Van Ness v. ETMC First Physicians

461 S.W.3d 140, 58 Tex. Sup. Ct. J. 746, 2015 Tex. LEXIS 349, 2015 WL 1870051
CourtTexas Supreme Court
DecidedApril 24, 2015
DocketNo. 14-0353
StatusPublished
Cited by158 cases

This text of 461 S.W.3d 140 (Van Ness v. ETMC First Physicians) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 58 Tex. Sup. Ct. J. 746, 2015 Tex. LEXIS 349, 2015 WL 1870051 (Tex. 2015).

Opinion

PER CURIAM

This case, which is subject to the Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code ch. 74, involves the adequacy of an expert report. The issue is whether the trial court abused its discretion by denying the defendants’ motion to dismiss in light of conflicting statements in the plaintiffs’ expert report, some of which the defendants alleged, and the court of appeals held, failed to link the expert’s conclusions to the underlying facts.

Nicholas Van Ness died from pertussis (whooping cough) when he was two months old. His parents, Melissa and Ronald Van Ness, sued Kristin Ault, D.O., and her employer, ETMC First Physicians, alleging that Dr. Ault’s negligence caused Nicholas’s death and that ETMC was vicariously liable for her negligence. The Van Nesses timely served Dr. Ault and ETMC with an expert report by Alvin Jaffee, M.D., then served an amended report after the trial court sustained the defendants’ objections to the original. The defendants again moved to dismiss the suit, contending that Dr. Jaffee’s opinions as to causation were conclusory because the amended report (the report) failed to link his opinions to the underlying facts. The trial court denied the motion. On interlocutory appeal, see Tex. Civ. Prac. & Rem. Code § 51.014(a)(10), the court of appeals reversed and ordered the suit dismissed. ETMC First Physicians v. Van Ness, 461 S.W.3d 152 (Tex.App.-Tyler 2014). We reverse the judgment of the court of appeals.

A plaintiff asserting a health care liability claim must serve each defendant with an expert report that includes “a fair summary of the expert’s opinions ... 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 damage claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). A challenge to the sufficiency of a report must be sustained if “the report does not represent an objective good faith effort to comply with the [statutory requirements].” Id. § 74.351(l). A report is a good faith effort if it provides adequate information to “inform the defendant of the specific conduct the plaintiff has called into question, ... provide[s] a basis for the trial court to conclude that the claims have merit,” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam), and “does not con[142]*142tain a material deficiency,” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011).

A trial court’s ruling on the sufficiency of an expert’s report is reviewed for abuse of discretion. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex.2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Under that standard, appellate courts defer to the trial court’s factual determinations if they are supported by evidence, but review its legal determinations de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.2011). A trial court abuses its discretion if it rules without reference to guiding rules or principles. Samlowski, 332 S.W.3d at 410. An expert must explain, based on facts set out in the report, how and why the breach caused the injury. See Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex.2010). A bare expert opinion that the breach caused the injury will not suffice. Id.

Dr. Jaffee set out the following facts in his report as those on which he based his opinions. Nicholas was born on November 13, 2009. He was seen by Dr. Ault on November 19 and November 30 for regular checkups, and Dr. Ault noted no concerns at either visit. However, the records from his four-week checkup on December 11 reflected that Nicholas had a fever with a temperature of 100.2 degrees, was coughing and suffering from nasal congestion, and was exposed to “sick contacts at home.” According to an affidavit submitted by Nicholas’s mother, she reported to Dr. Ault on December 11 that Nicholas had been coughing to the point that he could not breathe and was exhibiting facial discoloration. Nothing indicated that Dr. Ault performed any laboratory or diagnostic tests on Nicholas.

The Van Nesses returned to see Dr. Ault on December 15 and explained that Nicholas’s symptoms had worsened. Dr. Ault physically examined Nicholas, but again did not perform or order any tests. On December 20, the Van Nesses took Nicholas to East Texas Medical Center Hospital in Jacksonville, where he was treated for acute pneumonia, wheezing, and tachycardia. The following day he was transferred to the Children’s Medical Center Hospital in Dallas, where he died on January 20, 2010.

The defendants objected to Dr. Jaffee’s report on the ground that it failed to explain how Dr. Ault’s alleged negligence caused Nicholas’s death, specifically contending that Dr. Jaffee’s medical conclusion was not linked to the facts of the case and was conclusory. The defendants moved for dismissal of the suit. The trial court denied the motion. The court of appeals reversed and rendered judgment dismissing the Van Nesses’ suit with prejudice, agreeing with the defendants that Dr. Jaffee’s report was deficient as to the causation element. 461 S.W.3d at 143.

Dr. Jaffee’s nine-page report generally discusses pertussis, including its diagnosis and treatment. His report also contains separate sections addressing the applicable standard of care, breach of the standard, and causation. In the standard of care section, he opined, in part, that

[t]he applicable standard of care as to Kristin Ault, DO is upon evaluation of a one month old child who presents with symptoms such as a history of fever, cough and nasal congestion, compounded by sick contacts at home, is to perform laboratory tests, administer antibiotics prophylaetically while the tests are pending and/or to admit the infant to a medical facility....
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... [H]ad Dr. Ault, performed any of these tests, it would have shown Borde-tella pertussis at a treatable stage and but for the failure to treat Nicholas Van [143]*143Ness as outlined above he would have had a 51% or more chance of survival.

In the breach section, Dr. Jaffee states again that Dr. Ault breached the standard of care in several ways on both December 11 and December 15, including failing to have various laboratory diagnostic tests performed on Nicholas and failing to administer antibiotics prophylactieally while the tests were performed. Finally, in the causation section of his report, Dr. Jaffee repeats his opinion that Dr. Ault should have taken specified actions including running diagnostic tests on Nicholas and administering antibiotics prophylactieally. He also states, “It is within a reasonable degree of medical certainty and/or with 51% certainty that had Dr.

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Bluebook (online)
461 S.W.3d 140, 58 Tex. Sup. Ct. J. 746, 2015 Tex. LEXIS 349, 2015 WL 1870051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-ness-v-etmc-first-physicians-tex-2015.