Weerachai Wiri, MD., Jane Doe and Methodist Hospital Levelland Dba Covenant Hospital Levelland v. Jeffrey Kimbrell

NO. 07-09-0104-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 29, 2009

______________________________

METHODIST HOSPITAL LEVELLAND d/b/a

                                       COVENANT HOSPITAL LEVELLAND,

                                                                                                           Appellant

v.

JEFFREY KIMBRELL,

                                                                                                           Appellee

_________________________________

FROM THE 286^TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 08-06-21,355; HON. PAT PHELAN, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

          In this accelerated appeal, Methodist Hospital Levelland d/b/a Covenant Hospital Levelland (Covenant) appeals from an order of the trial court denying its objections to the sufficiency of a medical expert report served by Jeffrey Kimbrell (Kimbrell) in his lawsuit for medical malpractice against Covenant. Kimbrell suffered respiratory arrest after allegedly being given too much narcotic pain medication following surgery to remove his gall bladder. In seeking reversal of the order, Covenant asserts that the expert report of Dr. Rolando H. Saenz (Saenz) failed to 1) show he was qualified to render an opinion as to the standard of care for nurses, 2) state the standard of care applicable to a nurse, and 3) identify the causal relationship between the alleged breach of the standard of care and the claimed damages. We reverse the order.

          Background

          After successful surgery on Kimbrell, Dr. Weerachai Wiri (Wiri) wrote post-operative orders for intravenous Demerol to be given every two hours “as needed” for pain as well as a Fentanyl transdermal patch. The nurse applied the patch at 3:05 p.m. and ten minutes later gave Kimbrell a dose of Demerol. Two additional doses of Demerol were administered at 5:25 p.m. and at 11:35 p.m. The next morning, Kimbrell was found to be in respiratory arrest.

          Kimbrell filed suit on June 17, 2008, pursuant to Chapter 74 of the Civil Practice and Remedies Code. As required by §74.351, he served his expert report on October 13, 2008. See Tex. Civ. Prac. & Rem. Code Ann. §74.351(a) (Vernon Supp. 2008). In that report, Saenz opined about the negligence of Wiri and the nurse administering medicine to Kimbrell. Covenant does not challenge the adequacy of the report with respect to Wiri. However, it does contend that Saenz failed to illustrate that he was qualified to offer an opinion as to the standard of care applicable to nurses, failed to state the applicable standard of care imposed on nurses, and failed to establish a causal link between the nurse’s actions and the damages suffered by Kimbrell.

          Discussion  

          An expert witness on the issue of whether the health care provider departed from accepted standards of care may qualify as one only if he:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, . . . ;

(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Id. §74.402(b) (Vernon 2005). Here, Saenz stated that he was board certified in general as well as colon and rectal surgery, did a six-year surgical rotation which included one year of intensive care medicine, did a fellowship in colon and rectal surgery, had been an assistant professor of clinical surgery, and maintained a private practice comprised of 60% general surgery and 40% colon and rectal surgery. He further represented that he performed 500-600 surgeries a year, 25 to 35 percent of which encompass the removal of gall bladders. So too did he opine that the nurse who administered the pain medication “was negligent in not questioning that two narcotics were being ordered at the same time, and in administering the types of narcotics in the dosage levels as prescribed without first determining the patient’s pain tolerance.”

          Yet, nothing is said in the report about how Saenz came to know the standards of care applicable to nurses, as opposed to physicians, in like circumstances. That is problematic. Admittedly, being a physician may qualify someone to offer an opinion on the standard of care applicable to nurses or other medical personnel merely because he is a physician. In re Stacy K. Boone, P.A., 223 S.W.3d 398, 404 (Tex. App.–Amarillo 2006, orig. proceeding); Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App.–Texarkana 1997, pet. denied). Yet, the converse is equally true; being titled a physician does not alone qualify a doctor to opine about the standards a nurse must follow. And, while various courts have found physicians so qualified, they did so when the physicians stated that they were familiar with the standard of care applicable to nurses when preventing or treating the illness, injury or condition involved or that they were familiar with the standard of care and responsibilities of nurses because they had worked and interacted with them. Baylor Medical Center v. Wallace, 278 S.W.3d 552, 558 (Tex. App.–Dallas 2009, no pet.); see also San Jacinto Methodist Hospital v. Bennett, 256 S.W.3d 806, 813 (Tex. App.–Houston [14^th Dist.] 2008, no pet.) (noting that the expert stated he was familiar with the standard of care for nurses in the treatment of decubitus ulcers); In re Stacy K. Boone, P.A., 223 S.W.3d at 404 (noting that the expert stated he was familiar with the standards of care and regularly provided and supervised care in connection with the treatment of patients similarly situated in terms of physicians, physician’s assistants, nurses, and hospitals); Hall v. Huff, 957 S.W.2d at 99-100 (noting that the expert stated he taught nursing courses and had testified about the standards of nursing care). No such allegations appear in Saenz’ report or curriculum vitae, though. That is, neither illustrate that he was familiar with the standards of nursing care as they relate to post-operative pain management, that he supervised or worked with nurses in that area, or that he had taught classes to nurses on the subject.

          In short, Saenz may well be highly qualified to render an opinion on the standards of care a nurse must follow. Yet, we cannot simply conclude that he is. Indeed, standards of care may well differ between physicians and nurses. See e.g., Simonson v. Keppard, 225 S.W.3d 868, 873-74 (Tex. App.–Dallas 2007, no pet.) (so noting there). And before we can deem sufficient his opinions regarding the care provided by the nurse at bar, we must know not only what the nurse was obligated to do but also how the expert knew that. Unlike situations wherein parents are talking to their children, saying or assuming “because” is not enough.

          Given our disposition of the first argument, we need not address the others proffered by Covenant. Instead, we reverse the trial court’s order and remand the cause for further proceedings.

                                                                           Brian Quinn

                                                                          Chief Justice

ial', sans-serif">          Gore’s counsel explained the purpose of the offer of proof: “if the court does not allow the testimony into evidence in front of the jury, I would like to at least present it now for the court to consider after the verdict and before a judgment is entered.” The court discerned the basis of the offer was: “due to some kind of contract or an agreement with a health care provider that what was actually accepted in full is less than what was charged Plaintiff; is that correct?” Gore’s counsel agreed with this assessment.

          Gore then called the records custodians for Covenant and Lubbock Radiology as witnesses for the offer of proof. Each testified that Faye’s charges were discounted pursuant to a contract between the provider and Faye’s health insurance company FirstCare. Through these witnesses, Gore offered unredacted copies of the previously admitted affidavits of services and charges of Covenant and Lubbock Radiology.

          At the conclusion of the offer of proof, the court restated Gore’s position: “And then he is making a motion to offer the testimony of [the records custodians] in front of the jury.” On the court’s request for a response, Faye’s counsel voiced an objection to the testimony of the records custodians before the jury. The court then ruled:

The court is going to sustain her objection and overrule you, preventing you from putting this in front of the jury. And the court’s of the opinion, at this time, until further guidance is given the court, that it is a post-verdict pre-judgment matter. And so the offer of proof will stand but I will not allow that testimony in front of the jury.

          The following exchange then occurred:

[Gore’s counsel]: “Okay. And, Your Honor, in the alternative then, we would ask the court to consider the testimony post-verdict pre-judgment.”

[The Court]: “Yes, we will do that.”

          * * *

[Faye’s counsel]: “And, Your Honor, for clarification, defense exhibits–I don’t remember the numbers, but those include information regarding adjustments, will not be presented to the jury?

[The Court]: “That’s right. That is just for the Judge before he prepares–executes a judgment.”

          At the charge conference, neither party objected to the proposed damage question which in part inquired what amount of money would compensate Faye for “reasonable expenses of necessary medical care actually incurred in the past.” The jury found each party negligent, assessed fault at 25% to Faye and 75% to Gore, and awarded Faye $250 for past physical pain, $6,391.10 for past medical expenses, and zero for past lost wages.

           After receipt of the verdict and discharge of the jury the court determined it was not feasible to accurately offset the past medical charges according to Gore’s section 41.0105 evidence because the jury awarded an amount less than the total amount of charges presented by Faye’s affidavits. The court signed a judgment awarding Faye the full amount of past medical expenses found by the jury, reduced by the percentage of fault the jury attributed to Faye.

          Gore moved for a new trial asserting factual and legal insufficiency of the evidence supporting the award of past medical expenses because of the limiting effect of section 41.0105 and abuse of discretion by the court for not admitting Gore’s section 41.0105 evidence before the jury. The motion for new trial was apparently overruled by operation of law and this appeal followed.

Issue Presented

          Gore brings a single issue on appeal:

“The trial court erred in excluding properly offered exhibits and testimony concerning the amounts of medical expenses actually paid and accepted by Appellee’s health care providers as payment in full.”

          As noted, the trial court admitted Gore’s section 41.0105 evidence, but only for its post-verdict consideration in fashioning a judgment. Gore’s argument in her brief makes clear that her complaint is the trial court abused its discretion by not allowing her to present the section 41.0105 evidence for the jury’s consideration in answering the past medical expense damages question. Gore’s contention is that admission of the evidence before the jury for that purpose was required by section 41.0105. She does not argue it was admissible for any purpose other than implementation of that statute.

Discussion

          The admission and exclusion of evidence at trial is committed to the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). See also Dow Chemical Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001); Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 491 (1943) (both noting great discretion vested in trial court over conduct of trial). A trial court abuses its discretion when its ruling is arbitrary, unreasonable or without reference to any guiding rules or legal principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)  

          The correctness of Gore’s position that the trial court was required to admit her section 41.0105 evidence before the jury is not apparent from the language of section 41.0105. The legislature enacted the section as an addition to chapter 41 of the Civil Practice and Remedies Code, which chapter “establishes the maximum damages that may be awarded in an action” subject to its provisions. Tex. Civ. Prac. & Rem. Code Ann. § 41.002(b) (Vernon Supp. 2007). By its language the limitation on damages prescribed by section 41.0105 is mandatory. But unlike other provisions of chapter 41, section 41.0105 contains no procedural direction for its application at trial. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 41.008(a), (e) (Vernon Supp. 2007) (prescribing separate determinations of economic and other compensatory damages, and prohibiting making provisions known to jury); Tex. Civ. Prac. & Rem. Code Ann. § 41.009 (Vernon 1997) (requiring bifurcated trial on motion); Tex. Civ. Prac. & Rem. Code Ann.§§ 41.003(e) and 41.012 (Vernon 1997 and Supp. 2007) (mandating jury instructions in cases involving claims for exemplary damages).

          In their appellate briefs, the parties devote a good deal of attention to the question whether introduction before the jury of evidence that Faye benefitted from her insurer’s contractual agreements with Covenant and Lubbock Radiology runs contrary to the collateral source rule. Gore contends that admission of such evidence does not violate the collateral source rule. Review of the record convinces us that disposition of this appeal does not require our evaluation of the impact of section 41.0105 on the collateral source rule. This appeal presents only the narrow procedural question whether the trial court was required to implement section 41.0105 through presentation of evidence to the jury. Even if Gore is correct that admission of her section 41.0105 evidence would not violate the collateral source rule, it is obvious that the admission of such evidence before the jury in a personal injury case involves a significant departure from existing trial practice in Texas. See, e.g., Taylor, 132 S.W.3d at 625 (“It is generally considered error for insurance coverage of either party to be mentioned by the other party during trial of a personal injury cause of action.” (citations omitted)). Without a more explicit statutory provision or guidance from our supreme court, we see no abuse of discretion in the trial court’s decision to apply section 41.0105 post-verdict.

          Gore’s single issue is overruled, and the trial court’s judgment is affirmed.

                                                                James T. Campbell

                                                                        Justice