SCC Partners, Inc. D/B/A Senior Care Health and Rehabilitation Center - Bridgeport And Foursquare Healthcare, Ltd. F/K/A SCC Healthcare Group v. Billy Robert Ince, Individually and as a Representative of the Estate of Norecca 'Joy' Ince , 2016 Tex. App. LEXIS 5918 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00312-CV
SCC PARTNERS, INC. D/B/A APPELLANTS
SENIOR CARE HEALTH AND
REHABILITATION CENTER -
BRIDGEPORT; AND
FOURSQUARE HEALTHCARE,
LTD. F/K/A SCC HEALTHCARE
GROUP
V.
BILLY ROBERT INCE, APPELLEE
INDIVIDUALLY AND AS A
REPRESENTATIVE OF THE
ESTATE OF NORECCA “JOY”
INCE, DECEASED
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CV14-04-225
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OPINION
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Appellants––SCC Partners, Inc. d/b/a Senior Care Health and
Rehabilitation Center - Bridgeport and Foursquare Healthcare, Ltd. f/k/a SCC
Healthcare Group (Providers)––bring a single issue in this interlocutory appeal
from an order denying their motion to dismiss1 in a healthcare liability case: that
the trial court erred by denying their motion after overruling their objections to the
expert report filed by appellee Billy Robert Ince. We affirm.
Ince’s wife Joy resided at Senior Care Bridgeport’s nursing facility for
almost a year before her death on April 27, 2012. Joy died six days after being
admitted to a different hospital and receiving a diagnosis of gram negative
septicemia, gram negative sepsis, and acute myeloid leukemia. After Joy died,
Ince filed a wrongful death and survival suit alleging that Providers had been
negligent in caring for her and that their negligence caused her predeath injuries,
including pain and suffering, and eventually her death. Ince timely filed an expert
report by Dr. E. Rawson Griffin, III, to which Providers objected, contending that
Dr. Griffin was not qualified to render an opinion “regarding cancer or oncology”
and that his opinion regarding causation was ambiguous and conclusory.
Providers state in their objections, “While [Dr. Griffin’s opinion as to causation of
pain and suffering from Joy’s injuries] may be sufficient to address [Ince’s]
survival claim, it does not address causation as to the wrongful death claim.”
After a hearing, the trial court denied Providers’ motion to dismiss.
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2015).
2
Health Care Liability Claims
A health care liability claimant is required to serve a defendant with an
expert report and curriculum vitae of the report’s author within 120 days of filing
the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2015).
The report must be written by an expert competent to give an opinion on the
matters in the report, must inform the defendant of the specific conduct called
into question, and must provide a basis for the trial court to determine that the
claim has merit. Id. §§ 74.351(r)(5)(B), (r)(6), 74.402 (West Supp. 2015); Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). If the defendant files a
motion challenging the adequacy of the expert report, the court shall grant the
motion only if it appears to the court that the report does not represent a good
faith effort to comply with the statutory requirements. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(l). We review a trial court’s denial of a motion to dismiss for
an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006);
Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 623–24
(Tex. App.––Fort Worth 2012, no pet.).
Certified EMS, Inc. v. Potts
Although Providers argue that even if Dr. Griffin’s report is sufficient as to
Ince’s survival claim it is not sufficient as to his wrongful death claim, at oral
argument they clarified that they had not conceded that the report was sufficient
as to the survival claim. Ince responds that because Providers’ objections should
be overruled, at least as to the survival claim, under Certified EMS, Inc. v. Potts,
3
he need not show that the report is independently sufficient as to the wrongful
death claim, and none of the claims are subject to dismissal. 392 S.W.3d 625,
626 (Tex. 2013).
In Certified EMS, a patient sued a hospital raising direct and vicarious
liability theories of negligence after a nurse employed by a staffing service
allegedly assaulted her. Id. Potts timely served expert reports from a doctor and
a nurse, but Certified EMS objected to the reports on the ground that neither
referenced its potential direct liability as alleged by Potts. Id. at 627. Citing a
split in the courts of appeals, the supreme court held that the Texas Medical
Liability Act does not require an expert report to address each alleged theory of
liability and that a report that satisfies the Act’s requirements “even if as to one
theory only, entitles the claimant to proceed with a suit against the physician or
health care provider.” Id. at 630.
Providers contend that the holding in Certified EMS is limited to direct and
vicarious liability theories of negligence against a party and not different causes
of actions with separate injuries. We do not construe the holding in Certified
EMS so narrowly. The El Paso Court of Appeals has agreed. See Tenet Hosps.
Ltd. v. Bernal, 482 S.W.3d 165, 171–72 (Tex. App.––El Paso 2015, no pet.)
(holding, after concluding that report was insufficient as to causation on survival
claim, that “[t]his does not necessarily mean that plaintiffs’ survival claims fail”
and, citing Certified EMS, addressing adequacy of report provided for wrongful
4
death claims).2 In Certified EMS, the supreme court rejected the lower court’s
reasoning that the statute’s use of the phrase “cause of action” is dispositive and,
thus, that the focus of a dismissal motion is the operative set of facts leading to
various theories of liability within a cause of action. 392 S.W.3d at 630 (citing
355 S.W.3d 683, 690–92 (Tex. App.––Houston [1st Dist.] 2011) (op. on reh’g)
(“By focusing on a cause of action rather than particular liability theories that may
be contained within a cause of action, the plain language establishes that the
entire cause of action is dismissed with respect to the defendant when the
claimant has failed to file an expert report that sets out at least one liability theory
within a cause of action.”)). Instead, the supreme court held that a report that
satisfies the statutory elements, “even if as to one theory only,” is sufficient to
avoid dismissal of an entire case. Id. at 630–31 (“If the trial court decides that a
liability theory is supported, then the claim is not frivolous, and the suit may
proceed.” (emphasis added)). This is consistent with the goal of avoiding
frivolous suits: if at least one alleged claim, theory, or cause of action in a health
care liability suit has expert support, then the legislative intent of deterring
frivolous suits has been satisfied. See id. at 631. Carving out causes of action,
2
As Providers point out, the court of appeals reversed in Bernal and
remanded for the trial court to consider a thirty-day extension, but not, as
Providers urge, because the plaintiff was required to produce an expert opinion
on both the wrongful death and survival claims but because the plaintiff failed to
provide an adequate expert opinion as to causation under either theory. Tenet
Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 171, 175 (Tex. App.—El Paso 2015, no
pet.).
5
i.e., alternative “theories of liability,” at the beginning of the suit before discovery
has occurred would be akin to requiring a plaintiff to meet the summary judgment
standard of proof. See id. (citing Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).
Accordingly, we conclude and hold that if the expert report served by Ince
satisfies the statutory requirements as to either his alleged wrongful death or
survival claims, then the trial court did not abuse its discretion by denying
Providers’ motion to dismiss. See id. at 630–31.
Qualifications3
An expert report concerning standards of care for health care providers
must be authored by one who qualifies as an expert. Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.351(r)(5)(B), 74.402; Davisson v. Nicholson, 310 S.W.3d 543,
550 (Tex. App.––Fort Worth 2010, no pet.) (op. on reh’g). A person may qualify
as an expert on the issue of whether a health care provider departed from
accepted standards of care only if the person
(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the defendant
health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing that
type of health care at the time the claim arose;
3
Although Providers do not discuss their challenge to Dr. Griffin’s
qualifications in the argument of their issue, they do repeat their trial court
objections to his qualifications elsewhere in their brief; thus, we will address that
complaint in an abundance of caution.
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(2) has knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness, injury, or
condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of health care.
Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b). Persons practicing health care
include those serving as consultants while being licensed, certified, or registered
in the same field as the health care provider. Id. § 74.402(a)(2). A person is
qualified on the basis of training or experience if he is certified by a state or
national professional certifying agency or has substantial experience in the field
and is actively practicing health care services relevant to the claim. Id.
§ 74.402(c). To determine whether the author of a report is qualified, we may
look only at the four corners of the report and the author’s curriculum vitae.
Barber v. Mercer, 303 S.W.3d 786, 794 (Tex. App.––Fort Worth 2009, no pet.)
(citing Palacios, 46 S.W.3d at 878).
Providers argued in their motion to dismiss that Dr. Griffin is not qualified to
render an opinion excluding leukemia as an alternative cause of Joy’s death
because his report does not establish that he has specialized knowledge or
training in oncology. Ince responded that Dr. Griffin’s curriculum vitae shows that
he is qualified because he “regularly treats patients with conditions almost
identical to [Joy’s]” and he opined solely that Providers’ negligence, which led to
the development of Joy’s pressure sore, was a contributing factor in her death,
not that their negligence caused her leukemia.
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Pertinent to his qualifications, Dr. Griffin stated in his expert report,
I am a practicing physician licensed by the States of Florida,
Georgia and Virginia. I received my M.D. Degree from Medical
University of South Carolina, Charleston, South Carolina, and
interned at Tripler Army Medical Center, Honolulu, HI. I completed
my residency at Martin Army Hospital, Ft. Benning, Georgia. I
currently hold a certificate of added qualification in geriatrics and I
was a certified director of long-term care facilities for 6 years in the
past. I am also board certified in family medicine. I served as
Director of Geriatric Services, Tandem Skilled Nursing Facility in
Orange Park, Florida in 1998 and from 1999–2001. I was Attending
Staff in Family Practice and Geriatrics at Orange Park Medical
Center in Orange Park, Florida from 1985–2015. I was Director of
Rehabilitation Services at Cedar Hills SNF in Jacksonville, Florida
from 2005–2012. I served as a Consultant in Geriatric
Neuropsychiatry at Holly Point Manor Skilled Nursing Home in
Orange Park, Florida in 1998. I served as Associate Medical
Director at Consultec SNF in Orange Park, Florida from 2006–2012.
I was Medical Director at Health Ex Rehabilitation in Orange Park,
Florida from 2004–2006. I was also the Medical Consultant for Long
Term Care at Community Hospice in Jacksonville, Florida from
2006–2012. I was credentialed as an expert witness in Family
Practice and Geriatrics with the Florida Board of Medicine,
Tallahassee, Florida from 1991–2015. At the time of the occurrence
of this case, I was actively engaged in the practice of geriatrics. I
continue to practice actively in this specialty as of this date. I have
attached a copy of my current CV, which is incorporated in this
report by this reference.
In the regular course of my medical practice I have had
occasion to diagnose and treat patients with conditions similar to or
identical to those affecting [Joy]. Specifically, during the course of
my career I’ve provided medical care to thousands of patients in
hospitals, nursing homes and assisted living facilities. I have
provided care to patients who, like [Joy], were suffering from type II
Diabetes, congestive heart failure, coronary artery disease,
hypertension, hyperlipidemia, gastroesophageal reflux disease,
arthritis, COPD, cellulitis, depression, atherosclerosis, abnormal liver
study, impetigo, spondylosis and Myocardial Infarction, and Vitamin
D Deficiency. I have written orders for the care and treatment of
those patients and have supervised the execution of these orders by
RN[’]s[,] LVN’s[,] and CNA’s who were assigned to provide the
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hands-on care to my patients. These orders included orders for the
prevention and treatment of pressure ulcers. As my CV shows I am
a published author on pressure ulcers. I am therefore intimately
familiar with the standards of care for the facilities involved in this
claim as well as the RN[’]s, LVN’s and CNA’s who provid[ed] care to
[Joy].
....
It is my opinion that the failures set forth above were the
proximate cause of [Joy’s] injuries. It is my opinion that to a
reasonable degree of medical probability, had Defendants, and each
of them, provided a safe environment for [Joy], prevented her from
developing pressure ulcers, [Joy’s] life would not have been subject
to pain and suffering leading up to her death from said pressure
ulcer. In addition had proper wound care protocols been in place
which provided for arterial and vascular studies to identify vascular
lesions that could have been repaired she more likely than not would
not have been subject to pain and suffering from her lower extremity
wound resulting in an improved quality of life as a result of requiring
lower doses of pain medication.
Specifically, when prolonged pressure, i.e. longer than two
hours is present only [sic] body part and this pressure exceeds
approximately 32 mmHg, the capillaries are compressed and the
blood flow to the affected part is shut off. Capillaries are the
smallest vessels that connect the arteries and the veins. Capillaries
have very thin walls and it is through the walls of these tiny blood
vessels that oxygen and nutrients pass into the surrounding tissue to
be utilized. All living tissue in the body requires oxygen and
nutrients to stay alive and to function. When the tissues are
deprived of blood flow, oxygen and nutrients, then the death of
tissue occurs, the medical term for this is necrosis, and in layman’s
terms, the tissue simply dies and decays. This is precisely what
happened in this case. Unrelieved pressure on a capillary is just like
placing one’s foot on a garden hose, compressing it, and shutting off
the flow. This is what happened in [Joy’s] case: her capillaries were
compressed; the blood flow was shut off from the tissues; the tissues
died and became necrotic or decayed. This is one process by which
pressure ulcers become larger and this is what happened in this
case.
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The conduct called into question is the failure by [Providers] to
prevent [Joy] from developing pressure ulcers, maintain clinical
records and provide [her] with a safe environment. Defendants, and
each of them, breached the standard of care by allowing [Joy to]
develop[] a stage III pressure ulcer on her coccyx that became
necrotic. It is abundantly clear that Defendants failed to maintain
clinical records, because there is no mention of [Joy] ever having a
pressure ulcer on her coccyx until it was found during her
hospitalization. Had Defendants, and each of them, not breached
the standards of care as defined herein, it is my opinion that to a
reasonable degree of medical certainty, [Joy] would not have been
subjected to pain and suffering leading up to her death.
Ince alleged in his original petition that Providers breached their duty of
care in the following ways:
a. Failing to observe, intervene, and care for [Joy];
b. Neglecting [Joy] to such a degree that she suffered multiple
illnesses, pressure ulcers and death;
c. Failing to provide the medical and nursing care reasonably
required for [Joy’s] known conditions[; and]
d. Failing to provide the appropriate supervision and training to its
staff and personnel that were providing care to [Joy] including
appropriate care related to [her] wound treatment needs at all
relevant times.
He further alleged that Joy “would have been entitled to bring a suit for damages
had she lived” and sought damages for past physical pain, mental anguish,
disfigurement, and physical impairment.
Dr. Griffin’s statements that he has treated thousands of patients with
conditions similar to Joy’s before her death, that he is familiar with the standard
of care involved in treating those patients, that he has given orders for the
treatment of patients in similar situations and supervised nurses in that treatment,
10
and that he is a published author regarding pressure ulcers are sufficient to show
his qualifications to opine regarding Ince’s claim that Providers were allegedly
negligent in their treatment of Joy as it relates to the development of the pressure
ulcer. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 759
(Tex. App.––Houston [14th Dist.] 2007, no pet). Accordingly, we conclude and
hold that the trial court did not abuse its discretion by denying Providers’ motion
to dismiss as to their complaint regarding Dr. Griffin’s qualifications.
Causation
Providers also complained that Dr. Griffin’s report was inadequate on the
issue of causation. Their specific arguments in the trial court were that Dr. Griffin
did not rule out leukemia as the cause of Joy’s death and that any statement that
the pressure sore caused her death as opposed to her other injuries is
ambiguous and conclusory. However, in their brief Providers argue that Dr.
Griffin did not adequately explain how Joy’s pressure ulcer was not inevitable
considering that she showed signs of skin deterioration on admittance to the
Senior Care Bridgeport facility or how Providers’ alleged breach of the standard
of care caused the pressure ulcer to develop. Because Providers raised the
report’s alleged failure to address Joy’s existing skin deterioration in their
objections even though they did not articulate the complaint in the same way as
they do on appeal, we will nevertheless review it. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(a); Tex. R. App. P. 33.1(a); G.T. Leach Builders, LLC v.
Sapphire V.P., L.P., 458 S.W.3d 502, 517 n.12 (Tex. 2015).
11
An expert is required to link his or her conclusions to the facts, but no
“magical words” are required. Bowie Mem’l Hosp., 79 S.W.3d at 53. Dr. Griffin’s
report (1) explains how pressure ulcers form, (2) notes that Providers’ medical
records do not show that they followed any pressure ulcer prevention program
while Joy was a resident and that, immediately upon her arrival at the hospital
from Providers’ facility, the pressure sore was found by the hospital staff, and
(3) states that the failure to monitor and identify “fixable” lesions results in greater
pain and suffering to patients and that Providers’ failure to provide such
identification and monitoring “more likely than not” subjected Joy to greater pain
and suffering, necessitating higher doses of pain medication. We conclude and
hold that Dr. Griffin’s report is therefore sufficient on the issue of causation of
Joy’s alleged injuries related to the pressure ulcer. See, e.g., Select Specialty
Hosp.-Houston Ltd. P’ship v. Simmons, No. 01-12-00658-CV, 2013 WL 3877696,
at *11 (Tex. App.––Houston [1st Dist.] July 25, 2013, no pet.) (mem. op.);
Alexander v. Terrell, No. 09-07-198-CV, 2007 WL 2683536, at *3–4 (Tex. App.––
Beaumont Sept. 13, 2007, no pet.) (mem. op.); Gallardo v. Ugarte, 145 S.W.3d
272, 280 (Tex. App.––El Paso 2004, pet. denied).
12
Accordingly, we overrule Providers’ sole issue and affirm the trial court’s
order denying Providers’ motion to dismiss.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DELIVERED: June 2, 2016
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