Opinion

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Oct 21, 2010
Status: Published
Cited by: 0 cases
Authority: More cited than 35.3%

“The trial court may not look beyond the report, therefore, in determining compliance with the statute.”

How later courts described this case

“The trial court may not look beyond the report, therefore, in determining compliance with the statute.”
“[T] the only information relevant to the inquiry is within the four corners of the document.”
“We have held that the only information relevant to whether a report represents a good-faith effort to comply with the statutory requirements is the report itself.”

Written by the judges who cited it.

The opinion

Opinion issued October 21, 2010.

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00270-CV

———————————

Doctors hospital, Doctors Hospital, 1997, L.P., individually

and D/B/A doctors Hospital and Tidwell Parkway Ventures, LLC, Individually and

D/B/A Doctors Hospital , and DENITRIA PRICE, Appellants

Santos Hernandez,

Individually and as Representative of the Estate of Cynthia Hernandez,

deceased, and as next friend of Josselyn Naomi Hernandez, a minor , Appellee

On Appeal from the 164th

District Court

Harris County, Texas

Trial Court Case No. 2009-50669

MEMORANDUM

OPINION

In this interlocutory appeal,

appellants, Doctors Hospital, Doctors Hospital, 1997, L.P., individually

and d/b/a Doctors Hospital, Tidwell Parkway Ventures, LLC, individually and d/b/a

Doctors Hospital (collectively, “Doctors Hospital”), and Denitria Price, challenge

the trial court’s order denying their motion to dismiss the heath care

liability claim of appellee, Santos Hernandez, individually and as

representative of the estate of Cynthia Hernandez, deceased, and as next friend

of Josselyn Naomi Hernandez, a minor . Doctors Hospital and Price contend the expert

report submitted by the Hernandezes is inadequate and the trial court erred by

failing to dismiss the Hernandezes’ suit.

We hold the trial court did not abuse its discretion by not dismissing the

Hernandezes’ suit. We affirm.

Background

Cynthia

Hernandez was admitted to Doctors Hospital on August 26, 2007 for a planned,

elective, non-emergency inducement of labor.

She was 41 weeks and 4 days pregnant and was overdue for delivery, which

should have

occurred around August 18, 2007. She was

a Jehovah’s

Witness and had an advance directive against blood transfusion, but her 2006 medical

power of attorney said that she would consider the use of blood fractions upon later

discussion. Mrs. Hernandez was given a

labor-inducing drug at 2:00 p.m. on August

27. Price, a labor and delivery nurse,

established a relationship with Mrs. Hernandez at 7:45

p.m., when she was assigned to care for her during the inducement process. The labor progressed slowly, with

complications, and, at 9:45 p.m., Dr. Piegari made the

decision to perform a caesarean section.

The surgical

team, including Dr. Piegari, Price, and Certified Registered Nurse Anesthetist

D. Arrington, assembled within thirty minutes, and Mrs. Hernandez was taken

to the operating room. The surgery,

which was performed under local anesthesia, began at 10:44 p.m. A baby girl weighing 10 pounds, 1

ounce, Josselyn Naomi Hernandez, was delivered.

At 11:18 p.m., the surgery complete, Mrs. Hernandez was transferred to

the Post Anesthesia Care

Unit (“PACU”).

Price resumed

caring for Mrs. Hernandez in the PACU. Arrington,

who administered the local anesthetic during surgery, signed papers discharging

Mrs. Hernandez from PACU at 11:29 p.m.

While Ms. Hernandez was in the PACU, Price documented 200 milliliters of

blood tinged urine in Mrs. Hernandez’s Foley catheter bag. Additionally, Mrs. Hernandez ’ s

pre-surgery blood pressure was 118/74 with a pulse of 84,

while her PACU blood pressure and pulse were 98/52 and 100. These were indications of internal bleeding . Price did not n otify Dr. Piegari of these indications . Price made several entries in the

medical records noting “ dark red blood via Foley ”

and “ scant vaginal

blood loss, ”

but then said there was “ no active bleeding noted. ”

Mrs. Hernandez

was transferred from the PACU to a regular floor room and was assigned

to the care of another registered nurse, In Clemado. On the floor, her blood

pressure at 1:20 a.m. was 98/52 with a pulse of 102. Clemado, like Price, did not notify Dr.

Piegari about this hemodynamic instability.

By 2:10

a.m., Mrs. Hernandez ’ s vital signs were continuing to deteriorate,

with a blood pressure

of 75/50 and a pulse of 111. At 2:20

a.m., when blood pressure was 68/48, Clemado fin ally

called Dr. Piegari.

Mrs. Hernandez

was transferred back to the Labor and Delivery Department at 2:40

a.m., where she was again placed under the care of Price. Dr. Piegari arrived back at the hospital and summoned the operating team,

consisting of an additional assistant surgeon and another nurse anesthetist, at

3:00 a.m. Mrs. Hernandez was

taken to the operating room for emergency exploratory laparotomy

surgery at

4:05 a.m. Surgery b eg a n

a t

4:20 a.m. and was

completed at 5:20 a.m. Dr. Piegari’s operative report details that four

liters of blood were found in the abdominal cavity. There was bleeding from the left lower uterine

segment, which was ligated and sutured.

The operative notes report that the bleeding was stopped

during surgery. Dr. Piegari claimed in

his report that Mrs. Hernandez was stable when she left the

operating room and was transferred to the Intensive Care Unit ( “ ICU ” ). But w ithin

30 minutes of arriving in the ICU, Mrs. Hernandez was in full cardiac arrest. Mrs. Hernandez died at

6:52 a.m. on August 28, 2007.

Mrs. Hernandez’s

husband, Santos Hernandez, filed this medical malpractice suit against Dr. Piegari

and his practice group; Doctors Hospital and its owners, Doctors Hospital 1997,

L.P. and Tidwell Parkway Ventures, L.L.C.; and Price. Dr. Piegari and his practice group were later

nonsuited. Hernandez alleged that

Doctors Hospital was vicariously liable for the nurses’ negligence and directly

liable for its own acts and omissions.

Hernandez served Chapter 74 expert

reports from obstetrician-gynecologist Harold J. Miller, M.D., and from

registered nurse Tracy McManaman-Bridges.

Doctors Hospital and Price objected to the reports and moved for

dismissal pursuant to Chapter 74. The trial

court denied the motion to dismiss.

Medical Expert Reports

their second issue, Doctors Hospital and Price assert the trial court erred by

failing to dismiss the Hernandezes’ claim for failure to file an expert report

pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See

Tex. Civ. Prac. & Rem. Code § 74.351(a) (Vernon Supp. 2010).

A. Standard

of Review

We review a trial court’s ruling

dismissing a healthcare liability lawsuit pursuant to Chapter 74 of the Texas

Civil Practice and Remedies Code under an abuse of discretion standard. Am. Transitional Care Centers of Texas 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 guiding rules or principles. See Garcia v. Martinez , 988 S.W.2d

219, 222 (Tex. 1999). When reviewing

matters committed to the trial court’s discretion, we may not substitute our

own judgment for that of the trial court.

Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992). A trial court does not abuse its discretion

merely because it decides a discretionary matter differently than an appellate

court would in a similar circumstance. See

Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 242 (Tex. 1985). Although we may defer to the trial court’s

factual determinations, we review questions of law de novo. Rittmer v. Garza , 65 S.W.3d 718, 722

(Tex. App.—Houston [14th Dist.] 2001, no pet.).

In reviewing whether an expert report

complies with Chapter 74, we evaluate whether the report “represents a

good-faith effort” to comply with the statute.

Strom v. Mem’l Hermann Hosp. Sys ., 110 S.W.3d 216, 221 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied).

In making this evaluation, we must look only at the information

contained within the four corners of the report. Bowie Mem’l Hosp. v. Wright , 79 S.W.3d

48, 53 (Tex. 2002).

B. Chapter

74 Expert Report Requirements

Pursuant to section 74.351,

medical-malpractice plaintiffs must provide each defendant physician and health

care provider with an expert report or voluntarily nonsuit the action. Tex.

Civ. Prac. & Rem. Code § 74.351(a).

If a claimant timely furnishes an expert report, a defendant may file a

motion challenging the report’s adequacy.

Id. The trial court shall

grant the motion only if it appears, after hearing, that the report does not

represent a good faith effort to comply with the statutory definition of an

expert report. See id. § 74.351( l ). The statute defines an

expert report as a written report by an expert that provides, as to each

defendant, a fair summary of the expert’s opinions as of the date of the report

regarding: (1) applicable standards of care; (2) the manner in which the care

provided failed to meet the standards; and (3) the causal relationship between

that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6); Palacios , 46 S.W.3d at 877 .

Although the report need not marshal

all the plaintiff’s proof, it must include the expert’s opinions on the three

statutory elements—standard of care, breach, and causation. See Palacios , 46 S.W.3d at 878 ; Gray

v. CHCA Bayshore, L.P. , 189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.]

2006, no pet.). In detailing these

elements, the report must provide enough information to fulfill two purposes if

it is to constitute a good faith effort.

First, the report must inform the defendant of the specific conduct the

plaintiff has called into question. Palacios ,

46 S.W.3d at 879 . Second, the report

must provide a basis for the trial court to conclude that the claims have

merit. Id. A report that merely states the expert’s

conclusions as to the standard of care, breach, and causation does not fulfill

these two purposes. Id . “The expert must explain the basis of his

statements and link his conclusions to the facts.” Bowie , 79 S.W.3d at 52 (citing Earle

v. Ratliff , 998 S.W.2d 882, 890 (Tex. 1999)). Furthermore, in assessing the report’s

sufficiency, the trial court may not draw any inferences, and instead must rely

exclusively on the information contained within the report’s four corners. See Palacios , 46 S.W.3d at 878 .

C. Analysis

of Adequacy of Reports

Doctors Hospital and Price contend

that the expert report submitted by Hernandez is insufficient. Specifically, they assert that (1) Dr. Miller

is not qualified to state the applicable standard of care, (2) the report does

not adequately state the applicable standard of care or the breaches of the

standard of care purportedly committed by Doctors Hospital and Price and (3)

the report does not adequately set forth how the purported breaches caused Mrs.

Hernandez’s death.

1. Qualifications

Within

this portion of their second issue, Doctors Hospital and Price assert that Dr.

Miller is not qualified to offer an opinion concerning the standard of care

applicable to Doctors Hospital or the nurses involved in Mrs. Hernandez’s

treatment, Price in particular.

a. Law

Concerning Expert Qualifications

Section

74.351(r)(5)(B) states that an expert for the purpose of establishing the standard

of care applicable to a non-physician health care provider must meet the qualifications

of section 74.402. Tex. Civ. Prac. & Rem. Code Ann . § 74.351(r)(5)(B)

(Vernon Supp. 2010). Section 74.402(b)

provides the following qualifications for an expert:

(b) In a suit involving a health care liability

claim against a health care provider, a person may qualify as an expert witness

on the issue of whether the health care provider departed from accepted

standards of care only if the person:

(1) is practicing health care in a field of

practice that involves the same type of care or treatment as that delivered by

the defendant health care provider, if the defendant health care provider is an

individual, at the time the testimony is given or was practicing that type of

health care at the time the claim arose;

(2) has knowledge of accepted standards of care

for health care providers for the diagnosis, care, or treatment of the illness,

injury, or condition involved in the claim; and

(3) is qualified on the basis of training or

experience to offer an expert opinion regarding those accepted standards of

health care.

Tex. Civ.

Prac. & Rem. Code Ann . § 74.402(b)(Vernon

2005). Section 74.402 continues:

qualified on the basis of training or experience, the court shall consider

whether, at the time the claim arose or at the time the testimony is given, the

witness:

(1) is certified by a licensing agency of one

or more states of the United States or a national professional certifying

agency, or has other substantial training or experience, in the area of health

care relevant to the claim; and

(2) is actively practicing health care in

rendering health care services relevant to the claim.

Tex. Civ.

Prac. & Rem. Code Ann . § 74.402(c).

b. Dr. Miller’s

Qualifications as to Doctor’s Hospital

Doctors

Hospital asserts that Dr. Miller is not qualified to opine on its hospital

policies and procedures. Specifically,

Doctors Hospital contends that because Dr. Miller’s career has primarily been

with Baylor College of Medicine, a teaching hospital, and Ben Taub Hospital,

one of the nation’s leading trauma centers, he has no experience working at a

“smaller, tertiary, non-teaching hospital.”

Doctors

Hospital cites no authority that an expert must have worked at the same type of

hospital to opine on a standard of care for a hospital—that is, only a doctor

familiar with and having experience in a “smaller, tertiary, non-teaching

hospital” would be qualified to opine on Doctors Hospital’s standard of

care. The one authority Doctors Hospital

cites in its brief is Reed v. Granbury

Hosp. Corp. , 117 S.W.3d 404 (Tex. App.—Fort Worth 2003, no pet.). We first note that Reed is procedurally distinguishable. Reed

involved a summary judgment case in which the trial court found two doctors

unqualified to testify as experts concerning the standard of care, specifically

“what protocols, policies, or procedures a hospital of ordinary prudence . . .

would have had in place.” Reed , 117 S.W.3d at 408–11. Reed

is also distinguishable substantively.

In Reed , the court applied the

standards for qualifying an expert under Texas Rule of Evidence 702 and case

law interpreting the rule. See id. at 409–10 (citing Tex. R. Evid. 702 and cases including Exxon Pipeline Co. v. Zwahr , 88 S.W.3d

623, 628 (Tex. 2002) and Gammill v. Jack

Williams Chevrolet, Inc. , 972 S.W.2d 713, 718 (Tex. 1988)).

contrast, in this case Dr. Miller’s qualifications are governed by section

74.402. See Tex. Civ. Prac. &

Rem. Code Ann . § 74.351(r)(5)(B) (stating that expert for establishing

standard of care applicable to non-physician health care provider must meet

qualifications of section 74.402).

Doctors Hospital and Price do not contend that Dr. Miller does not meet

the qualifications set out in section 74.402 or address section 74.402 in any

way.

The

first requirement set forth in section 74.402 is that Dr. Miller “ is

practicing health care in a field of practice that involves the same type of

care or treatment as that delivered by the defendant health care provider, if

the defendant health care provider is an individual.” Tex.

Civ. Prac. & Rem. Code Ann . § 74.402(b)(1) . Doctors Hospital is not an individual. Therefore, this factor does not apply. However, we note that this claim relates to

the field of Obstetrics and Gynecology.

Dr. Miller states in his report that he is a licensed physician in Texas

in continuous practice since 1966 and has been a Board Certified

Obstetrician-Gynecologist since 1967.

Doctors Hospital and Price do not dispute this.

The second

statutory requirement is that Dr. Miller “has knowledge of accepted standards

of care for health care providers for the diagnosis, care, or treatment of the

illness, injury, or condition involved in the claim.” Dr. Miller states in his report that he is

familiar with

the appropriate standards of care pertaining to the

medical and nursing care and treatment of patients who are hospitalized related

to pregnancy, labor, delivery, and post partum (after delivery) care, and

related to the patient being evaluated and treated for pregnancy and delivery,

including complications, problems and disorders related thereto . . .

such as intra abdominal bleeding . . . .

The

final requirement of section 74.402 is that the expert must be “qualified on

the basis of training or experience.” Tex. Civ. Prac. & Rem. Code Ann .

§ 74.402(b)(3). To evaluate

the expert’s training or experience, we are required to examine whether the

expert is “certified by a licensing agency of one or more states of the United

States or a national professional certifying agency, or has other substantial

training or experience, in the area of health care relevant to the claim

. . . [and] is actively practicing health care in rendering health

care services relevant to the claim.” See id. § 74.402(c)

(stating court “shall consider” these two factors). As noted above, Dr. Miller is a Board

Certified Obstetrician-Gynecologist. In

his report, Dr. Miller stated:

For the past 43 years, I have been actively engaged in

the practice of obstetrics and gynecology both in the clinical/office and

hospital setting. . . . In each of these settings I have evaluated, treated,

and coordinated the care for several patients who presented with a refusal to

accept blood transfusions, similar to Ms. Hernandez and have evaluated,

treated, and coordinated the care for many patients who presented with signs

and symptoms of intra abdominal bleeding following a c-section, also similar to

Ms. Hernandez.

. . . .

I reasonably estimate that, over this 43 year period, I

have acted as the attending physician and/or been consulted with in literally

hundreds of times for purposes of coordinating care of a patient with risk

factors for post partum hemorrhage as well as providing direct patient care to

evaluate and treat a patient like Ms. Hernandez, as the attending physician

for, and in consultation with nurses, health care providers, and other

physicians, for purposes of evaluating and treating a patient, like Ms.

Hernandez, who presents with risk factors for post partum hemorrhage, as well

as providing direct patient care on several hundred occasions to evaluate and

treat patients who present with post partum hemorrhage determining what type of

care and treatment is necessary and other reasonably related issues that are

necessary to care for a patient with documented risk factors and/or signs and

symptoms of post partum hemorrhage.

Dr. Miller’s report and curriculum

vitae also disclose that he has extensive experience teaching in the field of

obstetrics and gynecology and served as the interim chief of the Department of Obstetrics

and Gynecology at Ben Taub from 2006 to 2009.

conclude that Dr. Miller’s report and curriculum vitae provide a basis to

conclude that he meets section 74.402’s requirements for qualifications of an

expert. See Tenet Hospitals

Ltd. v. Barnes , No. 08-09-00093-CV, 2010 WL 2929520 , at *7–8 (Tex. App.—El

Paso July 28, 2010, no pet.) (holding expert qualified to state standard of

care for hospital where report stated expert had experience with type of claim

at issue, including being “involved in care of about 250 patients” similar to

patient at issue and curriculum vitae showed he was “Chief of Surgery”); see also Rusk State Hosp. v. Black , No.

12-09-00206-CV, 2010 WL 2543470, at * 7 (Tex. App.—Tyler June 23, 2010, no pet. h.) (holding

psychologist qualified to opine concerning mental hospital’s standard of care

based in part on psychologist’s “ extensive training

and experience in the diagnosis and treatment of mental disorders” and service

“as supervising or consulting psychologist at numerous mental health facilities”). A ccordingly, we hold

that the trial court did not abuse its discretion in finding Dr. Miller

qualified to give an expert report concerning Doctors Hospital’s standard of

care.

overrule this portion of Doctors Hospital and Price’s second issue.

c. Dr.

Miller’s Qualifications as to Nurses

Doctors

Hospital and Price also contend that Dr. Miller is not qualified to opine on

the standard of care owed by nurses.

Specifically, Doctors Hospital and Price assert, “At most, Dr. Miller is

qualified to speak to the standard of care for nursing as it relates to the nurses[’] interactive role with doctors .” (Emphasis in original). As with their argument concerning the

standard of care applicable to Doctors Hospital, Doctors Hospital and Price do

not cite, discuss, or analyze the requirements of section 74.402.

addition to the education, training, and experience detailed above, Dr. Miller

specifically stated:

I am familiar with the appropriate standards of care

pertaining to the nursing care and medical care and treatment of patients at

risk for and who are experiencing post partum hemorrhage.

Given my hospital practice, I am familiar with the

appropriate standard of care for nurses as it relates to the proper and timely

communication of critical vital signs information by the hospital nurses, nurse

anesthesiologists, and/or nonphysician health care providers to the treating

physician.

I am also familiar with, have undertaken on numerous

occasions, and have taught physicians, nurses and students in the methods for

preventing and alleviating through surgery and otherwise, postpartum

hemorrhage, including, but not limited to intra abdominal bleeding following a

caesarean section.

hold that the trial court did not abuse its discretion in finding Dr. Miller

qualified to give an expert report concerning Doctors Hospital’s standard of

care. B aylor

Med. Ctr., Waxahachie v. Wallace , 278 S.W.3d 552, 558 (Tex.

App.—Dallas 2009, no pet.) (“if the physician states he is familiar with the

standard of care for both nurses and physicians, and for the prevention and

treatment of the illness, injury, or condition involved in the claim, the

physician is qualified on the issue of whether the health care provider

departed from the accepted standards of care”); San Jacinto Methodist Hosp. v. Bennett , 256 S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (holding doctor qualified under section 74.402 to testify against nurse

for improper treatment of decubitus ulcer because he stated that he was

familiar with standard of nursing care for ulcers).

overrule this portion of Doctors Hospital and Price’s second issue.

2. Standard

of Care and Breach

Within

this portion of their second issue, Doctors Hospital and Price contend that Dr.

Miller’s report is insufficient concerning the statutory elements of standard

of care and breach of the standard of care because it contradicts “the

objective facts within the medical records [that] Dr. Miller reviewed.”

We review the sufficiency of

Dr. Miller’s report by looking within the four corners of the report. See

Wright , 79 S.W.3d at 53 ; Palacios , 46 S.W.3d at 878 . Doctor’s Hospital and Price cite two

unpublished opinions to support their contention that our review may include a

comparison of Dr. Miller’s report to the facts of the medical record. See Kloeris

v. Stockdale , No. 01-09-00711-CV, 2010 WL 1241305 , at *6 (Tex. App.—Houston

[1 Dist.], Apr. 1, 2010, pet. denied); Reddy v. Seale , No. 09-07-00372-CV, 2007

WL 5011608 , at *6 (Tex. App.—Beaumont Mar. 20, 2008, no pet.) (mem. op.). We disagree that our review can extend to the

underlying medical records.

First, the Supreme Court of Texas has

stated that review of expert reports is focused on the report itself. See Wright , 79 S.W.3d at 53 (“We

have held that the only information relevant to whether a report represents a

good-faith effort to comply with the statutory requirements is the report

itself.”); Palacios , 46 S.W.3d

at 878 (“[T] the only

information relevant to the inquiry is within the four corners of the document.”);