MCH Professional Care and Kristopher Kindle, CRNA v. Yulissa Zubia, Individually and as Representative of the Estate of Elpidia Rios De Zubia Rene Zubia Rene Zubia, Jr. ( 2019 )

Opinion filed June 6, 2019
In The
Eleventh Court of Appeals
__________
No. 11-17-00115-CV
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MCH PROFESSIONAL CARE AND
KRISTOPHER KINDLE, CRNA, Appellants
V.
YULISSA ZUBIA, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF ELPIDIA RIOS DE ZUBIA; RENE ZUBIA;
AND RENE ZUBIA, JR., Appellees
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-16-12-1170-CV
MEMORANDUM OPINION
MCH Professional Care and Kristopher Kindle, CRNA, bring this
interlocutory appeal from the trial court’s denial of a motion to dismiss the health
care liability claims brought by Appellees: Yulissa Zubia, individually and as
representative of the Estate of Elpidia Rios De Zubia; Rene Zubia; and Rene
Zubia, Jr. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West 2017).
Because the expert report filed by Appellees in support of their claims fails to state
the specific conduct that breached the applicable standard of care and is conclusory
regarding causation, we reverse the trial court’s order denying Appellants’ motion
to dismiss, and we remand this cause for further proceedings.
Background Facts
Appellees alleged that Elpidia Rios de Zubia (Zubia) died while under general
anesthesia for the “routine placement of a port-a-cath.” Appellees brought health
care liability claims against several health care providers and physicians connected
with Zubia’s procedure, including Kindle, a certified registered nurse anesthetist,1
and his employer, MCH Professional Care (MCH). In their original petition,
Appellees alleged that Kindle was responsible for “anesthetizing” Zubia during the
procedure and that his failure to properly use and supervise the anesthesia equipment
and to properly monitor Zubia caused Zubia’s death. Appellees also asserted that
MCH was vicariously liable for Kindle’s alleged negligence.
Appellees attached the expert report of Dr. Michael Hurt, an anesthesiologist,
to their original petition. See CIV. PRAC. & REM. § 74.351(a). Appellants objected
to the report as insufficient and filed a motion to dismiss Appellees’ claims against
them. See id. § 74.351(a)–(c), (l). Appellants specifically argued that the report
failed to specify how any conduct by Appellants deviated from the identified
standards of care and did not adequately explain the causal relationship between
Appellants’ alleged negligence and Zubia’s death. The trial court overruled
Appellants’ objections to Dr. Hurt’s report and denied the motion to dismiss.
Analysis
In a single issue on appeal, Appellants contend that the trial court abused its
discretion when it overruled the objections to the sufficiency of Dr. Hurt’s report
and denied the motion to dismiss. See id. § 74.351(l), (r)(6).
1
Throughout the record, the parties refer to Kindle as a “CRNA,” an acronym for “certified
registered nurse anesthetist.” See AMERICAN ASSOC. OF NURSE ANESTHETISTS (AANA),
https://www.aana.com (last visited May 24, 2019). CRNAs provide anesthesia to patients during surgical
procedures. Id.
2
The Texas Medical Liability Act (the TMLA) requires health care liability
claimants to serve an expert report upon each defendant within 120 days after the
defendant files an answer. Id. § 74.351(a); Scott v. Weems, No. 17-0563, 2019 WL
1867916, at *2 (Tex. Apr. 26, 2019). The purpose of the expert report requirement
is “to weed out frivolous malpractice claims in the early stages of litigation, not to
dispose of potentially meritorious claims.” Abshire v. Christus Health Se. Tex., 563
S.W.3d 219, 223 (Tex. 2018) (per curiam).
An expert report must provide a fair summary of the expert’s opinions
regarding the applicable standard of care, the manner in which the care rendered
failed to meet that standard, and the causal relationship between the failure to meet
the standard of care and the injury suffered. CIV. PRAC. & REM. § 74.351(r)(6);
Abshire, 563 S.W.3d at 223; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 878 (Tex. 2001) (citing former version TMLA). A trial court may
grant a motion to dismiss under the TMLA only if it appears that the expert report is
not an objective good faith effort to comply with the statutory requirements. CIV.
PRAC. & REM. § 74.351(l). An expert report demonstrates a “good faith effort” when
it informs the defendant of the specific conduct the plaintiff has called into question
and provides a basis for the trial court to conclude that the claims have merit. Baty v.
Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018).
In order for a report to be sufficient under the TMLA, the expert is required
to explain the basis of his statements and link his conclusions to the facts. Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing former
version TMLA); see also Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526
S.W.3d 453, 460 (Tex. 2017). An expert report “need not marshal all the plaintiff’s
proof,” but ‘[a] report that merely states the expert’s conclusions about the standard
of care, breach, and causation’ is insufficient. Palacios, 46 S.W.3d at 878–79;
accord Abshire, 563 S.W.3d at 223. In determining whether an expert report
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contains the required information, a court must review the entire report, not just
specific portions or sections. Baty, 543 S.W.3d at 694.
We review a trial court’s decision to deny a motion to dismiss based on the
sufficiency of an expert report for an abuse of discretion. Abshire, 563 S.W.3d at
223. In analyzing a report under this standard, we consider only the information
contained within the four corners of the report. Id. We defer to the trial court’s
factual determinations if supported by the evidence but review its legal
determinations de novo. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142
(Tex. 2015) (per curiam). A trial court abuses its discretion if it acts without
reference to guiding rules or principles. Id.
Appellants first assert that the expert report was insufficient because Dr. Hurt
failed to identify specific conduct by Appellants that breached the applicable
standard of care. An expert report must inform the defendant of the specific conduct
called into question. Palacios, 46 S.W.3d at 880. Although the plaintiff is required
to provide only a “fair summary” of the expert’s opinion, that summary “must set
out what care was expected, but not given.” Id. (quoting Palacios v. Am.
Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865 (Tex. App.—Houston [1st
Dist.] 1999) (Taft, J., dissenting), rev’d, 46 S.W.3d 873 (Tex. 2001)). An expert’s
mere conclusion that the standard of care was not met does not constitute a “good-
faith effort” to comply with the statutory requirements. Id.
In his report, Dr. Hurt stated that Zubia “passed away as a result of
intraoperative complications during anesthesia.” He opined that Appellants “are
each liable for contributing and causing the death” of Zubia. We note at the outset
that Dr. Hurt did not state in his report what intraoperative complications Zubia
allegedly suffered or Appellants’ role in either causing those complications or failing
to overcome those complications.
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Dr. Hurt set out two standards of care applicable to Kindle as a CRNA.2 The
first standard of care required Kindle to “[a]ccurately complete the pre-operative
assessment and anesthetic plan.” Dr. Hurt opined that this standard of care
specifically required Kindle (1) to consider the option of Monitored Anesthesia Care
and discuss that option with Zubia as a safer alternative to general anesthesia and (2)
to not allow an inexperienced laryngoscopist (third-year medical student) to attempt
an endotracheal intubation on a morbidly obese patient with a Mallampati score of
III.
In addressing the alleged breach of this “pre-operative” standard of care,
Dr. Hurt noted that, although the record did not indicate that Kindle discussed with
Zubia a Monitored Anesthesia Care plan as a safer alternative to general anesthesia,
“a general anesthetic is also an acceptable choice when properly and safely
administered.” Dr. Hurt also opined that, while Kindle exhibited poor judgment by
allowing a medical student to attempt the intubation, Kindle quickly, successfully,
and properly placed the intubation tube. Dr. Hurt, therefore, failed to identify any
conduct by Kindle that breached the first identified standard of care.
Dr. Hurt stated that the second standard of care applicable to a CRNA required
Kindle to properly check the anesthesia equipment, including the anesthesia machine
and monitors, and to monitor Zubia during the procedure. He stated that Kindle was
specifically required to check the anesthesia machine for leaks and assure that both
of the alarms on the monitors were set at acceptable audible levels and that the
ambient noise in the room was low enough to allow sufficient monitoring of the
patient. As to MCH, Dr. Hurt opined that the applicable standard of care required
that MCH, as Kindle’s employer, accurately “check out” the anesthesia machine,
2
Attached to Dr. Hurt’s report were eleven “Standards of Care which may or may [sic] apply to
CRNA (put out by the AANA).” Dr. Hurt did not specifically address these standards of care in his expert
report, and we will not consider them in the appeal.
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document this action, and maintain a professional operating room environment
regarding noise, distractions, checklists, and standardized practices.
In addressing any breach by Kindle or MCH of these standards of care,
Dr. Hurt stated that checking the anesthesia machine for leaks “would have likely
identified the subsequent failure of the anesthesia machine and its associated
ventilator during the delivery of anesthesia.” However, he recognized that it was
“not uncommon” for an anesthesia machine to fail and that, if the machine’s failure
is quickly recognized and corrective action taken, there is usually no resulting injury.
After stating that his opinion regarding monitoring “really comes from what is NOT
documented in this case than what is,” Dr. Hurt opined:
As we strive for standardization and efforts to follow evidence based
practices in all areas of medicine to increase safety and efficiency, some
common, yet unsafe practices do occur in the operating room.
Therefore, this is what I question[:] Was a machine and monitor check
done? Was the volume turned down on the monitors? Was the provider
distracted by a phone, computer, reading a book, doing a crossword
puzzle or even by talking with a medical student? Was the music turned
up in the room? From what is documented (including the autopsy
report), death doesn’t make sense in this case unless there was a
deviation from the standard of care as it relates to monitoring. For
years, prior to the advent of advanced monitors, such as the pulse
oximeter for example, vigilance of anesthesia providers was paramount
due to reliance on their own clinical observations (more so than
technology). With new technology and better equipment, the inherent
risk is a false sense of security! The ultimate monitor is the anesthesia
provider. Equipment used, machines and monitors are great, but they
are mere tools for the ultimate monitor. If alarms are silenced what
good are they? I have seen these deviations commonly occur and not
lead to morbidity and mortality, but then again, you can do something
wrong many times before the consequence catches up with you.
Finally, Dr. Hurt generally opined that Kindle and MCH “breached each of the above
standards of care in providing medical care and treatment” to Zubia.
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Dr. Hurt did not identify facts to support that any of the “unsafe practices” or
“deviations” identified in the report occurred during Zubia’s procedure, that Kindle
was distracted during the procedure, or that either Kindle or MCH committed any
act that constituted a breach of the applicable standard of care. Instead, Dr. Hurt
essentially speculated that conduct constituting a breach of the standard of care must
have actually occurred. However, an expert’s mere conclusions on the breach of a
standard of care are not sufficient to constitute a “good faith effort.” Palacios, 46
S.W.3d at 879. We conclude that the report does not meet the statutory requirement
that it show the manner in which the care rendered failed to meet the applicable
standard of care. See CIV. PRAC. & REM. § 74.351(r)(6).
Appellants also contend that Dr. Hurt failed to provide in the report the
necessary factual basis to support his opinion that negligence by Kindle or MCH
caused Zubia’s death. To comply with Chapter 74, an expert report must explain the
causal relationship between the breach of the standard of care and the injury, harm,
or damages claimed. Id. In other words, an expert is required to explain in the report
“how and why” the alleged negligence caused the injury in question. Abshire, 563
S.W.3d at 224; Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010).
An expert’s conclusory statement of causation is inadequate. Abshire, 563
S.W.3d at 224. Further, an expert report that speaks only of possibilities will not
meet the statutory standard for causation. Bowie Mem’l Hosp., 79 S.W.3d at 53.
However, a plaintiff is not required to prove her claim with the expert report.
Zamarripa, 526 S.W.3d at 460. Rather, the report must show that a qualified expert
is of the opinion that he can show how and why a breach of the standard of care
caused injury. Id. The expert is not required to “prove the entire case or account for
every known fact,” but he must explain the basis of his statements and link his
conclusions to specific facts. Abshire, 563 S.W.3d at 224; see also Zamarripa, 526
7
S.W.3d at 461 (“[W]ithout factual explanations, the reports are nothing more than
the ipse dixit of the experts, which . . . are clearly insufficient.”).
In his report, Dr. Hurt opined as to causation:
(1) “[D]eath doesn’t make sense in this case unless there was a
deviation from the standard of care as it relates to monitoring”;
(2) “It is more than likely that what occurred in this case was a
distracted provider with decreased monitor volume that did not
recognize a machine malfunction in a timely manner to be able
to successfully resuscitate Ms. Zubia (these are all things not
documented, nor commonly documented)”; and
(3) “Based upon a reasonable degree of medical probability, it was
[Kindle’s and MCH’s] breaches which were proximate causes”
of Zubia’s death.
Dr. Hurt also opined that a “contributing factor may have been noise or music in the
room,” but he recognized “that piece is purely conjecture.”
Dr. Hurt opined that a series of events led to Zubia’s death, but he did not link
that conclusion to any specific facts. As noted previously, there is no description in
Dr. Hurt’s report of the process by which Zubia’s death occurred. Furthermore, there
are no facts in Dr. Hurt’s report to support any assertion that (1) Kindle was
distracted, (2) there was a decreased monitor volume, (3) there was a machine
malfunction, or (4) Kindle did not recognize the malfunction in a timely manner.
To satisfy Chapter 74, an expert is required to do more than opine that one event
probably caused another. See Jelinek, 328 S.W.3d at 539–40 (concluding that
expert’s opinion that health care provider’s breach of the appropriate standard of
care in “reasonable medical probability, resulted in a prolonged hospital course and
increased pain and suffering being experienced by” the plaintiff, without more, was
conclusory on causation). Dr. Hurt’s “simple ipse dixit” is insufficient to establish
causation. See Zamarripa, 526 S.W.3d at 460 (quoting Earle v. Ratliff, 998 S.W.2d
8
882, 890 (Tex. 1999)). We conclude that Dr. Hurt’s report does not meet the
statutory requirement that it show a breach of the standard of care by either Kindle
or MCH caused Zubia’s death. CIV. PRAC. & REM. § 74.351(r)(6).
Because the report fails to inform Appellants of the specific conduct
challenged and does not sufficiently link Dr. Hurt’s opinion on causation to the
relevant facts, we conclude that the trial court abused its discretion by denying
Appellants’ motion to dismiss. See Jelinek, 328 S.W.3d at 540; Bowie Mem’l Hosp.,
79 S.W.3d at 53; Palacios, 46 S.W.3d at 880. Accordingly, we sustain Appellants’
issue on appeal.
The TMLA allows a trial court to grant one thirty-day extension to cure a
deficiency in an expert report. CIV. PRAC. & REM. § 74.351(c). A trial court must
grant an extension if the report’s deficiencies are curable. Zamarripa, 526 S.W.3d
at 461; Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). While Dr. Hurt’s
report does not specify any conduct by Kindle or MCH that either breached the
applicable standard of care or caused Zubia’s death, we cannot conclude that it
would be impossible to do so. Therefore, the trial court must have an opportunity to
consider an extension. See Zamarripa, 526 S.W.3d at 461.
This Court’s Ruling
We reverse the trial court’s order denying Appellants’ motion to dismiss and
remand this cause to the trial court for further proceedings consistent with this
opinion.
June 6, 2019 JOHN M. BAILEY
Panel consists of: Bailey, C.J., CHIEF JUSTICE
Willson, J., and Wright, S.C.J.3
(Willson, J., not participating)
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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