Margaret Jorgensen v. Texas MedClinic ( 2010 )

i i i i i i
OPINION
No. 04-09-00404-CV
Margaret JORGENSEN,
Appellant
v.
TEXAS MEDCLINIC,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-17110
Honorable Janet Littlejohn, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 21, 2010
REVERSE AND REMAND
Margaret Jorgensen appeals from the trial court’s order granting Texas MedClinic’s motion
to dismiss for failure to file an adequate expert report pursuant to section 74.351 of the Texas Civil
Practice and Remedies Code. See TEX . CIV . PRAC. & REM . CODE ANN . § 74.351 (Vernon Supp.
2009). Jorgensen contends the trial court abused its discretion in finding the report inadequate, and
04-09-00404-CV
alternatively, in refusing to allow her to amend the report. We reverse the trial court’s order granting
Texas MedClinic’s motion to dismiss, and remand this cause for further proceedings.
BACKGROUND
According to Jorgensen’s petition, she and her two children received flu shots at a Texas
MedClinic in San Antonio, Texas. Jorgensen claimed that when she received her shot, the needle
was placed “at the midpoint of her upper right arm,” and she immediately felt a burning sensation
that radiated “down her outer arm and including the little finger and ring finger of her right hand.”
Jorgensen believed the needle had “hit a nerve,” and the burning sensation and numbness she was
experiencing would soon resolve themselves. Jorgensen, however, alleged the problems continued,
and she was unable to do many normal, daily activities. Jorgensen claimed she ultimately sought
medical help, and an MRI of her cervical spine ruled out nerve impingement. Other tests resulted
in a diagnosis of sensory ulnar neuropathy of the right ulnar nerve, and Jorgensen was referred to
physical therapy. Later, Jorgensen was seen by Dr. Robert Lowry, who determined Jorgensen had
suffered trauma to her right arm as a result of a toxin and ulnar nerve injury above the elbow.
According to Dr. Lowry, the flu shot Jorgensen received “was actually placed at the tendon above
the right elbow such that the vaccine was injected below the tendon and worked around the plan of
the humerus to chemically injure both the ulnar nerve and the tendon itself, resulting in shoulder
weakness, decreased range of motion and paresthesia.” According to the petition, physical therapy
did not alleviate Jorgensen’s condition, and she continues to suffer from numbness and pain.
In 2008, Jorgensen filed a health care liability claim against Texas MedClinic based on
respondeat superior. Jorgensen asserted that “[t]he person who negligently administered the
injection in question was acting as an employee and/or agent of Texas MedClinic and was acting
-2-
04-09-00404-CV
within the course and scope of her employment.” In support of her claim, and in an attempt to
comply with the requirements of section 74.351(a) of the Texas Civil Practice and Remedies Code,
Jorgensen served Texas MedClinic with a report from Dr. Lowry. Texas MedClinic filed an
objection to the report and a motion to dismiss, asserting the report was insufficient as a matter of
law. At the hearing on Texas MedClinic’s motion to dismiss, the argument was limited to the failure
of the expert report to include the name of the defendant in the expert report. At the conclusion of
the hearing, the trial court stated that based on case law provided by Texas MedClinic regarding the
failure of Jorgensen’s report to name Texas MedClinic, it had no choice but to grant the motion to
dismiss. The parties did not argue, nor did the trial court consider the alleged substantive inadequacy
raised in Texas MedClinic’s objection, i.e., the insufficiency of the causation element. The trial
court also denied Jorgensen’s request to allow her time to amend the report. Jorgensen then
perfected this appeal.
ANALYSIS
Jorgensen raises three issues on appeal. She contends: (1) because there was but one
defendant in this case, her expert report constituted a good faith effort to comply with the expert
report requirement of section 74.351, and therefore the trial court abused its discretion in granting
the motion to dismiss; (2) because Texas MedClinic was sued under the doctrine of respondeat
superior as opposed to direct negligence it was unnecessary to name Texas MedClinic in the report,
and therefore the trial court abused its discretion in granting the motion to dismiss; and (3) even if
the report was deficient for failing to name Texas MedClinic, the trial court abused its discretion in
refusing to allow Jorgensen an opportunity to amend the report.
-3-
04-09-00404-CV
An appellate court reviews a trial court’s order dismissing a claim for failure to comply with
the expert reporting requirements of section 74.351 under an abuse of discretion standard. Jernigan
v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (reviewing adequacy of expert report for abuse of
discretion under predecessor statute) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 877-78 (Tex. 2001)); Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave,
300 S.W.3d 343, 345 (Tex. App.—San Antonio 2009, pet. denied) (same). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or
principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1986)); Hargrave, 300 S.W.3d at 345. A trial court
has no discretion in determining what the law is or applying it to the facts of the case. In re Dep’t
of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex. 2009) (orig. proceeding); Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992). If a trial court fails to analyze or apply the law correctly,
it has abused its discretion. Id.; Hargrave, 300 S.W.3d at 345-46. In other words, “a trial court’s
‘erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion.’” Perry v.
Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding) (quoting Huie v. DeShazo, 922 S.W.2d
920, 927-28 (Tex. 1996) (orig. proceeding)).
Section 74.351 requires a plaintiff to serve on each party “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.” TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(a). 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 applicable standards of care, the manner in which the care
rendered by the physician or health care providers failed to meet the standards, and the causal
-4-
04-09-00404-CV
relationship between that failure and the injury, harm or damages claimed.” Id. § 74.351(r)(6). A
court must grant a motion to dismiss under section 74.351(b) if, after the deadline for serving the
report has passed, it appears to the court “the report does not represent an objective good faith effort
to comply with the definition of an expert report.” Id. § 74.351(l).
To qualify as a “good faith effort,” the report need not “marshal all the plaintiff’s proof,” or
present evidence as if the plaintiff were litigating the merits. Palacios, 46 S.W.3d at 878; Hargrave,
300 S.W.3d at 346. Rather, to satisfy the “good faith” requirement, the report need only provide
enough information to fulfill two purposes: (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.” Palacios, 46 S.W.3d at 879; Hargrave, 300 S.W.3d at 346.
Texas MedClinic contends the report is not a good faith effort, and in fact is no report at all
because it does not name Texas MedClinic or any of its employees or agents. Texas MedClinic
contends, among other things, that without knowing which employee or agent administered the flu
vaccine, this court must speculate as to the applicable standard of care, which is not permitted. See
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). Texas MedClinic suggests that by not
naming Texas MedClinic or any of its employees or agents, the report fails because it lacks sufficient
specificity to link Texas MedClinic to the required elements of the report. Based on the specific
facts of this case, we disagree, and hold the report did constitute a good faith effort to comply with
the mandates of section 74.351. See Palacios, 46 S.W.3d at 879; Hargrave, 300 S.W.3d at 346.
We recognize this case is unusual–most cases in which the report fails to name the defendant
involve more than one health care provider, or a course of treatment that necessarily involves other
health care providers. See, e.g., Rivenes v. Holden, 257 S.W.3d 332, 333, 338 (Tex. App.—Houston
-5-
04-09-00404-CV
[14th Dist.] 2008, pet. denied); Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.—Austin
2007, no pet.). Here, however, there is one defendant, one defined medical procedure, and one
applicable standard of care. More specifically, there is but one defendant named in a petition that
contends as its sole basis of liability that a flu vaccine was improperly administered by agents or
employees of that one defendant. There is but one specific medical procedure at issue versus a
course of treatment involving numerous health care providers. And, finally, despite Texas
MedClinic’s assertion, there is but one applicable standard of care in this case, i.e., the standard of
care applicable to the proper administration of a flu vaccine, whether it be administered by a doctor,
a physician’s assistant, a nurse practitioner, a nurse, or any other health care provider qualified to
administer vaccines. It is self-evident that the proper protocol for the administration of a flu vaccine
does not vary among health care providers, and therefore, the standard of care applicable in this case
is the same no matter who performed the procedure.
Accordingly, we hold under the specific confines of this case, i.e., a single defendant named
in the petition, alleging a single defined medical procedure, which involves one applicable standard
of care, the section 74.351 report served by Jorgensen was a “good faith effort.” See Palacios, 46
S.W.3d at 879; Hargrave, 300 S.W.3d at 346. The failure in this case to name Texas MedClinic in
the report did not result in a failure to inform Texas MedClinic of the specific conduct called into
question, i.e., the improper administration of a flu vaccine, nor did it deprive the court of sufficient
information to determine whether Jorgensen’s claim had merit. See Palacios, 46 S.W.3d at 878-79;
Hargrave, 300 S.W.3d at 346. Accordingly, the failure to include the name of the defendant or its
employees in the section 74.351 report did not result in an inadequate or absent report. The trial
court therefore reached an erroneous legal conclusion, thereby abusing its discretion, in determining
-6-
04-09-00404-CV
the failure to name Texas MedClinic in the report rendered it inadequate or “no report.” See Perry,
66 S.W.3d at 257.
When the trial court rendered its decision during the hearing, the court specifically stated:
See, I don’t know that I have any choice . . . other than to grant a motion to dismiss
because my reading of the Apodaca case indicates that because there’s no reference
to a specific defendant, that it’s as if there’s no report filed. And with the report
being due in 120 days, if I have to treat this as if no report is filed, then I think the
only thing I can do is to dismiss it.
Based on the court’s statement, it clearly concluded that it was legally bound to dismiss the case
because of the failure to name Texas MedClinic in the report. And, in reaching this conclusion, the
court believed it was so bound because of the decision of the Austin Court of Appeals in Apodaca
v. Russo. 228 S.W.3d at 257-58. This was the sole basis for the trial court’s decision.
We hold the court was not bound by Apodaca, and in fact reached an erroneous legal
conclusion by relying on that case. See Perry, 66 S.W.3d at 257. In Apodaca, the court of appeals
affirmed a trial court’s dismissal of a health care liability claim where the section 74.351 report
failed to name the defendant health care provider. 228 S.W.3d at 257-58. However, in reaching its
decision, the court specifically noted the report implicated other doctors and health care providers,
and referenced their conduct. Id. at 257. Additionally, the plaintiff in Apodaca underwent a course
of treatment over several days that involved numerous health care providers. Id. at 253-56. Here,
other health care providers are not implicated in the report with regard to Jorgensen’s injury, nor is
it even suggested that other health provider engaged in conduct that resulted in the alleged injury.
And, Jorgensen was not subjected to a course of treatment over several days, but a single, defined
medical procedure that took minutes. Apodaca is therefore distinguishable on its facts.
-7-
04-09-00404-CV
We recognize that in its objections and motion to dismiss, as well as on appeal, Texas
MedClinic contends that even if the trial court erred in granting the motion to dismiss based on
Jorgensen’s failure to name Texas MedClinic in the expert report, the dismissal was proper because
the causation element of the report was conclusory, thereby rendering the report inadequate. We
express no opinion on this issue because although the issue was raised in the objection and motion
to dismiss, it was not argued at the hearing, and as previously noted, the trial court specifically stated
its decision to dismiss was based on the failure to name Texas MedClinic in the report. The trial
court never had an opportunity to rule on this contention.
Based on the foregoing, and under the specific facts of this case, the trial court erred in
granting the motion to dismiss, and we reverse the trial court’s order and remand this matter for
further proceedings.
Marialyn Barnard, Justice
-8-