Mary McCoy v. Vilma Sandoval ( 2020 )

NUMBER 13-18-00093-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARY McCOY, Appellant,
v.
VILMA SANDOVAL, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
This is an interlocutory appeal of the trial court’s order denying appellant1 Mary
McCoy’s motion to dismiss the health care liability claims of appellee Vilma Sandoval.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014(a)(9); 74.351(a), (b). By two issues,
McCoy argues that (1) Sandoval’s amended expert report fails to explain the purported
1
McCoy is a nurse practitioner at the clinic.
breach of the standard of care and (2) the amended report does not show how the expert
was qualified. We affirm.
I. BACKGROUND
This case is before the Court for a second time. Previously, in McCoy v.
Sandoval, No. 13-16-00520-CV, 2017 WL 2570822 (Tex. App.—Corpus Christi–Edinburg
2017, no pet.), McCoy appealed the trial court’s denial of her objections and motion to
dismiss the same expert report. This Court reversed and remanded back to the trial
court to allow Sandoval a chance to cure deficiencies within the expert report. See id. at
*7. The facts as we previously laid out have not changed. See id. at *1.
Since this Court remanded the case back, Sandoval amended her expert report
written by Federico Roman Ng, M.D. and served it on McCoy on May 1, 2017. McCoy
again objected to the amended report and moved to dismiss Sandoval’s claims.
Sandoval filed a response to McCoy’s objections and motion to dismiss. McCoy filed a
subsequent reply on October 3, 2017. The trial court held a hearing on October 4, 2017
and overruled McCoy’s objections and denied her motion to dismiss on February 5, 2018.
The appeal followed.
II. EXPERT REPORT
A. Standard of Review and Applicable Law
The standards governing the contents of expert reports required by chapter 74 are
well established. Hebert v. Hopkins, 395 S.W.3d 884, 889 (Tex. App.—Austin 2013, no
pet.). Chapter 74 defines an “expert report” as a
fair summary of the expert’s opinion as of the date of the report regarding
applicable standards of care, the manner in which the care rendered by the
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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’s ruling on the sufficiency of an expert’s report is reviewed for an abuse
of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).
Under this review, we defer to the trial court’s factual determinations if they are supported
by the evidence but review its legal determinations de novo. Id. A trial court abuses its
discretion if it acts without reference to guiding rules or principles. Id. However, in
exercising its discretion, it is incumbent upon the trial court to review the reports, sort out
their content, resolve any inconsistencies, and decide whether the reports demonstrate a
good faith effort to show that the plaintiff’s claims have merit. See id. at 144; see TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(l) (“A court shall grant a motion challenging the
adequacy of an expert report only if it appears to the court, after hearing, that the report
does not represent an objective good faith effort to comply with the definition of an expert
report . . . .”).
To constitute a “good faith effort,” as the Texas Supreme Court has explained, the
report must include the expert’s opinion on “each of the three main elements: standard
of care, breach, and causation,” and must provide enough information to fulfill two
purposes with respect to each element: (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. See Jelinek v. Casas, 328 S.W.3d 526,
538–40 & n.9 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
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873, 878–79 (Tex. 2001). A plaintiff does not need to present all of her proof or expert
testimony in a form that would be admissible at trial, but is required to have the expert
“explain the basis for his statements to link his conclusions to the facts” and not merely
state conclusions. Jelinek, 328 S.W.3d at 539–40. The supreme court held that “’[a]
report that merely states the expert’s conclusions about the standard of care, breach, and
causation’ does not fulfill the two purposes of a good-faith effort.” Id. at 539 (quoting
Palacios, 46 S.W.3d at 879).
B. Causation
By her first issue, McCoy argues that Dr. Ng’s amended report “fails to explain how
McCoy’s purported breach of an unidentified standard of care caused Sandoval’s
injuries.” Dr. Ng’s amended report contained the following describing the standard of
care breach:
McCoy’s breach of the standard of care actually and proximately caused
[Sandoval’s] post-traumatic stress disorder, depression, anxiety and
insomnia. During my interview with [Sandoval], she explained to me in
detail how [McCoy] exclaimed in a harsh and insensitive manner that
[Sandoval] “had gonorrhea.” I know from my treatment of patients with
embarrassing venereal diseases that this type of information must be
conveyed delicately in order to limit anxiety, depression and emotional
trauma to the patient. [Sandoval] reported experiencing precisely the type
of stigma, embarrassment, stress, depression and anxiety that I have
observed in other patients suffering from venereal disease. [Sandoval]
also reported that she had not experienced elevated stress, anxiety,
depression and insomnia prior to her encounter with [McCoy] at the Cash
Medical Clinic. Therefore, based on my treatment of numerous patients
with venereal disease over several years, knowledge of the indelicate
conveyance of sensitive information by [McCoy], the report of stress,
anxiety, depression and insomnia in the wake of [Sandoval’s] encounter
with [McCoy], coupled with the absence of any alternative cause for
[Sandoval’s] symptoms, I can state with a high degree of confidence that
[Sandoval]’s stigma, embarrassment, stress, depression, anxiety and
insomnia were the direct and proximate result of the actions of [McCoy] as
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depicted in this report and more thoroughly in [Sandoval]’s Original Petition.
....
The evidence as written in the Petition does not quite give the true flavor of
the stress and anxiety caused by [Sandoval’s] encounter. The true effect
of the performance by the Cash Medical Clinic is best understood in
discussion with [Sandoval] as she recounts her experience. [Sandoval]
presented to The Cash Medical Clinic for care in pain and humility. She
was treated in a manner that did not meet the standard of care as mandated
by Texas State Law and as a result suffered severe embarrassment,
anxiety, and anger. Not only did the effects of [sic] interfere with her life
but the actions of [McCoy] caused the break-up of her relationship that to
date has not been reconciled. During my visit with [Sandoval] she was
found to have signs and symptoms consistent with post-traumatic stress
disorder, depression, anxiety and insomnia. These symptoms were not
present prior to her encounters at Cash Medical Clinic and were of such
severity [Sandoval] was prescribed medications to treat these conditions.
As to causation, an “expert must explain, based on facts set out in the report, how
and why” a health care provider’s breach proximately caused the injury. Columbia Valley
Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017). However, in
cases involving healthcare liability claims with nonmedical injuries, the causal relationship
the plaintiff must show may not always be so clear. Kim v. Hoyt, 399 S.W.3d 714, 718
(Tex. App.—Dallas 2013, pet. denied). An expert report in those types of claims is
“required to show a causal nexus between the complained-of conduct and the injury,
harm, or damages claimed. Id. at 719 (emphasis in original). Here, Dr. Ng’s report
provided the causal nexus between the breach (McCoy’s manner of stating to Sandoval
of a possible venereal disease) to the injury (Sandoval’s severe mental distress). We
conclude Dr. Ng’s report was sufficient to explain the basis for his opinion and therefore,
not conclusory. See id. at 721; see also McCoy, 2017 WL 2570822 at *4. We overrule
McCoy’s first issue.
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C. Qualifications
By her second issue, McCoy alleges that Dr. Ng’s report “offers conclusory
statements regarding his qualifications to address standard of care and causation.” An
expert must satisfy § 74.402 to be qualified to provide opinion testimony regarding
whether a health care provider departed from the accepted standard of care. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B). Section 74.402 lists three specific
qualifications an expert witness must possess to provide opinion testimony on how a
health care provider departed from accepted standards of health care. The expert must:
1. [be] 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;
2. [have] 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. [be] qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of health care.
Id. § 74.402(b). In determining whether a witness is qualified on the basis of training or
experience, § 74.402 also requires the court to consider whether the witness:
1. is certified by a licensing agency of one or more states of the United
States or a national professional certifying agency, or has other
substantial training or experience, in the area of health care relevant
to the claim; and
2. is actively practicing health care in rendering health care services
relevant to the claim.
Id. § 74.402(c). A plaintiff offering expert medical testimony must establish that the
report’s author has expertise regarding “the specific issue before the court which would
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qualify the expert to give an opinion on that particular subject.” Broders v. Heise, 924
S.W.2d 148, 153 (Tex. 1996).
In the report, Dr. Ng writes:
My name is Federico Ng and I am a doctor of Internal Medicine and
Pediatrics in San Antonio, Texas. I have been in practice for over 18 years
in San Antonio not including medical school clerkships and residency in
Dallas and Houston, Texas. As such I am familiar with the laws and
standards that govern the practice of medicine. Moreover, I am familiar
with the standard of care applicable to a Texas nurse practitioner consulting
with and/or treating a patient for a urinary tract infection and/or venereal
disease. I am also familiar with the standard of care that applies to a Texas
nurse practitioner treating a patient who presents with multiple symptoms
including painful urination and diagnosing venereal disease. The standard
of care set forth in the privacy rules and other standards cited below apply
uniformly and equally to physicians and nurse practitioners.
....
I have specialized knowledge, skill, experience[,] training and/or education
advising and counseling patients about various diagnoses, including
sensitive subjects such as venereal disease. I have counseled and treated
patients who have dealt with the physical symptoms and emotional trauma,
stigma and embarrassment that occurs in the wake of diagnosis of venereal
diseases, such as herpes, gonorrhea and chlamydia. I have diagnosed
patients with venereal disease on multiple occasions and understand from
this experience that the indelicate conveyance of such information may
cause emotional distress. It has been my experience that insensitivity and
brashness in conveying this type of diagnosis tends to compound the stigma
and embarrassment felt by a patient who has contracted a venereal
disease, often through no fault of their own.
Previously, we had found Simonson v. Keppard, 225 S.W.3d 868, 872 (Tex.
App.—Dallas 2007, no pet.), to be on point. In Simonson, the Fifth Court of Appeals
concluded that an expert report was inadequate because the expert doctor did not state
that he had any familiarity with the standard of care for a nurse practitioner. Id. In this
report, Dr. Ng has amended his report to now state that he is familiar with the standard of
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care applicable to nurse practitioners who treat and diagnose a patient presenting with
multiple symptoms, including painful urination and venereal diseases. Additionally, Dr.
Ng also elaborates that he has “specialized knowledge, skill, experience[,] training and/or
education advising and counseling patients about various diagnoses.” He also states
that he has “counseled and treated patients” that have dealt with the symptoms and
stigma that “occurs in the wake of diagnosis of venereal diseases” and understands the
manner in which these diagnoses must be handled. See McCoy, 2017 WL 2570822 at
*5–6. These qualifications now fit within the definition of § 74.402(b). See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.402(b). The trial court did not abuse its discretion by
denying McCoy’s objections to Dr. Ng’s qualifications in his amended report. McCoy’s
second issue is overruled.
III. CONCLUSION
We affirm the rulings of the trial court.
GINA M. BENAVIDES,
Justice
Delivered and filed the
30th day of January, 2020.
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