Oceans Behavioral Healthcare of Longview, Audubon Behavioral Hospital of Longview, LLC D/B/A Oceans Behavioral Hospital of Longview and Oceans Acquisition, Inc. and Javen v. Cavazos, M.D. v. Nancy M. Butler, Individually and as of the Estate of Huey D. Butler, and on Behalf of the Wrongful Death Beneficiaries of Huey D. Butler ( 2017 )

ACCEPTED
12-17-00297-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/27/2017 4:04 PM
Pam Estes
CLERK
CAUSE NO. 12-17-00297-CV ORAL ARGUMENT
REQUESTED
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE
11/27/2017 4:04:42 PM
COURT OF APPEALS FOR THE PAM ESTES
TWELFTH DISTRICT OF TEXAS SITTING IN TYLER, TEXASClerk
OCEANS BEHAVIORAL HEALTHCARE OF LONGVIEW,
AUDUBON BEHAVIORAL HOSPITAL OF LONGVIEW, LLC
D/B/A OCEANS BEHAVIORAL HOSPITAL OF LONGVIEW
OCEANS ACQUISITION, INC., AND JAVEN V. CAVAZOS, M.D.,
APPELLANTS,
VS.
NANCY M. BUTLER, INDIVIDUALLY AND AS EXECUTOR OF
THE ESTATE OF HUEY D. BUTLER, DECEASED, AND ON BEHALF
OF THE WRONGFUL DEATH BENEFICIARIES OF HUEY D. BUTLER,
APPELLEE.
On Appeal from the County Court at Law No. 2
of Gregg County, Texas
APPELLANTS’ BRIEF FILED BY OCEANS BEHAVIORAL
HEALTHCARE OF LONGVIEW, AUDUBON BEHAVIORAL
HEALTHCARE OF LONGVIEW, LLC d//b/a OCEANS BEHAVIORAL
HOSPITAL OF LONGVIEW and OCEANS ACQUISITION, INC.
KENT, ANDERSON, BUSH, FROST & METCALF,
P.C.
David W. Frost
State Bar No. 24002111
Vance L. Metcalf
State Bar No. 24037102
2320 Dueling Oaks Drive
Tyler, Texas 75703
(903) 579-7507
(903) 581-3701 (fax)
Attorneys for Appellants Oceans Behavioral
Healthcare of Longview, Audubon
Behavioral Healthcare of Longview, LLC
d/b/a Oceans Behavioral Hospital of
Longview and Oceans Acquisition, Inc.
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s judgment or
order appealed from and the names and addresses of all trial and appellate counsel:
PLAINTIFFS / APPELLEE:
Nancy M. Butler, Individually and as Executor of the Estate of
Huey D. Butler, Deceased, and on behalf of the Wrongful Death
Beneficiaries of Huey D. Butler,
Trial Counsel and Appellate Counsel:
R. Daniel Sorey
The Sorey Law Firm, PLLC
109 W. Tyler Street
Longview, Texas 75601
(903) 212-2822
(903) 212-2864 - FAX
dan@soreylaw.com
Appellate Counsel:
M. Keith Dollahite
M. KEITH DOLLAHITE, P.C.
5457 Donnybrook Avenue
Tyler, Texas 75703
(903) 581-2110
(903) 581-2113 (Facsimile)
Keith@mkdlaw.us
DEFENDANTS / APPELLANTS:
Oceans Behavioral Healthcare of Longview, Audubon
Behavioral Healthcare of Longview, LLC d/b/a Oceans
Behavioral Hospital of Longview and Oceans Acquisition, Inc.
- iii -
Trial Counsel and Appellate Counsel:
David W. Frost
Kent, Anderson, Bush, Frost & Metcalf, P.C.
1121 E.S.E. Loop 323, Suite 200
Tyler, Texas 75701
(903) 579-7500
(903) 581-3701 Facsimile
dfrost@tyler.net
Vance L. Metcalf
Kent, Anderson, Bush, Frost & Metcalf, P.C.
1121 E.S.E. Loop 323, Suite 200
Tyler, Texas 75701
(903) 579-7500
(903) 581-3701 Facsimile
Vmetcalf@tyler.net
DEFENDANT / APPELLANT:
Javen V. Cavazos, M.D.
Trial Counsel:
C. Victor Haley
1801 North Street
P.O. Drawer 631668
Nacogdoches, Texas 75963-1668
(936) 569-2327
(936) 569-7932 - FAX
vhaley@fairchildlawfirm.com
- iv -
TABLE OF CONTENTS
IDENTITY OF PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
(1) Whether the trial court abused its discretion in overruling
Oceans Behavioral Hospital’s objections to Appellee’s expert
report based on Dr. Keith Miller’s failure to show that he is
qualified to provide expert opinions concerning the standard of
care applicable to a psychiatric hospital? . . . . . . . . . . . . . . . . . . . ix
(2) Whether the trial court abused it’s discretion in overruling
Oceans Behavioral Hospital’s objections to Appellee’s expert
report based on Dr. Miller’s failure to adequately address the
elements of standard of care, breach and causation?. . . . . . . . . . . ix
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUES PRESENTED (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(1) Whether the trial court abused its discretion in overruling
Oceans Behavioral Hospital’s objections to Appellee’s expert
report based on Dr. Keith Miller’s failure to show in his report
that he is qualified to provide expert opinions concerning the
standard of care applicable to a psychiatric hospital? . . . . . . . . . . 4
(2) Whether the trial court abused it’s discretion in overruling
- v-
Oceans Behavioral Hospital’s objections to Appellee’s expert
report based on Dr. Miller’s failure to adequately address the
elements of standard of care, breach and causation?. . . . . . . . . . . 4
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Standard of Review - Abuse of Discretion. . . . . . . . . . . . . . . . . . . 4
II. Expert Report Requirements - Chapter 74 of the Civil Practice
and Remedies Code
. .................................................. 5
III. Dr. Miller’s report fails to comply with Chapter 74 of the Civil
Practice and Remedies Code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Dr. Miller, who is a family practitioner, is not qualified to
offer expert opinions concerning the standard of care
applicable to a psychiatric hospital.. . . . . . . . . . . . . . . . . . . 8
1. Not every licensed doctor is automatically qualified
to testify as an expert on every medical question.. . . . 8
2. Dr. Miller is not a psychiatrist and does not practice
the same type of health care as Oceans Behavioral
Hospital and its staff.. . . . . . . . . . . . . . . . . . . . . . . . . 9
3. A court may not, through inferences or otherwise, fill
in the gaps in an expert report where the expert fails
to detail why or how he is qualified to opine about
the applicable standard of care.. . . . . . . . . . . . . . . . 11
B. Dr. Miller’s report contains inadequate statements
regarding the standard of care, breach, and causation.. . . . 12
1. Dr. Miller’s report contains inadequate statements
on standard of care and breach of the standard of
care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Dr. Miller’s report fails contains impermissibly
conclusory statements on causation.. . . . . . . . . . . . . 18
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
- vi -
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
- vii -
INDEX OF AUTHORITIES
CASES
American Transitional Care Ctrs. of Tex. v. Palacios,
46 S.W.3d 873, 877 (Tex. 2001). . . . . . . . . . . . . . . . . . . . 4, 6, 7, 13, 14, 19
Austin Heart, P.A. v. Webb, 228 S.W.3d 276
(Tex. App.—Austin 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Bowie Mem'l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19, 20
Broders v. Heise,
924 S.W.2d 148 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Castillo v. August, 248 S.W.3d 874
(Tex. App.–El Paso 2008, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conboy v. Lindale Health Care, LLC, 2013 Tex. App. LEXIS 11013
(Tex. App.–Tyler 2013, August 29, 2013, no pet.). . . . . . . . . . . . . . . . . . . 18
Costello v. Christus Santa Rosa Health Care Corp.
141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.). . . . . . . . . . . . . . 19
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Earle v. Ratliff,
998 S.W.2d 882 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 19
Flores v. Fourth Court of Appeals,
777 S.W.2d 38 (Tex. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
HN Tex. Props., L.P. v. Cox, 2009 WL 3337190
(Tex. App.–Fort Worth Oct. 15, 2009, no pet.). . . . . . . . . . . . . . . . . . . . . 12
Hunter v. Robison, 488 S.W.2d 555
- viii -
(Tex. Civ. App.–Dallas 1972, writ ref’d n.r.e.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 19
Jones v. Ark-La-Tex Visiting Nurses, Inc.,
128 S.W.3d 393 (Tex. App.–Texarkana 2004, no pet.). . . . . . . . . . . . . 10, 11
Senior Care Centers, LLC v. Shelton, 459 S.W.3d 753
(Tex. App.–Dallas 2015, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8
(Tex. App.–Tyler 2002, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Taylor v. Fossett, 320 S.W.3d 570
(Tex. App.– Dallas 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tenet Hosp. Ltd v. Love, 347 S.W.3d 743
(Tex. App.–El Paso 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Van Ness v. ETMC First Physicians, 461 S.W.3d 140
(Tex. 2015, reh’g denied) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
STATUTES
T EX. CIV. P RAC. & REM. CODE § 74.351(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
T EX. CIV. P RAC. & REM. CODE § 74.351(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
T EX. CIV. P RAC. & REM. CODE § 74.351(r)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
T EX. CIV. P RAC. & REM. CODE § 74.402(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11
T EX. CIV. P RAC. & REM. CODE § 74.402(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
T EX. CIV. P RAC. & REM. CODE §74.303(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
- ix -
T EX. CIV. P RAC. & REM. CODE §74.351(r)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Texas Revised Civil Statute Annotated, Article 4590i, Section 13.01. . . . . . . . . . . 12
-x-
STATEMENT OF THE CASE
On January 20, 2017, Appellee Nancy M. Butler filed this health care liability
claim related to the care and treatment rendered to Mr. Huey D. Butler, Deceased while
he was hospitalized at Audubon Behavioral Healthcare of Longview, LLC d/b/a
Oceans Behavioral Hospital of Longview ("Oceans Behavioral Hospital") for 14 days
in March 2015. (CR 4). Oceans Behavioral Hospital filed its Original Answer on
February 17, 2017. (CR 17).
On April 19, 2017, in an attempt to meet the requirements of Section 74.351 of
the Texas Civil Practice and Remedies Code, Appellee mailed to Defendants a report
and CV from Dr. Keith E. Miller dated April 10, 2017. (CR 153); see also Appendix
B. On May 10, 2017, Oceans Behavioral Hospital filed its Objections to Expert
Report and Motion to Dismiss based on the inadequacy of Dr. Miller’s report. (CR
142 and CR 191).1 On September 21, 2017, the trial court entered an Order Denying
Defendant’s Motion to Dismiss. (CR 285). On October 4, 2017, Oceans filed a
notice of interlocutory appeal (CR 287).
1
Separate Motions to Dismiss were filed on behalf of Defendant Oceans Acquisitions, Inc. (CR 142)
and Oceans Behavioral Hospital of Longview (CR 191).
- xi -
ISSUES PRESENTED
(1) Whether the trial court abused its discretion in overruling Oceans
Behavioral Hospital’s objections to Appellee’s expert report based on Dr.
Keith Miller’s failure to show that he is qualified to provide expert
opinions concerning the standard of care applicable to a psychiatric
hospital?
(2) Whether the trial court abused it’s discretion in overruling Oceans
Behavioral Hospital’s objections to Appellee’s expert report based on Dr.
Miller’s failure to adequately address the elements of standard of care,
breach and causation?
- xii -
CAUSE NO. 12-17-00297-CV ORAL ARGUMENT
REQUESTED
IN THE
COURT OF APPEALS FOR THE
TWELFTH DISTRICT OF TEXAS SITTING IN TYLER, TEXAS
OCEANS BEHAVIORAL HEALTHCARE OF LONGVIEW,
AUDUBON BEHAVIORAL HOSPITAL OF LONGVIEW, LLC
D/B/A OCEANS BEHAVIORAL HOSPITAL OF LONGVIEW
OCEANS ACQUISITION, INC., AND JAVEN V. CAVAZOS, M.D.,
APPELLANTS,
VS.
NANCY M. BUTLER, INDIVIDUALLY AND AS EXECUTOR OF
THE ESTATE OF HUEY D. BUTLER, DECEASED, AND ON BEHALF
OF THE WRONGFUL DEATH BENEFICIARIES OF HUEY D. BUTLER,
APPELLEE.
On Appeal from the County Court at Law No. 2
of Gregg County, Texas
APPELLANTS’ BRIEF FILED BY OCEANS BEHAVIORAL
HEALTHCARE OF LONGVIEW, AUDUBON BEHAVIORAL
HEALTHCARE OF LONGVIEW, LLC d/b/a OCEANS BEHAVIORAL
HOSPITAL OF LONGVIEW and OCEANS ACQUISITION, INC.
COMES NOW, OCEANS BEHAVIORAL HEALTHCARE OF
LONGVIEW, AUDUBON BEHAVIORAL HEALTHCARE OF LONGVIEW,
-1-
LLC d//b/a OCEANS BEHAVIORAL HOSPITAL OF LONGVIEW and
OCEANS ACQUISITION, INC,, Appellants in the above-entitled and numbered
cause and files the following Appellants’ Brief asking the Court of Appeals to reverse
the trial court’s ruling on its Motion to Dismiss and in support thereof would
respectfully show the court the following:
STATEMENT OF FACTS
This suit involves a health care liability claim related to care and treatment
rendered to Huey D. Butler, Deceased by Appellants. Mr. Butler was a patient at
Oceans Behavioral Hospital from March 10, 2015 until March 23, 2015. (CR 72). Mr.
Butler was admitted for psychiatric treatment of major depressive disorder with
psychosis and dementia with behavioral disturbances. (CR 278). At that time, Mr.
Butler was 74 years old. (CR 72)..
Appellee alleges that while Mr. Butler was a patient at Oceans Behavioral
Hospital, Dr. Javen Cavazos treated Mr. Butler’s major depressive disorder and
dementia with multiple medications, including tranquilizers and antidepressants. (CR
72). Appellee further alleges that Mr. Butler was over-sedated. (CR 73).
Appellee alleges that on March 23, 2015, Mr. Butler was transferred from
Oceans Behavioral Hospital to Longview Regional Medical Center where he was noted
upon admission to be suffering from “over-sedation” and “mental status changes
-2-
secondary to medication.” (CR 73). Appellee alleges that Mr. Butler was also noted
to have various conditions associated with dehydration. Id.
On April 2, 2015, Mr. Butler was discharged from the hospital and admitted to
Havencare Nursing and Rehab in Longview. (CR 74). Mr. Butler was subsequently
discharged from Havencare, but then readmitted to Havencare on July 10, 2015. Id.
Mr. Butler passed away on August 3, 2015 while at Havencare, almost five (5) months
after his stay at Oceans Behavioral Hospital. Id.
SUMMARY OF ARGUMENT
The trial court abused its discretion in denying Oceans Behavioral Hospital’s
Motion to Dismiss. First, Dr. Keith Miller, who is a family practice doctor, failed to
show in his report that he is qualified to provide opinions regarding the applicable
standard of care for a psychiatric hospital in this matter.
Second, the trial court abused its discretion in denying Oceans Behavioral
Hospital’s Motion to Dismiss based on the inadequate and conclusory statements
contained in Dr. Miller’s report on standard of care, breach and causation. Dr. Miller
fails to provide any specific information whatsoever linking any act or omission on the
part of Oceans Behavioral Hospital in March 2015 to Mr. Butler’s deteriorating health
and death over five months later, in August 2015.
Since the report fails to satisfy the legal requirements of an expert report, the
-3-
trial court abused its discretion in denying Appellants’ Motion to Dismiss. This Court
should reverse and render.
ISSUES PRESENTED (RESTATED)
(1) Whether the trial court abused its discretion in overruling Oceans
Behavioral Hospital’s objections to Appellee’s expert report based on Dr.
Keith Miller’s failure to show in his report that he is qualified to provide
expert opinions concerning the standard of care applicable to a
psychiatric hospital?
(2) Whether the trial court abused it’s discretion in overruling Oceans
Behavioral Hospital’s objections to Appellee’s expert report based on Dr.
Miller’s failure to adequately address the elements of standard of care,
breach and causation?
-4-
ARGUMENT AND AUTHORITIES
I. Standard of Review - Abuse of Discretion
The standard of review in this case is abuse of discretion. American
Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Shaw
v. BMW Healthcare, Inc., 100 S.W.3d 8, 12 (Tex. App.–Tyler 2002, pet. denied).
Under an abuse of discretion standard, appellate courts defer to a trial court's factual
determinations, but review questions of law de novo. Shaw, 100 S.W.3d at 12. A
trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to the trial
court's discretion, a court of appeals may not substitute its own judgment for the trial
court's judgment. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989).
If a trial court fails to apply the law correctly to the case, the trial court has abused its
discretion requiring correction by the court of appeals.
II. Expert Report Requirements - Chapter 74 of the Civil Practice and
Remedies Code
Section 74.351(a) of the Texas Civil Practice and Remedies Code reads as
follows:
(a) In a health care liability claim, a claimant shall, not later than the 120th
day after the date each defendant’s original answer is filed, serve on that
party or the party's attorney one or more expert reports, with a
-5-
curriculum vitae of each expert listed in the report for each physician or
health care provider against whom a liability claim is asserted. The date
for serving the report may be extended by written agreement of the
affected parties. Each defendant physician or health care provider whose
conduct is implicated in a report must file and serve any objection to the
sufficiency of the report not later than the later of 21st day after the date
the report is served or the 21st day after the date the defendant’s answer
is filed, failing which all objections are waived.
See T EX. CIV. P RAC. & REM. CODE § 74.351(a).
Section 74.351(r)(6) defines an “expert report” as:
(6) "Expert report" means a written report by an expert that provides a
fair summary of the expert's opinions as of the date of the report
regarding 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.
T EX. CIV. P RAC. & REM. CODE § 74.351(r)(6).
Therefore, to satisfy the requirements of the statute, a plaintiff in a medical
malpractice case must provide an expert report to the defendants. The report must
provide a fair summary of the expert’s opinions, must set out what the expert alleges
the defendant did wrong and how those actions allegedly caused injury to the plaintiffs.
In Bowie Mem'l Hosp. v. Wright, the Supreme Court of Texas stated, "If a plaintiff
timely files an expert report and the defendant moves to dismiss because of the
report's inadequacy, the trial court must grant the motion only if it appears to the court,
after hearing, that the report does not represent a good faith effort to comply with the
-6-
definition of an expert report in Subsection (r)(6) of this section.” Bowie Mem'l Hosp.
v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002)(per curiam)(emphasis added).
The Supreme Court of Texas has defined a "good-faith effort" as one that
provides information sufficient to (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
that the claims have merit. Id. at 52 (citing Palacios, 46 S.W.3d at 879). The trial
court’s review is limited to the four corners of the expert report, which need not
"marshal all the plaintiff's proof" but must include the expert's opinion on each of the
three main elements: standard of care, breach, and causation. Id.
The Supreme Court of Texas has held that the “report cannot merely state the
expert's conclusions about these elements,” but “the expert must explain the basis of
his statements to link his conclusions to the facts.” Palacios, 46 S.W.3d at 877
(Tex.2001)(quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). “A report
that merely states the expert's conclusions about the standard of care, breach, and
causation" does not fulfill the two purposes of a good-faith effort.” Palacios, 46
S.W.3d at 879.
If a report fails to comply with the requirements of Chapter 74 of the Texas
Civil Practice and Remedies Code, the trial court is required to dismiss the case
because of the defendants failure to serve an adequate expert report. T EX. CIV. P RAC.
-7-
& REM. CODE § 74.351(b). The dismissal also carries mandatory sanctions, requiring
an award to the defendant of his costs and attorney's fees against the plaintiff or the
plaintiff's attorney. Id.; See Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
III. Dr. Miller’s report fails to comply with Chapter 74 of the Civil
Practice and Remedies Code.
The trial court should have granted Appellant’s Motion to Dismiss for several
reasons. First, Dr. Miller’s report and CV fail to show that he is qualified to offer
opinions concerning the standard of care applicable to a psychiatric hospital. Second,
Dr. Miller’s report contains inadequate on the standard of care and breach. Third, Dr.
Miller’s opinions on causation are merely conclusory statements which are
impermissible. Therefore, the trial court abused its discretion in denying Oceans
Behavioral Hospital’s Motion to Dismiss.
A. Dr. Miller, who is a family practitioner, is not qualified to offer
expert opinions concerning the standard of care applicable to a
psychiatric hospital.
1. Not every licensed doctor is automatically qualified to testify
as an expert on every medical question.
“A report authored by a person who is not qualified to testify cannot constitute
an expert report.” Castillo v. August, 248 S.W.3d 874, 879 (Tex. App.–El Paso 2008,
no pet). Not every licensed doctor is automatically qualified to testify as an expert on
-8-
every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). In
deciding whether an expert is qualified, the trial court “must ensure that those who
purport to be experts truly have expertise concerning the actual subject about which
they are offering an opinion.” Id. at 151. Therefore, the focus is on the very matter
on which the expert is to give an opinion. Id.
A physician is qualified to submit an expert report on whether a health care
provider departed from accepted standards of care if the physician is qualified under
the requirements of Section 74.402 of the Texas Civil Practice and Remedies Code.
Section 74.402 provides in part as follows:
(b) In a suit involving a health care liability claim against a health care
provider, a person may qualify as an expert witness on the issue of
whether the health care provider departed from accepted standards of
care only if the person:
(1) is practicing health care in a field of practice that involves the same
type of care or treatment as that delivered by the defendant health care
provider, if the defendant health care provider is an individual, at the
time the testimony is given or was practicing that type of health care at
the time the claim arose;
(2) has knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness, injury, or
condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of health care.
T EX. CIV. P RAC. & REM. CODE § 74.402(b)
-9-
Additionally, 74.402(a) provides:
(a) For purposes of this section, “practicing health care” includes:
(1) training health care providers in the same field as the defendant health care
provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed,
certified, or registered in the same field as the defendant health care
provider.
T EX. CIV. P RAC. & REM. CODE § 74.402(a)
2. Dr. Miller is not a psychiatrist and does not practice the same
type of health care as Oceans Behavioral Hospital and its staff.
Dr. Miller is not qualified to provide standard of care testimony as to Defendant
Oceans Behavioral Hospital. Oceans is a behavioral and psychiatric hospital. Oceans
is not a general hospital or a nursing home. Huey Butler was admitted to Oceans
Behavioral Hospital for psychiatric treatment of his major depressive disorder with
psychosis and dementia with behavioral disturbances. Part of his treatment, as alleged
by Plaintiff, was for adjustment of his psychotropic medications. (CR 9). Dr. Miller
is not qualified, and his report does not show that he is qualified, to provide standard
of care opinions regarding the care and treatment at issue.
Dr. Miller does not meet any of the statutory requirements under Section
74.402(b) to be qualified to provide standard of care testimony against Oceans
personnel. There is nothing in his report or curriculum vitae demonstrating or
explaining that he has knowledge of, or is familiar with, the accepted standard of care
- 10 -
for behavioral and psychiatric hospitals. Also, there is nothing in his report or
curriculum vitae demonstrating that he has knowledge of, or is familiar with, the
treatment of psychiatric patients suffering from major depressive disorder with
psychosis and dementia with behavioral disturbances. When Dr. Miller’s report and
CV are examined closely, there is no indication in Dr. Miller’s report or CV showing
that Dr. Miller is qualified on the basis of his training or experience to offer an expert
opinion regarding the accepted standard of care for a behavioral and psychiatric
hospital and its staff. See Jones v. Ark-La-Tex Visiting Nurses, Inc., 128 S.W.3d 393,
396-97 (Tex. App.–Texarkana 2004, no pet.)(holding that physician was not qualified
to opine about nursing standards because his report failed to state his qualifications
to opine about the standard of care for nurses monitoring a patient in a home
healthcare setting and because his curriculum vitae did not contain information
showing he is an expert on nursing care).
Dr. Miller is a family practice physician. He simply does not have the
qualifications to express standard of care opinions as to a behavioral hospital and
behavioral hospital staff. As required under Section 74.402(b)(1), Dr. Miller does not
practice health care that involves the same type of care or treatment as delivered by
Oceans and its personnel. Section 74.402(a) indicates that someone is “practicing
health care” if they are “training health care providers in the same field as the defendant
- 11 -
health care provider at an accredited educational institution” or “ serving as a
consulting health care provider and being licensed, certified, or registered in the same
field as the defendant health care provider.” See TEX. CIV. P. REM. CODE §74.402(a).
Dr. Miller does not meet any of the statutory requirements with regard to Defendant
Oceans and its personnel.
3. A court may not, through inferences or otherwise, fill in the gaps
in an expert report where the expert fails to detail why or how he
is qualified to opine about the applicable standard of care.
On Page 2 of his report, Dr. Miller summarily states that he is “familiar with the
standards of care applicable to physicians, nurses, healthcare facilities, and their staffs
that treat patients such as Mr. Butler.” (CR 71). However, Dr. Miller fails to
demonstrate that he is familiar with the treatment of psychiatric patients in a behavioral
or psychiatric hospital, or that he has experience treating such patients in a behavioral
and psychiatric hospital. “[I]t is not enough to summarily state such ‘knowledge’
when the reports and curricula vitae fail to demonstrate how the experts gained the
requisite experience or training.” Tenet Hosp. Ltd v. Love, 347 S.W.3d 743, 750 (Tex.
App.–El Paso 2011, no pet.). In order to find that Dr. Miller is qualified to express
opinions concerning the applicable standard of care in this case, the could would
necessarily have to resort to filling in gaps through inferences.
- 12 -
In Jones v. Ark-La-Tex Visiting Nurses, Inc., 128 S.W.3d 393 (Tex.
App.—Texarkana 2004, no pet.), the plaintiff filed suit against a home health company
for the alleged negligence of its nurses related to the insertion, maintenance and
monitoring of an intravenous needle. See Jones, 128 S.W.3d at 395. The plaintiff
produced an expert report from a physician pursuant to the former Texas Revised
Civil Statute Annotated, Article 4590i, Section 13.01. The defendant objected to the
report based on the doctor failing to show he was qualified to provide standard of care
opinions applicable to nurses monitoring a patient in the home healthcare setting. Id.
at 397-98. The trial court agreed and Court of Appeals subsequently affirmed the
dismissal of the case. See also HN Tex. Props., L.P. v. Cox, 2009 WL 3337190, at
*4 (Tex. App.–Fort Worth Oct. 15, 2009, no pet.)(“though Dr. Mitchell is not
automatically disqualified from giving an expert opinion regarding the accepted
standard of care for HN’s nurses simply because he is an internal medicine physician
instead of a nurse, we may not through inferences or otherwise fill in the gaps in
his report where he fails to detail why or how he is qualified to opine about the
applicable standard of care for HN’s nurses.”)(emphasis added).
In the present case, the court cannot through inferences or filling of gaps in Dr.
Miller’s report find he is qualified to provide standard of care opinions as to a
behavioral and psychiatric hospital in the care and treatment of psychiatric patients.
- 13 -
Dr. Miller’s report and curriculum vitae fail to show he is qualified to render standard
of care opinions against Oceans and its staff. Therefore, the trial court abused its
discretion by denying Appellants’ Motion to Dismiss.
B. Dr. Miller’s report contains inadequate statements regarding the
standard of care, breach, and causation.
In addition to failing to show that he is qualified to express standard of care
opinions as to Oceans Behavioral Hospital and its staff, Dr. Miller has failed to
adequately set forth the standard of care applicable to Oceans and its staff, how those
standards of care were breached and how the breaches caused injury to Appellee.
1. Dr. Miller’s report contains inadequate statements on standard of
care and breach of the standard of care.
“Whether a defendant has breached his or her duty to a patient cannot be
determined absent specific information about what the defendant should have done
differently.” Palacios, 46 S.W.3d 873, 880 (Tex. 2001). Dr. Miller’s report
completely fails to address what Oceans Behavioral Hospital should have done
differently.
On Pages 8 - 10 of his report, Dr. Miller sets forth alleged standards of care as
to Oceans and the breaches of the standards of care. See Pages 8-10 of Appendix B.
Dr. Miller’s statements on the standard of care do not meet the requirements for an
expert report. For example, the first paragraph on Page 8, Dr. Miller writes: “the staff
- 14 -
of Oceans . . . should have taken any necessary measures to ensure this patient
remained well hydrated at all times.” Id. Then with regard to breach, on Page 9,
Paragraph 1, Dr. Miller writes that “Oceans Behavioral Hospital failed the standard of
care which required that . . . the staff of Oceans should have taken any necessary
measures to ensure this patient remained well hydrated at all times.” Id. All of Dr.
Miller’s other statements on the standard of care and breach are similarly worded.
These statements are merely conclusions. The statements do not adequately and
specifically identify the applicable standard of care and how the standard was
breached. Rather, Dr. Miller is simply describing a condition suffered by a patient, not
a standard of care for treating the patient to avoid the condition.
Dr. Miller writes that a standard of care requires “ensuring” that a patient
remains well hydrated or “ensuring” that the patient doesn’t suffer adverse side effects
from medication. See Page 9 of Appendix B. These statements are an indication of
the inadequacy of Dr. Miller’s report. “Ensure” is defined as “to make sure, certain
or safe” or “to guarantee.” See MERRIAM-WEBSTER ONLINE DICTIONARY,
http://www.merriamwebster.com /dictionary/ensure. A standard of care that requires
a health care provider “to make certain” or “guarantee” that nothing adverse ever
happens to a patient is an impossible and unrealistic standard. See Hunter v. Robison,
488 S.W.2d 555, 560 (Tex. Civ. App.–Dallas 1972, writ ref’d n.r.e.)(“a physician is
- 15 -
not a warrantor of cures, and his failure to cure is no evidence of negligence on his
part”). The standard of care is not to “ensure” or “make certain” that a patient never
develops an infection, or that a patient never develops bed sores, or that a patient
never becomes dehydrated. “A finding of negligence may not be based solely on
evidence of a bad result to the claimant in question.” Senior Care Centers, LLC v.
Shelton, 459 S.W.3d 753, 758-59 (Tex. App.–Dallas 2015, no pet.)(citing TEX. CIV.
P RAC. & REM. CODE §74.303(e)(2)); see also Palacios, 46 S.W.3d at 880 (breach
cannot be inferred from the existence of an injury alone because the doctrine of res
ipsa loquitor does not generally apply in medical malpractice cases). Rather, standard
of care is “what specifically an ordinarily prudent health care provider would do under
the same or similar circumstances.” Shelton, 495 S.W.3d at 758 (citing Palacios, 46
S.W.3d at 880).
In Shelton, the plaintiff filed suit against a nursing home alleging it was negligent
in violating an order that the resident at issue be “NPO” (to not take food by mouth)
and such alleged violation of the order caused food aspiration and subsequent death.
Id. at 756. The defendant objected to the plaintiff’s expert report based on a failure
to set forth the standard of care, which were ultimately overruled by the trial court. Id.
On appeal, the Dallas Court of Appeals reversed the trial court and dismissed the case.
Id.
- 16 -
In Shelton, the court noted that:
the expert failed to provide specifics as to what steps should have been
taken to prevent [the resident] from being fed by the different types of
people in her room: health care staff, [the resident] herself, [the
resident’s] visitors, her roommate, her roommate’s visitors, and other
residents. The reports do not state what specifically should have been
done to educate those different groups of people in the room regarding
[the resident’s] NPO status and what, if any, more affirmative conduct
to prevent others in the room from providing foot to [the resident] to eat
was required.
Id. at 758.
In the present case, Dr. Miller’s report fails to provide specific steps the
standard of care be taken to address hydration of a patient who has been admitted
suffering from major depressive disorder with psychosis and dementia with behavioral
disturbances. Dr. Miller’s report simply takes a result or condition such as
dehydration and concludes that since Mr. Butler was dehydrated the standard of care
was not met by Oceans and its staff. Such an opinion is insufficient and conclusory.
Similarly, Dr. Miller provides no standard of care regarding the measures that
Oceans and its staff should have taken to attempt to prevent over-sedation or adverse
side effects of the medications allegedly prescribed by Dr. Cavazos. He writes that
they should have “ensur[ed] through appropriate means, that Mr. Butler did not suffer
medication side effects including over-sedation.” See Page 9 of Appendix B.
However, Dr. Miller never identifies the steps Oceans and its staff should have taken
- 17 -
to attempt to prevent over-sedation, i.e., the standard of care. After reading the report,
the question remains: “What did the standard of care require Oceans and its staff to
do?” By failing to address what Oceans was required to do differently, Dr. Miller does
not adequately identify the standard of care.
With regard to the administration of antipsychotic medications, again, Dr. Miller
does not set forth the standard of care for the treatment of a patient such as Mr. Butler
who is suffering from major depressive disorder with psychosis and dementia with
behavioral disturbances. Dr. Miller writes that Mr. Butler was admitted to Oceans to
“better manage his symptoms.” See Page 3 of Appendix B. However, Dr. Miller
provides no standard of care applicable to Oceans and its staff for the management
of these symptoms of major depressive disorder with psychosis and dementia with
behavioral disturbances. Instead, all he writes is that they should not have given Mr.
Butler antipsychotic medications. See Page 8 of Appendix B. Dr. Miller once again
fails to inform Oceans and its staff of the standard of care that should have been
followed to better manage Mr. Butler’s symptoms.
In his report, Dr. Miller writes that Oceans physically restrained Huey Butler
based on some photographs he apparently reviewed which he did not identify or
authenticate, and that the standard of care required they not physically restrain Mr.
Butler. See Page 15 of Appendix B. Dr. Miller is writing such statements based on
- 18 -
speculation and does not cite anywhere in the Oceans chart to support his assertion.
This attempted statement of a breach of the standard of care is totally unsupported
and should not be considered.
In addition, Dr. Miller’s statement of the standard of care as not to use physical
restraints is an impermissible conclusory opinion. He gives no basis whatsoever for
the assertion that the standard of care for Oceans was to never use physical restraints,
and that this was violated by the alleged, unsupported assertion, that Oceans used
physical restraints on Mr. Butler. He doesn’t describe the situation where these
restraints were allegedly used, nor why they should not have been used in that
particular situation, and what they should have done differently. He provides
absolutely no information regarding this contention.
In his report, Dr. Miller has failed to properly identify the standards of care
applicable to Oceans and its staff. Without properly identifying the standard of care,
there cannot be a proper statement of a breach of the standard of care. Further, his
attempted statements on breach of the standard of care are conclusory in that he
concludes that there was a breach based only on a result, such as dehydration and
over-sedation. Dr. Miller’s report is deficient as to standard of care and breach.
Further, as set forth in more detail below, if there is not a proper identification of the
standard of care and breach of the standard of care, the report cannot possibly show
- 19 -
the causal relationship between a breach of the standard of care and the Plaintiff’s
alleged damages.
2. Dr. Miller’s report fails contains impermissibly conclusory
statements on causation.
Dr. Miller’s report fails to set forth the causal relationship between a breach of
the standard of care and the injury, harm or damages claimed. See T EX. CIV. P RAC.
& REM. CODE §74.351(r)(6). Without properly identifying the standard of care, there
cannot be a proper statement of a breach of the standard of care. Further, as set forth
in more detail below, if there is not a proper identification of the standard of care and
breach of the standard of care, the report cannot possibly show the causal relationship
between a breach of the standard of care and the plaintiff’s alleged damages. Dr.
Miller failed to identify the applicable standards of care. Therefore, he has failed to
show the causal relationship between a breach of the standard of care and Plaintiff’s
alleged damages. Further, his attempts at stating an opinion on a causal relationship
between a breach and the damages alleged are impermissibly conclusory.
A causal relationship is established by proof that the negligent act or omission
was a substantial factor in bringing about the harm and that absent this act or omission,
the harm would not have occurred. Conboy v. Lindale Health Care, LLC, 2013 Tex.
App. LEXIS 11013, *6 (Tex. App.–Tyler 2013, August 29, 2013, no pet.)(citing
Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.
- 20 -
App.—San Antonio 2004, no pet.). Merely providing some insight into the plaintiff's
claims does not adequately address causation. Id. (citing Bowie Mem. Hosp. v.
Wright, 79 S.W.3d 48, 53 (Tex. 2002)). Accordingly, causation cannot be inferred;
it must be clearly stated. Id. (citing Castillo v. August, 248 S.W.3d 874, 883 (Tex.
App.—El Paso 2008, no pet.)). The court may not fill in gaps in a report by drawing
inferences or guessing what the expert meant or intended. Id. (citing Austin Heart,
P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).
The Supreme Court of Texas has held that the “report cannot merely state the
expert's conclusions about [the elements required in an expert report],” but “‘the
expert must explain the basis of his statements to link his conclusions to the facts.’”
Palacios, 46 S.W.3d at 877 (Tex.2001) (quoting Earle v. Ratliff, 998 S.W.2d 882,
890 (Tex. 1999)). “A report that merely states the expert's conclusions about the
standard of care, breach, and causation" does not fulfill the two purposes of a
good-faith effort.” Palacios, 46 S.W.3d at 879; see also Jelinek v. Casas, 328
S.W.3d 526, 539 (Tex. 2010)(“An expert report cannot merely state the expert’s
conclusions about the expert report requirements, rather “the expert must explain the
basis of his statements to link his conclusions to the facts.”).
In the present case, throughout his report, Dr. Miller recycles the same
conclusory phrases and paragraphs. At several points in his report, Dr. Miller makes
- 21 -
the following conclusory statements: “more likely than not and based upon a
reasonable degree of medical and nursing, probability and certainty, Mr. Huey Butler
would not have suffered dehydration, acute kidney injury, hypovolemia, shock liver,
encephalopathy, unnecessary worsening of his condition, an extensive hospitalization,
pain, mental anguish, loss of dignity and ultimate death.” See, e.g., Page 15 of
Appendix B. Dr. Miller report does not explain the basis of his statements or attempt
to link his conclusions to the facts. Therefore, Dr. Miller’s report is deficient as to
causation.
It is not sufficient for an expert to provide a description of only a possibility of
causation. Taylor v. Fossett, 320 S.W.3d 570, 577 (Tex. App.– Dallas 2010, no pet.).
“The report must include the required information within its four corners.” Bowie v.
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curiam). “A conclusory
report does not meet the Act’s requirements[.]” Id. “An expert must explain, based
on facts set out in the report, how and why the breach caused the injury.” Van Ness
v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015, reh’g denied) (per
curiam) (emphasis in original). “An expert cannot simply opine that the breach causes
the injury.” Jelinek,328 S.W.3d at 539. “An expert’s conclusion that ‘in medical
probability’ one event caused another differs little, without an explanation tying the
conclusion to the facts, from an ipse dixit, which [the Supreme Court] [has]
- 22 -
consistently criticized.” Id. Although there are no magical words which an expert
report must include to satisfy the good faith requirement, “mere invocation of the
phrase ‘medical probability’ is likewise no guarantee that the report will be found
adequate.” Id. at 540. In the present case, Dr. Miller fails to set forth the causal
relationship between alleged breaches of the standard of care by Oceans and the
Plaintiff’s alleged damages.
In the present case, Dr. Miller simply opines that based upon a reasonable
degree of medical certainty, Mr. Huey Butler would not have suffered adverse
conditions, but Dr. Miller fails to finish the sentence and explain how or why and
alleged breach of the standard of care caused the alleged adverse conditions. Instead,
Dr. Miller summarily states that the alleged breach caused the injury and subsequent
death of Mr. Butler, instead of linking these conclusions to the facts.
IV. CONCLUSION
Dr. Miller’s report is deficient in many regards. First, Dr. Miller’s report and
CV fail to show that he is qualified to offer opinions concerning the standard of care
applicable to a psychiatric hospital. Second, Dr. Miller’s report contains inadequate
on the standard of care and breach. Third, Dr. Miller’s opinions on causation are
merely conclusory statements which are impermissible. Therefore, the trial court
abused its discretion in denying Oceans Behavioral Hospital’s Motion to Dismiss.
- 23 -
PRAYER
WHEREFORE, PREMISES CONSIDERED, OCEANS BEHAVIORAL
HEALTHCARE OF LONGVIEW, AUDUBON BEHAVIORAL
HEALTHCARE OF LONGVIEW, LLC d//b/a OCEANS BEHAVIORAL
HOSPITAL OF LONGVIEW and OCEANS ACQUISITION, INC, Appellants
in the above referenced appeal, ask the Court of Appeals to reverse the trial court’s
denial of Oceans’ Motion to Dismiss and render the judgment in favor of Oceans
dismissing the Appellee’s case against it and for such other and further relief either at
law or in equity to which Appellants may show just entitlement.
Respectfully submitted,
KENT, ANDERSON, BUSH, FROST & METCALF, P.C.
2320 Dueling Oaks Drive
Tyler, Texas 75703
(903) 579-7500
(903) 581-3701 (Fax)
By: /s/ David W. Frost
David W. Frost
State Bar No. 24002111
dfrost@tyler.net
ATTORNEYS FOR APPELLANTS
- 24 -
CERTIFICATE OF COMPLIANCE
The undersigned certifies this brief complies with the typed-volume limitations
of Texas Rule of Appellate Procedure 9. This brief contains 7,087 words and has
been prepared in proportionately spaced typeface using Word Perfect X6 in 14 point
Times New Roman font.
Dated: November 27, 2017
/s/ David W. Frost
David W. Frost
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically transmitted to
the following counsel on this 27th day of November, 2017.
R. Daniel Sorey
The Sorey Law Firm, PLLC
109 W. Tyler Street
Longview, Texas 75601
Attorney for Appellee
C. Victor Haley
1801 North Street
P.O. Drawer 631668
Nacogdoches, Texas 75963-1668
Attorney for Javen V. Cavazos, M.D.
/s/ David W. Frost
David W. Frost
- 25 -
APPENDIX TAB
Order Denying Defendant’s Motion to Dismiss for
Failure to Provide Sufficient Medical Expert Report . . . . . . . . . . . . . . . . A
Expert Report of Keith E. Miller, M.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B
APPENDIX “A”
Order Denying Defendants’
Objections to Plaintiff’s Expert
Report and Motion to Dismiss
Electronically Submitted
9/21/2017 10:18 AM
Gregg County District Clerk
By: Elisha Calhoon ,deputy
CAUSE NO. 2017-110-CCL2
NANCY M. BUTLER, INDIVIDUALLY § IN THE COUNTY COURT
AND AS EXECUTOR OF THE ESTATE §
OF HUEY D. BUTLER, DECEASED, §
AND ON BEHALF OF THE WRONGFUL §
DEATH BENEFICIARIES OF §
HUEY D. BUTLER, §
§
Plaintiff, §
§
vs. § AT LAW NO. 2 OF
§
JAVEN V. CAVAZOS, MD, §
OCEANS BEHAVIORAL HOSPITAL §
OF LONGVIEW, AUDUBON BEHAVIORAL §
HEALTHCARE OF LONGVIEW, LLC §
d/b/a OCEANS BEHAVIORAL HOSPITAL §
OF LONGVIEW, and OCEANS §
ACQUISITION, INC., §
§
Defendants. § GREGG COUNTY, TEXAS
ORDER
On the 24th day of August, 2017, Defendants Oceans Behavioral Hospital of Longview,
Audubon Behavioral Healthcare of Longview, LLC d/b/a Oceans Behavioral Hospital of
Longview, and Oceans Acquisitions, Inc.‘s Objections to Plaintiff’s Chapter 74 Expert Report
and Motions to Dismiss, as well as Plaintiff’s Motion for Sanctions, came on to be heard.
The Court has made a careful review of the Court’s file, the Chapter 74 Expert Report of
Keith E. Miller, MD provided by Plaintiff, and the Objections and Motions to Dismiss filed on
behalf of Defendants in this Cause, and sets forth its rulings with respect to said Report below:
1. The Court finds that for the purposes of the requirements of Chapter 74 of the Texas
Civil Practices and Remedies Code, that Keith Miller, MD, both by reason of training
and experience, is sufficiently qualified to render the opinions contained in the
Chapter 74 Expert Report provided in this Cause.
285
Page 1 of 2
2. The Court finds that each of the separate Standards of Care set forth specific
information about what the separate Defendants should have done differently. The
Court further finds that the Chapter 74 Expert Report further sets forth the alleged
breach on the part of both Defendants of the separate Standards of Care.
3. The Court further finds that Keith Miller, MD sufficiently sets forth the Causation
between the alleged Breaches of Standards of Care and the injuries and ultimate
passing of Huey D. Butler.
4. Considering the Chapter 74 Expert Report of Keith Miller, MD, the Court finds that
the Plaintiffs have met the threshold requirements of Chapter 74 of the Texas Civil
Practices and Remedies Code. Defendants’ separate Objections are hereby
OVERRULED.
5. Accordingly, Defendants’ separate Motions to Dismiss are hereby DENIED.
6. Plaintiff’s Motion for Sanctions is hereby DENIED.
SIGNED and ENTERED this 21st
______ day of September, 2017.
________________________________
JUDGE VINCENT DULWEBER
286
Page 2 of 2
APPENDIX “B”
Expert Report and Curriculum
Vitae of Keith E. Miller, M .D.
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190