                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00218-CV


LAURA HATCHEL, AS NEXT                                              APPELLANT
FRIEND OF C.H.

                                        V.

MICHELLE HACKER, FNP-C                                                APPELLEE


                                     ----------

          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      Appellant Laura Hatchel, as next friend of C.H., appeals the trial court’s

order dismissing her health care liability claim against Appellee Michelle Hacker,

FNP-C. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (West Supp.

2013). We will reverse and remand.


      1
       See Tex. R. App. P. 47.4.
      According to Hatchel’s original petition, on March 16, 2010, C.H. cut open

the bottom of his left foot when he jumped into Lake Texoma and landed on an

object. He presented at Minor Emergency of Denton with a 3 centimeter primary

laceration, a .5 centimeter secondary laceration, and swelling and ecchymosis

across the width of his foot. John Mulford, FNP, cleaned and removed dirt and

wood from the “heavily contaminated” wound, sutured the lacerations, and

applied antibiotic ointment.     C.H. received a tetanus shot and several

prescriptions and went home.

      C.H.’s condition worsened over the next few days, so on March 18, 2010,

he went to the McLeroy, Gibbs & Klein Medical Clinic, where he was treated by

Hacker and diagnosed with an infected laceration. Hacker examined the wound

without opening it, took a culture, prescribed an additional antibiotic, and

instructed C.H. to wash the wound, change the dressing, and apply ointment to it

two to three times per day.

      Two days later, on March 20, 2010, C.H. returned to the McLeroy, Gibbs &

Klein Medical Clinic with a persistent high fever and a swollen, red foot. He was

referred to Texas Health Presbyterian of Denton, where he was admitted,

diagnosed with cellulitis, and started on intravenous antibiotics. During a surgery

two days later to debride the wound, Dr. Craig Glauser removed a 5 millimeter

piece of wood and a 4 centimeter by 8 millimeter piece of wood from the wound




                                        2
and irrigated and packed the wound. C.H.’s condition improved, and the hospital

discharged him on March 26, 2010.

      Hatchel sued Hacker in May 2012 for medical negligence in connection

with the treatment of C.H.’s foot, and she timely served Hacker with an expert

report authored by R. Robert Ippolito, M.D.2 Hacker objected to Dr. Ippolito’s

report on several grounds and moved to dismiss Hatchel’s claim. The trial court

granted the motion in part but also granted Hatchel a thirty-day extension to cure

the deficiencies. Hatchel filed an amended expert report authored by Dr. Ippolito,

Hacker objected that Dr. Ippolito’s opinions on breach and causation were

conclusory and speculative and moved to dismiss Hatchel’s claim, and the trial

court granted the motion without specifying its reasons for doing so.

      A plaintiff must serve an expert report for each physician or health care

provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(a) (West Supp. 2013). An expert report is a written report by an

expert that provides a fair summary of the expert’s opinions regarding the

applicable standard of care, the manner in which the care rendered by the

physician or health care provider failed to meet the standard, and the causal

relationship between that failure and the injury, harm, or damages claimed. Id.

§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may


      2
       Hatchel sued several other individuals and entities, but they are not
parties to this appeal.



                                        3
file a motion challenging the report’s adequacy. See id. § 74.351(a), (b). A trial

court must grant a motion to dismiss based on the alleged inadequacy of an

expert report only if it finds, after a hearing, that the report does not represent an

objective good faith effort to comply with the definition of an expert report in the

statute. Id. § 74.351(l).

      The information in the report does not have to meet the same

requirements as evidence offered in a summary judgment proceeding or at trial,

and the report need not marshal all the plaintiff’s proof, but it must include the

expert’s opinions on each of the elements identified in the statute—standard of

care, breach, and causation. See Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 878‒79 (Tex. 2001); Polone v. Shearer, 287 S.W.3d

229, 233 (Tex. App.—Fort Worth 2009, no pet.). In detailing these elements, the

report must provide enough information to fulfill two purposes if it is to constitute

a good faith effort:    (1) the report must inform the defendant of the specific

conduct the plaintiff has called into question and (2) the report must provide a

basis for the trial court to conclude that the claims have merit. Palacios, 46

S.W.3d at 879.

      We review a trial court’s denial of a motion to dismiss for an abuse of

discretion. Polone, 287 S.W.3d at 232. A trial court abuses its discretion when it

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




                                          4
rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241‒42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

         In part of her only issue, Hatchel argues that the trial court abused its

discretion by granting Hacker’s motion to dismiss because Dr. Ippolito’s report

adequately explained how Hacker breached the applicable standard of care.

Dr. Ippolito opined that the standard of care for C.H.’s follow-up treatment on

March 18, 2010, at the McLeroy, Gibbs & Klein Medical Clinic required (1) that

his obviously infected wound be opened and fully debrided or (2) that he be

referred to a qualified physician or facility to perform the debridement. In the

portion of the report titled “Deviations from the Standards of Care,” Dr. Ippolito

wrote,

         The standard of care required Robert R. McLeroy, M.D., and/or
         Michelle Hacker to open and fully debride the wound when the
         patient presented with the symptoms listed as this is an obviously
         infected wound . . . .

               ....

                The records indicate that the wound was not opened at
         McLeroy, Gibbs & Klein Clinic. This is a deviation from the standard
         of care since the wound was draining purulence, infected, and
         required full debridement. Full debridement is the process of
         removing foreign material or dead tissue from and around a wound
         to expose health[y] tissue. Given the size of the pieces of wood
         ultimately found in the wound, Nurse Hacker should have been able
         to locate the wood in Mr. Hatchel’s foot on either of the two visits to
         McLeroy, Gibbs & Klein Clinic. Failing to even open the wound in
         the face of such obvious signs of infection is a deviation from the
         standard of care in this case. [Emphasis added.]




                                           5
Dr. Ippolito thus specifically opined that Nurse Hacker breached the applicable

standard of care by failing to open and debride the wound.

      Hacker directs us to our opinion in Polone and argues that the report does

not specifically identify how she breached the standard of care because it does

not differentiate between the standard of care applicable to her and the standard

of care applicable to Dr. McLeroy, the supervising physician. See Polone, 287

S.W.3d at 233‒35. Polone involved a failure-to-diagnose-cancer claim in which

we held that the expert report inadequately set forth the applicable standard of

care for a physician’s assistant because the report identified identical standards

of care for both the physician’s assistant and a physician, and there was no

specific recitation that the standards were identical. Id. Implicit in our reasoning

was that in the absence of any indication otherwise, we were unable to

conclude—based on the nature of the case and the facts involved—that the

physician and the physician’s assistant shared the same standards of care. See

id. That same circumstance is not present in this case. The claim here alleges

negligence for failing to open and clean a wound, not failing to diagnose cancer.

It is impossible to read Dr. Ippolito’s report and not conclude that the standard of

care applicable to Hacker is the same standard of care applicable to

Dr. McLeroy—whether the care was provided by a physician or a nurse




                                         6
practitioner, the standard of care simply required that the infected wound be

debrided.3

      We also note that Hacker’s second round of objections challenged

Dr. Ippolito’s opinions regarding breach and causation only. To the extent that

Hacker so argues, we refuse to disregard an otherwise adequate recitation

regarding breach on account of a purported inadequacy regarding an aspect of

Dr. Ippolito’s report that was not challenged in the trial court (standard of care).

We sustain this part of Hatchel’s first issue.

      Hatchel argues in another part of her only issue that the trial court abused

its discretion by granting Hacker’s motion to dismiss because Dr. Ippolito’s report

adequately explained how Hacker’s alleged failure to comply with the standard of

care caused C.H.’s injuries or damages. There are no magic words required to

establish causation. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.

2002). But the report must explain the basis for the expert’s causation opinions

by linking the expert’s conclusions to the alleged breach. Id.

       In the portion of the report titled “Proximate Cause,” Dr. Ippolito opined,

             In this case, the actions of Michelle Hacker in merely wiping
      off the outside of the wound and providing an additional antibiotic,
      and not even opening the wound to attempt to debride the wound
      at that time, allowed the infection to continue to grow and attack
      surrounding healthy tissue. . . .


      3
      Indeed, the report states that the standard of care required Dr. McLeroy
and Hacker “each” to open and debride the wound.



                                          7
            ....

               Mr. Hatchel’s foot was likely saved by Dr. Glauser’s correct
      decision to immediately debride the wound and begin IV antibiotics
      when Mr. Hatchel was finally sent to him two days after he was
      initially seen at the McLeroy, Gibbs & Klein Clinic. The two day
      delay allowed the infection to grow exponentially and certainly
      contributed to the increased length of [the] hospital stay, to the
      ultimate loss of tissue in Mr. Hatchel’s left foot, which caused
      Mr. Hatchel to lose significant use of his foot and mobility for the
      following year. . . . This destruction is what caused the damage that
      Dr. Glauser had to repair.         This destruction is what caused
      Mr. Hatchel’s recovery time to be so prolonged. This destruction
      could have been entirely avoided if the wound had been completely
      debrided and all foreign objects removed as the standard of care
      required, as more fully explained above. [Emphasis in original]

Thus, Dr. Ippolito opined that while C.H. presented at the McLeroy, Gibbs & Klein

Medical Clinic with an already-infected laceration, it was Hacker’s failure to open

and debride the wound that allowed the infection to grow exponentially, which

caused the destruction of tissue in the foot, the need to surgically repair the

destruction to the foot, and the loss of mobility and use of the foot that C.H.

experienced over the next year. Hatchel thus adequately linked Hacker’s alleged

failure to meet the applicable standard of care to the injuries and damages that

C.H. allegedly sustained.

      Hacker likens this case to Bowie and argues that, at most, Dr. Ippolito’s

causation opinions (a) “are equivalent to a statement that [C.H.’s] injury might

have been avoided or lessened if Nurse Practitioner Hacker had acted

differently” and (b) are conclusory and require the court to draw inferences about

the connection between Hacker’s conduct and C.H.’s injuries. The portions of



                                        8
the report above are not conclusory and do not require the court to make any

inferences—it clearly factually alleges that by failing to open and debride the

wound, Hacker allowed the infection to flourish, tissue was consequently

damaged, and surgery was necessary to correct the damaged tissue.

      Hacker contends that the report is insufficient because Dr. Ippolito did not

“provide a baseline as to what would have resulted from the previous health care

provider’s care even had Nurse Practitioner Hacker done what the report said

she should have done.”      But section 74.351 does not require Dr. Ippolito to

speculate about what would have happened had Hacker complied with the

standard of care; it requires Dr. Ippolito to explain how Hacker’s failure to comply

with the applicable standard of care caused C.H.’s injuries or damages.

Dr. Ippolito did that—but for Hacker’s failure to debride the wound, C.H. would

not have required surgery to repair the tissue that was destroyed by the infection

that flourished exponentially between the time that Hacker cared for C.H. and

when he went to the hospital.

      Hacker argues that Dr. Ippolito did not explain how failing to open the

wound allowed the infection to grow, but he actually did just that: “[T]he foot is a

closed space and the pus and exudate attendant to the infectio[n] causes tissue

necrosis and ischemia as it has nowhere else to go.” Hacker complains that she

is not mentioned in several of the paragraphs that are relevant to Dr. Ippolito’s

opinion on causation, but the excerpts that we set out above specifically identify




                                         9
her. Hacker takes issue with the third to the last full paragraph of Dr. Ippolito’s

report, but that paragraph is not essential to Dr. Ippolito’s opinion.4 We sustain

this part of Hatchel’s issue.

      Dr. Ippolito’s report represented an objective good faith effort to comply

with the definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l); Palacios, 46 S.W.3d at 879. Accordingly, we hold that the trial court

abused its discretion by granting Hacker’s motion to dismiss Hatchel’s health

care liability claim. We reverse the trial court’s judgment and remand the case to

the trial court for further proceedings.



                                                   /s/ Bill Meier

                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: MAY 8, 2014




      4
       We did not refer to it above.



                                           10
