W.B.M. Management Company D/B/A Vivians Nursing Home v. Mary Flores ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00008-CV
W.B.M. MANAGEMENT COMPANY
D/B/A VIVIANS NURSING HOME, APPELLANT
V.
MARY FLORES, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 101179-E, Honorable Douglas Woodburn, Presiding
April 25, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This is an interlocutory appeal in a health care liability suit.1 Appellant W.B.M.
Management Company D/B/A Vivians Nursing Home (“the Home”) appeals the trial
court’s order overruling its objections to an expert’s report and denying its motion to
dismiss the suit. We will reverse the trial court’s order and remand the cause to the trial
court for dismissal.
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2012).
Background
Appellee Mary Flores filed suit against the Home after the death of her mother
Dionisia Dominguez Gomez, alleging the Home was negligent in its care and treatment
of her mother. Flores’ amended pleadings alleged in particular the Home’s employees
negligently failed to diagnose timely and treat her mother’s urinary tract infection,
leading eventually to her mother’s death.
In May 2013, Flores served the Home with the report and curriculum vitae of
James E. Moulsdale, M.D., F.A.C.S.2 The Home timely objected to the report. After
Flores responded, the trial court heard the Home’s objections in September 2013. The
trial court found the report deficient, and granted a 30-day extension to address the
identified deficiencies.
The amended report was filed in late October 2013. The Home again filed
objections and moved to dismiss Flores’ claims pursuant to section 74.351(b) of the
Civil Practice & Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West
2013). The trial court heard argument at a hearing in December 2013, overruled the
objections to the amended report and denied the Home’s motion to dismiss. The Home
has brought this interlocutory appeal.
2
Dr. Moulsdale is a board-certified urologist who has practiced in the field for
over 34 years. He holds accreditation in a number of urological fields, and has
published several articles. The Home does not challenge Moulsdale’s qualifications on
appeal.
2
Analysis
Through one issue, the Home challenges the sufficiency of Moulsdale’s amended
expert report, contending the report was “impermissibly speculative and conclusory” in
its attempt to describe the “causal relationship between the alleged breach of the
standard of care by [the Home] and the death of Dionisia Dominguez Gomez.” The
Home’s issue also contends the amended report inadequately described the applicable
standard of care and its alleged breach.
We review a trial court's decision on a motion to dismiss a health care liability
claim for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 875 (Tex. 2001); 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.
Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). 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. Harris Cnty. Hosp.
Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
However, an incorrect construction of the law or a misapplication of the law to
undisputed facts is an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding) (“A trial court has no ‘discretion’ in determining what the
law is or applying the law to the facts”); see Perry Homes v. Cull, 258 S.W.3d 580, 598
n.102 (Tex. 2008) (quoting Walker).
3
A health care liability claimant must timely provide each defendant health care
provider with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351; 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. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
If a defendant files a motion challenging the adequacy of the claimant's 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. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l).
Making that inquiry, the court considers only the information contained within the four
corners of the report. Palacios, 46 S.W.3d at 878. Although the claimant need not
marshal all her proof in the report, the report must include the expert's opinion on each
of the elements identified in the statute. Palacios, 46 S.W.3d at 878-79; Gray, 189
S.W.3d at 859.
To constitute a good faith effort, in setting out the expert's opinions on the
standard of care, the breach of the standard and the causative relationship between the
breach and the injury, harm or damages claimed, the report must provide enough
information to fulfill two purposes. Palacios, 46 S.W.3d at 879. First, the report must
inform the defendant of the specific conduct the claimant has called into question. Id.
Second, the report must provide a basis for the trial court to conclude that the claim has
merit. Id. A report that merely states the expert's conclusions does not fulfill these two
4
purposes. Id. “Rather, the expert must explain the basis of his statements to link his
conclusions to the facts.” Bowie, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d
882, 890 (Tex. 1999)). But a claimant 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
may be informal in that the information in the report need not meet the same
requirements as the evidence offered in a summary-judgment proceeding or trial. Id.
In Moulsdale’s October 2013 report, he stated:
I have been asked to review the care rendered to the above-
captioned individual in January, 2011. She was, at that time, a resident of
Vivians Nursing Home. Historically, the patient had had a CVA in the
remote past, leaving her extremely debilitated and unable to care for
herself, necessitating nursing home placement. I reviewed the records
from Vivian's Nursing Home for the period of August, 2010 through
January, 2011. On January 10, 2011, the patient was found to have
increasing mental confusion and a probable urinary tract infection. She
was subsequently taken by ambulance to Baptist St. Anthony Hospital in
Amarillo, Texas, where she was found to have a severe urinary tract
infection and probable urosepsis. She was treated aggressively and
appeared to recover but was later sent to hospice care and expired there.
The standard of care applicable to this type of patient is careful
monitoring, especially since she was unable to communicate any
problems she might be experiencing. Careful monitoring would include
taking her vital signs (i.e. blood pressure, pulse rate, body temperature,
and respiratory rate) at a minimum of once per day in order to detect any
changes in her condition. Especially in a debilitated patient, it is essential
to monitor vital signs in order to detect changes in the patient’s condition,
such as urinary tract infection, since the patient is not able to alert the staff
on his/her own.
In reviewing the nursing home records, I found notes stating that
Ms. Gomez’s vital signs should be taken only once per week. The nursing
home records further indicate that Ms. Gomez’s vital signs were, in fact,
only taken once per week. Had her vital signs been taken more frequently,
at a minimum of once per day, it is much more likely that this condition
would have been found earlier and might have been treated in the nursing
home without the necessity of hospitalization. More likely than not, the
vital signs would have shown an increase in body temperature, an
increased heart rate, an increased respiratory rate, a decrease in blood
5
pressure, or any combination of the above, indicating a change in the
patient’s medical condition which required further investigation. Because
of the fact that her urinary infection was not discovered in a timely fashion,
she required hospitalization and treatment in an intensive care unit.
Because this is a life threatening illness, delay in diagnosis is a serious
breach of the standard of care.
I believe that this claim does have merit because of the delay in the
diagnosis of the urinary tract infection. In my training and experience as a
urologist, it is more likely than not that an undiagnosed urinary tract
infection might develop into urosepsis, especially in a debilitated patient
who is unable to communicate any symptoms or changes in their medical
condition. I believe that this was the case in the care rendered to Ms.
Gomez. Furthermore, it is documented in the death certificate that the
cause of death was sepsis secondary to urinary tract infection.3
The Home’s objections asserted that the amended report failed to adequately
address the standard of care applicable to the Home and how the standard of care was
allegedly breached by the Home or its employees. The Home also asserted the
amended report failed to address the causal relationship between the alleged breach
and the injury, harm or damages claimed by Flores, and asserted the amended report
contained only global and conclusory statements concerning the causal connection.
Standard of care is defined by what an ordinarily prudent health care provider or
physician would have done under the same or similar circumstances. Palacios, 46
S.W.3d at 880; Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied). Whether a defendant breached a duty to a
patient cannot be determined absent specific information about what the defendant
should have done differently. Palacios, 46 S.W.3d at 880.
3
The date of Ms. Gomez’s death is not stated in Moulsdale’s report, but Flores’
brief states she died on January 24, 2011.
6
According to Moulsdale’s report, the applicable standard of care for treatment of
a debilitated patient like Ms. Gomez required that the Home monitor her carefully, taking
her vital signs, defined as blood pressure, pulse rate, body temperature and respiratory
rate, at least once per day to detect changes in her condition. Addressing the Home’s
breach of the standard of care, Moulsdale’s report states that his review of the nursing
home records reveals notes that Ms. Gomez’s vital signs were to be taken only once
per week and records further indicating that her vital signs were indeed taken once per
week.
Moulsdale further explains that because the vital signs were not taken daily, Ms.
Gomez’s urinary tract infection went undetected long enough to develop into sepsis, a
life-threatening condition requiring hospitalization. He states “[m]ore likely than not, the
vital signs would have shown an increase in body temperature, an increased heart rate,
an increased respiratory rate, a decrease in blood pressure, or any combination of the
above, indicating a change in the patient’s medical condition which required further
investigation.”
Our discussion will focus on causation because we readily conclude that in its
discussion of that element, Moulsdale’s amended report does not constitute a good faith
effort toward compliance with the statutory requirements.
Reiterated, an expert report that merely states the expert's conclusions does not
provide enough information to fulfill the purposes of the report. Bowie, 79 S.W.3d at 52
(citing Palacios, 46 S.W.3d at 879). The report must explain the basis of the expert’s
statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. Otherwise, the
7
report neither informs the defendant of the specific conduct the claimant calls into
question nor provides a basis for the trial court to conclude the claim has merit. Id.
A case Flores cites is helpful to demonstrate the inadequacies of Moulsdale’s
report. Mosely v. Mundine, 249 S.W.3d 775 (Tex. App.—Dallas 2008, no pet.), dealt
with a claim a physician failed to detect an early stage of cancer. The physician moved
to dismiss the claim, asserting the expert report expressed only conclusory statements
as to the causative relationship between the failure to detect and the harm to the
patient. Id. at 780-81. The expert report there, as relevant to causation, stated:
In the case of Mrs. Mundine, Dr. Mosley [sic] failed to identify a 1cm nodule on
the chest x-ray during the ER visit in 5/2004. Approximately 21 months later this
nodule had developed into a 6cm mass extending into the lung tissue with
undetermined metastasis. Mrs. Mundine has a poor prognosis given the extent of
the tumor growth and required lung resection, chemotherapy[,] and radiation.
Had this cancer been detected in 2004[,] the likelihood of survival for Mrs.
Mundine would have been significantly greater with a much less invasive
treatment protocol. Dr. Mosley [sic] breached the standard of care by failing to
detect the early stage of the cancer in May 2004.
***
. . . . Dr. Mosely failed to identify the early cancer nodule in Mrs. Mundine in
2004. This failure resulted in delayed diagnosis of lung cancer, required invasive
and aggressive treatment and in all medically probability significant reduction in
the life expectancy of Mrs. Mundine.
249 S.W.3d at 780.
The appeals court affirmed the trial court’s denial of the physician’s motion. It
held the trial court could have concluded the report “established a causal relationship”
between the physician’s departure from the standard of care and the patient’s injury. In
so concluding, the court found the expert’s report linked the physician’s failure to identify
8
the one-centimeter nodule in 2004 to the patient’s injury from the developed six-
centimeter mass some 21 months later. Id. at 781.
The report in Mosely gave the trial court a factual basis to understand the change
in the patient’s condition between the breach of the standard, occurring on a known
occasion on which the patient had a one-centimeter nodule, and the later condition
when the nodule had become a six-centimeter mass. 249 S.W.3d at 780. By contrast
with that report found adequate as to causation, Moulsdale’s report contains the facts
that on January 10, 2011, Ms. Gomez, a debilitated patient, “was found to have
increasing mental confusion and a probable urinary tract infection,” and was
subsequently taken by ambulance to the hospital, where she was diagnosed with a
severe urinary tract infection and probable urosepsis. The report speaks in conclusory
fashion of a “delay in diagnosis,” but contains no facts on which one may base a
conclusion that there occurred a delay in diagnosing her infection or that any such delay
was attributable to a failure of the Home to check her vital signs daily. The report’s
statement that “more likely than not, the vital signs would have shown an increase in
body temperature, an increased heart rate, an increased respiratory rate, a decrease in
blood pressure, or any combination of the above, indicating a change in the patient’s
medical condition which required further investigation”4 is not factual, but merely a more
detailed statement of Moulsdale’s opinion. The report contains no factual statement
describing when, relative to January 10, the Home’s employees last checked Ms.
Gomez’s vital signs. Nor does it contain statements of what any of Ms. Gomez’s vital
4
The statement is one of those added by the amended report.
9
signs were at any point in time, before, during or after her diagnosis, or how any of her
vital signs had changed from any point in time to another.
With regard to her hospital care, Moulsdale’s report adds only the facts that Ms.
Gomez was treated aggressively and appeared to recover but later died under hospice
care. The report concludes with the statement that, according to her death certificate,
the cause of Ms. Gomez’s death was “sepsis secondary to urinary tract infection.” But
the report contains nothing to link that fact with his conclusion the Home’s failure to
check her vital signs daily in the days before her hospitalization led to her septic
condition or her death some two weeks later. And we cannot engage in inferences to
supply information not present within the four corners of the report. See Bowie, 79
S.W.3d at 53.
Moulsdale’s report may also be compared with the expert report considered in
Craig v. Dearbonne, 259 S.W.3d 308 (Tex. App.—Beaumont 2008, no pet.). Mrs.
Dearbonne was admitted to a hospital on January 25 with admitting diagnoses that
included “respiratory distress/shortness of breath” and pneumonia. Over the next four
days, her condition deteriorated and she was transferred to another facility where she
died a few days later. The expert report addressed what it described as breaches of the
standard of care by a physician during her four-day hospital stay. Reversing the trial
court’s denial of challenges to the expert report, the appellate court held the report was
conclusory as to causation. The court summarized the expert report’s discussion of
causation as follows:
[Expert’s] report explains that the standard of care required [the physician]
to examine and assess [the patient] on a daily basis, and that daily chest
10
x-rays should have been performed. In addition, the report states that if
[the physician] had examined [the patient’s] lungs, then "more likely than
not" she would have found that [the patient’s] pneumonia and congestive
heart failure had worsened, and those conditions "could have been
effectively treated more likely than not." The report also concludes that if
[the physician] had performed "proper assessment and treatment" on
January 26, 27, or 28, "then more likely than not, [the patient] could have
been successfully treated and would not have died when she did." [Expert]
further concludes in the report that [physician’s] negligence proximately
caused [patient’s] death, and if [physician] had not been negligent,
[patient] "would not have died when she did."
259 S.W.3d at 312. The court found the expert’s statements conclusory because they
were not linked to the facts and did not explain how the physician’s alleged negligence
caused the patient’s death. Id. at 313 (citing, inter alia, Gonzales v. Graves, No. 07-03-
00268-CV, 2004 Tex. App. LEXIS 2403 (Tex. App.—Amarillo Mar. 16, 2004, no pet.)
(mem. op.)).
Moulsdale’s report contains even fewer facts than the report in Craig. 259
S.W.3d at 312. That report at least described Mrs. Dearbonne’s condition on her
admission to the hospital, giving the trial court some means to understand the factual
consequences of a failure to order daily x-rays. See Craig, 259 S.W.3d at 313-14
(Gaultney, J., dissenting). As noted, Moulsdale’s report gives no facts regarding Ms.
Gomez’s vital signs on any day, providing no basis for evaluation of the effects of a
failure to check her vital signs daily. See also Foster v. Richardson, 303 S.W.3d 833,
842 (Tex. App.—Fort Worth 2009, no pet.) (holding expert report “does not explain
beyond mere conjecture” how condition of patient’s ankle worsened from June to July
so that physician’s failure to give correct diagnosis in June caused the requirement of
further treatment in July).
11
Moulsdale’s report expresses his opinion that the Home’s failure to take Ms.
Gomez’s vital signs at least daily caused a failure to find and timely treat her urinary
tract infection. It further expresses his opinion that because the infection was left
untreated, it developed into sepsis, a life-threatening condition, ultimately leading to her
death. But the report does not explain the basis of Moulsdale’s statements to link his
conclusions to the facts, Bowie, 79 S.W.3d at 52, with the result that it also does not
provide a basis for the trial court to conclude the claim has merit. Id. Ultimately, it
states only Moulsdale’s opinions on causation. Accordingly, the report does not set
forth a “good faith effort” to provide a fair summary of the causation element as
described in the statute. When it overruled the Home’s objections to the report’s
causation element discussion and denied its motion to dismiss, the trial court misapplied
the “good faith effort” standard. Our conclusion the report is inadequate in its
discussion of causation makes it unnecessary for us to consider the adequacy of its
discussion of the standard of care and breach.
Conclusion
We sustain the Home’s sole issue. We reverse the trial court's order and remand
the cause to the trial court for the limited purposes of determining the Home’s
reasonably incurred attorney's fees and costs and entry of an order dismissing with
prejudice Flores’ claims against the Home. TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(b).
James T. Campbell
Justice
Pirtle, J., dissenting.
12