Sheila Michal, Individually and as a Representative of the Estate of Robert Michal v. Nexion Health at Garland, Inc. D/B/A Pleasant Valley Healthcare and Rehabilitation Center and Nexion Health of Texas, Inc.

Affirmed in part and Reversed in part and Opinion Filed November 4, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00693-CV
SHEILA MICHAL, INDIVIDUALLY AND AS A REPRESENTATIVE OF
THE ESTATE OF ROBERT MICHAL, Appellant
V.
NEXION HEALTH AT GARLAND, INC. D/B/A PLEASANT VALLEY
HEALTHCARE AND REHABILITATION CENTER AND NEXION
HEALTH OF TEXAS, INC., Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-05250
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
In this medical negligence case, Sheila Michal, individually and on behalf of
the estate of her deceased husband, Robert Michal, appeals the trial court’s order
granting no-evidence summary judgment in favor of appellees Nexion Health at
Garland, Inc. d/b/a Pleasant Valley Healthcare and Rehabilitation Center (Pleasant
Valley) and Nexion Health at Garland, Inc. (collectively, Nexion). We reverse in part
and remand in this memorandum opinion. See TEX. R. APP. P. 47.4.
Background
Ms. Michal filed this lawsuit against Nexion on April 3, 2020. Her petition
stated that in 2018 Mr. Michal suffered from “comorbidities” and was a Pleasant
Valley resident. In her medical negligence claim, she alleged Nexion “knew of the
increased risk of . . . infections created by [Mr. Michal’s] conditions” and owed him
“a duty of care to exercise that degree of care required by [his] known physical
conditions,” but breached that duty by “acts and omissions of negligence” that
ultimately led to his death.1
Following Nexion’s general denial answer, the trial court approved an August
26, 2020 “Discovery and Docket Control Plan” under which trial was set for July
12, 2021, and Ms. Michal’s expert witness designation deadline was November 9,
2020. On January 6, 2021, Ms. Michal designated Gregg Davis, M.D., as an expert
witness. Nexion filed a February 9, 2021 motion to strike Dr. Davis’s designation as
untimely.
While the motion to strike the designation was pending, Nexion filed a March
10, 2021 no-evidence motion for summary judgment. Nexion asserted it was entitled
to summary judgment because Ms. Michal’s untimely expert witness designation
“must be stricken and excluded pursuant to Tex. R. Civ. P. 193.6,” leaving her
1
Ms. Michal also asserted claims for corporate and gross negligence. Though the trial court granted
summary judgment in Nexion’s favor as to all of Ms. Michal’s claims, she states in her appellate briefing
that she “is not seeking to reverse the court’s decision regarding her corporate negligence and gross
negligence claims.”
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without the expert testimony required to establish the medical negligence elements
of standard of care, breach of the standard, and causation.
On March 23, 2021, the trial court signed two orders that each denied, in
slightly different wording, Nexion’s motion to strike Dr. Davis’s designation. One
was titled “Order Denying Defendants’ Motion to Strike Expert Witness” and the
other was titled “Order on Defendants’ Motion to Strike Expert Witness Gregg Davis
M.D.”
Ms. Michal filed an April 21, 2021 response to Nexion’s summary judgment
motion with attached exhibits that included (1) an unsworn declaration of Dr. Davis2;
2
Dr. Davis’s declaration stated, among other things:
12. In this case, I have reviewed the following records: Death Certificate of Robert Michal,
Medical City Dallas’ medical records dated 12/07/2017–12/29/2017 and 6/18/2018,
6/26/2018, Pleasant Valley Healthcare and Rehabilitation nursing facility’s medical records
dated 7/26/2017–6/18/2018, and Kindred Hospital Dallas Central’s medical records dated
12/05/2017–12/07/2017.
13. The opinions expressed here are based on my review of the pertinent records, my
education, training, and knowledge of the accepted medical and nursing standards of care
for the diagnoses, care, and treatment of the illnesses, injuries, and conditions involved in
this claim.
14. The underlying acts as outlined in Mr. Michal’s medical records are as follows: Mr.
Michal was admitted to Pleasant Valley Healthcare and Rehabilitation on 12/29/2017 after
hospitalization at Kindred Hospital Dallas Central for rehabilitation following a diagnosis
of acute lymphocytic leukemia status post-chemotherapy, sepsis, respiratory failure,
polyneuropathy, and gastric feeding tube placement. The gastrotomy tube was removed at
the end of February 2018. A pureed diet with honey thickened liquids was initially tolerated
without symptoms of aspiration. Mr. Michal developed a fever of 101.1 with a chest X-ray
on 5/30/2018, revealing a “left basilar airspace dz/atelectasis.” The next nursing note was
created on 6/9/2018 and indicated he was afebrile.
15. Nursing notes contained within Mr. Michal’s medical record dated 6/10/2018 and
6/14/2018 are concerned with oral fluid intake, voiding, and recording typical vital signs.
On 6/15/2018, a chest x-ray was obtained with findings of right lung infiltrate likely due
to pneumonia. On 6/15/2018 at 17:18, a nurse practitioner began a seven-day course of
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treatment with oral Levaquin, an antibiotic. Vital signs at that time were normal. The
nursing staff next evaluated Mr. Michal on 6/16/2018 at 14:39, recording “no sign of
discomfort” without performing vital signs. At 21:11, a nursing evaluation found him to be
afebrile, alert, with normal respirations. The next morning, 6/17/2018, at 06:29, the nursing
staff administered a dose of Levaquin and recorded a normal temperature. At 13:58, the
team assisted Mr. Michal with his meal and recorded he ate 25% of the meal. No vital signs
were obtained. That evening at 21:28, vital signs indicate he was afebrile and had consumed
75% of his evening meal. On the morning of 6/18/2018 at 06:38, he was “afebrile,” but no
vital signs were recorded. At 10:57, the nursing note indicates he had not eaten breakfast
but did not exhibit any signs of discomfort. No vital signs were obtained. The next nursing
note occurred at 16:01 and indicated he was being transferred to the Medical City of Dallas
due to critical lab values. Vital signs at that time indicated his pulse was elevated (101),
and he had developed a temperature of 99.6. He was described as alert without pain or
shortness of breath.
16. Upon arrival at Medical City Dallas’s emergency department, Mr. Michal’s records
reveal that he was found to have a temperature of 101.3. His examination revealed bilateral
rales upon auscultation of his chest, and he was diagnosed with septic shock, anemia, lactic
acidemia, leukopenia, and pneumonia. A history indicated Mr. Michal had become
anorexic two weeks before transfer and had an episode of coughing while eating.
Additional history was obtained by otolaryngology, indicating Mr. Michal had had
difficulty swallowing for the last two months and had bouts of food “getting stuck in the
back of his throat.” Mr. Michal failed to respond to aggressive medical therapy. On
6/26/2018, oncology indicated Mr. Michal was not a candidate for further treatment and
his prognosis was “grim”. Hospice was consulted, and Mr. Michal died on 6/26/2018 from
sepsis and aspiration pneumonia.
....
19. . . . The [Pleasant Valley] nursing staff knew or should have known that patients with
advanced leukemia are immunosuppressed by their illness and may fail to manifest a
consistent fever despite the presence of sepsis. . . . Nursing staff failed to monitor vital
signs on 6/17/2018 and 6/18/2018 and failed to monitor the development of sepsis. This is
a deviation in the standard of care. They failed to monitor Mr. Michal’s clinical course
adequately, the nursing staff allowed the progression of sepsis, delayed the diagnosis of
sepsis, and prevented his transfer to a higher level of care.
....
22. It is my opinion that the events and failures by Pleasant Valley Healthcare and
Rehabilitation nursing facility proximately caused or contributed to a delay in the diagnosis
of Mr. Michal’s sepsis resulting in a delay of therapy which may have prolonged his life.
Nursing staff of Pleasant Valley failed to maintain head of bed elevated. They failed to keep
the head of Mr. Michal’s bed elevated at 45-90 degrees during feeding and for at least 30-
45 minutes after feeding. . . . In the present case, there is no evidence to show Mr. Michal
was maintained upright. Failures to maintain optimal positioning . . . led to gastric contents
entering the airways. . . . Particles of food allowed for the accumulation of bacteria, which
colonized the respiratory system including the lungs, causing pneumonia from food
aspirated into lungs. . . . When Mr. Michal aspirated food into his lungs, he developed
pneumonia, and bacteria spread into his bloodstream, causing sepsis. Due to his
immunosuppression, his body failed to mount an aggressive response to the infection. As
a part of this failure, he did not develop a sustained elevation in his temperature. The failure
of the nursing staff to frequently monitor his vital signs prevented the early detection of
developing sepsis. Failing to detect the onset of sepsis, precluded early treatment, and led
to premature death.
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(2) Mr. Michal’s 2017–2018 Pleasant Valley medical records; (3) Mr. Michal’s 2017
medical records from another Dallas-area facility, Kindred Hospital; and (4) an
unsworn declaration of Ms. Michal’s counsel describing both sets of medical records
as “produced to [Ms. Michal’s counsel] in discovery by Defendants” and “kept
by [Ms. Michal’s counsel] in the regular course of business.”
On April 26, 2021, Nexion filed a summary judgment reply and objections to
Ms. Michal’s summary judgment evidence. Nexion (1) contended the Pleasant
Valley and Kindred Hospital records were hearsay and “not supported by a
(compliant) business records affidavit” and (2) objected to portions of the
declaration of Ms. Michal’s counsel on the grounds that counsel’s statements did not
satisfy the business-records hearsay exception requirements. Also, Nexion
(1) asserted Texas Rule of Civil Procedure 166a(f) required that “sworn or certified
copies of all papers referred to” in the declaration must be “attached thereto or served
therewith” and (2) contended Ms. Michal entirely omitted the death certificate and
Medical City records that served as bases for Dr. Davis’s opinion. Nexion argued
that the “absence of the referenced papers” rendered the entire declaration “per se
conclusory.” Additionally, Nexion contended Dr. Davis’s designation “remains
untimely” because, despite “ample time to cure” after the trial court denied Nexion’s
motion to strike, Ms. Michal had not “sought leave to late-designate an expert” or
“obtained an amendment of the expert witness deadline.”
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At the start of the April 29, 2021 summary judgment hearing 3, Ms. Michal
filed a “Motion for Leave to Late-File Summary Judgment Evidence,” seeking to
file Mr. Michal’s death certificate and the Medical City records described in Dr.
Davis’s declaration. The motion contended “good cause” for leave existed because
that evidence “was inadvertently left out” of the summary judgment response. The
motion (1) cited the portion of Rule 166a(f) allowing for supplementation of
summary judgment affidavits; (2) requested that the death certificate and Medical
City records be “attached”; and (3) stated that due to the Medical City records “being
too large to submit via e-File,” those records “will be mailed to the court for filing.”4
The motion also requested that the trial court “take judicial notice pursuant to Texas
Rule of Evidence 201 of the Death Certificate of Robert Michal,” a “public and
readily available document.”
The motion’s attachments included a facsimile of Mr. Michal’s certified death
certificate, titled “State of Texas Certification of Vital Record.” The death certificate
stated it was issued by the Texas Department of State Health Services Vital Statistics
Unit and was “a true and correct reproduction of the original record as recorded in
this office,” issued “under authority of Section 191.051, Health and Safety Code.” It
described Mr. Michal’s cause of death as “sepsis” due to “aspiration pneumonia.”
3
Though the appellate record does not include a reporter’s record of the summary judgment hearing,
the record shows the hearing was at 10:30 a.m. and Ms. Michal’s motion for leave to late-file summary
judgment evidence was filed at 10:32 a.m.
4
Though the appellate record does not include the Medical City records, that omission is immaterial
because we do not rely on the contents of those records in this opinion.
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On the same date as the hearing, the trial court signed an order vacating one
of the two above-described March 23, 2021 orders denying Nexion’s motion to
strike Dr. Davis’s designation as an expert witness.
Nexion filed a May 3, 2021 response to Ms. Michal’s motion for leave to late-
file evidence, contending the evidence she sought to file “is not competent.” Nexion
stated it presumed the Medical City records Ms. Michal sought to file were those
produced to Nexion during discovery, which were “unauthenticated” and “hearsay,
unsupported by business record or other affidavit.” Nexion also contended the death
certificate was hearsay, unauthenticated, and “not certified.”
The trial court signed a May 14, 2021 order granting Nexion’s no-evidence
motion for summary judgment and dismissing Ms. Michal’s claims with prejudice.
The order also denied Ms. Michal’s motion for leave to late-file summary judgment
evidence and sustained Nexion’s objections to the evidence attached to Ms. Michal’s
summary judgment response and the evidence she sought to file late.
Ms. Michal filed a June 14, 2021 motion for new trial restating her above-
described arguments. She also filed a July 20, 2021 “Trial Brief” in support of her
new-trial motion, which Nexion objected to as an “untimely amended motion for
new trial.” After a hearing, the trial court denied Ms. Michal’s motion for new trial.
Standard of review and applicable law
We review a trial court’s summary judgment de novo. E.g., Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A trial court must grant a no-evidence
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motion for summary judgment unless the nonmovant produces evidence raising a
genuine issue of material fact on the challenged elements. TEX. R. CIV. P. 166a(i);
see City of Keller v. Wilson, 168 S.W.3d 802, 810–11 (Tex. 2005); Forbes Inc. v.
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).
In our summary judgment review, we examine the record in the light most
favorable to the nonmovant. Forbes, 124 S.W.3d at 172. A no-evidence challenge
will be sustained when (a) there is a complete absence of evidence of a vital fact,
(b) the court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is
no more than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013); see also Forbes, 124 S.W.3d at 172 (“More than a scintilla of evidence exists
if it would allow reasonable and fair-minded people to differ in their conclusions.”).
When the trial court’s order does not specify the grounds for granting summary
judgment, we affirm if any theory presented to the trial court and preserved for our
review is meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
216 (Tex. 2003).
Affidavits supporting and opposing summary judgment “shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters
stated therein.” TEX. R. CIV. P. 166a(f); see also TEX. CIV. PRAC. & REM. CODE
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§ 132.001(a) (allowing for use of unsworn declaration in lieu of affidavit required
by statute or rule). “Sworn or certified copies of all papers or parts thereof referred
to in an affidavit shall be attached thereto or served therewith.” TEX. R. CIV. P.
166a(f). “[A]n affidavit is substantively defective when the absence of the referenced
papers from the summary judgment evidence makes the affidavit conclusory.”
Brown v. Brown, 145 S.W.3d 745, 752 (Tex. App.—Dallas 2004, pet. denied); see
also id. at 751 (“A conclusory statement is one that does not provide the underlying
facts to support the conclusion.”). Though a trial court need not allow
supplementation to cure a substantive defect in a summary judgment affidavit, upon
objection to a defect in the form of the affidavit the opposing party must have an
opportunity to amend. Hewitt v. Biscaro, 353 S.W.3d 304, 307–08 (Tex. App.—
Dallas 2011, no pet.).
Evidentiary rulings and denials of motions for leave to late-file summary
judgment evidence are reviewed under an abuse of discretion standard. E.g., Nat’l
Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000); Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002); see also U-Haul
Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (trial court abuses its
discretion when it acts without regard for guiding rules or principles). We may
reverse a trial court’s judgment based on an error in the admission or exclusion of
evidence only if we conclude the error was reasonably calculated to cause and
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probably did cause rendition of an improper judgment. See TEX. R. APP. P. 44.1(a);
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).
To prevail on a medical negligence claim, a plaintiff must show (1) a duty
requiring the defendant to act according to a certain standard of care, (2) a breach of
the applicable standard of care, (3) injury or harm to the plaintiff, and (4) a causal
connection between the breach of the applicable standard of care and the injury or
harm. Taylor v. Baylor Scott & White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022
WL 405896, at *3 (Tex. App.—Dallas Feb. 10, 2022, no pet.) (mem. op.). Expert
testimony is ordinarily required to establish medical negligence. Chester v. El-
Ashram, 228 S.W.3d 909, 911 (Tex. App.—Dallas 2007, no pet.).
Analysis
In a single issue, Ms. Michal asserts the trial court “erred in granting
[Nexion’s] no-evidence motion for summary judgment based on its exclusion of the
unsworn declaration of Gregg Davis, M.D.” Ms. Michal argues (1) Dr. Davis was
properly designated as an expert at the time of the summary judgment hearing;
(2) the trial court abused its discretion by denying her motion for leave to late-file
summary judgment evidence; and (3) her summary judgment evidence established
the elements of medical negligence to defeat a no-evidence motion for summary
judgment.
We begin with the timeliness of Ms. Michal’s expert designation. Under Texas
Rule of Civil Procedure 193.6, an affidavit by a witness not timely identified is
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generally inadmissible “unless the court finds that: (1) there was good cause for the
failure . . . or (2) the failure . . . will not unfairly surprise or unfairly prejudice the
other parties.” TEX. R. CIV. P. 193.6(a). “A finding of good cause or the lack of unfair
surprise or unfair prejudice must be supported by the record.” Id. 193.6(b). “Courts
of appeals considering whether a trial court granted leave commonly—and
correctly—examine the record for ‘an affirmative indication that the trial court
permitted the late filing.’” B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256,
259 (Tex. 2020).
Nexion asserts that though its motion to strike Dr. Davis’s designation as
untimely “was at first denied and the filing deemed timely,” the trial court “withdrew
that order after the summary judgment hearing and before its order granting the no-
evidence summary judgment motion.” Nexion argues it objected to Dr. Davis’s
declaration as untimely, among other grounds, and the trial court granted Nexion’s
objections without specifying the reason. Additionally, Nexion asserts Ms. Michal
“did not request a continuance of the summary judgment hearing or trial setting, did
not seek leave to late-designate an expert witness, and did not seek leave to amend
their expert witness deadline or the scheduling order.” Nexion contends untimely
designation “is one of the bases on which the trial court may have granted [Nexion’s]
objections to Dr. Davis’ declaration” and thus constitutes an “independent basis”
supporting the summary judgment.
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Ms. Michal responds in her appellate reply brief that though the trial court sua
sponte vacated one of the two March 23, 2021 orders denying Nexion’s motion to
strike Dr. Davis’s designation, the court “left the other order in place” and Nexion
“has not sought to cross-appeal it.” Ms. Michal argues that “no reasoning exists for
this Court to infer that the lower court’s order [sustaining Nexion’s April 26, 2021
objections] was based on reasoning that would create a direct conflict with a prior
order” and “[i]t makes no sense that Ms. Michal would have to file a separate Motion
for Leave to Late Designate Dr. Davis following an order denying [Nexion’s]
Motion to Strike, when the Court was already required to determine those same
issues within the Motion to Strike itself.” Ms. Michal also asserts the remaining
March 23, 2021 order denying Nexion’s motion to strike “implicitly” deemed there
was good cause or no unfair prejudice regarding the expert designation.
As described above, Ms. Michal designated Dr. Davis as an expert on January
6, 2022, which Nexion contended did not comply with the discovery plan’s
November 9, 2020 deadline. The record shows Ms. Michal also filed January 15,
2021 and April 21, 2021 motions to compel discovery, asserting Nexion had “stalled
this litigation by refusing to provide documents that would reasonably allow this
case to proceed in a meaningful fashion” and describing particular examples.
Both of the March 23, 2021 orders denying Nexion’s motion to strike bore the
trial judge’s handwritten signature. One order stated, “The Court hereby deems
Plaintiffs’ Designation of Expert Witness Gregg Davis M.D. timely, and deems no
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prejudice to Defendants has occurred by serving the expert designation on January
6, 2021.” The other order stated, “Upon consideration of [Nexion’s motion to strike
Dr. Davis] review of the evidence on file, any responses thereto, and arguments of
counsel, the Court is of the opinion that the Motion should be DENIED.” On April
29, 2021, the trial court vacated the first order described above without further
explanation. On May 14, 2021, the trial court signed an order sustaining Nexion’s
April 26, 2021 objections to Ms. Michal’s summary judgment evidence without
stating a basis.
Nothing in the record demonstrates or suggests that the trial court’s vacating
of only one of the two orders was inadvertent or that the trial court did not intend the
remaining order to be valid. Additionally, the allegations in Ms. Michal’s motions to
compel discovery support implicit findings of good cause or lack of unfair surprise
or prejudice. See Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380, 384
(Tex. App.—Dallas 2003, pet. denied) (concluding finding of good cause or no
unfair surprise was implicit in trial court’s permitting witness to testify); Capital
Metro. Transp. Auth. v. Cent. of Tenn. Ry. & Navigation Co., Inc., 114 S.W.3d 573,
583 (Tex. App.—Austin 2003, pet. denied) (same).
We conclude the record shows “an affirmative indication” that the trial court
permitted the January 6, 2021 designation of Dr. Davis as an expert witness. See
Steak N Shake, 598 S.W.3d at 259. We cannot agree with Nexion that the record
demonstrates otherwise or that further action by Ms. Michal was required to effect
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the designation. On this record, we reject Nexion’s contention that the trial court’s
summary judgment can properly be affirmed based on untimeliness of Ms. Michal’s
expert witness designation. See id.; see also Torres v. Unauthorized Practice of Law
Comm. for Supreme Court of Tex., No. 05-21-00651-CV, 2022 WL 4115487, at *3
(Tex. App.—Dallas Sept. 9, 2022, no pet.) (mem. op.) (rejecting appellant’s
unsupported contention regarding basis for trial court’s summary judgment).
Next, we address Ms. Michal’s assertion that the trial court abused its
discretion by denying her motion for leave to late-file summary judgment evidence.5
“Summary judgment evidence may be filed late, but only with leave of court.”
Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). A motion for leave
to file late summary judgment evidence should be granted when the nonmovant
establishes good cause by showing (1) the failure to timely file was not intentional
or the result of conscious indifference, but the result of accident or mistake, and
(2) allowing the late filing will occasion no undue delay or otherwise injure the party
seeking summary judgment. Carpenter, 98 S.W.3d at 684; see also K.W. Ministries,
Inc. v. Auction Credit Enter., LLC, No. 05-14-01392-CV, 2016 WL 1085227, at *2
5
Nexion asserts Ms. Michal “failed to properly preserve this error because a formal request for a
continuance was necessary.” In support of that argument, Nexion cites cases involving parties requesting
additional opportunity for discovery or seeking to make unspecified changes to improper opinions in an
affidavit. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Jordan v. Tindel, No. 05-
96-00427-CV, 1998 WL 12669, at *9 (Tex. App.—Dallas Jan. 15, 1998, no pet.) (not designated for
publication). Because the motion here sought only consideration of already-obtained evidence described in
the declaration, those cases are inapposite. Nexion cites no authority, and we have found none, requiring a
request for a continuance to preserve error in this circumstance.
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(Tex. App.—Dallas Mar. 21, 2016, no pet.) (mem. op.) (party seeking to file late
summary judgment evidence has burden to establish Carpenter requirements).
Ms. Michal argues in her appellate brief that she satisfied both requirements
because (1) “it was reasonable for [her] to believe that the inclusion of these
documents was neither required nor necessary” and (2) allowing the evidence would
have “created no undue delay and would not have injured Pleasant Valley in any
way.” Her first argument does not comport with her assertion in the trial court that
the evidence in question was “inadvertently left out of” the summary judgment
response. Nor does the record show she addressed lack of undue delay or injury in
the trial court. Thus, the trial court did not abuse its discretion to the extent it
determined she did not satisfy those requirements.
But in addition to requesting leave to late-file the evidence as attachments,
Ms. Michal’s motion included a request that the trial court take judicial notice of Mr.
Michal’s death certificate. Ms. Michal contends the trial court abused its discretion
by “ignoring the plain text of multiple statutes and rules” and “sustaining [Nexion’s]
objection to the death certificate.” According to Ms. Michal, the trial court “should
have permitted supplementation of the summary judgment record with the death
certificate.” We agree.
At any stage of a proceeding, a court “may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” TEX. R. EVID.
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201(b), (d). The court “must take judicial notice if a party requests it and the court
is supplied with the necessary information.” Id. 201(c). The Texas Vital Statistics
Act provides that “the state registrar shall supply to a properly qualified applicant,
on request, a certified copy of a record . . . of a birth, death, or fetal death registered
under this title.” TEX. HEALTH & SAFETY CODE § 191.051. A copy of a death record
registered under that title that is certified by the state registrar “is prima facie
evidence of the facts stated in the record.” Id. § 191.052. “A record of a birth, death,
or marriage, if reported to a public office in accordance with a legal duty” is not
excluded by the rule against hearsay. TEX. R. EVID. 803(9); see also Tex. Workers’
Comp. Comm’n v. Wausau Underwriters Ins., 127 S.W.3d 50, 61 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied) (stating that Rule 803(9) “provides an
alternative avenue of admissibility for death certificates, in addition to section
191.052 of the Texas Health and Safety Code”).
Nexion contends Ms. Michal failed to preserve error on “any issue related to
Mr. Michal’s alleged death certificate” because (1) “her arguments on appeal fail to
match those she made in the trial court”; (2) she relies on “statutory and evidentiary
rule references” made for the first time in her “untimely amended Motion for New
Trial”; (3) she “never sought general admission into evidence of the death certificate,
only that it be attached to Dr. Davis’s declaration”; and (4) “there is no express or
implied ruling on the judicial notice request.” Alternatively, Nexion argues the trial
court “did not abuse its discretion in excluding Mr. Michal’s death certificate”
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because “[t]here is no information about where this document came from” and
though it “appears” to be a facsimile of an original document, it is “poor-quality”
and “is only produced in greyscale” without the blue security border its provisions
describe. According to Nexion, “These unanswered questions would rightly give any
judge pause about taking judicial notice.” Additionally, Nexion contends any error
in excluding the death certificate was harmless because the trial court “properly
granted no-evidence summary judgment on other grounds—that there was no
competent expert testimony to raise a fact issue.”
As to error preservation, the portion of Ms. Michal’s appellate complaint that
we address here cites the same bases she relied on prior to her motion for new trial,
including the “Rules of Evidence” and Texas Health and Safety Code section
191.051. See TEX. R. APP. P. 38.1(f) (“The statement of an issue or point will be
treated as covering every subsidiary question that is fairly included.”). Also, the
record shows the relief sought in Ms. Michal’s motion for leave to late-file summary
judgment evidence was not limited to attaching evidence to Dr. Davis’s declaration,
but also included a separate request for judicial notice of the death certificate.
Further, because the trial court’s May 14, 2021 order stated it denied Ms. Michal’s
“Motion for Leave to Late-File Summary Judgment Evidence,” which included both
requests, we cannot agree with Nexion that there was “no express or implied ruling
on the judicial notice request.”
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If a party requests it and the court is supplied with the necessary information,
the court “must take judicial notice” of a fact for which judicial notice is proper, i.e.,
“that is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” TEX. R.
EVID. 201(b)–(c). Here, Nexion objected to the death certificate on the grounds that
it was hearsay, unauthenticated, and “not certified.” Despite the document’s alleged
“poor quality” and the fact that it is a grayscale copy, all pertinent entries and
informational portions are easily readable. To the extent Ms. Michal was required to
show application of a hearsay exception, (1) her motion asserted the death certificate
was a “public and readily available document” and (2) the death certificate shows
on its face that it is a record of vital statistics and therefore subject to Rule 803(9)’s
hearsay exception. See TEX. R. EVID. 803(9). Moreover, the document clearly states
it is a “certification” and “a true and correct reproduction of the original record”
issued pursuant to section 195.051. See TEX. HEALTH & SAFETY CODE §§ 195.051–
.052. On this record, we conclude the trial court abused its discretion by not granting
Ms. Michal’s request for judicial notice as to Mr. Michal’s death certificate. See id.;
TEX. R. EVID. 201(b)–(c); cf. United States v. Brocato, 4 F.4th 296, 304 (5th Cir.
2021) (noting that death certificate is “a document subject to judicial notice”).
In light of that conclusion, we now address together (1) Nexion’s assertion
that any error regarding refusal to take judicial notice of the death certificate was
harmless and (2) Ms. Michal’s assertion that her summary judgment evidence
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established the elements of medical negligence to defeat a no-evidence motion for
summary judgment.
According to Nexion, without the Medical City records, “Dr. Davis’
conclusions about Mr. Michal’s death and its causes are conclusory and
inadmissible” because those omitted records “describe the cause and nature of the
alleged injury and death.” Nexion asserts “the failure to include those foundational
records rendered the declaration conclusory,” a “substantive defect” that Ms. Michal
was not entitled to cure.6
The record shows Dr. Davis’s declaration described breach of the applicable
standards of care based on the Pleasant Valley medical records. Additionally,
paragraphs 16, 19, and 22 of his declaration describe a causal connection between
the alleged breach and Mr. Michal’s injury or harm. Though those three paragraphs
rely in part on the contents of the Medical City records, the critical causational
underpinning of those paragraphs is that Mr. Michal died of “sepsis” as a result of
Nexion’s breach of applicable standards of care. The cause of death is stated in Mr.
6
Nexion’s appellate argument also includes an assertion that the trial court “properly excluded” the
Pleasant Valley records that Nexion produced to Ms. Michal during discovery because those records were
hearsay and not properly authenticated. Inadmissibility on those grounds is immaterial because those
records were attached to Dr. Davis’s declaration. See TEX. R. EVID. 703 (“An expert may base an opinion
on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If
experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion
on the subject, they need not be admissible for the opinion to be submitted.”); see also Seim v. Allstate Tex.
Lloyds, 551 S.W.3d 161, 163 (Tex. 2018) (“The same evidentiary standards that apply in trials also control
the admissibility of evidence in summary-judgment proceedings.”). Additionally, the record does not show
an opportunity to cure those purported defects of form, which the rules of civil procedure require. See, e.g.,
TEX. R. CIV. P. 166a(f); 193.7. Thus, the trial court abused its discretion to the extent it excluded the Pleasant
Valley records.
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Michal’s death certificate. Though the Medical City records apparently contain
unique details pertinent to the aspiration pneumonia diagnosis, the Pleasant Valley
records and the death certificate, without more, provide a basis for Dr. Davis’s
conclusions regarding inadequate care and causation.7 Thus, at the very least, the
declaration is not conclusory. See Acrey v. Kilgore & Kilgore, PLLC, No. 05-15-
01229-CV, 2017 WL 1173830 at *3 (Tex. App.—Dallas Mar. 30, 2017, no pet.)
(mem. op.) (explaining that failure to attach records referenced in affidavit renders
affidavit conclusory where those records “are what provides the affidavit with a
factual basis”); see also Huntress v. Hickory Trail Hosp., L.P., No. 05-19-00892-CV,
2020 WL 2781795, at *7 (Tex. App.—Dallas May 29, 2020, pet. denied) (mem. op.)
(concluding affidavit in medical negligence case was not conclusory where relied-
on medical records that should have been attached were otherwise part of summary
judgment record); Lopez v. Carrillo, 940 S.W.2d 232, 235 (Tex. App.—San Antonio
1997, writ denied) (noting that hearsay statements in otherwise competent affidavit
did not render affidavit conclusory). Accordingly, Ms. Michal’s failure to attach
every record Dr. Davis referred to was not a defect of substance, but instead a defect
7
Though Ms. Michal contends on appeal that the Pleasant Valley records, alone, provided an adequate
basis for causation, we disagree. Those records do not show Mr. Michal’s cause of death or address his
treatment and diagnoses after he left Pleasant Valley on June 18, 2018. Thus, those records provide no basis
for a causal link between Nexion’s alleged breach of the applicable standards of care and Mr. Michal’s June
2018 hospital treatment and death.
–20–
of form, which required an opportunity to cure.8 See Hewitt, 353 S.W.3d at 307–08;
Brown, 145 S.W.3d at 753; see also EOG Res., Inc. v. Wall, 160 S.W.3d 130, 134
(Tex. App.—Tyler 2005, no pet.) (concluding trial court erred by not allowing
appellant to supplement evidence to cure formal defects in earlier-submitted
affidavits, where appellant moved for leave before summary judgment was entered).
Additionally, for the same reasons described above, the record shows that the
death certificate and Dr. Davis’s declaration, with any formal defects cured, would
provide more than a scintilla of evidence of the applicable standards of care, breach
of those standards, and a causal connection between the breach and Mr. Michal’s
injury or harm, precluding no-evidence summary judgment. Thus, the trial court’s
error probably caused the rendition of an improper judgment. See TEX. R. APP. P.
44.1(a) (error is reversible if it “probably caused the rendition of an improper
judgment”).
We conclude the trial court reversibly erred by improperly (1) declining to
take judicial notice of Mr. Michal’s death certificate and (2) denying Ms. Michal the
opportunity to cure formal defects regarding the records referenced in Dr. Davis’s
declaration.
8
Nexion contends Ms. Michal “failed to preserve error on the trial court’s exclusion of the declaration”
because she “neither requested the opportunity to cure this defect nor moved for a continuance,” but instead
“merely sought to add evidence to her reply” and “did not offer an amended affidavit or declaration that
properly attached the records relied on.” Ms. Michal’s motion to late-file summary judgment evidence cited
the portion of Rule 166a(f) regarding supplementation of affidavits and asked that the evidence in question
be “attached.” We conclude Ms. Michal preserved error regarding exclusion of the declaration for failure
to attach the required documents. See TEX. R. APP. P. 33.1(a).
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We reverse the trial court’s judgment as to Ms. Michal’s medical negligence
claim, otherwise affirm the judgment, and remand this case to the trial court for
further proceedings consistent with this opinion.
/Cory L. Carlyle//
210693f.p05 CORY L. CARLYLE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHEILA MICHAL, On Appeal from the 160th Judicial
INDIVIDUALLY AND AS A District Court, Dallas County, Texas
REPRESENTATIVE OF THE Trial Court Cause No. DC-20-05250.
ESTATE OF ROBERT MICHAL, Opinion delivered by Justice Carlyle.
Appellant Justices Molberg and Partida-Kipness
participating.
No. 05-21-00693-CV V.
NEXION HEALTH AT GARLAND,
INC. D/B/A PLEASANT VALLEY
HEALTHCARE AND
REHABILITATION CENTER AND
NEXION HEALTH OF TEXAS,
INC., Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We AFFIRM the trial
court’s judgment as to appellant’s corporate and gross negligence claims,
REVERSE the judgment as to appellant’s medical negligence claim, and
REMAND this case to the trial court for further proceedings consistent with this
opinion.
It is ORDERED that appellant SHEILA MICHAL, INDIVIDUALLY AND
AS A REPRESENTATIVE OF THE ESTATE OF ROBERT MICHAL recover her
costs of this appeal from appellees NEXION HEALTH AT GARLAND, INC.
D/B/A PLEASANT VALLEY HEALTHCARE AND REHABILITATION
CENTER AND NEXION HEALTH OF TEXAS, INC.
Judgment entered this 4th day of November, 2022.
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