Baptist St. Anthony's Hospital and Rhodesia Castillo, M.D. v. Daniel Walker and Kristen Walker, Individually and as Next Friend of H. W. ( 2022 )


Menu:
  •                                    In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    No. 07-22-00032-CV
    BAPTIST ST. ANTHONY'S HOSPITAL AND
    RHODESIA CASTILLO, M.D., APPELLANTS
    V.
    DANIEL WALKER AND KRISTEN WALKER, INDIVIDUALLY
    AND AS NEXT FRIEND OF H.W., APPELLEES
    On Appeal from the 181st District Court
    Potter County, Texas
    Trial Court No. 110,097-B-CV, Honorable Douglas R. Woodburn, Presiding
    November 29, 2022
    MEMORANDUM OPINION
    Before QUINN, C.J., and PARKER and DOSS, JJ.
    Baptist St. Anthony’s Hospital (BSA) and Rhodesia Castillo, M.D. appeal the trial
    court’s denial of their challenge to expert reports and effort to dismiss the suit of Daniel
    and Kristen Walker, individually and on behalf of their child H, (the Walkers). The three
    sued BSA and Castillo for alleged negligence occurring shortly before and during the birth
    of H. The arguments posed are many. They encompass the qualifications of the experts
    and whether their reports satisfy the applicable statute. The trial court said they did. We
    conclude otherwise and reverse.
    Background
    According to the Walkers, the hospital and doctor breached standards of care
    relating to the delivery of H and the care of Kristen during labor. The purported negligence
    encompassed the manner in which BSA, through its nurses, and Castillo monitored the
    pair and reacted to signs that the health and wellbeing of both patients were jeopardized.
    The actions and inactions allegedly resulted in H suffering brain trauma due to an
    asphyxia event, according to the Walkers. They averred in their original petition that if
    the BSA nurses and Castillo complied with the relevant standards of care and caused
    Kristen to undergo a cesarean 60 to 90 minutes earlier, then the infant would have
    suffered no or less injury.
    Three reports allegedly supporting their contentions were filed by the Walkers. The
    documents were written by Drs. Tappan and Null and Nurse Beach. BSA and Castillo
    moved to dismiss the suit, deeming the reports insufficient. In response, the Walkers filed
    substitute reports by the same individuals. That led to other motions to dismiss, allegedly
    because the reports remained deficient. The trial court denied the motions, and this
    appeal ensued.
    Law and Application
    Per the Texas Civil Practice and Remedies Code, one pursuing a health care
    liability claim must serve upon those being sued “one or more expert reports, with a
    curriculum vitae of each expert listed in the report . . . .” TEX. CIV. PRAC. & REM. CODE
    ANN. § 74.351(a). Service must occur generally within 120 days of the date on which
    2
    each defendant’s original answer is filed. Id. Should that not occur, then the physician
    or health care provider sued is entitled to the dismissal of the suit with prejudice, attorney’s
    fees, and court costs. Id. at § 74.351(b). Furthermore, a challenge to such a report may
    be granted “only if it appears . . . that the report does not represent an objective good faith
    effort to comply with the definition of an expert report . . . .” Id. at § 74.351(l). The
    legislature defined “expert report” as “a written report by an expert that provides a fair
    summary of the expert’s opinions . . . 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.” Id. at § 74.351(r)(6). The report illustrates the requisite “good faith
    effort” when it “‘(1) inform[s] the defendant of the specific conduct called into question and
    (2) provid[es] a basis for the trial court to conclude the claims have merit.’” E.D. v. Tex.
    Health Care, P.L.L.C., 
    644 S.W.3d 660
    , 664 (Tex. 2022) (quoting Baty v. Futrell, 
    543 S.W.3d 689
     (Tex. 2018)).
    We caution that section 74.351(r)(6) of the Texas Civil Practice and Remedies
    Code imposes a “lenient standard” assuring the claimant a fair opportunity to show his
    claim is not frivolous. Scoresby v. Santillan, 
    346 S.W.3d 546
    , 549 (Tex. 2011). In
    assessing the report’s adequacy, we read them as a whole or in their entirety, as opposed
    to focusing simply on specific portions or sections of it. Baty, 543 S.W.3d at 694; accord,
    E.D., 644 S.W.3d at 667 (noting the obligation to read the report in its entirety). That
    enables us to parse through the document and reorder its content to understand what the
    expert says. See Baty, 543 S.W.3d at 694 (wherein the Supreme Court viewed “three
    statements in different sections of the report” in rejecting a challenge to the report). And,
    3
    that it may lack buzzwords or magic verbiage matters not; such are unnecessary if the
    information provided satisfies the aforementioned standard. Baty, 543 S.W.3d at 693-94.
    Yet, it may not be conclusory; rather, the expert must “explain” the how and why of his
    opinions by tying conclusions to specific facts. Abshire v. Christus Health, 
    563 S.W.3d 219
    , 224 (Tex. 2018). In other words, the expert must “explain, to a reasonable degree,
    how and why the breach caused the injury based on the facts presented.” Jelinek v.
    Casas, 
    328 S.W.3d 526
    , 539-40 (Tex. 2010). That said, we turn to the reports at hand.
    Many justifiably complain of legalese and the resulting inability of layman to
    understand terms commonly utilized by the legal community. Lawyers have nothing on
    doctors. The latter tend to forget they write their health care liability reports for those
    untrained in the medical field. And, lawyers do little to rectify that.
    With the help of dictionaries, we interpret the reports at bar as describing a situation
    where an expectant mother, while in labor, arrived at BSA. The time was about 5:30 a.m.
    About three hours later, Castillo prescribed to her Pitocin, a drug used to enhance
    contractions. Measures to monitor the fetal heart rate had also begun by then. Such
    monitoring did not include a fetal scalp electrode. Intermittent decelerations in the fetal
    heart rate were being observed during this period and apparently in conjunction with the
    contractions. The administration of Pitocin continued; mother’s urge to push did not.
    Castillo knew of the decelerations and at about 12:08, directed the attending nurse
    to assist mother in pushing. About 40 minutes later, Castillo decided to leave the hospital,
    and the nurse did not inform or seek guidance from her superiors about this. Late and
    variable decelerations of the fetal heart rates persisted, and Castillo was notified of them
    around 1:52 p.m. The doctor returned to the hospital and mother’s bedside by 2 p.m.
    4
    Monitoring of the fetal heart rate at 3:15 p.m. again revealed variable decelerations
    and apparently deficient accelerations as the periodic administration of Pitocin continued.
    By 3:50 p.m., those in attendance noticed swelling of the child’s scalp due to “prolonged
    engagement” in the birth canal. That resulted in Castillo opting to remove the child
    through cesarean section.
    Around 4:33 p.m., mother went to the operating room. The initial incision into
    mother’s abdomen occurred at 4:56 p.m., at which point Castillo discovered the child’s
    head low in Kristen’s pelvis. Because she had difficulty in reaching it, the doctor instructed
    the nurse to “push the head up from below.” Delivery ensued. Yet, the child needed to
    be resuscitated.    Ultimately, testing indicated the infant suffered from a “subacute
    infarction” or stroke “involving the majority of his left cerebral hemisphere.” He would be
    “at potential risk for focal onset seizures and epilepsy,” as reported by Tappan.
    The Walkers’ experts assigned a myriad of defaults to both attending nurses and
    Castillo. They consisted of 1) both nurses and Castillo failing to apply a scalp monitor to
    the child’s head the morning of mother’s arrival; 2) Castillo leaving the hospital and not
    being “readily available”; 3) an attending nurse failing to contact others higher in “the chain
    of command” when Castillo left the hospital; 4) Castillo ordering more Pitocin while the
    child exhibited “non-reassuring fetal heart rate patterns”; 5) the cesarean section not
    commencing immediately after Castillo decided to perform it; 6) Castillo removing the
    child from mother’s body by having the nurse push on its head as opposed to her pulling
    its feet; 7) nurses failing to “discontinue the Pitocin and notify the physician” upon seeing
    certain fetal heart patterns at 9:21 a.m.; and 8) nurses failing to administer terbutaline at
    3:52 p.m. when a fetal heart pattern did not respond to a “decrease or discontinuation of
    5
    the Pitocin.” As for attempting to explain how these actions or inactions caused harm,
    Drs. Tappan and Null addressed that. 1
    Null focused on the delay in ultimately conducting the cesarean section. He opined
    that H’s circumstances were “consistent with an asphyxia event that occurred late in the
    course of labor” and “[m]ore likely than not had [H] been delivered one to one and a half
    hours sooner he would not have suffered the degree of brain injury that he has.”2
    Tappan’s discussion of causation was a bit longer. First, he said that “[b]ut for . . .
    Castillo’s failure to deliver by reverse breech extraction, [H] would not likely have suffered
    these complications and injuries,” and it “was foreseeable to an ordinarily prudent
    obstetrician that failure to deliver by reverse breech extraction might reasonably result in
    traumatic extraction, physical craniocerebral deformation, and trauma, including the
    increased risk of arterial ischemic stroke with injury to the fetal brain.” Another of his
    references encompassed the other purported acts of misfeasance. There, he said that
    the “failure to meet the standards of care referred to above was a substantial factor in
    causing the injuries suffered by baby [H].” He coupled that with a statement about an
    “MRI” and “MRA” “suggest[ing] the possibility that [H] sustained a perinatal arterial
    ischemic stroke likely due to intrapartum factors including prolonged second-stage labor,
    1 Nurse Beach rendered no opinion on causation for she, as a nurse, was not qualified to do so.
    See Shaw v. West, No. 07-14-00181-CV, 
    2014 Tex. App. LEXIS 10715
    , at *7 (Tex. App.—Amarillo Sept.
    24, 2014, no pet.) (mem. op.) (holding a nurse unqualified to opine on causation since she was not a doctor).
    2  Null actually opined that the infant’s fetal heart tracing followed by the need for resuscitation, need
    for assisted ventilation, need to be cooled, his coagulopathy, his seizures, his severe acidosis, and the
    absence of evidence of infection “are all consistent with an asphyxia event that occurred late in the course
    of labor.” (Emphasis added). To the extent that BSA and Castillo suggest that the phrase “consistent with”
    is too indefinite to establish causation, Supreme Court authority suggests otherwise. In Miller v. JSC Lake
    Highlands Operations, 
    536 S.W.3d 510
    , 515 (Tex. 2017), the Court found the report sufficiently revealed
    causation despite the expert saying his interpretation of the x-rays was “‘consistent with the conditions
    stated in the death certificate as the cause of Hathcock’s death.’” (Emphasis added).
    6
    fetal heart rate abnormalities, and trauma at the time of delivery, including the forceful
    external manipulation of the fetal head incident to its impaction in the maternal pelvis.”
    According to Tappan, the child “sustained an in-utero asphyxial injury during the final one
    to one and a half hours of labor” and had “Castillo decided for cesarean delivery at or
    about 15:15 and had she “atraumatically” delivered Baby [H] by 15:45 on 05/22/15, [he]
    would have been born without neurologic injury.” He then concluded by stating that “[a]ll
    the above opinions [were] stated to a reasonable degree of medical certainty on a more
    probable than not basis.”
    In short, Drs. Null and Tappan informed the trial court of an impending birth,
    defaults in monitoring the child, purported misapplication of medications influencing
    (directly or indirectly) the fetal heart rate, a medical practitioner leaving the hospital for a
    short period of time, little progress in a birth unassisted by surgery, delay in ultimately
    removing the child through surgery, purportedly questionable means by which the baby
    was removed, and the child ultimately suffering brain trauma. That trauma may have
    been avoided, according to the experts, if the monitoring was better, the doctor acted
    sooner, and the doctor removed H by pulling on his feet. What is missing is a simple
    explanation of how and why the misconduct assigned Castillo and the nurses was a
    substantial factor in H suffering “a large subacute infarction involving the majority of his
    left cerebral hemisphere.” See Pediatrics Cool Care v. 
    Thompson, 649
     S.W.3d 152, 158
    (Tex. 2022) (involving medical malpractice and stating that a defendant’s negligence is
    the cause-in-fact of a plaintiff’s injury if the act or omission was a substantial factor in
    causing the injury, and without, the harm would not have occurred).
    7
    We assume arguendo the reports sufficiently describe the occurrence of an
    asphyxia event, as we do the discovery of injury at birth. Missing though is adequate
    explanation tying the purported “asphyxia event” to the “large subacute infarction
    involving the majority of his left cerebral hemisphere.”   Whether asphyxia, in general, or
    the extent allegedly encountered by the unborn child, in particular, can lead to such brain
    injury was left to inference or speculation. Yet, to be adequate, the report itself “must
    include the required information within its four corners.” Bowie Mem’l Hosp. v. Wright, 
    79 S.W.3d 48
    , 53 (Tex. 2002). We cannot supply it by inference. Scoresby, 346 S.W.3d at
    556.
    At best, Tappan opined that that the presence of a subacute infarction “suggests
    the possibility that H sustained a perinatal arterial ischemic stroke likely due to
    intrapartum factors including prolonged second-stage labor, fetal heart rate abnormalities,
    and trauma at the time of delivery . . . .” (Emphasis added). That too is deficient since
    the mere “possibility” of a link between conduct and eventual harm fails to illustrate the
    reasonably medical probability demanded by the statute. Wright, 79 S.W.3d at 53;
    Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Remington, No. 04-17-00728-
    CV, 
    2018 Tex. App. LEXIS 6387
    , at *9 (Tex. App.—San Antonio Aug. 15, 2018, no pet.)
    (mem. op.). The expert must still explain how the conduct caused the injury. Wright, 79
    S.W.23 at 53.
    Nor did either physician explain how or why H’s position low in Kristen’s pelvis
    caused either asphyxia or infarction. The same is true regarding the non-application of a
    monitor on the unborn child’s scalp. That default occurred around 9 a.m. while the
    asphyxia event and brain trauma supposedly “occurred late in the course of labor.” Again,
    8
    we are left to speculate about how either asphyxia or trauma would not have happened
    had the monitor been affixed earlier. About same omission, we also observe that “[a]n
    event that starts a chain of events can be too attenuated from an injury to cause it.” Curnel
    v. Houston Methodist Hospital-Willowbrook, 
    562 S.W.3d 553
    , 565 (Tex. App.—Houston
    [1st Dist.] 2018, no pet.). This means the experts would have had to also explain why an
    act transpiring some six or more hours before the occurrence of harm was not too
    attenuated to the eventual harm. They did not here.
    No less is true of Castillo’s leaving the hospital for 75 minutes but returning over
    an hour before deciding to conduct the cesarean. Her leaving may look bad and breach
    some standard of care, but no one explained why it mattered or how her remaining would
    have avoided trauma. Regarding the failure of attending nurses to inform their superiors
    of Castillo’s departure, like omissions reappear. We again were left to speculate about
    what those superiors could or would have done to prevent the subacute infarction had
    they been told. The experts said nothing about that. Nor did they even address whether
    those higher up the chain of command had a right to stop Castillo from leaving, persuade
    her to remain, secure a substitute physician, or the like. See Columbia Valley Healthcare
    Sys., L.P. v. Zamarripa, 
    526 S.W.3d 453
    , 461 (Tex. 2017) (wherein the hospital was
    accused of negligence because it failed to prevent a patient’s transfer and holding
    causation insufficiently explained because the experts did not address how the hospital
    had either the right or means to stop it). Nor did they explain what ameliorative measures
    the hospital could have undertaken while Castillo was gone to preempt H’s brain trauma.
    9
    As for Pitocin/Oxytocin and the way it was administered, the average judge
    untrained in the field of medicine may garner from the reports a relationship between the
    drug and contractions. So too may it see accusation about the mis-administration of the
    substance and comment about contractions influencing fetal heart rates. What it will not
    see is discussion about how or why the variable heart rates experienced by H before,
    during, or after the contractions could or would cause asphyxia in general or to a level
    sufficient to result in an infarction.
    About the delay between the time Castillo decided to utilize a cesarean and her
    initial incision, there was some, no doubt.        But, the experts do not provide factual
    explanation of how or why H would not have suffered the eventual infarction had the
    surgery commenced post-haste. They seem to conclude as much but offer no factual
    reasoning to support that conclusion.
    And, though it may be foreseeable that pushing on a baby’s head during extraction
    may cause injury, how and why it did in this particular instance was left unaddressed.
    See 
    Thompson, 649
     S.W.3d at 158 (stating that proximate cause has two components,
    cause-in-fact and foreseeability).       As with the other alleged acts of mis- and non-
    feasance, the experts left us to speculate about the link.
    So too do the reports leave one to legitimately ask how the asphyxia or infarction
    was reasonably foreseeable from the alleged defaults other than pushing on H’s head.
    See Zamarripa, 526 S.W.3d at 460 (stating that “the causal relationship between breach
    and injury that an expert report must explain” encompasses both cause-in-fact and
    foreseeability). With the advent of Columbia, the expert report must address both cause-
    in-fact and foreseeability. Curnel, 562 S.W.3d at 569-70. And, as previously mentioned,
    10
    the only act of misfeasance in relation to which any of the experts discussed foreseeability
    was the instance of pushing on the baby’s head.
    No doubt, something happened leaving child and parent to suffer the
    consequences. But a tragedy does not relieve anyone, including the judiciary, from
    complying with section 74.351. While the experts at bar proffered a litany of allegedly
    deficient conduct, they failed to explain how and why each caused, within reasonably
    medical probability, H’s eventual subacute infarction before birth.       This makes their
    reports less than a fair summary allowing jurists to reasonably conclude that either BSA
    or Castillo caused the harm suffered by H. To the extent that the trial court held otherwise,
    it abused its discretion. See E.D., 644 S.W.3d at 664 (alluding to the use of an abused
    discretion standard when reviewing the trial court’s decision about the sufficiency of the
    reports).
    We reverse the trial court’s order. In its place, we enter our own and dismiss, with
    prejudice, the Walkers’ suit against Rhodesia Castillo, M.D., and Baptist St. Anthony’s
    Hospital. So too do we remand the cause to the trial court with the directive to calculate
    and award Castillo and the hospital reasonable attorney’s fees and court costs per section
    74.351(b)(1) of the Texas Civil Practice and Remedies Code.
    Brian Quinn
    Chief Justice
    11
    

Document Info

Docket Number: 07-22-00032-CV

Filed Date: 11/29/2022

Precedential Status: Precedential

Modified Date: 12/1/2022