Garrison Nursing Home and Rehabilitation Center and Garrison Nursing Home, Inc. v. Legatha Demings

ACCEPTED
12-15-00189-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/9/2015 2:58:15 PM
Pam Estes
CLERK
CAUSE No. 12-1 5-001 89-CV
FILED IN
12th COURT OF APPEALS
IN TT{E COURT OF APPEALS OF TEXAS TYLER, TEXAS
FOR THE TWELFTH CIRCUIT 11/9/2015 2:58:15 PM
TYLER, TEXAS PAM ESTES
Clerk
GARNSON NURSING HOME AND REHABILITATION CENTER AND
GARNSON NURSING HOME, INC.,
Appellant
V
LEGATHA DEMINGS,
Appellee
On Appeal From Cause No.
In the 745th Judicial District Court of Nacogdoches County, Texas
APPELLEE'S BRIEF
Law OTTIcB oF STEPHEN SHIRES, PLLC
Attorney & Counselor at Law
W. Stephen Shires
State Bar No. 50511894
123 San Augustine Street
P.O. Box 2224
Center, Texas 75935
(936) s98-30s2 (Phone)
(936) s98-303 1 (Facsimile)
stephen @s hire s I aw firm. c o m
ATTORNEY FOR LEGATHA DEMINGS
ORAL ARGUMENT REQUESTED IF GRANTED TO APPELLANT
IDENTITY OF PARTIES AND COUNSEL
In accordance with TBx. R. App. P.38.1(a), the following is a list of the
parties to this action, their respective counsel, and the presiding judge at trial:
Appellants Garrison Nursing Home and
Rehabilitation Center and Garrison
Nursing Home, Inc. (ooGNHoo)
Trial and Appellate Counsel: David'W. Frost
Kent, Anderson, Bush, Frost, and Metcalf, P.C.
1121 E.S.E Loop 323, Suite 200
Tyler, Texas 7570t
(903) s79-7s00 (phone)
(903) 58 1-3701 (facsimile)
dfrost@tyler.net
Appellee Legatha Demings ("Demings")
Trial and Appellate Counsel: Stephen Shires
Law Office of Stephen Shires, PLLC
123 San Augustine Street
P.O. Box 2224
Center, Texas 75935
(936) s98-30s2 (phone)
(936) 598-303 1 (facsimile)
stephen@shireslawfirm. com
Trial Judge Honorable Campbell Cox II
145th Judicial Court, Nacogdoches, Texas
1t
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COTINSEL l1
TABLE OF CONTENTS 111
TABLE OF AUTHORITIES ..... iv
STATEMENT REGARDING ORAL ARGUME,NT 1
STATEMENT OF ISSUES 1
STATEMENT OF'TITE CASE 1
STANDARD OF REVIEIT I
STATEMENT OF FACTS 2
a
STTMMARY OF THE ARGITME,NT J
ARGUMENT 4
A. GNH improperly seeks a technical dismissal of claims that clearly
have merit.
B. Dr. Miller is qualified to address causation in this case.
7
C. The reports do not simply provide conclusory statements on
causation.
11
D. Alternatively, this is a matter of r¿s ipsa loquilut
I7
CONCLUSION AND PRAYER 18
CERTIFICATE OF SERVICE .......... I9
CERTIF'ICATE OF' COMPLIANCE t9
INDEX OF APPENDIX 20
lll
TABLE OF AUTHORITIES
CASES
Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios,46 S.V/.3d 873
(Tex. 2001) ...2,4
Bowie Mem'l Hosp. v. Wright,79 S.W.3d 48, 52 (Tex. 2002) 6
Broders v. Heise,924 S.W.2d I48 (Tex. 1996) 7
Collini v. Pustejovsky,2S0 S.W.3d 456 (Tex. App. Fort Worth 2009,
no pet) 11
Daubert v. Merrill Dow Pharmaceuticals, [nc.,509 U.S. 579 (1993) ........ 10
Downer v. Aquamarine Operators, Inc.,70l S.W.2d 238 (Tex. 1985) .........2
Gammill v.Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) ..... 10
Haddockv. Arnspiger,793 S.W.2d 948,950 (Tex. 1990) 17, 18
Hall v. Huff 957 S.W.zd90 (Tex. App. - Texarkana 1997, pet. denied) ......7
HEB Grocery Co. v. Galloway,2014 WL 2152128 (Tex. App. - Beaumont
2014, not pet) 11
Kunho Tire Co. v. Carmichael,526 U.S. 137 (1999) 10
Mack Trucks, Inc. v. Tøme2,206 S.W.3d 572 (Tex. 2006) 10
Nenno v. State,970 S.W.2d 549 (Tex. Crim. App. 1998) 10
,Ross v. St. Luke's Episcopal Hospital,462 S.W.3d 496 (Tex.2015)............. 5
Samlowski v. Wooten,332 S.W.3d 404,410 (Tex.20ll) 6
Scoresby v. Santillan,346 S.W.3d 546 (Tex. 2011) 5
Van Ness v. ETMC First Physicians,46l S.W.3d 140 (Tex. 2015)
1,4,5,6,16, 17
STATUTES AND RULES
a
Tsx. Cry. Pnacr. & Rpvr. Cooe Ann. $74.001 J
TEx. Cru. Pnacr. & Rpvt. Cons Ann. ç74.201(Jones McClure 2015) ........17
TEx. Ctv. Pnacr. & RsN4. Conp Ann. $74.351 (Jones McClure 2015)...... l, 5
TBx. Ctv. Pnacr. & RBH¿. Conr Ann. ç74.403 (Jones McClure 2015) ..........7
lv
STATEMENT REGARDING ORAL ARGUMENT
GNH requested oral argument in this case. In the event that the Court grants
GNH's request, then Demings also requests oral argument in this matter.
STATEMENT OF ISSUES
GNH has raised the following two issues:
1. Whether the trial court abused its discretion in overruling GNH's objections
to Demings' supplemental expert report from Dr. Keith E. Miller for the
failure to show he was qualified to provide opinions regarding the element
of causation and denying GNH's motion to dismiss pursuant to TEx. CIv.
Pnacr. & REII¿. ConBAnn. 574.351 (Jones McClure 2015).
2. Whether the trial court abused its discretion in overruling GNH's objections
to Demings' supplemental expert report from Dr. Keith E,. Miller for failure
to adequately address the element of causation and denying GNH's motion
to dismiss pursuant to TBx. Ctv. Pnecr. & REM. Conp Ann. ç74.351 (Jones
McClure 2015).
STATEMENT OF THE CASE
GNH accurately stated the Statement of the Case in this matter. Demings
would only add that the Supplemental Miller Report filed by Demings in this
matter (CR 50) was expressly incorporated by reference into the previous Kaper
Report (CR 25), and vice-versa. In other words, the two reports are to be
construed together, as if one report, along with all the information contained in
both reports.
STANDARD OF REVIEW
Demings agrees that the Standard of Review in this matter is abuse of
discretion. See Van Ness v. ETMC First Physicians,46l S.W.3d 140,742 (Tex.
2015); Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873,877
(Tex. 2001). Demings further agrees that a trial court abuses its discretion only
when it acts in an arbitrary or unreasonable manner without regard to any guiding
rules or principals. Downer v. Aquamarine Operators, Inc.,70l S.!V.2d 238,24I-
42 (Tex. 1985).
STATEMENT OF FACTS
This case arises out of, among various breaches of duty, the complete failure
of GNH to administer the medication Xarelto to Demings despite a prescription
from her treating physician for that medication. (CR 25, 50). Demings had been
diagnosed with atrial fibrillation and previously suffered a mild ischemic
cardiovascular accident. (CR 55). As a result, her physician, Dr. Dennis
Calhoun, had prescribed Xarelto, to be taken by Demings as a measure to prevent
her from suffering another and possibly greater and much more severe stroke. (CR
55). To be clear - the purpose for Demings taking the Xarelto in this case was
solely to prevent her from suffering another stroke resulting from her atrial
fibrillation. (CR 25, 50). GNH's own report admits that GNH failed to provide
the Xarelto to Demings due to an 'oerror in the transcription of [the] order." (CR
64). Demings then actually suffered a severe stroke, and, prior to transferring
Demings to the hospital, the charge nurse at GNH, after talking to a doctor, that the
medication had effoneously been omitted from the MAR. (CR 55, 57, 64). As a
2
result, Demings has sued GNH for negligence, alleging that GNH, among other
things
o breached their duty to provide her with necessary supervision;
a breached their duty to use reasonable care in treating her with the degree of
skill and learning ordinarily possessed and used by nursing home facilities
East Texas;
o breached their duty to assist her in attaining and maintaining the highest
practicable level of physical, mental, and psychosocial well-being;
o breached their duty to make sure that she received all of her medications
timely and in the appropriate doses - namely the prescribed Xarelto;
a breached their duty to make sure that her' prescription(s) and/or orders were
accurately transcribed by the nursing home staff onto her
charts/records/orders and to properly send her prescription to be filled by the
pharmacy - namely failing to include Xarelto as one of the medications for
the pharmacy to fill; and
a breached their duty to have a system in place that insures the accuracy of the
transcription of her prescription order.
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in this case. The reports
submitted by Demings meet the requirements of TBx. Cry. Pnacr. & RsNl. CopB
Ann. $74.001 et. seq. (Jones McClure 2015) (hereinafter the "Medical Liability
Act"). The reports provide more than adequate information to: (i.) inform GNH of
the specific conduct that Demings has called into question, and (ii.) provide a basis
for the trial court to conclude that her claims have sufficient merit for the case to
proceed in the litigation. GNH seems to interpret the Medical Liability Act to
-1
require Demings to provide a level of proof that is more attributable to what is
expected at the final trial of this matter. Such is improper. Given the nature of this
case, Dr. Miller's credentials are more than sufficient to demonstrate that he is
qualified to render an opinion on causation in this matter. Further, the information
provided in the reports on causation makes them not merely "conclusory." The
reports provide reasoned analysis on the matter that provides a basis for causation.
Should this Court disturb the trial court's decision in this case, such would be
effoneous. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex. 2015).
Finally, Demings argues in the alternative that the doctrine of res ipsa loquitor
excuses the requirement of demonstrating causation in this case.
ARGUMENT
GNH argues that the reports proffered by Demings are deficient under the
standards set forth by the Medical Liability Act, as interpretedby Am. Transitional
Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3 d 873 (Tex. 2001). Originally,
GNH argued that there was a problem with the causation portion of the report
proffered by Pauline Kaper, R.N. ("Kaper") because she is not a physician.
Demings remedied that issue by supplementing that report with the report of Keith
Miller, M.D., who is clearly a physician. The report of Dr. Miller, which was
supplemental to the Kaper report, addresses and reinforces the standards of care,
breaches of the standard, and the causation in this case, as originally set forth in the
4
Kaper report. Read together, the original report of Kaper and the supplemental
report of Miller fulfill the obligations required by the Medical Liability Act. For
this reason, this Court should affirm the order of the trial court in this matter
A. GNH imnronerlv seeks a techn I dismissal of claims that clearlv
have merit.
The purpose of the Medical Liability Act's expert report requirement is not
to have claims dismissed regardless of their merits, but rather it is to identiff and
deter frivolous claims while not unduly restricting a claimant's rights. Ross v. Sr.
Luke's Episcopal Hospital, 462 S.W.3d 496, 502 (Tex. 2015); Scoresby v.
Santillan, 346 S.W.3d 546,554 (Tex. 20Il). A plaintiff asserting a health care
liability claim must serve each defendant with an expert report that includes a fair
summary of the expert's opinions 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 damage claimed." Van Ness v. ETMC First Physicians, 467
S.V/.3d 140, 141(Tex. 2015) (quoting Tex. Cry. Pnacr. & RsN4. CooB Ann.
ç74.351(r)(6) (Jones McClure 2015)). A challenge to the sufficiency of a report
will only be sustained if "the report does not represent an objective good faith
effort to comply with the fstatutory requirements]." 1d The report constitutes a
good faith effort if it provides adequate information to inform the defendant of the
specific conduct the plaintiff has called into question, provide[s] a basis for the
5
trial court to conclude that the claims have merit, and does not contain a material
deficiency. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);
Samlowski v. Wooten, 332 S.W.3d 404,410 (Tex.20ll). The reports proffered by
Demings clearly meet these standards. As stated above, the purpose of the expert
report requirement is not to have claims dismissed regardless of their merit, but
rather to identifi'and deter frivolous claims. In the very least the proffered reports
demonstrate that Demings claims rise above the level of frivolous. The purpose of
the report is not to fully and finally litigate the merits of the case, but rather to
provide a mechanism to make sure the case is not being brought to harass the
defendant.
As such, GNH was attempting to abuse a process, designed to merely insure
that a claim being brought is bonafide, in order to cause a claim with clear merit to
be summarily dismissed. Such was wholly improper.
In this case, the trial court found that Demings fulfilled the requirements of
the Medical Liability Act. The trial court acted within its discretion in overruling
GNH's objections and denying its motion to dismiss the case. To upset the trial
court's decision in this matter would be improper, just as it was in Van Ness v.
ETMC First Physicíans,461 S.W.3d 140 (Tex. 2015). (Appendix C). In that case,
the Texas Supreme Court reversed this Court's decision reversing the trial court's
6
decision to deny ETMC's motion to dismiss case on virtually the same grounds
and for the same reasons proffered by GNH in this matter.
B. Dr. Miller is qualified to address causation in this case.
In order to provide testimony on causation, the expert must (i.) be a
physician, and (ii) be qualified to give an opinion under the Texas Rules of
evidence. TBx. Clv. Pnacr. &, Rru. CooB Ann. ç74.403 (a)-(c) (Jones McClure
2015). The expert simply must demonstrate that he has knowledge about the
specific issue that he is testi$ring about and that he meets the requirements of
Texas Rule of Evidence 702 regarding the issue. Broders v. Heise, 924 S.W.2d
148, 152-153 (Tex. 1996). Put another way, the expert only has to demonstrate
that the subject is common to and developed in his or her field or practice. Id.;
Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App. - Texarkana 1997, pet. denied). In
this case, Dr. Miller unequivocally states that he has familiarity with the standard
of care (and the related assessment of causation) for the treatment of patients with
strokes, hypertension, and related illnesses, and with conditions similar to those
experienced by Demings
At the time of the care and treatment of Ms. Legatha Demings by
Garrison Nursing Home and Rehabilitation Center in Garrison, Texas,
form May 2012 through June 2012,I was familiar with the minimum
medical standards of care applicable to the assessment, diagnosis and
treatment of patients with strokes, hypertension, and related illnesses,
as well as their complications and other medical conditions similar to
those experienced by Ms. Legatha Demings and described in the
referenced medical records.
7
I am familiar with the medical and nursing standards of care for the
above referenced conditions applicable to Garrison Nursing Home and
Rehabilitation Center in Garrison, Texas. The minimum standards of
care for treatment of patients with similar signs, symptoms and
conditions as Ms. Legatha Demings that are the basis of this report,
are national standards of care and do not differ from community to
community.
From the time of the medical treatment of Ms. LegathaDemings from
ll4ay 2012 through June 2012, and through the present, I have had an
active clinical practice as a family practitioner in Center, Texas that
includes providing care to adult patients in nursing homes and
rehabilitation centers, such as Ms. Legatha Demings. During my
career as a family practitioner, I have worked with and or supervised
medical office stafï, hospital staff, cursing home staff, and
rehabilitation center staff, inducing medical technologists and nurses,
in the care of my patients. I have also participated in the development
and use of protocols, policies and procedures for the care of patients
with strokes, hypertension and related illnesses, as well as their causes
and complications, including adults such as Ms. Legatha Demings.
In addition, based on my education, training knowledge and direct
experience, I am familiar with the accepted and expected standards of
cate, as listed below, for nursing home and rehabilitation center
facilities who take care of patients with conditions such as strokes,
hypertension, related illnesses, and their complications, and can offer
opinions on the standards of care, the breaches of the standards of care
and the causation of the injuries from these breaches.
In my medical practice, I routinely rely on medical records, nursing
records, lab reports, diagnostic tests and images, consulting physician
reports and other patient data. I consider materials of this type to be
generally reliable, unless evidenced otherwise, and they are the type
of materials routinely relied upon by physicians and clinical staff in
providing care to patients.
,See Report of Dr. Miller, pp 5-6 (CR 50) (Appendix B). Without a doubt, the
prescription of a regime of blood thinner is clearly with the scope of Dr. Miller's
8
practice as a physician that deals with patients that are stroke victims and patients
that reside in nursing homes. It is clearly within the scope of his expertise, then, to
testiSr about the effect of failing to take the prescribed regime of the blood thinner.
Moreover, Dr. Miller goes on to state additional information concerning his "case
specific expertise," that further demonstrates his expertise in treating patients in
nursing homes, expressly including patients that suffer from the "same or similar"
conditions Demings, including illnesses related to strokes, hypertension, and
related illnesses, gained through:
1) His attending, and successfully completing, medical school classes, and
residency, that teach the evaluation, diagnosis, cafe and treatment of patients
with the same or similar conditions as Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications.
2) Practical experience of diagnosing and treating patients with the same or similar
conditions as Ms. Legatha Demings, and for illnesses related to strokes,
hypertension, and their complications;
3) Discussions with colleagues atyearly conferences, seminars and meetings;
4) Study of technical works routinely published in textbooks, journals and
literature conceming the evaluations, diagnosis, care and treatment of patients
with the same or similar conditions as Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications;
5) My routine discussions and consultations with other physicians who also treat
patients with the same or similar conditions as Ms. Legatha Demings, and for
illnesses related to strokes, hypertension, and their complications;
9
6) His routine and regular contact with nursing home nurses, staff and residents
who take care of patients with the same or similar conditions as Ms. Legatha
Demings, and for illnesses related to strokes, hypertension, and their
complications;
7) His knowledge and experience giving lectures and in-service conferences to the
nurses and staff;
8) His experience service on numerous hospital and nursing home committees;
and
9) His observation ofnurses and nurse conduct, supervising residents and
instructing nurses and residents in the evaluation, diagnosis ) eare and treatment
of patients the same as, or similar to Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications.
Id. at pp. 6-7. Without a doubt, Dr. Miller provides sufficient information to meet
the requirements for reliability under the applicable standards for Texas Rules of
Evidence 702 and 703. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993); Kunho Tire Co. v. Carmíchael, 526 U.S. 137 (1999); Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006); Gammill v. Jack Williams
Chevrolet, lnc.,972 S.W.2d 713 (Tex. 1998); Nenno v. State,970 S.W.2d 549
(Tex. Crim. App. 1998). As a practical matter, it would be virtually impossible to
locate and retain a practicing physician who could truthfully state that he has
specifically studied the specific effects of or had specific training concerning the
specific drug Xarelto, as GNH asserts is required in this case. That is not required
by the Medical Liability Act. Instead, Dr. Miller has provided more than sufficient
l0
information that would qualiS him to testiff under Texas Rules of Evidence 702
and 703 on this issue, which is what is required. In this case, Dr. Miller provided
sufficient information that he has experience in treating patients in nursing homesl
and treating patients that have suffered strokes, which would necessarily include
the medications associated with the treatment of the condition. Dr. Miller's report
contains a long recitation of his experience and qualifications in dealing with
stroke victims and nursing home patients. For this reason, the cases cited by GNH
on this issue are inapposite,2 and GNH's argument on this point is simply not
persuasive.
C. The reports do not simplv provide conclusory statements on
causation.
Dr. Miller provides a seventeen (17) page, single spaced report. He devotes
four (4) pages of the report to addressing causation. See Dr. Miller Report pp. 11-
15 (Appendix B) (CR 50). Dr. Miller ultimately concludes that:
As a direct cause, this facility and its staff failed to comply with those
standards set forth in paragraph numbers: 1 , 2, 3, 4, 5, 6, 7 , 8, 9, 10, 1
l, 12, 13, 14, 15, 16, 17, 18, 19, and 20.It is my opinion, based upon
my experience, knowledge, qualifications and review of these records
that these standards were not followed and the result was that Ms.
I Interestingly, GNH chooses to focus simply on its failure to provide Demings with the
medication. However, it should be noted that Demings has asserted a number of breaches of
duty in this matter, including the duty to provide the proper medication, that led to the demise of
Ms. Demings. See Facts Section, supro, Page 3. These items are clearly addressed by the Miller
and Kaper reports.
2
Colliri v. Pustejovslry,280 S.V/.3d 456 (Tex. App. Fort V/orth 2009, no pet) and HEB Grocery
Co. v. Galloway,2014WL2l52I28 (Tex. App. - Beaumont 2014, not pet).
11
Legatha Demings was harmed and injured. The failure to comply with
these standards caused, within a reasonable degree of medical and
nursing, probability and certainty, Ms. Demings to suffer a stroke,
extensive hospitalization, rehabilitation, and related complications,
which compromised her overall health and well-being, and resulted in
an overall worsening of her condition, unnecessary and preventable
pain, suffering, mental anguish, and loss of dignity. These injuries and
illnesses could have, within a reasonable degree of medical and
nursing, probability and certainty, been prevented or
detected/addressed earlier if these standards had been followed.
See id. atp. 14 (Appendix B) (CR 50). Dr. Miller did not simply state this opinion
in a conclusory matter. Instead, he devotes pages 11-L4 on providing the basis for
his opinion, which includes, but is not limited to, the following matters:
o In the hospital, Ms. Demings was diagnosed as having had a cerebrovascular
accident (CVA) or stroke. Ms. Demings was discharged from the hospital on
May 25,2012.In his discharge summary, Ms. Demings' physician documented
that this patient's stroke was of ". ..ischemic origin, most likely caused by her
atrial fibrillation.
a In order to treat Ms. Demings' condition and prevent further strokes, her
physician discharged her from the hospital on a blood-thinning medication,
Xarelto. This physician stated in his discharge summary that Ms. Demings
would be "...started (on) Xarelto for her anticoagulation to avoid further strokes.
a On May 25,2012, Ms. Demings was discharged from the hospital and admitted
to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas for
further recovery and rehabilitation. According to Ms. Demings' physician, this
resident had begun to make some improvement as evidenced by improvement
in her speech and increased movement of her left side.
o After being in the care of Garrison Nursing Home and Rehabilitation Center for
less than two weeks, Ms. Demings became "confused, combative, and unable to
communicate". On June 8,2012, she was taken by emergency medical services
back to Nacogdoches Medical Center for emergency evaluation. There a
l2
computerized tomography (CT) scan of her head revealed an ischemic
infarction of her brain consistent with a stroke.
a One of Ms. Demings' consulting physicians, a neurological specialist,
documented in the medical record that Ms. Demings had suffered a
"Cerebrovascular accident extension with newly developed global aphasia,
aphasia and left-sided flaccid paralysis".
a Ms. Demings remained in the hospital for 12 days, and was discharged on June
20, 2012. At the time of her discharge from the hospital, Ms. Demings'
physician noted in his discharge summary that this patient's overall medical
condition had deteriorated as a result of her stroke she suffered at Garrison
Nursing home and Rehabilitation Center, to the point that Ms. Demings was
made a do-not-resuscitate status such that if she experienced a cardiovascular or
respiratory failure, she would not be intubated or placed on a ventilator or
breathing machine.
a A "Medication Error Report" made by the nursing staff of Garrison Nursing
Home and Rehabilitation Center on June 8, 2012, documented that from the
time Ms. Demings was first admitted to this facility on May 25,2012 until the
time of her stroke and transfer on June 8,2012, Ms. Demings was not given her
blood-thinning medication, Xarelto as ordered by her physician. This
medication had been ordered to be given in a dose of 20 milligrams (mgs) at
bedtime daily.
a This same report stated that "res. (resident) arrived after 5:00 pm on a Friday.
This medication (Xarelto) was ordered along (with) all other meds from nursing
home pharmacy nurse transcribing orders had to have all meds written on
-
pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be
delivered that night".
o The Medication Error Report went on to document that a nurse at this nursing
home "failed to transcribe this med (medication) to MAR (Medication
Administration Record)"... "an oversight". A question on this same form asked
"Could the error have endangered the life or welfare of the patient?" The
responsible nurse completing the form answered the question with "Makes her a
higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."
t3
a On a subsequent hospitalization on August 5, 2012, in his pre-operative history
and physical, one of Ms. Demings' physicians documented what had happened
to her during her stay at Garrison Nursing Home and Rehabilitation Center
from May 25,2012 through June 8, 2012. This physician stated that prior to her
first admission to this nursing home, Ms. Demings "was found in atrial
fibrillation. She was started (on) Xarelto. Apparently... did not follow-through
in the nursing home, and she had.. strokes, disabling, with severe
She was rendered substantially disabled."
a This physician also documented in his discharge summary of this August 5,
2012 hospital stay, the importance of a patient such as Ms. Demings who
suffered with atrial fibrillation, to always remain on a blood-thinning
medication such as Xarelto. He stated that "She is to continue with Xarelto.
Instructions were given to the family to make sure that this medication is never
stopped."
o The staff of Garrison Nursing Home and Rehabilitation Center in Garrison,
Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for
the development of future strokes due to her past medical history which
included hypertension, atrial fTbrillation, a previous TIA and aprevious stroke.
See id. at pp. tI-14 (Appendix B) (CR 50). What is more, Dr. Miller reviewed the
report of Kaper, to which his report is supplementary. In Kaper's report, there is
also a discussion concerning causation:
Causal Relationship Between the Fail ure and the Iniurvl}{arm
Xarelto is a blood thinner, the precise purpose of which is to reduce
the risk of stroke in patients who suffer from atrial fibrillation.
Defendant(s) failed to provide Ms. Demings, with the Xarelto for
fourteen (14) days . She then had a severe stroke, which would have
in all reasonable medical probability been avoided had Ms. Demings
been administered the Xarelto, the purpose of which was to prevent a
stroke.
Further, the Medication Error Report generated by Defendant(s)
clearly recognizes the problem of not administering the Xarelto to Ms.
Demings Checking rr\Esrr to the question of whether the "error"
t4
(failure to administer the Xarelto to Ms. Demings), "could have
endangered the life or welfare of the patient," the Director of Nursing
stated:
Makes her a higher risk for stroke in view of her diag. of
atrial fibrillation (not taking it) Taking the medication
makes res. higher risk for a bleed.
Atrial fibrillation the heart to pump irregularly, and the
causes
concern is that pooling blood can clot in the upper chambers of the
heart. These clots may then sometimes travel through the body to the
brain, with a stroke being the result. As a result, many patients
diagnosed with atrial fibrillation are prescribed a blood thinner, one of
which is Xarelto,
Xarelto is designed to block the enzyme called Factor Xa. Factor Xa
is the activated form of the coagulation factor thrombokinase, known
eponymously as Stuart-Prower factor. Factor X is an eîzymq a serine
endopeptidase, which plays a key role at several stages of the
coagulation system. Inhibition of Factor Xa interrupts the intrinsic and
extrinsic pathway of the blood coagulation cascade, inhibiting both
thrombin formation and development of thrombi, Factor Xa is
inactivated by proteinZ-dependent protease inhibitor (ZPl"), a serine
protease inhibitor (serpin). By inhibiting Factor Xa in this way,
Xarelto is able to inhibit the dangerous blood clotting that can be a
result of a patient suffering from atrial fibrillation:. Xarelto is well
absorbed from the gut, and maximum inhibition of the Factor Xa
occurs four hours after a dose. The intended effect lasts approximately
8-12 hours, but Factor Xa activity does not return to normal within 24
hours.
Given that Ms. Demings had previously suffered a mild CVA, likely
as a result of clotting caused by atrial fibrillation, it was extremely
important that she be placed on (and maintain) a regime of medication
to reduce blood clotting. That is why Ms. Demings' treating physician
prescribed the Xarelto. Ms. Demings entered Defendant(s) facility to
rehabilitate herself. The family reports that she was doing very well,
that she could communicate well, and that she was fully cognizant.
According to the family, Ms. Demings was needing to gain strength in
her hand. It was only after she stopped taking the medication that she
suffered another, this time much more sever CVA that, according to
15
the family totally and completely incapacitated her. The medical
records on June 8, 2012, indicate that any blood thinner that
Defendant(s)had huniedly administered to Ms. Demings had not
taken effect in time to stave off the CVA.
Since June of 2012, while taking the Xarelto, Ms. Demings' medical
records demonstratethat she has not suffered another CVA.
See Kaper Report 3-a (Appendix A) (CR 25). The information contained in these
two reports provides adequate information to inform GNH of (i.) the specific
standards of care at issue, (ii.) the specific conduct of GNH that Demings has
called into question, and (iii.) how GNH's conduct caused injrrry to her. Further,
the information provided a basis for the trial court to conclude that the claims have
merit, and are they are not frivolous. For these reasons, then, the statements on
causation as provided by Kaper and Dr. Miller are more than sufficient to meet the
requirements of the Medical Liability Act. GNH seems to interpret the Medical
Liability Act to require Demings to provide a level of proof that is more
attributable to what is expected at the final trial of this matter. Such is improper.
The reports provide reasoned analysis on the matter that provides a basis for
causation in this case. The trial court found the reports to be sufficient and denied
GNH's objections and motion to dismiss. Should this Court disturb the trial
court's decision in this case, such would be erroneous. See Van Ness v. ETMC
First Physicians,46l S.W.3d 140 (Tex. 2015).
t6
D. Alternativelv. this is a ma tter of res ínsa loouitur.
For the reasons stated above, the expert reports that were furnished were
sufficient to meet the requirements of the Medical Liability Act. To upset the trial
court's ruling would be erroneous. See Van Ness v. ETMC First Physicians,46l
S.\M.3d 140 (Tex. 2015). Alternately, however, Demings also respectfully asserted
in the trial court that an expert opinion in this case on causation is not required in
this matter because the doctrine of res ipsa loquitur applies. Res ipsa loquitur \s
applicable when the following two circumstances are present: (1) the character of
the accident is such that it would not ordinarily occur in the absence of negligence,
and (2) the instrumentality causing the injury is shown to have been under the
management and control of the defendant. See Haddock v. Arnspiger,793 S.W.2d
948,950 (Tex. 1990). Res ipsa loquitur is a rule of evidence by which negligence
many be inferred, it is not a separate cause of action from negligence. Id. With
regard to medical malpractice cases, res ipsa loquitur applies to those cases to
which it had been applied as of August 29, 1977, the effective date of the Medical
Liability Act. Tpx. Crv. Pnacr. & Rrv. ConB Ann. ç74.20I (Jones McClure
2015). Res ipsa loquitur remains applicable to medical malpractice cases where
the nature of the alleged malpractice and injuries are within the common
knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at
951. The Haddock case describes examples of areas where res ipsa loquitur has
T7
been held to apply to medical malpractice claims: negligence in the use of
mechanical instruments, operating on the wrong portion of the body, and leaving
surgical instruments or sponges within the body. Id. This is the sort of case in
which res ipsa loquítur applies. GNH clearly asserted in its own report that the
failure to administer the Xarelto to Demings "makes her a higher risk for stroke in
view of her diag. of atrial defibrillation." No expert is needed - causation is shown
directly from GNH's own mouth. Put another wây, GNH, by failing to provide the
Xarelto to Demings caused her to suffer from the exact malady as what the
medicine is intended to prevent - a stroke. That is by definition res ipsa loquitur
As such, Demings would alternatively argue that expert testimony on causation is
not even necessary in this case.
CONCLUSION AND PRAYER
WHEREFORE PREMISES CONSIDERED, Appellee Legatha Demings
respectfully requests that the Court deny Appellants Garrison Nursing Home and
Rehabilitation Center's and Garrison Nursing Home, Inc.'s appeal in this matter,
affirm the order of the trial court in this matter, remand this matter to the trial
court, and grant to her any and all further relief to which she may be justly entitled.
18
Respectfully Submitted,
L¡.w Onnrcn on SrrpHnN SHrnns, PLLC
Attorney and Counselor atLaw
123 San Augustine Street
Center, Texas 75935
Tel. (936) s98-30s2
Fax. (936) 598-3031
stephen@shireslawfi rm. com
By: /s/ Stephen Shires
\il.Stephen Shires
Texas Bar No.50511894
Attorney for Legatha Demings
CERTIFICATE OF SERVICE
This is to certi$ that on the 9th day of November,2015, atrue and correct
copy of the above and foregoing document was served on the following in
accordance with the Texas Rules of Appellate Procedure:
Mr. David W. Frost
1121 ESE Loop 323, Suite 200
Tyler, Texas 75701
Facsimile (903) 58 1 -3701
/s/ Stephen Shires
Stephen Shires
CERTIFICATE OF' WORD COUNT COMPLIANCE
I certifu that the word count of this Appellee's Brief is 5801 words. I relied
on the word count function of my word processor to determine this count. I certiSr
that this brief compliance with the typed-volume limitations of Texas Rule of
Appellate Procedure Number 9. It has been prepared in proportionately spaced
typeface in 14 pt. Times New Roman font.
Dated: November 9,2015
By: /s/ Stephen Shires
Stephen Shires
I9
INDEX OF APPENDIX
A. Expert Report of Pauline Kaper
B. Expert Report of Dr. Keith Miller
C. Van Ness v. ETMC First Physicians,46I S.W.3d 140 (Tex. 2015)
D. Tpx. Ctv. Pnacr. & Rstvt. Coop Ann. ç74.201(Jones McClure 2015)
Tsx. Ctv. Pnecr. & RBIr,l. Coos Ann. 574.351 (Jones McClure 2015)
Tpx. Cw. Pnacr. & Rsivt. Coop Ann. ç74.403 (Jones McClure 2015)
20
o
Append 1X
DISAßTLTTY NHHDS
116 Tenaha Street
Center, Texas 15935
Phone: (936) 59i-8900 Pauline Kaper, R.N.
Facsimile: (936) 598-2300
JanuarY 10,2014
Mr, Stephen Sirires '\
Law Office of Stephen Shires PLLC
403 Nacogdoches Street, Suite 1
Center, Texas 75935
RE: Legatha Denmùngs v. Garrison Nursing Home and Relmbilitation Center, et. al,,
Cause Number CÍ+¡O¡ 19; in the District Court of Nacogdoches County, Texas
Dear Mr. Shires,
In response to your request for me to review the above-matter, the foliowing
is my report,
It is my r:lcle¡siandin[ ttrut yóu hnvc" instituted suit against Defendants Ganison Nursing Home
an¿ Ránabilitatior¡. Ceirter and Ganison Nur:sing Home, Inc., alleging that
they, through their
directors, officers, employees, and/or agents, committed negligence (and potentially gross
tnedisnlio¡:l to
neglige.rroe) against you]: ciient, Ms. Legalhtr Ðerrlnings, by fai.liilg Tr¡ adnünister
hei tliat had been prescribcd 1o her by her treating physician. \iou allege thal sl,le {.lien suff'ered a
severe stroke that the said medication was intendecl to prevert. It i.s rriy furthe¡: unrlc.lslnnclin¡¡
that you are assertí¡g tJrat ìJeft¡clant(s) also conlu,i{ßcl negligencc by failÍng
to itave a ¡:ltlcetlttre
in piacc to insure tliat rrrrors ir: î:.anscription of ¡:eço¡:tls (as was ilte ca,se in thj.s maller) do nnl
ardlor are iclentified ancl coueclecl in n timely rnârJticï. Thu fbllorl'irrg consti{irtes m.y
'sáor
o1:inion as to the relev¿ult standard of care govcrrrirrg nuruitrg honre concluct, how Def'end¿rrts
proximately
violate,cl their duties/stanrJarcl crf care to Ms. Dcmmings, and how those violations
caused Ms. Demmings' injurY.
A nnlicablc Stantlard ol' (-*arc
In general, nursing facilities have the following duties, among others, as a part of their
applicable standard of care:
1. to provide lcsidenls tliith rinrely ¿urd accr.uate care ¿Ì:ìsesËil1eüts ¿utcl necessal¡' srqlcrvision;
2. to use ïeasonable c¿ire in trealing resiclc¡rts rvith the cie'gree ol, sk"ilJ ancl learuing orrlinarily
possessed and used by nursing home facilitics in the salrc ür sirnilar locality; nrrcl
I
and rnaintaining the higirest practicable level
of physical'
3. to assist residents in attainiirg
mental, and psychosocial well-being'
parlicular duties that are
Included within these general duties are the following
particularly relevant in this case:
o the duty to make sure that residents receive all
of their medications timely and in the
approPriate doses;
arrcì/Or: Úl'clers are acculalely
o the rluty to make sure that the rcsirienl,rs ¡:rescliption(s)
cha.rl,n^/reoortis and properly sent
transcribed by the rur::sing home stalf ontr¡ ilìe residctrt's
to be f,riled bY the PharmacY; and
accu¡acy of said tLanscriptions'
the duty to have a system in place that insures the
" til. to N{.tet
M ch d
Slatrdnl'tls ol'Care
.L
Nursing Home and
In this matter, Ms. Demrnings was a resident at Garrison
she rrad bee' rliagnosed with
r{e}nbilitati*n center for the purpose of seeking rerrabiritatior:.
carciiovascnlar ¿ccident ("cvA" or
arrjar fibriJ,ration and p."uio"Ëry suffered a milã iscrrcnric
,*stroke,,), and as a result, her ph.yrician had prcscriboel xarelto (20nrg) to be Hkcn to reduce the
greltcr a¡rd much mole scvei:e) CVA' The
rislc that she would suffer atrr:ther (and possibly
n:cclicalicxr *u, prup*,ìf oraerert by Dr. Ilen.Dis
ir*llrnun. I-}Orryer¡¡,r. i1** tr¡ ail err:(.r: in the
h:anscri¡:tir:n of the ,oa*í Uy a nulfÌe ín the cnrploy
of De'f'errdar:f(s)' thc Xarclto was nilt included
for Ms' Demmings' According to the
in the list of medications that Defendant(s) wås tó provide
Medication Error Report generated by Defendant(s):
hospital)] - Ies'
Error in transcription of order [(written doctor's order from
ordered along [with] ali
arrived ater l,oolp.m. on a Friday. This medication was
other meds nnr,, riu,:si,rg home ¡rl ur,'.,,nry - nur.se
lrarlscrillìng cUrlers had to have
all meds 1rh*ärruoy oirJer sheets and
faxcti itt 1o 1r¡nrruacy by 6 p'm' so
"uitt*n ",
¿*v-"ãrrá te deliverea thai night. Nurse transcribing faiied to transcribe this
med. to MAR' Al oversight.
orders are
At that time, Defendant did not appeã to have a system in place
to. insure
-that for Ms'
i"ranscrihecl proirerly, Å.s a result, ihe pharL,racy did
not frll a prescriptiol.for Xarelto
did not administer any
llennri:rgs, ar:cì from N,l;ry 25, ZOiZ, through iune,S, 2-012,Defendant(s)
Xarelto tä lr¿s. Demmings, as her doctor had prescribed'
'Further, it appears from that same Medication Error Report
tha! al some p-oint on June 8'
2012, after O"f"oa^tttqs) realized that they made a mistake
in not giving Ms. Demmings the
of the medication (60 mg) in a very
Xarelto, fufr. n"*-ioËr',h"r, was adminisiered th¡ee doses
,frot pétioa of time. This creates a veïy dangerous situation for Ms'
Demmings'
onJune8,20!2,Ms.Demmingssufferedasubsequent,verySevefeCVA'
For reasorrs that sh6¡.lcl be iqr¡rarent on ll:ßir face, it is irn¡:crntive
thtt' nnrsing holnes
nmount to its vesidsr¡'ts' cle::tninly, this i's an
administer the prr:per rneiiioation i,:r'the proper
2
even to a healtliy
important issue for all medical personnel, including pharmacists, because
dose) rnay be extremely harmful, toxic
p"rron, ingestion of the wt'ong mådication (or the wÏ91g
and in some cases even lethal. This concern is magnified exponentially for residents in nursing
Further, the failure to
hornes, many of whom are already in a weakened physical condition'
can complicate
continue a rágime of medication that has already been introduced into the body
the pliysical l::oblems that the patient suffers from, and may cause problems with any other
medications that he or she is taking.
that his or her
Therefore, it is crucial that when a new resident is admitted to the facility
it comes.to prescriptions and medications'
information be properly transcribed, especially when
omitted, could lead to
For exampl., ,ho.,íd information about an allergy to a medication be such
a very dangerous situation. The exact same thing is true here where
the enor in the transcription
of thå order/records caused Defendants to fail to administer a medication to Ms. Demmings, the
purpose of which was to prevent any further (or more severe) strokes' As such, it is extremely
irnportant that ilie facility tav" u proô"rr in piace io verify that the transcription
is correct, or that
any mistake be caught aå quickly as possible and fixed. No such process existed in this case, and
as a result of Ms. Demmings .toi tuking the Xarelto, she suffered
a severe stroke while in the care
of Defendant(s).
C ¿rnd th
Xarelto is a blood thinner, the precise pulpose of which is to reduce the risk of stroke in
patients who su1'¡sr l1:::r nlrjal fib¡:illaiion. Def'erxiuurt(s) f'ai.led ln providc Ms. Dentnìngs
rvith
the Xar.eito for f:i:uïtcen (14) clays. She thsn lt¿lci a severe sir
When d2
Who notif ied the physician?
When?
Hes he seen the patient since the error was made7 úr", n¡ro
What precautions can you take to prevent a similar error
nð re¡ Nurse mð ettot o gnature o urslng
S¡9n¡t U Ph ysic lan
D ate
f orm 3117 BRtcGS, oes Mo¡nes, towa 50306 PRINTEO IN U.S.A MEDICATION FRRNR RtrÞñT¡T
Curriculum Vitae of
LOIS PAULINE I{APER, R.N.
B7B County Road
|oaquin, Texas 7 5954-33L8
Phone 936'248-45t4
JltilSLo_NAt;
Marital status Married.
Date of Birth: August 3,1939.
ED"lJç,ÁTION,I
Alvin funior Colìege
August t97Z - Associate inApplied Science Degree
San Iacinto Junior College
May I979 Nursing Home Administrator #4392
LICENSE:
Registered Nurse #2'28t64
Nursing Home Administration
T'liAclTI,l\1ft.
August - November lg}4lnstructor Alvin communify college
Meãication Administration course to certify Medication Aides
UXJIIil};W
A-¡¡eust lq72 - Itt
Registered Nurse at U.T.M.B. in Gaiveston, Texas
¡:ø - ¡¡*1979
Iulv ll974":.Mav
bii".totof Nursing at Manor Care - Texas City, Managed 40 nursing facility
employees and staffing for a 110 bed nursing home.
Ma¡' 197? - Itlcvenrbel:l
Administrator at Manor Care - Texas City. Managed 100 empioyees.
Operated the facilÍty within budget. impìemented a safefy prog{am which
réduced lost time accidents. One year with no accidents. Reduced the aged
accounts to a minimum. Developed an incentive plan and reduced sick
time to almost zero, Developed policies and procedure manuals, During
my admÍnistration, the facility maintained a Superior Rating with the Texas
Department of Health. Increased the private pay census to 50% and had a
waiting list for admissions.
9!3 ;- Xe!:çt g¡lil!-q ¡-r-ll y' I h e S l- a tc Il r¡ a-r-dlf'NUr¡iug$ul
e,:
Ss p t c¡1i¡elå-1
Manor Care Nursing H;r; received a direct hit by Hurricane Alicia'
My
staff of twenty-two ãmployees and I cared for over ninety residents'
State
Board of Nursing necognized my facility for the job that we did during the
hurricane.
t8 3 --D ecq ÌlrJ:E: !lj¿84
D elcem h f¡*'!.
R%irt.;d Ñu.r. Coordinator of Home Health ServÍces at Memorial Hospital
of Galveston County. Employed to start up a new department of Home
Health Service, Coårdinating services in the home for NursÍng, Physical
of I and
Therapy, Occupational Therapy and Speech. Coordinated a staff
*orkud wit thã doctors and S-ocial Services to receive referrals. Developed
forms, policies and procedures manual to develop the Home Health
Department.
I_u¡sjggå:U.a rshlåB-6*
'itot"
of Texas v Autumn Hills Convalescent Center, Inc'
to work
Requeited by the Assistant Attorney General of Texas, David Marks
witir the prosecution of the staff and management of Autumn Hill Nursing
Home. ihe care concerned the multiple deaths of nursing home patients
but specifically Elnora Breed, As reported, "ln November L978, Mrs' Kaper,
R.N. a nursing consultant was hired by Autumn Hills NursÍng
Home after the
state health ãepartment found problems at the home. Mrs' I{aper was to
create and put.in place a plan of correction for the problerns' Mrs' Kaper
consulted with the staff and patients for three weeks and the state came back
and the problems *"ru ,eroÍved at that time." Mrs. I(aper worked with the
special prosecutor during the six month trial where she testified multiple
times cbncerning the murder case. The .State of Texas v Autum Hílls
Convalescent Center, Inc. revolved around the widespread care
and
deprivation and harm caused by a corporation's financial decision to cut
esiential services and supplies in order to maximize profits.
J¿rntl¡rr.v 1.9tF - L9B6
Mu.,o. Healthcare, lnc,: Asked to trouble shoot for a nursing home that
was in trouble as Administrator for Clear Lal2015 WL 1870051, 58 Tex. Sup. Ct. J. 746
provides adequate information to inform the
46r S.W.3d t4o defendant of the specific conduct the plaintiff
Supreme Court of Texas. has called into question, provides a basis for the
trial court to conclude that the claims have
Melissa Van Ness, Individually and as Next merit, and does not contain a material
Friend, an Heir at Law, and a Suryiving Parent of defrciency. Tex. Civ. Prac, & Rem. Code Ann.
Nicholas Van Ness, Ronald Van Ness, Individually $$ 7a.3s1(l), (rX6).
and as Next Friend, an Heil at Law, and a
Surviving Parent of Nicholas Van Ness, and Estate
of Nicholas Van Ness, Petitioners, 2 Cases that cite this headnote
v.
ETMC First Physicians & Kristin Ault, D.O.,
Respondents
l2l Appeal and Error
No. r4-o353 | Opinion delivered:April24, zor5
q.'*Rulings on adrnissibility of evidence in
general
Synopsis A trial court's ruling on the sufficiency of an
Bacl2014 WL 1308624, reversed,
rendered, and remanded, Parents petitioned for review.
f3l
Appeal and Error
,;'-Cases Triable in Appellate Court
[Holding:l The Suprerne Court held that the trial court Appeal and Error
acted within its discretion in determining that expert's q"*SuffTciency of Evidence in Support
report was a good-faith effort to comply with the statutory
requirernents for expert reports in health care liability When reviewing for abuse of discretion,
cases. appellate coufts defer to the trial court's factual
determinations if they are supported by evidence
but review its legal determinations de novo.
Petition for review granted; judgrnent of Couft of Appeals
reversed and case remanded.
1 Cases that cite this headnote
West Headnotes (6)
l4l Appeal and Error
ç*Abuse of discretion
lll Health
ù'-"Affidavits of merit or meritorious defense; A trial court abuses its discretion if it rules
expert affidavits without reference to guiding rules or principles.
A report is a good-faith effort to comply with
the statutory requirements for expeft reports in 1 Cases that cite this headnote
health care liability cases, so as to survive a
challenge to the sufficiency of the report, if it _*
_
1.'irp'.1{,1¡,¡;f{py.l O 2015 fhomson Reuters. No claim to original U.S. Government Works. 1
Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015)
2015 WL 187005'1 , 58 Tex. Sup. Ct. J. 746
Heidi O. Vicknair, Jason Charles Webster, Houston, Tina
Brumbelow, Tyler, Vincent L. Marable III, Paul Webb,
lst Health P,C., Wharton, for Petitioners Estate of Nicholas Van
n^Affidavits of merit or meritorious defense; Ness, Melissa Van Ness, Ronald Van Ness, individually
expert affìdavits and as next friend, heirs at law, and surviving parents of
Nicholas Van Ness.
For an expert's repofi in a health care liability
case to be sufficient, the expert must explain, Russell G. Thornton, Thiebaud Remington Thornton
based on facts set out in the report, how and why Bailey LLP, Dallas, for Respondents Kristin Ault, D,O.,
the breach caused the injury; a bare opinion that ETMC First Physicians,
the breach caused the injuLy will not suffice.
Tex, Civ. Prac. & Rem. Code Ann, $$ 74.351(l), Opinion
(Ð(6).
PER CURIAM
2 Cases that cite this headnote
**1 This case, which is subject to the Texas Medical
Liability Act (TMLA), TEX. CIV. PRAC, & REM,
CODE ch. 74, involves the adequacy of an expert report,
The issue is whether the trial court abused its discretion
I6l
Health by denying the defendants' motion to disrniss in light of
'f*Affidavits of merit or meritorious defense; conflicting statements in the plaintiffs' expeft report,
expert affidavits some of which the defendants alleged, and the court of
appeals held, failed to link the expert's conclusions to the
Trial court acted within its discretion in underlying facts,
determining that expert's report was not
conclusory but, instead, was a good-faith effort Nicholas Van Ness died from pertussis (whooping cough)
to comply with the statutory requirements for when he was two months old. His parents, Melissa and
expert reports in health care liability cases, such Ronald Van Ness, sued Kristin Ault, D,O,, and her
that parents' action against physician and employer, ETMC First Physicians, alleging that Dr.
physician's employer after minor child died of Ault's negligence caused Nicholas's death and that
pertussis (whooping cough) survived a motion ETMC was vicariously liable for her negligence. The Van
to dismiss for failure to comply with the Nesses timely served Dr. Ault and ETMC with an experl
requirements, even though the report contained report by Alvin Jaffee, M.D., then served an amended
conflicting statements regarding antibiotics and repoft after the trial court sustained the defendants'
causation; the reporl also set out that child's objections to the original. The defendants again moved to
illness was treatable when physician saw him dismiss the suit, contending that Dr, Jaffee's opinions as
and that starting antibiotics at that time and to causation were conclusory because the amended report
continuing them as indicated by diagnostic (the report) failed to link his opinions to the underlying
testing probably would have prevented child's facts, The trial court denied the motion, On interlocutory
death. Tex, Civ, Prac. & Rem, Code Ann. $$ appeal, seeTEX. CIV. PRAC. &. REM. CODE $
74,351(l), GX6). 51,01a(a)(10), the court of appeals reversed and ordered
the suit dismissed. ETMC First Physiciqns v. Van Ness,
461 S.W,3d 152 (Tex.App.-Tyler 2014). We reverse the
I Cases that cite this headnote judgment ofthe court ofappeals.
ttlA plaintiff asserting a health care liability claim must
serve each defendant with an expeft repoft that includes
"a fair summary of the expert's opinions ... regarding
*I4I
ON PETITION FOR REVIEW FROM THE
applicable standards of care, the manner in which the care
rendered by the physician or health care provider failed to
COURT OF APPEALS FOR THE TWELFTH meet the standards, and the causal relationship between
DISTRICT OF TEXAS
that failure and the injury, harm, or damage claitned."
Attorneys and Law Firms
TEX, CrV. PRAC. & REM. CODE $ 74.351GX6). A
challenge to the sufficiency of a report must be sustained
ti',r¡¡1,i!.,,t.,:;f{*rt' @2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015)
2015 WL '1870051 , 58 ïex. Sup. Ct. J. 746
if "the report does not represent an objective good faith The defendants objected to Dr. Jaffee's report on the
effoñ to cornply with the fstatutory requirements]." 1d. $ ground that it failed to explain how Dr. Ault's alleged
74.351(l). A repoft is a good faith effort if it provides negligence caused Nicholas's death, specifÏcally
adequate infonnation to "inform the defendant of the contending that Dr. Jaffee's rnedical conclusion was not
specific conduct the plaintiff has called into question, .., linked to the facts of the case and was conclusory. The
providefs] a basis for the trial court to conclude that the defendants moved for dismissal of the suit. The trial court
clairns have merit,"Bowie Mem'l Hosp. v. Wright, 79 denied the motion. The couft of appeals reversed and
S.W.3d 48, 52 (Tex.2002) (per curiam), and "does not rendered judgment dismissing the Van Nesses' suit with
corrtain * 142 a material deficiency,"Samlowski v. Iïooten, prejudice, agreeing with the defendants that Dr. Jaffee's
332 S,W.3d 404,410 (Tex.2011), report was deficient as to the causation element. 461
S.W.3d at 143
l2l l3l l4l ltlA trial court's ruling on the sufficiency of an
expert's report is reviewed for abuse of discretion. IolDr. Jaffee's nine-page repoft generally discusses
Rosentond v. Al-Lahiq, 33 1 S.W.3d 764, 766 (Tex.201 1); pertussis, including its diagnosis and treatment. His reporl
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 also contains separate sections addressing the applicable
S.W.3d 873,877 (Tex.2001). Under that standard, standard ofcare, breach ofthe standard, and causation. In
appellate coults defer to the trial court's factual the standard ofcare section, he opined, in part, that
detenninations if they are supported by evidence, but
review its legal determinations de novo. See Stockton v. [t]he applicable standard of care as to Kristin Ault, DO
Offenbach,336 S.W.3d 610, 615 (Tex.2011). A trial court is upon evaluation of a one month old child who
abuses its discretion if it rules without reference to pl'esents with symptoms such as a history of fever,
guiding rules or principles. Samlowski, 332 S,W.3d at cough and nasal congestion, compounded by sick
410. An expert must explain, based on facts set out in the contacts at home, is to perform laboratory tests,
repoft, how and why the breach caused the injury, See administer antibiotics prophylactically while the tests
Jelinekv, Casas,328 S,W,3d 526,53940 (Tex,20l0). A are pending and/or to admit the infant to a medical
bare expert opinion that the breach caused the injury will facility...,
not suffice. Id
**2 Dr. Jaffee set out the following facts in his report as
those on which he based his opinions, Nicholas was born
.., [H]ad Dr. Ault, performed any of these tests, it
would have shown Bordetella pertussis at a treatable
orr November 13, 2009. He was seen by Dr. Ault on
stage and but for the failure to treat Nicholas Van *143
Novernber 19 and November 30 for regular checkups, and
Ness as outlined above he would have had a 51% or
Dr. Ault noted no concerns at either visit. However, the
more chance of survival.
records from his four-week checkup on December 11
reflected that Nicholas had a fever with a temperature of
In the breach section, Dr. Jaffee states again that Dr. Ault
100.2 degrees, was coughing and suffering from nasal
breached the standard of care in several ways on both
congestion, and was exposed to "sick contacts at home."
December 11 and December 15, including failing to have
According to an affidavit submitted by Nicholas's mother,
various laboratory diagnostic tests performed on Nicholas
she reported to Dr. Ault on December 11 that Nicholas
and failing to administer antibiotics prophylactically
had been coughing to the point that he could not breathe
while the tests were perforrned. Finally, in the causation
and was exhibiting facial discoloration. Nothing indicated
section of his report, Dr. Jaffee repeats his opinion that
that Dr. Ault performed any laboratory or diagnostic tests
Dr, Ault should have taken specifìed actions including
on Nicholas.
running diagnostic tests on Nicholas and administering
antibiotics prophylactically. He also states, "It is within a
The Van Nesses returned to see Dr. Ault on December 15
reasonable degree of medical cerlainty and/or with 51%
and explained that Nicholas's symptoms had worsened.
certainty that had Dr. Ault appropriately evaluated and
Dr. Ault physically examined Nicholas, but again did not
diagnosed him, Nicholas Van Ness would have received
perform or order any tests. On December 20, the Van
the appropriate dosage and treatment of antibiotics in a
Nesses took Nicholas to East Texas Medical Center
timely manner, and he would not have expired on January
Hospital in Jacksonville, where he was treated for acute
20,2010."
pneurnonia, wheezing, and tachycardia. The following
day he was transfened to the Children's Medical Center
As supporl for its conclusion that the report was deficient
Hospitalin Dallas, where he died on January 20,2010.
as to causation, the appeals court focused on several
statements from the report, including the following:
''1ir¡:¡..i¡;,i'.r¡þjsy"t. @2015 Thomson Rer"rters. No claim io original U.S. Government Works 3
Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015)
2015 WL 1870051 , 58 Tex, Sup. Ct. J, 746
. "prevention of pertussis via vaccination is of would not have prevented Nicholas's death; thus, the
primary impoftance because treatment is of little report did not *144 demonstrate a causal relationship
benefit to the person infected"; between Dr. Ault's alleged negligence and Nicholas's
death.461 S.W,3d 152.
**3 . ((s¡v¿ccinated
or incompletely vaccinated
infants younger than 12 months of age have the In its analysis however, the appeals court did not fully
highest risk for severe and life-threatening credit all of Dr. Jaffee's factual statements and opinions.
complications and death"; In particular, the court did not credit statements and
opinions from Dr. Jaffee's report to the effect that (1) a
. "A reasonable guideline is to treat .,. infants aged stage existed at which pertussis could be treated with
less than [one] year within six weeks of cough antibiotics; (2) if Dr, Ault had given Nicholas antibiotics
onset"; and prophylactically and ordered testing, the tests would have
shown his pertussis was at a treatable stage; and (3)
. "antibiotics may 'shoften the duration of Nicholas would have had a 5|Yo chance of recovery if Dr.
infectiousness and are thus recotntnended.' " Ault had started Nicholas on prophylactic antibiotics and
continued antibiotics as indicated by results ofthe tests.
461 S.W.3d 152.
Dr. Jaffee's statetnent about antibiotics having little effect
In reaching its conclusion as to Dr, Jaffee's repoft, the on pertussis other than reducing the potential for
couft of appeals noted that Nicholas began receiving spreading the disease is in tension with his statements that
treatment on December 20 in the Jacksonville hospital. It
Nicholas was treatable with antibiotics and would have
fufiher identified December 20 as being approximately had a 51o/o chance of survival if Dr, Ault had adrninistered
three weeks after Nicholas's visit with Dr, Ault on
them. The first-referenced statement, by itself, indicates
November 30, at which time he was not yet feverish,
that whatever Dr. Ault did on December l1 or December
coughing, or presenting other symptoms, Given the 15 would have had little effect on the course of Nicholas's
temporal sequence of events, the appeals court reasoned
illness and would not have prevented his death.
that treatment beginning on December 20 "was well Accordingly, as the couft of appeals explained, that
within the reasonable guideline of treating the disease statement standing alone would not demonstrate that
within six weeks of cough onset" specified by Dr. Jaffee
under the facts as set out in the report Dr. Ault's alleged
and
negligence was causally related to Nicholas's death, and
his causation opinion would be conclusory.
Dr. Jaffee's conclusion that Nicholas would not have
died had Dr. Ault began treatment on December ll, **4
2010, or December 15, 2010, does not follow from the
However, Dr. Jaffee's report also set out that
Nicholas's illness was treatable when Dr. Ault saw him in
aforementioned discussion of the facts in his repoft.
December, and starting antibiotics at that time and
Rather, because treatment is of little benefit to the continuing them as indicated by diagnostic testing
person affected, the facts lead to the conclusion that probably would have prevented Nicholas's death. Given
had Dr. Ault provided antibiotics to Nicholas on either these parts of the repotl, the trial court could have
of those dates, at most Nicholas's symptoms may have determined that Dr. Jaffee's opinions were linked to the
lessened and his ability to spread the disease to others underlying facts and explained why and how Dr. Ault's
may have diminished. The facts discussed in the repoÍ timely treatment of Nicholas with antibiotics would have
do not show that treatment would have altered the prevented his death,
course of the disease, but lead to the conclusion that
Nicholas was unfortunately one of those infants who Under the circumstances, the trial couft had
did not survive despite timely treatment. discretion-indeed it was incumbent on the trial court-to
review the report, sort out its contents, resolve any
461 S.W.3d at 144 inconsistencies in it, and decide whether the report
demonstrated a good faith effort to show that the Van
The couft of appeals focused on Dr. Jaffee's statements Nesses' claims had merit, Considering both the repoft's
that treatment with antibiotics is of little benefìt and only explication of how Dr. Ault's alleged negligence was
would have lessened Nicholas's symptoms and reduced causally related to Nicholas's death and the conflicting
the contagiousness of his pertussis. 461 S.W.3d 152. statements as to that causal relationship, we conclude that
Based on those statements, the court concluded that the the trial court did not abuse its discretion by determining
repoft showed that treatment earlier than December 20 that the report was not conclusory, but was a good faith
',ïi.',.Íi;,rrrl{Êxf O 2015 Thomson Reuters. No claim to original U.S. Government Works 4
Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015)
2015 Wt 1870051 , 58 Tex. Sup. Ct, J, 746
efforl to cornply with the TMLA's requirements. Thus the
trial court did not abuse its discretion by denying Dr.
Ault's motion to dismiss, see Samlowski, 332 S,W.3d at
410, and the court of appeals erred by reversing the trial All Citations
court's judgment.
461 S.W,3d 140,2015 WL 1870051, 58 Tex. Sup. Ct. J
746
We grant the petition for review, 'Without hearing oral
argument, s¿eTEX, R. APP. P. 59.1, we reverse the court
of appeals' judgrnent and remand the case to the trial
couft for further proceedings.
End of Document O 2015 Thomson Reuters, No claim to original U.S. Government Works.
'#*Ett,r;vfrlnxt. O 2015 Thomson Reuters. No claim to original U.S. Government Works 5
pendix D
CIV¡L PRACTIgE & REMEÞIES CODE
CHAPTER 74. MEDICI\L LIABILITY
5574.r54-74.2s1
*
/B S.W.3d
SS2, 556 /cì that is related t0 an emergency caused in SUBCHAPTER F. STATUTE OF
ne pnrases ,stan. LIMITATIONS
, -\i'., in part by the negligence of the defendant.
I
t are not Syn0nv. tt'io,ro rio, g74 ì54: Acts 2003, 78th Leg' ch 204, 0l, cff sept' l,
t "sl0 GPRC ç74.25I. STATUTE OF
llpractice actions. LIMITATIONS ON HEALTH
l expert's medical ',iirflli?rtru;tffias
co'n' "uedicar Negrigcnce under the ,vredicar CARE LIABILITY CLAIMS
le applicable
(a)
Notwithstanding any other law and subject to
stan: 74'155'74'200 reserued for expansion
; not constituts Secilons Subsection (b), no health care liability claim may be
5Z+.SSr1¿10¡. ¡n.
¿
E. REs lPsA LoQUITUR commenced unless the action is filed within two years
"u"toPTER from the occurrence of the breach 0r tort 0r from the
rndard of proof ¡s. ¿pRC 574,201. APPLIGATION OF
cases. In the ¿¡.
RES IPSA LOQUITUR date the medical or health care treatment that is the
The common
lawdoctrine of res ipsa loquitur shall subject of the claim or the hospitalization for which the
any expert rep¡¡¡
nnlv apply t0
health care liability claims against health claim is made is completed; provided that, minors un-
r or health s¿¡s
.oé provi¿ers or physicians in those cases t0 which it der the age of 12 years shall have until their 14th birth-
md wanton could
nr.n applied by the appellate courts of this state as day in which to file, or have filed on their behalf, the
ne dixit because f'ur
ofAugust29,1977' claim.r Except as herein provided this section applies to
n expert report is
Hjstory of CPRC .s74 20l:
Acls 2003, 78th Leg, ch. 204, $ I0 0I' eff Sept l' all persons regardless of minority or other legal disabil-
Source: TRCS art 4590i' N7
0l
2003.
ity.
See also |'Connot's Tems C1A, "Res ipsa loquitur," ch. 20-4, $9 3'
TRUCTIONS P 66S
(b) A claimant must bring a health care liability
MERGENCY ANNorarroNs claim not later than l0 years after the date of the act or
E omission that gives rise to the claim. This subsection is
'' Kinguood Pines Hosp, LLC a, Gomez, 362 S.W.3d
Lt involves a claim intended as a statute of repose so that all claims must
740,751 (Tex.App.-Houston Il4th Dist'] 2011, no
iion of emergency be brought within l0 years 0r they are time barred.
pet,). "Res ipsa loquitur is not a cause of action sepa-
department or ob- i' l. Ilditor's notei A minor is not lcgally capable 0fbringing suit until she
rate from negligence; rather, it is a rule of evidence by reaches the agc of 18. Weinet u. l/as.son, 900 S.W2d 316, 318 (Tex,1995).
rmediately follow. l Thus,aminorhasuntilher20thbirthdaytofilesrrit./¿/. at32l;seeolsoAdams
which the jury may infer negligence. It applies to situa-
ratient in a hospi- n, GottØal(t,179 S.W.3d l0l, 103 ('Iex.App.-San Antonio 2005, pet, denied)
tions in which two factors are present: (l) the charac- (applying open-courts provisi0n 0fTexas Constitut¡on to $74,251).
shall instruct the
ter of the accident is such that it would not ordinarily Historyof CPRC $74,251: Acts 2003, 78th Leg., ch. 204, $10.01, eff. Sept. l,
her relevant mat- 2003. Source: TRCS art.4590i, $10,01.
occur in the absence of negligence, and (2) the instru-
See also }'Connor's Texas C0A,"LimiTations," ch. 20-4, $5, p. 637.
mentality causing the injury is shown to have been un-
rg care did or did der the management and control ofthe defendant, Fur-
or was able or un- ,.
ther, the doctrine applies only when the nature of the Generally
ry including the ';. alleged malpractice and injuries are plainly within the
Methodíst Heulthcare Sys, a. Ranhin, 307 S.W.3d
.ditions, allergies, common knowledge of laypersons, requiring no expert
283, 290 (Tex.20l0). "To hold that a statute of repose
testimony. .., The three recognized areas in which res
ipsa loquitur applies to health care claims are negli-
[ike $74.251(b)] must yield to IP's] inability to dis-
risting physician' cover her injury would treat a stâtute of repose like a
gence in the use
ovider-patient re' of mechanical instruments, operating statute of limitations, and would effectively repeal this
0n the wrong body part, and leaving surgical instru-
and all other statutes 0f repose. At 292: Section
menß 0r sponges inside the body," Jee also Haddocþ a,
rg the emergencY; 74.25 I (b)'s grant of absolute protection against indefi-
ArnspÍger, ?93 S.Wzd 948, 951 (Tex.1g90); Broxter-
nite potential liability does not violate the Texas Consti-
man u. Corson,
309 S.W3d 154, 158-59 (Tex.App,- tution.",See also Walters a, Cleaeland Reg'l Med, Ctr,,
ng the delivery of Dallas 2010,
pet. denied).
307 S.W3d 292,298 (Tex,20l0).
Traut a. Beaty, zs S,W.Bd 661, 662 (Tex.App.-
(a) do not aPPIY ^
rexarkana
2002, no pet.). " lRles ipsa loquitur cannot
Shah u. Moss,67 S.W.3d 836, 841 (Tex.200l). TRCS
ue aPplied
art. 4590i, $10.01, now CPRC $74.251(a), "measures
in every case in which an object is left in a
the limitations period for medical negligence claims
Patie.nt's boOy."
is
HetO: Although p used the theory of res
i stabilized and
tÞsa loquiturjexpert from one of three dates: (l) the occurrence of the
nt as a noneflof' testimony was needed to eitablish breach or tort, (2) the last date ofthe relevant course of
a^causal
,onn.ótion between D's negligence and P's
Þai¡.
treatment, or (3) the last date ofthe relevant hospital-
al medical efler' ization. A plaintiff may not choose the most favorable
Sections 74.202-f4.250 date that falls within $10.01's three categories. Rather,
reserued for exponsion
O'CoNNoR's TExa,s cPRC 265
CIVIL PRACTICE & REMEDIES CODE
CHAPTER 74. MEDICAL LIABILITY
ss74.3o3 - 74.351
*-
time at which damages subject to such limits are ity claim is asserted, The date for serving the reÞ'rt
awarded by finaljudgment or settlement. may be extended by written agreement of the affei¡g¿ (k)
(c) Subsection (a) does not apply to the amount of parties. Each defendant physician or health care served
Þr0.
damages awarded on a health care liability claim for vider whose conduct is implicated^in a report musifile (1)
the expenses of necessary medical, hospital, and custo- and serve any objection to.the sufficie¡6y of the repo¡¡ (2)
dial care received before judgment or required in the not later than the later of the 2 I st day after the date pr0cee(
the
future for treatment of the injury. report is serued or the 2 I st day after the date the defen_ (3)
(d) The liability of any insurer under the common dant's answer is filed, failing which all objections
¿¡q
c0urse
law theory of recovery commonly known in Texas as the waived. (t)
"Stowers Doctrine" shall not exceed the liability of the (b) If, as to a defendant physician or health ç¿¡g equacy
insured. provider, an expert report has not been served within after ht
(e) In any action on a health care liability claim the period specified by Subsection (a), the court, 0n
the
jective I
that is tried by ajury in any court in this state, the fol- motion of the affected physician or health care pr'. an exp(
lowing shall be included in the court's written instruc- vider, shall, subject to Subsection (c), enter an oider (ml
tions to the jurors: that: (r)
(l) "Do not consider, discuss, nor speculate (l)
awards to the affected physician or health care , (l)
whether or not liability, if any, on the part of any party is provider reasonable attorney's fees and costs of court physici
in.
or is not subject to any limit under applicable law." curred by the physician or health care provider; and fected t
(2) "A finding of negligence may not be based this sec
(2) dismisses the claim with respect to the physi_
solely on evidence of a bad result to the claimant in tion wh
cian 0r health care provider, with prejudice to the refil.
question, but a bad result may be considered by you, 0r agrel
ing of the claim.
along with other evidence, in determining the issue of
(2)
(c)
If an expert report has not been serued within (3)
negligence, You are the sole judges of the weight, if .
the period specified by Subsection (a) because ele.
any, to be given to this kind of evidence." (4)
ments of the report are found deficient, the court may
History of CPRC $74.303: Acts 2003, 78rh Leg., ch. 204, g 10.01, eff. Sepr. l, provide
2003, Source: 1'llCS art. 4590i, gl 1.04. grant one 30-day extension to the claimant in order to
asserte
See also 0'Co¿¡¡¿or's Texqs COA, "Stoøers Doctrine," ch. l3-8, p. 367; cure the deficiency. If the claimant does not receive no-
"Medical Negligence Under. the Merlical Liability Act," ch. 20-A, p. S99. cross-dr
tice of the court's ruling granting the extension until
(5)
ANNOTATIONS after the 120-day deadline has passed, then the 30-day
(A)
Phíllips u, Bromlett,2BB S,W.3d 8Z6, 880 n.5 (Tex. extension shall run from the date the plaintiff first re-
m0ny r(
2009). "The IMLIIA], ITRCSI arr. 4590i ..., was re- ceived the notice.
cepted r
peâIed.... The cap in [TRCS art. 4590i,] gll.02 was, (d) to (h) [Reserved.] testify r
however, carried forward in ICPRC] $?4.303(a).... The (i)Notwithstanding any other provision of this . (B)
Stowers exception in S11.02(c) was not carried for- section, a claimant may satisff any requirement of this m0ny r
ward, but rather replaced by 974.303(d) which ex- section for serving an expert report by serving reports parted ;
pressly provides that the insurer can now use the cap to of separate experts regarding different physicians or pert qui
limit its liabilily.. .." health care providers or regarding different issues aris' tion 74.
Sections 74.304-74.350 reserued for expansion ing from the conduct of a physician or health care pro' (c)
vider, such as issues ofliability and causation. Nothing mony al
SUBqHAPTER H. PRoqEÞURAL in this section shatl be construed to mean that a single harm, t
pRovtstoNs from th
expert must address all liability and causation issues
CPRC 574.35f . EXPERT REPORT with respect to all physicians or health care províders liabitity
(a) In a health care liability claim, a claimant shall, or with respect to both liability and causation issues for
render ,
not later than the 120th day after the date each defen- a physician or health care provider. Texas R
dant's original answer is filed, serve 0n that party or the (i)
Nothing in this section shall be construed t0 (D)
rnony al
party's attorney one 0r more expert reports, with a cur- require the serving of an expert report regardin9
riculum vitae of each expert listed in the report for each harm, (
issue other than an issue relating to liability or
physician or health care provider against whom a liabil- from thr
tion.
27O O'CoNNoR's TExas CpRC
CIVIL PRAcT¡qE & REMEDIES CoÞE
CHAPTER 74. MEDICAL LIABf LITY
574.35 t
*
, fk) Subject to Subsection (t), an expert report tist or physician who is otherwise qualified to render
this section: opinions on such causal relationship under the Texas
r care ^.*ii under
Rules of Evidence; or
'"' rtl ir not admissible in evidence by any party;
t must (E) with respect to a person giving opinion testi-
stralt not be used in a deposition, trial, or other
iZi mony about the causal relationship between the injury
und
re date n,oùáding; harm, or damages claimed and the alleged departure
the
l- 13; shall
not.be referred to by any party during the
from the applicable standard of care for a podiatrist, a
actl0n 10r any purpOse'
rourse of the podiatrist or physician who is otherwise qualified to
lD shall grant a motion challenging the ad-
A court
render opinions on such causal relationship under the
an expert report only if it appears to the court,
:alth ,ouàóy of Texas Rules of Evidence.
care
,tiert''euting, that the report does not represent an ob- (6) "Expert report" means a written report by an
ed within
Lctive good faith
effort to comply with the definition of
rrt, on the expert that provides a fair summary of the expert's
in SubsecLion (r)(6)'
än expert report opinions as of the date of the report regarding appli-
care pro.
(m) to (q) [Reserved.] cable standards of care, the manner in which the care
an order,
(Ð In this section: rendered by the physician or health care provider failed
(1)"Affected partíes" means the claimant and the to meet the standards, and the causal relationship be-
lalth care
physician or health care provider who are directly af- tween that failure and the injury harm, or damages
f court in:
fected by an act or agreement required or permitted by claimed.
r; and
this section and does not include other parties to an ac- (s) Until a claimant has served the expert report
he physi.
tion who are not directly affected by that particular act and curriculum vitae as required by Subsection (a), all
the refil. or agreement. discovery in a health care liability claim is stayed ex-
(2) "Claim" rneans a health care liability claim. cept for the acquisition by the claimant of information,
:d within (3) [Reserued.] including medical or hospital records or other docu-
ruse ele. (4) "Defendant" means a physician or health care ments 0r tangible things, related to the patient's health
ourt may provider against whom a health care liability claim is care through:
order to asserted, The term includes a third-party defendant, (l) written discovery as defined in Rule 192.7,
:eive no. cross-defendant, or counterdefendant. Texas Rules of Civil Procedure;
ion until (5) "Expert" means: (2) rlepositions on written questions under Rule
e 30-day 200, Texas Rules of Civil Procedure; and
'
(A) wiih respect to a person giving opinion testi-
first re-
mony regarding whether a physician departed from ac-
(3) discovery from nonparties under Rule 205,
cepted standards of medical care, an expert qualified to Texas Rules of Civil Procedure.
testi$' under the requirements of Section 74.401; (t) If an expert report is used by the claimant in
(B) with respect to a person giving opinion testi- the course of the action for any purpose other than to
rt of this mony regarding whether a health care provider meet the service requirement ofSubsection (a), the re-
de-
reports parted from accepted strictions imposed by Subsection (k) on use of the ex,
standards of health care, an ex-
pert qualified pert report by any party are waived.
:ians ot to testify under the requirements of Sec-
tes aris' tion 74.402; (u) Notwithstanding any other provision of this
are pr0' (C) with respect to a person giving opinion section, after a claim is filed all claimants, collectively,
Vothing
_
mony about
testi- may take not more than two depositions before the ex-
the causal relationship between the injury
I single, pert report is served as required by Subsection (a),
damages claimed and the alleged depariure
1.1'*:.0, History of CPRC S74.351: Acts 2003, 78th Leg,, ch. 204, $10.01, efi Sept. l,
issues applicable standard of care in any heaith care 2003. Amended byActs 2005,79th Leg., ch.635, gl, eff. Sept. 1,2005; Acts 2013,
llT,lh-
ttabili$ claim, 83rd Leg., ch.870, $2, eff. Sept. l,2013. Source: TRCS art.4590i, $13.01.
oviders a physician who is otherwisã qualified to
render opinions See also O'Co¡¡¡¡orb Tems C0A,"ExperL report," ch.20,4, $7.2, p. 652.
iues for
on such causal relationshipunder the
texas Rules
of Evidence:
rued t9 with respect to a person giving opinion testi-
.^{D) 574.351 (a)
ng any
'uOny ab0ut the causal retátionship between the injury Zanchi a, Lane,408 S.W3d 373,375 (Tex.2013).
causa'
,,iiiifJ.iii:f';: "Today we determine whether a claimant asserting Ian
:li iHå îï : JåïJ i å:i ff il: :: HCLCI complies with tCPRCI $74.351(a)'s mandate to
O'CoNNoR's TEXAs CPRC 2-71
CIVTL PRAGTIGE & REMEDIES CODE
CHAPTER 74. MEDICAL LII\BILITY
58 74.402 - 74.405
*
sp ecialty may be qualified to testi ry if and the injury harm, or damages claimed if the person
from 0ne
I but kn owledge of what ls cu stomari ly done is a dentist or physician and is otherwise qualified to
pracli cal
nef t of d ifferent spe ct alty unde clrcum" render opinions on that causal relationship under the
rto imilar to thos e at ssue
ln the case Indeed, if Texas Rules of Evidence.
e matter c0mm0n to and equally recognized
IS (c) In a suit involving a health care liability claim
ny if in all fields of practice, any physician fa- against podiatrist, a person may qualiff as an expert
a
may testify as to the standard 0 witness on the issue of the causal relationship between
with the subj ect ts
the proffered medi cal expert expertise the alleged departure from accepted standards of care
evl dent from the four corners of
his report and and the injury harm, or damages claimed if the person
)e
n vilae." See also Methodíst Hosp, a. Shep- is a podiatrist or physiciaú and is otherwise qualified to
, 296 S.W.3d 193, l98 (Tex.App,- render opinions on that causal relationship under the
0ns
Dist. ] 2009, no Pet.). Texas Rules of Evidence.
tter I l4th
t). Gueffa,252 S.W.3d 511, 531-32 (Tex. (d) A pretrial objection to the qualifications of a
rbj
uston [4th Dist.] 2008, pet, denied). Corpo- witness under this section must be made not later than
lm
attOrney's expert "report explaining the'contrac- the later of the 2lst day after the date the objecting
and corporate inter-relationships of the various party receives a copy of the witness's curriculum vitae
h ich
Dsl 'along with their
duties to each other Iis admis- or the 21st day after the date of the witness's deposi-
een
because CPRCI 5$74.401(d) and 74.402(d) are tion. If circumstances arise after the date on which the
and
s for for use at the expert report phase of [an objection must be made that could not have been rea-
sonably anticipated by a party before that date and that
loes Group u, Vicento,l64 S.W.3d 724,731 (Tex.App'- the party believes in good faith provide a basis for an
s00n [14th Dist.] 2005, pet. denied). "IS]ection objection to a witness's qualifications, and if an objec'
rut (a)'s two definitions of 'practicing health care' tion was not made previously, this subsection does not
tness 'are not exclus ive. H I Reading 574.402 subsections (a) prevent the party from making an objection as s00n as
f an (b)(1) together, subsection (a) expands upon the practicable under the circumstances. The court shall
definition of'practicing health care' to include quali- conduct a hearing to determine whether the witness is
rg t0 teachers and consulting health care providers who qualified as s00n as practicable after the filing of an ob-
le not otherwise be qualified under subsection jection and, if possible, before trial. If the objecting
sectioll (b)(l) because they are not practicing health care and party is unable to object in time for the hearing to be
instead teach or consult." See also Foster a, Zaaala, conducted before the trial, the hearing shall be con-
.?14
ali S,W3d 106, 113 (Tex.App.-Eastland 2006, pet. de- ducted outside the presence of the jury. This subsection
ried) does not prevent a party from examining 0r cross'ex-
a
ff.
,,CPRC s 74 403. a U l\ L F CAT o N s o F amining a witness at trial about the witness's qualifica-
i8, p.
EX P E R T W T N ES s o N c l\ U SA T o N tions.
N H E A LT H c A R E L A B L T Y c L A M Historyof CPRC $74.403:Acts 2003, 78th Leg., ch 204, $10.01, eff. Sept. I,
¡i I (a) Except as provided by Subsections (b) and (c), 2003.
See also 0'Co¡¡¡¡orb Texas C0A,"F'xperlTestimony," ch.20"4, $8, p.661'
suit involving a health care liabi lity claim against a
ANNOTAT¡ONS
an or health care provider, a person may qualify
an expert witness on the issue of the causal relation TTHR, L,P, a. Coffman,338 S.W.3d 103, 111 (Tex,
between the alle ge d departure from accep ted stan
'ery App.-Fort Worth 2011, no pet.), "IP] argues that an
ify of care and the lnJ ury harm 0r damage claimed expert report Ion a claim for the wrongful release of
rq if the pers0n IS a p hysician and IS oth e rwlse qu ali medical information prohibited by Occ. Code $ 159.002 l
render 0p lnl0n s on that causal relationship u n would require the expert to render a legal opinion and,
Texas Rules of Evidence
er because the statute requires a physician to render the
In a suit involving a health care liability claim expert opinion, it cannot be created. At I I4: Because
ß a denti st, d pers0n may qual ifv as an expert wit- the standard of care regarding confidentiality is a stan-
t.ue 0n the issue dard that applies to all health care providers and be-
of the causal relati onsh lp betwee n
alleged departure
from accepted standards of care cause health care providers are expected to know the
o,coNNoR's TExas cPRC 243