Nexion Health at Garland, Inc. D/B/A Pleasant Valley Healthcare and Rehabilitation Center v. Temperance Treybig ( 2015 )

Reverse and Remand; Opinion Filed December 31, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00498-CV
NEXION HEALTH AT GARLAND, INC. D/B/A PLEASANT VALLEY HEALTHCARE
AND REHABILITATION CENTER, Appellant
V.
TEMPERANCE TREYBIG, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. dc-13-12286
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Lang
This interlocutory appeal involves a medical malpractice action brought by the appellee,
Temperance Treybig (“Treybig”), as Representative of the Estate of William Treybig (“Mr.
Treybig”), against Nexion Health at Garland d/b/a Pleasant Valley Healthcare and Rehabilitation
Center (“Nexion”) and Reliant Pro Rehab, LLC (“Reliant”). Nexion, the appellant, filed a
motion to dismiss pursuant to section 74.351(b) of the Texas Civil Practices and Remedies Code,
alleging Treybig failed to comply with the medical expert report requirement of the Texas
Medical Liability Act (“TMLA”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West
2011). Now, Nexion appeals from the trial court’s denial of that motion to dismiss. Reliant is
not a party to this appeal.
In four issues, Nexion argues the trial court abused its discretion when it denied the
motion to dismiss. Specifically, Nexion contends the trial court erred because (1) the expert
report “does not identify the standard of care applicable to Nexion or the actions that Nexion
should have taken,” (2) the expert report “failed to establish a causal relationship between
Nexion’s alleged negligence and Mr. Treybig’s injury,” (3) Treybig failed to serve Nexion with a
report from a “qualified expert,” and (4) the trial court failed to award Nexion its attorney’s fees
and costs. We decide Nexion’s third issue in its favor. The expert report and curriculum vitae
supplied by Treybig do not provide sufficient information regarding the knowledge and
experience of the medical expert, as indicated below. Accordingly, we reverse the order of the
trial court and remand the case for a determination of whether to grant Treybig a thirty-day
extension to cure the deficiencies in the report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
I. FACTUAL AND PROCEDURAL BACKGROUND
From March 1, 2010, through January 14, 2013, Mr. Treybig, Treybig’s father, was a
resident at Pleasant Valley Healthcare and Rehabilitation Center (“Pleasant Valley”), which is a
nursing home owned by Nexion. According to Treybig, “Nexion provided what [she] believed
and understood was skilled nursing care and ongoing assessments of Mr. Treybig,” whose
medical history included, among other things, double below the knee amputations and two
bilateral hip replacements. Treybig alleges Nexion “engaged, contracted with, and/or hired”
Reliant, a physical therapy provider, “to provide medical care and/or therapy to Mr. Treybig
while [he was] a resident at the facility.” Treybig’s factual theory is that during a therapy session
at Nexion’s facility on October 4, 2011, two of Reliant’s therapists stretched Mr. Treybig and
leaned their combined weight on him while ignoring his cries of pain. On or about October 11,
2011, Mr. Treybig “was diagnosed as having a compression fracture to his L4 vertebrae.”
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On October 11, 2013, Treybig filed a medical malpractice lawsuit against Nexion and
later amended her petition to include Reliant as a defendant. Treybig alleged that the back
fracture injury, “among others, was caused by [Nexion and Reliant’s] failure to design and/or
implement care plans that adequately addressed Mr. Treybig’s conditions and failure to provide
the care he required.” On March 7, 2014, Treybig served Nexion and Reliant with the expert
report and curriculum vitae of Dr. Lige B. Rushing (“Dr. Rushing”). Nexion and Reliant each
filed a motion to dismiss under the TMLA challenging the adequacy of Dr. Rushing’s expert
report. After a hearing, the trial court denied both motions, and Nexion filed this appeal.
II. MEDICAL EXPERT’S REPORT
A. Standard of Review
“Generally, an appellate court reviews a trial judge’s decision on a motion to dismiss a
claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of
discretion.” Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 555 (Tex. App.—
Dallas 2009, no pet.). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to guiding rules or principles.” Id. “When reviewing matters
committed to the trial court’s discretion, an appellate court may not substitute its judgment for
that of the trial court.” Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas 2007, no
pet.). “A trial court has no discretion when determining what the law is or in applying the law to
the facts. A clear failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.” Wallace, 278 S.W.3d at 555–56 (internal citations omitted).
B. Standard of Care and Breach
1. Applicable Law
“A valid expert report has three elements: it must fairly summarize the applicable
standard of care; it must explain how a physician or health care provider failed to meet that
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standard; and it must establish the causal relationship between the failure and the harm alleged.”
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing TEX. CIV. PRAC. & REM.
CODE § 74.351(r)(6) (West 2011)). “A report need not marshal all the plaintiff's proof, but it
must include the expert’s opinion on each of the elements identified in the statute.” Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (decided under
section 13.01 of the predecessor statute, the Medical Liability and Insurance Improvement Act,
previously codified at article 4590i of the Texas Revised Civil Statutes); see Loaisiga v. Cerda,
379 S.W.3d 248, 257–58 (Tex. 2012) (applying Palacios’s expert report analysis to the TMLA).
“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.
“In determining a report’s sufficiency, the court may not look beyond the report itself because all
information relevant to the inquiry should be contained [within] the document’s four corners.”
Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 641 (Tex. App.—Dallas 2010, pet.
denied) (citing Palacios, 46 S.W.3d at 878).
“The report serves two functions. ‘First, the report must inform the defendant of the
specific conduct the plaintiff has called into question. Second, and equally important, the report
must provide a basis for the trial court to conclude that the claims have merit.’” Potts, 392
S.W.3d at 630 (quoting Palacios, 46 S.W.3d at 879). “A report need not cover every alleged
liability theory to make the defendant aware of the conduct that is at issue.” Id. “The expert
report requirement is a threshold mechanism to dispose of claims lacking merit,” and “[i]f a
health care liability claim contains at least one viable liability theory, as evidenced by an expert
report meeting the statutory requirements, the claim cannot be frivolous.” Id. at 631.
“When, as here, a plaintiff sues more than one defendant, the expert report must set forth
the standard of care for each defendant. If the standard of care is the same for each defendant,
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then the report must state so.” Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 753 (Tex. App.—El
Paso 2011, no pet.) (internal citations omitted). “While a ‘fair summary’ is something less than a
full statement of the applicable standard of care and how it was breached, even a fair summary
must set out what care was expected, but not given.” Palacios, 46 S.W.3d 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.’” Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 342 (Tex. App.—Texarkana 2004, pet.
denied) (quoting id.).
2. Application of Law to Facts
As to issue one, where Nexion claims the expert report “does not identify the standard of
care applicable to Nexion or the actions that Nexion should have taken,” Nexion contends Dr.
Rushing’s reference to “Defendants,” apparently meaning both Nexion and Reliant, renders his
expert report deficient. Specifically, Nexion argues Dr. Rushing’s “collective referral to Nexion
and Reliant prevents the report from (A) adequately stating the standard of care as applied to
Nexion and (B) identifying Nexion’s allegedly negligent actions in violation of that standard.”
Treybig responds that the report “does not need to identify separate standards of care when one
standard applies to both [Nexion and Reliant] through [Treybig’s] vicarious liability and direct
liability claims.” Treybig contends Dr. Rushing’s report provides “a fair summarization of the
standard of care” and “makes Nexion ‘aware of the conduct that is at issue.’”
Treybig’s health care liability claim arises out of the care received by Mr. Treybig while
he was a resident at Pleasant Valley, particularly, the physical therapy and other related care that
allegedly resulted in Mr. Treybig’s back fracture. Dr. Rushing identifies the standard of care
applicable to Nexion as follows:
“In order to meet the standard of care, the facility must provide a safe
environment for its patients. This standard encompasses a range of duties relating
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to the patient’s stay with the nursing home, which the facility owes to the patient,
such as securing qualified personnel to administer the services provided,
adequately supervising any therapy sessions, providing proper equipment and
facilities for all treatments necessary to meet the patient’s needs, and following up
with the patient to verify the success of all procedures and treatments. . . . The
standard of care is not met when a nursing home fails to properly investigate, treat
and document the patient’s pain complaints over the course of time. The most
obvious and egregious instance of Defendant’s failure to investigate and treat the
patient’s back pain was during the therapy session when the therapists ignored
Mr. Treybig’s cries of pain and requests to stop the session, continuing to push
and pull using their combined bodyweight. . . . Reasonable investigation,
documentation and treatment would have signified the danger in forceful
hamstring stretches on a double below the knee amputee, and prevented fracture.
Dr. Rushing sets forth what care was expected from Nexion and how Nexion failed to
provide it. The quoted statements provide a “fair summary” of the standard of care applicable to
Nexion. See Palacios, (“[A] fair summary must set out what care was expected, but not given.”);
Columbia N. Hills Hosp. Subsidiary, L.P. v. Bowen, No. 02-13-00286-CV, 2014 WL 345658, at
*4–5 (Tex. App.—Fort Worth Jan. 30, 2014, pet. denied) (mem. op.) (concluding an expert
report that stated various duties owed by a hospital and detailed how the hospital failed to
properly perform those duties “fairly summarized the applicable standard of care for Hospital
and explained how Hospital failed to meet that standard”); Russ, 128 S.W.3d at 342 (concluding
that statements in an expert report that a hospital “deviated from the standard of care,” which
required the hospital to lock windows or secure them with metal screens, by “placing patient
with potential suicidal ideation and recent suicidal behavior in a fourth floor room with unlocked
windows” constituted a “specific allegation which provide[d] the Hospital with notice of the
conduct complained of by [the plaintiff]”).
Although other statements in Dr. Rushing’s report describe the duties and failings of “the
Defendants,” referring to both Nexion and Reliant, the particular statements identified above,
which are contained within the four corners of the report, are specific to Nexion and are
sufficient to inform Nexion of its conduct that Treybig calls into question. See Presbyterian
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Cmty. Hosp. of Denton v. Smith, 314 S.W.3d 508, 514 (Tex. App.—Fort Worth 2010, no pet.)
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (defining “expert report”)) (rejecting a
hospital’s argument that “several individual statements in [the expert’s] report [were]
insufficient” because the “report, as a whole, provide[d] a ‘fair summary’ of [the expert’s]
opinions”). It is clear from his report that in Dr. Rushing’s opinion, Nexion’s compliance with
the standard of care, by conducting “[r]easonable investigation, documentation and treatment” of
Mr. Treybig’s pain complaints, “would have signified the danger in forceful hamstring stretches
on a double below the knee amputee, and prevented fracture.” Cf. Texarkana Nursing &
Healthcare Ctr., LLC v. Lyle, 388 S.W.3d 314, 320 (Tex. App.—Texarkana 2012, no pet.)
(concluding an expert report, which indicated that a nursing home breached the standard of care
by “allowing the documented assault of [the patient] by one of its own employees,” did not
sufficiently articulate the standard of care and breach because the report did not “advise [the
nursing home] of what should have been done in order to prevent its employee from assaulting
[the patient]”). We conclude the substance of Dr. Rushing’s report “gives fair notice” to Nexion
of its negligent conduct on which Treybig relies and “provides a sufficient basis for the trial
court to conclude that the claims have merit.” See Russ, 128 S.W.3d at 342. The trial court did
not abuse its discretion in denying the motion to dismiss on grounds that the report failed to
summarize the standard of care and explain how Nexion breached that standard. See Bowen,
2014 WL 345658, at *5; id. Accordingly, we decide Nexion’s first issue against it.
C. Causation
In issue two, Nexion contends Dr. Rushing’s report “fails to adequately address causation
for the same reason that it fails to address Nexion’s standard of care—the report’s collective
description of the events and defendants prevents it from adequately addressing Nexion’s
conduct.” Treybig responds that the report “properly sets forth Dr. Rushing’s opinions on
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causation as to Nexion” because “both Reliant and Nexion owed Mr. Treybig the same duty to
properly supervise,” and the report is “a good faith effort to articulate the causal relationship
between Nexion’s failure to supervise and the harm to Mr. Treybig.” As discussed above, Dr.
Rushing’s report does adequately identify Nexion’s allegedly negligent conduct, despite “the
report’s collective description of the events and defendants.” See Fortner v. Hosp. of the Sw.,
LLP, 399 S.W.3d 373, 383–84 (Tex. App.—Dallas 2013, no pet.) (concluding expert reports
“represent[ed] a good faith effort to provide a fair summary of the experts’ opinions about . . .
the causal relationship between the failure and the claimed injury” because the reports
“identif[ied] each physician and health care provider against which direct liability claims [were]
asserted, including [the appellant, a hospital], and discuss[ed] how the provider breached the
applicable standard of care and caused or contributed to causation of [the patient’s] injury”);
Christus Spohn Health Sys. Corp. v. Sanchez, 299 S.W.3d 868, 877–78 (Tex. App.—Corpus
Christi 2009, pet. denied) (concluding expert reports “sufficiently linked [the patient’s] assault to
[the hospital’s] failure to protect her from the assaultive conduct of [its employees]” when the
reports stated the hospital “had duty to provide a safe recovery environment,” described the
alleged conduct of the employees, and concluded “[t]he fact that [the patient] was vulnerable,
unable to protect herself, and felt as if her person was violated has caused her to now have
symptoms of Major Depression and Post Traumatic Stress Disorder”). So, for the same reasons
discussed above, we decide Nexion’s second issue against it.
D. Medical Expert’s Qualifications
In issue three, Nexion contends Dr. Rushing is not a “qualified expert” because his report
and curriculum vitae (1) “do not show that he is actively practicing in nursing home health care”
and (2) do not “demonstrate that he has knowledge of the standard of care for nurses or physical
therapists working in nursing homes like Nexion.”
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1. Applicable Law
For purposes of the expert report, “a person giving opinion testimony regarding whether a
health care provider departed from accepted standards of health care” must be qualified to
testify. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(B). Section 74.402(b) provides that a
person is qualified to testify 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.
Id. § 74.402(b).
“Section 74.402(b) makes it clear that different standards of care apply to physicians and
health care providers.” Wallace, 278 S.W.3d at 558 (citing Simonson v. Keppard, 225 S.W.3d
868, 872 (Tex. App.—Dallas 2007, no pet.)).
When a physician fails to state in his expert report or affidavit that he has
knowledge of the standard of care applicable to the specific types of health care
providers involved in the claim, or that he has ever worked with or supervised the
specific types of health care providers involved in the claim, the physician is not
qualified on the issue of whether the health care provider departed from the
accepted standards of care for health care providers.
Id. “‘[E]xpert qualifications should not be too narrowly drawn.’” Golenko, 328 S.W.3d at 643
(quoting Larson v. Downing, 197 S.W.3d 303, 305 (Tex. 2006) (per curiam)). “Rather, the trial
court should determine whether the proffered expert has ‘knowledge, skill, experience, training,
or education regarding the specific issue before the court which would qualify the expert to give
an opinion on that particular subject.’” Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153–54
(Tex. 1996)). “The focus is on whether the expert’s expertise goes to the very matter on which
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he is to give an opinion.” Id. “Therefore, a medical expert from one specialty may be qualified
to testify if he has practical knowledge of what is customarily done by practitioners of a different
specialty under circumstances similar to those at issue in the case.” Tenet Hosps. Ltd. v. Love,
347 S.W.3d 743, 750 (Tex. App.—El Paso 2011, no pet.); see also Broders, 924 S.W.2d at 153
(“Our holding does not mean that only a neurosurgeon can testify about the cause in fact of death
from an injury to the brain, or even that an emergency room physician could never so testify.
What is required is that the offering party establish that the expert has ‘knowledge, skill,
experience, training, or education’ regarding the specific issue before the court which would
qualify the expert to give an opinion on that particular subject.”). However, “it is not enough to
summarily state such ‘knowledge’ when the reports and curricula vitae fail to demonstrate how
the experts gained the requisite experience or training,” and “the proffered medical expert’s
expertise must be evident from the four corners of his report and curriculum vitae.” Id.
2. Application of Law to Facts
As to its third issue, Nexion’s first contention is that Dr. Rushing is not qualified to
render an opinion on the applicable standard of care because “he is not actively practicing health
care in a nursing home.” Treybig responds that “Dr. Rushing need not be employed at a nursing
home to offer opinions on a fracture to the spine of an elderly patient.”
The “essential claim” in this case involves the standard of care that should be applied in a
nursing home when it contracts with another healthcare provider to provide a resident with
physical therapy and other care on the premises of the nursing home. See Golenko, 328 S.W.3d
at 644 (concluding that the “essential claim” against a nursing home involved the assessment and
care of individuals with Alzheimer’s disease, so a doctor, who was board certified in geriatrics
and internal medicine, had treated patients with similar conditions, was involved in the
assessment of those patients, and had supervised nurses in the care and assessment of those
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patients, was qualified to testify to the applicable standard of care, despite his lack of “nursing
home experience”). So, the relevant question is not the narrow issue of whether Dr. Rushing has
worked in a nursing home. Rather, it is the broader issue of whether Dr. Rushing is
knowledgeable about the standard of care applicable to the treatment of patients like Mr. Treybig
and the relevant care provided by Nexion. See id; IHS Acquisition No. 140, Inc. v. Travis, No.
13-07-481-CV, 2008 WL 1822780, at *5 (Tex. App.—Corpus Christi Apr. 24, 2008, pet. denied)
(mem. op.) (concluding a doctor, who was board certified in geriatrics and “knowledgeable about
the types of people who reside in nursing homes, their afflictions, and most importantly, the
relevant treatment and standard of care for such patients,” was qualified to testify to the standard
of care applicable in a claim against a nursing home for failure to monitor a resident’s eye
injury). Accordingly, we disagree with Nexion to the extent that it argues Dr. Rushing is not
qualified merely because he does not work in a nursing home. Golenko, 328 S.W.3d at 644; IHS
Acquisition, 2008 WL 1822780, at *4 (“The statute, reasonably construed, does not require that
the expert be involved in the exact same field as the health-care-provider defendant.”) (citing
Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003)).
Second, Nexion contends Dr. Rushing is not qualified because “[n]either Dr. Rushing’s
report nor his [curriculum vitae] demonstrate that he has knowledge of the standard of care for
nurses or physical therapists working in nursing homes like Nexion.” In response, Treybig
argues that Dr. Rushing has “ample experience treating patients with spinal injuries, including
writing orders to treat and care for spinal injuries and supervising the execution of the orders.”
According to the record, Dr. Rushing is licensed to practice medicine in Texas and is
board certified in internal medicine, rheumatology, and geriatrics. He is actively engaged in the
practice of these three specialties and is an attending physician at Presbyterian Hospital of
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Dallas, Texas. In his expert report, Dr. Rushing more specifically identifies his qualifications
regarding this case as follows:
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
CNA’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 CNA’s who
provid[ed] care to Mr. Treybig.
While Dr. Rushing states that he is “intimately familiar with the standards of care for the
facilities involved as well as the RNs, LVN’s and CNA’s who provid[ed] care to Mr. Treybig,”
he does not state that he is familiar with the standards of care that would be applicable to
Nexion’s supervision of Reliant’s physical therapists who provided the relevant care or treatment
to Mr. Treybig at Pleasant Valley, nor does his report and curriculum vitae identify any
experience supervising, managing, or overseeing physical therapists or physical therapy
treatment. Compare Golenko, 328 S.W.3d at 644 (concluding a doctor was qualified to testify to
the standard of care applicable to the assessment of a patient with Alzheimer’s disease for
admission to a nursing home when the doctor was certified in geriatrics and internal medicine,
treated patients with Alzheimer’s disease, and supervised nurses in the care and assessment of
those patients), with Simonson, 225 S.W.3d at 872–73 (holding an expert report inadequate
because the expert, a doctor, did not “state that he either ha[d] knowledge of the standard of care
applicable to nurse practitioners or that he ha[d] ever worked with or supervised nurse
practitioners”). Further, Dr. Rushing’s report and curriculum vitae “fail to demonstrate how [he]
gained the requisite experience or training” to offer an opinion on the standard of care applicable
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in a nursing home when it contracts with another healthcare provider to provide a resident with
physical therapy care on the premises of the nursing home. See Love, 347 S.W.3d at 750 (“[I]t is
not enough to summarily state [the expert’s] ‘knowledge’ when the reports and curricula vitae
fail to demonstrate how the experts gained the requisite experience or training.”). The statement
that Dr. Rushing has “provided primary medical care” to patients in nursing homes with
“conditions similar or identical with Mr. Treybig” does not adequately establish how Dr.
Rushing is “intimately familiar” with the standard of care owed by a nursing home under these
circumstances. See id.; Simonson, 225 S.W.3d at 872–73 (“Section 74.402(b)(2) requires that
the expert have knowledge of the accepted standard of care for health care providers, i.e. nurse
practitioners, for the diagnosis involved in the claim.” (emphasis in original)). Because the four
corners of Dr. Rushing’s report and curriculum vitae do not adequately articulate how Dr.
Rushing is qualified to opine on the standard of care applicable to a nursing home when it
contracts with another healthcare provider to provide a resident with physical therapy care or
treatment, we conclude the trial court abused its discretion in denying the motion to dismiss on
this basis. We decide in favor of Nexion on its third issue. See Love, 347 S.W.3d at 750–51.
E. Thirty-day Extension to Cure Deficiencies
In its fourth issue, Nexion contends the trial court abused its discretion when it denied
Nexion’s motion to dismiss and failed to award Nexion its attorney’s fees and costs. Treybig
responds that if Dr. Rushing’s report is “inadequate, the case should be remanded to receive a
30-day extension to cure the deficiencies.” In response, Nexion argues Treybig is not entitled to
“a chance to get a thirty-day extension” because Dr. Rushing’s report “did not implicate
Nexion’s conduct,” and Dr. Rushing “was not qualified to offer the report.”
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1. Applicable Law
When an expert report is timely served and properly challenged, the trial 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 in Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(l); Potts, 392 S.W.3d at 630. The TMLA “also authorizes the trial court to give a
plaintiff who meets the 120-day deadline an additional thirty days in which to cure a ‘deficiency’
in the elements of the report.” Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (citing
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c)). “The trial court should err on the side of
granting the additional time and must grant it if the deficiencies are curable.” Id. (internal
citations omitted). “The purpose of the expert report requirement is to deter frivolous claims, not
to dispose of claims regardless of their merits.” Leland v. Brandal, 257 S.W.3d 204, 554 (Tex.
2008) (citing Palacios, 46 S.W.3d at 878). “A court may not provide opportunities to cure,
however, when an expert report is ‘absent’ as opposed to deficient,” such as when a report “fails
to address all required elements of a claim.” Hollingsworth v. Springs, 353 S.W.3d 506, 524
(Tex. App.—Dallas 2011, no pet.) (denying a health care liability claimant an opportunity to cure
when the expert report “omitted any discussion of the element of causation,” so the “report could
not qualify as a good faith effort to meet Chapter 74’s requirements”).
“[A] thirty-day extension to cure deficiencies in an expert report may be granted if the
report is served by the statutory deadline, if it contains the opinion of an individual with
expertise that the claim has merit, and if the defendant’s conduct is implicated.” Scoresby, 346
S.W.3d at 557. The Supreme Court has “recognize[d] that this is a minimal standard.” Id. “An
individual’s lack of relevant qualifications and an opinion’s inadequacies are deficiencies the
plaintiff should be given an opportunity to cure if it is possible to do so.” Id. at 549. When a
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court of appeals finds an expert report to be deficient after the trial court concluded it was
adequate, the court of appeals “has the discretion to remand the case for consideration of a thirty-
day extension to cure the deficiency.” Leland, 257 S.W.3d at 208.
2. Application of Law to Facts
We now address whether Dr. Rushing’s report meets the standard identified in Scoresby,
indicating that the trial court may grant Treybig an opportunity to cure the deficiencies. See
Scoresby, 346 S.W.3d at 557. Dr. Rushing’s report was served by the statutory deadline, and it
“implicates” Nexion’s conduct, stating “[r]easonable investigation, documentation and treatment
[of Mr. Treybig’s pain complaints] would have . . . prevented fracture” and “the events and
failures set forth in [the] report proximately caused Mr. Treybig’s injuries.” See id. While we
have concluded that Dr. Rushing’s report and curriculum vitae did not adequately articulate how
Dr. Rushing is qualified to opine on the applicable standard of care in this case, it does not
necessarily follow that Dr. Rushing is not “an individual with expertise,” such that the report was
“‘absent’ as opposed to deficient.” See Hollingsworth, 353 S.W.3d at 524. Dr. Rushing’s
expertise, as a licensed medical doctor, who is board certified in internal medicine,
rheumatology, and geriatrics, “is relevant in explaining the connection between” the physical
therapists’ alleged use of “excessive force” and the back fracture Mr. Treybig suffered. See
Scoresby, 346 S.W.3d at 557 (“The Act requires that [the expert’s] knowledge, training or
experience, and practice be ‘relevant’ to [the plaintiff’s] claim.”). We agree with Treybig’s
contention that this case should be remanded to the trial court for consideration of a thirty-day
extension to cure the deficiencies. See Leland, 257 S.W.3d at 208. Accordingly, we decide
against Nexion on its fourth issue.
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III. CONCLUSION
The trial court abused its discretion in denying the motion to dismiss because Dr.
Rushing’s expert report and curriculum vitae do not adequately articulate how Dr. Rushing is
qualified to opine on the standard of care applicable in a nursing home when it contracts with
another healthcare provider to provide a resident with physical therapy care on the premises of
the nursing home. Accordingly, we reverse the trial court’s order denying the motion to dismiss
and remand the cause to the trial court to consider whether to grant Treybig a thirty-day
extension to cure the deficiencies in Dr. Rushing’s report.
/Douglas S. Lang/
140498F.P05 DOUGLAS S. LANG
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEXION HEALTH AT GARLAND, INC. On Appeal from the 14th Judicial District
D/B/A PLEASANT VALLEY Court, Dallas County, Texas
HEALTHCARE AND REHABILITATION Trial Court Cause No. dc-13-12286.
CENTER, Appellant Opinion delivered by Justice Lang. Justices
Bridges and Evans participating.
No. 05-14-00498-CV V.
TEMPERANCE TREYBIG, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
It is ORDERED that appellant NEXION HEALTH AT GARLAND, INC. D/B/A
PLEASANT VALLEY HEALTHCARE AND REHABILITATION CENTER recover its costs
of this appeal from appellee TEMPERANCE TREYBIG.
Judgment entered this 31st day of December, 2014.
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