Mendi Ramsay and Rochelle Alvarado v. Holly Ferguson, Individually, and as Personal Representative of the Estate of Cynthia Pierce ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00392-CV
MENDI RAMSAY AND ROCHELLE ALVARADO, APPELLANTS
V.
HOLLY FERGUSON, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF CYNTHIA PIERCE, DECEASED, APPELLEE
On Appeal from the 53rd District Court
Travis County, Texas1
Trial Court No. D-1-GN-23-000736, Honorable Maria Cantú Hexsel, Presiding
February 23, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellants, Mendi Ramsay and Rochelle Alvarado, appeal the trial court’s denial
of their motion to dismiss this health care liability lawsuit filed against them by Holly
1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should
a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this
appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
Ferguson, individually and as personal representative of the Estate of Cynthia Pierce.
We affirm the trial court’s order.
BACKGROUND2
Ferguson’s 73-year-old mother, Cynthia Pierce, was a resident at Harvest
Renaissance Austin, an assisted living facility. In February of 2021, during Winter Storm
Uri, the facility lost power and did not have sufficient heat. On the morning of February
17, Pierce was in her room, showing signs of illness and disorientation. Her bedding was
soiled. Staff members washed Pierce and returned her to her bed, but the window in her
room was left open. That afternoon, Pierce was found disoriented and cold. Emergency
responders arrived and recorded her temperature at 94.2 degrees. They transported
Pierce to a hospital, where she died of hypothermia that same day.
Ferguson filed this lawsuit against Harvest Renaissance; its executive director,
Ramsay; and its wellness director, Alvarado, a licensed vocational nurse.3 Ferguson
asserted, among other things, that Harvest Renaissance, Ramsay, and Alvarado failed
to provide a safe environment for Pierce, failed to appropriately monitor Pierce’s
condition, failed to properly equip the facility with emergency power, and failed to take
reasonable measures to prevent Pierce from developing hypothermia.
As required by Chapter 74 of the Civil Practice and Remedies Code, Ferguson
filed expert reports to support her health care liability claims. Licensed nursing home
2 Given the procedural posture of this case, we draw background facts from the allegations in
Ferguson’s pleadings.
3 Harvest Renaissance is not a party to this appeal.
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administrators Gregory D. Bearce and William H. James, Jr., provided reports addressing
the applicable standard of care and the breach thereof, and forensic pathologist Paul S.
Uribe, M.D., provided a report addressing Pierce’s cause of death. Appellants filed a
motion to dismiss in which they argued that Ferguson’s experts were not qualified to
address standard of care and breach because they are not medical care providers who
treat patients. The trial court denied Appellants’ motion, and Appellants brought this
interlocutory appeal.
ANALYSIS
Under the Texas Medical Liability Act (TMLA), a health care liability claim may not
proceed until the plaintiff has made a good-faith effort to demonstrate that a qualified
medical expert believes that a defendant’s conduct breached the applicable standard of
care and caused the alleged injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l),
(r)(6). A claimant may satisfy the expert report requirement by “serving reports of
separate experts . . . regarding different issues arising from the conduct of a physician or
health care provider, such as issues of liability and causation.” Id. § 74.351(i); Mitchell v.
Satyu, No. 05-14-00479-CV, 2015 Tex. App. LEXIS 6127, at *12 n.3 (Tex. App.—Dallas
June 17, 2015, no pet.) (mem. op.) (noting “expert report requirement may be satisfied by
utilizing more than one expert report” and that “a court may read the reports together”).
The purpose of an expert report under the TMLA is to inform the defendant of the
specific conduct the plaintiff has called into question and to provide the trial court with a
basis to determine whether the plaintiff’s claims have merit. Patel v. Williams, 237 S.W.3d
901, 906 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The expert report requirement
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is intended to “weed out frivolous malpractice claims in the early stages of litigation, not
to dispose of potentially meritorious claims.” Abshire v. Christus Health Se. Tex., 563
S.W.3d 219, 223 (Tex 2018) (per curiam). If a claimant fails to file an adequate expert
report as required by the TMLA, the trial court must dismiss the suit with prejudice and
award reasonable attorney’s fees and costs to the affected defendant. E.D. ex rel. B.O.
v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022) (per curiam). We review
a trial court’s ruling on a motion to dismiss under section 74.351 for an abuse of discretion.
American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.
2001).
Issue 1: Expert Qualifications
In their first issue, Appellants assert that the trial court abused its discretion in
denying their motion to dismiss because Ferguson’s proffered experts are not qualified to
opine on the applicable health care standards or on Appellants’ alleged breach of those
standards. Appellants do not challenge the adequacy of the expert reports in addressing
the applicable standards of care, breach, or causation.
Under the TMLA, with respect to a person opining as to whether a health care
provider departed from accepted standards of health care, an expert is someone who is
“qualified to testify under the requirements of Section 74.402” of the Civil Practice and
Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B). Section 74.402,
in turn, provides that a person may qualify as an expert 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 is an individual, at the
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time the testimony is given or was practicing that type of health care at the time the claim
arose; (2) has knowledge of accepted standards of care for the diagnosis, care, or
treatment of the injury; and (3) is qualified on the basis of training or experience. Id. at
§ 74.402(b). In determining whether an expert is qualified on the basis of training or
experience, the trial court considers 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 person offering an expert report must establish
that he has expertise regarding “the specific issue before the court which would qualify
the expert to give an opinion on that particular subject.” In re Windisch, 138 S.W.3d 507,
512 (Tex. App.—Amarillo 2004, orig. proceeding) (per curiam) (citing Broders v. Heise,
924 S.W.2d 148, 153 (Tex. 1996)). The analysis is focused on “the very matter” on which
the expert is to give an opinion. Broders, 924 S.W.2d at 153.
Appellants claim that two of Ferguson’s experts, Bearce and James, are
“unqualified as a matter of law” because they are “businessmen, not licensed health care
professionals,” and that they have no training in the diagnosis, care, or treatment of the
physical infirmity that caused Pierce’s illness and death. However, the statutory definition
of “health care provider” includes a director, manager, or employee of a health care
institution and “health care” includes any act performed by a health care provider if it
relates to a patient’s medical care, treatment, or confinement. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.001(a)(12)(A)(vii), (B); (a)(10). Therefore, licensed nursing home
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administrators may qualify as experts under the statute.4 See, e.g., Hollingsworth v.
Springs, 353 S.W.3d 506, 516–18 (Tex. App.—Dallas 2011, no pet.) (health care
administration consultant qualified by training and experience as hospital administrator to
offer expert opinions on accepted standards of care for health care providers providing
administrative services). Moreover, Ferguson’s claims against Appellants do not arise
from the diagnosis, care, or treatment of Pierce’s hypothermia. Rather, her claims allege
that the assisted living facility and its staff failed to provide Pierce with a safe physical
environment and that this failure led to Pierce suffering from hypothermia. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.001(a)(13) (including departures from accepted standards
of administrative services within definition of “health care liability claim”). Therefore, an
expert providing an expert report in this case must demonstrate expertise in the standard
of care applicable to an assisted living facility in maintaining a safe physical environment
for its residents. See, e.g., Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 645–
46 (Tex. App.—Dallas 2010, pet. denied) (in suit against nursing home in which resident
with Alzheimer’s disease grabbed another resident’s walker, causing resident to fall, hit
her head, and die, court concluded that licensed nursing home administrator was qualified
to opine on standard of care applicable to nursing home in admitting and assessing
resident with Alzheimer’s disease).
4 Appellants assert that Bearce and James specifically cannot opine on the standards of care
applicable to Alvarado, because she is a licensed vocational nurse. However, the qualification inquiry does
not focus on the specialty of the medical expert, but instead on “whether the proffered expert has
‘knowledge, skill, experience, training or education’ regarding the specific issue before the court which
would qualify the expert to give an opinion on that particular subject.” Tenet Hosps. Ltd. v. Love, 347
S.W.3d 748, 750 (Tex. App.—El Paso 2011, no pet.).
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Bearce is a licensed nursing home administrator. He has been licensed to provide
administrative oversight in such facilities for more than 35 years. Bearce is currently the
executive director of a continuing care retirement community providing residential living
services, including assisted living, memory support, and skilled nursing services. He has
provided administrative oversight for several skilled nursing facilities and assisted living
and memory support programs. Bearce is on the faculty of the Davis School of
Gerontology at the University of Southern California, Los Angeles, and has taught
graduate-level classes in aging services management.
James is a licensed nursing home administrator with a 30-year career overseeing
the operations of assisted living, skilled nursing, and memory support communities. He
served as the chief executive officer of a 350-resident continuing care/life plan retirement
community for nine years and as chief executive officer of a 400-resident continuing care
retirement community for twelve years. Before that, he worked as executive director or
director at three different communities providing aging care services. His curriculum vitae
reflects experience with staffing, facilities development, and emergency preparedness
planning.
As shown in their reports, both Bearce and James have experience and expertise
with policies and procedures for the provision of care to residents of assisted living
facilities. Bearce and James qualify as experts under section 74.402 because they are
practicing health care providers with the requisite licensing, education, and experience in
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administration necessary to fulfill the requirements of the statute.5 See Hollingsworth,
353 S.W.3d at 516–18.
As to Dr. Uribe, Appellants allege that he has “never practiced health care in any
field that treats seniors like Ms. Pierce” and he lacks the qualifications to opine on the
standards for her health care. They claim that “[w]hile Dr. Uribe may be qualified to opine
on Ms. Pierce’s cause of death, he is not qualified to opine on the standards for her health
care, and thus, his opinions do not satisfy the TMLA.” However, given that Bearce and
James are qualified to speak to the applicable standards of care in this case, it is not
necessary for this Court to determine whether Dr. Uribe is also qualified to opine on those
matters. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i) (TMLA allows plaintiff to use
multiple expert reports to satisfy any of Act’s requirements).
Dr. Uribe’s report asserts he is providing an expert report “on Ms. Pierce’s cause
of death.” See id. §§ 74.351(r)(5)(C); 74.403(a) (only a physician is qualified to render
expert report opinion as to causation). He opines that Pierce’s cause of death was
hypothermia, as stated on her death certificate. Noting the cold temperatures and lack of
power at Harvest Renaissance, Dr. Uribe concludes that the conditions at the facility
“could and did cause Ms. Pierce’s death through hypothermia.” Dr. Uribe’s report shows
that he is a medical doctor and actively practicing forensic pathologist. He is board-
certified in anatomic, clinical, and forensic pathology by the American Board of Pathology.
Dr. Uribe is licensed to practice medicine in multiple states and has years of experience
5 Although James is now retired, his report and curriculum vitae reflect that he was practicing
hospital administration at the time this claim arose. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1).
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as a medical examiner conducting post-mortem examinations. He has also served as the
director of the office of the Armed Forces Medical Examiner and as the chief of the
Department of Pathology at Martin Army Community Hospital.
Considering Dr. Uribe’s years of training in forensic pathology, his experience as
a medical examiner, and the more than 1500 autopsies he has performed, we cannot
conclude that the trial court abused its discretion by determining that Dr. Uribe is qualified
to render an opinion that Pierce’s death was caused by hypothermia resulting from the
conditions at Harvest Renaissance. See Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 144 (Tex. 2015) (in exercising discretion, trial court must review report, sort its
contents, resolve any inconsistencies, and decide whether report demonstrates good faith
effort to show plaintiff’s claims have merit).
For the foregoing reasons, the trial court did not abuse its discretion by denying
Appellants’ motion to dismiss for failure to comply with the expert report requirements of
Chapter 74.
Issue 2: Costs and Attorney’s Fees
Appellants’ second issue concerns the trial court’s refusal to award Appellants their
reasonable costs and attorney’s fees. Because we conclude that Appellants are not
entitled to dismissal, they are not entitled to costs and attorney’s fees under Chapter 74,
and we need not address this issue. See TEX. R. APP. P. 47.1.
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CONCLUSION
Having concluded that the trial court did not abuse its discretion in denying
Appellants’ motion to dismiss, we affirm the trial court’s order.
Judy C. Parker
Justice
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