Harlingen Medical Center, Limited Partnership v. Rosa Andrade, as Next Friend of M. H. A., a Minor Child

ACCEPTED
13-15-00119-CV
FILED THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 8/14/2015 6:10:54 PM
CORPUS CHRISTI - EDINBURG CECILE FOY GSANGER
CLERK
081415
NO. 13-14-00700-CV RECEIVED
IN THE 13TH COURT OF APPEALS
CECILE FOY GSANGER, CLERK CONSOLIDATED WITH CORPUS CHRISTI - EDINBURG
BY mquilantan
NO. 13-15-00119-CV 8/14/2015
CECILE FOY GSANGER, CLERK
BY scarranza
IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS
HARLINGEN MEDICAL CENTER, LIMITED PARTNERSHIP,
Appellant,
v.
ROSA ANDRADE, AS NEXT FRIEND OF
MARY HELEN ANDRADE, A MINOR CHILD, ET. AL.
Appellees.
On Appeal from the 404th Judicial District Court, Cameron County, Texas
Trial Court Cause No. 2014-DCL-1353-G
APPELLEES’ RESPONSE BRIEF
F. Leighton Durham, III Laura E. Gutierrez Tamez
State Bar No. 24012569 State Bar No. 00793869
ldurham@texasappeals.com lrtamez@herreralaw.com
Kirk L. Pittard Jorge A. Herrera
State Bar No. 24010313 State Bar No. 24044242
kpittard@texasappeals.com jherrera@herreralaw.com
Morgan A. McPheeters THE HERRERA LAW FIRM, INC.
State Bar No. 24081279 111 Soledad Street, Suite I 900
mmcpheeters@texasappeals.com San Antonio, Texas 78205
KELLY, DURHAM & PITTARD, LLP (210) 224-1054 (Telephone)
PO Box 224626 (210) 228-0887 (Facsimile)
Dallas, TX 75222
(214) 946-8000 (Telephone)
(214) 946-8433 (Facsimile)
ORAL ARGUMENT REQUESTED*
IDENTITY OF PARTIES AND COUNSEL
As required by Texas Rule of Appellate Procedure 38.1(a), Appellant
correctly identifies appellate counsel, trial counsel and all parties to this
appeal. In addition to those identified by Appellant, Appellees identify the
following appellate counsel.
Appellate Counsel for Appellees: F. Leighton Durham, III
Kirk L. Pittard
Morgan A. McPheeters
KELLY, DURHAM & PITTARD, LLP
PO Box 224626
Dallas, TX 75222
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ....................................................................... ii
TABLE OF AUTHORITIES ......................................................................................... viii
STATEMENT OF THE RECORD .....................................................................................2
STATEMENT REGARDING ORAL ARGUMENT ............................................................ 2
RESTATEMENT OF ISSUE PRESENTED ......................................................................... 4
STATEMENT OF FACTS................................................................................................5
A. Mr. Andrade presents at Harlingen Medical Center
with severe chest pain........................................................................ 5
B. Mr. Andrade is diagnosed with a Type 1 (Stanford
Type A) ascending aortic dissection, an emergent
condition ..............................................................................................5
C. Dr. Lopez orders that Mr. Andrade be transferred to
another hospital, but Harlingen Medical Center fails
to carry out that order ........................................................................ 7
D. Dr. Hilmy performs an inpatient cardiology
consultation and orders that Mr. Andrade be
transferred for emergent surgery..................................................... 8
E. Harlingen Medical Center’s second attempt to
transfer Andrade is unsuccessful ..................................................... 8
iii
TABLE OF CONTENTS (CONT’D)
PAGE
F. Despite Andrade’s emergent condition, Harlingen
Medical Center’s case management practitioners
wait almost another full day to attempt another
transfer .................................................................................................9
G. Unable to transfer Mr. Andrade to a facility that
could provide him the emergent care he needed, Mr.
Andrade dies at Harlingen Medical Center on
December 22, 2011 ............................................................................10
H. Mr. Andrade’s family files suit and Harlingen
Medical Center challenges their expert reports ...........................10
I. The Andrades submit another expert report in
compliance with the trial court’s order, and
Harlingen Medical Center challenges it too .................................12
SUMMARY OF THE ARGUMENT ................................................................................12
ARGUMENT AND AUTHORITIES ...............................................................................14
I. The applicable standard of review is abuse of discretion ....................14
II. Initial expert reports need only satisfy minimal
requirements under Chapter 74................................................................15
III. The trial court properly denied Harlingen Medical
Center’s motions to dismiss because Plaintiffs’ expert
reports meet the minimum requirements of § 74.351 ...........................18
iv
TABLE OF CONTENTS (CONT’D)
PAGE
A. Plaintiffs’ reports satisfactorily detailed the relevant
standard of care required of Harlingen Medical
Center .................................................................................................19
B. Plaintiffs’ reports establish the manner in which
Harlingen Medical Center breached the relevant
standard of care ................................................................................21
i. Case management failed to effectuate the
transfer order by failing to obtain a physician-
to-physician call and by failing to provide all
relevant information to potential transfer
facilities. (2 CR 364) ................................................................22
ii. Case management failed to continually work
locate an accepting facility to care for Mr.
Andrade starting on December 19, and failed
to look statewide for an accepting facility. (2
CR 364-65)................................................................................25
iii. Case management failed to follow the chain of
command and escalate the inability to secure
an accepting facility. (2 CR 366) ...........................................26
iv. Case management failed to keep the
physicians up to date on the inability to secure
acceptance for transfer. (2 CR 366-67) .................................27
C. Plaintiffs’ expert reports causally link Harlingen
Medical Center’s breach of the standard of care to
Mr. Andrade’s death ........................................................................28
v
TABLE OF CONTENTS (CONT’D)
PAGE
i. Dr. Adams and Dr. DeBehnke sufficiently
established causation .............................................................31
ii. Harlingen Medical Center incorrectly argues
that Plaintiffs must conclusively establish
causation ..................................................................................34
1. Chapter 74 does not require Plaintiffs to
conclusively establish causation ................................35
2. Chapter 74 does not require Plaintiffs to
respond to or negate Harlingen Medical
Center’s potential defenses ........................................36
3. Case law cited by Harlingen Medical
Center does not support its claim that
Plaintiffs must prove that a specific
hospital would have accepted Mr.
Andrade.........................................................................41
IV. The Court need not address Harlingen Medical Center’s
argument that it cannot be blamed for Dr. Lopez’ decision
not to perform Mr. Andrade’s surgery....................................................48
V. If the Court finds that Plaintiffs’ initial reports are
insufficient regarding causation, Plaintiffs are entitled to a
30-day extension to cure that deficiency .................................................50
VI. Conclusion ...................................................................................................53
vi
TABLE OF CONTENTS (CONT’D)
PAGE
CERTIFICATE OF COMPLIANCE ................................................................................56
CERTIFICATE OF SERVICE .........................................................................................56
vii
TABLE OF AUTHORITIES
CASES PAGE
Abilene Reg’l Med. Ctr. v. Allen,
387 S.W.3d 914 (Tex. App.—Eastland 2012, pet. denied) ............................30
Am. Transitional Care Ctrs. v. Palacios,
46 S.W.3d 873 (Tex. 2001) ................................. 14, 16, 17, 18, 19, 21, 28, 34, 35
Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace,
278 S.W.3d 552 (Tex. App.—Dallas 2009, no pet.) ........................................41
Bowie Memorial Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002) ........................................................... 15, 17, 29, 35, 38
Certified EMS, Inc. v. Potts,
392 S.W.3d 625 (Tex. 2013) ........................................... 13, 16, 18, 21, 34, 49, 53
Costello v. Christus Santa Rosa Health Care Corp.,
141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.) .............................29
Dillard v. Tex. Elec. Co-op.,
157 S.W.3d 429 (Tex. 2005) ................................................................................40
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985) ................................................................................15
Estorque v. Schafer,
302 S.W.3d 19 (Tex. App.—Fort Worth 2009, no pet.) ........................... 42, 43
Fortner v. Hosp. of the Sw., LLP,
399 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.) ........................... 30, 38, 41
Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..................40
viii
TABLE OF AUTHORITIES (CONT’D)
CASES (CONT’D) PAGE
Hutchinson v. Montemayor,
144 S.W.3d 614 (Tex. App.—San Antonio 2004, no pet.) ................ 16, 29, 35
IHS Acquisition No. 140, Inc. v. Travis,
No. 13-07-481-CV, 2008 WL 1822780
(Tex. App.—Corpus Christi Apr. 24, 2008, pet. denied) ..............................16
In re Stacy K. Boone,
223 S.W.3d 398 (Tex. App.—Amarillo 2006, orig. proceeding) ..................40
Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010) ................................................................................29
Jernigan v. Langley,
195 S.W.3d 91 (Tex. 2006) ..................................................................................17
Jones v. King,
255 S.W.3d 156 (Tex. App.—San Antonio 2008, pet. denied)......... 42, 44, 45
Leland v. Brandal,
257 S.W.3d 204 (Tex. 2008) ................................................................................52
Lenger v. Physician’s Gen. Hosp., Inc.,
455 S.W.2d 703 (Tex. 1970) ......................................................................... 29, 35
Lewis v. Funderburk,
253 S.W.3d 204 (Tex. 2008) ................................................................................17
Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2012) ................................................................................18
ix
TABLE OF AUTHORITIES (CONT’D)
CASES (CONT’D) PAGE
Otero v. Leon,
319 S.W.3d 195
(Tex. App.—Corpus Christi 2010, pet. denied) .......................... 15, 18, 19, 54
Patterson v. Ortiz,
412 S.W.3d 833 (Tex. App.—Dallas 2013, no pet.) ................................. 29, 35
Renaissance Surgical Ctrs.-S. Tex., L.L.P. v. Jimenez,
No. 13-07-121-CV, 2008 WL 3971096
(Tex. App.—Corpus Christi Aug. 28, 2008, no pet.) .....................................52
Sanchez v. Martin,
378 S.W.3d 581 (Tex. App.—Dallas 2012, no pet.) ........................................17
Schrapps v. Lam Pham,
No. 09-12-00080-CV, 2012 WL 4017768
(Tex. App.—Beaumont Sept. 13, 2012, pet. denied) ........................ 38, 42, 47
Tenet Hosp. Ltd. v. Love,
347 S.W.3d 743 (Tex. App.—El Paso 2011, no pet.).......................... 42, 45, 46
Thota v. Young,
366 S.W.3d 678 (Tex. 2012) ................................................................................39
Walker v. Gutierrez,
111 S.W.3d 56 (Tex. 2003) ..................................................................................15
Whitfield v. Henson,
385 S.W.3d 708 (Tex. App.—Dallas 2012, no pet) .........................................41
x
TABLE OF AUTHORITIES (CONT’D)
STATUTES PAGE
Tex. Civ. Prac. & Rem. Code § 74.351 ............................................. 30, 34, 49, 53
Tex. Civ. Prac. & Rem. Code § 74.351(b) ...........................................................16
Tex. Civ. Prac. & Rem. Code § 74.351(c) ..................................................... 17, 53
Tex. Civ. Prac. & Rem. Code § 74.351(i).............................................................30
Tex. Civ. Prac. & Rem. Code § 74.351(l)...................................................... 17, 18
Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) .......................................... 16, 28, 36
xi
NO. 13-14-00700-CV
CONSOLIDATED WITH
NO. 13-15-00119-CV
IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI-EDINBURG, TEXAS
HARLINGEN MEDICAL CENTER, LIMITED PARTNERSHIP,
Appellant,
v.
ROSA ANDRADE, AS NEXT FRIEND OF
MARY HELEN ANDRADE, A MINOR CHILD, ET. AL.
Appellees.
On Appeal from the 404th Judicial District Court, Cameron County, Texas
Trial Court Cause No. 2014-DCL-1353-G
APPELLEES’ RESPONSE BRIEF
1
STATEMENT OF THE RECORD
This is a consolidation of two appeals of orders denying Appellant’s
motions to dismiss in the same case. The Clerk’s Record related to the first
appeal (Cause No. 13-14-00700-CV) will be referenced as “1 CR [page].” The
Clerk’s Record related to the second appeal (Cause No. 13-15-00119-CV) will
be referenced as “2 CR [page].”
Similarly, the Reporter’s Record from the first, October 30, 2014
hearing on Harlingen Medical Center’s Motion to Dismiss for Insufficient
Expert Reports (Cause No. 13-14-00700-CV) will be referenced as “1 RR
[page].” The Reporter’s Record from the second, February 17, 2015 hearing
on Harlingen Medical Center’s Second Motion to Dismiss for Insufficient
Expert Reports (Cause No. 13-15-00119-CV) will be referenced as “2 RR
[page].”
STATEMENT REGARDING ORAL ARGUMENT
Because the issues in this case are relatively simple and
straightforward and the law is well established, Appellees do not believe
that oral argument is necessary and that this Court can easily affirm the trial
court’s ruling based on the briefs and record currently on file. However, if
the Court grants Appellant’s request for oral argument, Appellees request
2
the opportunity to participate.
3
RESTATEMENT OF ISSUE PRESENTED
In light of the underlying purpose and minimal requirements for
expert reports under Chapter 74 of the Texas Civil Practice and Remedies
Code, did the trial court act within its discretion when it denied Appellant
Harlingen Medical Center’s motions to dismiss for insufficient reports,
where the Andrades’ expert reports adequately detailed the causal links
between Harlingen Medical Center’s breaches of the applicable standard of
care and Mr. Andrade’s death?
4
STATEMENT OF FACTS
A. Mr. Andrade presents at Harlingen Medical Center with severe chest
pain.
On December 18, 2011, George Andrade arrived at Harlingen Medical
Center’s emergency room at approximately 3:30 pm, complaining of severe
chest pain. (1 CR 228). The attending physician evaluated Andrade and
ordered laboratory studies, a chest x-ray, and ordered a CT angiogram of
Andrade’s chest and abdomen to rule out aortic dissection. Id. At 5:45 pm, a
second emergency room physician, Dr. Syed Ali, assumed care for Andrade
and recommended admission to the hospital under the care of Dr. Nataraj
Desai. Id. Thirty minutes later, Dr. Desai ordered Andrade’s admission to
the hospital, receipt of Lovenox, and a consult by Dr. David Yardley, a
cardiologist. Id.
B. Mr. Andrade is diagnosed with a Type 1 (Stanford Type A)
ascending aortic dissection, an emergent condition.
The CT angiogram ordered while Andrade was in the emergency
room revealed an aortic dissection, exactly what the doctors hoped to rule
out. (1 CR 229). At 8:08 pm a second CT angiogram was performed, which
confirmed the aortic dissection, but further indicated an “aortic dissection
most consistent with a Type 1 or Stanford A dissection involving the
5
ascending aorta.” Id.
The finding of a Type 1 (Stanford Type A) ascending aortic dissection
is significant because it is a surgical emergency due to the high incidence of
rupture or pericardial tamponade, resulting in immediate death. (1 CR 228).
The standard of care for this type of tear in the wall of the aorta requires
emergent surgical repair to prevent rupture and death. Id. A Type 1
dissection, if not treated urgently or emergently by surgical repair, is
“universally fatal.” (1 CR 231).
Dr. Yardley saw Andrade at 9:45 pm and confirmed that Andrade
suffered from an ascending abdominal aortic dissection. (1 CR 229). Dr.
Desai was also alerted of the results from the CT angiogram. Id. Dr. Yardley
recommended that Andrade be admitted to the CCU and indicated that Dr.
Shereef Hilmy would assume care the following day to perform an invasive
angiography with possible covered graft stenting. Id.
A third CT angiogram was performed the following morning,
December 19, on the orders of Dr. Hilmy. (1 CR 229). The radiologist
documented that the image revealed an aortic dissection extending from the
root of the aorta through the ascending and descending aorta to the left
common iliac artery. Id.
6
C. Dr. Lopez orders that Mr. Andrade be transferred to another
hospital, but Harlingen Medical Center fails to carry out that order.
At 1:30 pm on December 19, vascular surgeon, Dr. Ruben Lopez
recommended that Andrade be transferred because of the ascending aortic
dissection. Dr. Lopez recommended he be transferred to Houston. Id.
Dr. Desai called in an order of transfer. 1 Id. However, there was no
documentation of an appropriate consultation by Dr. Lopez, documentation
by any physician identifying the reason for transfer, or documentation of
communication with the patient concerning the need for transfer. Id. Dr.
Lopez signed a certification for transfer, but otherwise left the form
completely blank. Id.
Harlingen Medical Center’s case management department initiated
transfer efforts to Memorial Hermann Hospital in Houston at 3:15 pm on
December 19, which immediately rejected the transfer for “financial
reasons.” Id. No further orders to transfer Andrade to another facility were
attempted that day. Id.
1That morning at 11:15 am, Dr. Desai completed a history and physical on Mr. Andrade,
but incorrectly noted a finding of descending aortic dissection. Id. Dr. Desai mistakenly
believed that the condition could be treated with cardiovascular surgery to place an
endovascular graft. Id. However, Mr. Andrade was actually suffering from an ascending
aortic dissection, which can only be treated through emergency surgery to repair the
aortic root and to plicate the dissected aorta with a graft. Id.
7
D. Dr. Hilmy performs an inpatient cardiology consultation and orders
that Mr. Andrade be transferred for emergent surgery.
The next morning, two days after Mr. Andrade first presented at
Harlingen Medical Center, Dr. Hilmy performed an “inpatient” cardiology
consultation, again diagnosed Andrade with an ascending aortic dissection,
and acknowledged that Andrade was not a candidate for endovascular graft.
(1 CR 230). Like Dr. Lopez the day before, Dr. Hilmy recommended transfer
to a higher level of care at a facility such as Methodist Hospital, Memorial
Hermann, or Texas Heart Institute. Id. At 9:00 am, Dr. Desai noted Dr.
Hilmy’s diagnosis of an ascending aortic root dissection, Type 1, and at 10:45
am, ordered that Andrade be transferred to a higher level of care for
emergency CT surgery. Id.
E. Harlingen Medical Center’s second attempt to transfer Andrade is
unsuccessful.
At 1:00 pm on December 20, a second attempt to transfer Andrade to
Memorial Hermann was unsuccessful. (1 CR 230). According to the case
management notes, Andrade’s transfer was refused by Memorial Hermann
based on its mistaken belief that the “case is urgent and not emergent or else
it would have been done yesterday.” Id. There is no documentation that any
physician called Memorial Herman Hospital to correct this error and, again,
8
the transfer certificate was blank. Id.
The case management nurse, Nurse Torres, contacted a second
hospital, University of Texas Medical Branch Galveston, for transfer, but that
hospital had no capacity. Id. Case management then attempted to contact
Methodist Hospital in San Antonio. Id. The transfer coordinator for
Methodist Hospital in San Antonio requested a physician-to-physician call
but was unable to reach Dr. Desai after six attempts. Id. Finally, the
cardiothoracic surgeon in San Antonio reached Dr. Desai, but declined to
accept Andrade. Id. University Hospital in San Antonio also declined the
patient, but the reason for doing so is not known. Id. No further attempts at
transfer were made on December 20, and no one on Harlingen Medical
Center’s case management team attempted to initiate any calls by the
physicians. Id.
F. Despite Andrade’s emergent condition, Harlingen Medical Center’s
case management practitioners wait almost another full day to
attempt another transfer.
The next attempt at transfer did not occur for more than 17 hours. (1
CR 231). At 10:15 am on December 21, case management again requested
transfer to Methodist Hospital in San Antonio. Id. At 1:30 pm, the request
was again declined. Id. Later that afternoon, case management made another
9
attempt to facilitate a transfer to Memorial Hermann in Houston, but
Memorial Hermann again declined the transfer. Id.
G. Unable to transfer Mr. Andrade to a facility that could provide him
the emergent care he needed, Mr. Andrade dies at Harlingen
Medical Center on December 22, 2011.
Harlingen Medical Center made no further efforts to transfer Andrade.
(1 CR 231). Predictably, on the morning of December 22, and 14 hours after
Harlingen Medical Center last attempted a transfer, Mr. Andrade
experienced a free rupture into his pericardium and died. Id. He was 47 years
old. See (1 CR 228; 1 RR 55:7-11).
H. Mr. Andrade’s family files suit and Harlingen Medical Center
challenges their expert reports.
On March 3, 2014, Mr. Andrade’s surviving family members (Plaintiffs
or Appellees) filed wrongful death and survival claims against Harlingen
Medical Center, Dr. Yardley, Dr. Desai, Dr. Hilmy, and Dr. Lopez. (1 CR 6-
23). As required by § 74.351 of the Texas Civil Practice and Remedies Code,
Plaintiffs timely presented the defendants with initial expert reports from
Dr. C. Warren Adams, Dr. Dan DeBehnke, and Mr. Ralph E. Cross. See (1 CR
227-98).
Harlingen Medical Center filed a Motion to Dismiss for Insufficient
10
Expert Reports on July 18, 2014, claiming that the expert reports:
(1) did not indicate that the experts were qualified to give expert
opinions about the standard of care applicable to Harlingen
Medical Center or its nurses or case managers and their
breach of that standard;
(2) were conclusory as to how Harlingen Medical Center or its
agents violated the applicable standards of care; and
(3) were conclusory and speculative regarding causation.
(1 CR 104).2
The trial court denied Harlingen Medical Center’s motion except for
its objection to the qualifications of Plaintiffs’ experts to render an opinion
concerning the standard of care applicable to Harlingen Medical Center, and
granted the Andrades a 30-day extension to provide “a supplemental expert
report from an expert qualified to render an opinion concerning the
applicable standard of care for Harlingen Medical Center and whether that
standard of care was breached.” (1 CR 300). Harlingen Medical Center filed
a Notice of Appeal of that order. (1 CR 304-06).
2Doctors Yardley, Desai, Hilmy, and Lopez also filed Objections to Plaintiffs’ Expert
Reports. See (1 CR 186). The trial court denied the defendant doctors’ objections on
November 12, 2014. (1 CR 299; 1 RR 75:4-76:11). Doctors Yardley, Hilmy, Lopez, and
Desai did not appeal. (2 RR 24:21-25:5).
11
I. The Andrades submit another expert report in compliance with the
trial court’s order, and Harlingen Medical Center challenges it too.
Consistent with the trial court’s order, Plaintiffs submitted a
supplemental expert report of Mr. Gerald “Craig” Felty, a registered nurse
and hospital administrator. (2 CR 359-68). Harlingen Medical Center filed a
Second Motion to Dismiss on December 15, 2014. (2 CR 246-50). This time,
Harlingen Medical Center did not question the expert’s qualifications or
opinions regarding standard of care and breach. Rather, Harlingen Medical
Center objected to Felty’s report because it included an allegedly improper
and unsupported opinion on causation. (2 CR 246-50). Harlingen Medical
Center argued that Felty was not qualified to provide an opinion on
causation because he is not a physician. (2 CR 247-49). The trial court denied
Harlingen Medical Center’s Second Motion, (2 CR 377), and Harlingen
Medical Center filed a Notice of Appeal of that order on March 9, 2015, (2
CR 378-80). This Court consolidated these two appeals on April 28, 2015.
SUMMARY OF THE ARGUMENT
The Texas Legislature’s primary objective in requiring initial expert
reports under Chapter 74 of the Texas Civil Practice and Remedies Code was
to “deter baseless claims, not block earnest ones,” and “to expeditiously
12
weed out claims that have no merit.” Certified EMS, Inc. v. Potts, 392 S.W.3d
625, 631 (Tex. 2013). The Andrades satisfied that requirement when they
provided Harlingen Medical Center with four expert reports that
collectively satisfy the requirements of Chapter 74.
The report of Mr. Felty meticulously details Harlingen Medical
Center’s failures to adhere to the relevant standards of care. Then, the reports
of Doctors Adams and DeBehnke causally link Harlingen Medical Center’s
breaches of the standards of care to Mr. Andrade’s death. These reports
explain, in great detail and based on reasonable medical probability, that
more likely than not Mr. Andrade would have been transferred to another
facility to receive emergency treatment that would have saved his life.
In doing so, the reports sufficiently link Harlingen Medical Center’s
breaches of the standard of care directly to Mr. Andrade’s death. The reports
substantiate the Andrades’ claims that Harlingen Medical Center’s case
management team failed to follow the proper procedures required to
transfer a patient with an emergent medical condition and, as a consequence,
failed to ensure that Mr. Andrade received the emergent care his life-
threatening condition necessitated.
Harlingen Medical Center does not seriously dispute the sufficiency of
13
the reports. Instead, Harlingen Medical Center asks that this Court impose
an additional requirement on the Andrades that the Legislature has not
imposed. Harlingen Medical Center seeks to require that the Andrades also
conclusively establish that, had Harlingen Medical Center done what it was
supposed to and not breached the standard of care, another hospital would
have taken Mr. Andrade. However, neither the case law nor the statute
impose such an obligation.
The Andrades’ reports, which unmistakably addressed standard of
care, breach, and causation, were sufficient to meet the minimal and
preliminary requirements of Chapter 74. Therefore, the trial court acted
within its discretion and in accord with the purpose of Chapter 74 when it
denied Harlingen Medical Center’s motions to dismiss. This Court should
affirm.
ARGUMENT AND AUTHORITIES
I. The applicable standard of review is abuse of discretion.
A trial court’s ruling concerning an expert report under Chapter 74 of
the Texas Civil Practice and Remedies Code is reviewable for an abuse of
discretion. See Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.
2001); Otero v. Leon, 319 S.W.3d 195, 199 (Tex. App.—Corpus Christi 2010,
14
pet. denied). Harlingen Medical Center’s brief largely ignores this standard
of review, perhaps because the standard necessary to reverse a trial court’s
ruling on a motion to dismiss under Chapter 74 is so high.
Indeed, a trial court abuses its discretion only if “it acts in an arbitrary
or unreasonable manner without reference to any guiding rules or
principles,” and an appellate court may not substitute its own judgment for
the trial court’s judgment. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
Accordingly, “[t]he mere fact that a trial judge may decide a matter within
his discretionary authority in a different manner than an appellate judge in
a similar circumstance does not demonstrate that an abuse of discretion has
occurred.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.
1985). This Court must, therefore, determine “whether the trial court acted
unreasonably and without reference to guiding principles” when it denied
Harlingen Medical Center’s motions to dismiss. Bowie Memorial Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002).
II. Initial expert reports need only satisfy minimal requirements under
Chapter 74.
Plaintiffs in health care liability cases are required to provide each
defendant an initial expert report with attached curriculum vitae “not later
15
than the 120th day after the date each defendant’s original answer is filed.”
Tex. Civ. Prac. & Rem. Code § 74.351(b). An “expert report” is:
[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.
Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) (emphasis added). The Texas
Supreme Court explains that a “‘fair summary’ is something less than a full
statement of the applicable standard of care and how it was breached.”3
Palacios, 46 S.W.3d at 880 (internal quotations omitted). Rather, a “fair
summary” must simply set out what care was expected but not given. Id.
A valid expert report has three elements: (1) it must fairly summarize
the applicable standard of care; (2) it must explain how the health care
provider failed to meet that standard; and (3) it must establish the causal
relationship between the failure and harm alleged. Certified EMS, Inc. v. Potts,
3As this Court has noted, the Texas Supreme Court’s interpretation of “fair summary” in
Palacios “implies that there is some level of ambiguity—something less than an absolutely
full description—that is left to the independent analysis of the trial court.” IHS Acquisition
No. 140, Inc. v. Travis, No. 13-07-481-CV, 2008 WL 1822780, at *9 (Tex. App.—Corpus
Christi Apr. 24, 2008, pet. denied) (mem. op.); see also Hutchinson v. Montemayor, 144
S.W.3d 614, 617-18 (Tex. App.—San Antonio 2004, no pet.) (A “‘fair summary’ is
something less than all of the evidence necessary to establish causation at trial.”).
16
392 S.W.3d 625, 630 (Tex. 2013). The expert must explain the basis of his
statements to link his conclusions to the facts. Wright, 79 S.W.3d at 52.
However, the expert report need not “marshal every bit of the
plaintiff’s evidence.” Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). Nor
must the plaintiff “present evidence in the report as if it were actually
litigating the merits.” Palacios, 46 S.W.3d at 879 (The report does not need to
meet the same requirements as the evidence offered in a summary judgment
proceeding or at trial.). Instead, plaintiffs must simply make “an objective
good faith effort to comply” with the Chapter 74 expert report requirements.
Tex. Civ. Prac. & Rem. Code § 74.351(l). 4
The statute’s primary objective is to “deter baseless claims, not block
earnest ones,” and “to expeditiously weed out claims that have no merit.”
4Additionally, Chapter 74 provides a built-in protection for plaintiffs if their initial expert
report is deficient. A trial court may grant a plaintiff a 30-day extension to cure a defective
report as long as the defective report (1) is timely, (2) contains the opinion of an individual
with expertise that the claim has merit, and (3) implicates the defendant’s conduct.
Scoresby, 346 S.W.3d at 557; Sanchez v. Martin, 378 S.W.3d 581, 595-96 (Tex. App.—Dallas
2012, no pet.); see Tex. Civ. Prac. & Rem. Code § 74.351(c). A deficient report may be cured
by amending the report or by serving a new report from a separate expert that cures the
deficiencies in the previously filed report. See Lewis v. Funderburk, 253 S.W.3d 204, 208
(Tex. 2008).
17
Potts, 392 S.W.3d 625, 631 (Tex. 2013). 5 Thus, if a plaintiff timely files an
expert report and a defendant objects to the report on the grounds that the
report is inadequate, the trial court may dismiss “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 . . . .” Tex. Civ. Prac.
& Rem. Code § 74.351(l) (emphasis added). To constitute a “good faith
effort,” the report must (1) put the defendant on notice of the specific
conduct complained of, and (2) provide the trial court a basis on which to
conclude the claims have merit. Otero, 319 S.W.3d at 199 (citing Palacios, 46
S.W.3d at 879).
III. The trial court properly denied Harlingen Medical Center’s motions
to dismiss because Plaintiffs’ expert reports meet the minimum
requirements of § 74.351.
Plaintiffs’ expert reports collectively constituted an “objective good
faith effort” to comply with Chapter 74. See Tex. Civ. Prac. & Rem. Code §
74.351(l). Plaintiffs’ experts are qualified to opine on the standard of care,
breach, and causation applicable to Harlingen Medical Center.6 Mr. Felty
5 See also Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J., concurring in part
and dissenting in part) (“An expert report . . . is a low threshold a person claiming against
a health care provider must cross merely to show that [her] claim is not frivolous.”).
6 In its first motion to dismiss, Harlingen Medical Center objected to the qualifications of
Plaintiffs’ initial experts—Dr. Adams, Dr. DeBehnke, and Mr. Cross—arguing that,
18
established the standard of care and Harlingen Medical Center’s breaches of
that standard, and Doctors Adams and DeBehnke established causation.
Collectively, the reports (1) put Harlingen Medical Center on notice of the
specific conduct complained of, and (2) provided the trial court a basis on
which to conclude that the claims have merit. See Otero, 319 S.W.3d at 199;
Palacios, 46 S.W.3d at 879. Therefore, this Court should affirm the trial court’s
denial of the motions to dismiss, because Plaintiffs’ collective reports were
sufficient under Chapter 74.
A. Plaintiffs’ reports satisfactorily detailed the relevant standard
of care required of Harlingen Medical Center.
According to Mr. Felty’s report, once a transfer order is placed, the
standard of care for the nurse case managers, nursing supervisors, and
nursing staff of Harlingen Medical Center includes the following
because these experts were not nurses or case managers, they were not qualified to opine
on the standard of care applicable to nurses or case managers. (1 CR 103-15). Harlingen
Medical Center did not challenge Dr. Adams’ and Dr. DeBehnke’s qualifications
regarding causation. The trial court sustained Harlingen Medical Center’s objection
regarding qualifications for standard of care, so Plaintiffs supplemented their reports
with a report from Mr. Felty. (1 CR 300; 2 CR 359-68). In its second motion to dismiss,
Harlingen Medical Center challenged Mr. Felty’s report only on the ground that Mr. Felty
was not qualified to opine on causation. (2 CR 247-49). Harlingen Medical Center did not
challenge Mr. Felty’s qualifications or opinions regarding standard of care or breach.
Accordingly, it is undisputed that Mr. Felty is qualified regarding standard of care and
breach and Dr. Adams and Dr. DeBehnke are qualified regarding causation.
19
requirements:7
(1) Follow and carry out the physician transfer orders for an
emergency condition on December 19, 20, 21, and 22
without delay;
(2) Research and identify all patient resources and facilities by
obtaining the hospital’s transfer agreements, contacting
facilities ordered or finding those facilities capable of
providing necessary care and treatment or engaging a
transfer service;
(3) Ensure that a physician order of transfer of a patient with
an emergency medical condition carries over between shift
changes;
(4) Communicate fully with the receiving hospitals to convey
critical information, including whether the transfer is
emergent or urgent, the reason for the transfer, and the
patient’s proper diagnosis;
(5) Obtain a certification of patient transfer from a physician,
certifying that the benefits to the patient of the transfer
outweigh the risks and indicating the correct diagnosis and
information regarding the patient’s condition;
(6) Arrange for physician-to-physician calls to facilitate full
communication about the patient’s emergency condition,
diagnosis, treatment, stabilization, and avoid
miscommunication;
7Mr. Felty provided an opinion on the standard of care applicable to Harlingen Medical
Center, which Harlingen Medical Center never challenged at the trial court and does not
challenge here. Mr. Felty’s opinion on the relevant standard of care is briefly summarized
here for context.
20
(7) Invoke the chain of command when a physician’s order
cannot be carried out or the patient’s needs are not being
met;
(8) Obtain the patient’s informed consent for transfer; and
(9) Communicate with attending physicians regarding the
inability to secure a transfer.
See (2 CR 362-63). Accordingly, Mr. Felty’s report provided a “fair summary”
of the standard of care that Harlingen Medical Center was expected to
provide to Mr. Andrade, thus complying with the requirements of Chapter
74. See Palacios, 46 S.W.3d at 880; Potts, 392 S.W.3d at 630.
B. Plaintiffs’ reports establish the manner in which Harlingen
Medical Center breached the relevant standard of care.
Next, Mr. Felty provided a fair summary of the breaches of the
standard of care by Harlingen Medical Center—i.e., what care was expected
but not given to Mr. Andrade. 8 See Palacios, 46 S.W.3d at 880. In his report,
Mr. Felty detailed how the nursing care managers, nursing supervisors, and
nursing staff, specifically Heather Smith, Debbie Mendoza, Terri Wood, and
Maria Torres, breached the standard of care that was due to Andrade.
Ultimately, Mr. Felty opined that case management failed to
appropriately, and within the standard of care, carry out the physician
8 Harlingen Medical Center does not challenge Mr. Felty’s report regarding breach either.
21
transfer order of an emergency condition on December 19, 20, 21, and 22. (2
CR 364).
i. Case management failed to effectuate the transfer order
by failing to obtain a physician-to-physician call and by
failing to provide all relevant information to potential
transfer facilities. (2 CR 364).
Nurse Smith only contacted one facility on December 19 and failed to
provide or obtain the appropriate patient data, including the proper
diagnosis of an ascending or Type 1 aortic dissection requiring emergency
surgery. (2 CR 364). There was no consult in the chart indicating the proper
diagnosis and there is no record that Nurse Smith contacted any physician
to obtain one. Id. She also did not obtain a physician certification indicating
whether Mr. Andrade was stable for transfer, whether he had an emergency
condition, and why he was being transferred (i.e. whether he was being
transferred merely due to being unfunded or because he needed a facility
that could provide greater expertise). Id.
Mr. Felty said that it is crucial to a receiving hospital to have this
information so it can evaluate whether a transfer is medically indicated or
necessary and whether transfer is in the best interest of the patient. Id. Failure
by Nurse Smith to obtain the appropriate data to communicate to the
22
receiving hospital, such as a physician certification, led to an incorrect
diagnosis of descending aortic dissection being included in Dr. Desai’s history
and physical. Id.
Nurse Smith further failed to determine if Mr. Andrade’s condition
was emergent or non-emergent to facilitate an appropriate transfer. Id. Nurse
Smith failed to coordinate physician-to-physician calls, which would have
allowed for full communication between physicians and provided the
patient with the best opportunity to transfer. Id. Nurse Smith also did not
communicate with any physician to seek alternative orders or assistance in
finding an accepting physician or hospital. Id. Such actions or inactions were
breaches of the applicable standard of care for a nurse supervisor. Id.
Furthermore, Nurse Smith’s failure to communicate that Andrade had an
emergent condition on December 19 was a breach of the standard of care. Id.
It was not until the following day, December 20, that Nurse Torres
found a consult in Mr. Andrade’s chart that indicated the correct diagnosis
of an ascending aortic dissection. Id. Nurse Torres sent that information to
Memorial Hospital, the same hospital that had denied Andrade the day
before. Id. Tellingly, however, the receiving physician at Memorial indicated
23
that Mr. Andrade’s case must not have been emergent, otherwise Harlingen
Medical Center would have transferred him out “yesterday.” Id.
On December 20, for the first time, Nurse Torres contacted a facility
other than Memorial Hermann. Id. There is no indication that Nurse Torres
facilitated a physician-to-physician call to communicate that Mr. Andrade
needed more than just an open bed. (2 CR 364-65). She also contacted
Methodist Hospital, but she did not facilitate a physician call or even provide
a physician phone number. (2 CR 365). This led to a delay in physician
communication. Id. Nurse Torres did not make any other calls to any other
facilities and simply waited on Methodist to respond. Id. Only after
Methodist declined the transfer did Nurse Torres then contact University
Hospital. Id. However, again, she did not facilitate a physician-to-physician
call, which led to a quick decline of transfer within 35 minutes. Id. Nurse
Torres’s failure to facilitate a physician-to-physician call for a transfer was a
breach in the standard of care. Id. Nurse Torres notified Terri Wood, case
manager, but then ceased all efforts to follow the transfer order on that day.
Id.
Mr. Felty’s report states that Nurse Torres did not attempt another
transfer until approximately 16 hours later at 10:30 on December 21. Id.
24
However, this attempt was merely to the same hospital that had already
declined Mr. Andrade the prior day. Id. Two hours later, that hospital
declined again. Id. Nurse Torres did not contact an attending physician or
invoke the chain of command to advise that she was unable to transfer
Andrade, who was in need of emergency surgery. Id. After a delay of almost
three hours, instead of contacting a different facility, Nurse Torres contacted
Memorial Hermann for a third time, which again declined Andrade within
45 minutes. Id. Nurse Torres made no further efforts to coordinate an
emergent transfer of Mr. Andrade. Id. Nurse Torres’s failure to carry out the
transfer order was, therefore, also a breach of the standard of care. Id.
ii. Case management failed to continually work to locate an
accepting facility to care for Mr. Andrade starting on
December 19, and failed to look statewide for an
accepting facility. (2 CR 364-65).
All transfer attempts were ceased each day by early evening. (2 CR
365). Nurse Smith failed to provide a shift change report and handoff to the
oncoming house supervisor in order to continue the transfer order efforts.
Id. By failing to carry out the transfer order on December 19, Nurse Smith
placed Mr. Andrade’s medical condition at risk for deterioration. Id. By
calling only one or two facilities repeatedly, when numerous facilities in
25
Houston, Dallas, San Antonio, Corpus Christi, Galveston, Austin, and Fort
Worth would have been available, Nurse Smith ensured that Mr. Andrade’s
healthcare needs would not be met. Id.
Neither Nurse Torres nor Nurse Wood continued efforts of transfer
through shift change handoff reports or by contacting a physician for an
alternate care plan or by contacting any other facility in Texas or the United
States on December 20—despite knowing that Mr. Andrade needed
emergency surgery. Id. Nurse Torres and Nurse Wood breached the
standard of care by such failures. Id. Thus, during the almost 14 hours
leading up to Mr. Andrade’s death, neither Nurse Torres nor anyone from
Harlingen Medical Center documented any attempts to carry out the
emergent order for Mr. Andrade’s transfer, depriving him of any chance of
receiving the necessary surgical treatment. (2 CR 365-66).
iii. Case management failed to follow the chain of command
and escalate the inability to secure an accepting facility.
(2 CR 366).
Nurse Smith did not seek assistance from any supervisor, physician,
or administrator in order to attempt a transfer. (2 CR 366). This failure led to
a delay in meeting Mr. Andrade’s medical needs. Id. Although Nurse Torres
advised a case manager regarding Andrade on December 20, she failed to
26
follow up to determine the next step or alternative and abandoned her
efforts to follow the physician order. Id. This failure by Nurse Torres led to
a delay in Andrade’s medical care needs including emergency surgery,
which is a breach of the standard of care. Id.
Nurse Wood and Nurse Mendoza also failed to carry out the physician
emergency transfer order by failing to contact a supervisor, nurse
administrator, chief nursing officer, or chief of staff to advise that a patient
needing emergency surgery was not having his medical care needs met. Id.
Nurse Torres’, Nurse Smith’s, Nurse Mendoza’s, and Nurse Woods’ failures
to invoke the chain of command when a physician’s emergent order could
not be carried out was a violation of the applicable standard of care. Id.
iv. Case management failed to keep the physicians up to
date on the inability to secure acceptance for transfer. (2
CR 366-67).
Finally, Mr. Felty noted that case management breached the standard
of care by failing to inform Mr. Andrade’s physicians of case management’s
failures to locate a transfer facility. (2 CR 366-67). Nor did any of the nurses
ever inform the physicians that they were going to stop working on the
transfer order. Id. Meanwhile, it appears that the physicians were under the
impression that transfer efforts were ongoing, when in reality the nurses
27
were not properly carrying over the transfer orders from shift to shift. Id.
As demonstrated above, Harlingen Medical Center breached the
standard of care by failing to follow the required steps to transfer Mr.
Andrade, a patient with an emergent medical condition who Harlingen
Medical Center’s physicians refused to operate on. Mr. Felty’s report
meticulously detailed what care was expected, but not given to Mr.
Andrade. This certainly constituted a “fair summary” and was sufficient
under § 74.351. See Palacios, 46 S.W.3d at 880.
C. Plaintiffs’ expert reports causally link Harlingen Medical
Center’s breach of the standard of care to Mr. Andrade’s death.
With the exception of a few related issues, Harlingen Medical Center’s
appeal only challenges Dr. Adams’ and Dr. DeBehnke’s reports regarding
causation. However, because Plaintiffs’ reports meet the minimum
requirements for causation under Chapter 74, the trial court did not abuse
its discretion in denying Harlingen Medical Center’s motions to dismiss.
Section 74.351 requires experts to provide a “fair summary of the
expert’s opinions” regarding “the causal relationship between [the failure to
meet the applicable standards of care] and the injury, harm, or damages
claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). Generally, “[a] causal
28
relationship is established by proof that the negligent act or omission
constituted a substantial factor in bringing about the harm and absent the
act or omissions, the harm would not have occurred.” Cornejo, 446 S.W.3d at
123 (citing Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245,
249 (Tex. App.—San Antonio 2004, no pet.)). In other words, Plaintiffs “must
present evidence ‘that it is more likely than not that the ultimate harm or
condition resulted from such negligence.’” Patterson v. Ortiz, 412 S.W.3d 833,
836 (Tex. App.—Dallas 2013, no pet.) (quoting Jelinek v. Casas, 328 S.W.3d
526, 532-33 (Tex. 2010)) (emphasis added).
While a plaintiff’s expert reports must establish a causal connection
beyond mere conjecture or possibility, a “‘fair summary’ is something less
than all of the evidence necessary to establish causation at trial.” Hutchinson,
144 S.W.3d at 617-18 (citing Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d
703, 706 (Tex. 1970); Wright, 79 S.W.3d at 52). Furthermore,
[a]n expert report need not marshal all of the plaintiff’s proof
necessary to establish causation at trial, and it need not anticipate
or rebut all possible defensive theories that may ultimately be
presented to the trial court. The expert must simply provide some
basis that a defendant’s act or omission proximately caused injury.
And the expert must explain the basis of his statements and link
his conclusions to the facts.
Cornejo, 446 S.W.3d at 123 (emphasis added) (citing Wright, 79 S.W.3d at 52-
29
53; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas
2013, no pet.)).
Plaintiffs provided reports from Dr. Adams and Dr. DeBehnke to
demonstrate how Harlingen Medical Center’s negligence contributed to
cause Mr. Andrade’s death. Harlingen Medical Center argues that Plaintiffs’
reports were insufficient on causation because they “were impermissibly
conclusory and speculative.” Appellant’s Br. at x, 11. However, Plaintiffs’
expert reports collectively provide a “fair summary” of the causal
connection between Harlingen Medical Center’s negligence and Mr.
Andrade’s death and, therefore, fulfil the requirements of § 74.351. 9
9 In a separate issue, Harlingen Medical Center also argues that Mr. Cross and Mr. Felty
were disqualified from opining on causation because neither of them are physicians.
Appellant’s Br. at 19-20. The Court should overrule this issue. First, neither Cross nor
Felty needed to provide the causation opinion required by § 74.351 because causation
was covered by Dr. Adams and Dr. DeBehnke, who are both qualified physicians. See
Abilene Reg’l Med. Ctr. v. Allen, 387 S.W.3d 914, 918 (Tex. App.—Eastland 2012, pet.
denied) (citing Tex. Civ. Prac. & Rem. Code § 74.351(i)) (“a plaintiff may serve multiple
reports by separate experts regarding different defendants, different claims, and different
issues, as long as the reports, read together, provide a fair summary of the standard of
care, breach, and causation.”). Furthermore, Mr. Cross did not offer any opinion on
causation. And while the last sentence of Mr. Felty’s report states, “If the nurses had
complied with the standard of care, in reasonable probability, Andrade would have been
placed and would have received the surgery he needed,” the trial court acted within its
discretion to disregard that sentence and deny the Harlingen Medical Center’s Second
Motion to Dismiss, because Plaintiffs’ collective reports otherwise satisfied the
requirements of § 74.351. (2 CR 247-48, 367). Additionally, to the extent that Mr. Felty’s
attempted causation opinion is merely an opinion relating to the administrative functions
of Harlingen Medical Center and case management, rather than a medical diagnosis or
medical cause of death, Mr. Felty is arguably qualified to offer such an opinion.
30
i. Dr. Adams and Dr. DeBehnke sufficiently established
causation.
Dr. Adams and Dr. DeBehnke each linked the breaches of the standard
of care committed by Harlingen Medical Center’s case management team to
Mr. Andrade’s death. (1 CR 242-43, 265-66).
In his report, Dr. Adams stated that Mr. Andrade’s dissection was
treatable through emergency cardiovascular surgery and that Mr. Andrade’s
aortic rupture ultimately occurred due to a lack of surgical intervention and
timely care. (1 CR 243). Further, Dr. Adams specifically explained that
patients with conditions and comorbidities like Mr. Andrade who receive
immediate medical treatment with a beta blockade while undergoing
preparation for cardiovascular surgery to repair a dissection have superior
outcomes, and that Mr. Andrade’s dissection, in reasonable medical
probability, would have likely been halted and repaired. (1 CR 242). Dr.
Adams stated that delays in the necessary treatment for this type of disease
process, however, can result in death. (1 CR 241). Similarly, Dr. DeBehnke
stated that an ascending aortic dissection is a medical emergency and that
the consequence for failing to immediately treat the condition is ultimately
death. (1 CR 265). Time was of the essence and Harlingen Medical Center
31
and its staff failed to ensure an emergent transfer by not requiring a
physician-to-physician call or a documented consult of Andrade’s condition.
(1 CR 242). Dr. Adams further explained that transfer communication for
this type of disease process should be physician-to-physician between the
sending and receiving hospitals and should never be left solely to case
management personnel. (1 CR 243).
Dr. Adams then stated that “Harlingen Medical Center and its staff’s
delay and failure to provide and arrange for providing immediate surgery
within the capabilities of the hospital and medical staff, arranging for an
emergent and proper transfer of Mr. Andrade to a tertiary center as ordered
by physicians as outlined above and in a timely manner resulted in
progression of the dissection, with the known complication of rupture and
death.” (1 CR 242). The failures of the case management team to provide and
arrange for an emergent and proper transfer as ordered by physicians
resulted in the progression of Mr. Andrade’s aortic dissection and ultimate
death. Id. Basing his opinions on a reasonable medical probability, Dr.
Adams ultimately opined:
[I]f the case management staff had not breached the applicable
standard of care on December 19th, 20th, 21st, and 22nd, Mr.
Andrade’s condition would not have led to a subsequent
32
ruptured aorta and death. It is my further opinion that their
negligence in delay of diagnosis and substandard care as
outlined above was a proximate cause of his progressive
deterioration, free aortic rupture and death.
(1 CR 242).
Dr. DeBehnke’s report echoed Dr. Adams’ report, stating that
Harlingen Medical Center’s case management team denied Mr. Andrade the
opportunity to receive emergency surgical treatment at another facility in a
timely manner by failing to complete two separate transfer orders through
the various breaches in the standard of care. (1 CR 265). The negligence of
the case management team contributed to cause Mr. Andrade’s death
because these acts and omissions in breach of the standard of care resulted
in a complete failure of treatment for three days, at the end of which Mr.
Andrade’s aorta ruptured and he died. Id. Dr. DeBehnke stated that
Harlingen Medical Center’s delays adversely affected Mr. Andrade’s
condition and were a proximate cause of a downward clinical spiral in his
condition, which resulted in his death. (1 CR 265-66).
Therefore, Dr. Adams and Dr. DeBehnke provided a “fair summary”
of the causal connection between Harlingen Medical Center’s breach of the
standard of care in failing to transfer Mr. Andrade and Mr. Andrade’s death
33
due to lack of surgical intervention. See Potts, 392 S.W.3d at 630; Palacios, 46
S.W.3d at 880. Collectively, their reports (1) inform Harlingen Medical
Center of the specific conduct that Plaintiffs have called into question, and
(2) provide a basis for the trial court to conclude that the claims have merit.
Potts, 392 S.W.3d at 630. The requirements of § 74.351 are plainly met for at
least one theory against Harlingen Medical Center. Accordingly, the trial
court did not abuse its discretion in denying Harlingen Medical Center’s
motions to dismiss. See Potts, 392 S.W.3d at 631.
ii. Harlingen Medical Center incorrectly argues that
Plaintiffs must conclusively establish causation.
Harlingen Medical Center’s real problem with the Andrades’ expert
reports is that they do not identify a specific hospital that would have
accepted Mr. Andrade. See Appellant’s Br. at 11-12. According to Harlingen
Medical Center, “Appellees’ case depends on an adequate hospital and a
qualified surgeon being willing to accept Andrade as a patient despite his
lack of financial resources.” Id. at 12. Thus, according to Harlingen Medical
Center, “[t]o prove causation, [Plaintiffs] must identify such a hospital with
such a surgeon, and explain how compliance by HMC with the standard of
care for transfers would have gotten Andrade into such a hospital.” Id. at 8.
34
However, this argument is incorrect and improperly places a much higher
burden on Plaintiffs than Chapter 74 requires.
1. Chapter 74 does not require Plaintiffs to
conclusively establish causation.
Section 74.351 does not require Plaintiffs to conclusively establish
causation, as Harlingen Medical Center’s argument suggests—nor do any of
the cases cited in Harlingen Medical Center’s brief support this proposition.
At this stage in litigation, the law does not require Plaintiffs to marshal all of
their proof or to provide all of the evidence that would be necessary to
establish causation at trial, so it certainly does not require Plaintiffs to
conclusively establish causation. See Lenger, 455 S.W.2d at 706; Wright, 79
S.W.3d at 52; Palacios, 46 S.W.3d at 879; Hutchinson, 144 S.W.3d at 617-18.
Even at trial, plaintiffs only must present evidence that it is “more likely than
not” that the ultimate harm resulted from the defendant’s negligence.10
Here, Plaintiffs need only provide a “fair summary” of causation, and
the reports of Drs. Adams and DeBehnke did just that. See Tex. Civ. Prac. &
10See Patterson, 412 S.W.3d at 836 (“Causation is established in medical malpractice cases
through evidence of a ‘reasonable medical probability’ or ‘reasonable probability’ that
the injuries were caused by the defendant’s negligence; in other words, the plaintiff must
present evidence that it is more likely than not that the ultimate harm or condition
resulted from such negligence.”) (internal citations omitted).
35
Rem. Code § 74.351 (r)(6). Furthermore, Plaintiffs’ experts make clear that it
was not merely Harlingen Medical Center’s failure to continually work to
effectuate the transfer that led to Mr. Andrade’s death. Plaintiffs do not
simply argue that if Harlingen Medical Center had called more facilities, Mr.
Andrade would have lived. Rather, Plaintiffs’ experts also note that of the
handful of other hospitals the case management team even bothered to
contact, the information that the team was communicating about Mr.
Andrade and his level of need for a transfer was incorrect and missing critical
pieces. Thus, not only did case management only contact four hospitals and
cease all transfer efforts at 4:00-6:00 pm each day, but even when they were
trying to transfer Andrade, they failed to provide potential facilities with the
right information in the proper format.
Harlingen Medical Center argues that it could not find any place that
would accept Mr. Andrade and that Plaintiffs’ claim must fail absent
evidence of a specific hospital that would have taken him. However, while
Plaintiffs’ experts do not identify a specific hospital by name, they state that
had Harlingen Medical Center provided potential accepting facilities with
the correct diagnosis, the correct information about Mr. Andrade’s
condition, and the proper physician-to-physician communication, the other
36
facilities would have known that this was an emergency transfer situation—
not a non-emergent situation or a situation where Harlingen Medical Center
wanted to transfer Mr. Andrade out simply because he was unfunded.
Plaintiffs’ experts say this was crucial information and would have made a
difference.
Additionally, had the case management team communicated with Mr.
Andrade’s physicians regarding the difficulties they were encountering in
transferring him, those physicians could have assisted in the search or
further adjusted Mr. Andrade’s care plan. Instead, absent proper
communication from the case management team, it appears that the
physicians believed that a successful transfer was pending. Further, had the
case management nurses instituted the chain of command when Mr.
Andrade’s needs were not being met, other hospital administrators such as
Harlingen Medical Center’s CEO, Chief of Medical Staff, or Chief of
Cardiothoracic Surgery could have stepped in and assisted.
In any event, Plaintiffs were not required to prove what specific
hospital would have accepted Mr. Andrade, how he would have paid, or
exactly how he would have gotten there. Rather, Plaintiffs were only
required to provide Harlingen Medical Center and the trial court with some
37
basis that Harlingen Medical Center’s acts or omissions proximately caused
Plaintiffs’ injuries, which they did. See Cornejo, 446 S.W.3d at 123; Wright, 79
S.W.3d at 52-53; Fortner, 399 S.W.3d at 383. As discovery is conducted, new
information regarding the specific hospitals that would have been available
to accept Mr. Andrade may be learned, however, the question here is
whether Plaintiffs’ expert reports represent a “good faith effort to comply
with the statutory requirements”—nothing more. See Schrapps v. Lam Pham,
No. 09-12-00080-CV, 2012 WL 4017768, at *4 (Tex. App.—Beaumont Sept. 13,
2012, pet. denied) (mem. op.) (“As discovery is conducted, new information
regarding the perforation, and when it occurred, may be learned. The
question at this stage is not one of summary judgment, but whether the
report represents a good faith effort to comply with the statutory
requirements.”).
2. Chapter 74 does not require Plaintiffs to respond to
or negate Harlingen Medical Center’s potential
defenses.
By arguing that Plaintiffs can only survive a motion to dismiss for
insufficient expert reports by proving that a specific hospital would have
accepted Andrade, Harlingen Medical Center attempts to redefine Plaintiffs’
burden under Chapter 74 to include an extra requirement of anticipating and
38
rebutting all possible defensive theories that may ultimately be presented to
the trial court.
Harlingen Medical Center’s argument focuses entirely on the
availability (or unavailability) of third party hospitals and essentially boils
down to this: even if Harlingen Medical Center had done everything
required by the standard of care, Mr. Andrade probably still would have
died because no hospital would have accepted him. In other words,
Harlingen Medical Center blames Mr. Andrade’s death on the potential
unavailability of a third party hospital willing to accept transfer. This is a
new and independent cause argument. 11 The existence of a new and
independent cause is an inferential rebuttal defense, which operates to rebut
the element of proximate cause of a plaintiff’s case.12 Defendants raise an
inferential rebuttal defense any time they “blame an occurrence on someone
11 “A new and independent cause of an occurrence is the act or omission of a separate
and independent agent, not reasonably foreseeable, that destroys the causal connection,
if any, between the act or omission inquired about and the occurrence in question.”
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).
12 See, e.g., Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 430 (Tex. 2005) (“An inferential
rebuttal defense operates to rebut an essential element of the plaintiff’s case by proof of
other facts. For example, the defendants in this case contended at trial that the fatal auto
accident in issue was not caused by their negligence, but rather by the presence of cattle
on the roadway or by the conduct of the cattle’s owner who allowed them to be there.”);
see also Thota v. Young, 366 S.W.3d 678, 692-93 (Tex. 2012).
39
or something other than themselves.” Dillard v. Tex. Elec. Co-op., 157 S.W.3d
429, 432 (Tex. 2005). But Chapter 74 does not require Plaintiffs to respond to
or negate inferential rebuttal defenses in their expert reports.
First, requiring a court to evaluate inferential rebuttal defenses during
the preliminary expert report stage would violate the “four corners” rule. A
trial court is required to evaluate a health care liability plaintiff’s expert
reports based only on the “four corners” of the document. Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). If the trial court is able to determine the basis of the plaintiff’s
complaint from the four corners of the report, it is adequate under Chapter
74. See In re Stacy K. Boone, 223 S.W.3d 398, 406 (Tex. App.—Amarillo 2006,
orig. proceeding) (Noting that “[w]hile [defendants] may disagree with [an
expert’s] opinions,” a report that contains a fair summary of the expert’s
opinions is sufficient under Chapter 74). Plaintiffs’ expert reports provide a
fair summary of the experts’ opinions that had Harlingen Medical Center
complied with the standard of care, more likely than not Mr. Andrade would
have been transferred and would have received the emergency treatment
necessary for him to survive.
More importantly, Chapter 74 does not require health care liability
40
plaintiffs to “anticipate or rebut all possible defensive theories that may
ultimately be presented to the trial court.” Cornejo, 446 S.W.3d at 123; see also
Fortner, 399 S.W.3d at 383. Nor does it require plaintiffs to exclude all other
possible causes of their injuries. See Baylor Med. Ctr. at Waxahachie, Baylor
Health Care Sys. v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no
pet.) (“Nothing in section 74.351 suggests the preliminary report is required
to rule out every possible cause of the injury, harm, or damages claimed,
especially given that section 74.351(s) limits discovery before a medical
expert’s report is filed.”). Where an expert report provides a fair summary
of the expert’s opinions, informs the defendant of the specific conduct the
plaintiff questions, and provides a basis for the trial court to conclude that
the plaintiff’s claims have merit, it is adequate, whether or not it addresses
every causation issue that a defendant may raise in a challenge. See, e.g.,
Whitfield v. Henson, 385 S.W.3d 708 (Tex. App.—Dallas 2012, no pet).
3. Case law cited by Harlingen Medical Center does
not support its claim that Plaintiffs must prove that
a specific hospital would have accepted Mr.
Andrade.
Harlingen Medical Center cites several cases that it claims support the
41
argument that Plaintiffs’ experts were deficient. 13 However, each of those
cases are distinguishable from the facts of this case—and none of them state
specifically that in negligent failure to transfer cases a plaintiff must identify
a specific hospital or doctor who would have accepted the plaintiff, or even
remotely require the level of proof that Harlingen Medical Center demands
here.
Estorque v. Schafer is a failure to consult case. In Estorque, the expert
stated that the treating physicians should have obtained a urological
consultation, a gynecological consultation, and/or referrals in order to
obtain definitive care and treatment of the patient’s ureteral obstruction and
ovarian mass. Estorque, 302 S.W.3d at 28. Then, without any further
explanation, the expert concluded that the treating physicians’ “‘failure to
practice according to acceptable standards, more likely than not and to a
reasonable degree of medical probability, resulted in loss of function of [the
patient]’s kidney’ and ‘resulted in needless pain and suffering to [the
patient].’” Id. The court held that the report was insufficient because it
13See Appellant’s Br. at 16-19 (citing Estorque v. Schafer, 302 S.W.3d 19 (Tex. App.—Fort
Worth 2009, no pet.); Jones v. King, 255 S.W.3d 156 (Tex. App.—San Antonio 2008, pet.
denied); Tenet Hosp. Ltd. v. Love, 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.);
and Schrapps v. Lam Pham, No. 09-12-00080-CV, 2012 WL 4017768).
42
“leaves gaps by not explaining how or why the physicians’ failure to consult
a urologist or gynecologist caused worsening or progression of [the
patient]’s listed conditions.” Id.
Notably, however, the court did not state that the report was
insufficient because it failed to name the specific doctors who could have
and would have performed the necessary urological and gynecological
consults. If Harlingen Medical Center is correct that the Andrades’ expert
reports were required to identify a specific hospital that would have
accepted Mr. Andrade, then that same rule would require a plaintiff in any
failure to consult case like Estorque to conclusively establish that a particular
specialist capable and willing to perform the necessary consult would have
been available and able to get to the patient on that particular date. No Texas
cases require such evidence from a health care liability plaintiff at the expert
report stage—if ever.
Rather, the Estorque court merely held that the report failed to explain
fully how the physicians’ inaction caused the plaintiff’s injuries. Id. at 29.
However, Plaintiffs’ reports do not suffer from this defect here, since Doctors
Adams and DeBehnke sufficiently explained how the case management
team’s inaction caused Mr. Andrade’s death.
43
Doctors Adams and DeBehnke each identified the specific treatment
for a Type 1 ascending aortic dissection that Mr. Andrade needed to avoid
the known consequences of rupture and death.14 Since the physicians at
Harlingen Medical Center were not going to provide that treatment,
Andrade needed to be transferred. Harlingen Medical Center tried, but
failed, and Mr. Felty’s report details the standard of care required of
Harlingen Medical Center once a transfer order is placed and how the its
staff woefully failed to comply with that standard.
In Jones v. King, the expert report stated that a delay in diagnosing the
plaintiff’s meningitis for 48 hours caused it to become much worse, resulting
in increased pain and suffering of the plaintiff. Jones, 255 S.W.3d at 159. The
San Antonio Court of Appeals held that the report “wholly fails to explain
how these alleged breaches caused the injuries alleged . . . .” Id. The expert
failed “to link any delay in diagnosis to any additional pain and suffering or
exacerbation of the meningitis than what would have occurred in the face of
an earlier diagnosis.” Id. at 159-60. Essentially, the expert “[did] not attempt
14 “Those patients, like Mr. Andrade and his comorbidities, who receive immediate
medical treatment with beta blockade while undergoing timely preparation for
cardiovascular surgical intervention have superior and better outcomes as this dissection
in reasonable medical probability, will more likely than not, be halted and repaired.” (1
CR 242).
44
to explain how these results would not have occurred if the diagnosis of
meningitis had occurred 48 hours earlier,” nor did the expert offer any
“medical explanation about whether earlier treatment would have been
effective in shortening the duration of the meningitis, precluding additional
pain and suffering, or preventing other alleged injuries and damages.” Id.
(emphasis added).
Harlingen Medical Center attempts to liken the facts of Jones to this
case, arguing that “[i]n our case, plaintiffs’ experts say Andrade needed a
transfer and criticize HMC’s efforts to accomplish the transfer, but they do
not say how better efforts would have resulted in a successful transfer.”
Appellant’s Br. at 18. However, Plaintiffs’ experts do explain what better
efforts were required, that more likely than not those efforts would have
resulted in a successful transfer, and they provide a medical explanation that
without transfer, Andrade was deprived of the emergency surgery that more
likely than not would have saved him.
Furthermore, Plaintiffs’ reports are nothing like the overbroad and
conclusory report in Tenet Hospitals. There, “[t]he only specific breach that
[the expert] mentioned in support of causation against the hospital claimed
that if [the hospital] ‘had a pulmonologist or critical care specialist on call
45
and available to see and treat this patient or had transferred this patient
before her condition worsened, [the patient] would more likely than not be
alive today,’ . . . .” Tenet Hosp. Ltd., 347 S.W.3d at 755. The court said that
“such a broad statement does not set out specifically the causal relationship
between the hospital’s conduct and [the patient]’s death. [The expert]
provided no analysis of how [the hospital] should have made a physician
available for a consult with other physicians, how either of those consults
would have saved [the patient]’s life, or how the hospital could have
effectuated the transfer separate and apart from Dr. Pallares.” Id. In short, by
opining, inter alia, that if the plaintiff had been transferred, “[she] would not
have died, [the expert] simply expressed an inference without stating the
underlying facts upon which that inference was based. Thus, the statement
is conclusory. It is without any medical explanation about whether a consult
or transfer would have resulted in care and treatment, or a different
outcome.” Id.
Here, Plaintiffs’ experts do not offer a bare assertion that “had
Andrade been transferred, he would have lived” or “had Harlingen Medical
Center tried harder he would have lived.” Rather, the reports collectively
explained how the hospital should have gone about transferring Andrade,
46
and how its failure to follow those standards directly led to his death.
Finally, Harlingen Medical Center argues that the expert report in
Schrapps v. Pham “demonstrates what a sufficient expert report in a transfer
case looks like.” Appellant’s Br. at 18. Harlingen Medical Center says that
Schrapps has the crucial link that is missing in our case: the expert in Schrapps
identified a specific hospital that would accept the transfer. Id. (citing
Schrapps, 2012 WL 4017768, at *6-7). However, Harlingen Medical Center
fails to explain that the facts in Schrapps are distinguishable from the facts
here. Namely, Schrapps is a case where, unlike here, the plaintiff was
successfully transferred to an accepting hospital, but the transfer was simply
too late and the patient died anyway. Schrapps, 2012 WL 4017768, at *1. Thus,
in Schrapps there was no issue as to whether any hospital would have
accepted the plaintiff because a hospital ultimately did. Here, Mr. Andrade
died before Harlingen Medical Center could transfer him anywhere.
Harlingen Medical Center knew he needed to be transferred, but failed to do
what it needed to do to transfer him.
Plaintiffs’ experts provided a “fair summary” of the causal links
between the Hospital’s breaches of the relevant standards of care and Mr.
Andrade’s death. The experts provided opinions on the causes of Mr.
47
Andrade’s death and sufficiently linked their conclusions to the facts.
Accordingly, the trial court did not abuse its discretion in denying Harlingen
Medical Center’s motions to dismiss.
IV. The Court need not address Harlingen Medical Center’s argument
that it cannot be blamed for Dr. Lopez’ decision not to perform Mr.
Andrade’s surgery.
In its last issue, but again without ever arguing that the trial court
abused its discretion, Harlingen Medical Center argues that it cannot be
blamed for Dr. Lopez’s decision not to perform surgery on Mr. Andrade. See
Appellant’s Br. at xi, 20. According to Harlingen Medical Center, Plaintiffs’
experts “suggest HMC was negligent for not seeing to it that surgery was
performed on Andrade at HMC.” Id. at 20. Harlingen Medical Center claims
that Plaintiffs’ experts failed to show (1) how the standard of care could
require Harlingen Medical Center to provide surgery, when physicians at
private hospitals in Texas are independent contractors and not under the
control of the hospital; and (2) that Harlingen Medical Center and its doctors
were capable of providing the surgery Andrade needed. Id. at 20-22. The
Court should overrule this issue.
First, this Court need not address this issue. Plaintiffs provided expert
reports that demonstrate at least one viable theory against Harlingen
48
Medical Center, which fully satisfies the requirements of § 74.351. In Certified
EMS, Inc. v. Potts, the Texas Supreme Court held that “[i]f a health care
liability claim contains at least one viable theory, as evidenced by an expert
report meeting the statutory requirements, the claim cannot be frivolous.”
Potts, 392 S.W.3d at 631. Once a health care liability claimant clears this “first
hurdle,” she has a “right to have the entire case move forward.” Id. Here,
Plaintiffs’ expert reports demonstrate a viable theory of liability against
Harlingen Medical Center for its negligent failure to transfer Mr. Andrade
to another facility. Therefore, Plaintiffs have the right to have their case move
forward.
Second, Harlingen Medical Center mischaracterizes the reports of
Plaintiffs’ experts with regard to this issue. Neither Plaintiffs, nor their
experts, claim that Harlingen Medical Center should have forced Dr. Lopez
or any other doctor to perform surgery on Mr. Andrade. Rather, Plaintiffs’
experts opine that the standard of care required that Harlingen Medical
Center have physicians on staff capable of performing the surgery, but if
those physicians could not or would not, then Harlingen Medical Center was
required to transfer Mr. Andrade to another facility that would provide the
treatment he needed to survive. Indeed, Dr. DeBehnke’s report states that
49
“[a] reasonable and prudent hospital that advertises its cardiothoracic
surgical services and has on staff a qualified cardiothoracic surgeon is
required to provide definitive surgical care to a patient such as Mr. Andrade
unless it is deemed beyond the capabilities of the organization and/or the
staff. Furthermore, the reasonable and prudent hospital is required through
its medical staff agents to provide appropriate and expedient transfer to
another facility when unable to perform the services.” (1 CR 263).
Dr. DeBehnke’s opinion is underscored by the fact that Harlingen
Medical Center holds itself out to the community as having expertise in
cardiac care and cardiothoracic surgery. (1 CR 262). While it may be true, as
Harlingen Medical Center says, that “each patient is different and presents
his own set of complications and comorbidities,” a hospital that holds itself
out to the public for its cardiothoracic surgical services should have
physicians on staff capable of performing those services, and in the event
that its physicians are not capable of performing an emergency surgery,
should arrange for an emergent and proper transfer of the patient. (See 1 CR
242, 263).
As Harlingen Medical Center states in its brief, “[b]oth experts
acknowledge that cardiovascular surgeon Dr. Ruben Lopez was consulted,
50
and Dr. Lopez decided not to take Andrade into surgery himself but rather
that Andrade should be transferred.” Appellant’s Br. at 20. Therefore, once
the order of transfer was made, the standard of care required Harlingen
Medical Center’s case management team to arrange for emergent transfer of
Mr. Andrade to a medical facility capable of performing the aortic surgery
he required. Harlingen Medical Center has not shown that the trial court
abused its discretion in any way.
V. If the Court finds that Plaintiffs’ initial reports are insufficient
regarding causation, Plaintiffs are entitled to a 30-day extension to
cure that deficiency.
Finally, Harlingen Medical Center argues that if this Court finds that
Plaintiffs’ expert reports are insufficient, “the proper remedy is to remand
with instructions to dismiss the claims against HMC with prejudice to
refiling.” Appellant’s Br. at 23. Harlingen Medical Center claims that
Plaintiffs would not be entitled to another 30-day extension to cure because
they have already had one extension. Id. According to Harlingen Medical
Center, this is because a plaintiff who was granted an extension “was on
notice of all potential deficiencies in the expert report and acted at her own risk
in failing to remedy those alleged deficiencies.” Id. (emphasis added).
Harlingen Medical Center is incorrect. The trial court granted Plaintiffs
51
the 30-day extension for the express purpose of curing deficiencies
concerning qualifications of Plaintiffs’ experts regarding standard of care
and breach, but otherwise found the reports sufficient regarding causation.15
Therefore, Plaintiffs have never been on notice of any deficiencies in their
opinions concerning causation.
Furthermore, “[t]he Texas Supreme Court has held that when the court
of appeals reverses a trial court’s determination that an expert report is
sufficient, the appropriate remedy is for the court of appeals to remand to
the trial court to consider whether to grant a thirty-day extension.”
Renaissance Surgical Ctrs.-S. Tex., L.L.P. v. Jimenez, No. 13-07-121-CV, 2008 WL
3971096, at *11 (Tex. App.—Corpus Christi Aug. 28, 2008, no pet.) (mem. op.)
(citing Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)).
Therefore, if this Court determines that the trial court abused its
discretion in finding Plaintiffs’ initial reports sufficient on causation, the
Court should remand to the trial court with instructions to determine
whether to grant Plaintiffs a 30-day extension to remedy that specific
15See 1 CR 300 (“Plaintiffs are hereby granted a 30-day extension from the date of this
order to serve on HMC a supplemental expert report from an expert qualified to render
an opinion concerning the applicable standard of care for Harlingen Medical Center and
whether that standard of care was breached. Otherwise, Harlingen Medical Center’s
Motion to Dismiss for Insufficient Expert Reports is DENIED.”).
52
deficiency. Because Plaintiffs have never been on notice of any deficiencies
regarding causation, and the trial court previously found that Plaintiffs’
reports were sufficient regarding causation, Plaintiffs would be entitled to
an additional 30-day extension to cure. See Tex. Civ. Prac. & Rem. Code §
74.351(c); Renaissance Surgical, No. 13-07-121-CV, 2008 WL 3971096, at *11.
VI. Conclusion
The purpose of Chapter 74 of the Texas Civil Practice and Remedies
Code is to “deter baseless claims, not block earnest ones.” Potts, 392 S.W.3d
at 631. Accordingly, to meet the requirements of Chapter 74 and survive a
motion to dismiss, a health care liability plaintiff need only make a “good
faith effort” to provide a fair summary of the applicable standards of care,
the manner in which the provider failed to meet the standards, and the
causal relationship between that failure and the harm claimed.
Harlingen Medical Center seeks to require Plaintiffs to conclusively
establish causation and to anticipate and rebut all possible defensive
theories—a burden that is never required at this stage of litigation. However,
Plaintiffs have more than made a good faith effort to comply with Chapter
74. Plaintiffs provided reports from qualified experts that collectively (1) put
Harlingen Medical Center on notice of the specific conduct complained of
53
and (2) provided the trial court a basis on which to conclude that the claims
have merit. See Otero, 319 S.W.3d at 199.
Accordingly, the trial court did not abuse its discretion in denying
Harlingen Medical Center’s motions to dismiss. Plaintiffs respectfully
request that this Court affirm the trial court’s rulings. However, if this Court
determines that Plaintiffs’ reports are insufficient regarding causation,
Plaintiffs request that this Court remand this case to the trial court with
instructions to determine whether a second 30-day extension should be
granted to cure the reports of that specific defect. Plaintiffs further request
any other relief to which they may be entitled under law or equity.
54
Respectfully submitted,
By: /s/ Morgan A. McPheeters
F. Leighton Durham, III
State Bar No. 24012569
ldurham@texasappeals.com
Kirk L. Pittard
State Bar No. 24010313
kpittard@texasappeals.com
Morgan A. McPheeters
State Bar No. 24081279
mmcpheeters@texasappeals.com
KELLY, DURHAM & PITTARD, LLP
PO Box 224626
Dallas, TX 75222
(214) 946-8000 (Telephone)
(214) 946-8433 (Facsimile)
COUNSEL FOR APPELLEES
AND
Laura E. Gutierrez Tamez
State Bar No. 00793869
lrtamez@herreralaw.com
Jorge A. Herrera
State Bar No. 24044242
jherrera@herreralaw.com
THE HERRERA LAW FIRM, INC.
111 Soledad Street, Suite I 900
San Antonio, Texas 78205
(210) 224-1054 (Telephone)
(210) 228-0887 (Facsimile)
CO-COUNSEL FOR APPELLEES
55
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Texas Rule
of Appellate Procedure 9.4(e) because it has been prepared in a conventional
typeface no smaller than 14-point for text and 12-point for footnotes. This
document also complies with the word-count limitations of Rule 9.4(i)(2)(B)
because it contains 10,930 words, excluding any parts exempted by Rule
9.4(i)(1).
/s/ Morgan A. McPheeters
MORGAN A. MCPHEETERS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellees’
Brief was served on all counsel of record in accordance with the Texas Rules
of Civil Procedure.
Mr. Scott T. Clark
sclark@adamsgraham.com
Mr. Roger W. Hughes
rhughes@adamsgraham.com
ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429
/s/ Morgan A. McPheeters
MORGAN A. MCPHEETERS
56