Hillcrest Baptist Medical Center and Hillcrest Health System, Inc. v. Lillie Payne ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00191-CV
HILLCREST BAPTIST MEDICAL CENTER
AND HILLCREST HEALTH SYSTEM, INC.,
Appellant
v.
LILLIE PAYNE,
Appellee
From the 414th District Court
McLennan County, Texas
Trial Court No. 2010-15045
MEMORANDUM OPINION
In this appeal, appellants, Hillcrest Baptist Medical Center (“HBMC”) and
Hillcrest Health System, Inc. (“HHSI”), complain about the trial court’s denial of their
joint motion to dismiss a health-care-liability claim brought by appellee, Lillie Payne, on
the basis that Payne allegedly failed to timely provide an adequate expert report in
compliance with section 74.351 of the civil practice and remedies code. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351 (West 2011). By three issues, appellants assert: (1)
Payne’s expert was not qualified to opine on causation; (2) Payne’s expert reports did
not establish the requisite causal connections between appellants’ alleged negligent
actions and the injuries sustained; and (3) Payne’s expert reports do not adequately
address liability as to HHSI. We affirm, in part, and reverse and remand, in part.
I. BACKGROUND
This dispute pertains to treatment Payne, then a sixty-year-old woman, received
while in HBMC’s care. According to Payne, on March 7, 2008, she was admitted to
HBMC with a diagnosis of a fever. However, it was later determined that she had
sepsis from an infected dialysis shunt. The bacterium that caused the sepsis was
discovered to be Methicillin-resistant staphylococcus auerus (“MRSA”). Upon this
discovery, Payne was admitted to HBMC’s intensive-care unit, and she was placed on a
ventilator due to the development of septic shock and respiratory failure. In addition,
Payne was “placed on bilateral upper extremity restraints.” Payne alleged that
“[o]rders for pressure ulcer precautions were instituted on admission” and noted that
she has diabetes, hypertension, and end-stage renal failure that required frequent
dialysis.
Payne received treatment for the sepsis that she contracted, and she was
subsequently discharged from the hospital on April 9, 2008. However, while in the care
of HBMC, Payne developed “multiple pressure ulcers” that required “long[-]term,
aggressive care[,] and treatment.”
Thereafter, Payne filed her original petition, asserting health-care liability claims
against HBMC; HHSI; Scott and White Memorial Hospital; and the Scott, Sherwood,
Hillcrest Baptist Medical Center v. Payne Page 2
and Brindley Foundation.1 Specifically, Payne contended that appellants were
negligent in carrying out their medical responsibilities and that their negligence caused
her pressure ulcers. In addition to her original petition, Payne filed an expert report
authored by Joe D. Haines Jr., M.D., M.P.H, which asserted, among other things, that
the staff at HBMC deviated from the applicable standard of care, did not exercise
reasonable care in treating Payne, and ultimately caused her pressure ulcers.
Appellants responded by filing an original answer denying each of the
allegations contained in Payne’s original petition and asserting numerous affirmative
defenses. Appellants also objected to Dr. Haines’s initial expert report, arguing that he
failed to adequately explain his qualifications to opine “on the standard of care or
breach applicable to nurses or a hospital caring for a hospitalized patient in the ICU or
on the floor who develops pressure ulcers” and that his statements regarding causation
were “speculative and conclusory and fail to establish a link between Defendant’s
alleged breach and Plaintiff’s alleged injury.”
Payne responded to appellants’ objections by filing two supplemental expert
reports also authored by Dr. Haines, wherein he expounded on his qualifications and
causation. Appellants objected to Dr. Haines’s supplemental expert reports on the same
grounds as previously raised.2
1 In her first amended petition, Payne dropped her claims against Scott and White Memorial
Hospital and the Scott, Sherwood, and Brindley Foundation. Therefore, only HBMC and HHSI remain as
parties to this appeal.
2 The record does not contain a written order indicating that the trial court ruled on appellants’
objections.
Hillcrest Baptist Medical Center v. Payne Page 3
Subsequently, on November 19, 2010, appellants filed a joint motion to dismiss
Payne’s health-care-liability claims, asserting that Payne had not timely filed a sufficient
expert report in compliance with section 74.351 of the civil practice and remedies code.
See id. § 74.351(a)-(b). The trial court conducted a hearing on appellants’ joint motion to
dismiss, and, on December 20, 2010, entered an order stating that Dr. Haines’s expert
reports were insufficient. However, the trial court granted Payne a thirty-day extension
to cure the deficiencies in the reports. See id. § 74.351(c).
Thereafter, Payne filed an additional expert report from Dr. Haines dated
January 15, 2011, and an expert report from Dora M. Carcoba, a registered nurse who
opined on the standard of care and breach, as it related to nurses. Appellants once
again objected to Dr. Haines’s expert report as not sufficiently demonstrating his
qualifications and asserting causation in a conclusory manner. Appellants also objected
to Carcoba’s qualifications to render an opinion in this matter because she is a nurse,
not a physician. Furthermore, appellants reasserted their joint motion to dismiss. See
id. § 74.351(a)-(b).
Finally, on April 19, 2011, the trial court, after a hearing, denied appellants’ joint
motion to dismiss and objections. This interlocutory appeal followed. See id. §
51.014(a)(9) (West 2008) (permitting the appeal of an interlocutory order from a district
court that “denies all or part of the relief sought by a motion under Section 74.351(b)”).
II. STANDARD OF REVIEW
We review a trial court’s denial of a motion to dismiss under section 74.351 for an
abuse of discretion. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am.
Hillcrest Baptist Medical Center v. Payne Page 4
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner or without
reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.
2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
III. APPLICABLE LAW
Section 74.351 of the civil practices and remedies code provides that within 120
days of filing a health-care-liability claim, a claimant must serve a curriculum vita and
one or more expert reports regarding every defendant against whom a health-care claim
is asserted. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); see also College Station
Med. Ctr., LLC v. Todd, No. 10-09-00398-CV, 2010 Tex. App. LEXIS 7290, at *3 (Tex.
App.—Waco Sept. 1, 2010, pet. denied) (mem. op.). The expert report must contain
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 physician or 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); see Palacios, 46 S.W.3d at 877. If a
plaintiff timely files an expert report and the defendant moves to dismiss because of the
report’s inadequacy, the trial court must grant the motion “only if it appears to the
court, after hearing, that the report does not represent a good faith effort to comply with
the definition of an expert report in [section 74.351(r)(6)].” Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 51-52 (Tex. 2002); see Palacios, 46 S.W.3d at 878.
To constitute a “good faith effort,” the report must provide enough information
to fulfill two purposes: (1) it must inform the defendant of the specific conduct the
Hillcrest Baptist Medical Center v. Payne Page 5
plaintiff has called into question; and (2) it must provide a basis for the trial court to
conclude that the claims have merit. Bowie Mem’l Hosp., 79 S.W.3d at 52-53 (noting that
“magical words” are not necessary to provide a fair summary of the standard of care,
breach of that standard, and causation); see Palacios, 46 S.W.3d at 879 (“A report that
merely states the expert’s conclusions about the standard of care, breach, and causation
does not fulfill these two purposes. Nor can a report meet these purposes and thus
constitute a good-faith effort if it omits any of the statutory requirements.”). The trial
court should look no further than the report itself, because all the information relevant
to the inquiry should be contained within the document’s four corners. Bowie Mem’l
Hosp., 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 878). An expert report, however,
does not need to marshal all of the plaintiff’s proof; it may be informal and the
information presented need not meet the same requirements as evidence offered in
summary judgment proceedings or in trial. See Spitzer v. Berry, 247 S.W.3d 747, 750
(Tex. App.—Tyler 2008, pet. denied); see also Bakhtari v. Estate of Dumas, 317 S.W.3d 486,
496 (Tex. App.—Dallas 2010, no pet.).
IV. QUALIFICATIONS OF DR. HAINES
In their first issue, appellants contend that Payne’s expert reports do not
demonstrate that Dr. Haines “is qualified to address the existence of a causal connection
between Appellee’s development of a pressure ulcer and HBMC’s alleged breach of the
applicable standard of care.” Specifically, appellants argue that Dr. Haines’s statements
about his experience treating pressure ulcers are conclusory and fail to show that “he is
Hillcrest Baptist Medical Center v. Payne Page 6
qualified to determine the specific causes of a patient’s pressure ulcer when faced with
at least thirteen possible causes of that ulcer.”
A. Applicable Law
Section 74.351(r)(5)(C) provides that an “expert” in a health-care liability claim is:
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); see id. § 74.403(a) (West 2011) (“[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.”). However, a
professional need not be employed in the particular field about which he is testifying so
long as he can demonstrate that he has knowledge, skill, experience, training, or
education regarding the specific issue before the court that would qualify him to give
an opinion on that subject. Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996); see TEX.
CIV. PRAC. & REM. CODE ANN. § 74.402 (West 2011) (listing the requirements for an
expert to be considered qualified in a suit against a health-care provider); see also TEX. R.
EVID. 702 (allowing experts to testify based on their “knowledge, skill, experience,
training, or education”). “[W]hen a party can show that a subject is substantially
developed in more than one field, testimony can come from a qualified expert in any of
those fields.” Broders, 924 S.W.2d at 154.
Hillcrest Baptist Medical Center v. Payne Page 7
Qualifications of an expert must appear in the expert reports and curriculum
vitae and cannot be inferred. See Salais v. Tex. Dep’t of Aging & Disability Servs., 323
S.W.3d 527, 536 (Tex. App.—Waco 2010, pet. denied); see also Estorque v. Schafer, 302
S.W.3d 19, 26 (Tex. App.—Fort Worth 2009, no pet.) (citing Olveda v. Sepulveda, 141
S.W.3d 679, 683 (Tex. App.—San Antonio 2004, pet. denied)); Baylor College of Med. v.
Pokluda, 283 S.W.3d 110, 117 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Analysis
of the expert’s qualifications under section 74.351 is limited to the four corners of the
expert reports and the expert’s curriculum vitae. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(a) (requiring a health-care-liability claimant to file both an expert report and
the expert’s curriculum vitae within 120 days of the filing of the original petition); In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex. 2008) (considering an expert’s
curriculum vitae and report in determining whether the expert was qualified to opine
about plaintiff’s negligent credentialing cause of action); Leonard v. Glenn, 293 S.W.3d
669, 676 (Tex. App.—San Antonio 2009), rev’d on other grounds, 332 S.W.3d 403 (Tex.
2011); Polone v. Shearer, 287 S.W.3d 229, 238 (Tex. App.—Fort Worth 2009, no pet.);
Pokluda, 283 S.W.3d at 117; Mosely v. Mundine, 249 S.W.3d 775, 779 (Tex. App.—Dallas
2008, no pet.); see also Lewis v. Funderburk, No. 10-05-00197-CV, 2008 Tex. App. LEXIS
9761, at *6 (Tex. App.—Waco Dec. 31, 2008, pet. denied) (mem. op.).
Merely being a physician is insufficient to qualify as a medical expert. See
Broders, 924 S.W.2d at 152; see also Hagedorn v. Tisdale, 73 S.W.3d 341, 350 (Tex. App.—
Amarillo 2002, no pet.) (“Every licensed doctor is not automatically qualified to testify
as an expert on every medical question.”). But we defer to the trial court on close calls
Hillcrest Baptist Medical Center v. Payne Page 8
concerning an expert’s qualifications. See Larson v. Downing, 197 S.W.3d 303, 304-05
(Tex. 2006); see also Broders, 924 S.W.2d at 151 (“The qualification of a witness as an
expert is within the trial court’s discretion. We do not disturb the trial court’s discretion
absent clear abuse.”).
B. Discussion
At the outset of our analysis of this issue, we note that “[e]xpert reports can be
considered together in determining whether the plaintiff in a health care liability action
has provided adequate expert opinion regarding the standard of care, breach, and
causation.” Salais, 323 S.W.3d at 534; see Walgreen Co. v. Hieger, 243 S.W.3d 183, 186 n.2
(Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(i). Therefore, we consider the language contained within the four
corners of all of the expert reports that Payne proffered. In addition, we reject
appellants’ assertion that Dr. Haines cannot qualify as an expert because allegedly he
was unable to rule out thirteen other potential causes for the pressure ulcers. 3 See Baylor
Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.)
(“Nothing in section 74.351 suggests the preliminary report is required to rule out every
possible cause of the injury, harm, or damages claimed, especially given that section
74.351(s) limits discovery before a medical expert’s report is filed.”); see also Whisenant v.
Arnett, 339 S.W.3d 920, 926 (Tex. App.—Dallas 2011, no pet.).
3 To some extent, this argument is misleading given that Dr. Haines mentioned in his initial
expert report that: “Even though Ms. Payne suffers from end-stage renal disease, hypertension[,] and
diabetes, she had never had problems with pressure ulcers and entered HBMC without pressure ulcers.”
In a subsequent expert report, Dr. Haines stated that: “Within a reasonable degree of medical probability,
Ms. Payne’s co-morbid conditions of diabetes, hypertension[,] and end-stage renal disease did not cause
the pressure ulcer because those conditions cannot spontaneously cause such a condition.”
Hillcrest Baptist Medical Center v. Payne Page 9
Texas courts have stated the following regarding expert qualifications:
When a physician fails to state in his expert report or affidavit that he has
knowledge of the standard of care applicable to the specific types of health
care providers involved in the claim, or that he has ever worked with or
supervised the specific types of health care providers involved in the
claim, the physician is not qualified on the issue of whether the health care
provider departed from the accepted standards of care for health care
providers. . . . However, if the physician states he is familiar with the
standard of care for both nurses and physicians, and for the prevention
and treatment of the illness, injury, or condition involved in the claim, the
physician is qualified on the issue of whether the health care provider
departed from the accepted standards of care for health care providers. . . .
Further, if a physician states he is familiar with the standard of care and
responsibilities and requirements for physician’s assistants, and he has
worked with, interacted with, and supervised physician’s assistants, the
physician is qualified on the issue of whether the health care provider
departed from the accepted standards of care for health care providers. . . .
A physician is not required to state he is familiar with the core standards
contained in the code, establishing the ‘core standards’ for nurse
practitioners or physician’s assistants.
Wallace, 278 S.W.3d at 558 (citing Cook v. Spears, 275 S.W.3d 577, 582-84 (Tex. App.—
Dallas 2009, no pet.); San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 814 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); Simonson v. Keppard, 225 S.W.3d 868, 872-74
(Tex. App.—Dallas 2007, no pet.)).
In response to appellants’ first objections to his qualifications, Dr. Haines filed an
amended expert report, wherein he noted:
Regarding the objection made about my qualifications to render opinion
about the nursing standard of care in this case: I have experience in caring
for patients with pressure ulcers. I write nursing orders to the nurses
caring for patients with pressure ulcers. I, therefore, have experience in
supervising nurses with regard to the carrying out of my orders. I also
know when a nurse has not followed my orders. I have cared for
numerous hospitalized patients who have developed pressure ulcers. I
have cared for numerous hospitalized patients who were at risk for
developing pressure ulcers[,] and I have managed a hospitalized patient’s
Hillcrest Baptist Medical Center v. Payne Page 10
treatment of or the prevention of pressure ulcers. Throughout my entire
medical career, I have supervised nurses in the care, treatment[,] and
prevention of hospitalized patients who are at risk for or have pressure
ulcers. The standard of care is the same for nurses and physicians in
regard to the care, treatment[,] and/or prevention of pressure ulcers
regardless of where the patient is, i.e. a hospital or a nursing home. The
standard of care for the prevention of and treatment of pressure ulcers is
the same for nurses as it is for physicians: the patient should be turned
every two hours, the area at risk should be kept clean and dry, and the
skin should be carefully monitored.
In his January 15, 2011 report, Dr. Haines stated the following with respect
to additional objections made by appellants:
I have been the treating physician responsible for the care of patients in
the ICU exactly like Ms. Lillie Payne who have multi-system organ failure,
end-stage renal disease, febrile illness, MRSA sepsis, septic shock,
respiratory failure, decreased circulation, diabetes, and hypertension who
are on a ventilator, pressors, restraints and have restricted nutritional
intake. The fact that Ms. Payne had multi-system organ failure, end-stage
renal disease, febrile illness, MRSA sepsis, septic shock, respiratory
failure, decreased circulation, diabetes, and hypertension and was on a
ventilator, pressors, restraints[,] and had restricted nutritional intake
within a reasonable degree of medical probability made her body even
more at risk for the development of pressure ulcers. I am qualified to give
opinions about causation in this matter as it relates to the development of
a pressure ulcer in an ICU patient due to my experience in treating these
patients, ordering nurses in the care and treatment of these patients to
prevent pressure ulcers, and through my education in medical school,
residency[,] and when I obtained my Masters Degree in Public Health.
Moreover, Dr. Haines’s initial expert report and curriculum vitae demonstrate that he
has been practicing medicine since 1981. Dr. Haines, an active duty naval physician,
has numerous certifications, including board certification in family practice, and
Hillcrest Baptist Medical Center v. Payne Page 11
extensive experience practicing medicine in urgent care, combat zones, and in hospital
settings.4
Appellants assert that Dr. Haines was required to “show he has expertise on the
‘very matter’ or ‘specific issue’ before the court” and that qualifications “cannot be
established through conclusory statements lacking sufficient facts and explanation.” In
particular, appellants contend that Dr. Haines, in his expert reports, should have
indicated: (1) the number of patients he has treated with symptoms similar to Payne;
(2) when he treated such patients; (3) whether he was able to prevent the development
of pressure ulcers in these patients; and (4) how and why this experience qualifies him
to determine the cause of Payne’s pressure ulcers. Though appellants cite two cases
that allegedly support their contention that Dr. Haines’s expert reports were conclusory
as to his qualifications, we do not find these cases to be on point. See Leland v. Brandal,
217 S.W.3d 60, 63 (Tex. App.—San Antonio 2006) (holding that an anesthesiologist, who
cared for patients that were at risk for strokes and who were taking Plavix and aspirin,
was not qualified “to state the effect of the cessation of Plavix and aspirin during the
time period in question proximately caused Brandal’s stroke”), aff’d, 257 S.W.3d 204
(Tex. 2008); see also Bowie Mem’l Hosp., 79 S.W.3d at 52 (addressing an expert’s
statements regarding causation and stating that “[a] conclusory report does not meet
the Act’s requirements, because it does not satisfy the Palacios test”). Furthermore,
4 In fact, in his initial expert report, Dr. Haines reduced his curriculum vitae to paragraph form
under the heading “I. Qualification.” Therefore, both this Court and the trial court could determine Dr.
Haines’s qualifications by solely looking at the four corners of his expert reports, though consideration of
his curriculum vitae was not prohibited.
Hillcrest Baptist Medical Center v. Payne Page 12
appellants do not cite to any authority to support their argument that Dr. Haines’s
expert reports were required to be as precise as appellants desire.
Here, Dr. Haines specifically mentioned that he has experience treating patients
like Payne who have been hospitalized and developed pressure ulcers. He also has
experience directing nurses in the treatment of pressure ulcers and treating patients
with some of the pre-existing medical conditions that Payne has. Based on the language
contained in Dr. Haines’s expert reports and curriculum vitae, we cannot say that the
trial court clearly abused its discretion in concluding that Dr. Haines has the
“knowledge, skill, experience, training, or education” regarding the standard of care for
the treatment and/or prevention of pressure ulcers or, in other words, that he is
qualified to give an opinion on the particular subject. See Broders, 924 S.W.2d at 153.
Moreover, when a trial court concludes for purposes of chapter 74 that an physician is
qualified to opine about the standard of care for a certain operation or procedure, it is
also reasonable for the trial court to conclude that the physician is qualified to opine on
the causal relationship between that operation or procedure and the complications that
can arise from it. See Whisenant, 339 S.W.3d at 927 (citing Livingston v. Montgomery, 279
S.W.3d 868, 873 (Tex. App.—Dallas 2009, no pet.)). We therefore hold that the trial
court did not clearly abuse its discretion in determining that Dr. Haines is qualified to
opine as to the causation element. See id.; see also Livingston, 279 S.W.3d at 873.
Accordingly, we overrule appellants’ first issue.
Hillcrest Baptist Medical Center v. Payne Page 13
V. PAYNE’S EXPERT REPORTS AND CAUSATION
In their second issue, appellants assert that Payne’s expert reports are insufficient
with respect to causation because the statements contained therein are conclusory. In
particular, appellants allege that Dr. Haines was required to: (1) rule out the other
thirteen possible causes for the development of the pressure ulcers; and (2) sufficiently
explain how the pressure ulcers would not have occurred but for HBMC’s actions.
We recognize that a nurse cannot, as a matter of law, establish the causation
prong required by section 74.351(r)(6). See TEX. CIV. PRAC. & REM. CODE ANN. §§
74.351(r)(5)(c), 74.403(a); Benish v. Grottie, 281 S.W.3d 184, 205 (Tex. App.—Fort Worth
2009, pet. denied). A nurse may, however, give an opinion on the standard of care for
nurses and a breach of that standard. See Christus Spohn Health Sys. Corp. v. Sanchez, 299
S.W.3d 868, 877-78 (Tex. App.—Corpus Christi 2009, pet. denied); Benish, 281 S.W.3d at
205-06. In addition, the trial court was authorized to consider Nurse Carcoba’s report
on standard of care and breach and Dr. Haines’s report on causation. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(i); Sanchez, 299 S.W.3d at 877-78 (considering together
a nurse’s report on the standard of care for nurses and a physician’s report on
causation).
In her report, Nurse Carcoba stated the following with regard to the applicable
standard of care:
The Standard of Care for Hillcrest Baptist Medical Center by and through
the nurses named above was to:
1. Perform ongoing nursing assessments of the patient to identify
actual and potential problem areas[;]
Hillcrest Baptist Medical Center v. Payne Page 14
2. Make appropriate nursing diagnoses, i.e. [a]lteration in comfort,
alteration in hydration, alteration in skin integrity, alteration in
elimination pattern, potential for Urinary tract infection, etc.
based on ongoing assessments[;]
3. Develop a comprehensive plan of care which sets forth
identified (actual or potential) problem interventions designed
to prevent adverse outcomes from known problem areas[;]
4. Implement Plan of Care[;]
5. Evaluate patient’s response to implemented [P]lan of [C]are[;
and]
6. Update Plan of [C]are consistent with the patient[’]s response[.]
The Standard of Care for Prevention of Pressure Ulcers for Hillcrest
Baptist Medical Center by and through the nurses named above was to:
1. Conduct a pressure ulcer admission assessment for all
patients[,] including Ms. Payne (Braden Score Scale or Norton
Score Scale)[;]
2. Reassess risk for all patients daily (Braden Score Scale or Norton
Score Scale)[,] including Ms. Payne[;]
3. Inspect skin of at-risk patients daily[,] including Ms. Payne[;]
4. Manage moisture[;]
5. Optimize nutrition/hydration[;]
6. Every 2 to 4 hour 30 degree/lateral tilt[;]
7. Minimize pressure[; and]
8. Once a pressure ulcer develops, the wound should be properly
documented and photographed in the medical record. Color,
size, depth, drainage, odor[,] and progression and notify
physician[.]
The Standard of Care for Hillcrest Baptist Medical Center by and through
the nurses named above, with regards to Ms. Lillie Payne required that:
1. The patient be turned every 2 hours to prevent pressure damage
to the skin[;]
2. That proper bedding (air mattress) be provided to prevent
pressure ulcers[;]
3. Once a pressure ulcer develops, the wound should be properly
documented and photographed in the medical record. Color,
size, depth, drainage, odor[,] and progression and notify
physician[;]
4. Upon discharge, wound care instructions should be provided to
family and home healthcare nursing staff[; and]
Hillcrest Baptist Medical Center v. Payne Page 15
5. Provision of a therapeutic mattress[.]
Nurse Carcoba then opined that HBMC, by and through their nurses, deviated
from the standard of care by failing to: (1) “[p]erform ongoing nursing assessments of
the patient to identify actual and potential problem areas”; (2) “[m]ake appropriate
nursing diagnoses, i.e. [a]lteration in comfort, alteration in hydration, alteration in skin
integrity, alteration in elimination pattern, potential for Urinary tract infection, etc.
based on ongoing assessments”; (3) “[d]evelop a comprehensive plan of care which sets
forth identified (actual or potential) problem interventions designed to prevent adverse
outcomes from known problem areas”; (4) “[i]mplement Plan of Care”; (5) “[e]valuate
patient’s response to implemented [P]lan of [C]are”; (6) “[u]pdate Plan of [C]are
consistent with patient[’]s response; (7) “[c]onduct a pressure ulcer admission
assessment for Ms. Payne (Braden Score Scale or Norton Score Scale)”; (8) “[r]eassess
risk for Ms. Payne daily (Braden Score Scale or Norton Score Scale)”; (9) “[i]nspect skin
or at-risk patients daily[,] which includes Ms. Payne”; (10) “[m]anage moisture”; (11)
“[o]ptimize nutrition/hydration”; (12) “[e]very 2 to 4 hour 30 degree/lateral tilt; (13)
“[m]inimize pressure”; and (14) “[o]nce a pressure ulcer develops, the wound should be
properly documented and photographed in the medical record. Color, size, depth,
drainage, odor[,] and progression and notify physician.” In particular, Nurse Carcoba
stated that HBMC breached the standard of care applicable to Payne by failing to: (1)
turn her every two hours to prevent pressure damage to the skin; (2) provide proper
bedding (i.e., an air mattress) to prevent the formation of pressure ulcers; (3) properly
document and photograph the pressure ulcers in the medical record; (4) notify a
Hillcrest Baptist Medical Center v. Payne Page 16
physician immediately when the pressure ulcers developed; (5) provide wound care
instructions to family and home healthcare nursing staff; and (6) provide a therapeutic
mattress.5
In his report, Dr. Haines, relying on Nurse Carcoba’s statements, provided the
following with respect to causation:
It is my opinion, that the deviations from the standard of care
stated by Nurse Carcoba in her report, within a reasonable degree of
medical probability, proximately caused the pressure ulcer suffered by
Ms. Payne. The pathophysiologic reason why Ms. Payne developed this
pressure ulcer was because when she was allowed by the nursing staff to
remain in the same position for greater than two hours without being
turned, was not laterally tilted at 30 degrees every 2 to 4 hours[,] and did
not have proper bedding and a therapeutic mattress. This proximately
caused the circulation to be diminished to the area of her sacrum and
coccyx and put pressure on the sacrococcygeal area. This diminished
circulation to this area proximately caused the tissue to be damaged due
to the lack of blood flow to [the] sacrococcygeal area. The lack of blood
flow to the sacrococcygeal area proximately caused the tissue to die
causing the pressure ulcer that Ms. Payne had.
If the nurses had documented and discussed Ms. Payne’s pressure
ulcer in the chart using the parameters of size, color, depth, drainage,
odor[,] and progression, the worsening of the ulcer would have been
tracked in the record and become apparent to the physicians who then
would have been alerted. The physicians would then have implemented a
treatment plan, including off loading, wound care[,] and a specialty
mattress. Within a reasonable degree of medical probability, these
interventions would have prevented the pressure ulcer from progressing
to a Stage IV ulcer. Further, when the nurses failed to inform a physician
immediately of the formation of the pressure ulcer, this proximately
caused the wound to go unnoticed and untreated. Had the nurses
informed the physician of the ulcer, the ulcer would not have progressed
to a Stage IV ulcer . . . . Within a reasonable degree of medical probability,
these interventions would have prevented the pressure ulcer from
progressing to a Stage IV ulcer.
5 Appellants do not make any complaint as to Nurse Carcoba’s report.
Hillcrest Baptist Medical Center v. Payne Page 17
Within a reasonable degree of medical probability, Ms. Payne’s
comorbid conditions listed above did not cause the pressure ulcer because
those conditions cannot spontaneously cause such a condition. Rather,
these comorbid conditions made it even more incumbent upon the
nursing staff to diligently turn and tilt Ms. Payne to prevent a pressure
ulcer from occurring. It is my opinion that within a reasonable degree of
medical probability, the pressure ulcer Ms. Payne suffered would not
have occurred but for the deviations from the standard of care listed in
Nurse Carcoba’s report for the reasons stated above. This pressure ulcer,
within a reasonable degree of medical probability, was an absolutely
preventable injury had the nurses listed in Nurse Carcoba’s report
followed the standard of care as stated in her report and in this report. It
is also my opinion that had the nurses properly informed the physicians
of the formation of this pressure ulcer when it was only a Stage I ulcer, it
would have been properly treated and would not have progressed to a
Stage IV ulcer.
Based on our reading of Payne’s expert reports, we cannot say that the trial court
clearly abused its discretion in concluding that the reports adequately addressed the
requisite elements for Payne’s health-care-liability claims such that they: (1) informed
appellants of the specific conduct called into question; and (2) provided a basis for the
trial court to determine that Payne’s claims have merit. See Bowie Mem’l Hosp., 79
S.W.3d at 52; see also Palacios, 46 S.W.3d at 879. Moreover, we reject appellants’
assertion that Payne’s expert reports are insufficient and conclusory because the reports
allegedly did not rule out all of the thirteen other reasons for developing a pressure
ulcer. This holding is based on the following: (1) Texas courts have held that an expert
report need not rule out all other potential causes for the injury sustained in a health-
care setting, see Wallace, 278 S.W.3d at 562; Arnett, 339 S.W.3d at 926; (2) an expert report
need not marshal all of the plaintiff’s proof or meet the evidentiary standards applicable
to summary judgment proceedings or trial, see Bakhtari, 317 S.W.3d at 496; Spitzer, 247
Hillcrest Baptist Medical Center v. Payne Page 18
S.W.3d at 750; and (3) Dr. Haines opined that, based on a reasonable degree of medical
probability, the other conditions did not contribute to the development of Payne’s
pressure ulcers. And because we have concluded that the trial court did not abuse its
discretion in concluding that Payne’s expert reports were sufficient, we cannot say that
the trial court abused its discretion in denying appellants’ joint motion to dismiss on
these grounds. See Bowie Mem’l Hosp., 79 S.W.3d at 52; see also Palacios, 46 S.W.3d at 875.
Accordingly, we overrule appellants’ second issue.
VI. WHETHER PAYNE’S EXPERT REPORTS ADEQUATELY ADDRESSED HHSI
In their third issue, appellants argue that Payne failed to timely file an expert
report mentioning HHSI, much less addressing HHSI’s role in this matter. According
to appellants, “Appellee’s failure to provide the trial court with an expert report
regarding her claims against HHSI left the trial court with no discretion other than
dismissal of those claims.” Payne responds that her expert reports implicate HBMC
and HHSI because they expressly list all the names of the nurses involved in her
treatment and those nurses are agents, employees, or representatives of HBMC and/or
HHSI.
The parties do not dispute that Payne asserted health-care-liability claims against
both HBMC and HHSI. The parties also do not dispute that neither Dr. Haines nor
Nurse Carcoba specifically referenced HHSI in their expert reports. Instead, Nurse
Carcoba listed the actions of several nurses whose alleged treatment, or lack thereof, of
Payne was negligent. The Texas Supreme Court has specifically held that “[w]hen a
party’s alleged health care liability is purely vicarious, a report that adequately
Hillcrest Baptist Medical Center v. Payne Page 19
implicates the actions of that party’s agents or employees is sufficient.” Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (citing Univ. of Tex. Med. Branch v.
Railsback, 259 S.W.3d 860, 864 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Univ. of
Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.); Casados
v. Harris Methodist H-E-B, No. 2-05-080-CV, 2006 Tex. App. LEXIS 6357, at **12-13 (Tex.
App.—Fort Worth July 20, 2006, no pet.) (not designated for publication)).
However, in her report, Nurse Carcoba does not attribute the actions of the
nurses to HHSI or implicate HHSI in any way. Like Dr. Haines, Nurse Carcoba does
mention HBMC in her report; however, we are left to speculate about HHSI’s role in
this matter. See Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex.
App.—Corpus Christi 2004, no pet.) (“An expert report may not assert that multiple
defendants are all negligent for failing to meet the standard of care without providing
an explanation of how each defendant specifically breached the standard and how that
breach caused or contributed to the cause of injury. Collective assertions of negligence
against various defendants are inadequate.”) (citing Eichelberger v. St. Paul Med. Ctr., 99
S.W.3d 636, 638 (Tex. App.—Dallas 2003, pet. denied); Doades v. Syed, 94 S.W.3d 664,
671-72 (Tex. App.—San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23
(Tex. App.—Houston [14th Dist.] 2001, no pet.); Whitworth v. Blumenthal, 59 S.W.3d 393,
396 (Tex. App.—Dallas 2001, no pet.) (“[T]he report . . . does not identify any particular
defendant to which it applies and instead generally asserts ‘the health care providers’
failed to meet the standard of medical care.”); Wood v. Tice, 988 S.W.2d 829, 831 (Tex.
Hillcrest Baptist Medical Center v. Payne Page 20
App.—San Antonio 1999, pet. denied) (“The report must specifically refer to the
defendant and discuss how that defendant breached the applicable standard of care.”).
Nonetheless, Payne cites to this Court’s decision in Hillcrest Baptist Medical Center
v. Wade to support her contention that “[e]ven if this Court believes the relationship of
Appellants is not entirely clear from the record, this Court has assumed in medical
malpractice cases that vicarious liability claims are being asserted when nurses’ actions
are being criticized.” See 172 S.W.3d 55, 57 (Tex. App.—Waco 2005, pet. granted, appeal
dism’d). Based on our reading, we do not find the Wade case to be persuasive in this
matter.
The facts stated in the Wade majority opinion do not appear to correspond with
those involved here—a plaintiff suing what appears to be two separate health-care
facilities and/or entities. Id. at 56. The Wade majority opinion merely stated that “Wade
sued Hillcrest Baptist Medical Center, two emergency room doctors, and their
employers . . . .“ Id. However, the majority opinion does not clarify who were the
employers of the emergency room doctors and the relationship the emergency room
doctors had with Hillcrest. Rather, the majority opinion states that “[t]he relationship
of the defendants in the underlying medical malpractice case is not entirely clear from
the record.” Id. at 57. Nevertheless, the majority in Wade presumed that Hillcrest’s
liability “would be based on, at a minimum, any negligence by its nursing staff, which
will be the subject of our inquiry.” Id.
To the extent that the Wade court looked outside the four corners of the expert
report or presumed facts in the determination of whether the report properly
Hillcrest Baptist Medical Center v. Payne Page 21
implicated Hillcrest, we disapprove of that practice. See id. at 61 (Gray, C.J., dissenting)
(“Though addressing the alleged breaches by Hillcrest’s codefendant’s, the two reports
by physicians do not address Hillcrest’s conduct, and in particular any causal
relationship between Hillcrest’s conduct and the injury to Wade. . . . The trial court
abused its discretion in overruling Hillcrest’s motion.”); see also Bowie Mem’l Hosp., 79
S.W.3d at 52 (noting that the trial court should look no further than the report itself,
because all the information relevant to the inquiry should be contained within the
document’s four corners); Palacios, 46 S.W.3d at 878 (same). Texas case law clearly
states that the expert reports tendered by a health-care-liability claimant must clearly
explain and address the elements as to each named defendant in a health-care-liability
action. See Taylor, 169 S.W.3d at 244; Eichelberger, 99 S.W.3d at 638; Doades, 94 S.W.3d at
671-72; Rittmer, 65 S.W.3d at 722-23; Whitworth, 59 S.W.3d at 396; Wood, 988 S.W.2d at
831. Therefore, because the Wade majority opinion is not clear about the relationship
between Hillcrest, the emergency room doctors, and their purported employers, and
because the majority appeared to go outside of the expert report to implicate Hillcrest, a
practice that is not supported by case law, we do not find the Wade case to be persuasive
in this matter.
Looking no further than the four corners of the expert reports tendered, we
cannot say that the expert reports of Dr. Haines and Nurse Carcoba informed HHSI of
the specific conduct Payne called into question and provided a basis for the trial court
to conclude that Payne’s claims against HHSI have merit. See Bowie Mem’l Hosp., 79
S.W.3d at 52; see also Palacios, 46 S.W.3d at 879. To date, we are not clear as to why
Hillcrest Baptist Medical Center v. Payne Page 22
HHSI is involved in this case. As such, we conclude that the expert reports tendered by
Payne do not constitute a good-faith effort with regard to HHSI. See Bowie Mem’l Hosp.,
79 S.W.3d at 52; see also Palacios, 46 S.W.3d at 879. Accordingly, we hold that the trial
court abused its discretion in denying the motion to dismiss as to HHSI. See Bowie
Mem’l Hosp., 79 S.W.3d at 52; see also Palacios, 46 S.W.3d at 879. Appellants’ third issue
is sustained.
VII. CONCLUSION
Based on the foregoing, we affirm the trial court’s judgment as it pertains to
HBMC. However, we reverse the trial court’s denial of appellants’ motion to dismiss as
it pertains to HHSI. As such, we render judgment dismissing Payne’s claims against
HHSI with prejudice and remand for the determination of reasonable attorney’s fees
and costs owed to HHSI. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis concurring with a note)*
Affirmed, in part, and reversed and remanded, in part
Opinion delivered and filed November 16, 2011
[CV06]
*(Justice Davis concurs in the Court’s judgment only. A separate opinion will not
issue.)
Hillcrest Baptist Medical Center v. Payne Page 23