Opinion

Texas San Marcos Treatment Center, L.P. D/B/A San Marcos Treatment Center v. Veronica Payton

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Feb 10, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.0%

holding that specific stat- As explained in Parts II.B and C above, in 2003 the utory provisions override general provisions

How later courts described this case

holding that specific stat- As explained in Parts II.B and C above, in 2003 the utory provisions override general provisions
holding that a “fair opinions ... regarding applicable standards of care, summary” of the applicable standard of care and the manner in which the care rendered ... failed to breach identifies the type of care expected but not meet the standards, and the causal relationship rendered
“[t]o avoid dismissal, a not represent an objective good faith effort to com- plaintiff need not present evidence in the report as ply with the definition of an expert report....”
report must ing the surgery itself; the surgical procedure was provide basis for concluding that claims have mer- “uneventful.” And based on Mazzei's report, it ap- it

Written by the judges who cited it.

The opinion

ACCEPTED

03-14-00726-CV

4089429

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/10/2015 12:09:14 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00726-CV

__________________________________________________________________

FILED IN

3rd COURT OF APPEALS

IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS

THIRD DISTRICT OF TEXAS 2/10/2015 12:09:14 PM

__________________________________________________________________

JEFFREY D. KYLE

Clerk

TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a

SAN MARCOS TREATMENT CENTER

Appellant

VERONICA PAYTON

Appellee

__________________________________________________________________

On Appeal from Hays County, Texas,

428th Judicial District Court

Trial Court Case Number: 13-2658

__________________________________________________________________

BRIEF FOR APPELLEE

__________________________________________________________________

Adam S. Ward

Texas Bar No. 00788615

Keely Allison Ward

Texas Bar No. 00790220

Allison & Ward

2001 North Lamar Blvd.

Austin, Texas 78705

Telephone: (512) 474-8153

Facsimile: (512) 474-9703

Email: allison-ward@sbcglobal.net

Attorneys for Appellee,

Veronica Payton

ORAL ARGUMENT RESPECTFULLY REQUESTED

I. IDENTITY OF PARTIES AND COUNSEL

In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellee provides the following complete list of all parties and counsel to the trial

court’s order that forms the basis of this appeal.

Trial and Appellate Counsel for Appellee Veronica Payton:

Adam S. Ward

Texas Bar No. 00788615

Keely Allison Ward

Texas Bar No. 00790220

Aaron Allison

Texas Bar No. 24055098

Allison & Ward

2001 North Lamar Blvd.

Austin, Texas 78705-4907

Telephone: (512) 474-8153

Facsimile: (512) 474-9703

Email: allison-ward@sbcglobal.net

Email: keely@allisonwardllp.com

Email: aaron@allisonwardllp.com

Trial and Appellate Counsel for Appellate Counsel for Appellant Texas San

Marcos Treatment Center, L.P. d/b/a San Marcos Treatment Center:

Ryan L. Clement

Texas Bar No. 24036371

SERPE JONES ANDREWS

CALLENDER & BELL, PLLC

2929 Allen Parkway, Suite 1600

Houston, Texas 77019

Telephone: (713) 452-4400

Facsimile: (713) 452-4499

Emails: rclement@serpejones.com

II. TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL………………………………………ii

TABLE OF CONTENTS……………………….…………………………………iii

TABLE OF AUTHORITIES………………………………………………………iv

STATEMENT OF THE CASE…………………………………………………….2

ISSUES PRESENTED……………………………………………………………..3

STATEMENT OF FACTS…………………………………………………………4

SUMMARY OF THE ARGUMENT……………………………………………..11

ARGUMENT & AUTHORITY…………………………………………………..12

A. STANDARD OF REVIEW…………………………………………12

B. The Trial Court Did Not Abuse Its Discretion When Finding

Dr. Reid’s Report Satisfied the Requirements of Chapter 74

And Denying Appellant’s Motion to Dismiss……………………14

1. Section 74.351 Requires Only a “Good Faith”

“Fair Summary” of an Expert’s Opinions……………..14

2. Dr. Reid’s Report Provides A “Good Faith”

“Fair Summary” of Ms. Payton’s Claims Against

San Marcos Treatment Center……………………...…17

C. Dr. Reid’s Expert Report Satisfies the Legislative Purpose of

Chapter 74’s Expert Report Requirement………………………….38

Conclusion & Prayer……………………………………………………………...39

Certificate of Compliance………………………………………………………...41

Certificate of Service……………………………………………………………..42

Appendix

A. Expert report and curriculum vitae of Dr. William H. Reid, M.D. M.P.H.

B. Cases

iii

III. TABLE OF AUTHORITIES

Cases

Am. Transitional Care Ctrs. Of Tex. Inc. v. Palacios,

46 S.W. 3d 873 (Tex. 2001)………………………………………………….passim

Apodaca v. Russo,

228 S.W.3d 252 (Tex. App. – Austin 2007, no pet)………………………………16

Baylor All Saints Medical Center v. Martin,

340 S.W.3d 529 (Tex. App. – Fort Worth 2011, no pet)…………….………..20, 21

Certified EMS, Inc. v. Potts,

392 S.W.3d 625 (Tex. 2013)…………………………………………………passim

Chadha, M.D. v. Rothert,

No. 03-13-00153-CV, 2014 WL 538815

(Tex. App. – Austin Feb. 5, 2014, no pet.)………………………………………38

Christian Care Center, Inc. v. Golenko,

328 S.W.3d 637 (Tex. App. – Dallas 2011, pet denied)…………………………36

Christus Spohn Health Sys. Corp. v. Sanchez,

299 S.W. 3d 868, 877-78 (Tex. App. – Corpus Christi 2009, pet. denied)…..37, 38

Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238 (Tex. 1985)……………………………………………………...12

Flores v. Fourth Court of Appeals,

777 S.W.2d 38 (Tex. 1989)……………………………………………………….12

Herbert v. Hopkins,

395 S.W.3d 884 (Tex. App. – Austin 2013, no pet.)……………………………...13

Jelenek v. Casas,

328 S.W.3d 526 (Tex. 2010)……………………………………………………...35

Kingwood Pines Hospital, LLC. V. Gomez,

362 S.W.3d 740 (Tex. App. – Houston [14th Dist.] 2011, no pet.)…………....20, 21

Kloeris v. Stockdale,

No. 01-09-00711-CV, 2010 WL 1241305

(Tex. App. - Houston [1st Dist.] 2010, no pet.)……………………………….25, 26

Kocurek v. Colby,

No. 03-13-00057, 2014 WL 4179454

(Tex. App. – Austin Aug. 22, 2014, no pet.)…………………………….………..35

Methodist Hosp. v. Shepherd-Sherman,

296 S.W.3d 193 (Tex. App. Houston [14th Dist] 2009, no pet.)…………………..25

Nexion Health at Garland, Inc. v. Treybig,

No. 05-14-00498-CV, 2014 WL 7499373

(Tex. App. – Dallas, Dec. 31, 2014, no pet.)………………………………….19, 37

Presbyterian Cmty. Hosp. of Denton v. Smith,

314 S.W.3d 508 (Tex. App. – Fort Worth 2010, no pet.)…………………………19

Shenoy v. Jean,

No. 01-10-01116-CV, 2011 WL 6938538

(Tex. App. – Houston [1st Dist.] Dec. 29, 2011, no pet.)………………….23, 25, 32

Smith v. Wilson,

368 S.W.3d 574 (Tex. App. – Austin 2012, no pet.)……………………………..35

Texarkana Nursing & Healthcare Center, LLC v. Lyle,

388 S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.)…………….……….20, 36

Texas West Oaks Hosp. L.P. v. Williams,

371 S.W.3d 171 (Tex. 2012)………………………………………………………2

TTHR Ltd. P’ship v. Moreno,

401 S.W. 3d 41 (Tex. 2013)………………………………………………12, 15, 23

UHS of Timberlawn, Inc. v. S.B.,

281 S.W.3d 207, (Tex. App. – Dallas 2009, pet. denied)…………………………34

Wissa v. Voosen,

243 S.W.3d 165 (Tex. App. – San Antonio 2007, no pet.)………………...…25, 26

Statutes

Tex. Civ. Prac. Rem. Code §74.351………….………………………………passim

Tex. Civ. Prac. Rem. Code §74.351(a)……………………………………………14

Tex. Civ. Prac. Rem. Code §74.351(b)………………………………………passim

Tex. Civ. Prac. Rem. Code §74.351(c).........................................................…...3, 41

Tex. Civ. Prac. Rem. Code §74.351(l)……………………………………………14

Tex. Civ. Prac. Rem. Code §74.351(r)(6)…………………………………….12, 14

Tex. Civ. Prac. Rem. Code §74.351(s)……………………………………………16

NO. 03-14-00726-CV

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE

THIRD DISTRICT OF TEXAS

__________________________________________________________________

TEXAS SAN MARCOS TREATMENT CENTER, L.P. d/b/a

SAN MARCOS TREATMENT CENTER

Appellant

VERONICA PAYTON

Appellee

__________________________________________________________________

On Appeal from Hays County, Texas,

428th Judicial District Court

Trial Court Case Number: 13-2658

__________________________________________________________________

BRIEF FOR APPELLEE

__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellee Veronica Payton (“Veronica Payton”, “Ms. Payton” or “Appellee”)

files this brief in response to Appellant’s, Texas San Marcos Treatment Center,

L.P. d/b/a San Marcos Treatment Center (“San Marcos Treatment Center”,

“SMTC” or “Appellant”) appeal from an order denying Appellant’s motion to

dismiss pursuant to section 74.351(b) of the Texas Civil Practices and Remedies

Code in Trial Court Case Number 13-2658; Veronica Payton v. Texas San Marcos

Treatment Center, L.P. d/b/a/ San Marcos Treatment Center, in the 428th Judicial

District Court of Hays County, Texas, before the Honorable R. Bruce Boyer.

IV. STATEMENT OF THE CASE

Nature of the Case:

This is a negligence case brought by Ms. Veronica Payton against her

employer, San Marcos Treatment Center L.P. d/b/a San Marcos Treatment Center.

San Marcos Treatment Center L.P. d/b/a San Marcos Treatment Center (“SMTC”)

is a nonsubscriber to the Texas Workers’ Compensation Act. SMTC is a health

care provider and pursuant to Texas West Oaks Hosp. L.P. v. Williams, 371 S.W.3d

171 (Tex. 2012), this is a health care liability claim. (CR 4-14).

Trial Court Proceeding and Disposition:

This case was originally filed on December 18, 2013. (CR 4). On January

27, 2014, Ms. Payton timely served the 120-day expert report and Curriculum

Vitae of Mr. William H. Reid, M.D., M.P.H. (“Dr. Reid”) pursuant to Tex. Civ.

Prac. Rem. Code § 74.351. (CR 22). Appellant filed objections to the report on

February 18, 2014 (CR 22). Appellant also objected to discovery based on its

objections to the report. (RR 10, 18, 20). Appellant filed its motion to dismiss

pursuant to 74.351(b) on July 9, 2014. (CR 22). Ms. Payton filed her response to

Appellant’s motion to dismiss and filed a motion for sanctions against Appellant

on July 29, 2014. (CR 92-107). A hearing on Appellant’s objections and Ms.

Payton’s motion for sanctions was held on September 22, 2014, before the

Honorable Judge R. Bruce Boyer. (CR 127; RR 1-26). Judge Boyer overruled

Appellant’s objections and denied its Motion to Dismiss and denied Ms. Payton’s

motion for sanctions in an order dated October 30, 2014. (CR 118). Appellant’s

Notice of Appeal was filed on November 19, 2014. (CR 119-121).

Requested Disposition from this Court:

Ms. Veronica Payton requests that Judge R. Bruce Boyer’s order dated

October 30, 2014, be affirmed. In the alternative, should this Court find that the

trial court abused its discretion by holding that Ms. Payton’s expert report was

sufficient, Ms. Payton requests that this Court remand the case to the trial court

concerning Ms. Payton’s request for a 30-day extension to cure pursuant to Tex.

Civ. Prac. & Rem. Code 74.351(c). Ms. Payton requested such relief from the trial

court below, but the trial court did not address the request because it found that Ms.

Payton’s expert report was sufficient. (RR 21).

V. ISSUE PRESENTED

Did the trial court abuse its discretion by holding that Ms. Payton’s expert

report was sufficient, overruling Appellant’s objections to the report, and denying

Appellant’s Motion to Dismiss?

VI. STATEMENT OF FACTS

This is an interlocutory appeal arising from an expert report challenge in a

health care liability case. San Marcos Treatment Center (“SMTC”) is a facility

licensed by the State of Texas to provide behavioral health care and treatment to

adolescent patients. (CR 5). San Marcos Treatment Center is divided into units,

providing care and services to patients based upon, among other things, gender and

treatment needs. (CR 5). At all relevant times Veronica Payton was an employee

of San Marcos Treatment Center working as an aide on a boys unit. (CR 5, 36).

On December 7, 2011, a patient, Mr. Leroy Simon, was admitted to SMTC. (CR

5). Mr. Simon was a 17 year old, “stocky”, male patient with a long history of

assaultive behavior, sex offenses, fights, borderline intellectual function or mild

retardation, and chronic symptoms of intermittent explosive disorder, lack of

impulse control, oppositional defiant disorder, and other mental and behavioral

problems. (CR 36). Mr. Simon also had an extensive criminal history, including

out of state theft and assault charges and drug abuse. (CR 6). On December 12,

2011 and December 13, 2011, Mr. Simon was evaluated at SMTC by, among

others, T. Walter Harrell, PH.D. acting on behalf of SMTC. (CR 6). The

evaluation occurred in conjunction with a treatment plan for Mr. Simon’s potential

admission to SMTC (CR 6). Mr. Simon was admitted to SMTC with the diagnoses

of severe impulsivity or explosive expression of anger; severe defiant, disruptive or

destructive behavior; dangerous self-injurious or unsafe behaviors; severe

deterioration of function in family, school, and or community; cognitive/processing

disturbance interfering with social adaption and learning; sexual reactive or

offending behavior; and sexual behavior problems (CR 6). Mr. Simon was housed

on the boys unit to which Ms. Payton was assigned. (CR 36). On January 2, 2012,

Ms. Payton and another female employee were responsible for 17 patients on the

unit. (CR 6, 36). Many, perhaps all, the patients, other than Mr. Simon were

younger than Mr. Simon, aged 11 years and up, and smaller than Mr. Simon. (CR

34, 35, 36). On January 2, 2012, Mr. Simon asked to do his laundry in preparation

for classes the following day. (CR 6). The laundry facility was located off the boys

unit in an unoccupied section of SMTC, because the laundry equipment located on

the boys unit had been broken for some time. (CR 7, 36). Ms. Payton escorted Mr.

Simon to the functioning laundry. (CR 36). Mr. Simon was not under any

particular monitoring or containment order or special supervision. (CR 34). Ms.

Payton was not notified or otherwise advised that Mr. Simon was potentially

assaultive or otherwise dangerous, or that escorting him off the unit to the laundry

alone was unsafe. (CR 33). If Ms. Payton had been aware that Mr. Simon was

potentially assaultive or otherwise dangerous, she would not have escorted him to

the laundry alone. (CR 35). If there had been one more capable staff person on the

unit, Ms. Payton would not have believed it necessary to accompany Mr. Simon to

the laundry alone. (CR 35). If there had been one more staff member who was

male on the boys unit, Ms. Payton would not have been a sole female alone with

Mr. Simon in the laundry. (CR 35). Ms. Payton received no training from SMTC

regarding her safety in the workplace, and particularly none related to recognizing

potentially dangerous patients, recognizing potentially assaultive patients or

protecting herself from patient assault and no training regarding the dangers of

escorting patients such as Mr. Simon off-unit alone. (CR 33, 35). If Ms. Payton

had received adequate training regarding the dangers of escorting patients such as

Mr. Simon off-unit alone, she would not have escorted him alone to the laundry

room. (CR35). While returning to the boys unit, Mr. Simon attacked Ms. Payton.

(CR 7). Mr. Simon suddenly and violently assaulted Ms. Payton, quickly

overpowering her, choking her, knocking or otherwise forcing her to the ground,

hitting and kicking her, and forcing her head into a wall. (CR 36). Ms. Payton

could not call for help because she could not breathe. (CR 7). Mr. Simon threw

Ms. Payton to the ground while maintaining the choke hold on her. (CR 7). Ms.

Payton realized she was not going to get away from Mr. Simon so she “played

dead”. (CR 7). When Ms. Payton “played dead” Mr. Simon loosened his hold on

her. (CR 7). Ms. Payton grabbed her writing pen and began trying to stab Mr.

Simon by thrusting her arm next to her head in an attempt to strike Mr. Simon in

the face and make him release his strangle hold. (CR 7). Mr. Simon tightened his

hold on Ms. Payton’s neck and she lost consciousness. (CR 7, 36). Once Ms.

Payton was unconscious, Mr. Simon released the choke hold. (CR 7). Ms. Payton

regained consciousness to find Mr. Simon was still there. (CR 7). Ms. Payton then

struck out at Mr. Simon and he began hitting and kicking her. (CR 7, 36). Then,

Mr. Simon ripped Ms. Payton’s keys, which she wore on a necklace, off her neck

and ran out of the area. (CR 7, 36). As Mr. Simon ran away, Ms. Payton was able

to yell for help and other staff members came to her aide. (CR 7, 36). The assault

was recorded on an unmonitored video camera. (CR 7). SMTC staff called 911.

(CR 36). Mr. Simon used Ms. Payton’s keys to flee SMTC’s facility. (CR 7). Mr.

Simon ran to a residence a few blocks away from SMTC and told the resident that

he (Mr. Simon) had been assaulted by a group home employee and needed help.

(CR 7-8, 36). San Marcos Police Department apprehended Mr. Simon and after

determining that Mr. Simon’s story was false, arrested him. (CR 8, 36). Mr. Simon

was indicted for aggravated assault with a deadly weapon (his fists and arms). (CR

8, 36). Ms. Payton was transported by ambulance to Central Texas Medical Center

(“CTMC”) from SMTC. (CR 7, 36). Ms. Payton received medical follow-up from

her primary care physician, Dr. Chris Larson. (CR 36). Dr. Larson quickly

recognized symptoms of acute and chronic stress disorder due to the assault. (CR

36). Ms. Payton was evaluated by psychiatrist Andrew Brylowski and

psychologist Dr. Edward Kotin. (CR 36). Dr. Brylowski found very significant

anxiety and depression and diagnosed “acute stress reaction” and major depressive

disorder. (CR 36). Video of the assault, emergency room records, and outpatient

general medical records all indicate injuries, including neck and back injuries and

concussion as well as both acute and chronic post-traumatic mental symptoms,

including post traumatic stress disorder. (CR 34).

In order to contradict or correct the “facts” in Appellant’s brief regarding

Ms. Payton’s allegations against SMTC, Appellee states the following allegations

from her original petition lettered A-E in this statement of facts. On December 18,

2013 Ms. Payton filed suit against San Marcos Treatment Center alleging

negligence on the part of SMTC for SMTC’s failure to meet five standards of care.

(CR 9-11). A) SMTC failed to meet the duty/standard for adequate staffing when

it failed to provide adequate staffing to meet foreseeable needs for patient care and

staff and patient safety. (CR 9). Staffing was inadequate on Ms. Payton’s unit on

January 2, 2012, and was lower than that required by plans of correction and/or

other agreements with the Texas Department of Family and Protective Services

(“DFPS”). (CR 10). The unit in question was supposed to have had at least three

staff on the shift during which the assault occurred (but instead only had two) and

that at least one of the staff was supposed to be male (not the case on the January 2,

2012, evening shift). (CR 10-11). B) SMTC failed to meet the relevant

duty/standard regarding training when it failed to provide Ms. Payton with

adequate training regarding safety in a workplace which contained foreseeable

threats to staff safety. (CR10). Ms. Payton never received any SMTC training

regarding her safety in the workplace related to recognizing potentially dangerous

patients, recognizing potentially assaultive patients, or protecting herself from

patient assault. (CR 10). C) SMTC failed to meet the relevant duty/standard

regarding adequate notification when it failed to provide Ms. Payton with

information or notification that Mr. Simon was likely to be assaultive or otherwise

dangerous to staff and/or patients. (CR 10). SMTC knew that Mr. Simon had a pre-

admission history of, among other things, “severe impulsivity or explosive

expression of anger”, yet Ms. Payton was not notified or otherwise advised that he

was potentially assaultive or otherwise dangerous, or that her escorting him alone

was unsafe. (CR 10). D) SMTC failed to meet the relevant duty/standard regarding

Mr. Simon’s admission when it admitted, allowed to be admitted, and/or allowed

housing on the children’s unit without adequate containment and/or supervision,

Mr. Simon was a 17 year old “stocky” male sex offender with a substantial history

of aggression, fights with staff and peers, criminal assault, severe problems with

physical and sexual conduct, conduct disorder, poor impulse control and/or

frequent inability to resist aggressive an sexual impulses, which had manifested

themselves both in and outside of residential treatment settings. (CR 10-11).

SMTC knew that Mr. Simon had a pre-admission history of, among other things,

“severe impulsivity or explosive expression of anger” and other dangerous

behaviors and symptoms. (CR 11). SMTC was well aware, or should have been

aware, that Mr. Simon was inappropriate for admission to SMTC and/or was not

suited, in terms of staff and patient safety, for housing on the unit on which he was

housed, without special supervision or containment. (CR 11). E) SMTC failed to

meet the relevant duty/standard regarding amelioration or elimination of risks

when it failed to adequately contain, supervise, and/or monitor Mr. Simon to

ameliorate his danger to others and protect staff and patients on and before January

2, 2012. (CR 11). Mr. Simon was not under any particular monitoring or

containment order, special supervision, or the like, which should have been

commensurate with his known history and behavioral/mental conditions. (CR 11).

SMTC knew or reasonable should have known that Mr. Simon was dangerous or

assaultive and should have been physically contained and/or supervised by more

than one female staff person. (CR 11). SMTC did nothing physically or clinically

to ameliorate the danger from Mr. Simon to staff and other patients. (CR 11).

Appellee also made other allegations in its original petition not addressed by

Appellant in its statement of facts. (CR 4-14).

Also in response to Appellant’s statement of the “facts”, Dr. Reid’s report

contains relevant facts concerning the staffing on January 2, 2012; the education

and training or lack thereof provided to Ms. Payton, the information or lack thereof

shared with health care staff concerning the patient’s condition and propensities,

factual information concerning the admission of Mr. Simon and placement on unit,

supervision and monitoring provided, and efforts to reduce the risk of danger and

protect patients and/or staff. (CR 32-39).

On October 30, 2014, the trial court overruled Appellant’s motion to dismiss

pursuant to 74.351(b). (CR 118). Appellant filed its notice of appeal on November

19, 2014 and this interlocutory appeal ensued. (CR 119).

VII. SUMMARY OF THE ARGUMENT

The expert report by Dr. Reid very clearly and specifically sets forth five

standards of care as they apply to San Marcos Treatment Center and specifically

details how those standards of care were breached. Dr. Reid’s report informs San

Marcos Treatment Center of the specific conduct called into question, notifying it

as to what it should have done differently. Dr. Reid’s report also describes how the

breaches in the standard of care led to Ms. Payton’s assault and subsequent

injuries. Appellant is asking this Court to hold Dr. Reid’s expert report to a much

higher standard than the “fair summary” standard mandated by Chapter 74.

Appellant wants the report to marshal all the evidence in detail without the benefit

of discovery of Appellant’s records and without any depositions. The law is clear

that Dr. Reid’s report must only provide a “good faith” “fair summary” of his

opinions. Tex. Civ. Prac. Rem. Code §74.351(r)(6); Am. Transitional Care Ctrs. Of

Tex. Inc. v. Palacios, 46 S.W. 3d 873 (Tex. 2001); Certified EMS, Inc. v. Potts,

392 S.W.3d 625 (Tex. 2013). Dr. Reid’s report provides a “good faith” “fair

summary” of his opinions and satisfies the Legislative goal of Chapter 74 to “deter

baseless claims, not to block earnest ones”. Id. The trial court did not abuse its

discretion by finding Dr. Reid’s report sufficient and overruling Appellant’s

motion to dismiss pursuant to 74.351(b).

IIX. ARGUMENT & AUTHORITY

A. Standard of Review

This Court reviews a trial court’s ruling on a §74.351 motion to dismiss

under an abuse of discretion standard of review. Am. Transitional Care Ctrs. of

Tex. Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); TTHR Ltd. P’ship v.

Moreno, 401 S.W. 3d 41, 44 (Tex. 2013). A trial court abuses its discretion if it

acts in an arbitrary or unreasonable manner without reference to any guiding rules

or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). When reviewing matters committed to the trial court’s discretion, a

court of appeals may not substitute its own judgment for the trial court’s judgment.

Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). This Court

described the abuse of discretion standard as it applied to a trial court’s ruling on a

§74.351 motion to dismiss in Herbert v. Hopkins, 395 S.W.3d 884, 891 (Tex. App.

– Austin 2013, no pet.). This Court stated,

We do not, in other words, examine the contents of Dr. White’s

reports and make our own de novo determination as to whether

he has provided sufficient information, with respect to his

opinions regarding standard of care, breach, and causation, to (1)

inform appellees of the specific conduct the Heberts have called

into question; and (2) provide a basis for the district court to

conclude that the claims have merit. See Jelinek, 328 S.W.3d at

538-40 & n. 9; Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at

878-79. Instead we determine only whether the district court

acted arbitrarily, unreasonably, and without reference to guiding

rules and principles in determining that the reports failed to

provide that information. See Wright, 79 S.W.3d at 52; see also

Jelinek, 328 S.W.3d at 542 (Jefferson, C.J., dissenting) (“The

dividing line between a sufficient and an inadequate report is

impossible to draw precisely. We have said, therefore, that the

determination must be made in the first instance by the trial

court, and review of that decision asks not how an appellate court

would have resolved that issue, but instead whether the trial

court abused its discretion.”)(citing Jernigan v. Langley, 195

S.W.3d 91, 93 (Tex. 2006); Walker v. Gutierrez, 111 S.W.3d 56,

63 (Tex. 2003)).

The trial court did not abuse its discretion in finding that Dr. Reid’s report satisfied

the requirement of Chapter 74 and in denying Appellant’s Motion to Dismiss,

because Dr. Reid’s report provides a “good faith” “fair summary” of Ms. Payton’s

claims against Appellant.

B. The Trial Court Did Not Abuse Its Discretion When Finding Dr. Reid’s

Report Satisfied the Requirements of Chapter 74 and Denying

Appellant’s Motion to Dismiss

1. Section 74.351 Requires Only a “Good Faith” “Fair Summary” of

an Expert’s Opinions

Section 74.351 requires a plaintiff asserting a health care liability claim to

submit an expert report, along with the expert’s curriculum vitae no later than the

120th day after filing suit. Tex. Civ. Prac. & Rem. Code Ann. §74.351(a). The Act

describes an expert report as a written report providing “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 Ann.

§74.351(r)(6).

If the report filed constitutes a good faith effort to provide a fair summary of

the expert’s opinions regarding the plaintiff’s claims, a §74.351(b) motion to

dismiss must be denied. Tex. Civ. Prac. & Rem. Code Ann. §74.351(l). A

“good-faith” effort only requires that the report discuss the elements of the

plaintiff’s claims with sufficient specificity to inform the defendant of the conduct

the plaintiff has called into question and to provide a basis for the trial court to

conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex. Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). The plaintiff is not required to marshal

all its evidence. Palacios at 879. The plaintiff is not required to present evidence

in the report as if it were actually litigating the merits. Certified EMS, Inc. v. Potts,

392 S.W.3d 625, 631 (Tex. 2013) citing Palacios at 879. Rather, the report can be

informal in that the information in the report does not have to meet the same

requirements as the evidence offered in a summary-judgment proceeding or at trial.

Id.

A report that satisfies the elements as to only one theory of liability, entitles

the claimant to proceed with a suit against the physician or health care provider.

Potts at 630. For a particular liability theory the report must sufficiently describe

the defendant’s alleged conduct. Id. Such a report both informs a defendant of the

behavior in question and allows the trial court to determine if the allegations have

merit. Id. If the trial court decides that a liability theory is supported, then the

claim is not frivolous, and the suit may proceed. Id.; TTHR Limited P’ship v.

Moreno, 401 S.W.3d 41 (Tex. 2013).

The Texas Supreme Court described its reasoning in Certified EMS, Inc. v.

Potts, 392 S.W.3d 625, at 632 by stating, “The expert report requirement is a

threshold mechanism to dispose of claims lacking merit. . . while a full

development of all liability theories may be required for pretrial motions or to

convince a judge or jury during trial, there is no such requirement at the expert

report stage.” An expert report is not required to prove defendant’s liability, but

rather to provide notice of what conduct forms the basis for the plaintiff’s

complaints. Apodaca v. Russo, 228 S.W.3d 252, 255 (Tex. App. – Austin 2007, no

pet.). The Act requires the expert report to summarize the expert’s opinions as of

the date of the report recognizing that those opinions are subject to further

refinement Potts, 392 S.W.3d at 632.

Applying a less stringent standard at the Chapter 74 report stage versus at

summary judgment or trial makes sense when one considers the timing of Chapter

74 reports. Section 74.351(s) provides that until a plaintiff has served its expert

report(s) and curriculum vitae of its expert all discovery is stayed except for the

acquisition by the plaintiff of information related to the plaintiff’s health care

through written discovery, depositions on written questions, and discovery from

non-parties. Tex. Civ. Prac. & Rem. Code §74.351(s). Thus, expert reports are

generally produced before the defendant has been deposed, and even before any

oral depositions have been taken in the case. Requiring an expert to know all the

facts of the case exactly as they happened at this early stage of the lawsuit would

place an impossible burden upon plaintiff’s expert that could never be met. See

Potts, 392 S.W.3d at 632. This is why the statute requires only a “fair summary” of

the plaintiff’s claims. Dr. Reid’s report is a “fair summary” of his opinions as of

the date of the report regarding the applicable standard of care, the manner in

which the care rendered by San Marcos Treatment Center failed to meet the

standard and the causal relationship between the failure and the injury, harm or

damages claimed.

2. Dr. Reid’s Report Provides A “Good Faith” “Fair Summary” of

Ms. Payton’s Claims Against San Marcos Treatment Center

Dr. Reid’s report specifically states five separate standards of care,

specifically states how Appellant breached each of the standards of care and how

the breach of the standard of care caused harm to Ms. Payton. Dr. Reid’s report

satisfies the requirements of informing the defendant of the conduct the plaintiff

has called into question providing a basis for the trial court to conclude that the

claims have merit. See Am. Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001). Appellant’s arguments that Dr. Reid’s report failed

to identify any of the standards of care, failed to advise Appellant as to what it

should have done, and failed to link the breaches to the harm suffered by Mr.

Payton because Dr. Reid failed to link any facts to his opinions and therefore his

opinions are conclusory are incorrect.

Dr. Reid states five standards of care that were breached by Appellant and

links facts to his conclusions for each standard of care and breach. For the first

standard Dr. Reid states in relevant part,

That employer (SMTC) by itself and through its various parts or

assigns, had duties to its unit employee Ms. Payton which

included… adequate staffing and staff support in her work

environment sufficient to meet reasonable levels of staff safety,

as well as patient safety and care.

(CR 32). Dr. Reid also states that SMTC failed to meet this standard when it

“failed to provide adequate staffing to meet the foreseeable needs for patient care

and staff and patient safety”. (CR 33). Dr. Reid continues his opinion with details

as to how SMTC breached the standard stating,

[The] evening shift staffing was inadequate on Ms. Payton’s unit

on January 2, 2012, and was lower than that required by plans of

corrections and/or other agreements with the Texas Department

of Family and Protective Services (DFPS). Specific staffing data

from SMTC is not yet available to me; materials from DFPS,

however, indicate a number of recent (to 1/02/2012) agency

findings of inadequate staffing on the clinical units, as well as

agreed upon DFPS specifications for correcting unit staffing

deficiencies. It is my understanding (and this opinion is

predicated on the accuracy of that understanding) that the unit in

question was supposed to have had at least 3 staff persons on the

shift on which the assault occurred (but instead only had 2) and

that at least one of the staff was supposed to be male (not the

case in the 1/02/2012, evening shift).

(CR 33). In discussing causation Dr. Reid states,

SMTC’s failures to meet the applicable standards…foreseeably

led to (i.e., were a significant cause of) damages to Ms.

Payton…But for one or more of the breaches by SMTC…it is

more likely than not that the January 2, 2012, assault would not

have occurred, and thus …damages to Ms. Payton, would not

have occurred. Specifically, if staffing had been adequate (that

is, at least one more capable staff person on the 17-patient unit),

Ms. Payton would not have believed it necessary to accompany

Leroy Simon to the laundry alone… if there had been adequate

male staffing on the boy’s unit, Ms. Payton would not have been

in the position of being a sole female vulnerable to attack by a

physically stronger, younger male.

(CR 34-35). These statements by Dr. Reid regarding adequate staffing are not

conclusory but provide specific facts upon which his opinions are based and tell

the Appellant specifically what it should have done but failed to do and without

which the assault and injuries suffered by Ms. Payton would not have occurred.

Dr. Reid explains the basis of his statements and links his conclusions to the

facts. Appellant mischaracterizes Dr. Reid’s report by simply citing the first page

of the report without including all the statements regarding the five standards,

breach, and causal nexus contained in the rest of the report as evidence that his

opinions are conclusory concerning the applicable standard of care. See

Appellant’s Brief at 16. The whole report, not just a few statements, determine if

the report is a “fair summary” of the expert’s opinions. Nexion Health at Garland,

Inc. v. Treybig, No. 05-14-00498-CV, 2014 WL 7499373, (Tex. App. – Dallas,

Dec. 31, 2014, no pet.); Presbyterian Cmty. Hosp. of Denton v. Smith, 314 S.W.3d

508, 514 (Tex. App. – Fort Worth 2010, no pet.)(in defining expert report rejected

a hospital’s argument that “several individual statements in [the expert’s] report

[were] insufficient” because the “report as a whole, provide[d] a ‘fair summary’ of

[the expert’s] opinions”). Dr. Reid’s report as a whole is a “good faith” “fair

summary” his of opinions on each standard of care, breach and the causal nexus

between the breach and the harm, injuries or damages suffered by Ms. Payton.

Appellant claims Dr. Reid’s statements concerning the standards of care

“mirror” those found in other assault cases wherein the expert’s report was found

to be deficient citing Texarkana Nursing & Healthcare Center, LLC v. Lyle, 388

S.W.3d 314 (Tex. App. – Texarkana 2012, no pet.); Baylor All Saints Medical

Center v. Martin, 340 S.W.3d 529 (Tex. App. – Forth Worth 2011, no pet.); and

Kingwood Pines Hospital, LLC. V. Gomez, 362 S.W.3d 740 (Tex. App. – Houston

[14th Dist.] 2011, no pet.). See Appellant’s Brief at 17. The report in Texarkana

was found to be deficient because the expert report only stated, “Texarkana

Nursing failed to provide ‘a safe and secure environment for its residents, allowing

the documented assault of Ms. Vest by one of its own employees’.” Texarkana at

319. The Texarkana Court of Appeals found this single statement by itself and

without any additional statements to inform the defendant as to what it should have

done differently did not advise the defendant of what should have been done in

order to prevent its employee from assaulting a patient. Texarkana at 320-21. In

contrast, Dr. Reid’s report goes well beyond a single statement like the one in

Texarkana and details exactly what SMTC should have done to prevent Ms.

Payton from being assaulted. For example, Dr. Reid’s statements regarding

adequate staffing do not “mirror” those found Texarkana. Dr. Reid makes clear

what SMTC should have done regarding staffing: SMTC should have had one

more capable staff person on the 17 patient unit because they should have had 3

staff members but only had 2 and at least one of the staff members should have

been male, which was not the case.

Appellant’s reliance on Baylor All Saints Medical Center v. Martin, 340

S.W. 3d 529 (Tex. App.- Fort Worth 2011, no pet.) is also misplaced. In Baylor,

the court found the report to be insufficient because the report stated there must be

policies in place to safeguard patients from assault including employing a

sufficient number of security personnel. Baylor at 534. The court found the expert

report failed to indicate what specific policies and safeguards should have been in

place and the number of security personnel needed was not described. Id. Clearly

Dr. Reid’s report is more specific than the report in Baylor and does not “mirror”

the language of the expert report in Baylor. For example, regarding adequate

staffing Dr. Reid specifically states the number of staff members Appellant should

have had on the unit in which Ms. Payton was working when she was assaulted.

The Kingwood case cited by Appellant is likewise distinguishable. In

Kingwood, the expert stated a failure “to ensure that there were appropriately

trained and adequate staffing and milieu structure such that a young girl … would

not be sexually molested” the report stated the standard of care was breached when

the physician failed to insure her patient’s safety using “any number of measures

available”, by failing to “provided additional supervision” and not affording the

patient “the most basic supervision”. Kingwood at 748. The court found that the

report did not provide information about how the physician was to insure that the

hospital was adequately staffed and that staff members were appropriately trained

or what measures were available to insure the patient’s safety. Id. The expert’s

report in Kingwood did not indicate what kind of supervision by the hospital was

sufficient to provide a secure environment for the patient. Kingwood at 750. Dr.

Reid’s report clearly informs SMTC as to what it should have done but did not.

For example, regarding staffing, Dr. Reid does state specifically how many staff

members SMTC should have had on the unit at the time of the assault but did not.

(CR 33-36). Clearly Dr. Reid’s report is more specific than the one the court

considered in Kingwood and does not “mirror” the statements of the expert report

in Kingwood.

Appellant argues that Dr. Reid’s opinions regarding adequate staffing are

conclusory because Dr. Reid states that “specific staffing data from SMTC is not

yet available to me”. See Appellant’s Brief at 26. The fact that Dr. Reid has not yet

seen staffing data from Appellant does not make his statements conclusory. The

Texas Supreme Court stated in Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632

(Tex. 2013), “The Act requires the expert report to summarize the expert’s

opinions as of the date of the report recognizing that those opinions are subject to

further refinement”. Additional facts may give rise to additional theories of

liability and change theories of liability which are allowed. Id. Requiring an

expert to know all the facts of the case exactly as they happened at this early stage

of the lawsuit would place an impossible burden upon plaintiff’s expert that could

never be met. Id. The court accepts the factual statement for purpose of

sufficiency of expert report inquiry. Shenoy v. Jean, No. 01-10-01116-CV, 2011

WL 6938538 (Tex. App. – Houston [1st Dist.] Dec. 29, 2011, no pet.). Dr. Reid’s

opinions are based upon the facts known at the time of the report which he links to

his opinions regarding the standard of care, breach and causation and his opinions

are neither speculative nor conclusory.

It is necessary to address the additional four standards of care, breach and

causal nexus beyond adequate staffing that Dr. Reid discusses in his report because

if any of the five standards and their breach and causal nexus described in Dr.

Reid’s report represents a “good faith” “fair summary” of Dr. Reid’s opinions, then

the trial court did not abuse its discretion and the case proceeds on all theories of

liability against Appellant. See Potts at 630; TTHR Limited P’ship v. Moreno, 401

S.W.3d 41 (Tex. 2013).

The second standard of care breached by SMTC relates to adequate training.

Dr. Reid states in relevant part,

SMTC… had duties to its unit employee Ms. Payton which

included...adequate training with regard to recognizing, and

managing situations that might arise in which her safety could be

compromised…SMTC failed to meet the relevant duty/standard-

per 1(b), above-when it failed to provide Ms. Payton with

adequate training regarding safety in a workplace which

contained foreseeable threats to staff safety. Review of Ms.

Payton’s SMTC personnel file and relevant portions of the

SMTC Employee Handbook reveals no indication that Ms.

Payton received any SMTC training regarding her safety in the

workplace, and particularly none related to recognizing

potentially dangerous patients, recognizing potentially assaultive

patients, or protecting herself from patient assault…SMTC’s

failures to meet the applicable standards, individually and

collectively, …foreseeably let to (i.e., were a significant cause

of) damages to Ms. Payton …But for one or more of the

breaches by SMTC, …it is more likely than not that the January

2, 2012, assault would not have occurred, and thus the

…damages to Ms. Payton, would not have occurred.

Specifically, if Ms. Payton had received adequate training

regarding the dangers of escorting patients such as Leroy Simon

off-unit alone, she would not have escorted him alone to the

laundry room.

(CR 32-35). These statements in Dr. Reid’s report clearly identify the standard of

care, detail what an reasonably prudent healthcare provider would have done and

states what the Appellant needed to do and how the breach gave rise to Ms.

Payton’s harm, injuries, or damages. Dr. Reid states the specific type of training

required, training related to recognizing potentially dangerous patients, recognizing

potentially assaultive patients, or protecting herself from patient assault and

training regarding the dangers of escorting patients such as Leroy Simon off-unit

alone. (CR 33-35).

Appellant was clearly put on notice as to what it should have done but did

not do, because Appellant responded to the allegation of inadequate training in its

brief with facts to argue against that allegation. See Appellant’s Brief at 21. This

Court should not consider these facts because they are not part of the trial court’s

record and because this Court is limited in its determination of whether the trial

court abused its discretion in finding Dr. Reid’s report was a “good faith” “fair

summary” of his opinions to the “four corners” of the expert report. Am.

Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

The facts within the expert report are taken as true in a Chapter 74 review of the

expert’s report. Jean v. Shenoy, No. 01-10-01116-CV, 2011 WL 6938538 (Tex.

App. – Houston [1st Dist.] Dec. 29, 2011, no pet.).

The report of an expert under Chapter 74 is not reviewed like the evidence in

a summary judgment proceeding. Kloeris v. Stockdale, No. 01-09-00711-CV, 2010

WL 1241305 (Tex. App. - Houston [1st Dist.] 2010, no pet.); Methodist Hosp. v.

Shepherd-Sherman, 296 S.W.3d 193, 199 n. 2 (Tex. App. Houston [14 th Dist]

2009, no pet.); Wissa v. Voosen, 243 S.W.3d 165, 169 (Tex. App. – San Antonio

2007, no pet.). Whether an expert’s opinions are correct is an issue for summary

judgment, not a Chapter 74 motion to dismiss. Kloeris at 7. “A Motion to dismiss

seeks to demonstrate that plaintiff has not satisfied the procedural requirements of

Chapter 74, while a motion for summary judgment seeks to demonstrate that the

substance of the claim lacks merit”. Wissa at 169. Dr. Reid’s expert report

provided a “good faith” “fair summary” of the standard of care applicable to

SMTC, how SMTC breached that standard and how the breach led to Ms. Payton’s

assault and injuries which is the focus of the Court in a Chapter 74 review, not

whether Dr. Reid is ultimately correct in his opinions. See Kloeris at 7. Dr. Reid’s

report is a “good faith” “fair summary” of his opinions related to adequate training

at the time his report was written.

Dr. Reid’s expert report is also a “good faith” “fair summary” of his

opinions relating to the third standard, adequate notification, its breach and the

causal nexus. Dr. Reid states in his report,

SMTC…had duties to its unit employee Ms. Payton, which

included…adequate notification of work situations or persons in

her work environment that could reasonably present a danger to

her or others…SMTC failed to meet the relevant duty/standard..

when it failed to provide Ms. Payton with information or

notification that patient Leroy Simon was likely to be assaultive

or otherwise dangerous to staff and/or patients. SMTC knew that

Mr. Simon had a pre-admission history of, among other things,

“severe impulsivity or explosive expression of anger” (See Dr.

Harrell’s December, 2011, evaluation). Nevertheless, review of

materials associated with the January 2, 2012, assault upon Ms.

Payton reveals no indication that Ms. Payton or other unit staff

had been notified or otherwise advised that Mr. Simon was

potentially assaultive or otherwise dangerous, or that her

escorting him off the unit to the laundry alone was

unsafe…SMTC’s failures to meet the applicable standards,

individually and collectively,…foreseeably led to (i.e., were a

significant cause of) damages to Ms. Payton…But for one or

more of the breaches by SMTC …it is more likely than not that

the January 2, 2012, assault would not have occurred, and thus

the … damages to Ms. Payton, would not have occurred.

Specifically, if Ms. Payton had been adequately informed by

SMTC of Mr. Simon’s past history of such things as violence,

impulsive and assaultive behavior, other behaviors noted above,

and his pre-admission history of “sever impulsivity or explosive

expression of anger” (cf. Dr. Harrell’s pre-incident evaluation,

December 12-13, 2011), she would not have escorted him to the

laundry room alone.

(CR 32-35). These statements regarding adequate notification detail the standard

of care, breach and causal nexus with facts underlying the breach and causal nexus

that inform Appellant of what it should have done but did not do, and allow the

court to determine the claims are not frivolous.

Appellant complains that Dr. Reid’s opinions regarding notification are

conclusory because they do not state what SMTC’s methods of informing staff

about patient behaviors were or should have been. See Appellant’s Brief at 22. The

type of notification was not at issue because Ms. Payton received no notification, it

was the subject matter of the notification that mattered, because if Ms. Payton had

been adequately informed of the subject matter of the notification, she would not

have escorted Leroy Simon off the unit alone. Dr. Reid’s explanation of the

standard and breach are based upon Appellant’s complete failure to notify Ms.

Payton and specifically state the subject matter of what Ms. Payton should have

been informed of regarding the patient who assaulted her. These opinions are not

conclusory and provide a “good faith” “fair summary” of Dr. Reid’s opinions.

Appellant’s argument again fails because the expert’s opinions for purposes of a

Chapter 74 review are based upon the facts known to the expert at the time of the

report. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). Dr. Reid’s

report provides a “good faith” “fair summary” of his opinions regarding the

standard of adequate notification of work situations, or persons in Ms. Payton’s

work environment, that could reasonably present a danger to her or others. Dr.

Reid’s opinion regarding adequate notification clearly identifies the standard of

care, states what Appellant should have done but did not and how the breach led to

Ms. Payton’s harm and ties those opinions to the facts known to Dr. Reid at the

time of the report.

The fourth standard regarding admission of Mr. Simon to SMTC also

provides a “good faith” “fair summary” of Dr. Reid’s opinions. Dr. Reid states in

relevant part,

SMTC by itself and through its various parts or assigns, had

duties to its unit employee Ms. Payton which included…

adequate care in avoiding or declining admission of

patients/clients who are inappropriate for the unit on which she

worked… SMTC failed to meet the relevant duty/standard…

when it admitted, allowed to be admitted, and/or allowed

housing on the children’s unit without adequate containment

and/or supervision, Leroy Simon, a 17 year-old, “stocky” (per

911 call) male sex offender with a substantial history of

aggression, fights with staff (Dr. Coons, 3/14/2012, p. 2) and

peers, criminal assault (cf. 1/2/2012 Hays County criminal

complaint), severe problems with physical and sexual conduct,

conduct disorder, poor impulse control and/or frequent inability

to resist aggressive and sexual impulses, which had manifested

themselves both in and outside residential treatment settings.

SMTC knew that Mr. Simon had a pre-admission history of,

among other things, “sever impulsivity or explosive expression

of anger” (See Dr. Harrell’s December, 2011, evaluation), as

well as other behaviors and symptoms enumerated above and

below. Review of Mr. Simon’s pre and post-incident evaluation

(with notes about his history prior to his assault on Ms. Payton)

by Dr. Richard Coons and Dr. Walter Harrell (one performed

white he was at SMTC, 18 days before the assault) indicates that

SMTC was well aware, or should have been aware, that Simon

was inappropriate for admission to SMTC and/or was not

suited—in terms of staff and patient safety—for housing on the

boys’ unit on which he was housed on January 2, 2012, (the date

of the assault), without special supervision or containment.

SMTC’s failures to meet the applicable standards, individually

and collectively,…foreseeably let to (i.e., were a significant

cause of) damages to Ms. Payton…But for one or more of the

breaches by SMTC,…it is more likely than not that the January

2, 2012, assault would not have occurred, and thus the …

damages to Ms. Payton, would not have occurred. Specifically,

If Mr. Simon had not been admitted to SMTC and housed on Ms.

Payton’s boys’ unit (to the extent that he was negligently

admitted and housed; see above) Ms. Payton would not have

been assaulted and injured by him on January 2, 2012.

(CR 32-35). Dr. Reid identifies the standard of care, states how Appellant breached

that duty, states what Appellant should have done and states how the breach led to

the assault and damages to Ms. Payton.

Dr. Reid discusses the supervision or containment of the patient further in

his fifth standard of care where he states in relevant part,

SMTC, by itself and through its various parts or assigns, had

duties to its unit employee Ms. Payton which included, but may

not have been limited to elimination or amelioration of

reasonably known risks to Ms. Payton and other staff or patients

created by patients/clients who are admitted to and housed on the

unit on which she worked…SMTC failed to meet the relevant

duty/standard…when it failed to adequately contain, supervise,

and/or monitor Leroy Simon to ameliorate his danger to others

and protect staff and patients on and before January 2, 2012.

Review of materials associated with the January 2, 2012, assault

upon Ms. Payton reveal no indication that Mr. Simon was under

any particular monitoring or containment order, special

supervision, or the like, which should have been commensurate

with his known history and behavioral/mental condition (see

above and below). SMTC knew or reasonably should have

known that Leroy Simon was dangerous or assaultive, and

should have been physically contained and/or supervised by

more than one, female, staff person. There is no indication in the

records available to me that SMTC did anything, physically or

clinically, to ameliorate the danger from Leroy Simon to staff

and other patients. (Many, perhaps all, other patients on the

boys’ unit were apparently much younger and smaller than Mr.

Simon)…SMTC’s failures to meet the applicable standards,

individually and collectively,…foreseeably let to (i.e., were a

significant cause of) damages to Ms. Payton…But for one or

more of the breaches by SMTC…it is more likely than not that

the January 2, 2012, assault would not have occurred, and thus

the above damages to Ms. Payton, would not have occurred.

Specifically… If Mr. Simon had been placed on adequate safety

precautions, such as with the containment and/or supervision

reasonably required given his past history, Ms. Payton would not

have escorted him to the laundry room alone.

(CR 32, 33-34). Dr. Reid’s opinions regarding adequate containment/supervision

clearly identifies the standard of care, the breach and causation. Dr. Reid informs

Appellant about the specific conduct about which Appellee complains.

Appellant argues that Dr. Reid’s statements regarding supervision by more

than one female staff person are conclusory because Dr. Reid stated in his report

that specific staffing data from Appellant was not yet available to him. See

Appellants Brief at 22. This is not the case because the facts reviewed by Dr.

Reid clearly reflect Ms. Payton was the only one supervising the assaultive patient

at the time she was assaulted. This argument by Appellant also fails for the same

reasons its argument fails regarding the standard of adequate staffing. The court is

limited in its review of whether the expert report makes a “good faith” effort to

“fairly summarize” the experts opinions by looking only at the “four corners” of

the report. Palacios, at 878.

The fact that Dr. Reid has not yet seen staffing data from Appellant does not

make his statements conclusory. The Texas Supreme Court has stated, “The Act

requires the expert report to summarize the expert’s opinions as of the date of the

report recognizing that those opinions are subject to further refinement”. Potts,

392 S.W.3d at 632. Additional facts may give rise to additional theories of liability

and change theories of liability which are allowed. Id. Requiring an expert to

know all the facts of the case exactly as they happened at this early stage of the

lawsuit would place an impossible burden upon plaintiff’s expert that could never

be met. Id. The court accepts the factual statement for purpose of sufficient of an

expert report inquiry. Jean v. Shenoy, No. 01-10-01116-CV, 2011 WL 6938538

(Tex. App. – Houston [1st Dist.] Dec. 29, 2011, no pet.). Dr. Reid’s opinions are

based upon the facts known at the time of the report which he links to his opinions

regarding the standard of care, breach and causation are not speculative or

conclusory.

Dr. Reid’s report provides a “good faith” “fair summary” of the standard to

use adequate care in avoiding or declining admission of patients/clients who are

inappropriate for the unit on which Mr. Payton worked. Dr. Reid provides factual

details of the patient who assaulted Ms. Payton, “Leroy Simon, a 17 year-old,

“stocky” (per 911 call) male sex offender with a substantial history of aggression,

fights with staff (Dr. Coons, 3/14/2012, p. 2) and peers, criminal assault (cf.

1/2/2012 Hays County criminal complaint), severe problems with physical and

sexual conduct, conduct disorder, poor impulse control and/or frequent inability to

resist aggressive and sexual impulses, which had manifested themselves both in

and outside residential treatment settings. (CR 33-34). Dr. Reid details how or

why SMTC knew that Mr. Simon had a pre-admission history of, among other

things, “severe impulsivity or explosive expression of anger” (See Dr. Harrell’s

December, 2011, evaluation), as well as other behaviors and symptoms. (CR 32-

35). Dr. Reid bases his opinion in part on the preadmission history taken by

Appellant 18 days before the assault and states it indicates that, “SMTC was well

aware, or should have been aware, that Simon was inappropriate for admission to

SMTC and/or was not suited—in terms of staff and patient safety—for housing on

the boys’ unit on which he was housed on January 2, 2012, without special

supervision or containment”. (CR 34). Dr. Reid then states what Appellant failed

to do, “Review of materials associated with the January 2, 2012, assault upon Ms.

Payton reveal no indication that Mr. Simon was under any particular monitoring or

containment order, special supervision, or the like, which should have been

commensurate with his known history and behavioral/mental condition (see above

and below). (CR 34). Appellant knew or reasonably should have known that Leroy

Simon was dangerous or assaultive, and should have been physically contained

and/or supervised by more than one, female, staff person. (CR 34). There is no

indication in the records available to me that SMTC did anything, physically or

clinically, to ameliorate the danger from Leroy Simon to staff and other patients.

(Many, perhaps all, other patients on the boys’ unit were apparently much younger

and smaller than Mr. Simon)”. (CR 34). These statements reflect a “good faith”

“fair summary” of Dr. Reid’s opinions. Appellant’s complaints regarding these

standards is another example of Appellant arguing the facts of the case, which

clearly shows it has notice of what the expert is saying it should have done but

failed to do. Simply because SMTC does not like the facts does not make the

opinions of the expert conclusory.

Dr. Reid’s report specifically states the standards of care required, details

how those standards were breached and informs Appellant what is should have

done but failed to do and allows the trial court to determine the case is not

frivolous for all five theories of negligence in Dr. Reid’s report. Dr. Reid’s report

provides a “good faith” “fair summary” of his opinions on the elements required by

Chapter 74.

Appellant also criticizes Dr. Reid’s report on the element of causation. See

Appellant’s Brief at 27-28. Dr. Reid’s report provides a “good faith” “fair

summary” of his opinions on the element of causation. Assault is not a medical

condition. UHS of Timberlawn, Inc. v. S.B., 281 S.W.3d 207, (Tex. App. – Dallas

2009, pet. denied). Assault cases are different from those cases in which the

injury, harm, or damages claimed flow from the existence of a medical condition

that itself resulted from the breach and require not only explanation as to how

standard was breached but also how the breach gave rise to the medical condition.

Assault cases are also different from healthcare liability claims alleging that

breaches of a standard of care caused an exacerbation of a preexisting medical

condition, or hindered or prevented effective treatment of such a condition. Id.

Identifying the causal relationship in those cases may well require an expert to

opine as to the existence, extent, and prognosis of a pre-existing medical condition

as well as how the breach aggravated, impeded, or prohibited treatment and

otherwise affected patient’s prognosis. Id.

Several cases cited by Appellant in his brief on the causation element are not

assault cases but rather those types of healthcare liability claims differentiated from

assault cases by the court in Timberlawn. See Jelenek v. Casas, 328 S.W.3d 526

(Tex. 2010)(discussing causation required for prescription lapse to cause infection

causing additional pain and suffering beyond what plaintiff would have otherwise

experienced when other causes of infection are equally possible); Smith v. Wilson,

368 S.W.3d 574 (Tex. App. – Austin 2012, no pet.) (discussing statement that a

correlation exists between fluoxetine and suicide in adolescents as not supplying a

causal link between drug and suicide when plaintiff was not an adolescent);

Kocurek v. Colby, No. 03-13-00057, 2014 WL 4179454 (Tex. App. – Austin Aug.

22, 2014, no pet.) (discussing the insufficiency of the expert’s report on the

element of causation when plaintiff was claiming worsening of pain and numbness

because failed to specify how any injury would have been prevented or lessened

had plaintiff received “appropriate care” sooner and statement that referral to

specialist “might have made a difference”).

In assault cases the expert report should link the defendant’s negligence with

the alleged harm, the assault. Christian Care Centers, Inc., v. Golenko, 328 S.W.

3d 637, 648 (Tex. App. – Dallas 2011, pet. denied) citing Timberlawn. In the case

of Texarkana Nursing & Healthcare Center, LLC v. Lyle 338 S.W.3d 314, 323

(Tex. App. – Texarkana 2012, no pet.), the court held that if the expert report is

insufficient on the standard of care and breach and does not advise the defendant of

what it should have done differently then causation should be described in terms of

the specific shortcomings that created a situation in which assault could occur. Dr.

Reid’s report is sufficient on the standard of care and breach because it advises the

defendant of what it should have done differently and causation is also described in

terms of the specific shortcomings that created the situation in which the assault

occurred. Dr. Reid’s report links all the breaches of the standard of care to the

circumstances allowing assault. Dr. Reid’s report describes the damages Ms.

Payton suffered as a result of the assault and the facts leading to his opinion that

the assault caused those damages. (CR 34-35). He also describes the standards and

breaches in further detail and gives his opinion that but for one or more breaches it

is more likely than not that the January 2, 2012 assault would not have occurred,

and thus the damages to Ms. Payton described in his report would not have

occurred. (CR 35).

Dr. Reid’s expert report is at least as specific regarding the standard of care,

breach and causation as the report found sufficient on those elements in Nexion v.

Treybig, No. 05-14-00498-CV, 2014 WL 7499373 (Tex. App. – Dallas, Dec. 31,

2014, no pet.) where the court found the standard of care articulated as,

the facility must provide a safe environment for its patients such

as securing qualified personnel, adequately supervising therapy

sessions, providing proper equipment and facilities for all

treatments necessary to meet the patient’s needs, and following

up with the patient to verify the success of all procedures and

treatments. . . The standard is not met when nursing home fails to

properly investigate, treat and document the patient’s pain

complaints over the course of time. The instance of Defendant’s

failure to investigate and treat the patient’s back pain was during

the therapy session when the therapists ignored Mr. Treybig’s

cries of pain and requests to stop the session, continuing to push

and pull using their combined bodyweight…reasonable

investigation, documentation and treatment would have signified

the danger in forceful hamstring stretches on a double below the

knee amputee, and prevent fracture.

Dr. Reid’s report is also more specific than the assault case of Christus Spohn

Health Sys. Corp. v. Sanchez, 299 S.W. 3d 868, 877-78 (Tex. App. – Corpus

Christi 2009, pet. denied) in which the court concluded the expert reports

sufficiently linked the patient’s assault to the hospital’s failure to protect her from

the assaultive conduct of its employees, the report stated the hospital had a duty to

provide a safe recovery environment, described the alleged conduct of the

employees, and concluded that the fact that the patient was vulnerable, unable to

protect herself, and felt as if her person was violated has caused her to now have

symptoms of Major Depression and Post Traumatic Stress Disorder. All five of

the standards, breaches and causal nexus articulated in Dr. Reid’s report are more

specific than the report in Spohn. Dr. Reid’s report is also as specific as the one

this Court found sufficient in Chadha, M.D. v. Rothert, No. 03-13-00153-CV, 2014

WL 538815 (Tex. App. – Austin Feb. 5, 2014, no pet.) In Chadha, the expert

report stated the standard of care, “required that Dr. Chadha follow-up with the

patient regarding the elevated sedimentation rate in 2010”. The expert report then

detailed the breach, “should have called [Sharon] and had her return for a follow-

up”. The expert then gave facts as to support his opinion on the breach, and

connected the breach to the harm, vision loss by the patient. Dr. Reid’s report

likewise provides the standard of care, the breach, and the causal nexus with facts

to support his opinions. Dr. Reid’s entire expert report is a “good faith” “fair

summary” of his opinions regarding the standard of care, breach of the standard of

care and causation and is not conclusory. Therefore, the trial court did not abuse

its discretion in denying Appellants motion to dismiss.

C. Dr. Reid’s Expert Report Satisfies the Purpose of Chapter 74’s

Expert Report Requirement

Appellants argue that the purpose of the Texas Legislature in enacting

Chapter 74 would be thwarted unless this Court finds the trial court abused its

discretion in finding Dr. Reid’s report to be a “good faith” “fair summary” of his

opinions. This argument is simply incorrect. The Texas Supreme Court recently

discussed the purpose of the Legislature in enacting Chapter 74 in Certified Ems,

Inc. V. Potts, 392 S.W.3d 625, 631-32 (Tex. 2013). There, the Texas Supreme

Court stated, “In amending the Act, the Legislature sought to reduce ‘the excessive

frequency and severity of …claims’, but to ‘do so in a manner that will not unduly

restrict a claimant’s rights any more than necessary to deal with the crisis’ (citing

the act)…In accordance with this goal…we have also stated that the purpose of

evaluating expert reports is to ‘deter frivolous claims, not to dispose of claims

regardless of their merits’ Scoresby v. Sullivan, 346 S.W.3d 546, 554 (Tex. 2011).”

The Texas Supreme Court continued stating, “If a healthcare liability claim

contains at least one viable liability theory, as evidenced by an expert report

meeting the statutory requirements, the claim cannot be frivolous. The

Legislature’s goal was to deter baseless claims, not to block earnest ones.” Id. Dr.

Reid’s expert report meets the statutory requirements as to all five of the

negligence theories Ms. Payton claims. So Ms. Payton’s claims cannot be

frivolous. The Legislative goal of Chapter 74 to “deter baseless claims, not to

block earnest ones” is satisfied with Dr. Reid’s report.

CONCLUSION & PRAYER

In conclusion, the expert report by Dr. Reid very clearly and specifically sets

forth five standards of care as they apply to San Marcos Treatment Center and

specifically details how those standards of care were breached. Dr. Reid’s report

informs San Marcos Treatment Center of the specific conduct called into question,

notifying it as to what it should have done differently. Dr. Reid’s report also

describes how the breaches in the standards of care led to Ms. Payton’s assault and

subsequent injuries. Appellant is asking this Court to hold Dr. Reid’s expert report

to a much higher standard than the “fair summary” standard mandated by Chapter

74. Appellant wants the report to marshal all the evidence in detail without the

benefit of discovery of Appellant’s records and without any depositions. The law

is clear that Dr. Reid’s report must only provide a “good faith” “fair summary” of

his opinions. Tex. Civ. Prac. Rem. Code §74.351(r)(6); Am. Transitional Care

Ctrs. of Tex. Inc. v. Palacios, 46 S.W. 3d 873 (Tex. 2001); Certified EMS, Inc. v.

Potts, 392 S.W.3d 625 (Tex. 2013). Dr. Reid’s report provides just such a “good

faith” “fair summary” of his opinions and satisfies the Legislative goal of Chapter

74 to “deter baseless claims, not to block earnest ones”. Id. The trial court did not

abuse its discretion by finding Dr. Reid’s report sufficient and overruling

Appellant’s motion to dismiss pursuant to 74.351(b).

Ms. Veronica Payton respectfully requests this Court affirm the trial court’s

order overruling San Marcos Treatment Centers’ motion to dismiss pursuant to

74.351(b). In the alternative, should this Court find the trial court abused its

discretion by finding Dr. Reid’s report sufficient, Ms. Payton prays this Court

remand the case to the trial court for a determination of whether to grant Ms.

Payton a 30-day extension to cure under Tex. Civ. Prac. & Rem. Code §74.351(c).

Appellee also requests reasonable attorney’s fees and costs and all other relief to

which she may be entitled.

Respectfully submitted,

Allison & Ward

By: /s/ Adam S. Ward

Adam S. Ward

Texas Bar No. 00788615

allison-ward@sbcglobal.net

2001 North Lamar Blvd.

Austin, Texas 78705

Telephone: (512) 474-8153

Facsimile: (512) 474-9703

Attorneys for Appellee,

Veronica Payton

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Brief for Appellee is computer generated,

has been prepared in a conventional typeface no smaller than 14-point text and 12-

point for footnotes, contains 9762 words according to word count function of the

computer program used to prepare this Brief, excluding any parts exempted by

Tex. R. App. P. 9.4(i)(1), and otherwise complies with Texas Rule of Appellate

Procedure 9.4.

/s/ Adam S. Ward

Adam S. Ward

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

instrument has been forwarded to all known counsel of record in accordance with

the Texas Rules of Appellate Procedure on this the 10th day of February, 2015.

Ryan L. Clement

Serpe Jones Andrews

Callender & Bell, PLLC

2929 Allen Parkway, Suite 1600

Houston, Texas 77019

Telephone: (713) 452-4400

Facsimile: (713) 452-4499

Email: rclement@serpejones.com

/s/ Adam S. Ward

Adam S. Ward

APPENDIX A

EXPERT REPORT AND CURRICULUM VITAE OF

DR. WILLIAM H. REID, M.D. M.P.H.

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APPENDIX B

CASES

Page 1

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

mony

198Hk821(1) k. In general. Most

Supreme Court of Texas. Cited Cases

AMERICAN TRANSITIONAL CARE CENTERS (Formerly 299k18.80(6.1) Physicians and Sur-

OF TEXAS, INC. d/b/a American Transitional geons)

Hospital, Petitioner, Expert testimony is necessary in medical-

v. malpractice cases. Vernon's Ann.Texas Civ.St. art.

Teofilo PALACIOS and Maria Palacios, individu- 4590i, § 13.01(d).

ally and a/n/f of Gloria Janeth Palacios and Rocio

Daniela Palacios, minors, Maria Angelica Palacios, [2] Appeal and Error 30 960(1)

and Sentry Insurance, a mutual company, Respond-

ents. 30 Appeal and Error

30XVI Review

No. 99–1311. 30XVI(H) Discretion of Lower Court

Argued Dec. 6, 2000. 30k960 Rulings on Motions Relating to

Decided May 10, 2001. Pleadings

Rehearing Overruled June 28, 2001. 30k960(1) k. In general. Most Cited

Cases

Medical malpractice action was brought against (Formerly 198Hk809, 299k18.130 Physicians

hospital to recover for injuries patient allegedly and Surgeons)

suffered in fall at hospital. The 280th District A trial court's determination about the ad-

Court, Harris County, Tony Lindsay, J., dismissed equacy of an expert report under the Medical Liab-

case for failure to file expert report, as required by ility and Insurance Improvement Act is reviewed

Medical Liability and Insurance Improvement Act. under an abuse-of-discretion standard. Vernon's

Patient appealed. The Houston Court of Appeals, Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

First District, reversed and remanded, 4 S.W.3d

857. On petition for review, the Supreme Court, [3] Appeal and Error 30 984(1)

Hankinson, J., held that: (1) trial court's determina-

tion about adequacy of expert report under Act is 30 Appeal and Error

reviewed under abuse-of-discretion standard, and 30XVI Review

(2) expert's report did not provide fair summary of 30XVI(H) Discretion of Lower Court

standard of care and how it was breached. 30k984 Costs and Allowances

30k984(1) k. In general. Most Cited

Court of Appeals' judgment reversed. Cases

Sanctions are generally reviewed under an ab-

West Headnotes use-of-discretion standard.

[1] Health 198H 821(1) [4] Health 198H 804

198H Health 198H Health

198HV Malpractice, Negligence, or Breach of 198HV Malpractice, Negligence, or Breach of

Duty Duty

198HV(G) Actions and Proceedings 198HV(G) Actions and Proceedings

198Hk815 Evidence 198Hk804 k. Affidavits of merit or merit-

198Hk821 Necessity of Expert Testi- orious defense; expert affidavits. Most Cited Cases

Page 2

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

(Formerly 299k18.20 Physicians and Surgeons) 198H Health

In determining the adequacy of an expert report 198HV Malpractice, Negligence, or Breach of

under the Medical Liability and Insurance Improve- Duty

ment Act, the trial court should look no further than 198HV(G) Actions and Proceedings

the report. Vernon's Ann.Texas Civ.St. art. 4590i, § 198Hk804 k. Affidavits of merit or merit-

13.01(l). orious defense; expert affidavits. Most Cited Cases

(Formerly 299k18.20 Physicians and Surgeons)

[5] Health 198H 804 A report that merely states the expert's conclu-

sions about the standard of care, breach, and causa-

198H Health

tion does not constitute a good-faith effort under

198HV Malpractice, Negligence, or Breach of

the Medical Liability and Insurance Improvement

Duty

Act. Vernon's Ann.Texas Civ.St. art. 4590i, §

198HV(G) Actions and Proceedings

13.01(l), (r)(6).

198Hk804 k. Affidavits of merit or merit-

orious defense; expert affidavits. Most Cited Cases [8] Health 198H 804

(Formerly 299k18.20 Physicians and Surgeons)

For an expert's report to satisfy the require- 198H Health

ments of the Medical Liability and Insurance Im- 198HV Malpractice, Negligence, or Breach of

provement Act, the report need not marshal all the Duty

plaintiff's proof, but it must include the expert's 198HV(G) Actions and Proceedings

opinion on each of the elements identified in the 198Hk804 k. Affidavits of merit or merit-

statute. Vernon's Ann.Texas Civ.St. art. 4590i, § orious defense; expert affidavits. Most Cited Cases

13.01(l). (Formerly 299k18.20 Physicians and Surgeons)

An expert's report that omits any of the stat-

[6] Health 198H 804 utory requirements does not constitute a good-faith

effort under the Medical Liability and Insurance

198H Health

Improvement Act. Vernon's Ann.Texas Civ.St. art.

198HV Malpractice, Negligence, or Breach of

4590i, § 13.01(l), (r)(6).

Duty

198HV(G) Actions and Proceedings [9] Health 198H 804

198Hk804 k. Affidavits of merit or merit-

orious defense; expert affidavits. Most Cited Cases 198H Health

(Formerly 299k18.20 Physicians and Surgeons) 198HV Malpractice, Negligence, or Breach of

For an expert's report to constitute a good-faith Duty

effort under the Medical Liability and Insurance 198HV(G) Actions and Proceedings

Improvement Act, the report must provide enough 198Hk804 k. Affidavits of merit or merit-

information to fulfill two purposes: first, the report orious defense; expert affidavits. Most Cited Cases

must inform the defendant of the specific conduct (Formerly 299k18.20 Physicians and Surgeons)

the plaintiff has called into question; second, and To avoid dismissal due to inadequacy of an ex-

equally important, the report must provide a basis pert's report under the Medical Liability and Insur-

for the trial court to conclude that the claims have ance Improvement Act, a plaintiff need not present

merit. Vernon's Ann.Texas Civ.St. art. 4590i, § evidence in the report as if it were actually litigat-

13.01(l), (r)(6). ing the merits. Vernon's Ann.Texas Civ.St. art.

4590i, § 13.01(l), (r)(6).

[7] Health 198H 804

[10] Health 198H 804

Page 3

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

198H Health faith effort under the Medical Liability and Insur-

198HV Malpractice, Negligence, or Breach of ance Improvement Act if it simply states that he or

Duty she knows the standard of care and that it was or

198HV(G) Actions and Proceedings was not met. Vernon's Ann.Texas Civ.St. art. 4590i,

198Hk804 k. Affidavits of merit or merit- § 13.01(l), (r)(6).

orious defense; expert affidavits. Most Cited Cases

(Formerly 299k18.20 Physicians and Surgeons) *875 Matthew T. McCracken, John C. Marshall,

The expert's report in a medical malpractice ac- James C. Marrow, Dee L. Dawson, Marshall & Mc-

tion can be informal in that the information in the Craken, Houston, for Petitioner.

report does not have to meet the same requirements

D. John Leger, Leger & Coplen, Levon G. Hov-

as the evidence offered in a summary-judgment

natanian, Martin Disiere & Jefferson, Houston,

proceeding or at trial. Vernon's Ann.Texas Civ.St.

Mickey C. Shyrock, Law Office of Mickey C.

art. 4590i, § 13.01(l), (r)(6).

Shyrock, Athens, for Respondents.

[11] Health 198H 804

Justice HANKINSON delivered the opinion of the

198H Health

Court.

198HV Malpractice, Negligence, or Breach of

In this medical-malpractice case we determine

Duty

the standards for reviewing an expert report under

198HV(G) Actions and Proceedings

section 13.01 of the Medical Liability and Insur-

198Hk804 k. Affidavits of merit or merit-

ance Improvement Act. TEX.REV.CIV. STAT.

orious defense; expert affidavits. Most Cited Cases

ANN.. art. 4590i, § 13.01. The trial court dismissed

(Formerly 198Hk961, 204k8 Hospitals)

the Palacioses' medical-malpractice claims against

Conclusory statement in expert's report that de-

American Transitional Care Centers, Inc., d/b/a

fendant hospital did not use precautions to prevent

American Transitional Hospital, because it determ-

patient's fall was not good-faith effort to provide

ined that the Palacioses' expert report did not show

fair summary of standard of care and how it was

a good-faith effort to provide a fair summary of the

breached, and thus, dismissal of medical malprac-

expert's opinions about the standard of care, breach,

tice action was warranted under Medical Liability

and causation, as required by section 13.01. See id.

and Insurance Improvement Act; it could not be de-

§ 13.01(d), (e), (l), (r)(6). The court of appeals,

termined from that statement if expert believed that

after evaluating the trial court's decision as it would

standard of care required hospital to have mon-

a summary-judgment decision, reversed, holding

itored patient more closely, restrained him more se-

that the report did meet the statutory requirements.

curely, or done something else entirely. Vernon's

4 S.W.3d 857, 860.

Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

We hold that a trial court's decision to dismiss

[12] Health 198H 804

a case under section 13.01(e) is reviewed for abuse

198H Health of discretion. We further hold that to constitute a

198HV Malpractice, Negligence, or Breach of good-faith effort to provide a fair summary of an

Duty expert's opinions under section 13.01(l ), an expert

198HV(G) Actions and Proceedings report must discuss the standard of care, breach,

198Hk804 k. Affidavits of merit or merit- and causation with sufficient specificity to inform

orious defense; expert affidavits. Most Cited Cases the defendant of the conduct the plaintiff has called

(Formerly 299k18.20 Physicians and Surgeons) into question and to provide a basis for the trial

An expert's report does not constitute a good- court to conclude that the claims have merit. In this

Page 4

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

case, the trial court did not abuse its discretion in defendant.

concluding that the challenged report does not meet

the statutory requirements and in dismissing with After 180 days passed from the date the Palaci-

prejudice the claims against American Transitional. oses filed suit, American Transitional moved to dis-

Accordingly, we reverse the court of appeals' judg- miss the case against it because the Palacioses did

ment and dismiss with prejudice the Palacioses' not file an expert report and curriculum vitae, or

claims. nonsuit the claims against American Transitional,

as section 13.01(d) of the Act requires. Id. §

Teofilo Palacios suffered brain damage and 13.01(d), (e). The Palacioses moved for an exten-

other severe injuries following a two-story fall at sion of time to file the report, which the trial court

work. After almost a year in an intensive rehabilita- granted. See id. § 13.01(f), (g). The Palacioses then

tion program, he was transferred to American filed a report prepared by Dr. Catherine F. Bontke,

Transitional Hospital for further rehabilitation. Al- who treated Palacios at the first rehabilitation hos-

though Palacios at that time was able to *876 com- pital. American Transitional again moved to dis-

municate with others and respond to simple com- miss under section 13.01(e), claiming that the re-

mands, he required assistance with most daily tasks. port did not satisfy the statutory requirements. See

In addition, due to the severity of his brain damage, id. § 13.01(l), (r)(6). The trial court granted the mo-

Palacios' physicians prescribed bed restraints for tion, dismissed with prejudice the claims against

him. Nevertheless, while a patient at American American Transitional, and severed those claims to

Transitional, Palacios fell from his bed and required make the judgment against American Transitional

additional medical care for his injuries. His family final. See id. § 13.01(e).

claims that this fall caused him to sustain further

brain injury, which impaired his ability to commu- The Palacioses appealed, and with one justice

nicate with others and to assist them in his care. dissenting, the court of appeals reversed and re-

manded after using summary-judgment review

Palacios and his family sued American Trans- standards to evaluate the sufficiency of the expert

itional and the treating doctors, respectively, for report. 4 S.W.3d at 860. After indulging every reas-

negligently failing to prevent the fall and negli- onable inference in the Palacioses' favor and elim-

gently treating him after the fall. After ninety days inating any deference to the trial court's decision,

passed from the date the Palacioses filed suit, the court of appeals concluded that the trial court

American Transitional, along with the other defend- erred in dismissing the case because the Palacioses

ants, moved to require the Palacioses to file a made a good-faith effort to provide a report that

$7,500 cost bond, as required by section 13.01(b) of met the requirements of section 13.01(r)(6). Id. at

the Medical Liability and Insurance Improvement 862–63. American Transitional petitioned for re-

Act. See TEX.REV.CIV. STAT. ANN.. art. 4590i, view challenging both the standard of review ap-

§ 13.01(b) (authorizing a trial court to order a plied by the court of appeals and the sufficiency of

plaintiff to file a $7,500 cost bond for each defend- the Palacioses' report.

ant physician or health-care provider if the plaintiff

has not complied with the expert-report or $5,000 [1] Texas courts have long recognized the ne-

cost-bond requirement in section 13.01(a)); id. § cessity of expert testimony in medical-malpractice

13.01(a) (requiring the plaintiff to file either an ex- cases. E.g., Hart v. Van Zandt, 399 S.W.2d 791,

pert report or a $5,000 cost bond for each defendant 792 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1,

physician or health-care provider within ninety 219 S.W.2d 779, 782 (1949). “There can be no oth-

days of filing suit). The trial court granted the mo- er guide [than expert testimony], and where want of

tion, and the Palacioses filed a cost bond for each skill and attention is not thus shown by expert evid-

ence applied to the facts, there is no evidence of it

Page 5

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

proper to be submitted to the jury.” Hart, 399 American Transitional contends that a trial

S.W.2d at 792. Because expert testimony is crucial court's determination about the adequacy of an ex-

to a medical-malpractice case, *877 knowing what pert report should be reviewed under an abuse-

specific conduct the plaintiff's experts have called of-discretion standard. The Palacioses respond that

into question is critical to both the defendant's abil- whether a report meets the requirements of subsec-

ity to prepare for trial and the trial court's ability to tions 13.01(l) and (r)(6) is a question of law. They

evaluate the viability of the plaintiff's claims. This suggest that a trial court's decision on the adequacy

makes eliciting an expert's opinions early in the lit- of a report should be reviewed as a court would re-

igation an obvious place to start in attempting to re- view a summary-judgment decision: that is, by in-

duce frivolous lawsuits. See HOUSE COMM. ON dulging every reasonable inference and resolving

CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, any doubts in the nonmovant's favor, and eliminat-

74th Leg., R.S. (1995). ing any deference to the trial court's decision. We

agree with American Transitional.

Accordingly, in section 13.01, the Legislature

requires medical-malpractice plaintiffs, within 180 [2][3] The plain language of section 13.01

days of filing suit, either to provide each defendant leads to the conclusion that abuse of discretion is

physician and health-care provider with an expert the proper standard. First, the statute directs the tri-

report and the expert's curriculum vitae, or to non- al court to grant a motion challenging the adequacy

suit the claims. TEX.REV.CIV. STAT. ANN.. art. of an expert report if it “appears to the court” that

4590i, § 13.01(d). If the plaintiff fails within the the plaintiffs did not make a good-faith effort to

time allowed either to provide the expert reports meet the statutory requirements. Id. § 13.01(l). This

and curriculum vitae, or to nonsuit the case, the tri- language plainly vests the trial court with discre-

al court must sanction the plaintiff by dismissing tion. See TEX. GOV'T CODE § 312.002. (“[W]ords

the case with prejudice, awarding costs and attor- shall be given their ordinary meaning.”). Second,

ney's fees to the defendant, and ordering the forfeit- the statute states that dismissal under section

ure of any applicable cost bond necessary to pay 13.01(e) is a sanction: If the requirements of sec-

that award. Id. § 13.01(e). If the plaintiff does tion 13.01(d) are not met, the court must “enter an

timely file a report, the defendant may move to order as sanctions” dismissing the case and granting

challenge the adequacy of the report, and the trial the defendant its costs and attorneys' fees.

court must grant the motion if “it appears to the TEX.REV.CIV. STAT. ANN .. art. 4590i, §

court ... that the report does not represent a good 13.01(e). Sanctions are generally reviewed under an

faith effort to comply with the definition of an ex- abuse-of-discretion standard. Koslow's v. Mackie,

pert report.” Id. § 13.01(l). The statute defines an 796 S.W.2d 700, 704 (Tex.1990). And we presume

expert report as “a written report by an expert that the Legislature was aware of the standard of review

provides a fair summary of the expert's opinions ... ordinarily applied in sanctions cases when it expli-

regarding applicable standards of care, the manner citly identified a court's dismissal under section

in which the care rendered ... failed to meet the 13.01(e) as a sanction. *878 See McBride v.

standards, and the causal relationship between that Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1943)

failure and the injury, harm, or damages claimed.” ( “All statutes are presumed to be enacted by the le-

Id. § 13.01(r)(6). If a trial court determines that an gislature with full knowledge of the existing condi-

expert report does not meet these statutory require- tion of the law and with reference to it.”).

ments and the time for filing a report has passed, it

must then dismiss with prejudice the claims against Nevertheless, the court of appeals concluded

the defendant who has challenged the report. Id. § that the usual standard of review for sanctions

13.01(e). should not apply here. The court reasoned that the

Page 6

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

provisions of article 4590i at issue here were inten- quiry—whether the report evidences a good-faith

ded to discourage frivolous lawsuits, while sanc- effort to provide a fair summary of the expert's

tions, in contrast, are a response to litigation mis- opinions. According to the Palacioses, the trial

conduct. We disagree with this distinction. court does not have to make any factual determina-

tions because the only relevant information is in the

Filing a frivolous lawsuit can be litigation mis- report itself. We agree with the Palacioses that a tri-

conduct subject to sanction. See TEX.R. CIV. P. 13 al court should look no further than the report in

(imposing sanctions for filing groundless motions, conducting a section 13.01(l ) inquiry.

pleadings, or other papers in bad faith or for the

purposes of harassment). And one purpose of the The issue for the trial court is whether “the re-

expert-report requirement is to deter frivolous port” represents a good-faith effort to comply with

claims. HOUSE COMM. ON CIV. PRAC., BILL the statutory definition of an expert report. Id. §

ANALYSIS, Tex. H.B. 971, 74th Leg., R.S. (1995). 13.01(l ). That definition requires, as to each de-

The Legislature has determined that failing to fendant, a fair summary of the expert's opinions

timely file an expert report, or filing a report that about the applicable standard of care, the manner in

does not evidence a good-faith effort to comply which the care failed to meet that standard, and the

with the definition of an expert report, means that causal relationship between that failure and the

the claim is either frivolous, or at best has been claimed injury. Id. § 13.01(r)(6). Because the stat-

brought prematurely. See id. This is exactly the ute focuses on what the report discusses, the only

type of conduct for which sanctions are appropriate. information relevant to the inquiry is within the

See TransAmerican Natural Gas Corp. v. Powell, four corners of the document.

811 S.W.2d 913, 918 (Tex.1991) (holding that

“death-penalty” sanctions are appropriate when a [5][6] Under subsections 13.01(l ) and (r)(6),

party's discovery abuse justifies a presumption that the expert report must represent only a good-faith

its claims lack merit). For these reasons, we hold effort to provide a fair summary of the expert's

that an abuse-of-discretion standard of review ap- opinions. A report need not marshal all the

plies to a trial court's decision to dismiss a case un- plaintiff's proof, but it must include the expert's

der section 13.01(e). opinion on each of the elements identified in the

statute. See *879Hart v. Wright, 16 S.W.3d 872,

[4] We next consider whether the trial court ab- 877 (Tex.App.—Fort Worth 2000, pet. denied). In

used its discretion in dismissing the Palacioses' setting out the expert's opinions on each of those

claims against American Transitional. The parties elements, the report must provide enough informa-

disagree about how to determine a report's ad- tion to fulfill two purposes if it is to constitute a

equacy under section 13.01(l ). American Trans- good-faith effort. First, the report must inform the

itional argues that the trial court must engage in a defendant of the specific conduct the plaintiff has

two-step process: (1) the trial court must determine called into question. Second, and equally important,

whether the report constitutes a fair summary of the the report must provide a basis for the trial court to

expert's opinions, TEX.REV.CIV. STAT. ANN.. conclude that the claims have merit. See 4 S.W.3d

art. 4590i, § 13.01(r)(6); and (2) if the trial court at 865 (Taft, J. dissenting); Wood v. Tice, 988

concludes that the report is not a fair summary, it S.W.2d 829, 830 (Tex.App.—San Antonio 1999,

must then look outside the report at the plaintiff's pet. denied) (noting that one of the purposes of art-

conduct to determine whether the plaintiff made a icle 4590i is to deter frivolous claims).

good-faith effort to meet the statutory requirements,

id. § 13.01(l ). The Palacioses, on the other hand, [7][8][9][10] A report that merely states the ex-

argue that the statute requires only one in- pert's conclusions about the standard of care,

breach, and causation does not fulfill these two pur-

Page 7

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

poses. Nor can a report meet these purposes and his restraints and precautions to prevent his fall

thus constitute a good-faith effort if it omits any of were not properly utilized.

the statutory requirements. See, e.g., Hart, 16

S.W.3d at 877 (holding that a report was inadequate ....

because it stated that the patient had a heart attack

All in all, Mr. Palacios sustained a second brain

and the doctor breached the standard of care,

injury with a left subdural hematoma while he

without describing the standard of care); Wood, 988

was an inpatient at [the Hospital].... [I]n my opin-

S.W.2d at 831–32 (holding that an expert report did

ion, the medical care rendered to Mr. Palacios at

not meet the statutory requirements because it did

the time of his second brain injury was below the

not name the defendants, state how the defendants

accepted and expected standard of care which he

breached the standard of care, demonstrate causa-

could expect to receive. Moreover, this [sic] be-

tion and damages, or include a curriculum vitae).

low the accepted standard of care extends to both

However, to avoid dismissal, a plaintiff need not

the cause of the second injury as well as the sub-

present evidence in the report as if it were actually

sequent treatment....

litigating the merits. The report can be informal in

that the information in the report does not have to The Palacioses rely mostly on one sentence in

meet the same requirements as the evidence offered the report to establish the standard of care: “Mr.

in a summary-judgment proceeding or at trial. See, Palacios had a habit of *880 trying to undo his re-

e.g., TEX.R. CIV. P. 166(f) (setting out the require- straints and precautions to prevent his fall were not

ments for the form and content of affidavits offered properly utilized.” They argue that the inference

as summary-judgment proof); TEX.R. EVID. 802 can be made from that sentence, along with the

(stating that most hearsay is inadmissible). statement that “[i]t is unclear how he could untie all

four of the restraints from the bed frame in under

[11] American Transitional contends that Dr.

ten minutes,” that Dr. Bontke believes American

Bontke's report does not meet the statutory require-

Transitional's staff should have tied the restraints to

ments because it does not represent a good-faith ef-

the bed more securely.

fort to provide a fair summary of her opinion on the

standard of care and how American Transitional [12] The standard of care for a hospital is what

breached that standard. The Palacioses respond that an ordinarily prudent hospital would do under the

the following parts of Dr. Bontke's report establish same or similar circumstances. See Birchfield v.

these elements: Texarkana Mem'l Hosp., 747 S.W.2d 361, 366

(Tex.1987). Identifying the standard of care is crit-

Based on the available documentation I was

ical: Whether a defendant breached his or her duty

able to conclude that: Mr. Palacios fell from his

to a patient cannot be determined absent specific in-

bed on 5/14/94 while trying to get out of it on his

formation about what the defendant should have

own. The nursing notes document that he was ob-

done differently. “While a ‘fair summary’ is

served by nursing on the hour for two hours prior

something less than a full statement of the applic-

to the fall. In addition, ten minutes before the

able standard of care and how it was breached, even

fall, the nursing notes documents [sic] the his

a fair summary must set out what care was expec-

wrist/vest restraints were on. Yet, at the time of

ted, but not given.” 4 S.W.3d at 865 (Taft, J. dis-

his fall he was found on the floor with his vest/

senting). The statement the Palacioses rely

wrist restraints on but not tied to the bed. It is un-

upon—that precautions to prevent Palacios' fall

clear how he could untie all four of the restraints

were not properly used—is not a statement of a

from the bedframe in under ten minutes. Obvi-

standard of care. Neither the trial court nor Americ-

ously, Mr. Palacios had a habit of trying to undo

an Transitional would be able to determine from

Page 8

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

(Cite as: 46 S.W.3d 873)

this conclusory statement if Dr. Bontke believes

that the standard of care required American Trans-

itional to have monitored Palacios more closely, re-

strained him more securely, or done something else

entirely. “It is not sufficient for an expert to simply

state that he or she knows the standard of care and

concludes it was [or was not] met.” See Chopra v.

Hawryluk, 892 S.W.2d 229, 233 (Tex.App.—El

Paso 1995, writ denied). Knowing only that the ex-

pert believes that American Transitional did not

take precautions to prevent the fall might be useful

if American Transitional had an absolute duty to

prevent falls from its hospital beds. But as a general

rule, res ipsa loquitur does not apply in medical-

malpractice cases. TEX.REV.CIV. STAT. ANN..

art. 4590i, § 7.01 (limiting res ipsa loquitur in med-

ical malpractice to the limited classes of cases to

which it applied as of August 29, 1977); Haddock

v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990).

When the expert report's conclusory statements

do not put the defendant or the trial court on notice

of the conduct complained of, section 13.01(l ) af-

fords the trial court no discretion but to conclude,

as the trial court did here, that the report does not

represent a good-faith effort to provide a fair sum-

mary of the standard of care and how it was

breached, as section 13.01(r)(6) requires. And be-

cause the statutory 180 day time period had passed

when the trial court here made that determination,

section 13.01(e) required the court to dismiss with

prejudice the Palacioses' claims against American

Transitional. See TEX.REV.CIV. STAT. ANN.. art.

4590i, § 13.01(e). Accordingly, we reverse the

court of appeals' judgment and dismiss with preju-

dice the Palacioses' claims.

Tex.,2001.

American Transitional Care Centers of Texas, Inc.

v. Palacios

46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

END OF DOCUMENT

Page 1

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

74.351(b).

Court of Appeals of Texas, [2] Appeal and Error 30 946

Austin.

Barbara APODACA, Individually and on behalf of 30 Appeal and Error

the Estate of Claudia J. McAulay, Appellant, 30XVI Review

v. 30XVI(H) Discretion of Lower Court

Dr. Penni RUSSO, Appellee. 30k944 Power to Review

30k946 k. Abuse of discretion. Most

No. 03–06–00258–CV. Cited Cases

May 2, 2007. A trial court abuses its discretion if it acts in an

arbitrary or unreasonable manner or without refer-

Background: Estate of patient, who died from pul- ence to any guiding rules and principles.

monary embolism, brought action against doctor,

alleging that doctor negligently failed to timely im- [3] Health 198H 804

plement precautions against pulmonary emboli and

anti-coagulant therapy. The District Court, Travis 198H Health

County, 200th Judicial District, Darlene Byrne, J., 198HV Malpractice, Negligence, or Breach of

granted doctor's motion to dismiss, and estate ap- Duty

pealed. 198HV(G) Actions and Proceedings

198Hk804 k. Affidavits of merit or merit-

Holding: The Court of Appeals, Jan P. Patterson, orious defense; expert affidavits. Most Cited Cases

J., held that expert report filed by patient's estate Expert report need not marshal all of the med-

did not constitute a good faith effort to comply with ical malpractice plaintiff's proof, but it must include

requirements of medical liability statute and, there- the expert's opinion on each of the elements identi-

fore, constituted “no report” as to doctor. fied in the statute. V.T.C.A., Civil Practice & Rem-

edies Code § 74.351(r)(6).

Affirmed.

[4] Health 198H 804

West Headnotes

198H Health

[1] Appeal and Error 30 960(1) 198HV Malpractice, Negligence, or Breach of

Duty

30 Appeal and Error

198HV(G) Actions and Proceedings

30XVI Review

198Hk804 k. Affidavits of merit or merit-

30XVI(H) Discretion of Lower Court

orious defense; expert affidavits. Most Cited Cases

30k960 Rulings on Motions Relating to

For expert's report to constitute a good-faith ef-

Pleadings

fort under medical liability statute, the report must

30k960(1) k. In general. Most Cited

inform the defendant of the specific conduct called

Cases

into question and provide a basis for the trial court

(Formerly 198Hk809)

to determine that the claims have merit, and report

Appellate courts review a trial court's ruling on

does not fulfill these purposes if it fails to address

a motion to dismiss medical malpractice action for

the standard of care, breach of the standard, and

failure to file expert report for an abuse of discre-

causation, or if it only states the expert's conclu-

tion. V.T.C.A., Civil Practice & Remedies Code §

sions regarding these elements. V.T.C.A., Civil

Page 2

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

Practice & Remedies Code § 74.351(r)(6). 198HV Malpractice, Negligence, or Breach of

Duty

[5] Health 198H 804 198HV(G) Actions and Proceedings

198Hk804 k. Affidavits of merit or merit-

198H Health

orious defense; expert affidavits. Most Cited Cases

198HV Malpractice, Negligence, or Breach of

(Formerly 198Hk809)

Duty

The only information relevant to whether an

198HV(G) Actions and Proceedings

expert report represents a good faith effort to com-

198Hk804 k. Affidavits of merit or merit-

ply with the requirements in medical liability stat-

orious defense; expert affidavits. Most Cited Cases

ute is the report itself, and therefore, appellate

Expert report in medical malpractice action can

courts must consider whether the information with-

be informal in that the information in the report

in the four corners of the expert report demonstrates

does not have to meet the same requirements as the

a good faith effort to comply with the statutory re-

evidence offered in a summary-judgment proceed-

quirements. V.T.C.A., Civil Practice & Remedies

ing or at trial. V.T.C.A., Civil Practice & Remedies

Code § 74.351(r)(6).

[8] Health 198H 804

[6] Health 198H 804

198H Health

198HV Malpractice, Negligence, or Breach of

Duty

198HV(G) Actions and Proceedings

198Hk804 k. Affidavits of merit or merit-

orious defense; expert affidavits. Most Cited Cases

Expert report filed by patient's estate did not

In medical malpractice action, expert report is

constitute a good faith effort to comply with re-

not required to prove the defendant's liability, but

quirements of medical liability statute and, there-

rather to provide notice of what conduct forms the

fore, constituted “no report” as to doctor; although

basis for the plaintiff's complaints. V.T.C.A., Civil

estate sued only doctor, other health-care providers

Practice & Remedies Code § 74.351(r)(6).

were implicated by the facts set forth in the expert

[7] Appeal and Error 30 840(4) report, the report failed to mention doctor at all, and

the report did not inform doctor of the specific con-

30 Appeal and Error duct she allegedly performed that formed the basis

30XVI Review of the action. V.T.C.A., Civil Practice & Remedies

30XVI(A) Scope, Standards, and Extent, in Code § 74.351(r)(6).

General

30k838 Questions Considered [9] Health 198H 804

30k840 Review of Specific Questions

198H Health

and Particular Decisions

198HV Malpractice, Negligence, or Breach of

30k840(4) k. Review of questions

Duty

of pleading and practice. Most Cited Cases

198HV(G) Actions and Proceedings

(Formerly 198Hk809)

198Hk804 k. Affidavits of merit or merit-

Health 198H 804 orious defense; expert affidavits. Most Cited Cases

If expert report fails to address the defendant

198H Health physician, it constitutes no report as to that defend-

Page 3

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

ant under medical liability statute, and the trial from Brackenridge Hospital Emergency Depart-

court may not grant a 30–day extension. V.T.C.A., ment to Healthsouth Rehabilitation Hospital, and

Civil Practice & Remedies Code § 74.351(r)(6). then transferred back to Brackenridge Hospital for

an evaluation of her altered mental state and a urin-

*253 Thomas C. Hall, Law Office of Thomas C. ary tract infection.

Hall, P.C., San Antonio, for appellant.

Dr. Penni Russo is a licensed physician who

Emily J. Davenport, Robert L. Hargett, Davis & specializes in general surgery. At some point,

Wilkerson, P.C., Austin, for appellee. Russo evaluated Ms. McAulay for an inferior vena

cava (IVC) filter, which allows intravenous access

Before Justices PATTERSON, PEMBERTON and to prevent a blood clot from causing a pulmonary

WALDROP. embolism or stroke. No IVC filter was inserted. On

October 29, Ms. McAulay had a cardiopulmonary

arrest, and health care providers were unable to re-

OPINION suscitate her. The certificate of death showed that

JAN P. PATTERSON, Justice. the cause of death was pulmonary embolism.

This interlocutory appeal arises from a health-

care liability claim filed by appellant Barbara Apo- As a representative of the estate, appellant filed

daca, individually and on behalf of the estate of suit on October 31, 2005, alleging that Dr. Russo

Claudia J. McAulay, against Penni Russo, M.D. negligently failed to timely implement precautions

The issue is whether Apodaca's expert report suffi- against “pulmonary emboli, and anti-coagulant

FN1

ciently meets the requirements of section 74.351 of therapy.” On February 17, 2006, appellant

the civil practice and remedies code so as to allow filed the expert report and curriculum vitae of Dr.

her to receive an extension of time. See Tex. Civ. Leslie S. Zun pursuant to section 74.351 of the civil

Prac. & Rem.Code Ann. § 74.351(a)-(c) (West practice and remedies code. See id. § 74.351(a).

FN2

Supp.2006). Apodaca contends that the district Appellant provided no other report before the

FN3

court erred by granting Dr. Russo's motion to dis- expiration of the expert report deadline. Dr.

miss the lawsuit without first granting Apodaca an Russo filed a motion to dismiss under section

extension of time to cure her expert report's defi- 74.351(b), asserting that appellant had failed to file

ciencies. See id. § 74.351(c). Because the district an expert report addressing the care and treatment

court did not abuse its discretion in granting Dr. provided by Dr. Russo. See id. § 74.351(b). The

Russo's motion to dismiss and denying an extension district court granted the motion to dismiss, finding

of time to file an additional report, we affirm the that appellant had failed to provide a proper expert

order. report and further that she was not entitled to an ex-

tension of time to cure the report's inadequacies.

FACTUAL AND PROCEDURAL BACK- See id. § 74.351(c). This interlocutory appeal fol-

GROUND lowed.

After she was involved in a serious automobile

accident on October 22, 2003, in which she sus- FN1. At the hearing, Dr. Russo's attorney

tained trauma to her head and multiple orthopedic argued that Dr. Russo's “sole involvement

injuries, Claudia McAulay was admitted to Brack- with this patient was on the 28th when she

enridge Hospital. From October 24 to October 27, got called by a nurse to come and evaluate

she was under the care of Dr. Thomas Coopwood, the patient for an IVC filter.”

an internal medicine physician, and others. During

the course of her treatment, according to her ex- FN2. Although Dr. Zun provided a second

pert's report,*254 Ms. McAulay was transferred report dated March 22, 2006, which is in-

Page 4

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

cluded in the appendix to appellant's brief, 74.351(a). An “expert report” is:

the report was not before the trial court at

the time of the hearing, the trial court did a written report by an expert that provides a fair

not grant leave for appellant to file the summary of the expert's opinions as of the date of

second report, and it is not a part of the re- the report regarding applicable standards of care,

cord on appeal. See Tex.R.App. P. 34. the manner in which the care rendered by the

physician or health care provider failed to meet

FN3. Section 74.351(a) required Apodaca the standards, and the causal relationship between

to file expert reports within 120 days of fil- that failure and the injury, harm, or damages

ing her original petition. See Tex. Civ. claimed.

Prac. & Rem.Code Ann. § 74.351(a) (West

Supp.2006). Thus, Apodaca's deadline to Id. § 74.351(r)(6). Failure to serve an adequate

file expert reports was February 28, 2006. expert report mandates dismissal with prejudice. Id.

§ 74.351(b). A report need not marshal all of the

ANALYSIS plaintiff's proof, but it must include the expert's

In her single issue on appeal, Apodaca argues opinion on each of the elements identified in the

that dismissal was improper and that she is entitled statute. Palacios, 46 S.W.3d at 878. To constitute a

to an extension of time to file an expert report. Ap- good faith effort, the report must inform the de-

pellant urges that the district court erred in not fendant of the specific conduct called into question

granting an extension of time to file an expert re- and provide a basis for the trial court to determine

port to cure any deficiency in her expert's first re- that the claims have merit. Id. at 879. A report does

port. Dr. Russo responds that because the report not fulfill these purposes if it fails to address the

fails to mention her name or address any care she standard of care, breach of the standard, and causa-

provided to the patient, the report is “no report” as tion, or if it only states the expert's conclusions re-

to her and appellant is not entitled to an extension. garding these elements. Id.

[1][2] We review a trial court's ruling on a mo- [5][6] The supreme court has stated that “to

tion to dismiss under section 74.351(b) for an abuse avoid dismissal, a plaintiff need not present evid-

of discretion. American Transitional Care Ctrs. of ence in the report as if it were actually litigating the

Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 merits. The report can be informal in that the in-

(Tex.2001). A trial court abuses its discretion if it formation in the report does not have to meet the

acts in an arbitrary or unreasonable manner or same requirements as the evidence offered in a

without reference to any guiding rules and prin- summary-judgment proceeding or at trial.” Id. The

ciples. Downer v. Aquamarine Operators, Inc., 701 expert report is not required to prove the defend-

S.W.2d 238, 241–42 (Tex.1985). When reviewing ant's liability, but rather to provide notice of what

matters committed to the trial court's discretion, we conduct forms the basis for the plaintiff's com-

may not substitute our own judgment for that of the plaints. Longino v. Crosswhite ex rel. Crosswhite,

trial court. *255 Walker v. Gutierrez, 111 S.W.3d 183 S.W.3d 913, 916 (Tex.App.-Texarkana 2006,

56, 63 (Tex.2003). no pet.).

The expert report requirement Dr. Zun's report

[3][4] In a health-care liability claim, the To comply with the expert report requirement,

claimant must provide each defendant with one or appellant served Dr. Russo with a two-page report

more expert reports, including a curriculum vitae from Dr. Zun setting forth the medical care Ms.

for each expert, within 120 days of filing the origin- McAulay received. It does not mention Russo's

al petition. Tex. Civ. Prac. & Rem.Code Ann. § name; it identifies another physician and otherwise

Page 5

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

fails to specify the identity of any other health care The report then specified “the deviations from

provider involved in Ms. McAulay's treatment. the standard of care”:

After recounting the patient's initial treatment by

Dr. Thomas Coopwood and her return to Bracken- (1) Lack of treatment for DVT prophylaxis

ridge Hospital on October 28 for evaluation, the re-

Deep venous thrombosis prevention was not

port observed:

properly addressed. It is essential that prophylax-

The physician order sheet of 10/28/03 at 1350 is for DVTs be given to patients in order to pre-

states to stop the lovenox. In the same order sheet vent pulmonary embolism and death. Heparin or

dated 10/28/03, an order to place a temporary low molecular weight heparins are indication for

IVC filter was to be placed today. Patient was prevention of DVT. Based on the medical record,

noted to be restless and agitated the night of it is unclear whether the patient received heparin

10/28/03. On 10/28/03, the internal medicine or lovenox during all of the days of all the hospit-

consultant assessment stated, “the patient much al stays to prevent DVT. Asprin [sic] is not con-

less responsive that records report and there was sidered adequate prophylaxis for DVT. If there

a concern about delirium from alcoholism, head was a concern about heparin induced thrombocyt-

trauma”. His evaluation included STAT CT scan openia, lepirudin (Refludan) is the drug of choice

of the head, holding narcotics and monitoring for for these patients. There was no finding that this

worsening symptoms. In this same report, the in- medication was ever considered or given by the

ternal medicine consultant recommended that physicians carrying [sic] for the patient.

stopping the heparin was not a good option. It

(2) Lack of IVC filter insertion

was recommended that the patient receive an im-

mediate IVC filter. The medication administra- The other option for DVT prophylaxis is the in-

tion record for 10/29/03 at 9am did not document sertion of an IVC filter. Until IVC filters are

any medication for DVT prophylaxis. On placed some other form of DVT prophylaxis

10/29/03 at 9:30am, the patient had a cardiopul- needs to be initiated. In this case, the IVC filter

monary arrest. Resuscitation *256 was attempted was not placed in a timely fashion nor was the

but the patient did not survive. patient given DVT prophylaxis until the filter

was placed. It is uncertain why the IVC filter was

Deep venous thrombosis (DVT) prophylaxis as

ordered and then cancelled.

per Dr. Coopwood's note was aspirin and

plexipulse foot pump. The medication adminis- (3) Inadequate evaluation of the patient's altered

tration report from Brackenridge Hospital did not mental status

note any heparin or lovenox being given to the

patient from 10/23–10/27. The patient was dis- The patient's altered mental status was not prop-

charged to Healthsouth Rehabilitation hospital on erly addressed. One of the likely causes for

lovenox. altered mental status and agitation is pulmonary

embolism. Evaluation of altered mental status in

After noting that the lovenox was discontinued this patient focused around medications and head

on October 28 and the medication administration trauma. The appropriate evaluation would have

report stated that stopping the heparin was “not a included assessment of the respiratory status in-

good option for DVT prophylaxis and recommen- cluding pulse oximetry, blood gas analysis, and

ded that the patient get an IVC filter,” Dr. Zun's re- chest radiograph. If the patient's altered mental

port observed that “[a] note in the chart stated that status was properly evaluated, the pulmonary em-

an IVC filter was to be placed and an order to hold bolism would have been discovered prior to car-

the IVC filter was noted on 10/28/03.”

Page 6

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

diac arrest. Appropriate treatment for pulmonary to whether a report represents a good faith effort to

embolism could have started prior to the fatal comply with the statutory requirements is the report

embolism and thereby prevented the patient's de- itself. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48,

mise. 53 (Tex.2002). We must, therefore, consider wheth-

er the information within the four corners of the ex-

(4) The patient's respiratory status was not ad- pert report demonstrates a good faith effort to com-

equately monitored ply with the statutory requirements.

The patient's pulmonary status was not properly Section 74.351(r)(6) requires that an expert re-

addressed. Pulse determinations are one means to port explain how the care rendered by the physician

determine whether a patient has pulmonary prob- failed to meet the applicable standard of care and

lems. Low pulse oxygenation readings in a post the causal relationship between that failure and the

surgical, post trauma patient would necessitate injury suffered by the claimant. See Tex. Civ. Prac.

that the patient be evaluated for pulmonary em- & Rem.Code Ann. § 74.351(r)(6); Palacios, 46

bolism. Identification of pulmonary problem S.W.3d at 878.

from pulmonary embolisms would have promp-

ted immediate treatment that would have saved [8] Although appellant has sued only Dr.

her life. Russo, other doctors and health-care providers are

implicated by the facts set forth in the report. The

Zun concluded that “[e]ach of these four devi- report references other providers as well as their

ations from the standard of care, alone *257 or in conduct and refers to another doctor by name, but

combination, could have prevented the death of Ms. fails to mention Dr. Russo at all. The report does

McAuley's.” not discuss how the care rendered by Dr. Russo

failed to meet the applicable standard of care or

[7] In considering whether an expert report rep-

how Dr. Russo's failure caused Ms. McAulay to

resents an objective good faith effort, the supreme

suffer injury, harm or damages. Thus, the report did

court has established that a trial court is limited to a

not inform Dr. Russo of the specific conduct she al-

review of the report itself:

legedly performed that forms the basis of the peti-

The issue for the trial court is whether “the re- tion.

port” represents a good-faith effort to comply

[9] If a report fails to address the defendant

with the statutory definition of an expert report.

physician, it constitutes no report as to that defend-

[former Tex.Rev.Civ. Stat. Ann. art. 4590i] §

ant, and the trial court may not grant a 30–day ex-

13.01(l ). That definition requires, as to each de-

tension. Garcia v. Marichalar, 185 S.W.3d 70, 74

fendant, a fair summary of the expert's opinions

(Tex.App.-San Antonio 2005, no pet.). The ques-

about the applicable standard of care, the manner

tion is whether the trial court abused its discretion

in which the care failed to meet that standard, and

in determining that the report failed to provide Dr.

the causal relationship between that failure and

Russo a proper expert report and that it constituted

the claimed injury. Id. § 13.01(r)(6). Because the

“no report” so as to preclude an extension of time

statute focuses on what the report discusses, the

to cure any deficiency. Tex. Civ. Prac. &

only information relevant to the inquiry is within

Rem.Code Ann. § 74.351(a)-(c).

the four corners of the document.

In support of her contention that Apodaca's re-

Palacios, 46 S.W.3d at 878; see also Horizon/

port did not satisfy the statutory requirements so as

CMS Healthcare Corp. v. Fischer, 111 S.W.3d 67,

to allow an extension of time to cure any defi-

68 (Tex.2003). The only information, then, relevant

ciency, Dr. Russo relies upon Garcia, 185 S.W.3d

Page 7

228 S.W.3d 252

(Cite as: 228 S.W.3d 252)

70. In Garcia, the plaintiff filed suit against three trial court's denial of Dr. Longino's motion to dis-

doctors, two nurses, and a hospital. Garcia v. miss).

Marichalar, 198 S.W.3d 250, 252 (Tex.App.-San

Antonio 2006, no pet.) (later proceeding). The After reviewing the report in its entirety, we

plaintiff served two expert reports, but neither re- cannot conclude that the trial court abused its dis-

port mentioned Dr. Garcia. Id. The court concluded cretion in determining that the report fails to repres-

that the trial court had no authority to grant an ex- ent a good faith effort to address the conduct of Dr.

tension because the report was not merely deficient, Russo and constitutes no report as to Dr. Russo.

but constituted no report as to Dr. Garcia. Garcia,

CONCLUSION

185 S.W.3d at 74. The court further held that

Because we conclude that the district court did

“neither report informed Dr. Garcia of the specific

not abuse its discretion in finding that the report did

conduct he allegedly performed that [the *258

not constitute a good faith effort to comply with the

plaintiff] had called into question,” and, thus, the

statutory requirements and therefore constitutes “no

expert reports did not constitute a good faith effort

report” as to Dr. Russo, we affirm the district

to comply with the statutory requirements. Garcia,

court's order.

198 S.W.3d at 255.

Tex.App.–Austin,2007.

As in Garcia, in this case, the report refers to

Apodaca v. Russo

the conduct and care provided by several providers.

228 S.W.3d 252

But unlike Garcia, in this case, appellant has filed a

lawsuit complaining of the actions of only one doc- END OF DOCUMENT

tor, Dr. Russo. Appellant seeks to distinguish Gar-

cia because she has sued only Dr. Russo. In Garcia,

the plaintiffs made a similar argument, claiming

that the report applied to Dr. Garcia because he was

involved in the single incident made the basis of

that suit. Id. at 254–55. The court concluded that

the report must identify the physician's specific

conduct, as well as the causal relationship to repres-

ent a good faith effort to comply with section

74.351. See id. The report does not satisfy section

74.351(a) for a specific defendant merely because

he or she is a defendant; the report must specific-

ally identify the defendant and apply the statutory

elements to that defendant. See Jernigan v.

Langley, 195 S.W.3d 91, 93–94 (Tex.2006)

(affirming a dismissal under the prior statute,

Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.03, be-

cause although the report made passing mention of

Dr. Jernigan, it failed to state how he breached the

standard of care or how his alleged breach caused

injury); Longino, 183 S.W.3d at 917–18 (finding

that the expert report did not represent a good faith

effort because it failed to differentiate between Dr.

Longino and another physician, and reversing the

Page 1

340 S.W.3d 529

(Cite as: 340 S.W.3d 529)

30XVI(H) Discretion of Lower Court

30k944 Power to Review

Court of Appeals of Texas, 30k946 k. Abuse of discretion. Most

Fort Worth. Cited Cases

BAYLOR ALL SAINTS MEDICAL CENTER, Ap- A trial court has no discretion in determining

pellant, what the law is, or in applying the law to the facts,

v. and thus a clear failure by the trial court to analyze

Pamela MARTIN and John Martin, Appellees. or apply the law correctly will constitute an abuse

of discretion.

No. 02–10–00402–CV.

April 14, 2011. [2] Health 198H 804

Background: Patient sued hospital for negligence 198H Health

based on alleged sexual assault on patient in her 198HV Malpractice, Negligence, or Breach of

hospital room. Hospital objected to sufficiency of Duty

patient's expert report, moved to dismiss, and re- 198HV(G) Actions and Proceedings

quested attorney fees. Following a hearing, the 17th 198Hk804 k. Affidavits of merit or merit-

District Court, Tarrant County, Melody Wilkinson, orious defense; expert affidavits. Most Cited Cases

J., overruled hospital's objections and denied mo- The purpose of the expert report requirement in

tion and request for attorney fees. Hospital ap- health care liability claims is to inform the defend-

pealed. ant of the specific conduct the plaintiff has called

into question and to provide a basis for the trial

Holding: The Court of Appeals, Bob McCoy, J.,

court to conclude that the claims have merit.

held that patient's expert report was deficient in es-

V.T.C.A., Civil Practice & Remedies Code §

tablishing appropriate standard of care for the hos-

74.351.

pital and the breach of that standard.

[3] Health 198H 804

Reversed and remanded.

198H Health

West Headnotes

198HV Malpractice, Negligence, or Breach of

[1] Appeal and Error 30 941 Duty

198HV(G) Actions and Proceedings

30 Appeal and Error 198Hk804 k. Affidavits of merit or merit-

30XVI Review orious defense; expert affidavits. Most Cited Cases

30XVI(H) Discretion of Lower Court Because the statute governing sufficiency of an

30k940 Nature and Extent of Discretion- expert report in a health care liability claim focuses

ary Power on what the report discusses, the only information

30k941 k. In general. Most Cited relevant to the inquiry is within the four corners of

Cases the document. V.T.C.A., Civil Practice & Remedies

Code § 74.351.

Appeal and Error 30 946

[4] Health 198H 804

30 Appeal and Error

30XVI Review 198H Health

198HV Malpractice, Negligence, or Breach of

Page 2

340 S.W.3d 529

(Cite as: 340 S.W.3d 529)

Duty 198H Health

198HV(G) Actions and Proceedings 198HV Malpractice, Negligence, or Breach of

198Hk804 k. Affidavits of merit or merit- Duty

orious defense; expert affidavits. Most Cited Cases 198HV(C) Particular Procedures

Alleged sexual assault on patient in her hospit- 198Hk655 Hospitals in General

al room following surgery was covered, in negli- 198Hk656 k. In general. Most Cited

gence action against hospital, by the expert report Cases

requirement for health care liability claims. The standard of care for a hospital on a health

V.T.C.A., Civil Practice & Remedies Code § care liability claim is what an ordinarily prudent

74.351. hospital would do under the same or similar cir-

cumstances.

[5] Health 198H 804

[8] Health 198H 804

198H Health

198HV Malpractice, Negligence, or Breach of 198H Health

Duty 198HV Malpractice, Negligence, or Breach of

198HV(G) Actions and Proceedings Duty

198Hk804 k. Affidavits of merit or merit- 198HV(G) Actions and Proceedings

orious defense; expert affidavits. Most Cited Cases 198Hk804 k. Affidavits of merit or merit-

An expert report served by plaintiff in a health orious defense; expert affidavits. Most Cited Cases

care liability action need not marshal all the Identifying the standard of care is critical in an

plaintiff's proof. V.T.C.A., Civil Practice & Remed- expert report served by plaintiff in a health care li-

ies Code § 74.351. ability action is critical: whether a defendant

breached his or her duty to a patient cannot be de-

[6] Health 198H 804 termined absent specific information about what the

defendant should have done differently. V.T.C.A.,

198H Health

Civil Practice & Remedies Code § 74.351.

198HV Malpractice, Negligence, or Breach of

Duty [9] Health 198H 804

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