Fortner, Ronald and Pam v. Hospital of the Soutwest,LLP D/B/A the Heart Hospital Baylor Plano , 2013 Tex. App. LEXIS 4426 ( 2013 )

AFFIRM, REVERSE, and REMAND; and Opinion issued April 5, 2013
InThe
(mitt at Rpprule
3ifH Biztrkt at tnaz at Callus
No. 05-i l-00971-CV
RONALD FORTNER AND PAM FORTNER, Appellants
V.
HOSPITAL OF THE SOUTHWEST, LLP DIBIA THE HEART HOSPITAL BAYLOR
PLANO; GARY E. ERWiN, JR., M.D.; JEFF TAYLOR, M.D.; GREGORY MESSNER,
D.O.; HEALTH TEXAS PROVIDER NETWORK DIBIA DALLAS DIAGNOSTIC
ASSOCIATION-PLANO; JAMES E. RELLAS, M.D., P.A. D/BIA HEARTFIRST
CARDIOLOGY CENTER; AND MEDiCAL EDGE HEALTHCARE GROUP, P.A. D/BIA
THE TEXAS CLiNIC AT PRESTONWOOD, Appellees
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-02994-E
OPINION
Before Justices FitzGerald, Fillmore, and Richter’
Opinion By Justice Fillmore
This appeal follows the trial court’s dismissal ofthe health care liability claims asserted by
appellants Ronald Former and Pam Fortner against appellees Hospital ofthe Southwest, LLP dab/a
The Heart Hospital Baylor Piano (Baylor Hospital), Gary E. Erwin, Jr., M.D. (Dr. Erwin), Jeff
Taylor, M.D. (Dr. Taylor), Gregory Messner, D.O. (Dr. Messner), Health Texas Provider Network
d/b/a Dallas Diagnostic Association—Piano (Dallas Diagnostic), James B. Rellas, M.D., P.A. d/b/a
1
The Ilonoreble Martin E. Richter. Retired Justice Court of Appeals. Fifth District ofTexas at Dallas. sitting by assignment.
I (eartFirst Cardiology Center (I leartFirst), and Medical Edge Hcalthcarc Group. l’.A. d/b/a The
Texas Clinic ;,t Prestonwood (Texas ( ‘link) as a result ulappellees’ challenges to the sufficiency of
appellants’ expeils’ reports. In a single isSue, appellants contend the trial court, abused its discretion
in concluding the expert reports in this case fail to comply with the requirement of civil practice and
remedies code section 74.351 that an expert report demonstrate a causal relationship between the
Ibilure of a physician or health care provider to meet an applicable standard of care and the injury,
harm, or damage claimed. We affinu the trial court’s judgment in part. reverse the trial’s judgment
in part, and remand this cause to the trial court for further proceedings.
Background
Facts Alleged kv Appellants
We recite the facts as alleged in appellants’ First Amended Petition, their live pleading at the
time ofthe trial court’s orders dismissing all claims brought by appellants against appellees. On July
14,2008. appellant Ronald Fortner had an initial consultation with Dr. Messner, after a diagnostic
test earlier that day indicated Mr. Fortner suffered from multi-vessel coronary disease and complex
plaque. Dr. Messner recommended surgery on an emergent basis and performed a four vessel
quadniple coronary artery bypass graft the following day at Baylor Hospital. Post-operatively, Drs.
Messner Erwin, and Taylor and employees of Baylor Hospital were responsible for providing Mr.
Former’s healthcare.
“During and/or after surgery,” Mr. Fortner suffered from various problems including
sustained periods of severe hypotension. “Shortly after surgery and contemporaneous with the
hypotension,” Mr. Former began complaining ofvisual disturbances and partial loss ofvision, first
in one eye and then in the other. Appellants claim Di’s. Messner, Erwin, and Taylor and Baylor
Hospital nursing or medical staff were aware ofMr. Former’s vision-related complaints “when and
as Mr. Fortner was experiencing and expressing such complaints in proximity to events which tended
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tu c\plaln their ucenrrenec. cause and severity” hut did nut pmvide or uhtain nr cssarv medical
miervent iufl :\fl upI1tIliIili0I0tiSt was not consulted to evaluate NI i Ion ncr until about twenty
seven hours a I icr he began compl;unin about vision loss, by which I nuc he was blind in both eyes.
.‘ivpellants Theories a/Liability
‘
Appellants allege Drs. Messner, Erwin, and Taylor, and Baylor Hospital were negligent and
grossly negligent: Appellants Ilirther allege Dallas Diagnostic is vicariously liable fbr the
negligence of’ its members, i)rs. Erwin and Taylor [leartFirst and Texas Clinic are vicariously liable
liar the negligence of its employee. Dr. Messner; and baylor l-lospital is vicariously liable tiar the
negligence ul its “employees, agents, ostensible agents and representatives.”
i)ismissal o,f Appellants Claims ‘
Pursuant to section 74.35 1 of the civil practice and remedies code, appellants served
appellees with an expert report prepared by John Kress, M.D., a hoard—certified pulmonary and
critical care medicine physician, in support oftheir claims. See TEx. Civ. PRAC. & Rl.,\i. ConE ANN.
74.35 1(a) (West 2011) (in a health care liability claim, claimant shall, not later than the 120th day
after the date the original petition was filed, serve on each party or the party’s attorney one or more
expert reports, with a curriculum vitae of each expert listed in the report for each physician or health
care provider against whom a liability claim is asserted), Appellees filed objections challenging the
sufficiency of Dr. Kress’s report as failing to comply with the requirements of section 74.351. See
Appellants allege I )rs. Messncr, Erwin. and Taylor were negligent and grossly neglicent by biting to: I I properly and thoroughly examine
Mr. l’ortner. ) propcrl\ and thoroughly assess and diagnose Mr Fortner. 3) properly document Mr. Fortncr’s phvsccal condition. (4) provide Mr.
Fortner with adequate and/or timely treatment for his medical conditions. 15) order required treatment or care for Mr. Fortner on a timely basis, (b)
obtain appropriate specialized care and/or consultation for Mr. Fortner’s condition which these appeilces were unable to diagnose or treat.
Appellants allege Baylor hospital, either directly through its oon acts or omiSsions or under the doctrine of respotuleaf superior, was
negligent by: (I) foiling to properly document Mr. Former’s physical condition, (2) failing to properly transmit documetstation concerning Mr.
Fortner’s physical condition to the appropriate and necessary recipients. (3) failing to properly and timely communicate or ensure proper and timely
communication of information pertaining to Mr. Former’s physical condition or changes in his diagnosis orcondition among and between thehealth
care providers who were responsible for treating and diagnosing his condition. (4) authorizing the “doing and the manner of the acts and omissions
in question,’ (5) recklessly employing personnel who were unfit, incompetent, or unqualified to perform the duties assigned to them. (6) employing
personnel in managerial positions who were acting within the course and scope of their employment at the time the negligent acts or omissions
occurred and failed to prevent such acts or omissions, and (7) ratifying or approving the negligent acts or omissions in question through its officers.
inanagers. supevc sow. clii ectors. administrators, or nurses
Tix, Civ, PRAC, & REM, CODE ANN, § 7435 1(r)(h) (“expert report” means a written report by an
expei I that pi ovides i tan summu ot epei t s opinions is of the date of the i epoi t regat ding
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 injury,
harm, or damages claimed).
At the November 2010 hearing on appellees’ objections to the sufficiency of Dr. Kress’s
expert report, the parties announced on the record their agreement to an extension of time for
appellants to attempt to cure deficiencies in Dr. Kress’s expert report regarding the statutory
requirement that the expert report demonstrate a causal relationship between the alleged failure to
met the applicable standard of care and Mr. Fortner’s injury. It was the parties’ agreement that this
extension would serve as the one-time extension authorized in section 74.35 1(c). See TEx. Civ,
PRAC. & REM. CODE ANN, § 74.351( ) (if expert report has not been served within the period
specified in section 74.35 1(a) because elements of report are found deficient, court may grant one
30-day extension to claimant in order to cure the deficiency). At the hearing, the trial judge stated
he believed Dr. Kress’s report was deficient with respect to causation.
Appellants served appellees with a supplemental report from Dr. Kress and a report from a
new expert, Aifredo A. Sadun, M.D., Ph.D., a board-certified ophthalmologist with a clinical
specialty in neuro-ophthalmology. Appellees filed objections to the reports of Dr. Kress and the
report of Dr. Sadun, asserting the reports, whether considered separately or collectively,
3 did not cure
the alleged deficiencies, and moved to dismiss appellants’ health care liability claims with prejudice
pursuant to section 74.35 l(b)(2). See TEx. Civ. PRAC. & REM. CODE ANN. § 74.35 l(b)(2) (if health
care liability claimant does not serve expert report as required, the trial court must, upon motion by
Reports may be considered together in detenmning whether a claimant provided a report meeting the statutory requirements. See Tox,
CtV. PRAC. & Ro\i. Cooo ANN. 74.351(i).
iIlectcd IBsiclan or health care pros idcr. (Itsiniss claim with pmcjudmcc.
The trial court conducted a March 2011 hearine on appel Ices’ objections to appellants
experts’ reports and appellees’ motions to dismiss. The trial court concluded appellants’ experts’
reports Pu I to provide any opt n ion concenu n a cam usal connection between any hum lure to meet the
applicable standards ot care and injuries and damaees clammed 1w appellants, and. therefore, the
experts’ reports were insufficient and did not satisfy the requirements of section 74.351.
Havinn
concluded appellants’ experts’ reports did not meet the causation req uiremcnt of section 74.35 I
1w ,
order siened ,June 1 7. 2011, the trial court granted FleartFirst and Texas Clinic’s motion to dismiss
and ordered all claims brought by appellants against HeartFirst and Texas Clinic dismissed with
prejudice, By order signed September 2(i, 2011, the trial court granted the motions to dismiss ot
Drs. Messner, Erwin. and Taylor, Dallas l)iagnostic, and Baylor Hospital and ordered all claims
brought by appellants against them dismissed with prejudice.’
t Appellants filed this appeal of the
trial court’s dismissal of their health care liability claims,
I)iscussion
Stan da,’d of Review
We review a trial court’s order on a motion to dismiss a health care liability claim for an
abuse of discretion, See Am. Transitional care Ctrs. of Texas v. Palacios, 46 S.W,3d 873, 875
(Tex.200 I); iVexion Health at Terre/i Manor v. Tar/or, 294 S,W.3d 787. 79 I (Tex, App—Da1las
2009, no pet,), A trial court has no discretion in determining what the law is or in applying the law
to the facts. See Walker v. Pucker, $27 S.W,2d 833, 840 (Tex. 1992) (orig, proceeding), An abuse
of discretion occurs if the trial court clearly fails to analyze or apply the law correctly, Id.
Section 74351 (b)( 1) provides that if an expert report has not been served within the time period
specilied. the trial court, on a proper
motion, shall award “reasonable attorney’s fees and costs of court incurred by the physician or
health care provider. See Thx, Civ. Ptc,\C & REM
Coor Ac 74351 bx I). In its September 26. 2(1(1 order, the trial court noted Drs. Messner. Erwin.
and lavior. Dallas Diagnostic. and itavior
hospital wau ed recovery of attorneys’ ides for deleitse i tliw lawsuit in the trial court and in
any appellate court
Erperi kc’poris in health fire Liabili(v Claims
Under section 74.351 of the civil practice and remedies code, any person who brings suit
asserting a health care liability claim must, within 120 days of tiling the original petition, provide
an expert report 11w each physician or health care provider against whom a claim is asserted. TEX.
Civ. PRAC. & REM. CODE ANN. § 74.351(a). An “expert report” is defined as a written report that
provides a fair summary of the expert’s opinions as of the date of the report regarding 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. Id. § 74.351 (r)(6); see also hiowie Mem ‘I Ilosp. v. Wright, 79 S.W.3d 48,51
(Ta. 2002). When a plaintiffsues more than one defendant in connection with a health care liability
claim, the expert report must set forth the standard of care applicable to each defendant, show how
that defendant’s conduct failed to meet that standard, and explain the causal relationship between
each defendant’s individual acts and the injury, harm, or damages claimed. See TEx. Civ. PRAC. &
REM. CODE ANN. § 74.351(a), (r)(6); see also Scoresby v. Sanlilan, 346 S.W.3d 546,555—56 (Tex.
2011); Eiehelberger v. St Paul Med. Cv., 99 S.W.3d 636, 638 (Tn. App—Dallas 2003, pet.
denied). If a report omits any ofthese statutory elements ofsection 74.35 l(rX6), it cannot be a good
faith effort. Palacios, 46 S.W.3d at 879.
A trial court shall grant a motion challenging the adequacy of an expert report only if it
appears to the court, after hearing, that the report does not represent an objective good faith effort
to comply with the definition of an expert report in section 74.35 l(rX6). TEx. Civ. PR.’ic. &REM.
CODE ANN. § 74.351(7); see also Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tn. 2012). In
detennining whether the expert report represents a good faith effort to comply with the statutory
requirements, the trial court’s inquiry is limited to the four corners of the report Eichelberger v.
Mulvehill, 198 S.W.3d 487,490 (rex. App.—Dallas 2006, pet. denied) (citing Palacios, 46 S.W.3d
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at 878)). To represent an objective good thith effort to comply with statutory requirements. the
expert report rmLt (I) 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. LcIand
v. Branda4 257 S.W.3d 204,206—07 (rex. 2008); Palacios, 46 S.W.3d at 879.
An expert report need not mandial alt the plaintiff’s proof. WrighL 79 S.W.3d at 52.
However, it must do more than merely state the expert’s conclusions about the standard of care,
breach, and causation; it must explain the basis of the expert’s statements and link his conclusions
to the facts. Id.; Quinones v. Pin, 298 S.W.3d 806, 810 (Ta. App.—Dallas 2009, no pet). The
report must contain sufficiently specific information to demonstrate causation beyond mere
conjecture. See Farislata v. Tenet ffealthsysieni Hosps. Dallas; Inc., 224 S.W.3d 448.453 (Tex.
App.—Port Worth 2007, no pet). Thus, courts have reasoned that an expert report that describes
causation in terms of mere possibilities does not accomplish the purpose of providing “a basis for
the trial court to conclude that the claims have merit.” Wrigh6 79 S.W.3d at 52; see also Quinones,
298 S.W.3d at 815—16.
Appeilants’ ELrperts Reports
Appellants served appellees with two reports from Dr. Kress and a report from Dr. Sadun.
Appellees challenged the reports and moved to dismiss appellants’ health care liability claims.
In Dr. Kress’s July 8, 2010 expert report, he states his opinions are given “within a
reasonable degree of medical certainty or probability.” He indicates that he is Ibmiliar with the
standard for delivery ofhealthcare in a critical or intensive care setting, “including the care provided
by surgeons whose patients are in that setting, critical care specialists, numes, physical therapists,
and other health care providers and allied health care providers who practice or participate in the care
of patients in a critical care setting.” His first report includes the following:
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On post operative day one (7/1 6/08) Mr. Former noted visual changes. A physical
therapist initial evaluation noted a “requirement f/r assistance secondary to visual
impairment” at 3:04 PM. A nurse’s note by Karla Jones on 7/161(38 at 1%: 10 notes
“visual field disturbances ....“ At 1 8:4(3, Ms. Jones notified Dr. Erwin, and at
19:2(3, Dr. Messner was notified, The first consultative evaluation of Mr. Fortner’s
visual complaints was a neurology consultation the next day (7/17/08) at 9:51 AM.
Pulmonary/Critical care consultant (note dated 7/17/0%) stated “Opthal consult
if indicated”. An ophthalmology consult was not obtained, however, until 7/1 7/0%
at 17:38, approximately one day after the patient was initially noted to have acute
visual changes. The patient was ultimately noted to have anterior ischemic optic
neuropathy with permanent blindness in both eyes.
Whenever a patient experiences visual changes, this is a medical emergency that
requires immediate and appropriate evaluation. Time is critical. It is my opinion that
the potential for blindness in a post coronary bypass graft patient, particularly one
who has experienced recent hypotension and anemia, is a foreseeable event. in a
specialty heart hospital, the foreseeability of such an event would be greater than
elsewhere, thus one would expect health care providers practicing in such a setting,
including physicians, nurses and physical therapists, to be trained in identifying and
responding to the signs and symptoms suggestive of potential vision loss.
It is my opinion that the applicable standard of care in the critical setting which Mr.
Fortner was in, following his surgery—a critical care unit in a specialty heart
hospital— is such that immediate ophthalmologic., as well as neurologic, consultation
was required for Mr. Fortner upon first notice to any member of a the [sic] health
care team, of any acute change in the patient’s vision, and should have been obtained
emergently. As a cardiothoracic surgeon, Dr. Messner should be familiar with and
able to foresee the potential for ischemic injury to the brain and/or eyes given a past
medical history of hypertension and perioperative anemia and hypotension. As
critical care physicians generally, and especially in a specialty heart hospital, Drs.
Erwin, Taylor, and the PULM/CC PHYSICIAN (if other than Drs. Taylor and Erwin)
should be familiar with and able to foresee the potential for ischemic injury to the
brain andlor eyes given a past medical history of hypertension and pen-operative
anemia and hypotension. Nurses and physical therapists in such a setting should be
trained to immediately procure immediate physician attention for any patient who
complains of visual changes.
It is my opinion that the applicable standard of care was breached by the physical
therapist employed at [Baylor Hospital], when she merely noted Mr. Fortner’s acute
visual change on 7/16/08, but apparently did nothing further, including
communicating the condition to a physician so that immediate evaluation could
occur. It is my opinion that Drs. Messner, Erwin, and Taylor and the PULM/CC
PHYSICIAN (if other than Drs. Taylor and Erwin) each breached the applicable
standard of care by not obtaining immediate ophthalmologic, as well as neurologic,
consultation, and by not providing any appropriate therapy or intervention to address
Mr. Fortner’s visual changes, upon being notified of the same. It is my opinion that
[Baylor Hospital] breached the applicable standard of care by apparently failing to
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provide training to its stalL including but not necessarily limited to its physical
therapy providers, about the urgent need for intervention in the form of specialty
consultative care, and when and how to access the same. in the event ofa foreseeable
emergent visual condition such as Mr. Former’s.
Dr. Kress opines that each of the breaches of the standard of care by Baylor Hospital, Baylor
Hospital’s employees, Dr. Messner. Dr. Erwin, and Dr. Taylor proximately caused or contributed
to causation of Mr. Fortner’s injury.
In his December 29, 2010 supplemental report, Dr. Kress notes the consulting
ophthalmologist recommended correction of Mr. Former’s hypotension and anemia. “However, by
that time, the patient was noted to have blindness in both eyes which ultimately was determined to
be anterior ischemic optic neuropathy.” Dr. Kress opines that Baylor Hospital breached the
applicable standard of care by either failing to have or enforce policies and procedures, or standing
orders, directing practitioners, nurses, and other health care providers about when and how to access
specialty consultative care in the event ofa foreseeable visual condition such as Mr. Fortner’s. He
further opines the applicable standard of care was breached by a physical therapist employed by
Baylor Hospital when she noted Mr. Former’s acute visual change but did not communicate the
condition to a physician so that immediate evaluation could occur and by a nurse at Baylor Hospital
when she delayed communication to a physician about Mr. Fortner’s visual changes after she was
aware of the changes. With regard to Drs. Messner, Erwin, and Taylor, Dr. Kress states the
physicians did not act to treat Mr. Fortner’s anemia or hypotension during “the recognized window
of opportunity” on July 16, 2008, when Mr. Former’s acute visual changes were first noted. Dr.
Kress specifically refers to the December 20,2010 report of Dr. Sadun as describing the “window
ofopportunity” during which corrective action must be taken. Dr. ICress opines the breaches ofthe
standards of care by Baylor Hospital, Baylor Hospital’s employees, and Drs. Messner, Erwin, and
Taylor proximately caused or contributed to causation ofMr. Former’s injury, and states causation
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is more fully described in Dr. Sadun’s report.
In his December 20, 201 () report, Dr. Sadun states he “speakis] to the issue of causation”
Dr. Sadun notes that by postoperative day two, Mr. Fortner’s drop in hernatocrit and hemoglobin
“meant that he had essentially lost half of his red blood cell volume,” and shortly after surgery, Mr.
Fortner’s blood pressure was about half of his preoperative blood pressure. In his report, Dr. Sadun
states:
By postoperative day one, Mr. Fortner noted decreased vision in the right eye and
then a day or two later in the left eye,. When he was seen by ophthalmology July
.
17, 2008 at about 5:30 in the evening the diagnosis was anterior isehemic optic
neuropathy with a complete loss of vision in both eyes.
There are two types of anterior ischemic neuropathy Bilateral loss of vision in
conjunction with this type of surgery and at such a profound extent is almost certainly
the rare second form of anterior isehemic optic neuropathy The mechanism of
this type of postsurgical anterior ischemic optic neuropathy can ... be termed
shock induced optic neuropathy.
According to Dr. Sadun, shock induced optic neuropathy, a “watershed infarct (a type of stroke),”
is due to a combination of factors that decreases the supply of oxygen in a “more diffuse fashion”
than other types of infarcts caused by blood vessel blockage or bleeding. He states that in
circumstances where the patient becomes very anemic (low hematocrit) or experiences drops in
blood pressure for a “reasonably long duration,” shock induced optic neuropathy can occur.
According to Dr. Sadun, the amount of time it takes the optic nerve to undergo “irreversible loss”
following a lack of adequate blood supply “is in the order of a hundred minutes,” although there are
a number of factors that “might make this longer.” According to Dr. Sadun:
Shock induced neuropathy occurs during but also after surgery. it is not uncommon
for it to occur one or two days later.
Once shock induced optic atrophy occurs there is probably only a narrow window of
opportunity to reverse it. This is best done by blood transfusions, which increase the
hematocrit or hemoglobin. There may be circumstances where raising the blood
pressure is also useful.
In )tiiu. Imir units ol bhn)d Ic) ise hue ilcuulatocril \\ eve not iveii to Mr. Foitner until the illenionu
and evenine of July 17 and the afiernoons of July 19 and 20, Dr. Sadun states in his report:
1 his delay in transfusion probably represented the last opportunity to reverse the
visual loss for N Ir. Fortncr. Failure to do so at this time was inordinate and
unlortunale. Indeed, the request flr an ophthalmology consultation did result in a
belated recommendation br blood transfusion (and to take effbrts to maintain blood
Iwessure). Specifically, Dr. Lu. at about I 7:3S on the 17th and Dr. Brochner. the next
day, expiesslv recommended effirts to rinse the blood pressure and reverse the
anemia as reflected by the low hemoglobin and hematocrit. This delay in boosting
Mr. bortuer’s blood pressure. and more particularly in correcting his severe anemia,
nothwilhstanding, his havi na severe hvpotension and anemia, while also complaining
of visual disturbance, was, in my opinion, a breach in the standard of care.
In I)r. Sadun’s opinion, Mr. Fortner’s loss of vision was a consequence ofa “drop in blood count
as
expressed by hemoglobin and hematoer it (anemia), possibly complicated by drops in blood
pressure.” With regard to causation, Dr. Sadun opines there was a failure by Baylor Hospital
and
Drs. Messner, Erwin, and Taylor to obtain timely consultation by an ophthalmologist and a resulting
failure to timely commence transfusion therapy and blood pressure elevation. “In concert, this led
to Mr. Fortner’s permanent blindness.”
Direct Liahiliti Claims Against Baylor Hospital and Drs. Messner, Erwin. and Tar/or
Appellants’ expert reports discuss the medical necessity of timely and appropriate evaluation
when a post-surgical coronary artery bypass patient in critical care experiences vision impairment,
particularly when the symptom arises in conjunction with recent hypotension and anemia. According
to the expert report of Dr. Kress, I)rs. Messner, Erwin. and Taylor should be familiar with, and able
to foresee, the potential for “ischemic injury to the brain and/or eyes given [Mr. Fortncr’s] past
medical history of hypertension and pen-operative anemia and hypotension.” In addition, Dr. Kness
opined that nurses and physical therapists at a specialty heart hospital, such as Baylor Hospital,
should be trained to immediately procure physician attention for any patient who complains of vision
changes. The expert reports of Dns. Kress and Sadun make clear that the “watershed” post-surgical
l 1—
anterior ischemic optic neuropathy experienced by Mr. Fortner required timely response and
intervention, and opine that the breaches oldie applicable standards of care by appellees resulted in
untimely and ineffective responses to Mr. Fortner’s complaints about vision impairment and.
consequently. Mr. Fortner’s permanent blindness.
Dr. Messner argues that the expert reports of Drs. lCress and Sadun are inadequate with
respect to causation because they require the trial court to make impennissible inferences concerning
the timing of the opening and closing of the “window of opportunity” to take corrective action,
whether Dr. Messner became aware of Mr. Former’s vision disturbance within the “window of
opportunity,” and whether Dr. Messner could have arranged for effective treatment by an
ophthalmologist within the “window of opportunity.” A similar argument is made by Drs. Erwin
and Taylor. Baylor Hospital argues appellants’ experts did not “explain how [Baylor Hospital’s]
alleged breach in failing to have policies and procedures caused Mr. Former’s permanent blindness.”
Appellces demand too much from the expert report required by section 74.351. One of the
fundamental purposes ofthe expert report requirement in section 74.351 is to deter frivolous claims.
Palacios, 46 S.W.3d at 878 (Legislature has determined that filing expert report that does not
evidence good faith effort to comply with definition ofexpert report means claim is either frivolous
or, at best, has been brought prematurely). An expert report need not marshal all the plaintiff’s proof
necessary to establish causation at trial. Wright, 79 S.W.3d at 52; Fagadau v. Wenkstern, 311
S.W.3d 132, 138 (Tex. App.—Dallas 2010, no pet). Indeed, section 74.351 does not require that an
expert report anticipate and rebut all possible defensive theories that may ultimately be presented to
the trial court, and the fact a plaintiffmay not prove causation at trial does not mean an expert report
was inadequate. See Fagadau. 311 S.W.3d at 139. instead, the expert report must represent a good
faith effort to provide a fair summary ofthe expert’s opinions about the applicable standard of care,
the manner in which the care fhiled to meet that standard, and the causal relationship between that
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täilurc and the claimed injury. I’alucios, 46 S.V.3d at 878. The expert report must contain
sufficiently specific information to demonstrate causation beyond mere conjecture. Fagadau, 311
S.W.3d at 13%. Further, the expert must explain the basis of his statements and link his conclusions
to the facts. Wright, 79 S.W.3d at 52; Quinones, 298 S.W.3d at 810.
Here, within the thur corners ofthe expert reports, Drs. Kress and Sadun collectively opine
that Baylor hospital employees and Drs. Messner, Erwin, and Taylor comprised the tcam responsible
for Mr. Fortner’s post-surgical critical care. The expert reports collectively indicate that, while Mr.
Former’s post-surgical complaints of vision impairment should have been recognized by these
physicians and health care providers as problematic in light of Mr. Former’s hypotension and
anemia, Mr. Former did not receive timely attention and treatment, including timely consultation by
an ophthalmologist, blood transfusion therapy, and measures to elevate blood pressure, which caused
the optic nerve of each of Mr. Fortner’s eyes to be deprived of an adequate blood supply over a
period of time sufficient to result in permanent blindness in both eyes. The expert reports identify
each physician and health care provider against which direct liability claims are asserted, including
Baylor Hospital, and discuss how the provider breached the applicable standard of care and caused
or contributed to causation of Mr. Fomter’s injury. With regard to Baylor Hospital, Dr. Kress opines
that the hospital breached the applicable standard of care by either failing to have or enforce policies
and procedures, or standing orders, directing practitioners, nurses, and other health care providers
about when and how to access specialty consultative care in the event of a foreseeable visual
condition such as Mr. Former’s, resulting in untimely health care intervention and Mr. Former’s
injury.
The expert reports in this case represent a good faith effort to provide a fair sunlinary ofthe
experts’ opinions about the applicable standard of care, the manner in which the care fäi led to meet
that standard, and the causal relationship between the failure and the claimed injury. Collectively,
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the expen reports contain sufficient iniormation to mlonn appellees of the specific conduct that
appellants have called into question and to provide a basis for the trial court to conclude the claims
have merit. See Brandal, 257 S.W.3d at 206—07; Palacios, 46 S.W.3d at 879. Therefore, we
conclude the trial court abused its discretion in dismissing appellants’ direct liability claims against
Baylor Hospital and L)rs. Messner, Erwin, and Taylor. We resolve appellants’ sole issue in their
favor in part
Direct Liabihly Claims Against 1)allas Diagnostic. HeariFirst, and Texas Clinic
In their First Amended Petition, appellants allege the “entity” appellces—Dallas Diagnostic,
HeadFirst, Texas Clinic, and Baylor Hospital—were negligent In their btief appellants
affirmatively state they are “not pursuing claims of direct negligence, as opposed to vicarious
liability, against any ofthe entity [appelleesj other than [Baylor Hospital].” Therefore, we conclude
the trial court did not abuse its discretion by dismissing with prejudice appellants’ direct liability
claims ofnegligence, as opposed to vicarious lithility asserted against Dallas Diagnostic, HeadFirst,
and Texas Clinic. We affirm the trial court’s dismissal of appellants’ direct liability negligence
claims against Dallas Diagnostic. HeartFirst, and Texas Clinic, and we resolve appellants’ sole issue
against them in part.
Vicarious Liability Claims Against
Baylor Hospital, Dallas Diagnostic. IleartFirst, and Texas Clinic
Appellants allege Dallas Diagnostic is vicariously liable for the negligence of its members,
Drs. Erwin and Taylor. Appellants likewise allege HeartFirst and Texas Clinic are vicariously liable
for the negligence of their employee, Dr. Messner. Finally, appellants allege Baylor Hospital is
vicariously liable for the negligence of its employees, agents, ostensible agents and representatives.
With regard to appellants’ theories of vicarious liability asserted against Dallas Diagnostic,
HeadFirst, Texas Clinic, and Baylor Hospital, “when a health care liability claim involves a
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vicarious liability theory, either alone or in combination with other theories, an expert report that
meets the statutory standards as to the employee is sufficient to implicate the employer’s conduct
under the vicarious liability theory. And if any liability theory has been adequately covered, the
entire case may proceed.” Cenied EMS Inc. d/h/a CPA’S Staffing v. Potts, No. 11-0517,2013 WL
561471, at 6 (Fez. Feb. 15,2013). See also, ITHR Ltd P ship v. Moreno, No. 114)630 (Tex. Apr.
5,2013). available at http:llwww.supreme.courts.state.tx.us/historicalt2o I 3/apr! II 0630.pdf. Having
concluded appellants’ experts’ reports represent an objective good faith effort to comply with the
definition ofan expert report in section 74.35 1(rX6) with regard to appellants’ direct liability claims
against Drs. Erwin, Taylor, and Messner. those reports are sufficient to support appellants’ vicarious
liability claims against Daflas Diagnostic, HeartFirst, and Texas Clinic.
Dr. Kress expresses the following opinions regarding the negligence of Baylor Hospital
employccs: a physical therapist was negligent when she noted Mr. Fortner’s acute visual change but
did not communicate the condition to a physician so that immediate evaluation could occur, and
Nurse Jones was negligent by delaying communication to a physician about Mr. Former’s visual
changes alter she was aware ofthe changes. Baylor Hospital argues the expert reports lack sufficient
specificity on causation because the experts did not opine that any breach by hospital employees
“occurred within the 100-minute window or the ‘narrow window ofopportunity,’ during which the
visual loss allegedly could have been reversed.”
As discussed above, the expertreports opine Mr. Fortner’s post-surgical complaints ofvision
impainnent should have been recognized by the health care providers and physicians providing post-
surgical critical care, including the Baylor Hospital employees, and the failure to provide timely
attention and treatment caused the injuries to the optic nerves in each ofMr. Former’s eyes, resulting
in total blindness. With regard to appellants’ clam of the vicarious liability of Baylor Hospital for
the negligence of its employees, appellants’ experts’ reports represent an objective good thith effort
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to comply with the dclinition of an expert report in section 74.35 l(r)(6), and those reports are
sufficient to support appellants’ vicarious liability claim against Baylor Hospital.
iherelore, we conclude the trial court erred in dismissing appellants’ vicarious liability
claims against Baylor Hospital, Dallas Diagnostic, Ileartfirst, and Texas Clinic. We resolve
appellants’ sole issue in their favor in part.
Iq/irnied Consent Claims
in their First Amended Petition, appellants allege neither Dr. Messner nor Baylor Hospital
disclosed to, or informed, Mr. Former that vision loss was a potential risk or hazard associated with
the anticipated surgical or post-surgical procedures. See TEL Civ. PRAC. & REM. CODE ANN. §
74.101 (West 2011) (in health care liability claims based on lack of informed consent, “the only
theory on which recovery may be obtained is that of negligence in failing to disclose the risks or
hazards that could have influenced a reasonable person in making a decision to give or withhold
consent”); Greenbergv. Gilen, 257 S.W.3d 281,28243 (Tex. App.—Dallas 2008, pet. dismissed)
(in cases alleging lack of informed consent, there are two separate parts to causation analysis:
whether a reasonable person could have been influenced to decide to give or withhold consent by
being infonned of risks or hazards that were not disclosed, and whether injury complained ofwas
caused in fact by the undisclosed risk). In their brief, appellants state, “Although [appellants] also
asserted a lack of informed consent as part oftheir negligence claims against [Baylor Hospital], Dr.
Messner, and his employers [HeartFirst, and Texas Clinic], the court dismissed the informed consent
allegation by bench order.” At the March 2011 hearing, appellants’ counsel stated he understood
the informed consent claims would be “taken off the table” unless appellants provided an expert
report addressing those claims, and he acknowledged there was no expert report addressing those
claims. On appeal. appellants have not asserted the trial court erred by dismissing their direct
liability claims of lack ofinformed consent against Dr. Messner or Baylor Hospital and their claims
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of vicarious liability for lack of informed consent against Dr. Messner’s employers, HeartFirst or
Texas Clinic. lherclore, we conclude the trial court (lid not abuse its discretion by dismissing with
prejudice appellants’ claims of lack of informed consent against Dr. Messner, Baylor Hospital,
I leartFirst. and Texas Clinic. We affinu the trial court’s dismissal of appellants’ claims of lack of
informed consent, and we resolve appellants’ sole issue against them in part.
Conclusion
We affirm the trial court’s dismissal ofappellants’ claims oflack ofinformed consent against
Baylor Hospital, Dr. Messner, HeartFirst, and Texas Clinic. We affirm the trial court’s dismissal
of appellants’ direct liability claims against Dallas Diagnostic, HeartFirst, and Texas Clinic. We
reverse the trial court’s dismissal of appellants’ direct liability claims against Baylor Hospital, Dr.
Mcssner. Dr. Erwin. and Dr. Taylor and appellants’ vicarious liability claims against Baylor
Hospital, Dallas Diagnostic, HeartFirst and Texas Clinic. We remand this cause to the trial court
for further proceedings.
ROBERT M. F1LLMORE
JUSTiCE
I lO97lF.P05
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Quurt tif ii’p’ak
Fift1! itrirt 01 cxai at tlalku3
JUDGMENT
RONALD FO RTNER AND PAM Appeal from the 101st Judicial District Court
FORTNER, Appellants of Dallas County, Texas. (Tr.O.No. l0
02994 E).
No. 051 1M097i-CV V. Opinion delivered by Justice Fillmore,
Justices FitzGerald and Richter participating.
HOSPITAL OF THE SOUTHWEST. LLP
1)/B/A THE HEART hOSPITAL BAYLOR
PLANO; GARY E. ERWIN. JR.. M.D.: JEFF
TAYLOR, M.D.: GREGORY MESSNER,
D.O.: HEALTH TEXAS PROVIDER
NETWORK D/B/A DALLAS DIAGNOSTIC
ASSOCIATION-PLANO: JAMES E.
RELLAS, M.D.. P.A. D/B/A HEARTFIRST
CARDIOLOGY CENTER: AND MEDICAL
EDGE HEALTHCARE GROUP, P.A. D/B/A
THE TEXAS CLINIC AT PRESTONWOOD.
Appel lees
In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s judgment
dismissing with prejudice appellants’ direct liability negligence claims against Health Texas Provider
Network dlb/a Dallas Diagnostic Association—Plano; James E. Rellas. M.D., P.A. dlb/a HeartFirst
Cardiology Center; and Medical Edge Healthcare Group, P.A. dlb/a The Texas Clinic at
Prestonwood. We AFFIRM the trial court’s judgment dismissing with prejudice appellants’ lack
of informed consent claims against Hospital of the Southwest, LLP dlb/a The Heart Hospital Baylor
Piano; Gregory Messner, D.O; James E. Rellas, M.D., P.A. d!b/a HeartFirst Cardiology Center; and
Medical Edge Healthcare Group, P.A. dlb/a The Texas Clinic at Prestonwood. We REVERSE the
trial court’s judgment dismissing with prejudice appellants’ direct liability claims against Hospital
of the Southwest, LLP dlb/a The Heart Hospital Baylor Piano; Gary E. Erwin, Jr., M.D.; Jeff Taylor,
M.D.; and Gregory Messner, D.O. We REVERSE the trial court’s judgment dismissing with
prejudice appellants’ vicarious liability claims against Hospital of the Southwest, LLP dlb/a The
Heart Hospital Baylor Piano; Health Texas Provider Network dlb/a Dallas Diagnostic
Association—Piano; James E. Rellas, M.D., P.A. dlb/a HeartFirst Cardiology Center; and Medical
Edge Healthcare Group, P.A. dlb/a The Texas Clinic at Prestonwood. We REMAND this cause to
the trial court for further proceedings. We ORDER that eachpary bear its own costs of this appeal.
Lf_—
Judgment entered April 5, 2013.
/
.
ROBERT M. FILLMORE
JUSTICE