Methodist Willowbrook Hospital v. Jennifer Cullen and Christopher Cullen ( 2011 )

Reversed and Remanded and Opinion filed August 25, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-01231-CV

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Methodist Willowbrook Hospital, Appellant

V.

Jennifer Cullen and Christopher Cullen, Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2010-39446

MEMORANDUM OPINION

This healthcare liability case is governed by chapter 74 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.001-.507 (Vernon 2011).  Appellees Jennifer and Christopher Cullen contend that appellant Methodist Willowbrook Hospital violated minimum standards of care during and immediately after doctors performed a cesarean section on Jennifer.  Methodist Willowbrook moved to dismiss all claims based on alleged deficiencies in the Cullens’ expert reports. Methodist Willowbrook brought this interlocutory appeal challenging the trial court’s order denying its motion to dismiss.  See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008).  We reverse and remand.

BACKGROUND

The following background is based on allegations in the Cullens’ petition and assertions in the two expert reports tendered by the plaintiffs.  

Obstetrician Kerry Ann Kirkman, M.D., performed a scheduled cesarean section delivery on Jennifer Cullen at Methodist Willowbrook on April 15, 2008.  Dr. Kirkman lacerated a uterine artery during the procedure and failed to notice this laceration immediately following the operation.  Medical complications caused by the lacerated uterine artery eventually required an emergency hysterectomy.

During Jennifer’s post-operative care, she “exhibited signs and symptoms of severe blood loss and a diminished blood pressure reading.” Jennifer was moved to her room on the post-partum floor at 5:30 p.m., with Nurse Beatrice attending.  Dr. Langford, an emergency room physician, made the next entry in the patient chart at Jennifer’s bedside at 5:45 p.m.  The Cullens allege that Methodist Willowbrook is liable for Jennifer’s injuries because Nurse Beatrice did not monitor, report, and record Jennifer’s post-operative signs and symptoms and therefore failed to uphold the minimum standards of care.[1] 

The Cullens sued Methodist Willowbrook on June 25, 2010 and timely submitted expert reports prepared by Registered Nurse Susie Dale and Obstetrician James Herd, M.D.  Nurse Dale’s report states:

It is my opinion that [Nurse Beatrice], of the post partum unit, failed to uphold the standard of care by not documenting her admission assessment of [Jennifer], which would have occurred near [5:30 p.m.] . . . .  The record reflects the assessment of Dr. Langford at [5:45 p.m.], and that he was summoned . . . .  There is no information in the record as to when the vital signs became unstable or as to the manner in which the patient presented when she was admitted in the post partum unit.  This information would necessarily have been added to the record as a late entry . . . but it is the nurse’s duty to the patient to record her initial assessment. . . .  [I]t is my opinion that [Nurse Beatrice] . . . failed to uphold the applicable standard of care.[2]

Dr. Herd’s report relies on and incorporates Nurse Dale’s conclusion in assessing Nurse Beatrice’s conduct:

I agree with the standard of care violation found by Susie Dale, R.N. . . . The failure of [Nurse Beatrice] to report or record anything between 5:30 p.m. and 5:45 p.m. was a proximate cause of the delay which resulted in [Jennifer’s] atonic uterus and subsequent hysterectomy.  

Methodist Willowbrook moved to dismiss the suit based on alleged deficiencies in the expert reports.  Methodist Willowbrook argued in its motion that (1) the expert reports fail to establish a causal connection between Nurse Beatrice’s failure to chart symptoms Jennifer exhibited between 5:30 p.m. and 5:45 p.m. and Jennifer’s hysterectomy, and that Dr. Herd’s opinion on causation is a “mere unsupported conclusion;” and (2) Dr. Herd is not qualified to address the nursing standard of care applicable to Nurse Beatrice’s conduct.  Methodist Willowbrook argued that based on these deficiencies, “[t]he Herd and Dale reports, whether taken individually or in combination, fail to satisfy Plaintiffs’ expert report requirements as to Methodist Willowbrook” under Texas Civil Practice and Remedies Code section 74.  After a hearing, the trial court denied the motion to dismiss.  Methodist Willowbrook appeals from the trial court’s order denying its motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9).

ANALYSIS

We review a trial court’s denial of a motion to dismiss under Texas Civil Practice and Remedies Code section 74.351(b) for abuse of discretion.  See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).  To determine whether the trial court abused its discretion, we must decide whether the trial court acted in an arbitrary or unreasonable manner without reference to any guiding rules or principles.  Wright, 79 S.W.3d at 52.  In making such a determination, a court of appeals may not substitute its own judgment for the trial court’s judgment.  Id.

The trial court must grant a defendant’s motion to dismiss a healthcare liability suit with prejudice unless the plaintiff serves a timely expert report within 120 days of filing the original petition.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b).  To qualify as a timely expert report, the report must represent a good-faith effort to comply with the statutory requirements for an expert report.  See id. § 74.351(l).  An expert report is defined as a written report by an expert that provides a fair summary of the expert’s opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed.  See id. § 74.351(r)(6); see also Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  

To constitute a “good-faith effort,” the report must provide enough information to fulfill two purposes.  Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879).  It must (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.  A trial court shall grant a motion challenging an expert report if it appears that the report does not represent a good-faith effort to comply with the statutory definition of an expert report.  Walgreen Co. v. Hieger, 243 S.W.3d 183, 185 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l)).

Methodist Willowbrook argues in its only issue on appeal that the Cullens failed to satisfy section 74.351 because both reports fail to establish a causal connection between the alleged breach of the standard of care and Jennifer’s injuries.  Methodist Willowbrook argues that Dr. Herd’s report is deficient “because it merely states his conclusions about the standard of care, breach and causation.”  Methodist Willowbrook claims that “[n]either report claims [Nurse Beatrice] failed to act on her assessment [of Jennifer]” and that “[t]he reports fault [Nurse Beatrice] for not writing down her comments in the chart, but neither report explains how this alleged omission caused the patient’s injury.”  Methodist Willowbrook further claims that Nurse Dale’s report “in no way suggests that this charting discrepancy somehow caused [Jennifer] to undergo a hysterectomy.”

An expert report must include the basis of the expert’s statements and link his or her conclusions to the facts within the four corners of the report.  Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  Conjecture and conclusory assertions about the plaintiff’s claims do not satisfy the causation requirement.  See, e.g, Wright, 79 S.W.3d at 52-53 (expert report did not constitute a “good-faith effort” where the report “simply opine[d] that [plaintiff] might have had ‘the possibility of a better outcome’ without explaining how [defendant’s] conduct caused injury”); Walgreen, 243 S.W.3d at 186-87 (expert opinion that plaintiff’s symptoms were “consistent with” known side effects of medication did not establish causation); Ehrlich v. Miles, 144 S.W.3d 620, 627-28 (Tex. App.—Fort Worth 2004, pet. denied) (expert opinion that “negligent activity . . . listed above is the proximate cause of [plaintiff’s] pain and suffering” did not meet the causation requirement).

Nurse Dale’s report addresses the applicable standard of care but does not state that Nurse Beatrice’s conduct delayed Jennifer’s treatment.  Dr. Herd’s causation opinion is purely conclusory.  Dr. Herd’s statement — that Nurse Beatrice’s failure to record notes in Jennifer’s chart was “a proximate cause of the delay which resulted in [Jennifer’s] atonic uterus” — does not sufficiently link Dr. Herd’s conclusions to the facts.  Neither report opines that Nurse Beatrice failed to monitor Jennifer or to summon a doctor when Jennifer’s symptoms worsened; no such conclusions can be inferred from the four corners of the expert reports.  See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  Without such an explanation, the expert opinions on causation are conclusory and the trial court exceeded its discretion in ruling that the expert reports were sufficient.  See Wright, 79 S.W.3d at 52; Vicento, 164 S.W.3d at 727.[3]

Methodist Willowbrook also challenges the trial court’s ruling based on Dr. Herd’s qualifications.  Because the insufficiency of the causation opinion in Dr. Herd’s expert report alone requires reversal of the trial court’s ruling, we do not reach the issue of Dr. Herd’s qualifications.  See Tex. R. App. P. 47.1.

If an expert report has not been timely served because the elements of the report are found deficient, the court may grant one 30-day extension to the plaintiff to cure the defect.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).  If a court of appeals determines that a report deemed sufficient by the trial court is in fact deficient, the court of appeals may remand the case so the trial court can decide whether to grant a 30-day extension to cure the deficiency.  Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008); Gannon v. Wyche, 321 S.W.3d 881, 899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).  In authorizing this practice, “the Legislature struck a careful balance between eradicating frivolous claims and preserving meritorious ones.”  Leland, 257 S.W.3d at 208.

Because the available 30-day extension was not granted in this case, the trial court should consider on remand whether Dr. Herd’s attempt to satisfy the statutory requirements for causation warrants a 30-day extension.  Id. at 207 (“The statute does not allow for an extension unless, and until, elements of a report are found deficient, and that did not occur in this case until the court of appeals so held.”).

CONCLUSION

            We reverse the trial court’s order of December 6, 2010, and remand this case for proceedings consistent with this opinion.

                                                            /s/                    William J. Boyce

                                                                                    Justice

Panel consists of Chief Justice Hedges, Justice Seymore, and Justice Boyce.

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[1] The Cullens’ allegations against Dr. Kirkman regarding his conduct are not relevant to our inquiry.  Dr. Kirkman is not a party to this appeal.

[2] The manner in which Nurse Beatrice is alleged to have violated minimum standards of care is unclear.  The Cullens’ original petition alleges that Nurse Beatrice’s violation was the failure “to promptly check the vital signs of [Jennifer] after the C-Section; . . . to monitor Jennifer between 5:30 p.m. and 5:45 p.m; and . . . to adequately monitor [Jennifer] post procedure.”  Nurse Dale opines that Nurse Beatrice “failed to uphold the standard of care by not documenting her admission assessment of [Jennifer] as a “late entry” in the patient record.

[3] The Cullens argue that this appeal is frivolous and request sanctions against Methodist Willowbrook. “If a court of appeals determines that an appeal is frivolous, it may—on motion of any party or on its own initiative, after notice and a reasonable opportunity for response—award each prevailing party just damages.”  Tex. R. App. P. 45.  “Whether to grant sanctions is a matter of discretion that we exercise with prudence and caution, and only after careful deliberation.”  Conseco Fin. Serv. v. Klein Ind. Sch. Dist., 78 S .W.3d 666, 676 (Tex.App.—Houston [14th Dist.] 2002, no pet.).  Although imposing sanctions is within our discretion, we will do so only in truly egregious circumstances.  Id.  “If an appellant’s argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed, good-faith challenge to the trial court’s judgment, sanctions are not appropriate.”  Id.  We hold that Methodist Willowbrook’s argument on appeal is an informed, good-faith challenge to the trial court’s ruling and that sanctions are not appropriate.