. But, to avoid being conclusory, of his statements to link his conclusions to the facts.” “the expert must explain the basis of his statements to link Bowie, 79 S.W.3d at 52 (emphasis added) (quoting Earle his conclusions to the facts.” Bowie, 79 S.W.3d at 52 v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). (emphasis added) (quoting *348 Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). Dr. Davey’s opinion Hargrave responds that the report provides “several contains no information about the cause of Mrs. statements about causation of Mrs. Montgomery’s injuries Montgomery’s dehydration; we are, therefore, left to infer (renal failure and sepsis) and eventual death, and provides that because Mrs. Montgomery presented at the hospital factual information to allow the court to understand his with severe dehydration, Regent Care violated a standard causation opinions.” Specifically Hargrave identifies the that caused the dehydration. See Villa v. Hargrove, 110 following two standards of care breached by Regent Care: S.W.3d 74, 79 (Tex.App.–San Antonio 2003, pet. denied) (noting that the expert report’s statement that defendants (i) The nursing home staff did not adequately and should have “ ‘recognized’ imminent sepsis and timely inform the physician of the increasing amount ‘hospitalized’ [plaintiff] does not explain how each failed of drainage from her back incision in December to meet the explicable standard of care” and is 2000, which reasonable staff in a similar situation conclusory). Accordingly, we conclude that Dr. Davey’s would do[, and;] expert report fails to establish a causal relationship between the alleged departure from a standard of care and (ii) The nursing home allowed [Mrs. Montgomery] Mrs. Montgomery’s dehydration, sepsis, or death. to become so dehydrated that she actually went into renal failure by 12/18/00. Her initial lab results Dr. Davey’s expert report required the trial court to infer indicate severe dehydration, which most likely causation, and under the four corners rule, the trial court occurred over several days and should have been is prohibited from doing so. See Bowie Mem’l Hosp., 79 physically apparent—i.e., not taking fluids, dry S.W.3d at 52. It, therefore, follows that Dr. Davey’s tongue, increasing lethargy. A reasonable nursing report was deficient as to causation and “the report does home in a similar situation would have noted her not represent a good-faith effort to comply with the decline and alerted the physician much earlier. [statutory requirements].” See id. at 51. Because we hold the expert report was inadequate as to causation, we need In essence, Hargrave criticizes the nursing staff for failing not address the allegations concerning negligence. See to inform the doctors about Mrs. Montgomery’s increased TEX.R.APP. P. 47.1 (requiring concise opinions drainage and for allowing her to become dehydrated. addressing only those issues “necessary to find disposition of the appeal”). Dr. Davey’s report provides that: “the cause of the renal failure was most likely dehydration, as it resolved just with fluid replacement” (emphasis added) thereby refuting dehydration as the cause of Mrs. Montgomery’s death. Additionally, he fails to link Regent Care’s failure CONCLUSION to timely inform a physician of increased drainage in December 2000 to Mrs. Montgomery’s subsequent death The expert report fails to link Regent Care to Mrs. in February 2001 due to sepsis.4 This is particularly true Montgomery’s dehydration, sepsis, or subsequent death; considering Mrs. Montgomery’s admission to the hospital thus, it does not contain the necessary elements of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

causation. Accordingly, because the expert report is therefore, reverse the order of the trial court and remand inadequate, the trial court abused its discretion in failing this matter to the trial court for further proceedings to dismiss the case against Regent Care, with prejudice, consistent with this opinion. and award reasonable attorney fees. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(e), (l ), 1995 Tex. Gen. Laws 985, 986–87 (repealed 2003). We,

Footnotes 1 Chief Justice Alma L. López, retired, not participating.

2 All health care liability claims filed before September 1, 2003, must comply with section 13.01(d) of article 4590i. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. 3 Because Regent Care does not dispute that the expert report fairly summarizes the elements of applicable standard of care and breach, we review Dr. Davey’s report as to the causation element only. 4 Although Hargrave suggests that Dr. Davey’s report includes several statements regarding causation of “Mrs. Montgomery’s injuries (renal failure and sepsis) and eventual death,” the report clearly provides that Mrs. Montgomery “died of sepsis under palliative Hospice care 2/18/01.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

128 S.W.3d 332 Court of Appeals of Texas, Texarkana. OPINION Robin Gwynne RUSS, Appellant, Opinion by Justice CARTER. v. TITUS HOSPITAL DISTRICT, d/b/a Titus Robin Gwynne Russ appeals from a judgment dismissing Regional Medical Center, Peggy Burge, R.N., her medical malpractice suit against Titus Hospital Rachel Meyers, R.N., and Dr. Mark E. Quiring, District, d/b/a Titus Regional Medical Center (the Appellees. Hospital); Peggy Burge, R.N.; Rachel Meyers, R.N.; and Dr. Mark E. Quiring (collectively referred to as No. 06–03–00032–CV. | Submitted Jan. 22, 2004. | Appellees). Russ sustained injuries from a fall out of a Decided Feb. 3, 2004. hospital window. According to her allegations, the fall resulted from negligence of the various procedures employed by the Appellees while Russ was under their Synopsis Background: Patient brought medical malpractice action care awaiting transfer to a psychiatric hospital. Appellees against hospital, nurses, and doctor regarding her fall out moved to dismiss the case alleging the expert report was not timely filed and that it did not comply with the a hospital window. The 76th Judicial District Court, Titus statutory requirements for an expert report. The trial court County, Jimmy L. White, J., dismissed complaint for dismissed the suit. We affirm in part, reverse in part, and untimely , inadequate expert’s report. Patient appealed. remand the case to the trial court for further proceedings consistent with this opinion.

Holdings: The Court of Appeals, Carter, J., held that: Russ raises two issues on appeal. First, she argues the trial court abused its discretion in failing to allow an additional [1] thirty days in which to file an expert report. Second, she trial court abused its discretion in refusing to grant 30- day extension to file report; contends the trial court erred in granting the motion to dismiss because the report was sufficient under Article [2] 4590i. expert’s report was timely provided; [3] On or about December 3, 1999, Russ sustained injuries expert’s report met statutory requirements as to hospital and physician; from a fall out of a window. Russ filed suit against numerous parties, including the Hospital, on November [4] 30, 2001. The petition alleged the Hospital was negligent expert’s report failed to meet statutory requirements as to nurses; and in its treatment of Russ. Russ failed to file an expert report by May 29, 2002 (180 days after filing suit). On [5] July 1, 2002, Appellees filed a motion to dismiss. On the physician was qualified to render expert opinions. day of the hearing, July 22, 2002, but before the hearing, Russ filed a motion to extend the deadline until August Affirmed in part, reversed in part, and remanded. 15, 2002. The trial court held the hearing, but the record does not contain a ruling on either the motion to dismiss or the motion to extend the deadline. On August 16, 2002, Attorneys and Law Firms Russ filed a second motion to extend requesting the deadline be extended to August 20, 2002, which was *335 Paul D. Hoover, Paul D. Hoover & Associates, twenty-nine days after the hearing. On August 20, 2002, Texarkana, for appellant. Russ provided Appellees a copy of the expert report by fax. Appellees filed a motion to exclude Russ’ report C. Victor Haley, John L. Price, Fairchild, Price, et al., *336 due to failure to comply with the deadline and for Nacogdoches, A. Craig Carter, Davis & Davis, PC, failure to meet the requirements of the statute. On October Austin, for appellees. 2, 2002, a hearing was held and the trial court dismissed the lawsuit. Russ now appeals. Before MORRISS, C.J., ROSS and CARTER, JJ.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

Timeliness of Motion to Extend Time failure was not intentional or a result of conscious [1] [2] [3] [4] In her first point of error, Russ argues the trial indifference. In re Morris, 93 S.W.3d 388, 391 court erred in failing to grant an additional thirty days in (Tex.App.-Amarillo 2002, no pet.). which to file an expert report. We review the trial court’s ruling on a motion for extension of time to file an expert *337 [7] The Appellees contend the expert report is report under an abuse of discretion standard. See Walker untimely because the report was not filed within 210 days v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). An abuse of of the filing of the suit. Russ’ first motion for extension of discretion occurs when a trial court acts in an arbitrary or the deadline was filed on July 22, 2002. This motion unreasonable manner or without reference to any guiding requested an extension of the deadline until August 15, rules or principles. See Moore v. Sutherland, 107 S.W.3d 2002, and was entitled “MOTION TO EXTEND TIME 786, 789 (Tex.App.-Texarkana 2003, pet. denied). A trial FOR FILING UNDER 4590(i) SECTION 13.01(F).” An court will be deemed to have acted arbitrarily and extension under Section 13.01(f) extends the 180–day unreasonably if it could have only reached one decision, period described in Section 13.01(d) to 210 days.2 yet reached a different decision. Teixeira v. Hall, 107 Although this Court has noted the motion to extend the S.W.3d 805, 807 (Tex.App.-Texarkana 2003, no pet.). deadline can be filed at any time, the extension begins “[A] clear failure by the trial court to ... apply the law running at the end of the original 180–day time period in correctly will constitute an abuse of discretion,....” Walker subsection (d) and lasts until 210 days from the filing of v. Packer, 827 S.W.2d 833, 840 (Tex.1992). the suit. See Roberts, 988 S.W.2d at 402. Under an extension granted pursuant to Section 13.01(f), the expert [5] Article 4590i, Section 13.01(d) requires a plaintiff report would have been required to be furnished to the asserting a claim against a healthcare provider or opposing parties within 210 days of the filing of the suit. physician to submit an expert report, along with the If the extension had been requested under Section expert’s curriculum vitae, no later than the 180th day after 13.01(f), the expert report would have been required to be filing suit. See TEX.REV.CIV. STAT. ANN.. art. 4590i, furnished to the Hospital and other defendants by June 28, § 13.01(d).1 The Act requires an expert report to provide 2002. The Appellees contend that, because the expert “a fair summary of the expert’s opinions ... regarding report was not furnished to the opposing parties until applicable standards of care, the manner in which the care August 20, 2002, the expert report was not timely. rendered by the physician or health care provider failed to meet the standards, and the causal relationship between Even though the title refers to Section 13.01(f), our that failure and the injury, harm, or damages claimed.” conclusion is that the substance of Russ’ motion requested See TEX.REV.CIV. STAT. ANN.. art. 4590i, § the extension under Section 13.01(g). In the motion and at 13.01(r)(6) (repealed 2003). the hearing, the parties recited the standards of Section 13.01(g) instead of Section 13.01(f) to the trial court. In [6] Article 4590i, Section 13.01 provides two methods by the body of the motion, it is alleged that co-counsel was in which a claimant can receive an extension to the 180–day trial and that counsel did not realize it was his deadline. Under Section 13.01(f), “[t]he court may, for responsibility to file the expert report. Such a statement is good cause shown after motion and hearing, extend any consistent with a showing of accident or mistake. In time period specified in Subsection (d) of this section for addition, the body of the motion states, “[t]his motion is an additional 30 days. Only one extension may be granted timely since filed prior to the hearing on Defendants [sic] under this subsection.” TEX.REV.CIV. STAT. ANN.. art. motions.” This statement asserts the timeliness 4590i, § 13.01(f) (repealed 2003). Section 13.01(f) has requirement of Section 13.01(g) rather than Section been interpreted by this Court to be directory rather than 13.01(f). mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied). Further, at the hearing on July 22 at which the court Under the second method, found in Section 13.01(g), if considered the first motion to extend, the Hospital and “the court finds that the failure of the claimant or the Russ both argued under the standards of Section 13.01(g). claimant’s attorney was not intentional or the result of Counsel for the Hospital stated: conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to I think that the standard is in terms permit the claimant to comply with that subsection.” of when a motion like this for an Section 13.01(g) has been interpreted to be mandatory on extension is to be granted is when a finding that the failure was a result of accident or there’s a showing of accident or mistake. Sutherland, 107 S.W.3d at 789. An extension mistake ... I’m not sure that there’s under Section 13.01(g) can be obtained for either failure any showing of accident or mistake to file a report or for an inadequate report, provided the on the part of Mr. Cooksey’s part © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

[sic] ... I think they need to show what, and I think Don was relying on me, and I was some sort of accident or mistake on relying on Don,....” In essence, counsel informed the court Mr. Cooksey’s part to justify an the two attorneys representing Russ erred in their extension.... communication as to which one of them had the responsibility to file the report. “Accident or mistake” is the standard for a motion under Section 13.01(g), not Section 13.01(f), which requires [9] We note that these statements were not made under “good cause.” Shortly thereafter, Russ’ counsel made the oath. The general rule is that an attorney’s statements assertion to the trial court that “a motion to extend time is must be under oath to constitute evidence. Banda v. timely filed if it’s filed before the time of the hearing on Garcia, 955 S.W.2d 270, 272 (Tex.1997). However, such their motion to dismiss.” As discussed above, this is the error is waived by failure to object when the opponent standard for Section 13.01(g) rather than Section 13.01(f). knew or should have known an objection was required. At this point, the trial court inquired if “the statute uses Id.; Sutherland, 107 S.W.3d at 793; Knie v. Piskun, 23 the language ‘accident or mistake.’ “ The Hospital’s S.W.3d 455, 463 (Tex.App.-Amarillo 2000, pet. denied). counsel responded that the statute says there cannot be Similar to Banda, Knie, and Sutherland, the evidentiary “conscious indifference,” and Russ’ counsel agreed. We nature of the statements was obvious, particularly after not that counsel for Dr. Quiring stated the standard was the attorney had offered to take the witness stand. We “good cause,” which is the standard under Section conclude the failure of either defense counsel to object 13.01(f). waived the requirement that the statement be made under oath. *338 [8] A motion should be construed by its substance to determine the relief sought, not merely by its form or [10] Further, the statements are evidence of an accident or caption. See Surgitek, Bristol–Myers Corp. v. Abel, 997 mistake. The mistake in this case involved a failure of S.W.2d 598, 601 (Tex.1999). Because the motion communication between co-counsel, which resulted in the contained allegations consistent with showing accident or requirement being inadvertently overlooked. As such, the mistake, contained the time standards for Section mistake is a mistake of fact which clearly triggers the 13.01(g)—not Section 13.01(f), and at the hearing, it was extension.4 As we noted in Sutherland, *339 the accident primarily treated by counsel and the trial court in terms or mistake need not necessarily be a good excuse, unique to Section 13 .01(g), we find the motion is one for provided the act or omission was, in fact, an accident or extension under Section 13.01(g). mistake. Sutherland, 107 S.W.3d at 792. If the failure to file a report resulted from an accident or mistake, even The next question is whether the first motion to extend negligence does not defeat a right to an extension. See id.; was timely filed.3 The first motion for extension was filed Roberts, 988 S.W.2d at 403. before the hearing. A motion under Section 13.01(g) “shall be considered timely if it is filed before any hearing [11] Russ’ counsel offered uncontroverted evidence that he on a motion by a defendant under Subsection (e) of this did not act with conscious indifference or intentional section.” TEX.REV.CIV. STAT. ANN.. art. 4590i, § disregard and that the failure resulted from an accident or 13.01(g) (repealed 2003). A hearing on the Appellees’ mistake. Testimony by an interested witness may motion to dismiss under Section 13.01(e) was held on establish a fact as a matter of law if the testimony could July 22, 2002. On the day of the hearing, July 22, 2002, be readily contradicted if untrue, and is clear, direct and but before the hearing, Russ filed the first motion to positive, and there are no circumstances tending to extend. Therefore, the first motion to extend was timely discredit or impeach it. Lofton v. Tex. Brine Corp., 777 filed under Section 13.01(g). S.W.2d 384, 386 (Tex.1989). Since the evidence was uncontroverted, the trial court abused its discretion in not Next, we must consider whether Russ demonstrated that making a finding of accident or mistake. she was entitled to an extension. Russ had to prove that the failure “was not intentional or the result of conscious [12] [13] The final issue under Russ’ first point of error is indifference but was the result of an accident or mistake.” whether the expert report was timely provided to the See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g) opposing parties under Section 13.01(g). Section 13.01(g) (repealed 2003). During the hearing, Russ’ counsel provides a thirty-day “floating window,” which begins to offered to testify. The trial court stated he was “an officer run on a finding of accident or mistake.5 Because the of the court,” which implied there was no need for extension is mandatory once it is established that the counsel to take the stand or to be sworn. No objection was failure was not due to intentional or conscious made by either defense counsel. Russ’ counsel then indifference but rather an accident or mistake, the trial explained: “we had some confusion about who was to do court must grant a thirty-day extension.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

48 S.W.3d 259, 264 (Tex.App.-San Antonio 2001, pet. causation does not meet the statutory requirements. Id. denied). Therefore, Russ should have received a thirty- These three separate requirements must all be present and day extension starting on July 22. Since the report was described with sufficient specificity. provided to the opposing parties on August 20, the expert [19] [20] [21] report was timely within the thirty-day window. The expert report must set forth an applicable standard of care. TEX.REV.CIV. STAT. ANN.. art. When presented with uncontroverted evidence, the trial 4590i, § 13.01(r)(6). The standard of care for a physician court should have found that the failure was not is what an ordinarily prudent physician would do under intentional or the result of conscious indifference, but the same or similar circumstances. Palacios, 46 S.W.3d at rather due to accident or mistake. The motion was filed 880. Identifying the standard of care is critical: “[w]hether timely, and the expert report was timely provided to the a defendant breached his ... duty to a patient cannot be opposing parties. determined absent specific information about what the defendant should have done differently.” Id. “While a ‘fair summary’ is something less than a full statement of the applicable standard of care and how it was breached, a Adequacy of Medical Report fair summary must set out what care was expected, but [14] In her second point of error, Russ contends the trial not given.” Id. In other words, the report must specify court erred in dismissing the suit. Dismissal under Article what the defendant should have done. 4590i, Section 13.01(e) is treated as a sanction and is reviewed for an abuse of discretion. See Am. Transitional Second, the expert report must indicate how the defendant Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 breached the standard of care. The report must indicate (Tex.2001). what actions taken by the defendant deviated from the standard of care. It must be a “fair summary” of the care [15] If a claimant furnishes a report within the time which was expected, but not given. Id. permitted, a defendant may file a motion challenging the report. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § [22] The expert’s report must also contain information on 13.01(l ) (repealed 2003). The trial court shall grant the causation. It is not enough for a report to contain motion only if it appears to the court, after hearing, that conclusory insights about the plaintiff’s claims. Bowie the report does not represent a good-faith effort to comply Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); with the statutory definition of an expert report. See Sutherland, 107 S.W.3d at 790. Rather, the expert must TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(l ); explain the bases of the statements and link his or her Palacios, 46 S.W.3d at 877–78. In determining whether conclusions to the facts. Id. the report represents a good-faith effort, the trial court’s inquiry is limited to the four corners of the report. Russ presented an expert report in letter form from TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6); Mitchell H. Dunn, M.D. The report, in its entirety, states Palacios, 46 S.W.3d at 878. as follows: [16] Although the trial court stated as its reason for It is my opinion, held to a reasonable degree of medical dismissing the lawsuit the *340 failure to meet “the 25 probability, that there were several deviations from the day extension,”6 the order granting the dismissal did not standard of care that directly contributed to the injuries specify a reason. A trial court cannot abuse its discretion sustained by Robin Russ on the evening of December if it reaches the right result, even for the wrong reason. 3, 1999. See In re Acevedo, 956 S.W.2d 770, 775 (Tex.App.-San Antonio 1997, no pet.); Hawthorne v. Guenther, 917 Dr. Quiring deviated from the standard of care by S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ failing to fully evaluate Ms. Russ’ suicidal ideation and denied); Luxenberg v. Marshall, 835 S.W.2d 136, 141–42 plans, and failing to inquire about the reason for her (Tex.App.-Dallas 1992, no writ). Therefore, we must excessive serum Dilantin level. There is no evidence consider whether the suit should have been dismissed that he ever performed a mental status examination. It under the Appellees’ alternative argument that the expert is evident that he believed the overdose was purposeful report was inadequate. as his progress note read “Attention getting ? v. suicidal attempts.” Also, it is clear that Ms. Russ was being held [17] [18] in the hospital awaiting transfer to a psychiatric Omission of any of the statutory elements prevents the report from being a good-faith effort. Palacios, 46 hospital, indicating that she required further care in a S.W.3d at 879. A report that merely states the expert’s psychiatric hospital setting. Dr. Quiring was aware of conclusions about the standard of care, breach, and this and should have been aware of the MHMR

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

representative’s concern that “client may try suicide proceeding or at trial.” Id. at 879. The expert report is not *341 again.” He further deviated from the standard of required to prove the defendant’s liability, but rather only care by failing to order one-to-one observation of Ms. provide notice of what conduct forms the bases of the Russ. Her numerous episodes of attempting to get out plaintiff’s complaints. “To constitute a ‘good-faith effort,’ of bed unsupervised, her very unsteady gait, and her the report must provide enough information to fulfill two history of impulsive, potentially life-threatening purposes: (1) it must inform the defendant of the specific behaviors necessitated either one-to-one observation or conduct the plaintiff has called into question, and (2) it restraints that were escape-proof. Either one of these must provide a basis for the trial court to conclude that the interventions would have prevented Ms. Russ’ injuries. claims have merit.” Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). The hospital deviated from the standard of care by placing a patient with potential suicidal ideation and Palacios makes it clear that a claimant must present recent suicidal behavior in a fourth floor room with specific evidence in a medical report because “knowing unlocked windows. It is the standard of care that what specific conduct the plaintiff’s experts have called windows either be secured with metal screens that only into question is critical to both the defendant’s ability to staff can open, or be locked. If the patient has access to prepare for trial and the trial court’s ability to evaluate the the window, a special difficult to break glass or viability of the plaintiff’s claims.” Palacios, 46 S.W.3d at Plexiglass should be used. It is simply unacceptable 877. The Texas Supreme Court stated that “[w]hether a that patients of that type could have access to an open defendant breached *342 his or her duty to a patient window. Obviously, if there was no access to an open cannot be determined absent specific information about window, Ms. Russ’ injuries would not have occurred. what the defendant should have done differently.” Id. at 880. In other words, one must be able to determine from The nursing staff at Titus Regional Medical Center also the report what the standard of care required to be done. deviated from the standard of care by failing to pass on This requires “specific information about what the critical information regarding Ms. Russ’ ICU behavior, defendant should have done differently.” Id. However, the including the fact that her dilantin toxicity was report is not required to use magical words. Wright, 79 purposeful, her degree of agitation, her multiple S.W.3d at 53; Sutherland, 107 S.W.3d at 790. It is the attempts to get out of bed unsupervised, and her need substance of the opinions, not the technical words used, for one-to-one supervision. Then, even after witnessing that constitutes compliance with the statute. Sutherland, her agitation, her unsteady gait, and the fact that 107 S.W.3d at 790. “Patient almost went over other side of bed head first,” the nurses on the med.-surg. floor failed to restrain Ms. [25] Dr. Dunn’s report states his opinions concerning the Russ or pursue a higher degree of supervision for her. standard of care, the breach, and causation relating to the If they had, Ms. Russ’ injuries would not have Hospital in these particulars: occurred. In addition, the nurses’ notes reflect knowledge that Ms. Russ had cigarettes but would not give them up when the staff requested that she do so. If they had obtained a doctor’s order to confiscate Ms. Standard of Care: Russ’ cigarettes, perhaps she would not have tried to go out on the ledge. It is the standard of care that windows either be secured with metal screens that only staff can open, or be [23] [24] The plaintiff must only make a good-faith attempt locked. If the patient has access to the window, a to provide a fair summary of the expert’s opinions in the special difficult to break glass or Plexiglass should be expert report. TEX.REV.CIV. STAT. ANN.. art. 4590i, § used. 13.01(l ); Palacios, 46 S.W.3d at 875. A “good-faith” effort requires that the report discuss the standard of care, breach, and causation with sufficient specificity to inform Breach: the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to The hospital deviated from the standard of care by conclude that the claims have merit. Palacios, 46 S.W.3d placing a patient with potential suicidal ideation and at 875. “[T]o avoid dismissal, a plaintiff need not present recent suicidal behavior in a fourth floor room with evidence in the report as if it were actually litigating the unlocked windows. merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment Causation:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

Obviously, if there was no access to an open window, “necessitated” connotes that the actions which follow Ms. Russ’ injuries would not have occurred. should have been done and were essential or vital. The The expert report clearly provides the standard of care for expert stated that either one-to-one observation or escape the Hospital. It provides that the standard of care is that restraints were necessary. It is clear from the report what the window should have been locked or secured with the expert believes the physician should have done. Based metal screens. This is a specific allegation which provides on this information, the physician knew precisely the the Hospital with notice of the conduct complained of by complained-of failures. Further, the trial court had Russ. The report then provides that the standard of care information on which to evaluate the viability of Russ’ was breached by placing a suicidal patient in a fourth claims. When discussing the actions of the physician, and floor room with unlocked windows. Again, this statement his care to the patient, stating that a course of treatment is is specific and informs the Hospital of the conduct of “necessitated” establishes the standard of care and which Russ is complaining. Last, the report states that, if complies with the requirements for a medical report. Russ did not have access to an open window, her injuries [26] [27] would not have occurred. It is undisputed that Russ’ Last, our analysis arrives at the conduct of the two injuries resulted from falling out of a fourth story remaining nurses, Peggy Burge, R.N., and Rachel window. Obviously, a party cannot fall from a window if Meyers, R.N. The expert report explains in detail the one cannot exit through the window. The substance of the omissions of the nurses which he regarded as a breach of report gives fair notice to the Hospital of the negligent the standard of care. However, the report does not state conduct on which Russ relies and provides a sufficient what conduct was necessary or required and, therefore, basis for the trial court to conclude that the claims have gives no assistance to the trial court in attempting to merit. evaluate the conduct of the nurses by the standard of care governing them. A trial court does not abuse its discretion Dr. Dunn’s report states his opinions concerning the in dismissing a suit in which one is required to infer the standard of care, the breach, and causation relating to Dr. standard of care from the allegations in the expert report. Quiring in these particulars: Wright, 79 S.W.3d at 53. Thus, the trial court did not abuse its discretion in dismissing the suit as to the nurses because the standard of care must be inferred.

Standard of Care: The report is a good-faith attempt to give a fair summary of the standard of care, the breach, and the cause of the Her numerous episodes of attempting to get out of bed injuries suffered as a result of that breach concerning the unsupervised, her very unsteady gait, and her history of Hospital and Dr. Quiring. Because the report in this case impulsive, potentially life-threatening behaviors is not conclusory and does not require inferences, the necessitated either one-to-one observation or restraints report adequately fulfills the requirements of the statute as that were escape-proof. it relates to the Hospital and Dr. Quiring.

Last, the Hospital argues in the alternative that the report Breach: is inadequate because Dr. Dunn is not a qualified expert and that he did not state whether his standard of care He further deviated from the standard of care by failing applies to a general hospital. We will briefly address these to order one-to-one observation of Ms. Russ. remaining arguments.

Causation: The Hospital contends the expert is not qualified because he has never worked in a general hospital. We disagree. Either one of these interventions [one-to-one Dr. Dunn meets the definition of an “expert” for the observation or escape proof restraints] would have purpose of Section 13.01(r)(5)(A). TEX.REV.CIV. prevented Ms. Russ’ injuries. STAT. ANN.. art. 4590i, § 13.01(r)(5)(A) (repealed In contrast to the report in Palacios, the expert report here 2003); see TEX.REV.CIV. STAT. ANN.. art. 4590i, § provides the Appellees and the trial court with the specific 14.01(a), Act of May 5, 1995, 74th Leg., R.S., ch. 140, § information *343 required. This report states that “[h]er 2, 1995 Tex. Gen. Laws 988, repealed by Act of June 2, numerous episodes of attempting to get out of bed 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. unsupervised, her very unsteady gait, and her history of Laws 884. Dr. Dunn is a board certified psychiatrist who impulsive, potentially life-threatening behaviors has served as acting clinical director and medical director necessitated either one-to-one observation or restraints of the forensic program of Terrell State Hospital since that were escape-proof.” (Emphasis added.) The term 1995. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

[28] [29] The Hospital also argues that the expert report fails We have carefully examined the Texas Supreme Court’s to specify whether this standard of care applies to a decisions in Palacios and Wright, and believe that this general hospital or simply to a psychiatric hospital. It is case is distinguishable. Unlike the reports examined in apparent that Dr. Dunn knew the Hospital was a general Palacios, the report in question is not conclusory as it hospital because he stated Russ was awaiting transfer to a pertains to Dr. Quiring and the Hospital. The report psychiatric hospital. “The standard of care for a hospital is contains specific information which informs the what an ordinarily prudent hospital would do under the Appellees what Russ is contending they should have same or similar circumstances.” Palacios, 46 S.W.3d at done. Further, one is not required to infer a standard of 880. In addition to serving as the medical director of the care from mere insights provided by the report. Further, forensic program at Terrell State Hospital, Dr. Dunn *344 Palacios’s two-part test to determine “good faith” was also has a part-time practice in adult and forensic met concerning Dr. Quiring and the Hospital. Therefore, psychiatry. He has treated many patients with suicidal the trial court had no discretion to conclude that the report behavior and has had the responsibility to make decisions as it pertains to Dr. Quiring and the Hospital was not a to prevent suicidal behavior. We have found that he has good-faith effort. expressed the proper standard of medical and hospital care. He has training and experience to allow him to offer Accordingly, we affirm the judgment of the trial court such opinions. The requirement of an expert report is to concerning Peggy Burge, R.N., and Rachel Meyers, R.N.; inform the opposing party of Russ’ claim and to provide we reverse the judgment of the trial court concerning Dr. the trial court with a basis to conclude that the claim has Quiring and the Hospital, and remand the case to the trial merit. The report is not required to litigate the claim. Id. at court for further proceedings. 879. We find Dr. Dunn qualified to render such a medical report.

Footnotes 1 TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01, Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985– 87. This Act was repealed and recodified at TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon 2004) (effective September 1, 2003). Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884. This action was filed November 30, 2001, before the new Act’s September 1, 2003, effective date. 2 Villa v. Hargrove, 110 S.W.3d 74, 80 (Tex.App.-San Antonio 2003, pet. denied); Doades v. Syed, 94 S.W.3d 664, 673 (Tex.App.-San Antonio 2002, no pet.); Landry v. Ringer, 44 S.W.3d 271, 274 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Pfeiffer v. Jacobs, 29 S.W.3d 193, 195–97 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied). 3 We note Russ also argues that the second motion made the expert report timely. This motion was clearly filed under Section 13.01(g). However, the second motion was not timely filed because it was not filed before the hearing. The second motion for extension was not filed until August 16, 2002, which was more than two weeks after the hearing. Therefore, the second motion for extension is not timely and we will not consider it. 4 We note that the Texas Supreme Court has held that not all mistakes of law are mistakes under the statute; specifically, “a purportedly mistaken belief that the report complied with the statute does not negate a finding of ‘intentional or conscious indifference.’ “ Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). 5 See Salazar v. Canales, 85 S.W.3d 859, 865 (Tex.App.-Corpus Christi 2002, no pet.); Whitworth v. Blumenthal, 59 S.W.3d 393, 399 (Tex.App.-Dallas 2001, pet. dism’d by agr.); Hanzi v. Bailey, 48 S.W.3d 259, 264 (Tex.App.-San Antonio 2001, pet. denied); Broom v. MacMaster, 992 S.W.2d 659, 663 (Tex.App.-Dallas 1999, no pet.); cf. Horsley–Layman v. Angeles, 968 S.W.2d 533, 536 (Tex.App.-Texarkana 1998, no pet.). 6 Russ’ original motion requested a twenty-five-day extension.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Russ v. Titus Hosp. Dist., 128 S.W.3d 332 (2004)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Shenoy v. Jean, Not Reported in S.W.3d (2011)

approximately three weeks after gallbladder surgery as a result of hypoxic encephalopathy. Dr. Zuniga performed 2011 WL 6938538 Only the Westlaw citation is currently available. the surgery. Dr. Shenoy, a cardiologist, cleared Jean for the surgery. SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. In two issues, Shenoy contends that the trial court abused its discretion in denying his motion to dismiss because MEMORANDUM OPINION Jean’s expert, Dr. Mazzei, an anesthesiologist, is not Court of Appeals of Texas, qualified to opine on the applicable standard of care for a Houston (1st Dist.). cardiologist, breach of that standard or causation, and his report does not adequately address standard of care, Vasudev SHENOY and Dario Zuniga, Appellant breach, or causation. In his sole issue, Zuniga contends v. that the trial court abused its discretion because (1) Penny JEAN, Individually, and as Wrongful Death Mazzei is not qualified to offer an opinion on the Beneficiary of Willie Ann Jean, Deceased, and on applicable standard of care for a surgeon, (2) the report Behalf of the Estate of Willie Ann Jean, Deceased, does not address how Zuniga caused Willie Ann’s death and on Behalf of all Wrongful Death Beneficiaries beyond mere conclusions, and (3) it is “impermissibly of Willie Ann Jean, Deceased, Appellee. cumulative”—that is, it does not adequately identify the particular breaches of the standard of care or causation No. 01–10–01116–CV. | Dec. 29, 2011. with respect to each separate defendant. We reverse and render an order dismissing the claims against Shenoy and On Appeal from the 151st District Court, Harris County, Zuniga. Texas, Trial Court Case No.2010–28302.

Attorneys and Law Firms

John G. Myers, Dee L. Dawson, Myers Doyle, Houston, Background for Appellant Vasudev Shenoy. Mazzei’s expert report provides the background facts in Robert G. Smith, David O. Cluck, Scott B. Novak, this case. The medical records are not before us, and we Lorance & Thompson, P.C., Houston, for Appellant Dario accept the factual statements for the limited purpose of Zuniga. this appeal.2 Monica C. Vaughan, for Penny Jean, Individually, and as Willie Ann Jean, age 57, was taken by ambulance to the Wrongful Death Beneficiary of Willie Ann Jean, emergency room of Doctor’s Hospital on February Deceased, and on Behalf of the Estate of Willie Ann Jean, 15,2008, complaining of abdominal pain, vomiting, chest Deceased, and on Behalf of all Wrongful Death pain of three hours’ duration, and difficulty breathing. As Beneficiaries of Willie Ann Jean, Deceased. part of her admission, Willie Ann gave an extensive Panel consists of Chief Justice RADACK and Justices medical history that included diabetes, hypertension, SHARP and BROWN. angina, surgery for a brain aneurysm, coronary artery disease, chronic obstructive pulmonary disease, hypercholesterolemia, and a prior myocardial infarction. Willie Ann reported she had experienced abdominal and chest pain for years without treatment. Based on a physical examination and ultrasound, the emergency MEMORANDUM OPINION room physician, Dr. Mireles, determined that she had polyps and diagnosed symptomatic gallstones in her HARVEY BROWN, Justice. gallbladder. He recommended that she undergo surgery to remove her gallbladder. He ordered a surgical *1 In this interlocutory appeal,1 Dr. Shenoy and Dr. consultation and a cardiology consultation. Zuniga appeal the trial court’s orders denying their motion to dismiss Penny Jean’s healthcare liability claim Shenoy, a cardiologist, saw her that same day, and noted for failure to serve an adequate expert report. See TEX. that Willie Ann had a two- to three-year history of CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West epigastric and right upper quadrant abdominal pain as 2011). Penny’s mother, Willie Ann Jean, died © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Shenoy v. Jean, Not Reported in S.W.3d (2011)

well as a history of a previous myocardial infarction and a cereberovascular accident (i.e., a stroke). Shenoy noted Penny filed a wrongful death medical malpractice suit that Willie Ann had suffered chest pain, accompanied by against Doctor’s Hospital, Mireles, Amin–Sankar, shortness of breath and sweating for four to six hours Shenoy, and Zuniga.3 Penny alleged that Shenoy and earlier that day. Willie Ann also had an abnormal Zuniga were negligent in clearing her mother for surgery. electrocardiogram (EKG). Shenoy’s diagnosis was that Specifically, Penny alleged that there was no emergency Willie Ann had sufferedan acute myocardial infarction, or urgent reason to remove her mother’s gallbladder and symptomatic gallstones, hypertension, and diabetes. that her mother had experienced abdominal and chest pain for years without treatment. In addition, Willie Ann had *2 Zuniga, a surgeon, performed the surgical consultation suffered an acute myocardial infarction before the three days after her initial admission, on February 18, gallbladder surgery and had a history of numerous health 2008. Zuniga confirmed the presence of gallstones, problems. Although she was stable, her history created diagnosed inflammation of the gallbladder, and cleared additional risks that made her a poor candidate for Willie Ann for surgery to remove her gallbladder the next surgery, and therefore Shenoy and Zuniga negligently day, February 19, subject to a cardiology assessment. Dr. cleared Willie Ann for the surgery. Shenoy saw Willie Ann again on February 18. A nuclear test was negative for ischemia. Shenoy also ordered an *3 Penny timely served an expert report from Mazzei, an EKG, the results of which are included in Mazzei’s report anesthesiologist.4 Mazzei’s report focused primarily on but the significance of which are not explained. Shenoy the anesthesiologist, Amin–Sankar. Concerning Shenoy cleared Willie Ann for the gallbladder surgery. and Zuniga, Mazzei stated that if Willie Ann “had not undergone elective surgery on February 19, 2008, she Dr. Amin–Sankar, an anesthesiologist, performed a would not have experienced the respiratory arrests that preoperative anesthesia assessment on February 19. He resulted from her extubation and she would have, in all noted Willie Ann’s past medical history, including her probability, survived.” acute myocardial infarction and abnormal EKG. Amin– Sankar cleared Willie Ann for surgery. Concerning Amin–Sankar, Mazzei’s report states, “In reasonable medical probability, if Ms. Jean had not been On February 19, 2008, Zuniga performed the surgery. The prematurely extubated, she would not have had the surgery was an “uneventful” procedure. After leaving the increased demands placed on her body which caused her post-anesthesia careunit (PACU), Willie Ann was to be subsequent respiratory arrest, anoxic brain injury and sent to the intensive care unit because she had fluctuating death.” He further explained in his general discussion of oxygen saturation levels, inadequate ventilation, and causation that the anesthesiologist should have been shallowness of breath. Shortly thereafter, she was aware of the risks of premature extubation. A fair reading transported back to the PACU and was placed on a of Mazzei’s report is that the premature extubation was ventilator. According to Mazzei’s report, Amin–Sankar the immediate cause of death: prematurely extubated Willie Ann ten minutes later.Within a few minutes, Willie Ann was in respiratory The time it takes for a patient’s arrest. She received CPR and medications, and Amin– anesthesia effect to lessen enough Sankarreintubated her. for them to be able to breathe independently varies from patient Thirty minutes later, Willie Ann was returned to the ICU. to patient and is affected by a According to Mazzei’s report, Jean became “agitated” and patient’s physiology and had trouble with the ventilator. She extubated herself and underlying disease processes. For a suffered a second respiratory arrest. She was re-intubated patient like Ms. Jean who had and given medications. An EEG the following day recently suffered a MI, it should showed possible hypoxic encephalopathy—brain damage have been expected that it would caused by lack of oxygen. A follow-up EEG the next day take her a significant period of time also indicated hypoxic encephalopathy. Mazzei’s report before she was capable of being does not discuss whether the EEGs differentiate between extubated to breathe on her own. any damage caused by the first extubation and arrest and This was not taken into account nor the second extubation and arrest. Willie Ann was was her clinical picture when she unresponsive to stimuli, including painful stimuli. On was untimely extubated [by the February 25, Willie Ann was transferred to another anesthesiologist]. This caused her facility for long-term care. She died on March 5, 2008 due to suffer a respiratory arrest which to the hypoxic encephalopathy. further stressed Ms. Jean’s ability © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Shenoy v. Jean, Not Reported in S.W.3d (2011)

to recover from surgery and lead to another respiratory arrest with anoxic encephalopathy and death.... I. Chapter 74 expert report requirements When Ms. Jean extubated herself, Pursuant to section 74.351, medical-malpractice plaintiffs the failure to address her increasing must provide each defendant physician and health care respiratory distress resulted in a provider with an expert report or voluntarily nonsuit the subsequent respiratory arrest action. Id. If a claimant timely furnishes an expert report, causing the anoxic encephalopathy a defendant may file a motion challenging the report’s which lead to her death. adequacy. Id. The trial court shall grant the motion only if it appears, after hearing, that the report does not represent Shenoy and Zuniga moved to dismiss, asserting that the a good faith effort to comply with the statutory definition report was inadequate to them. The trial court granted of an expert report. See id. § 74.351(l ). The statute Penny an opportunity to amend the report. After receiving defines an expert report as a written report by an expert the amended report, Shenoy and Zuniga again moved to that provides, as to each defendant, a fair summary of the dismiss due to inadequacies in the report. The trial court expert’s opinions, as of the date of the report, regarding: denied the motions to dismiss, and this interlocutory (1) the applicable standards of care; (2) the manner in appeal followed. which the care provided failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 85859 (Tex.App.-Houston [1st Dist .] 2006, no pet.). Standard of Review Although the report need not marshal all the plaintiff’s We review a trial court’s ruling on a motion to dismiss a proof, it must include the expert’s opinions on the three healthcare liability lawsuit pursuant to Chapter 74 of the statutory elements—standard of care, breach, and Texas Civil Practice and Remedies Code under an abuse causation. See Palacios, 46 S.W.3d at 878; Gray, 189 of discretion standard. See Am. Transitional Care Ctrs. of S.W.3d at 859. In detailing these elements, the report Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) must provide enough information to fulfill two purposes if (reviewing dismissal under predecessor statute, section it is to constitute a good faith effort: first, it must inform 13(e) of article 4590i); Runcie v. Foley, 274 S.W.3d 232, the defendant of the specific conduct the plaintiff has 233 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial called into question, and, second, it must provide a basis court abuses its discretion if it acts in an arbitrary or for the trial court to conclude that the claims have merit. unreasonable manner without reference to guiding rules Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011) or principles or if it clearly fails to analyze or apply the (citing Palacios, 46 S.W.3d at 879). A report that merely law correctly. Runcie, 274 S.W.3d at 232. In reviewing states the expert’s conclusions as to the standard of care, whether an expert report complies with Chapter 74, we breach, and causation does not fulfill these two purposes. evaluate whether the report “represents a good-faith Id. “ ‘[T]he expert must explain the basis of his effort” to comply with the statute. Strom v. Mem’l statements and link his conclusions to the facts.’ “ Wright, Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.App.- 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d Houston [1st Dist.] 2003, pet. denied). In making this 882, 890 (Tex.1999)). Furthermore, in assessing the evaluation, we must look only at the information report’s sufficiency, the trial court may not draw any contained within the four corners of the report. Bowie inferences, and instead must rely exclusively on the Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). information contained within the report’s four corners. See Scoresby, 346 S.W.3d at 556 (citing Palacios, 46 S.W.3d at 878).

Adequacy of Dr. Mazzei’s report II. Adequacy of report concerning causation *4 In their respective appeals, Shenoy and Zuniga attack Within his second issue, Shenoy contends that Mazzei’s various aspects of the adequacy of Mazzei’s report, report does not adequately address causation of Jean’s asserting it fails to meet the requirements of section injuries as a result of any negligence by Shenoy. As part 74.351 of the Texas Civil Practice and Remedies Code. of his sole issue, Zuniga similarly argues that the report is See TEX. CIV. PRAC. & REM.CODE § 74.351(a). inadequate in its statement of causation for his alleged malpractice.

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In the “Causation” section, the report further states: *5 An expert report must include a fair summary of the causal relationship between the defendant’s failure to Ms. Jean was a patient who was meet the appropriate standard of care and the injury, still recovering from her MI who harm, or damages claimed. TEX. CIV. PRAC. & never should have undergone REM.CODE ANN. § 74.351(r)(6). An expert cannot elective surgery. By continuing to merely state his conclusions or “provide insight” about recommend the gallbladder the plaintiffs’ claims, but must instead “explain the basis removal surgery, clearing her for of his statements to link his conclusions to the facts.” surgery and performing surgery, Wright, 79 S.W.3d at 52.In explaining causation, the Ms. Jean’s healthcare providers report must explain how the physician’s conduct caused breached and violated the standards the plaintiff’s injuries. Id. at 53. of care as set forth above and proximately caused her death.

Finally, Mazzei states for a patient like Willie Ann “it A. Assertions in Mazzei’s expert report regarding should have been expected that it would take her a causation significant period of time before she was capable of being Mazzei’s report asserts that the applicable standard of extubated to breathe on her own .” care breached by Shenoy included the responsibility to consider all of Willie Ann’s co-morbidities because these conditions placed Willie Ann “at an unacceptably high risk for complications from surgery and anesthesia.” The B. Adequacy of the report concerning Shenoy report identifies two risks from the surgery and *6 Mazzei’s report states that the medical conditions that anesthesia: (1) the stresses placed upon the cardiovascular rendered Willie Ann unfit for surgery caused the and respiratory system during surgery and anesthesia and complications that arose when she was extubated (“these (2) the depression of the central nervous system and the complications occurred because of the medical resulting risk of “experiencing cardiovascular and conditions”). What he fails to do is provide a factual respiratory problems.” It also generally states that a underpinning for that conclusion explaining why or how patient’s medical history may increase these risks. It does this occurred and whether it was all her medical not, however, quantify or otherwise describe the conditions listed in his report or her myocardial infarction magnitude of risk for respiratory problems for a person in particular that made the risk unacceptable and caused undergoing this surgery with normal health or compare her respiratory arrest. These omissions make the report that risk to the risk for a person with pre-existing medical conclusory and deficient for purposes of section 74.351. conditions like Willie Ann’s. According to the report, these risks are addressed by intubating the patient “so the anesthesiologist can ventilate the patients while their central nervous system is depressed” and that intubation 1. Expert reports cannot be conclusory to satisfy section normally continues “until the patient is able to again 74.351. breathe on [his] own.” The report continues: An opinion on causation stated without the underlying facts is conclusory. Jelinek v. Casas, 328 S.W.3d 526, .... Although complications arose as 536 (Tex.2010); Arkoma Basin Exploration Co., Inc. v. Ms. Jean was extubated following FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 surgery, these complications (Tex.2008). A conclusory opinion is not probative. City of occurred because of the medical San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009); conditions that should have lead see Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 Dr. Shenoy to conclude that Ms. F.3d 874, 881 (7th Cir.2011) (stating that mere Jean was not an appropriate conclusions are useless to the court). surgical candidate. If Ms. Jean had not undergone elective surgery on This rule is not a mere procedural hurdle. Juries—or in February 19, 2008, she would not the case of expert reports, judges—are often confronted have experienced the respiratory with conflicting expert testimony. One expert may testify arrests that resulted from her that X caused the plaintiff’s injuries while a different extubation and she would have, in expert may testify that X did not cause the plaintiff’s all probability, survived. injuries. The factfinder typically lacks the expertise necessary to form an opinion without expert assistance—

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this is why expert testimony is admitted in the first place. In Gray, this court held that the expert report contained a See TEX.R. EVID. 702. It is the expert’s explanation of conclusory statement concerning causation. 189 S.W.3d “how” and “why” causation exists that allows the at 860. The report stated that “[t]he failure to monitor and factfinder to weigh the credibility of the expert’s opinion detect the malpositioned left knee resulted in a dislocated and, when expert opinions conflict, to decide which left patella, severe pain and suffering, and subsequent testimony to disregard. Cf. In re Christus Spohn Hosp. medical treatment.” Id . at 858. Like the Supreme Court in Kleberg, 222 S.W.3d 434, 440 (Tex.2007) (detailing Jelinek, this court faulted the causation opinion for failing reasons why it is essential that the jury have access to the to “convincingly tie the alleged departure from the facts and data underlying an expert’s testimony in order standard of care to specific facts of the case.” Id. at 860. “to accurately assess the testimony’s worth.”). With respect to expert reports in healthcare liability claims, the expert’s explanation is what allows the trial court to determine whether the claim has merit. See Jelinek, 328 2. Mazzei’s report was conclusory on the issue of S.W.3d at 539; see also Scoresby, 346 S.W.3d at 552 causation (observing that Legislature enacted expert report Mazzei’s causation opinion regarding Shenoy’s decision requirement to elicit expert opinions at an early stage of to clear Willie Ann for surgery was conclusory. Although the litigation to allow the trial court to determine that a Mazzei’s report states that anesthesia depresses the basis exists for concluding that the claims have merit). respiratory system and places stress on the heart, the Expert testimony that merely states a final conclusion on report does not state that Willie Ann’s history of heart an essential element of a cause of action—such as problems or other conditions somehow made her more causation—without providing a factual basis for that likely to suffer respiratory arrest after premature conclusion does not aid the jury in its role as factfinder extubation than a person without those medical but, rather, supplants it. This, an expert may not do. See conditions. It does not state that her risks for the Greenberg Traurig of N.Y., P.C.v. Moody, 161 S.W.3d complications that she experienced—respiratory arrest— 56, 97 (Tex.App.-Houston [14th Dist.] 2004, no pet.) were enhanced because of her medical conditions. The (“Expert testimony is admissible to aid the jury in its report does generally discuss why Willie Ann’s other decision, but it may not supplant the jury’s decision.”). conditions affected her suitability for surgery, but does Similarly, an expert report that merely asserts that a not link her medical conditions to the complication she defendant physician’s breach caused the plaintiff’s injury experienced, respiratory arrest. It recognizes that a without providing a factual basis does not provide the trial depressed central nervous system and the resulting risk of court with the information necessary to evaluate the respiratory problems are normal byproducts of anesthesia merits of the plaintiff’s claim. See Jelinek, 328 S.W.3d at for even a person with normal health. In other words, 529. Mazzei’s report shows that the surgery itself created the risk and does not state how or why Willie Ann’s pre- *7 The requirement that the expert’s opinion must not be existing conditions changed those risks except in conclusory applies not only to trial testimony, but to conclusory terms. The report also states that those risks expert reports required by section 74.351(a). See Jelinek, can be addressed by leaving her intubated for “a 328 S.W.3d at 539–40; Wright, 79 S.W.3d at 53.In significant period of time” before extubation. Mazzei’s Jelinek, the Texas Supreme Court found the trial court report makes it clear that he believes that the premature abused its discretion in denying a motion to dismiss extubation was the immediate cause of her death. because the expert’s opinion on causation was conclusory. 328 S.W.3d at 539–40. The expert’s report stated that *8 A report may be sufficient if it states a chain of events “[the defendant’s] breach of the appropriate standard of that begin with a health care provider’s negligence and care in ‘reasonable medical probability, resulted in a end in a personal injury. See Patel v. Williams, 237 prolonged hospital course and increased pain and S.W.3d 901, 905 (Tex.App.-Houston [14th Dist.] 2007, suffering being experienced by [the plaintiff].’ “ Id. at no pet.); see also Engh v. Reardon, No. 01–09–00017– 539. The Court emphasized, “[T]he report says nothing CV, 2010 WL 4484022, at *8 (Tex.App.-Houston [1st more regarding causation.” Id. The Court faulted the Dist.] Nov. 10, 2010, no pet.) (mem.op.). But neither case report for offering no explanation “tying the conclusion to involved an event as remote as that involved here. the facts” or of “how and why the breach caused the injury based on the facts presented.” Id. at 539–40. This is In Patel, the Fourteenth Court of Appeals held that an precisely the information missing here: the how and the expert report sufficiently set forth causation when it why. presented a chain of events beginning with an allegedly negligent prescription and ending with the patient’s death. Patel, 237 S.W.3d at 905–06. Patel prescribed Williams

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an anti-dementia drug. Id. at 903. The report explained cause of Willie Ann’s death if all that is necessary is for that the drug was not FDA-approved for patients with an event to have preceded the injury. Williams’s ailment and that known side-effects of the drug included restlessness or a need to keep moving. Id. *9 To establish cause in fact, Mazzei had to discuss why Williams’s family withdrew consent for the drug, but the act or omission was a substantial factor in causing the Patel continued to prescribe it. Id. Williams was being fed injury and without which the harm would not have via feeding tube, and allegedly due to the restlessness occurred. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 from the drug, she removed the tube. Id. The report (Tex.2005); see also Transcon. Ins. Co. v. Crump, 330 identified nurses’ notes that described Williams as S.W.3d 211, 214 (Tex.2010) (stating that plaintiff must agitated and stated that she kept pulling at her feeding prove “cause in fact (or substantial factor)”); Ford Motor tube. Id. The nursing staff improperly re-inserted the tube, Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.2007) (stating causing a small cut, which became infected because of the that producing cause requires that (1) the cause must be a contents of the feeding tube entering the cut. Id. The cut substantial cause of the event in issue and (2) it must be a developed into an abscess requiring multiple surgeries. Id. but-for cause, namely one without which the event would The report concluded that Williams’s death was caused by not have occurred). The report does not do so. Mazzei’s the infection from the improperly re-inserted feeding tube. report does not link facts from the alleged negligence in Id. at 904. The Fourteenth Court held that the trial court clearing her for surgery to Willie Ann’s death. Willie Ann did not abuse its discretion in determining the report was did not suffer a cardiac arrest during or after the surgery; not conclusory or speculative concerning causation. Id. at she suffered respiratory arrest and only after a premature 905–06. extubation. Mazzei does not state that Willie Ann suffered any unusual respiratory issue during the surgery itself; the The report in this case is distinguishable. The report surgical procedure was “uneventful.” And based on identifies the alleged breach—clearing Willie Ann for Mazzei’s report, it appears that any patient—healthy or surgery with her medical history—as did the report in with a history of medical conditions—who is prematurely Patel—prescribing an unapproved drug without consent. extubated will not sufficiently “maintain the oxygenation See id. But there the similarities end. In Patel, the report in the blood” and therefore is at risk for respiratory arrest. explained that a known side effect of the drug was The mere fact that Willie Ann was cleared for surgery restlessness, and the restlessness caused Williams to before her death does not mean that the clearance for become agitated and remove her feeding tube. Id . Willie surgery caused her death. Jelinek, 328 S.W.3d at 533 Ann likewise became agitated and removed her breathing (cautioning against the post hoc ergo propter hoc fallacy, tube. The report, however does not explain any that is, reasoning that an earlier event caused a later event connection between clearing Willie Ann for surgery or simply because it occurred first). her medical history and her agitation. While the report in Patel explained each step on the path of causation, the A causal link can be too attenuated to satisfy the causation report in this case does not.5 requirement for an expert report. See Gonzalez v. Sebile, No. 09–09–00363–CV, 2009 WL 4668892, at *4 There were “many links in the chain of events” that began (Tex.App.-Beaumont Dec. 10, 2009, pet. denied) with the pre-surgical clearance and ended with her death, (mem.op.). In Gonzalez, the physician was sued for but Mazzei failed to explain and support each link. While clearing the patient for surgery without obtaining a Mazzei explains how Willie Ann’s premature extubation cardiologist consultation despite an earlier open heart prevented her from “maintain[ing] the oxygenation in the surgery. 2009 WL 4668892at *2. According to the blood,” increasing her risk for respiratory arrest, he fails plaintiffs, the defendant anesthesiologist fell below the to explain what role her pre-existing medical conditions standard of care by failing to disqualify the plaintiff as not played in her respiratory arrest. It is here that we part fit for surgery in part because of the risks of general company with the trial court and find that it abused its anesthesia. Id. The court held that the report’s statement discretion. Mazzei does not link the alleged negligence— that the plaintiff would not have been injured if he had not clearing Jean for surgery—with the premature extubation undergone surgery in the first place was “too attenuated to except that one occurred before the other. That is not set forth evidence of causation with sufficient specificity enough; it is only a statement of “but for” causation. If to inform” the physician of the alleged misconduct and to that is all that section 74.351 requires to demonstrate allow the trial court to conclude that the plaintiff’s claims causation, almost any prior action taken by a health care had merit. Id . at *3. Mazzei’s report suffers from the provider could be said to cause the ultimate outcome. For same defect. example, the referral by the emergency room physician for the surgical consultation with Dr. Shenoy also was a While Mazzei’s report “provides insight” concerning the claims surrounding Jean’s death, it does not link the facts © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Shenoy v. Jean, Not Reported in S.W.3d (2011)

of the decision to clear her for surgery to the conclusion Shenoy, we conclude that, with respect to Zuniga, the that Shenoy’s alleged breach of the standard of care report fails to explain how and why Zuniga’s clearing of caused Jean’s death. It does not, therefore, provide a basis Willie Ann for surgery caused her death, fails to for the trial court to have concluded that causation was demonstrate the causal link necessary to have a demonstrated for Shenoy’s decision to clear Willie Ann meritorious claim, and is conclusory and inadequate. See for surgery. See Palaciois, 46 S.W.3d at 879 (report must Gray, 189 S.W.3d at 860; Jelinek, 328 S.W.3d at 539–40. provide basis for concluding that claims have merit). We conclude, therefore, that the report is conclusory and We sustain this portion of Zuniga’s sole issue.6 inadequate with respect to Shenoy. See Gray, 189 S.W.3d at 860; see also Jelinek, 328 S.W.3d at 539–40 (finding report inadequate concerning causation because it did not explain “how and why the breach caused the injury based on the facts presented”). Conclusion

*10 We sustain this portion of Shenoy’s second issue. We reverse and render an order dismissing the claims against Shenoy and Zuniga.

B. Adequacy of the report concerning Zuniga Penny has not alleged, and Mazzei’s report does not SHARP, J., dissenting. Dissent to follow. assert, that Zuniga negligently performed surgery; rather, the surgery is described as “uneventful.” For the same reasons that the report is inadequate as to causation for

Footnotes 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2011).

2 See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002) (review of Chapter 74 report is limited to four corners of report). 3 Only Shenoy and Zuniga are parties to this appeal.

4 See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).

5 The report in this case is similarly distinguishable from the report in Engh. In Engh, the report identified the alleged breach- placing a surgical clip on the ureter during surgery. 2010 WL 4484022 at *6. The report also explained the consequences of a clipped ureter. Specifically, the report detailed how damage to and, eventually, loss of the kidney would result from clipped ureter. Id. Thus, this court found the report adequate, although Engh saw multiple other doctors and several months passed after his surgery and before he lost his kidney. Id. at *10. The report explained how the alleged breach caused the loss of Engh’s kidney, while the report here contains no explanation of how clearing a patient with a history like Willie Ann’s causes premature extubation, self-extubation, or the eventual death of the patient. 6 Because we have sustained Shenoy’s second issue in part and Zuniga’s sole issue in part, we do not address the other arguments raised by the parties. See TEX.R.APP. P. 47.1.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Smith v. Wilson, 368 S.W.3d 574 (2012)

appellee Janet Lynn Wilson’s suit for medical 368 S.W.3d 574 malpractice. We reverse the trial court’s order and remand Court of Appeals of Texas, for dismissal and determination of attorney’s fees. Austin.

Ted SMITH, D.O.; and Austin Regional Clinic, P.A., Appellants, Factual and Procedural Background v. Janet Lynn WILSON, Appellee. On August 6, 2007, Wilson’s son, Keith Michael Harris, went to see Dr. Smith, complaining of depression and No. 03–10–00387–CV. | Jan. 11, 2012. | Rehearing stress. Harris was twenty-three years old and had recently Overruled May 7, 2012. broken up with his girlfriend. Smith prescribed fluoxetine1 with twelve refills and did not schedule a follow-up visit. Synopsis On September 5, 2007, Harris committed suicide. Background: Medical malpractice action was brought against physician and clinic, after patient who had been Wilson sued appellants, alleging that Smith was negligent prescribed anti-depressant committed suicide. The 53rd in prescribing fluoxetine and in not scheduling a follow- Judicial District Court, Travis County, Suzanne up visit with Harris, that ARC was vicariously liable as Covington, J., denied defendants’ motion to dismiss due Smith’s employer, and that their negligence was a to deficient expert report, and defendants appealed. proximate cause of Harris’s death. Wilson timely served an expert report by Dr. John T. Maltsberger. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). In his report, Maltsberger stated that the accepted standard of [Holding:] The Court of Appeals, David Puryear, J., held care that should be employed when prescribing fluoxetine that expert’s medical report was not good faith attempt to required a doctor to obtain a description of the patient’s comply with medical expert report requirements. “anxious and depressive symptoms” and a full psychiatric history. He opined that Smith breached that standard of care because he did not “obtain and record” Harris’s Reversed and remanded. symptoms of anxiety and depression or his full psychiatric history. Maltsberger stated that there was a generally recognized relationship between fluoxetine and suicide in Attorneys and Law Firms adolescents and young adults and that “adolescents with psychiatric disorders” had a greater risk of suicidal *575 Diana L. Faust, R. Brent Cooper, Richard C. Harrist, thoughts and behavior in “the first few months of Cooper & Scully, PC, Dallas, TX, for Appellant. treatment” when prescribed fluoxetine. Maltsberger *576 Dan Ballard, Stacey J. Simmons, Ballard & Simmons, concluded by stating, “[I]t is my opinion that more likely LLP, Austin, TX. than not, had Keith Harris not been prescribed fluoxetine, he would not have committed suicide.” Jay Harvey, Winckler & Harvey, LLP, Austin, TX, for Appellee. Appellants objected to the report, asserting it was deficient because it was conclusory with regard to Before Chief Justice JONES, Justices PURYEAR and causation. Appellants also noted that the report did not PEMBERTON. mention ARC at all, much less level any criticism against it, and argued that it therefore amounted to no expert report at all as to ARC. The trial court found that Maltsberger’s report qualified as a report but was inadequate, denied appellants’ motion to dismiss, and gave Wilson thirty days to remedy the report’s OPINION deficiencies. Wilson filed an amended report providing essentially the same opinions, but adding more detail to DAVID PURYEAR, Justice. the causation paragraph.2 Maltsberger changed his statements about the relationship between fluoxetine and Appellants Ted Smith, D.O., and Austin Regional Clinic suicidal thinking and behavior to refer only to (“ARC”) appeal from the denial of their motion to dismiss © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Smith v. Wilson, 368 S.W.3d 574 (2012)

adolescents, removing his prior inclusion of “young medical defendant may file an objection to the report’s adults.”3 Maltsberger concluded: sufficiency and a motion to dismiss the plaintiff’s liability claims. See id. § 74.351(a), (b).

Based on the information provided to me to date, it is [2] When the adequacy of a report is challenged, the trial my opinion that Keith Harris was a suicide-vulnerable, court should only sustain the objections if it determines depressed young man. As outlined in the studies “that the report does not represent an objective good faith described above, fluoxetine worsened his depression effort to comply with the definition of an expert report.” and agitated this patient, driving him beyond his Id. § 74.351(l ); see American Transitional Care Ctrs. of capacity for endurance. It is my opinion that more Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). likely than not, fluoxetine was a significant cause that The trial court should confine its inquiry to the four worsened the emotional burden of Mr. Harris’s illness corners of the report, which must include the expert’s and that without it he would not have committed opinion on all three statutory elements and “ ‘must suicide. explain the basis of [the expert’s] statements to link his Appellants filed another motion to dismiss, asserting that conclusions to the facts.’ ” Bowie Mem’l Hosp. v. Wright, the new report was deficient because Maltsberger “never 79 S.W.3d 48, 52 (Tex.2002) (quoting Earle v. Ratliff, connects the dots and says that based on the history or 998 S.W.2d 882, 890 (Tex.1999)). If the trial court finds a presentation that existed had Dr. Smith obtained an report deficient, the plaintiff’s claims against the medical adequate history, he should not have prescribed Prozac.” defendant are subject to dismissal unless the court grants Appellants further asserted: “one 30–day extension to the claimant in order to cure the deficiency.” Tex. Civ. Prac. & Rem.Code Ann. § [Maltsberger] never states that 74.351(c), (l ). If an expert report is not timely served, the based on the information available trial court must dismiss the claims against the medical to Dr. Smith at the time that he was defendant if the defendant files a motion to dismiss. Id. § treating Mr. Harris, Dr. Smith 74.351(b). should have concluded that Mr. [3] [4] Harris was suicide-vulnerable. As “A report need not marshal all the plaintiff’s proof,” an expert, he is supposed to analyze but to be considered a good-faith effort to satisfy the Dr. Smith’s actions based on the statute, it must do more than simply provide the expert’s information that was available to conclusions as to standard of care, breach, and causation. him at the time. His failure to do so Palacios, 46 S.W.3d at 878–79. Instead, the report “must renders his opinions conclusory, discuss the standard of care, breach, and causation with and therefore, not adequate. sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to Appellants also reasserted that because Maltsberger’s provide a basis for the trial court to conclude that the report made no reference to or criticism of ARC, it did not claims have merit.” Id. at 875. We review a trial court’s qualify as an expert report on those claims. The trial court denial of a motion to dismiss under section 74.351 for an denied appellants’ motion to dismiss, and appellants filed abuse of discretion, but if an expert report contains only this appeal. See id. § 51.014(a)(9) (West 2008). conclusions about the statutory elements, the trial court has “no discretion but to conclude ... that the report does not represent a good-faith effort” to satisfy the statute. Id. at 877, 880. Analysis After appellants objected to the sufficiency of [1] Within 120 days of the date a plaintiff files a health- Maltsberger’s original report, the trial court gave Wilson care-liability claim, she must serve each physician or the opportunity to provide an amended report. The new health care provider against whom claims are asserted report, however, added very little to Maltsberger’s (“medical defendant”) with at least one expert report that statements related to Smith’s alleged breach of the summarizes the expert’s opinions “regarding applicable standard of care and causation, including only one standards *577 of care, the manner in which the care additional paragraph that stated that Harris was “a rendered by the physician or health care provider failed to suicide-vulnerable, depressed young man” and that meet the standards, and the causal relationship between fluoxetine worsened his depression and led to his suicide.4 Wilson asserts that this report “provides, in its four that failure and the injury, harm, or damages claimed.” Id. corners, that but for prescribing the medication the patient § 74.351(a), (r)(6). After an expert report is filed, a would not have committed suicide.” That may be true, but

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Smith v. Wilson, 368 S.W.3d 574 (2012)

despite Maltsberger’s opinion that fluoxetine worsened and Harris’s suicide, one of the required statutory Harris’s mental state and “without it he would not have elements of an expert report. See Tex. Civ. Prac. & committed suicide,” the report does not explain how Rem.Code Ann. § 74.351(r)(6) (expert report must taking more complete medical records from Harris would include “fair summary” of expert’s opinion as to “causal have made Smith aware that fluoxetine would put Harris relationship” between medical defendant’s failure to meet at risk for suicidal thoughts or action and *578 would standard of care and injury). have dissuaded Smith from prescribing fluoxetine. In other words, the report does not show how Smith’s Further, Maltsberger states that studies have shown a alleged breach of the standard of care caused the tragic relationship between fluoxetine and suicide in adolescents result. See Taylor v. Fossett, 320 S.W.3d 570, 577–78 and that fluoxetine increases the risk of suicidal thoughts (Tex.App.-Dallas 2010, no pet.) (report did not provide a and behavior in adolescents with psychiatric disorders. He factual explanation of how doctor’s delay in diagnosis or does not, however, state that fluoxetine should never be treatment caused complications); Estorque v. Schafer, 302 prescribed to adolescents, nor does he explain whether S.W.3d 19, 28–29 (Tex.App.-Fort Worth 2009, no pet.) fluoxetine is always inappropriate *579 for all (expert report left “gaps by not explaining how or why the adolescents, whether some adolescents can safely take it, physicians’ failure to consult a urologist or gynecologist or, more importantly, whether the findings related to caused worsening or progression of Shirley’s listed adolescents could even be applied to Harris, who at conditions” and did not explain how plaintiff would not twenty-three was not an adolescent. Without more, have been injured had defendants obtained consults from Maltsberger’s statement that a correlation exists between specialists); Johnson v. Willens, 286 S.W.3d 560, 565 fluoxetine and suicide in adolescents does not supply a (Tex.App.-Beaumont 2009, pet. denied) (report did not causal link between the prescribing of fluoxetine and explain what “normal dose” would have been, why Harris’s suicide. prescribed dose was excessive, what patient complained of, or what proper treatment would have been); see also To be sure, Maltsberger was not required to provide an Wright, 79 S.W.3d at 53 (affirming trial court’s exhaustive, lengthy summary of how Smith’s omissions determination that report was insufficient because it caused Harris’s suicide or what aspects of Harris’s lacked “information linking the expert’s conclusion ... to medical records led Maltsberger to conclude that Bowie’s alleged breach”); Gray v. CHCA Bayshore L.P., fluoxetine was an inappropriate and dangerous 189 S.W.3d 855, 859–60 (Tex.App.-Houston [1st Dist.] prescription, but he provides literally no summary of such 2006, no pet.) (affirming trial court’s finding that report information. We are left with no choice but to conclude was insufficient because it did not provide any specific that the report does not provide a fair summary of the information about what defendants should have done or causal link between Smith’s alleged shortcomings and “convincingly tie the alleged departure from the standard Harris’s death. See Taylor, 320 S.W.3d at 577–78; of care to specific facts of the case”). Estorque, 302 S.W.3d at 28–29; Johnson, 286 S.W.3d at 565. Because the report is insufficient as to Smith, it is Maltsberger’s report essentially states that (1) the also insufficient as to ARC, which Wilson sued solely for applicable standard of care required Smith to obtain and vicarious liability for Smith’s conduct. See Kettle v. record a description of Harris’s symptoms and a complete Baylor Med. Ctr., 232 S.W.3d 832, 842–43 (Tex.App.- psychiatric history, (2) Smith neglected to get a Dallas 2007, pet. denied) (affirming dismissal of suit description of the symptoms or a complete psychiatric against professional association due to deficiencies in history in deciding to prescribe fluoxetine, and (3) report about doctor’s conduct, stating that whether fluoxetine worsened Harris’s emotional state to the point association was directly or vicariously liable, “liability where he committed suicide. Maltsberger does not, still depends on conduct” of doctor). however, provide even the roughest summary of the information Smith should have gleaned from Harris’s We reverse the trial court’s order denying appellants’ psychiatric past or symptoms that would have stopped motion to dismiss. We remand the cause to the trial court Smith from prescribing fluoxetine or whether Harris’s for the determination of attorney’s fees, see Tex. Civ. symptoms or history actually contained information that Prac. & Rem.Code Ann. § 74.351(b), and for entry of a would have indicated that fluoxetine was not an final order dismissing Wilson’s claims against appellants. appropriate prescription.5 He does not provide facts to explain the causal link between Smith’s alleged breach

Footnotes 1 Fluoxetine is the generic name for Prozac, an anti-depressant. We will refer to the drug as fluoxetine except when quoting the

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record, in which the terms seem to be used interchangeably. 2 The amended report is two and one-half pages long, and the actual summaries of the standard of care, breach, and causation are covered in slightly over one page. 3 This is a noteworthy omission, since Harris, as a twenty-three-year-old man, was not what is generally considered an adolescent. See Webster’s Third New Int’l Dictionary 28 (2002) (defining adolescence as “the period of life from puberty to maturity terminating legally at the age of majority”); see also medical-dictionary.thefreedictionary.com/adolescence (last visited January 5, 2012, citing Mosby’s Med. Dictionary (2009), Miller–Keane Encyclopedia & Dictionary of Med., Nursing, & Allied Health (2003)) (defining adolescence as time between puberty and adulthood, usually running from between eleven and thirteen and between eighteen and twenty). 4 Although Wilson alleged in her petition that Smith breached the standard of care by not scheduling a follow-up visit with Harris, neither of Maltsberger’s reports discusses follow-up visits or states whether a follow-up should have been scheduled, when such a visit would have been appropriate, or whether it would have made a difference in this case. 5 Wilson cites to Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex.App.-Dallas 2010, no pet.), stating Bakhtari is a “strikingly similar case.” The expert report in Bakhtari, however, provided substantially more information than the report presented here. The Bakhtari report explained that the medication in question should only have been prescribed for very short-term use, no refills should have been given, the patient should have been warned of possible side-effects, the doctor should have consulted with or referred the patient to a mental-health professional, and the doctor should have provided or arranged for “on-going assessment and monitoring” of the patient’s condition. Id. at 496–97 nn. 9, 10. Maltsberger’s cursory report bears very little similarity to the specificity and explanations provided in the Bakhtari report.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

individually and d/b/a Sugar Land Orthopedic Associates (Dr. Blum). Strom appeals to challenge orders that 110 S.W.3d 216 Court of Appeals of Texas, dismissed those claims, with prejudice, on the grounds Houston (1st Dist.). that the expert reports she provided to support those claims under section 13.01(d) of article 4590i, the Medial Florence M. STROM, Appellant, Liability and Insurance Improvement Act, did not comply v. with section 13.01(r)(6) of that statute.1 We address (1) MEMORIAL HERMANN HOSPITAL SYSTEM whether Strom’s expert reports constituted a fair summary d/b/a Memorial Hospital Southwest and of the standard of care required by Dr. Blum and the Memorial Hospital System, and Dr. Henry Blum, Hospital, (2) whether the trial court erred by refusing to Individually and d/b/a Sugar Land Orthopedic grant Strom an extension of time to amend her expert Associates, P.A., Appellees. reports, (3) whether Dr. Blum waived his challenge to the adequacy of Strom’s expert reports by not asserting the No. 01–01–00756–CV. | May 29, 2003. challenge until 180 days after Strom filed suit, (4) whether the trial court erred in awarding $5,000 in Patient brought health-care liability claims against attorney’s fees to the hospital, (5) the constitutionality of hospital and doctor. The 164th District Court, Harris article 4590i, section 13.01(d), and (6) whether the trial County, Martha Hill Jamison, J., dismissed claims. Patient court erred in dismissing Strom’s claims of fraud, appealed. The Court of Appeals, Tim Taft, J., held that: intentional and fraudulent misrepresentations, and (1) reports of patient’s experts failed to provide a “fair “unnecessary surgery” against Dr. Blum. We affirm. summary” of the experts’ opinions as to the elements of standard of care and causation; (2) patient was not entitled to additional time to amend insufficient expert reports; (3) award of $5,000 in attorney fees as a sanction against patient was proper; (4) dismissal of patient’s action did Background not violate constitutional guarantees. Strom sued the hospital claiming that hospital surgical Affirmed. nursing staff improperly positioned her in preparation for neck surgery performed at the hospital October 4, 1996, Mirabal, J., dissented and filed opinion. and caused injury to her left knee. Strom also sued Dr. Blum, an orthopedic surgeon who later treated the left knee and performed a total knee replacement, claiming he Attorneys and Law Firms was negligent and grossly negligent because the surgery was unnecessary. Strom sued the hospital in October 1998 *218 John H. Holloway, Houston, for Appellant. and sued Dr. Blum a year later.

Sam A. Houston, Cruse, Scott, Henderson & Allen, On April 25, 2001, the hospital moved the trial court to Solace H. Kirkland, Andrews & Kurth, David W. Hodges, either dismiss Strom’s case against the hospital or require Mayor, Day, Caldwell & Keeton, L.L.P., Houston, for her to file a cost bond, on the grounds she had missed the Appellee. 90–day and the 180–day requirements of article 4590i, Panel consists of Justices TAFT, HANKS,* and section 13.01 by not filing expert reports in compliance MIRABAL.** with that statute. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(a), (d), (e)(3) (Vernon Supp.2003). With respect to the 180–day requirement, the hospital acknowledged that Strom had provided expert reports in attempted compliance with section 13.01(d),2 but argued that the reports were “insufficient as a matter of law” *219 OPINION under section 13.01(r)(6) because they did not provide a TIM TAFT, Justice. “fair summary” of the applicable standard of care, how it was breached, or the causal relationship between the Appellant, Florence M. Strom, filed health-care liability alleged breach and Strom’s injuries, as required by that claims against appellees, Memorial Hermann Hospital section. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § System d/b/a Memorial Hospital Southwest and Memorial 13.01(d), (r)(6) (Vernon Supp.2003). The hospital also Hospital System (the hospital) and Dr. Henry Blum, requested attorney’s fees, as authorized by

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

13.01(e)(1). See TEX.REV.CIV. STAT. ANN.. art. 4590i, Dismissals with Prejudice for Insufficient Reports § 13.01(e)(1) (Vernon Supp.2003). After conducting a hearing on May 14, 2001, the trial court dismissed Strom’s first four points of error challenge dismissal of Strom’s claims against the hospital, with prejudice, and her claims against Dr. Blum as an abuse of discretion. In awarded the hospital $5,000 in attorney’s fees and costs. points of error five through seven, Strom challenges the dismissal against the hospital on the same grounds. *220 Four days later, on May 18, 2001, Dr. Blum filed a similar motion to dismiss. The trial court granted this All health-care liability claims must comply with section motion and dismissed Strom’s claims against Dr. Blum in 13.01(d) of article 4590i. TEX.REV.CIV. STAT. ANN.. an order signed on August 18, 2001. This order recites art. 4590i, § 13.01(d) (Vernon Supp.2003). Section that the trial court considered Strom’s counsel’s sworn 13.01(d) requires that a plaintiff asserting a health-care testimony, and also reflects the trial court’s findings and liability claim must, not later than 180 days after filing conclusions in granting relief. suit, either: (1) furnish an expert report, with supporting curriculum vitae, to counsel for each defending physician or health-care provider; or (2) voluntarily nonsuit the claim. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(d) (Vernon Supp.2003). Article 4590i defines Standard of Review “expert report” as a written report that: [1] The abuse-of-discretion standard governs all article provides a fair summary of the 4590i, section 13.01 rulings. American Transitional Care expert’s opinions as of the date of Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); De the report regarding applicable Leon v. Vela, 70 S.W.3d 194, 197 (Tex.App.-San Antonio standards of care, the manner in 2001, pet. denied). This standard inquires whether the which the care rendered by the trial court acted without reference to any guiding rules or physician or health care provider principles. Garcia v. Martinez, 988 S.W.2d 219, 222 failed to meet the standards, and (Tex.1999); Mueller v. Beamalloy, Inc., 994 S.W.2d 855, the causal relationship between that 858 (Tex.App.-Houston [1st Dist] 1999, no pet.). We may failure and the injury, harm, or not reverse a discretionary decision simply because we damages claimed. might have reached a different one. Mueller, 994 S.W.2d at 858. When resolving factual issues or matters TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6) committed to the trial court’s discretion, we may not (Vernon Supp.2003). substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Section 13.01 acknowledges that medical-malpractice [2] cases require expert testimony *221 and the statute was Dismissals with prejudice for lack of compliance with enacted to curtail frivolous lawsuits. See Palacios, 46 section 13.01 of article 4590i are sanctions. See S.W.3d at 877; Hart v. Wright, 16 S.W.3d 872, 876 TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e) (Tex.App.-Fort Worth 2000, pet. denied). If the plaintiff (Vernon Supp.2003) (“... [T]he court shall, on the motion does not comply with section 13.01(d), and the defendant of the affected physician or health care provider, enter an seeks sanctions pursuant to section 13.01(e), the trial order awarding as sanctions....”); Palacios, 46 S.W.3d at court must grant the relief authorized by that section, as 877. In contrast to findings entered in support of a follows: dismiss the claim against that defendant with judgment after a bench trial under rule 296 of the Rules of prejudice; award costs and attorney’s fees to that Civil Procedure, findings entered in support of a sanction defendant; and require that any bond filed under section dismissing a cause, as entered here in the order granting 13.01 be forfeited to pay that award. TEX.REV.CIV. Dr. Blum’s motion, are not binding on the reviewing STAT. ANN.. art. 4590i, § 13.01(e)(1)-(3) (Vernon court, although they are “helpful” in determining whether Supp.2003); Palacios, 46 S.W.3d at 877; see also the trial court exercised its discretion in a reasonable and TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(l ) principled manner. See IKB Indus., Ltd. v. Pro–Line (Vernon Supp.2003) (“A court shall grant a motion Corp., 938 S.W.2d 440, 442 (Tex.1997) (appeal from challenging the adequacy of an expert report only if it dismissal as a sanction); Chrysler Corp. v. Blackmon, 841 appears to the court, after hearing, that the report does not S.W.2d 844, 852 (Tex.1992) (mandamus review of represent a good faith effort to comply with the definition dismissal as a sanction). of an expert report in Subsection (r)(6) of this section.”); In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 928 (Tex.App.-Texarkana 2001, orig. proceeding) (holding

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

that, because noncompliance with section 13.01(d) summary of the expert’s opinions as to the elements of mandates dismissal with prejudice, trial court had no standard of care, breach, and causation is higher than the discretion to grant extension of time to comply; granting “fair notice” requirement of rule 47. mandamus relief to compel dismissal). [10] [11] Standard of care, the first element required by [3] [4] In assessing an expert report for compliance with section 13.01(r)(6) for health-care liability claims, is sections 13.01(d) and (r)(6) on a defendant’s section defined by what an ordinarily prudent health-care 13.01(e) motion, the dispositive inquiry is whether the provider or physician would have done under the same or report “represents a good-faith effort” to comply with similar circumstances. Palacios, 46 S.W.3d at 880. section 13.01(r)(6). See Palacios, 46 S.W.3d at 878 Whether a defendant breached the standard of care due a (citing TEX.REV.CIV. STAT. ANN.. art. 4590i, § patient cannot be determined without “specific 13.01(r)(6)). Because section 13.01 focuses on the report, information about what the defendant should have done the only information relevant to this inquiry lies within differently.” See id. (“While a ‘fair summary’ is the four corners of the report. Id. The trial court may not something less than a full statement of the applicable look beyond the report, therefore, in determining standard of care and how it was breached, even a fair compliance with the statute. Id. summary must set out what care was expected, but not given.”) (quoting from Palacios, 4 S.W.3d at 865 (Taft, [5] [6] [7] [8] The report need not marshal all the plaintiff’s J., dissenting)). proof or meet the requirements for evidence offered to support a summary judgment or at trial. Palacios, 46 S.W.3d at 878–79. The report must, however, include the expert’s opinion on each of the elements defined by A. Standard of Care—Dr. Blum section 13.01(r)(6), specifically, the standards of care, Regarding Dr. Blum, Strom relies upon the following how the defendant breached those standards, and the excerpts from the reports of Doctors Robert A. Callewart causal relationship between the breach and the plaintiff’s and George W. Sibley: injury. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6). In setting out these elements, the report must: Dr. Callewart’s Report (1) inform the defendant of the specific conduct called into question by the plaintiff’s claims and (2) provide a I have reviewed the medical records furnished in the basis from which the trial court may conclude the claims case of Myrna Strom.... have merit. See Palacios, 46 S.W.3d at 879 (citing In February of 1997, she was seen by Dr. Henry Blum, Palacios v. American Transitional Care Ctrs., 4 S.W.3d an orthopedic surgeon, with her chief complaint 857, 865 (Tex.App.-Houston [1st Dist.] 1999), rev’d, 46 involving her left knee. X-rays showed degenerative S.W.3d 873 (Tex.2001) (Taft, J., dissenting)). A report changes with medial joint space narrowing and some that merely states the expert’s conclusions about the calcification in the notch, and his impression of torn standard of care, breach, and causation falls short of medial maniscus and chondromalacia. Again, he accomplishing these two purposes. Palacios, 46 S.W.3d reports that she had no prior history of knee related at 879. When the expert report provided in attempted complaints prior to surgery in question [neck surgery compliance with sections 13.01(d) and (r)(6) contains when the patient suffered a knee injury due to improper conclusory statements that do not alert the trial court or positioning by the operating room nurses]. Dr. Blum the defendant to the conduct the plaintiff complains of, performed the manisectomy on February 12, 1997. On section 13.01(l ) affords the trial court no discretion but to March 3, 1997, it is reported that she is doing fantastic conclude that the report does not represent the “good-faith after surgery. However, on April 19, 1997, Dr. Blum effort,” under section 13.01(l ), to provide “a fair indicates the patient needs a total knee replacement, summary” of the three elements required by section and on July 28, 1997, reports that she is scheduled for a 13.01(r)(6), and no discretion but to dismiss the cause as a total knee replacement on August 1, 1997. The total sanction, as provided by section 13.01(e). Palacios, 46 knee and carpal tunnel release were performed by Dr. S.W.3d at 880. Blum on August 1, 1997.... [9] Strom contends that the requirement of providing a Based upon the records, it is my expert opinion that “fair summary” is akin to providing “fair notice” in the total knee and carpal tunnel release were not pleadings pursuant *222 to rule 47 of the Texas Rules of medically indicated. There is no justification or very Civil Procedure. See TEX.R. CIV. P. 47. It is apparent, clear indication in the chart for the surgery. There is however, from the cases Strom cites that the Palacios some suggestion she had severe arthritis in the knee; standard for making a good-faith effort to provide a fair however, this is not consistent with what was reported © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

in the knee at the time of the prior surgery B. Standard of Care—The Hospital [manisectomy by Dr. Blum] or other evaluations of the Regarding the Hospital, Strom relies upon the following knee. If she had severe degenerative joint disease, this excerpts from the reports of Doctors Sibley and could not have occurred in several months time frame Callewart: from when she had the surgery of the neck or from the time of the February 12, 1997, surgery [manisectomy Dr. Sibley’s Report by Dr. Blum]. On 10/4/96, Dr. Berry operated on Florence and Based upon a reasonable medical probability, the decompressed the C7–T1 area. He noted that records indicate no medical basis of [sic] reason for postoperatively, the patient for the first time the total knee replacement in a woman in her complained of her left knee. middle 50’s who weighs 240 lbs, who had reportedly a normal knee prior to the operative room injury. On 11/1/96, an MRI of the left knee showed a tear of The surgery would therefore violate the standards of the posterior horn of the medial meniscus. Dr. Staewen care which would be expected to be exercised by a examined her and made the diagnosis of the dislocated reasonable and prudent orthopedic surgeon under the patella on the left with mild sprain of the lateral same or similar circumstances, and gross negligence collateral ligament. The medical records suggest that to submit such a patient to an unnecessary surgery. the patient, while being strapped in the prone position for a posterior cervical operative procedure on 10/4/96, *223 Dr. Sibley’s Report was placed in an untoward position. The result was injury of the left knee.... Based upon the medical records, the surgery of 8/1/97 [total knee and carpal tunnel syndrome surgeries] was On 2/3/97, Florence saw Dr. Blum complaining of her not indicated medically. This apparently was left knee.... unnecessary surgery. The medical records do not contain adequate indications for the surgery On 2/12/97 Dr. Blum did arthroscopic surgery of the performed on 8/1/97. A markedly obese 52–year–old left knee and did a partial medial meniscectomy and lady with a short right leg is not a candidate one chondroplasty of the left knee.... would expect to have a good result from a total knee replacement. The diagnosis of carpal tunnel CONCLUSION: Based upon the medical records, it syndrome seems to be inadequate grounds to justify appears that the patient went into the operation of the surgery of 8/1/97. The surgeries of 8/1/97 to the 10/4/96 without complaints of her left knee and knee and to the wrist were unnecessary. came out of the surgery with complaints of the left knee. It is also noted that the patient had a short (Emphases added by Strom’s brief for both reports.) right leg and degenerative disease of the left knee prior to the 10/4/96 surgery. Based on the medical [12] Examining the two reports for a showing of what an records, the patient’s left knee was negligently ordinarily prudent physician would have done under the injured while under anesthesia when she was moved same or similar circumstances, there simply is no from the supine position on the gurney to the prone statement of the standard of care. See Palacios, 46 position on the operating table (a twisting injury) S.W.3d at 880. To the extent that the reports state what an and/or when she was placed on the operating table ordinarily prudent physician would not have done, i.e., with the left knee inadequately padded. what Dr. Blum did, the reports are addressing a breach of the standard of care rather than the applicable standard of Dr. Callewart’s Report care itself. Because the reports fail to provide an adequate On May [2]8, 1996, Dr. Cech performed what is statement of the standard of care, it is unnecessary to described as inferior L4 and superior L5 examine further whether they fulfill the other two hemilaminectomies, bilateral *224 L4–5 medial requirements for expert reports pursuant to article 4590i, facetectomies and foraminotomies with decompression section 13.01(r)(6). See De Leon v. Vela, 70 S.W.3d at of the L4/L5 nerve roots and thecal sac. The patient 199. complained of continuing problems post-operatively; however, in a report dated July 8, 1996, she denied any Accordingly, we overrule Strom’s first four points of trouble with pain in the lower extremities. Based upon error. evaluation by MRI, x-ray, and a cervical myelogram in August and September 1996, Dr. John Berry suggested a cervical decompression bilaterally of C7–T1, and

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possibly re-explore C5–6 bilaterally. This surgery was performed on October 4, 1996, at the Memorial Accordingly, we overrule Strom’s fifth through seventh Hospital Southwest in Houston, Texas. This surgery points of error. resulted in the patient sustaining an acute traumatic injury in the patient’s left knee/leg; the patient being presumably in a sitting position. The patient suffered immediate pain and swelling of the knee postoperatively, with difficulty in walking. Failure to Grant Additional Time to File Complying Expert Report On October 23, 1996, it is reported that the patient complains of left knee pain and hobbling on the left In points of error eight through ten, Strom contends the knee, which is swollen, with decreased range of motion trial court abused its discretion by refusing to grant her an and tenderness. A MRI of the left knee on November 1, additional 30 days to either amend the reports *225 of her 1996, showed a horizontal tear through the posterior experts, Drs. Sibley and Callewart, or permit Strom to file horn of the medial meniscus, extending to the inferior their depositions as supplements to their reports. Strom articular surface near the free edge, and a small interior relies on section 13.01(g) of article 4590i, which provides surface tear of the medial meniscus at the junction of as follows: the posterior horn and body segment, and a grade I medial collateral ligament sprain. Notwithstanding any other provision of this section, if a The knee injuries described in the MRI do not occur claimant has failed to comply with when the customary and usual standards of care are a deadline established by exercised in the positioning and strapping a patient on Subsection (d) of this section and the operative table. However, the injuries can occur after hearing the court finds that the when the hospital’s operating room personnel fail to failure of the claimant or the take necessary precautions to pad and avoid the claimant’s attorney was not placement of the leg/knee in an abnormal position by intentional or the result of strapping the patient to prevent movement during conscious indifference but was the surgery. It is my expert opinion, based upon a result of an accident or mistake, the reasonable medical probability, that the knee injuries court shall grant a grace period of suffered by the patient were due to the failure of the 30 days to permit the claimant to operating room personnel to exercise ordinary care, or comply with that subsection. A negligence of the operating room personnel, in placing motion by a claimant for relief and maintaining her position on the operating room under this subsection shall be table. On a follow up of her knee pain January 8, 1997, considered timely if it is filed it was noted that ‘apparently during her recent surgery, before any hearing on a motion by her knees were taped in an untoward position, resulting a defendant under Subsection (e) of in some problems. Difficult to know exactly what, but this section. it is felt that she has some cartilage torn in the left knee.’ TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g) (Vernon Supp.2003). (Emphases added by Strom’s brief for both reports.) [14] The record contains two requests by Strom for [13] Although the above reports mention that Strom’s knee additional time. The first request appears in the injury does not normally occur when the usual standards concluding paragraphs of Strom’s response to the of care are exercised, and even note that the left knee hospital’s motion to dismiss. This request refers to must not have been properly positioned or padded, the possible secretarial or post-office error and appears to reports nevertheless fail to set out the applicable standard presume that the hospital was contending Strom did not of care. See Palacios, 46 S.W.3d at 880. Once again, the furnish the reports on a timely basis, as well as moving to most that can be said is that the reports address a breach dismiss pursuant to section 13.01(e)(3) because the of the standard of care by not properly positioning or reports were insufficient. Citing section 13.01(h) of article padding the leg and knee. Moreover, the reports are 4590i,3 which authorizes agreements of counsel to extend conclusory regarding causation, by failing to set out the the deadlines of sections 13.01(a) or (d), Strom’s counsel manner in which a failure to properly pad and position the provided an affidavit documenting his and the hospital’s leg and knee resulted in Strom’s knee injury. February 10, 1999 rule 11 agreement to extend the

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deadline to provide an expert report an additional day, to April 1, 1999. The affidavit also documented Strom’s To comply with section 13.01(g), however, Strom had to counsel’s instructions to his support staff in accordance file her request for additional time before any hearing on a with that agreement. Nothing in the record suggests that defendant’s motion to dismiss under section 13.01(e). See the hospital was disputing timeliness of receipt. Rather, TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g); see the record shows that, in contending Strom had not also Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex.App.- complied on a timely basis, the hospital had taken the Houston [1st Dist.] 2000, no pet.) (holding that trial court position that Strom had not provided complying expert did not abuse its discretion by denying motion, which reports by the 180–day deadline, which had therefore sought additional time to file section 13.01(d) expert expired. Moreover, in later documents filed with the trial report, but was filed after hearing on section 13.01(e) court, Strom’s counsel referred to his timely compliance motion to dismiss). Here, Strom did not request additional with the agreed, extended deadline as “undisputed.” Thus, time to comply with section 13.01(d) on the grounds she there was no basis on which to invoke section 13.01(h). raises in this appeal until after the hearing on the hospital’s motion to dismiss. Accordingly, her request Strom also cited section 13.0 2 (g) of article 4590i in was not timely. support of her first request for additional time. Section 13.0 2 (g) does not pertain, however, to expert reports. Because Strom’s request for additional time was not See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.02(g) timely, the trial court did not abuse its discretion by (Vernon Supp.2003). Strom may have mistakenly cited refusing to grant relief. We need not address, therefore, section 13.0 2 (g) instead of section 13.0 1 (g), on which whether Strom’s counsel’s “reasonable belief,” that the she relies in her brief to this Court. But the “accident or expert reports provided to support Strom’s claims mistake” documented in the affidavit supporting Strom’s complied with sections 13.01(d) and (r)(6) of article first request refers only to Strom’s having erroneously 4590i, constituted “accident or mistake” that warranted presumed, as we have just addressed, that the hospital did granting additional time to comply. not receive Strom’s reports by the agreed, extended deadline. The first request does not refer to the “accident We overrule points of error eight through ten. or mistake” on which Strom later relied and on which she relies in this appeal.

Strom’s second request for additional time appears in her June 15, 2001 motion for rehearing of the trial court’s Deadline to Challenge Expert Reports May 24, 2001 order dismissing her case against the [15] hospital, with prejudice. In addition to claiming that her In point of error 11, Strom contends Dr. Blum waived expert reports complied with section 13.01 of article his right to challenge Strom’s expert reports by waiting 4590i, Strom alternatively requested that the trial court until 180 days after Strom filed suit. Strom maintains that “extend the time to file or furnish an amended report or Dr. Blum had the reports and was aware of their contents, the depositions of Dr. Sibley and Dr. Callewart as an but “sat on his hands” and waited until after the last amendment *226 to the prior reports.” Strom again cited possible date for Strom to provide a complying expert section 13.01(h) of article 4590i, governing agreements of report. Article 4590i imposes no deadline for challenging counsel to extend preliminary deadlines for filing expert an expert report under section 13.01(d). See Gonzalez v. reports. Section 13.01(h) does not apply to relief El Paso Hosp. Dist., 68 S.W.3d 712, 717 (Tex.App.-El requested of a court. Paso 2001, no pet.); Chisholm v. Maron, 63 S.W.3d 903, 908 (Tex.App.-Amarillo 2001, no pet.); Hargrove v. Strom again cited “accident or mistake” in her second Denno, 40 S.W.3d 714, 716 (Tex.App.-San Antonio 2001, request, but asserted reasons that differed from her first no pet.). request. Here, Strom clearly invoked the provisions of section 13.01(g) of article 4590i by asserting that her Accordingly, we overrule point of error 11. failure to comply with section 13.01(d) was neither intentional nor the result of conscious indifference, but the result of accident or mistake. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g). Strom’s claim of Award of Attorney’s Fees to Hospital “accident or mistake” is premised on her attorney’s sworn affidavit attesting to his “reasonable belief” that the expert [16] In point of error 12, Strom contends that the trial court reports he provided complied with article 4590i. Strom abused its discretion in awarding the Hospital $5,000 for reasserts that contention on appeal. attorney’s fees without evidence to support the claim. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

Strom also argues that she was entitled to a jury trial on for medical negligence be brought under article 4590i. the issue of reasonable attorney’s fees. Strom’s attempt to recast her claims of negligence in advising her of the necessity of surgery as fraud and Article 4590i, section 13.01(e)(1) provides that the trial intentional and fraudulent misrepresentations regarding court shall award reasonable attorney’s fees as a sanction unnecessary surgery do not remove those claims from for a plaintiff’s failure to comply with the requirements of article 4590i. See Gomez v. Matey, 55 S.W.3d 732, 735 section 13.01(d). TEX.REV.CIV. STAT. ANN.. art. (Tex.App.-Corpus Christi 2001, no pet.) (holding claims 4590i, § 13.01(e)(1) (Vernon Supp.2003). By providing of fraud and misrepresentation regarding unnecessary that the trial court assess the sanction, the plain language surgery fell within scope of article 4590i). *227 of the statute does not contemplate that a jury determine what is reasonable as attorney’s fees. Strom Accordingly, we overrule both of Strom’s points of error does not provide any authority that would permit the jury thirteen. to determine this issue. [17] In contending that no evidence supported the trial court’s award of attorney’s fees, Strom ignores affidavit testimony that $7,500 represented a reasonable award of Conclusion attorney’s fees in this case. This suggested fee was $2,500 more than the amount the trial court actually awarded. In We affirm the judgment of the trial court. We deny all disputing the evidentiary support for the award of pending motions. attorney’s fees, Strom appears to argue that something more than an affidavit is required, but again offers no authority to support that contention. Justice MARGARET GARNER MIRABAL, dissenting. We hold that the trial court did not err by awarding attorney’s fees without convening a jury or requiring testimony beyond proof by affidavit. Accordingly, we MARGARET GARNER MIRABAL, Justice, dissenting. overrule point of error 12. In my opinion, the timely-filed expert report of Dr. Robert A. Callewart, M.D., represents a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of the Medical Liability and Insurance Constitutional Challenges to Section 13.01 Improvement Act,1 and therefore the trial court abused its discretion when it dismissed the plaintiff’s claims with In two points of error 13, Strom contends that (1) the prejudice. Accordingly, I respectfully dissent. dismissal of her suit with prejudice violates her state and federal constitutional guarantees of due process of law, I note that this is not a case involving the failure to file an equal protection of the law, and right to a jury trial; and expert report, and *228 this is not a case involving the (2) the trial court abused its discretion in dismissing filing of a late expert report. Rather, this case involves a Strom’s claims for fraud, intentional and fraudulent timely-filed expert report. The issue is whether the misrepresentations, and “unnecessary surgery” because defendants’ challenges to the adequacy of the expert these causes of action are not issues relating to a “medical report should have been granted, resulting in the dismissal standard” under article 4590i. of plaintiff’s case with prejudice. [18] Strom correctly asserts that article 4590i places a If a plaintiff timely files an expert report and the heavy burden on medical malpractice plaintiffs to comply defendant moves to dismiss because of the report’s with very specific requirements and that the sanction for inadequacy, the trial court must grant the motion “only if failing to comply is severe, but neither violates it appears to the trial court, after hearing, that the report constitutional guarantees. See Schorp v. Baptist Mem’l does not represent a good faith effort to comply with the Health Sys., 5 S.W.3d 727, 737–38 (Tex.App.-San definition of an expert report in Subsection (r)(6) of this Antonio 1999, no pet.); McGlothlin v. Cullington, 989 section.” TEX.REV.CIV. STAT. ANN.. Art. 4590i, § S.W.2d 449, 452–53 (Tex.App.-Austin 1999, pet. denied). 13.01(l ) (Vernon Supp.2003) (emphasis added); Bowie [19] Memorial Hosp. v. Wright, 79 S.W.3d 48, 51–52 As for Strom’s contention that her claims exceeded the (Tex.2002). To constitute a “good-faith effort,” the report scope of article 4590i, settled law compels that all claims must provide enough information to fulfill two purposes:

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(1) it must inform the defendant of the specific conduct fail to take necessary precautions to pad and avoid the plaintiff has called into question, and (2) it must the placement of the leg/knee in an abnormal provide a basis for the trial court to conclude that the position by strapping the patient to prevent claims have merit. Bowie, 79 S.W.3d at 52. A Court movement during surgery. reviews the information contained within the four corners of the report to determine whether it constitutes a “good- faith effort” to provide a fair summary of the expert’s C. Breach opinions about the standard of care, breach, and causal connection between breach and injury. Id. It is my expert opinion, based upon a reasonable medical probability, that the knee injuries suffered by the patient were due to the failure of the operating room personnel to exercise *229 ordinary care, or negligence of the operating room personnel, in Claims against the Hospital placing and maintaining her position on the operating room table. Dr. Callewart’s report reads, in relevant part:

D. Causal Connection

A. Injury The knee injuries described in the MRI do not occur when the customary and usual standards of care are Based upon evaluation by MRI, x-ray, and a cervical exercised in the positioning and strapping a patient myelogram in August and September 1996, Dr. John on the operative table. However, the injuries can Berry suggested a cervical decompression bilaterally occur when the hospital’s operating room personnel of C7–T1, and possibly re-explore C5–6 bilaterally. fail to take necessary precautions to pad and avoid This surgery was performed on October 4, 1996, at the placement of the leg/knee in an abnormal the Memorial Hospital Southwest in Houston, Texas. position by strapping the patient to prevent This surgery resulted in the patient sustaining an movement during surgery.... On a follow up of her acute traumatic injury in the patient’s left knee knee pain January 8, 1997, it was noted that probably associated with improper positioning of ‘apparently during her recent surgery, her knees were padding of the knee/leg, the patient being taped in an untoward position, resulting in some presumably in a sitting position. The patient suffered problems. Difficult to know exactly what, but it is immediate pain and swelling of the knee felt that she has some cartilage torn in the left postoperatively, with difficulty walking. knee.’.... It is my expert opinion, based upon a reasonable medical probability, that the knee injuries On October 23, 1996, it is reported that the suffered by the patient were due to the failure of the patient complains of left knee pain and hobbling operating room personnel to exercise ordinary care, on the left knee, which is swollen, with or negligence of the operating room personnel, in decreased range of motion and tenderness. A placing and maintaining her position on the MRI of the left knee on November 1, 1996, operating table. showed a horizontal tear through the posterior Does Dr. Callewart’s report provide enough horn of the medial meniscus, extending to the information to inform the defendant Hospital of the inferior articular surface near the free edge, and specific conduct the plaintiff has called into question, a small inferior surface tear of the medial and to provide a basis for the trial court to conclude meniscus at the junction of the posterior horn that the claims have merit? and body segment, and a grade I medial collateral ligament sprain. Clearly, Dr. Callewart’s report gives notice that the manner in which the hospital personnel strapped the plaintiff to the operating table was called into question. B. Standard of Care The standard of care requires hospital personnel to take necessary precautions to pad and avoid the placement of The knee injuries described in the MRI do not occur the leg/knee in an abnormal position by strapping when the customary and usual standards of care are (standard of care); a medical report indicated that exercised in the positioning and strapping a patient plaintiff’s knees were taped in an untoward position on on the operative table. However, the injuries can the operating table, and based on a reasonable medical occur when the hospital’s operating room personnel

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probability, it was Dr. Callewart’s expert opinion that the reports that she had no prior history of knee plaintiff’s knee injuries were due to the failure of the related complaints prior to surgery in question. hospital personnel to properly place and maintain Dr. Blum performed the menisectomy on plaintiff’s position on the operating table (breach and February 12, 1997. On March 3, 1997, it is causal connection). reported that she is doing fantastic after surgery. However, on April 19, 1997, Dr. Blum This case is unlike the Palacios case. American indicates the patient needs a total knee Transitional Care Centers v. Palacios, 46 S.W.3d 873 replacement, and on July 28, 1997, reports that (Tex.2001). In Palacios, the patient fell from his bed, and she is scheduled for a total knee replacement on the expert opined that “precautions to prevent [the August 1, 1997. patient’s] fall were not properly utilized.” Id. at 880. The supreme court held that this was not a statement of a (Emphasis added). Dr. Blum performed the total standard of care because neither the trial court nor the knee replacement surgery on the plaintiff. defendant would be able to determine from this statement if the doctor “believes that the standard of care required [defendant] to have monitored Palacios more closely, B. Standard of Care restrained him more securely, or done something else entirely.” Id. In contrast, the expert’s report in the present The surgery would ... violate the standards of care case puts the trial court and the defendant on notice of the which would be expected to be exercised by a conduct complained of, i.e. that the hospital personnel reasonable and prudent orthopedic surgeon under the failed to properly pad and place the leg/knee in a normal same or similar circumstances. position when strapping the plaintiff to the operating table—by taping the leg in an untoward and abnormal C. Breach position, a tearing injury was caused to the plaintiff’s knee. Based upon the records, it is my expert opinion that the total knee and carpal tunnel releases were not Under the guiding principles set out in Bowie and medically indicated. There is no justification or very Palacios, Dr. Callewart’s report constitutes a good-faith clear indication in the chart for the surgery. There is effort to provide a fair summary of the doctor’s opinions some suggestion she had severe arthritis in the knee; about the standard of care, breach and causal connection. however, this is not consistent with what was Accordingly, the trial court abused its discretion when it reported in the knee at the time of the prior surgery granted the defendant’s motion challenging the adequacy or other evaluations of the knee. If she had severe of the report resulting in a dismissal, *230 with prejudice, degenerative joint disease, this could not have of the plaintiff’s claims against the hospital. occurred in a several months time frame from when she had the surgery of the neck or from the time of February 12, 1997, surgery.

Based upon a reasonable medical probability, Claims against Dr. Blum the records indicate no medical basis of reason Dr. Callewart’s report reads, in relevant part: for the total knee replacement in a woman in her middle 50’s who weighs 240 lbs, who had reportedly a normal knee prior to the operative room injury. The surgery would therefore A. Injury violate the standards of care which would be expected to be exercised by a reasonable and “I have reviewed the medical records furnished in prudent orthopedic surgeon under the same or the case of Myrna Strom....” similar circumstances, and gross negligence to submit such a patient to unnecessary surgery. In February of 1997, she was seen by Dr. Henry Blum, an orthopedic surgeon, with her chief complaint involving her left knee. X-rays D. Causal Connection showed degenerative changes with medial joint space narrowing and some calcification in the Based upon the records, it is my expert opinion that notch, and his impression of torn medial the total knee and carpal tunnel releases were not meniscus and chondromalacia. Again, he medically indicated. There is no justification or very

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clear indication in the chart for the surgery.... Based breached his or her duty to a patient upon a reasonable medical probability, the records cannot be determined absent indicate no medical basis of reason for the total knee specific information about what the replacement.... defendant should have done Does Dr. Callewart’s report provide enough differently. information to inform the defendant Doctor of the specific conduct the plaintiff has called into question, Id. at 880. In the present case, the expert’s report and to provide a basis for the trial court to conclude identified the standard of care for an orthopedic surgeon, that the claims have merit? and specifically stated what care was expected, but not given, i.e., a diagnosis and action based on what is *231 It is clear from Dr. Callewart’s report that the medically indicated, not the performance of unnecessary conduct called into question is the performance of a total major surgery. knee replacement operation, when such surgery was unnecessary. The report provides a fair summary of Dr. Once again, under the guiding principles set out in Bowie Callewart’s opinions about the standard of care (that and Palacios, Dr. Callewart’s report constitutes a good- which would be expected to be exercised by a reasonable faith effort to provide a fair summary of his opinions and prudent orthopedic surgeon under the same or similar about the standard of care, breach, and causal connection. circumstances), breach (performing “unnecessary” knee Accordingly, the trial court abused its discretion when it replacement surgery, which is “not medically indicated”, granted the defendant doctor’s motion challenging the for which there is “no justification ... in the chart”), and adequacy of the report resulting in a dismissal, with causal connection (the breach of the applicable standard prejudice, of the plaintiff’s claims against the defendant, of care caused the injury of unnecessary knee replacement Dr. Blum. surgery).

With regard to standard of care, the Texas Supreme Court stated in Palacios: CONCLUSION The standard of care for a hospital We should sustain appellant Strom’s points of error one is what an ordinarily prudent through seven, reverse the judgment, and remand the case hospital would do under the same to the trial court. or similar circumstances. .... Identifying the standard of care is critical: Whether a defendant

Footnotes * This case was originally submitted to a panel consisting of Justices Taft, Mirabal, and retired Justice Jackson B. Smith, Jr. Upon Justice Smith’s recusal, Justice George C. Hanks, Jr., who was appointed to this Court on December 31, 2002, is participating by assignment. ** The Honorable Margaret Garner Mirabal, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment. 1 See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(d), (r)(6) (Vernon Supp.2003).

2 Strom provided her experts’ reports to counsel for the hospital on April 1, 1999. It is undisputed that the experts’ reports were timely by agreement of counsel signed in accordance with rule 11 of the Rules of Civil Procedure and as authorized by section 13.01(h) of article 4590i. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003); TEX.R. CIV. P. 11. 3 TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003)

1 TEX.REV.CIV. STAT. ANN.. Art. 4590i, § 13.01(r)(6) (Vernon Supp.2003).

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End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Taylor v. Fossett, 320 S.W.3d 570 (2010)

order and remand to the trial court for the limited 320 S.W.3d 570 purposes of determining Dr. Taylor’s reasonable Court of Appeals of Texas, attorney’s fees and costs and for entry of a final order Dallas. dismissing Fossett’s claims with prejudice.

Roosevelt TAYLOR, Jr., M.D., Appellant, v. LaToya FOSSETT, Appellee. Background No. 05–09–01271–CV. | Aug. 25, 2010. Given the procedural posture of this case, we draw the facts from the allegations in Fossett’s petition. On Synopsis November 1, 2006, Fossett was admitted under Dr. Background: Patient brought healthcare liability action Taylor’s care to Mesquite Community Hospital for against physician, arising out of contraction of methicillin induction of labor. There were complications with the resistant staphylococcus aureus (MRSA). The County delivery and Dr. Taylor performed a cesarean section Court at Law No. 4, Dallas County, William Ken birth. A few days later, an infection developed in the Tapscott, Jr., denied physician’s motion to dismiss. cesarean section incision. According to Fossett, Dr. Physician appealed. Taylor failed to culture the infection and failed to document abdominal fascial integrity during Fossett’s hospitalization. Fossett was discharged from the hospital on November 4, 2006. She was seen by Dr. Taylor in his [Holding:] The Court of Appeals, Fillmore, J., held that office three days later on November 7, 2006. Dr. Taylor expert’s report failed to adequately establish causation evaluated Fossett’s condition and prescribed the oral element required in action. antibiotic Keflex. According to Fossett, Dr. Taylor failed at that time to culture the incision infection and to document abdominal fascial integrity. On November 9, Reversed and remanded with instructions. 2006, Fossett went to the Baylor Hospital Emergency Department. She was diagnosed with cellulitis, hospitalized, and placed on intravenous antibiotics. A Attorneys and Law Firms bacterial culture showed the infection to be methicillin resistant staphylococcus aureus (MRSA). Fossett was *571 J. Wade Birdwell, D. Michael Wallach, Leslie Ann hospitalized for two weeks. While hospitalized, Fossett Dillon Thomas, Wallace, Andrews & Stouffer, P.C., Fort underwent two surgical procedures relating to wound Worth, TX, for Appellant. dehiscence and drainage from the incision. According to Douglas Michael Wood, Law Firm of Douglas Wood, Fossett, she continues to suffer bowel and abdominal Dallas, TX, for Appellee. pain, has permanent scarring and disfigurement of her abdomen, and will require plastic surgery. Before Justices MOSELEY, BRIDGES and FILLMORE. Fossett filed suit against Dr. Taylor. Fossett alleges that Dr. Taylor’s failure *572 following a caesarian section to timely diagnose and treat her for an incision infection, wound dehiscence and cellulitis involving MRSA proximately caused her to suffer injuries and otherwise OPINION avoidable surgical intervention. Fossett contends Dr. Taylor was negligent in (1) failing to diagnose incision Opinion By Justice FILLMORE. infection, wound dehiscence and cellulitis; (2) failing to timely communicate with the patient and document This interlocutory appeal follows the trial court’s refusal cellulitis; and (3) failing to document abdominal fascial to dismiss LaToya Fossett’s health care liability claims integrity, obtain bacterial cultures, evaluate for and against Roosevelt Taylor, Jr., M.D. Dr. Taylor contends administer appropriate medical care, including the trial court erred by denying his motion to dismiss, hospitalization, and treat spreading cellulitis. which challenged the sufficiency of Fossett’s initial and supplemental expert reports, and by denying him attorney’s fees and costs. We reverse the trial court’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Taylor v. Fossett, 320 S.W.3d 570 (2010)

Pursuant to section 74.351 of the Texas Civil Practice and Dr. Taylor’s failure to meet to (sic) the applicable Remedies Code, Fossett served Dr. Taylor with an expert standard of care, as described above, in all medical report prepared by Dr. Adam S. Levine, a practicing probability, was the proximate cause of the injuries obstetrician and gynecologist, in support of her claims. In LaToya Fossett suffered. As a result of Dr. Taylor’s his expert report, Dr. Levine asserted that Dr. Taylor failure to meet the applicable standard of care LaToya deviated from the accepted standard of care for post- Fossett required: *573 1) At least one surgical wound operative surgical wound infection and his deviations exploration that might not have been necessary; 2) A from the standard of care were the proximate cause of hospital stay that was longer than should have been Fossett’s complications and injuries. In his report, Dr. necessary had she been admitted 48 hours sooner; 3) A Levine stated: longer recovery than should have been necessary had she been admitted 48 hours sooner; 4) a larger scar; and Dr. Taylor provided LaToya Fossett with ante- and 5) continued abdominal pain and discomfort. post- natal care. Dr. Taylor performed LaToya Fossett’s cesarean section, which included making the Dr. Taylor challenged the legal sufficiency of Dr. surgical incision which ultimately became infected. Dr. Levine’s report as failing to comply with the statutory Taylor breached the standard of care because: 1) requirements of section 74.351 and moved to dismiss neither a weight nor a blood pressure were recorded on Fossett’s health care liability claims with prejudice the first post-operative visit for LaToya Fossett; 2) pursuant to section 74.351(b). See TEX. CIV. PRAC. & aside from a foul odor and draining, no information REM.CODE ANN. § 74.351(b) (Vernon Supp. 2009) (if was recorded with regard to when the pain became health care liability claimant does not serve expert report worse, when the drainage began, or whether there was as required, the trial court must, upon motion by affected any redness or swelling; 3) no documentation was health care provider or physician, dismiss claim with provided with regard to the size or extent of the wound prejudice). He argued the report was legally insufficient infection and there was no documentation regarding to satisfy the statutory requirements because Dr. Levine’s fascial integrity; 4) no bacterial wound cultures were opinions regarding the alleged violations of the standard taken; 5) Dr. Taylor prophylactically prescribed the of care and the alleged causal connection between such same antibiotics that had no impact earlier in LaToya violations and injuries and damages claimed by Fossett Fossett’s pregnancy; 6) Dr. Taylor failed to order re- were conclusory. After a hearing, the trial court concluded evaluation within 24 to 48 hours and instead ordered it Dr. Levine’s report was insufficient under section 74.351. for a week later; 7) Dr. Taylor ordered wound The trial court, however, granted Fossett a thirty-day compresses but failed to document or instruct LaToya extension under section 74.351(c) “to cure a causation Fossett any (sic) form of wound care, irrigation or deficiency” in her expert’s report: cleaning. namely, whether in Dr. Levine’s Because Dr. Taylor documented a surgical wound opinion, Dr. Taylor’s failure to infection with “copious pus” and failed to provide meet the appropriate standard of LaToya Fossett with treatment in accord with the care in post-surgical wound care standard of care, Fossett required admission to Baylor more likely than not or within Hospital. Unfortunately, this admission was within 48 reasonable medical probability hours of Dr. Taylor’s evaluation and order to follow-up caused LaToya Fossett to have one one week later. At Baylor Hospital, LaToya Fossett or more exploratory surgeries. The was evaluated according to the standard of care and current language in the report is ultimately subjected to two surgical wound insufficient regarding the explorations, a prolonged hospital stay, a larger exploratory surgeries. incision and scar, and long-standing abdominal pain. Had Dr. Taylor appropriately evaluated and treated See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c) LaToya Fossett in a timely fashion according to the (trial court may grant extension to party that failed to standard of care, she might have been admitted to the serve expert report because timely served report found to hospital earlier and required only one, if any, surgical be deficient). The trial court overruled any other wound explorations (sic). She would most likely not objections to the report. have required two surgeries. Had Dr. Taylor appropriately evaluated and treated LaToya Fossett she Within the thirty-day extension period, Fossett served a would not have required as prolonged a hospital stay supplemental report prepared by Dr. Levine. Dr. Levine’s because the infection got worse each day and smaller supplemental report stated: infections are easier to treat than larger infections.

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My original opinions regarding the medical care Dr. Dr. Levine was sufficient and satisfied the requirements Taylor provided LaToya Fossett remain unchanged. Dr. of section 74.351. See TEX. CIV. PRAC. & REM.CODE Taylor failed to meet an appropriate standard of care ANN. §§ 74.351(l ), 74.351(r)(6). for a post-surgical wound. Specifically, Dr. Taylor failed to timely examine, culture, investigate or treat The trial court denied Dr. Taylor’s motion to dismiss. what was an obvious post-surgical wound Pursuant to section 51.014(a)(9) of the civil practice and complication. Dr. Taylor’s failure to examine, culture, remedies code, Dr. Taylor brought this interlocutory investigate or treat LaToya Fossett’s surgical wound appeal challenging the trial court’s denial of his motion to more likely than not and within a reasonable degree of dismiss. See TEX. CIV. PRAC. & REM.CODE ANN. § medical probability caused LaToya Fossett to have one 51.014(a)(9) (Vernon 2008). or more exploratory surgeries and debridements. Dr. Taylor should have appropriately examined LaToya Fossett.

Further, Dr. Taylor should have recognized the Standard of Review and Applicable Law possibility of MRSA infection because MRSA [1] [2] infections are common iatrogenic infections in Dr. Taylor asserts the trial court abused its discretion hospitals. Had Dr. Taylor examined or cultured LaToya when it denied his motion to dismiss because Dr. Levine’s Fossett’s surgical wound, Dr. Taylor might have original and supplemental expert reports, whether properly diagnosed MRSA and begun treatment with considered separately or collectively, are legally and appropriate antibiotic therapy it (sic) is more likely than factually insufficient and conclusory. We review a trial not that LaToya Fossett would not have required court’s order on a motion to dismiss a health care liability subsequent surgeries which resulted in significant pain claim for an abuse of discretion. See Am. Transitional and permanent scarring. Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Nexion Health at Terrell Manor v. Taylor, Finally, it is my opinion, based on a reasonable degree 294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A of medical probability, that Dr. Taylor deviated from trial court has no discretion in determining what the law is the accepted standard of care in this case and that his or in applying the law to the facts. See Walker v. Packer, deviations from the standard of care caused LaToya 827 S.W.2d 833, 840 (Tex.1992) (orig. *575 proceeding). Fossett’s injuries. An abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. Id. *574 Dr. Levine’s supplemental report added one opinion [3] on causation that was not contained in his original report: Under section 74.351 of the civil practice and remedies “Had Dr. Taylor examined or cultured LaToya Fossett’s code, any person who brings suit asserting a health care surgical wound, Dr. Taylor might have properly liability claim must, within 120 days of filing the original diagnosed MRSA and begun treatment with appropriate petition, provide an expert report for each physician or antibiotic therapy it (sic) is more likely than not that health care provider against whom a claim is asserted. LaToya Fossett would not have required subsequent TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). surgeries which resulted in significant pain and permanent “Expert report” means a written report that provides a fair scarring.” summary of the expert’s opinions as to the applicable standards of care, the manner in which the care rendered Dr. Taylor again objected to the report and moved to failed to meet those standards, and the causal relationship dismiss Fossett’s claims for failure to serve a sufficient between that failure and the injury, harm, or damages expert report under section 74.351. He contended that Dr. claimed. TEX. CIV. PRAC. & REM.CODE ANN. § Levine’s opinions set forth in his original and 74.351(r)(6); see also, Bowie Mem’l Hosp. v. Wright, 79 supplemental reports, whether the reports are considered S.W.3d 48, 52 (Tex.2002). An expert report must provide separately or collectively1, were conclusory and lack enough information to fulfill two purposes if it is to sufficient factual specificity with regard to the violations constitute an objective, good faith effort to comply with of the standard of care alleged against Dr. Taylor and the the definition of an expert report under section alleged causal connection between any such violations 74.351(r)(6). The report must inform the defendant of the and the injuries and damages claimed by Fossett. He specific conduct the plaintiff has called into question and further contended that the supplemental report, like the must provide a basis for the trial judge to conclude the original report, merely concluded that Dr. Taylor caused claims have merit. Leland v. Brandal, 257 S.W.3d 204, Fossett’s injuries by breaching the standard of care. After 206–07 (Tex.2008); Palacios, 46 S.W.3d at 879. a hearing, the trial court found that the expert report of

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[4] [5] [6] An expert report need not marshal all the opinion that had Dr. Taylor examined or cultured plaintiff’s proof. Wright, 79 S.W.3d at 52. However, it Fossett’s surgical wound, he might have properly must do more than merely state the expert’s conclusions diagnosed MRSA and begun treatment with appropriate about the standard of care, breach, and causation; it must antibiotic therapy, thereby avoiding subsequent surgeries, explain the basis of the expert’s statements and link his pain, and permanent scarring. conclusions to the facts. Id. The report must contain sufficiently specific information to demonstrate causation Dr. Levine’s supplemental report incorporated his original beyond conjecture. See, Farishta v. Tenet Healthsystem report. Therefore, in this analysis we collectively refer to Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort the original and supplemental reports as Dr. Levine’s Worth 2007, no pet.). The report must not be conclusory “report.” Dr. Levine’s report emphasized the significance in its explanation of causation; it must explain the basis of of the 24 to 48 hour period following Fossett’s office its statements sufficiently to link its conclusions to the evaluation by Dr. Taylor: facts. Wright, 79 S.W.3d at 52; Quinones v. Pin, 298 S.W.3d 806, 810 (Tex.App.-Dallas 2009, no pet.); see Because of the possibility of worsening infection also, Arkoma Basin Exploration Co. v. FMF Assocs. resulting in significant morbidity and mortality, 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008) [women with post-operative surgical incision] require (quoting BLACK’S LAW DICTIONARY 308 (8th ed. both careful and frequent assessment of their surgical 2004)) (defining conclusory as “[e]xpressing a factual wounds every 24 to 48 hours by qualified personnel inference without stating the underlying facts on which such as their physician, by wound management the inference is based”). Thus, courts have reasoned that personnel, or by home health nursing. an expert report that describes causation in terms of mere possibilities does not accomplish the purpose of providing Antibiotics for minor infections may be given by “a basis for the trial court to conclude that the claims have mouth; provided the patient is seen within 24 to 48 merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298 hours to assess that the infection is not getting worse. S.W.3d at 815–16. Dr. Taylor failed to either admit LaToya Fossett to the [7] In determining whether a report complies with the hospital or to re-evaluate her within 24 to 48 hours [of requirements of section 74.351(r)(6), the court may not Fossett’s office evaluation by Dr. Taylor]. look beyond the report itself, because all information The standard of care for evaluation and treatment of a relevant to the inquiry should be contained within the post-operative surgical wound infection require[s] ... document’s four corners. Wright, 79 S.W.3d at 52; Nexion either admitting the patient to a hospital or arranging Health at Terrell Manor, 294 S.W.3d at 791. A trial court for close outpatient follow-up and re-evaluation within must grant a motion to dismiss a plaintiff’s claims for 24 to 48 hours.... failure to file an adequate expert report only if it appears to the court, after hearing, that the report does not According to Dr. Levine’s report, Fossett was represent an objective good-faith effort to comply with hospitalized “within 48 hours” of her post-operative visit the statutory definition of an expert report. TEX. CIV. in Dr. Taylor’s office. Fossett’s arrival at Baylor Hospital PRAC. & REM.CODE ANN. § 74.351(l ); see also, occurred within the time frame Dr. Levine determined a Palacios, 46 S.W.3d at 878. re-evaluation to be appropriate and consistent with the applicable standard of care. Had Dr. Taylor scheduled Fossett for re-evaluation 48 hours after her post-operative office visit, consistent with the standard of care Analysis articulated by Dr. Levine, the progression of Fossett’s infection and wound dehiscence presumably would have [8] Dr. Levine opined in his original report2 that Dr. Taylor been no more advanced or severe than the condition breached the applicable *576 standard of care by failing actually treated at Baylor Hospital following Fossett’s to order re-examination of Fossett within 24 to 48 hours arrival at the hospital within that same 48–hour period. of her post-operative office visit, causing Fossett to suffer (1) at least one surgical wound exploration that might not Dr. Levine did not assert in his report that had Fossett have been necessary, along with resulting scarring and been re-evaluated by Dr. Taylor within 48 hours of her continued pain and discomfort and (2) hospitalization and post-operative office visit, she would have avoided recovery that was more lengthy “than should have been hospitalization and surgical treatment. Rather, Dr. Levine necessary had she been admitted [to the hospital] 48 hours opined that the duration of Fossett’s hospitalization and sooner.” Dr. Levine’s supplemental report added the recovery would not have been longer than it “should have been.” Dr. Levine provided no facts in his report © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Taylor v. Fossett, 320 S.W.3d 570 (2010)

concerning the expected duration of Fossett’s complications or surgical interventions. Dr. Levine hospitalization and recovery in the absence of the alleged explained neither the impact of the alleged 48–hour delay negligence of Dr. Taylor. Accordingly, Dr. Levine’s in re-evaluation of Fossett on the nature and severity of report presented no factual basis for a conclusion that Dr. the underlying infection nor in what manner the infection Taylor’s alleged negligence resulted in a period of developed or changed in that period of time necessitating hospitalization and recovery that was longer than it would surgery that otherwise would not have been required. Dr. have been in the absence of such alleged negligence. Levine’s report left the trial court to infer that the alleged delay in diagnosis and treatment proximately caused the *577 [9] Dr. Levine’s report claimed that as a result of Dr. additional surgery, pain and scarring without actually Taylor’s failure to meet the applicable standard of care, providing a factual basis for the trial court to so infer. Cf. Fossett required at least one surgical wound exploration Mosely v. Mundine, 249 S.W.3d 775, 780 (Tex.App.- that might not have been necessary, sustained a larger scar Dallas 2008, no pet.) (comparative description of nodule from additional surgery and suffered continued pain and and growth of mass after two-year delay in diagnosis discomfort. He asserted that if Dr. Taylor had provided factual basis for conclusion that failure to “appropriately evaluated and treated Fossett in a timely identify nodule led to invasive and aggressive treatment fashion according to the standard of care, she might have claimant underwent). been admitted to the hospital earlier and required only one, if any, surgical wound explorations (sic). She would Dr. Levine’s report failed to articulate a causal connection most likely not have required two surgeries.” (Emphasis between Dr. Taylor’s care of Fossett and the injuries that added.) Again, Dr. Levine’s standard of care did not call allegedly resulted. Dr. Levine’s statements concerning for wound re-evaluation until up to 48 hours from the causation are conclusory, suggest only the possibility of time of Fossett’s post-operative office visit with Dr. causation, and are unsupported by a factual basis within Taylor. Within 48 hours of Fossett’s office visit with Dr. the four corners of the report. Considering the report and Taylor, she was being treated at Baylor Hospital. applicable law, we conclude the report constitutes a Accordingly, Dr. Levine’s report presented no factual factually and legally insufficient basis for the trial court to basis for a conclusion that Dr. Taylor’s alleged negligence determine whether Fossett’s claims have merit. See *578 resulted in surgical procedures, scarring, and pain that Leland, 257 S.W.3d at 206–07. We conclude the trial would not have occurred in the absence of such alleged court abused its discretion in denying Dr. Taylor’s motion negligence. Moreover, Dr. Levine’s report suggested only to dismiss based on an inadequate expert report. that in the absence of the alleged negligence, Fossett [10] might have been admitted to the hospital earlier and Dr. Taylor asserts the trial court abused its discretion required only one, if any, surgical wound exploration. A in failing to award him attorney’s fees and costs. Section description of only a possibility of causation is not 74.351(b) requires that if an expert report has not been sufficient to satisfy requirements concerning the served within the statutorily required period of time, upon necessary content of an expert report. See Wright, 79 the motion of the affected physician or health care S.W.3d at 53. provider, the trial court shall enter an order awarding reasonable attorney’s fees and costs and dismiss the claim Dr. Levine’s report claimed that had Dr. Taylor examined with prejudice. TEX. CIV. PRAC. & REM.CODE ANN. or cultured Fossett’s surgical wound, he might have § 74.351(b); see also, Hernandez v. Ebrom, 289 S.W.3d properly diagnosed MRSA and begun treatment with 316, 318 (Tex.2009) ( “If a timely and sufficient report is appropriate antibiotic therapy, thereby avoiding not served, the trial court must award the provider its subsequent surgeries, pain, and permanent scarring. This attorney’s fees and costs and dismiss the case with attempt to establish causation also suffers from the prejudice.”). Having concluded that the trial court should infirmity that it presents only a possibility of causation. have granted Dr. Taylor’s motion to dismiss as to See id. Dr. Levine’s report presented no factual basis for a Fossett’s claims, under section 74.351(b) of the civil conclusion that had Dr. Taylor examined or cultured practice and remedies code, the trial court erred in Fossett’s surgical wound, properly diagnosed MRSA, and denying Dr. Taylor’s request for reasonable attorney’s begun treatment with appropriate antibiotic therapy, the fees and costs of court. Accordingly, we sustain Dr. subsequent surgical procedures, pain, and permanent Taylor’s assertion of entitlement to his reasonable scarring would have been avoided. attorney’s fees and costs under section 74.351(b).

Dr. Levine’s report omitted any factual explanation of how any act or omission by Dr. Taylor in delaying diagnosis and treatment of Fossett’s condition for no more than 48 hours proximately caused additional Conclusion

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We reverse the trial court’s order denying Dr. Taylor’s of a final order dismissing Fossett’s claims against Dr. motion to dismiss. We remand this case to the trial court Taylor with prejudice. for the limited purposes of determining and awarding Dr. Taylor reasonable attorney’s fees and costs and for entry

Footnotes 1 Dr. Levine expressly incorporated the opinions he expressed in his original expert report in his supplemental expert report. On appeal, Fossett contends that “taken together,” Dr. Levine’s original and supplemental reports comply with the statutory requirements of section 74.351. Reports may be considered together in determining whether a claimant provided a report meeting the statutory requirements. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(i); see also, Packard v. Guerra, 252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (“If a plaintiff can rely on more than one report to satisfy the standard of care, breach, and causation, we see no violation of section 74.351(i) just because a plaintiff attempted to cure an insufficient report with supplemental reports and refiled expert reports some of which initially were found to be insufficient.”). We disagree with Fossett’s argument on appeal that Dr. Taylor is precluded from raising objections to Dr. Levine’s initial report because Dr. Taylor did not seek relief from this Court at the time of the trial court’s order regarding that report. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(9) (Vernon 2008) (no appeal may be taken from trial court’s order granting extension under section 74.351(c)); see also, Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007) (in cases where report that implicated health care provider’s conduct was served and trial court granted extension under section 74.351(c), appellate courts are without jurisdiction to reach merits of motion to dismiss). 2 Dr. Levine’s original report contains numerous purported breaches of the standard of care by Dr. Taylor. Here, the analysis is dedicated to Dr. Levine’s opinions concerning alleged breaches of the standard of care that he asserts caused injury or damage.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)

388 S.W.3d 314 Court of Appeals of Texas, Texarkana. OPINION TEXARKANA NURSING & HEALTHCARE Opinion by Justice CARTER. CENTER, LLC, Appellant v. Susan LYLE, Independent Guardian of Betty Ruth Vest, Appellee. I. Background Betty Ruth Vest was a resident of Texarkana Nursing & No. 06–12–00067–CV. | Submitted: Nov. 20, 2012. Healthcare Center, L.L.C. (Texarkana Nursing) from | Decided: Dec. 14, 2012. 2003 until September 2011, when she passed *316 away.1 From the time of her admission, Vest was dependent on the nursing home staff for all of her care. It is alleged that Synopsis on July 31, 2009, while under the care of the Texarkana Background: Resident’s daughter brought action against Nursing staff and while receiving hospice care, Vest was nursing home, alleging negligent hiring, supervision, and assaulted by Mary Bean, an L.V.N. employed by failure to provide a safe environment, as well as vicarious Texarkana Nursing. The assault allegedly left scratches on liability for assault of resident by home’s employee. The Vest’s forehead, cuts on her left leg, knots on the sides of 202nd Judicial District Court, Bowie County, Leon F. her head, and caused bruising and swelling of her left eye. Pesek Jr., J., trial court denied nursing home’s motion to Vest recovered from the assault.2 Bean was arrested and dismiss. Nursing home appealed. charged with assault.

In July 2011, Susan Lyle, Vest’s daughter and Holdings: The Court of Appeals, Carter, J., held that: independent guardian, sued Texarkana Nursing3 alleging Vest was assaulted by Bean in July 2009 and was injured [1] expert report provided by daughter was deficient with as a result. Lyle pleads that the claims “by Plaintiff respect to her direct liability claim; against Defendants fall within the scope of Chapter 74 of the Texas Civil Practice and Remedies Code.” This [2] remand was required to allow trial court to consider assertion is incorporated into each theory of liability whether to grant extension to allow expert to cure the thereafter set forth in the petition. Lyle claims Texarkana deficiency; Nursing is vicariously liable for the alleged negligence of its employees. Lyle further alleges Texarkana Nursing [3] expert report was also deficient with respect to was directly responsible for the assault due to negligent daughter’s vicarious liability claims; and supervision, negligent hiring, failure to hire and provide sufficient staff, and failure to allocate sufficient financial [4] the deficiency with respect to the vicarious liability resources to the facility. The petition also alleges a direct claims was not curable. negligence claim against Texarkana Nursing based on the failure to provide a safe environment for its residents.

Remanded. Lyle provided an expert report from Milton D. Shaw, M.D., C.M.D.4 In response, Texarkana Nursing filed a motion to dismiss for failure to provide an adequate Attorneys and Law Firms expert report in accordance with Section 74.351(a) and (b) of the Texas Civil Practice and Remedies Code. TEX. *315 David W. Frost, Kent, Anderson & Bush, PC, Tyler, CIV. PRAC. & REM.CODE ANN. § 74.351(a), (b) (West TX, for appellant. 2011). The trial court denied the motion to dismiss. On appeal of this interlocutory order, Texarkana Nursing J.T. Borah, Dawn W. Smith, Curtis E. Clinesmith, The alleges that (1) the trial court erred in denying its motion Clinesmith Firm, Dallas, TX, for appellee. to dismiss Lyle’s direct liability claims, and (2) the trial court erred in denying its motion to dismiss Lyle’s Before MORRISS, C.J., CARTER and MOSELEY, JJ. vicarious liability claims.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)

II. Applicable Law and Standard of Review [1] [2] [3] Chapter 74 of the Texas Civil Practice and III. Analysis Remedies Code requires a health care liability claimant to serve on each party one or more expert reports, together A. Shaw’s Report is Deficient, but Not Silent, with with a curriculum vitae of each expert, no later than 120 Respect to Direct Liability Claims days after the original petition is filed. TEX. CIV. PRAC. Texarkana Nursing argues that Shaw’s report is silent & REM.CODE ANN. § 74.351(a). An expert report is with respect to the pled claims of direct liability. Texarkana Nursing characterizes the categories of direct a written report by an expert that negligence listed in the petition as negligence in hiring, provides a fair summary of the staffing levels, supervision of personnel, provision of expert’s opinions as of the date of financial resources, and failing to comply with the Code the report regarding applicable of Federal Regulations.5 standards of care, the manner in which the care rendered by the Shaw’s report states that Vest “was assaulted by Mary physician or health care provider Ann Bean, an L.V.N. at the nursing facility, resulting in failed to meet the standards, and injuries to Mrs. Vest, including a 1 inch scratch to the the *317 causal relationship forehead, bilateral contusions with swelling to the between that failure and the injury, forehead, left periorbital ecchymosis, *318 and contusion harm, or damages claimed. with ecchymosis to the left lower leg.”6

TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6) The report includes one paragraph addressing the standard (West 2011). A motion to dismiss is properly granted if it of care, as follows: appears that the report does not represent a good-faith effort to comply with subsection (r)(6) or is not The standard of care for a long sufficiently specific “to provide a basis for the trial court term care facility and its staff to conclude that the claims have merit.” Am. Transitional requires that the facility in question Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 provide that level of care and (Tex.2001); see TEX. CIV. PRAC. & REM.CODE ANN. treatment that a reasonable, § 74.351(r)(6). A report that merely states the expert’s prudent, similar facility would conclusions regarding the standard of care, breach, and provide under the same or similar causation is deficient. See Palacios, 46 S.W.3d at 879. circumstances. The facility must “[T]he expert must explain the basis of his statements to provide the necessary care and link his conclusions to the facts.” Bowie Mem’l Hosp. v. services to attain or maintain the Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam). A highest practicable physical, motion challenging the adequacy of an expert report shall mental, and psychosocial wellbeing be granted if the report “does not represent an objective possible. To do so also requires that good faith effort to comply” with the statutory definition the nursing facility provide a safe of an expert report. TEX. CIV. PRAC. & REM.CODE environment for its residents, ANN. § 74.351(l ) (West 2011). A “good faith effort” is insofar as it is possible. one that (1) provides information sufficient to inform the defendant of the specific conduct called into question and Shaw further opines: (2) enables the trial court to conclude the claims have merit. Wright, 79 S.W.3d at 52. In the case of Ms. Vest, Texarkana Nursing and Healthcare Center [4] [5] We review a trial court’s ruling on a motion to clearly did not provide a safe and dismiss for an abuse of discretion. Id.; Goforth v. secure environment for its Bradshaw, 296 S.W.3d 849, 851 (Tex.App.-Texarkana residents, allowing the documented 2009, no pet.). A trial court abuses its discretion when it assault of Ms. Vest by one of its acts arbitrarily or unreasonably or without reference to own employees. In this regard, any guiding rules or principles. Walker v. Gutierrez, 111 Texarkana Nursing and Healthcare S.W.3d 56, 62 (Tex.2003). A trial court has no discretion, Center breached its responsibility however, in correctly analyzing and applying the law. to Ms. Vest and her family, Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). resulting in injury to the resident.

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Shaw concludes that “Texarkana Nursing and Healthcare Center failed to provide a safe environment for Ms. Vest, Conversely, Lyle contends that the report meets the resulting in her assault and injury at the hands of an criteria set out in Chapter 74. According to Lyle, the employee of the facility.” report sets forth the standard of care, requiring the facility to provide the level of care and services necessary for Vest to maintain and attain the highest level of well-being possible, thus necessitating the provision of an environment safe for residents. Lyle defends the breach (1) Standard of Care and Breach and causation sections of the report in reliance on UHS of Timberlawn, Inc. v. S.B. ex rel. A.B., 281 S.W.3d 207 Even though our analysis is confined to the four corners (Tex.App.-Dallas 2009, pet. denied). In that case, a of the report, the report must be read in conjunction with thirteen-year-old patient at Timberlawn’s psychiatric the pleadings to determine if it provides a basis for Lyle’s treatment facility was placed in a ward with male patients, claims. See Palacios, 46 S.W.3d at 878. The report states where one of them allegedly raped her. The patient that the applicable standard of care requires Texarkana claimed her injuries were proximately caused by the Nursing to “provide the necessary care and services to negligence of Timberlawn’s employees and submitted an attain or maintain the highest practicable physical, mental, expert report in support of her claims. Timberlawn and psychosocial wellbeing possible.” This standard claimed the report was inadequate and conclusory on the includes, insofar as it is possible, the duty to “provide a issue of causation. This complaint was based on the safe environment for ... residents.” Shaw opines that premise that the expert did not opine that the patient was Texarkana Nursing breached the standard of care by actually raped, and, thus, could not identify the alleged allowing the “documented assault on Ms. Vest by one of causal relationship between Timberlawn’s alleged its own employees.” The resulting injuries are listed in the negligence and the patient’s injury. In rejecting this report. premise, the court distinguished health care liability claims in which “the ‘injury, harm, or damages claimed’ Texarkana Nursing initially takes issue with Shaw’s flow from the existence of a medical condition that itself opinion addressing the need to provide Vest with a “safe resulted from the breach of the applicable standard of environment” because it is not a pled claim. Even though care.” Id. at 212. In such a case, not pled in this precise language, the petition alleges a breach of the nondelegable duty to assist Vest in attaining [I]dentifying the causal relationship between the and maintaining “the highest practicable level of physical, alleged breach of the standard of care and the resulting mental, and psychosocial well being.” As Shaw opines, harm involves not only an explanation as to how the the provision of a safe environment is required in order to standard of care was breached, but also how the breach fulfill this duty. See Harris Methodist Fort Worth v. Ollie, gave rise to the new, deleterious medical condition. 342 S.W.3d 525, 527 (Tex.2011) (per curiam) (“services a Similarly, other healthcare liability claims may allege [health care provider] provides its patients necessarily that a breach of the applicable standard of care include those services required to meet the patients’ exacerbated a pre-existing medical condition, or fundamental needs such as ... safety”). hindered or prevented the effective treatment of such a condition. Identifying the “breach/injury” causal Texarkana Nursing further complains of the inadequacy relationship in these cases may well require an expert of the stated standard of care, because it does not indicate to opine as to the existence, extent, and prognosis of the what Texarkana Nursing should have done differently, pre-existing medical condition, as well as how the citing Russ v. Titus Hospital District, 128 S.W.3d 332, alleged breach of the standard of care aggravated such 341–42 (Tex.App.-Texarkana 2004, pet. denied) a condition, impeded or prohibited its treatment, and (“[w]hether a defendant breached his or her duty to a otherwise affected the patient’s prognosis. patient cannot be determined absent specific information about what the defendant should have done differently”) However, S.B.’s claim is different. S.B. alleges that, as (quoting Palacios, 46 S.W.3d at 880).7 In other words, a result of Timberlawn’s failure to meet the applicable one must be able to determine from the report what was standards of care relevant to its treatment of her, she required by the standard of care. This requires “specific was raped. Rape is not a medical condition. It is an information about what the defendant should have done assault. Moreover, rape may—or may not—be differently.” Palacios, 46 S.W.3d at 880. Here, we have a accompanied by medically ascertainable evidence of generic statement that the nursing facility must provide a physical trauma, or even physical evidence that it safe environment. Texarkana Nursing maintains this is occurred. insufficient.

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*320 Id. The court, therefore, declined to hold that the moving her from the bed to a chair in her room, they causation element of the report was required to include an danced with her. Sanchez alleged that during these opinion that the patient was in fact raped. Id. physical contacts, the nurse and nurse’s assistant made sexual overtures and comments and that the improper This case is different from Timberlawn inasmuch as conduct continued until she was discharged from the Texarkana Nursing is not claiming that the report fails to hospital a few days later. Id. at 872. state that Vest was, in fact, assaulted. There is no dispute that Vest was assaulted; the assault was photographically *321 Sanchez sued the hospital for negligent hiring, documented.8 Instead, Texarkana Nursing claims the mere supervision, training, and retention of its employees and statement that it failed to provide a safe environment is an vicarious liability for the conduct of its employees. insufficient statement of the breach of the standard of Relevant to this case, Sanchez’s expert report was care, because it does not indicate what should have been attacked on the basis that it did not adequately set forth done differently. In contrast, the Timberlawn report stated the standard of care and/or safety and breach because the that housing the patient report was alleged to be conclusive and speculative. Id. at 877. Spohn further argued that the report failed to provide specific information about what it should have done in the male unit exposed [the patient] to harm which differently. The report stated, in relevant part, that the resulted in her self reported rape. Had [S.B.] been “standard of care requires that the hospital and its nursing housed in a safe and appropriate manner, given her staff provide adequate supervision to their certified propensity for sexual victimization, she would not have nursing assistants and licensed nursing personnel.” The been placed in a male unit. By being housed in a male report further stated that the “standard of care requires unit it was foreseeable that [S.B.] would be exposed to that the hospital and its nursing staff protect their patients and was at higher risk for the exact self reported harm from sexual harassment and abuse.” Id. which she suffered.... Id. at 214. The report made clear the specific conduct The court concluded that the report identified the care that called into question and provided a sufficient basis for was expected, but not rendered under the applicable the trial court to conclude that the claim had merit. Id. standard of care, because it states the hospital “[f]ailed to at 215. provide adequate supervision to the [certified nurse’s In this case, however, the report indicates that Texarkana assistant] and the [registered nurse],” “[f]ailed to protect Nursing failed to provide “a safe and secure environment Ms. Sanchez from sexual harassment and sexual abuse,” for its residents, allowing the documented assault of Ms. and “[f]ailed to provide safety to Ms. Sanchez in her Vest by one if its own employees.” In other words, the immediate post operative [sic] when the [certified nurse’s assault itself is the breach of the standard of care, which assistant] lifted Ms. Sanchez up and began dancing with requires the provision of a safe and secure environment her.” Id. The court found that this report put the hospital for nursing home residents. This statement does not, on notice of the specific, complained-of conduct. Id. however, advise Texarkana Nursing of what should have been done in order to prevent its employee from In this case, unlike Sanchez, the report simply states that assaulting Vest. Texarkana Nursing failed to provide a safe and secure environment for Vest. In Sanchez, however, the report The question boils down to one of how much detail is stated that the hospital was required to provide adequate needed in order for an expert report to withstand Chapter supervision of its certified nursing assistants and licensed 74 scrutiny when the harm alleged arises from assaultive nursing personnel, to protect its patient from sexual conduct. Lyle points to Christus Spohn Health System harassment and abuse, and to keep the patient safe. Corp. v. Sanchez, 299 S.W.3d 868 (Tex.App.-Corpus Granted, this is not much more detail than we have in this Christi 2009, pet. denied), in support of her contention case, but Sanchez may be close to the line of what is that the report is sufficient. Sanchez involved an action permissible. against a hospital and hospital employees in their individual capacities for assault and intentional infliction For example, Baylor All Saints Medical Center v. Martin, of emotional distress. Sanchez was an I.C.U. patient when 340 S.W.3d 529 (Tex.App.-Fort Worth 2011, no pet.), a registered nurse and a certified nurse’s assistant involved an alleged sexual assault on a patient in her allegedly entered her room and made unwanted sexual hospital room.9 The hospital objected to the sufficiency of advances toward her. Sanchez alleged that one of the men the patient’s expert report. The report in question undressed her and exposed her body for the other to see. articulates the standard of care as follows: She further claimed that they turned her over using their hands instead of a turning pad and, while they were

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A hospital such as Baylor All Saints Medical [C]enter report further indicated that (the physician) was required is expected to adhere to specific standards of care in “to insure her patients are being treated in a safe and regard to all of its patients. A bedrock principal [sic] in secure environment by being aware of the environment, providing care to its patients is the understanding that patient population, and safety measures taken by the all of a hospital’s patients by nature of their disease or hospital.” Id. at 749. In concluding the report was injury are potentially vulnerable and necessarily need conclusory, the court noted that it did not provide to receive treatment in a safe and secure environment. information about how the physician was to insure that The Joint Commission on Accreditation of Health Care the hospital was adequately staffed and that staff members Organizations (JCAHO) has established in its Hospital were appropriately trained or what measures were Standards that all healthcare organizations must have in available to insure the patient’s safety. Further, the report place policies which safeguard patients from assault by did not indicate what kind of supervision by the hospital hospital staff and by strangers that enter the hospital. was sufficient to provide a secure environment for the The JCAHO requires that hospitals adequately patient. Id. at 750. implement these standards, and monitor this [6] implementation. The JCAHO patient security and In this case, the only direct negligence claim addressed safety expectations would require at a minimum that in Shaw’s report is that of failing to provide Vest with a hospitals should employ a sufficient number of security safe and secure environment. Because the report fails to personal [sic] to insure that no unauthorized persons articulate what Texarkana Nursing should have done enter patients [’] rooms and physically assault their differently to prevent the assault, it is deficient with patients. Additionally, the JCAHO standards would respect to articulation of the standard of care and its expect that all hospital staff should be trained to breach. identify *322 persons that are not authorized to enter patients[’] rooms and should monitor and prevent unauthorized persons from having access to patients receiving treatment at the hospital. Id. at 533–34. The court determined this to be an (2) Causation insufficient statement of the standard of care. For example, the report stated that there must be policies in Texarkana Nursing further contends that Shaw’s report is place to safeguard patients from assault, including deficient in that it *323 fails to set forth the causal employing a sufficient number of security personnel. relationship between Texarkana Nursing’s alleged The court wrote that this statement failed to indicate deviations from the standard of care and Vest’s injuries. what specific policies and safeguards should have been The report does, however, indicate that Texarkana in place. Further, the “ ‘policies in place to safeguard Nursing breached its responsibility to Vest in allowing the patients’ are not identified.” Id. at 534. The number of documented assault of Vest by one of its own employees, security personnel needed and the training the staff resulting in injury to Vest. The resulting injuries are should have received is not described. Id. This report described. Lyle maintains that this is a sufficient failed in light of the required standard, i.e., “what an statement of causation under Timberlawn. After all, ordinary prudent hospital would do under the same or assault is not a medical condition. Conversely, if the similar circumstances,” and “even a fair summary must report is not sufficiently detailed in its statement of the set out what care was expected.” Id. (citing Palacios, standard of care and breach, and, thus, fails to advise 46 S.W.3d at 880).10 Texarkana Nursing of what it should have done Kingwood Pines Hospital, LLC v. Gomez, 362 S.W.3d differently to provide a safe and secure environment for 740 (Tex.App.-Houston [14th Dist.] 2011, no pet.), Vest, then it logically follows that causation should be further illustrates the need for detail when an expert offers described in terms of the specific shortcomings that opinions regarding patient safety. In that case, a patient of created a situation in which assault could occur. Kingwood Pines Hospital was sexually assaulted by another patient. Gomez offered an expert report indicating a failure “to ensure that there were appropriately trained B. Deficiencies Regarding Direct Liability Are and adequate staffing and millieu structure such that a Curable young girl ... would not be sexually molested.” The report [7] Texarkana Nursing contends that because the report stated that the standard of care was breached when the does not address the pleaded cause of action, it does not physician failed to insure her patient’s safety using “any constitute a good-faith effort to comply with the statutory of the number of measures available,” by failing to requirements and should, therefore, be dismissed in “provide additional supervision” and not affording the reliance on Windsor v. Maxwell, 121 S.W.3d 42, 51 patient “the most basic supervision.” Id. at 750. The

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(Tex.App.-Fort Worth 2003, pet. denied) (to inform against Texarkana Nursing to satisfy the expert report defendant of specific conduct plaintiff has called into requirement for the vicarious liability claims. See RGV question, report must support cause of action alleged by Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 plaintiff in its pleadings). Here, as previously discussed, (Tex.App.-Corpus Christi 2009, pet. denied). the report does address the claim that Texarkana Nursing had a duty to assist Vest in attaining and maintaining “the Lyle pled that the staff of Texarkana Nursing did not highest practicable level of physical, mental, and provide Vest with timely and accurate care assessments psychosocial well being.” Implicit in this duty is the and necessary supervision; failed to use reasonable care in provision of a safe and secure environment. See Harris treating residents with the degree of skill and learning Methodist Fort Worth, 342 S.W.3d at 527. The report, ordinarily possessed and used by nursing home facilities albeit in a conclusory manner, addresses this claim. in the same or similar locality; failed to assist residents (including Vest) in attaining and maintaining the highest Because the report is deficient with respect to Lyle’s practicable level of physical, mental, and psychosocial direct liability claim regarding the failure to provide a well-being; failed to meet the applicable standards of safe and secure environment for Vest, the trial court care; violated their duty of care to Vest through should be permitted the opportunity to consider whether mistreatment, abuse and neglect; and violated Section to grant a thirty-day extension to cure the deficiencies. 22.04 of the Texas Penal Code (injury to elderly See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c) individual). Shaw’s report is silent with respect to each of (West 2011);11 Leland v. Brandal, 257 S.W.3d 204, 207 these claims, with the exception of assaultive conduct and (Tex.2008); Longino v. Crosswhite, 183 S.W.3d 913, 918 mistreatment. The report identifies conduct by Texarkana n. 2 (Tex.App.-Texarkana 2006, no pet.); see also Nursing’s employee—the alleged assault on Vest. The Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.2011) report fails, however, to identify the standard of care, (trial court should err on side of granting additional time breach of the standard of care, or causation. and must grant it if deficiencies are curable).12 Because at [9] least three of Lyle’s direct liability claims necessarily The only statement regarding the standard of care in the relate to the provision of a safe environment, they are not entire report regarding the staff is: “The standard of care completely unaddressed, and we decline to find that such for a long term care facility and its staff requires that the claims should be dismissed.13 See *324 Querry v. facility in question provide that level of care and Sanders, No. 06–08–00099–CV, 2009 WL 1097904, at *7 treatment that a reasonable, prudent, similar facility (Tex.App.-Texarkana Apr. 24, 2009, no pet.) (mem. op.) would provide under the same or similar circumstances.” (report which wholly failed to address alleged negligence (Emphasis added.) The report says nothing regarding the in failing to properly identify and isolate main bile duct breach of the standard of care by the staff or how that before initiating main procedure not curable deficiency). breach caused Vest’s injuries. While the underlying nature of the vicarious liability claim rests in the intentional acts of Bean, which appear to be unrelated to the rendition of health care, Lyle’s pleading alleges her C. Shaw’s Report Fails to Address Vicarious Liability claims fall within the purview of Chapter 74.14 We must, Claims therefore, analyze *326 them as such. See Giron v. Baylor [8] Lyle’s petition alleges that Texarkana Nursing has Univ. Med. Ctr., No. 05–09–00825–CV, 2011 WL “vicarious liability for the acts and omissions of all 149981, at *2 (Tex.App.-Dallas Jan. 19, 2011, pet. persons or entities under their control, either directly or denied) (mem. op.) (when Giron chose to proceed under indirectly, including employees, agents, consultants, and Chapter 74 and plead her cause of action as health care independent contractors, whether in-house or outside liability claim, she bound herself to statutory entities, individuals, agencies, or pools causing or requirements). contributing to the injuries of BETTY RUTH VEST.” “When a party’s alleged health care liability is purely [10] The lone statement regarding the standard of care vicarious, a report that adequately implicates the actions applicable to the staff of Texarkana Nursing fails to of that party’s agents or employees is sufficient.” Gardner specify what is required of a reasonable and prudent staff v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 under the same or similar circumstances. This statement is (Tex.2008) (per curiam). Thus, if the report identifies not a fair summary of Shaw’s opinions regarding the conduct by Texarkana Nursing’s employee, Texarkana standard of care for the Texarkana Nursing staff. The Nursing is implicated. As long as the report adequately mere recitation of a legal standard, in the absence of addresses the standard of care applicable to the employee, specific facts applicable to this case, is not a good-faith how the employee breached the standard of care, and that effort to articulate the standard of care. See Lira v. Cerna, the breach caused the plaintiff’s injury, it is sufficient as No. 08–01–00250–CV, 2002 WL 1767569, at *6

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(Tex.App.-El Paso Aug. 1, 2002, no pet.) (not designated for publication) (The statement that “[t]he standard of care requires that a physician provide that level of care which a reasonable prudent physician would provide in IV. Conclusion the same or similar circumstances” does not demonstrate Because the report is deficient with respect to Lyle’s good-faith effort to provide fair summary of expert’s direct liability claim regarding the failure to provide a opinions and does not identify standard of care.); see also safe and secure environment for Vest, we remand this Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977) claim to the trial court to consider whether to grant a (holding that legal standard for medical profession is thirty-day extension to cure these deficiencies. “reasonable and prudent” physician “under the same or similar circumstances”). Moreover, the report is silent Shaw’s report is silent with respect to the standard of regarding the breach of the standard of care and causation. care, breach, and causation regarding her vicarious Because the standard of care applicable to the staff is not liability claims. Because these deficiencies are not identified, and because breach and causation are not curable, Lyle’s vicarious liability claims are dismissed. addressed, these deficiencies are not curable. Lyle’s vicarious liability claims should, therefore, have been dismissed by the trial court.

Footnotes 1 Lyle died in September 2011, after the petition was filed in July 2011.

2 While Lyle does not claim Vest died as a result of the assault, the prayer for relief is phrased in terms of the “wrongful death beneficiaries of BETTY RUTH VEST.” 3 Ann Yeager Ellisor (the nursing home administrator) was also a named defendant in the lawsuit. The claim against Ellisor was nonsuited. 4 Shaw is board certified in internal medicine and is certified by the American Medical Directors Association as a medical director. Shaw is the medical director of the geriatrics and extended care program at the Veterans Administration (VA) Hospital in Kerrville and is assistant clinical professor of medicine at the University of Texas Medical School at San Antonio. Shaw is the medical director of two private community nursing homes in Kerrville, separate from his VA practice. 5 The allegations fall variously under the categories listed in the petition as “Negligence,” “Negligence Resulting in Health Care Liability Claims,” “Negligence Per Se,” and “Violation of Penal Code § 22.04.” Pled claims include: the failure to allocate sufficient financial resources to Texarkana Nursing for residents’ needs to be met, resulting in the mistreatment, abuse, and neglect of Vest; the failure to use reasonable care in treating residents with the degree of skill and learning ordinarily possessed and used by nursing home facilities in the same or similar locality; the failure to assist all residents, including Vest, in attaining and maintaining the highest practicable level of physical, mental, and psychosocial well-being; the failure to properly supervise nurses and aides; the failure to provide sufficient nurses and aides; the failure to ensure that Vest received timely and accurate care assessments and necessary supervision; various violations of the Code of Federal Regulations; and violation of Section 22.04 of the Texas Penal Code (injury to elderly individual). TEX. PENAL CODE ANN. § 22.04 (West Supp.2012). 6 Ecchymosis is “[t]he passage of blood from ruptured blood vessels into subcutaneous tissue, marked by a purple discoloration of the skin.” Ecchymosis Definition, TheFreeDictionary.com, http://www.thefreedictionary.com/ecchymosis (last visited Dec. 10, 2012). 7 Russ involved an allegedly deficient report regarding a hospital’s duty to keep a suicidal patient from injuring herself. In that case, the patient sustained injuries from a fall out of a hospital window. This Court held that the statement “that windows [must] either be secured with metal screens that only staff can open, or be locked” or, “[i]f the patient has access to the window, a special difficult to break glass or Plexiglass should be used” was sufficient to apprise the hospital of what it should have done differently in light of the fact that the hospital placed the patient in a fourth-floor room with unlocked windows. Russ, 128 S.W.3d at 342. 8 Shaw’s report indicates he reviewed the following records in conjunction with issuing his report: 1) Nursing Home Records from Texarkana Nursing and Healthcare Center 2) Affidavit from the Texas Board of Nursing 3) Offense Report by Officer Steven G. Womack 4) Pictures of Mrs. Vest taken by her daughter © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388 S.W.3d 314 (2012)

5) Arrest Report of Mary Elliott Bean. 9 The Martin opinion does not indicate whether the assault was committed by a hospital employee, another patient, or some other third party. 10 The court also addressed Martin’s claim that the report was all that could be done at the time in light of the fact that Section 74.351(s) only allows discovery of medical records and billing records, which do not contain the circumstances surrounding the assault and hence provide no discovery as to whether security standards were met. The court wrote that this was a misreading of the discovery allowed under Section 74.351(s). Because assaults in health care settings are covered by Section 74.351, said the court (Martin, 340 S.W.3d at 534 (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005))), logically, discovery of the hospital’s policies and procedures regarding the protection of patients from assault must be covered by Section 74.351(s). Martin, 340 S.W.3d at 534. 11 Section 74.351 of the Texas Civil Practice and Remedies Code states, “If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the Court may grant one 30–day extension to the claimant in order to cure the deficiency.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c). 12 Scoresby involved a letter report that failed to state the standard of care but implied that it was inconsistent with the physicians’ conduct. Even so, the report contained the opinion of an individual with expertise that the claim had merit and implicated the defendants’ conduct. This minimal standard is met here as well. The report is written by an individual with expertise, implicates the conduct of Texarkana Nursing, and indicates that the claim has merit. Scoresby, 346 S.W.3d at 557. 13 Lyle alleges that Texarkana Nursing was negligent in terms of hiring, staffing levels, supervision of personnel, provision of financial resources, and in failing to comply with the Code of Federal Regulations. 14 Recently, the Texas Supreme Court decided Loaisiga v. Cerda, 379 S.W.3d 248 (Tex.2012). Loaisiga was not decided until after the appellant’s brief was filed here and well after the hearing in the trial court. In Loaisiga, two female patients sued a medical doctor, the professional association bearing his name, and a clinic alleging the doctor assaulted them by groping their breasts while examining them for sinus and flu symptoms. Id. at 253. The patients served the doctor and professional association with reports from a physician who, based on the assumption that the allegations in the plaintiffs’ pleadings were true, opined that the doctor’s alleged actions did not fall within any appropriate standard of care. The defendants argued that the claims were health care liability claims and moved for dismissal on the basis that the reports were deficient. The trial court denied the motions. The court of appeals held that the claims were not health care liability claims and that expert reports were not required and affirmed the trial court’s order without considering the report’s adequacy. Id. at 254. The high court recognized a presumption: The breadth of the statute’s text essentially creates a presumption that a claim is an HCLC if it is against a physician or health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement. See [Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex.2010) ]. But the presumption is necessarily rebuttable. In some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the physical location of the conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both. Id. at 256. Following a discussion of the statute’s requirement that claimants in health care liability claims file expert reports, the high court wrote: [W]e fail to see how the Legislature could have intended the requirement of an expert report to apply under circumstances where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the rendition of “medical care, or health care, or safety or professional or administrative services directly related to health care” even though the conduct occurred in a health care context. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(13); see also TEX. GOV’T CODE ANN. § 311.021 (“In enacting a statute, it is presumed that ... a just and reasonable result is intended....”). Id. at 257. The court then listed three factors that must be reflected in the record in order for an assault claim against a medical or health care provider not to be considered a health care liability claim: [A] claim against a medical or health care provider for assault is not an HCLC if the record conclusively shows that (1) there is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact, (2) the alleged offensive contact was not pursuant to actual or implied consent by the plaintiff, and (3) the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting in which the act took place. Id. In determining whether a claim is subject to the Texas Medical Liability Act’s (TMLA) expert report requirements, the trial court is not limited to the four corners of the expert report; instead, the trial court should consider the entire record, including pleadings, motions and responses, and relevant evidence properly admitted. Id. at 258. In Loaisiga, the court noted a lack of

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information to give context to the physician’s actions during the examinations, such as medical records, reports, and other information regarding the plaintiffs’ symptoms and complaints to the physician. This lack of information prevented the plaintiffs from conclusively showing that “the only relationship between the alleged touching of their breasts and Dr. Loaisiga’s rendition of medical services was the physical location of the examination....” Id. at 259. The court went on to say that because we are clarifying the standard for whether claims are subject to the TMLA’s expert report requirements and the plaintiffs maintain that theirs are not, we conclude it is appropriate to remand the case to the trial court for further proceedings regarding that issue. See Low v. Henry, 221 S.W.3d 609, 621 (Tex.2007) (remanding “to allow the parties to present evidence responsive to our guidelines”). Id. at 260. In light of Loaisiga, this Court questioned whether to remand the case to the trial court for a determination of whether or not Lyle’s claim is, in fact, a health care liability claim. However, in Loaisiga, the plaintiffs maintained that their claims were not health care liability claims. Here, Lyle has represented to this Court that her claims are health care liability claims, and, in oral argument, Lyle’s counsel stated it was not her wish to remand the case to the trial court for a determination of whether her claims are subject to the TMLA’s expert report requirements.

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[6] aside from claims alleging negligent medical care or health care, a claim need not involve a patient-physician 371 S.W.3d 171 Supreme Court of Texas. relationship for it to be an HCLC.

TEXAS WEST OAKS HOSPITAL, LP and Texas Hospital Holdings, LLC, Petitioners, Judgment of Court of Appeals reversed; case remanded v. with instructions. Frederick WILLIAMS, Respondent. Lehrmann, J., filed a dissenting opinion, in which Medina No. 10–0603. | Argued Nov. 8, 2011. | Decided June and Willett, JJ., joined. 29, 2012. Attorneys and Law Firms Synopsis Background: Estate of psychiatric patient brought health *174 Ryan Lee Clement, Wesson H. Tribble, Tribble, care liability claim (HCLC) against hospital and Ross & Wagner, Houston, TX, for Texas West Oaks hospital’s employee who was involved in physical Hospital, LP. altercation with patient that resulted in patient’s death and injuries to employee. Employee brought cross-claim of Charles M. Hessel, Marks Balette & Giessel, P.C., Robert negligence against hospital, which was a nonsubscriber to Steven Kwok, William Wade Hoke, Robert Kwok & workers’ compensation scheme. The 234th District Court, Associates, Leah Rush Easterby, Houston, TX, for Harris County, Reese Rondon, J., denied hospital’s Frederick Williams. motion to dismiss employee’s cross-claim as an HCLC Opinion subject to expert-report requirements. Hospital brought interlocutory appeal. The Court of Appeals, 322 S.W.3d Justice WAINWRIGHT delivered the opinion of the 349, Leslie B. Yates, J., affirmed. Hospital filed petition Court, in which Chief Justice JEFFERSON, Justice for review. HECHT, Justice GREEN, Justice JOHNSON, and Justice GUZMAN joined.

Holdings: The Supreme Court, Wainwright, J., held that: At issue in this interlocutory appeal is whether the claims [1] of an employee against his employer, both of whom are employee was a “claimant” under the Texas Medical health care providers, alleging injuries arising out of Liability Act (TMLA); inadequate training, supervision, risk-mitigation, and [2] safety in a mental health facility, constitute health care negligence claim was based on alleged departures from liability claims (HCLCs) under the Texas Medical accepted standards of health care and of safety and was Liability Act (TMLA or Act). See TEX. CIV. PRAC. & therefore an HCLC; REM.CODE ch. 74 et seq. We conclude that the TMLA [3] does not require that the claimant be a patient of the if expert medical or health care testimony is necessary health care provider for his claims to fall under the Act, so to prove or refute the merits of claim against a physician long as the Act’s other requirements are met. We hold or health care provider, claim is an HCLC; that the employee here is properly characterized as a [4] “claimant” under the Act and his allegations against his to qualify as an HCLC, a claim that is based on nonsubscribing employer are health care and safety departures from accepted standards of safety need not be claims under the TMLA’s definition of HCLCs, requiring directly related to health care, abrogating St. David’s an expert report to maintain his lawsuit. We further hold Healthcare P’ship, L.P. v. Esparza, 315 S.W.3d 601; that the Act does not conflict with the Texas Workers’ Appell v. Muguerza, 329 S.W.3d 104; Compensation Act (TWCA). We therefore reverse the [5] judgment of the court of appeals. interpreting hospital employee’s action as an HCLC did not conflict with exclusive-remedy provisions of Texas Workers’ Compensation Act (TWCA), as hospital was a nonsubscriber to workers’ compensation insurance; and I. Background

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Texas West Oaks Hospital, LP and Texas Hospital tendencies that Mario Vidaurre Holdings, LLC operate Texas West Oaks Hospital (West possessed; (c) Failing to provide Oaks), a state-licensed, private mental health hospital adequate protocol to avoid and/or located in Houston, Texas. Frederick *175 Williams, a decrease the severity of altercations psychiatric technician and professional caregiver at West between its employees, such as Oaks, was injured on the job while supervising a patient, Williams, and patients; (d) Failing Mario Vidaurre. Vidaurre was admitted to West Oaks on to provide its employees, including June 11, 2007. Due to his history of paranoid Williams, with adequate emergency schizophrenia, including manic outbursts and violent notification devices to alert other behavior directed at family members and professional employees of altercations in which staff, Vidaurre was placed by his admitting physician on assistance is needed; (e) Failing to one-to-one observation, an elevated level of supervised warn Williams of the dangers that care in the psychiatric unit. Vidaurre was also put on “unit West Oaks knew or should have restriction,” meaning he could only be taken out of the known were associated with psychiatric unit by direct order of a physician. A few days working with patients such as Mr. after Vidaurre’s admission, while Williams was Vidaurre; and (f) Failing to provide supervising him, Vidaurre became agitated. To calm him, a safe workplace for its employees, Williams took Vidaurre to an outdoor enclosed smoking including Williams. area, in violation of the unit-restriction policy. The door to the enclosure locked behind them and the unsupervised West Oaks filed a motion to dismiss on the grounds that area contained no cameras, audio supervision, mirrors, or Williams’ claims constituted HCLCs under the TMLA other monitoring apparatus. Although Williams and that Williams had not served an expert report on West previously had taken Vidaurre to the smoking area Oaks, as required under the Act. See TEX. CIV. PRAC. & without incident, a physical altercation occurred on this REM.CODE § 74.001(a)(13) (defining health care occasion, resulting in Vidaurre’s death and injuries to liability claims), and § 74.351(a), (b) (requiring a trial Williams. court to dismiss a health care liability claim if an expert report is not served within 120 days of filing suit).1 Vidaurre’s estate sued West Oaks, and later Williams, Williams *176 responded that his claims sound in asserting HCLCs under the TMLA, codified in Chapter ordinary negligence rather than health care liability. 74 of the Texas Civil Practice and Remedies Code. TEX. Following a hearing, the trial court denied West Oaks’ CIV. PRAC. & REM.CODE §§ 74.001–74.507. Williams motion. West Oaks then filed this interlocutory appeal. later asserted cross claims of negligence against West See id. § 51.014(a)(9). Oaks pursuant to section 406.033 of the Texas Labor Code, a statutory provision governing employee common The court of appeals affirmed the trial court’s order. 322 law claims against employers not subscribed to workers’ S.W.3d 349, 354. The court analyzed Williams’ claims as compensation. See TEX. LAB.CODE § 406.033. West breaches of West Oaks’ duty of safety to its employee. Id. Oaks’ status as a nonsubscriber to workers’ compensation at 352. The court of appeals began its analysis from the is uncontroverted, and therefore, Williams’ claims against premise that the phrase “directly related to health care” in his employer are not barred by the Texas Workers’ section 74.001(a)(13) modifies not only “professional or Compensation Act. See id.; Port Elevator–Brownsville, administrative services,” but also the term “safety.” Id. It L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex.2012) concluded that a safety claim “must be directly related to (discussing the “exclusive remedy” doctrine). and inseparable from health care.” Id. It is not disputed here that Vidaurre’s claims against West Oaks are Williams alleged that West Oaks was negligent in: HCLCs, but Williams argues his claims against West Oaks are not. The court of appeals noted the related (a) Failing to properly train nature of the two parties’ cases but concluded, based in Williams to work at West Oaks’ part on our withdrawn opinion in Marks v. St. Luke’s premises, including warning him of Episcopal Hospital, 52 Tex.Sup.Ct.J. 1184, withdrawn the inherent dangers of working and superseded on rehearing, 319 S.W.3d 658 with patients with the conditions (Tex.2010), that Williams’ claims against West Oaks are and tendencies that Mario Vidaurre separable from health care and are not HCLCs. 322 possessed; (b) Failing to adequately S.W.3d at 353. Reasoning that the source of West Oaks’ supervise West Oaks’ employees, duty to Williams is the employer-employee relationship including Williams, while working and that the nature of Vidaurre’s relationship with West with patients with conditions and Oaks—patient to health care provider—is different from

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Williams’, the court of appeals concluded that the safety security breaches do not require expert medical testimony claims “flow from the employment relationship” between and are interchangeable with safety and security issues Williams and West Oaks and are not “directly related” to arising in non-medical settings such as corrections health care, as required by the statute. 322 S.W.3d at 352– facilities. See id. at 353 (opining that Williams’ safety and 53; TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). security claims involve issues also “aris[ing] in other West Oaks filed a petition for review in this Court. settings, such as jails and prisons”). In essence, Williams argues that the hospital is the mere situs of his claims, that his role as psychiatric technician overseeing a mental patient has no bearing on the character of his claims, and the fact that his claims arose in a mental health facility II. Discussion has little or no bearing on their character. [1] In seeking to distinguish ordinary negligence claims from HCLCs, the heart of these cases lies in the nature of the acts or omissions causing claimants’ injuries and A. Standard of Review whether the events are within the ambit of the legislated [2] [3] West Oaks’ and Williams’ arguments both implicate scope of the TMLA. Causes of action that are HCLCs the scope of claims reached by the TMLA. The nature of cannot be transmuted to avoid the strictures of the the claims the Legislature intended to include under the medical liability statute. Omaha Healthcare Ctr., LLC v. TMLA’s umbrella is a matter of statutory construction, a Johnson, 344 S.W.3d 392, 394 (Tex.2011); Diversicare legal question we review de novo. Marks, 319 S.W.3d at Gen. Ptr., Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005). 663 (interpreting the TMLIIA); see also MCI Sales & We recognize that the Legislature intended the Texas Serv., Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex.2010) Medical Liability Insurance Improvement Act (TMLIIA), (observing that questions of statutory construction are the TMLA’s predecessor, to be broad, and it broadened generally reviewed de novo). In construing a statute, our that scope further in 2003 with its repeal and amendments aim “ ‘is to determine and give effect to the Legislature’s resulting in the TMLA. Act of May 30, 1977, 65th Leg., intent,’ ” and we begin with the “ ‘plain and common R.S., ch. 817, § 1.02(6), 1977 Tex. Gen. Laws 2039, 2040 meaning of the statute’s words.’ ” McIntyre v. Ramirez, (former TEX.REV.CIV. STAT. art. 4590i, § 1.02(6)), 109 S.W.3d 741, 745 (Tex.2003) (quoting Tex. Dep’t of repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002); § 10.09, 2003 Tex. Gen. Laws 847, 884. After the 2003 State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 amendments, the breadth of HCLCs include causes of S.W.3d 322, 327 (Tex.2002) (further citations omitted)). action against physicians and health care providers for negligence in the provision of “medical care, or health care, or safety or professional or administrative services directly related to health care.” TEX. CIV. PRAC. & B. Relationship Between the Parties Under the Act REM.CODE § 74.001(a)(13). Williams argues that the lack of a patient-physician or patient-health-care-provider relationship between him and West Oaks argues that Williams’ claims, mirroring the West Oaks is a clear barrier to inclusion of his claims same facts as Vidaurre’s HCLCs, are HCLCs and within the Legislature’s definition of HCLCs. He asserts therefore implicate the requirement to serve an expert that such a relationship is necessary to HCLCs. At one report. Such a conclusion would mandate *177 a point in the past, Williams may have had a good dismissal because Williams did not serve a report on West argument. However, modifications over time to the Oaks. TEX. CIV. PRAC. & REM.CODE § 74.351(a), (b). TMLA and its predecessor indicate a different scope for West Oaks also urges that Williams’ status as a health HCLCs under current law. care provider at the hospital—as opposed to a patient— does not remove Williams from the requirement that he The TMLIIA was enacted in 1977 to relieve a medical pursue his allegations as HCLCs. On the other hand, “crisis [having] a material adverse effect on the delivery Williams characterizes his allegations as ordinary of medical and health care in Texas.” Act of May 30, negligence claims against a nonsubscriber to the workers’ 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Tex. Gen. compensation scheme. Williams contends that the court of Laws 2039, 2040 (repealed 2003). In 2003, facing another appeals was correct in concluding that his claims fall “medical malpractice insurance crisis” and a outside the HCLC definition and therefore an expert corresponding “inordinate[ ]” increase in the frequency of report is not required for his suit to proceed. See 322 HCLCs filed since 1995, the Legislature repealed the S.W.3d 349, 353–54. Williams also echoes the court of TMLIIA, amending parts of the previous article 4590i and appeals in asserting that West Oaks’ alleged safety and recodifying it as Chapter 74 of the Texas Civil Practice

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and Remedies Code. Act of June 2, 2003, 78th Leg., R.S., gravamen of the claim or claims against the health care ch. 204, § 10.11(a), 2003 Tex. Gen. Laws 847, 884. provider. See Diversicare, 185 S.W.3d at 854.

The 2003 legislation featured a significant modification to the existing law; it changed the HCLC definition: C. Williams’ Status as a “Claimant” Under the Act [5] *178 ‘Health care liability claim’ We next examine whether Williams is a “claimant” means a cause of action against a under the TMLA. Only claimants are obligated to serve health care provider or physician expert reports on physicians or health care providers. for treatment, lack of treatment, or TEX. CIV. PRAC. & REM.CODE § 74.351(a), (b). West other claimed departure from Oaks argues that the language and structure of the accepted standards of medical care, definition of “claimant” in the current statute, especially or health care, or safety or when compared to its predecessor, indicate that the term professional or administrative includes not only patients, but other persons as well. services directly related to health Williams asserts that he is not a “claimant” because his care, which proximately results in claims are not HCLCs, as they do not involve the exercise injury to or death of a claimant, of professional medical judgment. Williams also argues whether the claimant’s claim or that the Legislature’s substitution of “patient” with cause of action sounds in tort or “claimant” is meant only to include derivative claims by contract. the relatives and representatives of deceased patients, *179 not employees of health care provider defendants. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13)(emphases added). The Legislature replaced As observed above, a “claimant” is broadly defined as a the term “patient” with “claimant” in the definition of an “person,” including the estate of a person, bringing an HCLC.2 Compare TEX. CIV. PRAC. & REM.CODE § HCLC. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2). 74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, § A claimant is a person seeking damages for an HCLC. 1.03(a)(4) (repealed 2003). The Legislature also defined See id. § 74.001(a)(2), (13). As noted above, the TMLIIA, the new term in the Act: by contrast, featured an HCLC definition predicated on injury to a “patient.” TEX.REV.CIV. STAT. art. 4590i, § 1.03(a)(4) (repealed 2003). Neither “person” nor “patient” ‘Claimant’ means a person, including a decedent’s is a defined term in the TMLA and therefore possesses estate, seeking or who has sought recovery of damages such meaning as is consistent with the common law. in a health care liability claim. All persons claiming to TEX. CIV. PRAC. & REM.CODE § 74.001(b). have sustained damages as the result of the bodily injury or death of a single person are considered a Although he likely would not have been a “patient” under single claimant. the TMLIIA, Williams is a “claimant” and a “person” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2). under the textual change to the definition of HCLCs in the “Person” is not defined in the TMLA and therefore TMLA. Not only is the term “patient” not included within must be given its common law meaning. Id. § the definition of “claimant,” the Legislature used the term 74.001(b). Changing the term “patient” to “claimant” “including” to precede the reference to a decedent’s and defining “claimant” as a “person” expands the estate. This renders any components of the definition breadth of HCLCs beyond the patient population. This nonexclusive. TEX. GOV’T CODE § 311.005(13); in turn necessarily widened the reach of the expert Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, report requirement, unless otherwise limited by other 440–41 (Tex.2009) (noting that the term “including” is a statutory provisions. term of enlargement and cautioning against However, “health care” and “medical care” HCLCs are “circumventing Legislative intent” by misapplying non- separately defined in the Act and reference treatment exhaustive lists in statutes); see also In re Allcat Claims furnished “for, to, or on behalf of a patient.” Id. § Serv., L.P., 356 S.W.3d 455, 468 (Tex.2011) (observing 74.001(a)(10), (a)(19).3 As discussed more fully below, that the term “including” in that case was an explanatory “medical care” and “health care” HCLCs require that the term of enlargement). claimant be a patient. See Part II.D.1, infra. The dissent argues that the 2003 amendment substituting [4] With the exception of medical care and health care “claimant” in lieu of “patient” in the HCLC definition claims, our focus in determining whether claims come merely clarifies that a patient’s estate or others acting in a under the TMLA is not the status of the claimant, but the representative capacity may bring an HCLC. 371 S.W.3d

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at 194 (Lehrmann, J., dissenting). But further belying the definition. There are several types of HCLCs set out in contention that a “claimant” may be only a patient or her the TMLA: in addition to claims involving treatment and estate is the Act’s definition of “representative.” The term lack of treatment, the Act contemplates claims for alleged “representative,” used in the Act’s medical-records- “departure[s] from accepted standards of medical care, or disclosure provision, is defined as the “agent of the health care, or safety or professional or administrative patient or claimant,” indicating that patient and claimant services directly related to health care.” TEX. CIV. do not necessarily refer to the same category of persons. PRAC. & REM.CODE § 74.001(a)(13). All of these TEX. CIV. PRAC. & REM.CODE § 74.001(a)(25) categories of claims, except safety, are defined terms in (emphasis added), 74.052; Wilson N. Jones Mem’l Hosp. the Act. See, e.g., id. § 74.001(a)(10), (a)(19), and (a)(24) v. Ammons, 266 S.W.3d 51, 61–62 (Tex.App.—Dallas (defining “health care,” “medical care,” and “professional 2008, pet. denied) (also drawing the distinction). Neither or administrative services”). West Oaks asserts that the language of the TMLA nor the logic of the Williams’ claims allege departures from accepted amendments can support a narrow reading of the term standards of either “health care” or “safety.” Williams “claimant.” argues that neither of these categories of claims applies to his allegations, removing him from the Act’s reach.

D. Character of Williams’ Claims In defining the types of claims against health care 1. Claimed Departures from Accepted Standards of providers constituting HCLCs, the question we face is not Health Care whether it seems that a claimed injury really arose from We examine whether Williams’ complaints are “claimed treatment commonly understood to be some type of departure[s] from accepted standards of ... health care.” medical or health care; nor do we address whether the TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). In incident causing the injury would have been a common Diversicare, we held that a claim alleges a departure from law negligence claim. Instead, the issue posed is whether accepted standards of health care if the act or omission the umbrella fashioned by the Legislature’s promulgation complained of is an inseparable or integral part of the of the TMLA includes the cause of action brought by a rendition of health care. 185 S.W.3d at 848, 850. claimant against physicians or health care providers. “[T]raining and staffing policies and supervision and protection of [patients] ... are integral components of a The foundations of our analysis are well established. As [health care facility’s] rendition of health care services....” in Diversicare and Marks, we determine whether the Id. at 850. Williams’ claims are similar to the health care relevant allegations are negligence claims or are properly claims at issue in Diversicare. However, our analysis of characterized as HCLCs under the Act. Marks, 319 health care claims in that case involved claims by a S.W.3d at 662 (construing the TMLIIA); Diversicare, 185 patient against a health care provider, not, as in this case, S.W.3d at 847. claims brought by a non-patient employee against his employer. [6] An HCLC contains three basic elements:4 (1) a physician or health care *180 provider must be a The definition for “health care” suggests that claims defendant; (2) the claim or claims at issue must concern brought under this prong of the HCLC definition must treatment, lack of treatment, or a departure from accepted involve a patient-physician relationship. See id. § standards of medical care, or health care, or safety or 74.001(a)(10). “Health care” is: professional or administrative services directly related to health care; and (3) the defendant’s act or omission ... any act or treatment performed complained of must proximately cause the injury to the or furnished, or that should have claimant. See TEX. CIV. PRAC. & REM.CODE § been performed or furnished, by 74.001(a)(13); Marks, 319 S.W.3d at 662 (construing the any health care provider for, to, or similar definition found in the TMLIIA). on behalf of a patient during the patient’s medical care, treatment, The second element is at issue in this case: whether or confinement. Williams’ claims alleging West Oaks’ failure to properly train the facility’s staff, warn of risks associated with Id. § 74.001(a)(10)(emphases added); see also, e.g., violent psychiatric patients, provide adequate protocols Omaha Healthcare Ctr., 344 S.W.3d at 395 (pointing to and equipment to limit such risks, and provide a safe the “any act” language in the “health care” definition as work environment under such circumstances implicate necessarily implicating more than acts of *181 physical one or more of the standards listed in the HCLC care and medical diagnosis and treatment);

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185 S.W.3d at 847 (noting the “broad[ ]” nature of the policies and supervision and protection of [a patient] and “health care” definition). While the “any act” language of other residents are integral components of [the facility’s] the “health care” definition is certainly expansive, it is rendition of health care services.” 185 S.W.3d at 850. limited by the requirement that health care be rendered Williams’ similar allegations constitute HCLCs based on “for, to, or on behalf of a patient during the patient’s claimed departures from accepted standards of health medical care, treatment, or confinement.” TEX. CIV. care. PRAC. & REM.CODE § 74.001(a)(10) (emphases added). Because a claim under the health care prong of Texas mental health statutes and regulations bolster this section 74.001(a)(13) incorporates the definition of conclusion. West Oaks is a state-licensed, private mental “health care,” such a claim must involve a patient- health facility. The law requires that an inpatient mental physician relationship. health facility “provide adequate medical and psychiatric care and treatment to every patient in accordance with the [7] The requirement that a claim arising under the health highest standards accepted in medical practice.” TEXAS care prong of section 74.001(a)(13) involve a patient- HEALTH AND SAFETY CODE § 576.022(a)(emphasis physician relationship could be viewed as in tension with added). Mental health hospitals may not operate in Texas the term “claimant,” defined in terms of a person. See id. *182 unless licensed by the Texas Department of Health § 74.001(a)(2). We consider all the relevant provisions of and operated in accordance with the rules and standards the TMLA together and follow the rule that specific of the Texas Board of Mental Health and Mental statutory provisions prevail over more general provisions. Retardation to ensure the proper care and treatment of See Jackson v. State Office of Admin. Hearings, 351 patients. Id. § 577.001(a), 577.005(b), 577.010(a). S.W.3d 290, 297 (Tex.2011) (reiterating the rule that “a [9] specific statutory provision prevails as an exception over The necessity of expert testimony to support or refute a conflicting general provision”) (citing Tex. Lottery the allegations at issue is a factor in assessing the nature Comm’n v. First State Bank of DeQueen, 325 S.W.3d of a claim against a health care provider or physician. 628, 637 (Tex.2010)); see also TEX. GOV’T CODE § Diversicare, 185 S.W.3d at 848. Here, the court of 311.026(b) (same). However, the specific wording of the appeals considered the need for expert testimony in “health care” definition, that health care be an act Williams’ case and concluded that “even if medical expert involving treatment rendered for, to or on behalf of a testimony is necessary to establish Williams’ claims, the patient, acts as a limitation on the general provision that need for expert testimony is not dispositive as to whether an HCLC need only be pursued by a “claimant.” While a claim is a health care liability claim.” 322 S.W.3d at other categories of HCLCs need only be pursued by 353. We have indicated that even when expert medical claimants, by specific statutory directive health care testimony is not necessary, the claim may still be an claims must involve a patient-physician relationship. HCLC. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005) (“The fact that in the final analysis, expert [8] Claims based on departures from accepted standards of testimony may not be necessary to support a verdict does health care therefore involve a nexus between the not mean the claim is not a health care liability claim.”). standard departed from and the alleged injury. Such a We have not previously addressed the court of appeals’ nexus exists in this case. Williams, a health care provider reasoning, and we now hold that if expert medical or for Vidaurre, was assaulted by Vidaurre, who was a West health care testimony is necessary to prove or refute the Oaks patient. See TEX. CIV. PRAC. & REM.CODE § merits of the claim against a physician or health care 74.001(a)(12) (defining “health care provider” to include provider, the claim is a health care liability claim. employees of facilities licensed to provide health care). [10] Williams was acting on orders to provide one-on-one Expert testimony in the health care field is necessary supervision for Vidaurre. That directive was made by a to support Williams’ claims. Those claims require West Oaks physician exercising professional judgment evidence on proper training, supervision, and protocols to about the schizophrenic patient’s care and treatment, prevent, control, and defuse aggressive behavior and including, specifically, heightened supervision in light of altercations in a mental hospital between psychiatric recent aggressive and violent behavior. Additional patients and employed professional counselors who treat professional judgments about the safety protocols for such and supervise them. The provision of emergency patients were put in place by West Oaks to care for its notification devices, warning of dangers associated with mental patients. Williams alleges that these judgments, psychiatric patients, providing a safe workplace, and concerning his training and psychiatric institutional properly training the caregiver at a psychiatric facility are protocols, departed from accepted standards of care and integral to the patient’s care and confinement. Acts or caused his injury. We previously reasoned in Diversicare treatment that are integral to a “patient’s medical care, that the health care facility’s “training and staffing treatment, or confinement” constitute “health care.” TEX.

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CIV. PRAC. & REM.CODE § 74.001(a)(10). Claims for bare basis that they mirror those of the patient and stem injuries arising from departures from proper “treatment from the same fact pattern. Williams and the patient stand performed or furnished, or that should have been as separate claimants. We analyze the applicability of the performed or furnished” are health care claims. Id. § TMLA and its attendant procedural requirements on the 74.001(a)(10). Contrary to Williams’ argument, this gist of the claimant’s allegations. See Diversicare, 185 dispute concerns more than simply determining whether a S.W.3d at 847–48. person should be protected from a known aggressive person. The dispute between Williams and West Oaks is, at its core, over the appropriate standards of care owed to this mental health professional in treating and supervising 2. Claimed Departures from Accepted Standards of a psychiatric patient at the mental hospital, what services, Safety [12] protocols, supervision, monitoring and equipment were We also examine whether Williams’ claims may be necessary to satisfy the standard, and whether such characterized as HCLCs under the definition’s “safety” specialized standards were breached. See Diversicare, 185 prong. We have not decided whether safety claims must S.W.3d at 850. The allegedly missing or insufficient be “directly related to health care.” The TMLA’s HCLC protocols and standards were for a mental patient in a definition includes, among the different types of covered mental hospital. It would blink reality to conclude that no claims, “claimed departure[s] from accepted standards of professional mental health judgment is required to decide ... safety....” TEX. CIV. PRAC. & REM.CODE § what those should be, and whether they were in place at 74.001(a)(13). the time of Williams’ injury.5 Williams was injured during an altercation with Vidaurre *183 Williams’ argument that any security officer could in a smoking area at the hospital, and he contends his have performed the oversight and supervision of a injuries would have been avoided if West Oaks had psychiatric patient at the mental health hospital is overly instituted proper safety protocols and monitoring devices. simplistic. Perhaps a security officer could have protected Williams’ claims, predicated upon the monitoring and Williams, and Vidaurre himself, from harm, or lessened restraint *184 of violent, schizophrenic patients, implicate the severity of the injuries suffered, but security is only the safety, as commonly understood, of employees and one aspect of the matter. Williams’ position at West Oaks patients. Safety is not defined in the TMLA. This Court involved professional, health-care-related judgments has construed the term, under principles of statutory different from the tasks typically associated with a law construction, according to its commonly understood enforcement officer, security guard, or bouncer. meaning as the condition of being “untouched by danger; Treatment of a mental patient subject to psychotic and not exposed to danger; secure from danger, harm or loss.” aggressive outbursts requires health care, not simply Diversicare, 185 S.W.3d at 855 (quoting the definition of protection from bodily harm, to control, defuse, or “safe” in Black’s Law Dictionary (6th ed.1990) to prevent mental processes leading to aggression, and construe the meaning of “safety” under predecessor professional techniques to do so. Patients at West Oaks statute). Logically, the inclusion of safety “expand[ed] the are there not merely for shelter, but also for care and scope of the statute beyond what it would be if it only treatment. See Charrin v. Methodist Hosp., 432 S.W.2d covered medical and health care” and included the claims 572, 574 (Tex.Civ.App.—Houston [1st Dist.] 1968, no in that case, and it was not necessary to define the precise writ) (holding that the hospital-patient relationship is boundaries of the safety prong. Diversicare, 185 S.W.3d different from that of a landlord-tenant). Williams’ self- at 855; see also Marks, 319 S.W.3d at 662–63. described role at West Oaks was that of a “counselor” and [13] “caregiver,” not a security guard. One of Vidaurre’s In 2003, the Legislature modified the definition of experts characterizes psychiatric technicians as a HCLCs. It changed “patient” to “claimant,” and also “valuable and indispensable part of psychiatric hospital added the italicized phrase to the relevant portion of the care.” Vidaurre’s expert also notes that the role of pre–2003 definition: HCLC means a cause of action for a psychiatric technician involves appropriately observing “claimed departure from accepted standards of medical and evaluating potentially assaultive mentally ill patients care, or health care, or safety or professional or and assessing the potential for violent eruptions. Thus, the administrative services directly related to health care, very deficiencies in training and protocols Williams which proximately results in injury to or death of a complains of underscore the health-related nature of his claimant....” TEX. CIV. PRAC. & REM.CODE § role. 74.001(a)(13)(emphasis added). The dissent argues that the 2003 amendment was intended to narrow the existing [11] scope of the safety prong of HCLCs by requiring that We do not conclude, as West Oaks would have us, that Williams’ claims should be considered HCLCs on the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012) 55 Tex. Sup. Ct. J. 1033

safety be “directly related to health care.”6 See id. We reasoning that safety is not constricted by the subsequent disagree for several reasons. addition to the statute of the phrase “professional or administrative services directly related to health care.” Safety was in the Act prior to the 2003 amendments and Concurring and dissenting in Diversicare, Chief Justice this Court construed it according to its common meaning Jefferson wrote that safety, undefined in the statute, is as being secure from danger, harm or loss. Diversicare, commonly understood to mean protection from danger 185 S.W.3d at 855. The phrase “directly related to health and that the “specific source of that danger ... is without care” was added to the definition of HCLCs in 2003 to limitation.” 185 S.W.3d at 860–61 (Jefferson, C.J., modify “professional or administrative services.” concurring and dissenting) (also noting that “[i]n defining Compare TEX.REV.CIV. STAT. art 4590i, § 1.03(a)(4) health care liability claims as it did, the Legislature (repealed 2003), with Act of June 2, 2003, 78th Leg., created a statute with a broad scope. Complaints about the R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 865. breadth of [the TMLIIA] should be directed to the Legislature, not to this Court, for the courts must ‘take [14] Scrutinizing grammar in interpreting statutes, we are statutes as they find them.’ ” (citation omitted)). cognizant of the rule that “[m]odifiers should come, if Concurring in Marks, Justice Johnson agreed with Chief possible, next to the words they modify.” William Strunk, Justice Jefferson’s analysis of safety in his concurrence Jr. & E.B. White, THE ELEMENTS OF STYLE R. 30 and dissent in Diversicare. Justice Johnson reasoned that (4th ed. 2000); see also Bryan A. Garner, GARNER’S making safety contingent on a direct connection between MODERN AMERICAN USAGE 523 (2003) (noting that it *186 and health care would “effectively read [ ] safety “[w]hen modifying words are separated *185 from the out of the statute instead of properly giving it meaning as words they modify, readers have a hard time processing an additional category of claims.” Marks, 319 S.W.3d at the information,” and adding that “the true referent should 673 (Johnson, J., concurring, joined by Justice Willett, generally be the closest appropriate word.”). This rule is Justice Hecht, and Justice Wainwright).8 Chief Justice related to the last antecedent doctrine of statutory Jefferson wrote again in Marks, quoting his concurrence interpretation commonly applied to ambiguous legislative and dissent in Diversicare, noting that a reasonable texts. 82 C.J.S. STATUTES § 443 (2011) (footnotes construction of “safety” is to give the term its “common omitted). Under that tenet, a qualifying phrase should be meaning,” which could therefore encompass premises applied only to the portion of the sentence “immediately liability claims. Id. at 674 (Jefferson, C.J., concurring and preceding it.” City of Dallas v. Stewart, 361 S.W.3d 562, dissenting, joined by Justices Green, Guzman and 571 n. 14 (Tex.2012) (applying the doctrine); Spradlin v. Lehrmann). Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000) (same). Accordingly, the phrase “directly related to health We agree with West Oaks that Williams’ claims are care” modifies the terms immediately before it— indeed for departures from accepted standards of safety. “professional or administrative services.” Under the We conclude that the safety component of HCLCs need dissent’s logic, the phrase “directly related to health care” not be directly related to the provision of health care and should be applied to modify each term in the HCLC that Williams’ claims against West Oaks implicate this definition, including professional or administrative prong of HCLCs. services, safety, health care, and medical care. This construction is nonsensical, as it would be entirely redundant as to health care and medical care, unsupported by the text in the attempted application to safety, and E. Relationship with the Texas Workers’ render safety largely repetitive of health care. See Marks, Compensation Act [15] 319 S.W.3d at 673 (Johnson, J., concurring) (pointing out Williams also contends that interpreting the TMLA to that safety and health care are separate). We explained in encompass his claims will conflict with the procedural Diversicare, a patient-assault case also involving training and substantive litigation rights granted to employee and staffing policies and monitoring and protection of plaintiffs under the TWCA. See TEX. LAB.CODE § patients, that “[p]rofessional supervision, monitoring, and 406.001 et seq. He argues that his personal injury claims protection of the patient population necessarily implicate against his employer should not be characterized as the accepted standards of safety.” Diversicare, 185 HCLCs because the Legislature did not intend for S.W.3d at 855. Williams’ similar complaints here employee claims against a health care provider employer concerning his protection from danger at the hands of a to fall under the rubric of the Act. Williams also contends mental patient also implicate safety.7 that an employee’s personal injury claim against his employer would not have constituted a medical Moreover, a majority of the members of this Court have malpractice claim prior to the enactment of the medical opined in written opinions or joined written opinions liability statutes in 1977.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012) 55 Tex. Sup. Ct. J. 1033 [16] Thus, the workers’ compensation construct We see no conflict between the TMLA and the TWCA, contemplates two systems, one in which covered whether the claim at issue is asserted against an employer employees may recover relatively quickly and without subscribing to workers’ compensation insurance or, as litigation from subscribing employers and the other in here, against a nonsubscriber. The TWCA is unique in which nonsubscribing employers, or the employers of permitting private Texas employers to elect to subscribe employees who have opted not to accept workers’ to workers’ compensation insurance. Id. § 406.002(a); compensation coverage, are subject to suit by injured Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 552 employees to recover for their on-the-job injuries. “In (Tex.2001); see also Casados, 358 S.W.3d at 241. If they providing the worker a form of prompt remuneration for so elect, and their employees do not opt out of the loss of earning capacity, the statutory [workers’ workers’ compensation coverage, then their employees compensation] scheme is in lieu of common law liability are generally precluded from filing suit against them and based on negligence.” Paradissis v. Royal Indem. Co., must instead pursue their claims through an 507 S.W.2d 526, 529 (Tex.1974); see also Reed Tool Co. administrative agency against the employer’s insurance v. Copelin, 689 S.W.2d 404, 407 (Tex.1985) (“The carrier for benefits provided for in the TWCA. See TEX. system balances the advantage to employers of immunity LAB.CODE § 406.031(a) (noting that an employer’s from negligence and potentially larger recovery in insurance carrier is liable for compensation of an common law actions against the advantage to employees employee’s injury if the employee is subject to the Act of relatively swift and certain compensation without proof and the injury arises out of the course and scope of the of fault.”). employment). But employees need not prove the employer’s negligence for workers’ compensation Just as the workers’ compensation system treats recovery, just that they were injured in the course and employees of subscribing versus nonsubscribing scope of employment. See id. (“An insurance carrier is employees differently, the treatment of those two liable for compensation for an employee’s injury without differently situated employees under the TMLA for on- regard to fault or negligence....”); id. § 406.002(b) (stating the-job injuries is also distinct. The employee of a that a subscribing employer is subject to the TWCA). As subscriber that is a health care provider must pursue an part of the legislated policy trade-off underlying the administrative remedy under the TWCA for on-the-job workers’ compensation system, employees are also injuries. However, the employee of a nonsubscribing limited in their recovery to indemnity and medical employer that is a health care provider must file suit expenses, absent intentional conduct. See id. § 408.001(a) against the nonsubscriber and follow the rules that govern (“Recovery of workers’ compensation benefits is the that suit. In this case, the governing rules include the exclusive remedy of an employee covered by workers’ TMLA’s requirements for a claimant suing a health care compensation insurance coverage....”); but see id. § provider. Other proceedings to recover against 408.001(b) (allowing recovery of exemplary damages for nonsubscribing employers would similarly be governed *187 death caused by an intentional act or omission or the by applicable statutes and rules, e.g., proof of negligence employer’s gross negligence). and causation, notice requirements under the Texas Tort Claims Act, or the common pleading and service However, if an employer forgoes workers’ compensation requirements in the Texas Rules of Civil Procedure for all coverage, and is a nonsubscriber to the workers’ lawsuits. compensation system, it is subject to suits at common law for damages. With the exception of certain employer Williams invites us to read into the TMLA an exception defenses abrogated by the statute, a suit by an employee for claimants happening to be employees of nonsubscriber of a nonsubscribing employer is largely outside the health care provider employers who sue their employers limitations imposed by the TWCA. See id. § 406.033(a), for claims that come under the TMLA umbrella. (d) (discussing limited defenses and employee burden of Williams’ case is against a nonsubscriber, outside of the proof in establishing negligence). Employees of a workers’ compensation system, yet he implores the Court nonsubscriber, injured on the job, must prove the to except him from the TMLA’s requirements without any elements of a common law negligence claim, absent express statutory exception. He seeks a common law intentional misconduct. Id. § 406.033(d). An employee exemption from the TMLA’s mandate that we are not may also elect to waive workers’ compensation coverage willing to create. and “retain the common-law right of action to recover damages for personal injuries or death” if certain As explained, the TWCA and the TMLA do not conflict notification requirements are met. Id. § 406.034(a), (b). in this case. But even if they did, the Legislature has already designated the victor—the TMLA would prevail. Section 74.002(a) of the TMLA states: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012) 55 Tex. Sup. Ct. J. 1033

*188 In the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of a III. Response to Dissent conflict. At base, the dissent’s position is that, notwithstanding the TEX. CIV. PRAC. & REM.CODE § 74.002(a). This Legislature’s substitution of the term “claimant” for provision was added as part of the 2003 amendments and “patient” in the TMLA’s HCLC definition, HCLCs are replaced an earlier, more cabined conflicts provision. See only those in which the defendant has a patient-physician TEX.REV.CIV. STAT. art. 4590i, § 11.05 (repealed) or “patient-health-care-provider” relationship with the (entitled “Subchapter’s Application Prevails Over Certain plaintiff. In spite of the Act’s words, the dissent proffers Other Laws” and stating that “[t]he provisions of this that the Court strays from the language of the Act and subchapter shall apply notwithstanding the provisions undermines its purpose. See 371 S.W.3d at 199–200 contained in Article 4671, Revised Civil Statutes of (Lehrmann, J., dissenting). The chart below vividly Texas, 1925, as amended, and the provisions of Article illustrates the Legislature’s broad intention and refutes the 5525, Revised Civil Statutes of Texas, 1925, as amended” dissent’s position. (pertaining to injuries resulting in death and survival of cause of action, respectively)).9

Here, Williams must establish the medical negligence of West Oaks to recover under the TMLA. The statute requires expert reports to support his claims. TEX.REV.CIV. STAT. art. 4590i, TEX. CIV. PRAC. & REM.CODE

§ 1.03(a)(4) (repealed 2003) (emphases added) § 74.001(a)(13) (amended 2003) (emphases added)

“Health care liability claim” means a cause of “Health care liability claim” means a cause of action against a health care provider or physician action against a health care provider or physician for treatment, lack of treatment, or other claimed for treatment, lack of treatment, or other claimed departure from accepted standards of medical care departure from accepted standards of medical or health care or safety which proximately results care, or health care, or safety or professional or in injury to or death of the patient, whether the administrative services directly related to health patient’s claim or cause of action sounds in tort or care, which proximately results in injury to or contract. death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

1.03(a)(4) (repealed 2003). A claimant need not be the As explained in Parts II.B and C above, in 2003 the patient in all HCLCs. Legislature modified the scope of HCLCs when it deleted “patient” and inserted the broader term “claimant” in the definition. Compare TEX. CIV. PRAC. & REM.CODE § As discussed above, two of the different types of HCLCs 74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, § have specific definitions. The “medical care” and “health care” definitions both refer to services rendered for, to, or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012) 55 Tex. Sup. Ct. J. 1033

on behalf of a patient during the patient’s care,10 (Tex.2010)). However, nothing in the language of the treatment, or confinement. *189 TEX. CIV. PRAC. & notice and disclosure provisions or in their purpose of REM.CODE § 74.001(a)(10), (a)(19); see id. at § encouraging pre-suit negotiation and settlement indicates 74.001(a)(13). Although HCLCs, as defined, include a legislative intent that in all cases a claimant must be a causes of action against health care providers brought by patient or her representative. “claimants,” the specific incorporation of the patient relationship for health care and medical care claims The dissent contends that the parties’ right to medical governs the HCLC for departures from accepted standards records cannot be applied against a third-party patient, of medical care and health care. See Jackson, 351 S.W.3d such as Vidaurre. Specifically, the dissent points out that at 297 (holding that specific statutory provisions override medical-privacy laws may prevent the parties from general provisions). However, that limitation does not compelling a person such as Vidaurre, who is not a party apply to claims of safety, which is not defined with to this case *190 pursuing a claim under the TMLA, from reference to a patient.11 TEX. CIV. PRAC. & REM.CODE supplying his medical records. 371 S.W.3d at 195 § 74.001(a)(13). Contending that only patients’ claims (Lehrmann, J., dissenting). JUSTICE LEHRMANN’S may be considered HCLCs, the dissent argues, in essence, point is well taken, but not in this case. Williams is the that the 2003 amendment is a nullity and seeks to have the claimant in this case and these requirements should be Court rewrite section 74.001(a)(13). We decline to do so. applied to him. For purposes of his own medical records, Williams would be the “patient” referenced in the [17] This is a statutory construction case. Our role “is to authorization form. See TEX. CIV. PRAC. & determine and give effect to the Legislature’s [expressed] REM.CODE § 74.052(c)(A). In alignment with the intent.” McIntyre, 109 S.W.3d at 745. Such cases may broadly defined “claimant,” the notice provision makes offer the temptation to shoehorn a desired legislative clear at the outset that it applies to “any person” asserting result. But the Legislature changed “patient” to an HCLC, as opposed to a “patient” or representative. Id. “claimant,” and “claimant” is broader than “patient.” §§ 74.001(a)(2), .051(a). In turn, the disclosure Aside from claims alleging negligent medical care or requirements allow not only for the release of records of a health care, a claim need not involve a patient-physician patient-plaintiff, but also the pre- and post-injury records relationship for it to be an HCLC. of non-patient plaintiffs seeking recovery for her post- injury damages. See id. § 74.052 (predicating the The dissent argues several other points which we address disclosure requirements on the applicability of section briefly. The dissent contends that other provisions of the 74.051(a)). Such records would bear directly in assessing TMLA should trump the definition of HCLCs. the extent of damages and would streamline settlement negotiations, regardless of whether the claimant was a [18] (1) Notice of suit and medical records release patient of the health care provider being sued. provisions. The dissent similarly notes that inclusion of non-patients as claimants would render the notice of suit (2) Expert report provisions. The dissent similarly asserts to health care providers, and accompanying medical- that the Act’s definition of “expert report” and discussion records releases, to health care providers, questionable. of expert qualifications means that HCLCs must be based 371 S.W.3d at 195 (Lehrmann, J., dissenting) (citing on a patient-physician relationship because those TEX. CIV. PRAC. & REM.CODE §§ 74.051, .052). The provisions contain references to departures from accepted Act requires “any person” asserting an HCLC to provide standards by physicians or health care providers and notice to the defendant physician or health care provider. knowledge of accepted standards for diagnosing, caring, TEX. CIV. PRAC. & REM.CODE § 74.051(a). This or treating the illness, injury, or condition at issue in the notice must be accompanied by the medical-records claim. 371 S.W.3d at 195–96 (Lehrmann, J., dissenting) release form detailed in section 74.052. Id. § 74.052; Jose (discussing TEX. CIV. PRAC. & REM.CODE §§ Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 74.351(r)(6), .401(a)(2), .402(a)(2)). The fact that experts (Tex.2011). Further, all parties are entitled to “complete submitting reports have knowledge of the alleged and unaltered copies of the patient’s medical records.” standards at issue does not logically lead to a conclusion TEX. CIV. PRAC. & REM.CODE § 74.051(d). The form that only a patient’s suit against a health care provider can of notice provides a release including the name of the constitute an HCLC, especially when such a conclusion “patient.” Id. § 74.052(c)(A), (B). As the dissent correctly conflicts with the Legislature’s substitution of “claimant” observes, the Legislature’s purpose for the notice and for “patient” in the TMLA’s definition of HCLCs. disclosure requirements was to encourage the parties to Similarly, the dissent’s point that the “expert report” negotiate and settle disputes prior to suit. 371 S.W.3d at definition calls for a discussion of the manner in which 195 (Lehrmann, J., dissenting); Carreras, 339 S.W.3d at the care rendered by the physician or health care provider 73 (citing Garcia v. Gomez, 319 S.W.3d 638, 643 failed to meet standards does not lead to the conclusion © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012) 55 Tex. Sup. Ct. J. 1033

that only the patient at the receiving end of that care can was determinative in the scope of HCLCs generally, but be a “claimant” under the Act. Id. § 74.351(r)(6); see also because those were the facts of the case we were id. § 74.001(a)(2). An expert report detailing the deciding. Diversicare, 185 S.W.3d at 850. The standards departure from standards would still be relevant in a case, for the conduct at issue, rather than the form of pleadings such as this, where a non-patient alleges that the health or identity of parties, are paramount in classifying care provider’s deviations from accepted standards led to HCLCs. See Yamada v. Friend, 335 S.W.3d 192, 196 his injury. As explained, expert testimony is necessary to (Tex.2010) ( “Artful pleading does not alter [the nature of specify the departure from accepted standards leading to the underlying claim].”); Omaha Healthcare, 344 S.W.3d the injury. Id. § 74.351(r)(6). The Act’s requirement that at 394 (similar). an expert be qualified to give an opinion on the standards at issue does not, as the dissent contends, indicate that the (5) Importance of the 2003 amendments. Incredibly, the condition at issue must be sustained by a patient. The dissent contends that the Court places “undue expert report requirement is intended to effectuate the importance” on the Legislature’s modification of the TMLA’s objective that only meritorious causes of action HCLC definition in 2003, substituting the broader term proceed, not define the scope of HCLCs. See Samlowski “claimant” for “patient” in identifying who may bring a v. Wooten, 332 S.W.3d 404, 416 (Tex.2011) (Wainwright, claim. 371 S.W.3d at 193–94 (Lehrmann, J., dissenting); J., dissenting in part). TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). The dissent would interpret that modification as referring to (3) Jury instructions. The dissent observes that one of the the estate or direct representatives of a patient-plaintiff, jury instructions required by the Act in jury trials includes parties that have always been permitted to make a claim, a caution that a finding of negligence may not be based even prior to the 2003 amendment. See 371 S.W.3d at 197 solely on evidence of a “bad result” to the claimant, but a (Lehrmann, J., dissenting); see also TEX.REV.CIV. bad result may be considered in determining negligence. STAT. art. 4590i, § 1.03(a)(9), 4.01 (repealed 2003). 371 S.W.3d at 196 (Lehrmann, J., dissenting) (citing First, focusing on the language of the statutory definition TEX. CIV. PRAC. & REM.CODE § 74.303(e)(2)). at the center of this case does not give it “undue Drifting again from the statutory text directly at issue, the importance.” Second, the dissent’s construction is dissent argues that this instruction “only *191 makes contrary to established rules of statutory construction. As sense” in the context of a patient dissatisfied with medical we note in Parts II. B and C, “claimant” is defined as “a or health care services delivered by a health care provider. person, including a decedent’s estate, seeking or who has We fail to see the logic in this argument. “Bad result” is sought recovery of damages in a health care liability not defined, making it difficult to limit its meaning claim.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2). exclusively to health care or medical care, as the dissent Thus, aside from claims involving health care or medical would do. The Act indicates that a “bad result” is merely care and claims based on treatment, a direct healthcare- a fact that may be considered in a negligence finding. To provider-to-patient relationship is not required for claims conclude from this provision that the Legislature intended to constitute HCLCs. to include only patients under the Act, when it expressly broadened the HCLC definition, is not logical and would (6) Construction of “safety.” The dissent argues that this render the revisions to the more relevant HCLC definition issue has not been properly raised. 371 S.W.3d at 198 meaningless. (Lehrmann, J., dissenting). However, West Oaks presents the safety-related nature of its claims in its briefing, and (4) Re-interpretation of Diversicare. Our opinion today is the court of appeals analyzed Williams’ claims as safety consistent with our earlier construction of the HCLC claims. 322 S.W.3d 349, 352. Contrary to the dissent’s definition in Diversicare, 185 S.W.3d at 847 (noting that assertions, our construction of “safety” is based not only “we examine the underlying nature of the claim and are on established canons of textual construction, *192 but not bound by the form of the pleading”). The dissent also on our interpretation of safety based on its commonly contends that we stray from Diversicare and its progeny understood meaning. See Diversicare, 185 S.W.3d at 855. by centering our analysis on the nature of the claims at Further, following principles of statutory construction, our issue. 371 S.W.3d at 196–97 (Lehrmann, J., dissenting). construction of “safety” prevents the term from becoming The dissent erroneously argues that Diversicare requires meaningless surplusage, subsumed into claims based on courts to place equivalent emphasis on the relationship departures from accepted standards of “health care.” See between the parties. Specifically, the dissent contends that TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). in Diversicare we attached “equal” importance to the “claimant’s status as a patient” at a health care facility. (7) Balance between the TMLA and TWCA. Contending Id.; see Diversicare, 185 S.W.3d at 850. However, in that our assessment of Williams’ claims as HCLCs Diversicare we discussed that relationship, not because it “forc[es]” them into the HCLC “mold” and “significantly © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (2012) 55 Tex. Sup. Ct. J. 1033

disrupts the delicate balance between employee and no language in the Act required that a “claimant” also employer interests” motivating the TWCA, the dissent necessarily be a “patient.” Id. at 60–62. argues that our reasoning alters the incentive structure in the TWCA intended to penalize nonsubscribing employers. 371 S.W.3d at 199 (Lehrmann, J., dissenting). However, contrary to the implication of the dissent, the TWCA does not create an especially punitive litigation IV. Conclusion regime for nonsubscribing employers. Rather, as noted above, nonsubscribing employers are divested of several Williams claims that West Oaks failed to properly train, common law defenses. See TEX. LAB.CODE § warn and supervise him to *193 work with potentially 406.033(a); see also Kroger Co. v. Keng, 23 S.W.3d 347, violent psychiatric patients and, as a result, failed to 349–50 (Tex.2000) (describing the limitation of defenses provide a safe workplace. In 2003, the Legislature of nonsubscribers as a “penalty” meant as an incentive for broadened the definition of health care liability claims employers to subscribe to workers’ compensation under the Texas Medical Liability Act by adding new insurance). However, the plaintiff must prove the types of claims under the HCLC definition and expanding negligence of the nonsubscribing employer or the the scope of persons included within the Act’s purview. employer’s agent. TEX. LAB.CODE § 406.033(d). As Compare TEX. CIV. PRAC. & REM.CODE § part of the negligence claim against a health care provider 74.001(a)(13), with TEX.REV.CIV. STAT. art. 4590i, § employer, an employee asserting a claim that is otherwise 1.03(a)(4) (repealed 2003). We conclude that Williams’ an HCLC must adhere to the expert report requirements claims against West Oaks are properly characterized as of the TMLA. The dissent also argues that our reasoning health care liability claims based on claimed departures will discourage small claims and implies that fewer from accepted standards of health care and safety. employers will subscribe to workers’ compensation Williams failed to provide an expert report in accordance insurance. 371 S.W.3d at 199 (Lehrmann, J., dissenting). with section 74.351(a). TEX. CIV. PRAC. & However, because no information concerning workers’ REM.CODE § 74.351(a). We therefore reverse the compensation policies is in the record before us, the judgment of the court of appeals affirming the trial court’s dissent’s concerns are speculative at best. As described order denying West Oaks’ motion to dismiss all of above, while we see no conflict between the TMLA and Williams’ claims. Because West Oaks requested its TWCA, the Legislature signaled its intent that the TMLA attorney’s fees and costs in the trial court pursuant to should control over contradictory statutory provisions. Texas Civil Practice and Remedies Code section 74.35 See TEX. CIV. PRAC. & REM.CODE § 74.002(a). 1(b)(1), we remand to that court with instructions to dismiss Williams’ claims against West Oaks and consider (8) Legislative purpose of the TMLA. Noting that one of West Oaks’ request for attorney’s fees and costs. the stated purposes of the Act is to reduce the frequency and cost of medical malpractice claims, the dissent concludes that our holding will result in a larger number of total HCLC claims, contrary to the Legislature’s Justice LEHRMANN filed a dissenting opinion, in which purpose. 371 S.W.3d at 199–200 (Lehrmann, J., Justice MEDINA and Justice WILLETT joined. dissenting). Given the number of claims filed against health care providers, many will be HCLCs and some may not be. The dissent would shift the balance so that Justice LEHRMANN, joined by Justice MEDINA and many more are not HCLCs, which is contrary to the Justice WILLETT, dissenting. Legislature’s change of “patient” to “claimant.” We refuse to trump explicit statutory language with the “A whole new world [of health care liability claims], dissent’s view of the TMLA’s purpose. hinted by opinions in the last few years, is here.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 470 (Tex.2008) Finally, our conclusion that the Act covers claims by non- (Wainwright, J. dissenting). Interpreting a law designed to patients against health care providers is not new territory. reduce the number of medical malpractice suits, the Court The Fifth Court of Appeals has concluded that a non- holds that an employee’s claims against his employer for patient hospital visitor’s personal injury claim resulting providing an unsafe workplace and inadequate training from an on-premises patient assault was an HCLC. are health care liability claims. The Court’s strained Ammons, 266 S.W.3d at 64. The court, citing Diversicare, reading of the statute runs counter to express statutory concluded that the supervision and restraint of patients language, the Legislature’s stated purposes in enacting the was at issue and constituted health care under the facts of current version of chapter 74, and common sense. Further, that case. Id. The Ammons court correctly reasoned that the Court’s decision undermines the balance struck by the

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Legislature to encourage employers to become decide the case, the Court then reaches out to further subscribers under the Workers Compensation Act. For expand the Act’s scope by deciding that a claim under the these reasons, I am compelled to respectfully express my “safety” prong of the health care liability claim definition dissent. need not be directly related to health care—even though Williams’s claim is, in the Court’s view—directly related to health care. Both conclusions are inconsistent with plain statutory language and sound statutory construction. The Act is replete with provisions indicating that a health I. The Medical Liability Act Contemplates a care liability claim must be founded on a health care Patient/Physician Relationship Between the Parties provider’s alleged breach of a professional duty towards a patient. See Diversicare Gen. Partner, Inc. v. Rubio, 185 A. The Act’s plain language indicates that it applies to S.W.3d 842, 851, 854 (Tex.2005). The Court’s claims alleging a breach of a health care provider’s interpretation renders some of those provisions duty to a patient. meaningless or nonsensical. Our primary objective in construing a statute “is to ascertain and give effect to the Legislature’s intent by first looking at the statute’s plain and common meaning.” Tex. 1. Williams’s claims are not “health care” claims, as Natural Res. Conservation Comm’n v. Lakeshore Util. the Court concludes. Co., 164 S.W.3d 368, 378 (Tex.2005). We divine that intent by reading the statute as a whole, and we interpret The Act defines “health care” as “any act or treatment the legislation to give effect to the entire act. Id. (citing performed or furnished, or that should have been City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 performed or furnished, by any health care provider for, (Tex.2003)). Furthermore, we may look to the statutory to, or on behalf of a patient during the patient’s medical context to determine a term’s meaning. City of Boerne, care, treatment, or confinement.” TEX. CIV. PRAC. & 111 S.W.3d at 25. All of those tools lead to the conclusion REM.CODE § 74.001(a)(10) (emphasis added). Plainly, that Williams’s claims are not health care liability claims. the Legislature contemplated that a health care liability claim based upon a departure from standards of health Under the Medical Liability Act, § 74.001 et seq., a health care would stem from medical treatment directed toward a care liability claim is particular patient—“the patient” whose care, treatment, or confinement is the subject of the lawsuit. a cause of action against a health care provider or physician for Based largely on the Legislature’s use of the term treatment, lack of treatment, or “claimant” rather than “patient” in the health care liability other claimed departure from claim definition, the Court determines that a claim falls accepted standards of medical care, under the health care prong of the definition even absent a or health care, or safety or physician-patient relationship so long as a physician- professional *194 or administrative patient relationship is “involved.” 371 S.W.3d at 189. As services directly related to health set out in section I.B. below, the Court’s analysis of the care, which proximately results in significance of the Legislature’s use of “claimant” in the injury to or death of a claimant, definition flows from an erroneous premise and is deeply whether the claimant’s claim or flawed; the Court’s reliance on the change ignores the fact cause of action sounds in tort or that the Legislature used the term throughout the Act’s contract. predecessor, including in its statement of legislative purpose. More importantly, the Legislature did not say TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). The that a health care claim must “involve” a patient. Indeed, Court concludes that Williams’s suit against his employer the word is found nowhere in the definition of health care for providing an unsafe workplace and inadequate or health care liability claim. Instead, health care claims training alleges health care liability claims, despite the arise from “act[s] or treatment furnished or that should lack of any physician-patient relationship between the have been furnished for, to, or on behalf of a patient health care provider and the claimant. 371 S.W.3d at 174. during the patient’s medical care, treatment, or The Court first determines that Williams’s claims are for confinement.” TEX. CIV. PRAC. & REM.CODE § a departure from health care standards because they 74.001(a)(10) (emphasis added). Williams’s claims allege “involve a patient-physician relationship.” 371 S.W.3d at that West Oaks failed to provide him, not the patient, 181. Although that determination is more than enough to adequate training and a safe work place.

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(A) I, _______________ (name of patient [not Section 74.051 of the Act highlights the Court’s error in claimant] or authorized representative), hereby concluding that the mere peripheral involvement of a authorize _______________ (name of physician or patient transforms an ordinary negligence claim into a other health care provider to whom the notice of health care claim. That section requires health care health care claim is directed) to obtain and disclose liability claimants to provide *195 notice by certified mail ... the protected health information described to any health care provider against whom the claim is below.... asserted sixty days before the claim is filed. TEX. CIV. PRAC. & REM.CODE § 74.051(a). The notice must be Other provisions of the Act, which provide the relevant accompanied by a form authorizing the release of the statutory context, see City of Boerne, 111 S.W.3d at 25, medical records of “the patient ” whose treatment is the shore up the conclusion that health care liability claims subject of the claim. Id. §§ 74.051(d)( “All parties shall arise from a health care provider’s breach of a duty be entitled to obtain complete and unaltered copies of the toward a particular patient. I examine several below. patient’s medical records....”); 74.052(c)A, B. Under the Court’s reading of the statute, Williams would be required to authorize or obtain authorization for the release of Vidaurre’s medical records to pursue his suit against his 2. The Court’s interpretation is inconsistent with employer. Obviously, medical privacy laws prevent provisions governing the expert reports and the Williams from authorizing the release of Vidaurre’s qualifications of experts. medical records. 45 C.F.R. § 164.502(f) (providing that Health Insurance Privacy and Portability Act restrictions The Court reverses the court of appeals’ judgment and apply to deceased individuals). While the Legislature remands to the trial court, instructing it to dismiss because sought to reduce frivolous claims against health care Williams failed to comply with the expert report providers, it sought to do so without unduly restricting requirement of section 74.351. But the very definition of claims with merit. It is inconceivable that the Legislature “expert report” belies the Court’s conclusion that intended to require health care claimants with meritorious Williams’s allegations state claims for health care claims to be blocked by the refusal of third parties (the liability. An “expert report” is defined as patients “involved”) to authorize release of their medical records. a written report by an expert that provides a fair summary of the Moreover, even if Williams were somehow able to obtain expert’s opinions as of the date of authorization from Vidaurre’s estate, the records would the report regarding applicable not serve the purpose sections 74.051 and 74.052 were standards of care, *196 the manner designed to serve: to “ ‘provide[ ] an opportunity for in which the care rendered by the health care providers to investigate claims and possibly physician or health care provider settle those with merit at an early stage.’ ” Jose Carreras, failed to meet the standards, and M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex.2011) the causal relationship between that (quoting In re Collins, 286 S.W.3d 911, 916–17 failure and the injury, harm, or (Tex.2009)). Vidaurre’s psychiatric diagnosis and violent damages claimed. tendencies are undisputed, and the records would have no bearing on the merits of Williams’s claims against West TEX. CIV. PRAC. & REM.CODE § Oaks for allegedly providing an unsafe workplace and 74.351(r)(6)(emphasis added). The emphasized language inadequate training. clearly contemplates that the defendant health care provider has delivered health care services to a patient, The Court discounts the import of these sections, finding who has allegedly been injured by the provider’s no language to suggest that employee/employer disputes departure from applicable standards. The Court minimizes like this case are not health care liability claims. But the definition’s significance by noting that “[t]he fact that section 74.052, which describes the statutory experts submitting reports have knowledge of the alleged authorization form that must accompany the statutory standards deviated from does not logically lead to a notice provides: conclusion that only a patient’s suit against a health care provider can constitute an HCLC....” 371 S.W.3d at 190. (c) The medical authorization required by this That suggestion, however, overlooks the provision’s section shall be in the following form[ ]: reference to the health care provider’s rendition of care.

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The sections of the Act governing the qualifications of Noting that “our focus ... is not the status of the claimant,” experts who may author reports similarly show that a 371 S.W.3d at 178, the Court rejects out of hand health care liability claim arises only from a patient/health Williams’s contention that the lack of a patient-physician care provider relationship. Section 74.041 establishes the relationship between him and West Oaks places his suit necessary qualifications for an expert in a suit against a outside of the Act. It is true, as the Court asserts, that in physician. Among other qualifications, the expert must Diversicare we placed great importance upon the essence “ha[ve] knowledge of accepted standards of medical care of the claims, “the alleged wrongful conduct and the for the diagnosis, care, or treatment of the illness, injury, duties allegedly breached.” 185 S.W.3d at 851. But in or condition involved in the claim.” TEX. CIV. PRAC. & *197 rejecting Rubio’s contention that her claim for a REM.CODE § 74.401(a)(2)(emphasis added). The sexual assault by another patient should be treated as an definitions thus contemplates that the lawsuit will center ordinary premises liability claim, we attached equal on a physician’s treatment of a patient’s illness, injury, or importance to the claimant’s status as a patient between condition, not on the adequacy of a workplace or the the parties: “There is an important distinction in the training provided to an employee. relationship between premises owners and invitees on one hand and health care facilities and their patients on the other. The latter involves health care.” Id. at 850. And we emphasized that, were we to agree with Rubio’s position, 3. The jury instruction mandated by the Legislature “our decision would have the effect of lowering the contemplates that the claim arises from a health care standard from professional to ordinary care.” Id. at 854. provider’s treatment of a patient. The presence of a doctor-patient relationship was undeniably important to our determination that Rubio’s In section 74.303(e) of the Act, the Legislature mandated allegations amounted to health care liability claims. the inclusion of two express jury instructions “[i]n any action on a health care liability claim that is tried by a jury The Court attaches much significance to the Legislature’s in any court in this state.” The second of those is: alteration in 2003 of the definition of “health care liability claim.” The Act’s predecessor, the Medical Liability and A finding of negligence may not be Insurance Improvement Act, former article 4590i, defined based solely on evidence of a bad the term as result to the claimant in question, but a bad result may be considered a cause of action against a health by you, along with other evidence, care provider or physician for in determining the issue of treatment, lack of treatment, or negligence. You are the sole judges other claimed departure from of the weight, if any, to be given to accepted standards of medical care this kind of evidence. or health care or safety which proximately results in injury or Id. § 74.303(e)(2). This instruction reflects the long- death of the patient, whether the recognized principle that a physician who exercises patient’s claim or cause of action ordinary care, within his school or specialty, is not liable sounds in tort or contract. to a patient for a bad outcome. See Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). Clearly, the Act of May 30, 1977, 65th Leg., R.S., ch. 817, § instruction only makes sense where a patient or the 1.03(a)(4), 1997 Tex. Gen. Laws 2039, 2041, repealed by patient’s proxy is dissatisfied by health care services Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09 delivered by a health care provider. In the context of the 2003 Tex. Gen. Laws 847, 884 (emphasis added). In present case, in which the health care provider acted as an 2003, the Legislature replaced the word “patient” with the employer, the instruction becomes nonsensical. term “claimant.” TEX. CIV. PRAC. & REM.CODE § 74.001(13). Without regard to the abundant indicia to the contrary throughout the Act, the Court concludes that this change contemplated health care liability claims that do B. The Court’s Interpretation Is Contrary to Our not arise from the physician-patient relationship. Prior Interpretations and Attaches Undue Importance to the Alteration of the Definition of “Health Care While claimant is a new term in the definition of health Liability Claim.” care liability claim, the word was used throughout the TMLIIA before the Legislature made that change. In fact, the Legislature used the term in describing the Act’s very

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purpose: to alleviate a perceived health care crisis “in a with the rendition of health care services.” Even if the manner that will not unduly restrict a claimant’s rights question were properly before us, though, I would reach a any more than necessary to deal with the crisis.” Act of different conclusion than the Court. I would hold that a May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(13)(3), claim for safety under the Health Care Liability Act must 1977 Tex. Gen. Laws 2039, 2040, repealed by Act of arise from a breach of a health care provider’s duty to June 2, 2003, 78th Leg., R.S., ch 204, § 10.09 2003 Tex. adequately ensure a patient’s safety in providing health Gen. Laws 847, 884 The term was also used and defined care services. in section 13 of article 4590i. That section, the precursor of sections 74.351 and 74.352 of the current act, among The Court’s conclusion that a health care liability claim other things, required a claimant in a health care liability for breach of a safety standard depends entirely on the last claim to file an expert report within 180 days. Act of May antecedent doctrine, 371 S.W.3d at 182, or the notion that 1, 1995, 74th Leg., R.S., ch. 971, § 1, sec. 13.01(d), (e), “ ‘[m]odifiers should come, if possible, next to the words 1995 Tex. Gen. Laws 985, 985–986, repealed by Act of they modify.’ ” 371 S.W.3d at 184 (quoting William June 2, 2003, 78th Leg., R.S., ch 204, § 10.09, 2003 Tex. Strunk, Jr. & E.B. White, THE ELEMENTS OF STYLE Gen. Laws 847, 884. “Claimant” was defined as R. 20 (4th ed. 2000)). In the Court’s view, then, the Legislature would have had to frame the definition as “a a party who files a pleading cause of action against a health care provider or physician asserting a claim. All plaintiffs for treatment, lack of treatment, or other claimed claiming to have sustained damages departure from accepted standards of ... safety directly as the result of the bodily injury or related to health care or professional or administrative death of a single person are services directly related to health care, which proximately considered to be a single claimant. results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or Act of May 1, 1995, 74th Leg., R.S., ch. 971, § 1, sec. contract. Neither Strunk and White’s instructions nor the 13.01(d), (e), 1995 Tex. Gen Laws 985, 985–986, last antecedent doctrine are so absolute as to require such repealed by Act of June 2, 2003, 78th Leg., R.S., ch 204, § redundancy. See City of Dallas v. Stewart, 361 S.W.3d 10.09 2003 Tex. Gen. Laws 847, 884. Accordingly, even 562, 571 n. 14 (Tex.2012). Instead, we should read the though “health care liability claim” referred to injury to or word in harmony with the other provisions I have the death of a patient, the statute contemplated that others discussed, and in conjunction with the words surrounding could pursue claims under article 4590i. And what parties “safety,” which all clearly implicate claims arising from a could claim to have damages as the result of the injury or health care provider’s delivery of medical care to a death of a patient but spouses or relatives with their own patient. See City of Boerne, 111 S.W.3d at 29 (citing Cty. claims for loss of support or *198 consortium or mental of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex.1978)). anguish, or others acting in a representative capacity, such as an estate or next friend? In light of that history, it The Court’s reading of the term “safety”—“untouched by seems fairly obvious that the Legislature broadened the danger, not exposed to danger; secure from danger, harm definition of “health care liability claim” in 2003 to or loss”—is so broad that almost any claim against a harmonize the definition with its previous recognition that health care provider can now be deemed a health care parties other than patients might suffer injuries as the liability claim. If a hospital cook leaves an unlit gas result of a health care provider’s departure from accepted burner on and causes an explosion, claims for any standards in rendering health care services to a patient.1 resulting injuries might be health care liability *199 claims. If a nurse’s deranged spouse arrives at a clinic and shoots her, her claim that the facility provided inadequate security will also fall under the statute. Surely the Legislature did not intend to make professional liability II. Safety Under the Act insurers responsible for such claims in order to solve an insurance availability crisis. Although its holding that Williams has asserted a claim for breach of a health care standard is dispositive, the Court reaches out to decide an issue that isn’t even presented: whether a claim for safety under the Act must be directly related to health care. That issue isn’t III. The Court’s Holding Undermines the Balance presented because, at least in the Court’s view, Williams’s Struck by the Legislature in the Workers claim is directly related to health care. West Oaks itself Compensation Act argued that Willams’s claims “are inextricably interwoven

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I dissent also because, by forcing an employee’s IV. The Court’s Holding Undermines the Legislature’s negligence suit against his employer for on-the-job Stated Purposes injuries into the health-care-liability-claim mold, the Court significantly disrupts the delicate balance between In enacting chapter 74, the Legislature found that “the employee and employer interests the Legislature sought to number of health care liability claims [had] increased implement when it enacted the Texas Workers since 1995 inordinately[,] caus[ing] a serious public Compensation Act (TWCA). The TWCA permits an problem in availability and affordability of adequate employee to bring a negligence action against a medical professional liability insurance.” Act of June 2, nonsubscriber like West Oaks. See TEX. LAB.CODE § 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(1), (4), 2003 406.033. By making the common law defenses of Tex. Gen. Laws 847, 884. It adopted the Act to reduce the assumption of the risk, negligence of a fellow employee, frequency and decrease the *200 costs of those claims. Id. and contributory negligence unavailable to a at § 10.11(b)(1), (2). By sweeping a whole new class of nonsubscribing employer under the TWCA, id. at § claims—negligence claims of employees of health care 406.033(a), it is clear that the Legislature intended to institutions—into chapter 74, the Court increases the “penalize[ ] nonsubscribers” and make it easier for their number of health care liability claims and thwarts that employees to recover. Kroger Co. v. Keng, 23 S.W.3d purpose. Mystifyingly, the Court proclaims that its 347, 349, 352 (Tex.2000) (noting that “[t]o encourage decision is “in harmony” with the Act’s purposes because employers to obtain workers’ compensation insurance, this new class of health care claimants will be required to [the TWCA] penalizes nonsubscribers by precluding them file expert reports. 371 S.W.3d at 182–83, n. 5. To be from asserting certain common-law defenses in their sure, Williams’s claim will be dismissed in the wake of employees’ personal injury actions” and that the today’s decision—one claim will go away. But, in the “Legislature intended that an employee’s fault would future, employees in Williams’s position will be neither defeat nor diminish his or her recovery”). Under forewarned that they must provide an expert report and the Court’s holding, employees of nonsubscribing undoubtedly will do so. The upshot of the Court’s healthcare providers will encounter procedural hurdles, decision is that medical professional liability insurers will such as the Act’s notice and expert report requirements, be responsible for claims that normally would have fallen that the TWCA does not contemplate. See TEX. CIV. under a health care employer’s workers compensation or PRAC. & REM.CODE §§ 74.051, 74.351. Failure to comprehensive liability coverage. comply with these special requirements can result in harsh consequences, including dismissal of a claim with The Court has previously declined to construe provisions prejudice and assessment of attorneys fees against the of the Act in a way that would lead to absurd results. Jose plaintiff. Id. § 74.351(b). Rather than the health care Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72– provider being penalized for not subscribing to workers’ 73 (Tex.2011). It should do so here. compensation insurance, the Court’s decision increases the burden and cost of pursuing negligence claims against nonsubscribers for employees of health care institutions. This will likely discourage healthcare workers from bringing smaller claims. V. Conclusion

The Court’s conclusion that Williams’s claim against his More importantly, the Act places strict limits on damages employer for providing inadequate training and an unsafe that may be recovered from health care providers. TEX. workplace is a health care liability claim is not only CIV. PRAC. & REM CODE §§ 74.301–.303. By counterintuitive, it is inconsistent with the Act’s express conferring the benefit of the Act’s statutory damages cap language and its underlying purposes. Furthermore, it on nonsubscribing health care providers, the Court gives alters the contours of employees’ claims against health care provider nonsubscribers a benefit that is at nonsubscribing health care providers established in the odds with the measures the Legislature implemented to Workers Compensation Act. For these reasons, I penalize employers who opt not to participate in the respectfully dissent. workers compensation system. “In enacting section 406.033 and its predecessors, the Legislature intended to delineate explicitly the structure of an employee’s personal-injury action against his or her nonsubscribing Parallel Citations employer.” Kroger v. Keng, 23 S.W.3d at 350–351. Today’s decision redraws that delineation. 55 Tex. Sup. Ct. J. 1033

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Footnotes 1 The HCLC definition was amended after Williams’ cause of action accrued, and the prior law is applicable to his claims. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, amended by Act of July 19, 2011, 82nd Leg., 1st C.S., ch. 7, § 4.02, 2011 Tex. Gen. Laws 5445 (amending section 74.001(a), adding subsection (a)(12)(A)(viii) (including a health care collaborative as a “health care provider”) and making nonsubstantive changes). 2 The Legislature also broadened the subject-matter scope of the activities constituting HCLCs through the addition to the definition of “professional or administrative services directly related to health care.” Id. § 74.001(a)(24). 3 This conclusion is in harmony with the Legislature’s stated intent to “reduce [the] excessive frequency ... of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical malpractice systems....” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884. 4 “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). 5 As we discussed in Diversicare, a number of other states also recognize that providing supervision and a safe environment at a health care facility are matters of professional health care judgment. 185 S.W.3d at 852–54 (citing Dorris v. Detroit Osteopathic Hosp., 460 Mich. 26, 594 N.W.2d 455, 466 (1999) (concluding that claims for assault in a psychiatric hospital implicated medical or health care under Michigan’s medical malpractice statute and noting that “[t]he ordinary layman does not know the type of supervision or monitoring that is required for psychiatric patients in a psychiatric ward.”); Smith v. Four Corners Mental Health Ctr., 70 P.3d 904, 914 (Utah 2003) (holding that an assaulted child’s lawsuit against the outpatient mental health care provider was a health care malpractice claim because the plaintiff’s “allegations arise out of the fact that [a health care provider] provided mental health services directly to him....”)); see also D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 229 n. 17 (Alaska 2000) (“[I]n so far as [plaintiff] intends to argue issues that involve specialized medical decisions—such as the appropriate level of physical restraints or medication—she can do so only through expert testimony.”); Bell v. Sharp Cabrillo Hosp., 212 Cal.App.3d 1034, 260 Cal.Rptr. 886, 896 (1989) (“[T]he competent selection and review of medical staff is precisely the type of professional service a hospital is licensed and expected to provide, for it is in the business of providing medical care to patients and protecting them from an unreasonable risk of harm while receiving medical treatment.... [T]he competent performance of this responsibility is ‘inextricably interwoven’ with delivering competent quality medical care to hospital patients.”). 6 Texas appellate courts construing the TMLA have diverged on whether “directly related” applies to safety claims or only to other claims in the definition’s list of departures from accepted standards. Compare St. David’s Healthcare P’ship, L.P. v. Esparza, 315 S.W.3d 601, 604 (Tex.App.—Austin 2010), rev’d on other grounds, 348 S.W.3d 904 (Tex.2011) (“directly related to health care” modifies “safety”); Appell v. Muguerza, 329 S.W.3d 104, 115 (Tex.App.—Houston [14th Dist.] 2010, pet. filed) (same); Dual D Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 489–90 (Tex.App.—Dallas 2009, no pet.) (same); Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 284 (Tex.App.—Texarkana 2008), rev’d on other grounds, 344 S.W.3d 392 (Tex.2011) (same); Harris Methodist Ft. Worth v. Ollie, 270 S.W.3d 720, 723 (Tex.App.—Fort Worth 2008), rev’d on other grounds, 342 S.W.3d 525 (Tex.2011) (same); Christus Health v. Beal, 240 S.W.3d 282, 289 (Tex.App.—Houston [1st Dist.] 2007, no pet.) (same); Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 774–75 (Tex.App.—Corpus Christi 2006, pet. denied) (same), with Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 S.W.3d 349, 354–55 (Tex.App.—San Antonio 2008, no pet.) (safety claim need not be directly related to health care); Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 328 (Tex.App.— San Antonio 2006, pet. denied) (“[A] claim may be a ‘health care liability claim’ under the safety definition even if it does not ‘directly relate[ ] to healthcare.’ ”). 7 We explained in Diversicare that the claimant’s allegations of deficient monitoring and training are distinct from hypothetical claims for injuries arising out of an intruder assaulting a claimant due to an unlocked window or a claimant falling from a rickety staircase. 185 S.W.3d at 854. These examples, however, did not concern our analysis of HCLCs that were alleged departures from accepted standards of safety. They were instead provided as examples of claims that would be separable from health care under the health care prong of the HCLC definition. Id. (construing the TMLIIA). Diversicare ’s only holding as to the scope of claims based on alleged departures from accepted standards of safety was that inclusion of the term safety in the HCLC definition expanded the reach of the statute and that it was broad enough to include the claimants’ claim in that case. Marks v. St. Luke’s Episcopal Hosp., No. 07–0783, 52 Tex.Sup.Ct.J. 1184, 2009 WL 2667801, 2009 Lexis 636, at *39 (Tex. August 28, 2009) (Wainwright, J., dissenting), opinion withdrawn and substituted on rehearing, 319 S.W.3d 658 (Tex.2010). 8 Justices Hecht and Wainwright joined Justice Johnson’s concurrence in Marks, except for the discussion of “safety.” 319 S.W.3d at 667.

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9 Articles 4671 and 5525 were both repealed prior to the 2003 amendments as part of the Legislature’s 1985 adoption of the Texas Civil Practice and Remedies Code. TEX.REV.CIV. STAT. arts. 4671 and 5525, repealed by Act of June 16, 1985, 69th Leg., R.S., ch. 959, § 9(1), 1985 Tex. Gen. Laws 3242, 3322. 10 There is a slight variance between the definitions for “health care” and “medical care.” The “health care” definition features the word “medical” between the words “patient’s” and “care.” The “medical care” definition does not feature this word. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(10), (a)(19). 11 The scope of claims for “professional or administrative services directly related to health care” in the HCLC definition is not at issue in this case. 1 The Court also makes much of the Act’s definition of “representative,” a term used in the Act’s medical records disclosure provision. TEX. CIV. PRAC. & REM.CODE §§ 74.001(a)(25), .052. “Representative” is defined as the “agent of the patient or claimant.” The Court concludes this “indicat[es] that patient and claimant do not necessarily refer to the same category of persons.” I agree, but my conclusion that “claimant” refers to parties with claims derived from a health care provider’s breach of a duty toward a particular patient, such as guardians, executors, survivors, and next friends, is far more consistent with other provisions of the Act than the Court’s.

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timely and treat her mother’s urinary tract infection, leading eventually to her mother’s death. 2014 WL 1691362

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND In May 2013, Flores served the Home with the report and SIGNING OF OPINIONS. curriculum vitae of James E. Moulsdale, M.D., F.A.C.S.2 MEMORANDUM OPINION The Home timely objected to the report. After Flores Court of Appeals of Texas, responded, the trial court heard the Home’s objections in Amarillo. September 2013. The trial court found the report deficient, and granted a 30–day extension to address the W.B.M. MANAGEMENT COMPANY d/b/a identified deficiencies. Vivians Nursing Home, Appellant v. The amended report was filed in late October 2013. The Mary FLORES, Appellee. Home again filed objections and moved to dismiss Flores’ claims pursuant to section 74.351(b) of the Civil Practice No. 07–14–00008–CV. | April 25, 2014. & Remedies Code. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (West 2013). The trial court heard On Appeal from the 108th District Court, Potter County, argument at a hearing in December 2013, overruled the Texas, Trial Court No. 101179–E, Honorable Douglas objections to the amended report and denied the Home’s Woodburn, Presiding. motion to dismiss. The Home has brought this interlocutory appeal. Attorneys and Law Firms

Arlene C. Matthews, W.C. Bratcher, for W.B.M. Management Company. Analysis Lorren L. Lucero, for Mary Flores. Through one issue, the Home challenges the sufficiency Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. of Moulsdale’s amended expert report, contending the report was “impermissibly speculative and conclusory” in its attempt to describe the “causal relationship between the alleged breach of the standard of care by [the Home] and the death of Dionisia Dominguez Gomez.” The MEMORANDUM OPINION Home’s issue also contends the amended report inadequately described the applicable standard of care and JAMES T. CAMPBELL, Justice. its alleged breach.

*1 This is an interlocutory appeal in a health care liability We review a trial court’s decision on a motion to dismiss suit.1 Appellant W.B.M. Management Company D/B/A a health care liability claim for abuse of discretion. Am. Vivians Nursing Home (“the Home”) appeals the trial Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 court’s order overruling its objections to an expert’s S.W.3d 873, 875 (Tex.2001); Gray v. CHCA Bayshore report and denying its motion to dismiss the suit. We will L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] reverse the trial court’s order and remand the cause to the 2006, no pet.). A trial court abuses its discretion if it acts trial court for dismissal. in an arbitrary or unreasonable manner without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.2010). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Background Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion Appellee Mary Flores filed suit against the Home after the merely because it decides a discretionary matter death of her mother Dionisia Dominguez Gomez, alleging differently than an appellate court would in a similar the Home was negligent in its care and treatment of her circumstance. Harris Cnty. Hosp. Dist. v. Garrett, 232 mother. Flores’ amended pleadings alleged in particular S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no the Home’s employees negligently failed to diagnose pet.). However, an incorrect construction of the law or a

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misapplication of the law to undisputed facts is an abuse In Moulsdale’s October 2013 report, he stated: of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding) (“A trial court has no I have been asked to review the care rendered to the ‘discretion’ in determining what the law is or applying the above-captioned individual in January, 2011. She was, law to the facts”); see Perry Homes v. Cull, 258 S.W.3d at that time, a resident of Vivians Nursing Home. 580, 598 n. 102 (Tex.2008) (quoting Walker ). Historically, the patient had had a CVA in the remote past, leaving her extremely debilitated and unable to *2 A health care liability claimant must timely provide care for herself, necessitating nursing home placement. each defendant health care provider with an expert report. I reviewed the records from Vivian’s Nursing Home for See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351; the period of August, 2010 through January, 2011. On Gray, 189 S.W.3d at 858. The expert report must provide January 10, 2011, the patient was found to have a fair summary of the expert’s opinions as of the date of increasing mental confusion and a probable urinary the report regarding the applicable standards of care, the tract infection. She was subsequently taken by manner in which the care rendered by the health care ambulance to Baptist St. Anthony Hospital in Amarillo, provider failed to meet the standards, and the causal Texas, where she was found to have a severe urinary relationship between that failure and the injury, harm, or tract infection and probable urosepsis. She was treated damages claimed. TEX. CIV. PRAC. & REM.CODE aggressively and appeared to recover but was later sent ANN. § 74.351(r)(6). to hospice care and expired there.

If a defendant files a motion challenging the adequacy of *3 The standard of care applicable to this type of the claimant’s expert report, the trial court shall grant the patient is careful monitoring, especially since she was motion to dismiss only if it appears to the court, after a unable to communicate any problems she might be hearing, that the report does not represent an objective experiencing. Careful monitoring would include taking good faith effort to comply with the definition of an her vital signs (i.e. blood pressure, pulse rate, body expert report. TEX. CIV. PRAC. & REM.CODE ANN. § temperature, and respiratory rate) at a minimum of 74.351(l). Making that inquiry, the court considers only once per day in order to detect any changes in her the information contained within the four corners of the condition. Especially in a debilitated patient, it is report. Palacios, 46 S.W.3d at 878. Although the claimant essential to monitor vital signs in order to detect need not marshal all her proof in the report, the report changes in the patient’s condition, such as urinary tract must include the expert’s opinion on each of the elements infection, since the patient is not able to alert the staff identified in the statute. Palacios, 46 S.W.3d at 878–79; on his/her own. Gray, 189 S.W.3d at 859. In reviewing the nursing home records, I found notes To constitute a good faith effort, in setting out the stating that Ms. Gomez’s vital signs should be taken expert’s opinions on the standard of care, the breach of only once per week. The nursing home records further the standard and the causative relationship between the indicate that Ms. Gomez’s vital signs were, in fact, only breach and the injury, harm or damages claimed, the taken once per week. Had her vital signs been taken report must provide enough information to fulfill two more frequently, at a minimum of once per day, it is purposes. Palacios, 46 S.W.3d at 879. First, the report much more likely that this condition would have been must inform the defendant of the specific conduct the found earlier and might have been treated in the claimant has called into question. Id. Second, the report nursing home without the necessity of hospitalization. must provide a basis for the trial court to conclude that the More likely than not, the vital signs would have shown claim has merit. Id. A report that merely states the an increase in body temperature, an increased heart expert’s conclusions does not fulfill these two purposes. rate, an increased respiratory rate, a decrease in blood Id. “Rather, the expert must explain the basis of his pressure, or any combination of the above, indicating a statements to link his conclusions to the facts.” Bowie, 79 change in the patient’s medical condition which S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, required further investigation. Because of the fact that 890 (Tex.1999)). But a claimant need not present her urinary infection was not discovered in a timely evidence in the report as if she were actually litigating the fashion, she required hospitalization and treatment in merits. Palacios, 46 S.W.3d at 879. Furthermore, the an intensive care unit. Because this is a life threatening report may be informal in that the information in the illness, delay in diagnosis is a serious breach of the report need not meet the same requirements as the standard of care. evidence offered in a summary-judgment proceeding or I believe that this claim does have merit because of the trial. Id. delay in the diagnosis of the urinary tract infection. In my training and experience as a urologist, it is more

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likely than not that an undiagnosed urinary tract faith effort toward compliance with the statutory infection might develop into urosepsis, especially in a requirements. debilitated patient who is unable to communicate any symptoms or changes in their medical condition. I Reiterated, an expert report that merely states the expert’s believe that this was the case in the care rendered to conclusions does not provide enough information to fulfill Ms. Gomez. Furthermore, it is documented in the death the purposes of the report. Bowie, 79 S.W.3d at 52 (citing certificate that the cause of death was sepsis secondary Palacios, 46 S.W.3d at 879). The report must explain the to urinary tract infection.3 basis of the expert’s statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. Otherwise, the report The Home’s objections asserted that the amended report neither informs the defendant of the specific conduct the failed to adequately address the standard of care claimant calls into question nor provides a basis for the applicable to the Home and how the standard of care was trial court to conclude the claim has merit. Id. allegedly breached by the Home or its employees. The Home also asserted the amended report failed to address A case Flores cites is helpful to demonstrate the the causal relationship between the alleged breach and the inadequacies of Moulsdale’s report. Mosely v. Mundine, injury, harm or damages claimed by Flores, and asserted 249 S.W.3d 775 (Tex.App.-Dallas 2008, no pet.), dealt the amended report contained only global and conclusory with a claim a physician failed to detect an early stage of statements concerning the causal connection. cancer. The physician moved to dismiss the claim, asserting the expert report expressed only conclusory Standard of care is defined by what an ordinarily prudent statements as to the causative relationship between the health care provider or physician would have done under failure to detect and the harm to the patient. Id. at 780–81. the same or similar circumstances. Palacios, 46 S.W.3d at The expert report there, as relevant to causation, stated: 880; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex.App.-Houston [1st Dist.] 2003, pet. In the case of Mrs. Mundine, Dr. Mosley [sic] failed to denied). Whether a defendant breached a duty to a patient identify a 1cm nodule on the chest x-ray during the ER cannot be determined absent specific information about visit in 5/2004. Approximately 21 months later this what the defendant should have done differently. nodule had developed into a 6cm mass extending into Palacios, 46 S.W.3d at 880. the lung tissue with undetermined metastasis. Mrs. Mundine has a poor prognosis given the extent of the *4 According to Moulsdale’s report, the applicable tumor growth and required lung resection, standard of care for treatment of a debilitated patient like chemotherapy [,] and radiation. Had this cancer been Ms. Gomez required that the Home monitor her carefully, detected in 2004[,] the likelihood of survival for Mrs. taking her vital signs, defined as blood pressure, pulse Mundine would have been significantly greater with a rate, body temperature and respiratory rate, at least once much less invasive treatment protocol. Dr. Mosley [sic] per day to detect changes in her condition. Addressing the breached the standard of care by failing to detect the Home’s breach of the standard of care, Moulsdale’s report early stage of the cancer in May 2004. states that his review of the nursing home records reveals notes that Ms. Gomez’s vital signs were to be taken only *5 * * * once per week and records further indicating that her vital signs were indeed taken once per week. .... Dr. Mosely failed to identify the early cancer nodule in Mrs. Mundine in 2004. This failure resulted in Moulsdale further explains that because the vital signs delayed diagnosis of lung cancer, required invasive and were not taken daily, Ms. Gomez’s urinary tract infection aggressive treatment and in all medically probability went undetected long enough to develop into sepsis, a significant reduction in the life expectancy of Mrs. life-threatening condition requiring hospitalization. He Mundine. states “[m]ore likely than not, the vital signs would have 249 S.W.3d at 780. shown an increase in body temperature, an increased heart rate, an increased respiratory rate, a decrease in blood The appeals court affirmed the trial court’s denial of the pressure, or any combination of the above, indicating a physician’s motion. It held the trial court could have change in the patient’s medical condition which required concluded the report “established a causal relationship” further investigation.” between the physician’s departure from the standard of care and the patient’s injury. In so concluding, the court Our discussion will focus on causation because we readily found the expert’s report linked the physician’s failure to conclude that in its discussion of that element, identify the one-centimeter nodule in 2004 to the patient’s Moulsdale’s amended report does not constitute a good © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014) Med & Med GD (CCH) P 304,923

injury from the developed six-centimeter mass some 21 next four days, her condition deteriorated and she was months later. Id. at 781. transferred to another facility where she died a few days later. The expert report addressed what it described as The report in Mosely gave the trial court a factual basis to breaches of the standard of care by a physician during her understand the change in the patient’s condition between four-day hospital stay. Reversing the trial court’s denial the breach of the standard, occurring on a known occasion of challenges to the expert report, the appellate court held on which the patient had a one-centimeter nodule, and the the report was conclusory as to causation. The court later condition when the nodule had become a six- summarized the expert report’s discussion of causation as centimeter mass. 249 S.W.3d at 780. By contrast with that follows: report found adequate as to causation, Moulsdale’s report contains the facts that on January 10, 2011, Ms. Gomez, a [Expert’s] report explains that the standard of care debilitated patient, “was found to have increasing mental required [the physician] to examine and assess [the confusion and a probable urinary tract infection,” and was patient] on a daily basis, and that daily chest x-rays subsequently taken by ambulance to the hospital, where should have been performed. In addition, the report she was diagnosed with a severe urinary tract infection states that if [the physician] had examined [the and probable urosepsis. The report speaks in conclusory patient’s] lungs, then “more likely than not” she would fashion of a “delay in diagnosis,” but contains no facts on have found that [the patient’s] pneumonia and which one may base a conclusion that there occurred a congestive heart failure had worsened, and those delay in diagnosing her infection or that any such delay conditions “could have been effectively treated more was attributable to a failure of the Home to check her vital likely than not.” The report also concludes that if [the signs daily. The report’s statement that “more likely than physician] had performed “proper assessment and not, the vital signs would have shown an increase in body treatment” on January 26, 27, or 28, “then more likely temperature, an increased heart rate, an increased than not, [the patient] could have been successfully respiratory rate, a decrease in blood pressure, or any treated and would not have died when she did.” combination of the above, indicating a change in the [Expert] further concludes in the report that patient’s medical condition which required further [physician’s] negligence proximately caused [patient’s] investigation”4 is not factual, but merely a more detailed death, and if [physician] had not been negligent, statement of Moulsdale’s opinion. The report contains no [patient] “would not have died when she did.” factual statement describing when, relative to January 10, the Home’s employees last checked Ms. Gomez’s vital 259 S.W.3d at 312. The court found the expert’s signs. Nor does it contain statements of what any of Ms. statements conclusory because they were not linked to the Gomez’s vital signs were at any point in time, before, facts and did not explain how the physician’s alleged during or after her diagnosis, or how any of her vital signs negligence caused the patient’s death. Id. at 313 (citing, had changed from any point in time to another. inter alia, Gonzales v. Graves, No. 07–03–00268–CV, 2004 Tex.App. LEXIS 2403, 2004 WL 510898 With regard to her hospital care, Moulsdale’s report adds (Tex.App.-Amarillo Mar. 16, 2004, no pet.) (mem.op.)). only the facts that Ms. Gomez was treated aggressively and appeared to recover but later died under hospice care. Moulsdale’s report contains even fewer facts than the The report concludes with the statement that, according to report in Craig. 259 S.W.3d at 312. That report at least her death certificate, the cause of Ms. Gomez’s death was described Mrs. Dearbonne’s condition on her admission “sepsis secondary to urinary tract infection.” But the to the hospital, giving the trial court some means to report contains nothing to link that fact with his understand the factual consequences of a failure to order conclusion the Home’s failure to check her vital signs daily x-rays. See Craig, 259 S.W.3d at 313–14 (Gaultney, daily in the days before her hospitalization led to her J., dissenting). As noted, Moulsdale’s report gives no septic condition or her death some two weeks later. And facts regarding Ms. Gomez’s vital signs on any day, we cannot engage in inferences to supply information not providing no basis for evaluation of the effects of a failure present within the four corners of the report. See Bowie, to check her vital signs daily. See also Foster v. 79 S.W.3d at 53. Richardson, 303 S.W.3d 833, 842 (Tex.App.-Fort Worth 2009, no pet.) (holding expert report “does not explain *6 Moulsdale’s report may also be compared with the beyond mere conjecture” how condition of patient’s ankle expert report considered in Craig v. Dearbonne, 259 worsened from June to July so that physician’s failure to S.W.3d 308 (Tex.App.-Beaumont 2008, no pet.). Mrs. give correct diagnosis in June caused the requirement of Dearbonne was admitted to a hospital on January 25 with further treatment in July). admitting diagnoses that included “respiratory distress/shortness of breath” and pneumonia. Over the

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Moulsdale’s report expresses his opinion that the Home’s without reference to guiding rules or principles and did failure to take Ms. Gomez’s vital signs at least daily not, therefore, misapply the law to the undisputed facts of caused a failure to find and timely treat her urinary tract this case, or otherwise abuse its discretion, I respectfully infection. It further expresses his opinion that because the dissent. infection was left untreated, it developed into sepsis, a life-threatening condition, ultimately leading to her death. As the majority opinion correctly sets out, this is an But the report does not explain the basis of Moulsdale’s interlocutory appeal in a health care liability suit, wherein statements to link his conclusions to the facts, Bowie, 79 Appellant, W.B.M. Management Company, d/b/a Vivians S.W.3d at 52, with the result that it also does not provide Nursing Home, seeks to overturn the decision of the trial a basis for the trial court to conclude the claim has merit. court to deny Appellant’s motion to dismiss the claims of Id. Ultimately, it states only Moulsdale’s opinions on Appellee, Mary Flores, pursuant to section 74.351(l). causation. Accordingly, the report does not set forth a TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l) “good faith effort” to provide a fair summary of the (West 2012). The majority concludes the trial court erred causation element as described in the statute. When it because the report of Dr. James E. Moulsdale does not overruled the Home’s objections to the report’s causation constitute an objective good faith effort to describe a element discussion and denied its motion to dismiss, the causal relationship between Appellant’s failure to follow trial court misapplied the “good faith effort” standard. an appropriate standard of medical care and Appellee’s Our conclusion the report is inadequate in its discussion claimed damages. Because the majority accurately sets of causation makes it unnecessary for us to consider the forth the law applicable to a case such as this, I will not adequacy of its discussion of the standard of care and restate the principles of law governing an appellate breach. court’s analysis of the sufficiency of an expert report as statutorily defined. Id. at § 74.351(r)(6).

Reduced to its essence, Appellee claims Appellant’s employees failed to provide medical care within an Conclusion applicable standard of care, and their failure to do so resulted in the death of her mother, Dionisia Dominguez *7 We sustain the Home’s sole issue. We reverse the trial Gomez. In support of her claim, Appellee provided the court’s order and remand the cause to the trial court for expert report of Dr. James E. Moulsdale,1 which opines, in the limited purposes of determining the Home’s part, as follows: reasonably incurred attorney’s fees and costs and entry of an order dismissing with prejudice Flores’ claims against the Home. TEX. CIV. PRAC. & REM.CODE ANN. § In reviewing the nursing home records, I found notes 74.351(b). stating that Ms. Gomez’s vital signs should be taken only once per week. The nursing home records further indicate that Ms. Gomez’s vital signs were, in fact, only taken once per week. Had her vital signs been taken PIRTLE, J., dissenting. more frequently, at a minimum of once per day, it is much more likely that this condition would have been found earlier and might have been treated in the nursing home without the necessity of hospitalization. More likely than not, the vital signs would have shown DISSENTING OPINION an increase in body temperature, an increased heart rate, an increased respiratory rate, a decrease in blood PATRICK A. PIRTLE, Justice. pressure, or any combination of the above, indicating a *7 Respectfully disagreeing with my colleagues change in the patient’s medical condition which concerning the application of the law to the undisputed required further investigation. Because of the fact that facts of this case, I dissent. By its opinion, the majority her urinary infection was not discovered in a timely finds the trial court misapplied the law concerning the fashion, she required hospitalization and treatment in application of the “objective good faith” standard to the an intensive care unit. Because this is a life threatening evaluation of an expert report under section 74.351(l) of illness, delay in diagnosis is a serious breach of the the Texas Civil Practices and Remedies Code, resulting in standard of care. a finding of abuse of discretion and the concomitant judgment to reverse and remand. Because I find the trial *8 I believe that this claim does have merit because court did not act in an arbitrary or unreasonable manner of the delay in the diagnosis of the urinary tract

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infection. In my training and experience as a between the failure to closely monitor any change in her urologist, it is more likely than not that an condition and harm suffered as a result of her declining undiagnosed urinary tract infection might develop medical health. into urosepsis, especially in a debilitated patient who is unable to communicate any symptoms or changes *9 Drawing insight from Mosely v. Mundine, 249 S.W.3d in their medical condition. I believe that this was the 775 (Tex.App.-Dallas 2008, no pet.), the majority opines case in the care rendered to Ms. Gomez. that the expert report in that case was found to be Furthermore, it is documented in the death certificate sufficient because it gave the trial court a “factual basis to that the cause of death was sepsis secondary to understand the change in the patient’s condition”—in that urinary tract infection. case a change from a 1 cm nodule to a 6 cm mass over a In the context of a claim based on a failure to timely 21 month period. Here, Dr. Moulsdale’s report is really no diagnose Ms. Gomez’s medical condition, the report (1) different in that it places the emphasis on the differential provides a summary of the expert’s opinions regarding diagnosis of Ms. Gomez’s condition from day to day (as applicable standards of care, (2) relates the manner in opposed to from week to week). The majority criticizes which the care rendered failed to meet those standards, Dr. Moulsdale’s report for failing to contain a statement and (3) opines as to the causal connection between that concerning Ms. Gomez’s vital signs at any specific point failure and the injury, harm, or damages claimed. As in time. In reaching this conclusion the majority such, the report meets the statutory purpose of an expert completely overlooks the fact that it doesn’t matter what report because it (1) informs Appellant of the specific her vital signs were at any particular moment because the conduct Appellee has called into question and (2) medical significance is the change, not the difference. Dr. provides a basis for the trial court to conclude the claim Moulsdale’s report indicates that it was the daily change has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. that would have, in all probability, alerted the Appellants Palacios, 46 S.W.3d 873, 879 (Tex.2001). to the imminent need for more aggressive treatment of her failing condition. Appellant contends, and the majority agrees, the expert report was “impermissibly speculative and conclusory” in In another misinterpretation of Appellee’s cause of action its attempt to describe, within the four corners of the and the purpose of an expert report, the majority opines report, the “causal relationship between the alleged breach that the “report contains nothing to link [Dr. Moulsdale’s ... and the death of [Ms. Gomez].” The majority then opinion that Ms. Gomez’s death was ‘sepsis secondary to analyzes relevant case law to reach the conclusion that urinary tract infection’] with his conclusion the this particular report does not “link” Dr. Moulsdale’s [Appellant’s] failure to check her vital signs daily in the conclusions to the facts of this case. days before her hospitalization led to her septic condition or her death some two weeks later.” (Emphasis in the So, just what are the “facts” of this case? From the four original.) Appellee does not contend that the failure to corners of the report, we know that Ms. Gomez was timely diagnose led to Ms. Gomez’s septic condition. “extremely debilitated,” that she was “unable to care for Rather, Appellee contends her worsening septic condition herself,” that Appellant was aware of the fact that she had (which would have been reflected in her daily vital signs a “probable urinary tract infection,” and that in light of and could have been treated earlier but for the delay in that knowledge, Appellant chose to take her vital signs diagnosing Ms. Gomez’s infection) led to injury, harm, or only once per week. We also know the standard of care other damages because it was not timely diagnosed and applicable to this type of patient called for “careful treated. Simply put, Dr. Moulsdale’s report establishes monitoring,” which would specifically include taking her that Ms. Gomez was harmed by Appellant’s breach of the vital signs “a minimum of once per day,” and that the appropriate standard of care. purpose of that frequency of monitoring was “to detect any changes in her condition.” We also know this Contrary to the conclusion reached by the majority, I find monitoring was “especially” called for in a debilitated the facts of this case clearly provide a basis upon which patient, like Ms. Gomez, because the patient was not the trial judge could reasonably have concluded that there otherwise able to alert the staff on her own. Finally, we was merit to the Appellee’s claim. Accordingly, I would know that within reasonable medical probability, “had her affirm the decision of the trial court. vital signs been taken more frequently ... it was much more likely that [her] condition would have been found earlier” and she might not have required hospitalization. The fact that more careful monitoring would have alerted Parallel Citations the medical care providers to provide earlier, more aggressive treatment, establishes a causal relationship Med & Med GD (CCH) P 304,923

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Footnotes 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2012).

2 Dr. Moulsdale is a board-certified urologist who has practiced in the field for over 34 years. He holds accreditation in a number of urological fields, and has published several articles. The Home does not challenge Moulsdale’s qualifications on appeal. 3 The date of Ms. Gomez’s death is not stated in Moulsdale’s report, but Flores’ brief states she died on January 24, 2011.

4 The statement is one of those added by the amended report.

1 Dr. Moulsdale is a board-certified urologist who has practiced in the field of urology for over 34 years. Dr. Moulsdale’s qualifications as an expert in this field are not challenged.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Wood v. Tice, 988 S.W.2d 829 (1999)

satisfied the statute with an expert’s deposition transcript. Alternatively, Wood maintains the trial court abused its 988 S.W.2d 829 Court of Appeals of Texas, discretion by denying him an extension of time to file an San Antonio. expert report. Finding no error, we affirm.

Neale WOOD, Appellant, v. Diane TICE, D.D.S.; Barry Solomon, D.D.S.; and Background Dental Centers of America, L.L.C., also doing business as Windsor Dental Center, Appellees. On November 1, 1996, Wood sued Diane Tice, Andre Smith, Barry Solomon, and Dental Centers of America, No. 04–98–00392–CV. | Feb. 17, 1999. L.L.C. for negligent treatment of a chipped tooth. In Patient sued dentists and dental clinic for malpractice. March 1997, Wood took Dr. Smith’s deposition, which The 57th Judicial District Court, Bexar County, Peter was transcribed and distributed to Drs. Tice, Smith, and Michael Curry, J., dismissed action, and patient appealed. Solomon on April 17, 1997. Dental Centers did not The Court of Appeals, Green, J., held that: (1) patient’s receive a copy of the deposition. failure to timely provide dental clinic with copy of deposition warranted dismissal of clinic; (2) deposition In January 1998, the defendants moved to dismiss the testimony of one of dentists being sued failed to satisfy case based on Wood’s failure to provide an expert’s the Medical Liability Act’s requirement of an expert report. See TEX.REV.CIV. STAT. ANN. art. 4590i, § report; (3) finding that patient was not entitled to 30–day 13.01(d–e) (Vernon Supp.1998) (“Medical Liability grace period in which to file expert report was supported Act”). In response, Wood filed a motion for extension of by evidence; and (4) patient was not entitled to new trial time to file an expert report, which included an affidavit in order to file expert report. indicating his belief that Dr. Smith’s deposition satisfied the statute. On January 16, the trial court orally granted a Affirmed. dismissal with prejudice. Its order, however, was not signed until March 10. *829 From the 57th Judicial District Court, Bexar County, Texas Trial *830 Court No. 98–CI–03977 Honorable On April 23, Wood moved for a new trial, arguing he did Peter Michael Curry, Judge Presiding.1 not learn about the signed order until April 15. See TEX.R.APP. P. 304a(4–5). He also urged the court to Attorneys and Law Firms grant him an extension of time to file an expert report. The trial court denied the motion for new trial, finding it Randy Gathany, David W. Rogers, Law Offices of Dave had no jurisdiction. The court also denied Wood’s motion Rogers, Inc., San Antonio, for Appellant. to reconsider.2 Despite Wood’s lack of notice, he timely perfected this appeal. Todd A. Prins, Stanley E. Faye, Edward C. Mainz, Jr., Robert B. Biechlin, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, for Appellee.

Before CATHERINE STONE, Justice, PAUL W. Compliance with the Medical Liability Act GREEN, Justice, KAREN ANGELINI, Justice. Wood claims he satisfied the Medical Liability Act with a copy of Dr. Smith’s deposition. In contrast, the defendants contend the deposition is too “generalized and speculative” to satisfy the statute’s requirement of an expert report. We agree with the defendants. OPINION We review the trial court’s dismissal order with the abuse PAUL W. GREEN, Justice. of discretion standard. See Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.—San Antonio Neale Wood appeals an order dismissing his suit for 1996, no writ). In applying this standard, we defer to the failing to file an expert report under the Medical Liability trial court’s factual determinations but review questions and Insurance Improvement Act. Wood contends he of law de novo. Id.; see also Johnson v. City of Fort © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Wood v. Tice, 988 S.W.2d 829 (1999)

Worth, 774 S.W.2d 653, 656 (Tex.1989) (describing Q. So when a patient comes in with any type of a statutory construction as question of law). complaint, you should take an x-ray, no matter what? [1] A. Yes. The legislature enacted the Medical Liability Act to curtail frivolous claims against physicians and other health care providers. Horsley–Layman v. Angeles, 968 Q. Okay. And would it be below the minimum S.W.2d 533, 537 (Tex.App.—Texarkana 1998, no pet.). accepted standard of care to fail to take that x-ray? To that end, section 13.01 requires a plaintiff to provide each defendant with one or more expert reports relating to A. Yes. liability and causation. See TEX.REV.CIV. STAT. ANN. ... art. 4590i, § 13.01(i–j) (Vernon Supp.1998); HOUSE COMM. ON CIVIL PRACTICES, BILL ANALYSIS, Q. If it turns out that there was an x-ray that was Tex. H.B. 971, 74th Leg., R.S. (1995). The expert report taken, and for some reason was not shown in here, must be “furnish[ed],” together with a curriculum vitae, and that this x-ray appeared somewhere in the future no later than 180 days after suit is filed. TEX.REV.CIV. and it showed that there had been an infection in it, STAT. ANN. art. 4590i, § 13.01(d) (Vernon Supp.1998). would it have been—infection in Tooth No. 12, If the plaintiff fails to timely provide the report, the trial would it have been below the minimum standard of court “shall, on *831 the motion of the affected physician care to put this miracle mix on there anyway? ... or health care provider, enter an order” dismissing the suit with prejudice. Id. § 13.01(e).3 A. Yes, sir. [2] The statute defines “expert report” as a “written report The deposition also includes the following information by an expert that provides a fair summary of the expert’s about Dr. Tice’s potential liability: opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered Q. Would you, going back to the reference to the by the physician or health care provider failed to meet the reasonably prudent dentist, would you consider that standards, and the causal relationship between that failure it would be below a minimum standard of care for a and the injury, harm, or damages claimed.” Id. § dentist to start a root canal that soon after the 13.01(r)(6). The report must specifically refer to the procedures that are described for November 5th of defendant and discuss how that defendant breached the 1994? applicable standard of care. See Horsley–Layman, 968 S.W.2d at 535; cf. TEX.REV.CIV. STAT. ANN. art. ... 4590i, § 13.01(l ) (Vernon Supp.1998) (requiring good faith effort to comply with the definition of expert report). A. I don’t think any reasonable and prudent dentist would. [3] Wood filed suit on November 1, 1996. His expert’s report was due April 30, 1997. On April 17, the individual At the dismissal hearing, Wood claimed the following defendants received copies of Dr. Smith’s deposition, but excerpt discussed Dr. Solomon’s liability: Wood neither provided Dental Centers with a copy nor did he indicate he would rely on the deposition as an Q. When you—so what type of guidelines were expert report. Because Dental Centers is a health care established with them for the means whereby you did provider entitled to receive a report, the trial court did not various procedures? abuse its discretion in dismissing Wood’s claim against that defendant. See TEX.REV.CIV. STAT. ANN. art. A. There were really no guidelines except for self- 4590i, § 1.03(a)(3) (Vernon Supp.1998) (defining health imposed guidelines. care provider as a professional association providing Q. So if a dentist chose to on an individual basis, was dental services); see also id. § 13.01(d–e). there anybody overseeing that dentist [sic]—the [4] quality of that dentist’s work? To determine whether the trial court properly dismissed the remaining defendants, we must evaluate whether Dr. A. No, sir. Smith’s deposition satisfies the definition of an “expert report.” At the dismissal hearing, Wood argued the The deposition testimony fails to mention the defendants following excerpt satisfied the definition by establishing by name, fails to specify how *832 the defendants the liability of Dr. Tice: breached the standard of care, and fails to demonstrate causation and damages. Furthermore, there is no © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Wood v. Tice, 988 S.W.2d 829 (1999)

indication the deposition included a copy of Dr. Smith’s Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 curriculum vitae. Therefore, as a matter of law, Dr. S.W.2d 124, 126 (1939)). Smith’s deposition does not satisfy the Medical Liability Act’s requirement of an expert report. Accordingly, the Wood filed his motion for extension of time on the day trial court did not abuse its discretion in dismissing the trial court heard the defendants’ motion to dismiss. In Wood’s claims against the remaining defendants. his motion, Wood alleged “he had a good faith belief that the deposition constituted an expert report.” Responding to this assertion during the hearing, counsel David Coates said he discussed the absence of an expert report with plaintiff’s counsel, Randy Gathany, in December 1997. Grace Period According to Coates, Gathany never indicated reliance on [5] Dr. Smith’s deposition until the day of the hearing. In Wood argues the trial court erred by denying him a contrast, Gathany said he “believe[d]” he “mentioned the thirty-day grace period under section 13.01(g) of the deposition.”5 Because the evidence of Wood’s reliance Medical Liability Act. We disagree.4 was conflicting, we cannot say the trial court abused its discretion in denying Wood an extension of time. See We review the trial court’s decision with the abuse of Estrello, 965 S.W.2d at 758 (finding no abuse of discretion standard. Estrello, 965 S.W.2d at 758. We discretion when evidence conflicted). Contra Horsley– further note the trial court does not abuse its discretion Layman, 968 S.W.2d at 536–37 (finding that statement of when it bases its decision on conflicting evidence. Id. belief was not controverted). [6] Section 13.01(g) provides: [7] In his motion for new trial, Wood also requested an extension of time to file an expert report. He contends the Notwithstanding any other trial court erred in finding it had no jurisdiction over the provision of this section, if a motion. The trial court’s ruling, however, is irrelevant claimant has failed to comply with because the motion for new trial was unnecessary in light a deadline established by of Wood’s previous request for an extension of time. Cf. Subsection (d) of this section and TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g) after hearing the court finds that the (Vernon Supp.1998) (noting section 13.01(g) may be failure of the claimant or the invoked before dismissal under section 13.01(e)); claimant’s attorney was not McClure, 959 S.W.2d at 682 (demonstrating section intentional or the result of 13.01(g) may be invoked after dismissal under section conscious indifference but was the 13.01(e)). Additionally, Wood’s motion for new trial result of an accident or mistake, the offered no new evidence regarding his lack of intentional court shall grant a grace period of or conscious indifference. Instead, it was limited to new 30 days to permit the claimant to allegations that *833 he did not timely receive notice of comply with that subsection. A the dismissal order.6 Despite this lack of notice, Wood motion by a claimant for relief timely perfected his appeal. Thus, Wood’s complaint is under this subsection shall be without merit. considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. Conclusion TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g) (Vernon Supp.1998) (emphasis added). Proof of accident We affirm the trial court’s dismissal order. or mistake must establish “some” excuse, not necessarily a “good” excuse. McClure v. Landis, 959 S.W.2d 679, 681 (Tex.App.—Austin 1997, pet. denied) (applying

Footnotes 1 The Honorable Peter Michael Curry signed the appealable order, but the Honorable Martha Tanner presided at the hearing.

2 Technically, the motions should have been dismissed for lack of jurisdiction.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Wood v. Tice, 988 S.W.2d 829 (1999)

3 The Medical Liability Act also permits dismissal if the plaintiff fails to “file” either a cash deposit, cost bond, or expert report 90 days after suit is filed. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(a–b) (Vernon Supp.1998). This provision was not raised by the defendants in the trial court. 4 This case does not involve any other extensions of time permitted by the Medical Liability Act. See, e.g., TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(h) (Vernon Supp.1998) (extending 180–day period by agreement); id. § 13.01(f) (extending 180–day period by court order); cf. Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.—Fort Worth 1998, no pet.) (suggesting a § 13.01(f) extension must be requested by the plaintiff and granted by the court within 30 days of the date the 180–day period ends). 5 Neither attorney objected to the unsworn testimony. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (finding unsworn attorney testimony to be evidence in the absence of an objection). 6 In contrast, the defendants offered additional evidence that Gathany told Coates in their December conversation that “the courts never dismiss a case for failing to file an expert’s report.”

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