Jon Gower, Individually and as Representative of the Estate of Aaron Ashley Gower v. University Behavioral Health of Denton A/K/A UHP, LP D/B/A University Behavioral Health of Denton Universal Health Services, Inc. And Nishendu M. Vasavada, M.D. ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00245-CV
JON GOWER, INDIVIDUALLY AND APPELLANT
AS REPRESENTATIVE OF THE
ESTATE OF AARON ASHLEY
GOWER
V.
UNIVERSITY BEHAVIORAL APPELLEES
HEALTH OF DENTON A/K/A UHP,
LP D/B/A UNIVERSITY
BEHAVIORAL HEALTH OF
DENTON; UNIVERSAL HEALTH
SERVICES, INC.; AND NISHENDU
M. VASAVADA, M.D.
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-07848-431
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MEMORANDUM OPINION1
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Appellant Jon Gower, individually and as representative of the Estate of
Aaron Ashley Gower, appeals the trial court’s dismissal of his health care liability
claims against appellees University Behavioral Health of Denton a/k/a UHP, LP
d/b/a University Behavioral Health of Denton (University); Universal Health
Services, Inc. (Universal); and Nishendu M. Vasavada, M.D. The trial court
dismissed Gower’s claims because the expert report that he served on appellees
did not comply with provisions of chapter 74 of the civil practice and remedies
code.2 On appeal, Gower contends that the trial court should not have dismissed
his claims because the report was sufficient or because the court should have
granted him an opportunity to cure any deficiencies. He also argues that the trial
court erred by considering documents outside of the report to determine the
report’s sufficiency and that the court improperly awarded attorney’s fees to
appellees. Appellees contend that the report did not qualify as a good faith effort
to comply with the statutory requirements and that under the circumstances of
this case, the trial court was not required to grant an opportunity to cure.
1
See Tex. R. App. P. 47.4.
2
Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507 (West 2017).
2
Because we hold that the report was deficient but that Gower was entitled to an
opportunity to cure, we reverse and remand.
Background Facts
In September 2014, Gower sued appellees, seeking damages. In his
original petition, Gower alleged that in January 2013, Aaron, Gower’s son, had
been admitted to a mental health hospital and had died there the next month.
Gower alleged that Aaron had presented to the hospital with symptoms of
insomnia, depression, suicidal gestures, hearing voices, and agitation.
According to Gower, during Aaron’s time at the hospital, he was manic,
distraught, delusional, and depressive. Gower pled that near noon on
February 2, 2013, Aaron was found face down in his room; he had vomit in his
mouth and was unresponsive. Paramedics took Aaron to an emergency room,
where he died four days later from respiratory failure, brain death, pneumonia,
and sepsis.
Gower alleged that during Aaron’s treatment, University (as a health care
provider) and Dr. Vasavada (as a specialist in the field of psychiatry) had acted
negligently. Specifically, Gower pled that University and Dr. Vasavada had been
negligent and grossly negligent by, among other acts, prescribing excessive
medication, failing to properly monitor Aaron, failing to adequately assess him
upon presentation and stabilize him thereafter, failing to ensure that he was seen
by qualified health care providers, and failing to properly supervise him. Gower
further pled that Universal owns and operates University and was negligent and
3
grossly negligent by failing to use ordinary care to monitor and supervise its
employees, failing to properly secure the premises and protect psychiatric
patients from harm, failing to use ordinary care to protect Aaron from the danger
presented by employees and other patients, failing to adequately warn Aaron of
the dangers presented by the lack of proper security on the premises, and failing
to have or enforce policies and procedures on various matters.
Each appellee answered the petition in November 2014. In January 2015,
Gower served appellees with an expert report. Dr. Leo Borrell, a board certified
psychiatrist, wrote the report. Concerning the events related to Aaron’s death,
the report stated,
On January 16, 2013, [Aaron] voluntarily checked himself into
[University]. He presented with agitation, bizarre behavior, severe
anxiety, suicidal ideation, and . . . synthetic marijuana (K2) abuse.
He reported a history of depression and chemical dependency.
[Aaron], 22 years old at the time, was admitted to adult inpatient care
at [University] for psychiatric stabilization under the care and
treatment of psychiatrist Dr. Nishendu M. Vasavada. . . .
[Aaron] was diagnosed [with] bipolar disorder with psychotic
features and K2 and marijuana abuse. He was delusional and also
had a history of suicide ideation. . . . [He] remained in [University]
until February 2, 2013, as in inpatient in the [Critical Stabilizing Unit].
The records reflect that [Aaron] was initially prescribed
Depakote and Seroquel but refused to take either[,] stating he was
worried about the side effects. . . . On January 23, he was . . .
administered Vistaril 50 mg because he was suffering from severe
anxiety. On January 28, there was a change in [Aaron’s] behavior
and he became very distraught. He was suffering from a great deal
of depression, anxiety, agitation[,] and delusional thinking. . . .
[Aaron] became hypertensive, so an internal medicine consult was
ordered and he began taking [Lisinopril] . . . and Clonidine . . . on
4
January 31. Dr. Dipprey,[3] the internal medicine specialist that
treated [Aaron] for hypertension[,] did not note any specific findings
in his charts. On February 1, . . . [Aaron] appeared to be somewhat
sedated. . . .
When Dr. Vasavada saw [Aaron] around 10:30 a.m. on
February 2, he noted that [Aaron] was sedated . . . and needed to be
seen by a medical doctor. According to medical records, around
noon [Aaron] was sleeping in his room and began making strange
noises. The nursing staff . . . found him unconscious with vomit in
his mouth. A code blue was called . . . . His eyes were fixed and
dilated. . . .
[Aaron] was transferred to [a hospital] where he was placed on
life support. His family was advised [he] had suffered severe brain
damage due to a lack of oxygen for an extended period of time
leading up to the time he was found at [University]. [Aaron] was
pronounced dead on February 6, 2013.
In the report, Dr. Borrell separated his discussion of the alleged negligence
of Universal, University, and Dr. Vasavada. With respect to Universal, Dr. Borrell
wrote,
At all relevant times [Universal] owned . . . and managed
[University] . . . . [Universal] held itself out as providing for the
diagnosis, treatment, and care of [psychiatric] patients . . . .
[Universal] owed a duty to [Aaron] to act as a reasonably prudent
owner, operator, and/or management company of an inpatient
psychiatric facility under the same or similar circumstances.
. . . [Universal] committed one or more of the following acts
. . . of negligence[:] . . . failing to use ordinary care to monitor and
supervise its employees charged with the care and supervision of
psychiatric patients, including but not limited to the plaintiff [R.H.], all
of which posed an unreasonable risk of harm to patients like the
plaintiff[;] . . . and failing to have/or enforce policies and procedures
on: 1) Failing to use ordinary care in the hiring, monitoring,
3
Gower added Dr. Trisha Dipprey as a defendant through his first amended
petition. Dr. Dipprey is not a party in this appeal, and Gower states that she has
been dismissed from the underlying suit.
5
evaluating[,] and supervising [of] employees and staff charged with
the care and supervision of psychiatric patients; 2) Conducting
appropriate screening/review of credentials for staff physicians;
3) Ensuring patient safety; 4) Preventing the prolonged
hospitalization of patients for the purpose of profit over patient care;
and 5) Implementing proper procedures to ensure patients were
properly evaluated and treated from the time of admission through
the time of discharge.
Further, [Universal] is liable for the negligent acts and
omissions of its various agents . . . pursuant to the doctrine of
respondeat superior . . . . Each of the above-cited acts . . . [was]
foreseeable and a proximate cause of the injuries, damages,
suffering[,] and death of [Aaron]. [Emphasis added.]
Concerning University’s alleged negligence, Dr. Borrell stated in his report
that University
breached the standard of care in this matter. On the occasion(s) in
question, as described herein, [University] committed one or more of
the following acts . . . of negligence[:] . . . failing to use ordinary care
to monitor and supervise its employees charged with the care and
supervision of psychiatric patients, including but not limited to
[Aaron], . . . and failing to have/or enforce policies and procedures
on: 1) Hiring, monitoring, evaluating and supervising employees and
staff; 2) Conducting appropriate screening/review of credentials for
staff physicians; 3) Ensuring patient safety; 4) Prescribing excessive
medication to [Aaron] under the circumstance[s][;] 5) Failing to
properly monitor [Aaron’s] condition; . . . 6) Failing to provide the
appropriate level of supervision; [and] 7)[ ]Failing to properly stabilize
[Aaron].
I have experience and I am familiar with the standard of care
that . . . hospitals treating mental healthcare patients should follow
when a patient’s vitals are out of normal range. . . . First, a
registered nurse must supervise and evaluate the nursing care for
each patient. Thus, once a patient’s vitals are above the normal
range, it is imperative that those vitals are re-checked and that there
is nurse or even physician intervention if necessary. [Aaron’s] blood
pressure and heart rate were above the normal range on several
occasions during his time as an inpatient . . . . [O]n each of these
occasions, [Aaron’s] blood pressure and heart rate should have
6
been re-checked, a nurse should have been notified, and nurse
intervention should have occurred. The staff failed to do this . . . .
[Aaron’s] blood pressure and/or heart rate were out of the normal
range and no follow-up and/or re-check was completed . . . .
Finally, in the section of the report concerning Dr. Vasavada’s alleged
negligence, Dr. Borrell stated,
Further, the internal medicine specialist, Dr. Dipprey, who
evaluated [Aaron’s] hypertension did not note anything in his chart.
The only thing that is noted is that [Aaron’s] hypertension was
“treated.” No specific findings are mentioned nor even what testing
and procedures Dr. Dipprey performed. Dr. Vasavada was the
attending and was similarly responsible for monitoring [Aaron’s]
medical conditions and changes thereto at all time[s], including
ensuring proper orders were put in place to manage and monitor
[Aaron’s] blood pressure and heart rate. Moreover, Dr. Vasavada’s
discharge summary merely states that an internal medicine consult
was ordered and that [Aaron] was evaluated, but once again no
specific findings are documented. [Aaron’s] chart has no indication
of proper treatment relating to his hypertension. . . .
There were also other occasions that [Aaron] exhibited
unusual behavior and/or symptoms and no follow-up or interventions
were taken. . . . In all of the above instances, [University] did not
meet the standard of care in that it failed to ensure registered nurses
supervised and evaluated the nursing care of [Aaron], and the signs
and symptoms associated with his changing medical condition.
Specifically, [Aaron’s] vitals and life-threatening condition were either
not documented and/or his vitals were not properly monitored and
re-evaluated.
Furthermore, I am familiar with the standard of care required
in emergency situations like [Aaron’s], when he was found
unresponsive in his room on the floor. The patient has the right to
receive care in a safe setting . . . . [University] did not meet the
standard of care in that it had inadequate emergency equipment
needed to resuscitate [Aaron]. Namely, the pads for Automated
External Defibrillator (AED) were not available on the crash cart
causing the AED to be useless. (See Dept. of Health Complaints –
Investigation dated 5/16/13).
7
Dr. Borrell closed his report with a summarizing paragraph about the
alleged negligence of all three defendants:
In summary, the conduct called into question is the failure by
[University], its parent company [Universal], Dr. Dipprey, and Dr.
Vasavada to recognize and properly treat [Aaron’s] symptoms and
failure to provide the appropriate medications that ultimately led to
his untimely death. Furthermore, the parties also failed to meet the
standard of care as described above by failing to adequately
respond to [Aaron’s] distress or to have the proper life-saving
equipment available. It is my opinion that the failures set forth above
were the proximate cause of [Aaron’s] death. Namely, had [Aaron’s]
high blood pressure been properly monitored and treated in a timely
manner so as to investigate the cause, or had [University] had the
appropriate life-saving equipment, it is my opinion that to a
reasonable degree of medical probability he would have received
timely treatment of his condition and [would have] survived.
University, Universal, and Dr. Vasavada all filed timely objections to the
adequacy of Dr. Borrell’s report. They all contended that the report did not
qualify as a good faith effort to satisfy the requirements of section 74.351 of the
civil practice and remedies code. They all argued that the report failed to
establish Dr. Borrell’s qualifications to opine about the subjects discussed within
the report and did not sufficiently describe the applicable standard of care, how
each defendant breached the standard, and the causal relationship between the
alleged breaches and Aaron’s death. Dr. Vasavada also noted that the report
discussed the care received by an unknown patient, R.H. University and
Universal attached documents to their objection to Dr. Borrell’s report, including a
report from Aaron’s autopsy stating that he had died from dural sinus thrombosis
with associated brain edema.
8
Dr. Borrell did not amend his report to address the deficiencies asserted by
appellees’ objections. Months after appellees filed their objections, they filed
motions to dismiss Gower’s lawsuit for his failure to serve an expert report that
complied with section 74.351. Gower responded to the objections and the
motions to dismiss. He contended that Dr. Borrell’s report represented a good
faith effort to comply with the statute. Alternatively, he argued that he should be
granted leave to file an amended expert report to correct any deficiencies.
Universal and University replied to Gower’s response. They restated their
contentions that Dr. Borrell’s report failed to establish his qualifications to opine
about their standard of care, failed to explain the standard of care or how the
standard of care was breached, and failed to adequately address causation from
any such breach to Aaron’s death. They also contended that the trial court could
consider the documents attached to their objections, which they asserted showed
that some of the factual statements in Dr. Borrell’s report were inaccurate. With
respect to Gower’s alternative request for an opportunity to cure any deficiencies
in Dr. Borrell’s report, Universal and University argued,
[Gower’s] lack of any attempt to provide a compliant report (when
there was ample time to do so after [appellees] filed their objections
and before [Gower’s] deadline expired) or even correct the
misinformation, misrepresentation[,] and fabrication asserted by Dr.
Borrell . . . clearly demonstrates that there was no good faith effort
made, and thus, [Gower] is not entitled to obtain the requested 30
day extension . . . .
The trial court held a hearing on the motions to dismiss. By the time the
court held the hearing in April 2016, more than a year had passed since
9
appellees had first objected to Dr. Borrell’s report. During the hearing, the trial
court made the following observation:
I would expect in a medical malpractice case to be able to read the
report and understand precisely how and why the patient died, at
least in a case involving a fatality, and I am left after reading this
report with confusion as to, you know, other than the medical
terminology, what the cause of death really was and how that in any
way relates back to any neglect by the [defendants].
Also at the hearing, with respect to whether the trial court should grant Gower an
opportunity to amend the report to cure any deficiencies, counsel for Universal
and University stated,
There were a couple of things that were glaring on their face that
should have been fixed and there’s been no attempt to fix in over a
year and no attempt to fix in the last six months since the reply was
filed. And there have been additional conversations held with
opposing counsel . . . where those specific things were discussed
and no attempt has been made. And I will just leave it at that. I
think the time that’s gone by and the lack of effort to correct not only
those things but other things as well is indicative of a lack of good
faith, Your Honor.
Finally, in explaining why it would be granting the motions to dismiss, the trial
court stated,
In this case, this is not a difficult call for me. And while I am
sympathetic with the fact that a young person lost [his] life, I simply
don’t believe this report is a good faith representation of any opinion
that would justify not only the expert’s qualifications to render the
opinions that are given, but to explain the basis factually or causally
for those opinions. And because of that, coupled with the failure to
even attempt to remedy the obvious error in the report, if not errors
in the report, I similarly find that it is not a good faith effort to bring
the report into compliance as could have been done any time during
the last year, and therefore will not only . . . sustain the objections
and grant the dismissal of the case, but I am going to deny [Gower]
an opportunity to revise or modify the report in the next 30 days.
10
Following the hearing, the trial court signed orders sustaining appellees’
objections to Dr. Borrell’s report and granting their motions to dismiss. Gower
filed a motion for new trial in which he alleged that he should have been given an
opportunity to cure any deficiencies in the report. To the motion for new trial,
Gower attached an amended report written by Dr. Borrell. He also attached, for
the first time, a report written by Richard Bays, a registered nurse. In his report,
Bays opined about the standards of care, alleged breaches of the standard, and
causation related to University.
University and Universal filed a motion to strike Dr. Borrell’s amended
report and Bays’s report on the ground that they were untimely. Dr. Vasavada
also objected to Dr. Borrell’s amended report and responded to Gower’s motion
for new trial, contending that the trial court’s “action of denying an opportunity
cure was justified by the incurable nature of the deficiencies.” After holding a
hearing on Gower’s motion for new trial, the trial court denied it. Gower brought
this appeal.
The Trial Court’s Dismissal Decision
In his first issue, Gower contends that Dr. Borrell’s original report met the
“minimal requirement” of a good faith effort to comply with chapter 74’s
requirements and that the trial court abused its discretion by ordering dismissal.
In his second issue, Gower contends that the trial court abused its discretion by
considering evidence outside the four corners of Dr. Borrell’s report to support
11
dismissal. Gower contends in his third issue that the trial court improperly
awarded attorney’s fees to appellees.
The inadequacy of Dr. Borrell’s first report
In a health care liability claim,4 a plaintiff must serve each defendant with a
report and a curriculum vitae of the report’s author. Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a). The report must be written by an expert qualified to give an
opinion on the matters in the report, must inform the defendant of the specific
conduct called into question, and must provide a basis for the trial court to
determine that the plaintiff’s claim has merit. See id. §§ 74.351(r)(5)(A), (r)(6),
74.401(a); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see also
Hebner v. Reddy, 498 S.W.3d 37, 40 (Tex. 2016) (explaining that chapter 74
aims to eliminate frivolous claims expeditiously while preserving claims of
potential merit).
A report has not been “served” under the statute when it has been
physically served but is found deficient. Moore v. Gatica, 269 S.W.3d 134, 139
(Tex. App.—Fort Worth 2008, pet. denied) (op. on remand). A report is deficient
only if it does not represent an objective good faith effort to comply with the
statutory requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)–(b), (l).
4
A health care liability claim is, in pertinent part, “a cause of action against
a health care provider or physician for treatment, lack of treatment, or other
claimed departure from accepted standards of medical care, or health care, . . .
which proximately results in injury to or death of a claimant.” Tex. Civ. Prac. &
Rem. Code Ann. § 74.001(a)(13).
12
Upon a defendant’s motion, when a court finds that an expert report does not
represent a good faith attempt to comply with the statute’s requirements, the
court must either (1) dismiss the plaintiff’s claim with prejudice and award
attorney’s fees to the defendant, or (2) grant one thirty-day extension to cure the
report’s deficiencies. Id. § 74.351(b)–(c); see Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (explaining that a report
does not meet the good faith standard if it merely states the expert’s conclusions
or if it omits any of the statutory requirements).
While the expert report “need not marshal all the plaintiff’s proof,” Palacios,
46 S.W.3d at 878, it must 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). 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.” Palacios, 46 S.W.3d at 879. 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.” Moore, 269 S.W.3d
at 140.
13
We review a trial court’s decision to grant a motion to dismiss alleging the
inadequacy of an expert report for an abuse of discretion. Merry v. Wilson, 498
S.W.3d 270, 272 (Tex. App.—Fort Worth 2016, no pet.). A trial court abuses its
discretion if the court acts without reference to guiding rules or principles. Moore,
269 S.W.3d at 139.
In their objections and motions to dismiss, all of the appellees contended
that Dr. Borrell’s original report was insufficient because, among other alleged
deficiencies, it failed to establish Dr. Borrell’s qualifications to comment about the
causal connection between any breaches of the standards of care and Aaron’s
death and failed to adequately explain that causal connection. We agree that Dr.
Borrell’s report was deficient in those regards.
To qualify as an “expert report,” the report must be drafted by an “expert”
as that term is defined in the statute. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(5). As to the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of
care, an expert must be “a physician who is otherwise qualified to render
opinions on such causal relationship under the Texas Rules of Evidence.” Id.
§ 74.351(r)(5)(C); see TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112 (Tex. App.—
Fort Worth 2011, no pet.) (“The legislature has prescribed that it is necessary for
a physician to opine as to causation of damages.”). The rules of evidence
provide that a witness may testify on “scientific, technical, or other specialized
14
knowledge” if the witness is qualified as an expert on the matter “by knowledge,
skill, experience, training, or education.” Tex. R. Evid. 702.
Rule 702 does not necessarily require that a plaintiff’s expert and the
defendant doctor be physicians practicing in the same field. Simpson v. Barton,
No. 08-16-00076-CV, 2016 WL 7176998, at *3 (Tex. App.—El Paso Dec. 9,
2016, no pet.). On the other hand, a medical license does not automatically
qualify a doctor to testify about causation on every medical question. See
Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). Rather, to establish
qualifications, a doctor must show that he had knowledge, skill, experience, or
training regarding the specific issue before the court. See id.; see also Otero v.
Richardson, 326 S.W.3d 363, 371 (Tex. App.—Fort Worth 2010, no pet.) (holding
that when the plaintiff’s claim concerned a doctor’s alleged negligence in treating
an ankle fracture, the expert established his qualification by showing that he had
treated “approximately 20,000 patients with orthopedic injuries”); Menefee v.
Ohman, 323 S.W.3d 509, 514 (Tex. App.—Fort Worth 2010, no pet.) (“The
proper inquiry concerning whether a doctor is qualified to testify is not his or her
area of practice but rather the doctor’s familiarity with the issues involved in the
claim before the court.”); Collini v. Pustejovsky, 280 S.W.3d 456, 466 (Tex.
App.—Fort Worth 2009, no pet.) (op. on remand) (holding that a doctor was not
qualified to opine on causation about a drug causing tardive dyskinesia when he
did not state experience or training regarding prescribing that drug or diagnosing
15
tardive dyskinesia). We review a trial court’s determination concerning a medical
expert’s qualifications for an abuse of discretion. Otero, 326 S.W.3d at 371.
The “injury” at issue is Aaron’s death; as such, Dr. Borrell’s report or
curriculum vitae needed to demonstrate how he was qualified by knowledge,
skill, experience, training, or education to opine about how any of appellees’ acts
or omissions caused the death. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(5)(C); Tex. R. Evid. 702. To do so, he needed to show that he had
some knowledge, skill, experience, or training concerning the physical conditions
that caused Aaron’s death. Roberts, 111 S.W.3d at 121.
Dr. Borrell’s initial report stated that he is a board-certified and practicing
psychiatrist5 and that he treats patients for stress, anxiety, drug addiction,
depression, suicidal ideation, and psychosis. The report states that Dr. Borrell
has treated “thousands of patients with a wide variety of mental health conditions
similar” to Aaron’s upon his admission to University. [Emphasis added.] Later,
the report states,
As a psychiatrist, I have been involved in clinical care of patients like
[Aaron] hundreds of times, administration and management of
clinical services provided to patients like [Aaron], program
development, training[,] and research. . . . As a psychiatrist and
supervisor of nurses, and in my training of hospital staff, I have
become familiar with the standards of care that apply to both
psychiatrists and nurses providing care to psychiatric patients.
5
Psychiatry is the “medical specialty concerned with the diagnosis and
treatment of mental disorders.” Stedman’s Medical Dictionary 1594 (28th ed.
2006).
16
Dr. Borrell’s curriculum vitae similarly recites his board certification and details
his experience in practicing psychiatry and publishing articles concerning
psychiatry and related subjects.
However, neither the report nor the curriculum vitae show how Dr. Borrell
was qualified to opine about some of the physical conditions that Aaron suffered
from that led to his death, including the cause of his vomiting and his lack of
oxygen associated with his brain damage. While the report discusses Aaron’s
out-of-range blood pressure and heart rate on days preceding the day he died
and shows Dr. Borrell’s familiarity with standards of care for treating those
conditions, the report does not explain whether or how those conditions caused
appellant’s death;6 identify the precise medical cause of Aaron’s death; explain
why Dr. Borrell was qualified to opine about any such cause; or explain, beyond
conclusory statements,7 why any change in appellees’ alleged acts or failures to
6
In his live pleading, Gower alleged that “respiratory failure, brain death,
pneumonia[,] and sepsis” caused Aaron’s death. Dr. Borrell’s report does not
explain how Aaron’s out-of-range blood pressure and heart rate contributed to
these conditions or how Dr. Borrell was qualified to opine about these conditions.
7
Gower recognizes in his brief to this court that the “expert’s report must
contain information linking the harm to the alleged breach in a manner that is not
merely conclusory.” In re Stacy K. Boone, P.A., 223 S.W.3d 398, 406 (Tex.
App.—Amarillo 2006, orig. proceeding); see also Farishta v. Tenet Healthsystem
Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex. App.—Fort Worth 2007, no pet.)
(stating that a report must demonstrate causation beyond mere conjecture).
Gower argues that one sentence in the report’s final substantive paragraph
sets forth Dr. Borrell’s opinions on causation in a nonconclusory manner: “[H]ad
[Aaron’s] high blood pressure been properly monitored and treated in a timely
manner, . . . or had [University] had the appropriate life-saving equipment, it is
17
act (including their alleged failures to provide undefined “appropriate
medications”) would have affected the outcome. See Craig v. Dearbonne, 259
S.W.3d 308, 313 (Tex. App.—Beaumont 2008, no pet.) (holding that a report was
conclusory and insufficient when it failed to “explain what treatment would have
been effective, but was not provided, or whether the treatment [the doctor]
provided would have been effective if it had been started earlier”); Hardy v.
Marsh, 170 S.W.3d 865, 870 (Tex. App.—Texarkana 2005, no pet.) (concluding
that a report that stated that the patient “should have had a consultation with a
vascular surgeon” was insufficient because it did not “state what additional
procedures or treatment would have been provided by the surgeon” or “connect
the consultation to avoidance of the amputation”). Further, while the report faults
University for not having pads for an Automated External Defibrillator, the report
does not explain how or why Aaron would have lived had the defibrillator been
used or how Dr. Borrell would be qualified based on his education, training, or
experience to make that assessment.
For these reasons, because neither Dr. Borrell’s initial report nor his
curriculum vitae explained his qualifications to opine about the causal link
between appellees’ alleged negligence and Aaron’s death or adequately
my opinion that . . . he would have . . . survived.” But a mere assertion that a
patient “would have survived,” without an explanation of how or why, is
insufficient to satisfy section 74.351’s requirements. See Costello v. Christus
Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio
2004, no pet.); see also Ortiz v. Patterson, 378 S.W.3d 667, 674 (Tex. App.—
Dallas 2012, no pet.).
18
explained that causal link, we conclude that the trial court did not abuse its
discretion by deciding that the original report did not qualify as a good faith effort
to comply with the statute and by sustaining appellees’ objections to the report.8
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(5)(C), (r)(6); Tex. R. Evid.
702; Palacios, 46 S.W.3d at 879; Merry, 498 S.W.3d at 272. To the extent that
Gower’s first issue challenges the trial court’s decision to sustain these
objections to Dr. Borrell’s initial report, we overrule the issue.
The trial court’s denial of an opportunity to cure
In the alternative to arguing that Dr. Borrell’s first report qualified as a good
faith effort to comply with section 74.351, Gower contends that the trial court
should have granted him a thirty-day extension to cure any deficiencies. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (“If an expert report has not been
served within the period specified by Subsection (a) because elements of the
report are found deficient, the court may grant one 30-day extension to the
claimant in order to cure the deficiency.”). He relies on our supreme court’s
decision in Scoresby v. Santillan, 346 S.W.3d 546, 549, 556 (Tex. 2011) (stating
that a “trial court should err on the side of granting the additional time” and
8
Given our conclusion that the initial report and curriculum vitae were
insufficient in this regard and that the trial court therefore did not err by sustaining
appellees’ objections to the report, we decline to address all the other ways in
which appellees contend that Dr. Borrell’s initial report was inadequate. See Tex.
R. App. P. 47.1; Baylor All Saints Med. Ctr. v. Martin, 340 S.W.3d 529, 535 n.1
(Tex. App.—Fort Worth 2011, no pet.).
19
explaining that an “inadequate expert report does not indicate a frivolous claim if
the report’s deficiencies are readily curable”).
In Scoresby, the court explained that when a trial court finds deficiencies
within an expert report, it should “err on the side of granting the additional time
and must grant it if the deficiencies are curable.” Id. at 549 (emphasis added).
The court also explained that an individual’s “lack of relevant qualifications and
an opinion’s inadequacies are deficiencies the plaintiff should be given an
opportunity to cure if it is possible to do so.” Id. The court stated that trial courts
should be “lenient” in granting opportunities to cure so that a plaintiff has a “fair
opportunity demonstrate that [a] claim is not frivolous.” Id. Applying these
standards, the court held that a letter written by an expert to the plaintiff’s
attorney that was unaccompanied by the expert’s curriculum vitae, did not detail
the expert’s credentials or experience, and did not state a standard of care was
nonetheless worthy of allowing an opportunity to cure those (and other)
deficiencies. Id. at 550–58. The court explained,
The purpose of the expert report requirement is to deter frivolous
claims, not to dispose of claims regardless of their merits. “The
Legislature has determined that failing to timely file an expert report,
or filing a report that does not evidence a good-faith effort to comply
with the definition of an expert report, means that the claim is either
frivolous, or at best has been brought prematurely.” But the
Legislature has likewise recognized that when an expert report can
be cured in thirty days, the claim is not frivolous. It must be
remembered that “‘[t]here are constitutional limitations upon the
power of courts . . . to dismiss an action without affording a party the
opportunity for a hearing on the merits of his cause’”, and those
limitations constrain the Legislature no less in requiring dismissal.
20
Id. at 554 (footnotes omitted). Finally, in describing when a claim should be
dismissed without giving a plaintiff an opportunity to cure, the court stated,
To stretch the meaning of deficient to include a sheet of paper with
the two words, “expert report”, written on it would mock the Act’s
requirements. . . . In determining where to draw the line, we are
guided by two considerations. One is that the Act’s principal
purpose is to reduce the expense of health care liability claims. . . .
The other consideration is the goal of the Act’s expert report
requirement: to deter frivolous claims. An inadequate expert report
does not indicate a frivolous claim if the report’s deficiencies are
readily curable.
We conclude that a thirty-day extension to cure deficiencies in
an expert report may be granted if [1] the report is served by the
statutory deadline, if [2] it contains the opinion of an individual with
expertise that the claim has merit, and if [3] the defendant’s conduct
is implicated. We recognize that this is a minimal standard, but we
think it is necessary if multiple interlocutory appeals are to be
avoided, and appropriate to give a claimant the opportunity provided
by the Act’s thirty-day extension to show that a claim has merit. All
deficiencies, whether in the expert’s opinions or qualifications, are
subject to being cured before an appeal may be taken from the trial
court’s refusal to dismiss the case.
Id. at 556–57 (emphasis added); see id. at 558–60 (Willett, J., concurring)
(describing the standard for granting an opportunity to cure as “lenient,”
“benevolent,” and “low, and indicating that such an opportunity should be granted
when “someone with expertise express[es] an opinion that the plaintiff has a
meritorious malpractice claim against the defendant”); see also Certified EMS,
Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (emphasizing that the
“Legislature’s goal was to deter baseless claims, not to block earnest ones”);
Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 754, 760 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (holding that documents submitted by a
21
plaintiff did not meet the Scoresby standard when they did not tie the plaintiff’s
injury to any alleged wrongful action of a defendant).
Dr. Borrell’s report in this case, although deficient for the reasons
explained above (and perhaps other reasons as argued by appellees) meets the
three-part “minimal” standard of Scoresby for an opportunity to cure. 346 S.W.3d
at 557. First, the report was served by the statutory deadline. See id.; see also
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
Second, the report contained the opinion of an individual with general
expertise that Gower’s claims have merit. See Scoresby, 346 S.W.3d at 557.
Dr. Borrell recited that he is a board-certified psychiatrist, has been licensed
since 1971, and has treated “thousands” of patients for conditions similar to
Aaron’s conditions upon his admission to University. He also stated that he was
familiar with the laws of Texas concerning the voluntary admission of mental
health patients and concerning mental health hospital staffing requirements.
Dr. Borrell further expressed that he had experience managing, supervising, and
training nursing staff in psychiatric hospitals and had become familiar with
standards of care applying to psychiatrists and nurses in that setting. He stated,
“I regularly give orders to nurses regarding patients like [Aaron], and I follow up
on the provision of such orders as part of my clinical practice. Further, based
upon my training and experience I am familiar with the staffing requirements for
facilities like [University] and its parent companies.” Finally, Dr. Borrell stated,
22
I have experience and I am familiar with the standard of care
that nurses, physicians, and hospitals treating mental healthcare
patients should follow when a patient’s vitals are out of normal
range. Specifically, I am familiar with the standard of care that
nurses, physicians, and hospitals should follow when a patient’s
blood pressure is above normal range.
We conclude that these statements, along with the remainder of
Dr. Borrell’s report, establish his expertise concerning the general subject matter
of Gower’s claims. Moreover, our holding above concerning Dr. Borrell’s failure
to establish his qualifications to opine about causation is not inconsistent with our
conclusion in this regard. We note that the court in Scoresby stated that the
expert’s letter in that case “easily” met the standard of containing the opinion of
an individual with “expertise.” Id. The court reached this holding even though
(1) the defendants challenged the expert’s qualifications, (2) the expert’s letter
“did not attach [the expert’s] curriculum vitae or describe his credentials or
experience other than to state that he [was] a ‘Board-Certified neurologist,’” and
(3) the court “express[ed] no view on the adequacy of [the expert’s]
qualifications.” Id. at 550–52, 557. Thus, our conclusion above that Dr. Borrell
failed to establish qualifications to opine about causation does not foreclose
Gower’s ability to cure the deficiencies in the report. See id. at 557 (“All
deficiencies, whether in the expert’s opinions or qualifications, are subject to
being cured before an appeal may be taken from the trial court’s refusal to
dismiss the case.”).
23
Third, Dr. Borrell’s report implicated appellees’ conduct. See id. Although
perhaps in a conclusory or vague fashion (as argued by appellees), the report
faulted Universal, University, and Dr. Vasavada for several acts and omissions.
Cf. Blevins v. Bishai, No. 09-16-00071-CV, 2017 WL 1425590, at *10 (Tex.
App.—Beaumont Apr. 20, 2017, no pet. h.) (mem. op.) (holding that a plaintiff
was not entitled to an opportunity to cure when a report stated that the defendant
doctor “did not breach the standard of care”); Alsup v. Hickory Trail Hosp., No.
05-16-00527-CV, 2017 WL 1046769, at *8 (Tex. App.—Dallas Mar. 20, 2017, no
pet.) (mem. op.) (“Appellant could cure all of these alleged deficiencies within the
thirty-day extension period by submitting a more detailed, non-conclusory expert
report.”); Post Acute Med., LLC v. Montgomery, 514 S.W.3d 889, 894 (Tex.
App.—Austin 2017, no pet.) (rejecting an opportunity to cure when the report did
“not in any way implicate” the defendant’s conduct). For example, the report
faulted Universal for failing to use ordinary care to monitor and supervise
employees charged with the supervision of psychiatric patients and for failing to
ensure that patients were properly evaluated and treated; faulted University for
those same acts and for failing to properly stabilize Aaron, for prescribing
excessive medication to him, and for failing to adequately respond to his out-of-
range blood pressure and heart rate; and faulted Dr. Vasavada for not
adequately monitoring Aaron’s blood pressure and heart rate and for not
providing appropriate medications for those conditions.
24
Appellees argue that the trial court acted within its discretion by denying an
opportunity to cure because Dr. Borrell’s report omitted statutory requirements.
But no report that needs curing contains all the requirements, and the statute
contemplates an opportunity to meet the requirements through a second chance.
See Scoresby, 346 S.W.3d at 550, 557 (holding that a trial court did not err by
granting an extension even though the expert did not provide a curriculum vitae,
the expert did not explain his credentials, and the report did not state a standard
of care); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Koutsoufis v.
Pinnacle Health Facilities GP V, No. 02-16-00150-CV, 2017 WL 370956, at *6
n.4 (Tex. App.—Fort Worth Jan. 26, 2017, no pet.) (mem. op.) (relying on
Scoresby to state that even if an expert was “unqualified to opine as to the
standard of care applicable to [certain defendants], such a deficiency would not
warrant outright dismissal with no opportunity to cure”).
Appellees also contend that Gower was not entitled to an extension
because their objections gave him notice of the report’s deficiencies, and he did
not address those deficiencies during the lengthy period before the trial court
sustained their objections.9 We conclude, however, that in most circumstances,
including these circumstances, penalizing a plaintiff for declining to fix a report’s
alleged deficiencies before a trial court rules on objections to the report would be
9
At the motion to dismiss hearing, the trial court indicated that its busy
docket resulted in the lengthy delay before the trial court heard and ruled on
appellees’ objections and motions to dismiss.
25
unreasonable and contrary to the purpose of section 74.351(c), which is to grant
an opportunity to cure after “elements of the report are found deficient.”10 Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(c).
It is true, as appellees argue, that the court in Scoresby indicated that a
trial court should not grant an opportunity to cure when the initial report “mock[s]
[section 74.351’s] requirements.” 346 S.W.3d at 556. But in giving an example
of such a mockery, the court cited a case in which the plaintiff relied only on a
thank-you-for-your-referral letter from one physician to another physician as
satisfying the section’s requirements. See id. (citing Lewis v. Funderburk, 253
S.W.3d 204, 206 (Tex. 2008)). The facts here are not analogous to that
circumstance.
We emphasize and rely on the language from Scoresby that a trial court
“must grant” an opportunity to cure if deficiencies are curable. Id. at 549. In
dismissing Gower’s suit, the trial court did not expressly find that the deficiencies
in Dr. Borrell’s report were incurable; rather, the court appeared to recognize that
the deficiencies were curable, stating, “I . . . find that [the report] is not a good
10
We recognize that the report’s reference to another patient was a glaring
error. However, typographical errors within a report will not render a report
insufficient under section 74.351 when the report otherwise satisfies the
requirements of that section. See Keller SNF v. Koutsoufis, No. 02-16-00227-
CV, 2017 WL 117318, at *7–8 (Tex. App.—Fort Worth Jan. 12, 2017, no pet.)
(mem. op.) (holding that a report complied with section 74.351 even though the
report referred to a skilled nursing facility that was not connected to the plaintiff’s
claim).
26
faith effort to bring the report into compliance as could have been done any time
during the last year.” [Emphasis added.]
Finally, we disagree with Dr. Vasavada’s argument that allowing for an
opportunity to cure in this case will “render the trial judge powerless to address
incompetent reports in any effective way.” The trial court has not ruled on
whether the amended and supplemental reports submitted by Gower cure the
deficiencies in Dr. Borrell’s original report.11 If the trial court finds that the
amended and supplemental reports cure the deficiencies in the original report,
the trial court will have effectively addressed those original deficiencies.
Conversely, if the trial court finds that the amended and supplemental reports still
do not satisfy section 74.351’s requirements, the court has authority to dismiss
Gower’s suit (subject to Gower’s appeal of such a decision), thus providing
appellees with a remedy for such a deficiency. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(b).
In sum, we agree with appellees’ argument that an opportunity to cure
deficiencies under section 74.351(c) is not automatic; however, we also conclude
that Scoresby and the other decisions cited above shape the contours of the trial
court’s discretion—providing the guiding rules and principles—concerning
whether to grant such an opportunity. 346 S.W.3d at 557; see Moore, 269
11
We conclude that it would not be appropriate for us to consider the
adequacy of the amended and supplemental reports without allowing the trial
court an opportunity to do so.
27
S.W.3d at 139. We conclude that under the principles discussed in those cases,
Gower was entitled to an opportunity to cure. Therefore, we sustain Gower’s first
issue to the extent that he appeals the trial court’s decision to dismiss his suit for
a deficient expert report without granting an opportunity to cure under section
74.351(c). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).
Consideration of extrinsic evidence and attorney’s fees
In his second issue, Gower asserts that the trial court erred by considering
extrinsic evidence: documents that University and Universal attached to their
objections to Dr. Borrell’s report. In his third issue, Gower argues that the trial
court improperly awarded attorney’s fees to appellees. In light of our holding
above that requires reversal of the trial court’s orders that dismissed Gower’s
claims, we conclude that we must also sustain Gower’s challenge to the award of
attorney’s fees. See id. § 74.351(b)(1)–(2) (linking an award of attorney’s fees
with the dismissal of the plaintiff’s claim). We sustain Gower’s third issue. We
decline to address his second issue, as resolution of the question concerning the
trial court’s consideration of extrinsic evidence is not necessary to the disposition
of this appeal. See Tex. R. App. P. 47.1.
28
Conclusion
Having sustained part of Gower’s first issue and all of his third issue, we
reverse the trial court’s orders that dismissed Gower’s claims against Universal,
University, and Dr. Vasavada and that required Gower to pay attorney’s fees.
We remand this case to the trial court for further proceedings consistent with this
opinion.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; SUDDERTH and KERR, JJ.
DELIVERED: July 20, 2017
29