Regina Ann Varkey, Individually and as the Representative of the Estate of Anil C. Varkey, and Angelina Gina Varkey v. Dr. Ayyash, Melhem, MD Hye Jung Lee RN Tenaka M. Basile, RN And Samuel S. Dizon, RN ( 2022 )

Affirmed and Memorandum Opinion filed August 9, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00186-CV
REGINA ANN VARKEY, INDIVIDUALLY AND AS THE
REPRESENTATIVE OF THE ESTATE OF ANIL C. VARKEY,
DECEASED AND ANGELINA GINA VARKEY, Appellants
V.
DR. AYYASH Y. MELHEM, MD; HYE JUNG LEE, RN; TENAKA M.
BASILE, RN; AND SAMUEL S. DIZON, RN, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2019-11347
MEMORANDUM OPINION
In this health care liability case, appellants, family members of a deceased
patient, challenge the trial court’s final judgment dismissing wrongful death and
survival claims against appellees health care providers (a doctor and three nurses)
based on deficiencies in their expert reports. After review, we conclude the expert
reports are deficient in various respects: as to one nurse, the reports lack baseline
details to discern the factual basis of the claim; as to a claim against another nurse,
the reports only provide opinions on two of the three required elements (standard
of care and breach); and as to all the health care providers, the reports lack a
causation opinion that supports the wrongful death claims asserted in the case. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of February 11, 2017, for the third time in three months, Anil
Varkey’s failing health brought him to Memorial Hermann Health System d/b/a
Memorial Hermann Southeast (MHS).1 When he first arrived, he complained of
left-foot pain joined by a foul odor and drainage; emergency room records report a
“large gaping ulcer” on his left heel. The infection was new, but his foot issue,
along with a host of other health concerns, had been ongoing. Varkey, 47-years
old at the time of his hospital admission, was on record for having “multiple falls,
unsteady balance and gait, hypertension, diabetes, renal failure, congestive heart
failure, stent placement, and vision impairment. His “active problems” included:
cellulitis, clostridium difficile, diabetes, end-stage renal disease on hemodialysis,
hypertension, and MRSA. By the early morning hours the next day, when X-rays
revealed a new calcaneal facture, Varkey’s emergency room doctor transferred him
to the hospital.
During his stay, Mr. Varkey was seen by various MHS nurses and
physicians, including the appellees — Taneka Basile, Samuel Dizon, Hye Jung
Lee, all registered nurses (the “Nurses”), and Dr. Ayyash Melhem, a hospitalist.
Chronologically, they were involved with Varkey as follows:
• Nurse Basile cared for Varkey during his emergency room stay. The
1
All facts regarding the treatment discussed here derive from what is provided in the expert
reports at issue.
2
report indicates that Basile first assessed Varkey’s fall risk, scoring
Varkey at a “0” or as a “low fall risk”. 2
• Dr. Melhem admitted Varkey into the hospital after conferring with
Varkey’s emergency room doctor. Melhem reviewed Varkey’s
medical records, prepared his “history and physical” in consultation
with Mr. Varkey, and ordered additional medications. It is unclear
whether cardiac monitoring was ordered due to lack of
documentation.
• Nurse Dizon cared for Varkey during his hospital stay. The expert
report indicates Nurse Dizon conducted a fall assessment, but does not
indicate the time or score for any such assessment.
• Nurse Lee also cared for Varkey during his hospital stay. According
to the expert report, Lee administered medications twice the night
before he was found on the floor, and conducted a fall assessment the
night before.
On February 13 at 5:20 a.m., Varkey was assisted to the bathroom by a
different nurse. Approximately 40 minutes later, he was found on the floor of his
hospital room in cardiac arrest. Though he was resuscitated, he suffered an anoxic
brain injury, was intubated and placed on mechanical ventilation. He was
transferred to a local rehabilitation facility where he passed away on March 9,
2017.
Lawsuit
Mr. Varkey’s widow, Regina Ann Varkey, appearing individually and as
personal representative of his estate and his daughter, Angelina Gina Varkey
2
The score was assessed under the Johns Hopkins Fall Risk Assessment Tool.
3
(collectively the “Varkey Parties”) brought a health care liability lawsuit against
MHS and various doctors and nurses, including appellees, (collectively the “MHS
Parties”) that cared for Mr. Varkey during his last stay. Their petition alleges that
the MSH Parties failed to assess Mr. Varkey’s fall risk and failed to implement and
enforce policies and procedures related to the management, treatment and care of
“patient[s] with known health issues”. Aiming to comply with Chapter 74, upon
filing their petition, the Varkey Parties served reports from two experts: Dr. John
Darren Clark, MD, and Madison Chollett, RN, BSN.
After answering the lawsuit, the Nurses successfully objected to the expert
reports. The court ordered that Varkey cure deficiencies in the reports, prompting
Varkey to serve new reports from each expert.
Unsatisfied with the changes, the Nurses again filed motions to dismiss
based on deficiencies in the amended reports. The Nurses argued that the two
expert reports failed to address the standards of care and alleged breaches of those
standards of care with sufficient specificity as to each nurse. The Nurses also
asserted a two-pronged attack on the amended reports’ causation opinions:
challenging Chollett’s qualifications as a nurse to render an expert causation
opinion, and challenging Clark’s causation opinions as conclusory.
Dr. Melhem also filed a motion to dismiss based on alleged deficiencies in
the amended reports. Melhem argued that Dr. Clark’s reports failed to provide a
good faith summary of his opinions as to the standard of care, breach and causation
applicable to Dr. Melhem.
The trial court issued orders granting both motions to dismiss, which form
the basis Varkey’s appeal, claiming that the trial court abused its discretion.3
3
Upon inspection of the record, we determined that the case lacked finality in the absence of
4
III. ISSUE AND ANALYSIS
The only issue before us is whether the trial court abused its discretion in
granting the Nurses’ and Dr. Melhem’s motions to dismiss based on deficient
expert reports.
A. Standard of Review
We apply an abuse-of-discretion standard when reviewing a trial court’s
decision as to the adequacy of an expert report. See Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam). The trial court abuses
its discretion if it acts arbitrarily, unreasonably, or without reference to guiding
rules or principles. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002). Although we may not substitute our judgment for that of the trial court, the
trial court has no discretion in determining what the law is or applying the law to
the facts. Id.; Sanjar v. Turner, 252 S.W.3d 460, 463 (Tex. App.—Houston [14th
Dist.] 2008, no pet.).
B. The Expert Reports
Chollett’s standard of care and breach opinions offered to support the claims
against Dizon, Lee and Basile
Chollett’s4 Report sets out standards of care for two stages of nursing care:
nonsuit orders relating to other defendants and unaddressed requests for attorneys’ fees. The
appeal was abated to allow the parties an opportunity to bring those matters to judgment. The
trial court signed orders on July 18, 2022 that disposed of all claims, resulting in a final
judgment.
4
Chollet’s report and CV show that she is a licensed nurse with a bachelor’s degree (with the
relevant nursing coursework) practicing as a charge nurse and nurse assistant manager at HCA
Houston Healthcare Clear Lake. Her eight and a half years of nursing experience have been “in
the acute care clinical setting where she has worked with telemetry, orthopedic, and fall risk
patients.” In the area of fall-risk assessment and care, Chollett’s report and CV establish that she
has evaluated hundreds of patients for fall risks, that she regularly uses “such tools as the John
Hopkins Fall Risk Assessment Tool to calculate fall risk scores”, that she regularly teaches
others how to use it, that she has attended hospital fall-risk analyst meetings, and developed her
5
the first stage—fall risk-assessment, and the second stage—the implementation of
precautions and interventions after appropriate assessments are made. The report
provides that appropriate fall risk assessment is generally consistent with an
accurate application of the Johns Hopkins Fall Risk Assessment Tool, which
requires evaluation of any procedure performed on a patient, specific
comorbidities, medications, fall history, and other categories. If the score of the
assessment yields a “high fall risk patient”, implementation of interventions such
requiring that a nurse be in arms-length distance when out of bed, nurse assistance
when the patient is walking, making a bedside commode available when two
nurses are not available to assist, and the activation of a bed alarm or monitor when
patient is up without assistance. Chollett’s report also sets out other
implementation standards, such that the nursing staff act “as a patient advocate”,
“delegate tasks”, and “give medications as ordered”.
Breach of the standards of care is set out in the “conclusion” section, where
the report states that each of the Nurses “failed to perform a correct fall risk
assessment according to the Johns Hopkins Fall Risk Assessment Tool”, and that
“each failed at varying times to consider the fact that Mr. Varkey had a history of
multiple falls, an unsteady gait, a new fracture in his left foot. . .”.5
Clark’s causation opinions offered to support the Varkey Parties’ claims against
Dizon, Lee and Basile
Dr. Clark’s6 second expert report adopts the standard of care and breach
hospital’s post-fall checklist.
5
Because Chollett’s amended report does not contain any causation opinions, the issue as to
whether her qualifications permit her to render such opinions is moot.
6
Dr. Clark’s report and CV show that he finished his residency as a Chief Resident in an internal
medicine program, that he has 20-years’ experience practicing as a hospitalist, is board-certified
in internal medicine and hospice and palliative medicine, served as a member and in leadership
positions in medical organizations devoted to hospital medicine, where he has served on several
6
opinions of Chollett’s report, and without specifically naming any of the Nurses,
provides as follows:
It is my expert medical opinion based upon a reasonable degree of
medical certainty that if the nurses identified in the expert report of
Madison Chollett, RN, BSN had recognized Mr. Varkey as being a
patient at high risk of falls, he would have had increased safety
measures in place and more frequent monitoring from the nursing
staff and his fall would have been recognized sooner or never
happened. The failure to provide this patient with a room sitter, the
failure to place the patient in direct view of the nursing station (when
possible), the failure to activate the patient’s bed alarm, and the failure
to adhere to physicians orders when administering pain medications
were each substantial acts of negligence that individually or
collectively increased the risk of falls and resulted in the nursing staff
having no idea just how long Mr. Varkey had been lying on the floor
of his hospital room in cardiac arrest before the nurses found him and
called a Code Blue.
A pulse was able to be restored with resuscitation, but the severity of
his brain damage was far too extensive to support life and Mr. Varkey
succumbed to his highly preventable and foreseeable injuries on
March 9, 2019.
It is unknown exactly how long Mr. Varkey was on the floor
experiencing cardiorespiratory arrest. He had apparently been assisted
to the bathroom at around 5:20 AM, and that was the last contact
documented with Mr. Varkey from the nursing staff. He could have
easily been on the floor without effective blood flow for over 30
minutes.
The failure of the nurses to appropriately recognize Mr. Varkey as a
high fall risk certainly delayed the time that it took before he was
discovered on the ground and thus would increase the chance of death
or severe neurological injury from anoxic encephalopathy due to
delayed administration of resuscitative measures.
In other words, every minute that Mr. Varkey was on the ground
committees including a peer review committee. The report states he is familiar with the standard
of care and best practices for patient safety, and that he regularly cares for patients presenting
with multiple serious medical conditions.
7
without being recognized made him more likely to suffer death or
severe neurological impairment from his cardiac arrest. In all
reasonable medical probability, if he would have been recognized as a
high fall risk and had been monitored with a cardiac monitor, as was
apparently the routine on that floor, then his fall and/or cardiac arrest
would have been recognized immediately leading to code blue
activation and prompt administration of resuscitative measures that
would have re-established circulation for Mr. Varkey and prevented
his prolonged lack of oxygen and anoxic brain injury.
This would have improved the response time to his cardiac arrest, and
resuscitation would have started sooner, resulting in increased chance
of survival and decreased risk of brain injury
In all reasonable medical probability, if Mr. Varkey had been properly
assessed as a high fall risk and treated as such, his cardiac arrest
would have been recognized much sooner, leading to quicker
intervention. such, as defibrillation, medications, and CPR, with
improved likelihood of survival and less likelihood of brain injury.
Clark’s standard of care and breach opinions, and causation opinions offered to
support the Varkey Parties’ claims against Dr. Melhem
Clark’s first report is the only report that relates to the Varkey Parties’
claims against Dr. Melhem. Though Dr. Melhem is only mentioned by name in the
background section, he is described as Varkey’s admitting physician in that section
and his opinions on standard of care, breach and causation pertain to health care at
the time of his admission. Clark’s first report provides that the standard of care,
in light of Varkey’s known medical issues at the time of his admission, required
that (a) Varkey should have been placed on a continuous cardiac monitoring, and
that (b) Varkey should have been classified as a high fall risk.
In turn, as to breach of the continuous monitoring standard, Clark opines that
“failing to monitor a patient like Mr. Varkey with end-stage renal disease, history
of premature ventricular contractions and tachycardia, and known cardiomyopathy
would fall below the standard of care”. Clark also opines because it was not clear
from the medical records and affidavits if such monitoring was ordered that if it
8
was ordered, it was a violation of the standard of care not to have that documented
by the nursing staff.7
As to breach of the fall-risk standard, the report states “[Varkey’s]
inaccurate fall risk scoring and lack of more aggressive interventions to decrease
the risk of fall is a violation of the standard of care.”
The section of report titled “Proximate Cause” begins by noting that Varkey
was “found on the floor without a pulse”, “successfully resuscitated”, but “suffered
severe brain injury from lack of effective blood flow and oxygenation to his brain”
and “was eventually discharged to a rehabilitation facility but ultimately died from
his injuries.” The section goes on to analyze the causes of the cardiac event: first
discarding causes he considers unlikely such as acute myocardial infraction,
pulmonary embolism, acute coronary syndrome, sepsis before concluding “more
likely than not, the cause of [Varkey’s] cardiorespiratory arrest was fatal cardiac
arrythmia.” The report states that had Varkey’s heart been properly monitored his
“arrest and suspected arrhythmia would have been recognized sooner.” Like his
causation opinions for the Nurses, Clark’s concluding paragraph applicable to Dr.
Melhem causally link alleged breaches of the standard of care with “improved” or
“increased” “chances” or “likelihood” of not dying or suffering his injuries:
[I]f Mr. Varkey had been recognized as being a patient at high risk of
falls, he would have had increased monitoring from the nursing staff
and his fall would have been recognized sooner. This would have
improved the response time to his cardiac arrest, and resuscitation
would have started sooner, resulting in increased chance of survival
and decreased risk of brain injury. If, as stated by Mr. Varkey’s wife
and friend, he had cardiac monitoring in place that was not being
attended to by the nursing staff, that is certainly a significant violation
7
Although there’s nothing in the medical records to indicate that Vasrkey was on continuous
cardiac monitoring, affidavits from family members state that cardiac leads had been attached to
Varkey.
9
of the standard of care.
In all reasonable probability, if Mr. Varkey was on continuous cardiac
monitoring that was being effectively managed by the nursing staff,
and/or if he had been properly assessed as a high fall risk and treated
as such, his cardiac arrest would have been recognized much sooner,
leading to quicker intervention such as defibrillation medications, and
CPR, with improved likelihood of survival and less likelihood of brain
injury.
C. Chapter 74’s “Good-Faith” Requirements
Under section 74.351, a claimant, not later than the 120th day after the date a
health-care liability claim is filed, must serve on each party one or more expert
witness reports addressing liability and causation. Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a), (j); Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex. 2008). The
statute defines an “expert report” as
[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 provider failed to meet the standards, and the
causal relationship between that failure and the injury, harm, or
damages claimed.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). A trial court shall grant a
motion challenging the adequacy of the expert report if the report is not an
objective good-faith effort to comply with the definition of an expert report
provided in section 74.351(r)(6). Id. §§ 74.351(l), (r)(6). The law limits the trial
court’s inquiry to the four corners of the report. Jelinek v. Casas, 328 S.W.3d 526,
539 (Tex. 2010).
The report must contain sufficient specificity to inform the defendant of the
conduct the plaintiff has called into question and to provide a basis for the trial
court to conclude that the plaintiff’s claims have merit. See id. at 539. Omission
10
of any of the statutory elements prevents the report from being a good-faith effort.
See id. A report that merely states the expert’s conclusions about the standard of
care, breach, and causation does not meet the statutory requirements. See id. In
providing the expert’s opinions on these elements, the claimant need not marshal
evidence as if actually litigating the merits at trial or present sufficient evidence to
avoid summary judgment. See id.
A trial court must grant a motion to dismiss a plaintiff’s suit if it appears to
the court that the expert report does not represent an objective good-faith effort to
comply with the definition of an expert report. Id. § 74.351(l), (r)(6). If the
plaintiff fails to serve a timely and compliant expert report, then the trial court shall
dismiss the claim with prejudice and shall award reasonable attorney’s fees and
costs to the defendant. Id. § 74.351(b).
A compliant report must include an explanation of the basis for the expert’s
statements and link the expert’s conclusions to the facts. Wright, 79 S.W.3d at 52;
Gannon, 321 S.W.3d at 897. A report that merely states the expert’s conclusions
about the standard of care, breach, and causation does not meet the statutory
requirements. Palacios, 46 S.W.3d at 879; see Wright, 79 S.W.3d at 53.
To comply with these requirements, and constitute a “good-faith effort,” a
report must provide enough information to fulfill two purposes: (1) it must inform
the defendant of the specific conduct the plaintiff has called into question and (2) it
must provide a basis for the trial court to conclude that the claims have merit.
Palacios, 46 S.W.3d at 879; Gannon v. Wyche, 321 S.W.3d 881, 889 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). The report need not marshal all of the
plaintiff’s proof, but the report must include the expert’s opinion on each of the
elements identified in the statute: standard of care, breach, and causation. Palacios,
46 S.W.3d at 878–79. Finally, we note “multiple expert reports may be read
11
together” to determine whether the statutory requirements have been met. See
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018); Tex. Civ.
Prac. & Rem. Code. § 74.351.
D. As to each health care provider, did the trial court abuse its discretion in
concluding that the experts’ opinions on standard of care, breach of the
standard of care, or causation were so deficient to fall short of an objective
good-faith effort to comply with section 74.351(r)(6)’s definition of an expert
report?
1. The reports fail to identify particular facts to support a claim against
Nurse Dizon.
The Nurses argue that the trial court’s dismissal of the claims against them
was proper because the reports lack specificity. See Norris v. Tenet Houston
Health Sys., 14-04-01029-CV, 2006 WL 1459958, at *3 (Tex. App.—Houston
[14th Dist.] May 30, 2006, no pet.) (“An expert report asserting that multiple
defendants are negligent must explain how each defendant specifically breached
the standard and how that breach caused or contributed to the plaintiff’s injury.”).
Clark’s report fails to identify the Nurses individually. His second report refers to
the Nurses generally as “the nurses identified in the expert report of Madison
Chollett, RN, BSN”. Chollett’s report states that Nurse Basile conducted the first
fall risk assessment which she recorded a “0” score. The report also states that
Nurse Lee assessed Mr. Varkey’s fall risk early in the same shift “that Mr. Varkey
was found down and went into cardiac arrest” recording a score “at a low level”,
but later that Lee changed the score after the fall to an “8”. The report notes that
other assessments were made, the time they were made, and the scores, but the
report does not clearly connect any of these other assessments to any particular
nurse. Adding to the confusion, the combined reports refer to at least one other
MHS nurse that cared for Varkey during his hospitalization.
Chollett’s report mentions Nurse Dizon by name only in the conclusion
12
section of her report, but in that section only identifies Dizon in conjunction with
the other nurses, e.g., “Nurse Hye Jung Lee, RN, Nurse Samuel Dizon, RN and
Nurse Tenaka Basile, RN while caring for Mr. Varkey deviated from the standard
of care by failing to perform a correct fall risk assessment”. In none of these
instances that Dizon’s name is mentioned, does the report point to any specific fall
assessment Dizon performed for Mr. Varkey.
The Varkey Parties argue that Chollett’s report sufficiently identifies
Dizon’s conduct, including the particular fall assessments he performed by
reference to medical records attached as an exhibit to her report.
While Chollett’s report attaches an exhibit that includes pages of medical
records which contain Dizon’s name, the law precludes us from considering such
materials as within the “four corners” of her report. Kingwood Specialty Hosp.,
Ltd. v. Barley, 328 S.W.3d 611, 617–18 (Tex. App.—Houston [14th Dist.] 2010,
no pet.); Norris v. Tenet Houston Health Sys., 14-04-01029-CV, 2006 WL
1459958, at *2 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.). By
failing to describe any particular fall assessment performed by Dizon that
constituted a deviation from the standard of care, she has left Dizon (Clark and the
courts) to speculate about what conduct forms the basis of Varkey’s health care
liability claim against Dizon. This failure renders her opinions inadequate with
respect to Dizon. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740,
748–50 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (concluding that trial
court erred in denying hospital’s motion to dismiss because export report did not
adequately describe the alleged breaches of the standard of care). Though there are
some areas where we are free to review medical records unaided by an expert
witness’s own summations, neither we nor the trial court are granted such latitude
in this analysis. See Norris, 2006 WL 1459958, at *2. Under the circumstances,
13
the trial court did not abuse its discretion in dismissing the Varkey Parties’ claims
health care liability claims against Dizon.
2. The reports fail to provide a good-faith effort to link Nurse Lee’s breach in
the improper administration of medicine with an alleged injury.
To the extent that Varkey complains that the trial court abused its discretion
by dismissing his claims against Nurse Lee for negligence associated with her
administration of this medication, we briefly address that issue here. Omission of
any of the statutory elements prevents the report from constituting a good-faith
effort. See Jelinek v. Casas, 328 S.W.3d at 539. According to Chollett’s report,
Lee deviated from doctor’s orders by administering pain medication that was
permitted only if Varkey had exhibited higher levels of pain than determined at the
time. Chollett’s report does not provide a causation opinion, and Clark’s report
fails to identify Lee, or casually link such conduct with an alleged injury.
In the causation section of Clark’s second report, without reference to any
specific Nurse, Clark refers to the “administration of pain medication” once but
only as causing the nurses to not know how long Mr. Varkey had been lying on the
floor. It states:
The failure to provide this patient with a room sitter, the failure to
place the patient in direct view of the nursing station (when possible),
the failure to activate the patient’s bed alarm, and the failure to adhere
to physicians orders when administering pain medications were each
substantial acts of negligence that individually or collectively
increased the risk of falls and resulted in the nursing staff having no
idea just how long Mr. Varkey had been lying on the floor of his
hospital room in cardiac arrest before the nurses found him and called
a Code Blue.
Even presuming for the sake of argument that Clark’s reference to the “the
failure to adhere to physicians orders when administering pain medications”
adequately identifies Lee (by reference to Chollett’s report), Clark’s sole reference
14
to such conduct is insufficient as a causation opinion because it fails to connect the
breach to any injury. The Varkey Parties had been granted an extension to amend
the report as to their claims against Lee, and their amended reports do not explain
how her alleged breach in the administration of medication caused any injury
alleged by the Varkey Parties, and thus failed to provide the trial court with a basis
that a claim under that theory had merit.
3. The reports are globally deficient on the element of causation.
One overarching deficiency in Clark’s causation opinions leads us to
conclude the trial court did not abuse its discretion in granting the two motions to
dismiss. Proximate cause encompasses two components: (1) foreseeability and (2)
cause-in-fact. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d
453, 460 (Tex. 2017). For a negligent act or omission to have been a cause-in-fact
of the harm, the act or omission must have been a substantial factor in bringing
about the harm, and absent the act or omission—i.e., but for the act or omission—
the harm would not have occurred. Id. For the amended report to suffice as to
causation, in it Dr. Clark must explain “how and why” the alleged negligence in
assessing Varkey’s fall risk caused Varkey to suffer a brain injury and die, set forth
the basis for his statements, and link his conclusions to specific facts. See Abshire,
563 S.W.3d at 224. Thus, for the amended report to survive the challenge, Dr.
Clark would have to explain how the allegedly negligent conduct caused Varkey to
suffer a brain injury and die. See id. at 226.
Neither report concludes that any of the health care providers’ acts caused or
resulted in Mr. Varkey’s heart attack or death. Instead, the reports inversely
formulate causation by stating in various ways that were it not for the appellees’s
breaches Mr. Varkey’s care would have improved and he would have had an
increased chance of survival and decreased risk of brain injury. Texas cases
15
analyzing causation with similar causal formulations have been held to be
inadequate. See Wright, 79 S.W.3d at 52–53 (concluding report which stated - “if
the x-rays would have been correctly read and the appropriate medical personnel
acted upon those findings then Wright would have had the possibility of a better
outcome” - failed to represent a good-faith effort to summarize the causal
relationship between plaintiff’s failure to meet the applicable standards of care and
Barbara’s injury); Hutchinson v. Montemayor, 144 S.W.3d 614, 617–18 (Tex.
App.—San Antonio 2004, no pet.) (concluding that expert report discussing that
injury “may have been avoided” was insufficient to meet statute); Estate of Allen v.
Polly Ryon Hosp. Auth., No. 01–04–00151–CV, 2005 WL 497291, at *3, 5 (Tex.
App.—Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) (finding that expert
report discussing what was “more likely” or “could have contributed” constituted
mere possibilities and thus were not statements of causation).
Clark fails to state what the response time would have been had cardiac
monitoring been ordered and properly utilized, or what the response time would
have been had Varkey been properly assessed as a high fall risk, or even say that it
was more likey than not Varkey would not have suffered severe damage to critical
organs had he properly been assessed as a high fall risk or ordered for cardiac
monitoring.
When giving the words and terms in Clark’s report their plain and ordinary
meaning, Clark’s report alleges a loss of chance theory of malpractice. Texas does
not recognize loss of chance as an independent common law cause of action.
Hodgkins v. Bryan, 99 S.W.3d 669, 675 (Tex. App.—Houston [14th Dist.] 2003,
no pet.) (“In Kramer, the supreme court held that Texas does not recognize a
common law cause of action for lost chance of survival in a medical malpractice
case. The lost chance of survival doctrine is a bar to recovery due to lack of
16
causation, not an affirmative defense.”). Recovery for a loss of chance requires
proof that at the time of the defendant’s alleged negligence, there was less than a
50% chance the claimed injuries would have occurred without that defendant’s
negligence. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851,
859–61 (Tex. 2009) (“[P]roof that a patient lost some chance of avoiding a medical
condition or of surviving the cancer because of a defendant’s negligence is not
enough for recovery of damages”). If the Varkey Parties pursued a loss of chance
theory, then as part of their proximate cause showing, they would have needed an
opinion showing that there was less than a 50% chance Varkey would have died or
suffered a brain injury without the doctor’s and/or the nurse’s negligence. They
did not offer such an opinion.
The two amended expert reports do not contain sufficient information within
their respective four corners (or combined eight corners) to (1) inform Nurse Dizon
of the specific conduct called into question and (2) provide a basis for the trial
court to conclude that the Varkey Parties’ claims against Dr. Melhem and the
Nurses have merit. See Baty, 543 S.W.3d at 693–94; see also Pinnacle Health
Facilities XV, LP v. Robles, No. 14-15-00924-CV, 2017 WL 2698498, at *2–4
(Tex. App.—Houston [14th Dist.] Jun. 22, 2017, no pet.); See also Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d at 52–53. Under the applicable standard of review we
conclude that the trial court did not abuse its discretion in determining that the two
amended reports failed to provide an objective good-faith effort to comply with the
definition of an expert report provided in section 74.351(r)(6). See Pinnacle Health
Facilities XV, LP, 2017 WL 2698498, at *2–4; Kingwood Pines Hosp., LLC, 362
S.W.3d at 748–50. Accordingly, we overrule the appellees’s sole appellate issue.
III. NO FURTHER EXTENSIONS
The Varkey Parties had been granted an extension to amend the report as to
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their claims against the Nurses, and therefore are entitled to no further extensions
as to those claims. Whether the Varkey Parties are entitled to an opportunity to
cure their report as to claims against Dr. Melhem is a slightly different question.
The Varkey Parties contend that the trial court erred in refusing them an
opportunity to cure reports after granting Dr. Melhem’s motion. “The Act allows a
trial court to grant one 30-day extension to cure a deficiency in an expert report,
and a court must grant an extension if a report’s deficiencies are curable.”
Zamarripa, 526 S.W.3d at 461. The court did not rule on the timely objection or
motion filed by Dr. Melhem until after ruling on the Nurses objections; thus, no
previous opportunity to cure the report(s) relevant to the claims against Dr.
Melhem had yet been granted. However, in amending their reports following the
Nurses objections, the Varkey Parties provided a second report from Dr. Clark
which, as discussed above, uses the same deficient language to convey his
causation opinion pertaining to the claims against the Nurses as he did in his first
opinion pertaining to the claims against Dr. Melhem. Under these circumstances,
even if the deficiencies were curable, we cannot conclude that the trial court
abused its discretion in denying the Varkey Parties opportunity to cure deficiencies
in Dr. Clark’s first and second reports.
IV. CONCLUSION
For the reasons discussed herein we affirm the trial court’s final judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
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