Simonson v. Keppard , 2007 Tex. App. LEXIS 4349 ( 2007 )

OPINION

Opinion by

Justice WRIGHT.

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

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

Background

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

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

Expert Report

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

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

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

1. Nurse Lehman

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

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

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

(a) For purposes of this section, “practicing health care” includes:

(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or

(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.

(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert ■witness on the issue of whether the health care provider departed from accepted standards of care only if the person:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;

(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

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

In his affidavit, Dr. Thomas stated that Nurse Lehman “appears to have been a licensed Nurse Practitioner acting under the supervision of Joan Wilkin, M.D.” Dr. Thomas’s stated reasons for being familiar with the applicable standard of care are: (1) as a practicing neurosurgeon he has worked in emergency rooms in one capacity or another for his entire career; (2) he has served as an emergency department staff physician during his training; (3) he has served as a consulting physician seeing patients in the emergency room; and (4)as a practicing neurosurgeon, he has frequently assumed the position of an admitting physician as well as an attending physician to patients. Nowhere in his affidavit does Dr. Thomas state that he either has knowledge of the standard of care applicable to nurse practitioners or that he has ever worked with or supervised nurse practitioners.

We disagree with Dr. Thomas’s statement that Nurse Lehman “assumed the duties of a physician when he undertook to examine, diagnos[e], and treat Ms. Kep-pard.” Section 74.402(b)(2) makes clear that different standards of care from those applicable to physicians apply with respect to a diagnosis performed by a health care provider. The dissent argues that the expert must have knowledge of the standard of care governing diagnosis and treatment of the plaintiffs condition. We disagree with the dissent’s interpretation of the statute. Section 74.402(b)(2) requires that the expert have knowledge of the accepted standard of care for health care providers, ie. nurse practitioners, for the diagnosis involved in the claim. See Tex. Civ. Peac. & Rem.Code Ann. § 74.402(b)(2) (Vernon 2005).

Additionally, ‘the Texas Administrative Code sets forth core standards for advanced practice nurses. The term “advanced practice nurse” includes nurse practitioners. See 22 Tex. Admin.Code § 221.1(3) (2006). An advanced practice nurse must know and conform to the standards of professional nursing. 22 Tex. Admin. Code § 221.13(a) (2006). Rule 221.13 provides, in part, as follows:

(c) The advanced practice nurse acts independently and/or in collaboration with the health team in the observation, assessment, diagnosis, intervention, evaluation, rehabilitation, care and counsel, and health teachings of persons who are ill, injured or infirm or experiencing changes in normal health processes; and in the promotion and maintenance of health or prevention of illness.

(d) When providing medical aspects of care, advanced practice nurses shall utilize mechanisms which provide authority for that care. These mechanisms may include, but are not limited to, Protocols or other written authorization. This shall not be construed as requiring authority for nursing aspects of care.

(1) Protocols or other written authorization shall promote the exercise of professional judgment by the advanced practice nurse commensurate with his/her education and experience. The degree of detail within protocol/policies/practice guidelines/clinical practice privileges may vary in relation to the complexity of the situations covered by such Protocols, the advanced specialty area of practice, the advanced educational preparation of the individual, and the experience level of the individual advanced nurse practitioner.

(2) Protocols or other written authorization:

(A) should be jointly developed by the advanced practice nurse and the appropriate physician(s),

(B) shall be signed by both the advanced practice nurse and the physician(s),

(C) shall be reviewed and re-signed at least annually,

(D) shall be maintained in the practice setting of the advanced practice nurse, and

(E) shall be made available as necessary to verify authority to provide medical aspects of care.

(e) The advanced practice nurse shall retain professional accountability for advanced practice nursing care.

22 Tex. Admin. Code § 221.13 (2006) (emphasis added). An advanced practice nurse is accountable for advanced practice nursing care but not for a doctor’s care. The dissent also argues that nurse practitioners may only perform diagnoses under proper delegation by a supervising physician under the Texas Medical Practice Act, which “effectively” incorporates the standard of care governing physicians. As the dissent notes, however, the delegating physician remains responsible for the medical acts delegated. The dissent cites no authority for the proposition that a nurse practitioner performing a medical act delegated by a physician is held to a physician’s standard of care. Moreover, the standards for advanced practice nurses provide that they may make diagnoses within the confínes of written authorization. See 22 Tex. Admin. Code § 221.13(c) & (d) (2006). Even when making a diagnosis, an advanced practice nurse remains accountable for advanced practice nursing care not a physician’s care. See 22 Tex. Admin. Code § 221.13(e) (2006).¹

Dr. Thomas did not state that he had any familiarity with the standard of care for a nurse practitioner. Nurse practitioners have advanced education in nursing. Although a nurse practitioner may make a diagnosis, he does so within the protocols or other written authorizations signed by a physician. Without familiarity with the protocols for Nurse Lehman, Dr. Thomas cannot know the standard of care applicable to Nurse Lehman. See Cox v. Vanguard Health Sys., Inc., No. 04-04-00762-CV, 2005 WL 2367582, at *5 (Tex.App.-San Antonio, Sept. 28, 2005, pet. denied) (mem op.) (holding expert report inadequate because expert gave no indication that he was familiar with practice of nurse in emergency room); Jones v. Ark-La-Tex Visiting Nurses, Inc., 128 S.W.3d 393, 396-97 (Tex.App.-Texarkana 2004, no pet.) (expert report failed to show that physician expert had any familiarity with standard of care for nurses monitoring patient in home healthcare setting).

We conclude the trial court abused its discretion in denying Nurse Lehman’s motion to dismiss based on an inadequate expert report. We sustain Nurse Lehman’s first point of error. Because of our disposition of Nurse Lehman’s first point of error, we do not address his second and third points of error.

2. Dr. Simonson and Dr. Wilkin

In their sole point of error, Doctors Simonson and Wilkin contend the trial court erred in denying their motion to dismiss for failure to provide an adequate expert report. Specifically, Doctors Si-monson and Wilkin assert that the report is inadequate because Dr. Thomas was not qualified in their field of emergency medicine and his opinion on causation was speculative and conclusory.

a. Qualifications

As to who qualifies as an expert witness in a suit against a physician, the statute provides:

(a)In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as a expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:

(1)is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;

(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

(b) For purposes of this section, “practicing medicine” or “medical practice” includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.

(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the -witness:

(1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and

(2) is actively practicing medicine in rendering medical care services relevant to the claim.

Tex. Civ. PRác. & Rem.Code Ann. § 74.401(a)-(c) (Vernon 2005).

Doctors Simonson and Wilkin contend that Dr. Thomas’s report is deficient because he is not qualified to state the standard of care for emergency room physicians. Dr. Thomas stated in his report that he has “worked in hospital emergency departments in one capacity or another for my entire career.” He has served as an emergency room staff physician and as a consulting physician seeing patients in the emergency room. Dr. Thomas stated that he frequently consults with emergency room doctors and is familiar with the circumstances that call for consultation.

The cases relied upon by Doctors Si-monson and Wilkin are distinguishable. See Cox, 2005 WL 2367582 at *5 (not designated for publication) (no indication in expert’s report that he had ever practiced emergency medicine); Shelton v. Sargent, 144 S.W.3d 113, 125 (Tex.App.-Fort Worth 2004, pet. denied) (no indication expert possessed experience in field of radiology); In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, orig. proceeding) (no indication expert radiologist had experience with embolization procedure performed by neuroradiologist); Tomasi v. Liao, 63 S.W.3d 62, 66 (Tex.App.-San Antonio 2001, no pet.) (expert psychiatrist provided no information showing he had experience in post-operative care following neurosurgery); Spivey v. James, 1 S.W.3d 380, 382-83 (Tex.App.-Texarkana 1999, pet. denied) (dentist filed expert report on behalf of oral surgeon but failed to show training in dental surgery or experience with treating questioned condition).

Dr. Thomas’s expert report established that he has experience in both his own field of neurosurgery and Doctors Simon-son’s and Wilkin’s field of emergency medicine. We conclude Dr. Thomas’s qualifications as set forth in his report sufficiently qualify him to opine on the standard of care for Doctors Simonson and Wilkin.

b. Causation

Doctors Simonson and Wilkin also contend Dr. Thomas’s report is inadequate because his statements as to causation are mere conclusions.

A report that merely states the expert’s conclusion as to causation does not satisfy the statutory requirements. Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(r)(6) (Vernon Supp.2006). The expert must explain how the alleged negligence caused the injury or death. See Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002).

As to causation, Dr. Thomas opined as follows:

The early diagnosis of cerebellar infarction or hemorrhage would have prompted admission to the hospital, probably the intensive care unit, where meticulous medical care (e.g., blood pressure medication, factor VIIs) might have prevented neurological deterioration. Even if such deterioration had occurred, it would have done so under watchful medical care, thus enabling rapid lifesaving intervention, such as craniotomy or ventriculostomy. Thus, the negligent failure of Drs. Simonson and Wilkin along with Mr. Lehman to submit this symptomatic patient to CT scan or arrange for a neurological consultation was a proximate cause of her ultimate death in that had these things been done in reasonable medical probability she would have survived.

Doctors Simonson and Wilkin contend that Dr. Thomas’s opinion on causation contains gaps that prevent it from being a “fair summary.” They contend that Dr. Thomas fails to explain how failing to order a CT scan or neurological consultation was the proximate cause of death. We disagree. Dr. Thomas opined that in reasonable medical probability, the deceased would have survived had she obtained an early diagnosis. The alleged failure of the defendants to order a CT scan or neurological consultation prevented the early diagnosis that in reasonable medical probability would have saved her life. See Estate of Birdwell v. Texarkana Memorial Hosp., Inc., 122 S.W.3d 473, 480 (Tex.App.-Texarkana 2003, pet. denied) (report sufficient that stated had patient been properly restrained, patient’s fall could have been prevented); Russ v. Titus Hosp. Dist, 128 S.W.3d 332, 342 (Tex.App.-Texarkana 2004, pet. denied) (report sufficient that stated that one of two interventions would have prevented patient’s injuries); Bustillos v. Rowley, No. 08-04-00331-CV, 2005 WL 2095291, at *7, 225 S.W.3d 122, 130-31 (Tex.App.-El Paso Aug. 31, 2005, pet. denied) (report sufficient that stated if patient had been properly monitored, her heart condition would have been detected and treated and subsequent cardiac arrest prevented).

Doctors Simonson and Wilkin rely on Bowie to support their contention that Dr. Thomas’s report is conclusory as to causation. See Bowie, 79 S.W.3d at 48. In Bowie, the plaintiff went to the hospital following a car accident. Hospital personnel x-rayed her foot and knee. The x-ray of her foot was either misplaced or misread. As a result, her foot fracture was not discovered until almost one month later. Id. at 50. The expert in Bowie opined that “if the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then [the plaintiff] would have had the possibility of a better outcome.” Id. at 51. The trial court dismissed the case for an inadequate expert report. The court of appeals reversed. In reversing the court of appeals, the supreme court stated that it “could not infer, as the [plaintiff] asks us to, that Bowie’s alleged breach precluded [the plaintiff] from obtaining a quicker diagnosis and treatment for her foot.” Id. at 53. The court held that the report did not constitute a fair summary within the meaning of the statute because it failed to provide information connecting the expert’s conclusion that the plaintiff might have had a better outcome with the alleged breach of failing to correctly read the x-ray. Id.

Dr. Thomas’s report does not suffer from the same inadequacies as the report in Bowie. Dr. Thomas stated that, if a CT scan had been performed or neurological consultation had occurred, the deceased would have been diagnosed with cerebellar infarction, or hemorrhage. With the proper diagnosis, the deceased would have been admitted and either neurological deterioration prevented or rapid lifesaving measures taken in the face of neurological deterioration. Dr. Thomas connected his conclusion as to causation with the alleged breaches of Doctors Simonson and Wilkin.

Dr. Thomas’s report likewise does not compare to those in other cases relied upon by Doctors Simonson and Wilkin. In one case, an expert opined that performing surgery without a proper medical pre-op-erative evaluation resulted in the patient’s death. See Nelson v. Ryburn, 223 S.W.3d 453, 457 (Tex.App.-Amarillo Apr.18, 2006, no pet.). The report lacked any explanation as to why the failure to perform the pre-operative evaluation caused the patient’s death. In Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex.App.-San Antonio 2004, no pet.), the expert opined that if an arteriogram had been performed, by-passable lesions may have been discovered and the leg amputation may have been avoided. Id. at 617. The report did not state that an arteriogram would have led to the discovery of by-passable lesions or that such discovery would have prevented amputation. In contrast, Dr. Thomas explained in his report that an early diagnosis would have either prevented neurological deterioration or at least Keppard would have been admitted into the hospital where lifesaving measures could have been taken to save her life.

We conclude the trial court did not abuse its discretion in denying the motion to dismiss of Doctors Simonson and Wil-kin. We overrule their point of error and affirm the trial court’s order as to Doctors Simonson and Wilkin. We reverse the trial court’s order as to Nurse Lehman and render judgment dismissing the lawsuit as to Nurse Lehman.

O’NEILL, J., dissenting.

1 . We note that the dissent asserts a public policy argument for holding a nurse practitioner to a physician's standard of care while performing medical acts. We disagree. An assertion of this public policy argument disregards the clear reading of the statute holding health care providers accountable for the standard of care commensurate with their education and experience. See Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b)(2) (Vernon 2005).