      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00726-CV



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

                                                  v.

                                    Veronica Payton, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
           NO. 13-2658, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Texas San Marcos Treatment Center, L.P., appeals the trial court’s

order denying its motion to dismiss Veronica Payton’s negligence suit. The Center contends that

the trial court abused its discretion in finding Payton’s expert report adequate and denying

the Center’s motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 74.351. We will affirm the

trial court’s order.


                                         BACKGROUND

                The following summary is drawn from allegations in Veronica Payton’s

petition and the expert’s report. Payton worked as an aide at the Center, a facility licensed by the

Texas Department of Family and Protective Services to provide behavioral health care and

treatment to adolescent patients. The Center admitted as a patient a seventeen-year-old male who

Payton alleges had a history of anger issues, physical and verbal aggression, and fighting with peers.
Payton alleges that the patient had several diagnosed issues including severe impulsivity, explosive

expressions of anger, defiance, disruptiveness, and sexual behavior problems, but that Payton was

not sufficiently informed about those diagnoses. The patient seemed quiet and cooperative until he

assaulted Payton as she escorted him from a laundry room—an assault captured in part on video.

The patient hit Payton, then choked and rendered her unconscious, inflicting neck and back

injuries and a concussion. Doctors found that Payton suffered stress, anxiety, and depression after

the assault.

                Payton sued the Center for the following negligent acts or omissions: (1) failure

to adequately staff the shift during which she was injured; (2) failure to adequately train her;

(3) failure to adequately notify her of the patient’s dangerous behavioral nature; (4) failure to

adequately contain or supervise the patient despite admitting him to the children’s unit; and

(5) failure to ameliorate the risk from the patient to appellee and others. She asserted that these

acts and omissions injured her, and she served on the Center an expert report authored by William H.

Reid, M.D.

                The Center moved to dismiss, objecting that Dr. Reid’s report failed to meet the

statutory requirements for expert reports under the Texas Medical Liability Act. See Tex. Civ. Prac.

& Rem. Code § 74.351; see also id. §§ 74.001-.507. It contends that the report failed to set forth the

applicable standard of care, failed to identify the acts or omissions that breached that standard,

and failed to explain the causal relationship between the alleged breaches and the injuries alleged.

Payton did not submit a revised or amended version of Dr. Reid’s report or any other reports. The

trial court overruled the Center’s motion to dismiss Payton’s claims for the report’s alleged

deficiencies.

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                                            DISCUSSION

                The Center argues that Dr. Reid’s report is not an objective good-faith effort to

provide sufficient analysis for each element of a health-care liability claim because it: (1) fails to

provide the relevant facts supporting his opinions regarding the applicable standard of care and

alleged breaches; (2) fails to identify the applicable standards of care or alleged related breaches; and

(3) contains conclusory and speculative causation opinions.

                We review the trial court’s decision on the adequacy of an export report for an abuse

of discretion. American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985); see also Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (plurality

op.). When the report lacks any explanation linking the expert’s conclusions to the relevant

facts, the trial court abuses its discretion in denying the defendant’s motion to dismiss. Jelinek

v. Casas, 328 S.W.3d 526, 540 (Tex. 2010). We may not substitute our judgment for the trial court’s

judgment. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

                An “expert report” provides a fair, written summary of the expert’s opinions

regarding (1) the applicable standard of care; (2) the manner in which the care rendered by the

physician or health care provider failed to meet the standard; and (3) the causal relationship between

that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).

A court shall grant a motion challenging the adequacy of an expert report only if it appears to the

court that the report does not represent an objective good-faith effort to comply with the statutory

requirements of the expert report. Id. § 74.351(l); see Hebert v. Hopkins, 395 S.W.3d 884, 890

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(Tex. App.—Austin 2013, no pet.). Courts examine the report’s adequacy based solely on

information contained in the four corners of the report. Austin Heart P.A. v. Webb, 228 S.W.3d 276,

279 (Tex. App.—Austin 2007, no pet.) (citing Palacios, 46 S.W.3d at 878). This requirement

“precludes a court from filling gaps in a report by drawing inferences or guessing as to what the

expert likely meant or intended.” Id. (citing Wright, 79 S.W.3d at 53). Although a report need not

marshal all of a claimant’s proof, it must include the expert’s opinion on each of the elements

identified in section 74.351 and be specific enough on each to (1) inform the defendant of the

conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude

that the claims have merit. Id. (citing Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 875, 878).

The report must do more than merely state the expert’s conclusions about the statutory elements—it

must link the expert’s conclusions to the facts. Id. (citing Earle v. Ratliff, 998 S.W.2d 882, 890

(Tex. 1999)).

                The Texas Supreme Court has applied the expert-report requirements under the

Texas Medical Liability Act to a case in which a patient at a mental health hospital had a physical

altercation with Williams, who worked as a psychiatric technician and professional caregiver at the

facility. See Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 2012). The estate

of the patient sued the hospital and the caregiver, and the caregiver filed cross-claims against the

hospital for negligence. Id. at 175. The supreme court held that Williams needed expert testimony

to provide evidence on proper training, supervision, and protocols to prevent, control, and defuse

aggressive behavior and altercations in a mental hospital between patients and employed professional

counselors who treat and supervise them. Id. at 182. The court noted that such issues concern the

treatment of the patient, that their breach can affect those who treat the patients, and that

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expert testimony is required to assess the connection between the breach and the claimed injury. Id.

The claimant in that case failed to file a report, and his claims were dismissed by the supreme court.

Id. at 175, 193.


Standard of care and breach

               Dr. Reid’s report discussed the standard of care for the Center as follows:


       That employer ([the Center]), 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, (a) adequate staffing and staff support in her work environment
       (sufficient to meet reasonable levels of staff safety, as well as patient safety and care),
       (b) adequate training with regard to recognizing and managing situations that might
       arise in which her safety could be compromised, (c) adequate notifications of
       work situations or persons in her work environment that could reasonably present a
       danger to her or others, (d) adequate care in avoiding or declining admission of
       patients/clients who are inappropriate for the unit on which she worked, and
       (e) elimination or amelioration of reasonably known risks to her and other staff or
       patients created by patients/clients who are admitted to and housed on the unit on
       which she worked.


(Emphases in original.) The report elaborates on each of the elements described in the above

paragraph.

               Staffing: Dr. Reid opines that the Center’s staffing on the evening Payton was

assaulted was “lower than that required by plans of correction and/or other agreements with the

Texas Department of Family and Protective Services (DFPS).” He states that the unit should have

had at least three staff persons, one of whom was male, instead of the two women assigned to the

unit that evening. Although he did not cite the applicable regulation or specific plan of correction

or agreement, his report does set forth a specific statement of what was required and how the Center

failed to meet the standard.

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                Staff training: Dr. Reid opines that Payton’s file and the Center’s employee handbook

contain “no indication that Ms. Payton received any training from [the Center] 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.” This statement

indicates Reid’s opinion that the standard of care requires facilities to train their staff members on

safety, recognizing danger, and protecting themselves. Dr. Reid’s report specifies what subjects the

training should cover and states that the Center failed to do so.

                Staff notification: Dr. Reid states that the Center knew the patient’s history of “severe

impulsivity or explosive expression of anger” from the patient’s examination and yet “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 the patient was potentially

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

was unsafe.” This statement indicates Dr. Reid’s opinion that the standard of care requires that

reasonably prudent facilities inform their staffs about dangerous patients. Dr. Reid specifies what

information the Center should have provided and states that the Center failed to provide it.

                Patient admission and protection of others: Dr. Reid states that the Center’s

knowledge of the patient’s history, behaviors, and symptoms should have alerted the Center that the

patient was inappropriate for admission and/or was not suited in terms of safety for housing on

the boys’ unit without special supervision or containment. Dr. Reid further states that “[the Center]

knew or reasonably should have known that [the patient] 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 [the Center] did anything, physically or clinically,

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to ameliorate the danger from [the patient] to staff and other patients.” These statements indicate

Dr. Reid’s opinion that such facilities have a duty to admit only patients suited for the facility and

to house and treat dangerous patients with additional supervision, physical containment, or clinical

methods to protect patients and staff.

                We cannot conclude that the trial court abused its discretion by concluding that the

expert’s report here sufficiently informed the Center of what it should have done and what it should

have done differently. See Palacios, 46 S.W.3d at 880; see also Wright, 79 S.W.3d at 52 (cannot

substitute our judgment for the trial court’s judgment unless it acted arbitrarily or unreasonably).

Dr. Reid said that DFPS required three staffers, including one male, and that the Center assigned

only two females. He said that the Center should have trained its staff to recognize danger and

warned its staff of known danger, but did not do either. The aspects of the report addressing patient

admission and protection of others are less specific, but we cannot say that the trial court abused its

discretion by concluding that they constitute a good-faith effort to inform the Center of the conduct

the plaintiff questions and to provide a basis for the trial court to conclude that the claims have merit.

See id. Whether Dr. Reid’s opinions are correct is the subject of a summary-judgment proceeding

or trial, not a Chapter 74 motion to dismiss. See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d

193, 199 n.2 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see also Wissa v. Voosen, 243 S.W.3d

165, 169 (Tex. App.—San Antonio 2007, pet. denied).


Causation

                The common thread in each causation theory alleged is that the Center’s act or

omission caused Payton to be alone with the patient, be vulnerable to his strength and volatility, and


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be hurt as a result. This Court has stated that “[t]he causal connection in medical malpractice suits

must be made ‘beyond the point of conjecture’ and ‘must show more than a possibility’ to warrant

submission of the issue to a jury.” Fung v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012,

no pet.) (citing Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703, 706 (Tex. 1970)); see also

Bowie Mem’l Hosp., Inc., 79 S.W.3d at 53). Further, we have held that “[r]eports providing a

‘description of only a possibility of causation do[ ] not constitute a good-faith effort to comply with

the statute.’” Fung, 365 S.W.3d at 530 (citing Walgreen Co. v. Hieger, 243 S.W.3d 183, 186

(Tex. App.—Houston [14th Dist.] 2007, pet. denied)). However, the expert report is not required

to prove the defendant’s liability, but rather to provide notice of what conduct forms the basis for the

plaintiff’s complaints. Hayes v. Carroll, 314 S.W.3d 494, 507 (Tex. App.—Austin 2010, no pet.)

(citing Apodaca v. Russo, 228 S.W.3d 252, 255 (Tex. App.—Austin 2007, no pet.)).

                Dr. Reid wrote in the expert report as follows:


        (a) 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 [the
        patient] to the laundry alone. (See her statement.)

        (b) If there had been adequate male staffing on the boys’ unit, Ms. Payton would not
        have been in the position of being a sole female vulnerable to attack by a physically
        stronger, younger male. (See her statement.)

        (c) If Ms. Payton had received adequate training regarding the dangers of escorting
        patients such as [the patient] off-unit alone, she would not have escorted him alone
        to the laundry room.

        (d) If Ms. Payton had been adequately informed by [the Center] of [the patient]’s past
        history of such things as violence, impulsive and assaultive behavior, other behaviors
        noted above, and his pre-admission history of “severe 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.


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        (e) If [the patient] had not been admitted to [the Center] 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.

        (f) If [the patient] 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.


These assertions are tied to the facts and standards of care laid out by Dr. Reid and show the

connection alleged between the Center’s act or omission and the patient’s assault on Payton that

caused the injuries she claims. We cannot say on this record that the trial court abused its discretion

by finding the report to be a good-faith effort to inform the Center of the basis of Payton’s claim and

to allow the trial court to assess its merit.


                                            CONCLUSION

                We cannot say that the trial court abused its discretion by concluding that

Dr. Reid’s report was a good-faith effort to provide a fair summary of the elements of Payton’s

claim as required by Texas Civil Practice & Remedies Code subsections 74.351(l) and 74.351(r)(6).

We affirm the trial court’s order.




                                                Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: November 18, 2015



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