Gayla Dews, Individually and as Representative of the Estate of Marjorie Lenore Black Dews v. Palo Pinto Nursing Center, L.P. ( 2009 )

Opinion filed June 11, 2009
In The
Eleventh Court of Appeals
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No. 11-07-00274-CV
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GAYLA DEWS, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF MARJORIE LENORE
BLACK DEWS, DECEASED, Appellant
V.
PALO PINTO NURSING CENTER, L.P. ET AL, Appellees
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C41283
MEMORANDUM OPINION
Appellant Gayla Dews, individually and as representative of the estate of Marjorie Lenore
Black Dews, deceased, brought this health care liability claim against Palo Pinto Nursing Center,
L.P.; David B. Ramsey, M.D.; Alice L. Ramsey, M.D.; and Patrick W. Hisel, M.D. Marjorie Dews
died on June 26, 2004, and the claim was filed on February 24, 2006. Dews alleged that the doctors
and the nursing home failed to timely and properly diagnose and treat gastrointestinal bleeding from
a peptic ulcer suffered by her mother, Marjorie Dews, and that that failure proximately caused her
mother’s death on June 26, 2004.
In an attempt to comply with TEX . CIV . PRAC. & REM . CODE ANN . § 74.351 (Vernon Supp.
2008), Dews served appellees with the reports of William R. Gardner, M.D. and Frances Lovett,
R.N. Appellees filed their respective objections to Dews’s expert reports and motions to dismiss
with prejudice. After a hearing on July 13, 2006, the trial court granted Palo Pinto Nursing Center’s
motion to dismiss with prejudice. The court stated in its letter ruling that “the report of Nurse Lovett
[was] wholly insufficient (both substantively and as to her qualifications) to satisfy the requirements
of the statutes.” In that same December 19, 2006 letter ruling, the trial court found that
Dr. Gardner’s report was deficient as to the doctors but granted Dews a 30-day extension to file an
amended report as to each individual physician. See Section 74.351(c).
Dews filed an amended report by Dr. Gardner and filed a motion for the court to reconsider
its order dismissing Palo Pinto Nursing Center. On June 20, 2007, the trial court signed an order
granting Palo Pinto Nursing Center’s objections to the reports of Dr. Gardner and Nurse Lovett and
dismissing Dews’s claim against Palo Pinto Nursing Center with prejudice. The court also signed
orders granting the doctors’ motions to dismiss with prejudice. We affirm.
The Texas Medical Liability Act
In 2003, the Texas Legislature enacted the Texas Medical Liability Act. See TEX . CIV .
PRAC. & REM . CODE ANN . ch. 74 (Vernon 2005 & Supp. 2008). Section 74.351 requires a plaintiff
asserting a health care liability claim to submit an expert report, along with the expert’s curriculum
vitae, as to each physician or health care provider named as a defendant in the suit, no later than the
120th day after filing suit. Section 74.351(r)(6) describes an expert report as a written report
providing “a fair summary of the expert’s opinions . . . regarding applicable standards of care, the
manner in which the care rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury, harm, or damages
claimed.”
If a plaintiff timely files an expert report and the defendant moves to dismiss because of the
report’s inadequacy, the trial court must grant the motion “only if it appears to the court, after
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hearing, that the report does not represent an objective good-faith effort to comply with the definition
of an expert report” in Section 74.351(r)(6). Section 74.351(l). 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. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001);
Longino v. Crosswhite, 183 S.W.3d 913, 916-17 (Tex. App.—Texarkana 2006, no pet.). A report
that merely states the expert’s conclusions about the standard of care, breach, and causation does not
meet the statutory requirements. Wright, 79 S.W.3d at 52. In determining whether the report
represents a good-faith effort, the trial court’s inquiry is limited to the four corners of the report.
Section 74.351(r)(6); Palacios, 46 S.W.3d at 878.
Standard of Review
In her first issue, Dews raises the question of whether the standard of review of the trial
court’s rulings remains an abuse of discretion standard as the Texas Supreme Court held in Palacios,
46 S.W.3d at 875. Palacios and Wright dealt with TEX . REV . CIV . STAT . art. 4590i (1997) (repealed
effective August 31, 2003), the predecessor statute to the Texas Medical Liability Act. We
addressed the arguments in Kendrick v. Garcia, 171 S.W.3d 698, 702-03 (Tex. App.—Eastland
2005, pet. denied), where we held that this court will utilize the abuse of discretion standard set forth
in Palacios when we review a trial court’s ruling on a defendant’s motion to dismiss under
Section 74.351. We will continue to do so until there is authority to the contrary. The first issue is
overruled.
An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner
or without reference to any guiding rules or principles. Wright, 79 S.W.3d at 52. A trial court does
not abuse its discretion simply because it may decide a matter within its discretion differently than
an appellate court. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
However, a clear failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
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Dr. Gardner’s Report
In her third and fourth issues, Dews contends that the trial court abused its discretion in ruling
that the written expert report of Dr. Gardner was legally insufficient and erred in dismissing her
health care liability claims against the appellees.
In his report, Dr. Gardner began by stating that he has substantial knowledge and experience
in the diagnosis, care, assessment, and treatment of elderly patients with one or more bleeding ulcers
and related complications, including anemia. Dr. Gardner described the standard of care that each
of the three doctors should have followed when in charge of the treatment of Marjorie Dews:
(1) each doctor should have immediately ordered a gastrointestinal consult; (2) each doctor should
have required an “upper GI series”; and (3) each doctor should have recommended that Marjorie
Dews refrain from taking Ecotrin/aspirin. All three doctors challenge Dr. Gardner’s report on the
ground that it did not describe with sufficient facts the causal relationship between his statement of
their breaches of the standard of care and the death of Marjorie Dews. Dr. Gardner addressed the
causation element as follows:
It is clear from Ms. Dews’ medical records that she had a painful and severe bleeding
ulcer. Dr. David Ramsey, Dr. Alice Ramsey and Dr. Hisel each failed to appreciate
the severity of the ulcer, and never diagnosed the cause or specific source of the
bleed. If the above standards of care had been met by Dr. David Ramsey, Dr. Alice
Ramsey and Dr. Hisel, the severity of Ms. Dews’ bleeding ulcer, as well as the cause
and specific source of the bleed, would, in reasonable medical probability, have been
diagnosed. If the severity of the bleeding ulcer and cause and specific source of the
bleed had been determined, the bleed, in reasonable medical probability, would have
been slowed or stopped by surgery or medication. Death can, and often does, occur
quickly after the onset of a bleeding ulcer due to excessive blood loss and related
complications. If the bleed had been slowed or stopped before Ms. Dews’ discharge
from Palo Pinto General Hospital on June 24, 2004, Ms. Dews’ death, in reasonable
medical probability, would have been prevented. Additionally, bleeding ulcers are
painful. If the bleed had been slowed or stopped before Ms. Dews’ discharge from
Palo Pinto General Hospital on June 24, 2004, in reasonable medical probability,
Ms. Dews would not have suffered severe pain due to the bleed.
It is my opinion that the above described failures of David B. Ramsey, M.D.; Alice
L. Ramsey, M.D. and Patrick W. Hisel, M.D. to meet the reasonable, prudent and
accepted standards of medical care for a family practice physician in the diagnosis,
care and treatment of Ms. Dews was a probable cause of Ms. Dews’ injuries, harm
and death for the reasons described above. Also, I have considered the other
potential or possible causes of injury, harm and death to Ms. Dews, and ruled them
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out. My opinions in these regards are based upon my medical education, training,
experience, research, writing, applicable reliable medical literature and other reasons
set forth below.
Dr. Gardner does not describe how he reached his conclusion that the bleeding was severe
or how the severity of the bleeding caused her death. His report does not contain facts documenting
that Majorie Dews suffered from severe or excessive blood loss. Earlier in his report, Dr. Gardner
stated that Dr. David Ramsey and Dr. Alice Ramsey documented the gastrointestinal bleed in the
chart and that Marjorie Dews “underwent numerous transfusions” during her hospital admission.
He also stated that Dr. Alice Ramsey noted the need to obtain a gastrointestinal consult if Majorie
Dews “did not respond to the current treatment regimen.” We are left to infer that Majorie Dews did
or did not respond to the treatment; we do not know from Dr. Gardner’s report.
In essence, Dr. Gardner concludes that the doctors’ delay in obtaining a consult with a
gastrointestinal specialist, delay in immediately ordering an upper GI series, and failure to
recommend that Marjorie Dews refrain from taking Ecotrin/aspirin resulted in her death. We do not
have an additional opinion by a gastrointestinal specialist that their delay caused her death. We can
infer, but do not know, that an upper GI series would have determined the cause or specific source
of the bleed, but then we do not know what steps the doctors should have taken. It is not clear who
Dr. Gardner thinks should have slowed or stopped the bleeding. Dr. Gardner only states that, “[i]f
the bleed had been slowed or stopped before Ms. Dews’ discharge from Palo Pinto General Hospital
on June 24, 2004, Ms. Dews’ death, in reasonable medical probability, would have been prevented.”
Dr. Gardner’s report indicates that the bleeding from the ulcer caused her death, but there are
no facts set forth to support that conclusion. Dr. Gardner indicated at the outset in his report that
Marjorie Dews was an elderly patient with a bleeding ulcer and related complications, including
anemia; however, we are not told what other health problems she suffered. Dr. Gardner simply
states, “Also, I have considered the other potential or possible causes of injury, harm and death to
Ms. Dews, and ruled them out.” Dr. Gardner’s report is similar to the report in Barko v. Genzel, 123
S.W.3d 457 (Tex. App.—Eastland 2003, no pet.), where we held the report was insufficient when
the causal relationship was stated as “[t]hese violations of the standards of emergency medical
practice were a proximate cause in this patient’s injury.” Barko, 123 S.W.3d at 460.
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In Longino, 183 S.W.3d at 918, the court held that a similar expert report was legally
insufficient because “[t]he report here only states that the delay in diagnosis caused significant and
permanent neurological injuries. An expert report must show causation beyond mere conjecture.”
Dr. Gardner conjectures that Marjorie Dews’s death would have been prevented if a gastrointestinal
specialist had been consulted or if an upper GI series had been ordered. Those are mere conclusions
concerning causation. Appellant’s third and fourth issues are overruled.
In her second issue, Dews argues that the trial court abused its discretion in ruling that
Nurse Lovett was not qualified as an expert to give an opinion regarding whether Palo Pinto Nursing
Center departed from the accepted standards of health care. The trial court found that Nurse Lovett’s
report was legally insufficient and did not constitute a good-faith effort to comply with the statutory
requirements concerning Dews’s claim against Palo Pinto Nursing Center. After reviewing
Nurse Lovett’s report and curriculum vitae, we cannot say that the trial court abused its discretion
in its ruling.
Palo Pinto Nursing Center first argues that Nurse Lovett was not qualified because neither
her report nor her curriculum vitae indicated that she had experience regarding the specific condition
at issue – the timely diagnosis of a peptic ulcer and/or gastrointestinal bleeding from a peptic ulcer.
Palo Pinto Nursing Center also criticizes Nurse Lovett’s report as being too general for it to know
exactly what was the standard of care for its nurses and its administration and how that standard of
care was breached. Nurse Lovett stated that Palo Pinto Nursing Center’s registered nurses “should
have used a systematic approach to provide individualized, goal directed nursing care” by
“performing nursing assessments regarding the health status of Ms. Dews.” Nurse Lovett stated that
the nursing staff noted certain classic symptoms of gastrointestinal bleeding that required “a full
assessment.” But she did not state precisely what particular assessments were required, how
frequently the particular assessments were required, or how Palo Pinto Nursing Center’s nurses
breached the standard of care. She did, however, point out specific nursing interventions that were
not implemented:
[R]egular, systematic blood pressure, temperature, pulse and respiration monitoring;
and check for blood in stools for bowel movements recorded on 6-16-04 and 6-17-04.
The nursing staff did not use the data they collected to provide a comprehensive
assessment. In the absence of a comprehensive nursing assessment, interventions
were delayed or absent. The nursing staff knew on 6-17-04 that Ms. Dews’
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laboratory studies showed a critical drop in red blood cells to 2.37, a hemoglobin of
7.0 and a hematocrit of 21.1 The nurses knew or should have known this was an
indication of blood loss requiring heightened assessment, reporting to Ms. Dews’
physician and emergency interventions. This care was not provided to Ms. Dews.
Overall, Nurse Lovett’s report was too broad for a determination of what the standard of care was
for the nurses and administration of Palo Pinto Nursing Center or how that standard of care was
breached.
Even if Nurse Lovett’s report were to be considered as a good-faith attempt regarding the
standard of care for the nurses and the administration, there was still no good-faith attempt to meet
the causation requirement. Section 74.351(i) expressly provides that a claimant may satisfy any
requirement of the Act by providing reports of separate experts. See Packard v. Guerra, 252 S.W.3d
511 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); Martin v. Abilene Reg’l Med. Ctr., No.
11-04-00303-CV, 2006 WL 241509, at *4 (Tex. App.—Eastland Feb. 2, 2006, no pet.) (mem. op.).
Nurse Lovett was not qualified to address the causal relationship between any failure by Palo Pinto
Nursing Center and its nurses and the death of Marjorie Dews. See Costello v. Christus Santa Rosa
Health Care Corp., 141 S.W.3d 245, 248 (Tex. App.—San Antonio 2004, no pet.) (holding that
registered nurse was not qualified to express expert opinion as to cause of patient’s death). For the
causal relationship, Dews relied on the report of Dr. Gardner. For the reasons we discussed in regard
to the actions of the doctors, Dr. Gardner’s report was not legally sufficient in describing the causal
relationship between the actions of the nurses and administration of Palo Pinto Nursing Center and
the death of Majorie Dews. Appellant’s second issue is overruled.
This Court’s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
June 11, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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