Whitney Gonsoulin, M. D. v. Maria Zamarripa, as Administrator of the Estate of R. F. R. and R. J. R., Minors

NUMBER 13-18-00483-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WHITNEY GONSOULIN, M.D., Appellant,
v.
MARIA ZAMARRIPA, AS ADMINISTRATOR
OF THE ESTATE OF R.F.R. AND R.J.R., MINORS, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Hinojosa
Memorandum Opinion by Justice Benavides
By one issue, appellant Whitney Gonsoulin, M.D., appeals the trial court’s denial
of his objections to an expert report filed by appellee Maria Zamarripa, as Administrator
of the Estate of R.F.R. and R.J.R., Minors, in support of her medical malpractice suit and
his motion to dismiss that suit. We affirm.1
I. BACKGROUND
The underlying facts of this case have been before this Court multiple times.
Previously, in Zamarripa v. Bay Area Health Care Group, Ltd., No. 13-15-00024-CV, 2016
WL 6962009 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied), Zamarripa
appealed the trial court’s granting of a motion to dismiss the expert report written by
Frederick Harlass, M.D. This Court affirmed the trial court’s dismissal. Id. at *5. In a related
appeal, Columbia Valley Healthcare System, L.P. v. Zamarripa, 520 S.W.3d 62 (Tex.
App.—Corpus Christi–Edinburg 2015), rev’d, 526 S.W.3d 453 (Tex. 2017), the Texas
Supreme Court reversed this Court’s holding affirming the denial of the hospital’s motion
to dismiss and remanded the case to the trial court in order to allow Zamarripa a thirty-
day extension to amend her report. A subsequent case, Zamarripa v. Columbia Valley
Health Care System, L.P., 13-18-00231-CV, 2019 WL 962085 (Tex. App.—Corpus
Christi–Edinburg 2019, pet. filed), reversed the trial court’s granting of a motion to dismiss
filed by the hospital. The facts as we previously laid out in the above cases have not
changed.
In this particular case, Zamarripa’s second amended petition was filed on April 21,
2014, and her expert report from Dr. Harlass was filed on July 24, 2014. A second report
from Dr. Harlass was filed on July 30, 2014. The case was abated due to the other
appeals as listed above, although Gonsoulin’s objections to Dr. Harlass’s expert report
1
Dr. Gonsoulin filed a post-submission letter attempting to include an order from Zamarripa v.
Bay Area Health Care Group, Ltd., No. 13-15-00024-CV, 2016 WL 6962009 (Tex. App.—Corpus Christi–
Edinburg 2016, pet. denied), into this record. Zamarripa filed a letter objecting to the inclusion of the order
from the prior case. We did not consider Gonsoulin’s letter in the disposition of this case.
2
were overruled on November 4, 2014. The case was reinstated after the Texas Supreme
Court handed down its opinion in 2017. See Zamarripa, 520 S.W.3d at 62.
Gonsoulin filed a motion to dismiss on January 23, 2018. Zamarripa filed an
objection and motion to strike Gonsoulin’s motion to dismiss on March 2, 2018. On April
6, 2018, the trial court issued an order titled “Order Sustaining Objection and Granting 30
Day Extension.” The order stated:
The Objections and Motion to Strike filed by Plaintiff with regard to the
Motion to Dismiss filed by Defendant Gonsoulin. After due consideration of
the pleadings on file, the arguments of counsel, and the pertinent case law,
the Court finds that cause exists upon which to sustain the objections and
grant a 30 day [sic] extension to cure any deficiency. It is, therefore,
ORDERED, ADJUDGED, AND DECREED, that the objections of Plaintiff to
Defendant Gonsoulin’s Motion to Dismiss are hereby sustained and a 30
day extension is hereby granted to cure any deficiency in the expert’s report.
The statement regarding a thirty-day extension was hand-written on the order.2
After thirty days had passed, Gonsoulin filed a supplemental motion to dismiss
which requested statutory dismissal for failure to produce an expert report that complied
with chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74. Zamarripa filed a response
and motion to strike Gonsoulin’s motion to dismiss. The trial court held a hearing and the
following occurred:
Zamarripa: So this Court sustained our objections, the Plaintiffs’
objections, to the Defendant’s motion to dismiss, and so
therefore–so then with the Court granting our motion—our
motion to strike, there’s nothing for us, the Plaintiffs, to do. It
sustained our objections to their motion because, again—
Trial Court: But I gave you a remedy of 30 days, Counsel, to supplement
that particular expert, if I’m not mistaken.
2
The trial court also handwrote “Granting 30 Day Extension” to the title of the order.
3
Zamarripa: And, Your Honor, if—that’s not the way that the Order reads.
The Order says that the “Objections of Plaintiff to Defendant
Gonsoulin’s Motion to Dismiss are hereby sustained,” and
that’s where—and so with the Order being in front of us as it
is, that’s—that’s the way that we—we have to interpret what
the Order says.
And so because of our objections and the Court granting our
objections to their motion to dismiss, then there’s nothing to–
there’s nothing for us to cure because in 2014 this Court
overruled their objections and they never appealed, and then
with this Court’s order, it again overruled their objections and
didn’t find any deficiencies so there’s nothing to cure, Your
Honor.
....
Trial Court: Oh, okay. So you’re saying you’re good even though I told you
there is a deficiency and I’m only sustaining it so that you can
cure it within 30 days—otherwise, I would have just dismissed
it, Counsel, but I didn’t. I gave you 30 days to cure it.
....
Trial Court: So you misunderstood my Order? Is that what I’m hearing?
Zamarripa: Judge—well, our reading of the Order is that.
Trial Court: That’s what happens when attorneys interpret Orders,
counsel.
All right. So therefore you feel there’s no need for you to cure
the deficiency? Is that what I’m hearing?
....
Zamarripa: Okay. And then with the granting of our objections to their
motion to dismiss, the Court again didn’t find any deficiencies.
Trial Court: There is an “and.” There’s an “and.”
Zamarripa: I understand that, Judge, but it doesn’t say, “And the Court
finds that there is deficiencies.” [sic]
4
Trial Court: Let’s see. “And a 30-day extension is hereby granted to cure
any deficiency in the expert’s report.” I don’t think I can be any
more clear [sic] than that, Counsel. I was very specific on my
Order, and there was a reason why I was that specific;
because I didn’t want to hear the argument that you’re making
right now. I specifically gave you-all time to cure; otherwise, I
would have just stricken it, and I didn’t. I gave you an
opportunity to cure it, and you didn’t cure it.
....
Trial Court: You leave me no other choice than to grant their motion to
dismiss because you said, oh, it’s good the way it is, Judge,
we don’t need to do anything with it.
....
Trial Court: Well I’m interpreting it for you since I’m the one that signed it
and I’m the one that added “and” in there, and whenever you
see an “and,” that means its one and two, and [sic]. It didn’t
say “or.” It said “and,” and it said give you time to cure.
So if I’m giving you time to cure something, that means that
it’s deficient, right? You should have filed a motion to clarify
the Judge’s order, and then I would have heard you, and then
I would have told you exactly what I’m telling you right now.
....
Zamarripa: Well, Judge, if it was a misinterpretation on our part, Plaintiffs
will humbly request from the Court a 30-day extension from
today to cure any deficiencies. If that’s the case, the Plaintiffs
should not be punished for a misinterpretation that–
....
Trial Court: I am inclined to give you your 30 days; however, I’m going to
be entertaining attorneys’ fees at the next hearing because
that’s on you. That’s not on them. They’re here. They’re ready
to proceed. They have a proper motion to dismiss before me.
You should have filed a motion to clarify if your interpretation
was different than what I was telling you.
....
5
Gonsoulin: This will be—next time will be the sixth hearing.
Trial Court: I understand that, but obviously you are very intent on this
motion, and I can appreciate your perseverance on this
particular issue.
So it will be 30 days out. I will be entertaining attorneys’ fees
at that time. Bring me a breakdown at that time, Counsel, and
I’ll deal with it at that point.
On July 12, 2018, Zamarripa filed a supplemental expert report by Dr. Steven
Edmonson. After the second thirty-day period had passed, Gonsoulin filed a second
supplemental motion to dismiss. Zamarripa filed another response and motion to strike
Gonsoulin’s motion to dismiss. On July 30, 2018, the trial court overruled Gonsoulin’s
objections, denied the second supplemental motion to dismiss, but awarded Gonsoulin
$3,051.23 in attorney’s fees. This appeal followed.
II. JURISDICTION
Zamarripa argues that this Court does not have jurisdiction to review the trial
court’s denial of Gonsoulin’s motion to dismiss. She states that the trial court denied
Gonsoulin’s motion to dismiss in 2014 and he failed to properly appeal the denial at that
time.
In 2014, Gonsoulin filed two motions objecting to Dr. Harlass’s report. One was
titled, “Defendant, Whitney Gonsoulin, M.D.’s Objections to Ch. 74 Report of Frederick
Harlass, M.D.” and the other was titled, “Defendant, Whitney Gonsoulin, M.D.’s
Objections to Ch. 74 Report of Frederick Harlass, M.D. served by Intervenor Olga Flores
as Temporary Administrator of the Estate of Yolanda Iris Flores.” The motions were
similar except that the motion related to the intervenor requested that the objections be
6
granted and the case be dismissed. On November 4, 2014, the trial court issued an order
that overruled Gonsoulin’s objections. Zamarripa argues that the 2014 objections were
actually a motion to dismiss and Gonsoulin should have appealed the trial court’s order
at that time.
Section 74.351(a) provides that within 120 days of filing an original petition in a
health care liability claim, a plaintiff must serve on each defendant an expert report, along
with the expert’s curriculum vitae. See id. § 74.351(a); see also CHCA Mainland, L.P. v.
Burkhalter, 227 S.W.3d 221, 225 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An expert
report is defined as “a written report by an expert that provides a fair summary of the
expert’s opinions as of the date of the report 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. § 74.351(r)(6).
Section 74.351(l) provides the proper basis for lodging objections to the adequacy
of an expert report. See id. § 74.351(l) (“A court shall grant a motion challenging the
adequacy of an expert report only if it appears to the court, after hearing, that the report
does not represent an objective good faith effort to comply with the definition of an expert
report in Subsection (r)(6).”). Although an interlocutory appeal may be taken from an order
that “grants relief sought by a motion under Section 74.351(l),” a defendant has no right
of interlocutory appeal if the trial court denies the defendant’s challenge to the adequacy
of an expert report under § 74.351(l). Id. § 51.014(a)(10).
7
An expert report may be deemed untimely filed under § 74.351(a) if the report is
served before the 120–day deadline, but deficient. Acad. of Oriental Med., L.L.C. v.
Andra, 173 S.W.3d 184, 187 n. 5 (Tex. App.—Austin 2005, no pet). If an adequate expert
report “has not been served” within the 120–day period, the court, on the defendant’s
motion, shall, subject to § 74.351(c), enter an order that “awards to the affected physician
or health care provider reasonable attorney’s fees and costs of court” and “dismisses the
claim with respect to the physician or health care provider, with prejudice to the refiling of
the claim.” Id. § 74.351(b). A person may appeal from an interlocutory order that “denies
all or part of the relief sought by a motion under Section 74.351(b), except that an appeal
may not be taken from an order granting an extension under Section 74.351.” Id. §
51.014(a)(9); see id. § 74.351(c).
Here, like in Mainland, although one of Gonsoulin’s objections requested
dismissal, the trial court’s order did not rule on Gonsoulin’s request to dismiss the case
pursuant to § 74.351. Id. § 74.351; see Mainland, 227 S.W.3d at 225. The trial court only
ruled on Gonsoulin’s objections to Dr. Harlass’s expert report. In order to complain of an
error on appeal, the record must show that the trial court either expressly or impliedly
ruled on the request, objection, or motion. See TEX. R. APP. P. 33.1(a)(2)(A). It was only
after Gonsoulin filed his motion to dismiss in 2017 that the trial court issued an order
denying the motion to dismiss. Therefore, we have jurisdiction over the instant appeal.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9).
III. CHAPTER 74 REPORT
By his sole issue, Gonsoulin argues the trial court erred by denying his motion to
8
dismiss.
A. Timeliness of Supplemental Report
The Texas civil practice and remedies code chapter 74 controls expert report
timelines. See TEX. CIV. PRAC. & REM. CODE Ann. ch. 74. In § 74.351(c), it states:
If an expert report has not been served within the period specified by
Subsection (a) because elements of the report are found deficient, the court
may grant one 30-day extension to the claimant in order to cure the
deficiency. If the claimant does not receive notice of the court’s ruling
granting the extension until after the 120-day deadline has passed, then the
30-day extension shall run from the date the plaintiff first received notice.
Id. § 74.351(c). Subsection (b) goes on to state that:
If, as to a defendant physician or health care provider, an expert report has
not been served within the period specified by Subsection (a), the court, on
the motion of the affected physician or health care provider, shall, subject
to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable
attorney’s fees and costs of court incurred by the physician or health
care provider, and
(2) dismisses the claim with respect to the physician or health care
provider, with prejudice to the refiling of the claim.
Id. § 74.351(b).
However, this case was unusual. Although the trial court believed it signed the
order granting Gonsoulin’s objections to Zamarripa’s expert report based on statements
it made during the June 2018 hearing, it signed an order that technically granted
Zamarripa’s objections to Gonsoulin’s objections to the expert report. It is apparent from
the June 2018 record that Zamarripa was unaware that the trial court found deficiencies
in her expert’s report. The trial court stated that it should have been clear there were
deficiencies in Zamarripa’s expert report because it allowed Zamarripa thirty days to cure
9
any deficiency, but based on the wording of the order, we find the order was contradictory
and ambiguous. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex.
1971) (“The same rules of interpretation apply in construing the meaning of a court order
of judgment as in ascertaining the meaning of other written instruments.”).
Generally, an “ambiguous order may be construed in light of the motion upon which
it was granted.” Id. at 404. Here, the trial court necessarily denied Gonsoulin’s objections
to the expert report when it granted Zamarripa’s motion to dismiss. Thus, the trial court’s
granting of a thirty-day extension to amend the expert report is in irreconcilable conflict
with this ruling. Due to this conflict, the trial court’s April 2018 order is of no effect. See
Houston v. Adams, 269 S.W.2d 572, 577 (Tex. App.—Galveston, 1954, no writ)
(explaining that conflicting orders obviate one another because a trial judge cannot grant
and deny mutually exclusive remedies at the same time); cf. USAA Texas Lloyds Co. v.
Menchaca, 545 S.W.3d 479, 509 (Tex. 2018) (“When an irreconcilable conflict involves
one jury answer that would require a judgment in favor of the plaintiff and another that
would require a judgment in favor of the defendant, the conflict is fatal.”). The trial court’s
oral clarification during the June 2018 hearing explaining its decision is what we construe
to be the “order” which starts Zamarripa’s thirty-day timeline. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(c). Therefore, Zamarripa’s supplemental expert report was
timely.
B. Sufficiency of the Report
1. Standard of Review
The standards governing the contents of expert reports required by chapter 74 are
10
well established. Hebert v. Hopkins, 395 S.W.3d 884, 889 (Tex. App.—Austin 2013, no
pet.). Chapter 74 defines an “expert report” as a
fair summary of the expert’s opinion as of the date of the report 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
A trial court’s ruling on the sufficiency of an expert’s report is reviewed for an abuse
of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).
Under this review, we defer to the trial court’s factual determinations if they are supported
by the evidence but review its legal determinations de novo. Id. A trial court abuses its
discretion if it acts without reference to guiding rules or principles. Id. However, in
exercising its discretion, it is incumbent upon the trial court to review the reports, sort out
their content, resolve any inconsistencies, and decide whether the reports demonstrate a
good faith effort to show that the plaintiff’s claims have merit. Id. at 144; see TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(l).
To constitute a “good faith effort,” as the Texas Supreme Court has explained, the
report must include the expert’s opinion on “each of the three main elements: standard of
care, breach, and causation,” and must provide enough information to fulfill two purposes
with respect to each element: (1) it must inform the defendant of the specific conduct the
plaintiff has called into question; and (2) it must provide a basis for the trial court to
conclude that the claims have merit. See Jelinek v. Casas, 328 S.W.3d 526, 538–40 &
n.9 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
11
878–79 (Tex. 2001). A plaintiff does not need to present all of her proof or expert
testimony in a form that would be admissible at trial, but is required to have the expert
“explain the basis for his statements to link his conclusions to the facts” and not merely
state conclusions. Jelinek, 328 S.W.3d at 539–40. The supreme court held that “’[a] report
that merely states the expert’s conclusions about the standard of care, breach, and
causation’ does not fulfill the two purposes of a good-faith effort.” Id. at 539 (quoting
Palacios, 46 S.W.3d at 879).
2. Applicable Law and Discussion
Gonsoulin argues that the causation element was not met in Dr. Edmonson’s
report. This element requires that the expert explain “how and why” the alleged
negligence caused the injury in question. Jelinek, 328 S.W.3d at 536. A conclusory
statement of causation is inadequate; instead, the expert must explain the basis of his
statements and link conclusions to specific facts. Id. 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;
the report is sufficient if it makes “a good-faith effort to explain, factually, how proximate
cause is going to be proven.” Zamarripa, 526 S.W.3d at 460.
Dr. Edmonson laid out what he believed the breaches of care were:
1. Dr. Gonsoulin failed to direct that additional laboratory tests be
performed prior to transfer and failed to acquire sufficient facts to appreciate
the severity of patient’s condition. Dr. Gonsoulin failed to direct that the
fibrinogen level be repeated; he failed to direct that a complete blood count
be repeated to determine Ms. Flores [sic] hematologic status prior to
transfer; and he failed to direct that prothrombin time and partial
12
thromboplastin time be done to determine Ms. Flores [sic] coagulation
status prior to transfer.
2. Dr. Gonsoulin failed to recommend initiation of tocolytic therapy
(treatment for the contractions).
3. Dr. Gonsoulin failed to direct transfer to closer facility with the
capacity and similar capabilities.
4. Dr. Gonsoulin failed to direct an appropriate mode of transportation
for patient’s condition.
As to causation, Dr. Edmonson opined:
1. Ms. Flores was anemic on admission to VRMC earlier in the morning
of the transfer, with a hemoglobin [sic] 8.3 and a hematocrit of 24.4. Given
the reason for transfer was a placenta accreta, a condition in which life-
threatening hemorrhage and coagulopathy was highly probable; and the
high probability of a placental abruption; the standard of care would dictate
rechecking the hemoglobin and hematocrit levels to ascertain if the anemia
was worsening due to ongoing bleeding. Furthermore, Ms. Flores [sic]
fibrinogen level was low at 242 mg/dl. Fibrinogen levels correlate with the
severity of bleeding and failing fibrinogen levels may indicate a
disseminated coagulopathy (inability of her blood to clot and control
hemorrhaging). Fibrinogen levels below 200 have a 100% positive
predictive value for placental abruption. Because of the risk of hemorrhage
and subsequent risk of a disseminated coagulopathy, the standard of care
required that the fibrinogen level be rechecked and that additional studies
of the patients’ coagulation system be done to determine the patient's
coagulation status prior to transfer.
By directing that these tests be performed, Dr. Gonsoulin would have known
the severity of Ms. Flores [sic] condition. He would have known whether her
anemia had worsened and that she had a problem with her blood clotting.
This information was necessary to ascertain the stability of Ms. Flores [sic]
placental condition and whether there was active hemorrhaging prior to
transfer. Dr. Gonsoulin’s failure to direct that these tests be done prior to
the transfer deprived Ms. Flores of additional stabilizing treatment. More
specifically, given the level of anemia and the significant risk of hemorrhage
associated with Ms. Flores [sic] condition, transfusion of blood should have
been given to Ms. Flores prior to her transfer. Secondly, with the low
fibrinogen levels and the probability of a developing a coagulopathy
(inability for her blood to clot) transfusion of blood clotting factors should
have been considered prior to transfer. There was ample time during Ms.
13
Flores’ hospitalization at VRMC prior to the transfer to have repeated these
tests and ascertain the need for additional stabilizing treatment.
Ms. Flores had a placenta accreta and was having ongoing intraabdominal
hemorrhage complicated by a placental abruption. With a placenta accreta
and placental abruption, blood loss may be far in excess of what is observed
due to retained retroplacental or intraabdominal bleeding. A placenta
accrete is a condition that occurs because of a defect in the basal decidual
tissue of the uterus; whereas a placental abruption is the result of ruptured
blood vessels in this decidual layer. Bleeding occurs from these ruptured
blood vessels separating the placenta from the uterine wall. Both conditions
represent a chronic placental disease. There was ample evidence in the
record to substantiate the existence of the placenta accrete and the high
risk of placental abruption well before Ms. Flores presented to the hospital
on 5/15/2012. A cesarean hysterectomy was necessary to stop the
hemorrhaging, however, rather than receiving this care at VRMC, she was
transferred to CCMC-BA over 150 miles away. Time was critical for Ms.
Flores, the sooner she received the definitive surgical care, the lower the
risk of deterioration in her condition. Providing the additional stabilizing
treatment such as blood and blood product transfusions would have
lessened the risk of deterioration in her condition and provided additional
time for Ms. Flores’ transfer to be completed. The failure to appreciate the
severity of her condition and the high probability of deterioration, and the
failure to provide additional stabilizing treatment allowed the existing
anemia to worsen from continued bleeding; and the coagulopathy to
develop and progress much more quickly. The coagulation cascade was
triggered by the ongoing hemorrhage, depleting Ms. Flores [sic] clotting
factors and platelets resulting in an inability for her blood to clot. With the
inability for her blood clot, Ms. Flores, who was already severely anemic,
continues to hemorrhage. She exsanguinates, she hemorrhages to the
point of cardiovascular collapse. Because Dr. Gonsoulin did not direct that
additional lab testing be done and because of his failure to direct that blood
transfusions be given to Ms. Flores prior to her transfer, she was deprived
of stabilizing treatment that would have given her critical time needed for
her transfer. Ms. Flores [sic] death was a consequence of the failure to
receive additional stabilizing treatment.
2. Ms. Flores was contracting throughout the day and no treatment was
provided for these contractions other than IV fluids. Preterm contractions
are often a sign of placental abruption and these contractions aggravate the
placental condition. These contractions are caused by thrombin, a powerful
uterotonic (stimulates contractions) which leads to further placental
separation. A patient with a placental abruption may initially be stable,
however the placental abruption may progress suddenly with rapid
14
deterioration. Therefore, the continuation of the contractions throughout the
day and during the transfer contributed to the worsening of the placental
condition and hemorrhage. Dr. Gonsoulin’s failure to direct treatment for
these contractions contributed to the worsening of her placental condition,
exacerbating the hemorrhaging thus accelerating her blood loss and
inability to clot her blood. Because of Dr. Gonsoulin’s failure to direct
treatment for these contractions prior to and during the transfer, the
contractions continued and aggravated the existing placental condition
leading to further hemorrhage and problems with blood clotting, ultimately
contributing to her cardiovascular collapse and death from hemorrhaging.
3. Given the patient’s condition, the transfer should have been directed
to a closer facility than CCMC-BA, since CCMC-BA was over 150 miles
away from VRMC. Transfer to a closer facility would have shortened the
time of transfer and facilitated definitive treatment prior to Ms. Flore’s [sic]
condition deteriorating to point of her death. Shortening of the transit time
was critical because Ms. Flores’ hemorrhaging and inability to clot her blood
was untreated prior to her transfer and therefore ongoing and worsening
during the transfer. Because Dr. Gonsoulin did not direct transfer to a closer
facility, Ms. Flores’ 3 hour transfer deprives her of critical time as she
continues to hemorrhage from her placental condition. The consequence of
Dr. Gonsoulin’s failure is a delay in treatment due to the distance she was
transferred, allowing the hemorrhaging and inability to clot her blood to
accelerate to the point that she bled to death.
4. Given the nature and severity of this patient’s unstable condition,
transport time was of paramount importance. Ground transport is best for
short distance transfer, but there is increased transit time when the transfer
is over a long distance, furthermore, the mobility of a ground vehicle is
limited by road and traffic conditions. Air transport via helicopter has a
shorter transport time, and is best over intermediate distances and/or in
highly congested areas were [sic] traffic conditions would extend the transit
time. Ms. Flores was transferred non-emergently by ground ambulance, the
unit became ensnared in a traffic jam during a critical period in which Ms.
Flores [sic] condition had significantly deteriorated. Hidalgo EMS had to be
escorted by Corpus Christi fire personnel to the receiving hospital due their
unfamiliarity with the area further adding to the delay in care. Air transport
would have avoided these traffic issues and shortened the transit time. As
stated previously, the time to definitive surgery, i.e. cesarean
hysterectomy[,] was critical and the standard of care would have been to
transfer Ms. Flores in the most expeditious manner appropriate for the
severity of her condition so as to avoid deterioration during the transfer.
Transfer by ground vehicle, non-emergently over a distance of 150 miles
posed a significant delay in receiving the definitive surgery needed by Ms.
15
Flores. Because of Dr. Gonsoulin’s failure to direct a more appropriate
mode of transfer of Ms. Flores, the resultant time delay allowed more time
for the untreated hemorrhaging and blood clotting defects at work in Ms.
Flores to continue and worsen, ultimately causing her death.
Dr. Edmonson’s report explained how and why he thought Gonsoulin was deficient
by his actions. See Abshire v. Christus Health Southeast Texas, 563 S.W.3d 219, 224
(Tex. 2018). The report explained the basis of his statements and linked his conclusions
to specific facts that occurred. See id. Dr. Edmonson’s report explained the cause-in-fact
omissions he felt led to the harm and ultimate death of Flores. See Zamarripa, 526 S.W.3d
at 460. We conclude that Dr. Edmonson’s report was sufficient to qualify as a “good-faith”
effort to comply with the causation requirement under § 74.351. See TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351; see also Abshire, 563 S.W.3d at 224. We hold the trial court
did not abuse its discretion in denying Gonsoulin’s motion to dismiss. We overrule
Gonsoulin’s sole issue.
IV. CONCLUSION
We affirm the ruling of the trial court.
GINA M. BENAVIDES,
Justice
Delivered and filed the
20th day of February, 2020.
16