Baptist St. Anthony's Hospital and Rhodesia Castillo, M.D. v. Daniel Walker and Kristen Walker, Individually and as Next Friend of H. W.

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00032-CV
BAPTIST ST. ANTHONY'S HOSPITAL AND
RHODESIA CASTILLO, M.D., APPELLANTS
V.
DANIEL WALKER AND KRISTEN WALKER, INDIVIDUALLY
AND AS NEXT FRIEND OF H.W., APPELLEES
On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 110,097-B-CV, Honorable Douglas R. Woodburn, Presiding
November 29, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Baptist St. Anthony’s Hospital (BSA) and Rhodesia Castillo, M.D. appeal the trial
court’s denial of their challenge to expert reports and effort to dismiss the suit of Daniel
and Kristen Walker, individually and on behalf of their child H, (the Walkers). The three
sued BSA and Castillo for alleged negligence occurring shortly before and during the birth
of H. The arguments posed are many. They encompass the qualifications of the experts
and whether their reports satisfy the applicable statute. The trial court said they did. We
conclude otherwise and reverse.
Background
According to the Walkers, the hospital and doctor breached standards of care
relating to the delivery of H and the care of Kristen during labor. The purported negligence
encompassed the manner in which BSA, through its nurses, and Castillo monitored the
pair and reacted to signs that the health and wellbeing of both patients were jeopardized.
The actions and inactions allegedly resulted in H suffering brain trauma due to an
asphyxia event, according to the Walkers. They averred in their original petition that if
the BSA nurses and Castillo complied with the relevant standards of care and caused
Kristen to undergo a cesarean 60 to 90 minutes earlier, then the infant would have
suffered no or less injury.
Three reports allegedly supporting their contentions were filed by the Walkers. The
documents were written by Drs. Tappan and Null and Nurse Beach. BSA and Castillo
moved to dismiss the suit, deeming the reports insufficient. In response, the Walkers filed
substitute reports by the same individuals. That led to other motions to dismiss, allegedly
because the reports remained deficient. The trial court denied the motions, and this
appeal ensued.
Law and Application
Per the Texas Civil Practice and Remedies Code, one pursuing a health care
liability claim must serve upon those being sued “one or more expert reports, with a
curriculum vitae of each expert listed in the report . . . .” TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(a). Service must occur generally within 120 days of the date on which
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each defendant’s original answer is filed. Id. Should that not occur, then the physician
or health care provider sued is entitled to the dismissal of the suit with prejudice, attorney’s
fees, and court costs. Id. at § 74.351(b). Furthermore, a challenge to such a report may
be granted “only if it appears . . . that the report does not represent an objective good faith
effort to comply with the definition of an expert report . . . .” Id. at § 74.351(l). The
legislature defined “expert report” as “a written report by an expert that provides a fair
summary of the expert’s opinions . . . regarding applicable standards of care, the manner
in which the care rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury, harm, or
damages claimed.” Id. at § 74.351(r)(6). The report illustrates the requisite “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.’” E.D. v. Tex.
Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022) (quoting Baty v. Futrell, 543
S.W.3d 689 (Tex. 2018)).
We caution that section 74.351(r)(6) of the Texas Civil Practice and Remedies
Code imposes a “lenient standard” assuring the claimant a fair opportunity to show his
claim is not frivolous. Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). In
assessing the report’s adequacy, we read them as a whole or in their entirety, as opposed
to focusing simply on specific portions or sections of it. Baty, 543 S.W.3d at 694; accord,
E.D., 644 S.W.3d at 667 (noting the obligation to read the report in its entirety). That
enables us to parse through the document and reorder its content to understand what the
expert says. See Baty, 543 S.W.3d at 694 (wherein the Supreme Court viewed “three
statements in different sections of the report” in rejecting a challenge to the report). And,
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that it may lack buzzwords or magic verbiage matters not; such are unnecessary if the
information provided satisfies the aforementioned standard. Baty, 543 S.W.3d at 693-94.
Yet, it may not be conclusory; rather, the expert must “explain” the how and why of his
opinions by tying conclusions to specific facts. Abshire v. Christus Health, 563 S.W.3d
219, 224 (Tex. 2018). In other words, the expert must “explain, to a reasonable degree,
how and why the breach caused the injury based on the facts presented.” Jelinek v.
Casas, 328 S.W.3d 526, 539-40 (Tex. 2010). That said, we turn to the reports at hand.
Many justifiably complain of legalese and the resulting inability of layman to
understand terms commonly utilized by the legal community. Lawyers have nothing on
doctors. The latter tend to forget they write their health care liability reports for those
untrained in the medical field. And, lawyers do little to rectify that.
With the help of dictionaries, we interpret the reports at bar as describing a situation
where an expectant mother, while in labor, arrived at BSA. The time was about 5:30 a.m.
About three hours later, Castillo prescribed to her Pitocin, a drug used to enhance
contractions. Measures to monitor the fetal heart rate had also begun by then. Such
monitoring did not include a fetal scalp electrode. Intermittent decelerations in the fetal
heart rate were being observed during this period and apparently in conjunction with the
contractions. The administration of Pitocin continued; mother’s urge to push did not.
Castillo knew of the decelerations and at about 12:08, directed the attending nurse
to assist mother in pushing. About 40 minutes later, Castillo decided to leave the hospital,
and the nurse did not inform or seek guidance from her superiors about this. Late and
variable decelerations of the fetal heart rates persisted, and Castillo was notified of them
around 1:52 p.m. The doctor returned to the hospital and mother’s bedside by 2 p.m.
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Monitoring of the fetal heart rate at 3:15 p.m. again revealed variable decelerations
and apparently deficient accelerations as the periodic administration of Pitocin continued.
By 3:50 p.m., those in attendance noticed swelling of the child’s scalp due to “prolonged
engagement” in the birth canal. That resulted in Castillo opting to remove the child
through cesarean section.
Around 4:33 p.m., mother went to the operating room. The initial incision into
mother’s abdomen occurred at 4:56 p.m., at which point Castillo discovered the child’s
head low in Kristen’s pelvis. Because she had difficulty in reaching it, the doctor instructed
the nurse to “push the head up from below.” Delivery ensued. Yet, the child needed to
be resuscitated. Ultimately, testing indicated the infant suffered from a “subacute
infarction” or stroke “involving the majority of his left cerebral hemisphere.” He would be
“at potential risk for focal onset seizures and epilepsy,” as reported by Tappan.
The Walkers’ experts assigned a myriad of defaults to both attending nurses and
Castillo. They consisted of 1) both nurses and Castillo failing to apply a scalp monitor to
the child’s head the morning of mother’s arrival; 2) Castillo leaving the hospital and not
being “readily available”; 3) an attending nurse failing to contact others higher in “the chain
of command” when Castillo left the hospital; 4) Castillo ordering more Pitocin while the
child exhibited “non-reassuring fetal heart rate patterns”; 5) the cesarean section not
commencing immediately after Castillo decided to perform it; 6) Castillo removing the
child from mother’s body by having the nurse push on its head as opposed to her pulling
its feet; 7) nurses failing to “discontinue the Pitocin and notify the physician” upon seeing
certain fetal heart patterns at 9:21 a.m.; and 8) nurses failing to administer terbutaline at
3:52 p.m. when a fetal heart pattern did not respond to a “decrease or discontinuation of
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the Pitocin.” As for attempting to explain how these actions or inactions caused harm,
Drs. Tappan and Null addressed that. 1
Null focused on the delay in ultimately conducting the cesarean section. He opined
that H’s circumstances were “consistent with an asphyxia event that occurred late in the
course of labor” and “[m]ore likely than not had [H] been delivered one to one and a half
hours sooner he would not have suffered the degree of brain injury that he has.”2
Tappan’s discussion of causation was a bit longer. First, he said that “[b]ut for . . .
Castillo’s failure to deliver by reverse breech extraction, [H] would not likely have suffered
these complications and injuries,” and it “was foreseeable to an ordinarily prudent
obstetrician that failure to deliver by reverse breech extraction might reasonably result in
traumatic extraction, physical craniocerebral deformation, and trauma, including the
increased risk of arterial ischemic stroke with injury to the fetal brain.” Another of his
references encompassed the other purported acts of misfeasance. There, he said that
the “failure to meet the standards of care referred to above was a substantial factor in
causing the injuries suffered by baby [H].” He coupled that with a statement about an
“MRI” and “MRA” “suggest[ing] the possibility that [H] sustained a perinatal arterial
ischemic stroke likely due to intrapartum factors including prolonged second-stage labor,
1 Nurse Beach rendered no opinion on causation for she, as a nurse, was not qualified to do so.
See Shaw v. West, No. 07-14-00181-CV, 2014 Tex. App. LEXIS 10715, at *7 (Tex. App.—Amarillo Sept.
24, 2014, no pet.) (mem. op.) (holding a nurse unqualified to opine on causation since she was not a doctor).
2 Null actually opined that the infant’s fetal heart tracing followed by the need for resuscitation, need
for assisted ventilation, need to be cooled, his coagulopathy, his seizures, his severe acidosis, and the
absence of evidence of infection “are all consistent with an asphyxia event that occurred late in the course
of labor.” (Emphasis added). To the extent that BSA and Castillo suggest that the phrase “consistent with”
is too indefinite to establish causation, Supreme Court authority suggests otherwise. In Miller v. JSC Lake
Highlands Operations, 536 S.W.3d 510, 515 (Tex. 2017), the Court found the report sufficiently revealed
causation despite the expert saying his interpretation of the x-rays was “‘consistent with the conditions
stated in the death certificate as the cause of Hathcock’s death.’” (Emphasis added).
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fetal heart rate abnormalities, and trauma at the time of delivery, including the forceful
external manipulation of the fetal head incident to its impaction in the maternal pelvis.”
According to Tappan, the child “sustained an in-utero asphyxial injury during the final one
to one and a half hours of labor” and had “Castillo decided for cesarean delivery at or
about 15:15 and had she “atraumatically” delivered Baby [H] by 15:45 on 05/22/15, [he]
would have been born without neurologic injury.” He then concluded by stating that “[a]ll
the above opinions [were] stated to a reasonable degree of medical certainty on a more
probable than not basis.”
In short, Drs. Null and Tappan informed the trial court of an impending birth,
defaults in monitoring the child, purported misapplication of medications influencing
(directly or indirectly) the fetal heart rate, a medical practitioner leaving the hospital for a
short period of time, little progress in a birth unassisted by surgery, delay in ultimately
removing the child through surgery, purportedly questionable means by which the baby
was removed, and the child ultimately suffering brain trauma. That trauma may have
been avoided, according to the experts, if the monitoring was better, the doctor acted
sooner, and the doctor removed H by pulling on his feet. What is missing is a simple
explanation of how and why the misconduct assigned Castillo and the nurses was a
substantial factor in H suffering “a large subacute infarction involving the majority of his
left cerebral hemisphere.” See Pediatrics Cool Care v. Thompson, 649 S.W.3d 152, 158
(Tex. 2022) (involving medical malpractice and stating that a defendant’s negligence is
the cause-in-fact of a plaintiff’s injury if the act or omission was a substantial factor in
causing the injury, and without, the harm would not have occurred).
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We assume arguendo the reports sufficiently describe the occurrence of an
asphyxia event, as we do the discovery of injury at birth. Missing though is adequate
explanation tying the purported “asphyxia event” to the “large subacute infarction
involving the majority of his left cerebral hemisphere.” Whether asphyxia, in general, or
the extent allegedly encountered by the unborn child, in particular, can lead to such brain
injury was left to inference or speculation. Yet, to be adequate, the report itself “must
include the required information within its four corners.” Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 53 (Tex. 2002). We cannot supply it by inference. Scoresby, 346 S.W.3d at
556.
At best, Tappan opined that that the presence of a subacute infarction “suggests
the possibility that H sustained a perinatal arterial ischemic stroke likely due to
intrapartum factors including prolonged second-stage labor, fetal heart rate abnormalities,
and trauma at the time of delivery . . . .” (Emphasis added). That too is deficient since
the mere “possibility” of a link between conduct and eventual harm fails to illustrate the
reasonably medical probability demanded by the statute. Wright, 79 S.W.3d at 53;
Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Remington, No. 04-17-00728-
CV, 2018 Tex. App. LEXIS 6387, at *9 (Tex. App.—San Antonio Aug. 15, 2018, no pet.)
(mem. op.). The expert must still explain how the conduct caused the injury. Wright, 79
S.W.23 at 53.
Nor did either physician explain how or why H’s position low in Kristen’s pelvis
caused either asphyxia or infarction. The same is true regarding the non-application of a
monitor on the unborn child’s scalp. That default occurred around 9 a.m. while the
asphyxia event and brain trauma supposedly “occurred late in the course of labor.” Again,
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we are left to speculate about how either asphyxia or trauma would not have happened
had the monitor been affixed earlier. About same omission, we also observe that “[a]n
event that starts a chain of events can be too attenuated from an injury to cause it.” Curnel
v. Houston Methodist Hospital-Willowbrook, 562 S.W.3d 553, 565 (Tex. App.—Houston
[1st Dist.] 2018, no pet.). This means the experts would have had to also explain why an
act transpiring some six or more hours before the occurrence of harm was not too
attenuated to the eventual harm. They did not here.
No less is true of Castillo’s leaving the hospital for 75 minutes but returning over
an hour before deciding to conduct the cesarean. Her leaving may look bad and breach
some standard of care, but no one explained why it mattered or how her remaining would
have avoided trauma. Regarding the failure of attending nurses to inform their superiors
of Castillo’s departure, like omissions reappear. We again were left to speculate about
what those superiors could or would have done to prevent the subacute infarction had
they been told. The experts said nothing about that. Nor did they even address whether
those higher up the chain of command had a right to stop Castillo from leaving, persuade
her to remain, secure a substitute physician, or the like. See Columbia Valley Healthcare
Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (wherein the hospital was
accused of negligence because it failed to prevent a patient’s transfer and holding
causation insufficiently explained because the experts did not address how the hospital
had either the right or means to stop it). Nor did they explain what ameliorative measures
the hospital could have undertaken while Castillo was gone to preempt H’s brain trauma.
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As for Pitocin/Oxytocin and the way it was administered, the average judge
untrained in the field of medicine may garner from the reports a relationship between the
drug and contractions. So too may it see accusation about the mis-administration of the
substance and comment about contractions influencing fetal heart rates. What it will not
see is discussion about how or why the variable heart rates experienced by H before,
during, or after the contractions could or would cause asphyxia in general or to a level
sufficient to result in an infarction.
About the delay between the time Castillo decided to utilize a cesarean and her
initial incision, there was some, no doubt. But, the experts do not provide factual
explanation of how or why H would not have suffered the eventual infarction had the
surgery commenced post-haste. They seem to conclude as much but offer no factual
reasoning to support that conclusion.
And, though it may be foreseeable that pushing on a baby’s head during extraction
may cause injury, how and why it did in this particular instance was left unaddressed.
See Thompson, 649 S.W.3d at 158 (stating that proximate cause has two components,
cause-in-fact and foreseeability). As with the other alleged acts of mis- and non-
feasance, the experts left us to speculate about the link.
So too do the reports leave one to legitimately ask how the asphyxia or infarction
was reasonably foreseeable from the alleged defaults other than pushing on H’s head.
See Zamarripa, 526 S.W.3d at 460 (stating that “the causal relationship between breach
and injury that an expert report must explain” encompasses both cause-in-fact and
foreseeability). With the advent of Columbia, the expert report must address both cause-
in-fact and foreseeability. Curnel, 562 S.W.3d at 569-70. And, as previously mentioned,
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the only act of misfeasance in relation to which any of the experts discussed foreseeability
was the instance of pushing on the baby’s head.
No doubt, something happened leaving child and parent to suffer the
consequences. But a tragedy does not relieve anyone, including the judiciary, from
complying with section 74.351. While the experts at bar proffered a litany of allegedly
deficient conduct, they failed to explain how and why each caused, within reasonably
medical probability, H’s eventual subacute infarction before birth. This makes their
reports less than a fair summary allowing jurists to reasonably conclude that either BSA
or Castillo caused the harm suffered by H. To the extent that the trial court held otherwise,
it abused its discretion. See E.D., 644 S.W.3d at 664 (alluding to the use of an abused
discretion standard when reviewing the trial court’s decision about the sufficiency of the
reports).
We reverse the trial court’s order. In its place, we enter our own and dismiss, with
prejudice, the Walkers’ suit against Rhodesia Castillo, M.D., and Baptist St. Anthony’s
Hospital. So too do we remand the cause to the trial court with the directive to calculate
and award Castillo and the hospital reasonable attorney’s fees and court costs per section
74.351(b)(1) of the Texas Civil Practice and Remedies Code.
Brian Quinn
Chief Justice
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