                                                                              ACCEPTED
                                                                          06-15-00049-CV
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                   10/13/2015 11:22:43 AM
                                                                         DEBBIE AUTREY
                                                                                   CLERK
                NO. 06-15-00049-CV



                                                           FILED IN
         IN THE COURT OF APPEALS                    6th COURT OF APPEALS
      FOR THE SIXTH DISTRICT OF TEXAS                 TEXARKANA, TEXAS
            TEXARKANA, TEXAS                       10/13/2015 11:22:43 AM
                                                        DEBBIE AUTREY
                                                            Clerk
       CRISTINA MARENTE individually
          and as representative of the
  ESTATE OF CHRISTIAN MARENTE, Deceased,
                  Appellants

                          v.

EUNICE ASHA, and EPIC HEALTH SERVICES, INC.
                  Appellees




       On Appeal from Cause Number 86812
  From the 401h District Court of Ellis County, Texas



      AMENDED BRIEF FOR APPELLANTS
            (WITH APPENDIX)


         ORAL ARGUMENT REQUESTED



                               Douglas T. Floyd
                               Attorney for Appellants
                               3336 Therondunn Dr.
                               Plano, Texas 75023
                               214-704-7081
                               469-519-9488 FAX
                               T.B.N. 07181700
                               lawyerfloyd@aol.com
                        IDENTITY OF PARTIES AND COUNSEL

 PLAINTIFF/APPELLANT: CRISTINA MARENTE individually and as representative of the
                      ESTATE OF CHRISTIAN MARENTE, Deceased

 DEFENDANTS/APPELLEES:             EUNICE ASHA, and EPIC HEALTH SERVICES, INC.

  COUNSEL FOR PLAINTIFFI APPELLANT:
  Douglas T. Floyd
· 3336 Therondunn Dr.
  Plano, Texas 75023
  214-704-7081
  469-519-9488 FAX
  T.B.N. 07181700
  lawyerfloyd@aol.com

 COUNSEL FOR EUNICE ASAHIAPPELLEE
 David M. Walsh, IV
 Peter Anderson, Chamblee, Ryan, Kershaw and Anderson, P.C.
 2777 N. Stemmons Freeway, Suite 1157
 Dallas, Texas 75207
 214-905-2003
 214-905-1213 FAX
 dmwalsh@chambleeryan.com

 COUNSEL FOR EPIC HEALTH SERVICES, INC./APPELLEE
 Winston L. Borum
 BORUM & HANCOCK, L.L.P.
 2485 Burnett Plaza
 801 Cherry Street, Unit 414
 Fort Worth, TX 76102
 817-336-4100
 817-336-41412 FAX
 borum@borumhancock.com

PRESIDING JUDGE AT TRIAL:
Hon. Robert Carroll
401h District Court
Ellis County, Texas
201 Caroline, 11th Floor
Houston, Texas 77002
101 South Main Street
Waxahachie, Tx 75165
972-825-5060
972-825-5061 FAX
                                  TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL ................................... ii

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

INDEX OF AUTHORITIES ............................................ ......... v

STATEMENT OF THE CASE ............................................ ....... 1

ISSUES PRESENTED ............................................ .............. 2

STATEMENT OF FACTS ............................................ .......... 3

SUMMARY OF THE ARGUMENT ............................................ .. 8

ARGUMENT ............................................ ..................... 9

A.    Dr. Marabel's report was sufficient to satisfy the requirements of TEX. CIV. PRAC. &

      REM. §74.351 ............................................ ............. 12

B.    Nurse Binghams' report was sufficient to satisfy the requirements of TEX. CIV. PRAC.

      & REM. §74.351 .............       ••••••••••••••••••••••••••••••••••••••••••
                                         1
                                                                                                  12

C.    No expert report was necessary with respect to Appellants' claims for vicarious liability

      against Epic Health Services, Inc. . ......................................... 20

PRAYER ............................................ ....................... 20

CERTIFICATE OF SERVICE ............................................ ...... 21

CERTIFICATE OF COMPLIANCE ............................................ .. 21

APPENDIX ............................................ ..................... 22

     a.      Order on Defendants Eunice Asah's and Epic Health Services, Inc.'s Objections

             to Plaintiffs Amended Chapter 74 Expert Reports and Motions to Dismiss

     b.      Expert Report of Patti Bingham, RN

     c.      Curriculum vitae of Patti Bingham, RN

                                              11.
d.   Expert Report of Dr. Charles Marable, M.D.

e.   Curriculum vitae of Dr. Charles Marable, M.D.

f.   Civ. Prac. & Rem. Code Subchapter H Procedural Provisions Sec. 74.351, Sec.

     74.402 and Sec. 403




                                   iii.
                                INDEX OF AUTHORITIES

CASES

Adeyemi v.Guerrero, 329 S.W.3d 241 (Tex. App.-Dallas 2010, no pet.) ................... 9

Ballan v. Gibson, 151 S.W.3d 281 (Tex. App.-Dallas 2004, no pet.) .................... 16

Blan v. Ali, 7 S.W.3d 741 (Tex. App.-Houston [14th Dist.] 1999, no pet.) ............... 11
                                                            c
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873
                                                        l

(Tex. 2001) ............................................ ................... 12, 13

Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15
(Tex.App.-Tyler 2000, pet. denied) ............................................ ... 18

Larson v. Downing, 197 S.W.3d 303 (Tex. 2006) ..................................... 9

Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855
(Tex.App.-Houston [1st Dist.] 2006, no pet.) ........................................ 9

Group v. Vicenta, 164 S.W.3rd 724 (Tex.App.-[Houston 14th Dist] 2005) ............. 17, 18

Obstetrical & Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96
(Tex. App.-Houston [14th Dist.] 2009, pet. denied) ................................... 20

Rittger v. Danos, 332 S.W.3d 550
(Tex. App.-Houston [1st Dist.] 2009,'no pet.) ............ , ........................ 11

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) ................................ 9, 10

Packardv. Guerra, 252 S.W.3d 511 (Tex.App.-Houston [14 Dist.] 2008) ................ 19

STATUTES

Tex. Civ. Prac. & Rem. §74 ............................................ .. '....... 18

Tex. Civ. Prac. & Rem. Code Ann. § 74.351 ....................... 2, 9, 11, 12 13, 16, 19

Tex. Civ. Prac. & Rem. § 74.351 (r)(5)(A)-(B) ...................................... 19

Tex. Civ. Prac. & Rem .. §74.351(r)(6) .......................... 2, 8, 9, 11, 12, 13, 16, 19

Tex. Civ. Prac. & Rem. § 74.401 .......................................... 11, 14, 19

Tex. Civ. Prac. & Rem.§ 74.402 .................................... 14, 16, 17, 18, 19

                                             IV
Tex. Civ. Prac. & Rem.§ 74.402(b)(l) ...................................... 17, 18, 19

Tex. Civ. Prac. & Rem. § 74.402(a)(2) ...................................... 17, 18, 19

TEX. GOV'T CODE ANN.§ 311.005(13) (Vernon 2005) ............................. 18




                                          v
                                STATEMENT OF THE CASE

This is a health case liability claim involving nursing negligence against Eunice Asah, R.N.

(hereinafter referred to as "Nurse Asah"), and her employer, Epic Health Services, Inc., which

was originally filed on March 4, 2013, in Ellis County, Texas, (CR 7) and subsequently amended

on March 27, 2013. (CR 16). Patti Bingham, R.N. and Dr. Charles Marable, M.D. prepared

initial expert reports which were subsequently amended and served on Defendants on August 29,

2013. (CR 197). On September 17, 2013, Epic Health Services filed Defendant Epic Health

Service, Inc.'s Objection to Plaintiffs Amended Chapter 74 Expert Reports & Motion to

Dismiss. (CR 199). On September 18, 2013, Asah filed Defendant Eunice Asah's Objections to

Plaintiffs Amended Chapter 74 Expert Reports & Motion to Dismiss. (CR 219). On June 23,

2015, the District Court granted Defendants' motions to dismiss on all Plaintiffs' issues and

signed an Order on Defendant Eunice Asah & Epic Health Services, Inc.'s Objections to

Plaintiffs amended chapter 74 Expert Reports & Motions to Dismiss. (CR 379 ).




                                                 1
                                   ISSUES PRESENTED

1.   Were the expert amended reports provided to the Appellees in compliance with Tex. Civ.

     Prac. & Rem. 74.35l(a)?

2.   Did the amended expert reports comply with the requirements of Tex. Civ. Prac. & Rem.

     74.35l(r)(6) and put the Appellees on notice of the conduct called into question?

3.   Did the district court err in dismissing the claims of vicarious liability against an

     employer of a health care provider on the basis of the expert reports?




                                                2
                                   STATEMENT OF FACTS

       On September 10, 2012, CHRISTIAN MARENTE, hereinafter Christian, was a

seventeen-year-old male with a history of Jeune syndrome and restrictive lung disease. Jeune

syndrome (asphyxiating thoracic dystrophy, ATD) is a rare autosomal recessive skeletal

dysplasia [dysplasia is an abnormality within the cells of tissue that affects growth, development

and function] characterized by a small, narrow chest and variable limb shortness. There is a

considerable neonatal mortality as a result of respiratory distress. Renal, hepatic, pancreatic, and

ocular complications may occur later in life. Christian had respiratory complications that had

left him with a tracheostomy and mechanical-ventilator dependent. He had asthma and chronic

kidney disease and had received a kidney transplant in July 2007. On September 10, 2012

CHRISTIAN was on oxygen 2 liters at all times. At night, he was on the ventilator; thus

requiring 24 hour sitting provided by a home health service.

       At approximately 5:00 p.m. on September 10, 2012, EUNICE ASAH, hereinafter Nurse

Asah, a home health nurse provided by EPIC Health Services was bathing Christian in his home

at 313 E. Freeman, Ennis, Texas. They were alone and while putting him "back to bed" the

"tracheostomy" came out. As documented in the EMS Patient Care Report, Nurse Asah "made

multiple attempts to place the trachea tube back into place but has been unsuccessful." Christian

received Bag-Valve-Mask [BVM] ventilation and became pulseless. Nurse Asah began chest

compressions. EMS was called and upon arrival continued Cardio- pulmonary resuscitation,

obtained a blood pressure and then transported Christian to Children's Medical Center, Dallas,

Texas for ongoing care. Christian had been pulseless approximately 10-15 minutes.

       Nurse Asah initially stated she was "changing out his trach and the patient was moving

around ... and it came out." Nurse Asah says she "made multiple attempts to place the trachea



                                                 3
tube back into place" but could not. According to the Dis~harge Summary from Children's

Medical Center, she then tried to replace the trachea with a 5.5 trach tube, but was not

successful. She then began bag-valve masking [BVM] Christian through his trachea in which

she had told the 911 dispatcher the trachwas "halfway in."

       Nurse Asah spoke with the 911 dispatcher for a total of 6 minutes. During this time, she

did not identify herself as a Registered Nurse. The 911 dispatcher wasted valuable time

explaining to Nurse Asah how to 'complete the Cardio-pulmonary resuscitation [CPR]

procedures.

       EMS received the call at 17:23 and arrived at the home 17:28. Upon arrival, Christian

did not have a pulse, and CPR was continued. EMS documented "Pt's trachea opening is blocked

by the pt's neck." They noted inserting a "6.0mm ET tube through his trachea." They then

transferred Christian to the airport where air,.team emergency flight, Air Evac 74, met them and

transferred Christian to Children's Medical Center in Dallas, Texas.

       Christian was pronounced deceased on September 23, 2012.

       Nurse Asah has reported at least two different reasons as to how the tracheostomy tube

came out. Nurse Asah first reported in her 911 call that while putting Christian back to bed the

tracheostomy came out. In response to interrogatories, Nurse Asah reported that she removed the

tracheostomy in preparation to replacing the trach.

       The first statement by Nurse Asah implies that the trach came out accidently. The second

statement makes it clear that Nurse Asah removed the trach intentionally. What is important is

that Cristina Marente was the only person that ever changed the tract and never changed the trach

on Nurse Asah's shift. Nurse Asah try to ignore the fact that the replacing of the trach was not

her responsibility and she should have never have undertaken the procedure of removing the



                                                 4
trach for the purpose of replacing the trach on the date in question. The removing and replacing

of the trach in the home was the sole responsibility of the mother, Cristina Marente. Second,

Nurse Asah ignores the fact that the removing and replacing of the trach was never done on her

shift. It was always done on the following shift with another nurse present when Cristina

Marente changed the trach.

       As set forth in Appellants' First Amended Petition:(CR 18-19).

NEGLIGENCE - BREACH OF STANDARD OF CARE:

       a.      Among the Significant Breaches in Standard of Care by EPIC Health Services,

               Inc., and through its employee, EUNICE ASAR, RN:

               1.     ASAH's conduct fell below nursing Standard of Care when she failed to

                      properly care for the trach.

               11.    ASAH's conduct fell below nursing Standard of Care when she failed to

                      immediately call appropriate emergency medical assistance when the

                      patient showed initial signs of distress.

               111.   ASAH's conduct fell below nursing Standard of Care when she failed to

                      give the 911 dispatcher the correct street address of 311 East Freeman

                      Street.

               1v.    ASAH's conduct fell below nursing Standard of Care when she failed to

                      immediately identify herself as a registered nurse resulting in unnecessary

                      delay.

               v.     ASAH's conduct fell below nursing Standard of Care when she failed to

                      properly communicate with the 911 operator.

               vi.    ASAH's conduct fell below nursing Standard of Care when she failed to



                                                 5
            remain calm and collected in a professional manner.

     vn.    ASAH's conduct fell below nursing Standard of Care when she failed to

            have the proper training for home health care for tracheostomy patients.

b.   To achieve positive outcomes in patients with trach tubes, every nurse needs to

     keep abreast of the best practices, develop, and maintain the necessary skills. A

     nurse who performs trach care needs to be familiar with their facility's policy and

     procedure. Per the Six-Step Decision-Making Model for Determining Nursing

     Scope of Practice in Texas, "A nurse always has a duty to his/her clients/patients

     to assure that they are safe. One of the most important actions a nurse can take

     toward that goal is making sure that he/she only accepts those assignments for

     which the nurse has the education, training, and skill competency. Physical and

     emotional ability can also impact a nurse's ability to maintain client safety when

     accepting an assignment."

c.   Plaintiffs assert that the care rendered to CHRISTIAN MARENTE by EPIC

     HOME SERVICES, INC., and EUNICE ASAR did not meet nursing Standard of

     Care. ASAR should have:

     i.     Properly maintained Christian's tracheostomy while transferring or

            changing the trach site.

     n.     Immediately called Emergency personnel for additional help.

     111.   Identify Registered Nurse qualifications to appropriate authorities to avoid

            unnecessary delay in additional assistance.

     1v.    Maintain a composed, professional conduct while under an emergency

            situation.



                                       6
v.    Follow the American Heart Association's guidelines for Cardio-pulmonary

      resuscitation.

vi.   Instituted appropriate nursing interventions that required stabilization in a

      patient's condition.

VIL   Been properly trained in the care of a tracheostomy patient and in how to

      properly act in an emergency situation.




                                7
                              SUMMARY OF THE ARGUMENT

       Nurse Bingham's amended expert report fulfills the requirement of Tex. Civ. Prac. &

Rem. §74.35l(r)(6). She fully discusses the standard of care, how the standard was breached by

Nurse Asah, and how the breach led to Christian's injuries. Furthermore, the report is more than

sufficient to inform the Nurse Asah of the conduct called into question and provides a basis for

the trial court to conclude that the claims have merit.

       Dr. Marable's amended expert report fulfills the requirements of TEX. CIV. PRAC. &

REM. §74.351(r)(6). He fully discusses the standard of care, how the standard was breached by

Nurse Asah, and how the breach led to Christian's injuries with respect to Nurse Asah's conduct.

Furthermore, the report is more than sufficient to inform Nurse Asah of the conduct called into

question and provides a basis for the trial court to conclude that the claims have merit.

       No expert report was necessary with respect to Appellants' claims for vicarious liability

against Epic Health Services. The court erred by dismissing those claims on the basis of Epic

Health Services's objections to the expert report.




                                                  8
                                            ARGUMENT

        The issue in this Appeal is whether or not Nurse Bingham's amended expert report and

Dr. Marable's amended expert report fulfills the requirement of Tex. Civ. Prac. & Rem. §74.

The Courts have said, "In determining whether an expert is qualified, we must be careful not to

draw expert qualifications "too narrowly." Larson v. Downing, 197 S.W.3d 303, 305 (Tex.

2006); Adeyemi v.Guerrero, 329 S.W.3d 241, 247 (Tex. App.-Dallas 2010, no pet.). Defendants

attempt to frame the argument around the medical condition of Christian to avoid addressing the

specific negligent acts of Nurse Asah that essentially have nothing to do with his medical

condition and therefore ask the court to narrowly define the expert qualifications necessary to

fulfill the requirements of Tex. Civ ..Prac. & Rem. §74.

        A health care liability claimant must timely provide each defendant healthcare provider

with an expert report. See Tex. Civ. Prac. & Rem. Code Ann.§ 74.351; Gray v. CHCA Bayshore,

L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] 2006, no pet.) The report must provide

a "fair summary" of the expert's opinions as of the date of the report regarding the applicable

standards of care, the manner in which the care rendered by the health care provider failed to

meet the standard, 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 a defendant health care provider files a motion to dismiss, challenging the adequacy of

a claimant's expert report, a trial court must grant the motion if it appears, after a hearing, that the

report does not represent an objective good faith effort to comply with the definition of an expert

report or is not sufficiently specific to provide a basis for the trial court to conclude that the

claims have merit. Id § 74.351(1); Scoresby v. Santillan, 346 S.W.3d 546, 555-56 (Tex. 2011).

In setting out the expert's opinions, the report must provide enough information to fulfill two



                                                   9
purposes: (1) it must inform the defendant of the specific conduct that the plaintiff has called'into

question, and (2) it must provide a basis for the trial court to conclude that the claims have merit.

Scoresby, 346 S.W.3d at 556.

        We will address the qualifications and sufficiency of Dr. Marable's expert report first

because essentially the same argument applies to the qualifications and sufficiency of Nurse

Bingham's expert report.

                                AS CONCERNS DR. MARABLE

       As stated above, Defendants attempt to frame the argument around the medical condition

of Christian to avoid addressing the specific negligent acts of Nurse Asah that essentially have

nothing to do with his medical condition, when Nurse Asah states:

               "But the issue is not whether Nurse Asah is qualified to treat Christian in this

       setting, but whether Dr. Marable is qualified to offer opinions about a pediatric home

       health care nurse treating a patient such as Christian under these circumstances. And that

       is where Dr. Marable 's report fails. He does not state that he is familiar with the nursing

       standard oficare applicable to nurses (1) caring for a pediatric patient with Jeune

       syndrome/restrictive lung disease; (2) with a tracheostomy requiring the administration of

       continuous oxygen therapy and nighttime ventilation with a mechanical ventilator; (3) in

       the home health care setting; and -   most importantly -- (4) requiring tracheostomy tube

       changes, such as was performed by Nurse Asah in this case, or (5) responding to an

       emergency situation such as the one faced by Nurse Asah in this case." (CR 232)

       The only real issue concerns number (5) above as to the appropriate response by Nurse

Asah to the specific emergency situation she created made the basis of this suit.

       Dr. Marable's report was sufficient to satisfy the requirements of Tex. Civ. Prac. & Rem.



                                                 10
74.35.1. Additionally, Dr. Marable is fully qualified under Tex. Civ. Prac. & Rem. 74.402 to

offer opinions in this case.

        Nurse Asah alleges that Dr. Marable was not qualified under Tex. Civ. Prac. & Rem.

74.402 to render an opinion as to the standard of care applicable to Nurse Asah in this case. (CR

233)

        "The expert testifying in a medical malpractice case need not be a specialist in the

particular branch of the profession for which testimony is offered; the statute setting out the

requisite qualifications focuses not on the defendant doctor's area of expertise, but on the

condition involved in the claim." Rittger v. Danos, 332 S.W.3d 550, 558 (Tex. App.-Houston

[1st Dist.] 2009, no pet.) (citing Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.-Houston [14th

Dist.] 1999, no pet.)).

        Dr. Marable is more than qualified to testify about the standard of care for a nurse like

Nurse Asah performing the duties she was suppose to be performing at the time with Christian.

Nurse Asah continues to focus her arguments on the medical condition of Christian and not on

the extensive medical history of Dr. Marable in working with nurses.

       The medical condition of the patient in this case is not the proper inquiry under Tex. Civ.

Prac. & Rem. 74.401. Dr. Marable articulated very clearly in his expert report, both in the

introduction (CR 253) and the section titled "QUALIFICATIONS" as to his experience as to the

matters made the basis of this suit and with the Standard of Care" (CR 254-263) that he is

familiar with the standard of care for a nurse watching a patient under the circumstances in this

case and that Nurse Asah breached that standard of care.

       Dr. Marable's report complies with the requirements of Tex. Civ. Prac. & Rem.

§74.351(r)(6) with respect to all Appellees.



                                                 11
         "An expert report must discuss the standard of care, breach, and causation 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." American Transitional

Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Dr. Marable's report

did exactly what the Supreme Court ruled it must in Palacios. In his report, Dr. Marable

discussed, in detail, the standard of care, what specific conduct of each defendant breach said

standard of care, and how that breach proximately caused Christian's injuries. The district court

gav~   no reasoning for granting the motions to dismiss, but a dismissal for failure to comply with

the requirements of Tex. Civ. Prac. & Rem. §74.35l(r)(6) would constitute an abuse of discretion

and cannot be upheld.

         Tex. Civ. Prac. & Rem. §74.35l(r)(6) requires only "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." A motion to

dismiss should only be granted if "the report does not represent an objective good faith effort to

comply with [that] definition." Tex. Civ. Prac. & Rem. §74.351(1).

        Dr. Marable's report fulfills all three requirements of Tex. Civ. Prac. & Rem.

§74.35l(r)(6). He summarizes his opinions as to the applicable standards of care, the manner in

which the care rendered by Nurse Asah failed to meet those standards, and the causal relationship

between that failure and the injury, harm, or damages claimed. (CR 254-263)

        In a lengthy paragraph in the standard of care section of his report, Dr. Marable explains,

in detail, the causal link between Nurse Asah's actions and Christian's injury. (CR 256) He

reiterates and elaborates upon several points in paragraphs in the breach of the standard of care



                                                 12
(CR 258-258) and causation (CR 262-263) sections of his report.

        As required by Tex. Civ. Prac. & Rem. §74.35l(r)(6) and Palacios, Dr. Marable's report

informed Nurse Asah of the specific conduct called into question. Based on Christian's as created

by Nurse Asah and the specific steps Nurse Asah should have taken specific identified actions set

forth in his report. (CR 261-262)

                          AS CONCERNS EPIC HEALTH SERVICES

        Dr. Marable's report addresses Appellants' direct liability claims against Epic Health

Services. As he did with conduct of Nurse Asah, he explained, in detail, how Epic Health

Services caused Christian's injuries. Epic Health Services should have had protocols for

evaluation, consultation, admission, and follow-up that resulted in adequate care of patients

should an emergency condition arise. The failure to have in place and abide by such protocols

was a breech in the standard of care." (CR 261-262)

       "Epic Health Services' failed [sic] to have or implement adequate protocols for

evaluation consultation, admission, and follow-up that resulted in adequate care of this patient

with dural sinus thrombosis and idiopathic intracranial hypertension. The failure to have in place

and abide by such protocols was a breech in the standard of care that was a proximate cause of

Christian's death. (CR 262-263) The foregoing paragraphs in Dr. Marable's report are clearly

sufficient to "inform the defendant of the specific conduct the plaintiff has called into question"

and to "provide a basis for the trial court to conclude that the claims have merit." Palacios, 46

S.W.3d at 879.

                              AS CONCERNS NURSE BINGHAM

       Nurse Bingham's report was sufficient to satisfy the requirements of Tex. Civ. Prac. &

Rem. 74.351. The same argument for Dr. Marable applies to Nurse Bingham.



                                                 13
        Nurse Bingham is fully qualified under Tex. Civ. Prac. & Rem. 74.402 to offer opinions

in this case.

        Nurse Asah's objection to Nurse Bingham's report because "Nurse Bingham's criticisms

of Nurse Asah solely relate to her handling of the September 10, 2012 tracheostomy incident."

(CR 227). That is absolutely correct, because that is the only time Nurse Asah negligently caused

the trach to be removed and panicked when she could not put the trach back in. The care and

treatment provided by Nurse Asah up until the incident was adequate because Nurse Asah never

changed or removed the trach before the date in question.

        Nurse Asah attempts to beguile the issues by concentrating on the medical condition of

Christian and implying that only someone that has treated a patient with Jeune

syndrome/restrictive lung disease in a home health care environment can give an opinion on the

negligence of a nurse that negligently removes a trach and then panics when she cannot re-insert

the trach. That is not a requirement to qualify as an expert under CPRC §74.402.

        Nurse Bingham is certified and qualified as a registered nurse and is actively practicing

health care in rendering health care services relevant to the claim. Nurse Asah's duties on the

date in question were as a "sitter" that stayed with   Chris~ian   and observed him. Her duties

included washing and feeding Christian; monitoring the breathing equipment and periodically

suctioning mucus out of his tracheostomy. Nurse Bingham has more qualifications and

experience as a registered nurse than Nurse Asah and Nurse Bingham's qualifications and

experience clearly show that she knows the standard of care in an emergency situation such as

that created by Nurse Asah on September 10, 2012.

       Nurse Bingham addressed the proper standard of care for a home health care nurse in her

report. (CR 243)



                                                 14
      1.       Monitor the vital signs of Christian per the Skilled Nursing Flowsheet daily;

     .2.       To annotate the Skilled Nursing Flowsheet daily;

      3.       Monitor the ventilator equipment;

      4.       Monitor the mucus build up in the trach and suction the mucus out periodically;

      5.       Clean around the trach opening;

      6.       Observe Christian for any signs of stress or difficulty breathing;

      7.       Bath Christian as required.

      Nurse Bingham stated in her report that Nurse Asah did breach~d the standard of care.

(CR 243-245)

      "It is my opinion that on September 10, 2012, Nurse Asah breached the Standard of Care
      applicable to Eunice Asah, RN, as follows:

      1.       Nurse Asah, RN breached the nursing Standard of Care when she removed the
               trach from Christian; a procedure that was not her responsibility.

      2.       Nurse Asah, RN breached the nursing Standard of Care when she failed to
               immediately call appropriate emergency medical assistance when the patient
               showed initial signs of distress.

      3.       Nurse Asah, RN breached the nursing Standard of Care when she failed to give
               the 911 dispatcher the correct street address of 311 East Freeman Street.

      4.       Nurse Asah, RN breached the nursing Standard of Care when she failed to
               immediately identify herself as a registered nurse resulting in unnecessary delay.

      5.       Nurse Asah, RN· breached the nursing Standard of Care when she failed to
               properly communicate with the 911 operator.

      6.       Nurse Asah, RN breached the nursing Standard of Care when she failed to remain
               calm and collected in a professional manner.

      7.       Nurse Asah, RN breached the nursing Standard of Care when she failed to have
               the proper training for home health care for tracheostomy patients.


      The expert report of Nurse Bingham clearly shows that she is a person qualified as an


                                                 15
expert witness to opine as to the standard of care against Nurse Asah, a health care provider in a

health care liability lawsuit, because Nurse Bingham:

        (1)     is practicing health care in a field of practice that involves the same type of care or

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

                health care provider is an individual, at the time of testimony is given or was

                practicing that type of health care at the time the claim arose;

        (2)     has knowledge of accepted standards of care for health care providers for the

                diagnosis, care, or treatment of the illness, injury or condition involved in the

                claim; and

        (3)     is qualified on the basis of training or experience to offer an expert opinion

               regarding those accepted standards of health care. (CR 240)

Tex.Civ.Prac. & Rem. Code §74.402(b)

        The expert report of Nurse Bingham clearly provides a "fair summary" of the expert's

opinions as of the date of the report regarding: (1) the applicable standards of care, (2) the
                                                                        I'
                                                                    /
manner in which the care rendered by the physician or health care provider failed to meet the

standards, and (3) the causal relationship between that failure and the injury, harm, or damages

claimed. Tex. Civ. Prac. & Rem. Code§ 74.351(r)(6); see also Ballan v. Gibson, 151 S.W.3d

281, 283 (Tex. App.-Dallas 2004, no pet.).

       The heart of Nurse Asah's objections to Nurse Bingham is that she does not qualify as an

expert under CPRC § 74.402 because the only person that can qualify is an expert is a registered

nurse sitting at the home of a juvenile patient with Jeune syndrome and restrictive lung disease

that has a tracheostomy on September 10, 2012. This is because Nurser Asah allege that the

"field of practice" is a "registered nurse sitting at the home of a juvenile patient with Jeune



                                                  16
syndrome and restrictive lung disease that has a tracheostomy on September 10, 2012" and only

a "registered nurse sitting at the home of a juvenile patient with Jeune syndrome and restrictive

lung disease that has a tracheostomy on September 10, 2012" is the only field ofpractice that

involves the same type of care or treatment as that delivered by Defendant Asah.

       Plaintiffs' position iS that the "field of practice" is that of a registered nurse in Texas for

which Nurse Bingham is more than qualified to opine on.

       Nurse Asah's position is an overly restrictive interpretation of CPRC § 74.402.         The

issue of an overly restrictive interpretation of CPRC § 74.402 was addressed in Group v. Vicenta

, 164 S.W.3rd 724 (Tex.App.-[Houston 14th Dist] 2005). Group involves the issue of a

chiropractic standard of care. Group argued beginning at p. 730,

        " ... under section 74.402(b)(l), to qualify as an expert witness on the issue of whether
       Group departed from accepted standards of care, Dr. Saqer must be "practicing health
       care in a field of practice that involves the same type of care or treatment as that delivered
       by the defendant health care provider, if the defendant health care provider is an
       individual; at thetime the testimony is given or was practicing that type of health care at
       the time the claim arose. "TEX. CIV. PRAC. & REM. CODE ANN.§ 74.402(b)(l).
       Group argues the term "practicing health care" as defined by subsection (a) requires a
       qualified expert in a chiropractic malpractice case to either be a chiropractor, train
       chiropractors at an accredited educational institution, or serve as a consulting health care
       provider to chiropractors and be licensed, certified, or registered as a chiropractor. See
       TEX. CIV. PRAC. & REM.CODE ANN.§ 74.402(a)(l), (2) ("For purposes of [section
       74.402], 'practicing health care' includes: (1) training health care providers in the same
       field as the defendant health care provider at an accredited educational institution; or (2)
       serving as a consulting health care provider and bying licensed, certified, or registered in
       the same field as the defendant health care provider.") (emphasis added). Group contends
       Dr. Saqer does not meet the statutory definition of"practicing health care." In response,
       Vicente argues Dr. Saqer's report demonstrates he has

       Page 731

       adequate knowledge, skill, experience, training, and education regarding his treatment of
       patients with conditions similar to Vicente's to qualify him as an expert under subsect~on
       (b)(l).
       Group's asserted construction of section 74.402, subsections (a)(l)-(2) and (b)(l),
       improperly limits and confines the definition of the term "practicing health care."
       Subsection (a) uses the term "includes" in defining "practicing health care." Although

                                                  17
       Chapter 74 does not define the term "includes," the Code Construction Act defines
       "includes" as a term "of enlargement and not of limitation or exclusive enumeration, and
       use of [includes] does not create a presumption that components not expressed are
       excluded." TEX. GOV'T CODE ANN.§ 311.005(13) (Vernon 2005); see Jackson Law
       Office, P.c. v. Chappell, 37 S.W.3d 15, 25-26 (Tex.App.-Tyler 2000, pet. denied). Thus,
       section 74.402(a)'s two definitions of "practicing health care" are not exclusive.
       In addition, under the literal language of section 74.402(b)(1 ), an expert is only required
       to be "practicing health care in a field ofpractice that involves the same type of care or
       treatment as that delivered by the defendant health care provider." See TEX. CIV. PRAC.
       & REM.CODE ANN.§ 74.402(b)(l) (emphasis added). Subsection (b)(l) does not
       require an expert to be practicing health care in the same field as the defendant health care
       provider, here, the field of chiropractic. Instead, under subsection (b)(1 ), the expert only
       must practice health care in a field of practice involving the same type of care or
       treatment.' [5]

       Reading section 74.402 subsections (a) and (b)(l) together, subsection (a) expands upon
       the definition of "practicing health care" to include qualified teachers and consulting
       health care providers who may not otherwise be qualified under subsection (b)(l) because
       they are not practicing health care and instead teach or consult. Group's proffered
       construction of subsection (a) and (b)( 1) results in a person being qualified as an expert
       only if the person trains health care providers in the same field as the defendant health
       care provider or ifthe person serves as a consulting health care provider and is licensed,
       certified, or registered in the same field as the defendant health care provider. According
       to Group, if a person practices health care in a field of practice that involves the same
       type of care or treatment as that delivered by the defendant health care provider, but the
       person is not certified in the same field of practice as the defendant

       Page 732

       health care provider, is not a teacher, or is not a qualified consultant, the person is
       unqualified.
       Group's asserted construction of section 74.402(a) is unnecessarily restrictive and is
       contrary to the plain and common meaning of the language of the statute. Having
       considered the language of section 74.402 in its entirety, we disagree with Group that the
       two definitions of "practicing health care" under section 74.402(a) are exclusive."

       As in Group, Plaintiff argues that CPRC § 74.402 is not to be interpreted so overly

restrictive as to disqualify Nurse Bingham simply because as Defendant Asah claims, she is not a

"registered nurse sitting at the home of a juvenile patient with Jeune syndrome and restrictive

lung disease that has a tracheostomy on September 10, 2012." Group clearly stands for the

proposition that CPRC § 74.402 is not to be interpreted so overly restrictive as requested by



                                                18
Defendants. Further more, Group, at 731 "(section 74.402(b)(l) does not require expert to be

practicing in same field, only in field of practice involving same kind of care)."

          As concerns the claim by Defendant Asah that Nurse Bingham (and Dr. Marable) relied

on the statement of Cristina Marente that she was the only person that ever changed the trach of

Christian Marente, and that the statement is somehow unreliable and irrelevant and that such

statement under section 74.402(d) relates to the admission of testimony at trial, Plaintiff points to

Packard v. Guerra, 252 S.W. 3d 511 (Tex.App.-Houston [14 Dist.] 2008) where the court stated

at 530,

          " ... the plain language of the Medical Liability Act does nqt limit the two sections to trial.
          To start narrowly, the headings of sections 74.401 and 74.402 are entitled, "Qualifications
          of an Expert Witness in Suit Against a [Physician/Health Care Provider]" ; they do not
          limit the sections to experts testifying at trial. Even more obviously, sections 74.401 (f)
          and 74.402 (f) discuss pre-trial objections to the qualifications of an expert witness,
          making it appear that the sections cover the whole spectrum of expert witnesses in a
          health care liability suit from pre-trial to trial. Another section in the Act also suggests a
          broader interpretation. Subsection 74.351(r)-which contains the definitions for section
          74.351 , entitled "Expert Reports" -defines an expert who is qualified to give an expert
          report (pre-trial) as one who is qualified to testify under sections 74.401 and 74.402 . See
          TEX. CIV. PRAC. & REM. CODE§ 74.351 (r)(5)(A)-(B).[15] It does not limit the
          qualifications to 74.401(a)-(c) and 74.402(a)-(c)-those sections referring specifically to
          physicians and health care providers. It includes all of sections 74.401 and 74.402,
          including the exceptions contained in 74.401(d) and 74.402(d). Thus, an expert report,
          which is filed only 120 days after suit and will before trial, includes the report of an
          expert described in the "good cause" exception of sections 74.401 (d) and 74.402 (d).
          This plain language also does not seem to support a presumption that the good cause
          exceptions contained in sections 74.401 (d) and 74.402 (d) apply only at trial.

                 And in Packard at p. 532 the Court clearly stated,

          "For these reasons, we hold that sections 74.401(d) and 74.402(d) are available for use at
          the expert report· phase of a health care liability claim."

          The exact meaning of Section 74.402(d) is a little more difficult to determine because

Appellants found no cases on point:

          (d) The court shall apply the criteria specified in Subsections (a), (b), and© in
          determining whether an expert is qualified to offer expert testimony on the issue of

                                                    19
       whether the defendant health care provider departed from accepted standards of health
       care but may depart from those criteria if, under the circumstances, the court
       determines that there is good reason to admit the expert's testimony. The court shall
       state on the record the reason for admitting the testimony if the court departs from the
       criteria.

       Defendant Asah continues to assert that the only nurse that qualified to testify as an

expert is one that has committed negligence by removing a trach without authority, authorization

or reason and then failed in an attempt to inset the trach. Clearly, this is not what was intended

by Medical Liability Act.

             NO EXPERT REPORT NECESSARY FOR VICARIOUS LIABILITY

                             AGAINST EPIC HEALTH SERVICES

       In addition to the direct liability claims Appellants asserted against Epic Health Services,

Appellant also alleged that "Epic Health Services is vicariously liable for negligence of its

nurses, technicians, servants and or agents who are its actual agents, apparent agents, ostensible

agents, and agents by estoppel acts and/or omissions." With respect to Appellants' claims

against Epic Health Services for vicarious liability for the conduct of Nurse Asah, Nurse

Bingham and Dr. Marable's report was not required to address them. In fact, no expert report is

needed at all for claims of vicarious liability based upon ostensible agency. Obstetrical &

Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 107 (Tex. App.-Houston [14th Dist.]

2009, pet. denied).

                                             PRAYER

        For the foregoing reasons, Appellants respectfully requests this honorable court to reverse

the judgment and remand this case to the district court for trial on the merits.

Respectfully submitted,

/S/ Douglas T. Floyd
COUNSEL FOR PLAINTIFFS/APPELLANTS

                                                 20
Douglas T. Floyd
3336 Therondunn Dr.
Plano, Texas 75023
214-704-7081
469-519-9488 FAX
T.B.N. 07181700
lawyerfloyd@aol.com


                                CERTIFICATE OF SERVICE

        I certify that a copy of this Brief for Appellant has been served upon the opposing counsel
either by hand delivery, U.S. mail, or facsimile.

IS/ Douglas T. Floyd
DOUGLAS T. FLOYD

                             CERTIFICATE OF COMPLIANCE

        This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because
it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for
footnotes.

IS/ Douglas T. Floyd
DOUGLAS T. FLOYD




                                                21
                                      APPENDIX

1.   Order on Defendants Eunice Asah's and Epic Health Services, Inc.'s Objections to
     Plaintiffs Amended Chapter 74 Expert Reports and Motions to Dismiss

2.   Expert Report of Patti Bingham, RN

3.   Curriculum vitae of Patti Bingham, RN

4.   Expert Report of Dr. Charles Marable, M.D.

5.   Curriculum vitae of Dr. Charles Marable, M.D.
                               i

6.   Civ. Prac. & Rem. Code Subchapter H Procedural Provisions Sec. 74.351, Sec. 74.402
     and Sec. 403




                                             22
                            \_




           '

1. Order on Defendants Eunice Asah's and
   Epic Health Services, Inc.:~ Objections to
   Plaintiff 's Amende d Chapter 74 Expert
   Reports and Motions to Dismiss
1




                               CAUSE NO. 86812              FILED FOR RECORD

    CRISTINA MARENTE                    §        IN THE   4o7iii ~BtcflJ3= 55
    INDIVIDUALLY AND AS                 §                      MELAHIE i\EED
    REPRESENTATIVE OF THE               §                     DISTRICT CLEHK
                                        §                    ELLIS COUNTY. TX
    ESTATE OF CHRISTIAN
    MARENTE, DECEASED                   §
                                        §
    vs.                                 §         DISTRICT COURT OF
                                        §
    EUNICE ASAR AND EPIC                §
    HEALTH SERVICES, INC.               §        ELLIS COUNTY, TEXAS

     ORDER ON DEFENDANTS EUNICE ASAH'S AND EPIC HEALTH
      SERVICES, INC.'S OBJECTIONS TO PLAINTIFF'S AMENDED
      CHAPTER 74 EXPERT REPORTS AND MOTIONS TO DISMISS

          CAME ON to be heard(l) Defendant Eunice Asah's Objections to

    Plaintiff's Amended Chapter 74 Expert Reports and Motion to Dismiss and

    (2) Defendant Epic Health Services, Inc. 's Objections to Plaintiff's

    Amended Chapter 74 Expert Reports and Motion to Dismiss. After

    rev1ewmg and considering the Motions, Plaintiff's Response, and the

    pleading~   on file with the Court, the arguments of counsel at the two

    properly-noticed hearings on the Motions, and the subsequent additional

    briefing by the parties as requested by the Court, the Court rules that

    Defendants' Objections are SUSTAINED and rules that Defendants'

    Motions to Dismiss are GRANTED.




    ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS             Page 1
                                       379
.


          IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED

    that (1) Defendant Eunice Asah's Objections to Plaintiffs Amended Chapter

    74 Expert Reports are SUSTAINED and Defendant Eunice Asah's Motion

    to Dismiss is GRANTED and (2) Defendant Epic Health Services, Inc. 's

    Objections to Plaintiffs Amended Chapter 74 Expert Reports are

    SUSTAINED and Defendant Epic Health Services, Inc.'s Motion to

    Dismiss is GRANTED.         Plaintiffs claims against all Defendants are,

    therefore, dismissed with prejudice. The Court orders that Plaintiff take

    nothing against Defendants, who are hereby discharged.

          IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

    TUAT the Defendant Eunice Asah recover her reasonable and necessary

    attorneys' fees and court costs as required under Section 74.351(b) of the

    Texas Civil Practice & Remedies Code as follows:

                The amount of $        ~   7     1
                                                     )   ~ D. v 0   from Plaintiff Cristina

          Marente, Individually and as Representative of the Estate
                                                                \,
                                                                    of Christian

          Marente, Deceased, for recovery of reasonable and necessary

          attorneys' fees and court costs for work performed in this case.

                The Court further orders that Defendant Eunice Asah recover

          her reasonable and necessary attorneys' fees and court costs in the

          amount of $        L )~:.,""' o. ;J0           from Plaintiff Cristina Marente,


    ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS                             Page 2
                                           380
..


         Individually and as Representative of the Estate of Christian Marente,

         Deceased, in the event of an ultimately unsuccessful appeals to the

         Court of Appeals.

               Additionally, the Court further orders that Defendant Eunice

         Asah recover her reasonable and necessary attorneys' fees and court

         costs in the amount of $      { \.J   c 0 ..: 0. ~it> from Plaintiff Cristina

         Marente, Individually and as Representative of the ,Estate of Christian
                                                                           I




         Marente, Deceased, if Plaintiff Cristina Marente, Individually and as

         Representative of the Estate of Christian Marente, Deceased, files a

         petition for review and review is not granted by the Supreme Court of

         Texas or if Defendant Eunice Asah seeks review in the Supreme

         Court of Texas that is ultimately successful.

               Additionally, the Court further orders that Defendant Eunice

         Asah recover her reasonable and necessary attorneys' fees and court

         costs in the amount of $       l   1 c $""0   0
                                                           ·   0   0   from Plaintiff Cristina

         Marente, Individually and as Representative of the Estate of Christian

         Marente, Deceased, if briefing on the merits is requested in the

         Supreme Court of Texas but review is ultimately denied (i.e. a petition

         for review is denied) or this Court's ruling is ultimately affirmed by

         the Supreme Court of Texas.


     ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS                               Page 3
                                            381
..


                 The Court further orders that Defendant Eunice Asah recover

           her reasonable and necessary attorneys' fees and court costs in the
                                                0 0
           amount of $      ]   r   (CJ c) ..           from Plaintiff Cristina Marente,

           Individually and as Representative of the Estate of Christian Marente,

           Deceased, in the event that a petition for review is granted by the

           Supreme Court of Texas and oral argument occurs in the case but

           review 1s ultimately denied or this Court's ruling is ultimately

           affirmed.

                  The Court further orders that Defendant Eunice Asah recover

           her reasonable and necessary attorneys' fees and court costs in the

           amount of $-~
                       - - - - - - in the event that Plaintiff Cristina
           Marente, Individually and as Representative of the Estate of Christian

           Marente, Deceased, seek rehearing in the Supreme Court of Texas but

           that motion is ultimately denied.

           IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

     THAT the Defendant Epic Health Services, Inc. recover its reasonable and

     necessary attorneys' fees and court costs as required under Section 74.3 51 (b)

     of the Texas Civil Practice & Remedies Code as follows:

                  The amount of $               ( 0 1 ~ 0 0 . 0° from Plaintiff Cristina
                                                                                           I
           Marente, Individually and as Representative of the Estate of Christian


     ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS                         Page 4
                                                  382
    Marente, Deceased, for recovery of reasonable and necessary

    attorneys' fees and court costs for work performed in this case.
                           \


          The Court further orders· that Defendant Epic Health Services,

    Inc. recover its reasonable and necessary attorneys' fees and court

    costs in the amount of$      ~I 3 1?    .) 1    from Plaintiff Cristina

    Marente, Individually and as Representative of the Estate of Christian

    Marente, Deceased, in the event of an ultimately unsuccessful appeals

    to the Court of Appeals.

          Additionally, the Court further orders that Defendant Epic

    Health Services, Inc. recover its reasonable and necessary attorneys'

    fees and court costs in the amount of $        3, ~ ~ 3 ~ 3         from

    Plaintiff Cristina Marente, Individually and as Representative of the

    Estate of Christian Marente, Deceased, if Plaintiff Cristina Marente,

    Individually and as Representative of the Estate of Christian Marente,

    Deceased, files a petition for review and review is not granted by the

    Supreme Court of Texas or if Defendant Epic Health Services, Inc.

    seeks review in the Supreme Court of Texas that is ultimately

    successful.

          Additionally, the Court further orders that Defendant Epic

    Health Services, Inc. recover its reasonable and necessary attorneys'


ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS                   Page 5
                                   383
    fees and court costs in the amount of $           C) ~ 1 ·>. '$ 3   from

    Plaintiff Cristina Marente, Individually and as Representative of the

    Estate of Christian Marente, Deceased, if briefing on the merits is

    requested in the Supreme Court of Texas but review is ultimately

    denied (i.e. a petition for review is denied) or this Court's ruling is

    ultimately affirmed by the Supreme Court of Texas.

          The Court further orders that Defendant Epic Health Services,

    Inc. recover its reasonable and necessary attorneys' fees and court

    costs in the amount of $     d 1 S oO ·   0   J    from Plaintiff Cristina

    Marente, Individually and as Representative of the Estate of Christian

    Marente, Deceased, in the event that a petition for review is granted

    by the Supreme Court of Texas and oral argument occurs in the case

    but review is ultimately denied or this Court's ruling is ultimately

    affirmed.

          The Court further orders that Defendant Epic Health Services,

    Inc. recover its reasonable and necessary attorneys' fees and court

                                         0 -
    costs in the amount of$- - - - - - - in the event that Plaintiff

    Cristina Marente, Individually and as Representative of the Estate of

    Christian Marente, Deceased,'f6eeks rehearing in the Supreme Court of

    Texas but that motion is ultimately denied.


ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS                    Page 6
                                   384
.


          These rulings complete the Court's resolution of Defendants Eunice

    Asah's and Epic Health Services, lnc.'s Objections to Plaintiffs' Amended

    Chapter 74 Expert Reports and Motions to Dismiss so that this Order (1)

    constitutes a final judgment regarding Pfaintiff s claims against Defendants

    Eunice Asah and Epic Health Services, Inc., (2) resolves all claims against

    all parties, and therefore (3) constitutes a final appealable order.

          SIGNED on this the_ day of             JUN 2 3 2015     , 2015.



                                                    BOB CARROLL
                                                    JUDGE PRESIDING




    ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS                    Page 7
                                           385
2. Expert Report of Patti Bingham,/ RN
                                           Plttt 81nah1m, RN·
                                            106 calle Ricardo
                                         Victoria, Texas 77904
                                          Cell: (361) 652·3558
                                          Fax: (361) 575·8312
                                        Q1ttlcnnurse@yahog.com


      PROF.ESSlONAL EXPERIENCE

,,    4/4/11 -      The Courtyards, {Rehlbl~ltatlon & Nurslns Hom.el 3401 e. Airline,
                  · Victoria, Tx 77901
                                                                                               in1
      Present       Weekend RN supervisor- Supervlsor/Cllnlcal responslblllties include oversee
                    all nursing care throughout the facHttv, monitoring vital slgns,·passlng
                    medications; chan1e dresslnp, trach care, conduct ranp of motion exercises,
                    check the status of wounds, administer enemas and start Intravenous OVl
                    medications and fluids.

      2/25/11 •      Blackb~rn  Group, Inc., 6709 Glenklrk Road, Baltimore, MD. 21239
      Present           {Medicare Set Aside (MSA:) and Claim Settlement SOiutions Company]
                        Asslstlns with MSA/Future medical cost projections (lncludlng Workers
                        Compensation)
                                                          11
      1/2/2011-      JICkson Devis Htalthcar•, 3570 E. 1li Ave, Denver, Colorado 80206
      Present           Medicare Audli: Defense and Medicare Appeals - Nurse Auditor


.,'
      01/2008     C\tlzens Medlc1I Clnter, 2501 Medical Drive, Victoria, Texas 77901 .
.;
      -12/28/2010 Chllra1/Staff Nurse of Day Sur1•rv
·.'
        ·           • Respanslbllltles include clinlcal and sup1rvtsory: starting IV's, mana1lng
                         Folev catheters, assassin, post-operative patients, manaalna and
                        implementlna patient care~ stafftna requirements; partfclpatlr.ig In Quality
                         Assurance program: auditing ~edlcal records and fallowlna up with
                         patient care sattsfaetlon surveys.

                   Triumph Hospltal Vlctorl1, 506 E. San Antoalo St, Victoria, Texas {PRN & Full
      S/25/06-     Times Status)
      02/21/08         • Charse Nurse/Cllnlcal Staff Nurse .. responslbllltles tncluded plannln1t
                         managing, and assessing care, administration of medications and
                         treatments~ maintain recard of codes and care. wound care, and assisted
                             with wound VACs.                                   ·
                       • Charri:e nurse/ Cllnlcal Staff Nurse .. Medical Observation unit (comparable

       Updated: 08/15/2013
       P. Bingham                                    1



                                                   248
08/2 6/ 13 08: ISAM PDT Oo ugl .. Floy d ->
                                            Pete r Ande rson                               e                2149 0512 13 Pgll /26




                                                                                                         patient's
                                       to Step Oown Unltl-dutles lnduded sttrtlng IVs, monitoring
                                       resplratorv ventilation -tracheotomy's, fntubatlons, pulse oilme
                                                                                                        try,
                                       respond to al1 codes, Ht nasapstrlc and monitor dobhoff faadlng tubes,
                                       foley and swan ganz catheters, central and arterial lines, temporary
                                        pacemakers.



                   2003-200       Hotplc:e of South Ttxis.. 605 Locust Ave., Victoria, Texas 77901
                   8              Admissions Coordinator I cue M1napr/ CHnlcal Nurse
                                                                                                          homes,
                                    • Responsible for coordlnatin11 admissions between hospitals, nurslna
                                                                                                      le  medk:al
        ..                            private homes, and respite care fac"1ties along with durab
        '•                            equipment companies and pharmacies, coordinated care, and
                                                                                                    assessed and
                                                                                                             ·
                                      interpreted needs and requirements
                                                                     of                    doctor's orders, startlnl
                                     • Responsible for cllnlcal care patients - Obtaln lng
                                                                                                              paJn and
                                      and maintaining. IV's catheters, Hypodermodysls, Fol•y catheters,
                                      nausea control, m1nagin1 pain pump~ obtaining blood/urine           for cultures,
        •'                            trach care, etc.
                                                                                                               t.n1
                                     •Casi M1na11m1nt respol'lllbi11t1u: Make lnlt\a\ assessments re1ard
                                                                           sh collab orative relatlonshlps wlth
                                      patienttr11tment plans and estabU
                                                                                                                  and
                                      physicians, clients, patients, and providers, coordinated pat1ent's care,
                                                                                                             sions
                                       assessed and Interpreted needs and requirements, coordinated admis
                                                                                                           Nursln1
                                       with dlscha'le planners from.hcspltals and transferring patients to
                                       Home's and famlly homes assuring the necessary medications and
                                       equipment were available.


                  ' 07/27/1998-     Citlztfts MedlCll Center, 2501 Medlc:al Drive, Victoria, Te~s
                    12/23/2003      Operating Room Staff Nurse
                                                                                                             lng,
                                    • Functioned as a clrculatfng nurse In all sursical disciplines lndud
                                                                                               pnmar   lly cardia c
                                       general, vascular, orthopedic, 09-GVN, urolosv, and
                                       patients.
                                                                                                      of suraical
                                    • Responslble for pre·operatl\.le ancl Intra-operative phases
                                                                                  al and  specl&  lty-equ  lpme"t and
                                       experience, requiring knowled1• of 1ener
                                       Instrumentation, comprehensive record keepin     g  and  review   .
                                    • Aided consdous sedation of patients under1otn1 heart cathet
                                                                                                           erliatlons,
                                       an1l~pfastles1 liver biopsies, and perlpheral vascu
                                                                                            lature runoff studies.

                                    Emer1ency Room
                                                                                                    s a 15 bed
                                     • Charse nurse - respanslbllitles Included mana&'na and stafftn
                                       emer1ency room department      .
                                                                                                         ts
                                     • Ensure the provision of qualtty emeraency medical care to patien
                                                                                                 ian orders ,
                                       requiring emersency treatment ln accordance with physic
                       Updated: 08/15/201!
             •:
                       P. Bingham                                     2


                                                                   249
u~·n~ti/ J.~ Uts: .LOAM    l-'U'l"   uougL a.··· r .LOY<I      -;>   l"'Bl:Br Anaers on      e

                                        hospital pollcy, and standard nursing practice.
                                     • Trla1e and performed patient ass8'sment and nursing diagnosis.
               1993·1998             • Manage the plannln1 and lmplementatlon of interventions.
                                     Matqord• G•n••I Hospital, 1115 Ave G, Bay Clty. Texas 77414
                                     Opentln1 Roam Staff Nurse
                                     • Functioned as a clrcul1tln1 nurse In atl suralcal disciplines includlna,
                                        1eneral, vascular, orthopedic, 08-GYN, and ENT
                                      • Responsible for pre-operative and rntra-operative phases af surgical
                                        experience, requiring knowled11 of 1ener1I and specialty
                                      Matqorda Home Health Asency ·
          ,.                          • Duties lnduded assessments of systems, wounds, fntravenous sites,
                                        medications - subcutaneou5ly or intramuscular Injections, any ordered
                                        treatments - tracheostomy care; breathing treatments, blood draws,
                                        Intravenous flushes, dressln1 chan1es, or wound care the doctor has:
                                           ordered, and teaching as Indicated.
                                      Trauma Coordinator I ER Staff Nur11
                                      • Provided oversight for atl clfnlcal policies and pl'OCf.ldures In a«ardance
                                         wtth local and state accrediting body standards; Adhered to state Trauma
                                          guidelines and hospitals and State Trauma pollc1es1 procedures, and
                                          reportlns requirement
                                      • Made Initial assessments reprdlns patient treatment plans and
                                          established eollaboratlve relatlonshlps with physicians, families, patients,
                                         .and providers, ensured that patients received the proper levels of care

                                       •   Ensure the provision of quality emercencv medlcal care tc patients
                                           requir1n1 emer1ency treatment In accordance with physician orders,
                                           hospital polic:y, and standard nurslns practice.
                                       • Tria1e and performed patient assessment and nursln1 diagnosis.

                EDUCATION
                   • Associate In Applied SClence Nurslns, Wharton County Jr. College, Wharton, Texas ...
                        September 22, 1993 ·
                   • ASsoclate tn. Applied Sd•nce R•s\$.tered Dental Hy1l.ne, Bee County Jr. Colleaa~ Beavllle,
                     Texas ·June 30, 1980

                 PROFESSIONAL CERTIFICATIONS
                    • Certified Adult, Chlld, & Infant CPR-American He.rt Association 2010 Guldellnes •
                          Current
                    •     N HT.l.L.E. Traln6ns on LOng Term care Standards for Medicaid -Texas State University,
                          San Marcos; 6/20/2005


                 Upd1tecl: 08/15/2013
                 P. 8ln1ham



                                                                       250
        •   ~1tlonal 8oard for Certlflcatton of Hospice and P1Hl1tlve Nurses (CHPN)- Inactive

        ·• Certification Nurse Operattnc Room (CNOR) ·-1nactlV•
         • Pediatric: Advanced Life Support
         • Advanced Cardiac life Support
        •   Tnuma Nurs\ng Core Course

     ,PROFESSIONAL ASSOCIATIONS
        • Natlonal Alliance of Certified Legal Nurse Consultants
         • American Association of Legal Nurse Ccltisultants




j.




      Updated: 08/15/2013
      P. Bingham
                                                     ,.
                                                    251
3. Curric ulum vitae of Patti Bingha m, RN
                                                                                                                    21490512 13 Pg 2/26




                                                           Patti Bingham, RN
                                                              106 Calle Rieardo.
               '•                                          Victoria. Texu 77904
                                                            Cell: (361) 652-3558
                                                          pattimna@.v.ahoo.CQlD
                     August 20, 2013

                     Douglas T. Floyd
                     Attorney tt Law
                     6521 Preston Road. Suite JOO
                     Plano, Texas 75024

                     RE:    Mr. Christian Maren.te

          ··         Dear Mr. Floyd:

                    Please accept this report u my expert report under Tex. Civ. Prac. & Rem. Code § 74.351. This
                    repon replaces the report of January 8, 20 l3 and .Yune 22. 20 J3.

                    JmCOBDS RJMIWF,Jl
      ..            In aniv4ng at the opinion set out below in this letter, I have teViewed. the following itoma:

                    1.     Medical records 1iom Air Evac Lifctcam. .. 2 pages titled "'Preliminary Patient Care
     ;_.

     ~:                    Record" [Email: Medical_Records_ J·25]
                    2.     Children's Medical Center medical reQOJds
  "                 3.     ETMC-EMS; Run Number: 110658; Date of Service; 0911012012• pages 1~4 of 4
 ;•
                    4.     Outpatient Note from Ou? Children's Rou.te at Baylor 07/J 9/2012,
                    s.     Kidney T~lant Visit No.ta, 06120/2012, ·1-4 paaa,
                    6.     Prosrcss Note: Jose J. Salguero, MD Office Notes: 1112312011, 09/14/20116 091812011,
 '
 ;~
                           08/ll/20Jl,
                    ?.     Telephone Encountm.                                                                 .
                    8,     Skilled Nursing Plowsheeis dated: 0810~012, 0810712012, 08/1312012, 08/2012012.
 :r                        08127/2012, 091312010
 I'
·J
 ;                  9.     Skilled Nur,sing Flowaheet dated 09/10/2012 siped by Eunice Asab, R..N.
                    JO.    Report of Cristina Marcntc.

                    BACKGROUND
                    My name is Patti Biqham. I am a Registered Nurse in the State of Texas. My Texas Nursing
                    Certification Number is 593336. I have been a regiatcnd nune in Texas since September 22,
                    1993.




                    MAR.BNTB 08/20/13                            PAGEl


                                                                       239
 ...   .
~8/26~13 08:15~              PDT   Doug1~.          Floyd -> Peter Anderson                ~                214905121 3 Pg 3/26

       ·'



       ;r
                   QUALMCATIONS
       "
                   t am presently a iegistered nurse in Texas and have been so registered for over 20 years. I have
                   continued to use my nursin& skills within those 20 years. I have worked in both the emqency
                   room and operating room at various hospi11ls in Texas.· I have been certified in Pediatric
                   Advanced Life Support and Advanced Cardiac Life Sul>pnrt. I ID1 qualified to care for pediatric,
                   adolescent, and adult patients in all nuraina settings.

                   I presently work at Tho Courtyard.Rehabilitation It. Healthcare Center, 3401 E. Airlillet Victoria.
                   Texas. 77901, u a Registered Nurse supervisor. This S6--bed faciliiy currently.bas 49 HSidents.
                   The Center provides medical xnanagemcnt and 24-hour skilled nursina cart, including .
                   intravenous (IV] therapy with antibiotics. TPN administration. and diabetic therapy. The Center
                   has physical medicine and rehabilitation and oft'er wound care. Rehabilitative services include
       ..·.·       Speech, Physical. and Oceupational Therapy. My supervisoly responsibilities include ensuring
                   there is adequate nUl'Sing st.aff durina the weekends and wessiag the health needs of each
                   resident l supervise ~-4 Lioemed yoeational Nurses [LVN] and 3-4 Certified Nurse Aides
                   [CNA] during the weekends. I ovmee the care these nuraes give our patients and inform the
                   physiciana and families as pationt carelconditiom wurant. In addition ta my .supervisory duties,
                   I work with the Other nurses pcri'orming pationt·care. I monitor patients for sigos of stress or
                   difficulty b:reathing and peiform complete. total useasmentt on patients. While I currently do
                   not have tracheostomy patient.a at the facility, Jhave treated patients with tracheostomy at the
                   nursiq home many dales in the past. I am penonally familiar with the nursing standard of care
       .,          to be delivered t.o patienu With tracheotomies •
        ~.     .
                   I have personal knowledge of the ~standards 0£ care for a registered nurse in Texas in
                   the same type of care or troatment that Nurae Asah delivered to Cbrlstian Maren.ta on September
       ,,          10, 2012.                                                                   .

                   1.    . On September 1o. 2012 and at alt tclevant times to the presen~ I have practiced in the
                           ~calth care field of a. reafstered nc.ne that involved the same type of~ or watment
       .,                  that Nurse Asah delivered to Christian Marente on that date. That type of care or
                           treatment is more specifically identmed 1>$low:

                   2.      I have knowledge of the accepted standards of care for a rea;istered nurse of the care or
                           treatment for the condition involved in tho claim against Nurse Asah and Epic Health
       ,,
                           Services, Inc. My knowledge is of the eccOJ*d standards of care i.s more specifically
                           indcntified below; and

                   l.     ·I am qualified based on my 20 years of trainina and. experience to offer an expert opinion
                           regarding those aceepted standards of care as shown in my curtiwluni vitae attached
                           hereto.

                   BRIEF HISTORX AND SUMMA&Y OF CARE

                    Christian Manmte was a nventecnwyear-old male with a history ofJeune syndrome and
                    re.ttrictive luns discue. Jeune syndrome (asphyxi~ thoracic dystrophy, ATO) u uare
                    autosomal recessive skeletal dyaplasia [dyspluia is an abnonnality within the cells of tissue that

                    MARENTE 08120113                             PA.0£2

                                                                   240
                                                                                                  ll~HOblilJ   Pg 4/26




          affects growth, development and fu.nctionJ characterized by a small, narrow chest and variable
          limb shortnou. The.re i1 a considerable neonaul mortality es a result of l'CSJ)iratory dist:esa.
          Renal, hepatic, pancreatic, and ocular complications may occur later in life. Christian had
        . respiratoey complications that had left him with a tracheostoDly and mechanical-ventilator
          dependent. He had asthma and chronic kidney disease and had received a kidney transplant in
          1uly2001.
          On January S, 2011. Christian underwent a trachcostomy at Children's Medical Center Dallas.

          On July 19, 2012, Christian had• medical cMck-up with Dr. Joseph Roaen a.t Our Children's
          House in Dallas. Texas. Per 'Dr. Rosen's notes, Chrlatian was eating and drinking by xnoudl md
          was on continual oxygen at 2 liters per minute. He had not had any Emergency Room visits
          1inco 4/10/2012. Per his mother and Or. Rosen's notes. Christian was ''wi1hout coughina or
          wheezing." His tracheoatomy cuff was deflated during the da.y and bsd 3 liters durina th~ night.

          BegUming in February 2012, Nurse Asah. provided general nuxsina services for Christian,
          usually from 7:00 a.ni. until 7:00 p.m. Monday through Friday. Per the Flow Sheets Between
 ·,       August 6, 2012 and September 3, :20.12. the general nursina services provided by Nurse Asah
:1
 •'
    i     were:
I



          Monitor the vital signs of Christian;
          To annotate the Skilled Nuraing Flowsheet daily;
          Monitor the ventilator equipment:
          Check the mucus build up in the 1l't.Ch and suction 1h~ mucwr out periodic:ally;
          Clean around the buh openina;;
          Observe Christian for any signs of stress or difficulty breathing:
"'~       Bath Christian u required.

          In lhc Skilled Nursing Flowsheets: named above, at no time did Nurse Asah change Christian's
          trachcostomy.
         It has been reported that OD September IO, 2012, at approximat.ely S:OO p.m., Nurse Asah WU
         bat.bin& Christian in his home. There i! conflicting information as to exaetly what occurred next~
         1.      Per the 911 call, Nurse Anh was alone and while putting Christian ''back to bed" tho.
                 "tracheasrom.y'' came out.
         2. ·    Per the Skilled Nursing Plowsheet Nurse Asah reported, "After l pulled out the dirty
                 traoh. 1was unsucceuful inscrti~ the clan 6.0 Bivona flex euff trach.  A second attempt
                 with the 5.0 Bi-vom. flex cuff'trach available was unsuccessfbl. 0

         3.      Per the response to an interrogatories propounded to Nurse Asah, her verified response
                 was as follows:

                 INTERROOATOR.Y NO. 8: Describe in detail cVCJYtbing that you did with CHRISTJAN
                 MARENTB in the one hour bofore bis ~tube came out on September 10, 2012.


         MARENTB 08/20113                              PAGE3


                                                          241
 J.             '(

08/2Btl3 08:15AM PDT                    Dougl~.          Floyd -> Peter Anderson                  ~                 2149051213 Pg 5120




                ' ~·


                              ANSWER: Subject to and without waiving said objection" on September 1o. 2012,
                              Nunc A.ah prepercd to aive Chri&tian Marente a bath. She first laid out All of her
                              supplies btforo aettina started. Thal included the bath supplies. Chriatian1s ohange of
                              clothes. a:nd all of' the supplios for the ttacheostc>my c&anae. including a cJean 6.0 trach. 1.
                              back-up (smaller) S.O traeb, and an ambu bag .. Christian's tracheostomy change occurred
                              eveey Monday. Nurse A.sah made all of tbae prepatt.Uons before bathing ChMian on
                              September 1O, 2012. ·Upon co~pletina hia bath and dreasill& Christian on September 10t
            ·;
                              2012. Nurse Asah began to change hi• trach. The tracb is held in place with soft ties that
                              tie around his neck. She undid the ties and cleaned Christian'11 neck. In accordu.ce with
                              her standard procedtre, whi~h she had perfonned many times before, Nurse Asah then
                              removed the existing t:nwh end concurrently attempted to place the clean 6.0 trach into
                              Christlan's ttachcostomy sit.c, but it woWd not 10 in. She immediately grabbed the
                              smaller, S.O trach and tried to place it into Christian1s tracbcostomy site. but it too would
                              not go lo. At that point, she immediately called 911 on bet cell phone and proceeded to
                              initiat.e CPR. until emergency medical services arrived. In addition, please see the
                              deposition of Nurse Asah when/if taken for fbrthet informa.tion conccmin& the c~
                              provided that day, as well as the relevant medical records related to this matter.

                       As documented in the EMS Patient Care Rep0n1 Nurse A.sah 1'made multiple attempts to place
                       the ~hea tube back into p1ace but has been unmMx:essful." Chrlatian received Bag·Valve-Mask
                       {BVM] ventilation and becamo ptt1solcu. Nurse Asah began.chest compressions. EMS was
                       called. and upon amval cond.nued Cardio-pulinonary resuscitation, obtained a blood pre.uurc and
                       then transported Christian to Children's Medical Centor, Dallas, Texas for ongoing care.
                       Christian had been pulselaas approximately 10-lS minutes but tho exact time i.s uricloar from the
           .,          medical rec;ords.
           ·'
                       Aa reported by Cristina Marente, the mother of Cbristian M~te, Nurse Asah had never
                       chansed the tl'l.Ch of Christian attd the changing of the trach was never the responsibility of
                       Nurse Asah. The changing of the ttach was solely tht responsibility of Cristina. Cristina had
                       received spr.cial treinina in Pebnwy 2012 et Baylor Hospital Dallas on the procedure for .
                       clumgins the trach. In fact. the medical records show that the trach was changed evCI)' Monday
                       on the shift following the end of the shift ofN\U'le Anh. The procedure of changing the trach
                       started in February<2012 and continued through September 3. 2012 when the trach was changed
       ,.              every Monday by Cri~ sho~y before Chrisaan went to bed. The Skilled Nursing FJowsheet
      ~;               ofNl,lrSe Asah shows that the lut time the trach was cbqed wu September 3, 2012. The            .
                       Skilled.Nursina Flowsheet for Monday, September l, 2012 .shows that the trach of Chriatian was
                       changed on the shift of Nurse Modupe Olojo .that began at 7~00 p.m. on that date and on all
                       proceediq Mondays during the relevant time period.

                       BASIS QF EXPERT ANALYSIS

                       On Sept.ember l O. 2012. at approximately 5: lS p.m. Nurse Asah wu in the home of seventeen
      .,
      "
                       year-old Cbrlstian Marent.e providing general n\nina: care or treatment as set forth above when
                       the 1rach was removed by Nurse Asah. Removing or chlnaina of the ttach was not the
                       responsibilify of Nurse Asah. Nurse Asah was unable to re·insert the trach or a second smaller
                       1:a.ch. She then began bag-valve masking [BVM} Christian through his trawa in which she bad
                       told the 911 dispatcher the trach was "halfwa.y in."

                       MAR.BNTB 08/20/ll                             PAGE"4
                                                                         242
                                        r .Lu:y u. - ,   k"tn:.ts1·   l\na"rtjon




     Nurse Aaah spoke with the 9\ 1 dispatcher f'or a total of 6·minutcs. During this time, she did not
     identify herself as a Registered Nurse. The 91 l dispateher wasted valuable time cxplainiq to
     Nurse Aaah how to complete the Cardio·pulmonuy reau1Cit.ation {CPR] procedures.
     Per EMS records, page 114, BMS received the can at 17:23 and arrived at the home 17:28. Upon
     mival, Christian did not have a pulse. and· CPR. was conlin.ued. BMS documented "Pt's traehea
     openin& is blocked by the pt•s neck." They noted insordn& a 0 6.0mm ET tube through his
     trachea." They then transfmed Cbristian to the ai?port where air·team emergency flight. Air ·
     Evac 74, met them and trmfe:red Chriltian to Children's Medical Center in Dallasi Texas.


     'DIE STANQARD OF CARE APPLICABLE TOmm&E MAH ON 09[101121
     The Standard of Care fot a reaistered nurse is the level at which the average, prudent provider in
     a given oommunity would practice. It is how similarly 4uallfied. practitioners would have
     managed ~e patl.ent1s care under the same or 1imillr circumstan.ccs. In my opinion. the
     appropriate standard of care that Nurae Aaah. should have provided Christian Marentc was
     depeiident on the duties and reapon.sibilitics of Nurse Anh in caring for Christian. Those duties
,•   and responslbilitlea were to properly:

     1.      Moniio~ the   vital signs of Christian per the Skilled Nursing Flowsheet daily;

     2.     To annotate the Skilled Nuraing Plowsheet daily;

     3.      Monitor the ventilator equipment;

     4.      Monitor the mucus build up in the trach and suction the m'llCus out periodically;

     s.     Clean around the trach openinc•
                                                                           I

:1   6.     Observe Christian for any signs of stress or difficulty breathing;

     7.     Bath Christian as required.

     It ia my opinion. that the medical condition of the patient is not the determinative ofthe· standard
     of care if the duties and responsibilities of the mianocl nurse do not requite any specialized
     ttaining based on the patient& actual medical condition. In this .case. the fact that Christian bad a
     history of'Jeune syndrome and restrictive lung diHase did not require Nurse Asah to have any
     specialized training to perform her assianed nuraina dutiel as IOt forth above. Additionally, the
     location of the nursina services provided by Nurse Aaah did not require any specialized' tndnina
     to perfonn her u!ianed nursing duties. The stao.dard of care would be the same whether or not
     in a hospital, nursing home, 01' private home.

     BRIACHE8 OF THE STANDARD OJ CARJ 1JY NJJBSE ASAJli.

     It is my opinion that on September 10, 2012. NW'SC A.uh breached the Standard of Cate
     applicabale to Eunice Asah. RN. as follows:

     MARENTE 08120113                                PAGES

                                                            243
                        t
vdf' ... u1                             .a. .... ru....a r-1-1 ,&,
                   .&.-It.#   "''-" •
                                                                                                                                  214905 1213 pg 7/26




                                   l.           Nuue Asab. RN breached the nursing SWldlrd of Care when she remo'Yed tho tracb. from
                                                Christian: a pttJCoclute tb&t wu not her rupomibiHty.

                                   2.           Nurse Aaah, RN breached 'tho nurama Standard of Cm when ahc faJled to immediately
                                              . call approprfm emergency medical assistance when the patient showed initial signs of
                                                distress.

                               3.               Nurse Anh, RN breached the n.uraiq Stlndard of Cm when she failed to sive the 911
                                                dispatcher the coJnCt street address of 311 Eat Ftuman Street. ·
                               4.               Nurse Auh, RN breached the nuning Standard of Cm when 1he failed to immediately
                                                identify herself as a registered nurse resuJtina in ~ssary delay.
                  :i!
                               5.              Nurse Asah. RN breached the nmsina Stmdard ofCire when-~ failed to properly
                                               communicate with the 911 operator.
                  '
                               6.              Nurse Asab. RN breached the nursios StandMd of Ciro whcn the failed to remain calm
                                               and collected in a professional manner.

                               7.              Nurse Asah. RN breached the nurslns SUndard of C1re when she failed t.o have the
                                               proper training for home health care for tracheostomy patients.
                              to achieve positive outcomes in patients with trach tubes, every nurse needs tO keep abreast of
                              the beat practices, develop. end maintain the ncccsmy skills. A n\D'9e who perform
                                                                                                                      s trach care
                              needs to be familiar with their tacility•s policy and proced\11'0. Per the Six-Step Decision·
                              Making Model for Determining Nursing Scope of Practice in Texas. "A nurse always has
                                                                                                                             a duty
                              to bis/her clienu/paiients to assure that the)' are .tafe. One of the most important actions a nurse
                              can take toward iha1 aoaJ ia makina sure that he.I.the only acctJpts those asstanmems for which
                            · the nurse has the education. trainina. and skill competency. Physical and emotional ability ClJl
                              al$0 impact a nurse's ability.to maintain client safety when accepting an assianment."

                              It is my opinion. with a reasonable degree of nursing certainly that the cmi rendered to Christian
                              Marente by Epie Hom.e Servieo. Ine.. and Nurse A.aah did not meet the applicable nursing
                              Standard of Care. It i5 my opinion Nurse Asah should have:

            l
             '
             ;1               I.             Not have attempted to change the tmch of Christian; a procedure that
                                             responsibility.
                                                                                                                    was not her
                              2.            lmmedialy called Emergency personnel for additional help When she could not re-insert
                                            thelrtCh~

        .,...
        I
                              3.            Immediately identify~ as aR.e&istered Nurse qualilcatlons to the appropriate
                                            authorities to avoid unncccssmy delay in additiozzal assistance.
                                             I
        •f·
                              4.            Maintain a composed. professidmll conduct while under an cmergeney'situa.tion.
        ·.,
                              s.            Follow the American Heart Asaocialion•a auidelinos :for Catdio·pulmonmy resuscitation.
        ..
        ;.
                              MAllBNTE 08120/13                                  PAOE6

                                                                                       244
-----------~----------··                                                     ··-·   ·-·

  ,\             -'·
 08/26/ 1_3 08: 15AM PDT Dougl.. Floyd -> Peter Anderson                                          e                2149051213 Pg B/26




                        6.      Instituted appropriate nuning interventions that requited stabilization in a patient's
                                condition.

                        1.      Been properly trained in. the care of a tnchcostomy patient and in how to properly aet in
                                an ema-gency situation.

                        1lIB SIANQ6RD OF CARE APPUCA8L£ TO BPJC ffW,TH SERVICES. INC.
                          It is my opiniC?n t.bat baaed on my experience u a registered DUJ'BI and supervising nurse w.ith
                       · duties to determine the treatmen.t atandards to be used by nurses under my responsibility that the ·
                          applicable .standard of care for Epic Health Services, Inc.• are the treatment standards to be
                          applied are to ensure that lll patients recaive appropriate care re1udless of the setting and to
                        · only assign nurses to patients that meet those standaxds. Those $t.andards of care inclgdc;

                         l.     To ensure that nurses are properly trained to provide basic nursing services;
            •'
                        2.      To ensure that nurses are properly mformed to bow the limitations of their assigned
                                duties and responsibilities to lssianed patients;

                        3.      To properly instTUCt assigned nurses not to undertake nursing/medical proceduros that are
            'I                  not the nurses usigned duties and responsibilitiea;
                        4.      To ·ensure that assigned nurses bav~ the appropriate communication skills. particu!arly in
                                an emergenc.y situation; and

                         s.     To ensuze that assigned .nurses have the proper training and experience to remain calm
                                and collected in an emergency situation.

                        BREACttES bF THE STANDARD OF CARE.BY SPIC HIW,m SEaVIq~s.. INC.

                                It is my opinion that on September 10. 2012 that Epic Health Services, Inc•• breaclied the
                        applicable standards of care for a medical provider of nursing services by assignment of Nurse
                        Asah to provide nursing services t.o Christian Muente as follows: £pie Health Services, lnc.,
                        failed:
       I
       I.
       fj
                        1.      To ensure tha~ Nurse Asah was properly trained to provide basic nursing lel'Vicea;

                        2.      To ensure that Nurse Asah wu propaly infonned to know the limitations of her wiped
                                duties and responsibiiities to Christian Mamitc;

                        3.      Ta properly insttuct Nurse Asah not to undmak.e nursitiWmedical procedures tba1 are not
       f                        her assigned duties ancl responsibilities;
       !-
       ;1
       r
                        4,'     To enaure that Nurse Asah bad the appropriate communication skills, particularly in an
                                emeraency situation; and
                        s.      To ensure 1hat Nurse Asah hacl_the proper training and experience to remain     calm and
                        MA.R.BNTE 08120/13                            PAGB7
                                                                        I




                                                                            245
 ...       ..
oa12a11s 08:15AM PDT Dougl~. Floyd ->Peter Anderson                                     ~        2149051213 Pg 9/26




                       co~ manetllWPICY~

                My opmiona are balled on. the imnt8%ion I blw ~ elm :llr ml 1~ the ~ tc
                c'ba9, aq>pbo=11: er atmDd that opiioa. jf b:tiiet iltlrmadon bccorra avambl8.

                ~.

                ~~~..... ~~


       ·:·




       ,.




       '
           '




                                                                246
4. Expe rt Repo.rt of Dr. Charl es Mara ble,
   M.D.
oa~2B~l~       08:15AM PDT     Dougl~.           Floyd -> Peter Anderson                ~              2149051213 Pgl4/26




                                          CHARLES D. MARABLE, MJ>.
                                 Dfp1oat of1be Amirrican Boud ofNeurology and Peycliauy
                                                 800 811l Ave., Sutr.e 118  .
                                                Port Wolt.b. Texas 76104
                 817·334·0338 OFFICE                                                   817-334-0586 FAX


       ..        August 20, 2013


                 D01J&laaT.Fk>yd
                 M/JmtJy At L&w
                  6521 Preston Road, Suite 100
                  Plano, Texas 1S024

                 RB:·    CAUSE# 86812; CHRIStIAN MAREN'IE v EUNICB ASAHAND BPIC HBALnt
       ·..
                         SERVICES, INC.

                  Please accept this as ~amended lbm.i expert report m1be above case.

                  RECORDS REVIEWED: In anMna at the opilion tel out 1atet in dis report, l haw revfllwed
                 .tbc :i)llowq items:
       I'

       .,         Medal records tom Air Bvac Lifi:team
       ,,',.
                  Cbiliren's Medbal Cemer iecotds
                  Eut Tom Mecli?al Cmr. ~ !MS
                  Texas Dcparamil ofSu Heallh Servicea Vtal S1atiatioa Death Certifb\te
                  0\ilplde.m mt.es ftomOur Children'a House
                  Props notes tom Dr. Jose J. S"'*°• M.D.
                  Skilled NursiogFloMbDot dated 09/10'2012 sWled by~ .Nab. R.N.
                  Mattms related to me re,IJJdi'la ~ otCrilml. Marezte conoeminf tbe treatolt of
                  CbrDn Matellle                                              ·.        ·

                  BMXGR.OUND: My name fa Chara boup. MmblD. M.D. I am a Board Certified
                  Neurologitt, Al'Jdm.vplaooofaq>loyard1800 8111 AW., S• 118, FortWonh, Texu
                  76104.

                  QUALMCA.110NS: l amacthiely pn.cti:iJa media now. aa welle.s 1bc tizz 11» ~
                  arose man area ~to the claim, I am Board Certified in Neurab§. I hA\'e substantial
                  trainiDg and Clq)crtisc in 1be ates.~ r.o tit clam· I have the knoftdge of accepted
                  standards ofmcdical. care fJr'lllc diapsB, cm.= an:l ~of the iljuy1 ilJncu or oondmn
                  involved b til ilcidem, w~is dlat ofaioxic enceptalo~, u su&rcd by dr. patient I am
                  1ini6ar wth amxic encepbabpa~ and Jaw 1rllfat patfalla di 1bil il1Deas throughout my
                  resilence. u woll as in~J1rlvate alb arid bospblpnctb. I ha.Ye seen lieraly 11.mdreds of

                  CDMIMARBNTB • 08120/J 3                     PAGBl




                                                                253
                       .
..,....,\ .... """ ..... ~    ww, .1.vl'W.-~   r1.1.a.




                                 patimlta who lave~ bypoU:: as well as IJJOxio ~-

                                 It is usual!¥ the rieuroJogy wko tbat il oom$d h •8odee           of•*cnccpb&Jopa~. ml
                                 ll8na1iy 1btl muroloav   aemce no asked  m prilm brail death oxanilla1iml on patimts.

                                  Neurolcp~ as     wen as pulr.rmary medU:lc ml~ an UIUlllythe ones wh> have
                                  0se ab&y m. ti= ICU to·bmJJe vemramr aenmas.

                                  I uo have txtemive experdl~ in dealiu,gwith pldktdo u wolu adult neurological caw. In
                                  :&c1. tom 1986 to 2000, 1di! bothp~ au! adl* couub, ad tom lOOO to the prewit
                                  tine, 1atilt see :YOUOI chJ'lcha3. but they are UMJly over !lie 13 .er 14.

                                  I currently and ..nee 1986 n,aularly rck ~ mumloglcal pttienta flr boa hla1lh cae. As a
                                . resuk isl' these remnu, I wrlSe tbe O%derl k b>me beakh cue iUb:1m i>.r m:nes            am    1bcn
                                  lblbw up wl.lh tte patid to insure iblt ttiey roceived.1he pRSC!W          care mt co!Jliwc to receive
                      .•
                        •'        tbat Clft if it is on gaq. This ii a. YKY COftlllOll eiuatioo.il. 'oW otUcc•

                                . Am' allholl&li I am mt 1 ResiUeted Nurse, became ofsw cxpcri:noc sp 1986 in ~iailg
                      "           pa.demi fbr bom= lalh C&R m1 WOl1dog wllh mraea that pl'Oviie mm= health care tlrqr
                                  patilmrs, Iam qua.lifted to ucertam wbmi a. mae sboukl haw adequate Cl'•••tb• to nat
                       ,,         cerfail ilmaes ii, & bob be4l1h Can> D'iommm. I am qvall&ed to It.ate the st&ndaid ofcare
                                  i>r a mrae treaqClmian Mueme aul opine on 'die breadlof'lba SllsxWd ofc:are. My
                                  experie:nte and biq nworldag wthbcallh care instbti>m aW>h as Pf)ic Health Serv.lc'ee,
                                  Inc., q~ me to render• op.iD)n u to tbc eumdard ofcare f>r such fnstflntiom and opQI on
                                  the bteach ofthe s1andan:l ofcare.

                                   MEDICAL LEGAL STANDARD: Uni. atltedotberfte, allnt' opiaima in 1h:ia report arc
                                   based upon tbe medl:al legal nmdard ofreasonable mcdi':a1 probabily.
                       '
                       '1'
                                   FAcrs OF CASJ!'IOPINIONS: Christian .MaraD wu a t 7-year·old ~ DOB S/12195, with .
                                   a histo!y ofJ~ 1)'%1dromc1 ad JCStrictivc iq diua.te. Jeum dfaeaae is e. b«edtuy
                                   1Jwoplasia. ofthe thorax. or also known u esphyxiatilg thoncic ohondrodyatrophy. nm
                                                  s
                                   S)'lldrome· a rare~ dJsorda' that atJbcUI am W&y a chikl's carti\ge and bones develop, t
                                   bah;a)Jy a.6efs tM chM'I mc&F, pc~ mm ml 1tgiL Due to 1M mcaae being nartaW, tbil
                                   keeps tile child's kmas iomdevcJopiJg Mly or expandillgwbm d3e chili mius. Thay caulao
                                   devcbp probbm wih 1hli'kidnlys. 'Ihil is taken limn dll ldicla, '~euoe Syndtom=" u Seat&
                                   Chlldms HosphliD. Waabiwlnn.
                                    On 8/l 1 /11 ChristiallMABENTB waa eem lbt the tnta by Dr. Salp=ro, who. ooccd his
                                    ntJUrOlo~ examwaa t!Orrml, bo wes     waaa
                                                                          \WI. He wu very peum: and smart.


                                    On 9114/11, be is seen by Dr. Salguero, who noted hem be aim with& nonmlneurobgic exam.


                                    CDMIMAREN1B. 081'20/13                            PAOE.l
                       ...,




                                                                                        254
                           t


0~126~1·3                      08:15A M PDT Doug l• . FlOY .d.::l, ,Peter                    ,~~"'~!!;~on     e                 21490 51213 Pg16 /26




                                 On 11123111 be wu seen ap by Dr. St.lgueJo. amt WU noted r.o be tily U:rt.
                                                                                                            Bia ncuroloF
                                 exam. showed be bad a mmal gait.·ne aeCk was q,ple. He bad a neptiYe Brudz.i
                                 M9111ive Kemia's, m narin pl qp. m .&>cal qp, ml wu mnmL The phyai:i
                                                                                                              nslds.
                                                                                                            ads
                                 auessment at tlm time was untpecicd astmna. COPD. ral Mn a.nd kimeytnnspla
                                                                                                                  nt
                                 status.
                                 On 7119/12 mW8B seen by Dr. 1oscphRosenat 01.1' ~. Houac inDall
                                                                                                                u, r-..
                                 On 9/10112 Fpic HasJth S~ serttbeir empb)":C, Una Allah. JN, to eate i>r Chrlafa
                                 Please nots Epic Hea!h Serviles provided mm& bel1lh caro to ChrisCian on a DJl.tirm
                                                                                                                           n.
                                 hi$ house. and 1he nurses w'omcl in 12 botr lhilJ:s tom 7:00 >J4. t.o 7M
                                                                                                                      basis m
                      ,.         7:00AM.
                                                                                                          PM, alld ?:00 :PM to

                                 Plea&e mte. mJarlllll)' 2012, tho pmimt had received a nc.Moa~ a.ad wu auache
                                 wntilamtbbc. 'Im only tJm ~ wu mt on a ~1Drwas whm.ho wu being
                                                                                                                    d t.o a.
                                                                                                             bathed. E~
                                 with die trar.bcosto"" he was able to td. and odwwie bld a Je110nably active
                                 fim'lily &11d fiimlda.                                                       lit \VidJ. bi

                                 It baa beenrepcdd that on Septe.amer 1O, 2012, tt appro~ 5:00 p.m., Nurse
                                 barmngChristian in hB boa. 'Ibem is~ ~u to exactly wb&t oCO'lBf-Asah was
                                                                                                           tld aoxt.
                                 1.     Per the 911 ca.D, N\Kle Aaah WU lbM ml whill'I putting Chrirtian "back ro
                                                                                                                  bed'* the
                                        "lmch&astot!V" 08B our.
                               · 2.     Per die SkBled NurqFlowabeetNUl'&e Aaahreported, "After I pulled out the
                 .,                                                                                              dity ·
                                        uacb, I was umucc esdllfn B.qtbe clean6.0 BM>na Bexeutrtrach. A second
                                        with the s.o Biwm flex cu:fttach a'4i11.bk wu unsuccelati.,               abtq)t

             ..
             l
                                3.      Per the respollSt to c iltmoptorlet propounded to Nurae A.lab. lm verified respo:m
                                                                                                                          o.
             '                          was as mlbws:
             •'

             ..
             ,.                         INTERROGATORY NO. 8: ~in detail~tbltyoudid wthCHRIS
                                        M.AB.EN'I'B in the om boi.r befbre hill trach ~came out on Sepmmber 1O. 2012. ~
                 I                                                                                                    .
                                        ANSWER: St:bject ID Uld wJthout waMig sail objecti:ms, on Septmi>!r 1o.201
         j·
                                        Numc Al&h prepared to give ChrinfauMaiemc a batb. She &It laid out ell ofber 2,
         '
         I'
                                        supplies bemre setm,, 1taned. That iocb:lecl 1bc bath SlflpJlee. cmstian's clvq\e
         ~

                                        cfotbcs. and an of1he suppics f>r the flachocmon\V olwlge, iioblila a clean 6.o
                                                                                                                          of
                                                                                                                         tracb, e.
                                        back-up (smaller) 5.0 tre.ch. and anambu lq · Christin's tracbeolt.omy ahmw:
                                                                                                                         occutl'O
                                       cvay Moma.y. Nurse Asahmade all oftbcao pmpamfims bei>re bathing Cbriltiauon d
                                       Sc.pt.ember 10, 2012. Upon corq>.lt:daglil batlumd dressiuJChrisdan on Septet
                                                                                                                          m«
    •f
                                       2012, Ntne A.uh bcpn to ch19 Iii trach. 'Ihe tracMa held in place with sot tiq 10.
      r,.                              mam\lld his :aeck. She undii the tfit end cl=aned Clli111'an'• n=k. In accordarlco wlhthat
     .'                                her aTatWJard procechn, whCb. *bad perbtmed. maqtt iaa bdlre, Nurse Asab.
                                                                                                                           Ihm
                                       rem>wd the exilt:q tracb ed co~~ to place the cban. 6.0 tnchim
                                                                                                                             o

                               CDMIMARENT.E- 08120/13                         PAGB3

     j




                                                                                     255
        ChriaDan'.s ~·· bli it woukl not ao it. She mmdiataly pbbed rhe
        ~rt     s.o
               lr&Ch     am
                         tried to pJacc it illo ctrid:im11r8Cheo~ Ue. but it t.oo woWd
               m.
        not~ At that pair, she iamdiate\v ca&d 911 onhcr        ccn
                                                              phom and proceeded to
        mma12 CPR uatil cmqe.ncymedioal acmces miYld. Jn addtion, please see tile
        dcpolliion ofNur8C Asah wbeMt'takeni>r fmber ~n coiamilatM cm
        proviicd thtt day, II weU.u the U\l&lt Olldb1 ~related to tis ma.tt=.

The PMT team i>uod he had a cardiac amsr, inmd ll)'lt.olc at 1730 IDd absent respi'a1ozy
drive..He wu noted to have cym>Uc akin. Hit capimy ze:611 wu dele.)«I. His pupil size wu
pupil dilatatb11. Lewi ofCOlllCbueaeaa waa mespo~ wlb oout of sirmcumr strez>gtll. At
 1754 hil blood preume wes 94162, pulse was 142, rea]>ilatoty rare 13, source was suppl=mmral.
The ArEvac Lbem WU tbmcaDed at 1749 and mi\led at 1809, and WU wifh .. patimlt at
1811. Hfi was J»ted t.o be~ lcwl ofcomQbUIDIU. Loa ofcomciousnea wu Q)ft.d
to be '')!es." HB GJeaaow Coma Scale wu 3.

Ho wu lbcn.1ra:n8portcd ta Cbildretts Medal CC!i« i1 DaJlu, Te>caa. '!'be ~klgy
comuttadon note on Clnit;ian &OOwcd that the B'MS w11 c&M mi "'on their mMJ, u was
 still pulaeJcu. so clat ~ wem coaliiued. He was pen. a doae ofepilep.brine ft was
estinated the epilode ofpukeleaaaa m.d ~ 10· 14 **8, butb exact tine
was~. He waa bqp in route tom tbe Afr Bwc.: Jn the Hmetpey DeparlJ:mnt be was
,liven 3 Jitera of»ma11 ab d\Jo to pmfiadon, b\t dts mt require uypesaure support. He wu
aobi to have Dl)Ocb~ jezks alld wu liven Ativan 4 qX2, Ditmin 1 gram, .Keppia· l gmm.
hydmcottisone and then an lddAaJ. bolua of 10 qks ofp~in. hef>re m>veme:ds
decreaaect.
At dlat tim, a stat CT oftbo hea.di waa dOJJ.e on 9/J0/12• .mwq, ml:l vobnc Joss iivoMlla
pme.riy the totllll Jobes, but no evklence ofmc.ranial ~. DJ1a otmet of
p~edema.

He was 1101ed to ~e ob\unded upon arr.Ml to the ~-R.oom. but the mother stated he
would walk and oat by mouth, illlnct wth the fqniy at llolrJO, wbth wu hil bascb prior to
09/10/2012 bciie:nt

He wu admifmd 10 PICU end NC\l'OJogy was comuked. BBG on 9/11/12.sJ»w.d b\ll1t
111ppmsbn pattcm, but no sdnn actM:y. and tbai>re a1li:onwl8am were smpped. The
jerking was J!OWid to be poar ~ •ebml am mt isea adiv.ly.
He wu uo soen bynephn>Jo&Yand Pim Cablroi Lasilcand ~

MRI oftbe head on 9/1211.l tbowed. ~ &ylmetriCa1 ~m:l suptmntorial
~ edema of'tbe cortex,       and lq)JIQlriorilldeep gray lYJIDrn' ~. Tbeae fblinsa
rqireacut 1cqueae ofproi>und ak>bal ilchc!S ~ l:wut.

He was IOCXI. bycardblogy~ of~. and bid 111 &1rialatop~ tac~.


CDMIM.ARENTB • 08110/13                     PAGB4




                                                   256
08,~26/13     08: 15AH PDT Dougl • . Floyd                 -> Peter Anderson             e                 2149051213 PglS/26




                Pum>D8ry medbino l&W him mi .i; W11 mJt)!e had epaodea of egitl1ion wil:h eyp~
                ~ b:reased respiratmyrate, concemfngfi)r autommic sumrq.·ae wu gi\Cl.
                Vemecl, P~ml Valim

                nm ilaly, the pmmyteam. hid e. bll8 dilcuaabn.wilh tbe motm about DNR.
                It was ao1cd on admBO>u dmtbe patient Wu mapomive to Wrbalortactilc stitmli, but had
                teaA:tM pupDs and twitch like m.>wmmrs OJl. exam The reasonmr admission was acute
                reapka1ory distmss, tracbeoslOmy COl?f)~ alllred mmralstatua, iDd overload, lOOney
                lraJ!Splant COJq:>b1bns, amb kkmey ilg\xy1 card8c d)'Slhydmia, ~ imnabiily and
                co.,.o:iYe d~n.
                AtBmdil& Dr. Maabias~ M.D.1 ade the eommnt 9/12112 bt they were very conceml!d about ·
                bis neurobgica.1 piopsalon. NN'Obgyalso nomd iJ. tmt mta dmt. patient acquired smpor
                mr 10.15 mm, not wel-d~ at.Id had aqueationab» sll>rt ~ tm»cbnil:
                seian it the Emer~ Roombepammt that indbnrid 110mc tmxic bran i\jury mi WU
                baded wlh phosphoJatcd D.ilaatin. l.nd JCcppm. He notad die er ofthe bead and BEG. It was
                a1so nob!Jd that 1he propsil had been verified aim 24 !¥>1.111 tom1bt eventi so to keep ~ BOO
                on i>r now. and ireaumtt ofthe lqYOCkmic jerks coukl be tread with 'bemo~
                ph!eytoin or Vap~. tl¥>ugb th9 uaetbbess ii qucstiDnablc sjwD. llle very poor. pl'Optia.

                ~hBboapialitayhe WU intea~ ti>m ml treated 1Wh C~and
                Cdriax.Oae. He bad occasioml epiaodes of111e}ffnea. ~and h)pcnemim, probably
                dua to neurobp l10ming.                                     ·

                On 91'l3/12, support was wtiidra.wn due to the ktbo W qp;cant brail dama.se. Hia admit
                mt 1inal diapses wem respimtozy tin 8.lld b)po~ w.6plalop._ itwas no1Bd caw of
                deaJhu ~i'atory urest secondny to wilbdrawllofcare, and 1cYC1e brain~xic
                ~

                In a~ case, there IN f>ur ebmlr.l 1bat med to be fillfillrid. 1b:re iJ ci=. bia.eh of
                st.Uda!d ofcare. eeuntk>n ml darmges.                                     ·

                What is !he spec.i& conduct ca1lld imo qu:sdon? It is !be conduct ofmne ASah. RN. who 1Bll
                below the atandud ofcm whtm. she Ailed to haw th:: prop• o:aibfna llld edu.cationiw hcalrh
                Cate i'>r ttacbef)stomy p~, U well II her '&Jure., piOpczly cue i>r1be 1raebe()st.omy, &a
       .·J:     well as to imned.iatetf can g11 t0 Ilk 1hr msdi:al uUtaac~. m:I Ailure to do CPR.· It is the
                &ilure of tms mne 1hat was the aokl and ccbbgic cause ibr the severe amxi: cnc:cphak>palhy.
                Amxie eacepbabpadiy is defad a~ CC>Dl'lcJt lick ofoxysm t.o lb& braii. whtlh in p:mzal
                cauaes an ermphabpathic p~ aiauiiltcd by abnd mlmta1 &t&lUI that is acconpmied by
                p~ ~1. BuaJJy, ano~ 0ncep:balopa1i\y1m1111 bn.iD damaae duo to *k ofoxygen.
                mthia case. it bad iialmanlhta.tiom, endmg in COIDI and deatb ofChrinian M~.

                CDMIM.AREN1'B ~ 08120/13                      PAGES




                                                                   257
                            uuug.L1:1. ·1·.   rJ.oya -> 1"eter Anderso n                                    21490512 13 Pgl9/26




      '!
            Wldl "'1ard to tbe 1candanl of care for Nano Alah die follo,.. ltandardl are applicable:

            1.      Ifa displaced tracheost.omylllbe ia smpeoted, 1hc mandazd ofcare requi:es bi1at.eral
                    auscultation ofbreatb JOunda,, obserYatkm ofclwt rile mt fill, and me ofan exhaled
                    C02. dettictor mIS8e88 i>r plscermnt.
  •:
            2.      The s1alldud ofcarexeqmee th&tobstn.icmdtrtd1eo1tOm,v1Wcl • suspeded with
                    deoreescd bre&d11ounds bflatemlly, or decrwed me rile and U

            3.      The 111alldard ofcare reqt1bs that sah be igeoted ilto tba ~tube to 1lm
                    secreliom, then a PlOJ*ly aial=d wction ctthm:r be paaaed into die tube m1 suotion is
                    applied to clear aecremna fiomtba uachooltOJlt'tube•.

            4.     The sumdald ofcaremrmnmarequirei tbat.if'tbeobS11uodonis still.preaert, ;youlhall
                   ICpe&t this pro«.durc one  mm  after a=~ wndatiott beLWeen atterq)ts.
            S.     Ifthere is no iq>rove:rmzt in ~distrela, the uacblostonwtube will be dwJeed
                    mmediater.
            6.     The sumdard of<lll':I roquil::l lbt.t if& ~ tmc doa mt pu1 easily, the delq>t
                   sh8ll be xmde im.nedatelywith asmaller eimd wbe to re-eablah an.&fnw.y.

            7.     AfJm 11.c tube Ja placed, 1sses1i!gpllcema ofthe IUbo wih at but two codmatoiy
                   mcasUl81 such aa lstemig to bnl&1b sounds. ~n ofequal me and All ofcheat.
                   and me ofC02 detector ahaD be dOCtBDBDl!d by the RN.          ·
           8.      The rtamard of~ mr sewn airway pbnuc1ion in cbildrenrequna tbatpnotiliomrs
                   call early 6r adva11Ced help.
,,!
           9.      A reasonable and prudent !lUl8e fs requi'ed to rcalic die patiant's dal asaeasmmt
                   ~aid        initia.1C m~respome imwi••ly.



           11.     To lm>w ncbeostonf1' cans~ a lJom,, ca padmt.
           12.     To k:cow bow t.o properly poan. rcmow and replece a tmc.bco.stoniy tube.

           13.     To know to call 911 iradiate\y, identifY i..elfappioprialely aD1 giYe the correct
                  .address ofthe Ae&y.                             ·
           Detcribe dJe muner Jn which the cant falled to meet the standarU.

           Fafhlrea ofNUl'le .Asab: As an RN workilgunda'a cam o(Bpi) Hedh Scrvi:ea. she        was••
           to care b' and treat Cbristius.Mareme. Her dudu iDcbled proper care and tteatmont of tb:



                                                         PA056




                                                               258
 •.              .•
08126~13 08:15AM PDT Dousl~. Floyd                                   -> Peter. Anderson              ~                   2149051213 Pg20126




                       trachcostomy tube.

                       1.•     She AW TC b&ve dlt proper tralrq tbr boa baldl care flr ~tomy patleri&
                                     *'
                               wbm underto4:1k to replace the fl8C.b. a. ,PfOCOdure that was not her rospOlldUlily.

                       2.      She &ikd to propeeyzeimert rm e&tbmr in lint to, pnivem thl severe amxi: dam&9!1.

                       3.      She plllicked when ahe eoukl not ieimat die fnCh.      '
                                            I
                       4.      She &.i1ad to immdiuel,y call 911 whm the c:risit oCClmd.
           1.:


           ..          '·     It waa also mted in tbe 911 dispatch caB of6 ~. Ile mne did not~ herself
                              as 1 ResLmnd Nume, thadlrc vakable time wu bu wilh the .rc!ftl•mn ~ aiviic
                              her Iha basi: priocip'.IM ofCPlt

                      ApiJ, aldloughl am not a mne. but ama ~doctor, I ba\IC had extcn8iw traiiiagwtih
                      zuses duringmyresidewyas weUupostRSibJcc·~il;boepials. Iha...eP,.miltfle
                      IDcms to mnU1g staft'throVibout~ tim ha as anattendilap~ and I bave deal
                      with.hon health cm.: IUICf i1 ~ pNtu weh1 prueridyfn.-.,.cunm day practice. I have
                      bad uses fn. my oillce, a.nd. ID)' doctor expccta a. mse 1o be cmq:1e1ent cmuab to 1ii161 eertam
       ,.             dums as iod~fecl by heroducUion and lraDog.
                      For exan:pb. a mno Zi d:lfi Cazditc Cani tbJit wouH be ~ec:ted to undenrm! atrdilc pamm.
                      to bo abki to uademabd 1he. tmdbcio1111 ndlodo'3gyand1reMm:ntof'cardiao patimlla.

       ·:              AJ. a boa btelthwe nmse, Nurse A.uh. should have had 1m uailig apenilc ml
                       knowkdae, bece.use she was adwrtised as s\Eh, to care 1br.1raah=ostonil:;!J and '1'eat any l)pe of
                      .~ t1m tlllgtit arlse i1 tbl home, especq.. ii the caro ofCbisdan Mmmtc, em at
                       Jeaat be pmpared to 1reat any mwpx:ytbat ahoull ariso ii & home bedh ewe patient

                      Al these abo\'C :f8ilurca ofNtne Allh wu d:lc sok CllJllJion oftm anoxic enoephalopatby,
                      which Jed to ibt: bospita&rati)D, coma and delth ofClriatian Marenll.

                      1bfs is suballlnlilted sufli?imly in tfJc mcdblrccorda. Upon aniwl by the EMS services. the
                      pa1ieat wu fbund to be ~ic (pulsctba), and n:aphtoiy·depiasec:t Jn other words. not
      i'
      !.
                      breatbiD& He wu quadq)tepl or had jaccid paral:,U. i.e., mt movie any extrmity. Hia
                      Glaagpw Coma Sca.16 was 3 out of IS. In uaio& the &CU, OrJe ia p.en S poXirs in' eye openq, 5
                      points i>r wd>al response. am s          m
                                                          pom motor respome. Ho apt 1 point each j)r baW. no
                      eye opening m vetbal rcspomo and no mtor mp~ a CDlal score of3. Atq score bcbw 9.
                      eooordEig to the lit.cram, B&YCty ICVQ'C SCOfC, aJ1d the k>wcrtbc ICOIC ~ ildiJatea Iese
      ,,              elmlce of1ecavery. Accordi1ato the CJJC, buecl on motor re1pome. Wlbal per1btmlrlce and
                      • openil'Ja to appropriata& stimlli ofthe GJuaow Coma Scale weie dMi&Jled alMi sboml be
                      used to assea1 the dep1h m:l dumtbn ofcoa and iq»li:ed comciousmss. Thfs ~helps to
                      gauac 1he iq>act ofa wide wri=l;y ofoondmna such u ICute !>mil dam.ge, ml in dlis cue,


                      CDMJMARENTB- 08120/13                           PA.GB7




                                                                            259
          due to 1evcrc anoxia ~ by this patiltt

          It is ear.illet.ed the patiu had lack of0¥)9m fbr at llut 10.14 mimlta. ltJs known tbat the
          bnil rcqum a constam :flow ofOX)lml ro 1lmcdon nomaaJb'. A h).po7dc anoD::. ijmy ooctn
          when that fDw ii disrupted, eueJiiaDy Slm'Vi!g the bni1 ~ pmmina it iompdrming'Vltal
          biochcuDl pmcesses. Ho~. amxt meam a totallaCk ofoxypi. In ganera1. Iha mlre
          cor:q>lr:te me deprivmbn. tbe m.n severe the harm.to the brain. am 1!K! ...- rm
          conseq~. Diriilb.ed OX)Wln s11pplycancause seri>ue ~aiments in cogotiw llldls, u
          well a& p~ psychological ml other fllctia. Mott ttmbook Bild sources state that abol.i: 5
          mimies is the tm we start seeilg dyiD& ottho ce11s.(Ilchmnia)
     .,

      '   Accon:lmg r.o Cfa.yOoodmm, M.D., Associm Probaor ofNeuropatbobo at Baybr Co•• of
          M~. bB 1997 NeumpaJholQ&'f Notes. pap 18 and 19, UJk about global~ wbioh
     .,   leads to widesprnd 'tissue iqjury, rcmgm. cotXtit.bna ~ t.o iricbeS onccpba.bpathy,
          whbb t.bia patimt suf!rcd, The n:me IMl'!' ijmyny kwl to d«mdia and spasttly, Jfthe
          fsahimic period is prottacted, the pade:m may not repi1 conscbumw, aid may exbibl
          decorticate poa1U.iog and setuca. ml mAY rean il.e. veaetatiw atw blefinilely. Cenain cell
          populations lbat are selecttve\yvutnerable IO ilcben1c. i1gury illcb:f.e large llC\ll'OllS ofilolm of
          the secto?$ of the bi>pocmpua, Pudcqe taDa ofthe cabelbnud m:urom oflayera 3 and 5 of
          tbc ·cabral cortex. ·

          Not Ollly did Clntian Ma.mu's brain Ulldeiao OJ.)FndcprMti>n, the man was also deprived
          ofadequate &bod lbw.
          It is also mted the pati:mt bad been inmd to be puHleu     am
                                                                   wk'bout reapilrory drive. It was
          filrlber aseert&fmd he bad a poor Oluaow Coma Scale of3. Uponhil miYal at the Chld='s
          Medbl cemr in Odas, he atill bad a vorypoorprognosac mmion ofbeiJa caatl'>se with
          pupi'ls dilated. and basicaDy tfacen with~ aeiro.bp:al iesponsc, except ilr pupillaey reaction.
          This was 1la:rher substanlitted bytbe bum ~BBG ml the MRI~. which! will
!.
'
          eli !brdw on.

          Pmgnpg Fp!!owipg Gardlomplmtmpry Rau9cjtaliDa by Pl'lllk Thomke am Sasha L
          Wcilamam;, fiom1b= DTSCHARZI'BBI.. 2007; 104(42):2869--SS, states tbatpati=m who have
          undergone canli>pulmoimy resuscitaVonbavo a poorpropaill. Fewer than 5% aurviw
          ~susoi:laiionon a~ ilnnl &mas, wbile in ciiea q, to 113 auniivc. They c.ithcr·<& aoon
          ahtwards or cs aunivc wirh sevme irreveni)Je brahdanqe, cewina~
          ~mcioUllJCIS,




                                                         PAGB8




                                                               260
  ~                   ~                                .
08/28113 08:15.AM PDT                       Dougl~.           Floyd -> Peter Anderson                  ~                    214905121 3 Pg22126




                            uwonscbumoas was approximat.ely 10 miu.os. !lectroptiysmbav ~ such bmt
                            sq>presaant EF.G and MRI &bt>wed. chancta:iilb conat da:alap.

                            The MRI ropoit of9/12/12 Showed ext=ai\e ~iohllDIOrial and supratcmorill
                            cyrotic edetm oftba cortex and 11.1prmtorlaldap lf.IY matter &tructlnl. 1indiisa rq>resentiqJ
                            scq\JCU ofproinmd global h)po~ ilsW;

                             The prognosis ofpatimm ii coma wlh ~ 11\'r'Ocblm wib.24 &oura of
                            cardi>pulm;mm:y reausciratkm lhow tbat o\t of202 rtmied, 191 decl. Lack oftmtor ~spome to
                          · amxb stimJli ofthe lice IDd lirbs it comilered fiO mate a poor prosaosit ifthe tbiilg wu
                             made 3 dAys dcr resi»cbtm On :6DTher s1Uliee.1bcydid mi br>w Of111J pt.timt who ~
                             geaenJizd or eariypoa1 amxb f¥clo• cooi>iled 'Wilh an EEG widt bmtauppression who
                            'WCJlt on to have a Awrable cmne. Specibll,y, abtnt ~n ilBBG pwm are the
                            abscnoe bfcerebral e'.bltri::al a.ctMly in tm frat 2·3 day& .-~n, and arc defioil=
                            lripl ofiq>cndiig death or a perailmri ~ lflte, u iidi>at.ed il this ixlt..;duaL

              ·\
                           In "JomiaJ.o(ClilipalNempAhyjobgy.11 March:14(2): 153 9165410, dd>n 7, CJidcal
                           Acco~ ofthB Burst Sq>preaabn.EP.O Paunby Rwles,
              .."·'                                                                        Wesunmeland and Clams
                           fiommo Mayo Ca atated tbe btnt Slfpms&ion cm 1be REG i>JbwiDa; m>Xic imuk is usually
              ,.           associlted with a poor p:ropsis. M)CCbnicjm may~ the e9otronio bmts. Thi
                           Thomke aDd Weianann artble UC> stm that the clinical eleclro~iobSi:alor biochemical
                           ~ unanimouslypoitt towani a poor proplfl,One can no~ US1Jl'm thai die p&'tilmt
                           wl repinhis or her pmmtbil 6mctiomt Rli or 81l'Yi.Y& wkh only wlh mid niuolo&ical
                           ilq>aimn lbertfbre, bram .daJrJl.&B bu occmed ofauch seYlrily that oolbins btUW than a
                           permmmt vegnmw nate or persistem muro1oglcal detlcJt dpenmnen t dependence on
                           mning care can be expcctcd.
           ,,
           l'              On 9110/12. we inmate no• that the CT acan oftbl. head did mt ab>w any i6rcts. bemlnt:qes
                           or mliY olbci' CIUIC daat could .hive led to tm co1111. mk, die CT oftbe lad did not show aey
                           c~ However, wibil2 d&ya the MRI amwed die~~ tbeiom wouli not&
                           der celldeetb bas sta.rtec1 occuain& wlh the C)'fOtaxic edema ofthe intatent.Orial mi
                           supmt.entodal areas. Aile> it wu recoszm= by the radiobsit that thole rcprcscrtod ~ of
                           prolbund sJobal eypoxic/iscbemie insult.

                           The am,~ "{:mthyje w i>Pml)Q!pCd MRI IpRN!d NJ# BPJUy 11¥1 Coma."
          .                by Wke. 0&1anaud, Cmpemr, Naccadle, ml Puybuser. conq iom Qitipe! Cam 2007:
      '
       ;
                           I l (5): 230, October 18. s111e8 the MRI ii moni aenmw tbm CT in dOICCq stroke ii tbe eerly
                           p~ aub111: aboormalmes rcBtcd to ADO~- encephabpatby and d.itfisse e.mnaligury.
      ;'·
      1                   With recant to the 1tandanl of can for I.pc B.ealth Service•. Inc.:     ~ Bea.til.~
                          Inc. bad a cbf ta provife propm\' rnilod and CJIPCliaed mnea to cue i>r patients like
                          Cfriltian Marente. The &11ndi.rd ofeaie ~ tt. f>Bowq:

                           l.     Whan a par.km! with trachlosronrlllbe ts beiDa ~by a 1111C, di= l'»Jl'H'm:ast


      ..                  CDMJMARENTE .. 08/20113                       PAQB9
      '




                                                                                261
                                                                                        ~                 214905121 3 Pg23/28
0~>~~1~3 ou:lbAM PDT oougla~. Floyd                      -> Peter Anderson




                     pmWlo tad cnvironnnt b'dle patimlt ad bo ready to i.1Milte ~ mcaarcs
                     ab:>ukl tb:: need me.

              l.     All Blllurcl iavolvins me patient :ndt comider \be possibilily of ~ental
                     dBlodgmmit oftbc tube and b& dam i1 .ucb a way to nlinitB sucluisks.

              3.     Pplc Hea!lh SerW;ea, lD>•• nmt ensure that usea ue be ttailecl to underattnd tile risk
                     oftme displacement n o~cr to ririlimim the rilk of'b occtl'l'i:la aDd to manage the
                     patal: ahoukl t occur.

              4.     Epie HeakhServtot. Inc.• mmtprovide :fbrcaretibuldliaaoftbc pa1icnt. c1oae
                     monitoring ofthe patimTD plan:l>r ~ ieeopti>n oflbe tta.cblosromy QJbe
                                                       mr
                     beilg dlsplaced, and sewralpm ...niattic aiway aboukl SA:Cidemal dialodgtmm
                      occur.
              S.      W•any deterioration ill. tbc palilllta coldiion, or whm a padelt cxbl\ila sips end
                      S)'tq>toms ofrespnuuy diltrel4 u airil1ian Maumte dil. d.Bbd~ or obltmctlon of
                      tbc1Ubc DDtbc comilered u the paamlleauae, 8Wllttoxtemalp&115 oflhe tube
                      visuaJ1v appear to bo ~ poeidoned.
              6.      Wbm a. a"&Oh&lostomyttbe becomes dilpJlt.ed or obttructed. IDd t!ac is a dcmmtion in
      .;              ~patients condti>n. aJl applicable pmilsU>nal~ ma be ~mobilmld fD
      ~   :
                      ~ aoy ob&tructionor eomct any d8lodpmt. nm malt mcbie imMdiltt comet
                      oftiJr:; pbysi:im ii attcndmlce 11111 Cl» ugeon. . p:Med the bl.CMoat.Omy am
      :•'             trmdiatc mti>n ofemer.,.,.:y code prot.edurea.
               7.     A ttadieo8m~tube oftbe Sta type and a II Ibo ODe med, pbl OM ofmc ~
                      IJl.18t be at tile bedsiie. An obtmator tJr h tube in plloe nut be placed at h btdnie in
                      a bigb1)' Yi&bk locatim.
               8.     Tho mne Jlll8t understand that a 1rlCblostamy 1Ub1 aboukl never be aubjecmd to being
      '               baa~ dA8 it ii known to be iitbe11'8ch!&.
      j_
      :!
               Tbenfon, bow did the Yioladon. of the •tudanl of eae came faSa11.
      I



      ..       The nc~ ofNume· Aaab. RN•.wh> npresented Pp» Hcalrb Cue, by tiiDa to propert;v
      !•
      ,

               care fbr a homebealb tmc.bed patk!d. mb&yto iepllce ~~in.a mm~ &ablon,
               ml mr mabillty to ludle evan aq,:ie CPR. and 911 ~calls, was the direct emmgbl
               cause oftht l\ck ofoxyaen. enoepbabpethy &nd bnil dlDllF t.o Cbria&.n Mmmte. He was
      .-       i>mt to be asyatoic or pukDlw. mi without reaphtory dlM. aad tit he wu down
      ''                                              nm
               soawhete between 10 8lld 1s rim1es.        ii .wbalauliamd by the lildiQat oftb! BMT's
               where moy f:luod bin pukelm and wt.hour: teapblmy drive. Tt was alaB 11Ubstantil1cd by tho
               poor QJaqow Comt. Scale of3, It was~ am!l!lrtieted by bl flndi>p i1 the E.rmxpcy
               Room,.wb:re he had se1lute activly. tlm~ then proceeded to have abtn'St


               CDMJMARENm- 08110/13                         PA.0010
      ::




                                                                262
08t2~/l~    08: 15AM PDT Dougla• . Floyd ->                     Peter Anders on              e                 214905 1213 Pg24/2 6




              ~presaion BEO fblk>wed by a. poativc M.RJ. wheh was cbtnctailtic ofa bMJolCic event.

                It ill a1lo well-lalowa, u indicued above. tbat the blli1 conp.ie8 ~ than 5% ofthe bodys
                weWt, butbasblly consumes about 20% oftho bodys oxysm SiJpliticam ccnbial.hypoxia
                ml anoxia ~ co tbe death ofthe celll il b bnil, espcciaUy tbe celll ofthe ~pocall1lus, 1be
             ·. Pulki\je's ceti. and ls.yers 3t S and 6.

              l'hereibftl, bad Nll'Se Asah beeo.morc properly ICmo1ed m~tomyprotoco~ .bad ll)t
              removed tbe nck, or suceesdJJl:/ removed it a.cd nplaced it wilh a JJIJW uaok, this quey would
              not i.ve occmred. It was allo noted the child. priorto tit, was able to wak and talk, had 1.
               filidy mnmlneurobF exiun accordilg to pdorrepons. h was e-wm noted When be appeared to
              tbe hospb.l 1bt CT scan~ did not show any eW:lmie of111.ii&rctor 81IJ evidence ofa
              bleed. lt was OD1y a1tcr 2days1batdie MRI showed 1fz more gbbal etkt8 of~ amxia.

              It ia qi expert opinion th&t Nwic Asah pmdclced am dil not act appmpria.tely, mmly or
              pro~ du:iDg Chmtian a crisis. A! a mrse. Nurte ABah s.boutd have been pmpared
                                            1                                                                 to
              care 1br C1mian aiv:l ~t the t)tle of~dat bl;lpemd on 9/10/12. lt l.t further                 my
              elpert opinkm,tbat Ep~ Health Savicts, hie., miled to proJ>Cd18q>CViae Nur:se
                                                                                                   Asah and
              tied to miaure that Nurse Asah was tralced and pmpatt.d t.o xeep()D!i    to 1be emqom      y situathn
              that occurred ~n 9/10/12. Acoordilgf;f, die tire on a    part  o!F.pi.e .Heelh  Serri::cs, Inc., to
              ensure thlt Nurse Asah WU 1railed end prepared   to deal 'With an Aftlkipate  d situatim,  di'ect1y
               lid 10 the qury and death of'Cbristian MllClie.

               If you med aey addD>mlirdb~ ploas6 lot ma bow. ml I will eolq)]f wilh au,y
               rcaao:nabic requcat. 'Ibis .rqxirt ia beilg written ir.l an ~t to inbm aD.partles exactly what
               my opiiions :in this m&tt.cr arc, how and, why I miwd at t!an. what the stm.iard o( can:
                                                                                                         is
               rept'ding ~ lreatme.m it~ how the a1BN.iard WU violated, am row 1bc vkl&1iml oftbe
               standard caused th! quiy mqucsmn. I reserve the r.fabt to cbui&e, aler1 w:od or witbdnJw D't'
               opmm should 1iJl'!J addtbnal in1brma.tbn be made tom der the date ofthis report.

               Siim:c~ yom.



       I.
       t:
               ~~
                C~1 D. Marable, M.O.
       I
       •:
               BoaJd Ccmticd in Neurology
               Boatd Certified in Geriatric Medi:m

                CDM/b'la Maybe subject to ~n va.rim:e.




                CDMIMARBN'IE .. 08120/13                        PA.OB 11




                                                                   263
5. Curriculum vitae of Dr. Charles Marable,
   M.D.
'~.
      ..



                                           Charles D. Marable, M.D.
                                           Consulting Neurologist
                                   800 8"' Ave, Ste. #118, Fort Worth, TX 76104



           Areas of        Neurology, Medical Malpractice regarding Neurological issues, Closed~Head Injuries,
           Expertise:      Medical Case: Management, Phannacology, Spinal lnjurie~, Toxicology

           Professional    26 years of experience in private practice, intemships and hospitals;
           Experience:     Consulting Neurologist, John Peter Smith Hospital, Ft. Worth, Texas (1986, 2004-2006)

                           Consulting Neurologist, Veterans Administration Medical Center, Dallas, Texas
                           (1986 only)

                           Adjunct Clinical Instructor of Neurology, University of Texas Health Science
                           Center at Dallas Southwestern Medical School, Dallas, Texas (1986 only)                  .    ..~




                           Currently on Staff at Ft. Worth and Dallas Hospitals; Medical Plaza, Baylor All Saints
                           and Forest Park Medical Center
                                                                                                                        ·.;,
                                                                                                                    .      '
           Education/      B.S., Pharmacy Seience, University of Texas at Austin
           Training        M.D., Uiliversidad Autonoma de Guadalajara, 1976-1979
                           Fifth Pathway Internship, Loma Linda University Medical Center, Glendale, CA 1981

                          Internship in Neurology and Internal Medicine, Tulane University Medical School,
                          New Orleans, Louisiana, July 1982· June 1983

                          Neurology Residency, Tulane University Medical School and Affiliate Hospitals, June ·
                          1983- June 1984

                          Neurolo&Y Residency, University ofTex.~ Health Science Center at Dallas Southwestern
                          Medical School and Affiliated Hospitals, Dallas, Texas

           Professional Board Certified in Neurology
           Qualifications: Tarrant County Medical Society
                           Tex.as Medical Association
                           Texas Neurological Society
                           American Academy ofNeurolo&Y

           Cases!Clien1s: Depo!;itions-over 700
                          Plaintiff 90o/o, Defense l OOA
                          Court appearances, case review&


           Comments:      Bilingual- English and Spanish




                                                              163


                                                                                                                        ··"'
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                                    ....



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                                                               :~    ··.
6. Civ. Prac. & Rem. Code Subchapter H
   Procedural Provisions Sec. 74.351, Sec.
   74.402 and Sec. 403
CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY   Page 24of38


 alone (CPI-W:  Seasona lly Adjusted U.S. City Average --All Items),
 between August 29, 1977, and the time at which damages subject to
 such limits are awarded by final judgmen t or settleme nt.
         (c)Subsecti on (a) does not apply to the amount of damages
 awarded on a health care liabilit y claim for the expenses of
 necessar y medical, hospita l, and custodia l care received before
 judgmen t or required in the future for treatmen t of the injury.
           The liabilit y of any insurer under the common law theory of
         (d)
 recovery commonly known in Texas,as the "Stowers Doctrine " shall not
 exceed the liabilit y of the insured.
      (e)  In any action on a health care liabilit y claim that is
 tried by a jury in any court in this state, the followin g shall be
 included in the court's written instruct ions to the jurors:
           (1)  "Do not conside r, discuss, nor specula te whether or
 not liabilit y, if any, on the part of any party is or is not subject
 to any limit under applicab le law."
            (2) "A finding of negligen ce may not be based solely on
 evidence of a bad result to the claiman t in question , but a bad
 result may be consider ed by you, along with other evidence , in
 determin ing the issue of negligen ce.  You are the sole judges of the
 weight, if any, to be given to this kind of evidenc e."

 Added by Acts 2003, 78th Leg., ch. 204, Sec. 10. 01, eff. Sept. 1,
 2003.


                         SUBCHAPTER H. PROCEDURAL PROVISIONS

      Sec. 74.351.   EXPERT REPORT.   (a)  In a health care liabilit y
 claim, a claiman t shall, not later than the 120th day after the date
 each defenda nt's origina l answer is filed, serve on that party or the
 party's attorney one or more expert reports, with a curricul um vitae
 of each expert listed in the report for each physicia n or health care
 provide r against whom a liabilit y claim is asserted .  The date for
 serving the report may be extended by written agreeme nt of the
 affected parties.   Each defendan t physicia n or health care provide r
 whose conduct is implicat ed in a report must file and serve any
 objectio n to the sufficie ncy of the report not later than the later
 of the 21st day after the date the report is served or the 21st day



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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY             Page 25 of38


 after the date the defenda nt's answer is filed,               failing which all
 objectio ns are waived.
      (b)   If, as to a defendan t physicia n or health care provide r, an
 expert report has not been served within the period specifie d by
 Subsecti on (a), the court, on the motion of the affected physicia n or
 health care provide r, shall, subject to Subsecti on (c), enter an
 order that:
           (1)  awards to the affected physicia n or health care
 provide r reasonab le attorne y's fees and costs of court incurred by
 the physicia n or health care provide r;   and
            (2) dismisse s the claim with respect to the physicia n or
 health care provide r, with prejudic e to the refiling of the claim.
      (c)   If an expert report has not been served within the period
 specifie d by Subsecti on (a) because elements of the report are found
 deficien t, the court may grant one 30-day extensio n to the claiman t
 in order to cure the deficien cy.   If the claiman t does not receive
 notice of the court's ruling granting the extensio n until after the
 120-day deadline has passed, then the 30-day extensio n shall run from
 the date the plainti ff first received the notice.
      [Subsect ions (d)-(h) reserved ]
      (i)   Notwith standing any other provisio n of this section, a
 claiman t may satisfy any requirem ent of this section for serving an
 expert report by serving reports of separate experts regardin g
 differen t physicia ns or health care provide rs or regardin g differen t
 issues arising from the conduct of a physicia n or health care
 provide r, such as issues of liabilit y and causatio n. Nothing in this
 section shall be construe d to mean that a single expert must address
 all liabilit y and causatio n issues with respect to all physicia ns or
 health care provide rs or with respect to both liabilit y and causatio n
 issues for a physicia n or health care provide r.
       (j) Nothing in this section shall be construe d to require the
  serving of an expert report regardin g any issue other than an issue
  relating to liabilit y or causatio n.
        (k) Subject to Subsecti on (t), an expert report served under
  this section:
                (1)    is not admissib le in evidence by any party;
                (2)    shall not be used in a depositi on, trial, or other
  proceed ing;        and



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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY   Page 26 of38


               shall not be referre d to by any party during the
              (3)
 course of the action for any purpos e.
      (1)  A court shall grant a motion challen ging the adequa cy of an
 expert report only if it appear s to the court, after hearing , that
 the report does not represe nt an objecti ve good faith effort to
 comply with the defini tion of an expert report in Subsec tion (r) (6).
      [Subse ctions (m)-(q) reserve d]
        (r)  In this section :
            (1)  "Affec ted parties " means the claima nt and the
 physic ian or health care provid er who are direct ly affecte d by an act
 or agreem ent require d or permit ted by this section and does not
 include other partie s to an action who are not direct ly affecte d by
 that particu lar act or agreem ent.
           (2)    "Claim" means a health care liabil ity claim.
           [ ( 3) reserve d]
           (4)    "Defen dant" means a physic ian or health care provid er
 agains t whom a health care liabili ty claim is asserte d.    The term
 include s a third-p arty defend ant, cross-d efenda nt, or
 counte rdefend ant.
            (5)   "Exper t" means:
                 (A)  with respec t to a person giving opinion testimo ny
 regardi ng whethe r a physic ian departe d from accepte d standa rds of
 medica l care, an expert qualifi ed to testify under the require ments
 of Section 74.401 ;
                (B)  with respec t to a person giving opinion testimo ny
 regardi ng whethe r a health care provid er departe d from accepte d
 standa rds of health care, an expert qualifi ed to testify under the
 require ments of Section 74.402 ;
                (C) with respec t to a person giving opinion testimo ny
 about the causal relatib nship between the injury, harm, or damage s
 claimed and the alleged departu re from the applica ble standa rd of
 care in any health care liabili ty claim, a physic ian who is otherw ise
  qualifi ed to render opinion s on such causal relatio nship under the
  Texas Rules of Eviden ce;
                 (D) with respec t to a person giving opinion testimo ny
  about the causal relatio nship betwee n the injury, harm, or damage s
  claimed and the alleged departu re from the applica ble standa rd of
  care for a dentis t, a dentis t or physic ian who is otherw ise qualif ied


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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY      Page 27of38


 to render opinions on such causal relationship under the Texas Rules
 of Evidence;        or
                     (E)   with respect to a person giving opinion testimony
 about the causal relationship between the injury, harm, or damages
 claimed and the alleged departure from the applicable standard of
 care for a podiatrist, a podiatrist or physician who is otherwise
 qualified to render opinions on such causal relationship under the
 Texas Rules of Evidence.
               (6)   "Expert report" means a written report by an expert
 that provides 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.
         (s)   Until a claimant has served the expert report and
 curriculum vitae as required by Subsection (a), all discovery in a
 health care liability claim is stayed except for the acquisition by
 the claimant of information, including medical or hospital records or
 other documents or tangible things, related to the patient's health
 care through:
               (1)   written discovery as defined in Rule 192.7, Texas
 Rules of Civil Procedure;
               (2)   depositions on written questions under Rule 200, Texas
 Rules of Civil Procedure;              and
               (3)   discovery from nonparties under Rule 205, Texas Rules
 of Civil Procedure.
         (t)   If an expert report is used by the claimant in the course
 of the action for any purpose other than to meet the service
 requirement of Subsection (a), the restrictions imposed by Subsection
 (k) on use of the expert report by any party are waived.
         (u)   Notwithstanding any other provision of this section, after
 a claim is filed all claimants, collectively, may take not more than
 two depositions before the expert report is served as required by
 Subsection (a) .

 Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
 2003.
 Amended by:



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conducted outside the presence of the jury. This subsection do.es not
prevent a party from examining or cross-exam ining a witness at trial
 about the     ~itness's     qualifica tions.
           This section does not prevent a physician who is a
         (f)
 defendant from qualifying as an expert.
                                       \

      (g)   In this subchapte r, "physician " means a person who is:
           (1)  licensed to practice medicine in one or more states in
 the United States; or
           (2) a graduate of a medical school accredited by the
 Liaison Committee on Medical Education or the American Osteopath ic
 Associatio n only if testifying as a defendant and that testimony
 relates to that defendant 's standard of care, the alleged departure
 from that standard of care, or the causal relationsh ip between the
 alleged departure from that standard of care and the injury, harm, or
 damages claimed.

 Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
 2003.


                    QUALIFICATIONS OF EXPERT WITNESS IN SUIT AGAINST
         Sec. 74.402.
 HEALTH CARE PROVIDER.  (a)  For purposes of this section, "practicin g
 health care" includes:
           (1) training health care providers in the same field as
 the defendant health care provider at an accredited education al
 institutio n;       or
               serving as a consulting health care provider and being
               (2)
 licensed, certified, or registered in the same field as the defendant
 health care provider.
      (b)  In a suit involving a health care liability claim against a
 health care provider, a person may qualify as an expert witness on
 the issue of whether the health care provider departed from accepted
 standards of care only if the person:
           (1) is practicing health care in a field of practice that
 involves the same type of care or treatment as that delivered by the
 defendant health care provider, if the defendant health care provider
 is an individua l, at the time the testimony is given or was
 practicing that type of health care at the time the claim arose;




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               has knowledge of accepted standards of care for health
               (2)
 care providers for the diagnosis, care, or treatment of the illness,
 injury, or condition involved in the claim;                     and
               (3)    is qualified on the basis of training or experience to
                                   '
 offer an expert opinion regarding those accepted standards of health
 care.
         (c)    In determining whether a witness is qualified on the basis
 of training or experience, the court shall consider whether, at the
 time the claim arose or at the time the testimony is given, the
 witness:
               (1)    is certified by a licensing agency of one or more
 states of the United States or a national professional certifying
 agency, or has other substantial training or experience, in the area
 of health care relevant to the claim;                     and
               (2)    is actively practicing health care in rendering health
 care services relevant to the claim.
           The court shall apply the criteria specified in Subsections
         (d)
 (a), (b), and (c) in determining whether an expert is qualified to
 offer expert testimony on the issue of whether the defendant health
 care provider departed from accepted standards of health care but may
 depart from those criteria if, under the circumstances, the court
 determines that there is good reason to admit the expert's testimony.
 The court shall state on the record the reason for admitting the
 testimony if the court departs from the criteria.
         (e)    This section does not prevent a health care provider who is
 a defendant, or an employee of the defendant health care provider,
 from qualifying as an expert.
           A pretrial objection to the qualifications of a witness
         (f)
 under this section must be made not later than the later of the 21st
 day after the date the objecting party receives a copy of the
 witness's curriculum vitae or the 21st day after the date of the
 witness's deposition.  If circumstances arise after the date on which
 the objection must be made that could not have been reasonably
 anticipated by a party before that date and that the party believes
 in good faith provide a basis for an objection to a                   ~itness's

 qualifications, and if an objection was not made previously, this
 subsection does not prevent the party from making an objection as
 soon as practicable under the circumstances.                     The court shall conduct


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a hearing to determine whether the witness is qualified as soon as
practicable after the filing of an objection and, if possible, before
trial.  If the objecting party is unable to object in time for the
 hearing to be conducted before the trial, the hearing shall be
 conducted outside the presence of the jury. This subsection does not
 prevent a party from examining or cross-examin ing a witness at trial
 about the witness's qualification s.

 Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
 2003.


                    QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION IN
         Sec. 74.403.
 HEALTH CARE LIABILITY CLAIM.   (a) Except as provided by Subsections
 (b) and (c), in a suit involving a health care liability claim
 against a physician or health care provider, a person may qualify as
 an expert witness on the issue of the causal relationship between the
 alleged departure from accepted standards of care and the injury,
 harm, or damages claimed only if the person is a physician and is
 otherwise qualified to render opinions on that causal relationship
 under the Texas Rules of Evidence.
      (b)  In a suit involving a health care liability claim against a
 dentist, a person may qualify as an expert witness on the issue of
 the causal relationship between the alleged departure from accepted
 standards of care and the injury, harm, or damages claimed if the
 person is a dentist or physician and is otherwise qualified to render
 opinions on that causal relationship under the Texas Rules of
 Evidence.
           In a suit involving a health care liability claim against a
         (c)
 podiatrist, a person may qualify as an expert witness on the issue of
 the causal relationship between the alleged departure from accepted
 standards of care and the injury, harm, or damages claimed if the
 person is a podiatrist or physician and is otherwise qualified to
 render opinions on that causal relationship under the Texas Rules of
 Evidence.
           A pretrial objection to the qualification s of a witness
         (d)
 under this section must be made not later than the later of the 21st
 day after the date the objecting party receives a copy of the
 witness's curriculum vitae or the 21st day after the date of the



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     witness's deposition.             If circumstances arise after the date on which
     the objection must be made that could not have been reasonably
     anticipated by a party before that date and that the party believes
     in good faith provide a basis for an objection to a witness's
     qualifications, and if an objection was not made previously, this
     subsection does not prevent the party from making an objection as
     soon as practicable under the circumstances.                    The court shall conduct
     a hearing to determine whether the witness is qualified as soon as
     practicable after the filing of an objection and, if possible, before
     trial.        If the objecting party is unable to object in time for the
     hearing to be conducted before the trial, the hearing shall be
     conducted outside the presence of the jury.                    This subsection does not
     prevent a party from examining or cross-examining a witness at trial
     about the witness's qualifications.

     Added by Acts 2003, 78th Leg., .ch. 204, Sec. 10.01, eff. Sept. 1,
     2003.


                             SUBCHAPTER J. ARBITRATION AGREEMENTS

             Sec. 7 4. 451.. ARBITRATION AGREEMENTS.               (a)   No physician,
     professional association of physicians, or other health care provider
     shall request or require a patient or prospective patient to execute
     an agreement to arbitrate a health care liability claim unless the
     form of agreement delivered to the patient contains a written notice
     in 10-point boldface type clearly and conspicuously stating:
     UNDER TEXAS LAW, THIS AGREEMENT IS INVALID AND OF NO LEGAL EFFECT
     UNLESS IT IS ALSO SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING. THIS
     AGREEMENT CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS, INCLUDING YOUR
     RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS AGREEMENT WITHOUT FIRST
     CONSULTING WITH AN ATTORNEY.
             (b)    A violation of this section by a physician or professional
     association of physicians constitutes a violation of Subtitle B,
     Title 3,      Occup~tions      Code, and shall be subject to the enforcement
     provisions and sanctions contained in that subtitle.
                                       c

             (c)    A violation of this section by a health care provider other
     than a physician shall constitute a false, misleading, or deceptive
     act or practice in the conduct of trade or commerce within the



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