Pinnacle Health Facilities XV, LP D/B/A Woodridge Nursing and Rehabilitation v. Jorge Robles and Werner Robles, Individually and as Heirs of Zoila Robles

Reversed and Remanded and Memorandum Opinion filed December 15, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00924-CV
PINNACLE HEALTH FACILITIES XV, LP D/B/A WOODRIDGE
NURSING AND REHABILITATION, Appellant
V.
JORGE ROBLES AND WERNER ROBLES, INDIVIDUALLY AND AS
HEIRS OF ZOILA ROBLES, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2015-11057
MEMORANDUM OPINION
Pinnacle Health Facilities XV, LP d/b/a Woodridge Nursing and
Rehabilitation (“appellant”) appeals from the trial court’s denial of its motion to
dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2010).
Finding the expert report insufficient, we reverse and remand.
I. BACKGROUND
Jorge Robles and Werner Robles, individually and as heirs of Zoila Robles,
(collectively “appellees”) filed a health care liability claim alleging Zoila Robles
(“Robles”) suffered injuries and died as a result of a faulty sling transfer1 from her
geri-chair2 to her bed at Woodridge Rehabilitation Center. Pursuant to section
74.351 of the Texas Civil Practices and Remedies Code, appellees served appellant
with the expert report of Christopher Davey, M.D. Appellant objected to his
original report, prompting appellees to file and serve an amended expert report by
Davey. Appellant again objected. In order to obtain a ruling on appellant’s
objections to allow discovery to proceed, appellees filed a motion to overrule
appellant’s objections. Following a hearing, the trial judge granted that motion.
Appellant then filed a motion to reconsider and motion to dismiss. From the trial
court’s order denying the motion to dismiss, appellant initiated this interlocutory
appeal.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The Texas Medical Liability Act (“the Act”) entitles a defendant to dismissal
of a health care liability claim if he is not served with an expert report showing that
the claim has merit within 120 days of the date suit was filed. Tex. Civ. Prac. &
Rem. Code § 74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011).
The trial court’s refusal to dismiss may be immediately appealed. Tex. Civ. Prac.
& Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a trial
court’s denial of a motion to dismiss under section 74.351 for abuse of
discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Group v.
1
A technique in which the immobile patient is tucked into a sling, hoisted up by a lift,
and transferred from one seating platform to another.
2
Geriatric “geri-” chairs are adjustable recliners.
2
Vicento, 164 S.W.3d 724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied). A trial court abuses its discretion if it acts in an unreasonable or arbitrary
manner or without reference to any guiding rules or principles. Larson v.
Downing, 197 S.W.3d 303, 304-05 (Tex. 2006); see also Jelinek, 328 S.W.3d at
539. When reviewing these matters, “a court of appeals may not substitute its own
judgment for the trial court’s judgment.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002). A trial court does not abuse its discretion merely because it
decides a discretionary matter differently than an appellate court would in a similar
circumstance. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
The Act specifies requirements for an adequate report and mandates “an
objective good faith effort to comply” with the requirements. Tex. Civ. Prac. &
Rem. Code § 74.351(l ), (r)(6); Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 141 (Tex. 2015). The report must fairly summarize (1) the applicable standard
of care, (2) a breach of that standard, and (3) causation. See Van Ness, 461 S.W.3d
at 141; Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). Further, a report must
provide enough information to fulfill two purposes: (1) inform the defendant of the
specific conduct that the plaintiff has called into question, and (2) provide a basis
for the trial court to conclude that the claims have merit. Univ. of Tex. Med. Branch
v. Railsback, 259 S.W.3d 860, 863 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
A court must grant a motion challenging the adequacy of a report if it is not
“an objective good faith effort to comply with the definition of an expert report in
Subsection (r)(6).” Tex. Civ. Prac. & Rem. Code § 74.351(l). When a report does
not fairly summarize the three elements or provide enough information to fulfill
the two purposes above, it is not considered an “objective good faith effort” to
comply with the statute. Scoresby, 346 S.W.3d at 555–56. A report that merely
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states the expert’s conclusions also does not amount to a good faith effort. Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).
The expert must explain the basis for his statements and must link his conclusions
to the facts. Jelinek, 328 S.W.3d at 539. It is not necessary, however, for the
plaintiff to assemble all his proof or present evidence in the report as if he were in
fact litigating the merits. Palacios, 46 S.W.3d at 879.
A “good-faith effort” provides sufficient information to inform the defendant
of the specific conduct the plaintiff has called into question and provides a basis
for the trial court to conclude that the claims have merit. Van Ness, 461 S.W.3d at
141; Patel v. Williams, 237 S.W.3d 901, 904 (Tex. App.—Houston [14th Dist.]
2007, no pet.). When determining if a good faith effort has been made, the trial
court is limited to the four corners of the report and cannot consider extrinsic
evidence. See Bowie Mem’l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.
III. ANALYSIS
In a single issue, appellant questions whether the trial court erred in denying
the motion to dismiss after appellees failed to serve an amended expert report that
complies with Chapter 74. See Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6).
Specifically, appellant claims the amended expert report failed to provide any
specific factual information as to how appellant breached its standards of care and
simply assumes a breach occurred by virtue of Robles’ fall. Further, appellant
contends the amended expert report failed to provide specific information as to
how appellant’s alleged breaches were a substantial factor in Robles’ death.
Davey’s report states the Woodridge staff “breached the standard of care by
allowing Ms. Robles to sustain a severe fall during her stay. Specifically, the staff
at Woodridge failed to utilize proper technique when transferring Ms. Robles with
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a transfer lift and failed to provide a sufficient number of adequately trained staff.”
Davey then set forth two ways in which the standard of care was breached:
1. Failure to utilize proper technique when transferring a resident
with a transfer lift. During a transfer using a lift, the patient is placed
within the lift sling. Thus, the healthcare provider operating the lift
has absolute control over the entire lift procedure from placing the
patient into the lift swing all the way through successfully transferring
the patient. If proper technique is utilized during a transfer —
including choosing the correct sling; preparing the patient, lift, and
environment for transfer; properly placing the patient in the sling;
performing a safety check; and properly lifting and lowering the
patient — a patient will not fall from the transfer lift onto the ground.
Thus, a healthcare provider has an absolute duty to ensure that the
patient does not fall to the ground from a transfer lift. Compliance
with the standard of care then fulfills that duty, and the standard of
care requires that a facility ensure that proper technique is used every
time its employees utilize a transfer lift.
There are numerous improper techniques and errors that can result in
a fall during transfer, including: using the incorrect sling; not properly
positioning the lift and receiving surface at the correct height; not
ensuring that the receiving surface is stable and locked; not ensuring a
clear path for the lift transfer from the lift site to the receiving area;
not properly placing the patient in the sling; not securing all clips,
hooks, and fasteners; allowing straps to become twisted; not ensuring
that weight is evenly distributed within the lift; allowing the sling
opening to be too small or too large; and not properly positioning the
patient over the receiving surface before releasing the lift.
Malfunctioning of the equipment itself should never cause a fall if
proper transfer technique is used. That is because any equipment
malfunctioning will be identified when either the lift is prepared for
transfer or when the safety check is performed. Prior to transfer, the
caregiver must test the lift controls before bringing the lift to the
patient, ensure that the receiving surface it stable and locked, check
lift weight limits, and examine the sling and attachment areas for tear,
holes, and frayed seams. Slings with any signs of wear should not be
used. Additionally, patient non-compliance should never interfere
with a lift transfer. Before lifting the patient, the caregiver must make
sure that the patient is able to understand and follow instructions and
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is ready to be transferred. If a patient is agitated, resistant, or
combative, a lift should be avoided. Thus, when proper technique is
utilized, fall risks related to equipment malfunction or patient
noncompliance are eliminated. Therefore, the only reason a patient
would fall onto the ground during the transfer would be as a result of
the improper technique of the caregiver.
In the current case, Ms. Robles fell out of the hoyer lift and onto the
ground when she was being transferred by the staff at Woodridge
from a geri-chair to her bed. . . . Due to the poor documentation of the
incident, it is unclear exactly how Ms. Robles fell from the hoyer lift.
However, had the proper techniques mentioned above been utilized
when transferring Ms. Robles from the geri-chair to her bed using the
transfer lift, to a reasonable degree of medical probability, Ms. Robles
would not have fallen out of the hoyer lift and onto the floor. This
failure of the staff at Woodridge to use proper technique when
transferring a resident with a transfer lift is a breach of the standard of
care,
2. Failure to maintain a sufficient number of adequately trained
and [sic] staff. The standard of care mandates that a facility and its
nursing staff take the proper precautions to prevent accidents, such as
falls, from occurring. Upon admission to Woodridge, Ms. Robles’
initial care plan specifically indicated that she had potential for falls
and injuries related to assistance with mobility and transfers. . . . Her
ADL plan of care also indicated that transfers required a two or more
person physical assist and a sling lift. . . . Given these assessments, the
staff at Woodridge should have implemented every safety precaution
to protect Ms. Robles from falling. This includes providing an
adequate number of sufficiently trained staff to assist with transfers.
At least two staff members should have been involved in any transfer
utilizing the hoyer lift. Any staff members assisting with Ms. Robles’
transfers should have been trained on how to safely transfer patients
using a hoyer lift. This would include training on all of the aspects of
proper technique mentioned above. Staff training has a direct impact
on a resident’s risk of accident during transfers. An adequate number
of staff is also critical to ensure that a transfer lift can be safely
operated. Again, Ms. Robles fell out of the hoyer lift and onto the
ground when she was being transferred by the staff at Woodridge
from a geri-chair to her bed. . . . The utilization of poor technique, as
indicated by Ms. Robles’ fall out of the hoyer lift and onto the floor,
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shows that the staff members that transferred Ms. Robles were not
sufficiently trained and/or that sufficient staff was not available to
safely transfer Ms. Robles. This failure to maintain sufficient number
of adequately trained staff is a breach of the standard of care.
Davey’s report concludes the standard of care was breached by reason of the
fact Robles’ fell. His report contains no facts implicating the staff members’
conduct. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (noting whether the standard of care was
breached cannot be determined without specific information about what should
have been done differently). This lapse is explained by the fact that “[d]ue to the
poor documentation of the incident, it is unclear exactly how Ms. Robles fell from
the hoyer lift,” but no issue is raised on appeal, and we therefore make no
determination, whether the provisions for discovery contained in section 74.351(s)3
were inadequate to obtain information as to how the staff members’ conduct may
have breached the standard of care. See Baylor All Saints Med. Ctr. v. Martin, 340
S.W.3d 529, 534 (Tex. App.—Fort Worth 2011, no pet.) (citing Bogar v. Esparza,
257 S.W.3d 354, 371–72 (Tex. App.—Austin 2008, no pet.) (op. on reh’g) (noting
that the plaintiff has the burden to establish that section 74.351’s discovery
limitations have in fact prevented her from satisfying the statute's expert report
requirements and pursuing her claim)).
We therefore conclude appellees’ amended expert report was deficient in
that it failed to provide a fair summary of the manner in which the care rendered by
3
Subsection (s) provides “Until a claimant has served the expert report and curriculum
vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except
for the acquisition by the claimant of information, including medical or hospital records or other
documents or tangible things, related to the patient’s health care through: (1) written discovery as
defined in Rule 192.7, Texas Rules of Civil Procedure; (2) depositions on written questions
under Rule 200, Texas Rules of Civil Procedure; and (3) discovery from nonparties under Rule
205, Texas Rules of Civil Procedure.”
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the health care provider failed to meet the applicable standard of care. See Tex.
Civ. Prac. & Rem. Code § 74.351(r)(6). Further, because the expert report fails to
inform appellee of the specific conduct that appellants have called into question,
appellees’ amended expert report does not represent an objective “good-faith
effort” to comply with the requirements of section 74.351(r)(6). See Tex. Civ. Prac.
& Rem. Code § 74.351(l ), (r)(6). Because the amended expert report fails to
connect the health care provider’s conduct to Robles’ fall, it fails to satisfy the
minimal standard and is not subject to cure. But see St. Luke’s Sugar Land Hosp. v.
Joseph, No. 14-11-00932-CV, 2012 WL 2860687, at *8 (Tex. App.—Houston
[14th Dist.] July 12, 2012, no pet.) (mem. op.) (reversing and remanding for a
determination of whether to grant a thirty-day extension to cure the deficiencies in
the expert’s report where the report implicated the doctor’s conduct); Ezekiel v.
Shorts, No. 14-12-00305-CV, 2013 WL 119712, at *3-5 (Tex. App.—Houston
[14th Dist.] Jan. 10, 2013, no pet.) (mem. op.) (same). Accordingly, we sustain
appellant’s issue and hold the trial court erred in denying appellant’s motion to
dismiss.
IV. CONCLUSION
We reverse the trial court’s order denying appellant’s motion to dismiss. We
remand the cause to the trial court for the determination of attorney’s fees, see Tex.
Civ. Prac. & Rem. Code § 74.351(b)(1), and for entry of a final order dismissing
appellees’ claims against appellant.
/s/ John Donovan
Justice
Panel consists of Justices Busby, Donovan, and Wise.
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