Texas San Marcos Treatment Center, L.P. D/B/A San Marcos Treatment Center v. Veronica Payton ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00726-CV
Texas San Marcos Treatment Center, L.P. d/b/a San Marcos Treatment Center, Appellant
v.
Veronica Payton, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
NO. 13-2658, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Texas San Marcos Treatment Center, L.P., appeals the trial court’s
order denying its motion to dismiss Veronica Payton’s negligence suit. The Center contends that
the trial court abused its discretion in finding Payton’s expert report adequate and denying
the Center’s motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 74.351. We will affirm the
trial court’s order.
BACKGROUND
The following summary is drawn from allegations in Veronica Payton’s
petition and the expert’s report. Payton worked as an aide at the Center, a facility licensed by the
Texas Department of Family and Protective Services to provide behavioral health care and
treatment to adolescent patients. The Center admitted as a patient a seventeen-year-old male who
Payton alleges had a history of anger issues, physical and verbal aggression, and fighting with peers.
Payton alleges that the patient had several diagnosed issues including severe impulsivity, explosive
expressions of anger, defiance, disruptiveness, and sexual behavior problems, but that Payton was
not sufficiently informed about those diagnoses. The patient seemed quiet and cooperative until he
assaulted Payton as she escorted him from a laundry room—an assault captured in part on video.
The patient hit Payton, then choked and rendered her unconscious, inflicting neck and back
injuries and a concussion. Doctors found that Payton suffered stress, anxiety, and depression after
the assault.
Payton sued the Center for the following negligent acts or omissions: (1) failure
to adequately staff the shift during which she was injured; (2) failure to adequately train her;
(3) failure to adequately notify her of the patient’s dangerous behavioral nature; (4) failure to
adequately contain or supervise the patient despite admitting him to the children’s unit; and
(5) failure to ameliorate the risk from the patient to appellee and others. She asserted that these
acts and omissions injured her, and she served on the Center an expert report authored by William H.
Reid, M.D.
The Center moved to dismiss, objecting that Dr. Reid’s report failed to meet the
statutory requirements for expert reports under the Texas Medical Liability Act. See Tex. Civ. Prac.
& Rem. Code § 74.351; see also id. §§ 74.001-.507. It contends that the report failed to set forth the
applicable standard of care, failed to identify the acts or omissions that breached that standard,
and failed to explain the causal relationship between the alleged breaches and the injuries alleged.
Payton did not submit a revised or amended version of Dr. Reid’s report or any other reports. The
trial court overruled the Center’s motion to dismiss Payton’s claims for the report’s alleged
deficiencies.
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DISCUSSION
The Center argues that Dr. Reid’s report is not an objective good-faith effort to
provide sufficient analysis for each element of a health-care liability claim because it: (1) fails to
provide the relevant facts supporting his opinions regarding the applicable standard of care and
alleged breaches; (2) fails to identify the applicable standards of care or alleged related breaches; and
(3) contains conclusory and speculative causation opinions.
We review the trial court’s decision on the adequacy of an export report for an abuse
of discretion. American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without
reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985); see also Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (plurality
op.). When the report lacks any explanation linking the expert’s conclusions to the relevant
facts, the trial court abuses its discretion in denying the defendant’s motion to dismiss. Jelinek
v. Casas, 328 S.W.3d 526, 540 (Tex. 2010). We may not substitute our judgment for the trial court’s
judgment. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
An “expert report” provides a fair, written summary of the expert’s opinions
regarding (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. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
A court shall grant a motion challenging the adequacy of an expert report only if it appears to the
court that the report does not represent an objective good-faith effort to comply with the statutory
requirements of the expert report. Id. § 74.351(l); see Hebert v. Hopkins, 395 S.W.3d 884, 890
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(Tex. App.—Austin 2013, no pet.). Courts examine the report’s adequacy based solely on
information contained in the four corners of the report. Austin Heart P.A. v. Webb, 228 S.W.3d 276,
279 (Tex. App.—Austin 2007, no pet.) (citing 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.” Id. (citing Wright, 79 S.W.3d at 53). Although a report need not
marshal all of a claimant’s proof, it must include the expert’s opinion on each of the elements
identified in section 74.351 and be specific enough on each to (1) inform the defendant of the
conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude
that the claims have merit. Id. (citing Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 875, 878).
The report must do more than merely state the expert’s conclusions about the statutory elements—it
must link the expert’s conclusions to the facts. Id. (citing Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999)).
The Texas Supreme Court has applied the expert-report requirements under the
Texas Medical Liability Act to a case in which a patient at a mental health hospital had a physical
altercation with Williams, who worked as a psychiatric technician and professional caregiver at the
facility. See Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 2012). The estate
of the patient sued the hospital and the caregiver, and the caregiver filed cross-claims against the
hospital for negligence. Id. at 175. The supreme court held that Williams needed expert testimony
to provide evidence on proper training, supervision, and protocols to prevent, control, and defuse
aggressive behavior and altercations in a mental hospital between patients and employed professional
counselors who treat and supervise them. Id. at 182. The court noted that such issues concern the
treatment of the patient, that their breach can affect those who treat the patients, and that
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expert testimony is required to assess the connection between the breach and the claimed injury. Id.
The claimant in that case failed to file a report, and his claims were dismissed by the supreme court.
Id. at 175, 193.
Standard of care and breach
Dr. Reid’s report discussed the standard of care for the Center as follows:
That employer ([the Center]), 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 notifications 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.
(Emphases in original.) The report elaborates on each of the elements described in the above
paragraph.
Staffing: Dr. Reid opines that the Center’s staffing on the evening Payton was
assaulted was “lower than that required by plans of correction and/or other agreements with the
Texas Department of Family and Protective Services (DFPS).” He states that the unit should have
had at least three staff persons, one of whom was male, instead of the two women assigned to the
unit that evening. Although he did not cite the applicable regulation or specific plan of correction
or agreement, his report does set forth a specific statement of what was required and how the Center
failed to meet the standard.
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Staff training: Dr. Reid opines that Payton’s file and the Center’s employee handbook
contain “no indication that Ms. Payton received any training from [the Center] regarding her
safety in the workplace, and particularly none related to recognizing potentially dangerous patients,
recognizing potentially assaultive patients, or protecting herself from patient assault.” This statement
indicates Reid’s opinion that the standard of care requires facilities to train their staff members on
safety, recognizing danger, and protecting themselves. Dr. Reid’s report specifies what subjects the
training should cover and states that the Center failed to do so.
Staff notification: Dr. Reid states that the Center knew the patient’s history of “severe
impulsivity or explosive expression of anger” from the patient’s examination and yet “review
of materials associated with the January 2, 2012, assault upon Ms. Payton reveals no indication that
Ms. Payton or other unit staff had been notified or otherwise advised that the patient was potentially
assaultive or otherwise dangerous, or that her escorting him off the unit to the laundry alone
was unsafe.” This statement indicates Dr. Reid’s opinion that the standard of care requires that
reasonably prudent facilities inform their staffs about dangerous patients. Dr. Reid specifies what
information the Center should have provided and states that the Center failed to provide it.
Patient admission and protection of others: Dr. Reid states that the Center’s
knowledge of the patient’s history, behaviors, and symptoms should have alerted the Center that the
patient was inappropriate for admission and/or was not suited in terms of safety for housing on
the boys’ unit without special supervision or containment. Dr. Reid further states that “[the Center]
knew or reasonably should have known that [the patient] was dangerous or assaultive, and should
have been physically contained and/or supervised by more than one, female, staff person. There is
no indication in the records available to me that [the Center] did anything, physically or clinically,
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to ameliorate the danger from [the patient] to staff and other patients.” These statements indicate
Dr. Reid’s opinion that such facilities have a duty to admit only patients suited for the facility and
to house and treat dangerous patients with additional supervision, physical containment, or clinical
methods to protect patients and staff.
We cannot conclude that the trial court abused its discretion by concluding that the
expert’s report here sufficiently informed the Center of what it should have done and what it should
have done differently. See Palacios, 46 S.W.3d at 880; see also Wright, 79 S.W.3d at 52 (cannot
substitute our judgment for the trial court’s judgment unless it acted arbitrarily or unreasonably).
Dr. Reid said that DFPS required three staffers, including one male, and that the Center assigned
only two females. He said that the Center should have trained its staff to recognize danger and
warned its staff of known danger, but did not do either. The aspects of the report addressing patient
admission and protection of others are less specific, but we cannot say that the trial court abused its
discretion by concluding that they constitute a good-faith effort to inform the Center of the conduct
the plaintiff questions and to provide a basis for the trial court to conclude that the claims have merit.
See id. Whether Dr. Reid’s opinions are correct is the subject of a summary-judgment proceeding
or trial, not a Chapter 74 motion to dismiss. See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d
193, 199 n.2 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see also Wissa v. Voosen, 243 S.W.3d
165, 169 (Tex. App.—San Antonio 2007, pet. denied).
Causation
The common thread in each causation theory alleged is that the Center’s act or
omission caused Payton to be alone with the patient, be vulnerable to his strength and volatility, and
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be hurt as a result. This Court has stated that “[t]he causal connection in medical malpractice suits
must be made ‘beyond the point of conjecture’ and ‘must show more than a possibility’ to warrant
submission of the issue to a jury.” Fung v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012,
no pet.) (citing Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703, 706 (Tex. 1970)); see also
Bowie Mem’l Hosp., Inc., 79 S.W.3d at 53). Further, we have held that “[r]eports providing a
‘description of only a possibility of causation do[ ] not constitute a good-faith effort to comply with
the statute.’” Fung, 365 S.W.3d at 530 (citing Walgreen Co. v. Hieger, 243 S.W.3d 183, 186
(Tex. App.—Houston [14th Dist.] 2007, pet. denied)). However, the expert report is not required
to prove the defendant’s liability, but rather to provide notice of what conduct forms the basis for the
plaintiff’s complaints. Hayes v. Carroll, 314 S.W.3d 494, 507 (Tex. App.—Austin 2010, no pet.)
(citing Apodaca v. Russo, 228 S.W.3d 252, 255 (Tex. App.—Austin 2007, no pet.)).
Dr. Reid wrote in the expert report as follows:
(a) If 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 [the
patient] to the laundry alone. (See her statement.)
(b) If 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. (See her statement.)
(c) If Ms. Payton had received adequate training regarding the dangers of escorting
patients such as [the patient] off-unit alone, she would not have escorted him alone
to the laundry room.
(d) If Ms. Payton had been adequately informed by [the Center] of [the patient]’s past
history of such things as violence, impulsive and assaultive behavior, other behaviors
noted above, and his pre-admission history of “severe impulsivity or explosive
expression of anger” (cf. Dr. Harrell’s pre-incident evaluation, December 12-13,
2011), she would not have escorted him to the laundry room alone.
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(e) If [the patient] had not been admitted to [the Center] and housed on Ms. Payton’s
boys’ unit (to the extent that he was negligently admitted and housed; see above),
Ms. Payton would not have been assaulted and injured by him on January 2, 2012.
(f) If [the patient] had been placed on adequate safety precautions, such as with
the containment and/or supervision reasonably required given his past history,
Ms. Payton would not have escorted him to the laundry room alone.
These assertions are tied to the facts and standards of care laid out by Dr. Reid and show the
connection alleged between the Center’s act or omission and the patient’s assault on Payton that
caused the injuries she claims. We cannot say on this record that the trial court abused its discretion
by finding the report to be a good-faith effort to inform the Center of the basis of Payton’s claim and
to allow the trial court to assess its merit.
CONCLUSION
We cannot say that the trial court abused its discretion by concluding that
Dr. Reid’s report was a good-faith effort to provide a fair summary of the elements of Payton’s
claim as required by Texas Civil Practice & Remedies Code subsections 74.351(l) and 74.351(r)(6).
We affirm the trial court’s order.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: November 18, 2015
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