Tyler OPS LTC., Inc., D/B/A Petal Hill Nursing & Rehabilitation v. Cornelius Butler, Individually and on Behalf of the Estate of Betty Butler

NO. 12-22-00188-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TYLER OPS LTC., INC., D/B/A PETAL § APPEAL FROM THE 241ST
HILL NURSING &
REHABILITATION,
APPELLANT
V. § JUDICIAL DISTRICT COURT
CORNELIUS BUTLER,
INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF BETTY
BUTLER, § SMITH COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
Tyler OPS LTC., Inc., d/b/a Petal Hill Nursing & Rehabilitation appeals the trial court’s
denial of its motion to dismiss Cornelius Butler’s suit against it. We reverse and remand for
further proceedings.
BACKGROUND
Betty Butler had a history of falls and suffered from dementia, type 2 diabetes, and
hypertension. Around 2017, she became a resident at Petal Hill Nursing and Rehabilitation.
During at least part of Betty’s time there, Tyler OPS managed the facility. On February 28,
2019, a pressure wound 1 was found on Betty’s left buttock. On September 12, 2020, Betty was
admitted to the hospital for a metabolic crisis, respiratory failure, and sepsis. On admission, she
was found to have pain of the right upper extremity resulting from ischemia, 2 gangrene of the
1
Commonly called a bedsore.
2
Ischemia is a “deficient supply of blood to a body part (as the heart or brain) that is due to obstruction of
the inflow of arterial blood.” Merriam-Webster’s Collegiate Dictionary 663 (11th ed. 2011).
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fingers, and a degloving wound of the right hand. Amputation of the hand was indicated, but she
was not a candidate because of her severe anemia. Betty was intubated and placed on vent
support. She developed another pressure wound on the coccyx and passed away on October 2,
2020.
Butler filed the instant lawsuit against Tyler OPS alleging its staff breached its duty of
care to Betty resulting in her exposure to COVID-19, pneumonia, and gangrene in her hand. In
an attempt to comply with Section 74.351 of the Texas Civil Practice and Remedies Code, Butler
served on Tyler OPS an expert report and curriculum vitae by Dr. F.E. Saba. Tyler OPS filed
objections to Dr. Saba’s report, including objections that (1) the report describes claims that are
unpleaded and occurred at times when Tyler OPS was not Betty’s care provider, (2) Dr. Saba did
not establish that he is qualified to render a causation opinion regarding Betty’s hand, and (3) Dr.
Saba’s causation opinions are deficient. Tyler OPS further filed a motion to dismiss Butler’s
claim. The trial court overruled the objections and denied the motion to dismiss. This appeal
followed.
EXPERT REPORT
In a single issue, Tyler OPS contends that the trial court erred by overruling its objections
to Dr. Saba’s report and denying its motion to dismiss because (1) Dr. Saba’s causation opinion
regarding Betty’s hand is deficient, (2) Dr. Saba is not qualified to offer such a causation
opinion, and (3) Dr. Saba’s opinions about pressure wounds are conclusory, do not concern a
time when Betty was in Tyler OPS’s care, and do not correspond to any pleaded liability theory.
Standard of Review
A trial court’s ruling on qualifications of a medical expert and the sufficiency of an
expert’s report under Chapter 74 is reviewed for an abuse of discretion. Van Ness v. ETMC
First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001). The court abuses its discretion if it acts in an
arbitrary or unreasonable manner without reference to any guiding rules or principles. Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010). In exercising its discretion, the court must review the
report, sort out its content, resolve any inconsistencies, and decide whether the report
demonstrates a good faith effort to show that the plaintiff’s claims have merit. See Van Ness,
461 S.W.3d at 144. When reviewing factual matters committed to the trial court’s discretion, an
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appellate court may not substitute its judgment for that of the trial court. Head v. Hagan, 600
S.W.3d 375, 378-79 (Tex. App.—Tyler 2019, no pet.).
Expert Report Requirements
The Texas Medical Liability Act requires a claimant to serve an expert report early in the
proceedings on each party against whom a health care liability claim is asserted. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2022). The purpose of evaluating expert
reports is to deter frivolous claims, not to dispose of claims regardless of their merits. Certified
EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). An expert report is
a written report by an expert that provides 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 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) (West Supp. 2022).
“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).” Id. § 74.351(l) (West
Supp. 2022). To constitute a good faith effort, the report must (1) inform the defendant of the
specific conduct the plaintiff challenges and (2) provide a basis for the court to conclude that the
claims have merit. Palacios, 46 S.W.3d at 879. All information needed for this inquiry is found
within the four corners of the report. Jelinek, 328 S.W.3d at 539. The report need not cover
every alleged liability theory to make the defendant aware of the conduct at issue, nor does it
require litigation ready evidence. Potts, 392 S.W.3d at 630-31. For the particular liability theory
addressed, the report must sufficiently describe the defendant’s alleged conduct. Id. at 631. If
the court decides that an alleged liability theory is supported, then the claim is not frivolous, and
the suit may proceed. Id.
Causation
Tyler OPS argues that Dr. Saba’s report fails to meet the expert report requirement
because it does not adequately address the three elements as to any pleaded theory of liability.
Tyler OPS notes that Butler pleaded theories of liability related to COVID-19, dehydration, lung
infection, and a hand wound that developed gangrene, but among these conditions, the report
addresses only the injury to her hand. Although Dr. Saba’s report additionally addresses a theory
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of liability related to Betty’s pressure ulcers, 3 we do not consider this unpleaded theory in our
analysis. See id. at 632 (report that adequately addresses at least one pleaded liability theory
satisfies the statutory requirements). Regarding the hand injury, Tyler OPS contends that Dr.
Saba’s causation opinion is conclusory and, therefore, deficient. We agree.
An expert cannot simply opine in the report that a particular breach caused the alleged
injury. Jelinek, 328 S.W.3d at 539. Instead, he must go further and explain, to a reasonable
degree, how and why the breach caused the injury based on the facts presented. Id. at 539-40.
In showing how and why the breach caused the injury, the report must make a good faith effort
to factually explain how proximate cause will be proved. Columbia Valley Healthcare Sys.,
L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). Proximate cause has two components: (1)
foreseeability and (2) cause-in-fact. Id. To constitute a cause-in-fact of the harm, a negligent act
or omission must have been a substantial factor in bringing about the harm, which would not
have occurred without the act or omission. Id. A report that adequately addresses at least one
pleaded liability theory satisfies the statutory requirements. Potts, 392 S.W.3d at 632.
Dr. Saba’s report states the following regarding Betty’s hand injury:
The standard of care requires that nursing staff perform skin checks daily to monitor
progression of wounds and for early detection of infection or necrosis. In the present case, Ms.
Butler developed necrosis to the hand. Nursing staff are required to monitor IV sites to ensure
that they are patent and that the skin and circulation to the area is not compromised. Nursing
staff of Petal Hill failed to do so. On admission to Christus, Ms. Butler was shown to have
right hand with no radial and ulnar pulse and the hand was shown to be completely black.
While it is beyond the scope of practice of nursing staff to diagnose PVD or a vessel occlusion
that could cause ischemia and lead to gangrene of the right hand, it is well within nursing
practice to perform assessment, including assessment of pulses to the extremity. Additionally,
a hand developing ischemia and cyanosis, as identified when Ms. Butler was admitted to
Christus, is something that nursing staff could and should have identified and reported to Ms.
Butler’s physician. They failed to do so. In fact, on 9/12/2020, nursing staff were still simply
flushing the IV to Ms. Butler’s dorsal hand, without assessing the area to determine adequate
circulation and skin integrity.
This led to Ms. Butler developing a necrotic wound to her hand which was a contributing
factor to her death.
The failures set out above by nursing staff led to Ms. Butler suffering . . . a necrotic wound to
her hand. [This] led to her pain and suffering and contributed to her death.
....
3
We note that Dr. Saba’s report indicates the second pressure wound occurred while Betty was in the
hospital and not under Tyler OPS’s care, and Tyler OPS asserts that the first pressure wound occurred before it
began managing Petal Hill.
4
It is my opinion that the events and failures set forth in this report proximately caused Ms.
Butler’s injuries and led to her pain and suffering and contributed to her death.
Nursing staff of Petal Hill failed to inspect skin daily to Ms. Butler’s hand to ensure that there
was no developing infection. They failed to ensure skin integrity and failed to assess Ms.
Butler’s right hand when they were flushing her IV. Nursing staff failed to recognize ischemia
developing when they could and should have recognized this and reported it to Ms. Butler’s
physician in order for her to be sent to a higher level of care. Ms. Butler developed gangrene to
the right hand which went unchecked. This infection led to a decrease in Ms. Butler’s
immunity, and resulted in chronic inflammation, making Ms. Butler more susceptible to illness
and decreasing her ability to recover from infectious disease. It also led Ms. Butler to become
deconditioned and contributed to her death.
Due to Defendants’ failures above stated, Ms. Butler [sic] pressure wounds to the left buttock,
as well as necrosis to the right hand. The failures of nursing staff at Petal Hill led to Ms. Butler
suffering pain, suffering and increased debility that decreased her ability to recover from
illness and contributed to her death.
Tyler OPS observes that the report does not explain how or why the alleged breach—
failure to notice and report developing ischemia—caused the hand injury nor how or why the
hand injury would have been prevented had the nursing staff sooner identified the developing
ischemia and transferred Betty to a higher level of care. Tyler OPS further observes that Dr.
Saba attributes the ischemia in Betty’s hand to “PVD” or a “vessel occlusion” but fails to specify
when the occlusion and ischemia developed and when, if ever, a transfer to a higher level of care
could have prevented further injury. Additionally, Tyler OPS notes that Dr. Saba fails to identify
any treatment for PVD, vessel occlusion, ischemia, or gangrene that would have been successful
had Betty been transferred sooner. Tyler OPS ultimately concludes, as do we, that Dr. Saba’s
report provides no basis to conclude its breach caused the injury, rather than the natural course of
Betty’s underlying medical condition. Because Dr. Saba simply opines that the nursing staff’s
failure to identify and report developing ischemia and cyanosis in the hand led to the
development of a necrotic wound and contributed to her death, without explaining the treatments
that were available if the issue were reported sooner and their potential effectiveness in Betty, we
conclude that his opinion on causation is deficient. See Jelinek, 328 S.W.3d at 539-40;
Zamarripa, 526 S.W.3d at 460.
Qualification
Tyler OPS does not dispute Dr. Saba’s qualification to opine on the applicable standard
of care in this case or Tyler OPS’s breach thereof. Rather, Tyler OPS argues only that Dr. Saba
is not qualified to offer causation opinions concerning Betty’s hand. We agree.
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A person may qualify as an expert witness on the causation element in a health care
liability claim only if he is a physician and otherwise qualified to render such causation opinions
under the Texas Rules of Evidence. TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C),
74.403(a) (West 2017). Under the Texas Rules of Evidence, an expert may be qualified to give a
causation opinion on a particular subject if the person has knowledge, skill, experience, training,
or education regarding the specific issue before the court. TEX. R. EVID. 702; Broders v. Heise,
924 S.W.2d 148, 153 (Tex. 1996). To qualify to give a causation opinion when the harm is
allegedly caused by delayed treatment, an expert must have knowledge regarding the
effectiveness of the treatments. See Broders, 924 S.W.2d at 153; Thomas v. Alford, 230 S.W.3d
853, 860 (Tex. App.—Houston [14th Dist.] 2007, no pet.). An expert’s qualifications must
appear within the four corners of the expert report or its accompanying curriculum vitae.
Cornejo v. Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
Dr. Saba’s curriculum vitae shows that he is a practicing physician for a multi-specialty
health care group and is board certified in internal medicine. He is a medical director of multiple
skilled nursing facilities and has served in various capacities at numerous acute short-term
hospitals, long-term acute care hospitals, corporation facilities, acute rehabilitation hospitals,
assisted living facilities, retirement communities, and a psychiatric hospital. Dr. Saba also has
extensive drug research experience.
In Dr. Saba’s report, he indicates he has “extensive knowledge and experience in the
injuries complained of and that were suffered by Ms. Butler.” He has “written orders for . . . the
duties involved in identifying when residents need to be sent to a higher level of care, including
when to apprise physicians of resident change in condition.” Dr. Saba is “familiar with the
duties and interventions used in the prevention of . . . skin breakdown and infection.”
Nothing in Dr. Saba’s curriculum vitae or expert report indicates that he is qualified to
opine on the issue of whether the nursing staff’s failure to notice and report ischemia and
cyanosis in Betty’s hand caused the necrotic wound and contributed to her death. Although he is
familiar with the “interventions used in the prevention of skin breakdown and infection,” he does
not claim to have knowledge, skill, experience, training, or education regarding the effectiveness
of treatment for ischemia such as that in this case. Accordingly, we conclude that the report and
curriculum vitae fail to show that Dr. Saba is qualified to give a causation opinion regarding the
hand injury. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C), 74.403(a); TEX. R.
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EVID. 702; Broders, 924 S.W.2d at 153; Thomas, 230 S.W.3d at 860; Cornejo, 446 S.W.3d at
121.
Summation
Because the only pleaded liability theory addressed in Dr. Saba’s expert report is that of
the hand injury, and Dr. Saba’s expert report and curriculum vitae fail to provide a sufficient
causation opinion regarding the hand injury or show he is qualified to render such an opinion, we
conclude the report and curriculum vitae provide no basis for the trial court to conclude that any
pleaded liability theory has merit. See Potts, 392 S.W.3d at 632; Palacios, 46 S.W.3d at 879.
Accordingly, we hold that the trial court abused its discretion by overruling Tyler OPS’s
objections to the report. We sustain Tyler OPS’s sole issue.
Opportunity to Cure
Chapter 74 allows the trial court to grant one thirty-day extension to cure a deficiency in
an expert report, and a court must grant an extension if the report’s deficiencies are curable.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see Scoresby v. Santillan, 346 S.W.3d 546,
556-577 (Tex. 2011). In response to Tyler OPS’s objections, Butler requested the opportunity to
cure any deficiencies. The report at issue is not so deficient to constitute no report at all, and
Butler is entitled to an opportunity to cure the deficiency. See Courtney v. Pennington, No. 05-
16-01124-CV, 2017 WL 3097664, at *4 (Tex. App.—Dallas July 21, 2017, pet. denied) (mem.
op.). Therefore, we remand for the trial court to consider granting a thirty-day extension of time
to allow Butler to attempt to cure the deficiencies.
DISPOSITION
Having sustained Tyler OPS’s sole issue, we reverse the trial court’s order overruling
Tyler OPS’s objections to Dr. Saba’s report and remand the case to the trial court to consider
whether to grant a thirty-day extension of time to allow Butler to attempt to cure the deficiencies
in the report.
BRIAN HOYLE
Justice
Opinion delivered January 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2023
NO. 12-22-00188-CV
TYLER OPS LTC., INC., D/B/A
PETAL HILL NURSING & REHABILITATION,
Appellant
V.
CORNELIUS BUTLER, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF BETTY BUTLER,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 21-1988-C)
THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, because it is the opinion of this Court that
there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED
by this Court that the judgment be reversed and the cause remanded to the trial court for
further proceedings in accordance with the opinion of this Court; all costs of this appeal are
adjudged against Appellee, CORNELIUS BUTLER, INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF BETTY BUTLER; and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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