Tenet Hospitals Limited, a Texas Limited Partnership D/B/A Sierra Medical Center v. Mariva J. Barajas , 451 S.W.3d 535 ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TENET HOSPITALS LIMITED, A §
TEXAS LIMITED PARTNERSHIP, No. 08-14-00048-CV
D/B/A/ SIERRA MEDICAL CENTER, §
Appeal from the
Appellant, §
County Court at Law No. 5
v. §
of El Paso County, Texas
MARIVA J. BARAJAS, §
(TC# 2013-DCV1930)
Appellee. §
OPINION
Appellant, Tenet Hospitals Limited, d/b/a/ Sierra Medical Center, appeals the trial court’s
denial of its motion to dismiss Appellee Mariva Barajas’s health care liability claim. Sierra
Medical Center (SMC) raises a single issue for our review. For the following reasons, we affirm
in part and reverse in part.
BACKGROUND
On March 17, 2011, Barajas underwent a total right knee replacement operation at SMC.
The following day, while still a patient at SMC, Barajas requested assistance to move from a
recliner to the bedside commode. A nurse attempted to help Barajas get up with a walker;
however, the recliner was not locked and Barajas “slid down” to the floor causing her
newly-operated knee to bend. A Hoyer lift was used to get Barajas, an obese patient, back into the
hospital bed. After the nurse notified Dr. Alvaro Hernandez, the doctor who had performed
Barajas’s knee replacement, of the fall, no new orders were given.
On March 21, 2011, Barajas was discharged from SMC and sent to Las Palmas Rehab
Hospital for therapy. On March 23, 2011, Barajas experienced some popping of the right knee,
her therapy was stopped, and x-rays were taken. The x-ray report was normal.
In April and May 2011, Barajas followed-up her care with Dr. Hernandez. On May 2,
2011, Barajas reported she was having pain and x-rays were taken. Barajas was diagnosed with
right patellar dislocation. On May 5, 2011, Dr. Hernandez performed right knee patellar
dislocation surgery on Barajas. On March 29, 2012, Barajas saw Dr. Charles Zaltz, Dr.
Hernandez’s partner, for a follow-up. In his medical note, Dr. Zaltz recorded that Barajas fell at
SMC the day after her right total knee replacement surgery and stated that the right patellar
dislocation and disruption of Barajas’s patellar mechanism found on May 2, 2011, was the result of
her fall at SMC on March 18, 2011.
In May 2013, Barajas sued SMC for medical negligence alleging that the hospital allowed
Barajas “to drop to the floor after the 3/17/11 surgery” and committed “[o]ther acts and/or
omissions of negligence.” Barajas timely served expert reports and the curricula vitae of
Registered Nurse Donna Holguin, and Drs. Rene Arredondo and John Allen. SMC subsequently
filed objections to the sufficiency of the three expert reports and moved to dismiss Barajas’s claim.
Specifically, SMC argued that Drs. Allen and Arredondo were not qualified to offer
opinions on the standard of care for registered nurses, and that their opinions as to causation were
conclusory. SMC similarly contended Nurse Holguin was unqualified to opine on the standard of
care for registered nurses in an acute care hospital setting, and that her report failed to adequately
2
address the standard of care applicable to SMC’s nursing staff and any alleged breaches. After a
hearing, the trial court overruled SMC’s objections and denied its motions to dismiss. This
interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West
2008).
DISCUSSION
In its sole issue on appeal, SMC challenges the expert reports filed by Barajas.
Specifically, SMC contends that the expert reports are not authored by qualified experts and that
the reports are conclusory as to causation.
Standard of Review
A trial court’s decision to grant or deny a motion to dismiss under Section 74.351 is
reviewed for an abuse of discretion. See American Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Tenet Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533
(Tex.App. – El Paso 2009, pet. denied). A trial court only abuses its discretion when it acts in an
unreasonable or arbitrary manner, without reference to any guiding rules or principles. See
Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Boada, 304 S.W.3d at 533. A trial court acts
arbitrarily and unreasonably if it could have reached only one decision, but instead reached a
different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.App. – Texarkana 2003, no pet.);
Boada, 304 S.W.3d at 533. A trial court also abuses its discretion when it fails to analyze or apply
the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re Kuntz,
124 S.W.3d 179, 181 (Tex. 2003)); Boada, 304 S.W.3d at 533. However, a trial court does not
abuse its discretion merely because it decides a matter within its discretion differently than a
reviewing court. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert.
3
denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).
Applicable Law
“[A] claimant shall, not later than the 120th day after the date each defendant’s original
answer is filed, serve on that party or the party’s attorney one or more expert reports, with a
curriculum vitae of each expert listed in the report for each physician or health care provider
against whom a liability claim is asserted.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)
(West 2011). If a plaintiff timely files an expert report and the defendant moves to dismiss
because of the report’s inadequacy, a trial court must grant the motion “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).” Id. § 74.351(l). The definition of an
expert report requires that the report contain a fair summary of the expert’s opinions as of the date
of the report 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. Id. § 74.351(r)(6) (West 2011). As the
“statute focuses on what the report discusses, the only information relevant to the inquiry is within
the four corners of the document.” Palacios, 46 S.W.3d at 878.
“In setting out the expert’s opinions on each of those elements, the report must provide
enough information to fulfill two purposes if it is to constitute a good faith effort.” Id. at 879.
The report must: (1) inform “the defendant of the specific conduct the plaintiff has called into
question;” and (2) “provide a basis for the trial court to conclude that the claims have merit.” Id.
If a report does not meet these purposes and omits any of the statutory requirements, it does not
constitute a good faith effort. Id. Nor does a report “that merely states the expert’s conclusions
4
about the standard of care, breach, and causation” fulfill these purposes. Id. Rather, the expert
must explain the basis of his statements to link his conclusions to the facts. Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002). However, “a plaintiff need not present evidence in the
report as if it were actually litigating the merits.” Palacios, 46 S.W.3d at 879. “The report can
be informal,” that is, “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.
THE PROFFERED EXPERTS’ QUALIFICATIONS
In Issue One, SMC argues that Nurse Holguin, and Drs. Allen and Arredondo lack the
qualifications to provide opinions on the standard of care for hospital floor nurses. SMC
maintains the curricula vitae and reports of the proffered experts fail to satisfy the requirements of
Section 74.402.
To be qualified as a medical expert on whether a hospital departed from an accepted
standard of health care, the proffered expert must satisfy the requirements of Section 74.402 of the
Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B)
(West 2011). Section 74.402 provides that:
(b) In a suit involving a health care liability claim against a health care provider, a
person may qualify as an expert witness on the issue of whether the health care
provider departed from accepted standards of care 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;1
(2) has knowledge of accepted standards of care for health care providers for
1
We agree with the parties that this subsection of section 74.402 is inapplicable in this case because the health care
provider here is SMC, a hospital, and not an individual. See Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d
571, 588 (Tex.App. – Beaumont 2011, no pet.); TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112 (Tex.App. – Fort Worth
2011, no pet.).
5
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.
(c) In determining whether a witness is qualified on the basis of training or
experience, the court shall consider whether, at the time the claim arose or at the
time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States
or a national professional certifying agency, or has other substantial training or
experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to
the claim.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(c) (West 2011). “Practicing health care”
includes:
(1) training health care providers in the same field as the defendant health care
provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or
registered in the same field as the defendant health care provider.
Id. § 74.402(a).
Not every licensed physician is automatically qualified to testify on every medical
question. Tenet Hospitals Ltd. v. Love, 347 S.W.3d 743, 749-50 (Tex.App. – El Paso 2011, no
pet.) (citing Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)). In determining whether a
witness is qualified to testify as an expert, the trial court focus should be on whether 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. Id. at 750.
Accordingly, a medical expert from one specialty may be qualified to provide an opinion if he has
practical knowledge of what is commonly done by doctors of a different specialty. Id. If the
6
subject matter is common to and equally recognized and developed in all fields of practice, any
physician familiar with the subject may testify as to the standard of care. Caviglia v. Tate, 365
S.W.3d 804, 810 (Tex.App. – El Paso 2012, no pet.) (citing Keo v. Vu, 76 S.W.3d 725, 732
(Tex.App. – Houston [1st Dist.] 2002, pet. denied)).
Nevertheless, the proffered medical expert’s expertise must be evident from the four
corners of his report and curriculum vitae. See generally Palacios, 46 S.W.3d at 878; Christus
Health Southwest Texas v. Broussard, 267 S.W.3d 531, 536 (Tex.App. – Beaumont 2008, no pet.).
The expert’s qualifications must appear in the report and cannot be inferred. See Salais v. Texas
Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 536 (Tex.App. – Waco 2010, pet. denied).
Whether a witness is qualified “to serve as an expert is within the trial court’s discretion.”
Palafox v. Silvey, 247 S.W.3d 310, 314 (Tex.App. – El Paso 2007, no pet.). An expert report by a
person unqualified to testify does not constitute a good faith effort to comply with the statutory
definition of an expert report. Foster v. Zavala, 214 S.W.3d 106, 116 (Tex.App. – Eastland 2006,
pet. denied) (citing In re Windisch, 138 S.W.3d 507, 511 (Tex.App. – Amarillo 2004, orig.
proceeding) (examining predecessor to Section 74.351)).
Nurse Holguin’s Report
SMC contends Nurse Holguin is unqualified to testify as an expert on the standard of care
for hospital floor nurses providing post-surgical care to patients in March 2011 because “Nurse
Holguin does not meet the knowledge requirements of Section 74.402(b)(2).” SMC also asserts
Nurse Holguin is not qualified to opine on the applicable standard of care based on her training and
experience. In essence, SMC argues Nurse Holguin does not satisfy Section 74.402(b)(3). See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3) (West 2011).
7
Pursuant to Section 74.402(b)(2), Nurse Holguin may qualify as an expert witness on the
issue of whether SMC departed from accepted standards of care only if she 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[.]” Id. § 74.402(b)(2). This case involves the
post-operative care of an obese hospital patient who had total right knee replacement surgery.
Barajas’s alleged that due to the negligence of SMC and its floor nurses she required additional
knee surgery after SMC and its floor nurses failed to prevent her from falling to the floor as she
was assisted from a recliner to the bedside commode.
Nurse Holguin’s curriculum vitae reflects that she has a B.S.N. and M.S.N., and that she
has worked in various nursing positions at several acute care hospitals including SMC. From
1991 to 1996, she held the title of Director of Quality Management at Providence Memorial
Hospital where she was in charge of quality management, risk management, safety, “ProvCare and
Infection Control.” She also worked as the Director of Nursing Services at a long-term care
facility where she oversaw all aspects of nursing client care. From 1999 to January 31, 2011,
Nurse Holguin was the Senior Director of Quality Improvement and Occupational Health at an
ambulatory clinic where she acted as the Director of Nursing, Infection Control Nurse, Safety
Officer, and Director of the facility Safety Program.
In her expert report, we note Nurse Holguin does not expressly state she is familiar with the
standard of care for nurses for the prevention of falls of obese patients in a hospital setting nor does
she state that she has knowledge of the applicable standard of care. However, she does detail
knowledge of what SMC floor nurses should have done when assisting an obese patient, who had
recently had a total knee replacement, move from a recliner to the bedside commode.
8
Specifically, Nurse Holguin’s expert report provides:
Next Nursing note is on 3-18-2011 1330 by April Hurtado (no clinical designation
noted). According to the patient she had been “assisted up into a chair earlier by 6
or 7 staff members.” The Nursing Note at 1330 states “Patient called for
assistance to bedside commode was sitting in recliner chair, attempted to help
patient with walker and the chair was not locked, patient slid down to floor knee did
bend, patient okay.”
This event/fall occurred on 3-18-2011 the first day after the total knee replacement
procedure. Any nursing staff member entering this patients’ room should have
taken note of the patient[’]s size and could easily have asked the patient how much
assistance had been provided earlier to help her into the recliner chair. These two
pieces of information would have provided the basis for indicating whether more
help was needed to safely assist this patient rather than receiving assistance from
one female staff, who was reportedly in a state of advanced pregnancy. The
patient reports that she asked whether more help should be summoned but was told
by the person in the room that more help was not necessary.
The nurses note indicates that the “chair was not locked” – another failure on the
part of the staff member who undertook this assist – not assuring that the chair
would not move as the patient attempted to stand up from the sitting position to a
standing position to use the walker to then move to the bedside commode.
Instead of being safely moved from the chair to the bedside commode the patient
went down to the floor and the newly operated knee “bent”, according to the
documentation. The staff member who had undertaken the transfer did not keep
the patient safe from going to the floor and while going to the floor the knee bent.
…
Had proper assessment been done prior to the unidentified staff member attempting
to assist Ms. Barajas this unfortunate “fall” should not have occurred. The staff
member failed to provide for this patient[’]s safety. Ms. Barraza [sic] was
provided with and signed a “Patient Safety Tips” form on admission to the hospital.
This form indicates that the patient is to: “Call for help before getting up from a
chair or bed” and yet when Ms. Barajas did call for help she was not kept safe
because the assisting person did not take into account all of the factors about her
that would have indicated the need for the assistance of more than one person. A
staff member skilled in the postoperative care of Total Knee Patients should have
been called on to make a determination of what type of assistance was needed if the
person at the bedside was unable to determine what would be safest for this patient.
Nursing Care of this newly operated orthopedic patient was not appropriate/not
9
adequate since the patient was not kept safe and ended up on the floor which was
NOT the desired outcome of a transfer from a chair to a bedside commode.
Because of her experience as a registered nurse as set forth in her curriculum vitae and the detailed
description of the applicable standard of care for floor nurses contained in her report, the trial court
could have reasonably concluded that Nurse Holguin 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 [Barajas’s] claim[.]” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2). As
such, we conclude Barajas satisfied Section 74.402(b)(2).
To determine whether a witness is qualified “on the basis of training or experience,” the
court shall consider “whether, at the time the claim arose or at the time the testimony is given, the
witness: (1) is certified by a licensing agency…or has other substantial training or experience, in
the area of health care relevant to the claim; and (2) is actively practicing health care in rendering
health care services relevant to the claim.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c)
(West 2011). SMC argues Nurse Holguin in not a qualified expert because “[she] is not a licensed
nurse and it is unclear whether she was a licensed nurse when she gave her opinions as her
[curriculum vitae] does not show when she was licensed.” SMC maintains Nurse Holguin’s
curriculum vitae shows she did not have substantial training or experience as a hospital floor nurse
at the time Barajas’s claim arose on March 18, 2011, or on September 9, 2013, at the time she gave
her expert opinion. SMC also advances that Nurse Holguin’s report and curriculum vitae do not
reflect she was actively practicing health care at the time the claim arose or at the time she gave her
report.
Despite SMC’s argument to the contrary, Nurse Holguin’s curriculum vitae clearly
indicates she was certified by a licensing agency on March 18, 2011, at the time Barajas’s claim
10
arose as it shows that she is licensed by the Texas Board of Nursing and that her license would
expire on August 31, 2013. Accordingly, Nurse Holguin meets the first prong of section
74.402(c).
Under the second prong of Section 74.402(c), Nurse Holguin must be “actively practicing
health care in rendering health care services relevant to the claim.” Id. § 74.402(c)(2). SMC
contends Nurse Holguin cannot meet the second prong because she was not actively practicing
health care at any relevant time.
Section 74.402(a) defines “practicing health care” as including “(1) training health care
providers in the same field as the defendant health care provider at an accredited educational
institution; or (2) serving as a consulting health care provider and being licensed, certified, or
registered in the same field as the defendant health care provider.” Id. § 74.402(a)(1)-(2).
While nothing in Nurse Holguin’s curriculum vitae or report indicate that she has experience
training health care providers at an accredited education institution, they do show that she is a
licensed, registered nurse, who is serving as a consulting health care provider. In her expert
report, Nurse Holguin states, “I have reviewed the Nurses Notes and other portions of the Medical
Record of ... Barajas…. In order to determine whether the Nursing Care provided to … Barajas
was appropriate on 3-18-2011 when she was being assisted up out of a chair.” Thus, it is clear
Nurse Holguin was serving as a consulting health care provider at the time she gave her testimony
in September 2013.2
Relying on Certified EMS Inc. v. Potts, 355 S.W.3d 683, 690 (Tex.App. – Houston [1st
Dist.] 2011), aff’d, 392 S.W.3d 625 (Tex. 2013), Barajas argues that because Nurse Holguin was a
licensed nurse at the time the claim arose and is a nurse consultant witness, she is sufficiently
2
We note SMC does not dispute Barajas’s statement that Nurse Holguin served as nurse consultant expert witness.
11
qualified to be an expert under Section 74.402(a)-(c). In Potts, the appellant objected to a nurse’s
qualifications to render an expert opinion because she failed to state that she actively practiced in a
field requiring her to provide nursing care in a hospital setting. Id. at 690. After looking at the
nurse’s curriculum vitae and report, the appellate court found the trial court did not abuse its
discretion in determining that a nurse was qualified to offer an expert report. Id. The facts in
Potts are distinguishable from the facts in this case.
In Potts, the trial court found no abuse of discretion because the nurse’s curriculum vitae
stated that “she is a ‘Nurse Consultant/Expert Witness’ and a ‘Quality Review Nurse’ for the
Texas Department of Aging and Disability Services,” and both the curriculum vitae and report
showed that “she is licensed as a nurse and holds a number of nursing certifications.” Id. Here,
it is unclear whether Nurse Holguin was licensed at the time she gave her expert testimony
(September 9, 2013), as her curriculum vitae reflects that the expiration date of her nursing license
was August 31, 2013. Additionally, nothing in Nurse Holguin’s curriculum vitae or report reveal
that she served as a consulting health care provider at the time Barajas’s claim arose. As such, we
conclude Nurse Holguin failed to satisfy the second prong of section 74.402(c) and therefore, the
trial court abused its discretion in determining Nurse Holguin was qualified to offer an expert
report pursuant to Section 74.402(b)(3). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3).
Dr. Allen’s Report
Dr. Allen’s curriculum vitae shows that he is a British trained orthopaedic surgeon and is
actively licensed in New Mexico. As part of his medical practice in the United States, Dr. Allen
has, in part, worked as an Orthopaedic Fellow at Children’s Hospital Medical Center and an
Associate in Orthopaedics at Massachusetts General Hospital in Boston. He has served as an
12
Instructor in Orthopaedics at Harvard University. He has acted as a consultant for Liberty Mutual
Rehabilitation Center and Eunice Kennedy Shriver Center for Mental Retardation in Boston. He
has worked as an orthopaedic surgeon in various capacities in both the United States and United
Kingdom. His current office is located in Albuquerque.
In his report, Dr. Allen provided the following standard of care:
The standard of care for the floor nurse at Sierra Medical Center is to use assistance
(other personnel) to assist an obese patient back from an unlocked recliner chair to
bed and to lock that chair before the patient attempts to stand up.
The nurse at Sierra Medical Center breached the standard of care by not assuring
the recliner chair was locked before Ms. Barajas attempted to stand at around 1330
on 03/18/2011. The nurse also breached the standard of care by not seeking
assistance of other nurses or aides to assist Ms. Barajas to ambulate from the chair
to the bedside commode as she was an obese, newly postoperative knee patient.
Dr. Allen states his education and experience are relevant to the review of the medical care Barajas
received by nurses at SMC. He further states that:
During the many years of [his] orthopedic surgery practice [he has] evaluated
patients who have fallen after surgery and ha[s] interacted with hospital nursing
staff on prevention of falls by patients before and after surgery, including patients
who are obese.
SMC contends Dr. Allen “fails to meet the requirements to qualify as an expert in this
case” because the four corners of his curriculum vitae and report fail to demonstrate that he is
qualified to opine on the standard of care for hospital floor nurses furnishing post-surgical care to
hospital patients or that he was actively rendering medical care services when the claim arose in
March 2011, or when he offered his opinion in September 2013. Although SMC relies on this
Court’s decision in Love to support their argument, we find Love is distinguishable. In Love, we
held the curricula vitae and reports of two physicians failed to show they were qualified to opine
on hospital administration procedures regarding staffing specialists and transferring patients
13
because the curricula vitae and reports contained only one sentence stating that the experts were
familiar with the responsibilities, duties, and expectations a hospital provides to its patients.
Love, 347 S.W.3d at 750-51. We also noted the curricula vitae and reports merely recited that the
doctors were specialists who served on various committees, but failed to demonstrate whether
their experience involved setting hospital policies and procedures, requiring hospitals to staff
certain specialists, or running a hospital. Id. at 751.
Here, the four corners of Dr. Allen’s curriculum vitae and report indicate he is an
orthopaedic surgeon actively licensed in New Mexico, that he has an office in Albuquerque, and
that he has worked as an orthopaedic surgeon in various capacities. Moreover, Dr. Allen states
that during his practice as an orthopaedic surgeon, he has evaluated patients who have fallen after
surgery and that he has interacted with hospital nursing staff on pre- and post-operative fall
prevention of patients, which included obese patients. Thus, unlike the experts in Love, Dr.
Allen’s curriculum vitae and report explain why and how he is qualified to render an opinion on
the applicable standard of care.
SMC also argues Dr. Allen is unqualified to give expert testimony because he is not
actively practicing health care in rendering health care services related to the claim. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.402(c)(2) (West 2011). As already discussed above,
“practicing health care” includes “(1) training health care providers in the same field as the
defendant health care provider at an accredited educational institution; or (2) serving as a
consulting health care provider and being licensed, certified or registered in the same field as the
defendant health care provider.” Id. § 74.402(a)(1)-(2). It is clear Dr. Allen’s curriculum vitae
reflects he is a licensed orthopaedic surgeon who, in the past, has acted as a consultant health care
14
provider and trained orthopaedic students at Harvard. However, we do not find any indication he
was serving as a consultant health care provider or training health care providers in the same field
at an accredited educational institution at the time Barajas’s claim arose or at the time Dr. Allen
gave his testimony. See Select Specialty Hospital-Houston Ltd. Partnership v. Simmons, No.
01-12-00658-CV, 2013 WL 3877696, at *5 n.2 (Tex.App.—Houston [1st Dist.] Jul 25, 2013, no
pet.) (expert nurse was qualified as her curriculum vitae demonstrated she was currently working
as a nurse consultant).
Accordingly, we find the trial court abused its discretion in determining that Dr. Allen was
qualified to opine on the applicable standard of care and that he was actively practicing health care
at the time the claim arose or his testimony was given as set out in sections 74.402(a) and (c).
Dr. Arredondo’s Report
SMC challenges Dr. Arredondo’s report on the same grounds as Dr. Allen’s report. SMC
contends Dr. Arredondo’s curriculum vitae “fails to provide information on his education,
experience and training that qualifies him to opine on hospital floor nurses assisting hospital
patients post-surgery.” SMC argues Dr. Arredondo is precluded from qualifying as an expert
because he is not actively practicing health care.
In determining whether Dr. Arredondo meets the requirements of Section 74.402(b)(3), we
look at whether he is (1) certified by a licensing agency or has substantial training or experience
relevant to the claim, and (2) whether he is actively practicing health care relevant to the claim.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c). According to his curriculum vitae, Dr.
Arredondo is licensed by the Texas State Board of Medical Examiners. From 1975 to 2009, Dr.
Arredondo’s private practice was limited to orthopaedic surgery and physical rehabilitation. In
15
his expert report dated August 23, 2013, Dr. Arredondo states that he reviewed Barajas’s case and
was submitting his preliminary report. He goes on to state that he is an orthopaedic surgeon, that
he has been an orthopaedic surgeon since 1975, and that he is board certified by the American
Board of Orthopaedic Surgery. He also states that his education and experience are relevant to
the review of medical care rendered by nurses at SMC to Barajas.
Like Dr. Allen, Dr. Arredondo explains that: “During the many years of [his] orthopedic
surgery practice, [he has] evaluated patients who had falls after surgery. Over the many years of
[his] orthopedic surgery practice, [he has] interacted with hospital floor nurses about prevention of
falls in obese, post-operative patients.” Dr. Arredondo also sets forth the identical standard of
care and explanation of how the standard of care was breached as provided by Dr. Allen in his
expert report.
Dr. Arredondo’s curriculum vitae and report show that he is certified by a licensing
agency, and possesses substantial training or experience relevant to Barajas’s claim. The
curriculum vitae and report also demonstrate Dr. Arredondo is actively practicing health care as he
expressly states “I am an orthopedic surgeon. I have been an orthopedic surgeon since 1975. I
am board certified by the American Board of Orthopaedic Surgery.” Moreover, Dr. Arredondo’s
statement that he has reviewed Barajas’s case and was submitting his preliminary report
establishes he was serving as a consultant at the time he gave his expert testimony. Based on the
four corners of the curriculum vitae and report, we find no abuse of discretion as the trial court
could have reasonably concluded that Dr. Arredondo satisfied both prongs of Section 74.402(c)
and determined that he was qualified as an expert under Section 74.402(b)(3). See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.402(c); Potts, 355 S.W.3d at 690 (finding no abuse of discretion in
16
trial court’s determination that nurse was qualified to offer an expert report because her curriculum
vitae stated that “she is a ‘Nurse Consultant/Expert Witness’ and a ‘Quality Review Nurse’ for the
Texas Department of Aging and Disability Services,” and both the curriculum vitae and report
showed that “she is licensed as a nurse and holds a number of nursing certifications”).
CAUSATION
SMC contends the trial court abused its discretion because the proffered expert reports are
conclusory on the issue of causation. SMC also maintains Nurse Holguin’s report is improper
because she, as a non-physician, is not legally qualified to opine on medical causation. We agree
that a nurse is not qualified to opine on medical causation. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(5)(C) (West 2011); Boada, 304 S.W.3d at 543 (finding nurse unqualified to
provide expert opinion on causation).
In response, Barajas maintains Nurse Holguin’s opinion is not on causation, but on the
standard of care and breach of that standard. We agree with Barajas. Nothing in Nurse
Holguin’s report summarizes the causal relationship between the breaches of the applicable
standards of care and the alleged injuries, harms, and damages suffered by Barajas. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 74.351(r)(6), 74.403(a). Accordingly, SMC’s contention is without
merit. We now address the reports of Drs. Allen and Arredondo to determine whether their
opinions on causation are conclusory.
SMC argues the reports of Drs. Allen and Arredondo do not represent a good faith effort to
comply with the statutory requirements. According to SMC, the opinions of Drs. Allen and
Arredondo are conclusory because “they wholly fail to provide any causal link between the
bending of a knee from sliding down a chair and a right patellar dislocation of the knee diagnosed
17
almost two months later.” SMC further argues “[t]he reports…are completely devoid of any
factual statements explaining how bending the knee caused the right patellar dislocation…other
than the conclusion that it did.”
A causal relationship is established by proof that the negligent act or omission was a
substantial factor in bringing about the harm, and that, absent this act or omission, the harm would
not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249
(Tex.App. – San Antonio 2004, no pet.). The mere provision of some insight into the plaintiff’s
claims does not adequately address causation. Wright, 79 S.W.3d at 53. Under Palacios, an
expert report does not need to conclusively prove the case, however, we cannot infer causation.
The report cannot “merely state conclusions about any of the elements.” Castillo v. August, 248
S.W.3d 874, 883 (Tex.App. – El Paso 2008, no pet.). There are no magic words required to
establish causation. Wright, 79 S.W.3d at 53. However, the expert report must explain the basis
for the causation opinions by linking the expert’s conclusions to the alleged breach. Id.
Drs. Allen and Arredondo’s reports indicate the doctors reviewed Barajas’s medical
records from SMC, Las Palmas Rehab Hospital, Las Palmas Medical Center, Orthopaedic
Surgeons Associates, and Nurse Holguin’s report. The doctors state that in their opinion as
orthopedic surgeons, “the fall that Ms. Barajas suffered” on March 18, 2011 at SMC “was the
proximate cause of the right patellar dislocation” and tearing “that Dr. Hernandez found” in
surgery on May 5, 2011. According to both physicians, the March 18, 2011 fall “resulted in pain
to Ms. Barajas,” the need for right knee repair surgery on May 5, 2011, and “rehabilitation, with
associated medical costs.”
18
In their reports, Drs. Allen and Arredondo provide an “Overview of Medical Care of
[Barajas]” which contains excerpts from Barajas’s medical records, including SMC’s nursing
notes. Both reports note that after having had right total knee replacement surgery, Barajas fell
and bent her newly-operated knee when she was assisted out of an unlocked recliner chair on
March 18, 2011. At that time, it was noted that Barajas was crying. On March 20, 2011, Barajas
was reported to be aching and unsteady. Both expert reports also note that Dr. Hernandez’s
discharge summary dated March 25, 2011, does not state he was informed Barajas had fallen and
bent her newly-operated knee.
In the “Opinions” section of their reports, after setting forth the applicable standard of care,
Drs. Allen and Arredondo state that the SMC nurse breached the standard of care by “not assuring
the recliner chair was locked before Ms. Barajas attempted to stand” and “by not seeking
assistance of other nurses or aides to assist Ms. Barajas to ambulate from the chair to the bedside
commode as she was an obese, newly post-operative knee patient.” Drs. Allen and Arredondo
then reference a note from Dr. Zaltz dated March 29, 2012, in which Dr. Zaltz stated that Barajas
fell down at SMC the day after her right total knee surgery, and noted that the right patellar
dislocation and disruption of the patellar mechanism that was found on May 2, 2011, was the result
of the March 18 fall. Drs. Allen and Arredondo expressly state that they agree with Dr. Zaltz’s
opinion of the cause of Barajas’s right patellar dislocation and that they agree with the statements
made in Nurse Holguin’s report.
We conclude that the reports of Drs. Allen and Arredondo adequately discuss causation so
as to inform SMC of the conduct Barajas has called into question and to provide a basis for the trial
court to conclude that Barajas’s claim has merit. See Palacios, 46 S.W.3d at 879. Drs. Allen and
19
Arredondo’s reports on causation are not conclusory. The expert reports state what should have
been done by SMC and what happened as a result of their failure to adhere to the applicable
standard of care. Accordingly, we conclude Drs. Allen and Arredondo’s reports represented an
objective good faith effort to provide a fair summary of the causal relationship between SMC’s
actions and Barajas’s injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46
S.W.3d at 878-79.
Lastly, SMC contends Drs. Allen and Arredondo’s reports are also conclusory because
they fail to rule out other potential causes of Barajas’s injury. SMC points to Drs. Allen and
Arredondo’s reference to a note in Barajas’s medical record indicating that during rehab therapy
she experienced popping of her right knee. However, as correctly noted by Barajas, nothing in
Section 74.351 requires a preliminary expert report to rule out every possible cause of injury,
harm, or damages. See Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278
S.W.3d 552, 562-63 (Tex.App. – Dallas 2009, no pet.); TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(s) (West 2011) (limiting discovery before an expert report and curriculum vitae are filed).
Moreover, a plaintiff need not present evidence in the report as if it were actually litigating the
merits. Wright, 79 S.W.3d at 52. As the Palacios court stated, “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.” Palacios, 46 S.W.3d at 879.
The trial court therefore did not abuse its discretion in overruling SMC’s objections
regarding causation and denying its motions to dismiss. Palacios, 46 S.W.3d at 875; Boada, 304
S.W.3d at 533.
Issue One is sustained in part and overruled in part.
20
REMEDY
Because we have concluded that the trial court abused its discretion in overruling the
objections to Nurse Holguin’s and Dr. Allen’s reports on the basis of their respective
qualifications, and thereby, in denying SMC’s motion to dismiss, we remand the case to the trial
court to consider granting the thirty-day extension request by Barajas to cure the deficiencies in
Nurse Holguin’s and Dr. Allen’s reports. See Love, 347 S.W.3d at 757 (after concluding trial
court erred in overruling objections to expert report and in denying hospital’s motion to dismiss,
the appellate court determined the appropriate relief was to remand case to trial court for
consideration of whether deficiencies were curable and to determine whether to grant extension of
time).
CONCLUSION
We reverse the trial court’s judgment as to Nurse Holguin’s and Dr. Allen’s expert reports
and remand for proceedings consistent with this opinion. We affirm the trial court’s judgment as
it pertains to the expert report of Dr. Arredondo.
YVONNE T. RODRIGUEZ, Justice
November 21, 2014
Before McClure, C.J., Rodriguez, J., and Parks, Judge
Parks, Judge, sitting by assignment
21