columbia-north-hills-hospital-subsdiary-lp-dba-north-hills-hospital-v ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00009-CV
COLUMBIA NORTH HILLS APPELLANT
HOSPITAL SUBSIDIARY, L.P.
D/B/A NORTH HILLS HOSPITAL
V.
BULMARO ALVAREZ, APPELLEES
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE
ESTATE OF SANDRA ALVAREZ,
DECEASED AND AS NEXT FRIEND
OF SARAY ALVAREZ AND
MARILYN ALVAREZ, MINORS,
AND SANDY ALVAREZ,
INDIVIDUALLY
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Columbia North Hills Hospital Subsidiary, L.P. d/b/a North Hills Hospital
brings this interlocutory appeal challenging the trial court’s denial of its motion to
dismiss under section 74.351 of the Civil Practice and Remedies Code. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). In five issues, North Hills
contends that the trial court abused its discretion by (1) granting appellees—
Bulmaro Alvarez, individually and as representative of the estate of Sandra
Alvarez, deceased, and as next friend of Saray Alvarez and Marilyn Alvarez,
minors, and Sandy Alvarez, individually—a thirty-day extension to amend their
expert report, (2) finding appellees’ expert qualified to give an expert report, (3 &
4) finding the expert report sufficient to meet the statutory report requirement,
and (5) failing to dismiss appellees’ health care liability claim with prejudice. We
affirm.
Background
This case is on appeal to this court for the second time. See Columbia N.
Hills Hosp. Subsidiary, L.P. v. Alvarez, No. 02-10-00342-CV, 2011 WL 3211239
(Tex. App.—Fort Worth July 28, 2011, no pet.) (mem. op. on reh’g). Forty-five-
year-old Sandra Alvarez died at North Hills after having a hysterectomy. Id. at
*1. Following the surgery, she was transferred to the recovery room where she
experienced difficulties. Id. She was eventually diagnosed as suffering from
hemorrhagic shock and returned to the operating room for surgical repair of the
source of her internal bleeding. Id. Alvarez died approximately five hours after
her second surgery. Id. Her autopsy report indicates that she died as a result of
“(1) complications of acute hemorrhagic shock due to post-operative bleed and
2
(2) morbid obesity with hepatomegaly, severe fatty metamorphosis and early
fibrosis.” Id.
Appellees sued North Hills alleging both vicarious liability and direct liability
theories of recovery. Id. at *2. Appellees alleged that North Hills was vicariously
liable for its nurses’ negligence, including the failure to invoke the chain of
command. Id. Appellees further alleged that North Hills was directly liable for
failing to adequately train its nurses, failing to enforce its policies and procedures,
and failing to adequately supervise its nurses. Id. Appellees timely served the
report and curriculum vitae of their designated expert, Dr. Tyuluman, on North
Hills. Id. North Hills filed a motion to dismiss alleging that Dr. Tyuluman was not
qualified to testify on the standard of care applicable to a hospital and also
alleging various deficiencies in his report. Id. After a hearing, the trial court ruled
that
the expert reports submitted by [Appellees] constitute a good faith
effort and meet the requirements of Chapter 74 of the Civil Practice
& Remedies Code, with the exception that [Appellees] are required
to submit an amended report breaking out specifically by name each
defendant and/or group of defendants and the specific elements
relating to the standard of care, breach of the standard of care, and
causation for each defendant.
Id.
The trial court gave appellees thirty days to file the amended report.
Appellees timely served an amended report of Dr. Tyuluman.1 Id. North Hills
1
All subsequent references to Dr. Tyuluman’s report are to his amended
report.
3
then filed a second motion to dismiss again alleging that Dr. Tyuluman was not
qualified and alleging the same deficiencies in his report. Id. After a hearing, the
trial court denied North Hills’s second motion to dismiss, and North Hills
appealed to this court. Id.
We held in our first opinion that Dr. Tyuluman was not qualified to give an
opinion on the standard of care for the direct liability claims against North Hills
and that his statement of the standard of care applicable to the hospital for the
direct liability claims was insufficient to meet the statutory requirement. Id. at *5.
Because the trial court had not granted appellees a thirty-day extension to cure
the deficiencies we identified, we remanded so that the trial court could
determine whether an extension should be granted to cure those deficiencies.
Id. at *7. We affirmed the trial court’s denial of the motion to dismiss on the
vicarious liability claims against North Hills. Id. at *8.
On remand, the trial court granted appellees a thirty-day extension to cure
the deficiencies. Appellees filed a new report from Charles M. Brosseau, Jr., a
hospital management consultant. North Hills objected to the new report and filed
a motion to dismiss, arguing that appellees were not allowed to submit a new
report and also alleging various deficiencies with the new report. After holding a
hearing, the trial court overruled North Hills’s objections and denied its motion to
dismiss. North Hills then perfected this second interlocutory appeal.
4
Standard of Review
We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Ctr. for
Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex. App.—
Fort Worth 2008, pet. denied); Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex.
App.—Fort Worth 2008, pet. denied). To determine whether a trial court abused
its discretion, we must decide whether the trial court acted without reference to
any guiding rules or principles; in other words, we must decide whether the act
was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely
because a trial court may decide a matter within its discretion in a different
manner than an appellate court would in a similar circumstance does not
demonstrate that an abuse of discretion has occurred. Id. at 242. But a trial
court has no discretion in determining what the law is or in applying the law to the
facts; thus, “a clear failure by the trial court to analyze or apply the law correctly
will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex.
App.—Fort Worth 2004, pet. denied).
Thirty-Day Extension
In its first issue, North Hills contends that the trial court erred in granting
appellees a thirty-day extension to correct the deficiencies in Dr. Tyuluman’s
report upon remand. North Hills argues that our holding in its previous appeal
5
prohibited appellees from submitting a new report on the standard of care and
breach and required them to amend Dr. Tyuluman’s report to show his
qualifications to opine on the standard of care applicable to the direct liability
claims. According to North Hills, since appellees’ motion for an extension
showed only that they intended to submit a new report from a different expert, the
trial court should not have granted the request for an extension and should not
have considered the new report from Brosseau.
To the extent that North Hills argues that the trial court abused its
discretion in granting the thirty-day extension, the trial court’s ruling is not subject
to appellate review. See Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.
2007).
The remainder of North Hills’s argument in this issue is that the trial court
erred in considering Brosseau’s report in satisfaction of the statutory
requirements. North Hills argues that because appellees had already received
one extension to correct Dr. Tyuluman’s statement of the standard of care, the
extension after remand gave appellees two extensions in disregard of section
74.351(c), which allows for only one extension. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(c).
A health care liability claimant is required to serve defendants with an
expert report and curriculum vitae of the report’s author within one hundred and
twenty days of filing the claim. Id. § 74.351(a). The report must be written by an
expert competent to give an opinion on the matters in the report, must inform the
6
defendant of the specific conduct called into question, and must provide a basis
for the trial court to determine that the claim has merit. Id. § 74.351(r)(5)(B),
(r)(6), 74.402 (West 2011); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002). If the defendant files a motion challenging the adequacy of the expert
report, the court shall grant the motion only if it appears to the court that the
report does not represent a good faith effort to comply with the statutory
requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). The court may
also grant “one 30-day extension to the claimant in order to cure the deficiency.”
Id. § 74.351(c). When curing a deficiency in a report, a plaintiff may submit an
amended report from the same expert or supplement the original report with a
new report from a different expert. Lewis v. Funderburk, 253 S.W.3d 204, 208
(Tex. 2008).
If a trial court finds that an expert report does not meet the statutory
requirement, grants the plaintiff a thirty-day extension to correct the deficiency,
and finds the report sufficient after the extension––and we subsequently reverse
the trial court’s decision–––we may allow the trial court to grant another thirty-day
extension on remand if we hold that the report is deficient in a different manner
than found by the trial court when granting the original thirty-day extension. See
TTHR Ltd. P’ship v. Moreno, No. 02-10-00334-CV, 2011 WL 2651813, at *5
(Tex. App.—Fort Worth July 7, 2011, pet. granted) (mem. op. on reh’g); see also
Columbia N. Hills Hosp. Subsidiary, 2011 WL 3211239, at *7 (applying Moreno).
This is not a second extension in violation of section 74.351(c); rather it is the
7
extension the plaintiff could have received had the trial court given him notice
about this defect after the defendant’s first objection that the report was deficient.
See TTHR Ltd. P’ship, 2011 WL 2681813, at *5.
In the first appeal, we remanded the case to the trial court for it to
determine whether to grant a thirty-day extension to allow appellees to correct
the deficiencies this court identified, which were that the report did not show that
Dr. Tyuluman was qualified to opine on the standard of care as it applied to the
direct liability claims and that his statement of the standard of care applicable to
North Hills on the direct liability claims was insufficient. Columbia N. Hills Hosp.
Subsidiary, 2011 WL 3211239, at *5, *7. Despite North Hills’s argument that the
trial court had already granted an extension to cure the statement of the standard
of care, the deficiencies we identified on appeal are different from those originally
found by the trial court. In giving the original thirty-day extension, the trial court
had instructed appellees to “break[] out specifically by name each defendant
and/or group of defendants and the specific elements relating to the standard of
care, breach of the standard of care, and causation for each defendant.”
Id. at *2. Thus, the trial court granted the original extension to make separate
statements of each standard of care, breach, and causation for each defendant
rather than directing appellees to make a different statement of the standard of
care for each claim against North Hills. Nor did the trial court address Dr.
Tyuluman’s qualifications to make such statements relating to the direct liability
claims against North Hills. Therefore, we conclude and hold that the trial court
8
was authorized to consider Brosseau’s report addressing both the qualifications
of the expert and the statement of the standard of care for the direct claims
against North Hills because those elements were found to be deficient for the first
time in the first appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i);
Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008) (“The statute does not allow
for an extension unless, and until, elements of a report are found deficient, and
that did not occur in this case until the court of appeals so held.”); Lewis, 253
S.W.3d at 208; Columbia N. Hills Hosp. Subsidiary, 2011 WL 3211239, at *7.
We overrule North Hills’s first issue.
Brosseau’s Qualifications
In its second issue, North Hills contends that the trial court abused its
discretion in finding Brosseau qualified to give an expert opinion on the direct
liability claims. North Hills argues that (1) Brosseau is not qualified to give an
opinion on post-operative nursing care because he is not a trained, educated
nurse and must rely on the opinions of others to determine whether the care of
nurses fell below the standard of care and (2) he is not qualified to opine on
causation because he is not a physician.
An expert report concerning standards of care for health care providers
must be authored by one who qualifies as an expert. Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.351(r)(5)(B), 74.402; Davisson v. Nicholson, 310 S.W.3d 543,
550 (Tex. App.—Fort Worth 2010, no pet.) (op. on reh’g). A person may qualify
9
as an expert on the issue of whether a 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 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.
Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b). Persons practicing health care
include those serving as consultants while being licensed, certified, or registered
in the same field as the health care provider. Id. § 74.402(a)(2). A person is
qualified on the basis of training or experience if he is certified by a state or
national professional certifying agency or has substantial experience in the field
and is actively practicing health care services relevant to the claim.
Id. § 74.402(c). To determine whether the author of a report is qualified, we may
look only at the four corners of the report and the author’s curriculum vitae.
Barber v. Mercer, 303 S.W.3d 786, 794 (Tex. App.—Fort Worth 2009, no pet.)
(citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878
(Tex. 2001)).
The direct liability claims against North Hills allege that the hospital is
directly liable for failing to adequately train its nurses, enforce its policies and
10
procedures, and adequately supervise its nurses. Therefore, an expert making a
report as to the standard of care involved in such a claim must have adequate
familiarity, training, or experience with formulation of training programs,
formulation or enforcement of hospital policies and procedures, and supervision
of nurses to be qualified to make such a report. See Columbia N. Hills Hosp.
Subsidiary, 2011 WL 3211239, at *5; see also Reed v. Granbury Hosp. Corp.,
117 S.W.3d 404, 409–13 (Tex. App.—Fort Worth 2003, no pet.) (holding that
expert must have knowledge of hospital policies and procedures for direct liability
claim against hospital); Hendrick Med. Ctr. v. Conger, 298 S.W.3d 784, 788 (Tex.
App.—Eastland 2009, no pet.) (holding that expert must have knowledge,
training, or experience concerning standard of care in formulation of hospital
policies and procedures for report on direct liability claim).
Looking at the four corners of the report and curriculum vitae, we conclude
that they establish that Brosseau is qualified to opine as to the standard of care
applicable to North Hills. According to the report, Brosseau has been a hospital
management consultant since 1996 and has been certified as a Fellow of the
American College of Healthcare Executives since 2001. He has a Masters
degree in Healthcare Administration and has been working as a hospital
administrator or administration consultant for over thirty years. In that time,
Brosseau has been responsible for the “preparation and implementation of
hospital policies and procedures, including but not limited to, policies and
procedures regarding environment of care, treatments, training/competencies,
11
nursing, chain of command, human resources and leadership.” He states that
because of his knowledge, training, and experience, he is familiar with the
standard of care applicable to the administrative and managerial duties that
hospitals owe their patients.
The qualifications listed in Brosseau’s report are sufficient to qualify him as
an expert under section 74.402 because he has shown that he is a practicing
health care provider with the proper education, certifications, and experience to
qualify as an expert in hospital administration under the statute. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.402(b); Hollingsworth v. Springs, 353 S.W.3d 506,
516–18 (Tex. App.—Dallas 2011, no pet.) (holding that Brosseau is qualified to
opine on standard of care applicable to hospital administration).
North Hills argues that Brosseau is not qualified to opine on the standard
of care because he is not a nurse or physician and therefore must rely on the
opinions of others when determining whether direct patient care was deficient.
However, such expertise is not required for this particular claim. We held in our
prior opinion in this case that Dr. Tyuluman had such expertise on matters of the
medical care of nurses and could opine on the standard of care as it applied to
direct nursing care for the vicarious liability claims against the hospital but that he
was not qualified to opine on the direct liability claims. See Columbia N. Hills
Hosp. Subsidiary, 2011 WL 3211239, at *4–5. For these direct liability claims,
the expert needed to demonstrate expertise in “the standard of care applicable to
a hospital in training its nurses, in enforcing its policies and procedures, and in
12
supervising its nurses, which is an entirely separate standard.” Id. at *5 (citing
Denton Reg’l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950–51 (Tex. App.—Fort
Worth 1997, pet. denied), for the general discussion of the standard of care for
direct hospital liability). Thus, Brosseau has shown the kind of expertise required
for the direct liability claims.
To the extent that medical expert testimony is required to address the
underlying medical procedures and nursing care at issue, Dr. Tyuluman’s report
may be taken together with Brosseau’s to address how the underlying nursing
care relates to the alleged failures of administrative care. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(i) (any report requirement can be satisfied by offering
more than one report); Columbia N. Hills Hosp. Subsidiary, 2011 WL 3211239, at
*4–5 (holding Dr. Tyuluman’s report adequate as to the underlying medical care);
Reed, 117 S.W.3d at 409 (holding medical expert testimony necessary to explain
underlying medical procedures). Because the direct liability claims are about the
failure in North Hills’s administrative care, Brosseau does not need to be a nurse
or physician to qualify as an expert for the direct liability claims; rather, he needs
to be an experienced hospital administrator. See Hollingsworth, 353 S.W.3d at
516. Thus, the trial court did not abuse its discretion in finding Brosseau qualified
to make an expert report on the standard of care for the direct liability claims
against North Hills.
In the remainder of its second issue, North Hills contends that Brosseau is
not qualified to opine on how the actions of North Hills caused Alvarez’s death
13
because he is not a physician. North Hills is correct in that only a physician can
give an opinion on causation in an expert report. Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(5)(C). However, as we explain below, Brosseau did not offer an
opinion on causation, nor was it necessary for him to do so.
Therefore, we overrule North Hills’s second issue.
Brosseau’s Expert Report
In its third and fourth issues, North Hills contends that the trial court
abused its discretion in finding Brosseau’s report sufficient to meet the statutory
requirements of chapter 74 of the Civil Practice and Remedies Code. North Hills
argues that the report does not adequately set forth the standard of care, does
not show how North Hills breached the standard of care, and does not show how
North Hills caused Alvarez’s death because it is too conclusory.
Applicable Law
The purpose of the expert report requirement is to inform the defendant of
the specific conduct the plaintiff has called into question and to provide a basis
for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at
878. A report that merely states the expert’s conclusions about the standard of
care, breach, and causation does not fulfill these purposes. Id. at 879. Rather,
the expert must explain the basis of his statements to link his conclusions to the
facts. Bowie Mem’l Hosp., 79 S.W.3d at 52. An expert report “need not marshal
all the plaintiff’s proof,” and the information in the report “does not have to meet
the same requirements as the evidence offered in a summary-judgment
14
proceeding or at trial.” Palacios, 46 S.W.3d at 878–79. A plaintiff may meet the
requirements of chapter 74 through multiple reports. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(i). A single report need not “address all liability and
causation issues with respect to all physicians or health care providers or with
respect to both liability and causation issues for a physician or health care
provider.” Id. But read together, the reports must provide a “fair summary” of the
experts’ opinions regarding the “applicable standards of care, the manner in
which the care rendered by the physician or health care provider failed to meet
the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.” Id. § 74.351(r)(6); Barber, 303 S.W.3d at 791.
If the defendant files a motion challenging the adequacy of the expert
report, the court shall grant the motion “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.” Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l). In reviewing the sufficiency of the reports, we look no further than
the information contained in the reports themselves. Bowie Mem’l Hosp., 79
S.W.3d at 52.
Standard of Care and Breach
The standard of care for a hospital is what an ordinary, prudent hospital
would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880.
Identifying the standard of care is critical: whether a defendant breached his or
her duty to a patient cannot be determined absent specific information about
15
what the defendant should have done differently. Id. When an expert report
opines on the standard of care and how it was breached, it is not sufficient to
simply state that the expert knows the standard of care and concludes that it was
not met. Id. While a “fair summary” is something less than a full statement of the
applicable standard of care and how it was breached, even a fair summary must
set out what care was expected, but not given. Id.
Looking at the four corners of the reports, we conclude that Brosseau’s
report adequately states the standard of care applicable to the hospital and how
the hospital breached that standard. Brosseau states that the standard of care
requires hospital administration to ensure that its employees are competent, to
have and enforce policies and procedures, and to ensure that those policies are
being implemented. Specifically, Brosseau states that hospitals must train their
nurses to be competent and to understand the hospitals’ policies and
procedures. This includes training nurses to (1) make appropriate assessments
and reassessments of patients, (2) develop appropriate nursing plans of care,
and (3) become effective patient advocates by using the hospital’s chain of
command to keep a patient from harm. The standard of care, according to
Brosseau, also includes requiring hospital management and administration to
formulate and enforce policies to facilitate this training and to ensure nurse
competency. Brosseau states that a hospital must have policies regarding the
chain of command that can “be emergently and immediately invoked to involve
hospital management to ensure safe resolution of the patient’s condition” and
16
that resolution “must include not only nursing management, but also the Medical
Department Chair and/or the Chief of Staff.”
Relying on Dr. Tyuluman’s opinion that surgery was the only proper
treatment to stop internal bleeding, Brosseau concluded that the standard of care
dictated that the nurses, nurse management, and administrators use a plan of
care and the chain of command to get surgeons, the Chief of Staff, or the
Department Chair involved to help get Alvarez to surgery quickly. Brosseau
opined that the standard of care was breached because North Hills did not
ensure that its nurses were competent to care for Alvarez and the required
policies and procedures for nursing administration were either not in place or not
enforced. He concluded that the failure to ensure competency was evidenced by
Dr. Tyuluman’s findings that the nurses failed to appreciate Alvarez’s
deteriorating condition and failed to invoke the chain of command to get her the
care she needed. Brosseau further concluded that the failure to have,
implement, and enforce policies on patient assessment and advocacy was
evidenced by the failure of nurses, nurse managers, and administrators to
implement a plan of care to get Alvarez to surgery when her condition
deteriorated as well as by the belated involvement of the Assistant CNO and
Nurse Manager and the lack of involvement of the Department Chair and Chief of
Staff in Alvarez’s care.
We hold that Brosseau’s report, taken together with Dr. Tyuluman’s
assessment of the medical care involved, sufficiently ties his conclusions to facts
17
to put the hospital on notice of what care he opined was required but not given.
See Palacios, 46 S.W.3d at 879; Hollingsworth, 353 S.W.3d at 517–18 (holding
similar statements by Brosseau to be sufficient to show standard of care and
breach). Therefore, we overrule North Hills’s third issue.
Causation
In its fourth issue, North Hills contends that Brosseau’s report did not
provide a fair summary of how its conduct caused Alvarez’s death. Appellees
concede that Brosseau’s report is not being proffered as an expert opinion on
causation but instead argue that Dr. Tyuluman’s report is sufficient on the issue
of causation.
When a plaintiff relies on one report to show the standard of care and
breach and a second report to show causation, we must look to both reports to
see whether the breach identified in the standard-of-care report is sufficiently
linked to the cause of the alleged injury in the causation report. See Salais v.
Tex. Dep’t of Aging & Disability Servs., 323 S.W.3d 527, 536 (Tex. App.—Waco
2010, pet. denied) (holding when paramedic expert report offered only for
standard of care and breach, court examines whether physician’s report
adequately links breach to alleged injury); Martin v. Abilene Reg’l Med. Ctr., No.
11-04-00303-CV, 2006 WL 241509, at *4–5 (Tex. App.—Eastland Feb. 2, 2006,
no pet.) (mem. op.) (holding report of nurse expert on standard of care and
breach sufficiently linked to physician expert report on causation to satisfy report
requirement); cf. Gannon v. Wyche, 321 S.W.3d 881, 894–97 (Tex. App—
18
Houston [14th Dist.] 2010, pet. denied) (holding physician’s report on causation
not sufficiently linked to nurse expert report on standard of care and breach when
statement of causation specifically referred to physicians only).
North Hills’s argument that the Brosseau report’s statement of causation is
conclusory is based upon the assumption that we cannot consider Dr.
Tyuluman’s report because we have already ruled it to be “inadequate as it
pertains to the direct liability claims against North Hills.” However, North Hills
misconstrues our holding. We held only that Dr. Tyuluman was not qualified to
opine on the standard of care as it related to the direct liability claims against
North Hills, expressly declining to examine the adequacy of his statement of
causation with respect to the direct liability claims. Columbia N. Hills Hosp.
Subsidiary, 2011 WL 3211239, at *5 n.4. Further, a physician does not need to
be qualified to opine on the standard of care for a direct liability claim to be
qualified to opine on causation; a physician needs only to show how he is
qualified to opine on the cause of the plaintiff’s injury. See Salais, 323 S.W.3d at
535–36 (holding separate physician report on causation must show qualification
to opine on causation when report on paramedic standard of care and breach
found to be sufficient). Accordingly, our only inquiry is whether Dr. Tyuluman’s
report adequately links the injury to the breaches identified by Brosseau. See
Salais, 323 S.W.3d at 536; Martin, 2006 WL 241509, at *4–5.
Dr. Tyuluman’s report provides as follows:
19
The failure of all defendants to provide surgery to control the
hemorrhage, continuing to administer pressor agents when
contraindicated, failure to properly monitor intraoperative blood loss,
and failure to recognize the compromised status of the patient during
this process are proximate cause of the death of Alvarez. Had
prompt surgery been performed, it is more likely than not that the
injury would have been easily found and corrected, preventing
further blood loss. I have performed such surgeries to locate and
repair injury following vaginal hysterectomy and know from my
experience the effectiveness of such procedures. Had ordinary care
been provided during the operative and post operative period, in all
medical probability, . . . Alvarez would be alive today.
Further, Brosseau’s report specifically states that the failure to recognize
Alvarez’s deteriorating condition and the failure to get her to surgery were
breaches of the standard of care by the hospital administration. Dr. Tyuluman’s
report implicates these same actions by the nurses and hospital staff, among
others, as causing Alvarez’s death. Therefore, we hold that Dr. Tyuluman’s
causation opinion sufficiently links the acts and omissions of North Hills identified
by Brosseau to the cause of Alvarez’s death.
Therefore, we further conclude and hold that the trial court did not abuse
its discretion by finding that Dr. Tyuluman’s report supplies the causation element
of the statutory expert report requirement. We overrule North Hills’s fourth issue.
Having overruled all of North Hills’s issues upon which it predicates its fifth
issue––that the trial court should have granted its motion to dismiss with
prejudice––we also overrule its fifth issue.
20
Sanctions
In their sole cross point, appellees contend that North Hills should be
sanctioned for filing a frivolous appeal. They argue that this appeal was filed with
the sole purpose of delaying proceedings without any reasonable expectation
that the appeal would succeed.
If the court of appeals determines that an appeal is frivolous, it may—on
the motion of any party or on its own initiative, after notice and a reasonable
opportunity for response—award each prevailing party just damages. Tex. R.
App. P. 45. Whether to award damages is within the court’s discretion, but
sanctions should only be imposed in the most egregious circumstances. Durham
v. Zarcades, 270 S.W.3d 708, 720 (Tex. App.—Fort Worth 2008, no pet.). In
determining whether to award damages, the court must not consider any matter
that does not appear in the record, briefs, or other papers filed in the court of
appeals. Tex. R. App. P. 45. Although we have overruled all of North Hills’s
issues, we do not believe its appeal is so egregious that it warrants sanctions.
See Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). Therefore, we overrule appellees’ sole cross
point.
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Conclusion
Having overruled all of North Hills’s issues and appellees’ cross point, we
affirm the trial court’s order.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DELIVERED: September 27, 2012
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