Hendrick Medical Center v. George Conger, Individually and in the Estate of Mona Conger ( 2009 )

Opinion filed October 8, 2009
In The
Eleventh Court of Appeals
____________
No. 11-08-00036-CV
__________
HENDRICK MEDICAL CENTER, Appellant
vs.
GEORGE CONGER, INDIVIDUALLY AND IN THE
ESTATE OF MONA CONGER, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 46656-A
OPINION
In this health care liability claim, Hendrick Medical Center believed that the expert report
filed by George Conger for himself and for the estate of Mona Conger was inadequate, and it filed
a motion to dismiss in accordance with the provisions of TEX . CIV . PRAC. & REM . CODE ANN .
§ 74.351(b) (Vernon Supp. 2008). The trial court disagreed with Hendrick and denied the motion.
We reverse and remand.
Hendrick challenges the trial court’s ruling with two issues. First, Hendrick takes issue with
the trial court’s failing to dismiss George Conger’s claim because he filed an insufficient expert
report. In its second issue, Hendrick asserts that the trial court should have dismissed the vicarious
liability claims filed by Conger because the expert report that he filed was insufficient as to those
claims.
Mona Conger died after having cardiac bypass surgery at Hendrick. Mona Conger underwent
the procedure after testing performed upon her revealed multi-vessel disease.
Following Mona Conger’s death, George Conger sued Hendrick alleging that Mona Conger’s
right subclavian artery had been lacerated during central line placement related to cardiac bypass
surgery. George Conger asserted that the laceration resulted in a pleural hematoma and ultimately
led to her death. Conger also sued the physician who performed the surgery. The physician is not
a party to this appeal.
In his claim against Hendrick, Conger generally says that Hendrick, by and through its agents,
employees, vice-principals, and borrowed servants, failed to use the ordinary care that a reasonable
and prudent organization in like circumstances would have used in the treatment of Mona Conger.
Conger further generally alleges that Hendrick breached that standard of care by “failing to develop,
employ, monitor, and follow appropriate policies and procedures with regard to the assessment,
treatment, management and oversight of patients” like Mona Conger. Conger also claimed generally
that Hendrick failed “to train, employ, retain, supervise, and provide appropriate personnel to carry
out” those polices and procedures. “Furthermore, Hendrick Medical Center is vicariously liable
under respondent [sic] superior for the acts and omissions of it’s [sic] employees.”
Specifically, Conger said that Hendrick should have had policies and procedures that
addressed the timely interpretation of X-rays that were taken in the Intensive Care Unit following
surgery. It also should have had policies and procedures that addressed the importance of monitoring
persons like Mona Conger for complications resulting from bypass surgery. Conger alleged that the
standard of care would require those policies and procedures and that Hendrick breached that
standard by not having them. Finally, he says that the breach directly caused Mona Conger’s death.
When a party files a medical malpractice action, he must serve an expert report within 120
days of the filing of the petition. TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(a) (Vernon Supp.
2008). The report must be authored by an expert. An expert is one who is shown to be qualified by
reason of knowledge, skill, training, experience, or education to address the claim. TEX . R. EVID .
702. Additionally, in order to qualify as an expert to opine on the breach of a standard of care, where
2
the defendant is not a physician, the author must show that he meets the qualifications set forth in
TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(r)(5)(B) (Vernon Supp. 2008).
The proponent of an expert report has the burden to show that the expert is qualified.
Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996). The expert report must provide a fair
summary of the expert’s opinion regarding the applicable standard of care, the manner in which the
care rendered failed to meet the standard, and the causal relationship between the failure to meet the
standard and the injury. TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(r)(6) (Vernon Supp. 2008).
When the writer of a report merely states the expert’s conclusions about the standard of care, breach,
and causation, the report does not meet the purposes of the statute. Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). If the author of the report omits any of the
statutory requirements, the report does not constitute a good faith effort to comply with the statute.
Id.
A trial court must dismiss a health care liability claim if it determines that the report does not
represent a good faith effort to comply with the requirements of the statute. See Jernigan v. Langley,
111 S.W.3d 153, 156 (Tex. 2003); Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex. App.—Dallas
2007, no pet.). However, if a trial court deems that a timely report is deficient, it has the discretion
to grant one thirty-day extension during which the proponent of the report can attempt to cure the
deficiency. TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(c) (Vernon Supp. 2008).
When Conger filed his petition, he attached a medical report by Dr. Steven Thompson. Later,
Conger filed an amended report from Dr. Thompson. Conger also filed a report from a nurse,
Carrie S. Upton. Hendrick filed a motion to dismiss as provided for by Section 74.351(b). The trial
court denied the motion, and this appeal followed.
A trial court’s decision to deny a motion to dismiss based on Section 74.351(b) is reviewed
for an abuse of discretion. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). To
determine whether a trial court abused its discretion, we must decide whether the trial court acted
without reference to any guiding rules or principles; in other words, we must decide whether the act
was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).
3
First, Conger claims that this court has no jurisdiction to hear this appeal. The court’s
decision in Lewis v. Funderburk, 253 S.W.3d 204, 207-08 (Tex. 2008), has resolved that issue, and
we have jurisdiction to entertain this interlocutory appeal. See TEX . CIV . PRAC. & REM . CODE ANN .
§ 51.014(10) (Vernon 2008).
In its motion to dismiss, Hendrick pointed out to the trial court that the report of Nurse Upton
had been served more than 120 days after the petition was filed and was, therefore, not timely. When
the trial court denied the motion to dismiss, it denied the motion in its entirety. Therefore, it denied
Hendrick’s claim that Nurse Upton’s report was not timely. Hendrick claims that that denial was
error. The record shows that Conger served Nurse Upton’s report more than 120 days after the
petition was filed; it was not timely. See Section 74.351(a). Hendrick’s complaint is sustained. The
only timely report before the trial court and this court is the amended report from Dr. Thompson.
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 (1) applicable standards of care, (2) the
manner in which the care rendered failed to meet the standards, and (3) the causal relationship
between that failure and the injury, harm, or damages claimed. Section 74.351(r)(6). The report
must be signed “by a person with knowledge, training, or experience concerning the applicable
standard of care.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008); see also
Section 74.351(r)(5)(B). “The standard of care for a hospital is what an ordinarily prudent hospital
would do under the same or similar circumstances.” McAllen Medical, 275 S.W.3d at 463 (citing
Palacios, 46 S.W.3d at 880).
Hendrick complains that Dr. Thompson’s report is deficient for several reasons, one of which
is that he is not shown to be qualified to render an expert opinion on any of the claims against it.
Dr. Thompson’s report shows that he is board certified in internal medicine and that he is an
emergency room physician. He has been an intensive care unit “attending” and was also an
emergency room medical director. Finally, at the time his report was written, Dr. Thompson was
the director of hospitalists and the emergency room physicians at a hospital in Dallas.
Dr. Thompson states in his report: “I am familiar with the diagnosis and treatment of post-
operative patients. Thus by education, training and experience I am qualified to render an expert
opinion in this matter.” He does not say that he is familiar with the formulation of policies and
4
procedures by hospitals in the ICU setting similarly situated to that situation or circumstance of
Hendrick. In his petition, Conger’s direct liability claims against Hendrick are limited to its alleged
failures in regard to formulation of policies and procedures.
As to the standard of care applicable to Hendrick, Dr. Thompson opines in his report:
The standard of care for a hospital intensive care unit (ICU) is to provide the
safest possible medical outcome for their patients. Specifically, the standard of care
for Hendrick Medical Center is to ensure that x-rays are read and interpreted in a
timely manner. Timely manner in the ICU setting is immediate. Policies and
procedures should have been implemented to create a reproducible pattern to reduce
the likelihood that mistakes will be made. Hendrick Medical Center breeched [sic]
the standard of care by failure to have policies and procedures in place that would
have ensured the timely interpretation of the chest x-ray performed in the Intensive
Care Unit. Specifically, the standard of care was breeched [sic] since the chest x-ray
was not read or interpreted in a timely manner.
Dr. Thompson also stated:
Furthermore, either the radiology technician or the ICU staff should have made a
cursory review of the chest x-ray. There was a breech [sic] in the standard of care by
Hendrick Medical Center employees since nobody reviewed the chest x-ray. The
interval change in the chest x-ray would have been obvious to the radiology
technician or the ICU Staff. Hendrick Medical Center should have had policies and
procedures in place to ensure x-rays are read and interpreted in a timely manner,
especially in the ICU setting.
Hendrick argues that it is not established within the four corners of the report that
Dr. Thompson has any familiarity, training, or experience that would allow him to opine as to the
standard of care in formulating policies and procedures at the hospital level in the ICU. We agree.
Dr. Thompson’s qualifications must be shown within the four corners of the report.
Palacios, 46 S.W.3d at 878. The report shows his experience as a board certified internist, an
emergency room physician and director, an ICU “attending,” and director of hospitalists and
emergency room physicians. Dr. Thompson said nothing in the report about his knowledge, training,
or experience concerning the applicable standard of care involved here – the formulation of hospital
policies and procedures in an ICU setting. He has not shown himself to be qualified to render an
opinion on “what an ordinarily prudent hospital would do under the same or similar circumstances.”
McAllen Medical, 275 S.W.3d at 463 (citing Palacios, 46 S.W.3d at 880).
5
While Dr. Thompson may be qualified to testify as an expert in other areas, we are confined
to the four corners of the report, and it is not shown within the four corners of his report that
Dr. Thompson is an expert qualified to give an opinion on what an ordinarily prudent hospital would
do under these or similar circumstances. See Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 410-
11 (Tex. App.—Fort Worth 2003, no pet.) (record did not show that purported expert had “any
special knowledge about what protocols, policies, or procedures a hospital of ordinary prudence,
with the Hospital’s capabilities, would have had in place”). Dr. Thompson’s report is, therefore,
deficient as to the direct health care liability claims against Hendrick.
Conger also filed vicarious health care liability claims against Hendrick. It asserts that
Dr. Thompson’s report fails to name any of the employees for which Conger claims Hendrick is
responsible. The report also fails to name the occupation or job descriptions of those alleged to bind
Hendrick vicariously except to say, “[E]ither the radiology technician or the ICU staff should have
made a cursory review of the chest x-ray.” Again, we agree with Hendrick. Not only has
Dr. Thompson not set forth his qualifications to give an opinion on the standard of care applicable
to radiology technicians and ICU staff, but he also does not say who these people are, what their
duties were, why he is familiar with the standard of care applicable to the various persons involved,
or what the standard of care is for each different position. He simply gives his opinion that they
should have read the X-ray, they did not, and it caused Mona Conger’s death. Without setting out
at least the job descriptions of those involved in this case (and we are not to be taken as holding that
would be enough to satisfy the statute) and for whom and why Hendrick is alleged to be responsible,
it would be impossible for Dr. Thompson to state the standard of care applicable to those persons
and that he was qualified to give an expert opinion on that standard of care. There is no attempt
within the four corners of the report to show that Dr. Thompson had knowledge, training, or
experience concerning the standard of care, in an ICU setting, applicable to any member of the staff
who might have been involved in the treatment of Mona Conger. Standing alone, the fact that Dr.
Thompson is shown to be a physician does not show him to be qualified as an expert with respect
to all health care providers. Broders, 924 S.W.2d at 153. For the reasons we have stated, the report
as to the vicarious liability claims against Hendrick is deficient.
6
Hendrick argues that there are other reasons why the trial court should have sustained its
objections. It argues that, even if Dr. Thompson had been shown to be qualified on the standards
of care, his opinions on the breach of those standards of care and the relation of the breach to the
cause of death are conclusory. We agree. A conclusory statement is one that expresses a factual
inference without stating the underlying facts on which the inference is based. Arkoma Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008).
Dr. Thompson stated that Hendrick should have implemented policies and procedures to
“reduce the likelihood that mistakes will be made.” He opines that Hendrick breached that standard
of care by failing to have those policies and procedures in place. However, he does not say that he
had ever examined the policies and procedures at Hendrick as they relate to the ICU or radiological
setting or how he knew that they had no such policies and procedures in place; he simply declares
that Hendrick should have had them but did not and that that breach brought about a long chain of
medical problems that, one upon the other, ultimately caused Mona Conger’s death. Dr. Thompson
expresses factual inferences without stating the underlying facts upon which those inferences are
based. See id.
The same is equally true as to the vicarious claims against Hendrick. Dr. Thompson
conclusively states that, if the radiology technician or someone else in the ICU had reviewed the X-
ray earlier, Mona Conger could have been returned to surgery earlier and the same long chain of
medical problems, one upon the other, would not have occurred and would not have caused Mona
Conger’s death. Again, Dr. Thompson expresses factual inferences without stating the underlying
facts upon which those inferences are based. See id.
Hendrick also argues that our decision in Barko1 requires that Dr. Thompson eliminate the
heart surgery or heart disease as the cause of the cardiac arrest that precipitated the chain of medical
events prior to Mona Conger’s death. In Barko, the claimant had a prior back surgery. She reinjured
her back and went to an emergency room. Dr. Genzel, the physician against whom the health care
liability claim was filed, examined her, prescribed pain medication, and advised her to see her
neurosurgeon. She later returned to the emergency room, was given more medicine, and again told
1
Barko v. Genzel, 123 S.W.3d 457 (Tex. App.—Eastland 2003, no pet.).
7
to see her neurosurgeon. We held that a medical report in that case was deficient for a number of
reasons. As to one of those reasons, we said:
[T]he reports do not indicate that appellant would have satisfactorily recovered from
the back injury but for Dr. Genzel’s alleged negligence. The reports do not state that
back surgery would have been avoided without Dr. Genzel’s alleged negligence.
Furthermore, the reports make no attempt to eliminate either the back injury itself or
the attempt to surgically repair it as a potential cause of the permanent neurological
damage.
Barko, 123 S.W.3d at 460-61.
For all of the reasons we have discussed, we hold that the report is deficient to support either
the direct health care liability claims or the vicarious liability claims. Hendrick’s first and second
issues are sustained.
Hendrick has asked us to hold that the report as to the vicarious liability claims is so deficient
that it is tantamount to no report. We decline to make that holding. See Ogletree v. Matthews, 262
S.W.3d 316, 320, 321 (Tex. 2007) (Expert report did not mention Dr. Ogletree’s name, but his
conduct was implicated. The report was deficient, not absent, and the trial court could grant an
extension).
The Texas Supreme Court has held that, because we have held inadequate a report that the
trial court found adequate, the proper disposition of this appeal is to remand to the trial court for it
to consider whether to grant Conger a thirty-day extension to cure the defects under
Section 74.351(c). Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 670, 671 n.1 (Tex. 2008);
Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008).
This cause is reversed and remanded to the trial court for that court to decide whether to grant
a thirty-day extension under Section 74.351(c).
JIM R. WRIGHT
CHIEF JUSTICE
October 8, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
8