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

NO. 12-15-00189-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
GARRISON NURSING HOME AND § APPEAL FROM THE 145TH
REHABILITATION CENTER AND
GARRISON NURSING HOME, INC.,
APPELLANTS
§ JUDICIAL DISTRICT COURT
V.
LEGATHA DEMINGS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Garrison Nursing Home and Rehabilitation Center and Garrison Nursing Home, Inc.
(collectively Garrison) appeal the order of the trial court denying their motion to dismiss Legatha
Demings’s suit against them. We affirm.
BACKGROUND
Prior to the events precipitating this suit, Demings had a medical history of hypertension,
atrial fibrillation, congestive heart failure, emphysema, and a previous transient ischemic attack
(TIA).1 On May 22, 2012, while at home, Demings fell out of the bed after suddenly developing
slurred speech and weakness in her extremities. She was taken to a hospital in Carthage, Texas,
and then subsequently transferred to Nacogdoches Medical Center. While in the hospital,
1
This appeal concerns whether the expert’s report satisfies the requirements of Chapter 74 of the Texas
Civil Practice and Remedies Code. Because we are confined to the four corners of the report and defer to the trial
court’s determination of the facts alleged in the report, our discussion of the facts is based on those as alleged by the
expert in his report. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015); Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).
Demings was diagnosed as having had a cerebrovascular accident (CVA) or stroke. On May 25,
2012, the hospital discharged Demings to Garrison, and her physician noted in the discharge
summary that her stroke was of “ischemic origin, most likely caused by her atrial fibrillation.”
Consequently, Demings’s treating physician prescribed Xarelto, a blood thinning medication, to
prevent further strokes. According to the physician, Demings’s condition improved prior to her
discharge to Garrison, and she had improved speech and movement in her left side.
Two weeks later, while at Garrison, Demings became “confused, combative, and unable
to communicate.” On June 8, 2012, she was transported by emergency medical services to
Nacogdoches Medical Center. A computerized tomography (CT) scan of her head revealed an
ischemic infarction of her brain consistent with a stroke. One of Demings’s consulting
physicians, a neurologist, documented that she had suffered a “[c]erebrovascular accident
extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis.” That
same day, nursing staff at Garrison created a “medication error report.” This report documented
that from the time Demings returned to Garrison after her first hospital stay on May 25, 2012,
until her transfer to Nacogdoches Medical Center on June 8, 2012, Garrison wholly failed to
administer Xarelto to Demings as ordered by her physician.
In 2014, Demings filed suit against Garrison, alleging that Garrison failed to administer
Xarelto to her as ordered, which resulted in her June 8, 2012 stroke. In an attempt to comply
with the expert report requirements of Chapter 74 of the Texas Civil Practice and Remedies
Code, Demings filed a report and curriculum vitae from Pauline Kaper, R.N. Garrison filed its
objections to the report and a motion to dismiss Demings’s suit. The trial court found that Nurse
Kaper’s report was deficient, but signed an order denying Garrison’s motion to dismiss and
granting Demings a thirty day extension to cure the deficiencies.
Demings filed another report, this time from Keith E. Miller, M.D. Dissatisfied with the
report, Garrison filed its objections and a motion to dismiss challenging Dr. Miller’s
qualifications and his opinion on causation. The trial court overruled Garrison’s objections and
denied its motion to dismiss. This interlocutory appeal followed.2
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2016).
2
EXPERT REPORT
In its first issue, Garrison contends that Dr. Miller failed to demonstrate his qualifications
to opine on the relationship between Garrison’s failure to provide Xarelto and Demings’s June 8,
2012 stroke. In its second issue, Garrison argues that Dr. Miller’s report is conclusory on
causation. Because these issues are related, we address them together.
Standard of Review
A trial court’s ruling on qualifications of a medical expert and the sufficiency of an
expert’s report under Chapter 74 is reviewed for an abuse of discretion. Van Ness v. ETMC
First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if it acts without
reference to guiding rules or principles. Van Ness, 461 S.W.3d at 142. However, in exercising
its discretion, it is incumbent upon the trial court to review the report, sort out its content, resolve
any inconsistencies, and decide whether the report demonstrated a good faith effort to show that
the plaintiff’s claims have merit. See id. at 144. When reviewing factual matters committed to
the trial court’s discretion, an appellate court may not substitute its judgment for that of the trial
court. Id.
Expert Report Requirement
Chapter 74 of the civil practice and remedies code governs health care liability claims.
Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 316 n.3 (Tex.
App.–Dallas 2008, no pet.). Any person who brings suit asserting a health care liability claim
must provide an expert report for each physician or health care provider against whom a health
care liability claim is asserted. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp.
2016). An “expert report” is defined as a written report that provides a fair summary of the
expert’s opinions as of the date of the report regarding applicable standards of care, the manner
in which the care rendered by the physician or health care provider failed to meet the standards
of care, and the causal relationship between that failure and the injury, harm, or damages
claimed. Id. § 74.351(r)(6); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex. 2002) (per
curiam).
A trial court shall grant a motion challenging the adequacy of the report only if it appears
to the court, after hearing, that the report does not represent an objective good faith effort to
comply with the definition of “expert report” in section 74.351(r)(6). TEX. CIV. PRAC. & REM.
3
CODE ANN. § 74.351(l); see also Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). To
represent an objective good faith effort to comply with statutory requirements, the expert report
must (1) inform the defendant of the specific conduct the plaintiff has called into question, and
(2) provide a basis for the trial court to conclude that the claims have merit. Loaisiga, 379
S.W.3d at 260; Palacios, 46 S.W.3d at 879.
Expert Qualifications
The proponent of an expert report has the burden to show that the expert is qualified.
Broders v. Heise, 924 S.W.2d 148, 151–52 (Tex. 1996). To qualify as an expert witness on the
issue of whether a health care provider departed from the accepted standards of care, a witness
must (1) practice health care in a field of practice that involves the same type of care or treatment
as that delivered by the health care provider, if the health care provider is an individual, at the
time the testimony is given, or was practicing that type of health care when the claim arose; (2)
have 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) qualify on the basis of
training or experience to offer an expert opinion regarding those accepted standards of health
care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b) (West 2011).
To determine whether a witness is qualified, we consider whether the witness is (1)
certified by a state licensing agency or national professional certifying agency or has other
substantial training or experience in the area of health care relevant to the claim and (2) actively
practicing health care in rendering health care services relevant to the claim. See id. § 74.402(c).
We also examine the witness’s report and curriculum vitae in making this assessment. See
Caviglia v. Tate, 365 S.W.3d 804, 810 (Tex. App.—El Paso 2012, no pet.). Not every licensed
doctor is qualified to testify on every medical question, but we must be careful not to draw expert
qualifications too narrowly. Adeyemi v. Guerrero, 329 S.W.3d 241, 247 (Tex. App.—Dallas
2010, no pet.). To determine whether an expert report is sufficient to demonstrate the
qualifications of the expert to opine, the trial court should focus on the medical expert's
“knowledge, skill, experience, training, or education” concerning the specific issue before the
court that would qualify the expert to give an opinion on that particular subject. Broders, 924
S.W.2d at 153-54.
4
Causation
A causal relationship is established by proof that the negligent act or omission was a
substantial factor in bringing about the harm, and that, absent this act or omission, the harm
would not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245,
249 (Tex. App.—San Antonio 2004, no pet.). Causation is often established in medical
malpractice cases through evidence of a “reasonable medical probability” or “reasonable
probability” that the alleged injuries were caused by the negligence of one or more defendants.
Jelinek v. Casas, 328 S.W.3d 526, 532–33 (Tex. 2010). In other words, the plaintiff must
present evidence “that it is ‘more likely than not’ that the ultimate harm or condition resulted
from such negligence.” Id. (quoting Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–
400 (Tex. 1993)). An expert may show causation by explaining a chain of events that begins
with a defendant doctor’s negligence and ends in injury to the plaintiff. See McKellar v.
Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.).
A report is deficient if it states only the expert’s conclusions about the standard of care,
breach of the standard of care, or causation. See Ortiz v. Patterson, 378 S.W.3d 667, 671 (Tex.
App.—Dallas 2012, no pet.). An expert cannot simply opine that the breach caused the injury.
Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539. Rather, the report must explain, to a
reasonable degree, how and why the breach of the standard of care caused the injury based on the
facts presented. Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539–40. The report must
explain the basis of the expert’s statements to link his conclusions to the facts. Bowie Mem’l
Hosp., 79 S.W.3d at 52; see also Taylor v. Fossett, 320 S.W.3d 570, 575 (Tex. App.—Dallas
2010, no pet.) (expert report must contain sufficiently specific information to demonstrate
causation beyond conjecture).
In determining whether the expert report represents a good faith effort to comply with the
statutory requirements, the court’s inquiry is limited to the four corners of the report. Christian
Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 641 (Tex. App.—Dallas 2010, pet. denied) (citing
Palacios, 46 S.W.3d at 878). “We may not ‘fill gaps’ in an expert report by drawing inferences
or guessing what the expert likely meant or intended.” Hollingsworth v. Springs, 353 S.W.3d
506, 513 (Tex. App.—Dallas 2011, no pet.). “We determine whether a causation opinion is
sufficient by considering it in the context of the entire report.” Ortiz, 378 S.W.3d at 671.
5
Dr. Miller’s Qualifications
Garrison argues that Dr. Miller failed to demonstrate that he is qualified to provide
opinions regarding the causal relationship between the alleged failure to administer Xarelto and
Demings’s stroke. Specifically, Garrison argues that Dr. Miller did not show that he has
knowledge, training, or experience with Xarelto and its relationship to strokes.
Garrison relies on Collini v. Pustejovsky and HEB Grocery Co. v. Galloway as support
for its argument. See HEB Grocery Co. v. Galloway, No. 09-13-00486-CV, 2014 WL 2152128,
at *5-6 (Tex. App.—Beaumont May 22, 2014, no pet.) (mem. op.); Collini v. Pustejovsky, 280
S.W.3d 456, 465-66 (Tex. App.—Fort Worth 2009, no pet.). In Collini, the plaintiff alleged the
defendant had negligently prescribed the drug Reglan, which caused her to suffer tardive
dyskinesia. Id. at 460. In finding the plaintiff’s Chapter 74 expert unqualified to opine on
causation, the appellate court wrote that the expert does not indicate “he has any experience or
training regarding Reglan or tardive dyskinesia at all; rather, [his report] only generally states
that he has knowledge applicable to ‘primary care and family medicine.’” Id. at 465-66.
In Galloway, the plaintiff contended that a pharmacist at HEB mistakenly mixed an
antifungal medication with blood pressure medication causing her damages related to
uncontrolled blood pressure. The plaintiff submitted an expert report of a doctor whose
curriculum vitae described expertise primarily in the field of anesthesiology. Galloway, 2014
WL 2152128, at *1, 5. He stated that he writes prescriptions to patients, has training and
experience in the same fields as health care providers like HEB and its pharmacists, and that
physicians and patients rely on pharmacists to accurately fill prescriptions. Id. The court of
appeals held that the physician’s “overly broad and general references to writing prescriptions
for patients and his statement regarding reliance upon pharmacists to accurately fill prescriptions
would not demonstrate that he would be qualified to testify as to causation.” Id. at *5. The court
noted that the physician failed to state that he had treated patients with high blood pressure,
prescribed blood pressure medication, was familiar with the side effects of the medication and
the ensuing effects after patients fail to take their medication, or that he was familiar with the
pharmacology of the blood pressure and antifungal medications. See id. at *6.
The reports in those cases are distinguishable from Dr. Miller’s report. In his report, Dr.
Miller stated that he currently practices in nursing homes similar to Garrison, he has had
numerous patients similar to Demings, and he is board certified in family medicine and has
6
practiced in the field for twenty-five years. He stated that his opinions in the report are based on
his education, training, and direct experience in the diagnosis, care, and treatment of patients
with the same or similar conditions as Demings. He also stated that as part of his practice, he is
involved in the diagnosis and treatment of patients with CVA’s (strokes), hypertension, and
related illnesses and their complications. Dr. Miller communicated that he acquired this
knowledge from medical school courses, practical experience, study of technical works for
treating these conditions, discussion with colleagues who treat these conditions, and his routine
and regular contact with nursing home staff who take care of patients with the same conditions as
Demings. Later in his report, Dr. Miller explained that Demings’s stroke was of ischemic origin,
most likely caused by her atrial fibrillation. Consequently, he continued, her treating physician
prescribed Xarelto, which he explained was a blood thinning anticoagulant used to treat patients
with atrial fibrillation in order to avoid future strokes. He also stated that Garrison’s failure to
provide Xarelto as ordered led to an increased risk for stroke in view of her diagnosis of atrial
fibrillation. Finally, Dr. Miller explained that he is familiar with the formulation and execution
of policies and procedures in administering medication in nursing homes under the
circumstances of this case.
Based on this information in Dr. Miller’s report, we cannot conclude that the trial court
abused its discretion in determining that Dr. Miller demonstrated he was qualified to opine on
Garrison’s failure to provide Demings her Xarelto and its relationship to her resulting stroke.
Dr. Miller’s Causation Opinion
Garrison argues further that Dr. Miller’s opinion regarding causation is conclusory
because he fails to provide any explanation linking the alleged failure to provide Xarelto to
Demings and the stroke she allegedly suffered.
Garrison relies on Jelinek v. Casas, where the plaintiff claimed that a delay in providing
antibiotics caused a prolonged hospital stay and an increase in pain and suffering. Jelinek v.
Casas, 328 S.W.3d 526, 530 (Tex. 2010). The court held that the expert’s report provided no
more than a bare assertion that the defendant’s alleged breach—failing to timely provide
antibiotics—resulted in increased pain and suffering and a prolonged hospital stay. See id. at
539.
Dr. Miller’s report provides more than a bare assertion that Garrison’s failure to provide
Xarelto was a proximate cause of Demings’s June 8, 2012 stroke. Dr. Miller stated that
7
Demings’s treating physician ordered that she be placed on Xarelto, which he explained was an
anticoagulant blood thinning medication used to prevent strokes in patients with atrial
fibrillation. Dr. Miller noted that Demings’s treating physician at Nacogdoches Medical Center
observed that she made improvement in her speech and displayed increased movement on her
left side upon receiving Xarelto. Upon her transfer to Garrison on May 25, 2012, Garrison failed
to provide Demings her Xarelto. On June 8, 2012, Demings was taken back to Nacogdoches
Medical Center, where hospital staff determined that she suffered another stroke. According to
Dr. Miller, that same day, nursing staff at Garrison made a “medication error report,”
documenting that no one at Garrison provided Demings her Xarelto. Dr. Miller stated that staff
at Garrison noted in the error report that
[Demings] 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.
Dr. Miller continued that the medication error report documented 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 “[m]akes her a higher risk for stroke in view of her diag
(diagnosis) of atrial fibrillation.”
Dr. Miller also included notes from Demings’s other treating physicians in a subsequent
hospitalization documenting that Demings suffered from atrial fibrillation when she was first
admitted into Garrison, and that “[s]he was started (on) Xarelto. Apparently . . . [staff at
Garrison] did not follow-through in the nursing home, and she had . . . strokes. . . .” Dr. Miller
further noted that this physician documented the importance of a patient such as Demings, who
suffered with atrial fibrillation, remaining on a blood-thinning medication such as Xarelto for the
remainder of her life.
Dr. Miller went on to state that staff at Garrison failed to appreciate that Demings was at
the highest risk for the development of future strokes due to her past medical history of
hypertension, atrial fibrillation, a previous TIA, and a previous stroke. Dr. Miller opined that the
nursing staff at Garrison failed to properly transfer Demings’s medication order for Xarelto to
8
her medication administration record. Dr. Miller explained that Demings arrived at Garrison late
on a Friday. Consequently, he continued, Garrison’s nursing staff had a short deadline to present
her medication orders to the pharmacy, and she might not receive her medications until the
following day, or perhaps longer, due to the fact that the following day fell on a weekend. Dr.
Miller stated there was no procedure in place at Garrison to ensure that medication orders are
accurately transcribed. He knew of the failure to maintain a proper system because the
medication error report indicated Garrison’s nursing staff recognized the need to improve their
procedures for ordering medications from the pharmacy. Specifically, Dr. Miller stated that the
error report included the question, “What precautions can you take to prevent a similar error?”
The nurse completing the report answered, “Always have two nurses check orders on new
admissions to make sure (orders are) transcribed correctly.” Dr. Miller went on to conclude as
follows:
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. 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.
Garrison contends that Dr. Miller did not sufficiently demonstrate the failure to provide
Xarelto and its relationship to causing Demings’s stroke. Demings was not required to present
evidence in Dr. Miller’s report as if she were actually litigating the merits. See Palacios, 46
S.W.3d at 879. It is true that Dr. Miller did not provide a detailed discussion of Xarelto’s
pharmacology. However, he did explain that Xarelto is an anticoagulant blood thinner used to
treat patients with atrial fibrillation for the purpose of preventing strokes. He also noted that
when provided Xarelto by her treating physician at Nacogdoches Medical Center, Demings
experienced improvement in her condition. Dr. Miller explained that Garrison’s own staff
acknowledged its failure to provide Demings’s Xarelto in the medication error report, including
that its failure made her a higher risk for having a stroke in light of her medical history. Dr.
Miller opined that Garrison breached the standard of care in failing to recognize this risk and
ensure that a patient in Demings’s circumstances received her medication. He then directly
9
concluded that this failure, in terms of a reasonable medical probability, caused Demings to
suffer a stroke and the ensuing complications.
Under the circumstances present in this case, Dr. Miller provided sufficient information
in his report to allow the trial court to conclude that he adequately addressed causation to a
reasonable degree and that the report satisfies the requirements and purposes of Chapter 74.
Accordingly, we hold that the trial did not abuse its discretion in overruling Garrison’s
objections to Dr. Miller’s report and its motion to dismiss.3
Garrison’s first and second issues are overruled.
DISPOSITION
Having overruled Garrison’s two issues, we affirm the order of the trial court overruling
its objections to Dr. Miller’s report and its motion to dismiss.
BRIAN HOYLE
Justice
Opinion delivered September 21, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
3
In its brief, Garrison counters Demings’s argument that Garrison’s conduct falls within the res ipsa
loquitur doctrine. Garrison also contends that we may not review Nurse Kaper’s report in conjunction with Dr.
Miller’s report. Since we have held that the trial court did not abuse its discretion when it concluded that Dr.
Miller’s report is sufficient under Chapter 74, we need not address these issues. See TEX. R. APP. P. 47.1.
10
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 21, 2016
NO. 12-15-00189-CV
GARRISON NURSING HOME AND REHABILITATION CENTER
AND GARRISON NURSING HOME, INC.,
Appellants
V.
LEGATHA DEMINGS,
Appellee
Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. C1430319)
THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order
overruling its objections to Dr. Keith E. Miller’s report and its motion to dismiss of the court
below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the
Appellants, GARRISON NURSING HOME AND REHABILITATION CENTER AND
GARRISON NURSING HOME, INC., for which execution may issue, and that this decision
be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.