Christus Spohn Health System Corporation D/B/A Christus Spohn Hospital Corpus Christi-Shoreline v. Elda Alaniz ( 2018 )

NUMBER 13-17-00590-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION D/B/A
CHRISTUS SPOHN HOSPITAL
CORPUS CHRISTI-SHORELINE, Appellant,
v.
ELDA ALANIZ, Appellee.
On appeal from the County Court at Law No. 1
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
This is an interlocutory appeal of the trial court’s order denying appellant Christus
Spohn Health System Corporation d/b/a Christus Spohn Hospital Corpus Christi -
Shoreline’s (Christus Spohn) motion to dismiss the healthcare liability claims of appellee
Elda Alaniz. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(9), 74.351(a), (b)
(West, Westlaw through 2017 1st C.S.). In one issue, which we construe as two,
Christus Spohn contends that the trial court abused its discretion in overruling its
objections to the reports of Drs. Nancy Futrell and Lige B. Rushing and denying dismissal
on the grounds that the reports: (1) fail to establish that either doctor is qualified to testify
regarding the standard of care applicable to appellant, a hospital; and (2) convey only
impermissibly conclusory and speculative opinions regarding the (a) standard of care, (b)
breach, and (c) causation. We reverse and remand.
I. BACKGROUND
According to Alaniz’s original petition, on July 14, 2015, Alaniz, who was then fifty-
nine years old, “began having new onset hypertension, malaise, fevers, night sweats,
Raynaud’s phenomenon and positive ANA, resulting in her” admission to Christus Spohn
through the emergency department. On July 15, 2015, at 2:00 p.m., an angiogram of
Alaniz’s upper extremities was performed on orders from Dr. Adriana Pop-Moody, a
rheumatologist. At 4:15 p.m., Alaniz developed nausea, left facial droop, an inability to
move her left arm, and weakness in her left leg. In Futrell’s report, she opined that an
“[a]ngiography is a well-recognized cause of stroke . . . .” At that point, a “stroke code
was called” and a CT of Alaniz’s brain was ordered to determine any “tPA
contraindications.” 1 After some delay, Dr. Eric Sklar, a telestroke consultant,
recommended treatment with tPA at 8:10 p.m. notwithstanding a concern that the tPA be
1According to Futrell’s report, tPA is short for “tissue plasminogen activator,” and it is an agent that
breaks down clots.
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administered within the therapeutic window of four and a half hours after the onset of a
stroke. The final decision to administer the tPA was made at 8:30 p.m. However, the
tPA was not administered by 8:45 p.m., the end of the therapeutic window. Therefore,
the order for tPA was cancelled.
In Alaniz’s original petition, she alleges that Christus Spohn was negligent in
“[f]ailing to timely mix and administer the tPA to Ms. Alaniz in the PACU [post-anesthesia
care unit] within ten minutes of the order for the tPA given by Dr. Sklar.”
Alaniz attached a report by Futrell to her original petition. Christus Spohn
objected to Futrell’s qualifications and to her report on the grounds that Futrell’s opinions
regarding standard of care, breach, and causation were conclusory and speculative. The
trial court overruled Christus Spohn’s objections to Futrell’s report. Alaniz later served
Christus Spohn with a report by Rushing. As with Futrell’s report, Christus Spohn
objected to Rushing’s qualifications and to his report on the grounds that Rushing’s
opinions regarding standard of care, breach, and causation were conclusory and
speculative. Christus Spohn later moved to dismiss Alaniz’s healthcare liability claims
under chapter 74. The trial court denied Christus Spohn’s objections to Rushing’s report
and its motion to dismiss. This interlocutory appeal followed.
II. DISCUSSION
Christus Spohn’s objections to the qualifications of Futrell and Rushing and to their
opinions regarding all three statutory elements—standard of care, breach, and
causation—are nearly identical. However, their reports differ in detail. We will address
Christus Spohn’s objections by expert, beginning with its qualification challenge and
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proceeding to each of the statutory elements.
A. General Authority & Standard of Review
An “expert report” is 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. Id. § 74.351(r)(6).
When a report and CV are timely served on a defendant, any objections to the
sufficiency of the report and any objections to the expert’s qualifications must be raised
by the defendant within twenty-one days after service of the report and CV. See id.
§ 74.351(a) (providing a twenty-one-day deadline for a defendant health care provider
whose conduct is implicated in a report to file and serve any objection to the sufficiency
of the report); see also id. § 74.402(f) (West, Westlaw through 2017 1st C.S.) (providing
a twenty-one-day deadline for a defendant health care provider to object to the
qualifications of a witness).
A trial court’s ruling on the sufficiency of an expert’s report is reviewed for an abuse
of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).
Under this review, we defer to the trial court’s factual determinations if they are supported
by the evidence, but review its legal determinations de novo. Id. A trial court abuses
its discretion if it acts without reference to guiding rules or principles. Id. However, in
exercising its discretion, it is incumbent upon the trial court to review the reports, sort out
their content, resolve any inconsistencies, and decide whether the reports demonstrate a
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good faith effort to show that the plaintiff’s claims have merit. See id. at 144; see TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(l) (“A court shall grant a motion challenging the
adequacy of an expert report only if it appears to the court, after hearing, that the report
does not represent an objective good faith effort to comply with the definition of an expert
report . . . .”).
B. Qualifications
To opine on the standard of care applicable to a non-physician healthcare provider
an expert must meet the qualifications of section 74.402. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(5)(B). Subsections 74.402(b) and (c) provide the following
qualifications for an expert:
(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.
(c) In determining whether a witness is qualified on the basis of training
or experience, the court shall consider whether, at the time the claim
arose or at the time the testimony is given, the witness:
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(1) is certified by a licensing agency of one or more states of the
United States or a national professional certifying agency, or
has other substantial training or experience, in the area of
health care relevant to the claim; and
(2) is actively practicing health care in rendering health care
services relevant to the claim.
Id. § 74.402(b), (c) (emphasis added). Christus Spohn is not an individual. Therefore,
subsection 74.402(b)(1) does not apply. See id. § 74.402(b)(1); see also Doctors Hosp.
v. Hernandez, No. 01-10-00270-CV, 2010 WL 4121678, at *4–5 (Tex. App.—Houston
[1st Dist.] Oct. 21, 2010, no pet.) (mem. op.) (applying subsection 74.402(b)(1)).
1. Futrell
Futrell is board certified in neurology, and she founded the Intermountain Stroke
Center. The Intermountain Stroke Center developed the first urgent care “TIA clinic” in
the United States. According to Futrell’s report, the TIA clinic “is now recognized as the
best system of care for patients with TIA or minor strokes, keeping them out of the hospital
at a major cost savings without sacrificing any quality of outcome.” Futrell has served
on the editorial board of the following journals: Stroke, Surgical Neurology, Journal of
Stroke and Cerebrovascular Disease, Cerebrovascular Disease, and Stroke & Vascular
Neurology.
In the trial court, Christus Spohn objected to Futrell’s qualifications on the following
grounds:
In her report, Dr. Futrell provides three paragraphs regarding her alleged
“qualifications to testify in this area.” [] In describing her qualifications,
Futrell makes absolutely no mention of any specific familiarity she may have
with hospital and nursing staff mixing and/or administering tPA. Further,
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she fails to reference any experience she has in working with hospital and
nursing staff regarding their mixing and/or administering tPA. Nowhere in
her report does Dr. Futrell describe the basis for her knowledge regarding
the hospital and nursing staffs mixing and/or administering tPA. She fails
to describe any training or experience she may have regarding the hospital
and nursing staff’s role(s) in mixing and/or administering tPA. A review of
Dr. Futrell’s report and curriculum vitae do not reveal that she has ever
worked as a hospital staff employee or nurse in mixing and/or administering
tPA or that she has ever trained or educated hospital employees or nurses
specifically on mixing and/or administering tPA.
Christus Spohn’s objections aptly note that Futrell is neither a nurse nor a hospital
employee. However, subsection 74.402(b)(1) does not require that Futrell be “practicing
health care in a field of practice that involves the same type of care or treatment as that
delivered by” Christus Spohn because it is not an individual. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.402(b)(1); see also Hernandez, 2010 WL 4121678, at *4–5 (applying
subsection 74.402(b)(1)). Similarly, subsections 74.402(b) and (c) do not require Futrell
to have personally mixed and administered tPA to qualify under the health care liability
statute.
Instead, the first applicable statutory requirement is that Futrell have knowledge of
accepted standards of care for health care providers such as Christus Spohn for the
diagnosis, care, or treatment of the illness, injury, or condition involved in the claim, which
as pleaded in this case is the timely mixing and administration of tPA by hospital
personnel. Id. § 74.402(b)(2). The next applicable statutory requirement is that Futrell
“is qualified on the basis of training or experience to offer an expert opinion regarding
those accepted standards of health care.” See id. § 74.402(b)(3). In assessing a
physician’s “training or experience” a court must look to whether the expert is certified by
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a licensing agency and is actively practicing health care in rendering health care services
relevant to the claim. Id. § 74.402(b)(3), (c).
In the section of her report titled “Causation,” Futrell explains that she has “clinical
experience in giving tPA to 12 patients under the age of 60, all of whom returned to their
previous activities with little or no neurologic deficit.” This statement demonstrates
experience “in giving tPA” and patients’ outcomes after it is “given.” However, health
care services relevant to the pleaded claim involves the mixing and administration of tPA
by hospital personnel. Cf. Tenet Hosps. Ltd. v. Barnes, 329 S.W.3d 537, 546–47 (Tex.
App.—El Paso 2010, no pet.) (holding expert qualified to state standard of care for
hospital where report stated expert had experience with type of claim at issue, including
being “involved in care of about 250 patients” similar to patient at issue and curriculum
vitae showed he was “Chief of Surgery”); Rusk State Hosp. v. Black, 379 S.W.3d 283,
292 (Tex. App.—Tyler 2010), rev’d on other grounds by 392 S.W.3d 88 (Tex. 2012)
(holding psychologist qualified to opine concerning mental hospital’s standard of care
based in part on psychologist’s “extensive training and experience in the diagnosis and
treatment of mental disorders” and service “as supervising or consulting psychologist at
numerous mental health facilities”).
Given Futrell’s failure to demonstrate knowledge of accepted standards of care for
hospital personnel in the mixing and administrating tPA and that she is actively practicing
health care in rendering health care services relevant to the claim, the trial court abused
its discretion by concluding otherwise. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.402(b)(2), (b)(3), (c)(2); cf. Barnes, 329 S.W.3d 546–47; Black, 379 S.W.3d at 292.
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2. Rushing
Rushing is board-certified in internal medicine, rheumatology, and geriatrics, and
he is on the attending staff of Presbyterian Hospital of Dallas. In describing his
qualifications, Rushing writes:
In the regular course of my practice, I have occasions to diagnose and treat
patients with conditions substantially similar or identical with Elda Alaniz.
Over the course of my career, I have been primary care physician for more
than 10,000 patients in hospitals and nursing homes. . . I have conferred
with radiologist and PCPs in the administration of TPA and [sic] hospital
settings on a number of occasions. I am familiar with the treatment of
patients like Mrs. Alaniz by all of the classes of individuals including hospital
personnel.
In the trial court, Christus Spohn objected to Rushing’s qualifications on the
following grounds:
While Dr. Rushing claims he is familiar with the treatment of patients like
Mrs. Alaniz by all classes of individuals including hospital personnel, he
does [sic] specifically discuss or describe any familiarity he may have with
how hospital personnel prepare, mix and administer tPA. Further, he fails
to reference any experience he has in working with hospital personnel
regarding preparing, mixing and administering tPA. Nowhere in his report
does Dr. Rushing describe the basis for his knowledge regarding the
hospital personnel’s role or responsibility in preparing, mixing and
administering tPA. He fails to describe any training or experience he may
have regarding the hospital personnel’s role(s) in preparing, mixing and
administering tPA. A review of Dr. Rushing’s report and curriculum vitae
do not reveal that he has ever worked as “hospital personnel” or actually
himself prepared, mixed and administered tPA or that he has ever trained
or educated hospital personnel specifically on how to perform these tasks.
Rushing’s description of his qualifications in this case is remarkably similar to the
qualifications he described in Nexion Health at Garland, Inc. v. Treybig, No. 05-14-00498-
CV, 2014 WL 7499373, at *5 (Tex. App.—Dallas Dec. 31, 2014, no pet.) (mem. op.), in
which he wrote:
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In the regular course of my medical practice I have occasion to diagnose
and treat patients with conditions similar to or identical with Mr. Treybig.
[D]uring the course of my career I have provided primary medical care to
more than 10,000 patients in hospitals, nursing homes and assisted living
facilities. I have provided care to patients who, like Mr. Treybig, were
suffering from diabetes, hip replacement therapy, complications from
infections, amputations, and spinal injuries. I have written orders for the
care and treatment of these patients and have supervised the execution of
these orders by RNs LVN’s and CAN’s who were assigned to provide the
hands-on care to my patients. These orders included orders for the
treatment for hip pain as well as the treatment of spinal injuries. I am
therefore intimately familiar with the standards of care for the facilities
involved in this claim as well as the RNs, LVN’s and CAN’s who provid[ed]
care to Mr. Treybig.
Id. In Treybig, a nursing home patient allegedly sustained a vertebral compression
fracture during physical therapy. Id. at *1. The patient alleged that the nursing home
“engaged, contracted with, and/or hired” the physical therapist’s employer and that the
nursing home and the physical therapist’s employer failed to “design and/or implement”
adequate care plans. Id. The court of appeals held that Rushing’s report did not
adequately articulate how he was qualified to opine on the standard of care applicable to
a nursing home when it contracts with another health care provider to provide a resident
with physical therapy care or treatment. Id. at *6.
Although not directly on point and not binding, the analysis of Rushing’s
qualifications in Treybig is instructive. In his report, Rushing fails to explain in a non-
conclusory fashion how he has the knowledge of accepted standards of care. That
Rushing has had “occasions to diagnose and treat patients substantially similar to or
identical with” Alaniz does not explain whether Rushing has any experience with hospital
personnel tasked with mixing and administering tPA. Rushing’s “conferr[ing] with
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radiologist and PCPs in the administration of TPA and [sic] hospital setting on a number
of occasions” leaves one wondering whether Rushing was the physician who ordered the
administration of tPA or was merely informed by a “radiologist and PCP” that tPA was
administered. This gap implicates subsections 74.402(b)(3) and (c)(2) in that Rushing
does not indicate in a non-conclusory fashion that he is actively practicing health care in
rendering health care services relevant to the claim. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.402(b)(3), (c)(2).
Given Rushing’s failure to demonstrate (1) knowledge of accepted standards of
care for hospital personnel in the mixing and administrating tPA or (2) that he is actively
practicing health care in rendering health care services to patients in need of tPA, the trial
court abused its discretion by concluding that he possessed knowledge of accepted
standards of care for hospitals such as Christus Spohn in mixing and administering tPA.
See id. § 74.402(b)(2)–(3), (c); see also Treybig, 2014 WL 7499373, at *5–6.
3. Relation to Other Objections
Christus Spohn complains that Futrell’s and Rushing’s opinions regarding the
standard of care, breach, and causation elements are speculative because both experts
are unqualified. We need not address Christus Spohn’s challenge to the statutory
elements on speculative grounds at this time because we will remand for the trial court
to consider whether to grant Alaniz a thirty-day extension to submit supplemental or
amended reports. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); TEX. R. APP. P.
47.1; see also Scoresby v. Santillan, 345 S.W.3d 546, 549 (Tex. 2011) (“An individual’s
lack of relevant qualifications and an opinion’s inadequacies are deficiencies the plaintiff
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should be given an opportunity to cure if it is possible to do so.”).
4. Holding
Christus Spohn’s first issue is sustained.
C. Expert Report Elements
In what we construe as Christus Spohn’s second issue, it contends that the trial
court abused its discretion in denying its motion to dismiss on the ground that the reports
of Futrell and Rushing convey only impermissibly conclusory and speculative opinions
regarding the (1) standard of care, (2) breach, and (3) causation.
1. Standard of Care
a. Futrell
In a section of her report titled “Failure to give TPA”, Futrell writes:
The appropriate treatment for an acute stroke is thrombolysis with tPA
(tissue plasminogen activator). This agent breaks down clot, particularly
fresh clot such as those produced by angiography, and can dissolve the clot
and reverse all or part of the symptoms of a stroke. The earlier tPA is
given, the higher the likelihood for complete recovery. The standard of
care requires that a recognized in hospital stroke, such as that suffered by
Ms. Alaniz, be treated with IV tPA within 60 (up to 90) minutes of onset of
the stroke. The benefit of tPA decreases by 3% with every 15 minutes of
treatment delay, and after 4 ½ hours it is not recommended, as the bleeding
risk becomes high and the likelihood of benefit diminishes significantly.
Administration of tPA in a timely fashion requires recognition of the stroke
(which was done, and a stroke alert was properly called), performance of a
STAT CT scan (which was appropriately done in a timely fashion) and
immediate consultation with a physician skilled in administration of tPA, in
this case the telestroke physician, Sklar (which was not done within the
appropriate time frame). Unfortunately, the treating physicians and nurses
breached the standard of care in multiple points in the evaluation and
preparation of the treatment of this stroke, resulting in the failure to given
[sic] the tPA within 4.5 hours. Breaches of the standard of care include:
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....
[] Failure of the hospital staff to mix and/or administer the tPA to
Ms. Alaniz in the PACU within 10 minutes of the order for tPA given
by Sklar at 20:30.
[] Putting the transfer of the patient out of the PACU as a more
important priority than the urgent treatment tPA to reverse the stroke.
The tPA bolus should have been given, the tPA infusion started, in
whatever room the patient was located. It is not clear whether the
pharmacy failed to make the tPA available, whether the nurses failed
to mix and administer the tPA or whether hospital transport personnel
began the transfer before medication orders were followed.
A timeline of events in relation to the therapeutic window gleaned from the reports of
Futrell and Rushing provides:
Remaining
Therapeutic
Time Window Description
4:00 p.m. Angiogram performed
Therapeutic window begins as inferred from
Futrell’s report; onset of symptoms per telestroke
4:15 p.m. 4.5 hours physician Sklar’s notes and “stroke code” called
Onset of stroke symptoms, including nausea, left
facial droop, inability to move the left arm, and
6:15 p.m. 2.5 hours weakness of the left leg per Futrell’s report
6:36 p.m. 2 hours 9 minutes CT of the brain performed
7:25 p.m. 1 hour 20 minutes Sklar received initial, “non-emergent” page
8:10 p.m. 35 minutes Sklar recommends tPA
8:30 p.m. 15 minutes tPA orders given
Sklar informed by Pop-Moody that tPA had not yet
8:43 p.m. 2 minutes been given and that it was not even mixed
8:45 p.m. 0 minutes End of therapeutic window
8:50 p.m. + 5 minutes tPA still not mixed and Sklar orders tPA cancelled
Futrell’s standard of care opinions are, according to objections Christus Sphon
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lodged in the trial court, conclusory because “she does not describe or explain the
required process for the hospital staff or nurse to follow regarding mixing and/or
administering tPA in order to meet the standard of care beyond stating the stroke be
‘treated with IV tPA within 60 (up to 90) minutes of onset . . . and after 4 ½ hours is not
recommended.’”
“A good-faith effort must ‘provide enough information to fulfill two purposes: (1) it
must inform the defendant of the specific conduct the plaintiff has called into question,
and (2) it must provide a basis for the trial court to conclude that the claims have merit.’”
Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (quoting
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). All
information needed for this inquiry is found within the four corners of the expert report,
which need not marshal all of the plaintiff’s proof. Jelinek v. Casas, 328 S.W.3d 526,
539 (Tex. 2010)
Futrell’s standard of care opinions are not conclusory when read with the entirety
of her report. Futrell opines that the breaches of the standard of care included, among
other things, “[f]ailure of the hospital staff to mix and/or administer the tPA to Mrs. Alainz
in the PACU within 10 minutes of the order for tPA given by Dr. Sklar at 20:30.” Thus,
Futrell gave a timeframe, as sketched out above, during which the tPA should have been
mixed “and/or” administered. This ten-minute timeframe would have been before 8:45
p.m., the expiration of the four-and-a-half-hour therapeutic window.
Christus Spohn’s insistence that Futrell “describe or explain the required process
for the hospital staff or nurse to follow regarding mixing and/or administering tPA” coupled
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with its appellate complaints 2 evidences a belief on its part that the tPA could not be
mixed and administered within the timeframe described by Futrell. Such insinuations
violate the four corners rule articled by the Texas Supreme Court that “the only information
relevant to the inquiry is within the four corners of the” the expert report. Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). In other words, at
this juncture, Christus Spohn may not prevail by attacking—directly or indirectly—Futrell’s
report with opinions not contained within the four corners of her report. Christus Spohn
may disagree with Futrell’s standard of care opinions, but her standard of care opinions
are sufficiently stated to provide it with notice of the conduct at issue. See Estorque v.
Schafer, 302 S.W.3d 19, 30 (Tex. App.—Fort Worth 2009, no pet.).
b. Rushing
Rushing writes, “The standard of care for a hospital in this situation is to timely
prepare and mix the TPA.” Christus Spohn’s objections in the trial court assert that
Rushing’s opinion is conclusory. We agree. Unlike Futrell’s opinion, we cannot see
where Rushing’s timely preparation opinion fits within the timeline.
As with Futrell, Christus Spohn objects that Rushing “fails to describe or explain
the required process for hospital personnel to follow regarding preparing and mixing the
2 On appeal, Christus Spohn complains that:
Futrell provides no information about which members of the “hospital staff” are involved in
mixing and administering tPA (e.g., nurses, pharmacists, or others). Futrell provides no
discussion of what those staff members should have done or what care was expected from
them. Was the staff supposed to call the pharmacy? Go to the pharmacy to get the
medicine? Who mixes tPA? Who administers tPA? How long does the process
ordinarily take? Can the order be implemented within ten minutes?
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tPA in order to meet the standard of care,” and it lodges similar appellate complaints. 3
Our discussion regarding the four corners rule in Palacios applies to Christus Spohn’s
complaints regarding Rushing’s report just as it did to its complaints regarding Futrell’s
report. While Rushing’s opinion regarding the standard of care is conclusory, at this
juncture, Christus Spohn may not prevail by attacking—directly or indirectly—Rushing’s
report with opinions not contained within the four corners of her report. See Palacios, 46
S.W.3d at 878.
2. Breach
a. Futrell
As noted above, Christus Spohn complains that Futrell’s breach opinion is
speculative because she is unqualified. As part of Christus Spohn’s complaint, it asserts
that “Futrell even admits to her speculation when she states, ‘It is not clear whether the
pharmacy failed to make the tPA available, whether the nurses failed to mix and
administer he tPA of whether the hospital transport personnel began the transfer before
3 On appeal, Christus Spohn complains that:
From this conclusory statement, the Hospital could not determine whether Rushing
believed the hospital personnel should have called the pharmacy “stat”? Should the
hospital personnel have gone to the pharmacy? Who prepares or mixes tPA? Can the
task be performed within ten minutes? If the mixing process should have been started
sooner (which Rushing states, without stating who should have started sooner), how much
sooner, and can nurses or pharmacists or other Hospital personnel take such action
without a doctor’s order, considering that nurses cannot order treatments under their scope
of practice? What if the tPA had been sitting around mixed for two hours? Does mixed
tPA retain its effectiveness after a certain amount of time? These multiple unanswered
questions establish that Rushing’s five-word standard of care is conclusory and deficient.
(footnote and record citation omitted).
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medication order were followed.” Earlier in Futrell’s report, she writes:
It should be noted that the records from Christus Spohn Hospital are some
of the most difficult medical records I have ever seen. There are multiple
repetitive flow sheets, which list all of the problems that a nurse should
consider on each evaluation of any patient—male or female—adult or child,
including the definitions of these problems. Interesting there were lists of
about 6 problems of the male reproductive system repeated multiple times
in the chart of this female patient. In the flow sheets the vast majority of
the information printed on the page had nothing to do with the patient. This
makes it difficult to cull out the information that was entered to document
the status of this patient and the care she received. Sometimes I had
difficulty determining whether sentences belonged to this patient’s care or
not!! [sic] I reviewed the case carefully, but I need to reserve the right to
alter my description of the course of events (including clinical evaluation and
times) due to ambiguities inherent in the medical record.
In reviewing the entirety of Futrell’s report and sorting out its content, see Van Ness, 461
S.W.3 at 142, the trial court may have deemed Futrell’s statement related to the state of
its medical records regarding Alaniz’s care rather than as supporting its speculation
contention.
Christus Spohn’s final objection regarding Futrell’s breach opinion is that it is
conclusory “because Futrell does not discuss the alleged breach beyond stating it
occurred by ‘[f]ailure of the hospital staff to mix and/or administer the tPA to Ms. Alaniz in
the PACU within 10 minutes of the order for tPA given by Sklar at 20:30.’” We disagree.
Futrell’s breach opinion provides a clear timeframe of ten minutes, and it identifies the
class of individuals involved as hospital staff. Accordingly, it provides Christus Spohn
with the specific conduct Alaniz has called into question and provides the trial court a
basis for it to conclude that the claims have merit. See Miller, 536 S.W.3d at 513.
b. Rushing
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Christus Spohn objected to Rushing’s breach opinion by arguing:
Rushing’s breach opinion is conclusory because Dr. Rushing does not
discuss the alleged breach beyond stating, “Christus Spohn Hospital failed
to meet the standard by not timely mixing the TPA with in [sic] the 4 ½ hour
therapeutic window” and “[t]he hospital staff, . . . violated standard of care
when she was subjected to inordinate and improper delay in administering
TPA.”
Standing alone, Rushing’s statement regarding “inordinate and improper delay in
administering” tPA is conclusory. However, section 74.351(i) allows a healthcare liability
claimant to use multiple expert reports to satisfy any of the statutory requirements. See
Miller, 536 S.W.3d at 514 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i)). As
noted in the preceding subsection, Futrell’s elaboration that the tPA should have been
mixed and/or administered within ten minutes is not conclusory and it clarifies Rushing’s
opinion regarding “inordinate and improper delay.”
3. Causation
a. Futrell
As for causation, Futrell’s opines:
Had the standard of care not been breached by failing to give tPA within 2
hours of the stroke, the patient would have had a good recovery. Given
the increased recovery potential of people under the age of 60, and given
the fact that her treatment could have been early as her stroke occurred in
the hospital and was promptly recognized, she would have recovered to
little or no deficit. She would have been independent in all her activities of
daily living and would likely have returned to all of her previous activities.
Th[ese] opinions [are] based also on my clinical experience in giving tPA to
12 patients under the age of 60, all of whom returned to their previous
activities with little or no neurologic deficit.
Christus Spohn raises two objections to these opinions.
First, Christus Spohn objects that Futrell’s “causation opinion suggesting [Alaniz]
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‘would have had a good recovery’ is speculative and a rank guess. Futrell claims
[Alaniz] ‘would have recovered to little or no deficit’ and ‘would have been independent’
but offers no medical facts specific to this patient in support of her opinion.” Christus
Spohn fails to explain what “medical facts specific to” Alaniz it finds lacking. Futrell
explains that Alaniz was diagnosed with a stroke in a hospital setting, which, if the
standard of care had been followed, would theoretically allow for prompt treatment.
Futrell also explains that at fifty-nine years old, Alaniz fell within a cohort that was capable
of “increased recovery potential.” These are two “medical facts specific to” Alaniz.
Second, Christus Spohn objects that:
Futrell’s causation opinion is conclusory because she fails to explain how
the nursing staff and hospital’s failure to mix and/or administer the tPA to
Ms. Alaniz in the PACU within 10 minutes of the order for it proximately
caused Ms. Alaniz’ injuries. She provides no explanation of how or why
medically [Alaniz] would have had a good recovery. Further, Dr. Futrell
fails to explain how the hospital and nursing staff’s failure to mix and/or
administer the tPA within 10 minutes of its order was a substantial factor in
bringing about Ms. Alaniz' injuries and but for this specific alleged failure her
injuries would not have occurred.
As noted above, Futrell opines that the breaches of the standard of care included, among
other things, “[f]ailure of the hospital staff to mix and/or administer the tPA to Mrs. Alaniz
in the PACU within 10 minutes of the order for tPA given by Sklar at 20:30.” As we read
Christus Spohn’s objection, it expects Futrell to explain how precisely a ten-minute delay
caused Alaniz’s poor recovery of the stroke that she suffered. Christus Spohn’s isolation
of the phrase “10 minutes” is inapposite given the trial court’s obligation to read the entire
report. See Van Ness v, 461 S.W.3d at 144. The ten-minute delay pushed back the
administration of tPA from 8:30 p.m. to at least 8:40 p.m., five minutes before the
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expiration of the four-and-a-half-hour therapeutic window. As Futrell recounted Alaniz’s
medical history, she noted that the tPA had not been administered by 8:43 p.m., and the
decision was made that the therapeutic window had closed. Earlier in Futrell’s report,
she opines that the “benefit of tPA decreases by 3% with every 15 minutes of treatment
delay, and after 4 ½ hours it is not recommended, as the bleeding risk becomes high and
the likelihood of benefit diminishes significantly.” Futrell also opines that tPA “breaks
down clot, particularly fresh clot such as those produced by angiography, and can
dissolve the clot and reverse all or part of the symptoms of a stroke.” To the extent
Christus Spohn yearns for a quantifiable metric, the three percent decrease in the benefit
of tPA with every passing quarter of an hour and the fact that the therapeutic window had
closed before the hospital staff had mixed and begun administering the tPA suffices.
b. Rushing
Rushing’s causation opinion provides that if Alaniz “had received TPA in an
appropriate and timely manner, based on reasonable medical probability, then more likely
than not she would have recovered from the right middle cerebral artery stroke or at least
shown major improvement.”
Christus Spohn objects on speculative and conclusory grounds. According to
Christus Spohn, “Dr. Rushing’s suggestion that [Alaniz] ‘would have recovered . . . or at
least shown major improvement’ is speculative. Dr. Rushing offers no medical facts
specifically pertaining to Mrs. Alaniz to demonstrate how or why she would have
recovered or to what extent she would have recovered.” As for its conclusory objection,
Christus Spohn contends:
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Rushing’s causation opinion is also conclusory because he fails to address
foreseeability. Moreover, he fails to address cause-in-fact as he does not
state that the hospital’s alleged failure to timely prepare, mix and administer
tPA was a substantial factor in bringing about Ms. Alaniz’ injuries and but
for this specific alleged failure Ms. Alaniz’ injuries would not have occurred.
He provides no explanation of how or why, factually or medically, the
hospital’s alleged failure to timely prepare, mix and administer tPA to Ms.
Alaniz proximately caused her injuries or that she would have had a “good
recovery”.
Standing alone, Rushing’s statements regarding recovery and major improvement
may be classified as speculative and conclusory. However, section 74.351(i) allows a
healthcare liability claimant to use multiple expert reports to satisfy any of the statutory
requirements. See Miller, 536 S.W.3d at 514 (Tex. 2017) (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(i)). As noted in the preceding subsection, Futrell’s elaboration that
the delay in mixing and administering the tPA pushed Alaniz out of the therapeutic
window, causing her to miss out on treatment with tPA is neither speculative nor
conclusory.
4. Summary
Christus Spohn’s second issue is overruled. Although we conclude that
Rushing’s report is deficient regarding all of the elements in section 74.351(r)(6), we also
conclude that Futrell’s report satisfies all of the statutory requirements. And, because
the trial court may consider multiple reports, see id. § 74.351(i), it did not abuse its
discretion in denying Christus Spohn’s motion to the dismiss on the ground that Alaniz
failed to file and serve expert reports that satisfy the elements in section 74.351(r)(6).
III. CONCLUSION
We reverse the trial court’s order and remand to the trial court to determine whether
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to grant Alaniz a thirty-day extension to cure the deficiencies regarding Futrell’s and
Rushing’s qualifications and Rushing’s statements regarding the standard of care,
breach, and causation. See Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008)
(holding that an appellate court has discretion to remand a case for consideration of a
thirty-day extension to cure the deficiency found by the appellate court).
LETICIA HINOJOSA
Justice
Delivered and filed the
2nd day of August,2018.
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