Jacksboro Nursing Operations, LLC v. Nadine Norman, Individually, as the Representative of the Estate of Ashley Norman, as Next Friend of E.N. and J.L., Minors, and on Behalf of All Wrongful Death Beneficiaries ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00380-CV
___________________________
JACKSBORO NURSING OPERATIONS, LLC, Appellant
V.
NADINE NORMAN, INDIVIDUALLY; AS THE REPRESENTATIVE OF THE
ESTATE OF ASHLEY NORMAN, DECEASED; AS NEXT FRIEND OF E.N.
AND J.L., MINORS; AND ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES, Appellee
On Appeal from the 271st District Court
Jack County, Texas
Trial Court No. 19-10-120
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
This is the second appeal involving this healthcare-liability claim brought by
Appellee Nadine Norman, individually; as the representative of the estate of Ashley
Norman, deceased; as next friend of E.N. and J.L., minors; and on behalf of all
wrongful-death beneficiaries (Plaintiff) against Jacksboro Nursing Operations, LLC
d/b/a Faith Community Nursing & Rehabilitation (FCNR). In the prior appeal,
FCNR appealed the trial court’s denial of its motion to dismiss (FCNR’s first motion
to dismiss), a motion that was based on FCNR’s contention that Plaintiff’s expert
report did not meet the requirements of the Texas Medical Liability Act (MLA). See
Jacksboro Nursing Operations, LLC v. Norman, No. 02-20-00262-CV, 2021 WL 1421431,
at *1 (Tex. App.—Fort Worth Apr. 15, 2021, no pet.) (mem. op.). While we rejected
many of FCNR’s arguments in that appeal, we agreed with it in one respect, holding
that Plaintiff’s expert report “fail[ed] to adequately state what actions FCNR should
have taken that would have avoided a breach of the standard of care it owed directly
to Ashley.” Id. We reversed the trial court’s order denying FCNR’s first motion to
dismiss and remanded the case to the trial court to determine whether a thirty-day
extension should be granted to correct the deficiency. Id. at *16.
Following our remand, the trial court granted Plaintiff an extension to amend
the expert report, and Plaintiff served FCNR with an amended expert report. FCNR
filed a motion to dismiss (FCNR’s second motion to dismiss), arguing that Plaintiff’s
2
amended expert report did not meet the requirements of the MLA, and the trial court
denied FCNR’s second motion to dismiss. In this appeal, FCNR raises four issues—
all based on the contention that Plaintiff’s amended expert report does not meet the
requirements of the MLA. Because we will reject Plaintiff’s contentions that the
amended expert report does not meet the requirements of the MLA, we will affirm
the trial court’s order denying FCNR’s second motion to dismiss.
II. BACKGROUND
Plaintiff filed suit against FCNR and two Doe Defendants.1 Plaintiff’s petition
alleged that Ashley was admitted into “Defendants’ facility” in 2018 and that she
“suffered severe personal injuries due to the lack of care provided by Defendants.”
The petition further alleged that “Defendants’ treatment of [Ashley] was continuously
tortious and resulted in her tragic and untimely death.” As we summarized in our
opinion from the first appeal,
The petition [stated] that the Doe Defendants allegedly raped Ashley
while she was a patient at FCNR. Based on this act, Plaintiff’s petition
alleged causes of action against all the Defendants for sexual assault,
false imprisonment, assault and battery, offensive physical contact,
intentional infliction of emotional distress, and gross negligence. Against
FCNR, the petition alleged causes of action for negligence, negligent
hiring, negligent training, negligent supervision, and negligent retention.
The petition sought survival damages, which included Ashley’s past
physical pain and suffering and mental anguish. Plaintiff, on her own
behalf and on behalf of the minors for whom she acted as next friend,
sought various forms of wrongful-death damages, such as pecuniary loss,
loss of consortium, and mental anguish.
1
The Doe Defendants are not parties to this appeal.
3
Id. at *1.
In an effort to comply with Section 74.351(a) of the MLA, Plaintiff served
FCNR with an expert report made by Dr. David A. Smith (the First Smith Report).
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (requiring a healthcare-liability
claimant to serve an expert report within 120 days of filing suit). In our opinion from
the first appeal, we summarized the First Smith Report as follows:
But, in summary, the report claims that Ashley was thirty years of age
and suffered from Multiple Sclerosis. At the time she was a patient at
FCNR, she provided a urine sample that tested negative for any sexually
transmitted disease. A test administered approximately one month after
Ashley’s admission and after she had been transferred to another facility
and then transferred back to FCNR stated that she had contracted
trichomonas. Dr. Smith described trichomonas as a sexually transmitted
disease. Dr. Smith reported that notations in Ashley’s medical records
that he reviewed indicated “that the trichomonas was thought to be due
to sexual contact that [had] occurred at FCNR.”
Dr. Smith’s report asserted that both Ashley’s medical records
that he reviewed and Ashley’s statement to her mother (Plaintiff)
showed that Ashley had been sexually assaulted while she was a patient
at FCNR. The report outlined the standard of care that Dr. Smith
opined was due a patient such as Ashley. The report also generally
outlined what Dr. Smith viewed as numerous breaches of the standard
of care by the Doe Defendants who assaulted Ashley and breaches by
FCNR’s failure to investigate Ashley’s outcries, to keep her safe, and to
supervise its employees.
Jacksboro Nursing, 2021 WL 1421431, at *2.
FCNR filed objections to the First Smith Report, challenging Dr. Smith’s
qualifications and contending that the report failed to adequately address causation
and injury and was conclusory in its description of how FCNR had breached the
4
standard of care. The trial court overruled FCNR’s objections to the First Smith
Report. FCNR filed a notice of appeal from that ruling, but “we sent the parties a
letter questioning whether an order denying objections made to an expert report but
not overruling a motion to dismiss was an appealable interlocutory order.” Id. FCNR
then shifted gears and filed its first motion to dismiss, incorporating the arguments it
had made in its objections to the First Smith Report. The trial court denied FCNR’s
first motion to dismiss, and FCNR appealed that ruling to our court.
On appeal, we rejected FCNR’s contentions (1) that Dr. Smith was unqualified
to make the First Smith Report; (2) that Plaintiff’s claim should be dismissed because
the First Smith Report failed to state that there was a causal link between Ashley’s
injury and her death; and (3) that the First Smith Report failed to support a theory
that FCNR was vicariously liable for the actions of its employees. Id. at *1. We held,
however, that the First Smith Report was “deficient in one regard,” stating that “it
fail[ed] to adequately state what actions FCNR should have taken that would have
avoided a breach of the standard of care it owed directly to Ashley.” Id. Noting that
the remedy for that deficiency was not dismissal of Plaintiff’s claim, we reversed the
trial court’s order denying FCNR’s first motion to dismiss and remanded the case to
the trial court to determine whether a thirty-day extension should be granted to
correct the deficiency. Id.
On remand, the trial court entered an order giving Plaintiff additional time to
amend the First Smith Report. Plaintiff later served FCNR with an amended expert
5
report by Dr. Smith (the Second Smith Report). We will explore the Second Smith
Report in detail later in the opinion when addressing FCNR’s issues. But, in
summary, the Second Smith Report contains sections on Dr. Smith’s qualifications,
Dr. Smith’s knowledge of the applicable standard of care and legal terms of art,
factual information relating to Ashley’s medical history and care at FCNR, breaches of
the standard of care by FCNR and others, and causation.
After Plaintiff served FCNR with the Second Smith Report, FCNR filed its
second motion to dismiss, arguing that the Second Smith Report did not meet the
requirements of Section 74.351 of the MLA. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351. FCNR alleged that the Second Smith Report failed to cure the inadequacies
of the First Smith Report, that the Second Smith Report did not support Plaintiff’s
damages theories, that Dr. Smith was not qualified, that the Second Smith Report
failed to adequately address causation and injury, and that the Second Smith Report
was conclusory and failed to sufficiently describe how FCNR breached the standard
of care. Plaintiff responded, and following a hearing, the trial court signed an order
denying FCNR’s second motion to dismiss. This appeal followed.
III. DISCUSSION
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss under Section 74.351 for
an abuse of discretion. Jackson v. Kindred Hosps. Ltd. P’ship, 565 S.W.3d 75, 80 (Tex.
App.—Fort Worth 2018, pet. denied); see Am. Transitional Care Ctrs. of Tex., Inc. v.
6
Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001). A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner without reference to any guiding rules or
principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Jackson, 565 S.W.3d at
80–81. In reviewing the adequacy of an expert report under Section 74.351, we bear
in mind that the Legislature’s goal was to deter baseless claims, not to block earnest
ones. Jackson, 565 S.W.3d at 81; Gonzalez v. Padilla, 485 S.W.3d 236, 242 (Tex. App.—
El Paso 2016, no pet.).
B. The Law Applicable to FCNR’s Challenge to the Second Smith Report
In the first appeal, we detailed the law applicable to FCNR’s challenge to the
First Smith Report. See Jacksboro Nursing, 2021 WL 1421431, at *2–4. That law is
equally applicable to FCNR’s challenge to the Second Smith Report. In our opinion
in the prior appeal, we stated,
“Chapter 74 of the Civil Practice and Remedies Code, also known as the
[MLA], requires health care liability claimants to serve an expert report
upon each defendant not later than 120 days after that defendant’s
answer is filed.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223
(Tex. 2018) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)). The
report requirement functions “to weed out frivolous malpractice claims
in the early stages of litigation, not to dispose of potentially meritorious
claims.” Id.Jacksboro Nursing, 2021 WL 1421431, at *2. We also noted that the MLA requires an
expert report to
provide[ ] a fair summary of the expert’s opinions as of the date of the
report regarding applicable standards of care[;] the manner in which the
care rendered by the . . . health care provider failed to meet the
7
standards[;] and the causal relationship between that failure and the
injury, harm, or damages claimed.
Id. at *3 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6)).
We explained that “[t]he test applied by the trial court in determining the
sufficiency of the report is one of objective good faith.” Id. (citing 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 in Subsection (r)(6).”). We also explained that the “Texas Supreme
Court has held that a good-faith effort occurs when a report ‘(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.’” Id. (quoting Abshire, 563 S.W.3d
at 223). We further stated,
Various general principles guide the determination of whether an expert
report is sufficient. “A report ‘need not marshal all the claimant’s proof,’
but ‘a report that merely states the expert’s conclusions about the
standard of care, breach, and causation’ is insufficient.” [Abshire,
563 S.W.3d at 223 (quoting Palacios, 46 S.W.3d at 877).] Nor does a
report have to meet the standards of summary-judgment evidence.
Miller v. JSC Lake Highlands Operations, 536 S.W.3d 510, 517 (Tex. 2017)
(“We remain mindful that an ‘adequate’ expert report ‘does not have to
meet the same requirements as the evidence offered in a summary-
judgment proceeding or at trial.’” (quoting Scoresby v. Santillan,
346 S.W.3d 546, 556 n.60 (Tex. 2011))). Also, an expert report need not
convince the reader that its conclusions are believable and reasonable.
See Abshire, 563 S.W.3d at 226 (stating that at the “preliminary [expert-
report] stage, whether th[e] standards [referenced in the report] appear
reasonable is not relevant to the analysis of whether the expert’s opinion
constitutes a good-faith effort” (quoting Miller, 536 S.W.3d at 516–17)).
8
Jacksboro Nursing, 2021 WL 1421431, at *3.
As to the standard of care, we stated that “[t]o adequately identify the standard
of care, an expert report must set forth specific information about what the defendant
should have done differently.” Id. at *4 (internal quotations omitted) (quoting Abshire,
563 S.W.3d at 226). And we noted that “[w]hile the Act requires only a fair summary
of the standard of care and how it was breached, even a fair summary must set out
what care was expected[ ] but not given.” Id. (internal quotations omitted) (quoting
Abshire, 563 S.W.3d at 226).
As to causation, we stated that “the report must explain how and why the
alleged negligence caused the injury in question.” Id. (internal quotations omitted)
(quoting Abshire, 563 S.W.3d at 224). We noted that “[c]onclusory descriptions of
causation are not adequate” but that “[i]n satisfying th[e] how and why requirement,
the expert need not prove the entire case or account for every known fact; the report
is sufficient if it makes a good-faith effort to explain, factually, how proximate cause is
going to be proven.” Id. (internal quotations omitted) (quoting Abshire, 563 S.W.3d at
224). We recognized that “[t]he sufficiency of the expert report’s causation statement
should be viewed in the context of the entire report.” Id. (quoting Columbia Med. Ctr.
of Arlington Subsidiary L.P. v. L.M., No. 02-17-00147-CV, 2018 WL 1095746, at *7
(Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem. op.)). Finally, we stated that
“the detail needed to establish a causal link generally is proportional to the complexity
9
of the negligent act giving rise to the claim.” Id. (quoting Columbia Med. Ctr., 2018 WL
1095746, at *7). “In other words, a ‘causation opinion is not conclusory simply
because it is not complex.’” Id. (quoting Columbia Med. Ctr., 2018 WL 1095746, at *7).
C. FCNR’s Complaint That the Second Smith Report Is Deficient Because It
Does Not Adequately Address FCNR’s Breach of the Standard of Care
In its first issue, FCNR complains that the Second Smith Report is deficient
because it does not adequately address FCNR’s breach of the standard of care.
FCNR argues that the Second Smith Report failed to cure the deficiencies of the First
Smith Report because “Dr. Smith, again, failed to identify what specific actions should
have been taken by [FCNR] and, more importantly, how such actions would have
prevented [Ashley’s] alleged injury[.]”
In our opinion in the first appeal, we stated that “an expert report is deficient if
it merely states the conclusion that the health care provider failed to protect a patient
in violation of the standard of care without some indication of what the provider
should have done differently.” Id. at *11. We held that the First Smith Report
“fail[ed] to adequately take this second step,” noting that the First Smith Report
lacked “a description of what FCNR should have done differently.” Id. at *11, 14.
We stated that while the First Smith Report “reference[d] that FCNR should have
provided additional or increased measures, those general statements . . . fail[ed] to
state what specific steps should have been taken.” Id. at *14.
10
Notably, we pointed out that the First Smith Report “does highlight one thing
that FCNR should have done differently, which is taking the step of not permitting
males to be in Ashley’s room.” Id. We noted, however, that “[t]he problem is that
the [First Smith Report] has a paragraph that, though it is a muddle, can be read to
suggest that FCNR did take this step.” Id. The pertinent paragraph in the First Smith
Report stated,
There are also notations that Ashley was reported to have experienced
multiple episodes of sexual assault at FCNR by FCNR employees.
Importantly, it was also noted in numerous locations that Ashley did not
want any males present and [that] she only wanted female RNs and
PCTs. It appears that the facility complied with this as there are
notations of “females only” within the records.
When we considered that paragraph in our opinion in the first appeal, we stated that
“[t]he reader is left to guess whether the ‘facility’ referred to is FCNR or one of the
other facilities referenced in the report as places where Ashley received treatment.”
Id. We further stated, “Certainly, even if FCNR took the step of complying with
Ashley’s request but delayed doing so after her outcries, leading to additional assaults,
there might be an indication of causation, but the report does not say this.” Id.
The Second Smith Report adds additional insight into which “facility”
complied with Ashley’s request for “no males” and adds additional language regarding
FCNR’s breaches of the standard of care. In discussing the factual information
relating to Ashley’s medical history and care at FCNR, the Second Smith Report
states, in pertinent part,
11
From my review of the records provided, it appears that [Ashley] was a
30 year-old female at the time of her admission to FCNR. Ashley
suffered from Multiple Sclerosis (MS), with abnormalities of gait and
mobility, lack of coordination, cognitive communication deficit, pain,
and was admitted to FCNR on August 21, 2018. . . . Upon admission,
Ashley received a urinalysis which did not return a positive result for any
sexually transmitted disease (STD), including trichomonas.
....
. . . Ashley’s condition declined while at FCNR and she was
readmitted to UTSW on November 17, 2018. On that date, the records
indicate that UTSW was called and informed that trichomonas had been
found in Ashley’s urine. UTSW confirmed the trichomonas and began
treatment.
It is important to note what trichomonas is and how it is
contracted. Trichomoniasis is a sexually transmitted disease. The
disease is contracted during sex when the trichomonas vaginalis parasite
passes from the infested person to the uninfested person. There is no
other known mechanism to acquire the disease. Trichomoniasis can
result in painful urination, itching, burning, redness and soreness of the
genitals, and a change in vaginal discharge that can involve a fishy smell.
Without proper treatment, the infection can last for months or years.
While infested, the trichomoniasis can make it incredibly unpleasant and
painful to have sex.
The records also indicate in numerous locations that the
trichomonas was thought to be due to sexual contact that occurred at
FCNR. The only notations in the medical records regarding the possible
source of the trichomonas is that it was contracted while at FCNR.
There are also notations that Ashley was reported to have experienced
multiple episodes of sexual assault at FCNR by FCNR employees.
Importantly, it was also noted in numerous locations in the UTSW
record that Ashley did not want any males present and she only wanted
female RNs and PCTs (personal care technicians aka nursing assistants).
After [Ashley’s] request for “no males[,”] FCNR delayed in initiating this
new order, which resulted in additional assaults. However, it appears
that UTSW eventually complied with this request as there are notations
of “females only” within the UTSW records. To be clear, no such
12
documentation of “females only” caregivers is found in FCNR records
prior to this admission to UTSW.
Finally, Nadine Norman informed me that Ashley complained
that she was raped numerous times by two men that worked at FCNR.
Ashley claimed that one would rape her while the other would stand by
the door. Nadine also stated that Ashley had informed two FCNR
nurses of the assault, but that FCNR did not take any action to prevent
additional assaults, and that Ashley continued to be sexually assaulted.
It is also important to note that [Ashley] suffered from MS and
numerous cognitive deficiencies which would probably render her
mentally incapacitated and unable to consent to sexual contact. . . . In
my opinion, Ashley was not able to give consent to have sexual
intercourse. The standard of care required FCNR to ensure no person,
staff or otherwise, was permitted to have sexual intercourse with Ashley.
In discussing FCNR’s “breaches of standard of care,” the Second Smith Report
states,
Standard of care for a skilled nursing facility requires that the facility
maintain an environment in which the resident is safe from abuse and
able to maintain dignity. This standard of care concerns prevention of
an initial sexual assault perpetrated on the resident by employees of the
facility. To meet this standard of care that is owed directly to the
patient, FCNR should have provided additional or increased measures to
protect its patients. What FCNR should have done differently is FCNR
should have had an adequate policy and procedure concerning
appropriate behavior of employees in provision of care to residents.
They should have provided appropriate in-service training on resident
rights and safety to existing employees and “new hires[.”] They should
have maintained a system that required sufficient supervision of certified
nursing assistants by the on duty nursing staff to recognize prolonged
absence from assigned tasks. And, they should have done “background
checks” on potential employees meeting industry standards and state
regulations. I have reviewed no evidence indicating that any of these
requirements of the standard of care for a skilled nursing facility were
met. Given that an initial sexual assault did occur, with a reasonable
degree of medical probability, it is my opinion that one or more of these
required elements to meet the standard of care was deficient. The
13
patient’s right to be protected from sexual assault in a vulnerable time of
illness was not provided to Ashley. As a physician and not a lawyer, it is
my understanding that an employer is responsible for the acts of one’s
employees.
The following discussion of breaches of the standard of care
relates to failure to prevent repeated resident abuse in the manner of
sexual assault. It is the standard of care for the skilled nursing facility to
have in place a process by which allegations of abuse are received and
invariably investigated. Typically, this means that an Abuse Coordinator
(usually the facility administrator) receives such complaints, reports them
to the Department of Aging and Disability Services (DADS) and
performs an investigation. All allegations of abuse are required to be
reported to the DADS, regardless of their apparent validity. It is the
standard of care for the investigation to be undertaken promptly and in a
manner that protects the resident from repeated abuse, or retaliation.
To meet the standard of care, when the alleged perpetrator(s) is/are
known, it is the standard of care to remove them from patient care
duties until the investigation is resolved. When the alleged perpetrator(s)
is/are unknown, then this is not possible, but the investigation should
focus on identifying the perpetrator(s). Any reasonable methodology
would, in my opinion, meet the standard of care. Examples of tactics
that FCNR could have done differently to ensure reports to nursing staff
were processed in a way that would have prevented additional assaults of
Ashley would include obtaining a rape examination as soon as possible,
investigating what males were working at the time of the alleged assault,
doing an actual or virtual “line-up” of male employees with Ashley, a
review of all male employees’ background checks and personnel records
for suspicious content albeit not meeting the criteria to refrain from
hiring or termination, clandestine deployment of camera monitoring of
Ashley’s room or, alternatively, assignment of a trusted female observer
to closely monitor those coming and going from Ashley’s room, and
assignment of only females to Ashley’s care. I did not see evidence in
the medical record or other materials reviewed to date that provide
evidence that this standard of care was met. Given that repeated sexual
assaults did occur, with a reasonable degree of medical probability it is
my opinion that one or more of the elements of this standard of care
was deficient. The breach of the standard of care by FCNR was the
proximate cause of cumulative physical and emotional distress suffered
by Ashley as a result of repeated sexual assault. Whether transmission of
trichomonas occurred with the initial assault or one of the subsequent
14
assaults is unknown but it is clear that she did suffer trichomonas
infestation as a result of sexual assault during her stay at FCNR.
The actions of FCNR appear to establish a pattern of conscious
indifference to patient safety involving cover-up and have fallen well
below the required standard of care by allowing any additional sexual
assaults. After notification of the allegation, FCNR staff with this
knowledge became accessories after the fact in my opinion as a physician
(not a lawyer).
Having reviewed the Second Smith Report, we conclude that it is sufficient
with respect to its discussion of FCNR’s breach of the standard of care because it
provides specific information about what FCNR should have done differently. See
Abshire, 563 S.W.3d at 226; Jacksboro Nursing, 2021 WL 1421431, at *4. First, the
Second Smith Report clears up the ambiguity of the First Smith Report regarding
which facility complied with Ashley’s request that she not be treated by males. In this
regard, the Second Smith Report explains that “there are notations of ‘females only’
within the UTSW records” but that “no such documentation of ‘females only’
caregivers is found in the FCNR records prior to this admission to UTSW.” As we
stated in our opinion in the first appeal, this “highlight[s] one thing that FCNR should
have done differently, which is taking the step of not permitting males to be in
Ashley’s room.” Jacksboro Nursing, 2021 WL 1421431, at *14.
Moreover, the Second Smith Report contains a list of things that FCNR could
have done differently in this case,2 including
In its brief, FCNR argues that because the Second Smith Report does not state
2
whether Ashley’s acquisition of trichomonas occurred during the initial assault or
15
obtaining a rape examination as soon as possible, investigating what
males were working at the time of the alleged assault, doing an actual or
virtual “line-up” of male employees with Ashley, a review of all male
employees’ background checks and personnel records for suspicious
content albeit not meeting the criteria to refrain from hiring or
termination, clandestine deployment of camera monitoring of Ashley’s
room or, alternatively, assignment of a trusted female observer to closely
monitor those coming and going from Ashley’s room, and assignment of
only females to Ashley’s care.
According to Dr. Smith, FCNR’s failure to do these things breached FCNR’s
standard of care owed to Ashley.
Because the Second Smith Report provides specific information about what
FCNR should have done differently, we cannot say that the trial court abused its
discretion by denying FCNR’s second motion to dismiss. See Abshire, 563 S.W.3d
at 226; Jacksboro Nursing, 2021 WL 1421431, at *4. We overrule FCNR’s first issue.
subsequent assaults, the Second Smith Report is insufficient. According to FCNR, if
the acquisition had occurred during the initial assault, then any subsequent actions
taken by FCNR—such as the assignment of only females to Ashley’s care—would not
have prevented her injury. But the acquisition of trichomonas was not the only injury
reported by Ashley. According to the Second Smith Report, Ashley reported being
“raped numerous times” and suffered from “the resulting mental, emotional, and
physical trauma of repeated sexual assault.”
16
D. FCNR’s Complaint That the Second Smith Report Is Deficient Because It
Fails to Support Either a Wrongful-Death or Survival Theory of Recovery
In its second issue, FCNR complains that the Second Smith Report is deficient
because it fails to support either a wrongful-death or survival theory of recovery.3 As
we explained in our opinion in the first appeal, Plaintiff need not file an expert report
supporting both her wrongful-death and survival theories of recovery. Jacksboro
Nursing, 2021 WL 1421431, at *9 (“[I]f Plaintiff filed an adequate report to support
the claim of a breach of the standard of Ashley’s care and her survival claim, then the
report need not go further and support the wrongful-death claim to avoid dismissal.”);
see Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (“No provision of the
[MLA] requires an expert report to address each alleged liability theory.”).
Here, the Second Smith Report supports Plaintiff’s survival theory of recovery
because it provides information giving FCNR a “fair summary” of Ashley’s injuries
prior to her death. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). In this
3
The distinction between survival claims and wrongful-death claims is as
follows: Survival claims result from Texas Civil Practice and Remedies Code Section
71.021, which provides that a claim for injury to a person’s health does not abate on
death and may be prosecuted by “heirs, legal representatives, and the estate of the
injured person.” Tex. Civ. Prac. & Rem. Code Ann. § 71.021(a), (b). A wrongful-
death claim is generally covered by the Texas Wrongful Death Act, and “damages
recoverable in a wrongful[-]death action are for the exclusive benefit of the defined
statutory beneficiaries and are meant to compensate them for their own personal
loss.” Cunningham v. Haroona, 382 S.W.3d 492, 508 (Tex. App.—Fort Worth 2012, pet.
denied) (citing Tex. Civ. Prac. & Rem. Code Ann. § 71.002, defining wrongful-death
cause of action). “Damages recoverable by the statutory beneficiaries under the
Wrongful Death Act include pecuniary losses to the beneficiaries, such as loss of
inheritance and non-economic damages to compensate for the losses caused by the
destruction of the familial relationship.” Id.17
regard, the Second Smith Report describes Dr. Smith’s opinion that Ashley
“suffer[ed] trichomonas infestation as a result of sexual assault during her stay at
FCNR” and that she “suffered from the pain of the infestation” and “suffered from
the resulting mental, emotional, and physical trauma of repeated sexual assault.” We
reject FCNR’s assertion that the Second Smith Report “does not present any
meaningful information to support a survival claim.” FCNR’s analysis of the issue
focuses only on Ashley’s acquisition of trichomonas but fails to take into account
Ashley’s other injuries described in the report, namely the repeated sexual assaults and
the trauma from those assaults, not to mention that the report specifically describes
that Ashley “suffered from the pain of the infestation.”
Because the Second Smith Report provides information giving FCNR a “fair
summary” of Ashley’s injuries prior to her death, we cannot say that the trial court
abused its discretion by denying FCNR’s second motion to dismiss. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(r)(6). We overrule FCNR’s second issue.
E. FCNR’s Complaint That the Second Smith Report Is Deficient Because It
Does Not Adequately Address Causation
In its third issue, FCNR complains that the Second Smith Report is deficient
because it does not adequately address causation. FCNR argues that the Second
Smith Report “fail[s] to meaningfully discuss medical causation or how any alleged
breach in the standard of care proximately caused an injury to [Ashley].” As noted
above, the Second Smith Report details things FCNR could have done differently to
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prevent additional assaults of Ashley, including investigating what males were working
at the time of the alleged assaults, doing a “line-up” of male employees with Ashley,
monitoring Ashley’s room with a camera, assigning a female observer to closely
monitor those coming and going from Ashley’s room, and assigning only females to
Ashley’s care. The Second Smith Report goes on to state that the breach of the
standard of care by FCNR for failing to do these things “was the proximate cause of
cumulative physical and emotional distress suffered by Ashley as a result of repeated
sexual assault.”
Under a heading labeled “causation,” the Second Smith Report goes on to
state,
All of the above breaches of the standard of care are the proximate
cause of [Ashley’s] damages. Prior to entering FCNR, [Ashley] did not
have trichomonas or any other sexually transmitted infection according
to her urinalysis and her admission evaluations. Trichomonas is only
transferred by sexual contact and therefore it is more likely than not,
within a reasonable degree of medical probability, Ashley acquired
trichomonas from sexual contact while a patient at FCNR. Given the
dates and results of the urinalysis, it is more likely than not, within a
reasonable degree of medical probability that Ashley’s assault occurred
while in the care of FCNR . . . . Had John Doe and Richard Roe not
sexually assaulted Ashley, she would not have contracted trichomonas,
would not have suffered from the pain of the infestation, and would not
have suffered from the resulting mental, emotional, and physical trauma
of repeated sexual assault.
Furthermore, had FCNR provided a safe environment and
properly supervised the direct care staff, [Ashley] would have never been
sexually assaulted. A safe environment obviously requires a setting in
which patients are free from sexual assault. The patient’s right to be
protected from sexual assault in a vulnerable time of illness was not
provided to Ashley. Additionally, had FCNR complied with the
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standard of care requiring it to conduct a proper investigation after the
first outcry of sexual assault, it is more than likely that a rape
examination would have been timely performed to document the rape
and institute post rape counse[l]ing to minimize psychological distress
and to assist in identification of perpetrators. No subsequent sexual
assault would have occurred. Males would not have been permitted in
her room and the rapists would have likely been apprehended by the
authorities. However, FCNR failed to take any of the above actions and
allowed [Ashley] to be continuously sexually assaulted.
The failure to investigate also permitted John Doe and Richard
Roe to remain employed and present at FCNR. FCNR chose to turn a
blind eye to the direct care providers who were sexually assaulting
Ashley. Had the investigation been performed and the standard of care
not been breached, John Doe and Richard Roe would have been
terminated and Ashley would not have continued to suffer from the
repeated sexual assaults. Other residents would not have remained at
risk. She would have been provided timely treatment of trichomonas
and post rape counseling.
Having reviewed the Second Smith Report, we conclude that it is sufficient
with respect to its discussion of causation because it explains how and why the alleged
negligence caused Ashley’s injuries. See Abshire, 563 S.W.3d at 224; Jacksboro Nursing,
2021 WL 1421431, at *4. The Second Smith Report explains that FCNR’s failure to
take the steps detailed above to prevent subsequent sexual assaults caused Ashley to
suffer additional assaults and trauma. We disagree with FCNR’s assertion that the
Second Smith Report “fails to identify any alleged injury purportedly sustained by
[Ashley]” but instead only identifies that Ashley “contracted trichomonas at some
unknown point in time.” Apart from the trichomonas infestation itself, the Second
Smith Report also identifies that Ashley had been repeatedly sexually assaulted and
suffered trauma as a result of the assaults. We also disagree with FCNR’s assertion
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that Dr. Smith did not consider the possibility that Ashley acquired the trichomonas
through a consensual sexual encounter. In the Second Smith Report, Dr. Smith
opines that “Ashley was not able to give consent to have sexual intercourse.” See
Hickory Trail Hosp., L.P. v. Loya, No. 05-16-00453-CV, 2016 WL 7376559, at *3 (Tex.
App.—Dallas Dec. 20, 2016, pet. denied) (mem. op.) (“For our review of the
adequacy of a medical expert report, we take the allegations in the report as true.”)
(citing Marino w. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.]
2012, pet. denied)).
Because the Second Smith Report explains how and why FCNR’s alleged
negligence caused Ashley’s injuries, we cannot say that the trial court abused its
discretion by denying FCNR’s second motion to dismiss. See Abshire, 563 S.W.3d at
224; Jacksboro Nursing, 2021 WL 1421431, at *4. We overrule FCNR’s third issue.
F. FCNR’s Complaint That the Second Smith Report Is Deficient Because It
Is Premised on a Theory That FCNR Is Liable for Phantom Sexual
Assaults
In its fourth issue, FCNR argues that the Second Smith report is deficient
because “it is premised upon a theory that [FCNR] is liable for a phantom sexual
assault purportedly committed by an unidentified assailant not alleged to be in the
course and scope of the employee’s employment.” The crux of FCNR’s argument
seems to be that because “[s]exual assaults are not within the course and scope of
employment,” FCNR “cannot be held vicariously liable for sexual assaults allegedly
committed by its employees.”
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But, as we explained in our opinion in the first appeal, “when an expert report
supports a theory of direct liability for negligence, it is sufficient even though it does
not support a theory of vicarious liability.” Jacksboro Nursing, 2021 WL 1421431, at
*10. We went on to state that if Dr. Smith amended his report so that it was
“sufficient to establish the direct liability of FCNR, Plaintiff will satisfy her obligation
to present a report establishing a health care liability claim” irrespective of whether
the amended report also supported a theory of vicarious liability. Id.Here, the Second Smith Report was amended to sufficiently describe the direct
liability of FCNR. As detailed above, the Second Smith Report sufficiently described
how FCNR breached its duty of care owed to Ashley and how that breach
proximately caused Ashley’s injuries prior to her death. Thus, we cannot say that the
trial court abused its discretion by denying FCNR’s second motion to dismiss.4 See id.We overrule FCNR’s fourth issue.
IV. CONCLUSION
Having overruled FCNR’s four issues, we affirm the trial court’s order denying
FCNR’s second motion to dismiss.
4
Because we have determined that the Second Smith Report sufficiently
describes FCNR’s direct liability, we need not consider Plaintiff’s alternative argument
that FCNR should be held vicariously liable because it ratified the Doe Defendants’
actions. See Tex. R. App. P. 47.1.
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/s/ Dana Womack
Dana Womack
Justice
Delivered: March 24, 2022
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