Valley Baptist Medical Center v. Maria C. Gonzales ( 2007 )

NUMBER 13-06-371-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

VALLEY BAPTIST MEDICAL CENTER, Appellant,

v.

MARIA C. GONZALES, Appellee.

On appeal from the 197th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Garza   

  Valley Baptist Medical Center has filed this interlocutory appeal challenging the trial court's order denying a motion to dismiss certain health care liability claims brought against Valley Baptist by Maria Gonzales. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9), 74.351(b) (Vernon Supp. 2006). Although Gonzales filed health care liability claims against a number of different defendants, including her physicians, this interlocutory appeal involves only the two claims asserted against Valley Baptist. The other claims remain pending before the trial court. We reverse the trial court's order and remand the case for further proceedings consistent with this opinion.

I. Background

The claims against Valley Baptist arise from two separate incidents that occurred while Gonzales was a patient at Valley Baptist. The first claim involves allegations of a "malpositioned catheter, which migrated extravascularly, and caused fluid to accumulate in the mediastinum and both pleural spaces that ultimately led to acute respiratory failure." The second claim involves allegations that Gonzales sustained injuries in falling from an "angiographic table" on which she was placed, but not secured, by Valley Baptist staff. This appeal ensued after the trial court denied a motion to dismiss filed by Valley Baptist. In the motion and a supplemental brief filed in support of the motion, Valley Baptist argued that the two expert reports produced and relied upon by Gonzales were inadequate as a matter of law. In the analysis that follows, we give our reasons for concluding that the reports were inadequate. See Tex. R. App. P. 47.1. II. Applicable Law

The Medical Liability and Insurance Improvement Act ("MLIIA") governs the adjudication of health care liability claims in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 74.000, et seq. (Vernon 2005 & Vernon Supp. 2006). Section 74.351 requires plaintiffs in suits involving health care liability claims to submit an expert report. Id. § 74.351 (Vernon Supp. 2006). The statute defines an expert report as "a written report by an expert that provides a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 74.351(r)(6). An expert report "need not marshal all the plaintiff's proof," but it must represent "a good-faith effort to comply with the statutory definition of an expert report" in the MLIIA. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) ("A 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)."). A good-faith effort informs the defendant of the specific conduct called into question and provides a basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).

Rule 702 of the Texas Rules of Evidence requires that an expert be qualified "by knowledge, skill, experience, training, or education" regarding the issues. Tex. R. Evid. 702. The MLIIA imposes additional restrictions on who may testify as an expert, including the following restriction:

Expert means . . . 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, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(c).

III. Analysis

Gonzales submitted two expert reports in support of her claims against Valley Baptist. The first report was written by Steven A. Sahn, M.D. It is limited to the first claim involving allegations of a "malpositioned catheter." The second report was written by Ann Earhart, a clinical nurse specializing in medical imaging. It includes opinions related to both claims against Valley Baptist.

Before addressing the merits of the appeal, we note the appropriate standard of review, which requires this Court to review the trial court's ruling for abuse of discretion. See Palacios, 46 S.W.3d at 878. In assessing the trial court's decision, we are especially mindful of the claimant's responsibility to provide as to each defendant, a fair summary of the expert's opinions about the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878-79.

We begin with the first claim involving a "malpositioned catheter." Although Dr. Sahn's report details his professional opinion concerning the negligence of the physicians involved in the placement and maintenance of the catheter, his report does not identify or attempt to explain the standard of care applicable to Valley Baptist or any deviations therefrom that occurred when Gonzales was a patient at Valley Baptist. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878; Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 366 (Tex. 1987) (holding that the standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances). Dr. Sahn's report also fails to identify a causal connection between the conduct of Valley Baptist and the injuries and damages now claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). As such, his report fails to provide an adequate basis for concluding that Gonzales's first claim has merit. See Palacios, 46 S.W.3d at 879.

Although Nurse Earhart's report discusses the standard of care applicable to hospital nursing staff, her report does not fulfill the causation requirement under the MLIIA. Only a physician may submit an expert report about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in a health care liability claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C). ⁽¹⁾ Accordingly, we conclude that the reports are deficient on the element of causation for the first claim against Valley Baptist. See id.; Palacios, 46 S.W.3d at 878-79.

The second claim against Valley Baptist is also unsupported by an adequate expert report on the element of causation. Although Dr. Sahn submitted an expert report regarding the first claim, his report does not address any of the allegations raised in the second claim. Only Nurse Earhart's report discusses the second claim, and as noted above, this is problematic because a nurse is not an "expert" under the MLIIA for purposes of giving expert opinion testimony on causation. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C).

According to Gonzales, no expert report is required for the second cause of action because it is based on the theory of res ipsa loquitur. We disagree. As a general rule, res ipsa loquitur does not apply in medical-malpractice cases. Palacios, 46 S.W.3d at 880; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005). Res ipsa loquitur, meaning "the thing speaks for itself," is used in certain limited types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant's negligence to support such a finding. Haddock v. Arnspiger, 793 S.W.2d 950, 951 (Tex. 1990); Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982); Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 250 (Tex. 1974). Res ipsa loquitur is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Marathon Oil, 632 S.W.2d at 573; Mobil Chem., 517 S.W.2d at 251. Res ipsa loquitur is simply a rule of evidence by which negligence may be inferred by the jury; it is not a separate cause of action from negligence. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982). Although Texas courts have generally recognized that res ipsa loquitur is inapplicable in medical malpractice cases, exceptions have been allowed when the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at 951. Examples of such exceptions include negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. Id.

We conclude that the second cause of action against Valley Baptist falls outside the narrow scope of operation currently recognized for the theory of res ipsa loquitur in health care liability claims. As the Texas Supreme Court explained in Palacios, hospitals do not have an absolute duty to prevent falls on their premises. See Palacios, 46 S.W.3d at 878. We therefore cannot conclude that Valley Baptist was negligent solely because one of its patients fell from an examining table. Although the character of the accident suggests the possibility of medical negligence, the specific standard of care applicable to patients undergoing the treatment provided to the claimant in this case and any deviations from that standard are issues of a technical nature and are therefore better addressed to experts than laymen. See Tex. R. Evid. 702. The same holds true for the causal link between any deviations from the standard of care and the injuries and damages now alleged. ⁽²⁾ See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C), (r)(6). Accordingly, compliance with the expert report requirements set forth in the MLIIA was mandatory. We sustain the issues raised by Valley Baptist on appeal.

III. Conclusion

Although we have sustained the issues raised on appeal, we conclude that it would be inappropriate to dismiss Gonzales's claims with prejudice, as requested by Valley Baptist. The reports are deficient, but they were timely filed. The MLIIA specifically provides that the trial court has discretion to grant one 30-day extension to cure deficiencies in a timely-filed expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). In her written response to the motion filed by Valley Baptist, Gonzales defended the adequacy of the expert reports, but she also requested a 30-day extension to cure any deficiencies found by the trial court. Having concluded that the reports are deficient, we further conclude that it is appropriate for the trial court to determine whether Gonzales should be granted a 30-day extension to cure the deficiencies. See Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex. App.--Corpus Christi 2006, no pet.); Longino v. Crosswhite, 183 S.W.3d 913, 918 n.2 (Tex. App.--Texarkana 2006, no pet.). Accordingly, the case is remanded for further proceedings consistent with this opinion.     

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 8th day of February, 2007.

1. Although the MLIIA includes exceptions to this rule for podiatrists and dentists, those exceptions are not applicable to this case. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(D), (E) (Vernon Supp. 2006).

2.

In reaching this conclusion, we are also influenced by the highly-technical nature of the report submitted by Nurse Earhart. Although Nurse Earhart is not statutorily authorized to submit an expert report on the issue of causation, her report and the attached curriculum vitae provide a basis for concluding that she is qualified under a separate provision of the MLIIA to testify "regarding whether a health care provider deviated from accepted standards of health care." See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B) (Vernon Supp. 2006). To the extent Nurse Earhart was qualified to testify as an expert under the foregoing provision, her report indicates that the accident occurred during the course of medical treatment and that the procedure administered to Gonzales involved specific standards of care, which according to Nurse Earhart, were not observed by the staff of Valley Baptist. Although the consequences might be severe for the claimant in this instance, we would be remiss to conclude that causation is a fact issue within the ken of ordinary jurors in a case such as this, where familiarity with the standard of care itself requires technical expertise.