Magnolia Place Health Care, L.L.C. v. Qulia Jackson, Individually and as Personal Representative of the Estate of Gene Earl Robinson, and Dominique Sauls

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00266-CV
__________________
MAGNOLIA PLACE HEALTH CARE, L.L.C., Appellant
V.
QULIA JACKSON, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF GENE EARL ROBINSON,
AND DOMINIQUE SAULS, Appellees
__________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV1914851
__________________________________________________________________
MEMORANDUM OPINION
This is an interlocutory accelerated appeal from the trial court’s order
overruling the Defendant’s objections to Plaintiffs’ expert reports and denying a
motion to dismiss Plaintiffs’ health care liability claim. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351; see also id. § 51.014(a)(9) (providing for interlocutory appeal
of an order denying relief under section 74.351). Defendant Magnolia Place Health
Care, L.L.C. (“Magnolia,” “Defendant,” or “Appellant”) timely filed this appeal
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complaining that the trial court erred in overruling their objections and in failing to
dismiss the health care liability claim of Plaintiffs Qulia Jackson, Individually and
as Personal Representative of the Estate of Gene Earl Robinson, Deceased, and
Dominique Sauls (collectively “Plaintiffs” or “Appellees”). We affirm.
Background
Allegations in Plaintiffs’ Petition
On July 1, 2019, Plaintiffs filed their Original Petition stating a claim for
negligence against Magnolia under Chapter 74 of the Texas Civil Practice and
Remedies Code. On December 4, 2019, Plaintiffs filed their Fourth Amended
Petition, the live pleading at the time the trial court entered the order being appealed,
which stated claims for wrongful death under Chapter 74 and survival under Chapter
71.
Plaintiffs alleged that Gene Robinson (“Robinson”) had lived at Magnolia for
about a year and a half before July 2, 2017, when he was transferred from his dialysis
appointment at Dayton Dialysis to Liberty ER due to critically low levels of
potassium. Later that same day, Robinson was transferred to Kingwood Medical
Center (“Kingwood”), where Robinson was found to have “an unstageable decubitus
ulcer measuring 7x8 cm on his backside, cellulitis of left AV fistula, and 2 punctured
ulcers on his left AV fistula, which tested positive for Methicillin-Sensitive Staph
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Aureus” (“MSSA”). The ulcer and infected AV fistula were “managed,” and
Robinson was discharged back to Magnolia on July 20, 2017.
On July 25, 2017, Robinson was sent to ICON Wound Center (“ICON”),
where he was diagnosed with “osteomyelitis (infection of the bone) in the sacral
region with stage IV decubitus sacral ulcer.” The petition alleged that the ulcer was
infected with pseudomonas, Robinson’s blood cultures were positive for MSSA, and
Robinson had a “stage IV facility acquired pressure ulcer on his buttocks.” At ICON,
Robinson underwent two debridements of the ulcer on his sacrum. According to the
petition, “due to the infection already being spread throughout his body,” Robinson
died on August 26, 2017, from septic shock.
The Plaintiffs alleged that Magnolia 1 was negligent in its care and treatment
of Robinson for:
a. Failing to prevent ulcers,
b. Failing to assess, document and report a change in the Decedent’s
condition,
c. Failing to institute appropriate nursing interventions to stabilize a
patient’s condition and/or prevent complications, and
d. Failing to properly train its employees.
The petition alleged that Robinson’s death certificate listed sepsis as the cause of
death, secondary to end stage renal failure. Plaintiffs claimed Magnolia was grossly
1
Plaintiffs’ petition asserted no claims against any other health care provider.
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negligent for “knowingly and intentionally allow[ing] the deceased to essentially rot
in his own bed causing hi[m] to suffer huge, ulcerated bed sores that led to his death.”
Dr. Rushing’s Report
On or about October 30, 2019, Plaintiffs produced a report and curriculum
vitae (“CV”) from Lige B. Rushing, M.D. (“Rushing” or “Dr. Rushing”). In the
October 2018 report, Dr. Rushing stated that he received his M.D. degree from
Baylor University College of Medicine, and interned at Harris Hospital in Fort
Worth, Texas. Rushing also has a Master of Science degree in medicine from the
University of Minnesota, and he received “specialty training in internal medicine
and rheumatology” at the Mayo Clinic in Rochester, Minnesota. According to the
October 2018 report and CV, Dr. Rushing is board-certified in internal medicine,
rheumatology, and geriatrics, and he continues to actively practice these specialties.
Rushing is on the affiliate staff of the Presbyterian Hospital in Dallas, Texas. In the
report, Rushing stated that over the course of his medical practice, he had occasion
to diagnose and treat patients with conditions similar to or identical with Robinson’s,
and he was familiar with the standard of care that apply to Magnolia and the health
care workers assigned to care for Robinson. Specifically, Rushing stated that he had
issued orders for the prevention and treatment of pressure ulcers and supervised the
execution of those orders.
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Rushing’s report stated that he had reviewed Robinson’s records from
Kingwood, ICON, and Robinson’s death certificate, but that he anticipated
additional records would be forthcoming, and he had specifically requested records
from Magnolia. Rushing stated that Robinson had a history of hypertension,
dementia with Lewy bodies, end-stage renal disease with dialysis, cellulitis of the
arm, and type II diabetes. The report stated that when Robinson was admitted at
Kingwood, he was a resident at Magnolia long-term care facility and had been noted
to have a decline in status and appetite for about two weeks and a significant decline
in mentation. Robinson was taken to the Liberty Emergency Department, where he
had been found to have “abdominal distention and an ileus” and very low potassium
levels, and he was transferred to Kingwood for further care. Upon admission at
Kingwood, it was noted that Robinson had an unstageable deep tissue injury to the
buttocks that was “a real problem.” Robinson was also treated at Kingwood for
hypokalemia and ileus, which improved, but the sacral pressure ulcer did not
improve.
Robinson was admitted to ICON on July 27, 2017, and according to Rushing,
ICON’s records stated the reason for his admission was “a sacral decubitus ulcer,
generalized weakness and critical illness myopathy.” The ICON records reported
that Robinson was diagnosed with advanced dementia, Parkinson’s, end-stage renal
disease with dialysis three times a week, failure to thrive secondary to decreased PO
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intake and secondary to other medical conditions, moderate-to-severe malnutrition,
and a necrotic stage IV decubitus ulcer. On August 11, 2017, debridement of the
sacral decubitus ulcer was performed, and on August 19, 2017, Robinson had a
diverting colostomy. On August 26, he became hypotensive, he was transferred to
intensive care, and he developed septic shock, after which his family requested he
be placed on comfort care only. Robinson died on August 26, 2017, with the cause
of death listed in the hospital record as “septic shock secondary to infected decubitus
ulcer, stage IV with necrosis.”
According to Rushing’s report, the standard of care required Magnolia to:
provide necessary care and services to achieve the best practicable well-being
pursuant to a comprehensive assessment and plan of care; insure that a resident who
enters the facility without pressure ulcers does not develop them unless the resident’s
condition demonstrates such ulcers were unavoidable; a resident who develops
pressure ulcers should receive “the necessary care, treatment, and services” to
promote healing, to prevent infection, and to prevent new ulcers; and a facility
should not accept nor retain a resident whose needs the facility cannot meet. Further,
Rushing stated that Magnolia’s conduct fell below the accepted standards of care
because (1) Magnolia accepted and retained a resident whose needs it could not meet
and (2) Magnolia failed to prevent Robinson’s developing a pressure ulcer.
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Rushing’s report stated that pressure ulcers result from unrelieved pressure on
a body part, and such pressure deprives body tissue of necessary oxygen and
nutrients. Rushing further stated that in this case, as a result of diminished blood
flow, “the tissues died and became necrotic or decayed[,]” which provided a medium
for bacteria to invade and multiply. According to Rushing, when this process is
unchecked, blood cannot flow to the tissues and organs, sepsis develops, and
multiorgan failure and death result. Rushing further stated that when a pressure ulcer
develops in the sacral area, fecal material may cause infection or damage the tissues,
and to divert fecal material away from the ulcer, a diverting colostomy may become
necessary. He also stated that a large, infected pressure ulcer increases the body’s
caloric requirements by at least 100% to promote wound healing. Rushing’s report
concluded that the harm or injury that resulted from Robinson’s pressure ulcer was:
…Robinson’s malnutrition required a gastric feeding tube, placement
and a diverting colostomy, a surgical debridement of his sacral ulcer. If
there had been no pressure ulcer there would have been no malnutrition.
If there had been no malnutrition then there would have been no
necessity for a gastric feeding tube. If there had been no pressure ulcer
then there would have been no necessity for a diverting colostomy, a
major surgical procedure that could have been avoided.
Nurse Gardner’s Report
On or about July 31, 2019, Plaintiffs also produced the report and CV of
Ventura Gardner, a registered nurse. Gardner stated she had clinical experience in
critical care, Emergency Department, peri-operative nursing, medical/surgical,
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endoscopy nursing, ambulatory care, and wound care nursing. She also stated she
had served as a hospital supervisor and Lead for The Joint Commission Certification
for specialty diseases (Orthopedics). Gardner’s report stated that she had reviewed
Robinson’s medical records from Kingwood and ICON but that at the time of her
report, records from Magnolia or Liberty ER were not available. Gardner’s report
included a similar medical overview as Rushing’s, and Gardner added that upon
admission at Kingwood, Robinson’s decubitus ulcer was extensive enough as to
leave his tailbone exposed. Gardner’s report also stated that Robinson “was non-
verbal, unable to advocate for himself, and unable to understand simple directions
or questions.”
According to Gardner, the standard of care required the nursing staff to
provide a safe environment and to protect the patient from avoidable injury and to
assess, document and timely report a change in the patient’s condition to the
physician. Gardner stated that “[t]he nurses from facilities prior to [Robinson’s
admission to] Kingwood” breached the standard of care by (1) failure to implement
interventions to prevent ulcer development, such as frequent turning, padding bony
areas, using a specialty bed, and closely monitoring his nutritional status; and
(2) failure to report a change in Robinson’s condition to a physician. According to
Gardner, the fact that Robinson’s tailbone was exposed indicated that the nursing
staff failed to meet basic standards of care. Gardner stated that “there is no indication
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nursing from [facilities that treated Robinson prior to Kingwood] notified the
physician in a timely manner to intervene when the ulcers began to develop and
continued to worse[n.]” Gardner’s report stated that standard nursing interventions
to reduce the development of decubitus ulcers include:
…turning him every 2 hours, providing a specialty bed which off loads
pressure points of bedridden patients, hourly rounds to assist with
toileting (assess for urine/stool and clean him as needed to prevent
further decubitus ulcer development), and clear plan of care, especially
related to changes in condition of ulcers, between nursing and
physician.
According to Gardner, as a result of deficient nursing care, the pressure ulcer
developed, the tailbone became exposed, Robinson became septic and required
additional procedures, and subsequently died.
Magnolia’s Objections to the Reports and Motion to Dismiss
Magnolia filed objections to Rushing’s and Gardner’s reports. Magnolia then
filed a Motion to Dismiss Plaintiffs’ Suit Pursuant to C.P.R.C. § 74.351 & Response
to Plaintiffs’ Motion to Deem Sufficiency (“Motion to Dismiss”). Magnolia argued
that Rushing was not qualified to render an opinion on standard of care or liability
in this case and his report was “non-specific speculation and conclusory” because
Rushing failed to identify specific actions or omissions by Magnolia and was
insufficient to show causation. As to Gardner’s report, Magnolia argued that she was
not qualified to render an expert opinion in this case, her report was speculative, and
the standard of care she offered was “non-specific speculation and [] conclusory.”
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According to Magnolia, Gardner failed to identify specific actions or omissions by
Magnolia and lacked specificity regarding what conduct was expected. Magnolia
also argued that Gardner’s report was conclusory and insufficient as to causation.
Magnolia also acknowledged that the Plaintiffs had requested the statutory option of
a thirty-day extension of time to correct deficiencies if the trial court found
deficiencies that were curable.
Plaintiffs’ Response to Magnolia’s Objections
In their response, the Plaintiffs argued that both Rushing’s and Gardner’s
reports provided “at a minimum, a good faith effort to comply” with the
requirements of Chapter 74, both reports set forth a fair summary of the relevant
standard of care and breach thereof, and that Rushing’s report established a causal
link between Magnolia’s breach and Robinson’s death. The Plaintiffs denied that the
reports were conclusory because both reports “clearly state the cause of [Robinson’s]
death as supported by the death certificate and the standard of care that was
breached.”
The Plaintiffs argued that Rushing was qualified to render an opinion in this
case based on his expertise and experience in internal medicine, geriatrics, and
rheumatology. The Plaintiffs denied that Rushing’s report was conclusory or
speculative. According to the Plaintiffs, Rushing’s report was clear that Magnolia
breached the applicable standard of care by (1) accepting and retaining a resident
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whose needs Magnolia could not meet and (2) failing to prevent Robinson from
developing a pressure ulcer. The Plaintiffs also argued that Magnolia knew or should
have known that Robinson was at high risk of developing pressure ulcers.
The Plaintiffs also argued that Gardner was qualified to render an opinion in
this case based on her thirty-nine years as a registered nurse and her experience in
critical care and nursing leadership and supervision. The Plaintiffs argued that
Gardner had specifically stated that Magnolia breached the applicable standard of
care by failing to notify a physician of a change in Robinson’s status—specifically
his development of a stage IV decubitus ulcer—and failing to institute appropriate
nursing interventions to prevent the development of decubitus ulcers, to stabilize
Robinson’s condition, and to prevent complications. The Plaintiffs’ response also
noted that Gardner had identified specific nursing practices that should have been
implemented, including assistance with toileting, providing a specialty bed, and
repositioning and cleaning the patient every two hours or as needed.
Trial Court’s Order
The trial court found the expert reports were deficient as set out in Magnolia’s
objections. The court further found that the deficiencies were curable and granted a
thirty-day extension to cure defects, as provided by section 74.351.
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Dr. Rushing’s Amended Report
Dr. Rushing provided an amended report dated January 9, 2020. The amended
report was substantially the same as his original report, with a few additions. As to
his qualifications, Rushing added that he had many years of direct care for nursing
home residents and “[b]eginning in 1959 I had the primary responsibility for nursing
home patients and I have continued to have nursing home patients during 2019.”
Rushing also stated that he had testified as a medical expert numerous times
concerning nursing home and bedsore or pressure ulcer cases. Dr. Rushing also
added the following to his report:
Magnolia Place [] thus far has refused to produce the clinical records
for Gene Earl Robinson. I have been forced to produce a chapter 74
report without this vital record. I reserve the right to amend my initial
chapter 74 report and the first amended report when and if the
defendant[] produce[s] the Magnolia Place health records. As a result I
have had to rely on the records available to me at the time of preparation
of this report. When he arrived at the Liberty Emergency Department
he was found [to] have a deep tissue injury/pressure ulcer on hi[s]
buttocks measuring 7x8 cm, unstageable. I am concluding that Mr.
Robinson did in fact have this injury when he left Magnolia Place. My
opinion is that he more likely than not developed the pressure
ulcer/deep tissue injury while he was a resident at Magnolia Place. If
records are provided to me that demonstrate that he was admitted to
Magnolia Place with the pressure ulcer then obviously my opinion
would change.
Nurse Gardner’s Amended Report
Nurse Gardner provided an amended report dated January 9, 2020. In her
amended report, Gardner stated that her nursing duties included acute and chronic
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wound management as well as bathing, feeding, turning, and repositioning patients.
She also reported that she had been responsible for cleaning wounds according to a
physician’s order and notifying a charge nurse of changes in patients’ condition. As
to the applicable standard of care, Gardner added the following: “Institute
appropriate nursing interventions that might be required to stabilize a client’s
condition and/or prevent complications[.]”
In addressing deviation from the standard of care, Gardner added the
following in her amended report:
[] The nurses from facilities prior to Kingwood Medical Center did not
provide the appropriate basic nursing interventions to help prevent the
pressure ulcers and did not seek further treatments of his pressure ulcers
in a timely fashion. If they had taken the proper precautions discussed
to prevent the pressure ulcer and advocate to the physician on behalf of
the patient to refer the patient to a wound specialist sooner, the pressure
ulcer would not have been as extensive as described. The nurses at the
facility failed to do this.…Mr. Robinson was nonverbal. He could not
speak for himself to even tell anyone he was in pain or uncomfortable
and this type of wound is very painful. The nurses did not seek
additional treatment and care for this patient who could not speak for
himself. Again, if this had been done he would have received
appropriate wound care treatments much sooner than he had.
....
…The nurses also did not advocate on behalf of the patient to receive
the specialized care that he desperately needed to help treat his wounds.
According to the records, Mr. Robinson did not go to a wound care
specialist until after he was admitted to Kingwood Medical Center on
7/2/17 and his bone was exposed. As nurses, our basic fundamental of
nursing is to care for our patients. Not just “provide” care such as
bathing and giving medications but to actually “care” about their well-
being and to take the extra steps that are needed sometimes to champion
on their behalf or advocate for them. The wounds that Mr. Robinson
had did not develop overnight, it took hours, days, and weeks to develop
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a pressure ulcer of that magnitude and the nurses failed to properly
assess the extent of Mr. Robinson’s injuries and advocate for his proper
care.
Gardner also added narrative about the nature of pressure ulcers, prevention of
pressure ulcers, and a facility’s responsibility for the residents’ quality of life.
Magnolia’s Objections to the Amended Reports
Magnolia filed Objections to Plaintiffs’ Amended Expert Reports &
Supplemental Motion to Dismiss with Attorney[’]s Fees Pursuant to C.P.R.C.
§ 74.351. Therein, Magnolia argued that
…Plaintiffs’ Reports fail to satisfy the statutory requirements and admit
to never having received or reviewed Gene Robinson’s medical records
from Magnolia Place, thus having no knowledge of events, Robinson’s
condition or Defendant’s conduct they can not meet statutory
requirements as a matter of law. [] See Transitional Care Ctrs[.] of Tex.
Inc., v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).
Magnolia argued that the reports did not have a reliable basis as to any element of
Plaintiffs’ claims and, therefore, they cannot be a good faith effort to comply with
the requirements of Chapter 74. According to Magnolia, because Rushing and
Gardner only reviewed records from Kingwood and ICON, their reports rely on
reports by persons without personal knowledge of Magnolia or what occurred at
Magnolia, and as a consequence, the reports constitute “speculation and unfounded
conclusions” regarding any liability by Magnolia for Robinson’s injuries and death.
Magnolia’s motion alleges that it had advised Plaintiffs from February 28,
2018 to April 29, 2019, that an authorization signed by a legally authorized
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representative of Robinson’s estate was required to obtain Robinson’s medical
records from Magnolia. Only after the trial court found the first reports deficient and
granted a thirty-day extension of time did the Plaintiffs produce an authorization for
medical records signed by a court-appointed administrator of Robinson’s estate.
Magnolia further alleged that it produced three volumes of Magnolia’s medical
records for Robinson on January 10, 2020, and three days later, Plaintiffs produced
Rushing’s and Gardner’s amended reports.
As to Nurse Gardner, Magnolia argued that her experience was in acute
hospital care, and her CV identified no training, experience, or education in the same
field as Magnolia—nursing home care. According to Magnolia, lacking such
experience or training, Gardner “is no more than a lay witness[.]” As to the standard
of care Gardner outlined, Magnolia argued that Gardner did little more than cite to
government statutes and regulations that are “mere global comments and principles,”
and insufficient to specify Magnolia’s duty of care. In addition, Magnolia argued
that Gardner’s report did not satisfy statutory requirements because it failed to
specifically identify what Magnolia should have done, what it did not do, and what
it should have done differently. In particular, Magnolia stated that Gardner’s report
referred vaguely to “facilities prior to Kingwood[]” and cited no specific conduct by
Magnolia. Magnolia further argued that the standard of care offered by Gardner are
only general concepts regarding assessment, monitoring, and interventions that are
15
insufficient as a matter of law. In addition, Magnolia argued that as a nurse, Gardner
is not qualified to render an opinion on causation as a matter of law, citing to section
74.351(r)(5)(C) of the Texas Civil Practice and Remedies Code.
As to Dr. Rushing, Magnolia argued that Rushing was not qualified because
Rushing’s report and CV demonstrate no experience in the field of nursing home
care and Rushing reported his experience was as a physician in private practice at
hospitals. According to Magnolia, the standards of care Rushing provided pertain to
administrative functions of a nursing home and not the conduct of RNs, LVNs, or
CNAs. Magnolia also argued that Rushing offered only “vague general principles”
taken from the Code of Federal Regulation and the Texas Administrative Code that
only address administrative responsibilities and do not define the duties or
responsibilities of RNs, LVNs, or CNAs. Magnolia further argued that Rushing
failed to describe any breach of administrative duties by Magnolia that resulted in
Robinson’s injuries or death. According to Magnolia, Rushing’s report is
speculative, misleading, and conclusory and fails to explain specifically how and
why Magnolia’s alleged negligence caused Robinson’s injuries and ultimate death,
and any connection between Magnolia’s conduct and Robinson’s injuries and death
is too attenuated to articulate a causal relationship. Therefore, Magnolia argued the
expert reports did not satisfy the requirements of section 74.351 and the case should
be dismissed with prejudice.
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Plaintiffs’ Response to Magnolia’s Second Motion to Dismiss
In their response to Magnolia’s motion, the Plaintiffs acknowledged that
Linda Robinson was appointed as the administrator of Robinson’s estate on
November 26, 2019, Plaintiffs paid for Magnolia’s records on December 17, 2019,
and Plaintiffs received the medical records from Magnolia on January 13, 2020.
According to the Plaintiffs, “Magnolia Place has continually been obstructive”
trying to get the case dismissed. Plaintiffs argued that because Magnolia had not
argued in its first motion to dismiss that Dr. Rushing’s and Nurse Gardner’s initial
reports did not mention Magnolia’s medical records for Robinson, it could not make
this argument in its second motion to dismiss, citing to Bakhtari v. Estate of Dumas,
317 S.W.3d 486 (Tex. App.—Dallas 2010, no pet.). Plaintiffs further argued that
Magnolia had “unclean hands in attempting to use its refusal to produce records for
[] Robinson as a sword in claiming that the amended reports are not adequate under
Chapter 74[]” and it should not profit “from these unfair tactics.”
Plaintiffs also argued that Chapter 74 does not require the expert to review
any particular records, that Dr. Rushing based his opinion on Robinson’s condition
upon arrival at the Liberty ER and at Kingwood where Robinson had a severe,
unstageable pressure ulcer on his buttocks, and that according to Dr. Rushing, it was
more likely than not that the pressure ulcer developed at Magnolia due to negligent
care. According to the Plaintiffs, the amended reports identify the relevant standard
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of care, how Magnolia breached the standard of care, and the causal link between
Magnolia’s breach and Robinson’s untimely death. Plaintiffs maintained that both
Nurse Garner and Dr. Rushing were qualified to render an opinion in this case based
on their experience and training. Plaintiffs further argued that Dr. Rushing’s opinion
on causation was not speculative or conclusory: Rushing stated that Robinson died
of sepsis from bed sores that Robinson developed as a resident at Magnolia, that
Magnolia knew or should have known Robinson was at high risk of development
bed sores, and that Rushing could make inferences about Robinson’s care at
Magnolia based on “circumstantial evidence in the records” and inferences from
other medical records. Plaintiffs argue that the amended reports satisfy Chapter 74’s
requirements because they inform Magnolia of the specific conduct called into
question and provide a basis for the trial court to conclude that the Plaintiffs’ claims
have merit.
Magnolia’s Reply to Plaintiffs’ Response
In its Reply to the Plaintiffs, Magnolia argued it did not have “unclean hands,”
and that any delay in the production of Magnolia’s medical records for Robinson
was due to Plaintiffs’ failure to produce an authorization signed by a legally
authorized representative of Robinson’s estate. According to Magnolia, Plaintiffs
only obtained a valid authorization on December 2, 2019, and then delayed another
sixteen days before producing the authorization to Magnolia. In addition, Magnolia
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argued that its statement that Dr. Rushing and Nurse Gardner had not reviewed the
medical records from Magnolia “is not an objection, it is a fact[,]” and therefore
Plaintiffs’ waiver argument was misplaced. Magnolia argued that Rushing’s and
Gardner’s reports improperly opine from assumptions that were not linked to the
facts, and as such, were speculative and conclusory. Magnolia argued that Robinson
had pressure sores at the time he was admitted.
After a hearing, on November 12, 2020, the trial court signed an order denying
Defendant’s Objections to Plaintiffs’ Amended Expert Reports and Defendant’s
Supplemental Motion to Dismiss, and Magnolia filed its notice of interlocutory
appeal.
Issue
In a single issue on appeal, Magnolia argues that the trial court abused its
discretion in denying its motion to dismiss because the expert reports were deficient
regarding the applicable standard of care, Magnolia’s breach of the standard of care,
and proximate cause. Magnolia also argues that Nurse Gardner is not qualified to
opine regarding causation and not qualified to testify against a nursing home.
Standard of Review
In health care liability cases, we review a trial court’s ruling on a motion to
dismiss based on the adequacy of an expert report for an abuse of discretion. See
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam);
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Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam);
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.
2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial court’s ruling does not
constitute an abuse of discretion simply because the appellate court would have ruled
differently under the circumstances. See id. A trial court also abuses its discretion if
it fails to analyze or apply the law correctly. See In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135 (Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992)).
In reviewing a report’s sufficiency under this standard, “we consider only the
information contained within the four corners of the report.” Abshire, 563 S.W.3d at
223 (citing Palacios, 46 S.W.3d at 878). In determining whether the report contains
the requisite information, we view the entirety of the report rather than isolating
specific portions or sections. See Baty v. Futrell, 543 S.W.3d 689, 694 (Tex. 2018);
Van Ness, 461 S.W.3d at 144. One expert need not address the standard of care,
breach, and causation, and multiple expert reports may be read together to determine
whether these requirements have been met. Abshire, 563 S.W.3d at 223 (citing Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(i)).
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While the report “need not marshal all the plaintiff’s proof,” it must provide
a fair summary of the expert’s opinions as to the applicable standards of care, how
the care rendered by the health care provider failed to meet the standards, and the
causal relationship between that failure and the injury claimed. Jelinek v. Casas, 328
S.W.3d 526, 543 (Tex. 2010); see also Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6); Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46
S.W.3d at 875, 878. In determining the adequacy of an expert report, a court reviews
the pleadings to determine the claims alleged and whether the report addresses those
claims. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 (Tex.
App.—Beaumont 2010, no pet.) (citing Windsor v. Maxwell, 121 S.W.3d 42, 51
(Tex. App.—Fort Worth 2003, pet. denied)). The report must “explain, to a
reasonable degree, how and why the breach caused the injury based on the facts
presented.” Jelinek, 328 S.W.3d at 539-40.
Expert Report Requirements Under Chapter 74
Chapter 74 of the Civil Practice and Remedies Code, also known as the Texas
Medical Liability Act (“the Act”), requires health care liability claimants to serve an
expert report upon each defendant not later than 120 days after that defendant’s
answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The purpose of the
expert report requirement is to weed out frivolous malpractice claims in the early
stages of litigation, not to dispose of potentially meritorious claims. Abshire, 563
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S.W.3d at 223 (citing Palacios, 46 S.W.3d at 877); see also Loaisiga v. Cerda, 379
S.W.3d 248, 258 (Tex. 2012) (“[Expert report] requirements are meant to identify
frivolous claims and reduce the expense and time to dispose of any that are filed.”).
In accordance with that purpose, the Act provides a mechanism for dismissal of the
claimant’s suit in the event of an untimely or deficient report. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b).
An expert report is sufficient under the Act if it “provides a fair summary of
the expert’s opinions…regarding applicable standards of care, the manner in which
the care rendered…failed to meet the standards, and the causal relationship between
that failure and the injury[.]” Id. § 74.351(r)(6). The trial court need only find that
the report constitutes a “good faith effort” to comply with the statutory requirements.
Id. § 74.351(l); see also Abshire, 563 S.W.3d at 223; Palacios, 46 S.W.3d at 878.
The Texas Supreme Court has held that an expert report demonstrates a “good faith
effort” when it “(1) inform[s] the defendant of the specific conduct called into
question and (2) provid[es] a basis for the trial court to conclude the claims have
merit.” Baty, 543 S.W.3d at 693-94. A report “need not marshal all the claimant’s
proof,” but “a report that merely states the expert’s conclusions about the standard
of care, breach, and causation” is insufficient. Abshire, 563 S.W.3d at 223; Palacios,
46 S.W.3d at 878-79.
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Expert Qualifications
According to Appellant, to the extent Nurse Gardner’s report opines on
medical causation, her report is deficient because as a matter of law, a nurse is not
qualified to give opinion testimony on medical causation. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(r)(5)(C). Appellee concedes that Gardner is not qualified
to render opinions on causation, so we do not address the point further. See Tex. R.
App. P. 47.1.
Appellant also argues that Gardner is not qualified to render an opinion in this
case because her CV identifies no training, education, or experience in the same field
as Magnolia—that is, in nursing home care. According to Appellant, Gardner’s
experience is as a nurse working in acute care hospitals, not in a nursing home.
To be qualified to opine that an institutional health-care provider breached the
applicable standard of care, a person must 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 be “‘qualified on the basis of training
or experience to offer an expert opinion regarding those accepted standards of health
care.’” Mem’l Hermann Health Sys. v. Heinzen, 584 S.W.3d 902, 911 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann.
§ 74.402(b)(2), (b)(3)). For certain medical-negligence claims against non-
physicians, a person is qualified to render an expert report only if the person had
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been engaged in a field of health care involving the same care or treatment as the
defendant—but only if the defendant health care provider is an individual. Id. (citing
Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(1)). Because Magnolia is not an
individual, this provision does not apply to a report regarding the care Magnolia
provided through its nursing staff. See id. at 911-12 (citing Harvey v. Kindred
Healthcare Operating, Inc., 578 S.W.3d 638, 644-46 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (determining subsection inapplicable to an expert report
addressing a claim against a hospital for its nursing staff’s conduct)). A person may
be qualified to render an expert opinion regarding the applicable standard of care for
hospital nursing staff based on previously acquired experience. See, e.g., id. at 912;
see also Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461
n.37 (Tex. 2017). “Section 74.351(r)(5)(B) does not require an expert to have the
same specialty as the health care provider she evaluates.” Zamarripa, 526 S.W.3d at
461 n.37 (citations omitted).
In this case, Nurse Gardner reported that her thirty years of nursing experience
included work as a wound management nurse, including cleaning wounds according
to a physician’s order, cleaning and dressing wounds, repositioning patients every
two hours, and reporting to the charge nurse of any changes in the patient’s status.
She also reported experience with both chronic and acute wounds. Therefore, the
trial court did not err in concluding that Gardner’s training and experience was
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adequate to render a report on the applicable standard of care and breach based on
the Plaintiffs’ claims in this case. See Zamarripa, 526 S.W.3d at 461 n.37; Heinzen,
584 S.W.3d at 911-12.
Standard of Care and Breach
The standard of care is defined by what an ordinarily prudent healthcare
provider would have done under the same or similar circumstances. See Palacios,
46 S.W.3d at 880. “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.” See id. While
Chapter 74 requires only a “fair summary” of the standard of care and how it was
breached, “even a fair summary must set out what care was expected, but not given.”
Id. (quotation omitted).
Appellant argues that Nurse Gardner did not identify Magnolia specifically,
nor did she identify the standard of care applicable to Magnolia nor any conduct or
breach by Magnolia. According to Appellant, Gardner “vaguely and collectively
referred to ‘nurses’ at ‘facilities prior to Kingwood Medical Center.’” Appellant also
argues that Gardner did not review the medical records from Magnolia, Dayton
Dialysis, or Liberty Medical Center ER, and that her report did not differentiate
between these providers. According to Appellant, the standards of care Gardner
identified were “no more than general assertions and statements that a patient should
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be kept safe.” Appellant also argues that Gardner did not identify any interventions
to prevent ulcer development that Magnolia failed to implement or how and when
Magnolia failed to assess Robinson’s skin.
As to Dr. Rushing, Appellant argues that the standard of care provided in
Rushing’s report was impermissible global or general assertions and statements
regarding safety without explaining what constituted necessary care and services or
discussing the standards for accepting or retaining residents. According to Appellant,
Rushing’s report failed to tie his opinion to any facts regarding care by Magnolia
and failed to discuss the alleged breaches of care with specificity. Appellant argues
that Rushing did not explain how Magnolia failed to prevent Robinson from
developing a pressure ulcer nor did he tie Robinson’s ulcer to any negligent acts or
omissions by Magnolia.
We read Gardner’s and Rushing’s report together to determine whether the
statutory requirements have been met. See Abshire, 563 S.W.3d at 223 (citing Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(i)). Nurse Gardner’s amended report stated
that the applicable standard of care required Magnolia: to provide a safe
environment; protect the patient from avoidable injury; to provide care in a safe
setting; to assess, document, and timely report a change in a patient’s condition to a
physician; and to institute appropriate nursing interventions to stabilize a patient’s
condition and prevent complications. Gardner stated that appropriate interventions
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for the prevention of bed sores include daily assessment of skin and pressure points,
turning the patient every two hours, padding bony prominences, using a specialty
bed, closely monitoring the patient’s nutritional status, and using skin cleansers and
moisturizers. Dr. Rushing’s amended report stated that the applicable standard of
care required Magnolia to provide necessary care and services to maintain the
highest practicable patient well-being; to insure that a patient who enters the facility
without pressure sores does not develop them unless unavoidable; to provide care,
treatment, and services to a patient with pressure sores to promote healing, prevent
infection, and prevent new ulcers from forming; and not to accept or retain a resident
whose needs the facility cannot meet. Rushing also stated that Robinson’s clinical
condition did not demonstrate that his pressure ulcers were unavoidable.
As to breach, Gardner’s amended report stated that nurses at facilities where
Robinson was treated prior to his admission to Kingwood failed to appropriately
assess Robinson for pressure ulcers, failed to implement interventions to prevent
ulcer development, and failed to timely report a change in Robinson’s condition to
a physician. Gardner’s report also stated that the nurses failed to adequately advocate
for Robinson, who was nonverbal and could not report pain or discomfort.
According to Gardner, Robinson was not transferred to an emergency room because
his pressure ulcer was severe, but rather he went to his regular dialysis appointment
on July 2, 2017, where he was transferred to an emergency room due to critically
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low potassium and then to Kingwood, where the pressure ulcer was extensive, and
his tailbone was found to be exposed. Gardner wrote:
…This type of ulcer does not develop overnight. Stage IV decubitus
ulcers develop when nursing fails to meet basic standards of care. The
ulcer with exposure of bone is evidence of extended periods without
being turned, poor padding of bony prominence, and nursing failure to
provide safe environment, failure to perform appropriate physical
assessments and report changes in condition to a physician, failure to
provide adequate nutrition to prevent ulcer, and overall gross neglect of
Mr. Robinson at facilities prior to his admission to Kingwood[.]
Dr. Rushing’s amended report stated that Magnolia knew or should have known that
Robinson was at high risk for the development of pressure ulcers because his
mobility was greatly limited, and he was generally confined to bed. According to
Rushing, Magnolia accepted and maintained a resident whose needs it could not
meet and it failed to prevent Robinson from developing a pressure ulcer.
We conclude that Dr. Rushing’s and Nurse Gardner’s amended reports read
together adequately identify “what care was expected, but not given.” See Palacios,
46 S.W.3d at 880. Both Rushing and Gardner stated that Magnolia failed to prevent
Robinson from developing a pressure ulcer. Gardner’s report provides several
specific examples of nursing interventions for the assessment, care, and prevention
of pressure sores. Therefore, we conclude that the trial court did not err in concluding
that the amended reports met the Act’s requirement for identifying the applicable
standard of care and how Magnolia failed to meet the standards, and they were
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sufficient to put Magnolia on notice of the conduct complained of. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 880.
Causation
The Act also requires an expert report to address causation—“how and why”
the alleged negligence caused the injury in question. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(r)(6); Abshire, 563 S.W.3d at 224 (quoting Jelinek, 328 S.W.3d
at 536). A conclusory statement of causation is inadequate, and the expert must
explain the basis of his statements and link conclusions to specific facts. Abshire,
563 S.W.3d at 224; Jelinek, 328 S.W.3d at 539; see also Zamarripa, 526 S.W.3d at
461 (“[W]ithout factual explanations, the reports are nothing more than the ipse dixit
of the experts, which…are clearly insufficient.”). In satisfying this “how and why”
requirement, the expert need not prove the entire case or account for every known
fact, and the report is sufficient if it makes “‘a good-faith effort to explain, factually,
how proximate cause is going to be proven.’” Abshire, 563 S.W.3d at 224 (quoting
Zamarripa, 526 S.W.3d at 460).
According to the Appellant, Rushing’s report was deficient regarding
proximate cause because he did not opine that an alleged breach of care by Magnolia
proximately caused Robinson’s death nor that a pressure ulcer was a proximate cause
of death. Appellant argues that Rushing’s report is “no more than a series of
conclusory statements[]” and failed to identify any conduct by Magnolia that caused
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injury or death. Appellant further argues that Rushing’s opinion is based upon
“assumptions surmised” only from the records of Kingwood and ICON and that such
assumptions are mere conjecture and speculation because they fail to link
conclusions to specific conduct by Magnolia. Appellant also argues that the failure
to have medical records from Magnolia does not excuse a deficient expert report.
Dr. Rushing’s amended report stated that the cause of death listed in the
records of Kingwood Medical Center was “septic shock secondary to infected
decubitus ulcer, stage IV with necrosis.” Rushing’s amended report also stated that
upon admission to Kingwood, a physical examination of Robinson showed “a deep
tissue injury to the buttocks measuring 7x8 cm, unstageable.” Rushing further stated
that unrelieved pressure on blood vessels shut off blood flow to tissues, “the tissues
died and became necrotic or decayed[]” and “[t]he decayed tissue is an ideal culture
medium for bacteria.” Rushing also stated that, if unchecked, the spread of infection
results in sepsis and multiorgan failure and death. According to Rushing, because
Robinson arrived at the Liberty ER with a 7x8 cm pressure ulcer, he concluded that
Robinson had this injury when he left Magnolia and “he more likely than not
developed the pressure ulcer/deep tissue injury while he was a resident at
Magnolia[.]”
We initially note that, according to Appellant, in Estate of Regis v. Harris
County Hospital District, 208 S.W.3d 64 (Tex. App.—Houston [14th Dist.] 2006,
30
no pet.), the Houston Fourteenth Court held that the trial court did not err by
dismissing plaintiff’s claims where the plaintiff did not provide a valid authorization
for the release of medical records and plaintiff failed to timely serve an adequate
expert report. We find Regis factually distinguishable. In Regis, the court explained
that a plaintiff’s failure to provide proper authorization for the release of medical
information abates the proceedings until sixty days following receipt of the required
authorization, but the sixty-day abatement period does not toll the 120-day period
for filing an expert report. Id. at 69. In the case at bar, Plaintiffs’ expert reports were
timely filed, and Regis does not apply.
We conclude that Dr. Rushing’s explanation provides a sufficient preliminary
link between the nurses’ alleged breach of the standard of care at Magnolia and
Robinson’s development of a severe pressure ulcer and sepsis. See Abshire, 563
S.W.3d at 225. That is, the report draws a line directly from the nurses’ failure to
properly provide care to prevent and treat pressure ulcers to Robinson’s development
of complications (malnutrition and the need for a diverting colostomy) and to the
ultimate injury (sepsis, multiorgan failure, and death). Id. Dr. Rushing’s report then
also ties his conclusion to the underlying facts—the failure to implement preventive
measures, to assess and treat pressure sores, and to timely report patient changes to
a physician. See id. at 225-26. Because at this stage of the proceeding we are not
supposed to require a claimant to “present evidence in the report as if it were actually
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litigating the merits[,]” we simply cannot say that the trial court abused its discretion
in reaching the conclusion that Dr. Rushing’s amended report constitutes a good
faith effort to comply with the Act’s requirement to provide a fair summary of his
opinion with respect to the causal relationship between Magnolia’s alleged breach
and Robinson’s death, and we cannot say that the amended report failed to inform
the Defendant of the specific conduct called into question or that it fails to provide
a basis for the trial court to conclude the claims have merit. See Abshire, 563 S.W.3d
at 226 (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6); Palacios, 46
S.W.3d at 879); Baty, 543 S.W.3d at 693-94. Accordingly, we must overrule
Appellant’s issue, and we affirm the trial court’s order.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on June 23, 2021
Opinion Delivered December 30, 2021
Before Golemon, C.J., Kreger and Johnson, JJ.
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