W. Bryan Sims v. Stephanie Kemmerling

• Court: Court of Appeals of Texas
• Decided: March 21, 2013
• Docket: 09-12-00338-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00338-CV ____________________

W. BRYAN SIMS, Appellant

V.

STEPHANIE KEMMERLING, Appellee _______________________________________________________ ______________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-191,821 ________________________________________________________ _____________

MEMORANDUM OPINION

The trial court overruled objections to expert reports and denied a motion to

dismiss filed by a health care provider. See Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(9) (West Supp. 2012); see also Tex. Civ. Prac. & Rem. Code Ann. §

74.351 (West 2011). In his first issue, W. Bryan Sims contends jurisdiction is

proper in this Court. In his second issue, Sims argues the expert reports offered by

Stephanie E. Kemmerling are wholly inadequate as to breach and causation.

1 Sims contends this case falls within the purview of Chapter 74 of the Civil

Practice and Remedies Code because Kemmerling has brought a health care

liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West

Supp. 2012). He seeks a dismissal with prejudice of all of Kemmerling’s claims.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). Kemmerling agrees that her

suit includes allegations of negligence that present a health care liability claim. But

she contends her suit includes allegations of statutory sexual exploitation and

common law battery that are not health care liability claims subject to the Texas

Medical Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13),

81.002 (West 2011).

The accelerated appeal authorized by section 51.014(a)(9) provides for

interlocutory appellate review of the trial court’s denial of Sims’s motion to

dismiss Kemmerling’s health care liability claim for failure to timely provide an

expert report. Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9), 74.351(b). An

“expert report” for purposes of section 74.351(b) is a report that “provides a fair

summary of the expert’s opinions as of the date of the report regarding the

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 the failure and the injury, harm, or damages claimed.” Tex.

2 Civ. Prac. & Rem. Code Ann. §§ 74.351(b), (r)(6). Section 51.014(a)(9) grants this

Court appellate jurisdiction to review the trial court’s order. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(9).

In reviewing the trial court’s decision regarding the adequacy of an expert

report, an appellate court considers whether the trial court could reasonably

determine that the report represents a good-faith effort (1) in informing the

defendants of the specific conduct the plaintiff calls into question and (2) in

providing a sufficient basis for the trial court to determine the claims have merit.

See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79

(Tex. 2001); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). A report

need not cover every alleged theory to make the defendant aware of the specific

conduct the plaintiff calls into question. Certified EMS, Inc. v. Potts, No. 11-0517,

2013 WL 561471, at *4 (Tex. Feb. 15, 2013). A health care liability claim that

contains at least one viable liability theory -- as evidenced by an expert report

meeting the statutory requirements -- is not frivolous. Id. at *5.

Kemmerling supplied a report and a supplemental report by Cissi Wimberly

Oloomi, a family nurse practitioner. In the report Oloomi states the standard of

care requires an advance practice nurse to conform to the Texas Nurse Practice

Act. According to Oloomi, the standards of care require that a nurse implement

3 measures to promote a safe environment for clients and maintain professional

boundaries, but Sims violated the Texas Nurse Practice Act and breached the

standard by engaging in sexual contact with Kemmerling. The standard of care

requires that the nurse know the rationale for and the effect of medication and

treatment, and properly manage a client’s records, but Sims breached these

standards by providing medication without adequate documentation or assessment,

and without making appropriate notes in the clinical records. In Oloomi’s opinion

the standard of care prohibits a nurse from practicing outside the scope of practice

for a nurse practitioner but Sims breached the standard by engaging in the

treatment of mental health services without having been properly credentialed to

make the diagnosis or treat the condition. According to Oloomi, Sims violated a

Nursing Board Position Statement that nurses should not provide treatment to an

individual with whom they have a close personal relationship; the standard of care

required him to cease treating Kemmerling.

Kemmerling also provided a report and a supplemental report by Fred R.

Bakht, M.D. Dr. Bakht agrees with and incorporates Nurse Oloomi’s statements

regarding the standard of care and its breach. “[N]othing in the health care liability

statute prohibits an otherwise qualified physician from relying on a nurse’s report

in the formation of the physician’s own opinion.” Kelly v. Rendon, 255 S.W.3d

4 665, 676 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Dr. Bakht further states

that “[t]he violations of boundaries by Nurse Sims and engaging in sexual contact

between patient S.K. (including sexual intercourse) was inappropriate under

various statutes and codes constituted unprofessional conduct.” The experts’

reports state that Sims should not have commenced an intimate relationship with a

patient and that once he did so he should have ceased providing treatment to her.

In addition to the inappropriate personal relationship between the nurse and

his patient, Oloomi describes breaches of the standard of care concerning Sims’s

decisions regarding Kemmerling’s treatment. Dr. Bakht also discusses how Sims

departed from the standard of care by attempting to treat a mental disorder without

an appropriate evaluation. He does not detail how the failure caused harm to the

patient, separate from the improper relationship, but a report need not cover every

theory alleged by the plaintiff. The trial court may deny the motion to dismiss if

the plaintiff provides a report that is adequate as to any of the theories alleged.

Potts, 2013 WL 561471, at *4.

The expert must link conclusions to the facts. Jelinek v. Casas, 328 S.W.3d

526, 539-40 (Tex. 2010) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Dr. Bakht explains that but for the inappropriate crossing of professional

boundaries, the sexual contact between Sims and Kemmerling would not have

5 occurred, and had the sexual conduct been avoided, to a reasonable degree of

medical probability the feelings of shame and guilt, depression and eating

disorders would not have occurred. According to Dr. Bakht, these conditions

resulted in impairment of social and intellectual functioning in Kemmerling’s

relationships and daily life. He states that Kemmerling’s injuries are a foreseeable

consequence of the inappropriate relationship with a patient when the relationship

ceases. Dr. Bakht’s explanation of how and why Sims’s breach of the standard of

care caused injury to Kemmerling provides a sufficient basis for the trial court to

determine that the claim has merit. Jelinek, 328 S.W.3d at 540; Palacios, 46

S.W.3d at 879; see Potts, 2013 WL 561471, at *5. The trial court’s order denying

the motion to dismiss is affirmed.

AFFIRMED. ________________________________ DAVID GAULTNEY Justice

Submitted on January 17, 2013 Opinion Delivered March 21, 2013

Before McKeithen, C.J., Gaultney and Kreger, JJ.