nancy-benish-rn-fnp-c-christine-lashell-hopson-rn-and-leonard-t ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-148-CV
NANCY BENISH, R.N., F.N.P.-C.; APPELLANTS
CHRISTINE LASHELL HOPSON, R.N.;
AND LEONARD T. DINGLER, M.D.
V.
AMANDA GROTTIE, INDIVIDUALLY APPELLEES
AND AS HEIR TO AND
REPRESENTATIVE OF THE ESTATE
OF AMARISSA GROTTIE, DECEASED,
AND CODY GROTTIE, INDIVIDUALLY
AND AS HEIR TO AND REPRESENTATIVE
OF THE ESTATE OF AMARISSA GROTTIE,
DECEASED
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
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OPINION
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I. INTRODUCTION
This is an interlocutory appeal in a medical negligence suit challenging the
trial court’s order denying motions to dismiss filed by Appellants Nancy Benish,
R.N., F.N.P.-C; Christine Lashell Hopson, R.N.; and Leonard T. Dingler, M.D.
Because Appellees Amanda Grottie, individually and as heir to and
representative of the estate of Amarissa Grottie, deceased, and Cody Grottie,
individually and as heir to and representative of the estate of Amarissa Grottie,
deceased, timely filed adequate expert reports, the trial court did not abuse its
discretion by overruling Appellants’ objections to the reports or by denying
Appellants’ motions to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(b) (Vernon Supp. 2008). Accordingly, we will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Amanda and Cody Grottie filed suit against Appellants after their twenty-
two-month-old baby Amarissa Grottie died. The Grotties alleged that they took
Amarissa to the emergency room at Nocona General Hospital, where she was
negligently treated and discharged by Appellants. Amarissa died twelve hours
after discharge.
After filing suit, the Grotties timely filed an eleven-page, single-spaced
expert report by Craig A. Kennedy, M.D., FACEP, FAAEM, along with his
twenty-page, single-spaced curriculum vitae. The Grotties also timely filed a
2
nine-page, single-spaced expert report by Nancy Cleveland, R.N., M.S.N., FNP-
BC, along with her two-page curriculum vitae.
Appellants each filed objections to both reports, and Nurse Benish and Dr.
Dingler filed motions to dismiss.1 Appellants claimed in the trial court, and
assert on appeal,2 that Dr. Kennedy’s and Nurse Cleveland’s reports are
inadequate. All Appellants claim that both Dr. Kennedy’s and Nurse Cleveland’s
reports are inadequate because they fail to couch the standard of care violations
discussed in the reports in terms of “wilful and wanton negligence,” which
Appellants claim is required by civil practice and remedies code section 74.153.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.153 (Vernon 2005). Dr. Dingler
claims that Dr. Kennedy’s report is inadequate because it purportedly makes
only conclusory and inadequate allegations concerning Dr. Dingler’s standard
of care violations and causation. Nurse Benish claims that Dr. Kennedy’s report
is inadequate because it makes only conclusory causation opinions as to her
alleged negligence. Dr. Dingler and Nurse Hopson claim that Dr. Kennedy is not
1
… Nurse Hopson filed objections but did not file a motion seeking
dismissal. Nonetheless, the trial court’s order expressly refused to dismiss the
claims against her and she perfected an appeal, so we will address her issues.
2
… Dr. Dingler and Nurse Hopson filed a joint brief on appeal. Some
contentions in Dr. Dingler and Nurse Hopson’s brief apply to both of them, and
some apply only to Dr. Dingler or only to Nurse Hopson. We refer to their brief
on the basis of to whom the argument applies. Nurse Benish filed a separate
brief.
3
qualified to opine on causation. And finally, all Appellants claim that Nurse
Cleveland was not qualified to render a causation opinion.3 After a hearing, the
trial court overruled Appellants’ objections and denied their motions to dismiss.
This appeal followed.4
III. S TANDARD OF R EVIEW
We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Ctr. for
Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.
App.—Fort Worth 2008, pet. filed); Maris v. Hendricks, 262 S.W.3d 379, 383
(Tex. App.—Fort Worth 2008, pet. denied). To determine whether a trial court
abused its discretion, we must decide whether the trial court acted without
reference to any guiding rules or principles; in other words, we must decide
whether the act was arbitrary or unreasonable. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.
1159 (1986). Merely because a trial court may decide a matter within its
discretion in a different manner than an appellate court would in a similar
3
… Dr. Dingler and Nurse Hopson’s brief raises one issue but asserts four
subissues and numerous arguments within each subissue. Nurse Benish’s brief
raises three issues.
4
… See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008)
(authorizing appeal from trial court order determining that expert report was
adequate and denying motion to dismiss).
4
circumstance does not demonstrate that an abuse of discretion has occurred.
Id. But a trial court has no discretion in determining what the law is or in
applying the law to the facts, and thus “a clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion.”
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Ehrlich v. Miles, 144
S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).
IV. F AILURE TO O PINE THAT A PPELLANTS A CTED “W ILFULLY AND W ANTONLY”
D OES N OT R ENDER THE R EPORTS INADEQUATE
Appellants argue that Dr. Kennedy’s and Nurse Cleveland’s reports are
inadequate because the Grotties’ claims “are ‘emergency medical care’ claims
governed by section 74.153 of the civil practice and remedies code” and that,
consequently, in order to be adequate, any expert report must opine that
Appellants acted wilfully and wantonly. The Grotties respond first that
Appellants did not provide emergency medical care and second that section
74.153 is not applicable to section 74.351 expert reports. We need not
determine, however, whether Appellants provided emergency medical care to
Amarissa; the plain language of section 74.153 of the statute defeats
Appellants’ argument.5
5
… Because we do not decide whether Appellants provided emergency
medical care, we do not address the portions of Dr. Dingler and Nurse Hopson’s
subissues arguing that Amarissa was not “stable” when she arrived at the
5
Texas Civil Practice and Remedies Code section 74.153 is titled
“Standard of Proof in Cases Involving Emergency Medical Care” and provides
as follows:
In a suit involving a health care liability claim against a physician or
health care provider for injury to or death of a patient arising out of
the provision of emergency medical care in a hospital emergency
department . . . the claimant bringing the suit may prove that the
treatment or lack of treatment by the physician or health care
provider deviated from accepted standards of medical care or
health care only if the claimant shows by a preponderance of the
evidence that the physician or health care provider, with wilful and
wanton negligence, deviated from the degree of care and skill that
is reasonably expected of an ordinarily prudent physician or health
care provider in the same or similar circumstances.
Tex. Civ. Prac. & Rem. Code Ann. § 74.153. Thus, the statute sets forth the
standard of proof at trial that is required in a health care liability claim arising
out of the provision of emergency medical care. See id. An expert report,
however, is statutorily required to provide only a summary of the expert’s
opinions regarding the applicable standards of care, the manner in which the
defendant’s conduct did not meet those standards, and the causal relationship
between that failure and the injury, harm, or damages claimed. Id.
§ 74.351(r)(6).
emergency room on the day of her death; we likewise need not address the
Grotties’ argument that the wilful and wanton negligence standard of proof is
an affirmative defense or a plea in avoidance that Appellants waived by not
pleading.
6
Section 74.153’s statutorily created standard of proof and the applicable
medical standards of care are not the same thing. See Bosch v. Wilbarger Gen.
Hosp., 223 S.W.3d 460, 464 (Tex. App.—Amarillo 2006, pet. denied) (holding
that “[a]s used in the context of medical malpractice actions, the phrases
‘standard of care’ and ‘standard of proof’ are not synonymous” and rejecting
the argument that section 74.153 requires an expert to speculate in his report
as to whether a physician’s negligence was wilful and wanton). In a medical
negligence cause of action, the plaintiff must prove by competent testimony
that the defendant’s negligence proximately caused the plaintiff’s injury; to do
so, the plaintiff must prove four elements: (1) a duty by the physician to act
according to a certain standard, (2) breach of the applicable standard of care,
(3) an injury, and (4) a sufficient causal connection between the breach of the
standard and the injury. See Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988);
Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965). Thus, the medical
standard of care is an element of a plaintiff’s medical negligence cause of
action, setting the standard against which the factfinder measures the
defendant’s conduct. See, e.g., Coan v. Winters, 646 S.W.2d 655, 657 (Tex.
App.—Fort Worth 1983, writ ref’d n.r.e.) (recognizing that “[t]he medical
standard of care is the threshold question in a medical malpractice case and
must be established so that the fact finder can determine whether the doctor’s
7
act or omission deviated from the standard of care to the degree that it
constituted negligence or malpractice”).
Conversely, the standard of proof imposed by section 74.153 requires
proof—that is, evidence at trial that will more than likely be circumstantial—that
the physician or health care provider’s mental state or intent at the time of any
deviation from the medical standard of care was wilful and wanton. See Tex.
Civ. Prac. & Rem. Code § 74.153; accord Lee Lewis Constr., Inc. v. Harrison,
70 S.W.3d 778, 785 (Tex. 2001) (explaining requirements of gross negligence
may be proved by circumstantial evidence). The Texas Supreme Court has
explained repeatedly that it is a tortfeasor’s intent or mental state that
distinguishes between negligence, gross negligence, knowing acts or omissions,
wilful negligence, and intentional conduct. See, e.g., Diamond Shamrock Ref.
Co. v. Hall, 168 S.W.3d 164, 164 (Tex. 2005) (“What separates ordinary
negligence from gross negligence is the defendant’s state of mind.”); Tex. Dep't
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004) (“[I]t is the
defendant’s state of mind[—]whether the defendant knew about a peril but
nevertheless acted in a way that demonstrated that he did not care about the
consequences[—]that separates ordinary negligence from gross negligence.”);
La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex. 1999) (same); St. Paul
Surplus Lines v. Dal-Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998)
8
(recognizing a culpability continuum of gross negligence, knowingly, wilful, and
intentional, with gross negligence being the lowest mental state); see also
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 263 (Tex.
2008) (holding that “[i]n this case, the record fails to show the required clear
and convincing evidence of a state of mind so indifferent to peril as to elevate
the hospital’s conduct from negligence to gross negligence”).
Dr. Dingler and Nurse Hopson assert in their reply brief that section
74.153’s wilful and wanton negligence standard of proof “is synonymous with
gross negligence.” Assuming Appellants are correct, they have not cited, and
we have not located, any authority for the proposition that to prevent dismissal
of a gross negligence pleading in a health care liability claim, a statutory expert
report must offer an opinion that a health care provider’s act or omission—when
viewed objectively from the standpoint of the actor at the time of its
occurrence—“involve[d] an extreme degree of risk, considering the probability
and magnitude of the potential harm to others,” and that the health care
provider had “actual, subjective awareness of the risk involved, but
nevertheless proceed[ed] with conscious indifference to the rights, safety, or
welfare of others.” Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (Vernon
2008) (setting forth the definition of “gross negligence”). Indeed, in light of the
limited discovery permitted before an expert report is filed and in light of the
9
proof necessary to establish a health care provider’s objective understanding of
a risk and his subjective disregard of that risk, it is doubtful that an expert
preparing a section 74.351 report would ever be able to offer an opinion that
a health care provider acted with the requisite state of mind to establish gross
negligence or wilful and wanton negligence. See id. § 74.351(s), (u)
(authorizing only limited discovery before an expert report is filed); Bosch, 223
S.W.3d at 464 (explaining that in light of this limited discovery, an opinion set
forth in a section 74.351 expert report concerning wilful and wanton negligence
“would most likely be sheer speculation”).
Although Dr. Dingler and Nurse Hopson urge us to equate wilful and
wanton negligence with gross negligence, we decline to do so, and we do not
purport here to construe the term “wilful and wanton negligence” as used in
section 74.153; it appears that conflicting definitions may exist. Compare St.
Paul Surplus Lines, 974 S.W.2d at 53 (setting forth culpability continuum), with
Dunlap v. Young, 187 S.W.3d 828, 836 (Tex. App.—Texarkana 2006, no pet.)
(equating wilful and wanton negligence with gross negligence), and State v.
Crawford, 262 S.W.3d 532, 541 (Tex. App.—Austin 2008, no pet.) (explaining
that “[t]he term ‘willful’ [sic] in a statute is ‘a word of many meanings, its
construction often being influenced by its context’” and quoting Paddock v.
Siemoneit, 147 Tex. 571, 218 S.W.2d 428 (1949), which quotes Spies v.
10
United States, 317 U.S. 492, 497, 63 S. Ct. 364, 367 (1943)). We hold only
that, whatever definition of wilful and wanton is utilized, section 74.153
requires proof at trial of a mental state or state of mind beyond mere negligence
of the physician or health care provider at the time of the physician or health
care provider’s deviation from the medical standard of care. See Tex. Civ. Prac.
& Rem. Code § 74.153.
Appellants nonetheless urge us to superimpose section 74.153’s standard
of proof requirements onto the expert report requirements codified in section
74.351(r)(6). But the rules of statutory construction prevent us from doing so.
In construing a statute, our objective is to determine and give effect to the
legislature’s intent. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008); City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); Nauslar v. Coors
Brewing Co., 170 S.W.3d 242, 252–53 (Tex. App.—Dallas 2005, no pet.). If
a statute’s language is unambiguous, we generally interpret the statute
according to its plain meaning. Nauslar, 170 S.W.3d at 253. We begin by
examining the exact wording and apply the tenet that the legislature chooses
its words carefully and means what it says. See In re M.N., 262 S.W.3d at
802; Nauslar, 170 S.W.3d at 253. We determine legislative intent from the
entire act and not just isolated portions. Nauslar, 170 S.W.3d at 253. In
determining the meaning of a statute, a court must consider the entire act, its
11
nature and object, and the consequences that would follow from each
construction. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.
1991); see generally Tex. Gov’t Code Ann. §§ 311.001–.034 (Vernon 2005)
(Code of Construction Act setting forth presumptions and matters to be
considered in construing statute).
Here, the legislature made its intent in section 74.153 clear by carefully
choosing the words “standard of proof” rather than “standard of care.” The
legislature intended, as it stated in section 74.153, that a claimant “may prove”
a departure from the standard of care in providing emergency medical care only
if the claimant shows that the physician or health care provider “with wilful and
wanton negligence” deviated from the standard of care. Tex. Civ. Prac. & Rem.
Code § 74.153. Thus, the legislature prescribed a claimant’s burden of proof
at trial in a case involving emergency medical care. See Dill v. Fowler, 255
S.W.3d 681, 684 (Tex. App.—Eastland 2008, no pet.) (couching the statutory
language as a “standard of care” but applying it in a no-evidence summary
judgment context as a burden of proof); see also Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (holding that statutory
expert report “need not marshal all the plaintiff’s proof”). The plain language
of section 74.153 does not purport to alter the medical standards of care
applicable to emergency medical care.
12
Considering the entire act, we note that despite the enactment of section
74.153, the legislature did change section 74.351(r)(6), which sets forth the
requirements of an expert report. The legislature could have added a sentence
to section 74.351(r)(6) requiring an expert report in an emergency medical care
case to opine that the physician or health care provider acted with wilful and
wanton negligence. But the legislature did not do so, and nothing in the
unambiguous language of section 74.153 indicates such an intent.6 In fact, in
subsection (j) of section 74.351, the legislature expressly forbid the imposition
of extra requirements on expert reports; the legislature provided, “Nothing in
this section [section 74] shall be construed to require the serving of an expert
report regarding any issue [i.e., here, a wilful and wanton mental state] other
than an issue relating to liability or causation.” Tex. Civ. Prac. & Rem. Code
Ann. 74.351(j). Nothing in our review of the entire act indicates that the
6
… Dr. Dingler urges us to apply “the doctrine of last antecedent” to hold
that the phrase “wilful and wanton negligence” as used in section 74.153
modifies “deviated from the degree of care and skill that is reasonably expected
of an ordinarily prudent physician or health care provider in the same or similar
circumstances.” Applying the doctrine of last antecedent, however, does not
alter the plain language of section 74.153; the statute, even applying the
doctrine of the last antecedent, sets forth a standard of proof for a health care
provider’s intent or mental state that is applicable at trial but does not alter the
medical standards of care that an expert must set forth in an expert report. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r).
13
legislature intended section 74.153 to alter the expert report requirements it set
forth in section 74.351(r)(6).
And finally, as we have already alluded to, Appellants’ construction of
section 74.153 would have the absurd consequence of requiring a claimant to
obtain an expert opinion on a physician’s or health care provider’s mental state
at the time he or she was negligent after reviewing only very limited discovery.
See Tex. Gov’t Code Ann. § 311.023(5) (recognizing that consequences of
particular construction may be considered in construing statute); Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(s), (u) (authorizing only limited discovery before
an expert report is filed); Bosch, 223 S.W.3d at 464 (explaining impossibility
of obtaining such an opinion in light of statutorily limited discovery).
For these reasons, we decline Appellants’ request that we judicially
rewrite the statute to superimpose section 74.153’s wilful and wanton standard
of proof at trial upon the criteria for expert reports set forth by the legislature
in section 74.351(r)(6). We hold that the trial court did not abuse its discretion
by overruling Appellants’ objections asserting that Dr. Kennedy’s and Nurse
Cleveland’s reports were inadequate because they did not offer opinions that
Appellants’ standard of care violations—outlined and discussed in the
reports—were performed wilfully and wantonly. We likewise hold that the trial
court did not abuse its discretion by denying Appellants’ motion to dismiss on
14
this basis. We overrule Dr. Dingler and Nurse Hopson’s subissues 1(a), 1(b),
and the first portion of their subissue 1(c).7 We also overrule Nurse Benish’s
issue 2.
V. T HE E XPERT R EPORTS A RE A DEQUATE
A trial court must grant a motion to dismiss based on the alleged
inadequacy of an expert report only if it finds, after a hearing, that “the report
does not represent an objective good faith effort to comply with the definition
of an expert report” in the statute. Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l). An expert report “need not marshal all the plaintiff’s proof.”
Palacios, 46 S.W.3d at 878 (construing former art. 4590i, § 13.01). It must
simply provide a fair summary of the expert’s opinions as to 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 that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(r)(6).
7
… The joint brief filed by Dr. Dingler and Nurse Hopson contains no
arguments challenging any substantive aspect of Dr. Kennedy’s or Nurse
Cleveland’s reports concerning Nurse Hopson except based on the wilful and
wanton negligence issue; Nurse Hopson does join Dr. Dingler’s arguments that
neither Dr. Kennedy nor Nurse Cleveland were qualified to testify on causation.
15
To constitute a good faith effort, the report must “discuss the standard
of care, breach, and causation with sufficient specificity to inform the
defendant of the conduct the plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit.” Palacios, 46
S.W.3d at 875. A report does not fulfill this requirement if it merely states the
expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.
But the information in the report “does not have to meet the same requirements
as the evidence offered in a summary-judgment proceeding or at trial.” Id. The
claimant’s expert must incorporate enough information to fulfill two purposes:
(1) inform the defendant of the specific conduct the plaintiff has called into
question, and (2) provide a basis for the trial court to conclude the claims are
meritorious. Id.
When reviewing the adequacy of a report, the only information relevant
to the inquiry is the information contained within the four corners of the
document. Id. 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. See id. However, section 74.351 does not prohibit experts, as
opposed to courts, from making inferences based on medical history. Marvin
v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824, at *4 (Tex.
App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.); see also Tex. R.
16
Evid. 703 (providing that an expert may draw inferences from the facts or data
in a particular case); Tex. R. Evid. 705 (providing that expert may testify in
terms of opinions and inferences).
A. Dr. Kennedy’s Opinions Concerning the Standard of Care Violations
by Dr. Dingler
Dr. Dingler argues that Dr. Kennedy did not explain how Dr. Dingler
directly breached the standard of care for either an emergency medical care
claim or a nonemergency medical care claim. To the extent Dr. Dingler claims
Dr. Kennedy was required to opine that Dr. Dingler acted wilfully and wantonly,
we have overruled that contention as set forth above. To the extent Dr. Dingler
complains that Dr. Kennedy’s report does not explain Dr. Dingler’s breaches of
a standard of care, we address this contention below.
Dr. Kennedy’s report contains the following:
The standard of care for a physician who supervises mid-level
practitioners (Nurse Practitioners and Physician Assistants) requires
that the physician provide adequate supervision, training and
monitoring to ensure that the Nurse Practitioner performs
appropriate histories and physical examinations. The standard of
care requires the supervising physician to have a clear
understanding and agreement regarding what methods of treatment
the mid-level provider will use for common conditions such as
gastroenteritis, vomiting, diarrhea and dehydration. The standard
of care requires the supervising physician to provide clear
instructions (i.e. protocols) to confer with the supervising physician
when the mid-level practitioner has a plan to discharge a patient
without following the established and agreed upon methods of
treatment. Since the supervising physician is responsible for the
17
medical care that is rendered by the mid-level practitioner under his
supervision, he must make sure that the mid-level provider has
adequate education, training and experience to provide competent
medical care.
The standard of care for a physician supervising a Nurse
Practitioner who is treating a young child in the emergency
department with a history of vomiting and diarrhea requires that the
physician ensure that the Nurse Practitioner has obtained an
adequate history. This would include information regarding the
duration, severity and quantity of the vomiting and diarrhea, and
the order in which the symptoms developed, the presence or
absence of fever, the consistency and content of stools, [and] the
child’s recent intake, appetite and ability to keep food and fluids
down. The standard of care requires that the physician ensure that
the Nurse Practitioner conducted an appropriate physical
examination of the child including assessment of mental status
(including signs of lethargy or anxiety), a full set of vital signs,
assessment of skin turgor (including whether mucous membranes
are moist or dry and whether the eyes are sunken), a general
assessment of the ears, throat, heart, lungs, abdomen and
extremities and assessment of weight with a comparison of the
child’s usual weight.
The standard of care requires that [] when there is a significant
decrease in the child’s weight (i.e. over 6%) and the child appears
ill, that a urine specific gravity or other serum studies (electrolytes,
blood urea nitrogen and creatinine) be obtained to further clarify the
child’s actual fluid status.
The standard of care requires that children with moderate
dehydration (6% to 9%) be kept in the ER (or another supervised
setting such as a physician’s office or urgent care center) to be
given oral replacement therapy (ORT). The dehydration is corrected
by giving at least 60-120 ml/hr by mouth over approximately a four
(4) hour period. Following this therapy, the child’s hydration should
be reassessed. The child should not be discharged from the ER
until the oral hydration therapy has been successfully given. If the
oral replacement therapy is not successful due to intolerance to oral
18
intake or excessive continued losses, the child should be given IV
fluids and evaluated for admission if necessary.
The standard of care requires that the supervising physician ensure
that a Nurse Practitioner working under his supervision be aware
that the administration of Benadryl or other medications that cause
drowsiness are not indicated for the treatment of vomiting and
diarrhea due to acute gastroenteritis.
The standard of care requires that the physician provide adequate
training and supervision to ensure that the nurse practitioner knows
how to provide adequate discharge instructions.
DEVIATIONS BY DR DINGLER:
It is my opinion that Dr. Dingler fell below the standard of care and
was negligent by failing to provide adequate supervision of Nurse
Practitioner Benish. Based upon the numerous deficiencies in Nurse
Practitioner Benish’s history and physical examination of Amarissa,
it is clear that Dr. Dingler did not ensure that this Nurse Practitioner
knew how to take an adequate history and physical examination.
Since Nurse Practitioner Benish did not follow accepted protocols
(i.e. administration of oral replacement therapy for moderate
dehydration) to treat Amarissa, Dr. Dingler did not ensure that
Nurse Practitioner Benish had adequate training and experience to
diagnose and treat complications of acute gastroenteritis including
dehydration.
Dr. Dingler fell below the standard of care and was negligent by
failing to ensure that Nurse Practitioner Benish obtained an
adequate history including the duration, severity and quantity of the
vomiting and diarrhea, the order in which the symptoms developed,
the presence or absence of fever, the consistency and content of
stools and Amarissa’s recent intake, appetite and ability to keep
food and fluids down. Dr. Dingler fell below the standard of care
and was negligent by failing to ensure that Nurse Practitioner
Benish conducted an appropriate physical examination of Amarissa
including assessment of mental status (including signs of lethargy
or anxiety), complete vital signs (including respiratory rate and
19
blood pressure), assessment of skin turgor (including whether
mucous membranes are moist or dry and whether the eyes are
sunken) and assessment of weight with a comparison of
Amarissa’s usual weight.
Dr. Dingler was below the standard of care and [was] negligent
because he allowed Amarissa to be discharged from the ER without
a urine specific gravity being ordered even though she had a history
consistent with dehydration (10 episodes of vomiting and diarrhea),
symptoms of moderate dehydration (anxiety and ill appearing) and
a significant decrease in Amarissa’s weight (i.e. nearly 11%). Dr.
Dingler was below the standard of care and negligent because he
allowed Amarissa to be discharged from the ER without
administration of oral replacement therapy (ORT). Dr. Dingler was
below the standard of care and negligent because he allowed
Amarissa to be discharged from the ER without adequate discharge
instructions regarding the signs and symptoms of dehydration,
without adequate instructions for home oral replacement therapy
and with specific instructions for Amarissa to be given Benadryl
every 6-8 hours.
On appeal, Dr. Dingler asserts that Dr. Kennedy did not provide a fair
summary of Dr. Dingler’s negligence. Dr. Dingler claims that Dr. Kennedy
“needed to provide some factual information that Dr. Dingler did not train,
supervise, or monitor Nurse Benish, rather than merely express an ipse dixit
opinion that because Nurse Benish allegedly breached the standard of care, she
must not have been trained or supervised properly.” But Dr. Kennedy’s report
does provide a fair summary of Dr. Dingler’s alleged standard of care violations
and does provide specific allegations of standard of care violations by Dr.
Dingler, not just Nurse Benish.
20
To recap the standard of care portions of Dr. Kennedy’s report set forth
above concerning Dr. Dingler, Dr. Kennedy set forth at least two specific
standard of care violations by Dr. Dingler: (1) he failed to adequately supervise
and train Nurse Benish by (a) failing to ensure she knew how to take an
adequate medical history, (b) failing to ensure she knew how to perform an
adequate physical exam, and (c) failing to adequately train her on recognition
and treatment of dehydration;8 and (2) discharging Amarissa (a) without a urine
specific gravity study being ordered, (b) without implementing oral replacement
therapy at the hospital or providing instructions for it at home and (c) with
instructions for the administration of Benadryl. After setting forth these
standard of care violations, Dr. Kennedy’s report sets forth the conduct that the
standard of care required in the taking of a medical history: taking an adequate
history “that included the duration, severity and quantity of the vomiting and
diarrhea, the order in which the symptoms developed, the presence or absence
8
… In one subpart of one subissue, Dr. Dingler appears to argue that these
standard of care violation allegations constitute an allegation of “vicarious”
liability against Dr. Dingler. We cannot agree; the portions of Dr. Kennedy’s
report concerning Dr. Dingler allege specific acts or omissions by Dr. Dingler
himself. Moreover, if the Grotties had asserted a theory of vicarious liability
against Dr. Dingler for Nurse Benish’s negligence, an expert report addressing
only Nurse Benish’s negligence would have been sufficient. See, e.g., Univ. of
Tex. Med. Branch v. Railsback, 259 S.W.3d 860, 867–68 (Tex. App.—Houston
[1st Dist.] 2008, no pet.) (recognizing proposition and citing other courts of
appeals cases so holding).
21
of fever, the consistency and content of stools and Amarissa’s recent intake
. . . .” Dr. Kennedy’s report then sets forth the conduct that is required to
meet the standard of care in the taking of a medical exam: “assessment of
mental status . . . , complete vital signs (including respiratory rate and blood
pressure), assessment of skin turgor (including whether mucous membranes are
moist or dry and whether the eyes are sunken) and assessment of weight with
a comparison of Amarissa’s usual weight.” The report then sets forth the
treatment that should have been given to meet the standard of
care—“administration of a urine specific gravity study and oral replacement
therapy” based on ten episodes of vomiting and diarrhea, symptoms of
moderate dehydration, and an 11% decrease in weight—and opines that Dr.
Dingler’s conduct in allowing Amarissa’s discharge without a urine specific
gravity study and without oral replacement therapy at the hospital or
instructions for it at home and with instructions for administration of Benadryl
fell below the standard of care.
For the purpose of a statutory expert report, statements concerning the
standard of care and breach need only identify what care was expected and
was not given with such specificity that inferences need not be indulged to
discern them. See Palacios, 46 S.W.3d at 880; Thomas v. Alford, 230 S.W.3d
853, 858 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Dr. Kennedy’s
22
report meets this requirement. We hold that the trial court did not abuse its
discretion by determining that Dr. Kennedy’s report was adequate in this regard.
We overrule the second portion of Dr. Dingler and Nurse Hopson’s subissue 1(c)
dealing with Dr. Dingler.
B. Dr. Kennedy’s Opinions that the Standard of Care Violations by Dr.
Dingler and Nurse Benish Proximately Caused the Death of
Amarissa
Nurse Benish claims in her first issue that Dr. Kennedy’s causation
opinions are inadequate because they are conclusory. Dr. Dingler and Nurse
Hopson claim in one portion of their subissue 1(d) that Dr. Kennedy was “not
qualified to opine regarding the cause of death” and that Dr. Kennedy’s
causation opinions are “conclusory.” They claim that “[f]or Dr. Kennedy to
opine regarding Amarissa’s cause of death, his CV and expert report need to
establish he was qualified regarding the specific issue of dehydration as a cause
of death . . . . Dr. Kennedy’s CV and expert report merely state[] that he was
a medical examiner from 1989 to 1996 . . . and fail to explain how he is
qualified to opine regarding the specific issue of cause of death.” 9
9
… No Appellant challenges Dr. Kennedy’s qualifications to opine on the
standards of care or on any Appellant’s alleged departure from them. See Tex.
Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(B), .402(b), (c) (Vernon 2005)
(setting forth qualifications for experts opining on standards of care and
whether defendant departed from them).
23
An expert is qualified to give opinion testimony about the causal
relationship between the injury claimed and the alleged departure from the
applicable standard of care if he is “otherwise qualified to render opinions on
such causal relationship under the Texas Rules of Evidence.” See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(r)(5)(C) (Vernon Supp. 2008), § 74.403(a)
(Vernon 2005). The Texas Rules of Evidence provide that “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702; see also
Roberts v. Williamson, 111 S.W.3d 113, 121–22 (Tex. 2003) (recognizing that
while medical license does not automatically qualify holder to testify as expert
on every medical question, test is not whether expert practices in a particular
field of medicine, but rather whether offering party has established that expert
has knowledge, skill, experience, training, or education regarding specific issue
before court that would qualify expert to give opinion on particular subject and
holding that based on qualifications and experience, pediatrician was qualified
to opine on cause and effect of neurological injuries). We review a trial court’s
determination that an expert is qualified under an abuse of discretion standard.
Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.
24
App.—Houston [14th Dist.] 2007, no pet.) (citing Broders v. Heise, 924 S.W.2d
148, 151–52 (Tex.1996)).
Concerning his qualifications, Dr. Kennedy’s report states, in part:
I obtained my medical education and graduated from Oregon Health
Sciences University in 1978. I completed a Family Practice
Residency at Oregon Health Sciences University from 1978 to
1981. Throughout my career I have worked as an Emergency
Department physician, a Family Practice physician, a County
Medical Examiner and an Associate Professor of Medicine. I am
board certified in Emergency Medicine, Family Practice, and
Forensic Medicine. I am currently licensed to practice medicine in
the states of Texas and Oklahoma.
....
I am knowledgeable with respect to the accepted standards
of care for the injuries suffered by Amarissa Grottie while under the
care of Leonard Dingler, M.D., Nancy Benish, FNP-C, L. Hopson,
R.N. and the health care providers at Nocona General Hospital
based on my education, training and experience. I have extensive
experience treating pediatric patients in the emergency department
including children who have gastroenteritis, vomiting, diarrhea,
dehydration and electrolyte imbalance. I have also diagnosed and
treated patients with fungal infections of the GI (gastrointestinal)
tract.
The “Summary” on the first page of Dr. Kennedy’s curriculum vitae states, in
part:
Board certified in Emergency Medicine, Family Practice and
Forensic Medicine. Fellowship status in the two largest Emergency
Medicine societies. Broad experience in Emergency Department
management, having served as associate director and chairman of
high volume Emergency Departments. Four years Family Practice
experience and over 20 years Emergency Medicine experience,
25
having seen over 100,000 patients. Chairman of several quality
assurance (TQM/QI/PI) committees.
We cannot agree with Dr. Dingler and Nurse Hopson’s argument that the
trial court abused its discretion by determining that Dr. Kennedy—who is a
physician licensed in Texas, who is board certified in emergency medicine and
in forensic medicine, who had practiced emergency medicine for over twenty
years, who had experience working as a county medical examiner, and who
explained that he had “extensive experience treating pediatric patients in the
emergency department including children who have gastroenteritis, vomiting,
diarrhea, dehydration and electrolyte imbalance,” like Amarissa—was qualified
to render an opinion, after reviewing Amarissa’s medical records and autopsy
results, that her death was caused by dehydration that was not properly treated
by Appellants. See, e.g., Gelman v. Cuellar, 268 S.W.3d 123, 128 (Tex.
App.—Corpus Christi 2008, pet. denied) (holding that “[u]nder the Texas Rules
of Evidence, the test is whether the offering party has established that the
expert has knowledge, skill, experience, training, or education regarding the
specific issue before the court”); McKowen v. Ragston, 263 S.W.3d 157, 164
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that standard of care
expert “is qualified to testify in an area, as here, in which [he] has knowledge,
skill, training, and experience, and where the subject of the claim (here, an
26
infection from an AV graft) falls squarely within his medical expertise”); Kelly
v. Rendon, 255 S.W.3d 665, 673 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (deciding that a doctor was qualified to submit an expert report on
standard of care in part because the report indicated the doctor had “experience
treating patients with the same condition” as the claimant). Compare In re
McAllen Med. Ctr., No. 05-0892, 2008 WL 4051053, at *2 (Tex. Aug. 29,
2008) (orig. proceeding) (holding doctor not qualified to give opinions on
hospital’s alleged negligent credentialing when her report contained “no
reference to any of those [negligent credentialing] guidelines, or any indication
that she has special knowledge, training, or experience regarding this process”).
We overrule this portion of Dr. Dingler and Nurse Hopson’s subissue 1(d).
Dr. Dingler (in a portion of his subissue 1(d)) and Nurse Benish (in her first
issue) assert that Dr. Kennedy’s report is “conclusory” concerning causation.
To establish causation, an expert report must provide information linking the
defendant’s purported breach of the standard of care to the plaintiff’s injury.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Arkoma Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 391 n.32 (Tex.
2008) (defining conclusory as “[e]xpressing a factual inference without stating
the underlying facts on which the inference is based”). To constitute a good
faith effort to establish the causal relationship element, the expert report need
27
not marshal all of the plaintiff’s proof, or present evidence as if the plaintiff was
actually litigating the merits. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
52–53 (Tex. 2002); Palacios, 46 S.W.3d at 878. No magic words such as
“reasonable medical probability” are required for compliance. Wright, 79
S.W.3d at 53. The report, however, must provide enough information within
the document to both inform the defendant of the specific conduct at issue and
to allow the trial court to conclude that the suit has merit. Id. at 52.
We have set forth Dr. Kennedy’s opinions on Dr. Dingler’s standard of
care violations. But Nurse Benish has not challenged Dr. Kennedy’s opinions
concerning her alleged standard of care violations, so we have not set forth
those opinions. We do so here for purposes of analyzing whether Dr.
Kennedy’s causation opinions adequately link Nurse Benish’s alleged standard
of care violations to Amarissa’s death.
Concerning Nurse Benish’s standard of care violations, Dr. Kennedy
opined:
The standard of care for a nurse practitioner treating a nearly two
year old child in the emergency department with a history of
vomiting and diarrhea requires that the Nurse Practitioner
understand that children with fluid and electrolyte disorders require
“meticulous diagnostic skills because serious illness may be
overlooked with cursory examination or treatment.” (quote from
Rosen’s Emergency Medicine: Concepts and Clinical Practice, Editor
John A. Marx, M.D., 2002). The standard of care also requires
that the Nurse Practitioner obtain specific information from the
28
parent or caregiver regarding the duration, severity and quantity of
the vomiting and diarrhea and the order in which the symptoms
developed. Information regarding the presence or absence of fever
and the consistency and content of stools should be obtained as
well as the child’s recent intake, appetite and ability to keep food
and fluids down. The Nurse Practitioner should also obtain
information about whether other family members are ill, whether
the child attends day care and whether the child has recently
traveled.
The standard of care requires that the Nurse Practitioner conduct
a physical examination of the child that includes assessment of
mental status (including signs of lethargy or anxiety), vital signs on
admission and discharge (including temperature, heart rate,
respiratory rate and blood pressure), assessment of skin turgor
(including whether mucous membranes are moist or dry and
whether the eyes are sunken) and a general assessment of the
ears, throat, heart, lungs, abdomen and extremities. The standard
of care requires that a weight be obtained with a comparison of the
child’s usual weight (according to prior records or information from
the parents). When there is a significant decrease in the child’s
weight (i.e. over 6%) and the child appears ill, the standard of care
requires that a urine specific gravity and other serum studies
(electrolytes, blood urea nitrogen and creatinine) be obtained to
clarify the child’s actual fluid and electrolyte status.
The standard of care requires that children with moderate
dehydration (6% to 9%) be kept in the ER (or another supervised
setting such as a physician’s office or urgent care center) to be
given a trial of oral replacement therapy (ORT). The dehydration is
corrected by giving at least 60-120 ml/hour over several hours.
Following this therapy, the child’s hydration should be reassessed.
The child should not be discharged from the ER until the oral
hydration therapy has been successfully given. If the oral
replacement therapy is not successful due to intolerance to oral
intake or excessive continued losses, the child should be given IV
fluids and evaluated for admission if necessary.
29
The standard of care requires that Nurse Practitioners be aware
that the administration of Benadryl or other medications that cause
drowsiness is not indicated for the treatment of vomiting and
diarrhea due to acute gastroenteritis. The Nurse Practitioner should
be aware that if a child is given Benadryl after discharge, the
medication will likely make the child drowsy and the parents will
not be able to assess whether the child’s mental status and
condition is deteriorating due to a fluid and electrolyte imbalance.
The standard of care requires that the Nurse Practitioner provide
both written and oral discharge instructions to the parent or
caregiver. For a child that has been evaluated for multiple episodes
of vomiting and diarrhea that is being sent home, the discharge
instructions must include specific information regarding the signs
and symptoms of dehydration and the amount and types of fluid
the child should be given at home. The discharge instructions
should indicate potential signs of worsening dehydration such as:
dry lips and mouth, a dark color or a strong smell to the urine, not
urinating very often or very much, little or no tears when crying,
sunken eyes, not paying attention to toys or television, being
difficult to wake up, vomiting up nearly everything he/she drinks or
eats or feeling thirsty but drinking liquids makes the child vomit.
For a child with mild dehydration, the discharge instructions should
include information to give the child one or two teaspoons every 5
minutes (approximately 1-2 ounces per hour) of an oral rehydration
solution, if the child does well, give bigger sips a little less often
(every 5-10 minutes). Continue this process until the child is no
longer thirsty, has adequate urinary output and is not showing any
signs of dehydration.
DEVIATIONS BY NURSE PRACTITIONER BENISH:
It is my opinion that Nurse Practitioner Benish fell below the
standard of care and was negligent by failing to recognize that
Amarissa was at least moderately dehydrated and required, at a
minimum, oral replacement therapy to be given in the ER. Nurse
Practitioner Benish failed to obtain vital information from Ms.
Grottie including the duration, quantity and contents of Amarissa’s
vomiting and the quantity, frequency and consistency of her stools
30
over the past few days. She also fell below the standard of care
by failing to obtain and document information regarding the amount
of Amarissa’s oral intake, appetite and urinary output over the past
few days. Nurse Practitioner Benish fell below the standard of care
by failing to obtain and document information regarding whether
other family members were ill, whether Amarissa attended day care
and whether she had traveled recently.
Nurse Practitioner Benish fell below the standard of care and was
negligent by failing to obtain an adequate physical assessment of
Amarissa. Nurse Practitioner Benish did not adequately assess
Amarissa’s mental status. She did not document the presence or
absence of lethargy or anxiety. Documentation that a 21-month
old child is “alert and oriented” is not adequate. Nurse Practitioner
Benish fell below the standard of care by failing to obtain
Amarissa’s respiratory rate, blood pressure and oxygen saturation
upon admission to the ER. She also failed to meet the standard of
care by allowing Amarissa to be discharged without a second set
of vital signs including temperature, heart rate, respiratory rate and
blood pressure. Nurse Practitioner Benish was negligent by failing
to assess and document Amarissa’s skin turgor including whether
her eyes were sunken.
Nurse Practitioner Benish deviated from the standard of care and
was negligent when she failed to compare Amarissa’s usual weight
with the weight obtained in the ER. Ms. Grottie informed the staff
that Amarissa’s weight was down three pounds compared to the
last weight done in her pediatrician’s office. This weight reduction
is consistent with severe dehydration because it indicates that
Amarissa had a nearly 11% weight reduction. Since Amarissa
“appeared ill” and “anxious” [and] had a weight reduction
consistent with severe dehydration, Nurse Practitioner Benish was
negligent when she failed to obtain lab studies (including urine
specific gravity and if abnormal serum electrolytes, serum
creatinine and serum BUN). Based on reasonable medical
probability, I believe that Amarissa’s urine specific gravity and
blood urea nitrogen more than likely would have been consistent
with moderate to severe dehydration. Nurse Benish was negligent
when she discharged Amarissa from the ER rather than initiating
31
oral replacement therapy with oral rehydration solution (such as
Pedialyte) over several hours.
Nurse Practitioner Benish fell below the standard of care and was
negligent when she instructed Ms. Grottie to give Amarissa
Benadryl 6.25 mg every six to eight hours and when she failed to
give specific written instructions about the signs and symptoms of
worsening dehydration (as listed above) and to return to the ER if
Amarissa did not tolerate the oral replacement therapy at home
(approximately one cup or more per hour until bedtime) or if she did
not have an adequate urinary output (i.e. wet diapers).
Dr. Kennedy’s report contains the following opinions that the standard of
care violations by Dr. Dingler and Nurse Benish caused Amarissa’s death:
CAUSATION & INJURIES:
It is my opinion based on reasonable medical probability that the
negligence of Nurse Practitioner Benish, Leonard Dingler, M.D. and
the ER nurse (L. Hopson, R.N.) at Nocona General Hospital
proximately caused Amarissa Grottie’s death. Based on reasonable
medical probability, I believe that Amarissa had vomiting and
diarrhea secondary to acute gastroenteritis. By Sunday, March 13,
2005 she was moderately to severely dehydrated and needed
treatment to replace her fluid deficit.
The autopsy findings constitute overwhelming evidence that
Amarissa’s death was more than likely proximately caused by
inadequately treated dehydration. Dr. Gofton [the Medical
Examiner] found that Amarissa appeared dehydrated with
“markedly” sunken eyes, had dry appearing conjunctive, had no
urine in her bladder and she had a postmortem BUN consistent with
severe dehydration (57 mg/dL). The comparison of Amarissa’s
weight just prior to her death to her usual weight indicates that she
was more than likely moderately to severely dehydrated while she
was in the ER on March 13, 2005.
32
Amarissa also had fungal esophagitis, but this infection does not
usually cause any significant problems and can easily be treated
with an oral antifungal medication. I do not believe that fungal
esophagitis caused Amarissa’s death although it may have caused
Amarissa to experience pain upon swallowing.
I believe that the inadequate history and physical examination that
was taken by the Nurse Practitioner Benish and Nurse Hopson
proximately caused Amarissa’s death. If Nurse Practitioner Benish,
Dr. Dingler or Nurse Hopson would have obtained an adequate
history from Ms. Grottie about the quantity and frequency of her
vomiting and diarrhea, they more than likely would have realized
that Amarissa was moderately to severely dehydrated and needed
a trial of oral replacement therapy in the ER. I believe based on
reasonable medical probability that if Nurse Practitioner Benish, Dr.
Dingler or Nurse Hopson would have taken Amarissa’s respiratory
rate and blood pressure and conducted an adequate physical
examination (including assessment of skin turgor) they more than
likely would have realized that Amarissa was moderately to
severely dehydrated and needed the trial of oral replacement
therapy in the ER, and if unsuccessful, intravenous fluids with
possible admission to the hospital.
I believe that the inadequate and improper discharge instructions
that were provided to Ms. Grottie by Nurse Practitioner Benish, Dr.
Dingler and Nurse L. Hopson proximately caused Amarissa’s death.
I believe that the two doses of Benadryl that were given to
Amarissa upon the advice of her health care providers more than
likely made Amarissa appear drowsy during the late afternoon and
evening of March 13, 2005 so that her mother did not attribute her
lethargy to the dehydration.
Based on reasonable medical probability, I believe that Amarissa’s
death at 22 months of age was proximately caused by the failure
of her health care providers to provide appropriate treatment of her
dehydration. Children are frequently evaluated in the ER when they
develop dehydration secondary to vomiting and diarrhea caused by
acute gastroenteritis. Dehydration is easily treated with oral
replacement therapy or IV fluids. Amarissa Grottie’s death is
33
unfortunate because it could have been easily prevented with
appropriate health care as discussed above.
The opinions stated in this report are based upon the information
that was available to me when the report was written, and upon
my experience, training, background, as well as the medical
literature. If additional information is provided, I may change my
opinions or may have additional opinions.
These opinions by Dr. Kennedy satisfactorily link Dr. Dingler’s and Nurse
Benish’s purported breaches of the standards of care to Amarissa’s death.10 Dr.
Kennedy specifically opined that the negligence of both Dr. Dingler and Nurse
Benish caused Amarissa’s death. He opined that Amarissa died due to
dehydration. Dr. Kennedy opined that the appropriate medical treatment for
Amarissa, which no Appellant provided, was “treatment for fluid deficit,” first
“oral replacement therapy in the ER, and if unsuccessful, intravenous fluids with
possible admission to the hospital.” He then described in detail how Dr.
Dingler’s and Nurse Benish’s deviations from the applicable medical standards
of care 11 proximately caused Amarissa’s death. Dr. Kennedy explained that if
Dr. Dingler or Nurse Benish had taken a proper medical history or had performed
10
… Nurse Hopson has not challenged in any argument on appeal Dr.
Kennedy’s causation opinions linking her alleged negligence to Amarissa’s
death.
11
… As we previously mentioned, Dr. Kennedy’s opinions concerning
Nurse Benish’s and Nurse Hopson’s standard of care violations are not
challenged on appeal; we have overruled Dr. Dingler’s challenges to Dr.
Kennedy’s opinions concerning Dr. Dingler’s standard of care violations.
34
an adequate physical examination, they “more than likely would have realized
Amarissa was moderately to severely dehydrated.” Dr. Kennedy then opined
that based on reasonable medical probability, Amarissa’s death was proximately
caused by the failure of her health care providers to provide appropriate
treatment of her dehydration and that dehydration is easily treated with oral
replacement therapy or IV fluids. Finally, Dr. Kennedy concluded, “Amarissa
Grottie’s death is unfortunate because it could have been easily prevented with
appropriate health care as discussed above.”
Without restating every sentence in the causation portion of Dr.
Kennedy’s report set forth above, a review of the above paragraphs
demonstrates information sufficient enough to inform Dr. Dingler and Nurse
Benish of the specific conduct that the Grotties have called into question and
how that conduct purportedly caused Amarissa’s death. See, e.g., Wright, 79
S.W.3d at 52 (explaining that a report is sufficient on causation if it (1) informs
the defendant of the specific conduct the plaintiff has called into question and
(2) provides a basis for the trial court to conclude the claims are meritorious).
Moreover, Dr. Kennedy’s causation opinions are not conclusory because they
specifically and extensively set forth all of the facts on which they are based.
See, e.g., Arkoma Basin Exploration Co., 249 S.W.3d at 392 n.32. The trial
court did not abuse its discretion by refusing to find Dr. Kennedy’s causation
35
opinions as to Dr. Dingler and Nurse Benish inadequate; we overrule this portion
of Dr. Dingler’s fourth issue 12 and Nurse Benish’s first issue. See Mosely v.
Mundine, 249 S.W.3d 775, 781 (Tex. App.—Dallas 2008, no pet.) (holding
expert report sufficient on causation element); Grindstaff v. Michie, 242
S.W.3d 536, 544 (Tex. App.—El Paso 2007, no pet.) (same); Patel v. Williams,
237 S.W.3d 901, 906 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (same);
12
… In one subpart of their fourth subissue 1(d), Dr. Dingler and Nurse
Hopson contend that Dr. Kennedy’s causation opinions are inadequate because
Dr. Kennedy failed to adequately summarize how Appellants’ acts, rather than
an intervening act after discharge, caused Amarissa’s death. Whether
Appellants are entitled to a new and independent cause inferential rebuttal
instruction will be determined by evidence introduced at trial; an opinion
defeating their entitlement to such an instruction need not be included in a
statutory expert report. See, e.g., James v. Kloos, 75 S.W.3d 153, 161 (Tex.
App.–Fort Worth 2002, no pet.); Hall v. Huff, 957 S.W.2d 90, 95 (Tex.
App.–Texarkana 1997, pet. denied); Comm. on Pattern Jury Charges, State Bar
of Tex., Texas Pattern Jury Charges: Malpractice, Premises, Products PJC 50.4
(2006); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(j) (expressly
limiting opinions to be included in expert report).
In yet another argument in another subpart of subissue 1(d), Dr. Dingler
and Nurse Hopson claim that Dr. Kennedy’s report is inadequate because it
“fails to explain how he reached a different conclusion on the cause of death
than the medical examiner.” The autopsy results in the record indicate that the
medical examiner concluded that Amarissa’s cause of death was “undetermined
OSC [Other Significant Causes]: fungal esophagitis; dehydration.” Thus, the
medical examiner did conclude that dehydration was a significant cause of
Amarissa’s death. The trial court did not abuse its discretion by refusing to find
Dr. Kennedy’s report inadequate on this basis.
36
Bidner v. Hill, 231 S.W.3d 471, 474 (Tex. App.—Dallas 2007, pet. denied)
(same).
C. Challenges to Nurse Cleveland’s Report
In her third issue, Nurse Benish claims that Nurse Cleveland was not
qualified to offer an opinion on causation or on “the emergency room standard
of care applicable to Nurse Benish.” In a portion of their subissue 1(d), Dr.
Dingler and Nurse Hopson likewise contend that Nurse Cleveland is not qualified
to offer an opinion on causation.
Section 74.351(r)(5)(C) expressly provides that an expert filing a
statutory expert report must be “a physician who is otherwise qualified to
render opinions on such causal relationship under the Texas Rules of Evidence.”
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C) (emphasis added).
Consequently, a nurse cannot offer an opinion in a statutory expert report on
causation. See Kelly, 255 S.W.3d at 675–76. Thus, we sustain the first
portion of Nurse Benish’s third issue and this portion of Dr. Dingler and Nurse
Hopson’s subissue 1(d).
We next address Nurse Benish’s argument in her third issue that Nurse
Cleveland was not qualified to offer an opinion on “the emergency room
standard of care applicable to Nurse Benish.” Nurse Cleveland’s report states
the following:
37
I attended Tarrant County College Fort Worth, Texas and obtained
an Associate’s Degree for Nursing in 1994. I have been a
Registered Nurse in the State of Texas from 1994 through the
present. I attended the University of Texas in Arlington, Texas and
obtained a Bachelor’s of Science in Nursing in 1996. I was a staff
Nurse at Dallas-Ft. Worth Medical Center from 1994 to 2000. I
was also the Director of the Medical Surgical and Pediatric Units in
1995 and 1996. I returned to school at the University of Texas in
Arlington, Texas and obtained a Master of Science in Nursing
degree specializing as a Family Nurse Practitioner in 2001. I
became licensed in the State of Texas as an Advanced Practice
Nurse and board certified by the American Nurses Credentialing
Center in the area of family practice in 2002. I have been a Family
Nurse Practitioner at Lake Arlington Family Medicine with Dr.
Dennis Poquiz from January of 2002 through September of 2006
when I began my current employment with Medical-Edge at the
Mansfield Family Clinic. I have also worked from 2003 through
2007 as an Assistant Clinical Professor for the University of Texas
in Arlington, Texas and Texas Women’s University in Dallas, Texas
precepting Nurse Practitioner students at the place of my
employment.
....
In my education, training and work experience as a Family Nurse
Practitioner and Registered Nurse, I have had extensive experience
managing the care of children with vomiting and diarrhea due to
acute gastroenteritis. I have diagnosed and treated numerous
patients (including children) with vomiting, diarrhea and dehydration
from acute gastroenteritis. In my role as an Assistant Clinical
Professor for the University of Texas in Arlington, I have provided
teaching to Family Nurse Practitioner students that have cared for
children with vomiting, diarrhea and dehydration. The standard of
care for the evaluation and treatment of a child with mild to
moderate dehydration that does not require IV therapy is the same
regardless if the care is provided in an office setting or in an
emergency department. If a patient with severe dehydration is
seen in an office setting, the patient will usually be referred to the
emergency department for IV therapy and in-patient care.
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Nurse Benish basically argues that because Nurse Cleveland has not practiced
in an emergency room setting, she is not qualified.
Section 74.351(r)(5)(B) sets forth the qualifications of persons giving an
opinion in a statutory expert report concerning whether a nonphysician health
care provider such as Nurse Benish departed from accepted standards of health
care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B). That section
authorizes a person to give such an opinion if they are an “expert qualified to
testify under the requirements of Section 74.402.” Id. Section 74.402(b)
provides,
(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 conditions 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.
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Id. § 74.402(b). The statute does not require, as Nurse Benish seems to argue,
that Nurse Cleveland have practiced in an emergency room setting in order to
be qualified to render standard of care opinions for the proper treatment of a
child with vomiting and diarrhea. Rather, the statute specifically provides that
a person is qualified if they are “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.” Id. (emphasis added). Nurse Cleveland’s report and
curriculum vitae establish that she practices health care in a field of practice
that involves the same type of care or treatment as that delivered by Nurse
Benish. Nurse Cleveland’s report and curriculum vitae establish that she has
thirteen years’ experience as a registered nurse, seven years’ total experience
as a nurse practitioner, five years’ experience as a nurse practitioner in a family
practice office setting, and that she possesses “extensive experience managing
the care of children with vomiting and diarrhea due to acute gastroenteritis.” In
light of the controlling statutory language and Nurse Cleveland’s education,
training, and experience, we cannot conclude that the trial court abused its
discretion by determining that Nurse Cleveland was qualified to offer opinions
on the standard of care applicable to Nurse Benish. We overrule the second
portion of Nurse Benish’s third issue.
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VI. C ONCLUSION
Viewing the information set forth within the four corners of Dr. Kennedy’s
and Nurse Cleveland’s reports (and disregarding Nurse Cleveland’s causation
opinions), we hold that the trial court did not abuse its discretion by determining
that Dr. Kennedy was qualified to offer causation opinions, that both reports
provide a fair summary of Dr. Kennedy’s and Nurse Cleveland’s opinions as to
the “applicable standards of care, [and] the manner in which the care rendered
by the physician or health care provider failed to meet the standards,” and that
Dr. Kennedy’s report provides a fair summary of the causal relationship
between the health care providers’ failure to meet the standards of care and the
injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6); Palacios, 46 S.W.3d at 878. Having addressed all of
Appellants’ issues, subissues, and arguments within the subissues and having
either determined that we need not reach Appellants’ arguments or overruled
Appellants’ issues, subissues, or arguments within subissues (with the
exception of Appellants’ assertion that Nurse Cleveland was statutorily
disqualified from offering a causation opinion), we affirm the trial court’s March
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8, 2007 order overruling Appellants’ objections to Dr. Kennedy’s and Nurse
Cleveland’s reports and denying Appellants’ motions to dismiss.
SUE WALKER
JUSTICE
PANEL: GARDNER and WALKER, JJ.; and DIXON W. HOLMAN, J. (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: February 19, 2009
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