Apollo Healthcare at Willowbrook, LLC, D/B/A the Medical Resort at Willowbrook, Muhammad Hanif, M.D, Nabil Khoury, AShiqueali Poonawala, M.D.N and Archana Thota v. Mark McCammon, Individually, and as Representative of the Estate of Patricia Phillips ( 2022 )

Opinion issued July 14, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00801-CV
———————————
APOLLO HEALTHCARE AT WILLOWBROOK, LLC D/B/A THE
MEDICAL RESORT AT WILLOWBROOK, MUHAMMAD HANIF,
NABIL KHOURY, ASHIQUEALI POONAWALA, AND ARCHANA
THOTA, Appellants
V.
MARK MCCAMMON, INDIVIDUALLY, AND AS REPRESENTATIVE OF
THE ESTATE OF PATRICIA PHILLIPS, DECEASED, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2020-16211
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, Apollo Healthcare at Willowbrook,
LLC d/b/a The Medical Resort at Willowbrook (“Willowbrook”), Muhammad
Hanif, M.D. (“Hanif”), Nabil Khoury (“Khoury”), Ashiqueali Poonawala, M.D.
(“Poonawala”), and Archana Thota (“Thota”) (collectively, “Appellants”),
challenge the trial court’s order denying their motions to dismiss the health care
liability claims brought against them by appellee Mark McCammon
(“McCammon”), individually and as representative of the estate of Patricia Phillips,
deceased. In multiple issues, Appellants argue that the trial court abused its
discretion by denying their motions to dismiss because McCammon’s expert report
failed to comply with the requirements of Chapter 74 of the Texas Civil Practice and
Remedies Code.
We affirm.
Background
McCammon, individually and as representative of the estate of his deceased
wife Patricia Phillips (“Phillips”), filed a health care liability claim against
Appellants under Chapter 74 of the Texas Civil Practice and Remedies Code,
alleging negligence in the care and treatment Phillips received while a resident at
Willowbrook, a nursing home. He claims that the profound neglect suffered by
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9).
2
Phillips resulted in significant damages and her untimely death. He asserts a survival
action on behalf of her estate and a wrongful death cause of action in his individual
capacity.
In his petition, McCammon alleged that Phillips was 67 years old at the time
of her admission on January 20, 2018 at Willowbrook. She had a history of dementia,
needing to be fed by gastrostomy tube, and had a significantly high risk of falls due
to her overall mental and physical condition. Upon admission, the staff, nurses, and
attending physicians at Willowbrook performed a Fall Risk Assessment that noted
her fall history within the past six months and determined that she was at a high risk
of falls. The Fall Risk Assessment further noted that Phillips “exhibits loss of
balance while standing,” that she “requires hand[s]-on assistance to move from place
to place,” and that she presented with a “decrease in muscle coordination.” The Fall
Risk Assessment determined that Phillips required assistance with bed mobility,
transferring, ambulating, dressing, bathing, and toilet use. Consistent with the Fall
Risk Assessment, staff, nurses, and attending physicians at the nursing home
repeatedly noted that Phillips was at a high risk for falls due to gait problems and
impaired balance.
Despite the determination that Phillips was at a high risk for falls and required
assistance in all aspects of mobility, she fell at least five times while in the care of
the staff and attending physicians at Willowbrook. Two falls resulting in bone
3
fractures and head trauma occurred within three months of admission. Specifically,
on or about March 16, 2018, she was treated by an orthopedic surgeon for a fractured
right wrist after suffering from a fall the night before. On or about April 20, 2018,
she suffered another fall that resulted in a visit to the emergency room, where it was
determined that she had a fractured right index finger and that her fractured wrist
from the previous fall was not healing. Phillips also suffered a head injury during
the April fall, which led to a severe decline in her mental health. When Phillips
returned to Willowbrook, she suffered more falls before being removed from the
nursing home and continuing care in her own home until she died on December 13,
2018.
McCammon retained Dr. Alex Lechin—an expert in critical and skilled
nursing care as well as nursing home and hospital administration—to prepare an
expert report pursuant to the requirements of Chapter 74 of the Texas Civil Practice
and Remedies Code (“Chapter 74” or the “Medical Liability Act”).2 McCammon
served Appellants with Dr. Lechin’s expert report and curriculum vitae (“CV”) on
June 17, 2020. Appellants timely objected to Dr. Lechin’s expert report as
inadequate under Chapter 74 and moved to dismiss. The trial court granted in part
Appellant’s objections to the expert report, denied Appellants’ motions to dismiss,
and granted McCammon 30 days to cure any deficiencies. McCammon served Dr.
2
See id. §§ 74.001–.507 (“Medical Liability Act”).
4
Lechin’s amended expert report and CV on September 10, 2020. Appellants timely
filed motions to dismiss for failure to cure the expert report.
The trial court heard arguments on Appellants’ objections to Dr. Lechin’s
amended report on November 2, 2020 and took the matter under advisement. The
next week, the trial court entered an order overruling Appellants’ objections and
denying their motions to dismiss. Appellants timely filed this interlocutory appeal.
Motions to Dismiss
Appellants contend that the trial court abused its discretion by denying their
motions to dismiss McCammon’s health care liability claims for failure to serve an
adequate expert report. Specifically, in Hanif and Poonawala’s first issue, they
contend that Dr. Lechin’s opinions about the standard of care and breach are
conclusory and unsupported by the facts. In their second issue, Hanif and Poonawala
contend that Dr. Lechin failed to adequately establish a causal relationship between
their alleged breach of the standard of care and Phillips’s injuries.
In Willowbrook, Khoury, and Thota’s first issue, they contend that Dr.
Lechin’s amended expert report fails to adequately address medical causation and
injury. In connection with this issue, they also argue that Dr. Lechin’s amended
expert report contains no causation analysis linking Phillips’s injuries with her death,
there is no basis for McCammon’s wrongful death claim, and the claim should be
dismissed. In their second issue, Willowbrook, Khoury, and Thota contend that the
5
amended expert report is conclusory and fails to sufficiently describe how they
breached the standard of care. Finally, in their third issue, they contend that Dr.
Lechin’s amended expert report improperly applies a single standard of care to all
appellants.
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss a health care liability
claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 142 (Tex. 2015) (per curiam). We “defer to the trial court’s factual
determinations if they are supported by evidence,” but we review its legal
determinations de novo. Id. “A trial court abuses its discretion if it rules without
reference to guiding rules or principles.” Id.B. Healthcare Liability Expert Report Requirements
Under the Medical Liability Act, a plaintiff asserting health care liability
claims must timely serve each defendant physician and health care provider with one
or more expert reports and a CV of each expert whose opinion is offered to
substantiate the merits of the claims. TEX. CIV. PRAC. & REM. CODE § 74.351(a), (i);
see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—Houston [1st Dist.] 2015,
no pet.). The standard for serving an adequate expert report is well established. The
expert report must provide a “fair summary” of the expert’s opinions regarding the
(1) “applicable standards of care,” (2) “manner in which the care rendered by the
6
physician or health care provider failed to meet the standards,” and (3) “causal
relationship between that failure and the injury, harm, or damages claimed.” TEX.
CIV. PRAC. & REM. CODE § 74.351(r)(6); Miller v. JSC Lake Highlands Operations,
LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam). For standard of care and breach,
the expert report must explain what the physician or health care provider should have
done under the circumstances and what the physician or health care provider did
instead. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880
(Tex. 2001). For causation, the expert report must explain how and why the
physician’s or health care provider’s breach proximately caused the plaintiff’s
injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–
60 (Tex. 2017).
When the plaintiff timely serves an expert report, and the defendant timely
files a motion to dismiss challenging the adequacy of the report, the trial court may
take one of three actions. Mangin, 480 S.W.3d at 705. First, if the trial court
concludes that the report is adequate, it must deny the motion. Id. Second, if the trial
court concludes that the report does not constitute an objective good faith effort to
comply with the statute, it must grant the motion. Id.; see TEX. CIV. PRAC. & REM.
CODE § 74.351(l). Third, if the trial court concludes that the report is an objective
good faith effort to comply with the statute but is nevertheless deficient in some way,
7
it may grant the plaintiff one 30-day extension to cure the deficiency and must grant
the extension if the deficiency is curable. Mangin, 480 S.W.3d at 705–06.
A report qualifies as an objective good faith effort to comply if it (1) informs
the defendant of the specific conduct the plaintiff questions and (2) provides a basis
for the trial court to conclude that the plaintiff’s claims have merit. Baty v. Futrell,
543 S.W.3d 689, 693–94 (Tex. 2018); Mangin, 480 S.W.3d at 706. “In assessing the
sufficiency of a report, a trial court may not draw inferences; instead, it must
exclusively rely upon the information contained within the four corners of the
report.” Cornejo v. Hilgers, 446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.]
2014, pet. denied); see Baty, 543 S.W.3d at 693.
The purpose of the expert-report requirement is not to determine the merits of
the claim but to rule out frivolous lawsuits at the onset of litigation, before the parties
have conducted full discovery. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496,
502 (Tex. 2015); Mangin, 480 S.W.3d at 706. As this Court has explained:
The requirement to serve an expert report arises at the outset of
litigation and before the opportunity for the plaintiff to engage in
significant discovery, including taking oral depositions of the
defendants. As such, the statute itself contemplates that the amount and
quality of evidence available at the time of drafting the expert reports
will be less than that available at trial on the merits or even the
summary-judgment stage.
Mangin, 480 S.W.3d at 713 (citations omitted). In reviewing the sufficiency of an
expert report at this early stage of the litigation, a trial court may not consider an
8
expert’s credibility, the data the expert relies on, or the documents the expert relies
on or failed to consider. See Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—
Houston [1st Dist.] 2010, no pet.); Gonzalez v. Padilla, 485 S.W.3d 236, 245 (Tex.
App.—El Paso 2016, no pet.).
1. Standard of Care and Breach
Standard of care is defined by what an ordinarily prudent health care provider
or physician would have done under the same or similar circumstances. Palacios, 46
S.W.3d at 880; Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). “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 what the defendant should have done
differently.” Palacios, 46 S.W.3d at 880. “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.
When a plaintiff sues more than one defendant, the expert report must set forth
the standard of care for each defendant and explain the causal relationship between
each defendant’s individual acts and the injury. Kingwood Pines, 362 S.W.3d at 748.
However, grouping defendants together in discussing the relevant standards of care
does not render an expert report inadequate when all the defendants owed the same
duty to the plaintiff. Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 366–67 (Tex.
9
App.—Houston [14th Dist.] 2013, no pet.) (holding same standard of care may be
applied to more than one health care provider if they all owed same duty to patient);
Sanjar v. Turner, 252 S.W.3d 460, 466–67 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (same).
2. Causation
For causation, an expert report must explain “how and why” the physician’s
or health care provider’s breach proximately caused the plaintiff’s injury.
Zamarripa, 526 S.W.3d at 459–60. Proximate cause has two components:
cause-in-fact and foreseeability. Id. at 460. A physician’s breach was a cause-in-fact
of the plaintiff’s injury if the breach was a substantial factor in bringing about the
harm, and absent the breach (i.e., but for the breach), the harm would not have
occurred. Id. A physician’s breach was a foreseeable cause of the plaintiff’s injury
if a physician of ordinary intelligence would have anticipated the danger caused by
the negligent act or omission. See Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied). “No particular words or formality are
required, but bare conclusions will not suffice.” Scoresby v. Santillan, 346 S.W.3d
546, 556 (Tex. 2011). Thus, to provide more than a conclusory statement on
causation, an expert report must include an “explanation tying the conclusion to the
facts” and showing, to a reasonable degree, “how and why the breach caused the
10
injury based on the facts presented.” Jelinek v. Casas, 328 S.W.3d 526, 539–40 (Tex.
2010).
Additionally, an expert report “need not anticipate or rebut all possible
defensive theories that may ultimately be presented to the trial court.” Owens v.
Handyside, 478 S.W.3d 172, 187 (Tex. App.—Houston [1st Dist.] 2015, pet.
denied). Nor must the report “rule out every possible cause of the injury, harm, or
damages claimed, especially given that section 74.351(s) limits discovery before a
medical expert’s report is filed.” Baylor Med. Ctr. at Waxahachie v. Wallace, 278
S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.).
In determining whether the causation opinions are conclusory, we must
remain mindful that expert-report challenges are made at this early, pre-discovery
stage in the litigation, not when the merits of the health care liability claim are being
presented to the factfinder to determine liability. Cf. Baty, 543 S.W.3d at 697 & n.10
(rejecting argument that expert report was inadequate on standard of care, breach,
and causation; concluding that expert report sufficed “particularly in light of the
purposes the report is intended to serve” at early stage in litigation; and stating that
“[a]dditional detail is simply not required at this stage of the proceeding”).
C. Whether McCammon’s wrongful death claim must be dismissed because
it was not addressed in the expert report
In a portion their first issue, Willowbrook, Khoury, and Thota argue that
because Dr. Lechin’s amended expert report does not link Phillips’s injuries
11
sustained as a result of her falls at Willowbrook to her death and does not opine on
the cause of Phillips’s death, McCammon has not served an expert report that
supports his wrongful death claim. They further argue that the wrongful death claim
must be dismissed because of the insufficient expert report even if the amended
expert report supports the survival claim. We disagree.
In Certified EMS, Inc. v. Potts, the Texas Supreme Court addressed the
question of whether an expert report must address every liability theory alleged by
the plaintiff in order to be sufficient. 392 S.W.3d 625, 630–32 (Tex. 2013). The
Texas Supreme Court noted that the language of Chapter 74 requires a claimant to
file an expert report “[i]n a health care liability claim,” but it does not require an
expert report to address every liability theory pleaded by the plaintiff. Id. at 630. The
Court also stated that a valid expert report must summarize the applicable standard
of care, explain how a health care provider failed to meet that standard, and establish
the causal relationship between the failure and the harm alleged. Id. The Court held,
“A report that satisfies these requirements, even if as to one theory only, entitles the
claimant to proceed with a suit against the physician or health care provider.” Id.
The Court concluded that if the trial court determines that one liability theory is
supported by the expert report, the plaintiff’s claim is not frivolous and the suit may
proceed. Id. at 631. This Court has explicitly applied the reasoning and holding of
Certified EMS to cases involving survival and wrongful death claims. See Bay Oaks
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SNF, LLC v. Lancaster, 555 S.W.3d 268, 278–79 (Tex. App.—Houston [1st Dist.]
2018, pet. denied) (holding that if claimant’s expert report satisfied section 74.351’s
requirements as to survival claim, even though expert report did not address
wrongful death claim, trial court did not abuse its discretion by denying healthcare
providers’ motion to dismiss, and entire case could proceed).
Accordingly, we conclude that if Dr. Lechin’s amended expert report is
sufficient as to McCammon’s survival claim, McCammon’s entire case against
Appellants, including the wrongful death claim, may proceed. See Certified EMS,
392 S.W.3d at 630–31; Bay Oaks SNF, LLC, 555 S.W.3d at 278–79. To the extent
Willowbrook, Khoury, and Thota argue otherwise, we overrule rule this portion of
their first issue.
We therefore turn to the sufficiency of Dr. Lechin’s amended expert report.
D. Whether Dr. Lechin’s amended expert report supports McCammon’s
survival claim
Appellants contend that Dr. Lechin’s amended expert report does not provide
a “fair summary” of his expert opinions because his opinions on the applicable
standards of care, breach, and causation are conclusory. Willowbrook, Khoury, and
Thota raise an additional argument that the amended expert report is deficient
because it improperly applies the same standard of care to all Appellants. We address
this argument first.
13
1. Dr. Lechin’s amended expert report did not improperly group
Appellants together for purposes of the standard of care.
In their third issue, Willowbrook, Khoury, and Thota argue that Dr. Lechin’s
amended expert report improperly applies one standard of care to all Appellants.
They contend that the amended expert report “fails to explain what standards of care
apply to each alleged wrongdoer and what each alleged wrongdoer did wrong with
respect to [Phillips],” does not “explain each alleged wrongdoer’s connection with
[Phillips] or identify any health care or treatment provided by each alleged
wrongdoer to [Phillips],” and does not explain “why the individual defendants owe
the same standard of care to [Phillips] as each other or Willowbrook, a business
entity.” We disagree.
In the amended expert report, Dr. Lechin explained that Phillips was admitted
to Willowbrook, a nursing home, and described Willowbrook’s, Khoury’s, Thota’s,
and Poonawala’s relationship with Phillips. Specifically, Dr. Lechin opined:
• Apollo Healthcare at Willowbrook, LLC d/b/a The Medical Resort
at Willowbrook, Senior Care Excellence, LLC,3 Archana Thota,
Nabil Khoury, and Ashiqueali Poonawala were responsible for
hiring, training[,] and managing staff to effectively develop and
implement care for the safe treatment of Ms. Phillips.
• Archana Thota, as manager and director of Senior Care Excellence,
LLC, is responsible for ensuring the nursing home is adequately
staffed with qualified nurses and nurse assistants and for ensuring
that nursing home staff and attending physicians meet the standard
3
Though Senior Care Excellence, LLC is listed in Dr. Lechin’s amended expert
report, that entity was not named as a defendant.
14
of care with respect to the prevention of falls for patients who are at
a high risk for falls such as Ms. Phillips.
• Nabil Khoury and Ashiqueali Poonawala, as owners of Apollo
Healthcare at Willowbrook, LLC d/b/a The Medical Resort at
Willowbrook, are responsible for ensuring the nursing home is
adequately staffed with qualified nurses and nurse assistants and for
ensuring that nursing home staff and attending physicians meet the
standard of care with respect to the prevention of falls for patients
who are at a high risk for falls such as Ms. Phillips.
Based on these relationships and responsibilities, Dr. Lechin opined that the
standards of care applicable to Willowbrook, Khoury, Thota, and Poonawala
required that the staff, among other things, (1) “[d]evelop a comprehensive care plan
that sets forth identified (actual or potential) problem areas, sets short and long-term
goals for positive outcomes, and outlines specific interventions designed to prevent
adverse outcomes from known problem areas”; (2) “[i]mplement the care plan on
[Phillips’s] behalf”; (3) “[u]pdate the care plan consistent with [Phillips’s]
response”; (4) “follow[] [the care plan] to prevent falls and injuries in patients who
are at high risk for falls”; (5) “[i]nvestigate incidents/accidents and document in the
medical record every accident/incident”; and (6) “[i]n patients who are at a high risk
for falls, provide enough staff on duty to properly care for patients who require
assistance.” Dr. Lechin further opined:
• In particular, to meet the standard of care for fall prevention
“nursing facilities are required to have adequate care plans in place
and followed to prevent falls and injuries such as the use of bed and
chair alarms, self-releasing seatbelts, and other interventions.”
15
• “In a patient who has fallen and continues to be a high risk for falls
and injuries, a sitter or family member [should] be used to attend to
the patient for their safety and to prevent falls and injuries.”
• “For patients who require assistance with bed mobility, transferring,
ambulating, dressing, bathing and toilet use, the nursing home must
be adequately staffed with qualified nurses and nurse assistants to
render timely and effecti[ve] care upon request.”
Dr. Lechin concluded that, in his opinion, Willowbrook, Khoury, Thota, and
Poonawala violated these standards of care by “failing to develop and follow an
adequate fall-prevention plan for [Phillips], failing to properly train staff, failing to
adequately staff the facility with qualified nurses and nurse assistants, failing to
update her care plan consistent with her response, failing to investigate the causes of
numerous falls, failing to document every accident/incident in the medical record,
and failing to ensure that [Phillips] was provided timely assistance upon request.”
Thus, although Appellants are correct that Dr. Lechin applies the same
standards of care to Willowbrook, Khoury, Thota, and Poonawala, he explains
why—based on their responsibilities as a nursing facility and its administrators and
owners to “manag[e] staff to effectively develop and implement care for the safe
treatment of Ms. Phillips,” “ensur[e] the nursing home is adequately staffed with
qualified nurses and nurse assistants,” and “ensur[e] that nursing home staff and
attending physicians meet the standard of care with respect to the prevention of falls
for patients who are at a high risk for falls such as Ms. Phillips.” Based on the above,
we conclude that Dr. Lechin sufficiently explained that Willowbrook, Khoury,
16
Thota, and Poonawala all owed the same duties to Phillips. Dr. Lechin was not
required to set out a different standard of care as to each Appellant because he opined
that multiple providers all owed Phillips the same standard of care. See Harvey v.
Kindred Healthcare Operating, Inc., 578 S.W.3d 638, 649 (Tex. App.—Houston
[14th Dist.] 2019, no pet.) (concluding that expert was not required to set out
different standard of care as to each employee because she opined that multiple
providers all owed decedent same standard of care); Bailey, 402 S.W.3d at 367
(rejecting argument that expert report was deficient for applying same standard of
care to doctor and clinic because expert report sufficiently explained that doctor and
clinic owed same duties to plaintiff).
With respect to Hanif, Dr. Lechin opined that many of the same standards of
care apply to Hanif as Phillips’s attending physician. However, he included an
additional standard of care not applicable to the remaining Appellants—“[i]n
patients who have fallen and suffered major injuries such as bone fractures, develop
and implement a physical therapy plan”—and also did not apply two of the listed
standards of care to Hanif which related to adequate staffing.4 Thus, we disagree that
4
Specifically, Dr. Lechin opined that Willowbrook, Khoury, Thota, and Poonawala
were subject to the following two standards of care that were not listed for Hanif:
(1) “[a]dequately staff the facility with registered nurses and certified nursing
assistants to ensure timely responses to patients who request assistance,” and (2)
“[i]n patients who are at a high risk for falls, provide enough staff on duty to
properly care for patients who require assistance.”
17
Dr. Lechin applies all of the same standards of care to Hanif as he does to the
remaining Appellants.
Furthermore, as to the standards of care that overlap between Hanif and the
remaining Appellants, Dr. Lechin opined that Hanif was required to meet these
standards of care as Phillips’s attending physician and, as explained above, that the
remaining Appellants, based on their responsibilities as a nursing facility and its
administrators and owners, were required to “manag[e] staff to effectively develop
and implement care for the safe treatment of Ms. Phillips” and “ensur[e] that nursing
home staff and attending physicians meet the standard of care with respect to the
prevention of falls for patients who are at a high risk for falls such as Ms. Phillips.”
Thus, as we concluded above, Dr. Lechin sufficiently explained that Appellants,
including Hanif, all owed the same duties to Phillips. See Harvey, 578 S.W.3d at
649; Bailey, 402 S.W.3d at 367.
We overrule Willowbrook, Khoury, and Thota’s third issue.
2. Dr. Lechin’s opinions as to standard of care and breach are not
conclusory.
Appellants argue that Dr. Lechin’s amended expert report fails to inform
Appellants of the care that was expected under the circumstances, making his
opinions as to the standard of care and breach conclusory.5 Specifically, Appellants
5
This issue is raised in Willowbrook, Khoury, and Thota’s second issue, and in Hanif
and Poonawala’s first issue.
18
contend that Dr. Lechin’s opinions are “ambiguous, lacking essential details,
speculative, replete with contradictions and make it impossible to determine whether
[McCammon’s] claims have merit.” Appellants further contend that Dr. Lechin
generally claims that Appellants breached “a laundry list of twelve standards,” but
never explains in detail how Appellants breached each of these standards of care.
Again, we disagree.
According to Dr. Lechin’s report, Phillips was at high risk for falls when
admitted to Willowbrook, as documented by the Fall Risk Assessment performed on
her by the staff, nurses, and attending physicians at the time of admission. She was
at high risk for falls because of “weakness, balance problems, and memory deficits.”
According to Dr. Lechin, for patients such as Phillips, “it is extremely important to
prevent falls that can cause life threatening injuries.” Due to her high risk for falls,
she was required to be “assisted with all activities out of bed including transfers and
ambulation,” as well as dressing, bathing, and toilet use.
In light of Phillips’s fall risk, Dr. Lechin opined that Appellants had a duty to,
among other things,6 (1) “[d]evelop a comprehensive care plan that sets forth
6
Although Appellants contend that Dr. Lechin’s amended expert report does not
demonstrate how Appellants breached each of the twelve standards of care, we do
not have to evaluate each articulated standard of care and breach because Dr. Lechin
was only required to meet the expert report requirements as to one theory. See
Harvey v. Kindred Healthcare Operating, Inc., 578 S.W.3d 638, 649 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (focusing analysis on one standard of care, even
19
identified (actual or potential) problem areas, sets short and long-term goals for
positive outcomes, and outlines specific interventions designed to prevent adverse
outcomes from known problem areas”; (2) “[i]mplement the care plan on [Phillips’s]
behalf”; (3) “[u]pdate the care plan consistent with [Phillips’s] response”;
(4) “follow[] [the care plan] to prevent falls and injuries in patients who are at high
risk for falls”; and (5) “[i]nvestigate incidents/accidents and document in the
medical record every accident/incident.” Willowbrook, Khoury, Thota, and
Poonawala also had a duty to “patients who are at a high risk for falls” to “provide
enough staff on duty to properly care for patients who require assistance.” And Hanif
had a duty to “patients who have fallen and suffered major injuries such as bone
fractures” to “develop and implement a physical therapy plan.” Dr. Lechin further
stated that because Phillips “was found to be at high risk of falls upon admission to
the nursing home, requiring that she be assisted with all activities out of bed
including transfers and ambulation,” the standard of care required that the care plan
for Phillips set out “interventions to be taken to prevent falls,” including “bed and
chair alarms, self-releasing seat belts or lap buddies, timely physical assistance for
transfers, [and] documentation of every accident/incident in the medical record
following an investigation[.]”
though expert report opined on three, as expert was only required to meet expert
report requirements as to one theory).
20
Dr. Lechin opined that Willowbrook, Khoury, Thota, and Poonawala violated
these duties “by failing to develop and follow an adequate fall-prevention plan for
[Phillips], . . . failing to investigate the causes of numerous falls, failing to document
every accident/incident in the medical record, and failing to ensure that [Phillips]
was provided timely assistance upon request.” Similarly, Dr. Lechin stated that
Hanif violated these duties “by failing to develop and follow an adequate fall
prevention plan, . . . failing to investigate the causes of numerous falls and fail[ing]
to document every accident/incident in the medical record, and failing to develop
and implement a physical therapy plan for Ms. Phillips’[s] broken wrist following
the first of her two major falls.”
Dr. Lechin then gave specific examples of these failures. For instance, with
respect to the failure to implement and follow Phillips’s care plan, Dr. Lechin stated:
The facility’s care plan mandated that [Phillips] receive a low bed and
that care be provided with assistance. In patients who are totally
dependent on staff for performance of activities such as bed mobility,
transfers, or locomotion, physical assistance with staff members and
supervision needs to be provided for these activities to prevent falls and
injuries. [Phillips’s] care plans should have been followed to prevent
falls and injuries. However, even though the medical records noted that
[Phillips] required two-person assist with all activities including bed
mobility and transfers, the staff did not provide her with this assistance.
The facility’s failure to provide [Phillips] physical assistance and
supervision of staff constitutes a violation of the standard of care and
caused her fall and injuries.
Dr. Lechin also described Appellants’ failure to provide assistance to Phillips,
which resulted in her April fall, stating:
21
On April 20, 2018, [Phillips] suffered from another fall, which resulted
in a visit to the emergency room. It was determined then that [Phillips]
had fractured her right index finger from this fall and her fractured wrist
from the previous fall was not healing. These injuries caused constant
pain and suffering. The pain was prolonged by the failure to develop
and implement a proper physical therapy plan. While the emergency
room records indicate that certain safety measures were in place,
including placement of the call light within reach and bedrails, the
cause of the fall was the failure of the staff and nurses to timely respond
to her request for assistance. [Phillips] was forced to transfer without
assistance after waiting an hour to use the commode. [Phillips] “rolled
out of bed because no one came to let her go to the bathroom.”
As a result of this fall in April, Phillips sustained a fractured right index finger and
a head injury.
Finally, Dr. Lechin noted that although Phillips “suffered from falls at least
five times while in the care of the staff and attending physicians at the nursing
home,” her medical chart “does not document every fall or the injuries resulting from
every fall, does not reflect that the nursing home performed an investigation with
respect to each incident, and does not reflect any changes or updates in the care plan
following any of the falls.” According to Dr. Lechin, “failing to update her care plan
or implement additional safety measures to prevent falls after she started falling in
their facility” is a “gross deviation from the standard of care.”
Specific to Hanif’s failure to develop and implement a physical therapy plan,
Dr. Lechin stated that Phillips sustained a fractured right wrist after a fall at
Willowbrook in March 2018 and that, when she was taken to the emergency room
after the April fall, it was determined that “her fractured wrist from the previous fall
22
was not healing.” Dr. Lechin opined that this injury, as well as the injury to her right
index finger, “caused constant pain and suffering” that was “prolonged by the failure
to develop and implement a proper physical therapy plan.” Dr. Lechin further opined
that Phillips’s bone fractures “would not have worsened and caused a severe decline
in her health and substantial pain if the staff and attending physicians had developed
and implemented a physical therapy plan.” Thus, Dr. Lechin stated that Hanif
breached the standard of care by “failing to develop and implement a physical
therapy plan for [Phillips’s] broken wrist following the first of her two major falls.”
We conclude that Dr. Lechin’s amended expert report adequately sets out
what care was expected of Appellants, but not given. Palacios, 46 S.W.3d at 880.
Specifically, Dr. Lechin’s amended expert report puts Appellants on notice that, due
to Phillips’s fall risk, they were required to utilize a two-person assist with all
activities including bed mobility and transfers, document every fall or the injuries
resulting from every fall, perform an investigation with respect to each incident,
update the care plan and implement additional safety measures to prevent future
falls, and (with respect to Hanif) implement a physical therapy plan following major
injuries to prevent prolonged pain and suffering. According to Dr. Lechin,
Appellants failed to perform these duties and, therefore, breached the applicable
standards of care. We are mindful that at this stage of the proceeding, all that is
required is that Dr. Lechin’s amended expert report inform Appellants of the specific
23
conduct McCammon has called into question and provide a basis for the trial court
to conclude that the claims have merit. See id. at 879. We conclude that the above
information related to standard of care and breach contained in Dr. Lechin’s
amended expert report adequately does so. Id.; see also Walker v. Srivastava, No.
14-19-00270-CV, 2020 WL 4092103, at *5 (Tex. App.—Houston [14th Dist.] July
21, 2020, no pet.) (mem. op.) (holding that statements describing applicable
standard, to whom it applies, when it is to be followed, steps that should be taken to
ensure its proper performance, and health care providers’ failure to follow those
steps, provided fair summary of applicable standard of care and breach).7
We overrule Willowbrook, Khoury, and Thota’s second issue, and Hanif and
Poonawala’s first issue.
7
Willowbrook, Khoury, and Thota also argue that bed and chair alarms are never
used with dementia patients because they scare and confuse such residents, and that
the use of seatbelts and lap restraints would violate Phillips’s rights as a patient. To
the extent these appellants argue the amended expert report is insufficient because
Dr. Lechin is incorrect in his conclusions about what the standard of care requires,
we note that “the ultimate evidentiary value of the opinions proffered by [an expert]
is a matter to be determined at summary judgment and beyond.” Abshire v. Christus
Health Se. Tex., 563 S.W.3d 219, 226 (Tex. 2018); see also Baty v. Futrell, 543
S.W.3d 689, 697 (Tex. 2018) (“The parties to a medical-malpractice case may—
and often do—disagree over what the standard of care in fact requires.”). At this
stage, whether those standards are reasonable is not relevant to the analysis of
whether Dr. Lechin’s amended expert report constitutes a good faith effort to
comply with the Chapter 74’s requirements. See Peabody v. Manchac, 567 S.W.3d
814, 823 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
24
3. Dr. Lechin’s opinions as to causation are not conclusory.
Appellants also argue that Dr. Lechin’s opinions as to causation are
conclusory.8 Focusing on the two major falls—one in March and one in April—
Appellants contend that Dr. Lechin’s amended expert report does not link these falls
and the resulting injuries with Appellants’ alleged deviations from the standard of
care. More specifically, Appellants argue that Dr. Lechin fails to provide sufficient
details about how these falls occurred, what injuries resulted, and how these injuries
led to Phillips’s decline in mental and physical health after leaving Willowbrook.
We disagree.
With reference to causation, Dr. Lechin opined:
• Phillips fell at Willowbrook in March 2018, which resulted in a fractured
right wrist. Dr. Lechin opined that this fall was caused by the nursing
home’s failure to, among other things, “provide a bed alarm” and “seek
permission and use bed rails.”
• Phillips suffered a second major fall in April 2018, which resulted in a visit
to the emergency room and a fractured right index finger and head injury.
Dr. Lechin opined that this fall was caused by the “failure of the staff and
nurses to timely respond to [Phillips’s] request for assistance. [Phillips]
was forced to transfer without assistance after waiting an hour to use the
commode. [Phillips] “rolled out of bed because no one came to let her go
to the bathroom.”
• Following Phillips’s April 2018 fall, a CT scan was performed “to
determine the extent of [Phillips’s] head injury.” Dr. Lechin acknowledged
that the CT scan did not identify acute trauma but stated that this was
common because these types of injuries “have a high probability of
8
This issue is raised in Willowbrook, Khoury, and Thota’s first issue, and Hanif and
Poonawala’s second issue.
25
resulting in subdural hematomas that can take months to present, especially
in patients with dementia, which causes brain atrophy.” Dr. Lechin further
opined that “[c]hronic subdural hematoma is almost always associated
with brain atrophy in elderly patients” and that it is “consistent with the
same severe decline in physical and mental health suffered by [Phillips]
following her removal from the nursing home.” Dr. Lechin concluded that
“[w]ithin a reasonable degree of medical certainty, chronic subdural
hematoma caused by her fall on or about April 21, 2018 was a contributing
factor to the severe decline [in Phillips’s] physical and mental health prior
to her death. It is with all medical probability that [Phillips’s] falls and
injuries were the proxima[te] cause of her pain and suffering and is the
cause of the severe decline in her physical and mental health prior to her
death.”
• Although Phillips “required two-person assist with all activities including
bed mobility and transfers, the staff did not provide her with this
assistance,” and this failure to provide assistance “caused her fall and
injuries.” “The failure to provide assistance caused bone fractures and head
trauma. Had the staff provided [Phillips] with proper assistance, in
reasonable medical probability, [Phillips] would not have suffered
traumatic falls to the ground and suffered such severe injuries.”
• Appellants’ failure to implement Phillips’s care plan, ensure that Phillips’s
care plan was “followed to prevent falls and injuries,” “[i]mplement
interventions after her falls such as bed alarms and chair alarms,
self-releasing seat belts or lap buddies,” and “[t]horoughly investigate
[Phillips’s] fall[s] and implement additional steps to prevent falls from
repeating,” caused Phillips to “fall multiple times, which resulted in bone
fractures and head trauma.” According to Dr. Lechin, these injuries
“caused constant pain and suffering and were a contributing factor to the
severe decline in her physical and mental health prior to her death. If the
standards of care had been followed as outlined above, [Phillips] would
not have fallen numerous times and sustained major injuries.”
• Phillips would not have sustained major injuries, including a fractured
wrist and head injury, if “the staff and attending physicians had developed
and implemented an effective care plan that included interventions to
prevent falls.”
26
Courts under similar circumstances have held similar expert reports to be
sufficient. For example, in Harrington v. Schroeder, the decedent sustained
numerous injuries, some that were the result of falls and others that were the result
of attacks by other residents, during her stay at a nursing home. No.
04-15-00136-CV, 2015 WL 9001573, at *7 (Tex. App.—San Antonio Dec. 16,
2015, pet. denied) (mem. op.). The plaintiff’s expert opined that the standard of care
applicable to the attending physician required that he “assist the facility in providing
input into the resident’s care plan to address these problems.” Id. at *6. With respect
to the falls the decedent sustained while at the nursing home, the expert opined that
such input would include, among other things, “investigating the cause of injuries,
lowering her bed, instituting bed rails, . . . instituting bed alarms, and ordering
additional supervision and assistance.” Id. In the causation section related to the
falls, the expert opined that the decedent’s falls and resulting injuries were caused
by the physician’s breaches of the above-mentioned standards of care. Specifically,
the expert opined:
[The physician] failed to properly assess [the decedent], including an
assessment of her fall risks, and failed to provide proper input into [the
decedent’s] care plan to address falls and fall risks. If [the physician]
had properly assessed [the decedent] and provided proper input into
[her] care plan to address falls, in some of the ways enumerated above,
in reasonable medical probability, [the decedent] would not have
continued to suffer repeated falls and injuries[.]
27
Id. The San Antonio Court of Appeals, noting the preliminary stages of the
proceeding, held that this report adequately discussed causation. Id. at *7; see also
Peterson Reg’l Med. Ctr. v. O’Connell, 387 S.W.3d 889, 894 (Tex. App.—San
Antonio 2012, pet. denied) (expert report sufficient under Chapter 74 because expert
opined that standard of care hospital owes elderly patient after administration of “fall
inducing medications” requires additional monitoring to prevent falls, there was no
evidence that additional monitoring was performed by nurse or physician, and expert
opined on causal relationship between failure to provide additional monitoring and
resulting fall, stating that “simple monitoring would have allowed facility to
intervene and prevent [decedent’s] fall that lead to his untimely death”).
To the extent that Appellants argue Dr. Lechin’s opinions are conclusory
because they fail to provide sufficient details about the intervening eight months
between Phillips’s release from Willowbrook and her death, and as such, cannot rule
out other possible causes of Phillips’s decline in health, we disagree that this was
required of Dr. Lechin at this stage of the proceeding. As noted above, section
74.351(r)(6) requires the expert report to provide a fair summary of the expert’s
opinions on the causal relationship between the failure of the physician or health
care provider to provide care in accord with the pertinent standard of care and the
injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6);
Bailey, 402 S.W.3d at 369. “Nothing in section 74.351 suggests the preliminary
28
report is required to rule out every possible cause of the injury, harm, or damages
claimed, especially given that section 74.351(s) limits discovery before a medical
expert’s report is filed.” Id. Thus, Dr. Lechin was not required to rule out every other
possible cause or contributing factor to Phillips’s decline in health before her death.
We conclude that Dr. Lechin’s report, when read in its entirety, explains how
Phillips’s injuries (i.e., the bone fractures and head injury) could have been avoided
had Appellants adhered to the standard of care for a nursing home and its attending
physician, including investigating and documenting each fall; implementing
interventions after falls, such as bed alarms, chair alarms, self-releasing seat belts or
lap buddies, in order to prevent future falls; and providing transfer and ambulatory
assistance. See Harrington, 2015 WL 9001573, at *6–7; Peterson, 387 S.W.3d at
894. Dr. Lechin’s report, therefore, adequately discusses causation so as to inform
Appellants of the conduct that McCammon has called into question and to provide
a basis for the trial court to conclude that McCammon’s claims have merit. See
Palacios, 46 S.W.3d at 879.
We overrule Willowbrook, Khoury, and Thota’s first issue, and Hanif and
Poonawala’s second issue.
Conclusion
In sum, we are mindful that all that is required is a “good faith effort” to
comply with the statutory requirements. TEX. CIV. PRAC. & REM. CODE § 74.351(l).
29
To represent a good faith effort to provide a fair summary of his opinions Dr. Lechin
was not required to marshal all of McCammon’s proof, but only needed to include
his opinion on each element—standard of care, breach, and causation. See Palacios,
at 878–79. After reviewing Dr. Lechin’s amended expert report, we conclude it met
the requirements of making a good faith effort to provide a fair summary under
Palacios because it informed Appellants of the specific conduct McCammon has
called into question and provided a basis for the trial court to conclude that his claims
have merit. See id. at 879. Keeping in mind that expert reports are a preliminary
method to show a plaintiff has a viable cause of action that is not frivolous or without
expert support, we hold that Dr. Lechin’s amended expert report complied with
section 74.351’s standard of care, breach, and causation requirements and that the
trial court did not abuse its discretion in failing to grant Appellants’ motions to
dismiss.
We affirm the trial court’s order denying Appellants’ motions to dismiss.
Amparo Guerra
Justice
Panel consists of Justices Hightower, Countiss, and Guerra.
30