El Paso Healthcare System, Ltd. D/B/A Las Palmas Medical Center v. Santiago Monsivais, by and Through His Next Friends Cinthia Monsivais and Samuel Monsivais and Cinthia Monsivais and Samuel Monsivais, Individually

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EL PASO HEALTHCARE SYSTEM, §
LTD., D/B/A LAS PALMAS
MEDICAL CENTER, §
§
No. 08-18-00043-CV
Appellant, §
Appeal from the
v. §
County Court at Law Number Three
§
SANTIAGO MONSIVAIS, of El Paso County, Texas
DECEASED BY AND THROUGH §
HIS NEXT FRIENDS, CINTHIA (TC# 2017DCV1526)
MONSIVAIS AND SAMUEL §
MONSIVAIS AND CINTHIA
MONSIVAIS AND SAMUEL §
MONSIVAIS, INDIVIDUALLY,
§
Appellees.
OPINION
Group B streptococcus bacteria, while generally harmless to adults, can seriously threaten
newborns, the elderly, or otherwise compromised individuals. 1 In this case, a GBS infection
apparently took the life of Santiago Monsivais when he was just sixteen-days old. The resulting
healthcare liability lawsuit by his parents faulted his pediatrician, an emergency room physician,
1
See Centers for Disease Control, “Group B Strep (GBS)” found at https://www.cdc.gov/groupbstrep/index.html
(last visited October 18, 2019).
and El Paso Healthcare System, Ltd. which operates Las Palmas Medical Center (Las Palmas).
The issue before us in this interlocutory appeal is whether the statutorily required preliminary-
expert report filed by Santiago’s parents relies on a duty for hospital staff that the law would not
recognize. Specifically, Las Palmas contends that the expert report attempts to hold the nurses and
staff of the hospital to the same duties that under Texas professional licensing standards, can only
be discharged by a medical doctor. While we mostly agree with Las Palmas, one theory of liability
survives, and we therefore conclude the trial court did not abuse its discretion in denying Las
Palmas’s motion to dismiss.
BACKGROUND
We take the following chronology from the petition and the expert report at issue, noting
that none of these factual claims have yet been proven.
February 4, 2015
Cinthia Monsivais gave birth to Santiago Monsivais on February 4, 2015. Santiago was
described as a healthy seven-pound baby boy, whose hospital course was unremarkable. He and
his mother were discharged the next day.
February 10 to 19, 2015
Santiago was followed by pediatrician Dr. Nicolas Rich, who saw the child three times.
Dr. Rich first saw Santiago on February 10 for a routine bilirubin and weight check. Other than
the mention of mild jaundice, all findings were within normal limits. Santiago was seen again on
February 12, 2015, and reported to be sleeping normally, had normal bowel and bladder function,
and appeared neither ill nor in any distress. All physical findings were noted within normal limits.
Cinthia was instructed to seek further follow-up for Santiago on an as-needed basis.
2
Following that direction, on February 19 Cinthia took Santiago back to Dr. Rich’s office
because he was having less frequent bowel movements and trouble breathing. She saw the doctor
at 2:39 p.m. His records report that the infant was “afebrile, alert, and vigorous with mild jaundice
to appearance.”2 Dr. Rich diagnosed Santiago with mild jaundice, sending mother and child home
with instructions to return in one week. From our limited record, Dr. Rich ordered no tests and
prescribed no treatments.
February 20, 2015
At 2:54 a.m. Cinthia took Santiago to the emergency room at Las Palmas. The infant was
triaged as a level 3 (“urgent”) patient. Cinthia was interviewed at 3:01 a.m. by Michael Bustos,
an Emergency Medical Technician-Paramedic. He recorded that Santiago was experiencing
constipation with nausea and had two episodes of vomiting in the past five hours. He noted the
chief complaint as abdominal pain. At 3:14 a.m. he noted the infant had pain, nausea, constipation
that was constant for four to six hours, and had decreased appetite. The child also had had only
one wet diaper in the past eight hours. Bustos’s physical exam revealed “[b]owel sounds were not
present and normal in all four quadrants and at the umbilicus.” Santiago did not have a fever on
arrival at Las Palmas. At 3:28 a.m. Bustos and Renato Jimenez, a registered nurse, noted that
Santiago was lying quietly “with no cry[.]”
Michael C. Payne, MD, the attending emergency department physician, electronically
signed Las Palmas’s “Emergency Provider Report.” That report notes similar findings to those of
Paramedic Bustos, except Dr. Payne adds that Santiago was fussy and “crying more.” The physical
exam portion of Dr. Payne’s report states Santiago was well appearing with no irritability. Dr.
Payne diagnosed Santiago with infantile colic (uncontrolled crying in a newborn) and discharged
2
As noted, the appellate record is limited to the Plaintiffs’ petition and an expert report that summarizes and selectively
quotes the medical records.
3
him from the hospital. Discharge vitals showed that Santiago’s heart rate had increased from 127
to 144 beats per minute. The mother was counseled on colic in newborns. According to our
record, no tests were run, or treatments administered at Las Palmas. Santiago was discharged at
3:49 a.m., meaning the entire encounter at Las Palmas lasted 55 minutes.
Cinthia returned home, but Santiago then developed a fever. She then took Santiago to
Providence Memorial Hospital at 6:56 a.m. that same morning. On admission, he was reported to
have a temperature of 104.3 degrees, was in moderate respiratory distress, and tachycardic. He
experienced respiratory arrest at 8:36 a.m. Efforts to treat him were unsuccessful, and his condition
deteriorated until he expired at 10:51 p.m. that same day. The cause of death was listed as
cardiogenic shock from severe sepsis secondary to Streptococcus agalactiae, otherwise known as
Group B Strep or GBS.
The Litigation
Cinthia and Samuel Monsivais, individually and on behalf of Santiago, filed a wrongful
death suit against Dr. Nicolas Rich, Dr. Michael C. Payne, and Las Palmas. They originally
contended that Las Palmas was vicariously responsible for the conduct of Dr. Payne under a variety
of theories, including direct employment, agency, apparent agency, or estoppel. In a first amended
petition, however, the Monsivaises dropped those allegations, and only asserted direct liability
claims against Las Palmas. Specifically, they alleged that Las Palmas personnel “wholly failed to
diagnose Santiago’s condition, failed to observe him for any meaningful period of time, failed to
order any diagnostic studies, failed to appreciate the severity of Santiago’s condition at a time
when he was septic, and merely discharged him to home.”
As required for health care liability claims, the Monsivaises filed a preliminary expert
report. See TEX.CIV.PRAC. & REM. CODE ANN. § 74.351. The report is authored by Dallas
4
Johnson, MD, who is a board-certified Ob-Gyn physician. Las Palmas, Dr. Rich, and Dr. Payne
challenged the report, contending in part that Dr. Johnson, an Ob-Gyn physician, never established
his qualifications to opine on the standard of care for a pediatrician, an emergency department
doctor, or the hospital staff. At a hearing on Dr. Rich and Las Palmas’s objections, the trial court
sustained the objections, but reconvened the hearing after granting the Monsivaises a thirty-day
extension to file a revised report addressing the concerns raised at the hearing.
After the Monsivaises filed a new report, the physician defendants either withdrew or failed
to urge any objections. Las Palmas, however, re-urged and refined its objections. It contended in
part that Dr. Johnson’s preliminary report imposes a higher duty on the hospital staff than is
required by law.3 Las Palmas urged that hospital staff are not licensed in Texas to order tests,
diagnose medical conditions, admit patients, or prescribe medications, yet Dr. Johnson’s report
criticizes Las Palmas personnel for each of those failures. Following a second hearing, however,
the trial court overruled Las Palmas’s objection in part and declined to dismiss the case.4 This
appeal follows.
ISSUE ON APPEAL
Dr. Johnson’s report begins his criticism of Las Palmas by stating all of its personnel owed
a standard of care “to thoroughly, accurately, and completely examine, assess, observe, and treat
Santiago.” He then elaborated on specific breaches, which we detail below. In this appeal, Las
Palmas brings a single issue that argues Dr. Johnson’s supplemental report effectively faults Las
Palmas and its non-physician staff for breaching a standard of care applicable only to physicians,
3
Las Palmas also challenged Dr. Johnson’s qualifications, and claimed the report was conclusory. The trial court
expressly rejected the qualification challenge at the hearing which has not been carried forward in this appeal.
4
Of note, the Monsivaises attempted to revive their vicarious liability theories by filing a second amended petition
just prior to the hearing. While it is unclear if the trial court concluded that leave was required under TEX.R.CIV.P.
63, the trial court clearly ruled that the vicarious liability theories were dismissed, and we treat them as such.
5
such as Dr. Payne, the emergency room physician, and Dr. Rich, Santiago’s pediatrician. And Las
Palmas urges it cannot be liable for breaching duties that are beyond the scope of its health care
employees’ practice.
CONTROLLING LAW
We begin with the familiar standards governing expert medical reports in health care
liability claims. The statute requires that within 120 days of when each defendant health care
provider files an answer that an “expert report” as to that provider must be served by the plaintiff.
TEX.CIV.PRAC.&REM. CODE ANN. § 74.351(a). An “expert report” is statutorily defined as one
that “provides a fair summary of the expert’s opinions” regarding (1) the standard of care, (2) how
the health care provider failed to meet that standard, and (3) the causal relationship between that
failure and the injury, harm, or damages claimed. Id. at § 74.351(r)(6). An expert report that does
not represent a good faith effort to comply with the statute is inadequate, and a trial court must
grant a motion challenging an inadequate report. Id. at § 74.351(l). Or, as here, the trial court
may grant one thirty-day extension to allow the plaintiff to file a curative report if elements of the
original report are found deficient. Id. at § 74.351(c).
The phrase “fair summary of the expert’s opinions” means at least that the expert must
state more than a mere conclusion. American Transitional Care Centers of Texas, Inc. v. Palacios,
46 S.W.3d 873, 878 (Tex. 2001). Instead, the expert must explain the basis of the opinion so as to
link the conclusion to the facts of the case. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002). While claimants need not marshal all their evidence to support the opinion, they must
meet the two objectives of the statute: to inform the defendant of the specific conduct claimed to
be negligent; and to satisfy the trial court that the claims have merit. Palacios, 46 S.W.3d at 877.
We look no further than the report itself, because all the information relevant to the inquiry must
6
be contained within the four corners of the document. Bowie Mem’l Hosp., 79 S.W.3d at 52. Nor
should a court have to fill in missing gaps in a report by drawing inferences or resorting to guess
work. See Bowie Mem’l Hosp., 79 S.W.3d at 52; THN Physicians Ass’n v. Tiscareno, 495 S.W.3d
914, 922 (Tex.App.--El Paso 2016, no pet.). The report must distinctly address each health care
defendant’s breach of the standard of care and how that breach caused injury. Clapp v. Perez, 394
S.W.3d 254, 259 (Tex.App.--El Paso 2012, no pet.). However, a plaintiff does not need file an
expert report with respect to each liability theory alleged against the defendant. See Tenet Hosps.
Ltd. v. Bernal, 482 S.W.3d 165, 171 (Tex.App.--El Paso 2015, no pet.). Instead, an expert report
that adequately addresses at least one pleaded theory of liability satisfies the statutory
requirements. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013).
STANDARD OF REVIEW
The trial court makes the decision as to whether the report is sufficient. Our role, whether
the trial court has approved or rejected the report, is only to determine if the trial court abused its
discretion. Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018), citing Palacios, 46 S.W.3d at 878;
Tenet Hosps., Ltd. v. Barajas, 451 S.W.3d 535, 539 (Tex.App.--El Paso 2014, no pet.). A trial
court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any
guiding rules or principles. Palacios, 46 S.W.3d at 877; Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). But simply because we would have decided a matter
differently than the trial court does not demonstrate an abuse of discretion. See Flores v. Fourth
Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989); Pacheco-Serrant v. Munoz, 555 S.W.3d 782, 790
(Tex.App.--El Paso 2018, no pet.).
DISCUSSION
7
“‘Identifying the standard of care is critical: Whether a defendant breached his or her duty
to a patient cannot be determined absent specific information about what the defendant should
have done differently.’” Gonzalez v. Padilla, 485 S.W.3d 236, 248 (Tex.App.--El Paso 2016, no
pet.), quoting Palacios, 46 S.W.3d at 880; see also Clapp, 394 S.W.3d at 259. “‘While a “fair
summary” is something less than a full statement of the applicable standard of care and how it was
breached, even a fair summary must set out what care was expected, but not given.’” Padilla, 485
S.W.3d at 248, quoting Palacios, 46 S.W.3d at 880. With that in mind, we start with Dr. Johnson’s
amended report.
Dissecting the Report
Quoting portions of the expert report, Las Palmas begins its argument by stating the “gist
of Dr. Johnson’s opinions was: (1) ‘[t]he standard of care for hospital emergency department
personnel is to use all reasonably available information to develop a differential diagnosis for
patients who present to it,’ and (2) Las Palmas breached that standard of care because it did not do
this and ‘incorrectly . . . diagnosed Santiago to have infantile colic.’” Las Palmas’s need to
paraphrase the report is understandable given the report itself. Dr. Johnson begins his critique of
Las Palmas by stating “[t]he standard of care was for all [Las Palmas] personnel to thoroughly,
accurately, and completely examine, assess, observe, and treat Santiago.” What then follows are
ten pages of single-spaced text, often formed by multi-page paragraphs, that repeat and restate
several specific allegations. At two points, Dr. Johnson attempts to serially list the claimed
breaches of the standard of care, but those lists are not entirely consistent.5 Some allegations are
5
At one point, the report states:
Within a reasonable degree of medical probability the [Las Palmas’s] ED team including Paramedic
Bustos, Nurse Jimenez and others failure (1) to properly assess Santiago medical condition, (2) to
consider a serious medical condition for Santiago including GBS, (3) to order laboratory blood
studies for Santiago, (4) to obtain IV access for hydration and medications for Santiago, (5) to
observe Santiago closely for an adequate period of time including admitting him to [Las Palmas]
8
more developed than others, and some are no more than fragments of a complete theory. As best
we can tell, Dr. Johnson claims the following breaches of the standard of care for which he
provides at least some explanation that the breach caused the infant’s death:
(1) the failure to take a thorough and complete medical history (to specifically
include the fact that the child had been seen by Dr. Rich some 12 hours earlier and
had not improved);
(2) the failure to order diagnostic tests or studies (to include CBC, CRP, gram
stain);
(3) the failure to admit Santiago to the hospital for more extended observation;
(4) the failure to properly diagnose Santiago’s infection (to include postulating a
differential diagnosis, and then to disagree with Dr. Payne’s diagnosis based on
inconsistencies between the reported findings and the known symptomatology of
colic; and
(5) the failure to treat Santiago’s infection (to include starting an IV, hydrating the
child, and administering antibiotics).
We also identify the following fragmentary theories which are so cursorily explained as to lack a
basis as a complete theory:
(1) the failure to take a complete set of vitals at discharge (without any explanation
of what those vitals might have showed or explanation of how they might have
changed the course of treatment).
(2) the failure to force a consultation or second opinion in the face of Dr. Payne’s
diagnosis of colic and order to discharge Santiago (without any explanation for how
a second opinion might be obtained under hospital policy or obtained any quicker
for observation and treatment, (6) to consult with a competent pediatrician and/or an infectious
disease specialist for advice on evaluation, diagnosis, and treatment of Santiago, and (7) to
administer IV antibiotics such penicillin to Santiago were the proximate cause within a reasonable
degree of medical probability of Santiago’s suffering and death.
Yet at another point, the Doctor provides a different list for the standard of care:
The standard of care required (1) a thorough and accurate medical history, (2) a physical
examination of Santiago with reporting of pertinent findings, (3) laboratory studies to evaluate the
infant for otherwise unseen signs to explain his symptoms, (4) development of an assessment and
differential diagnosis that used all the information previously obtained to arrive at a reasonable
explanation of and (5) treatment (blood work including CBC with differential, CRP, and gram stain,
IV, and antibiotics (penicillin), and the administration of IV fluids) [sic] for the condition that
brought Santiago to [Las Palmas].
9
than the second opinion from the Providence emergency department at 6:56 a.m.
that same morning).
(3) that a nurse’s discharge instructions were limited to explaining colic as
diagnosed by the doctor (without explaining why a nurse would give discharge
instructions for some other condition never diagnosed by the treating physician).
The alleged failure to diagnose, order tests, admit, and treat Santiago are not actionable
Las Palmas contends that Dr. Johnson’s theories based on diagnosis, ordering tests,
admitting the child to the hospital, and administering treatments are beyond the scope of a nurse
or EMT’s license and cannot be actionable. Based on this record, we agree.
By statute, a person may not “practice medicine” in this state unless the person holds a
license issued under the Occupations Code. TEX.OCC.CODE ANN. § 155.001. The term “practicing
medicine” is defined as “the diagnosis, treatment, or offer to treat a mental or physical disease or
disorder or a physical deformity or injury by any system or method, or the attempt to effect cures
of those conditions[.]” TEX.OCC. CODE ANN. § 151.002(a)(13). Physicians practice medicine. Id.
at § 151.002(a)(12). Nurses, such as Renato Jimenez, do not. “Professional Nursing” has its own
definition:
(2) “Professional nursing” means the performance of an act that requires substantial
specialized judgment and skill, the proper performance of which is based on
knowledge and application of the principles of biological, physical, and social
science as acquired by a completed course in an approved school of professional
nursing. The term does not include acts of medical diagnosis or the prescription of
therapeutic or corrective measures.
TEX.OCC. CODE ANN. § 301.002 (emphasis added). Certainly, professional nursing includes “the
observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health
teachings” directed to a patient. Id. at § 301.002(2)(A). It might also include “the administration
of a medication or treatment as ordered by a physician, podiatrist, or dentist[.]” Id. at §
301.002(2)(C)(emphasis added). It might also include “the performance of an act delegated by a
physician[.]” Id. at § 301.002(2)(G).
10
Under these definitions, Nurse Jimenez could neither diagnose Santiago’s condition, or
initiate any treatment regime, such as antibiotics, without a physician’s order. Nor could she admit
a patient to the hospital as only a physician with admitting privileges can do so. See 25 TEX.
ADMIN. CODE § 133.41(f)(6)(B) (2018) (Dept. of State Health Services, Hospital Functions and
Services) (noting that “patients are admitted to the hospital only by members of the medical staff
who have been granted admitting privileges[.]”)(emphasis added). The Monsivaises respond by
citation to a Texas Department of Health publication that states nurses can “diagnose” conditions.6
Yet a reference in a publication does not trump a statute, and as Las Palmas points out, there is a
distinction between a medical diagnosis and a nursing diagnosis. See Methodist Hosp. v. German,
369 S.W.3d 333, 341 (Tex.App.--Houston [1st Dist.] 2011, pet. denied) (reciting testimony that a
medical diagnosis has to do with the medical condition of the patient while a nursing diagnosis
relates to what a nurse can do to intervene and support the medical diagnosis).7
6
The Monsivaises do not favor us with a citation to the document. Las Palmas found the document at a website but
notes it deals only with State Hospitals. TEX. DEPT. OF STATE HEALTH SERV., Nursing Standards of Care and Nursing
Standards of Professional Performance (Rev. ed. 2004), available at
https://www.dshs.texas.gov/mhhospitals/Nursing_Standards.pdf). When we visited the website, however, its content
had been changed as some of the department’s functions had been transferred to another commission. TEX. DEPT. OF
STATE HEALTH SERV. “State Hospitals” https://www.dshs.texas.gov/transition/statehospitals.aspx (last visited
October 18, 2019). The website no longer provided a link to the document.
7
German cites to the North American Nursing Diagnosis Association (NANDA) that sets standard for acceptable
nursing diagnoses and distinguishes a nursing diagnosis from a medical diagnosis thusly:
A medical diagnosis deals with disease or medical condition. A nursing diagnosis deals with human
response to actual or potential health problems and life processes. For example, a medical diagnosis
of Cerebrovascular Attack (CVA or Stroke) provides information about the patient’s pathology. The
complimentary nursing diagnoses of Impaired verbal communication, risk for falls, interrupted
family processes and powerlessness provide a more holistic understanding of the impact of that
stroke on this particular patient and his family – they also direct nursing interventions to obtain
patient-specific outcomes.
Nanda International, “What is the difference between a medical diagnosis and a nursing diagnosis?”
kb.nanda.org/article/AA-00266/0/What-is-the-difference-between-a-medical-diagnosis-and-a-nursing-diagnosis-
.html (last visited October 21, 2019).
11
Dr. Johnson also leveled criticism at Javier Bustos, an “Emergency Medical Technician--
Paramedic.” By statute, an EMT-P must be certified as “minimally proficient to provide advanced
life support that includes initiation under medical supervision of certain procedures, including
intravenous therapy, endotracheal or esophageal intubation, electrical cardiac defibrillation or
cardioversion, and drug therapy.” TEX. HEALTH & SAFETY CODE ANN. § 773.049 (emphasis
added). “Advanced life support” is defined as “health care provided to sustain life in an
emergency, life-threatening situation.” Id. at § 773.0496. Nothing in Dr. Johnson’s report
suggests that Santiago presented at Las Palmas with an emergency life threatening situation that
might require intubation, cardiac defibrillation, or the like.
And while Dr. Johnson also refers to Las Palmas’s staff as a whole, he never identifies any
person who held a professional license to diagnose, order tests, or treat Santiago. A hospital acts
only through its agents and employees. As an institution, a hospital is licensed to provide medical
care, but it does not practice medicine. Doctors Hosp. at Renaissance, Ltd. v. Andrade, 493
S.W.3d 545, 548 (Tex. 2016) (explaining that a hospital is an institution licensed to provide health
care, but only a licensed doctor can provide medical care); Reed v. Granbury Hosp. Corp., 117
S.W.3d 404, 415 (Tex.App.--Fort Worth 2003, no pet.) (“A hospital cannot practice medicine and
therefore cannot be held directly liable for any acts or omissions that constitute medical
functions.”), citing Spinks v. Brown, 103 S.W.3d 452, 456 n.4 (Tex.App.--San Antonio 2002, pet.
denied); German, 369 S.W.3d at 343 (“Only doctors are legally authorized to make a medical
diagnosis by evaluating a patient’s medical treatment and the development of subsequent
symptoms to conclude that a particular medical condition has resulted.”).
Having said that we do not overlook that hospital medical staff might have “standing
orders” or “protocols” that they are required to follow that might preauthorize them to conduct
12
specified tests or administer treatments. See Fortner v. Hosp. of the S.W., LLP, 399 S.W.3d 373,
381 (Tex.App.--Dallas 2013, no pet.)(noting claimed breaches of standing orders); Mercy Hosp.
of Laredo v. Rios, 776 S.W.2d 626, 634 (Tex.App.--San Antonio 1989, writ denied)(same);
TEX.OCC. CODE ANN. § 157.055 (referring to protocols and other orders directing qualified nurses
and physician assistants). The Occupations Code itself allows physicians to delegate authority in
certain defined circumstances to other health care providers. TEX.OCC. CODE ANN. § 157.001 (“A
physician may delegate to a qualified and properly trained person acting under the physician’s
supervision any medical act that a reasonable and prudent physician would find within the scope
of sound medical judgment to delegate if, in the opinion of the delegating physician [five statutory
predicates are met].”). The Occupations Code specifically contemplates delegations to emergency
medical personnel certified by the Texas Department of Health. Id. at § 157.003. And a person
to whom a proper delegation was made is not considered to be practicing medicine without a
license. Id. at § 157.005. Thus, it would hardly be a surprise for a person presenting at a hospital
with complaints of chest pain and shortness of breath to have the staff initiate an immediate ECG
before ever seeing a physician. In such a case, the hospital staff has not diagnosed a medical
condition such as a heart attack--they have merely followed a directive developed by appropriately
licensed and trained practitioners. But Dr. Johnson does not contend either that the Las Palmas
medical staff failed to follow any existing protocol, nor that Las Palmas failed in developing
appropriate protocols.
We therefore agree that Dr. Johnson’s opinions related to the alleged failure of Las
Palmas’s staff to diagnose, order tests, admit Santiago, or otherwise treat Santiago exceed the
scope of the identified staff’s licenses, and would not be actionable. But Las Palmas’s argument
13
does not ultimately prevail, because we perceive one claim that does fall within the identified
medical staff’s purview--taking a thorough medical history from the patient.
Alleged failure to take a complete history
Dr. Johnson’s report made this additional criticism of Las Palmas’s staff:
The medical history was deficient in that it made no mention of the fact Santiago
had been seen by a board certified pediatrician less than 12 hours prior to his arrival
at [Las Palmas] with no improvement in the same symptoms for which he was seen
by that pediatrician. This was a significant error because it established a firm time
line for Santiago’s symptoms and the fact they were continuing unabated and
untreated. This was notice to the [Las Palmas’s] ED staff to be on high alert that
something was continuing to change this infant’s behavior and the standard of care
was for [Las Palmas] to make every reasonable effort to determine what that
something was and to treat it.
Taking an accurate and complete history from a patient does fall within a nurse’s scope of practice.
22 TEX.ADMIN. CODE § 217.11(1)(D) (Board of Nursing Examiners, Standards of Nursing
Practice). That history includes “contacts with other health care team members concerning
significant events regarding client’s status[.] Id. at § 217.11(1)(D)(vi). Dr. Johnson’s report
ascribes some significance to a medical history of twelve to fifteen hours of symptoms with
repeated medical encounters, rather than the six to eight hours noted in Javier Bustos’s medical
history and no mention of a previous medical encounter.
In this regard, a recent case originating from the Ninth Court of Appeals guides us.
HealthSouth Rehab. Hosp. of Beaumont, LLC v. Abshire, 561 S.W.3d 193 (Tex.App.--Beaumont
2017), reversed sub nom., Abshire v. Christus Health S.E. Texas, 563 S.W.3d 219 (Tex. 2018). In
Abshire, the plaintiff presented at Christus Health’s emergency room on four occasions with
progressive symptoms of chest pain, difficulty breathing, and joint discomfort. 563 S.W.3d at 221.
On two of the admissions, the medical staff made note that the plaintiff had a pre-existing medical
condition called osteogenesis imperfecta (OI) that predisposed her to fractures. Id. On two of the
admissions, however, there was no mention of OI in the medical history. Id. For each of the
14
admissions, the plaintiff was quickly discharged with no imaging studies of her spine. Id. She
was then sent to a rehabilitation hospital, HealthSouth Rehabilitation, where she underwent
physical therapy. Id. at 222. Her condition worsened, and eventually a doctor ordered an MRI of
the spine that showed she had a compression fracture of one vertebra. Id. The fracture was
eventually treated but left her a paraplegic. Id. She sued several doctors, as well as Christus Health
and HealthSouth. Both these institutions challenged the preliminary expert report.
HealthSouth in part objected because the preliminary expert report faulted its staff for
admitting the plaintiff and starting physical therapy as ordered by a doctor. 561 S.W.3d at 205. It
claimed, much as Las Palmas does here, that its staff was not licensed to diagnose the plaintiff’s
OI condition, or the resulting fracture, and could not countermand the physician’s order. Id. at
210. The Ninth Court of Appeals agreed. Id. at 212 (“HealthSouth argues, and we agree, that it
cannot be held directly liable for functions that require the practice of medicine.”). The court of
appeals also found the expert’s report was conclusory as to the claims against HealthSouth. Id. at
213. The Texas Supreme Court granted the plaintiff’s petition for review, but HealthSouth settled
their part of the case before the case was argued.8
However, the Texas Supreme Court decided the case on the merits for the other defendant,
Christus Health. 563 S.W.3d at 221. The expert’s primary theory against Christus Health was that
its staff had failed to elicit the history of OI on two of the four times she had presented to the
emergency department. Id. at 224-25. The expert opined that had a doctor known of that history,
they would have stabilized the spine to prevent a fracture, or at least ordered imaging studies to
8
The Texas Supreme Court did not set aside the court of appeals’ judgment as to HealthSouth, but rather remanded
the case to the trial court to effectuate the terms of the settlement. As such, the court of appeals’ judgment as to
HealthSouth still stands. See TEX.R.APP. P. 56.3 (“[T]he Supreme Court's order does not vacate the court of appeals'
opinion unless the order specifically provides otherwise.”). Accordingly, we consider the limited portion of the court
of appeals’ opinion addressing whether a hospital staff can practice medicine as persuasive authority.
15
detect the fracture and treat it sooner. Id. The court of appeals rejected this theory, concluding
there was an “analytical gap” in the opinion that the nurses’ failure to chart the plaintiff’s history
of OI caused her injury, because it did not “explain how the nurses’ alleged failure to document
OI was a substantial factor in causing or exacerbating Abshire’s injuries, or that had such been
known then the physicians would have changed the course of treatment, or that it would have
changed the outcome.” 561 S.W.3d at 217. The court of appeals emphasized that on two
occasions, the OI history was noted by the nursing staff but not acted upon by the physicians. Id.
The Texas Supreme Court disagreed and reversed. First, it held the report made a good-faith effort
to explain how proximate cause was to be proven. The report provided “a straightforward link”
between the inadequate medical history (failure to document OI), the delay in diagnosis and proper
treatment (delay in ordering an MRI), and the ultimate injury (paraplegia). 563 S.W.3d at 225.
Next, the Texas Supreme Court concluded that the lower court improperly rejected the expert’s
causation opinion. Id. at 226. The court’s job at the preliminary expert report stage “is not to
weigh the report’s credibility[.]” Id.; see also Miller v. JSC Lake Highlands Operations, 536
S.W.3d 510, 516 (Tex. 2017) (per curiam) (noting that “[t]he court of appeals’ real concern appears
to be the believability of [the expert’s] articulated standards of care, not the manner in which she
stated them.”). Rather, “the court’s role is to determine whether the expert has explained how the
negligent conduct caused the injury. Whether this explanation is believable should be litigated at
a later stage of the proceedings.” 563 S.W.3d at 226.
We could say much the same thing here. Dr. Johnson faulted Las Palmas’s staff, in
particular EMT-P Bustos and Nurse Jimenez, for recording a six hour, and not a twelve hour
history of non-improving symptoms. The history also omitted the visit to another health care
provider. While that difference might not appear important to a lay observer, it was to Dr. Johnson
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whose credentials and expertise have not been challenged on appeal. He so stated in the portion
of his report criticizing Las Palmas. He also articulated this claim at several junctures of the report
in addressing the emergency room physician, Dr. Payne:
The standard of care I observed and practiced when serving as an ER physician was
that a reasonably prudent physician should obtain and document a thorough,
accurate and complete medical history. In Dr. Payne’s circumstance that would
include but not be limited to the fact that Santiago was seen by a Board Certified
pediatrician 12 hours before presenting to [Las Palmas] for the same complaint and
the infant had not improved. Dr. Payne failed to recognize this important fact. This
was a significant fact that was not mentioned in his assessment of Santiago. . . .
The record does not indicate Dr. Payne ever considered the fact Santiago had the
same complaints for at least 12 hours since being seen by his pediatrician and had
not improved.
...
In falling below the standard of care and breaching his duty to get a thorough and
accurate history including the fact that the child had already been seen for similar
complaints less than 12 hours before presenting to Las Palmas Medical Center. . . .
...
The fact Santiago was seen so recently for the same complaints and he had not
improved should have prompted Dr. Payne to more thoroughly examine the child
and, at the very least, examine, observe, and admit him for more than a few minutes,
obtain more than one set of vital signs, and include in the differential diagnosis a
serious illness including infection.
Reading the report as whole, as we must, Dr. Johnson faults Las Palmas for not eliciting a complete
history which, according to Johnson, should have caused Dr. Payne to act differently. Las Palmas
urges that an expert report cannot rely on a collective standard of care, and thereby fault a hospital
for the failures of physicians who practice there. See Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743,
756 (Tex.App.--El Paso 2011, no pet.)(report found deficient for several reasons, including
generically criticizing the hospital and physicians for certain failures). We see this report
differently. It criticizes both Dr. Payne and two identified Las Palmas staff members for failing to
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include a specific piece of information that Dr. Johnson claims should have changed the course of
care.
For whatever doubts we may have about the merits of this causation opinion, Abshire
teaches that our role is not to resolve expert causation disputes at this preliminary stage. Rather,
those questions are better left for summary judgments, directed verdicts, and if appropriate, by the
trier of fact. 563 S.W.3d at 226.
In summary, we are unable to conclude that the trial court abused its discretion in not
dismissing the suit based on the arguments raised under Las Palmas’s single issue and overrule the
same. We affirm the trial court’s order denying Appellant’s motion to dismiss.
ANN CRAWFORD McCLURE, Chief Justice (Senior Judge)
October 31, 2019
Before Rodriguez, J., McClure, C.J. (Senior Judge), and Larsen, J. (Senior Judge)
McClure, C.J. (Senior Judge), sitting by assignment
Larsen, J. (Senior Judge), sitting by assignment
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