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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00204-CR ______________________________
CHARLIE CANIDA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 20150
Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Justice Moseley
O P I N I O N
Charlie Canida appeals from his conviction for possession of methamphetamine, between four and 200 grams. He was sentenced to twelve years' imprisonment. It appears that he was convicted not as a principal, but as a party criminally responsible for the criminal act. The methamphetamine was not directly in Canida's possession, but was found by police officers when they searched the "Fish Camp." On appeal, Canida contends that the evidence is neither legally nor factually sufficient to support the verdict. The entire argument is based on the remarkably tenuous rights to possession and proof of actual possession of the travel trailer in which the cup containing methamphetamine was found. Despite testimony about manufacture of methamphetamine, which will appear at length hereafter, this prosecution was for possession of a quantity found in a jar in a jointly used wooden building within the camp.
The "Fish Camp" is a tale unto itself. It appears that, some years ago, some people had "bought" the right to use a piece of property which legally belonged either to a railroad or to the State of Texas and moved three travel trailers onto the property (which also had a boat ramp)--all adjacent to the Red River. (1) The Fish Camp was used in what would be something of a combination of private and communal use; in addition to the travel trailers (which were used solely by the owners), there was a wooden building and a steel building which were used by everyone for storage. The charges for electricity were billed to Maddox, who collected from the others for their shares of the cost. A few years before the incident giving rise to Canida's arrest, Maddox contracted cancer and sold Canida his rights to the property; Canida moved a travel trailer which his wife had purchased onto the property. Canida had the billing for the electrical service transferred to his name.
The State presented evidence that a small amount of methamphetamine was found in Canida's trailer and that cooking apparatus and various chemicals used in the cooking process were found in other buildings throughout the camp. (2) The evidence shows that 1.27 grams of methamphetamine were found in a baggie in a Texaco coffee cup marked with the name of Leon Jackson in a travel trailer which Canida's wife owned--and in which Jackson was staying with Canida's permission. In that trailer, police also found some items used in cooking methamphetamine: liquid fire (a drain cleaner), MSM powder, and sulfuric acid. In addition, the evidence shows that Canida paid for electricity to the trailer and that electricity to the camp was in his name, but the evidence also clearly shows that the camp was used by a number of other individuals.
In the jointly used wooden building, officers found a quart jar containing 82.51 grams of liquid methamphetamine. In that building, officers also found several items that can be used in the manufacture of methamphetamine and the officers testified that it was being used for one of the washes necessary to formulate the drug. (3)
The remaining ingredients for the manufacture were found in the metal storage building and the remaining washes were set up for operation in that building. No contraband was found in the other two trailers.
Outside the buildings, however, the evidence shows that there was a trash dump and burn barrel. The State places considerable weight on the evidence that the trash included bags containing a number of emptied blister packs labeled as having contained decongestants, several cans of starting fluid, and several bottles of isopropyl alcohol (all of which can be used in the manufacture of methamphetamine), as well as the typical detritus of a campsite.
The evidence does not clearly show the amount of time that Canida spent at the camp, although one officer testified that he had seen Canida there four to six times during the previous year.
On this occasion, officers saw Canida drive up near the Fish Camp in his pickup truck while they were searching the camp. Canida drove away; an officer followed Canida and stopped him for a traffic violation. The officer searched his vehicle with consent, and found a small amount of methamphetamine. (The appeal from his conviction for possession, which was a state-jail felony, is also before this Court in cause number 06-06-00205-CR.)
The jury was charged that it could convict Canida either as the actor or as one criminally responsible for the actions of another. We first address the sufficiency of the evidence to support his conviction as the actor, and will then turn to sufficiency to convict as a party.
We have set out the general facts as they may directly relate to Canida's personal commission of the named offense. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); see also Johnson, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).
When an accused is not in exclusive possession of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances which link him to the contraband. Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005); (4) Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.--El Paso 1995, pet. ref'd). However, the links must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Brown, 911 S.W.2d at 747. Control over the contraband need not be exclusive, but can be jointly exercised by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). To establish guilt, the State must prove both that the accused had control over the contraband and that the accused had knowledge of its existence and character. Brown v. State, 911 S.W.2d 744, 747-48 (Tex. Crim. App. 1995); Menchaca, 901 S.W.2d at 651. There is no set formula of facts that dictate a finding of links sufficient to support an inference of knowing possession of contraband. Porter v. State, 873 S.W.2d 729, 732 (Tex. App.--Dallas 1994, pet. ref'd).
Recognized factors include whether: (1) the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or the place where the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.--Corpus Christi 2002, no pet.); Kyte v. State, 944 S.W.2d 29, 31-32 (Tex. App.--Texarkana 1997, no pet.).
There is no requisite number of links. Rather, it is the logical force the factors have in establishing the elements of the offense that is important. In other words, is there evidence of circumstances, in addition to mere presence, that adequately justifies the conclusion that the defendant knowingly possessed the substance. Evans, 202 S.W.3d at 162 n.9. See generally King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).
We have summarized the evidence above. Canida was neither on site, nor was there proof that he was there regularly, although Officer Moore testified that he had seen Canida there four to six times over a year or so. The evidence suggesting that Canida was there regularly was a prescription pill bottle found in the trailer containing Canida's heart medication; he takes it daily, so there is at least an indication that he was there often enough for it to be convenient to have the medication available on site. (5)
Thompson, who owned one of the other trailers (and who was not prosecuted), testified that the electricity had been transferred into Canida's name about a year and a half earlier because the prior payor, Maddox, was dying of cancer. At the same time, Maddox sold his trailer to Farmer. Thompson testified that they all split the cost of the electricity.
Vicki Bryant testified that Jackson (her boyfriend's nephew) had lived with them for a time and that she made him move out because he had stolen a pistol (which was found at the camp). She also testified that Jackson went there to hide out from them (her) and that Canida liked to "hang out" at the camp and was there on a regular basis.
Louise Canida, the appellant's wife, testified that on the day that her husband was arrested, she was having knee replacement surgery and that she told him to go on and do what he needed to do as she recovered. She testified that she knew Canida had allowed Jackson to stay in their trailer; she indicated that she did not approve and had evidently voiced her objections about this to Canida. She also testified that Canida took Procardia for his heart and kept some of it at the trailer so if he stayed overnight he would have the medication the next morning.
The question is whether the evidence is sufficient to either prove that Canida committed an offense by personally possessing methamphetamine or to prove that he was criminally responsible for the possession of the methamphetamine by another person.
The contraband was not in plain view; it was inside a building to which Canida could have obtained entrance, although there is no evidence that he did so at any recent time. Canida was not technically an owner of the realty on which the buildings stood but was in some abstruse fashion a joint possessor of the land and the building itself. This link does support conviction, albeit weakly. No cash was found. The contraband was accessible--but the cases discussing that factor do not typically involve access to a different building, but more often discuss whether the contraband was stuffed into a couch where the defendant was sitting or some similar situation where the contraband was within arm's length. It was certainly not conveniently accessible from the pickup truck in which Canida was first spotted by law enforcement officers.
Officers testified that the recognizable odor of a methamphetamine laboratory was present at the Fish Camp, but not from the place Canida was spotted or arrested. Paraphernalia for cooking the methamphetamine was nearby and in reasonably plain view; however, they were in view at the Fish Camp and its environs, but not from Canida's pickup truck. Although Canida was found with a quantity of less than a gram of methamphetamine in his truck, there was no evidence of recent use of it by him. Canida's conduct did indicate at the least awareness of a problem: when he arrived at the Fish Camp and saw people at the camp other than those he knew, he drove away from the Fish Camp rather than continuing toward it. He did not thereafter attempt to evade or flee from the officer following him and no "furtive gestures" were involved, but his initial act of attempting to avoid the officers he saw at the Fish Camp does favor the position of the State.
No inculpatory statements were involved and the quantity of contraband, while considerable, was not so large as to make Canida's knowledge of its existence unavoidable. There was testimony that the general area was one rife with criminal activity, even though it was merely a "fish camp." Canida was observed entering and, upon seeing strangers, attempting to leave a suspicious area; the circumstances of his entry and exit are, indeed, somewhat suspicious, because the evidence revealed that a methamphetamine cook was in progress at the time that he arrived.
Although the State staunchly attempts to defend the conviction against Canida as the actor, its arguments are more directed at defending the conviction under party liability theories of law. As an actual possessor of the property, we must agree with Canida's counsel so far as sufficiency of the evidence to show personal possession. The contraband was not found in Canida's residence (if we consider the trailer as such); although there is some proof that he was at the Fish Camp from time to time, what the evidence actually shows is that two other people were at the camp cooking methamphetamine and that one of those people had been allowed by Canida to stay in his trailer. Although there is evidence that Canida was coming into the Fish Camp area, there is neither any proof that he knew about the methamphetamine cooking operations which were taking place nor any evidence that he had been there at a previous point which would show that he had any knowledge of the methamphetamine cooking that was then occurring. It is, however, conceivably possible to infer that Canida knew methamphetamine was cooking there because he had a small quantity with him.
There is evidence that a much smaller amount of methamphetamine was found in Canida's wife's trailer--in which there was no evidence Canida had recently stayed--and in which someone else was then living, and in a cup emblazoned with that person's name. This may provide a link, but again, it is a very tenuous one.
There was also evidence about the quantity and type of trash found in the immediate area. The State argues that Canida must necessarily have known that methamphetamine was being manufactured because, due to the nature of the operation of a methamphetamine laboratory and the quantity of the trash containers from drug-making operations which had taken place, it was unavoidable to notice. That assumes three things: (1) that Canida knew the import of that type of trash; (2) that he had previously rifled through trash bags and the burn barrel to see what was in them in order to even know what the trash barrel contained, and (3) that he had been in the camp recently enough to do so. If that line of assumptions favors the State at all, the inference is extremely weak.
Based on this evidence, and the inferences to be drawn from them, although there is some evidence to support conviction as a principal, we must find that the evidence is factually insufficient to allow a conclusion that Canida personally possessed the contraband at bar.
The further question is whether the evidence would support a jury's finding that Canida was guilty as being criminally responsible for the acts of Jackson or Johns.
Section 7.01 of the Texas Penal Code provides that a person is criminally responsible as a party if the offense is committed by his own conduct, or by that of another for which he is criminally responsible. Tex. Penal Code Ann. § 7.01 (Vernon 2003). Section 7.02 states that a defendant is criminally responsible for an offense committed by the conduct of another if, acting with intent to assist in the commission of the offense, he "solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Penal Code Ann. § 7.02 (Vernon 2003). In determining whether an accused bears criminal responsibility for an offense, we may look to events before, during, and after the commission of the offense. Marable v. State, 85 S.W.3d 287, 293 (Tex. Crim. App. 2002). Furthermore, a person can be convicted as a party even if (as in this case) the indictment does not explicitly charge him as a party. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
The State provided strong evidence that Johns and Jackson were involved in a methamphetamine cooking operation. The result of the cooking operation was their possession of the methamphetamine so produced. Thus, if the evidence proves that Canida intentionally solicited, encouraged, directed, aided, or attempted to aid them in the manufacturing process, it necessarily proves a connection with the finished product as well.
There is evidence that Jackson was both in possession of methamphetamine and that would readily support a conclusion that he was assisting with the manufacture. The evidence shows that Canida gave Jackson permission to stay in his trailer at the camp. There is some evidence that Canida had been (during the prior year) at the camp four to six times, and some evidence that he was there regularly, although that evidence is entirely imprecise. There was evidence that Canida was coming to the camp (with methamphetamine in his possession) and that, when he saw officers there, he slowed down and then turned to leave, in what could be construed as an attempt to avoid an encounter with the police. In the absence of any knowledge of illegal activity at the camp, Canida would have less of a reason to avoid police--although that argument is strained because, even if he had no knowledge of illegal acts at the camp, he was at that time in possession of a small amount of methamphetamine. The fact that the contraband he had in his possession was the same type of drug as was being manufactured at the camp allows some inference that he was going to the camp to protect his interest in the product being created, but we are also aware that methamphetamine is currently rampant and is not so unique or unusual as to allow any conclusive presumptions to be drawn from Canida's possession of the small amount in his truck.
For Canida to have permitted this miscreant to live in his trailer shows bad judgment, but does not necessarily make him a party to possession of the miscreant's drugs. For Canida to turn and try to avoid police might show knowledge of what the miscreant was doing, but is equally understandable for other reasons, since Canida had an illegal drug in his truck at the time. In the absence of any evidence that Canida was at the camp during any relevant time frame when he might have acquired knowledge of the manufacture, presumptions of knowledge from any apparent cooking process cannot be drawn. The wooden building was secured by a lock, and there is evidence that only Thompson and Canida had a key to the building and that Thompson had not given his key to anyone else. Nevertheless, the building was open, and Jackson and Johns were using that building for part of the wash process used in the manufacturing process.
This evidence, when reviewed in the light most favorable to the verdict, can be said to support a conclusion that Canida was aware of the activity, and that he was supporting its conduct by allowing one of the actors to stay there and conduct the criminal activity in an area that Canida claimed to possess. Thus, the evidence is legally sufficient to support the verdict.
In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. See Watson, 204 S.W.3d at 417. This evidence is weak.
Summarized, the evidence which favors conviction shows that:
(a) law enforcement officers arrived at the Fish Camp in time to catch Jackson and Johns involved in a methamphetamine cooking operation;
(b) Canida and his wife owned the camper trailer in which Jackson was staying and there were prescription drugs for a heart condition labeled for Jackson in the trailer;
(c) Canida had been seen in the area by a law enforcement officer four to six times in the previous year;
(d) the account for the provision of electrical service to the entire Fish Camp was held in Canida's name;
(e) the general premises of the Fish Camp were littered with the kinds of trash and paraphernalia which are common to the manufacture and use of methamphetamine;
(f) when Canida arrived near the area of the Fish Camp and detected the presence of strangers there, he diverted his course and went away; and
(g) when Canida was stopped by an officer for not wearing his seat belt, there was a small amount of methamphetamine in the truck he was driving (the possession of which he has been separately charged).
The evidence contravening those things is as follows:
(a) there was no evidence that Canida was actually aware that methamphetamine was being manufactured or stored at the Fish Camp;
(b) another person was actually residing in Canida's camper trailer at the time;
(c) although the electrical service contract was held in Canida's name, it was a matter of convenience because two other people equally shared the cost of provision of this utility;
(d) even though Canida had joint use of the metal and wooden buildings on the property and the property itself, he did not have exclusive control of them;
(e) because Canida had methamphetamine in his truck, which he would probably not want anyone to discover, he had good reason to avoid peace officers who were at the Fish Camp;
(f) except for the evidence that Canida had been seen around the Fish Camp area four or five times in the last year, there was nothing to show that Canida was around at any time when the methamphetamine-cooking operation was taking place or that he was aware that it was occurring; and
(g) there is nothing to show that Canida had any reason or occasion to check the area around the burn barrel to examine its contents and, even if he had examined its contents, to know the significance of the trash contained.
In summation, although the State can tie Canida to the trailer (as its owner), to the Fish Camp and its environs (as one of its co-possessors), and to Jackson (as Jackson's landlord), there is factually insufficient evidence to connect Canida to the methamphetamine for which he has been charged in this case.
We reverse the judgment and remand the case to the trial court for further proceedings.
Bailey C. Moseley
Justice
Date Submitted: March 20, 2007
Date Decided: April 3, 2007
Do Not Publish
1. These belonged to Ken Maddox, Gary Thompson, and Woody Farmer.
2. The officers chased Leon Jackson into one of the buildings and captured both Jackson and Curtis Johns on the premises. The officers testified that they immediately recognized that the location was being used to cook methamphetamine, immediately obtained a search warrant, and then searched the other buildings.
3. Specifically, officers found Drainout, ether, acetone, coffee filters, ephedrine powder, and starting fluid.
4. The Texas Court of Criminal Appeals recently wrote in Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006), that these should be called "links" rather than "affirmative links" hereafter, as using the modifier "affirmative" adds to much confusion within the context of a factual sufficiency review.
5. As a sidenote, the officer who stopped Canida's pickup truck did so based on a seat belt violation, and truthfully acknowledged that he could have arrested Canida for that traffic violation, and would probably have done so instead of giving him a citation--and would of course then have been forced to inventory the vehicle before it was towed.
60; If a claimant furnishes a report within the time permitted, a defendant may file a motion challenging the report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l) (repealed 2003). The trial court shall 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 statutory definition of an expert report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l); Palacios, 46 S.W.3d 877–78. In determining whether the report represents a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 878.
Although the trial court stated as its reason for dismissing the lawsuit the failure to meet "the 25 day extension," the order granting the dismissal did not specify a reason. A trial court cannot abuse its discretion if it reaches the right result, even for the wrong reason. See In re Acevedo, 956 S.W.2d 770, 775 (Tex. App.—San Antonio 1997, no pet.); Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex. App.—Beaumont 1996, writ denied); Luxenberg v. Marshall, 835 S.W.2d 136, 141–42 (Tex. App.—Dallas 1992, no writ). Therefore, we must consider whether the suit should have been dismissed under the Appellees' alternative argument that the expert report was inadequate.
Omission of any of the statutory elements prevents the report from being a good-faith effort. Palacios, 46 S.W.3d at 879. A report that merely states the expert's conclusions about the standard of care, breach, and causation does not meet the statutory requirements. Id. These three separate requirements must all be present and described with sufficient specificity.
The expert report must set forth an applicable standard of care. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). The standard of care for a physician is what an ordinarily prudent physician would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880. Identifying the standard of care is critical: "[w]hether a defendant breached his . . . duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Id. "While a 'fair summary' is something less than a full statement of the applicable standard of care and how it was breached, a fair summary must set out what care was expected, but not given." Id. In other words, the report must specify what the defendant should have done.
Second, the expert report must indicate how the defendant breached the standard of care. The report must indicate what actions taken by the defendant deviated from the standard of care. It must be a "fair summary" of the care which was expected, but not given. Id.
The expert's report must also contain information on causation. It is not enough for a report to contain conclusory insights about the plaintiff's claims. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Sutherland, 107 S.W.3d at 790. Rather, the expert must explain the bases of the statements and link his or her conclusions to the facts. Id.
Russ presented an expert report in letter form from Mitchell H. Dunn, M.D. The report, in its entirety, states as follows:
It is my opinion, held to a reasonable degree of medical probability, that there were several deviations from the standard of care that directly contributed to the injuries sustained by Robin Russ on the evening of December 3, 1999.
Dr. Quiring deviated from the standard of care by failing to fully evaluate Ms. Russ' suicidal ideation and plans, and failing to inquire about the reason for her excessive serum Dilantin level. There is no evidence that he ever performed a mental status examination. It is evident that he believed the overdose was purposeful as his progress note read "Attention getting ? vs. suicidal attempts." Also, it is clear that Ms. Russ was being held in the hospital awaiting transfer to a psychiatric hospital, indicating that she required further care in a psychiatric hospital setting. Dr. Quiring was aware of this and should have been aware of the MHMR representative's concern that "client may try suicide again." He further deviated from the standard of care by failing to order one-to-one observation of Ms. Russ. Her numerous episodes of attempting to get out of bed unsupervised, her very unsteady gait, and her history of impulsive, potentially life-threatening behaviors necessitated either one-to-one observation or restraints that were escape-proof. Either one of these interventions would have prevented Ms. Russ' injuries.
The hospital deviated from the standard of care by placing a patient with potential suicidal ideation and recent suicidal behavior in a fourth floor room with unlocked windows. It is the standard of care that windows either be secured with metal screens that only staff can open, or be locked. If the patient has access to the window, a special difficult to break glass or Plexiglass should be used. It is simply unacceptable that patients of that type could have access to an open window. Obviously, if there was no access to an open window, Ms. Russ' injuries would not have occurred.
The nursing staff at Titus Regional Medical Center also deviated from the standard of care by failing to pass on critical information regarding Ms. Russ' ICU behavior, including the fact that her dilantin toxicity was purposeful, her degree of agitation, her multiple attempts to get out of bed unsupervised, and her need for one-to-one supervision. Then, even after witnessing her agitation, her unsteady gait, and the fact that "Patient almost went over other side of bed head first," the nurses on the med.-surg. floor failed to restrain Ms. Russ or pursue a higher degree of supervision for her. If they had, Ms. Russ' injuries would not have occurred. In addition, the nurses' notes reflect knowledge that Ms. Russ had cigarettes but would not give them up when the staff requested that she do so. If they had obtained a doctor's order to confiscate Ms. Russ' cigarettes, perhaps she would not have tried to go out on the ledge.
The plaintiff must only make a good-faith attempt to provide a fair summary of the expert's opinions in the expert report. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l); Palacios, 46 S.W.3d at 875. A "good-faith" effort requires that the report discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 875. "[T]o avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial." Id. at 879. The expert report is not required to prove the defendant's liability, but rather only provide notice of what conduct forms the bases of the plaintiff's complaints. "To constitute a 'good-faith effort,' the report 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." Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879).
Palacios makes it clear that a claimant must present specific evidence in a medical report because "knowing what specific conduct the plaintiff's experts have called into question is critical to both the defendant's ability to prepare for trial and the trial court's ability to evaluate the viability of the plaintiff's claims." Palacios, 46 S.W.3d at 877. The Texas Supreme Court stated that "[w]hether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Id. at 880. In other words, one must be able to determine from the report what the standard of care required to be done. This requires "specific information about what the defendant should have done differently." Id. However, the report is not required to use magical words. Wright, 79 S.W.3d at 53; Sutherland, 107 S.W.3d at 790. It is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. Sutherland, 107 S.W.3d at 790.
Dr. Dunn's report states his opinions concerning the standard of care, the breach, and causation relating to the Hospital in these particulars:
Standard of Care:
It is the standard of care that windows either be secured with metal screens that only staff can open, or be locked. If the patient has access to the window, a special difficult to break glass or Plexiglass should be used.
Breach:
The hospital deviated from the standard of care by placing a patient with potential suicidal ideation and recent suicidal behavior in a fourth floor room with unlocked windows.
Causation:
Obviously, if there was no access to an open window, Ms. Russ' injuries would not have occurred.
The expert report clearly provides the standard of care for the Hospital. It provides that the standard of care is that the window should have been locked or secured with metal screens. This is a specific allegation which provides the Hospital with notice of the conduct complained of by Russ. The report then provides that the standard of care was breached by placing a suicidal patient in a fourth floor room with unlocked windows. Again, this statement is specific and informs the Hospital of the conduct of which Russ is complaining. Last, the report states that, if Russ did not have access to an open window, her injuries would not have occurred. It is undisputed that Russ' injuries resulted from falling out of a fourth story window. Obviously, a party cannot fall from a window if one cannot exit through the window. The substance of the report gives fair notice to the Hospital of the negligent conduct on which Russ relies and provides a sufficient basis for the trial court to conclude that the claims have merit.
Dr. Dunn's report states his opinions concerning the standard of care, the breach, and causation relating to Dr. Quiring in these particulars:
Standard of Care:
Her numerous episodes of attempting to get out of bed unsupervised, her very unsteady gait, and her history of impulsive, potentially life-threatening behaviors necessitated either one-to-one observation or restraints that were escape-proof.
Breach:
He further deviated from the standard of care by failing to order one-to-one observation of Ms. Russ.
Causation:
Either one of these interventions [one-to-one observation or escape proof restraints] would have prevented Ms. Russ' injuries.
In contrast to the report in Palacios, the expert report here provides the Appellees and the trial court with the specific information required. This report states that "[h]er numerous episodes of attempting to get out of bed unsupervised, her very unsteady gait, and her history of impulsive, potentially life-threatening behaviors necessitated either one-to-one observation or restraints that were escape-proof." (Emphasis added.) The term "necessitated" connotes that the actions which follow should have been done and were essential or vital. The expert stated that either one-to-one observation or escape restraints were necessary. It is clear from the report what the expert believes the physician should have done. Based on this information, the physician knew precisely the complained-of failures. Further, the trial court had information on which to evaluate the viability of Russ' claims. When discussing the actions of the physician , and his care to the patient, stating that a course of treatment is "necessitated" establishes the standard of care and complies with the requirements for a medical report.
Last, our analysis arrives at the conduct of the two remaining nurses, Peggy Burge, R.N., and Rachel Meyers, R.N. The expert report explains in detail the omissions of the nurses which he regarded as a breach of the standard of care. However, the report does not state what conduct was necessary or required and, therefore, gives no assistance to the trial court in attempting to evaluate the conduct of the nurses by the standard of care governing them. A trial court does not abuse its discretion in dismissing a suit in which one is required to infer the standard of care from the allegations in the expert report. Wright, 79 S.W.3d at 53. Thus, the trial court did not abuse its discretion in dismissing the suit as to the nurses because the standard of care must be inferred.
The report is a good-faith attempt to give a fair summary of the standard of care, the breach, and the cause of the injuries suffered as a result of that breach concerning the Hospital and Dr. Quiring. Because the report in this case is not conclusory and does not require inferences, the report adequately fulfills the requirements of the statute as it relates to the Hospital and Dr. Quiring.
Last, the Hospital argues in the alternative that the report is inadequate because Dr. Dunn is not a qualified expert and that he did not state whether his standard of care applies to a general hospital. We will briefly address these remaining arguments.
The Hospital contends the expert is not qualified because he has never worked in a general hospital. We disagree. Dr. Dunn meets the definition of an "expert" for the purpose of Section 13.01(r)(5)(A). Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(5)(A) (repealed 2003); see Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01(a), Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, 1995 Tex. Gen. Laws 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884. Dr. Dunn is a board certified psychiatrist who has served as acting clinical director and medical director of the forensic program of Terrell State Hospital since 1995.
The Hospital also argues that the expert report fails to specify whether this standard of care applies to a general hospital or simply to a psychiatric hospital. It is apparent that Dr. Dunn knew the Hospital was a general hospital because he stated Russ was awaiting transfer to a psychiatric hospital. "The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances." Palacios, 46 S.W.3d at 880. In addition to serving as the medical director of the forensic program at Terrell State Hospital, Dr. Dunn also has a part-time practice in adult and forensic psychiatry. He has treated many patients with suicidal behavior and has had the responsibility to make decisions to prevent suicidal behavior. We have found that he has expressed the proper standard of medical and hospital care. He has training and experience to allow him to offer such opinions. The requirement of an expert report is to inform the opposing party of Russ' claim and to provide the trial court with a basis to conclude that the claim has merit. The report is not required to litigate the claim. Id. at 879. We find Dr. Dunn qualified to render such a medical report.
We have carefully examined the Texas Supreme Court's decisions in Palacios and Wright, and believe that this case is distinguishable. Unlike the reports examined in Palacios, the report in question is not conclusory as it pertains to Dr. Quiring and the Hospital. The report contains specific information which informs the Appellees what Russ is contending they should have done. Further, one is not required to infer a standard of care from mere insights provided by the report. Further, Palacio's two-part test to determine "good faith" was met concerning Dr. Quiring and the Hospital. Therefore, the trial court had no discretion to conclude that the report as it pertains to Dr. Quiring and the Hospital was not a good-faith effort.
Accordingly, we affirm the judgment of the trial court concerning Peggy Burge, R.N., and Rachel Meyers, R.N.; we reverse the judgment of the trial court concerning Dr. Quiring and the Hospital, and remand the case to the trial court for further proceedings.
Jack Carter
Justice
Date Submitted: January 22, 2004
Date Decided: February 3, 2004
Document Info
Docket Number： 06-06-00204-CR
Filed Date： 4/3/2007
Precedential Status： Precedential
Modified Date： 9/7/2015