Opinion filed September 7, 2006

Opinion filed September 7, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00196-CV

                                                     __________

       LILLION PISASALE, INDIVIDUALLY, AND AS REPRESENTATIVE

         OF THE ESTATE OF ANGELO PISASALE; MICKEAL PISASALE;

                                   AND DEBRA GREENE, Appellants

                                                             V.

                   THE ENSIGN GROUP, INC. AND NORTHERN OAKS

            HEALTHCARE, INC. D/B/A NORTHERN OAKS LIVING AND

                               REHABILITATION CENTER, Appellees

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 7194-D

                                             M E M O R A N D U M   O P I N I O N

This appeal arises from a medical malpractice action filed by appellants^[1] against a nursing home.  The trial court dismissed appellants= lawsuit based upon its determination that their expert reports did not comply with the requirements set out in Tex. Rev. Civ. Stat. art. 4590i, ' 13.01 (2001).^[2] Appellants attack the trial court=s order of dismissal in two issues.  We affirm.

                                                               Background Facts

Angelo Pisasale was admitted as a patient of Northern Oaks Nursing and Rehabilitation Center^[3] on March 25, 2003, after being hospitalized at Hendrick Medical Center (Hendrick).  The admitting diagnoses at Northern Oaks included diabetes, seizure disorder, anemia, severe cervical spondylosis, hyponatremia, severe chronic obstructive pulmonary disease (COPD), neurogenic bladder, extremity weakness, hypertension, and altered mental status.  Mr. Pisasale was readmitted to Hendrick on April 27, 2003, as a result of developing pneumonia and a urinary tract infection while at Northern Oaks.  He remained hospitalized at Hendrick until May 4, 2003, whereupon he was readmitted as a patient at Northern Oaks. On May 10, 2003, a staff member of Northern Oaks found Mr. Pisasale unresponsive and not breathing.  He was pronounced dead  a short time later.

As alleged in their pleadings, appellants filed suit Ato recover those damages, as provided by law, which resulted from the injuries to ANGELO PISASALE, during the time that he was under the care of [Northern Oaks].@ Lillion Pisasale sought to recover medical charges and expenses as a result of Mr. Pisasale=s  injuries and death.  All of the appellants sought damages for loss of consortium resulting from Mr. Pisasale=s death.  Accordingly, it appears that appellants asserted both survival and wrongful death causes of action against Northern Oaks.  See Tex. Civ. Prac. & Rem. Code Ann. '' 71.002, 71.021 (Vernon 1997). 

Appellants submitted two reports in an effort to comply with the expert report requirement. The first report was prepared by William R. McMinn.  McMinn described his qualifications in the report as follows:

I am knowledgeable of federal and state regulations that licensed nursing facilities in Texas must follow in caring for residents and which articulate the standards of care governing nursing facilities, nursing facility administrators, and nurses working in nursing facilities in Texas.  I gained this experience by completing Long Term Care Regulatory (LTCR) survey and investigation training.  Additionally, I have extensive field experience conducting investigations and surveys in Long Term Care Facilities.

McMinn stated in his curriculum vitae that he had six years of experience as a Astate investigator@ in the investigation of suspicious deaths, sexual abuse, and physical abuse in nursing homes, state schools, and intermediate care facilities.  He described his experience as a state investigator as the equivalent of a Asexual/physical abuse investigator in a large police department.@  McMinn=s educational background included degrees in criminal justice from American Technological University and various Asurveyor@ training courses for health facilities.

McMinn began his report with a summary of the treatment that Mr. Pisasale received during his various admissions at Northern Oaks and Hendrick.   He then listed several Adeficient practices@ which he had identified on the part of the staff of Northern Oaks with respect to various regulations which govern long-term care facilities.  McMinn made the following accusations in his report:

1.         The facility failed to provide the necessary care, treatments and services to resident Angelo Pisasale.

2.         The facility nursing staff failed to adequately assess resident Angelo Pisasale for signs and symptoms of pneumonia, bacterial infection, and urinary tract infection.

3.         Review of the nursing shift assessments/notes revealed the physician and/or family member was not immediately notified when resident had a significant change in condition that had clinical complications requiring physician intervention.

4.         There was insufficient numbers of nursing staff available in the facility to provide necessary and required nursing care and services as determined by care outcome.

5.         Facility staff failed to maintain clinical records for resident Angelo Pisasale that were complete and accurate.

6.         The facility failed to meet requirements for Licensure and Medicaid Certification, Quality of Care, as determined by the lack of nursing care and services provided to resident Angelo Pisasale.

McMinn supported these criticisms by detailing his evaluation of the nursing care provided to Mr. Pisasale at Northern Oaks.  He concluded that these failures Acontributed to a deterioration of [Mr. Pisasale=s] health that eventually required hospitalization.@

Appellants also submitted the report of Dr. Melvin L. Butler, M.D.  Dr. Butler stated that he is board certified in internal medicine and gastroenterology and that he currently serves as the medical director of a nursing facility in Knoxville, Tennessee.  Dr. Butler also began his report with a chronology of Mr. Pisasale=s stay at Northern Oaks.  Among other things, Dr. Butler noted that Mr. Pisasale yelled frequently and that he refused to eat food prepared at Northern Oaks. Dr. Butler alleged that the staff of Northern Oaks failed to timely inform Mr. Pisasale=s physician or family members when he experienced a significant change in condition.

In its motion to dismiss, Northern Oaks challenged McMinn=s qualifications to render opinions on nursing care.  It also alleged that McMinn=s and Dr. Butler=s reports did not sufficiently set out a causal relationship between Northern Oak=s acts and omissions and Mr. Pisasale=s death.  Northern Oaks also asserted that Dr. Butler=s statements regarding causation were conclusory.  In responding to Northern Oak=s motion to dismiss, appellants requested a 30-day extension to file additional expert reports under Article 4590i, section13.01(g) in the event the trial court determined that their reports were inadequate.  In support of their request for an extension, appellants= counsel testified that he believed the reports were sufficient and that, in the event he was mistaken, it was not due to conscious indifference on his part.  The trial court subsequently granted Northern Oaks= motion to dismiss and denied appellants= request for an extension under Article 4590i, section 13.01(g). 

                                                                         Issues

In two issues, appellants contend that their expert report satisfies the requirements of Article 4590i, section 13.01 or, alternatively, that the trial court abused its discretion by denying their request for a thirty‑day grace period to amend their report under Article 4590i, section13.01(g).

Standard of Review

A trial court=s decision to dismiss a lawsuit because of an inadequate expert report is reviewed under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court=s decision to grant or deny an Article 4590i, section 13.01(g) grace period is also reviewed under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‑42 (Tex. 1985). A reviewing court is not allowed to substitute its judgment for that of the trial court when reviewing a discretionary decision. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41‑42 (Tex. 1989). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 241‑42.

                                             Sufficiency of Appellants= Expert Reports

In Palacios, 46 S.W.3d at 878‑79, the Texas Supreme Court outlined the following criteria for evaluating the sufficiency of expert reports: 

[T]he expert report must represent only a good‑faith effort to provide a fair summary of the expert=s opinions. 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. In setting out the expert=s opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good‑faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit. 

A report that merely states the expert=s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Nor can a report meet these purposes and thus constitute a good‑faith effort if it omits any of the statutory requirements. However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary‑judgment proceeding or at trial. (citations omitted)

As noted previously, Northern Oaks alleged three grounds in seeking the dismissal of appellants= claims.  These allegations included: (1) McMinn=s lack of qualifications to render an opinion on nursing care; (2) the failure of the reports to link Northern Oaks=s acts and omissions to Mr. Pisasale=s death; and (3) the conclusory nature of Dr. Butler=s report with respect to causation.  We conclude that the questions concerning McMinn=s qualifications and the sufficiency of Dr. Butler=s report are interrelated and dispositive of appellants= first issue.^[4] 

In a suit against a Anonphysician health-care provider,@ the report must be given by Aan expert who has knowledge of accepted standards of care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.@ See Article 4590i, section 13.01(r)(5)(B).  This standard has no express or implied requirement that the expert be a physician as is the case in a suit against a physician.  See id. ' 13.01(r)(5)(A).  The bulk of McMinn=s report consists of his detailed critique of the nursing care provided to Mr. Pisasale.  While McMinn perhaps has knowledge of the federal and state regulations pertaining to nursing homes, neither his report nor his curriculum vitae indicate that he has any training, certification, or experience working as a nurse or other kind of a health-care provider.  Even if McMinn were a registered nurse, he would not be qualified to render an opinion as to causation because nurses are prohibited from acts of medical diagnosis.  See Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 248 (Tex. App.CSan Antonio 2004, no pet.) (quoting Tex. Occ. Code  Ann. ' 301.002(2) (Vernon Supp. 2006).  Accordingly, appellants= compliance with the expert report requirement is dependent upon the manner in which Dr. Butler addressed causation in his report.

To avoid being conclusory, the expert must explain the basis of his statements to link conclusions to facts.  Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). It is not enough that the expert report Aprovided insight@ about the plaintiff=s claims. Id. at 52. Nor may liability in a medical malpractice suit be made to turn upon speculation or conjecture.  See Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.CSan Antonio 2004, no pet.).

Dr. Butler=s report concluded with a section labeled: ATHE CAUSAL RELATIONSHIP BETWEEN THE FAILURE OF NORTHERN OAKS NURSING CENTER TO MEET THE STANDARD OF CARE AND THE INJURIES SUFFERED BY MR. PISASALE. @ (emphasis in original)  He completed this section with the following statement: 

As a result of the failure to meet the standard of care by the nursing staff at Northern Oaks Mr. Pisasale suffered pain and required hospitalization.  I think their negligence was a proximate cause of the deterioration and suffering sustained by Mr. Pisasale.

Dr. Butler=s statement regarding causation, particularly the last sentence, is speculative in nature wherein he states, AI think their negligence was a proximate cause.@ (emphasis added)  Furthermore, Dr. Butler=s chronology of Mr. Pisasale=s medical history indicates that Mr. Pisasale was quite ill at the time he was admitted as a patient at Northern Oaks.  However, Dr. Butler made no effort to eliminate Mr. Pisasale=s preexisting conditions as the cause for the injuries described in his report which he attributes to Northern Oaks. Based upon our review of Dr. Butler=s report, we conclude that the trial court could have reasonably determined that the report did not represent a good‑faith effort to summarize the causal relationship between Northern Oaks=s nursing staff=s alleged failure to meet the applicable standards of care and Mr. Pisasale=s alleged injuries.  Appellants= first issue is overruled.

    Were Appellants Entitled To A Thirty‑Day Extension To Amend Their Report?

Article 4590i, section 13.01(d) required claimants to furnish an expert report within 180 days after the claim was filed.  Article 4590i, section 13.01(g) gave trial courts the discretion to provide a thirty‑day grace period to file an amended report if the failure to timely file an adequate report Awas not intentional or the result of conscious indifference but was the result of an accident or mistake.@

The Texas Supreme Court faced a similar situation in Walker, 111 S.W.3d 56.  There, as here, claimant=s counsel mistakenly believed that his expert=s report was sufficient. The supreme court concluded that counsel=s belief that his expert=s report was sufficient, despite clear statutory requirement to the contrary, Adoes not establish a >sufficient excuse= necessary to support a finding that a party made a mistake of law.@ Id. at 64‑65. This follows because a medical malpractice claimant is charged with knowledge of Article 4590i, section 13.01 and its requirements. Id.

Appellants attempt to distinguish Walker by alleging it involved a report which completely omitted a required element.  Appellants contend that, if their reports are inadequate, it is not because of the complete absence of a critical element but rather an incomplete statement of a required element.  We do not believe that the distinction between an omitted element versus an incomplete element necessarily avoids the application of Walker.  It is the substance of the opinions in question, not the technical words used, that determines whether a report complies with statutory mandates.  In re Brown, 190 S.W.3d 4, 7 (Tex. App.CAmarillo 2005, orig. proceeding).  One can reasonably conclude that merely inserting the words Aproximate cause@ or Acausal relationship@ in a report, coupled with only a conclusory or  speculative statement of the expert=s opinion regarding causation, results in an element being omitted from the report.  See Id.

The cases decided since Walker indicate that the trial court=s decisions to grant or deny a thirty‑day grace period when counsel argues that his mistaken belief that a report was sufficient constitutes a mistake of law are afforded great deference due to their individual factual patterns. Compare In re Zimmerman, 148 S.W.3d 214, 217 (Tex. App.CTexarkana 2004, orig. proceeding) (affirming the trial court=s decision to grant a thirty‑day grace period based upon mistake of law) with Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.CDallas 2005, no pet.) (affirming the trial court=s decision to not grant a thirty‑day grace period based upon a mistake of law).  We cannot say that the trial court abused its discretion when it denied appellants= request for a thirty‑day grace period. Appellants= second issue is overruled.

                                                               This Court=s Ruling

The trial court=s order of dismissal is affirmed.

TERRY McCALL

JUSTICE

September 7, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

---

^[1]Appellants consist of: Lillion Pisasale, Individually, and as Representative of the Estate of Angelo Pisasale; Mickeal Pisasale; and Debra Greene.  Lillion Pisasale is the surviving spouse of Angelo Pisasale.  Mickeal Pisasale and Debra Greene are surviving children of Angelo Pisasale.

^[2]Although applicable to this case, Article 4590i was repealed effective September 1, 2003. The subject matter is now governed by Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp.2006).

^[3]There is some confusion regarding the identity of appellees in this appeal.  A brief was filed by ANorthern Oaks Healthcare, Inc. d/b/a Northern Oaks Living and Rehabilitation Center@ with a notation that it was incorrectly sued as AThe Ensign Group, Inc. d/b/a Northern Oaks Nursing and Rehabilitation Center.@  The trial court=s order of dismissal identifies the defendants in the trial court as follows:  AThe Ensign Group, Inc. and Northern Oaks Healthcare, Inc. d/b/a Northern Oaks Living and Rehabilitation Center.@  Pursuant to our customary practice, we have identified appellees in the same manner as they are listed in the dispositive judgment or order. We will collectively refer to appellees as ANorthern Oaks.@ 

^[4]Northern Oaks contends that appellants= expert reports do not address the causal relationship between the act or omissions of its staff and Mr. Pisasale=s death to support appellants= wrongful death claim. We do not reach this contention based upon our determination that the reports do not sufficiently address causation to support any cause of action against Northern Oaks.