                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00230-CV


PINNACLE HEALTH FACILITIES                                       APPELLANTS
OF TEXAS III, L.P. D/B/A KELLER
OAKS HEALTHCARE CENTER
AND KELLER OAKS HEALTHCARE
CENTER

                                         V.

CRYSTAL STEELE AND ROBERT                                          APPELLEES
STEELE


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            FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 096-273539-14

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                           MEMORANDUM OPINION1

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      Appellants Pinnacle Health Facilities of Texas III, L.P. d/b/a Keller Oaks

Healthcare Center and Keller Oaks Healthcare Center (collectively, Keller Oaks)


      1
          See Tex. R. App. P. 47.4.
bring this interlocutory appeal2 challenging the trial court’s order denying their

motion to dismiss under section 74.351 of the civil practice and remedies code.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2015). In a single

issue, Keller Oaks claims the trial court abused its discretion by denying their

motion to dismiss because Appellees Crystal Steele and Robert Steele

(collectively, the Steeles) failed to serve an adequate expert report that

constituted a good faith effort to comply with the statutory report requirements in

section 74.351(r)(6). See id. § 74.351(r)(6). We affirm.

                                   Background

      On June 13, 2013, eighty-seven year old Crystal Steele was admitted to

Keller Oaks for acute rehabilitation. On July 9, 2013, she suffered a severe

laceration to her right leg3 while being transferred from a wheelchair into her bed.

The Steeles alleged that “one of the bed rails was missing its top cap, causing a

sharp edge to the bed rail to be dangerously exposed” or, alternatively, that “the

wheelchair had an unsafe sharp edge.”4 Crystal’s laceration was treated with




      2
          See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2015).
      3
       The laceration was ten centimeters by five centimeters and bled
“copiously.”
      4
      Keller Oaks staff informed Crystal’s family that the laceration was caused
by a sharp edge on a bed rail that was the result of a missing plastic cap.
According to records from the Keller Fire Department, which was called to Keller
Oaks to attend to Crystal, the laceration was caused by a wheelchair.


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sutures at Baylor Regional Medical Center at Grapevine. She returned to Keller

Oaks and resided there until mid to late September 2013.

      As a result of the laceration, Crystal became essentially wheelchair bound.

On October 19, 2013, Crystal returned to Baylor Regional Medical Center at

Grapevine and was diagnosed with and treated for deep vein thrombosis in her

right leg. Crystal was hospitalized at Baylor Medical Center at Grapevine until

October 28, 2013, and spent the rest of her life in and out of other nursing

facilities and hospitals before passing away on April 9, 2015.

      While Crystal was still living, the Steeles filed suit against Keller Oaks

alleging that Keller Oaks had been negligent in failing to properly inspect and

ensure that its equipment was safe and in failing to use reasonable care in

transferring Crystal and that Keller Oaks’s negligence caused the Steeles injury,

including Crystal’s past and future pain, physical impairment, mental anguish,

and medical expenses and Robert’s past and future loss of consortium. The

Steeles timely served expert reports and curricula vitae by Dr. Bernard A.

McGowen, M.D. and Lea Kayla Lee, R.N., to which Keller Oaks objected,

contending that they failed to adequately set forth the applicable standard of care

for transferring Crystal from her wheelchair to her bed and failed to establish a

causal link between Crystal’s injury and Keller Oaks’s failure to maintain the

wheelchair or the bed rail. After a hearing, the trial court denied Keller Oaks’s

motion to dismiss.




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                         Expert Report Requirements
                           and Standard of Review

      A health care liability claimant is required to serve defendants with an

expert report and curriculum vitae of the report’s author within 120 days of filing

the claim. Id. § 74.351(a). The report must be written by an expert competent to

give an opinion on the matters in the report, must inform the defendant of the

specific conduct called into question, and must provide a basis for the trial court

to determine that the claim has merit. Id. §§ 74.351(r)(5)(B), (r)(6), 74.402 (West

2011); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).            If the

defendant files a motion challenging the adequacy of the expert report, the court

shall grant the motion only if it appears to the court that the report does not

represent a good faith effort to comply with the statutory requirements. Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(l).

      While the expert report “need not marshal all the plaintiff’s proof,” Am.

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

it must provide a fair summary of the expert’s opinions as to the “applicable

standards of care, the manner in which the care rendered by the physician or

health care provider failed to meet the standards, and the causal relationship

between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(r)(6). To qualify as a good faith effort to comply with

these statutory requirements, the report must “discuss the standard of care,

breach, and causation with sufficient specificity to inform the defendant of the



                                        4
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 875. A

report does not fulfill this requirement if it merely states the expert’s conclusions

or if it omits any of the statutory requirements. Id. at 879. The information in the

report “does not have to meet the same requirements as the evidence offered in

a summary-judgment proceeding or at trial.” Id. When reviewing the adequacy

of a report, the only information relevant to the inquiry is the information

contained within the four corners of the document. Id. at 878; see Bowie Mem’l

Hosp., 79 S.W.3d at 52.

      “The report serves two functions.        ‘First, the report must inform the

defendant of the specific conduct the plaintiff has called into question. Second,

and equally important, the report must provide a basis for the trial court to

conclude that the claims have merit.’” Certified EMS v. Potts, 392 S.W.3d 625,

630 (Tex. 2013) (quoting Palacios, 46 S.W.3d at 879). “A report need not cover

every alleged liability theory to make the defendant aware of the conduct that is

at issue.”   Id.   “The expert report requirement is a threshold mechanism to

dispose of claims lacking merit,” and “[i]f a health care liability claim contains at

least one viable liability theory, as evidenced by an expert report meeting the

statutory requirements, the claim cannot be frivolous.” Id. at 631.

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

discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Columbia N.

Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 623–24 (Tex. App.––


                                         5
Fort Worth 2012, no pet.). A trial court abuses its discretion if the court acts

without reference to any guiding rules or principles, that is, if the act is arbitrary or

unreasonable.       Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

                                      Discussion

         In their sole issue, Keller Oaks argues that the trial court abused its

discretion by denying their motion to dismiss the Steeles’ negligence claims

because neither Dr. McGowen’s nor Nurse Lee’s report complied with section

74.351 because the reports (1) failed to adequately provide a fair summary of

their opinions as to the applicable standard of care for transferring Crystal from

her wheelchair to her bed and (2) failed to provide a causal relationship between

Keller Oaks’s purported breach of the standard of care with respect to Crystal’s

claimed injury and Keller Oaks’s alleged failure to maintain the bed rail or the

wheelchair.5 We address Keller Oaks’s argument regarding standard of care

first.

         Pertinent to the applicable standard of care, Nurse Lee stated in her report:

         the appropriate standard of care for Keller Oaks is to have staff
         perform transfers safely and reasonably. When a staff member of
         Keller Oaks assists Ms. Steele in her transfer into bed, the staff

         5
        The Steeles argue that Keller Oaks has failed to preserve any complaint
regarding the Steeles’ “improper equipment claim” because Keller Oaks’s motion
to dismiss did not address the Steeles’ claim that Keller Oaks was negligent in
failing to properly maintain their equipment. We have examined Keller Oaks’s
motion, and we conclude that it addressed the Steeles’ claim that Keller Oaks’s
equipment was not properly maintained.


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      should do so safely and in a manner that does not cause a
      laceration. In this case, that would include avoiding any object
      (including bed rails and or parts of the wheelchair) that can cause
      lacerations. The staff at Keller Oaks deviated from this appropriate
      standard of care by performing the transfer in such a way that it
      caused a serious laceration to Ms. Steele. This is true whether the
      laceration was caused by the wheelchair or by the bed.

Dr. McGowen stated in his report:

             I have reviewed Ms. Lee’s nursing report and she opines that
      the appropriate standard of care is for Keller Oaks staff to perform
      transfers from a wheelchair to a bed safely and reasonably. I agree
      that this is an appropriate standard of care.        This includes
      completing the transfer without causing a laceration. This would
      further include avoiding any sharp objects that can inflict a
      laceration. Keller Oaks deviated from this standard of care by
      causing Ms. Steele to suffer a significant laceration during the
      transfer process. I agree with Ms. Lee, RN. I am also of the same
      opinions as to the standard of care and breach of the standard of
      care.

      Relying on Palacios, Keller Oaks argues that neither Dr. McGowen nor

Nurse Lee complained of any “specific conduct” or provided any “specific

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

at 879, 880. In Palacios, Palacios suffered brain damage from an on-the-job

accident. Id. at 875. While hospitalized, he fell from his bed, and his family

claimed that the fall caused him to sustain further brain injury. Id. at 875–76. To

establish the applicable standard of care, the Palacioses relied on one sentence

in their expert report stating that, “Mr. Palacios had a habit of trying to undo his

restraints and precautions to prevent his fall were not properly utilized.” Id. at

879–80. The Palacioses argued that the inference could be made from that

sentence, along with the expert’s statement that “[i]t is unclear how [Mr. Palacios]


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could untie all four of the restraints from the bed frame in under ten minutes,” that

their expert believed that hospital staff should have tied the restraints to the bed

more securely. Id. at 880.

      The supreme court held that the statement the Palacioses relied upon—

that precautions to prevent Palacios from falling were not properly used—was not

a good faith effort to provide a fair summary of the applicable standard of care

because neither the trial court nor the health care provider would be able to

determine if the expert believed that the standard of care required the health care

provider “to have monitored Palacios more closely, restrained him more securely,

or done something else entirely.” Id. The supreme court stated that identifying

the standard of care is critical because whether a defendant breached his or her

duty to a patient cannot be determined absent specific information about what

the defendant should have done differently. Id. When an expert report opines on

the standard of care and how it was breached, it is not sufficient to simply state

that the expert knows the standard of care and concludes that it was not met. Id.

While a “fair summary” is something less than a full statement of the applicable

standard of care and how it was breached, even a fair summary must set out

what care was expected, but not given. Id.

      In a case similar to this one, Azle Manor, Inc. v. Vaden, No. 2-08-115-CV,

2008 WL 4831408, at *6–7 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem.

op.), disapproved of on other grounds by Certified EMS, 392 S.W.3d at 628 n.5,

630–32, this court held that a nurse’s expert report was sufficient as to the


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standard of care. In Vaden, Harold Vaden alleged that his wife, Joyce Vaden, a

nursing home resident, slipped from a shower chair and fell, breaking several

bones. Id. at *1. Harold further alleged that nursing home personnel did not

discover Joyce’s fractures until several days after the fall and that Joyce

ultimately died from her injuries. Id.

      Emergency room records indicated that Joyce fell from a bedside

commode, but nursing home records indicated that she fell from a shower chair.

Id. at *3. The nurse’s expert report stated that the use of restraints would have

“greatly reduced” Joyce’s chances of falling from either a commode or a shower

chair. Id. In holding that the report was not conclusory or speculative, this court

concluded that the report satisfied “the two key requirements of an expert report

identified by the supreme court in Palacios by (1) informing the Appellants of the

specific conduct Vaden has called into question—namely, the failure of

Appellants’ staff to prevent Joyce’s fall from the shower chair—and (2) providing

a basis for the trial court to conclude the claims are meritorious.” Id. at *7 (citing

Palacios, 46 S.W.3d at 875).

      Unlike the expert report in Palacios, the expert reports in this case are not

conclusory and do not require us to infer what each expert believes to be the

applicable standard of care. Like the expert report in Vaden, the reports in this

case (1) contain sufficient information to inform Keller Oaks of the specific

conduct the Steeles have called into question with respect to their claim that

Keller Oaks was negligent in not using reasonable care when transferring Crystal


                                          9
from her wheelchair to her bed, namely, Keller Oaks’s failure to safely transfer

Crystal from a wheelchair to a bed without laceration by avoiding any sharp

objects that could cause a laceration and (2) provide a sufficient basis for the trial

court to conclude that the claims are meritorious. See id. (citing Palacios, 46

S.W.3d at 875, 879). Therefore, the reports constitute a good faith effort to

comply with the statutory requirements with respect to this theory of liability. See

Palacios, 46 S.W.3d at 875, 879. Accordingly, we conclude and hold that the

trial court did not abuse its discretion by denying Keller Oaks’s motion to dismiss

as to their complaint regarding Dr. McGowen’s and Nurse Lee’s alleged failure to

state the applicable standard of care with respect to Keller Oaks’s failure to use

reasonable care when transferring Crystal from a wheelchair to a bed.

      Because we have determined that the expert reports adequately

addressed the standard of care with respect to the Steeles’ claim that Keller

Oaks was negligent by not using reasonable care when transferring Crystal from

her wheelchair to her bed, we need not decide whether the expert reports

adequately addressed causation as to the Steeles’ claim that Keller Oaks was

negligent in failing to inspect and maintain the wheelchair or the bed rail. See

Certified EMS, 392 S.W.3d at 630–31 (concluding that expert report that satisfies

statutory requirements as to one theory of liability entitles claimant to proceed

with suit against physician or health care provider); Harlingen Med. Ctr., L.P. v.

Andrade, Nos. 13-14-0700-CV, 13-15-0119-CV, 2016 WL 1613297, at *3–4 (Tex.

App.—Corpus Christi Apr. 21, 2016, no pet. h.) (mem. op.) (applying Certified


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EMS and declining to address alternative negligence theory of liability after

holding that report was adequate as to one); Mendez-Martinez v. Carmona, No.

08-15-00265-CV, 2016 WL 1613422, at *7 n.1 (Tex. App.—El Paso Apr. 22,

2016, no pet. h.) (same); Nexion Health at Garland, Inc. v. Townsend, No. 05-15-

00153-CV, 2015 WL 3646773, at *8 (Tex. App.—Dallas June 12, 2015, pet.

denied) (mem. op.) (same); see also Tex. R. App. P. 47.1.

      Accordingly, we overrule Keller Oaks’s sole issue and affirm the trial

court’s order denying Keller Oaks’s motion to dismiss.




                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: June 9, 2016




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