Nikhilkumar C. Raval v. Annie Dorsey, Individually and as Next Friend of Ezra Dorsey

In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-13-00021-CV
___________________
NIKHILKUMAR C. RAVAL, Appellant
V.
ANNIE DORSEY, INDIVIDUALLY AND AS NEXT FRIEND OF EZRA
DORSEY, Appellee
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-193,144
__________________________________________________________________
MEMORANDUM OPINION
This is an accelerated appeal from the trial court’s order declining to dismiss
a health care liability claim pursuant to section 74.351 of the Texas Civil Practice
and Remedies Code. 1 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West
2011). We reverse the trial court’s order.
1
Dorsey contends we lack jurisdiction over this appeal because Raval’s
objections to the expert reports did not explicitly request dismissal of the case.
Raval concluded his objections by citing section 74.351(b) of the Texas Civil
1
BACKGROUND
Appellee Annie Dorsey, individually and as next friend of her minor child
Ezra Dorsey, sued appellant Dr. Nikhilkumar C. Raval and other defendants for
alleged medical malpractice. 2 Dorsey alleged that on August 14, 2010, Ezra and
her twin brother were delivered by emergency cesarean section at Christus
Hospital—St. Mary (“Christus”) at thirty-one weeks of gestation, and Ezra was
then admitted to the neonatal intensive care unit (“NICU”) at Christus “under the
care, custody, control[,] and supervision of Dr. Raval for specialized medical
services related to her pre-term and prenatal problems.” According to Dorsey’s
petition, on September 13, 2010, Ezra suffered a skull fracture after she was
dropped onto the floor of the NICU by a registered nurse employed by Christus.
Dorsey’s petition alleged that Raval is the medical director of Christus’s NICU
Practice and Remedies Code and stating that because the reports failed to satisfy
the requirements of Chapter 74, he had not been served with an expert report, and
Raval’s prayer requested “such relief, both at law and in equity, to which he is
entitled.” Section 74.351(b) provides that upon motion, the trial court must dismiss
the claim if an expert report is not filed within the time required by section
74.351(a), and the trial court explicitly determined in its order that dismissal was
“not appropriate and is DENIED.” See Tex. Civ. Prac. & Rem. Code Ann. §§
51.014(a)(9) (West Supp. 2012), 74.351(a), (b) (West 2011). Because section
51.014(a)(9) authorizes an interlocutory appeal from an order denying relief under
section 74.351(b), this Court concludes that it has jurisdiction of this case. See id.
§§ 51.014(a)(9), 74.351(b).
2
The other defendants are not parties to this appeal.
2
and, as such, is liable for the nurse’s acts and omissions “to the extent that she was
the apparent and ostensible agent of Dr. Raval, and practicing under . . . Dr.
Raval’s apparent direction and auspices.” Dorsey asserted that Raval was negligent
by failing to (1) keep watch over Ezra while she was undergoing treatment in the
NICU; (2) properly secure Ezra against falling by using “devices or techniques[;]”
(3) properly instruct the registered nurse in the care and treatment of Ezra; and (4)
provide “adequate and safe facilities” at Christus’s NICU for Ezra’s care and
treatment.
Concurrently with the filing of her original petition, Dorsey served upon
Raval the affidavit and curriculum vitae of registered nurse Cheryl L. Rausch,
R.N.B.S.N. In her affidavit, Rausch averred as follows, in pertinent part:
6. Christus Hospital—St. Mary, and the doctors and nurses that were
responsible for taking care of baby Ezra Dorsey, failed to use [the]
standard of nursing care for baby Ezra Dorsey that reasonable and
prudent hospitals, doctors[,] and nurses of the same or similar level of
certification would have employed under the same or similar
circumstances.
7. Specifically, Christus Hospital—St. Mary (“Christus”), the doctors
and nurses that were responsible for taking care of baby Ezra Dorsey,
failed to use safe nursing care to prevent baby Ezra Dorsey from being
dropped on the floor and suffering a skull fracture, failed to keep
watch over baby Ezra Dorsey while she was undergoing nursing care
to prevent her from being dropped on the floor at Christus, failed to
properly secure baby Ezra Dorsey against falling during her nursing
care in NICU at Christus, failed to care and treat baby Ezra Dorsey in
a manner that would have prevented her from falling and suffering a
3
skull fracture at Christus, and failed to provide safe facilities in NICU
at Christus for the nursing care of baby Ezra Dorsey that would have
prevented baby Ezra Dorsey from being dropped on the floor at
Christus and suffering a skull fracture.
8. Christus, the doctors and nurses that were responsible for taking
care of baby Ezra Dorsey, who was a 31 week preemie should have
had safety as a first priority, but instead failed to exercise a Plan of
Care resulting in significant trauma when she was dropped on the
floor in NICU at Christus.
When Dorsey filed her first amended petition, she served upon Raval the
affidavit of neonatologist Dr. Urmila Chaudhry. In the affidavit, Chaudhry averred
as follows, in pertinent part:
6. Christus Hospital—St. Mary, the doctors and nurses that were
responsible for taking care of Baby Ezra Dorsey failed to use ordinary
care in providing treatment for Baby Ezra Dorsey that reasonable and
prudent hospitals, doctors and nurses of the same or similar level of
certification would have employed under the same or similar
circumstances.
7. Specifically, Christus Hospital—St. Mary (“Christus”), the doctors
and nurses that were responsible for taking care of Baby Ezra Dorsey
failed to use devices and techniques to prevent Baby Ezra Dorsey
from falling on the floor and suffering a skull fracture at Christus;
failed to keep watch over Baby Ezra Dorsey while she was
undergoing treatment to prevent her from falling on the floor at
Christus; failed to properly secure Baby Ezra Dorsey against falling
during her treatment in the neonatal intensive care unit (NICU) at
Christus; failed to care and treat Baby Ezra Dorsey in a manner that
would have prevented her from falling and suffering a skull fracture at
Christus; and failed to provide safe facilities in the NICU at Christus
for the care and treatment of Baby Ezra Dorsey that would have
prevented Baby Ezra Dorsey from falling on the floor at Christus and
suffering a skull fracture.
4
8. Christus, the doctors and nurses that were responsible for taking
care of Baby Ezra Dorsey, should have known that Baby Ezra Dorsey
was a premature newborn who would experience significant trauma if
she fell/was dropped on the floor in the NICU at Christus.
Raval filed objections to the reports of both Rausch and Chaudhry. In his
objections to Chaudhry’s report, Raval contended that the report (1) is “conclusory
and speculative on the issue of causation, and does not directly link actions or
omissions by Dr. Raval to the injuries suffered by the Plaintiffs;” (2) “fails to
adequately inform Dr. Raval about precisely what . . . standard of care was
required of Dr. Raval, how Dr. Raval breached the standard of care, and what Dr.
Raval should have done differently to meet the standard of care;” and (3) “is
conclusory and speculative on the issue of causation with respect to Dr. Raval and
does not directly link any alleged breach of the standard of care by Dr. Raval to
injuries suffered by the Plaintiffs[.]” With respect to Rausch’s report, Raval
objected that (1) the report opines on causation although Rausch is statutorily
prohibited from doing so; (2) the report fails to inform Raval about the required
standard of care, how Raval breached the standard of care, and what Raval should
have done differently to meet the standard of care; (3) Rausch is not qualified to
offer opinions on the standard of care “or alleged breaches thereof pertaining to the
type of care rendered to Ezra Dorsey in the Christus St. Mary NICU;” and (4)
5
Rausch is not qualified to offer opinions on the standard of care or alleged
breaches thereof, by a neonatologist.
After holding a hearing on Raval’s objections to the expert reports, the trial
court sent a letter ruling to the parties and also signed an order. The trial court
overruled the objections to Rausch’s report “because all objections as to the
sufficiency of Nurse Rausch’s expert report are waived[,]” and overruled the
objection to Chaudhry’s opinion as to medical causation. The trial court’s order
also stated as follows in the remainder of its order:
However, to the extent that the objection to causation addresses the
method by which Dr. Raval’s alleged deviation from the standard of
care operatively caused the incident the objection is sustained.
Nonetheless, inasmuch as all objections as to Nurse Rausch’s expert
report have been waived for purposes of the report, her expert report
standing alone, or in conjunction with the unobjectionable portions of
Dr. Chaudhry’s expert report would be considered sufficient.
Accordingly, dismissal of this case and any other relief is not
appropriate and is DENIED.
Raval then filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(9) (West Supp. 2012).
In his sole appellate issue, Raval contends that Dorsey did not produce an
expert report that met the requirements of section 74.351. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351. Specifically, Raval argues that Rausch is not “qualified
6
to provide expert testimony against a physician . . .[,]” and that Rausch’s report in
conjunction with Chaudhry’s report did not constitute an adequate expert report
under chapter 74.
STANDARD OF REVIEW AND PERTINENT LAW
We review a trial court’s decision regarding the adequacy of an expert report
under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001). “A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner without reference to any guiding rules
or principles.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A
trial court also abuses its discretion if it fails to analyze or apply the law correctly.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
A health care liability claimant must provide each defendant physician and
healthcare provider with an expert report no later than the 120th day after filing
suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The statute defines
“expert report” 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.
7
Id. § 74.351(r)(6). If a plaintiff furnishes the required report within the time
permitted, the defendant may file a motion challenging the adequacy of the report.
Id. § 74.351(l). Section 74.351(i) provides claimant may satisfy the requirements
of section 74.351
by serving reports of separate experts regarding different physicians
or health care providers or regarding different issues arising from the
conduct of a physician or health care provider, such as issues of
liability and causation. Nothing in this section shall be construed to
mean that a single expert must address all liability and causation
issues with respect to all physicians or health care providers or with
respect to both liability and causation issues for a physician or health
care provider.
Id. § 74.351(i).
The statute provides that the trial 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).” Id. § 74.351(l). When
determining whether the report represents a good-faith effort, the trial court’s
inquiry is limited to the four corners of the report. Wright, 79 S.W.3d at 53;
Palacios, 46 S.W.3d at 878. To constitute a good-faith effort, the report “must
discuss the standard of care, breach, and causation with sufficient specificity to
inform the defendant of the conduct the plaintiff has called into question and to
8
provide a basis for the trial court to conclude that the claims have merit.” Palacios,
46 S.W.3d at 875. The expert report must set forth the applicable standard of care
and explain the causal relationship between the defendant’s acts and the injury.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Doades v. Syed, 94 S.W.3d 664,
671 (Tex. App.—San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718,
722 (Tex. App.—Houston [14th Dist.] 2001, no pet.). In determining the adequacy
of an expert report, the trial court reviews the pleadings to determine the claims
alleged and whether the report addresses those claims. See Windsor v. Maxwell,
121 S.W.3d 42, 51 (Tex. App.—Fort Worth 2003, pet. denied); see also Querry v.
Sanders, No. 06-08-00099-CV, 2009 WL 1097904, at *6 (Tex. App.—Texarkana
Apr. 24, 2009, no pet.) (mem. op.).
When a plaintiff sues more than one defendant, the expert report must set
forth the standard of care applicable to each defendant and explain the causal
relationship between each defendant’s individual acts and the injury. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(a), (r)(6). An expert report need not marshal all
of the plaintiff’s proof; however, a report that omits any of the elements required
by the statute does not constitute a good-faith effort. Palacios, 46 S.W.3d at 878-
79. An expert “‘must explain the basis of his statements to link his conclusions to
9
the facts.’” Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999)). “When a party’s alleged health care liability is purely vicarious, a
report that adequately implicates the actions of that party’s agents or employees is
sufficient.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008)
(emphasis added); see also Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877,
879 (Tex. App.—Dallas 2006, no pet.); In re CHCA Conroe, L.P., No. 09-04-453
CV, 2004 WL 2671863, at *1 (Tex. App.—Beaumont Nov. 23, 2004, orig.
proceeding) (mem. op.).
APPLICATION OF THE LAW TO THE FACTS
In his objections to the expert reports, Raval contended that he was served
with the expert reports of both Rausch and Chaudhry on October 23, 2012, after
Dorsey had filed her first amended petition on October 15, 2012. However, as
previously discussed, Dorsey served Rausch’s expert report and curriculum vitae
upon Raval with the filing of her original petition on September 12, 2012. Raval
did not file his objections to Rausch’s report until November 2, 2012, when he also
filed objections to Chaudhry’s report. Section 74.351(a) provides that “[e]ach
defendant physician or health care provider whose conduct is implicated in a report
must file and serve any objection to the sufficiency of the report not later than the
21st day after the date it was served, failing which all objections are waived.” Tex.
10
Civ. Prac. & Rem. Code Ann. § 74.351(a). Because Raval failed to timely object to
Rausch’s report, the trial court correctly concluded that Raval had waived his
objections to Rausch’s report. See id. However, because Rausch, who is not a
physician, is statutorily prohibited from serving as an expert witness on the issue of
whether Raval departed from accepted standards of medical care, we examine
Rausch’s report together with that of Chaudhry. See id. §§ 74.351(i), (r)(6),
74.401(a) (West 2011) (“In a suit involving a health care liability claim against a
physician for injury to . . . a patient, a person may qualify as an expert witness on
the issue of whether the physician departed from accepted standards of medical
care only if the person is a physician . . . .”).
Rausch’s report stated that she is a registered professional nurse licensed to
practice in Texas, and that her “training and years of experience in the field of
nursing,” as well as her “reading and continuous nursing education” qualify her as
an expert regarding nursing standards of care. Rausch also averred in the affidavit
that she has “knowledge of the accepted standards of care for health care providers
for the diagnosis, care[,] and treatment of the injury and condition involved in the
claim . . . .” In addition, Rausch explained that she had evaluated medical records
from Christus and UTMB Health concerning Ezra, and that the records indicate
that Ezra sustained a skull fracture after falling from the arms of a registered nurse
11
at Christus, and that Ezra experienced “significant trauma[.]” According to Rausch,
the nurses responsible for caring for Ezra failed to use safe nursing care, failed to
keep watch over Ezra to prevent her from being dropped on the floor, failed to
secure Ezra, and failed to provide “safe facilities” in Christus’s NICU that would
have prevented Ezra from being dropped. Rausch averred that the nurses failed to
exercise a “Plan of Care” that would have made Ezra’s safety a priority.
Chaudhry’s report is similar to that of Rausch. Chaudhry explains that she is
a licensed physician specializing in neonatology, and that she is knowledgeable
and experienced with respect to the standards of care applicable to hospitals,
doctors, and nurses. Chaudhry’s report explained that she had reviewed records
from Christus and UTMB Health, and that the records reveal that Ezra was
transferred to UTMB “after a fall from the crib which resulted in a skull fracture.”
According to Chaudhry, a CT scan of Ezra’s head “revealed evidence of a linear
skull fracture along the right occipital and parietal bone.” Chaudhry opined that
Christus, the doctors, and the nurses in charge of Ezra’s care failed to use ordinary
care that prudent hospitals, doctors, and nurses would have used under the same or
similar circumstances. Specifically, Chaudhry averred that Christus, the doctors,
and the nurses failed to use devices and techniques to prevent Ezra from falling,
failed to keep watch over Ezra to prevent Ezra from falling, failed to properly
12
secure Ezra, failed to “care and treat” Ezra in a way that would have prevented her
from falling, and failed to provide safe facilities in the NICU at Christus.
Contrary to Raval’s assertions in his brief, the trial court did not find that
Chaudhry’s report was insufficient with respect to “proximate cause.” The trial
court’s order explicitly overruled Raval’s objection to Chaudhry’s report as to
medical causation, and found Chaudhry’s report deficient only “to the extent that
the objection to causation addresses the method by which Dr. Raval’s alleged
deviation from the standard of care operatively caused the incident [in question.]”
However, this failure is sufficient to require the trial court to sustain Raval’s
objection. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a). Neither report is
sufficiently specific enough as to the applicable standard of care and the alleged
breach thereof to justify requiring Raval to remain in the suit. Rausch is not a
physician, so the waiver of objections does not fill the gap in Chaudhry’s report.
Reviewing the expert reports together, we conclude that the reports do not
sufficiently point out the causation requirement as to Raval. The reports do not
adequately explain Raval’s required standard of care or the alleged breaching of
that standard. Accordingly, we sustain Raval’s sole issue and reverse the trial
court’s order. The cause is remanded to the trial court for further proceedings
consistent with this opinion.
13
REVERSED AND REMANDED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on April 24, 2013
Opinion Delivered May 23, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.
14