Children's Medical Center of Dallas v. Durham, Sheri and Jenkins, Denise, as Adminstrator of the Estate of Jessics Haley Durham ( 2013 )

REVERSE, REMAND, and AFFIRM; and Opinion Filed May 31, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00681-CV
CHILDREN'S MEDICAL CENTER OF DALLAS, AMY HOLLAND, CPNP,
DAVID W. KINES, FNPC, LAWSON COPLEY, M.D., J. PATRICK HIEBER, M.D.,
LORI A. THORNTON, RN, FNPC, AND TIMOTHY J. RUPP, M.D.,
Appellants and Cross-Appellees
V.
SHERI DURHAM AND DENISE JENKINS,
AS ADMINSTRATOR OF THE ESTATE OF JESSICA HALEY DURHAM,
Appellees and Cross-Appellants
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-11-01231-D
OPINION
Before Justices Francis, Murphy, and Evans
Opinion by Justice Murphy
In this interlocutory appeal, appellants challenge the trial court’s orders denying their
motions to dismiss appellees’ health care liability claims for failure to file an expert report
complying with the requirements of chapter 74 of the Texas Civil Practice and Remedies Code.
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (West Supp. 2012) (permitting interlocutory
appeal from denial of all or part of relief under section 74.351(b) of the Texas Civil Practice and
Remedies Code). In a cross-appeal, appellees challenge the trial court’s order granting the
motion of Children’s Medical Center of Dallas (CMC) to dismiss all direct liability claims
against it. We affirm the trial court’s denial of appellees’ motions to dismiss, and sustain
appellees’ sole issue in their cross-appeal. We therefore affirm the trial court’s orders in part and
reverse in part.
BACKGROUND
Jessica Haley Durham died on Christmas Day, 2008, from a ruptured aortic dissection.
In their operative petition, appellees/plaintiffs contend “Jessica’s death was preventable had
Defendants appropriately responded to Jessica’s aortic issues on a timely basis.” Appellants
Copley, Hieber, and Rupp are doctors. Appellants Holland, Kines, and Thornton are nurse
practitioners employed by appellant CMC.
Jessica was injured in a car accident on July 26, 2006, on the island of Maui, Hawaii.
According to appellees’ petition, Jessica “suffered a left distal femur fracture, right radial and
ulna facture, a ruptured spleen, pulmonary contusions, respiratory failure and lacerations, and
chest trauma.” Jessica’s father was killed in the accident. After initial treatment at a hospital in
Maui, Jessica was transferred to Kapi’olani Medical Center for Women & Children in Honolulu.
While at Kapi’olani, Jessica was diagnosed with an enlarged aorta. Her medical records from
Kapi’olani reflected this diagnosis, as well as a recommendation for follow-up care by a
pediatric cardiologist on her return to Texas. Jessica was treated at Kapi’olani until August 15,
2006, when she was transferred from Kapi’olani to the emergency room at CMC. She was
evaluated at CMC and then discharged with instructions to return to the CMC orthopedic clinic
on August 21, 2006, for follow-up care for her leg injury.
J. Patrick Hieber, M.D., a pediatrician, was Jessica’s primary care doctor from her birth
until her death. He communicated with physicians at Kapi’olani prior to Jessica’s transfer to
CMC. On her arrival at the CMC emergency department, Jessica was evaluated by Timothy J.
Rupp, M.D., an emergency room physician, and by Thornton, an orthopedic nurse practitioner.
Thornton elicited a medical history that included the recent finding of the enlarged aorta in an
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orthopedic consultation form completed by appellee Sheri Durham, Jessica’s mother. Lawson
Copley, M.D., a pediatric orthopedic surgeon, evaluated Jessica upon her return to CMC and was
her surgeon and attending physician at all times during her admission to CMC between August
22 and 31, 2006. Copley operated on Jessica’s leg on August 22, 2006. Nurse practitioners
Holland and Kines worked in the orthopedic unit of CMC. Holland ordered a cardiology
consultation for Jessica after Durham reported that doctors in Hawaii had determined that Jessica
had an enlarged aorta. This request was cancelled thirty minutes later. An hour later, Kines
placed a telephone order for a two-view chest x-ray to evaluate Jessica’s aorta. The radiologist’s
report stated the x-ray showed no abnormality in Jessica’s aorta. Jessica was transferred to
Scottish Rite Hospital on August 31, 2006.
It is undisputed that before she died Jessica never received a cardiology consultation or
treatment for her enlarged aorta. After her death, appellees filed this suit alleging negligence and
other causes of action against appellants. Appellees filed an expert report by Ron Blair, M.D.,
P.A. to comply with the requirements of chapter 74. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(a) (West 2011) (claimant in health care liability claim shall serve expert report).
Appellants filed motions to dismiss appellees’ claims for failure to file an expert report that
complied with the requirements of chapter 74. See id. § 74.351(b) (defendant may move to
dismiss health care liability claim). The trial court granted the motions and gave appellees an
opportunity to amend their expert report. See id. § 74.351(c) (trial court may grant one 30-day
extension to claimant to cure deficiency in expert report). Appellees filed an amended report,
and the appellants filed new motions to dismiss. After hearings, the trial court denied the
motions. This appeal followed.
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ISSUES
All appellants filed separate briefs in which they argued the trial court erred by denying
the motions to dismiss. Their issues are similar. Appellants challenge Blair’s qualifications to
render an expert opinion describing the causal relationship between any breach by any of the
appellants in August 2006 and Jessica’s death two years later. They challenge as conclusory and
speculative Blair’s opinions on the causal relationship between any breach by any of the
appellants and Jessica’s death. They contend that because appellees have already been given an
opportunity to cure the deficiencies in Blair’s report, but have not done so, their claims should be
dismissed.
In addition, Copley, Kines, Thornton, and Holland challenge Blair’s qualifications to
testify as to the standards of care applicable to them. CMC also contends the trial court erred by
refusing to dismiss the vicarious liability claims against CMC because the expert report as to
Kines, Thornton, and Holland, through whom CMC potentially would be liable, was inadequate.
In their cross-appeal, appellees contend the trial court abused its discretion in dismissing their
direct liability claims against CMC.
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. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam);
Whitfield v. Henson, 385 S.W.3d 708, 710 (Tex. App.—Dallas 2012, no pet.) (citing Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010)). When we review a matter committed to a trial court’s
discretion, we may not substitute our judgment for that of the trial court. Whitfield, 385 S.W.3d
at 710. A trial court has no discretion in determining what the law is or applying the law to the
facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
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APPLICABLE LAW
Appellees were required to comply with the expert report requirements of chapter 74 of
the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 74.351;
Stockton v. Offenbach, 336 S.W.3d 610, 614 (Tex. 2011). Within 120 days of filing an original
petition, a claimant must “serve on each party or the party’s attorney one or more expert reports”
that provide a fair summary of the expert’s opinions regarding applicable standards of care; how
the claimant’s 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 § 74.351(a), (r)(6); Key v. Muse, 352 S.W.3d 857, 859 (Tex. App.—Dallas 2011, no
pet.). The Texas Supreme Court has recently described the three elements of a valid expert
report. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). The report “must fairly
summarize the applicable standard of care; it must explain how a physician or health care
provider failed to meet that standard; and it must establish the causal relationship between the
failure and the harm alleged.” Id. (citing TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6), and
Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011)); see also TTHR Ltd. P’ship v. Moreno,
56 Tex. Sup. Ct. J. 467, 469 (Tex. Apr. 5, 2013). “The purpose of the expert report is to deter
frivolous claims, not to dispose of claims regardless of their merits.” Loaisiga v. Cerda, 379
S.W.3d 248, 258 (Tex. 2012) (quoting Scoresby, 346 S.W.3d at 554). The expert report “must
represent only a good-faith effort to provide a fair summary of the expert’s opinions.” Id.
(quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)).
The report must satisfy two purposes to constitute a good-faith effort. See Potts, 392
S.W.3d at 630; Palacios, 46 S.W.3d at 878. First, the report must inform the defendant of the
specific conduct the plaintiff has called into question. Palacios, 46 S.W.3d at 879. Second, the
report must provide a basis for the trial court to conclude that the claims have merit. Id. “A
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report that merely states the expert’s conclusions about the standard of care, breach, and
causation does not fulfill these two purposes.” Id. An expert’s report must explain the basis of
the expert’s statements to link those conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002) (per curiam). “A report need not marshal all the plaintiff’s proof, but
it must include the expert’s opinion on each of the elements identified in the statute.” Loaisiga,
379 S.W.3d at 258 (quoting Palacios, 46 S.W.3d at 878). In determining whether the expert
report represents a good faith effort to comply with the statutory requirements, the trial court’s
inquiry is limited to the four corners of the report. Jelinek, 328 S.W.3d at 539 (citing Wright, 79
S.W.3d at 52).
When a plaintiff sues more than one defendant in connection with a health care liability
claim, the expert report also must set forth the standard of care applicable to each defendant,
show how that defendant’s conduct failed to meet that standard, and explain the causal
relationship between each defendant’s individual acts and the injury, harm, or damages claimed.
See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (r)(6); see also Eichelberger v. St. Paul Med.
Ctr., 99 S.W.3d 636, 638 (Tex. App.—Dallas 2003, pet. denied) (citing Palacios, 46 S.W.3d at
878–79). But “[n]o provision of the Act requires an expert report to address each alleged
liability theory.” Potts, 392 S.W.3d at 630. A report that satisfies the three elements for a valid
expert report, “even if as to one theory only, entitles the claimant to proceed with a suit against
the physician or health care provider.” Id.
DISCUSSION
Appellants complain that Blair’s report is not sufficient to establish a causal connection
between their individual actions and Jessica’s death. They also challenge his qualifications to
opine on causation, and contend his opinions are conclusory. As noted above, the nurse
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practitioners and Copley also challenge Blair’s qualifications to opine as to the relevant
standards of care.
Because the only information relevant to our inquiry regarding the adequacy of Blair’s
report is that information within the four corners of the document, we review the report in some
detail. See Palacios, 46 S.W.3d at 878. Blair’s twelve-page report addresses the role of each
appellant in Jessica’s treatment. He describes his qualifications, discusses the relevant standards
of care and the role of each appellant, and offers his opinions regarding the link between
appellants’ actions or failures to act and Jessica’s death. In sum, Blair opines that because
Jessica was not referred to a pediatric cardiologist in Dallas for further evaluation and follow-up
despite an express written recommendation to do so by a pediatric cardiologist in Hawaii,
Jessica’s enlarged aorta was never treated, and she died.
Blair begins the report by stating he was “asked to provide opinions regarding medical
care Jessica Durham received at Children’s Medical Center in Dallas following her transfer from
Kapi’olani Medical Center in Honolulu, Hawaii.” He explains that “[t]his case involves the
standards of care applicable to: (1) a pediatrician; (2) an orthopedic surgeon acting in his role as
an attending physician to a hospitalized patient needing, and having, orthopedic surgery; (3) an
emergency room physician; and, (4) various nurse practitioners.”
Blair then discusses his qualifications to speak to the standards of care, the breaches of
those standards, and the causal relationship between those breaches and Jessica’s death. He
explains that he has been a pediatrician for twenty years, describes his education and
professional work experience, and discusses his qualifications to speak to the standards of care in
this case:
I routinely am engaged in caring for children with complex
medical issues, both in the outpatient and inpatient settings. I am
knowledgeable about the standards of care that are applicable to
physicians and nurse practitioners who are involved in receiving a
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patient who has been transferred from one medical facility to
another, which is something I have dealt with throughout my own
practice. I also routinely interact with emergency room physicians
when they have evaluated or treated patients or when they have
requested a consultation from a pediatrician. I am familiar with the
standard of care applicable to such physicians when they are
involved in a hospital-to-hospital patient transfer, and when a
patient has presented in the emergency room with a medical
condition that is made known to the emergency room physician,
that requires follow up evaluation and care.
Next, Blair discusses his qualifications for opining about the diagnosis and care of an
enlarged aorta. He states that he directly diagnoses and treats medical conditions in children, and
explains that “when confronted with certain issues, [he] obtain[s] consultations, diagnoses, or
confirmation of [his] own diagnoses, from other physicians having particular specializations.”
He explains that while he may not be a specialist in that area of medicine, he is “knowledgeable
about the same,” and will “collaborate with the specialists in the development and
implementation of diagnostic and treatment strategies.” Specific to the issue here, he states,
“[f]or example, I am not a pediatric cardiologist; however, I know what an enlarged aorta is, and
I have been involved in the diagnosis and treatment of the same, even if a patient having that
condition has been referred to a pediatric cardiologist for more specialized diagnosis and care.”
He continues, “[a]s a diagnostic physician, I am familiar with the generally available diagnostic
and treatment modalities for an enlarged aorta, and I am familiar with the consequences of not
diagnosing or treating an enlarged aorta, in particular one that is progressively enlarging.” He
concludes, “I either actively continue to follow my patients while under the consultative or direct
care of cardiologists or I participate in the delivery of treatment.”
Next, Blair discusses his regular interaction and consultation with “surgeons and their
supporting health care teams” when a patient requires surgical care. He states,
I am familiar with the standard of care applicable to the surgeon
and other health care professionals (such as nurse practitioners)
working with other surgeons and who are involved in the process
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of obtaining pre-surgical medical clearance for a patient, or who
encounter an unexpected, incidental or reported finding of medical
significance that requires further medical management or follow up
evaluation and/or care.
He continues by explaining that he routinely interacts with nurse practitioners in a hospital
setting, has supervised nurse practitioners in that setting, and “presently, and in the past, [has]
served as a training and supervising preceptor for nurse practitioners in the clinical setting.” He
describes his knowledge of the standard of care:
I have also interacted as a physician in the setting of a hospital,
where . . . nurse practitioners have been called upon to evaluate a
patient who has complex medical issues or who has encountered a
significant medical finding outside of his or her area of practice,
and in each of these contexts, and because of my experience in
each, I am familiar with the standard of care applicable to their
clinical responsibilities in reporting and/or managing such
conditions.
He next speaks to his qualifications to discuss the standard of care for pediatricians. He
states that he has been involved as a patient’s primary care physician “in the process of
coordinating or assisting in the coordination of care outside of my practice when circumstances,
such as an accident or illness out of town, warrant the same.” He states, “I am familiar with the
standard of care applicable to a pediatrician acting within the same or similar circumstances.”
After discussing these qualifications, he articulates the standards of care for each
appellant. He then describes in detail how each appellant breached the applicable standard of
care. The breaches include failure to review Jessica’s medical records from Kapi’olani; failing
to advise Jessica’s mother and pediatrician of the need for a cardiology consultation; failing to
arrange for a cardiology consultation; ordering a chest x-ray, an “inadequate imaging modality,”
to evaluate the enlarged aorta; requesting and then canceling a cardiology consultation; and
failing to follow up and evaluate Jessica “after her acute care by Children’s Medical Center was
complete.” Blair concludes the report with a discussion of how the breaches or departures from
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the standards of care “caused or contributed to Jessica’s injuries, and ultimately, her untimely
death.”
Qualifications to opine on standards of care
We conclude Blair is qualified to opine as to the standards of care for each of the
appellants, including Copley and the nurse practitioners who have specifically raised this issue.
Under section 74.402(b), a person may qualify as an expert witness on the issue of whether a
health care provider such as a nurse practitioner departed from accepted standards of medical
care if the person (1) is practicing in a field that involves the same type of care or treatment as
that delivered by the defendant health care provider, (2) has knowledge of the accepted standards
of care for the care or treatment of the illness, injury, or condition involved in the claim, and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those
accepted standards of health care. TEX. CIV. PRAC. & REM. CODE § 74.402(b). Section 74.401
sets out similar requirements for an expert witness in a suit against a physician, with the
additional requirement that the expert must be a physician who was practicing medicine at the
time the claim arose. See TEX. CIV. PRAC. & REM. CODE § 74.401(a).
Relying on Erlich v. Miles, 144 S.W.3d 620, 624–26 (Tex. App.—Fort Worth 2004, pet.
denied), Copley argues that “Dr. Blair fails to demonstrate his qualifications to opine to . . .
preoperative, intraoperative, and postoperative issues” such as what steps should be taken “to
assess a patient’s stability or instability for surgery,” and “what should be considered in
determining what, if any, consults from other specialties should be obtained.” In Erlich, the
court concluded a neurologist was not qualified to submit an expert report on the validity of
surgical procedures used by a plastic surgeon for a face lift and cheek implants. Id. at 625. The
court explained that “[n]othing in the expert report . . . indicates that [the expert] is familiar with
either the surgical procedures used by Appellee for the face lift and implants or with the
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preoperative procedures used by Appellee to prepare Appellant’s face for the face lift and
implants.” Id. at 625–26.
In Foster v. Richardson, 303 S.W.3d 833, 845 (Tex. App.—Fort Worth 2009, no pet.),
the court distinguished its earlier opinion in Erlich in concluding that an internist was qualified
to opine regarding an orthopedic surgeon. The court in Foster explained, “[t]his case is different
from Erlich . . . because [the expert] has shown experience with the exact issue involved” in the
plaintiff’s claim against the defendant doctor. Id. The report did not “assess blame on Dr. Foster
for processes involved with an orthopedic surgery.” Id. Instead, the report addressed Dr.
Foster’s failure to follow orthopedic diagnostic procedures that would have allowed him to
correctly diagnose the plaintiff’s broken ankle and thus avoid the continued pain associated with
an incorrect diagnosis. Id. Because the expert’s report established his qualifications to speak to
orthopedic diagnostic procedures, he was qualified to provide an opinion on causation. Id.
Similarly, Blair does not “assess blame” on Copley “for processes involved with an
orthopedic surgery,” see id., but rather speaks to Copley’s actions as “an orthopedic surgeon
acting in his role as an attending physician to a hospitalized patient needing, and having,
orthopedic surgery.” Blair specifically states that as a pediatrician, he regularly interacts with
surgeons when his patients require surgical care, participates in ensuring that patients needing
surgery are medically clear for it, and consults with surgeons “when they have discovered or
become aware that a patient has a medical condition outside of their area of specialization that
requires further medical evaluation or consultation.” Blair explains, “I am familiar with the
standard of care applicable to the surgeon . . . involved in the process of obtaining pre-surgical
medical clearance for a patient, or who encounter[s] an unexpected, incidental or reported
finding of medical significance that requires further medical management or follow up
evaluation or care.” Blair explicitly speaks to Copley’s role “first and foremost [as] a medical
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doctor.” He states that “as a medical doctor, Dr. Copley should or would have an appreciation
for the significance of an enlarged aorta, particularly in a case involving a patient who has
suffered multiple focal, blunt trauma injuries.” Blair continues, “[Copley] would know that this
is a serious and ominous finding and he would fully appreciate the significance of a prior, written
recommendation for follow up by a pediatric cardiologist, as set forth in a prior hospitalization
discharge summary.”
We conclude that as in Foster, Blair has shown experience with the issue involved in
appellees’ claims against Copley, that is, the failure to ensure that Jessica received a pediatric
cardiology consultation either before or after her orthopedic surgery. We overrule Copley’s
issue challenging Blair’s qualifications to opine on the standard of care applicable to Copley.
We also conclude that Blair is qualified to address the standard of care for the nurse
practitioners. In Baylor Medical Center at Waxahachie v. Wallace, 278 S.W.3d 552, 558 (Tex.
App.—Dallas 2009, no pet.), we stated, “if the physician states he is familiar with the standard of
care for both nurses and physicians, and for the prevention and treatment of the illness, injury or
condition involved in the claim, the physician is qualified on the issue of whether the health care
provider departed from the accepted standards of care for health care providers.” As in Baylor
Medical Center, Blair’s report includes his specific statement that he has worked with nurse
practitioners and is familiar with the standards of care that apply to nurse practitioners in similar
situations. See id. at 559. He also states that he has trained and supervised nurse practitioners.
He specifies that he has experience with nurse practitioners in the same circumstances as
presented here, in “a hospital, where . . . nurse practitioners have been called upon to evaluate a
patient who has complex medical issues or who has encountered a significant medical finding
outside of his or her area of practice.” The trial court did not abuse its discretion when it
concluded Blair was qualified to render a report against the nurse practitioner appellants. See id.
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We overrule the issues of Holland, Kines, and Thornton challenging Blair’s qualifications to
address the standards of care for nurse practitioners.
Qualifications to opine on causation
We also conclude Blair sufficiently established his qualifications to opine regarding
causation. Under Chapter 74, a person is qualified to give opinion testimony concerning the
causal relationship between the injury, harm, or damages claimed and the alleged departure from
the applicable standard of care only if the person is a physician and is otherwise qualified to
render opinions on the causal relationship under the Texas Rules of Evidence. TEX. CIV. PRAC.
& REM. CODE § 74.403(a); 74.351(r)(5)(C). To be qualified under the rules of evidence, an
expert witness must have “knowledge, skill, experience, training or education regarding the
specific issue before the court.” See TEX. R. EVID. 702. As stated in Estorque v. Schafer, 302
S.W.3d 19, 26 (Tex. App.—Fort Worth 2009, no pet.), “[t]he proper inquiry in assessing a
doctor’s qualifications to submit an expert report is not his area of expertise but his familiarity
with the issues involved in the claim before the court.”
Appellants contend that because Blair is not an expert in the treatment of an enlarged
aorta, he is not qualified to offer an opinion that failure to treat Jessica’s enlarged aorta caused
her death from an aortic dissection. Blair concedes he is not a pediatric cardiologist. But he
explains in his report that he “know[s] what an enlarged aorta is” and has “been involved in the
diagnosis and treatment of the same.” He states that he is familiar with “the generally available
diagnostic and treatment modalities for an enlarged aorta,” and “the consequences of not
diagnosing or treating an enlarged aorta, in particular one that is progressively enlarging.” He
explains that even when a patient having an enlarged aorta has been referred to a pediatric
cardiologist for consultation or treatment, he actively continues to follow the patient or
participates in the delivery of treatment. As will be discussed below, Blair’s report further
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details his knowledge of the treatment available for an enlarged aorta and the consequences of
failing to treat the condition.
We also observe that appellees’ negligence issues against appellants relate to appellants’
failure to refer Jessica to a pediatric cardiologist for treatment, not any injury relating to
treatment they provided for an enlarged aorta. See Estorque, 302 S.W.3d at 26 (specialized
branches of medicine not implicated by defendant’s alleged negligence in failing to refer plaintiff
to specialists for problems revealed in CT scan). Blair explains that he is routinely “engaged in
caring for children with complex medical issues” and states he has “dealt with throughout my
own practice” the transfer and receiving of patients from one medical facility to another. He
explains he is familiar with the standards of care relating to hospital-to-hospital transfers such as
Jessica’s, as well as the standards of care for health care professionals “who encounter an
unexpected, incidental or reported finding of medical significance that requires further medical
management or follow up evaluation and/or care.” And for each appellant, Blair identified the
action that should have been taken and described the circumstances under which the opportunity
arose for each appellant to ensure that Jessica obtained a consultation with a pediatric
cardiologist.
We discussed whether an expert was qualified to render opinions on causation in
Pediatrix Medical Group, Inc. v. Robinson, 352 S.W.3d 879, 887–89 (Tex. App.—Dallas 2011,
no pet.). In Pediatrix, the plaintiffs alleged that a premature infant had become blind because his
medical providers failed to conduct timely follow-up examinations or provide treatment for
retinopathy of prematurity (ROP). See id. at 882. The defendants challenged the qualifications
of a neonatologist to offer an opinion about causation. Id. at 887. They argued that her training
and experience as a neonatologist did not “provide her sufficient expertise to opine that the cause
of [the infant’s] blindness was the untimely diagnosis and treatment for ROP.” Id. They also
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argued that her report failed to establish that “she had knowledge, either from experience or
study, concerning the effectiveness of ROP treatments in general or in [the infant’s] particular
case.” Id. We disagreed:
[W]e conclude [the expert’s] report establishes her qualifications to
opine on causation. While she is not a pediatric ophthalmologist
specializing in the diagnosis and treatment of ROP, the causation
issue here relates to the duty of the neonatologists to have
recognized the potential for Ruben to develop ROP, to have
worked closely with [the doctor who first examined Ruben’s eyes]
regarding Ruben’s treatment, to have recognized the potential
harm for a delay in follow-up appointments, and to have taken the
appropriate actions to ensure Ruben was seen by an appropriate
doctor during the critical time frame. Based on her treatment of
small preterm babies like Ruben, her experience in requesting
ophthalmologic consultations to screen preterm babies for ROP,
and her familiarity with implementing policies and procedures to
ensure proper care for babies at risk for ROP, she is qualified to
provide her expert opinion.
Id. at 889.
We also addressed an expert’s qualifications to opine on causation in Mosely v. Mundine,
249 S.W.3d 775, 779–80 (Tex. App.—Dallas 2008, no pet.). In Mosely, Mundine was evaluated
in a hospital emergency room by a doctor after a car accident. Id. at 777. The doctor ordered a
chest x-ray and evaluated it as normal. But a radiologist also reviewed the chest x-ray, noted a
one-centimeter-sized nodule on Mundine’s upper right lung, and informed the emergency
department of the abnormality. Mundine was not notified. About two years later, another visit
to the hospital revealed a five- to six-centimeter-sized mass on her upper right lung that required
surgery and chemotherapy. Id. Mundine’s expert opined that “[h]ad this cancer been detected in
2004[,] the likelihood of survival for Mrs. Mundine would have been significantly greater with a
much less invasive treatment protocol.” Id. at 780. The doctor argued the expert was not
qualified to render an opinion as to causation because he was an emergency physician and
internist, not an oncologist. Id. at 779. We rejected this argument, explaining that “[t]he conduct
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causing the Mundines’ injuries related to the ability of an emergency room physician to interpret
a routine chest x-ray and identify an abnormality, not the diagnosis and treatment of cancer.” Id.
We concluded, “[t]he record shows the trial court could have concluded the Mundines met their
burden to prove [the expert] had the knowledge, skill, experience, training, or education
regarding that specific emergency room physician’s scope of practice.” Id.
Appellants’ challenges to Blair’s qualifications to opine as to causation are very similar
to those we addressed in Pediatrix and in Mosely. In both cases, as here, the expert in question
was not a specialist in the disease or condition suffered by the patient. See Pediatrix, 352
S.W.3d at 889 (expert was neonatologist, not pediatric ophthalmologist, where patient suffered
ROP); Mosely, 249 S.W.3d at 779 (expert was emergency physician and internist, not oncologist,
where patient suffered cancer). In both cases, as here, the expert addressed failures to recognize
potential harm and take appropriate actions. See Pediatrix, 352 S.W.3d at 889 (defendants
should have recognized potential harm of delay in scheduling follow-up appointments); Mosely,
249 S.W.3d at 779 (failure to identify abnormality in routine x-ray). In both cases, as here, the
expert opined that the delay caused by the defendants’ failures resulted in greater injury to the
patient. See Pediatrix, 352 S.W.3d at 889 (lack of treatment for ROP caused blindness); Mosely,
249 S.W.3d at 780 (expert opined that delayed diagnosis of cancer required invasive and
aggressive treatment and shortened life expectancy). Here, as in Pediatrix and Mosely, the
record is sufficient to establish Blair’s qualifications to opine on causation. See Pediatrix, 352
S.W.3d at 889; Mosely, 249 S.W.3d at 780. We overrule appellants’ issues challenging Blair’s
report on this ground.
Adequacy of report as to causation
Appellants assert that Blair’s report was impermissibly speculative and conclusory in
describing any causal relationship between any breach by any appellant and Jessica’s death. To
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meet the requirements of chapter 74, Blair’s report must “provide information linking the
defendant’s purported breach of the standard of care to the plaintiff’s injury.” Fagadau v.
Wenkstern, 311 S.W.3d 132, 138 (Tex. App.—Dallas 2010, no pet.). The report “must contain
sufficiently specific information to demonstrate causation beyond mere conjecture.” Id.
Appellants contend Blair fails to connect Jessica’s 2006 condition, an enlarged aorta,
with her death two years later from a different condition, a ruptured aorta. Blair states, “it is my
opinion that Jessica’s aortic enlargement was a progressively worsening condition following its
being discovered while she was a patient at Kapi’olani Medical Center . . . . [T]he aortic rupture
ultimately occurred due to lack of intervention and available care. It is my opinion that the initial
dilatation of her aorta and the apparent progressive worsening of that condition over time would
have been treatable medically initially, and surgically subsequently, as the aorta continued to
dilate.” He opines that each appellant’s breach of the standards of care, which he specifically
details, caused or contributed to “the ultimate outcome of the rupture of the aorta, and the
otherwise preventable, untimely death of Jessica Durham.” He explains the actions that should
have been taken: “If a pediatric cardiology consultation and related evaluation and medical
treatment (including but not limited to drug therapy and surgery) had been provided to Jessica or
arranged for by any of the [appellants] . . . all of whom were in a position to deliver or arrange
for the timely delivery of same, the enlarged aorta would have been treatable, and Jessica’s death
would have been prevented.” He explains the nature of the treatment that should have been
provided: “if . . . [appellants] had requested or arranged for consultation by a pediatric
cardiologist, I am certain that an echocardiographic study (and/or an MRI) would have been
performed and appropriate follow up and potential treatment could and almost certainly would
have been rendered to forestall further aortic dilation, mitigating the risk of rupture or
tamponade, or surgical intervention (such as an aortic graft) to replace the dilated segment of the
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aorta, would have occurred, which ultimately is the standard of care for children with progressive
aortic dilation . . . .” He concludes, “[t]his type of treatment and intervention (among others that
might be available), in my opinion and in my experience, would have prevented Jessica’s
ultimate dissection and subsequent death.”
We conclude that Blair’s report provides adequate information linking the appellants’
purported breaches of the standards of care to Jessica’s injury. See Fagadau, 311 S.W.3d at 138.
Blair adequately explains the basis of his statements and links his conclusions to the facts. See
Bowie Mem’l Hosp., 79 S.W.3d at 52. He also links appellants’ conduct to the harm alleged.
See Potts, 392 S.W.3d at 630. He states that because Jessica’s enlarged aorta was never treated,
it ruptured and she died. He opines that the failure to obtain treatment was the result of
appellants’ breaches of the applicable standards of care. At trial, appellees may be unable to
prove causation. Other experts may provide opposing opinions to support negative findings by a
jury. But “the fact that [appellees] may not prove causation at trial does not make [Blair’s]
report inadequate.” See Fagadau, 311 S.W.3d at 139. Blair’s report is not conclusory. He
describes what each appellant should have done and what happened because he or she failed to
do it. Id. As we stated in Fagadau, “[a]s such, the report clearly constitutes a good faith effort
to provide a fair summary of [the expert’s] opinions on causation.” Id. Blair states that he offers
his opinions “with a reasonable degree of medical certainty and/or reasonable degree of medical
probability,” and opines that Jessica’s “ultimate aortic dissection and subsequent death” would
not have occurred absent appellants’ breaches of the standards of care. We conclude the report
sufficiently informs appellants of the specific conduct appellees have called into question. See
Palacios, 46 S.W.3d at 879. We further conclude that the report provides a basis for the trial
court to conclude that appellees’ claims have merit. See id. We overrule appellants’ issues.
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Cross Appeal
In one issue, appellees complain that the trial court erred by dismissing their direct claims
against CMC because Blair’s report “provided a fair and adequate summary of the deviations
from the appropriate standard of care” by CMC. The trial court’s order granting CMC’s motion
to dismiss these claims recited:
Dr. Blair’s opinions on pages 8 and 10 of his September 27, 2011
report allege multiple deviations from the appropriate standard of
medical care by Children’s Medical Center of Dallas. His
opinions, though, are conclusory, with no attempt to explain the
facts upon which he uses to arrive at these opinions. This is not
the “fair summary” required of a Chapter 74 expert report. Dr.
Blair’s cursory treatment of the claims against Children’s Medical
Center of Dallas differs significantly from the more factually-
detailed opinions he gave regarding other Defendants in this cause.
The trial court’s order, however, provided that “[t]he respondeat superior claims of Plaintiffs
against Defendant Children’s Medical Center of Dallas are not affected by this dismissal.”
Since the date of the trial court’s order, the Texas Supreme Court has issued opinions in
Potts and in TTHR. See Potts, 392 S.W.3d 625; TTHR, 56 Tex. Sup. Ct. J. 467. In these cases,
the court “held that an expert report satisfying the requirements of the [Texas Medical Liability
Act] as to a defendant, even if it addresses only one theory of liability alleged against that
defendant, is sufficient for the entire suit to proceed against the defendant.” TTHR, 56 Tex. Sup.
Ct. J. at 467 (citing Potts, 392 S.W.3d at 630). Because Blair’s report satisfied the requirements
of chapter 74 as to CMC’s vicarious liability for the allegedly negligent actions of the nurses,
Holland, Kines, and Thornton, appellees’ direct liability claims against CMC may proceed as
well. See id. (because plaintiff’s expert reports satisfied statutory requirements as to her claim
that hospital was vicariously liable for actions of nurses, plaintiff’s direct liability claims could
proceed as well). In light of the court’s holdings in Potts and TTHR, we sustain appellees’ sole
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issue in its cross appeal, and reverse the portion of the trial court’s order dismissing appellees’
claims of negligence against CMC.
CONCLUSION
We overrule appellants’ issues asserting that the trial court erred by denying their
motions to dismiss. We sustain appellees’ issue in their cross-appeal. We affirm the trial court’s
order of May 1, 2012, denying the motions to dismiss of nurses Holland, Thornton, and Kines,
and doctors Rupp, Hieber, and Copley. We affirm the trial court’s order of May 4, 2012, insofar
as it denies CMC’s motion to dismiss appellees’ vicarious liability claims, and reverse the
portion of the order granting CMC’s motion to dismiss appellees’ direct liability claims.
/Mary Murphy/
MARY MURPHY
JUSTICE
120681F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHILDREN'S MEDICAL CENTER OF On Appeal from the County Court at Law
DALLAS, AMY HOLLAND, CPNP, No. 4, Dallas County, Texas
DAVID W. KINES, FNPC, LAWSON Trial Court Cause No. CC-11-01231-D.
COPLEY, M.D., J. PATRICK HIEBER, Opinion delivered by Justice Murphy.
M.D., LORI A. THORNTON, RN, FNPC, Justices Francis and Evans participating.
and TIMOTHY J. RUPP, M.D., Appellants
No. 05-12-00681-CV V.
SHERI DURHAM and DENISE JENKINS,
AS ADMINISTRATOR OF THE ESTATE
OF JESSICA HALEY DURHAM,
Appellees
In accordance with this Court’s opinion of this date, we REVERSE the portion of the
trial court’s judgment dismissing with prejudice appellees’ direct liability negligence claims
against appellant Children’s Medical Center of Dallas. The judgment of the trial court is
AFFIRMED in all other respects. We REMAND this cause to the trial court for further
proceedings.
It is ORDERED that appellees Sheri Durham and Denise Jenkins, as Administrator of
the Estate of Jessica Haley Durham, recover their costs of this appeal from appellants Children’s
Medical Center of Dallas, Amy Holland, CPNP, David W. Kines, FNPC, Lawson Copley, M.D.,
J. Patrick Hieber, M.D., Lori A. Thornton, RN, FNPC, and Timothy J. Rupp, M.D.
Judgment entered this 31st day of May, 2013.
/Mary Murphy/
MARY MURPHY
JUSTICE
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