Laura Hatchel, as Next Friend of C.H. v. Michelle Hacker, FNP-C ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00218-CV
LAURA HATCHEL, AS NEXT APPELLANT
FRIEND OF C.H.
V.
MICHELLE HACKER, FNP-C APPELLEE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant Laura Hatchel, as next friend of C.H., appeals the trial court’s
order dismissing her health care liability claim against Appellee Michelle Hacker,
FNP-C. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (West Supp.
2013). We will reverse and remand.
1
See Tex. R. App. P. 47.4.
According to Hatchel’s original petition, on March 16, 2010, C.H. cut open
the bottom of his left foot when he jumped into Lake Texoma and landed on an
object. He presented at Minor Emergency of Denton with a 3 centimeter primary
laceration, a .5 centimeter secondary laceration, and swelling and ecchymosis
across the width of his foot. John Mulford, FNP, cleaned and removed dirt and
wood from the “heavily contaminated” wound, sutured the lacerations, and
applied antibiotic ointment. C.H. received a tetanus shot and several
prescriptions and went home.
C.H.’s condition worsened over the next few days, so on March 18, 2010,
he went to the McLeroy, Gibbs & Klein Medical Clinic, where he was treated by
Hacker and diagnosed with an infected laceration. Hacker examined the wound
without opening it, took a culture, prescribed an additional antibiotic, and
instructed C.H. to wash the wound, change the dressing, and apply ointment to it
two to three times per day.
Two days later, on March 20, 2010, C.H. returned to the McLeroy, Gibbs &
Klein Medical Clinic with a persistent high fever and a swollen, red foot. He was
referred to Texas Health Presbyterian of Denton, where he was admitted,
diagnosed with cellulitis, and started on intravenous antibiotics. During a surgery
two days later to debride the wound, Dr. Craig Glauser removed a 5 millimeter
piece of wood and a 4 centimeter by 8 millimeter piece of wood from the wound
2
and irrigated and packed the wound. C.H.’s condition improved, and the hospital
discharged him on March 26, 2010.
Hatchel sued Hacker in May 2012 for medical negligence in connection
with the treatment of C.H.’s foot, and she timely served Hacker with an expert
report authored by R. Robert Ippolito, M.D.2 Hacker objected to Dr. Ippolito’s
report on several grounds and moved to dismiss Hatchel’s claim. The trial court
granted the motion in part but also granted Hatchel a thirty-day extension to cure
the deficiencies. Hatchel filed an amended expert report authored by Dr. Ippolito,
Hacker objected that Dr. Ippolito’s opinions on breach and causation were
conclusory and speculative and moved to dismiss Hatchel’s claim, and the trial
court granted the motion without specifying its reasons for doing so.
A plaintiff must serve an expert report for each physician or health care
provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a) (West Supp. 2013). An expert report is a written report by an
expert that provides a fair summary of the expert’s opinions regarding the
applicable standard of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standard, and the causal
relationship between that failure and the injury, harm, or damages claimed. Id.
§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may
2
Hatchel sued several other individuals and entities, but they are not
parties to this appeal.
3
file a motion challenging the report’s adequacy. See id. § 74.351(a), (b). A trial
court must grant a motion to dismiss based on the alleged inadequacy of an
expert report only if it finds, after a hearing, that the report does not represent an
objective good faith effort to comply with the definition of an expert report in the
statute. Id. § 74.351(l).
The information in the report does not have to meet the same
requirements as evidence offered in a summary judgment proceeding or at trial,
and the report need not marshal all the plaintiff’s proof, but it must include the
expert’s opinions on each of the elements identified in the statute—standard of
care, breach, and causation. See Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878‒79 (Tex. 2001); Polone v. Shearer, 287 S.W.3d
229, 233 (Tex. App.—Fort Worth 2009, no pet.). In detailing these elements, the
report must provide enough information to fulfill two purposes if it is to constitute
a good faith effort: (1) the report must inform the defendant of the specific
conduct the plaintiff has called into question and (2) the report must provide a
basis for the trial court to conclude that the claims have merit. Palacios, 46
S.W.3d at 879.
We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Polone, 287 S.W.3d at 232. A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or without reference to any guiding
4
rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241‒42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
In part of her only issue, Hatchel argues that the trial court abused its
discretion by granting Hacker’s motion to dismiss because Dr. Ippolito’s report
adequately explained how Hacker breached the applicable standard of care.
Dr. Ippolito opined that the standard of care for C.H.’s follow-up treatment on
March 18, 2010, at the McLeroy, Gibbs & Klein Medical Clinic required (1) that
his obviously infected wound be opened and fully debrided or (2) that he be
referred to a qualified physician or facility to perform the debridement. In the
portion of the report titled “Deviations from the Standards of Care,” Dr. Ippolito
wrote,
The standard of care required Robert R. McLeroy, M.D., and/or
Michelle Hacker to open and fully debride the wound when the
patient presented with the symptoms listed as this is an obviously
infected wound . . . .
....
The records indicate that the wound was not opened at
McLeroy, Gibbs & Klein Clinic. This is a deviation from the standard
of care since the wound was draining purulence, infected, and
required full debridement. Full debridement is the process of
removing foreign material or dead tissue from and around a wound
to expose health[y] tissue. Given the size of the pieces of wood
ultimately found in the wound, Nurse Hacker should have been able
to locate the wood in Mr. Hatchel’s foot on either of the two visits to
McLeroy, Gibbs & Klein Clinic. Failing to even open the wound in
the face of such obvious signs of infection is a deviation from the
standard of care in this case. [Emphasis added.]
5
Dr. Ippolito thus specifically opined that Nurse Hacker breached the applicable
standard of care by failing to open and debride the wound.
Hacker directs us to our opinion in Polone and argues that the report does
not specifically identify how she breached the standard of care because it does
not differentiate between the standard of care applicable to her and the standard
of care applicable to Dr. McLeroy, the supervising physician. See Polone, 287
S.W.3d at 233‒35. Polone involved a failure-to-diagnose-cancer claim in which
we held that the expert report inadequately set forth the applicable standard of
care for a physician’s assistant because the report identified identical standards
of care for both the physician’s assistant and a physician, and there was no
specific recitation that the standards were identical. Id. Implicit in our reasoning
was that in the absence of any indication otherwise, we were unable to
conclude—based on the nature of the case and the facts involved—that the
physician and the physician’s assistant shared the same standards of care. See
id. That same circumstance is not present in this case. The claim here alleges
negligence for failing to open and clean a wound, not failing to diagnose cancer.
It is impossible to read Dr. Ippolito’s report and not conclude that the standard of
care applicable to Hacker is the same standard of care applicable to
Dr. McLeroy—whether the care was provided by a physician or a nurse
6
practitioner, the standard of care simply required that the infected wound be
debrided.3
We also note that Hacker’s second round of objections challenged
Dr. Ippolito’s opinions regarding breach and causation only. To the extent that
Hacker so argues, we refuse to disregard an otherwise adequate recitation
regarding breach on account of a purported inadequacy regarding an aspect of
Dr. Ippolito’s report that was not challenged in the trial court (standard of care).
We sustain this part of Hatchel’s first issue.
Hatchel argues in another part of her only issue that the trial court abused
its discretion by granting Hacker’s motion to dismiss because Dr. Ippolito’s report
adequately explained how Hacker’s alleged failure to comply with the standard of
care caused C.H.’s injuries or damages. There are no magic words required to
establish causation. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.
2002). But the report must explain the basis for the expert’s causation opinions
by linking the expert’s conclusions to the alleged breach. Id.
In the portion of the report titled “Proximate Cause,” Dr. Ippolito opined,
In this case, the actions of Michelle Hacker in merely wiping
off the outside of the wound and providing an additional antibiotic,
and not even opening the wound to attempt to debride the wound
at that time, allowed the infection to continue to grow and attack
surrounding healthy tissue. . . .
3
Indeed, the report states that the standard of care required Dr. McLeroy
and Hacker “each” to open and debride the wound.
7
....
Mr. Hatchel’s foot was likely saved by Dr. Glauser’s correct
decision to immediately debride the wound and begin IV antibiotics
when Mr. Hatchel was finally sent to him two days after he was
initially seen at the McLeroy, Gibbs & Klein Clinic. The two day
delay allowed the infection to grow exponentially and certainly
contributed to the increased length of [the] hospital stay, to the
ultimate loss of tissue in Mr. Hatchel’s left foot, which caused
Mr. Hatchel to lose significant use of his foot and mobility for the
following year. . . . This destruction is what caused the damage that
Dr. Glauser had to repair. This destruction is what caused
Mr. Hatchel’s recovery time to be so prolonged. This destruction
could have been entirely avoided if the wound had been completely
debrided and all foreign objects removed as the standard of care
required, as more fully explained above. [Emphasis in original]
Thus, Dr. Ippolito opined that while C.H. presented at the McLeroy, Gibbs & Klein
Medical Clinic with an already-infected laceration, it was Hacker’s failure to open
and debride the wound that allowed the infection to grow exponentially, which
caused the destruction of tissue in the foot, the need to surgically repair the
destruction to the foot, and the loss of mobility and use of the foot that C.H.
experienced over the next year. Hatchel thus adequately linked Hacker’s alleged
failure to meet the applicable standard of care to the injuries and damages that
C.H. allegedly sustained.
Hacker likens this case to Bowie and argues that, at most, Dr. Ippolito’s
causation opinions (a) “are equivalent to a statement that [C.H.’s] injury might
have been avoided or lessened if Nurse Practitioner Hacker had acted
differently” and (b) are conclusory and require the court to draw inferences about
the connection between Hacker’s conduct and C.H.’s injuries. The portions of
8
the report above are not conclusory and do not require the court to make any
inferences—it clearly factually alleges that by failing to open and debride the
wound, Hacker allowed the infection to flourish, tissue was consequently
damaged, and surgery was necessary to correct the damaged tissue.
Hacker contends that the report is insufficient because Dr. Ippolito did not
“provide a baseline as to what would have resulted from the previous health care
provider’s care even had Nurse Practitioner Hacker done what the report said
she should have done.” But section 74.351 does not require Dr. Ippolito to
speculate about what would have happened had Hacker complied with the
standard of care; it requires Dr. Ippolito to explain how Hacker’s failure to comply
with the applicable standard of care caused C.H.’s injuries or damages.
Dr. Ippolito did that—but for Hacker’s failure to debride the wound, C.H. would
not have required surgery to repair the tissue that was destroyed by the infection
that flourished exponentially between the time that Hacker cared for C.H. and
when he went to the hospital.
Hacker argues that Dr. Ippolito did not explain how failing to open the
wound allowed the infection to grow, but he actually did just that: “[T]he foot is a
closed space and the pus and exudate attendant to the infectio[n] causes tissue
necrosis and ischemia as it has nowhere else to go.” Hacker complains that she
is not mentioned in several of the paragraphs that are relevant to Dr. Ippolito’s
opinion on causation, but the excerpts that we set out above specifically identify
9
her. Hacker takes issue with the third to the last full paragraph of Dr. Ippolito’s
report, but that paragraph is not essential to Dr. Ippolito’s opinion.4 We sustain
this part of Hatchel’s issue.
Dr. Ippolito’s report represented an objective good faith effort to comply
with the definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l); Palacios, 46 S.W.3d at 879. Accordingly, we hold that the trial court
abused its discretion by granting Hacker’s motion to dismiss Hatchel’s health
care liability claim. We reverse the trial court’s judgment and remand the case to
the trial court for further proceedings.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: MAY 8, 2014
4
We did not refer to it above.
10