Sue Abshire v. Christus Health Southeast Texas D/B/A Christus Hospital-St. Elizabeth

IN THE SUPREME COURT OF TEXAS

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No. 17-0386

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SUE ABSHIRE, PETITIONER,

v.

CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A CHRISTUS HOSPITAL–ST. ELIZABETH,

RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS

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PER CURIAM

The Texas Medical Liability Act requires a health care claimant to furnish a written expert

report early in the proceedings summarizing the applicable standards of care and explaining how

the provider’s alleged negligence caused the claimant’s injury. In this case, the court of appeals

held that the claimant’s expert report was insufficient as to causation with respect to one of her

providers and dismissed her claims against that provider. We hold that the expert report adequately

addressed both causation and the standard of care. Accordingly, we reverse the court of appeals’

judgment and remand this case to the trial court for further proceedings.

On November 19, 2012, Sue Abshire visited the emergency room at Christus Hospital–St.

Elizabeth (Christus), complaining of pain in her chest and back.1 Her attending physician

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The facts recited are in accordance with those alleged in Abshire’s petition and expert reports.

administered two EKGs, both of which returned normal results. Abshire was discharged the next

day with instructions to follow up with a cardiologist. No spinal evaluation was conducted, and

Abshire’s medical history failed to note that she suffered from osteogenesis imperfecta (OI)—

commonly known as brittle bone disease.2

On November 22, Abshire returned to the Christus emergency room and was admitted for

chest pain and breathing difficulties. This time her OI history was noted, as well as her blue

sclera—a common symptom of OI.3 However, the physician ordered only a chest x-ray. Abshire

was released from the hospital that same day.

The next day, Abshire again returned to the Christus emergency room with the same

complaints of chest pain. This time, however, she reported pain in her shoulder, neck, and back

in addition to the pain in her chest. Her history of OI was noted during this visit. Abshire was

sent home with a diagnosis of constipation, musculoskeletal pain, and pleurisy.4

On November 29, less than a week later, Abshire was transported to the Christus

emergency room by ambulance for shortness of breath, chest pain, and back pain. Abshire’s OI

was not documented in her medical history during this visit. Another chest x-ray revealed

degenerative changes in her shoulders and spine. Abshire was then admitted to the hospital,

whereupon another physician confirmed these degenerative changes, noting probable bone

2

According to one of the expert reports, individuals affected by OI have “bones that fracture easily, loose

joints and muscle weakness, . . . tendency toward spinal curvature, and bone deformity.”

3

Sclera are the whites of the eyes.

4

Pleurisy is an inflammation of the tissue lining in the lungs. Common symptoms include chest pain and

difficulty breathing. Pleurisy: What You Should Know, WebMD, https://www.webmd.com/lung/understanding-

pleurisy-basics#1.

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necrosis. Abshire remained in the hospital until December 2, during which time her OI was not

documented in her chart. No further musculoskeletal assessment was performed.

Abshire visited the Christus emergency room for the fifth time on December 3, the day

after her previous discharge. This time, Abshire reported weakness in her legs and difficulty

walking. Abshire was transferred to HealthSouth Rehabilitation Hospital and remained there for

two days, complaining of an “electrical voltage” shooting down her shoulders, back, and legs,

severe leg weakness, and loss of bowel and bladder control. The rehab physician noted Abshire’s

history of OI and planned to have an MRI performed on Abshire’s lumbar spine. In the meantime,

she was put on a physical therapy regimen.

When physical therapy failed to improve her symptoms, Abshire was sent back to Christus

for further evaluation on December 5 and was again medically cleared. Christus attempted to send

Abshire back to HealthSouth, but her rehab physician intervened and instead had her transferred

to another hospital, Baptist Beaumont.

Upon hearing Abshire’s complaints of back pain and leg immobility, the Baptist Beaumont

physicians ordered an MRI of her spine. The MRI revealed that Abshire suffered from a

compression fracture of her T-5 vertebrae.5 This injury ultimately rendered Abshire a paraplegic

and incontinent.

After back surgery failed to cure her paraplegia, Abshire sued Christus, HealthSouth, and

two Christus physicians for negligence.6 Only her claim against Christus for vicarious liability,

5

The expert report notes that compression fractures are “commonly seen” in patients with OI. In severe

cases, coughing or sneezing can cause such fractures.

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Abshire named as defendants Christus Health Southeast Texas d/b/a Christus Hospital–St. Elizabeth, Frank

Fasullo, M.D., Sidney Marchand, M.D., and HealthSouth Rehabilitation Hospital of Beaumont, LLC d/b/a

HealthSouth Rehabilitation Center–Beaumont.

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premised on the alleged negligence of its employee nurses, is at issue here.7 As to that claim,

Abshire alleged in her petition that the Christus nurses who attended her “failed to recognize the

signs and symptoms of a spinal compression fracture resulting in a delay in treatment which caused

Ms. Abshire’s paraplegia” and “missed the history of [OI] that predisposes one to fractures.”

To support these allegations, Abshire served an expert report prepared by Dr. Lige B.

Rushing, a physician board-certified in internal medicine, geriatrics, and rheumatology. This

report primarily addressed the conduct of the Christus physicians and summarily opined that “had

[Christus] followed the Standard of Care for patients with OI, Ms. Abshire in medical probability

would not have developed paraplegia and bowel and bladder incontinence.”

Christus filed an objection to Dr. Rushing’s report, arguing that it did not sufficiently

establish the applicable standards of care, the manner in which Christus breached those standards,

and the causal link between Christus’s conduct and Abshire’s injuries. Christus also filed a motion

to dismiss arguing the report was deficient in that it (1) failed to show how the hospital (via its

employees—the nurses) rather than the physicians (who were not Christus’s employees) breached

the standard of care, and (2) rendered conclusory opinions on causation.

The trial court agreed with Christus’s objections and granted Abshire a thirty-day extension

to address the report’s deficiencies. Abshire timely filed a supplemental report from Dr. Rushing

and an additional report from Erika L. Aguirre, a registered nurse, discussing the standard of care

and breach by Christus’s nursing staff. Christus challenged these reports’ sufficiency as well and

again moved to dismiss Abshire’s claims. After a hearing, the trial court denied Christus’s motion

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Abshire and HealthSouth have settled, and the physicians did not appeal the trial court’s denial of their

motions to dismiss.

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to dismiss, concluding that the supplemental reports constituted a good faith effort to comply with

the statutory requirements.

The court of appeals reversed and dismissed Abshire’s claims against Christus, holding

that Dr. Rushing’s report, even as supplemented, did not show how the nurses’ failure to document

Abshire’s OI caused her paraplegia. ___ S.W.3d ___, ___ (Tex. App.—Beaumont 2017). As

such, the report suffered from an “analytical gap” that rendered the report deficient. Id. at ___.

Because the court of appeals found the report insufficient as to causation, it declined to address

the report’s sufficiency regarding the standard of care. Id. at ___. We disagree with the court of

appeals’ causation analysis and hold that the report sufficiently addresses both causation and the

standard of care.

Chapter 74 of the Civil Practice and Remedies Code, also known as the Texas Medical

Liability Act, requires health care liability claimants to serve an expert report upon each defendant

not later than 120 days after that defendant’s answer is filed. TEX. CIV. PRAC. & REM. CODE

§ 74.351(a). We have previously explained that the purpose of the expert report requirement is to

weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially

meritorious claims. Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877 (Tex.

2001); see also Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012) (“[Expert report]

requirements are meant to identify frivolous claims and reduce the expense and time to dispose of

any that are filed.”). In accordance with that purpose, the Act provides a mechanism for dismissal

of the claimant’s suit in the event of an untimely or deficient report. TEX. CIV. PRAC. & REM.

CODE § 74.351(b).

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An expert report is sufficient under the Act if it “provides a fair summary of the expert’s

opinions . . . regarding applicable standards of care, the manner in which the care rendered . . .

failed to meet the standards, and the causal relationship between the failure and the injury.” Id.

§ 74.351(r)(6). Importantly, the trial court need only find that the report constitutes a “good faith

effort” to comply with the statutory requirements. Id. § 74.351(l); see also Palacios, 46 S.W.3d

at 878. We have held that an expert report demonstrates a “good faith effort” when it

“(1) inform[s] the defendant of the specific conduct called into question and (2) provid[es] a basis

for the trial court to conclude the claims have merit.” Baty v. Futrell, 543 S.W.3d 689, 693–94

(Tex. 2018). A report “need not marshal all the claimant’s proof,” but “a report that merely states

the expert’s conclusions about the standard of care, breach, and causation” is insufficient.

Palacios, 46 S.W.3d at 878–79.

We review a trial court’s decision to grant or deny a motion to dismiss based on the

adequacy of an expert report for an abuse of discretion. Id. at 877. In analyzing a report’s

sufficiency under this standard, we consider only the information contained within the four corners

of the report. Id. at 878. However, one expert need not address the standard of care, breach, and

causation; multiple expert reports may be read together to determine whether these requirements

have been met. TEX. CIV. PRAC. & REM. CODE § 74.351(i). Here, we must look to both Dr.

Rushing’s and Nurse Aguirre’s reports to determine whether the trial court abused its discretion in

concluding that those reports, considered together, demonstrated a good faith effort to comply with

the Act’s requirements.8

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Nurse Aguirre’s report speaks only to standard of care and breach, while Dr. Rushing’s report also speaks

to causation. See TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(C) (only a qualified physician may render an opinion

on causation).

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We initially turn to causation, the primary issue of this appeal. This element requires that

the expert explain “how and why” the alleged negligence caused the injury in question. Jelinek v.

Casas, 328 S.W.3d 526, 536 (Tex. 2010). A conclusory statement of causation is inadequate;

instead, the expert must explain the basis of his statements and link conclusions to specific facts.

Id. at 539; see also Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461

(Tex. 2017) (“[W]ithout factual explanations, the reports are nothing more than the ipse dixit of

the experts, which . . . are clearly insufficient.”). In satisfying this “how and why” requirement,

the expert need not prove the entire case or account for every known fact; the report is sufficient

if it makes “a good-faith effort to explain, factually, how proximate cause is going to be proven.”

Zamarripa, 526 S.W.3d at 460.

Dr. Rushing’s report twice addresses the issue of causation. First, in the section addressing

the standard of care applicable to the Christus nurses,9 Dr. Rushing explains:

The lack of properly assessing Ms. Abshire’s medical history and physical

conditions is a breach in the standard of care. Lack of information results in a delay

in proper medical care and is an impediment for the managing doctor to be able to

order appropriate testing, and prescribe proper treatment and preventative care. In

Ms. Abshire’s case, had the symptomology that Ms. Abshire was experiencing been

appropriately linked to the [OI] diagnosis then the proper course of care would have

been to admit the patient to the hospital on absolute bed rest, order imaging studies

such as a CT or MRI of her back, then treat the injury to the spine . . . by such

methods as bracing through spinal fusion. The goal would be to alleviate pressure

on the spine such that the compression fracture does not progress and paraplegia

does not occur.

In a subsequent section titled “Causal Relationships,” Dr. Rushing opines:

The harm/injury that resulted from the substandard care provided by [Christus] was

the exacerbation of an undiagnosed vertebral fracture that lead [sic] to a spinal cord

injury resulting in paraplegia and bowel and bladder incontinence.

9

The location of the discussion within the report has no bearing on its sufficiency. See Baty, 543 S.W.3d at

694 (noting that we “view the report in its entirety, rather than isolating specific portions or sections”).

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Failure of the nursing staff to document a complete and accurate assessment

resulted in a delay in proper medical care (ie. [sic] the ordering of imaging studies

and protection of the spine.). . . . [H]ad the symptomology that Ms. Abshire was

experiencing been appropriately linked to the [OI] diagnosis then she could have

been admitted to the hospital on absolute bed rest, imaging studies such as a CT or

MRI of her back ordered, then treatment started to preserved [sic] the integrity of

the spine. . . .

The hospital staff clearly ignored signs and symptoms of spinal injury and kept

investigating the same areas over and over with no relief to the patient. . . . This

failure on the part of the hospital staff allowed the spinal injury to progress to the

point of paraplegia.

Failure to consider the patient’s prior relevant medical history was mostly [sic]

likely a cause of the hospital staff’s focus on the potential cardiac element of Ms.

Abshire’s pain. . . . Had they had a complete medical history they would have

known to examine other areas and that this patient had a high probability of a

compression fracture. The lack of proper documentation in the patient’s medical

record lead [sic] to a delay in treatment of Ms. Abshire’s compression fracture

which in medical probability lead [sic] to paralysis.

In our view, Dr. Rushing’s explanation provides a straightforward link between the nurses’

alleged breach of the standard of care and Abshire’s spinal injury. That is, the report draws a line

directly from the nurses’ failure to properly document Abshire’s OI and back pain, to a delay in

diagnosis and proper treatment (imaging of her back and spinal fusion), to the ultimate injury

(paraplegia).

We find support for this conclusion in Miller v. JSC Lake Highlands Operations, in which

we found very similar language satisfied the causation requirement. 536 S.W.3d 510, 515 (Tex.

2017) (per curiam). In that case, a resident of an assisted-living facility swallowed her dental

bridge and died shortly after it was extracted. Id. at 512. Although x-rays revealing the bridge’s

presence in the patient’s trachea had been taken when she began showing signs of chest congestion,

the reviewing physician failed to notice or identify the problem. Id. The expert reports concluded

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that the physician breached the standard of care by failing to detect the dental bridge in the x-rays

and that the corresponding delay in discovering and removing the bridge caused a series of

pulmonary issues that ultimately resulted in the patient’s death. Id. at 514. We held that this was

a “more-than-adequate summary” of causation, as it explained how the physician’s breach—

failing to identify the bridge and alert appropriate personnel—delayed timely removal, which in

turn caused the patient to aspirate. Id. at 515. Similarly here, Dr. Rushing explained how the

nurses’ breach—failing to consistently document Abshire’s OI, particularly in light of her

continued complaints of back pain—caused a delay in diagnosis and proper treatment and why

that delay caused the issues that led to Abshire’s paraplegia. Thus, the report adequately explained

the links in the causal chain.

Despite this identified causal link, the court of appeals held that the report was conclusory

because it “fail[ed] to explain how the nurses’ alleged failure to document OI was a substantial

factor in causing or exacerbating Abshire’s injuries . . . or that it would have changed the outcome.”

___ S.W.3d at ___. Specifically, the court observed that the physicians did not order tests or

provide spinal treatment on either the November 22 or 23 visits, even though Abshire’s OI was

noted during these visits. See id. at ___. Therefore, the court held that Dr. Rushing’s “opinion

that the nurses’ failure to chart Abshire’s history of OI caused Abshire’s injury rests on an analytic

gap that renders his causation opinion as to the nurses conclusory.” Id. at ___.

We disagree that such an analytic gap exists.10 As explained above, Dr. Rushing’s report

adequately links his conclusion with the underlying facts (failure to properly document Abshire’s

10

This Court has not used the term “analytic gap” or “analytical gap” in this context, though the courts of

appeals often do. See, e.g., THN Physicians Ass’n v. Tiscareno, 495 S.W.3d 914, 922 (Tex. App.—El Paso 2016, no

pet.) (“[A] report may not have an ‘analytical gap’ or a ‘missing link’ between the expert’s allegation that the physician

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medical history was a substantial factor in her delayed treatment and subsequent injury). Rather,

it appears the court of appeals simply did not agree with his conclusions in light of Abshire’s

overall course of treatment. However, the court’s job at this stage is not to weigh the report’s

credibility; that is, the court’s disagreement with the expert’s opinion does not render the expert

report conclusory.

Again, our opinion in Miller is instructive. There, we disagreed with the court of appeals’

conclusion that the expert report regarding the assisted-living facility’s conduct failed to articulate

the applicable standard of care, noting that “the court of appeals’ real concern appears to be

the believability of [the expert’s] articulated standards of care, not the manner in which she stated

them.” Miller, 536 S.W.3d at 516. We rejected such an inquiry, explaining that at “this

preliminary stage, whether those standards appear reasonable is not relevant to the analysis of

whether the expert’s opinion constitutes a good-faith effort.” Id. at 516–17. In the same vein, with

respect to causation, the court’s role is to determine whether the expert has explained how the

negligent conduct caused the injury. Whether this explanation is believable should be litigated at

a later stage of the proceedings.

The ultimate evidentiary value of the opinions proffered by Dr. Rushing and Nurse Aguirre

is a matter to be determined at summary judgment and beyond. In this regard, the court of appeals

improperly examined the merits of the expert’s claims when it identified what it deemed an

“analytical gap.” But at this stage we do not require a claimant to “present evidence in the report

defendant breached the standard of care and the plaintiff’s injuries.”); see also Christus Spohn Health Sys. Corp. v.

Hinojosa, No. 04-16-00288-CV, 2016 WL 7383819, at *5–6 (Tex. App.—San Antonio Dec. 21, 2016, no pet.) (mem.

op.). It appears that the courts have generally used this term to mean a failure to link the breach of the standard of

care to the injury, which comports with this Court’s discussion of chapter 74’s expert report requirements with respect

to causation. See Zamarripa, 526 S.W.3d at 460 (holding that an expert report sufficiently addresses causation where

it “explain[s] the basis of [the expert’s] statements to link [the] conclusions to the facts”).

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as if it were actually litigating the merits.” Palacios, 46 S.W.3d at 879. We hold that Dr. Rushing’s

supplemented report constitutes an objective, good faith effort to comply with the Act’s

requirement to provide a fair summary of his opinion with respect to the causal relationship

between Christus’s alleged breach and Abshire’s injury. TEX. CIV. PRAC. & REM. CODE

§ 74.351(l), (r)(6).

Christus argues that, even if Dr. Rushing’s report is sufficient as to causation, the trial court

nevertheless erred in denying Christus’s motion to dismiss because the reports fail to articulate the

applicable standard of care. The court of appeals did not address this issue, but the parties have

briefed it here, and we will consider it. TEX. R. APP. P. 53.4; Baty, 543 S.W.3d at 697.

To adequately identify the standard of care, an expert report must set forth “specific

information about what the defendant should have done differently.” Palacios, 46 S.W.3d at 880.

While the Act requires only a “fair summary” of the standard of care and how it was breached,

“even a fair summary must set out what care was expected, but not given.” Id. (quotation omitted).

For example, in Palacios, we held that an expert’s opinion that the hospital did not take proper

precautions to prevent a patient from falling did not sufficiently address the standard of care

because it failed to apprise the parties of the specific conduct complained of—be it a failure to

monitor more closely, restrain more securely, or something else altogether. Id.

Both Dr. Rushing’s and Nurse Aguirre’s reports address the standard of care for the

Christus nurses. First, Dr. Rushing’s report states:

The Nurses:

The standard of care is to document a complete and accurate

assessment.

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The nurses failed on multiple occasions to document a complete and

accurate assessment of the patient. During multiple admissions the history of [OI]

was missed completely. During other admissions the patient’s back pain and

related symptoms were minimalized in the documentation. . . . The lack of properly

assessing Ms. Abshire’s medical history and physical conditions is a breach in the

standard of care.

Nurse Aguirre’s report provides significantly more detail, but it summarizes the standard of care

as follows:

1. The standard of care is to document a complete and accurate assessment

including:

a. A health history consisting of longstanding medical issues;

b. Focused assessments based on the patient’s primary complaint;

c. Pain assessments consisting of intensity of the pain, location of the pain,

interventions implemented to alleviate the pain and follow re-assessment to

evaluate the effectiveness of the intervention(s);

d. Assessments with any change in level of care or transfer of care between

different departments; and

e. Providing information in a timely manner.11

According to these two reports, the standard of care here required a full and accurate

documentation of Abshire’s medical history and symptoms when the nurses assessed her. The

reports note that this was not done during each visit. We do not find these statements conclusory,

as Christus contends. Rather, the reports identify specific action that should have been taken, but

was not. See id. Although the reports do not designate a specific documentary procedure that

should have been used, such detail “is simply not required at this stage of the proceedings.” Baty,

543 S.W.3d at 697. As such, we hold the reports are sufficient as to the standard of care.

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While Nurse Aguirre’s report identifies other standards of care relevant to this case, we address only the

duty to document and assess because that is the only standard that Dr. Rushing causally linked to Abshire’s injury.

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Because the reports sufficiently identify the applicable standard of care and link the

Christus nurses’ alleged breaches with Abshire’s injuries, we hold that the trial court did not abuse

its discretion in denying Christus’s motion to dismiss. Accordingly, we grant Abshire’s petition

for review and, without hearing oral argument, TEX. R. APP. P. 59.1, we reverse the court of

appeals’ judgment and remand the case to the trial court for further proceedings.

OPINION DELIVERED: November 16, 2018

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