Select Specialty Hospital-Houston Limited Partnership D/B/A Select Specialty Houston - Houston West v. Keith Simmons and Kirk Simmons ( 2013 )

Opinion issued July 25, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00658-CV
———————————
SELECT SPECIALTY HOSPITAL-HOUSTON LIMITED PARTNERSHIP
D/B/A SELECT SPECIALTY HOSPITAL HOUSTON WEST, Appellant
V.
KEITH SIMMONS AND KIRK SIMMONS, Appellees
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2012-02433
MEMORANDUM OPINION
This is an interlocutory appeal from the denial of appellant’s motion to
dismiss appellees’ claims under Chapter 74 of the Texas Civil Practice and
Remedies Code. We affirm.
BACKGROUND
Plaintiffs/appellees Keith Simmons and Kirk Simmons (Plaintiffs) are the
children of Willie Lee Simmons (Simmons), who is now deceased. Plaintiffs sued
defendant/appellant Select Specialty Hospital-Houston Limited Partnership d/b/a
Select Specialty Hospital Houston West (Select Specialty) complaining of its
nurses’ medical care of Simmons before his death. Plaintiffs served two medical
expert reports, one by Cheryall Sparks, RN and one by Sheila Chachere, MD.
Select Specialty filed objections to the reports and a motion to dismiss. The trial
court denied the motion, and Select Specialty filed this interlocutory appeal.
A. Plaintiffs’ Allegations
The following facts are taken from Sparks’s and Chachere’s expert reports.1
Simmons, a 69-year-old man, was transferred from Memorial Hermann City
Medical Center to Select Specialty on July 15, 2011. Select Specialty’s admission
database reflected a diagnosis of “Respiratory Failure, Deconditioning, Pulmonary
Fibrosis, SOB, ARDS, and Malnutrition.” According to the Nurse Progress Notes,
Simmons “arrived alert, on a ventilator, and with a trachcostomy, IV, foley, and
feeding tube.”
1
Throughout its brief, Select Specialty challenges the accuracy of the statements in
Sparks’s and Chachere’s reports. For purposes of our review of the adequacy of a
medical expert report under Chapter 74, however, we take the allegations in the
report as true. Marino v. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied).
2
Sparks’s report states that, when Simmons arrived at Select Specialty, there
was “no documentation of any skin breakdowns, wounds, redness, or discoloration
anywhere on his body.” Select Hospital’s records reflect that Simmons was rated
as a high risk for bedsores. On August 12, 2011, he was found unresponsive by a
nurse. On September 15, 2011, and again on September 19, 2011, he experienced
a low heart rate and blood pressure. He died later on September 19, 2011.
Sparks’s report contains the following synopsis of the nurses’ documentation
of treatment of Simmons’s bed sores:
On July 16, 2011, one day after Mr. Simmons’ admission to Select
Specialty, the nurses first documented that Mr. Simmons had a Stage
II wound on his sacrum. A Stage II wound is a wound that shows
openings in the skin. Stage II wounds are characterized by the partial
loss of the 1st and 2nd layers of skin. Stage II wounds are shallow
with a red or pink ulcer bed. On July 17, 2011, the nurses also
reported that Mr. Simmons had left and right buttock skin wounds
with light drainage and no odor. As a result, the nurses reported that
Mr. Simmons’ dressing was to be changed daily per orders. On July
17, 2011 the nurses applied a santyl dressing to Mr. Simmons’ left and
right buttock skin wounds. A santyl dressing is a collagenase enzyme
used to help heal burns and skin ulcers, which are skin wounds. In
normal practice, santyl is applied daily.
On July 23 and 24, 2011, Mr. Simmons was not repositioned every 2
hours. In addition, the nurses did not document dressing changes for
July 24, 2011. On August 1, 2011, the nurses documented that Mr.
Simmons developed an inner gluteal fold skin wound. On August 2,
2011, the nurses applied a hydrocolloid dressing to Mr. Simmons’
inner gluteal fold skin wound. A hydrocolloid dressing is an adhesive
wafer applied to skin ulcers, which can be changed every 3-5 days.
On August 3, 7, and 9, 2011, the nurses did not reposition Mr.
Simmons every 2 hours and documented no dressing changes. On
3
August 6, 2011, Mr. Simmons developed a Stage II inner thigh skin
wound. No dressing changes were documented at the report of this
Stage II wound. On August 10, 2011, the nurses reported that Mr.
Simmons was incontinent of urine. Incontinent of urine means that
Mr. Simmons was incapable of controlling his urinary functions. On
August 20, 2011, the nurses reported that Mr. Simmons was
incontinent of feces. Incontinent of feces means that Mr. Simmons
was incapable of controlling his bowel functions. From then, there
are documentations stating that the nurses dressed Mr. Simmons’ skin
wounds, including his pressure ulcers, occasionally. As the days
progressed, Mr. Simmons’ skin wounds, including his pressure ulcers,
became multiple in numbers.
Sparks’s report alleges that Select Specialty’s nurses breached the applicable
standard of care in several respects related to the prevention and treatment of
bedsores. Specifically, they (1) failed to treat Mr. Simmons’s skin wounds with
santyl dressing on a daily basis between July 15, 2011 and August 1, 2011 (despite
doctor’s orders to do so and despite daily changing santyl dressings being the
“normal practices”), (2) failed to correctly administer hydrocolloid dressings
between August 1, 2011 and September 19, 2011, and (3) failed to correctly
reposition Mr. Simmons to address his development of bed sores.
Chachere’s report was based upon a review of Sparks’s report, and opined
that Select Specialty’s breaches of the standard of care caused Simmons’s
bedsores.
B. Select Specialty’s Motion to Dismiss
Select Specialty filed a motion to dismiss, asserting that Sparks and
Chachere were not qualified to render their opinions, and that their reports were
4
otherwise deficient. The trial court denied Select Specialty’s motion, and it
brought this appeal.
ISSUES ON APPEAL
Select Specialty brings two issues on appeal:
1. “[T]he trial court abused its discretion when it overruled
Appellant’s Objections and denied Appellant’s Motion to
Dismiss because Cheryall Y. Sparks, R.N. and Sheila L.
Chachere, M.D. are not qualified to address issues of standard
of care, breach and causation as to Select Specialty.”
2. “[T]he trial court abused its discretion when it overruled
Appellant’s Objections and denied Appellant’s Motion to
Dismiss because the expert reports of Cheryall Y. Sparks, R.N.
and Sheila L. Chachere, M.D. do not adequately address the
issues of standard of care, breach and causation as to Select
Specialty Hospital.”
APPLICABLE LAW
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss for lack of an
adequate medical report for an abuse of discretion. Larson v. Downing, 197
S.W.3d 303, 304–05 (Tex. 2006) (citing Broders v. Heise, 924 S.W.2d 148, 151
(Tex. 1996)); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied). A trial court abuses its discretion if
it acts arbitrarily, unreasonably, or without reference to guiding rules or principles.
See Lookshin v. Feldman, 127 S.W.3d 100, 103 (Tex. App.—Houston [1st Dist.]
5
2003, pet. denied). We do not disturb the trial court’s discretion absent clear
abuse. Larson, 197 S.W.3d at 304 (citing Broders, 924 S.W.2d at 151).
B. Chapter 74 Expert Report Requirements
Section 74.351 serves as a ‘gate-keeper’ through which no medical
negligence causes of action may proceed until the claimant has made a good-faith
effort to demonstrate that at least one expert believes that a breach of the
applicable standard of care caused the claimed injury. See TEX CIV. PRAC. & REM.
CODE ANN. § 74.351 (Vernon 2011); Murphy v. Russell, 167 S.W.3d 835, 838
(Tex. 2005). A report need not marshal all of the plaintiff’s proof, but it must
include the expert’s opinions on the three statutory elements: standard of care,
breach, and causation. See Am. Transitional Care Ctrs. Of Tex. Inc. v. Palacios,
46 S.W.3d 873, 878, 880 (Tex. 2001); Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex.
App.—Tyler 2008, pet. denied) (quoting Palacios, 46 S.W.3d at 880) (stating “fair
summary” is “something less than a full statement” of applicable standard of care,
how it was breached, and how that breach caused injury).
To constitute a good faith effort, the report must provide enough information
to fulfill two purposes: (1) inform the defendant of the specific conduct that the
plaintiff has called into question; and (2) provide a basis for the trial court to
conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report that
merely states the expert’s conclusions as to the standard of care, breach, and
6
causation does not fulfill these two purposes. Id. The expert must explain the basis
for his statements and link his conclusions to the facts. Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999)). The trial court may not draw any inferences, but must rely
exclusively on the information contained within the report’s four corners. See
Palacios, 46 S.W.3d at 878.
In addition to setting forth the requisite criteria, a Chapter 74 report must be
authored by a qualified “expert.” TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(r)(6). The standards governing qualifications of an expert report in support
of a claim against a non-physician defendant are set forth in section 74.402.
§ 74.402. Qualifications of Expert Witness in Suit Against Health
Care Provider
(a) For purposes of this section, “practicing health care” includes:
(1) training health care providers in the same field as the
defendant health care provider at an accredited educational
institution; or
(2) serving as a consulting health care provider and being
licensed, certified, or registered in the same field as the
defendant health care provider.
(b) In a suit involving a health care liability claim against a health
care provider, a person may qualify as an expert witness on the issue of
whether the health care provider departed from accepted standards of care
only if the person:
(1) is practicing health care in a field of practice that
involves the same type of care or treatment as that delivered by
the defendant health care provider, if the defendant health care
7
provider is an individual, at the time the testimony is given or
was practicing that type of health care at the time the claim
arose;
(2) has knowledge of accepted standards of care for health
care providers for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer
an expert opinion regarding those accepted standards of health
care.
(c) In determining whether a witness is qualified on the basis of
training or experience, the court shall consider whether, at the time the claim
arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of
the United States or a national professional certifying agency,
or has other substantial training or experience, in the area of
health care relevant to the claim; and
(2) is actively practicing health care in rendering health care
services relevant to the claim.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.402.
QUALIFICATIONS
In its first issue, Select Specialty argues that “neither Nurse Sparks nor Dr.
Chachere are qualified to render opinions against Select Specialty.” According to
Select Specialty, Simmons’s “grave medical conditions” upon his admittance to
Select Specialty, “are significant in determining whether Nurse Sparks, an
obstetrics nurse, and/or Dr. Chachere, a pediatrician, are qualified to offer expert
opinions as to this patient and the care this patient received at Select Specialty.”
8
As for Nurse Sparks, Select Specialty contends that she is not qualified
because, while she has extensive employment history in the field of obstetrics,
“nothing in her report or her curriculum vitae demonstrate that she has ever worked
at a long-term acute care facility such as Select Specialty or that she has ever cared
for elderly patients suffering from the significant pulmonary and cardiac conditions
Mr. Simmons suffered from at the time he presented to Select Specialty.”
Moreover, “nothing in Nurse Sparks’ report or curriculum vitae evidence any
experience whatsoever in treating patients with a tracheotomy or ventilator
dependence, such as Mr. Simmons, in a long term acute care facility such as Select
Specialty.”
Similarly, with regard to Dr. Chachere—a board certified pediatrician—
Select Specialty contends that “a review of her expert report and her curriculum
vitae fail to demonstrate her qualifications to offer opinions in this case.” Select
Specialty acknowledges that Chachere has experience treating chronically ill
children, but argues that is not comparable to treatment of a chronically ill elderly
person.
A. Plaintiffs’ claims
Plaintiffs’ petition alleges Select Specialty’s nurses were negligent in the
following specific respects related to the prevention and treatment of bedsores:
a. Failing to treat Mr, Simmons’ condition properly;
specifically: (i) failing to treat Mr. Simmons’ skin wounds, including
9
his pressure ulcers, with santyl dressing once per day between July 15,
2011 and August 1, 2011; (ii) failing to treat Mr. Simmons’ skin
wounds, including his pressure ulcers, with hydrocolloid dressing
every 3-5 days between August 1, 2011 and September 19, 2011; and
(iii) failing to reposition Mr. Simmons every two (2) hours to alleviate
his pressure ulcers.
b. Failing to provide the medical and nursing care
reasonably required for Mr. Simmons’ condition; specifically: (i)
failing to treat Mr. Simmons’ skin wounds, including his pressure
ulcers, with santyl dressing once per day between July 15, 2011 and
August 1, 2011; (ii) failing to treat Mr. Simmons’ skin wounds,
including his pressure ulcers, with hydrocolloid dressing every 3-5
days between August 1, 2011 and September 19, 2011; and (iii)
failing to reposition Mr. Simmons every two (2) hours to alleviate his
pressure ulcers.
....
f. Leaving Mr. Simmons unattended for up to ten (10)
hours at a time; and
g. Failing to monitor Mr. Simmons’ pressure ulcers for up
to ten (10) hours at a time.
B. Nurse Sparks’s Qualifications
Sparks’s curriculum vitae reflects that she is a nurse who currently practices
and teaches in the field of obstetrics, and that she currently works as a nurse
consultant. She has also worked as nurse manager in the field of oncology, as well
as held positions as a labor-and-delivery nurse, recovery-room nurse, clinical
nurse, cardio-vascular intermediate-care nurse, urology nurse, and medical-surgery
nurse.
10
Her report states that she “is currently a registered nurse in the State of
Texas with over 30 years of experience,” and describes her qualifications as
follows:
My nursing experience includes caring for cardiovascular, internal
medicine, surgical, urology, obstetrical, oncology and radiology
patients. During my nursing practice, I cared for many elderly
patients and prevented, dressed, and treated skin wounds including
pressure ulcers. . . .
I also managed a nursing staff at Jefferson Davis Hospital and at M.D.
Anderson Hospital. In that capacity, I was involved in writing patient
policies and procedures for nurses. I also served on the Peer Review
Committee at Kelsey Seybold Clinic for two years. While serving on
the committee, I determined whether nurses fell below the standard of
care for nurses.
I currently consult practicing registered nurses on many subjects,
including how to prevent, treat, and dress patient skin wounds,
including pressure ulcers, which are the same skin wounds
complained of by Mr. Willie Lee Simmons. Based upon my
knowledge, skill, experience, training, and education, I am familiar
with the applicable standard of care required for nurses to prevent,
treat, and dress skin wounds, including pressure ulcers.
Finally, her report states that it is applicable to actions “taken or not taken by
Select Specialty, by and through its registered nurses . . . . during Mr. Simmons’
stay at the hospital.”
The trial court did not abuse its discretion in concluding that Sparks was
qualified to opine as to whether the Select Specialty’s nurses departed from the
accepted standards of care in preventing and treating pressure ulcers. Sparks’s
curriculum vitae and report reflect that she is currently practicing as a registered
11
nurse, and currently consults with practicing nurses on the prevention and
treatment of pressure ulcers like those suffered by Simmons. TEX. CIV. PRAC. &
REM. CODE Ann. § 74.402(b)(1), (a)(2).2 Her report details her knowledge of the
accepted standards of care and experience in treating both the complained of
condition—i.e., pressure ulcers—and specifically treating them in elderly patients.
While Select Specialty correctly points out that Sparks does not profess to
have experience caring for “ventilator dependent patients with co-morbidities of
respiratory failure, deconditioning, pulmonary fibrosis, shortness of breath, acute
respiratory distress syndrome and malnutrition at a long term acute care facility,”
section 74.402 of the Texas Civil Practice and Remedies Code does not require
such specific experience to qualify Sparks as an expert in the prevention and
treatment of pressure ulcers—the subject of Plaintiffs’ claims. See, e.g., Mem’l
Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 759 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (holding physician qualified to opine about standard of
care for preventing bedsores based on report stating, “I am familiar with the
2
Select Specialty contends that Sparks is not “practicing health care in a field of
practice that involves the same type of care or treatment as that delivered by the
defendant health care provider,” as required by section 74.702(b). That argument,
however, does not take into account section 74.702(a), which provides “practicing
health care includes . . . serving as a consulting health care provider and being
licensed, certified, or registered in the same field as the defendant health care
provider.” Nurse Sparks’ curriculum vitae reflects that she is a licensed, registered
nurse, and that she currently works as a nurse consultant. Her report states that
she currently “consult[s] practicing registered nurses on many subjects, including
how to prevent, treat, and dress patient skin wounds, including pressure ulcers,
which are the same skin wounds complained of by Mr. Willie Lee Simmons.”
12
standard of care as it pertains to prevention and treatment of decubitus ulcers. I
have experience in instructing nurses and other personnel in the proper techniques
to prevent decubitus ulcers and I have treated patients with decubitus ulcers over
the course of my practice as an infectious disease internist and occupational
doctor.”); Esquivel v. El Paso Healthcare Sys. Ltd, 225 S.W.3d 83, 89–90 (Tex.
App.—El Paso 2005, no pet.) (holding that professor of nursing, who also “served
in various capacities at a 450-bed hospital, including assistant administrator for
nursing services, acting director, director of nursing services, director of staff
education, and nursing supervisor,” whose report states that she was “familiar with
the standard of care for skin care and prevention of decubitus ulcers as well as
documentation, observation, assessment ,and intervention required,” was qualified
as expert as to the standard of care and breach, but not causation).
C. Dr. Chachere’s Qualifications
Chachere’s curriculum vitae reflects that she currently works in the field of
pediatrics, caring for “well and chronically ill children and adolescents.” She has
practiced and taught in the field of pediatrics in several capacities for different
employers. Her report elaborates about how her current practice and experience
relates to Select Specialty’s treatment of Simmons:
My medical knowledge, skill, experience, training, and education
includes, but is not limited to, caring for and teaching medical
students how to care for hundreds of children with chronic healthcare
needs. For example, many of my chronically ill patients included
13
children with spina bifida, which means that the patient’s spine failed
to form correctly. Due to spina bifida, the children were highly
immobile and incontinent of feces and urine. Incontinence of feces
means that the children were incapable of controlling their bowel
functions similar to Mr. Willie Lee Simmons’ condition during his
treatment by [Select Specialty] nurses. Many of my hospice patients
exhibited identical conditions.
Due to my patients’ medical conditions, I have to prevent, treat, and
dress their skin wounds, including pressure ulcers. I also had to teach
my students how to perform the same acts. Pressure ulcers, also
known as decubitus ulcers, are open wounds that form whenever
prolonged pressure is applied to skin covering bony outcrops of the
body. Patients who are bedridden like many of my patients and Mr.
Simmons are at high risk of developing pressure ulcers . . . .
Even though Mr. Simmons was a 69 year old elderly man, his injuries,
namely skin wounds, including pressure ulcers, are common to and
equally developed in the field of pediatrics. I also have practical
knowledge of what is usually and customarily done by nurses
confronted with a patient suffering from skin wounds, including
pressure ulcers. As a professor at Baylor College of Medicine, I had
to train nurses on how to prevent, treat, and dress patient skin wounds,
including pressure ulcers, during nursing in-service.
Patients exhibiting a high risk to pressure ulcers include those who are
obese, elderly; or suffering from chronic diseases, infections, injuries;
or in a poor nutritional state. Many of my pediatric patients were
chronically ill, which put them at a high risk for pressure ulcers
similar to how Mr. Simmons was at a high risk for pressure ulcers
because he was an elderly, chronically ill man. In addition, I have
read medical literature, and reviewed case studies on what causes skin
wounds, including skin ulcers, in both young and elderly patients.
I currently monitor and prevent skin wounds, including pressure
ulcers, from developing on my patients with spina bifida and other
chronic illnesses as a private practitioner at Porter Pediatrics and did
so during the time that Select Specialty’s nurses treated Mr. Simmons.
The trial court did not abuse its discretion in concluding that Chachere is
qualified to render an opinion as to causation. Select Specialty argues that she
14
Chachere is not qualified because “[n]either her expert report nor her curriculum
vitae demonstrate any experience or training whatsoever in the field of geriatrics or
in caring for chronically ill elderly patients who are ventilator dependent with the
same multiple co-morbidities Mr. Simmons had at the time he was a patient at
Select Specialty.” But her report explains that the causes and treatment of pressure
ulcers in an elderly patient like Simmons are similar to the causes and treatment of
chronically ill pediatric patients that she currently treats.3 Thus, she “is practicing
health care in a field of practice that involves the same type of care or treatment”
as Select Specialty’s nurses. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402
(b)(1). Her report demonstrates that she has knowledge of the acceptable standards
of care for the diagnosis, care, and treatment of pressure ulcers, and that she is
qualified on through experience to offer an expert opinion. TEX. CIV. PRAC. &
REM. CODE ANN. § 74.402(b)(2)–(3).
Moreover physicians with qualifications similar to Chachere’s have
consistently been held qualified as experts to opine on the standard of care, breach,
and causation related to the prevention and treatment of pressure ulcers. For
3
Her report specifically states that Simmons’s injuries, namely “skin wounds,
including pressure ulcers, are common to and equally developed in the field of
pediatrics.” See Newman v. Graham, 316 S.W.3d 197, 200–201 (Tex. App.—
Dallas 2010, no pet.) (“A medical expert with a different specialty than the
defendant physician may testify ‘so long as the subject of the inquiry is common
to and equally recognized and developed in both fields” (quoting Broders, 924
S.W.2d at 152)).
15
example, in San Jacinto Methodist Hosp. v. Bennett, the Fourteenth Court of
Appeals summarized the expert physician’s qualifications as follows, and affirmed
the trial court’s determination that the expert was qualified:
In his report, Dr. Hammond stated he was practicing medicine at all
times relevant to the claims made in the case and was actively
practicing at the time of his opinion. He is board certified in internal
medicine and had been board certified in nephrology from 1996 to
2006, i.e., a period overlapping the time Taylor’s injury allegedly
occurred. Dr. Hammond stated that the two certifications “directly
address the subject matter of this claim, as the claim relates to
management of decubitus ulcers.” Dr. Hammond indicated, because
he had either trained, served as a consultant to, or observed health care
providers in the same fields as the defendants, he has knowledge of
the accepted standards of medical care for the diagnosis, care, and
treatment related to the prevention and management of decubitus
ulcers. He further stated he is “familiar with the standard of care for
both nurses and physicians for the prevention and treatment of
decubitus ulcers.” Finally, Dr. Hammond explained, “I give direct
care to patients with decubitus ulcers and was doing so at all times
relevant to this case. As such, I am also familiar with the
consequences of improper management of decubitus ulcers that is not
within the standard of care.”
256 S.W.3d 806, 813 (Tex. App.—Houston [14th Dist.] 2008, no pet.). In holding
the physician’s report sufficiently established his qualifications, the Bennett court
noted that his statement “compares favorably to that held sufficient in Burrell”:
I completed a fellowship in infectious disease and have practiced for
over 25 years in infectious disease. I am a frequent speaker at various
regional and national medical conferences and have been a consultant
for the Massachusetts Department of Health. I have reviewed various
medical records concerning Katie Whitfield and I am familiar with the
standard of care as it pertains to prevention and treatment of decubitus
ulcers. I have experience in instructing nurses and other personnel in
the proper techniques to prevent decubitus ulcers and I have treated
16
patients with decubitus ulcers over the course of my practice as an
infectious disease, internist and occupational doctor.
Id. (quoting Burrell, 230 S.W.3d at 759).
Similar to the experts in Bennett and Burrell, Chachere states that she has
treated patients with pressure ulcers, and instructed students how to prevent, treat,
and dress pressure ulcers. She has read medical literature, and reviewed case
studies on what causes skin wounds, including skin ulcers, in both young and
elderly patients. At the time of Simmons’s care, part of Chachere’s practice was to
monitor and prevent pressure ulcers from developing on patients suffering from
chronic illnesses. Finally, she explains how her knowledge and experience related
to pressure ulcers are applicable to patients like Mr. Simmons.
Because we conclude that the trial court did not abuse its discretion in
concluding that Sparks and Chachere were qualified, we overrule appellants’ first
issue.
REPORTS
In its second issue, Select Specialty contends that the “expert reports of
Nurse Sparks and Dr. Chachere are insufficient on the elements of standard of care,
breach and causation as to Select Specialty.” Specifically, it argues that “neither
Nurse Sparks nor Dr. Chachere are qualified by education, training or experience
to offer opinions on the standard of care, breach or causation as to Select
Specialty.”
17
With regard to Sparks’s report, Select Specialty relies primarily on American
Transitional Care Centers of Texas v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001) to
argue that her articulation of the standard of care and breach is insufficient. In
Palacios, the supreme court held that a single statement in an expert report “that
precautions to prevent [plaintiff’s] fall were not properly utilized” was not a
sufficient statement of the standard of care applicable to the defendant hospital. Id.
at 879–80. The court explained that “the standard of care for a hospital is what an
ordinary prudent hospital would do under the same or similar circumstances,” and
that “[w]hether a defendant breached his or her duty to a patient cannot be
determined absent specific information about what the defendant should have done
differently.” Id. at 880. According to Select Specialty, Nurse Sparks’ report “fares
no better” because it contains only “generalized statements regarding standard of
care . . . and breach.”
With regard to Dr. Chachere’s report, Select Specialty argues that it does not
describe, with sufficient specificity, “how the alleged breach of the standard of
care caused the complained of results.” Rather, Select Specialty argues,
Chachere’s report is impermissibly conclusory.
A. Nurse Sparks’s Report
With regard to bedsores, Sparks’s report states that she is “familiar with the
applicable standard of care required for nurses to prevent, treat, and dress skin
18
wounds, including pressure ulcers.” The report further states that the applicable
standard of care in found in the Texas Standards of Nursing Practice, and provides
in part that: (1) “A nurse shall know the rationale for and the effects of medications
and treatments and shall correctly administer the same,” and (2) “A nurse shall
implement measures to promote a safe environment for clients and others.”
Under the heading of “Breach of Standard of Care,” Sparks’s report
discusses the standards of care for the prevention and treatment of bedsores, and
opines that Select Specialty’s nurses breached those standards:
The nurses breached the standard of care applicable to nurses by
failing to correctly administer santyl dressings. More specifically, the
nurses failed to treat Mr Simmons’ skin wounds, including his
pressure ulcers, with santyle dressing on a daily basis between July
15, 2011 and August 1, 2011. In normal practice, santyle dressing is
applied daily to help heal burns and skin ulcers. Further, the nurses
received orders to change Mr. Simmons’ santyl dressing daily and
failed to do so, which a nurse of ordinary prudence would not have
done under the same or similar circumstances. Since the nurses failed
to treat Mr. Simmons’ skin wounds, including his pressure ulcers,
with santyl dressing once per day, they breached the standard of care
applicable to nurses that states that a nurse shall correctly administer
treatments and medications.
In addition, the nurses breached the standard of care applicable to
nurses by failing to correctly administer hydrolloid dressings. More
specifically, the nurses failed to treat Mr. Simmons’ skin wounds,
including his pressure ulcers, with hydrocolloid dressing between
August 1, 2011 and September 19, 2011. A hydrocolloid dressing an
adhesive wafer applied to skin ulcers every 3-5 days, The nurses’
failure to apply hydrocolloid dressing every 3-5 days to Mr.
Simmons’ skin wounds, including his pressure ulcers, was an act that
a nurse of ordinary prudence would not have done under the same or
similar circumstances. Since the nurses failed to treat Mr. Simmons’
19
skin wounds, including his pressure ulcers, with hydrocolloid dressing
every 3-5 days, they breached the standard of care applicable to nurses
that states that a nurse shall correctly administer treatment and
medications.
Moreover, the nurses breached the standard of care applicable to
nurses by failing to correctly reposition Mr. Simmons. More
specifically, when Mr. Simmons arrived at Select Specialty on July
15, 2011, his Braden Scale for Predicting Pressure Sore Risk totaled
10, which placed him at a high risk for skin breakdown. On July 22,
1011, Mr. Simmons developed gluteal skin wounds. On August 1,
2011, Mr. Simmons developed an inner gluteal fold skin wound. On
August 6, 2011, Mr. Simmons developed a Stage II inner thigh skin
wound. On August 8, 2011, Mr. Simmons developed another gluteal
fold wound. On August 9, 2011, Mr. Simmons developed a right
inner thigh wound. On August 3, 7, and 9, 2011 the nurses failed to
reposition Mr. Simmons every two hours, which is not what a nurse of
ordinary prudence would have done under the same or similar
circumstances. In addition, on August 2 and 3, 2011, the nurses
decided not to reposition Mr. Simmons for up to ten (10) hours at a
time. Since the nurses failed to reposition Mr. Simmons every two
hours, the nurses breached the standard of care applicable to nurses to
correctly administer treatment and medications.
The trial court did not abuse its discretion in concluding that Sparks’s report
adequately addressed the elements of standard of care and breach against Select
Specialty as it relates to Simmons’s development of bedsores. An expert report
must “provide[] 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.” TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(r)(6). “[A] fair summary must set out what
care was expected, but not given, and how that caused the injury.” Spitzer v.
Berry, 247 S.W.3d at 750 (quoting Palacios, 46 S.W.3d at 880).
20
Unlike the one-sentence standard-of-care statement in Palacios “that
precautions to prevent [plaintiff’s] fall were not properly utilized,” which the
supreme court found insufficient, 46 S.W.3d at 880, Sparks’s report provides a fair
summary of what the Select Specialty’s nurses should have done, and how they
failed to meet the applicable standard. Specifically, Sparks’s report specifically
identifies what should have been done and what was not done in relation to (1)
correctly and timely administering santyl dressing, (2) correctly and timely
administering hydrocolloid dressing, and (3) timely and correctly repositioning
Simmons. E.g., Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d
619, 629 (Tex. App.—Fort Worth 2012, no pet.) (expert reports sufficient because
they “put the hospital on notice of what care [experts] opined was required but not
given”); Carrillo v. Palacios, No. 13-08-00418-CV, 2008 WL 4981558, at *7
(Tex. App.—Corpus Christi Nov. 25, 2008, no pet.) (holding report was specific
enough to put defendant on notice of what care nurses should have provided, how
nurses breached standard of care, and how that breach caused decubitus ulcers, and
provided the trial court with a basis to determine if claims had merit).
B. Dr. Chachere’s Report
With regard to causation, Chachere’s report provides the following opinion
of how the breaches of the standard of care identified by Sparks’s report
contributed to Simmons’s development of bedsores:
21
Santyl dressing is applied daily to skin wounds to help heal burns and
skin ulcers. So the nurses’ failure to treat Mr. Simmons’ sacrum,
buttocks (gluteal), and though with santyl dressing once per day
between July 15, 2011 and August 1, 2011 even after being ordered to
do so, more likely than not, in reasonable medical probability, directly
caused skin wounds, including pressure ulcers, to develop on Mr.
Simmons’ sacrum, buttocks, and thigh. Santyl dressing is used to
treat skin ulcers, so the nurses’ failure to apply the santyl dressing to
Mr. Simmons skin wounds once per day could only result in Mr.
Simmons developing skin ulcers on his sacrum, buttocks, and thigh.
Hydrocolloid dressing is applied every 3-5 days to skin wounds to
help heal burns and skin ulcers. As a result, the nurses’ failure to treat
Mr. Simmons’ sacrum, buttocks, and thigh with hydrocolloid dressing
every 3-5 days between August 1, 2011 and September 19, 2011 more
likely than not, in reasonable medical probability, directly caused skin
wounds, including ulcers, to develop on Mr. Simmons’ sacrum,
buttocks, and thigh. Hydrocolloid dressing is used to treat skin ulcers
so the nurses’ failure to apply the hydrocolloid dressing every 3-5
days to Mr. Simmons could only result in Mr. Simmons developing
skin ulcers on his sacrum, buttocks, and thigh. When Mr. Simmons
arrived at Select Specialty on July 15, 2011, he had no skin
breakdowns, wounds, redness, or discoloration anywhere on his body.
Mr. Simmons, however, being a 69 year old elderly and chronically ill
patient was at a high risk for developing pressure ulcers because he
laid immobile in this bed during his treatment at Select Specialty.
One of the major factors in the development of pressure ulcers is a
prolonged pressure on a part due to the weight of the body or a limb.
So the nurses’ failure to reposition Mr. Simmons every two hours
caused prolonged pressure on Mr. Simmons’ sacrum, buttocks, and
thigh, which more likely than not, in reasonable medical probability,
caused skin wounds, including pressure ulcers, to develop on Mr.
Simmons’ sacrum, buttocks, and thigh. The nurses’ failure to
reposition Mr. Simmons every two hours, and in some cases
reposition him only every ten hours, combined with the accumulation
of urine and feces, which causes skin breakdown, more likely than
not, in reasonable medical probability, directly caused skin wounds,
including ulcers, to develop on Mr. Simmons’ sacrum, buttocks, and
thigh.
22
The trial court did not abuse its discretion in determining that Chachere’s
report adequately addressed the element of causation as it relates to bedsores. An
expert is required to link his or her conclusions to the facts, but no “magical
words” are required. Bowie Mem’l Hosp., 79 S.W.3d at 53. While Select
Specialty argues that Chachere’s causation opinions are impermissibly conclusory,
we conclude that her opinions are as, or more, specific than causation statements
found to be adequate in other cases. Her report specifically identifies and links
each alleged breach of the standard of care related to failure to treat Simmons with
santyl dressings, failure to treat Simons with hydrocolloid dressing, and failure to
reposition Simmons to his development of bedsores. E.g., Bennett, 256 S.W.3d at
817 (expert report was not impermissibly conclusory with regard to causation
because it set “forth the mechanism of [patient’s] injury, specifically (1) failure to
provide adequate initial skin assessment, hydration, and nutrition led to the
formation of ulcers, and (2) failure to provide skin care nursing and protocol
interventions when decubitus ulcers were detected, as well as failing to optimize
[patient’s] nutrition and hydration led to formation of new ulcers and prevented
healing of existing ulcers”); Gallardo v. Ugarte, 145 S.W.3d 272, 280 (Tex.
App.—El Paso 2004, pet. denied) (report’s giving examples of things that should
have been done to prevent and treat decubitus ulcers—including more frequent
repositioning—adequately addressed causation “by indicating that if the proper
23
steps had been taken the decubitus ulcers could have been prevented or at least
prevented from progressing to stage IV”).
Because we conclude that the trial court did not abuse its discretion in
concluding that Sparks’s and Chachere’s adequately addressed standard of care,
breach, and causation as to plaintiffs’ claims related to bedsores, we overrule
Select Specialty’s second issue.4
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
4
Select Specialty also challenges the sufficiency of the expert reports as they relate
to claims that Simmons was left unattended in unsanitary conditions such that ants
and gnats accumulated in his trachea tube. Because we have concluded that the
reports are sufficient as to the claims related to bedsores, we need not reach Select
Specialty’s arguments about plaintiffs’ other claims. Certified EMS, Inc. v. Potts,
392 S.W.3d 625, 630 (Tex. 2013) (case should proceed so long as expert reports
are adequate as to one theory of liability).
24