Granbury Hospital Corporation D/B/A Lake Granbury Medical Center v. Donna Hosack as Representative of the Estate of Temple Hall ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00297-CV
GRANBURY HOSPITAL CORPORATION
D/B/A LAKE GRANBURY MEDICAL CENTER,
Appellant
v.
DONNA HOSACK AS REPRESENTATIVE
OF THE ESTATE OF TEMPLE HALL,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. C200900041
MEMORANDUM OPINION
Donna Hosack, as Representative of the Estate of Temple Hall, sued Granbury
Hospital Corporation d/b/a Lake Granbury Medical Center (“LGMC”) for negligence,
gross negligence, and wrongful death.1 After receiving Hosack’s expert reports, LGMC
filed a motion to dismiss Hosack’s lawsuit pursuant to section 74.351 of the Civil
Practice and Remedies Code. The trial court denied the motion. On appeal, LGMC
1
Hosack sued other defendants who are not parties to this appeal.
challenges the denial of its motion to dismiss, arguing that Hosack’s expert reports are
insufficient as to causation. We reverse and remand.
STANDARD OF REVIEW AND APPLICABLE LAW
When considering a motion to dismiss under section 74.351, the issue for the trial
court is whether the report represents a good-faith effort to comply with the statutory
definition of an expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.
2001). An “expert report” is:
A written report by an expert that provides 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) (Vernon Supp. 2009). To constitute a
“good-faith effort,” the report must discuss the standard of care, breach, and causation
with sufficient specificity to: (1) inform the defendant of the specific conduct the
plaintiff has called into question; and (2) provide a basis for the trial court to conclude
that the claims have merit. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.
The trial court should look no further than the report itself, because all the
information relevant to the inquiry is contained within the document’s four corners.
Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. Although an expert report need not
marshal all the plaintiff’s proof, the expert may not merely state conclusions about the
required elements of standard of care, breach, and causation. Bowie, 79 S.W.3d at 52.
Granbury Hospital Corp. v. Hosack Page 2
The report must include the expert’s opinion on each of the three elements. Id.; Palacios,
46 S.W.3d at 878. The expert must explain the basis of his statements to link his
conclusions to the facts. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).
We review a trial court’s order on a motion to dismiss a claim for failure to
comply with the expert report requirements under an abuse-of-discretion standard.
Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. When reviewing matters committed
to the trial court’s discretion, we may not substitute our own judgment for the trial
court’s judgment. See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989).
EXPERT REPORTS
Dr. Lige B. Rushing explained that Hall, born in 1935, had a lengthy history of
medical conditions. After suffering from a fall, Hall was admitted at LGMC. Shortly
thereafter, Hall developed pressure ulcers.
Rushing explained that the standard of care required LGMC and its staff to
provide: (1) “that level of care and treatment that a reasonable, prudent, similar facility
would provide under the same or similar circumstances;” (2) “that level of care,
treatment, and supervision to prevent accidents;” and (3) “the necessary care, treatment,
and supervision to prevent the development of pressure ulcers.” He explained that the
standard of care for preventing and/or treating pressure ulcers requires: (1)
“assessment of the residents [sic] risks for skin breakdown and if the resident is at risk
for skin breakdown, [] implement a plan of care to address that risk;” (2) “proper
pressure relieving strategies, i.e. turning and repositioning at least every two hours,
Granbury Hospital Corp. v. Hosack Page 3
adequate nutrition and hydration;” and (3) “proper hygiene such as keeping the
residents clean and their environment free of urine, feces, and sweat as is possible.”
Rushing opined that LGMC knew of Hall’s “increased risk for development of
pressure ulcers because of her advanced age, her diabetes, and her limited mobility.”
He explained that LGMC breached the standard of care by leaving Hall on a bedpan too
long, resulting in the development of pressure ulcers and “set[ting] in motion a
connected series of events resulting in the pressure ulcer photographed on 03/12/07
and which persisted until her death on 04/11/07.” Rushing concluded:
As a result of these pressure ulcers, Mrs. Hall experienced decreased
mobility, increased metabolic requirements, worsening of the ulcer, and
the pressure ulcer was a source of infection and toxins, all of which
contributed to her death.
Absent these failures, “Hall would not have died when she did.”
In her expert report, registered nurse Suzanne Frederick explained the standard
of care for the LGMC nurses, opined that Hall was “at risk for skin breakdown,” and
concluded that Hall was “left on the bedpan too long, which was substandard” and that
this “breach of the standard of care proximately caused a linear pressure ulcer around
Ms. Hall’s buttocks and upper thighs.” She concluded that “based on a reasonable
degree of nursing certainty, [] this pressure ulcer would not have occurred had the
nurses removed Ms. Hall from the bedpan timely.”
ANALYSIS
LGMC challenges both Frederick’s report and Rushing’s report on the basis that
neither is sufficient as to the element of causation.
Granbury Hospital Corp. v. Hosack Page 4
First, LGMC correctly argues that Frederick is not qualified as an expert on
causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a) (Vernon 2005); see also TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C). She may, however, testify as to the
standard of care and breach of that standard. See HealthSouth Corp. v. Searcy, 228 S.W.3d
907, 909 (Tex. App.—Dallas 2007, no pet.).
Second, LGMC argues that Dr. Rushing’s report is “conclusory, speculative, and
requires the trial court to infer a causal link between the alleged wrong-doing and the
patient’s death over six weeks later.” We agree.
In his report, Rushing concludes that LGMC’s conduct violated the standard of
care by allowing Hall to remain on a bedpan too long, resulting in the development of
pressure ulcers, which released infection and toxins into Hall’s system, and launching a
series of events that eventually contributed to her death. However, his report indicates
that Hall died of cardiorespiratory arrest. Rushing does not explain how Hall’s
development of pressure ulcers resulted in her cardiorespiratory arrest. Because
Rushing’s report fails to connect the occurrence of pressure ulcers to Hall’s death, his
report is insufficient on the element of causation. See Regent Health Care Ctr. of El Paso,
L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex. App.—El Paso 2008, no pet.) (“[W]hile the
report indicates that the breach of the standard of care resulted in worsening of the
described skin conditions, there is no linkage to the cause of death, aside from the
assertion of a close temporal proximity between the conditions and the premature
death.”); see also Nexion Health at Southwood, Inc. v. Judalet, No. 12-08-00464-CV, 2009
Tex. App. LEXIS 7404, at *11 (Tex. App.—Tyler Sept. 23, 2009, no pet.) (mem. op.)
Granbury Hospital Corp. v. Hosack Page 5
(Expert report was deficient on causation because “[expert] failed to explain the causal
relationship between the decedent’s leg fracture and her death;” i.e., “how a fractured
leg caused her to experience congestive heart failure.”).
Nevertheless, Hosack conditionally argues that she is entitled to remand of this
cause to the trial court to consider granting a thirty-day extension.2
If an adequate expert report has not been served within the period specified by
Subsection (a) because elements of the report are found deficient, the court may grant
one 30-day extension to the claimant in order to cure the deficiency. TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(c). Where a report is not “so deficient as to constitute no
report at all,” a plaintiff is entitled to remand of the case to the trial court to consider
granting an extension to cure. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 670-71 (Tex.
2008) (citing Ogletree v. Matthews, 262 S.W.3d 316, 323 (Tex. 2007) (Willett, J., concurring)
and Lewis v. Funderburk, 253 S.W.3d 204, 211 (Tex. 2008) (Willett, J., concurring)).
We cannot say that Rushing’s report is “so deficient as to constitute no report at
all.” Gardner, 274 S.W.3d at 670; see Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008).
The report identifies the standard of care and the manner in which the standard of care
was not met. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). It is deficient with
respect to the element of causation. Under these circumstances, Hosack is entitled to
remand. See Gardner, 274 S.W.3d at 670; see also Leland, 257 S.W.3d at 207-08; Wallace,
271 S.W.3d at 441; Judalet, 2009 Tex. App. LEXIS 7404, at *14.
2 In her response to LGMC’s motion to dismiss, Hosack requested an additional thirty days to cure
in the event her reports were found to be deficient. The trial court denied the motion to dismiss; thus, it
did not rule on Hosack’s request.
Granbury Hospital Corp. v. Hosack Page 6
In summary, we sustain LGMC’s sole issue, reverse the trial court’s order
denying LGMC’s motion to dismiss, and remand this cause for further proceedings
consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Reversed and remanded
Opinion delivered and filed April 28, 2010
[CV06]
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