Clear Lake Rehabilitation Hospital, L.L.C. v. Lily Karber ( 2010 )

Opinion issued March 18, 2010

    In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-09-00883-CV

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CLEAR LAKE REHABILITATION HOSPITAL, L.L.C., Appellant  

V.

LILY KARBER, Appellee  

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On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2009-45845  

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MEMORANDUM OPINION  

          In this interlocutory appeal, appellant, Clear Lake Rehabilitation Hospital, L.L.C. (“Clear Lake”), challenges the trial court’s order denying its motion to dismiss the health care liability claims of appellee, Lily Karber. In two issues, Clear Lake contends that Karber’s physician’s expert report is “inadequate with respect to causation” because her expert is “unqualified to opine on the causal relationship” between the breach of the standard of care and Karber’s injuries and the expert’s opinion on causation is “speculative and conclusory.”

          We affirm the order of the trial court.

Background

          In her original petition, Karber, who is eighty-one years old, alleges that she fell and sustained a fractured leg while receiving rehabilitative care at Clear Lake, which was negligent in failing to provide adequate nursing services, treatment plans, supervision, and assistive devices. She asserts that Clear Lake’s negligence proximately caused her injuries, which included the fractured leg and, ultimately, the amputation of the leg due to an infection that developed after an operation to repair the fracture.

          In support of her claims, Karber timely served upon Clear Lake the expert report of Richard Evans, M.D. In his report, Evans detailed his qualifications as follows:

As my attached CV describes, I am a physician licenced in the State of Texas. I received my . . . Doctor of Medicine and Master of Science (physiology and immunology) degrees from Tulane University School of Medicine in New Orleans. I pursued speciality training in general surgery at the University of California School of Medicine, San Francisco and at Stanford University School of Medicine in Palo Alto. I completed general surgery training at St. Joseph Hospital in Houston. This included training at the University of Texas M.D. Anderson Cancer Center and a one year fellowship in surgical oncology . . . . 

Evans explained that the goal of his practice is to reduce deformity caused by surgery

and noted that he has published more than fifty articles and letters in medical journals, which he identifies and describes in his curriculum vitae. In his curriculum vitae, Evans stated that he had previously engaged in the private practice of general surgery from 1978 to 1988 and has since been engaged in the fields of physical medicine and medical writing. Evans is also certified by the American Board of Surgery.

          In his report, Evans explained that he has “had hands on experience in hospitals and [has] provided medical care to patients similar to [Karber]” and, through his experience, education, and training, he is familiar with the nursing standards of care applicable to the case. In preparing his report, Evans reviewed Karber’s medical records from Clear Lake and multiple other medical facilities and the expert report of Suzanne Frederick, R.N., who had also opined that Clear Lake had breached the applicable standards of care by failing to supervise staff to ensure that Karber was properly transferred. Evans, based upon his review of all of the documents and records, opined that Clear Lake breached the applicable standards of care and that these breaches caused Karber’s injuries.

          Specifically, Evans noted that Karber, who had fallen at her home and fractured her left femur, underwent an open reduction and internal fixation (ORIF) of her left femur at a third-party hospital. Karber was thereafter admitted into Clear Lake for rehabilitation and physical therapy. In regard to the treatment and care that she had received at Clear Lake, Evans stated,          [Clear Lake’s] Pre-Admission screening form showed that [Karber] required maximum assistance with toileting and transfers. . . . The physician’s orders stated no weight bearing on the left leg and foot. . . . The records show that [Karber] required total assistance with transfers and two (2) helpers for safety due to her left femur fracture and immobilizer. The physical therapist documented that [Karber] was unable to control her left lower extremity during transfers. She was assessed to be at risk for falls.

          A physician’s progress notice on 4/2/08 . . . stated, “[patient] fell and heard a ‘pop’ when she transferred to her room one hour ago. Has some discomfort now.” He wrote to have an x-ray in the morning. The nurse’s notes do not mention this transfer event. On 4/3/08 the physician’s progress note reflected that [Karber] was transferring to the wheelchair and inadvertently put weight on her left lower extremity and stated she twisted it and heard a “pop.” The note further states that the x-ray showed that the fixation had come apart and there was valgus deformity with the fixation posteriorly and that she needed to see an orthopedic surgeon in the morning. A subsequent physician’s note stated that there was a re-injury to the left femur around the previous ORIF. She was transferred [back] to the hospital . . . on 4/4/08. According to Dr. Rosenblatt’s Discharge Summary, [Karber] stated she was transferring out of her wheelchair but the wheelchair technician stated that she was transferring off of the bedside commode, “but nonetheless, she put weight on her left leg and had a twisting type motion what the patient described and heard a pop.” [Karber] fractured her left femur a second time, because of the weight she had to place on her injured leg. If she had received the assistance of two nurses to help her it is unlikely that this new injury would have occurred.

          [Karber] had to have a second operation to repair this fracture. There was a resulting wound infection, which ultimately involved the bone. The osteomyelitis was not cured despite aggressive treatment with intravenous antibiotics and local wound care. [Karber] ultimately required an above the knee amputation of her leg.

          It is my opinion, based on my education, training and experience that the deviation from the standard of care proximately caused the injury to [Karber’s] left leg and the subsequent sequala including infection and ultimately amputation.

Standard of Review

          We review a trial court’s decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (predecessor statute); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.— Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray, 189 S.W.3d at 858; Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).   

            Expert Report     

          In two issues, Clear Lake argues that the trial court abused its discretion in denying its motion to dismiss Karber’s claims because Evans’s expert report is “inadequate with respect to causation.” Clear Lake asserts that Evans is “unqualified to opine on the causal relationship” between the breach of the standard of care and Karber’s injuries. It also asserts that Evans’s causation opinions are “speculative and conclusory” and provide no explanation of the causal relationship between the breach and Karber’s injuries.  

          A plaintiff bringing a health care liability claim must provide each defendant health care provider with an expert report or voluntarily nonsuit the action. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2009); Gray, 189 S.W.3d at 858. The expert report must provide a fair summary of the expert’s opinions as of the date of the report regarding the applicable standards of care, the manner in which the care rendered by the health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). An “expert,” “with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim,” must be “a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.” Id. § 74.351(r)(5)(C); see also id. § 74.403(a) (Vernon 2005) (“[I]in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.”). Under the Texas Rule of Evidence, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702; see also Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996).

          If a plaintiff timely serves an expert report, a defendant may file an objection challenging the sufficiency of the report not later than the 21st day after the date it was served. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If a defendant files a motion to dismiss challenging the adequacy of the expert report, the trial court shall grant the motion to dismiss only if it appears to the court, after a hearing, that the report does not represent an objective good-faith effort to comply with the definition of an expert report. Id. § 74.351(b), (l). The only information relevant to the inquiry is that within the four corners of the document. Palacios, 46 S.W.3d at 878. Although the plaintiff need not marshal all of her proof in the report, the report must include the expert’s opinion on each of the elements identified in the statute. See Palacios, 46 S.W.3d at 878–79; Gray, 189 S.W.3d at 859. In setting out the expert’s opinions, the report must provide enough information to fulfill two purposes to constitute a good-faith effort. Palacios, 46 S.W.3d at 879. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Id. Second, the report must provide a basis for the trial court to conclude that the claims have merit. Id. A report that merely states the expert’s conclusions does not fulfill these two purposes. Id. The expert must explain the basis of his statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. However, a plaintiff need not present evidence in the report as if she were actually litigating the merits. Palacios, 46 S.W.3d at 879. Furthermore, 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 trial. Id.

Qualifications to Opine on Causation

          Clear Lake argues that Evans is not qualified to opine on causation because there is nothing in Evans’s curriculum vitae or report to establish that he actually cares for or treats patients in a rehabilitation setting like that at Clear Lake or that he is knowledgeable “about the care and treatment of fractures.” Clear Lake asserts that Evans lacks the expertise to opine on “the causal relationship between the occurrence of [Karber’s] second fracture of the left femur and the above-knee amputation she later underwent” and the “progression” of Karber’s second fracture “from its occurrence to the point of requiring amputation.” Clear Lake complains,

          [Evans] does not explain or identify any experience he has caring for patients with multiple comorbidities who have an initial fracture and subsequent surgery with the placement of hardware, followed by a subsequent fracture and surgery, and ultimately amputation. As a surgical oncologist, he does not repair fractured femurs and does not perform amputations, and there is nothing in his report or CV to suggest he makes decisions about what care and treatment is indicated when a patient with a prior ORIF develops infection. In addition, nowhere is there any explanation of how there might be similarities between the care he renders as a surgical oncologist and that provided to [Karber] for her fractures.

Clear Lake asserts that there is no evidence that Evans “could directly opine on how and why [Karber] required an amputation of her left leg.”

          Clear Lake encourages us to focus on Evans’s qualifications to opine on events that occurred subsequent to Karber’s fall, i.e., the subsequent surgery, care, infection, and amputation. However, Karber’s claims are not so limited. In his report, Evans primarily focused upon Clear Lake’s alleged negligence in failing to provide Karber with adequate assistance, resulting in Karber placing weight upon her leg, falling, and fracturing her leg. Evans, based upon his review of Karber’s medical records, concluded that Karber fell as a result of Clear Lake’s inadequate assistance, Karber felt a “popping” in her leg upon falling or placing weight on her leg, and Karber fractured her leg as a result of the fall. Evans did not opine that there was any negligence associated with the subsequent surgical repair of Karber’s fracture, the development, progression, or treatment of Karber’s infection, or the ultimate amputation and the care provided to Karber thereafter. Clear Lake, in its argument about Evans’s qualifications, ignores the fact that Evans opined on the causal connection between Karber’s fall and fracturing of her leg.  

          Thus, we focus on whether the trial court could have determined that Evans is qualified to provide expert testimony that Clear Lake’s inadequate assistance caused Karber’s fall and fracture. Evans’s curriculum vitae and report reveal that he is Texas-licensed physician, he has Doctor of Medicine and Master of Science degrees in physiology and immunology, he has completed speciality training in general surgery and obtained certification by the American Board of Surgery, he engaged in the practice of general surgery from 1978–1988, and he has been engaged in the field of physical medicine and medical writing since 1988. Evans also stated in his report that he has “hands on experience in hospitals and has provided medical care to patients similar to [Karber].” We conclude that the trial court acted within its discretion in determining that Evans is qualified to opine on the causal connection between Clear Lake’s negligence in failing to provide Karber adequate assistance and Karber’s fall and the resulting fracturing of her leg. See Azle Manor, Inc. v. Vaden, No. 2-08-115-CV, 2008 WL 4831408, at *9 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (stating that trial court could have reasonably concluded that expert was qualified “to render a causation opinion as simple and straightforward as the one in this case”).   

          In support of its argument that Evans is unqualified to render an opinion on causation, Clear Lake cites Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). In Broders, the supreme court considered the qualifications of an emergency physician to testify about the cause of death of a patient with a brain injury. Id. at 151, 153. The expert “never testified that he knew, from either experience or study, the effectiveness” of the treatments that he contended should have been provided to the patient. Id. at 153. The supreme court concluded that the expert’s opinion about the effectiveness of such treatments was “mere speculation” and would not assist the jury and, thus, held that the trial court did not abuse its discretion in excluding the expert’s testimony. Id.  

          Here, unlike in Broders, Evans’s opinions on causation cannot be characterized as mere speculation. Based upon his review of the medical records, which themselves mandated that Karber was not to place weight on her left leg, Evans opined that, contrary to these mandates, Clear Lake’s provision of inadequate assistance put Karber in the position of placing weight on her left leg, which caused her to fall and break her leg. The trial court could have reasonably concluded that Evans, a practicing physician with a significant history in surgery, was qualified to review Karber’s medical records and determine that the fracture of her leg in the course of her fall was caused by the inadequate assistance of Clear Lake.   

Causation

          Clear Lake argues that Evans’s expert opinions regarding causation are conclusory because they require “the inference that if [Karber] was assisted by two nurses she would not have re-fractured the left femur.” Clear Lake asserts that “assuming that [Karber] was assisted by only one individual, it is within the realm of possibility that even if two nurses were involved in the transfer, [Karber] could have still placed weight on her left leg and incurred the additional fracture that would have required amputation.”

          An expert report must provide only a fair summary of the expert’s opinions regarding the causal relationship between the failure of the health care provider to provide care in accord with the pertinent standard of care and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). Evans clearly stated in his report that Clear Lake’s own screening form indicated that Karber required “maximum assistance” with transfers, Karber’s physician’s orders stated “no weight bearing on the left leg and foot,” other records showed that Karber required “total assistance with transfers” and two helpers for safety, and Karber’s physical therapist documented that Karber could not control her left lower extremity during transfers. Evans also clearly stated that Karber’s medical records showed that she fell and heard a ‘pop’” during a transfer after putting “weight on her left lower extremity,” a subsequent x-ray revealed that “the fixation had come apart,” and Karber “needed to see an orthopedic surgeon in the morning.” Other physician notes confirmed that Karber experienced a “pop” after placing weight on her left leg. Based upon his review of these medical records, Evans opined that Karber had fractured her left femur a second time as a result of placing weight on her injured leg and, if she had received adequate assistance from two nurses, “it is unlikely that this new injury would have occurred.”

          Although Clear Lake complains that Evans’s opinions are conclusory and speculative, the pertinent facts, as articulated by Evans, are straightforward. Indeed, if Evans has fairly described Karber’s medical records in his report, these records themselves provide evidence of a casual connection between Karber’s fall and her fracture. Evans cited in his report the significant documentation detailing Karber’s needs for assistance and mandating the provision of two nurses to Karber during transfers. Clear Lake does not challenge the expert opinions of Evans and Frederick that Clear Lake breached the applicable standards of care by failing to ensure that Karber was transferred with the assistance of two nurses. Clear Lake’s argument that it “is within the realm of possibility” that Karber would have been injured, even if she had been provided additional assistance, misses the point. In his report, Evans was only required to explain the basis of his statements and to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. We conclude that the trial court acted within its discretion in determining that Evans, in his report, provided a fair summary of the causal relationship between Clear Lake’s alleged failure to provide adequate assistance and Karber’s injuries.   

          Accordingly, we hold that the trial court did not err in denying Clear Lake’s motion to dismiss Karber’s health care liability claims on the ground that Evans’s report was inadequate with respect to causation.   

          We overrule Clear Lake’s first and second issues.

Conclusion

          We affirm the order of the trial court.  

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Jennings, Hanks, and Bland.