Pharmacy Healthcare Solutions, Ltd. D/B/A Advocate Rx Solutions v. Ernest Jason Pena

Opinion filed August 21, 2015
In The
Eleventh Court of Appeals
__________
No. 11-14-00176-CV
__________
PHARMACY HEALTHCARE SOLUTIONS, LTD.
D/B/A ADVOCATE RX SOLUTIONS, Appellant
V.
ERNEST JASON PENA ET AL., Appellees
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-132,292
OPINION
This is an interlocutory appeal in a suit involving a health care liability claim.1
Ernest Jason Pena and other family members sued Pharmacy Healthcare Solutions,
Ltd. d/b/a Advocate Rx Solutions (Pharmacy Healthcare) and others for the wrongful
1
See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74 (West 2011 & Supp. 2014).
death2 of Dina Pena (Dina) and for injuries to her prematurely born son, Jadin Pena.
Pharmacy Healthcare moved for dismissal of the case based upon its contention that
Appellees’ medical expert reports failed to outline (1) the standard of care owed by
Pharmacy Healthcare and its pharmacist, (2) how either had breached that standard
of care, and (3) how any such breach caused Dina’s death and her son’s injuries.
The trial court ruled that the reports submitted by Gourang P. Patel, who has a
doctorate in pharmacy, and James M. Wheeler, MD constituted objective good faith
efforts to comply with Section 74.351 of the Civil Practice and Remedies Code.3
Pharmacy Healthcare appeals the ruling of the trial court. We dismiss.
I. Background Facts
A. Dina’s Complaints and Hospitalization
Appellees allege that Dina, who was in her twenty-fifth week of pregnancy,
called the office of Dr. Pamela A. McQuillin, who was Dina’s obstetrician, and
complained of shortness of breath. Dina was told to go to the hospital, the Odessa
Regional Medical Center (ORMC), which she did. Dina was admitted with
shortness of breath and Dina was significantly tachycardic with a heart rate from 150
to 156. After several hours, a spiral CT scan was performed, and the imaging
revealed a pulmonary embolism.
Dr. Joseph Bruner, a maternal fetal physician specialist, prescribed Lovenox,
“STAT,”4 to prevent blood clots5 in Dina, but the hospital pharmacy at ORMC failed
2
Appellees also sued under the survival statute. The Texas Survival Statute permits a decedent’s
heirs, legal representatives, and estates to bring actions for personal injuries the decedent suffered before
his death, while the Texas Wrongful Death Act confers a cause of action upon the surviving spouse,
children, and parents of a decedent for their damages resulting from the decedent’s death. See CIV. PRAC.
& REM. §§ 71.021, 71.004.
3
Appellees submitted Dr. Patel’s report, along with two reports from Dr. Wheeler, as their expert
reports that are required under Chapter 74. See CIV. PRAC. & REM. § 74.351.
4
The Latin word “statim” means “immediately.” BLACK’S LAW DICTIONARY 1632 (10th ed. 2014).
5
Dr. Wheeler opined that blood clots are a well-known and common complication in pregnancy.
2
to dispense the anticoagulant for almost two hours. Appellees allege that, when the
prescription for Lovenox was received, both by telephone and facsimile, by the
pharmacy at ORMC, the pharmacy was staffed by a Cardinal Health Pharmacy
Services, LLC pharmacy technician, who was in turn supervised by a pharmacist
employed by Pharmacy Healthcare. Dr. Bruner attempted to transfer Dina to
Houston for treatment, but when a transfer could not be secured, an order was given
by Dr. McQuillin, and Dr. Suresh Prasad to transfer Dina to the Cardiac Care Unit
of ORMC, so she could receive thrombolytic therapy.
As Dr. Kodi prepared to give Dina the thrombolytic therapy, Dina suffered
cardiopulmonary arrest in her room and died. Dina’s unborn child was delivered
prematurely through a perimortem cesarean birth. Dina’s cause of death was from
blood clots that had grown and then propagated to the pulmonary arteries in her
lungs. The clots obstructed blood flow, which led to cardiopulmonary arrest and
death and also the premature birth of her son.
B. Medical Experts’ Reports
Three medical expert reports, two from Dr. Wheeler and another from
Dr. Patel, were served on Pharmacy Healthcare and other defendants. Dr. Patel
explained that the “standard of care for a hospital pharmacy requires medications
ordered on a STAT basis to be dispensed within one hour” of receipt of the order
and that the failure to do so was a breach of the standard. Dr. Wheeler explained
that a “STAT” order means to administer a prescription immediately and that the
failure to properly and timely treat Dina’s pulmonary embolism with the
anticoagulant caused the clots to enlarge and propagate and obstruct the pulmonary
arteries, which cut off blood and resulted in Dina’s cardiopulmonary arrest, her
death, and the premature delivery of her son.
3
C. Procedural History
Pharmacy Healthcare objected to the reports and moved to dismiss the case
because Appellees had not served medical expert reports that complied with Section
74.351. Appellees filed a response to Pharmacy Healthcare’s motion. After a
hearing, the trial court overruled the objections on standard of care and breach, but
it sustained the causation objections and granted Appellees a thirty-day extension to
amend their medical reports. This appeal followed. Pharmacy Healthcare has only
appealed the ruling of the trial court on the standard of care and breach of care
opinions given in the report. Thus, causation, as it pertains to the medical reports, is
not an issue before this Court.
II. Issue Presented
Pharmacy Healthcare argues in one issue that Dr. Patel’s report failed to
qualify as a minimally sufficient expert report under Section 74.351 because the
report did not identify Pharmacy Healthcare as a breaching defendant, articulate the
applicable standard of care for Pharmacy Healthcare, or describe the acts or
omissions of Pharmacy Healthcare that violated the standard of care.
III. Standard of Review
We review a trial court’s decision on a motion to dismiss a health care liability
claim for an abuse of discretion. See 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 in an arbitrary or unreasonable manner without reference to guiding rules or
principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). In reviewing the
trial court’s decision, we may not substitute our judgment for that of the trial court
in reviewing factual matters or matters committed solely to the trial court’s
discretion. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);
Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).
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IV. Analysis
The Medical Liability Act6 entitles a defendant to dismissal of a health care
liability claim if, within 120 days of the date suit was filed, the defendant is not
served with an expert report showing that the claim against that defendant has merit.7
Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011).
A. “Good Faith” Requirement for the Expert’s Report
When a defendant moves to dismiss and challenges the adequacy of the
claimant’s expert report, the trial court shall grant the motion to dismiss only if the
court finds, after a hearing, that the report does not represent an objective good faith
effort to comply with the definition of an expert report. CIV. PRAC. & REM.
§ 74.351(l); Abilene Reg’l Med. Ctr. v. Allen, 387 S.W.3d 914, 917–18 (Tex. App.—
Eastland 2012, pet. denied). A “good faith effort” under Section 74.351(l) “simply
means a report that does not contain a material deficiency.” Samlowski v. Wooten,
332 S.W.3d 404, 409–10 (Tex. 2011). If the report fulfills its two purposes, it
represents a good faith effort. Palacios, 46 S.W.3d at 879. The two purposes of the
expert report are to inform the defendant of the specific conduct the plaintiff has
called into question and to provide a basis for the trial court to conclude that the
claims have merit. Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex. 2008) (citing
Palacios, 46 S.W.3d at 879). “In contrast, a report that omits an element or states
the expert’s opinions in conclusory form is not a good faith effort.” Samlowski, 332
S.W.3d at 410 (citing Palacios, 46 S.W.3d at 879).
B. Three Requirements for Experts’ Reports
A report need not marshal all the plaintiff’s proof, but it must include the
expert’s opinion on each of the elements identified in the statute. Palacios, 46
S.W.3d at 878. The reports, which may be from one or more medical experts, must
6
See CIV. PRAC. & REM. ch. 74.
7
See id. § 74.351(b).
5
outline the following: (1) the standard of care, (2) the manner in which the
defendant’s care failed to satisfy that standard, and (3) the causal relationship
between the defendant’s failure and the injury or damages claimed. CIV. PRAC. &
REM. § 74.351(i), (r)(6); Allen, 387 S.W.3d at 917–18 (citing Packard v. Guerra,
252 S.W.3d 511, 526 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)); Tex.
Cypress Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209, 213 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied); see also Martin v. Abilene Reg’l Med. Ctr., No. 11-
04-00303-CV, 2006 WL 241509, at *4 (Tex. App.—Eastland Feb. 2, 2006, no pet.)
(mem. op.).
Only a physician may give opinion testimony about the causal relationship
between the claimed injury, harm, or damages and the alleged departure from the
standard of care. Hickman, 329 S.W.3d at 213. To avoid dismissal, a plaintiff need
not present evidence in the report as if it were actually litigating the merits. The
report can be informal in that the information in the report does not have to meet the
same requirements as the evidence offered in a summary-judgment proceeding or at
trial. Palacios, 46 S.W.3d at 879. A “fair summary” may be something less than a
full statement of the standard of care and how it was breached, but it must, at a
minimum, “set out what care was expected, but not given.” Palacios, 46 S.W.3d at
880 (emphasis added); see also Gelman v. Cuellar, 268 S.W.3d 123, 129 (Tex.
App.—Corpus Christi 2008, pet. denied).
A plaintiff’s suit may not be dismissed if a report, though deficient, contains
a statement of opinion by an individual with expertise indicating the claim asserted
by the plaintiff against the defendant has merit. Scoresby, 346 S.W.3d at 549. An
individual’s lack of relevant qualifications and an opinion’s inadequacies are
deficiencies the plaintiff should be given an opportunity to cure if it is possible to do
so. Id. This lenient standard avoids the expense and delay of multiple interlocutory
6
appeals and assures a claimant a fair opportunity to demonstrate his claim is not
frivolous. Id.
C. Dr. Patel’s and Dr. Wheeler’s Opinions
Dr. Patel, in his report, and Dr. Wheeler, in his two reports, outlined what
“STAT” means when one gives a prescription order for Lovenox “STAT.” Dr. Patel
opined that the pharmacy had to dispense the prescription within one hour of the
order being received, while Dr. Wheeler opined that “STAT” means that the
medication must be administered immediately. Dr. Patel noted that Dr. Bruner first
prescribed Lovenox at 3:41 p.m., an order transmitted by telephone and facsimile,
but that the medication was not initially administered until 5:20 p.m.
Dr. Patel stated in his report that, during that time, Jenna Jackson, a registered
nurse, called the pharmacy at least five times and was advised that the pharmacy was
working on the order. Dr. McQuillin also called the pharmacy to obtain the status
of the medication. Still later, the charge nurse, Christy Norwood, called the
pharmacy and was told by the pharmacist that the Lovenox was in the PYXIS on the
labor and delivery unit. Norwood told Jackson that the Lovenox was in the PYXIS,
and Jackson retrieved the medication from the PYXIS. Jackson initially
administered Lovenox to Dina at 5:20 p.m. and again at 5:29 p.m.
Dr. Patel outlined that the hospital pharmacy had a duty to deliver Lovenox
within one hour of receipt of the prescription order. Dr. Patel, a hospital-based
pharmacist, opined that the “hospital pharmacy” breached the standard of care when
Lovenox, an anticoagulant, was not dispensed within one hour of receipt of the
order.8
8
Dr. Patel and Dr. Wheeler both outlined in their report that Dina’s autopsy diagnosed the cause of
death to be massive pulmonary thromboembolization.
7
Dr. Wheeler stated that, in reasonable medical probability, if Dina had been
treated with complete anticoagulation and thrombolytic therapy, Dina would have
survived her massive pulmonary embolism and even delivered at term. He noted
that a delay in anticoagulation allows the existing clot to continue growing until it
actually kills the patient by blocking effective oxygenation and causing
cardiopulmonary arrest.
D. Pharmacy Healthcare’s and Appellees’ Arguments
Pharmacy Healthcare asserts that Dr. Patel’s report did not outline the
standard of care and the breach of that standard attributable to Cardinal Health or
Pharmacy Healthcare. Pharmacy Healthcare asserts that Dr. Patel’s report is not
compliant because it did not delineate between acts or omissions of Cardinal
Health’s pharmacy staff and acts or omissions of Pharmacy Healthcare’s pharmacist
in the hospital pharmacy, but instead described the “pharmacy.” Pharmacy
Healthcare argues that Dr. Patel’s report does not qualify as an “expert report” and
cites numerous cases to support its argument: one representative example is Mallat v.
Reeves, 238 S.W.3d 874, 880 (Tex. App.—Dallas 2007, no pet).
In Mallat, the court held that, because the document did not differentiate
between a surgeon’s actions and the anesthesiologist’s actions, it did not constitute
a good faith effort to comply with Section 74.351(r)(6). 238 S.W.3d at 880. If more
than one defendant is sued by a plaintiff, the plaintiff’s expert report must outline
the standard of care for each defendant and explain the causal relationship between
each defendant’s individual acts and the injury. See Doades v. Syed, 94 S.W.3d 664,
671 (Tex. App.—San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722
(Tex. App.—Houston [14th Dist.] 2001, no pet.). However, if multiple defendants
owe the same duty to the patient, then the plaintiff is not required to specifically state
the same standard of care for each individual defendant. See Rittger v. Danos, 332
S.W.3d 550, 556–57 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Romero v.
8
Lieberman, 232 S.W.3d 385, 391–92 (Tex. App.—Dallas 2007, no pet.); In re
Boone, 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006, orig. proceeding).
Appellees assert that Dr. Patel, a hospital-based pharmacist, set out the
standard of care for dispensing Lovenox with a “STAT” instruction (i.e. within one
hour of receiving the order) and that “the pharmacy” breached that standard of care
when it dispensed the prescription almost two hours after it received the “STAT”
order. Appellees also argue that Dr. Patel’s report is sufficient and need not address
agency or vicarious liability theories. “When a party’s alleged health care liability
is purely vicarious, a report that adequately implicates the actions of that party’s
agents or employees is sufficient.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669,
671–72 (Tex. 2008).
In The University of Texas Southwestern Medical Center v. Dale., the
plaintiffs’ expert indicated in the report that four UT Southwestern resident
physicians were negligent, but it did not specifically name UT Southwestern; our
sister court in Dallas held that the report complied with Chapter 74 because the
plaintiffs had alleged that UT Southwestern was liable for the actions of its resident
physicians. 188 S.W.3d 877, 878–79 (Tex. App.—Dallas 2006, no pet.). Dr. Patel
described the standard of care and the breach of that care, and in naming the
pharmacy, he implicated the pharmacist.
Pharmacy Healthcare does not cite to a case that indicates that there are
differing standards of care for pharmacy technicians and pharmacists, and we have
been unable to locate one. All of the cases cited by Pharmacy Healthcare, including
Mallat, are distinguishable because they do not address someone working under
supervision of a medical professional. Those cases are also distinguishable because
Dr. Patel has opined that there is a single standard of care for a hospital pharmacy,
which implicates Pharmacy Healthcare’s pharmacist who was on duty at the time.
9
In this case, Dale, which we have previously explained, and Boone are more
analogous. Dale, 188 S.W.3d at 878–79; Boone, 223 S.W.3d at 405–06. In Boone,
a physician assistant was supervised by a physician, and both were held to have
violated a single standard of care that dealt with when to discontinue anticoagulation
medication following surgery. Boone, 223 S.W.3d at 405–06. Our sister court in
Amarillo concluded that, “[w]hile relators may disagree with [the expert’s] opinions
concerning the standard of care applicable to each of those individual defendants,
the report contains a fair summary of his opinions and adequately informs them of
the specific conduct called into question.” Id. at 406 (citing Palacios, 46 S.W.3d at
879–80). Boone is analogous because Appellees alleged that Pharmacy Healthcare’s
pharmacist was on duty at the time of the incident, and Dr. Patel outlined a single
standard of care for the pharmacy—dispense Lovenox within one hour on a “STAT”
order—which did not happen, and that opinion clearly implicated Pharmacy
Healthcare and its pharmacist.
Two other cases, Chandler v. Singh, and CVS Pharmacy, Inc. v. Ballard, are
helpful in the analysis of the medical report. See Chandler v. Singh, 129 S.W.3d
184, 187–89 (Tex. App.—Texarkana 2004, no pet.); CVS Pharmacy, Inc. v. Ballard,
No. 01-12-00253-CV, 2012 WL 4742652, at *3–7 (Tex. App.—Houston [1st Dist.]
Oct. 4, 2012, no pet.) (mem. op.). In Chandler, the court held that the medical expert
report complied with Section 74.351; it outlined the standard of care, the breach of
that care, and the damages that resulted from the actions of the pharmacist and his
employer, Wal-Mart. 129 S.W.3d at 187. The expert report in Chandler outlined
that the pharmacist failed to complete a drug regimen review and assess the patient’s
history before he filled a prescription for Ultram. Id. at 189–90. Similarly, Dr. Patel
outlined a standard of care: issue prescriptions ordered on a “STAT” basis within
one hour of receipt—the expected care to be given. See Palacios, 46 S.W.3d at 880;
Gelman, 268 S.W.3d at 129. Dr. Patel also opined that the failure to do so—the care
10
not given—was a breach of that standard and that breach implicated Pharmacy
Healthcare’s pharmacist. See Palacios, 46 S.W.3d at 880; Gelman, 268 S.W.3d at
129. Likewise, in CVS Pharmacy, one medical expert’s report was ruled sufficient
where it covered duty, breach, and causation. 2012 WL 4742652, at *3–7. Although
Dr. Patel’s report is not as detailed as the report in Ballard, his report and
Dr. Wheeler’s reports, when read in conjunction, provide fair summaries of their
opinions that meet the Scoresby requirements and are objective good faith efforts to
comply with Section 74.351.
Pharmacy Healthcare also asserts that Dr. Patel’s report is not a compliant
report because it failed to name either Cardinal Health or Pharmacy Healthcare. A
report does not fail to implicate a defendant’s conduct solely because the defendant
is not identified in the report by name. Troeger v. Myklebust, 274 S.W.3d 104, 110
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Ogletree v. Matthews,
262 S.W.3d 316, 321–22 (Tex. 2007)). Dr. Patel outlined that the hospital pharmacy
failed to timely dispense Lovenox, which implicated Pharmacy Healthcare and its
pharmacist; his report is a fair summary and is an objective good faith effort to
comply with Section 74.351. We hold that the trial court did not abuse it discretion
when it overruled Pharmacy Healthcare’s objections and denied its motion to
dismiss. We overrule Pharmacy Healthcare’s sole issue on appeal.
V. Conclusion
We have reviewed the record and hold that the trial court did not abuse its
discretion when it found that the reports of Dr. Wheeler and Dr. Patel met the
Scoresby standard and constituted a good faith effort to comply with Section 74.351.
Because the reports meet the Scoresby standard and because this appeal was brought
from an order in which the trial court not only denied a motion to dismiss but also
granted a thirty-day extension, we dismiss the appeal for want of jurisdiction. See
Scoresby, 346 S.W.3d at 557–58.
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VI. This Court’s Ruling
We dismiss this appeal for want of jurisdiction.
MIKE WILLSON
JUSTICE
August 21, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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