                                                                                       ACCEPTED
                                                                                   12-15-00189-CV
                                                                      TWELFTH COURT OF APPEALS
                                                                                    TYLER, TEXAS
                                                                              11/9/2015 2:58:15 PM
                                                                                         Pam Estes
                                                                                            CLERK

                    CAUSE No. 12-1 5-001 89-CV

                                                      FILED IN
                                               12th COURT OF APPEALS
            IN   TT{E COURT OF APPEALS OF TEXAS     TYLER, TEXAS
                   FOR THE TWELFTH CIRCUIT     11/9/2015 2:58:15 PM
                         TYLER, TEXAS                 PAM ESTES
                                                        Clerk


 GARNSON NURSING HOME AND REHABILITATION CENTER AND
            GARNSON NURSING HOME, INC.,
                      Appellant

                                 V


                       LEGATHA DEMINGS,
                            Appellee


                      On Appeal From Cause No.
  In the 745th Judicial District Court of Nacogdoches County, Texas


                       APPELLEE'S BRIEF


                               Law OTTIcB oF STEPHEN SHIRES, PLLC
                               Attorney & Counselor at Law

                                     W. Stephen Shires
                                     State Bar No. 50511894
                                     123 San Augustine Street
                                     P.O. Box 2224
                                     Center, Texas 75935
                                     (936) s98-30s2 (Phone)
                                     (936) s98-303 1 (Facsimile)
                                     stephen @s hire s I aw firm. c o m
                                     ATTORNEY FOR LEGATHA DEMINGS


ORAL ARGUMENT REQUESTED IF GRANTED TO APPELLANT
                   IDENTITY OF PARTIES AND COUNSEL
      In accordance with TBx. R. App. P.38.1(a), the following is a list of the

parties to this action, their respective counsel, and the presiding judge at trial:

Appellants                                  Garrison Nursing Home and
                                            Rehabilitation Center and Garrison
                                            Nursing Home, Inc. (ooGNHoo)

Trial and Appellate Counsel:                David'W. Frost
                                            Kent, Anderson, Bush, Frost, and Metcalf, P.C.
                                            1121 E.S.E Loop 323, Suite 200
                                            Tyler, Texas 7570t
                                             (903) s79-7s00 (phone)
                                             (903) 58 1-3701 (facsimile)
                                             dfrost@tyler.net

Appellee                                    Legatha Demings ("Demings")

Trial and Appellate Counsel:                 Stephen Shires
                                            Law Office of Stephen Shires, PLLC
                                            123 San Augustine Street
                                            P.O. Box 2224
                                             Center, Texas 75935
                                             (936) s98-30s2 (phone)
                                             (936) 598-303 1 (facsimile)
                                             stephen@shireslawfirm. com

Trial Judge                                  Honorable Campbell Cox II
                                             145th Judicial Court, Nacogdoches, Texas




                                            1t
                           TABLE OF CONTENTS
IDENTITY OF PARTIES AND COTINSEL                                                l1


TABLE OF CONTENTS                                                              111



TABLE OF AUTHORITIES                                                   .....   iv
STATEMENT REGARDING ORAL ARGUME,NT                                              1



STATEMENT OF ISSUES                                                             1



STATEMENT OF'TITE CASE                                                          1



STANDARD OF REVIEIT                                                             I

STATEMENT OF FACTS                                                              2
                                                                                a
STTMMARY OF THE ARGITME,NT                                                      J


ARGUMENT                                                                        4

     A. GNH improperly seeks a technical dismissal of claims that clearly
        have merit.


     B. Dr. Miller is qualified to address causation in this   case.
                                                                                7

     C.   The reports do not simply provide conclusory statements              on
          causation.
                                                                               11


     D. Alternatively, this is a matter of r¿s ipsa loquilut
                                                                               I7
CONCLUSION AND PRAYER                                                          18

CERTIFICATE OF SERVICE ..........                                              I9

CERTIF'ICATE OF' COMPLIANCE                                                    t9

INDEX OF APPENDIX                                                              20




                                       lll
                                    TABLE OF AUTHORITIES
CASES
Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios,46 S.V/.3d 873
(Tex. 2001)                                                           ...2,4
Bowie Mem'l Hosp. v. Wright,79 S.W.3d 48, 52 (Tex. 2002)                               6

Broders v. Heise,924 S.W.2d I48 (Tex. 1996)                                            7

Collini v. Pustejovsky,2S0 S.W.3d 456 (Tex. App. Fort Worth 2009,
no pet)                                                                             11

Daubert v. Merrill Dow Pharmaceuticals, [nc.,509 U.S. 579 (1993) ........ 10
Downer v. Aquamarine Operators, Inc.,70l S.W.2d 238 (Tex. 1985) .........2
Gammill v.Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) ..... 10
Haddockv. Arnspiger,793 S.W.2d 948,950 (Tex. 1990)                              17, 18
Hall v. Huff 957 S.W.zd90 (Tex. App.            - Texarkana 1997, pet. denied) ......7
HEB Grocery Co. v. Galloway,2014               WL 2152128 (Tex. App. - Beaumont
2014, not pet)                                                                      11

Kunho Tire Co. v. Carmichael,526 U.S. 137 (1999)                                    10

Mack Trucks, Inc. v. Tøme2,206 S.W.3d 572 (Tex. 2006)                               10

Nenno v. State,970 S.W.2d 549 (Tex. Crim. App. 1998)                                10

,Ross   v.   St.   Luke's Episcopal Hospital,462 S.W.3d 496 (Tex.2015).............    5

Samlowski v. Wooten,332 S.W.3d 404,410                 (Tex.20ll)                      6

Scoresby v. Santillan,346 S.W.3d 546 (Tex. 2011)                                       5

Van Ness v. ETMC First Physicians,46l S.W.3d 140 (Tex. 2015)
                                                                      1,4,5,6,16,   17

STATUTES AND RULES
                                                                        a
Tsx. Cry. Pnacr. & Rpvr. Cooe Ann. $74.001                              J

TEx. Cru. Pnacr. & Rpvt. Cons Ann. ç74.201(Jones McClure 2015) ........17
TEx. Ctv. Pnacr. & RsN4. Conp Ann. $74.351 (Jones McClure 2015)......             l,   5

TBx. Ctv. Pnacr. &          RBH¿.   Conr Ann. ç74.403 (Jones McClure 2015) ..........7



                                                  lv
                STATEMENT REGARDING ORAL ARGUMENT
        GNH requested oral argument in this case. In the event that the Court grants

GNH's request, then Demings also requests oral argument in this matter.

                                   STATEMENT OF ISSUES
        GNH has raised the following two issues:

    1. Whether the trial court abused its discretion in overruling GNH's objections
       to Demings' supplemental expert report from Dr. Keith E. Miller for the
       failure to show he was qualified to provide opinions regarding the element
       of causation and denying GNH's motion to dismiss pursuant to TEx. CIv.
        Pnacr. &   REII¿.   ConBAnn. 574.351 (Jones McClure 2015).

   2.   Whether the trial court abused its discretion in overruling GNH's objections
        to Demings' supplemental expert report from Dr. Keith E,. Miller for failure
        to adequately address the element of causation and denying GNH's motion
        to dismiss pursuant to TBx. Ctv. Pnecr. & REM. Conp Ann. ç74.351 (Jones
        McClure 2015).

                                  STATEMENT OF THE CASE

        GNH accurately stated the Statement of the Case in this matter. Demings

would only add that the Supplemental Miller Report filed by Demings in this

matter (CR 50) was expressly incorporated by reference into the previous Kaper

Report (CR 25), and vice-versa.             In other words, the two reports    are to be

construed together, as       if   one report, along with all the information contained in

both reports.

                                   STANDARD OF REVIEW
        Demings agrees that the Standard of Review in this matter is abuse of

discretion. See Van Ness v. ETMC First Physicians,46l S.W.3d 140,742 (Tex.
2015); Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873,877

(Tex. 2001). Demings further agrees that a trial court abuses its discretion only

when it acts in an arbitrary or unreasonable manner without regard to any guiding

rules or principals. Downer v. Aquamarine Operators,     Inc.,70l S.!V.2d 238,24I-

42 (Tex. 1985).

                              STATEMENT OF FACTS

      This case arises out of, among various breaches of duty, the complete failure

of GNH to administer the medication Xarelto to Demings despite a prescription

from her treating physician for that medication. (CR 25, 50). Demings had been

diagnosed   with atrial fibrillation and previously suffered a mild ischemic
cardiovascular    accident. (CR 55). As a result,        her physician, Dr. Dennis

Calhoun, had prescribed Xarelto, to be taken by Demings as a measure to prevent

her from suffering another and possibly greater and much more severe stroke. (CR

55). To be clear    -   the purpose for Demings taking the Xarelto in this case was

solely to prevent her from suffering another stroke resulting from her atrial

fibrillation. (CR 25, 50). GNH's own report admits that GNH failed to provide

the Xarelto to Demings due to an 'oerror in the transcription of [the] order." (CR

64). Demings then actually suffered a severe stroke, and, prior to transferring

Demings to the hospital, the charge nurse at GNH, after talking to a doctor, that the

medication had effoneously been omitted from the     MAR. (CR 55, 57, 64). As a


                                           2
result, Demings has sued GNH for negligence, alleging that GNH, among other

things

   o     breached their duty to provide her with necessary supervision;

   a     breached their duty to use reasonable care in treating her with the degree of
         skill and learning ordinarily possessed and used by nursing home facilities
         East Texas;

   o     breached their duty to assist her in attaining and maintaining the highest
         practicable level of physical, mental, and psychosocial well-being;

   o     breached their duty to make sure that she received all of her medications
         timely and in the appropriate doses - namely the prescribed Xarelto;

   a     breached their duty to make sure that her' prescription(s) and/or orders were
         accurately transcribed      by the      nursing home        staff   onto her
         charts/records/orders and to properly send her prescription to be filled by the
         pharmacy - namely failing to include Xarelto as one of the medications for
         the pharmacy to fill; and

   a     breached their duty to have a system in place that insures the accuracy of the
         transcription of her prescription order.

                         SUMMARY OF THE ARGUMENT
         The trial court did not abuse its discretion in this case. The reports

submitted by Demings meet the requirements of TBx. Cry. Pnacr.            &   RsNl. CopB

Ann. $74.001 et. seq. (Jones McClure 2015) (hereinafter the "Medical Liability

Act"). The reports provide more than adequate information to: (i.) inform GNH of

the specific conduct that Demings has called into question, and (ii.) provide a basis

for the trial court to conclude that her claims have sufficient merit for the case to

proceed    in the litigation. GNH    seems   to interpret the Medical Liability Act to



                                             -1
require Demings to provide a level of proof that is more attributable to what is

expected at the final trial of this matter. Such is improper. Given the nature of this

case,   Dr. Miller's credentials are more than sufficient to demonstrate that he is

qualified to render an opinion on causation in this matter. Further, the information

provided in the reports on causation makes them not merely "conclusory." The

reports provide reasoned analysis on the matter that provides a basis for causation.

Should this Court disturb the trial court's decision in this case, such would be

effoneous. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex. 2015).

Finally, Demings argues in the alternative that the doctrine of res ipsa loquitor

excuses the requirement of demonstrating causation in this case.

                                    ARGUMENT
        GNH argues that the reports proffered by Demings are deficient under the

standards set forth by the Medical Liability Act, as interpretedby Am. Transitional

Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3 d 873 (Tex. 2001). Originally,

GNH argued that there was a problem with the causation portion of the report

proffered by Pauline Kaper, R.N. ("Kaper") because she is not a physician.

Demings remedied that issue by supplementing that report with the report of Keith

Miller, M.D., who is clearly a physician. The report of Dr. Miller, which          was

supplemental to the Kaper report, addresses and reinforces the standards of care,

breaches of the standard, and the causation in this case, as originally set forth in the




                                           4
Kaper report. Read together, the original report of Kaper and the supplemental

report of Miller fulfill the obligations required by the Medical Liability      Act. For

this reason, this Court should affirm the order of the trial court in this matter

      A. GNH imnronerlv seeks a techn             I dismissal of claims that clearlv
         have merit.

      The purpose of the Medical Liability Act's expert report requirement is not

to have claims dismissed regardless of their merits, but rather it is to identiff and

deter frivolous claims while not unduly restricting a claimant's rights. Ross v.      Sr.


Luke's Episcopal Hospital, 462 S.W.3d 496, 502 (Tex. 2015); Scoresby                   v.


Santillan, 346 S.W.3d 546,554 (Tex.       20Il). A plaintiff asserting a health care
liability claim must serve each defendant with an expert report that includes a fair

summary of the expert's opinions 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 damage claimed." Van Ness v. ETMC First Physicians,                 467

S.V/.3d 140, 141(Tex. 2015) (quoting Tex. Cry. Pnacr.             & RsN4. CooB Ann.
ç74.351(r)(6) (Jones McClure 2015)).       A challenge to the sufficiency of a report

will only be sustained if "the report does not represent an objective good faith
effort to comply with the fstatutory requirements]."     1d   The report constitutes a

good faith effort   if it provides adequate information to inform the defendant of the

specific conduct the plaintiff has called into question, provide[s] a basis for the

                                           5
trial court to conclude that the claims have merit, and does not contain a material

deficiency. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.                  2002);

Samlowski v. Wooten, 332 S.W.3d 404,410         (Tex.20ll).   The reports proffered by

Demings clearly meet these standards. As stated above, the purpose of the expert

report requirement is not to have claims dismissed regardless of their merit, but

rather to identifi'and deter frivolous claims. In the very least the proffered reports

demonstrate that Demings claims rise above the level of frivolous. The purpose       of

the report is not to fully and finally litigate the merits of the case, but rather to

provide a mechanism to make sure the case is not being brought to harass the

defendant.

      As such, GNH was attempting to abuse a process, designed to merely insure

that a claim being brought is bonafide, in order to cause a claim with clear merit to

be summarily dismissed. Such was wholly improper.

      In this case, the trial court found that Demings fulfilled the requirements of

the Medical Liability   Act.   The trial court acted within its discretion in overruling

GNH's objections and denying its motion to dismiss the case. To upset the trial

court's decision in this matter would be improper, just as it was in Van Ness v.

ETMC First Physicíans,461 S.W.3d 140 (Tex. 2015). (Appendix C). In that case,

the Texas Supreme Court reversed this Court's decision reversing the trial court's




                                            6
decision to deny ETMC's motion to dismiss case on virtually the same grounds

and for the same reasons proffered by GNH in this matter.

      B. Dr. Miller is qualified to address causation in this   case.

      In order to provide testimony on causation, the expert must (i.) be a
physician, and   (ii) be qualified to give an opinion under the Texas Rules of

evidence. TBx. Clv. Pnacr. &, Rru. CooB Ann. ç74.403 (a)-(c) (Jones McClure

2015). The expert simply must demonstrate that he has knowledge about the

specific issue that he is testi$ring about and that he meets the requirements of

Texas Rule of Evidence 702 regarding the issue. Broders v. Heise, 924 S.W.2d

148, 152-153 (Tex. 1996). Put another way, the expert only has to demonstrate

that the subject is common to and developed in his or her field or practice. Id.;

Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App.    - Texarkana   1997, pet. denied). In

this case, Dr. Miller unequivocally states that he has familiarity with the standard

of care (and the related assessment of causation) for the treatment of patients with

strokes, hypertension, and related illnesses, and with conditions similar to those

experienced by Demings

      At the time of the care and treatment of Ms. Legatha Demings by
      Garrison Nursing Home and Rehabilitation Center in Garrison, Texas,
      form May 2012 through June 2012,I was familiar with the minimum
      medical standards of care applicable to the assessment, diagnosis and
      treatment of patients with strokes, hypertension, and related illnesses,
      as well as their complications and other medical conditions similar to
      those experienced by Ms. Legatha Demings and described in the
      referenced medical records.


                                         7
        I am familiar with the medical and nursing standards of care for the
        above referenced conditions applicable to Garrison Nursing Home and
        Rehabilitation Center in Garrison, Texas. The minimum standards of
        care for treatment of patients with similar signs, symptoms and
        conditions as Ms. Legatha Demings that are the basis of this report,
        are national standards of care and do not differ from community to
        community.

        From the time of the medical treatment of Ms. LegathaDemings from
        ll4ay 2012 through June 2012, and through the present, I have had an
        active clinical practice as a family practitioner in Center, Texas that
        includes providing care to adult patients in nursing homes and
        rehabilitation centers, such as Ms. Legatha Demings. During my
        career as a family practitioner, I have worked with and or supervised
        medical office stafï, hospital staff, cursing home staff,             and
        rehabilitation center staff, inducing medical technologists and nurses,
        in the care of my patients. I have also participated in the development
        and use of protocols, policies and procedures for the care of patients
        with strokes, hypertension and related illnesses, as well as their causes
        and complications, including adults such as Ms. Legatha Demings.

        In addition, based on my education, training knowledge and direct
        experience, I am familiar with the accepted and expected standards of
        cate, as listed below, for nursing home and rehabilitation center
        facilities who take care of patients with conditions such as strokes,
        hypertension, related illnesses, and their complications, and can offer
        opinions on the standards of care, the breaches of the standards of care
        and the causation of the injuries from these breaches.

        In my medical practice, I routinely rely on medical records, nursing
        records, lab reports, diagnostic tests and images, consulting physician
        reports and other patient data. I consider materials of this type to be
        generally reliable, unless evidenced otherwise, and they are the type
        of materials routinely relied upon by physicians and clinical staff in
        providing care to patients.

,See   Report of Dr. Miller, pp 5-6 (CR 50) (Appendix       B).   Without a doubt, the

prescription of a regime of blood thinner is clearly with the scope of Dr. Miller's


                                            8
practice as a physician that deals with patients that are stroke victims and patients

that reside in nursing homes. It is clearly within the scope of his expertise, then, to

testiSr about the effect of failing to take the prescribed regime of the blood thinner.

Moreover, Dr. Miller goes on to state additional information concerning his "case

specific expertise," that further demonstrates his expertise in treating patients in

nursing homes, expressly including patients that suffer from the "same or similar"

conditions Demings, including illnesses related         to   strokes, hypertension, and

related illnesses, gained through:

1)   His attending, and successfully completing, medical school       classes, and
     residency, that teach the evaluation, diagnosis, cafe and treatment of patients
     with the same or similar conditions as Ms. Legatha Demings, and for illnesses
     related to strokes, hypertension, and their complications.

2) Practical   experience of diagnosing and treating patients with the same or similar
     conditions as Ms. Legatha Demings, and          for   illnesses related   to   strokes,
     hypertension, and their complications;

3) Discussions with colleagues atyearly     conferences, seminars and meetings;

4) Study of technical works routinely published in textbooks, journals                  and
     literature conceming the evaluations, diagnosis, care and treatment of patients
     with the same or similar conditions as Ms. Legatha Demings, and for illnesses
     related to strokes, hypertension, and their complications;

5) My routine discussions and consultations with other physicians who also treat
   patients with the same or similar conditions as Ms. Legatha Demings, and for
     illnesses related to strokes, hypertension, and their complications;




                                            9
6) His routine and regular contact with nursing home nurses, staff and residents
   who take care of patients with the same or similar conditions as Ms. Legatha
   Demings, and for illnesses related to strokes, hypertension, and their
   complications;

7) His knowledge and experience giving lectures and in-service conferences to the
   nurses and staff;


8) His experience service on numerous hospital and nursing home committees;
   and


9) His observation      ofnurses and nurse conduct, supervising residents and
   instructing nurses and residents in the evaluation, diagnosis ) eare and treatment
   of patients the same as, or similar to Ms. Legatha Demings, and for illnesses
   related to strokes, hypertension, and their complications.

Id. at pp. 6-7. Without a doubt, Dr. Miller provides sufficient information to meet

the requirements for reliability under the applicable standards for Texas Rules of

Evidence 702 and 703. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993); Kunho Tire Co. v. Carmíchael, 526 U.S. 137 (1999); Mack

Trucks, Inc.   v.   Tamez, 206 S.W.3d 572 (Tex. 2006); Gammill v. Jack Williams

Chevrolet, lnc.,972 S.W.2d 713 (Tex. 1998); Nenno v. State,970 S.W.2d 549

(Tex. Crim. App. 1998). As a practical matter, it would be virtually impossible to

locate and retain a practicing physician who could truthfully state that he has

specifically studied the specific effects of or had specific training concerning the

specific drug Xarelto, as GNH asserts is required in this case. That is not required

by the Medical Liability     Act.   Instead, Dr. Miller has provided more than sufficient




                                              l0
information that would qualiS him to testiff under Texas Rules of Evidence 702

and 703 on this issue, which is what is required. In this case, Dr.            Miller provided

sufficient information that he has experience in treating patients in nursing homesl

and treating patients that have suffered strokes, which would necessarily include

the medications associated with the treatment of the condition. Dr. Miller's report

contains a long recitation of his experience and qualifications                in dealing with
stroke victims and nursing home patients. For this reason, the cases cited by GNH

on this issue are inapposite,2 and GNH's argument on this point is simply not

persuasive.

       C.   The reports do not simplv provide conclusory statements                            on
            causation.

       Dr. Miller provides a seventeen (17) page, single spaced report. He devotes

four (4) pages of the report to addressing causation. See Dr. Miller Report pp. 11-

15 (Appendix B) (CR       50). Dr. Miller ultimately concludes that:

       As a direct cause, this facility and its staff failed to comply with those
       standards set forth in paragraph numbers: 1 , 2, 3, 4, 5, 6, 7 , 8, 9, 10, 1
        l, 12, 13, 14, 15, 16, 17, 18, 19, and 20.It is my opinion, based upon
       my experience, knowledge, qualifications and review of these records
       that these standards were not followed and the result was that Ms.
I Interestingly, GNH chooses to focus simply on its failure to provide Demings with the
medication. However, it should be noted that Demings has asserted a number of breaches of
duty in this matter, including the duty to provide the proper medication, that led to the demise of
Ms. Demings. See Facts Section, supro, Page 3. These items are clearly addressed by the Miller
and Kaper reports.

2
 Colliri v. Pustejovslry,280 S.V/.3d 456 (Tex. App. Fort V/orth 2009, no pet)   and   HEB Grocery
Co. v. Galloway,2014WL2l52I28 (Tex. App. - Beaumont 2014, not pet).



                                                11
        Legatha Demings was harmed and injured. The failure to comply with
        these standards caused, within a reasonable degree of medical and
        nursing, probability and certainty, Ms. Demings to suffer a stroke,
        extensive hospitalization, rehabilitation, and related complications,
        which compromised her overall health and well-being, and resulted in
        an overall worsening of her condition, unnecessary and preventable
        pain, suffering, mental anguish, and loss of dignity. These injuries and
        illnesses could have, within a reasonable degree of medical and
        nursing, probability      and      certainty, been prevented or
        detected/addressed earlier if these standards had been followed.

See   id. atp. 14 (Appendix B) (CR 50). Dr. Miller did not simply state this opinion

in a conclusory matter. Instead, he devotes pages 11-L4 on providing the basis for

his opinion, which includes, but is not limited to, the following matters:

o   In the hospital, Ms. Demings was diagnosed as having had a cerebrovascular
    accident (CVA) or stroke. Ms. Demings was discharged from the hospital on
    May 25,2012.In his discharge summary, Ms. Demings' physician documented
    that this patient's stroke was of ". ..ischemic origin, most likely caused by her
    atrial fibrillation.

a   In order to treat Ms. Demings' condition and prevent further          strokes, her
    physician discharged her from the hospital on a blood-thinning medication,
    Xarelto. This physician stated in his discharge summary that Ms. Demings
    would be "...started (on) Xarelto for her anticoagulation to avoid further strokes.


a   On May 25,2012, Ms. Demings was discharged from the hospital and admitted
    to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas for
    further recovery and rehabilitation. According to Ms. Demings' physician, this
    resident had begun to make some improvement as evidenced by improvement
    in her speech and increased movement of her left side.

o   After being in the care of Garrison Nursing Home and Rehabilitation Center for
    less than two weeks, Ms. Demings became "confused, combative, and unable to
    communicate". On June 8,2012, she was taken by emergency medical services
    back to Nacogdoches Medical Center for emergency evaluation. There a


                                           l2
    computerized tomography (CT) scan of her head revealed an ischemic
    infarction of her brain consistent with a stroke.

a   One of Ms. Demings' consulting physicians, a neurological specialist,
    documented in the medical record that Ms. Demings had suffered a
    "Cerebrovascular accident extension with newly developed global aphasia,
    aphasia and left-sided flaccid paralysis".

a   Ms. Demings remained in the hospital for 12 days, and was discharged on June
    20, 2012. At the time of her discharge from the hospital, Ms. Demings'
    physician noted in his discharge summary that this patient's overall medical
    condition had deteriorated as a result of her stroke she suffered at Garrison
    Nursing home and Rehabilitation Center, to the point that Ms. Demings was
    made a do-not-resuscitate status such that if she experienced a cardiovascular or
    respiratory failure, she would not be intubated or placed on a ventilator or
    breathing machine.

a   A  "Medication Error Report" made by the nursing staff of Garrison Nursing
    Home and Rehabilitation Center on June 8, 2012, documented that from the
    time Ms. Demings was first admitted to this facility on May 25,2012 until the
    time of her stroke and transfer on June 8,2012, Ms. Demings was not given her
    blood-thinning medication, Xarelto as ordered by her physician. This
    medication had been ordered to be given in a dose of 20 milligrams (mgs) at
    bedtime daily.

a   This same report stated that "res. (resident) arrived after 5:00 pm on a Friday.
    This medication (Xarelto) was ordered along (with) all other meds from nursing
    home pharmacy         nurse transcribing orders had to have all meds written on
                      -
    pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be
    delivered that night".

o   The Medication Error Report went on to document that a nurse at this nursing
    home "failed to transcribe this med (medication) to MAR (Medication
    Administration Record)"... "an oversight". A question on this same form asked
    "Could the error have endangered the life or welfare of the patient?" The
    responsible nurse completing the form answered the question with "Makes her a
    higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."




                                          t3
a   On a subsequent hospitalization on August 5, 2012, in his pre-operative history
    and physical, one of Ms. Demings' physicians documented what had happened
    to her during her stay at Garrison Nursing Home and Rehabilitation Center
    from May 25,2012 through June 8, 2012. This physician stated that prior to her
    first admission to this nursing home, Ms. Demings "was found in atrial
    fibrillation. She was started (on) Xarelto. Apparently... did not follow-through
    in the nursing home, and she had.. strokes, disabling, with severe
    She was rendered substantially disabled."

a   This physician also documented in his discharge summary of this August 5,
    2012 hospital stay, the importance of a patient such as Ms. Demings who
    suffered with atrial fibrillation, to always remain on a blood-thinning
    medication such as Xarelto. He stated that "She is to continue with Xarelto.
    Instructions were given to the family to make sure that this medication is never
    stopped."

o   The staff of Garrison Nursing Home and Rehabilitation Center in Garrison,
    Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for
    the development of future strokes due to her past medical history which
    included hypertension, atrial fTbrillation, a previous   TIA   and aprevious stroke.

See id. at pp.   tI-14 (Appendix B) (CR 50). What is more, Dr. Miller reviewed        the

report of Kaper, to which his report is supplementary. In Kaper's report, there is

also a discussion concerning causation:

       Causal Relationship Between the Fail ure and the Iniurvl}{arm

       Xarelto is a blood thinner, the precise purpose of which is to reduce
       the risk of stroke in patients who suffer from atrial fibrillation.
       Defendant(s) failed to provide Ms. Demings, with the Xarelto for
       fourteen (14) days . She then had a severe stroke, which would have
       in all reasonable medical probability been avoided had Ms. Demings
       been administered the Xarelto, the purpose of which was to prevent a
       stroke.

       Further, the Medication Error Report generated by Defendant(s)
       clearly recognizes the problem of not administering the Xarelto to Ms.
       Demings Checking rr\Esrr to the question of whether the "error"


                                           t4
(failure    to administer the Xarelto to Ms.   Demings), "could have
endangered the life or welfare of the patient," the Director of Nursing
stated:

          Makes her a higher risk for stroke in view of her diag. of
          atrial fibrillation (not taking it) Taking the medication
          makes res. higher risk for a bleed.

Atrial fibrillation        the heart to pump irregularly, and the
                       causes
concern is that pooling blood can clot in the upper chambers of the
heart. These clots may then sometimes travel through the body to the
brain, with a stroke being the result. As a result, many patients
diagnosed with atrial fibrillation are prescribed a blood thinner, one of
which is Xarelto,

Xarelto is designed to block the enzyme called Factor Xa. Factor Xa
is the activated form of the coagulation factor thrombokinase, known
eponymously as Stuart-Prower factor. Factor X is an eîzymq a serine
endopeptidase, which plays a key role at several stages of the
coagulation system. Inhibition of Factor Xa interrupts the intrinsic and
extrinsic pathway of the blood coagulation cascade, inhibiting both
thrombin formation and development of thrombi, Factor Xa is
inactivated by proteinZ-dependent protease inhibitor (ZPl"), a serine
protease inhibitor (serpin). By inhibiting Factor Xa in this way,
Xarelto is able to inhibit the dangerous blood clotting that can be a
result of a patient suffering from atrial fibrillation:. Xarelto is well
absorbed from the gut, and maximum inhibition of the Factor Xa
occurs four hours after a dose. The intended effect lasts approximately
8-12 hours, but Factor Xa activity does not return to normal within 24
hours.

Given that Ms. Demings had previously suffered a mild CVA, likely
as a result of clotting caused by atrial fibrillation, it was extremely
important that she be placed on (and maintain) a regime of medication
to reduce blood clotting. That is why Ms. Demings' treating physician
prescribed the Xarelto. Ms. Demings entered Defendant(s) facility to
rehabilitate herself. The family reports that she was doing very well,
that she could communicate well, and that she was fully cognizant.
According to the family, Ms. Demings was needing to gain strength in
her hand. It was only after she stopped taking the medication that she
suffered another, this time much more sever CVA that, according to


                                     15
      the family totally and completely incapacitated her. The medical
      records on June 8, 2012, indicate that any blood thinner that
      Defendant(s)had huniedly administered to Ms. Demings had not
      taken effect in time to stave off the CVA.

      Since June of 2012, while taking the Xarelto, Ms. Demings' medical
      records demonstratethat she has not suffered another CVA.

See Kaper Report 3-a (Appendix    A) (CR 25). The information contained in these

two reports provides adequate information to inform GNH of (i.) the specific

standards   of care at issue, (ii.) the specific conduct of GNH that Demings       has

called into question, and (iii.) how GNH's conduct caused injrrry to her. Further,

the information provided a basis for the trial court to conclude that the claims have

merit, and are they are not frivolous. For these reasons, then, the statements on

causation as provided by Kaper and Dr.   Miller    are more than sufficient to meet the

requirements of the Medical Liability   Act. GNH seems to interpret the Medical
Liability Act to require Demings to provide a level of proof that is             more

attributable to what is expected at the final trial of this matter. Such is improper.

The reports provide reasoned analysis on the matter that provides a basis for

causation in this case. The trial court found the reports to be sufficient and denied

GNH's objections and motion to dismiss. Should this Court disturb the trial

court's decision in this case, such would be erroneous. See Van Ness v. ETMC

First Physicians,46l S.W.3d 140 (Tex. 2015).




                                         t6
      D. Alternativelv. this is a ma tter of res ínsa loouitur.

      For the reasons stated above, the expert reports that were furnished were

sufficient to meet the requirements of the Medical Liability Act. To upset the trial

court's ruling would be erroneous. See Van Ness v. ETMC First Physicians,46l

S.\M.3d 140 (Tex. 2015). Alternately, however, Demings also respectfully asserted

in the trial court that an expert opinion in this case on causation is not required in

this matter because the doctrine of res ipsa loquitur applies. Res ipsa loquitur \s

applicable when the following two circumstances are present: (1) the character      of

the accident is such that it would not ordinarily occur in the absence of negligence,

and (2) the instrumentality causing the injury     is shown to have been under the

management and control of the defendant. See Haddock v. Arnspiger,793 S.W.2d

948,950 (Tex. 1990).    Res ipsa   loquitur is a rule of evidence by which negligence

many be inferred, it is not a separate cause of action from negligence.     Id.   With

regard to medical malpractice cases, res ipsa loquitur applies to those cases to

which it had been applied as of August 29, 1977, the effective date of the Medical

Liability   Act. Tpx. Crv. Pnacr. & Rrv.        ConB Ann. ç74.20I (Jones McClure

2015).   Res ipsa loquitur remains applicable    to medical malpractice   cases where

the nature of the alleged malpractice and injuries are within the common

knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at

951. The Haddock case describes examples of areas where res ipsa loquitur has



                                           T7
been held   to apply to medical malpractice claims: negligence in the use of
mechanical instruments, operating on the wrong portion of the body, and leaving

surgical instruments or sponges within the body.        Id.   This is the sort of case in

which res ipsa loquítur applies. GNH clearly asserted in its own report that the

failure to administer the Xarelto to Demings "makes her a higher risk for stroke in

view of her diag. of atrial defibrillation." No expert is needed   - causation is shown
directly from GNH's own mouth. Put another wây, GNH, by failing to provide the

Xarelto to Demings caused her to suffer from the exact malady as what the

medicine is intended to prevent    -   a stroke. That is by definition res ipsa loquitur

As such, Demings would alternatively argue that expert testimony on causation is

not even necessary in this case.

                         CONCLUSION AND PRAYER
      WHEREFORE PREMISES CONSIDERED, Appellee Legatha Demings

respectfully requests that the Court deny Appellants Garrison Nursing Home and

Rehabilitation Center's and Garrison Nursing Home, Inc.'s appeal in this matter,

affirm the order of the trial court in this matter, remand this matter to the trial

court, and grant to her any and all further relief to which she may be justly entitled.




                                             18
                                     Respectfully Submitted,

                                     L¡.w Onnrcn on SrrpHnN SHrnns, PLLC
                                     Attorney and Counselor atLaw
                                     123 San Augustine Street
                                     Center, Texas 75935
                                     Tel. (936) s98-30s2
                                     Fax. (936) 598-3031
                                     stephen@shireslawfi rm. com

                                     By: /s/ Stephen Shires
                                     \il.Stephen Shires
                                     Texas Bar No.50511894
                                     Attorney for Legatha Demings

                         CERTIFICATE OF SERVICE

      This is to certi$ that on the 9th day of November,2015, atrue and correct
copy of the above and foregoing document was served on the following in
accordance with the Texas Rules of Appellate Procedure:

Mr. David W. Frost
1121 ESE Loop 323, Suite 200
Tyler, Texas 75701
Facsimile (903) 58 1 -3701
                                                 /s/ Stephen Shires
                                                 Stephen Shires


             CERTIFICATE OF' WORD COUNT COMPLIANCE
       I certifu that the word count of this Appellee's Brief is 5801 words. I relied
on the word count function of my word processor to determine this count. I certiSr
that this brief compliance with the typed-volume limitations of Texas Rule of
Appellate Procedure Number 9. It has been prepared in proportionately spaced
typeface in 14 pt. Times New Roman font.

      Dated: November 9,2015

                                       By:       /s/ Stephen Shires
                                                 Stephen Shires


                                            I9
                            INDEX OF APPENDIX
A. Expert Report of Pauline Kaper
B. Expert Report of Dr. Keith Miller
C. Van Ness v. ETMC First Physicians,46I S.W.3d   140 (Tex. 2015)

D. Tpx. Ctv. Pnacr. & Rstvt. Coop Ann. ç74.201(Jones McClure 2015)
   Tsx. Ctv. Pnecr. & RBIr,l. Coos Ann. 574.351 (Jones McClure 2015)
   Tpx. Cw. Pnacr. & Rsivt. Coop Ann. ç74.403 (Jones McClure 2015)




                                       20
       o


Append 1X
                 DISAßTLTTY NHHDS
                                      116 Tenaha Street
                                   Center, Texas 15935
Phone: (936) 59i-8900                                                Pauline Kaper, R.N.
Facsimile:        (936) 598-2300




                                               JanuarY 10,2014
Mr, Stephen Sirires                      '\
Law Office of Stephen Shires PLLC
403 Nacogdoches Street, Suite        1

Center, Texas 75935

           RE:    Legatha Denmùngs v. Garrison Nursing Home and Relmbilitation Center, et. al,,
                  Cause Number CÍ+¡O¡ 19; in the District Court of Nacogdoches County, Texas


Dear Mr. Shires,

        In response to your request for me to review the above-matter, the foliowing
                                                                                       is my report,
It is my r:lcle¡siandin[ ttrut yóu hnvc" instituted suit against Defendants Ganison Nursing Home
an¿ Ránabilitatior¡. Ceirter and Ganison Nur:sing Home, Inc., alleging that
                                                                                they, through their
directors, officers, employees, and/or agents, committed negligence (and potentially gross
                                                                                              tnedisnlio¡:l to
neglige.rroe) against you]: ciient, Ms. Legalhtr Ðerrlnings, by fai.liilg Tr¡ adnünister
hei tliat had been prescribcd 1o her by her treating physician. \iou allege thal sl,le {.lien suff'ered a
severe stroke that the said medication was intendecl to prevert. It i.s rriy furthe¡: unrlc.lslnnclin¡¡
that you are assertí¡g tJrat ìJeft¡clant(s) also conlu,i{ßcl negligencc by failÍng
                                                                                       to itave a ¡:ltlcetlttre
in piacc to insure tliat rrrrors ir: î:.anscription of ¡:eço¡:tls (as was ilte ca,se in thj.s maller) do nnl
        ardlor are iclentified ancl coueclecl in n timely rnârJticï. Thu fbllorl'irrg consti{irtes m.y
'sáor
o1:inion as to the relev¿ult standard of care govcrrrirrg nuruitrg honre concluct, how Def'end¿rrts
                                                                                                proximately
violate,cl their duties/stanrJarcl crf care to Ms. Dcmmings, and how those violations
caused Ms. Demmings' injurY.

A   nnlicablc Stantlard ol' (-*arc

           In general, nursing facilities have the following duties, among others, as a part of their
applicable standard of care:
      1.   to provide lcsidenls tliith rinrely ¿urd accr.uate care ¿Ì:ìsesËil1eüts ¿utcl necessal¡' srqlcrvision;
      2.   to use ïeasonable c¿ire in trealing resiclc¡rts rvith the cie'gree ol, sk"ilJ ancl learuing orrlinarily
           possessed and used by nursing home facilitics in the salrc ür sirnilar locality; nrrcl



                                                                                                                  I
                                               and rnaintaining the higirest practicable level
                                                                                               of physical'
       3. to assist residents in attainiirg
           mental, and psychosocial well-being'
                                                                  parlicular duties that                     are
           Included within these general duties are the following
particularly relevant in this case:

       o   the duty to make sure that residents receive all
                                                            of their medications timely and in the
           approPriate doses;
                                                                             arrcì/Or: Úl'clers are acculalely
       o   the rluty to make sure that the rcsirienl,rs ¡:rescliption(s)
                                                                          cha.rl,n^/reoortis and properly sent
           transcribed by the rur::sing home stalf ontr¡ ilìe residctrt's
           to be f,riled bY the PharmacY; and
                                                               accu¡acy of said tLanscriptions'
           the duty to have a system in place that insures the
       "                                                                    til.   to   N{.tet
M                        ch                    d
Slatrdnl'tls ol'Care
.L


                                                                                     Nursing Home and
           In this  matter, Ms. Demrnings was a resident at Garrison
                                                                           she  rrad bee' rliagnosed with
r{e}nbilitati*n center for the purpose of seeking rerrabiritatior:.
                                                                    carciiovascnlar ¿ccident ("cvA" or
arrjar fibriJ,ration and p."uio"Ëry suffered a milã iscrrcnric
,*stroke,,), and as a result, her ph.yrician had prcscriboel xarelto (20nrg) to be Hkcn to reduce the
                                                        greltcr a¡rd much mole scvei:e) CVA' The
rislc that she would suffer atrr:ther (and possibly
n:cclicalicxr *u, prup*,ìf oraerert by Dr. Ilen.Dis
                                                        ir*llrnun. I-}Orryer¡¡,r. i1** tr¡ ail err:(.r: in the
h:anscri¡:tir:n of the ,oa*í Uy a nulfÌe ín the cnrploy
                                                        of De'f'errdar:f(s)' thc Xarclto was nilt included
                                                                  for Ms' Demmings' According to the
in the list of medications that Defendant(s) wås tó provide
 Medication Error Report generated by Defendant(s):
                                                                              hospital)] - Ies'
               Error in transcription of order [(written doctor's order from
                                                                       ordered along [with] ali
               arrived ater l,oolp.m. on a Friday. This medication was
               other meds nnr,, riu,:si,rg home ¡rl ur,'.,,nry - nur.se
                                                                        lrarlscrillìng cUrlers had to have
               all meds            1rh*ärruoy oirJer sheets and
                                                                     faxcti itt 1o 1r¡nrruacy by 6 p'm' so
                        "uitt*n ",
               ¿*v-"ãrrá te deliverea      thai night. Nurse transcribing faiied to transcribe this
               med. to MAR' Al oversight.
                                                                                                 orders are
     At that time, Defendant did not appeã to have a system in place
                                                                                to. insure
                                                                                           -that    for Ms'
     i"ranscrihecl proirerly, Å.s a result, ihe pharL,racy did
                                                               not frll a prescriptiol.for Xarelto
                                                                                 did not administer any
     llennri:rgs, ar:cì from N,l;ry 25, ZOiZ, through iune,S, 2-012,Defendant(s)
     Xarelto tä lr¿s. Demmings, as her doctor had prescribed'
           'Further, it appears from that same Medication Error Report
                                                                          tha! al some p-oint on June 8'
     2012, after O"f"oa^tttqs) realized that they made a mistake
                                                                     in not giving Ms. Demmings the
                                                                   of the medication (60 mg) in a very
     Xarelto, fufr. n"*-ioËr',h"r, was adminisiered th¡ee doses
     ,frot pétioa of time. This creates a veïy dangerous situation for Ms'
                                                                           Demmings'

                onJune8,20!2,Ms.Demmingssufferedasubsequent,verySevefeCVA'

           For reasorrs that sh6¡.lcl be iqr¡rarent on ll:ßir face, it is irn¡:crntive
                                                                                        thtt' nnrsing holnes
                                                         nmount  to  its vesidsr¡'ts'  cle::tninly, this i's an
     administer the prr:per rneiiioation i,:r'the proper

                                                                                                                   2
                                                                              even to a healtliy
important issue for all medical personnel, including pharmacists, because
                                                         dose) rnay be extremely   harmful, toxic
p"rron, ingestion of the wt'ong mådication (or the wÏ91g
and in some cases even lethal. This concern is magnified exponentially   for residents in nursing
                                                                          Further, the failure to
hornes, many of whom are already in a weakened physical condition'
                                                                                  can complicate
continue a rágime of medication that has already been introduced into the body
the pliysical l::oblems that the patient suffers from, and may  cause  problems   with  any other
medications that he or she is taking.
                                                                                          that his or her
        Therefore, it is crucial that when a new resident is admitted to the facility
                                                          it comes.to   prescriptions  and  medications'
information be properly transcribed, especially when
                                                                            omitted,        could  lead to
For exampl., ,ho.,íd information about an allergy to a medication be                  such
a very dangerous situation. The exact same thing is true here where
                                                                           the enor in the transcription
of thå order/records caused Defendants to fail to     administer   a medication  to Ms. Demmings, the
purpose of which was to prevent any further (or more severe) strokes'          As  such, it is extremely
irnportant that ilie facility tav" u proô"rr in piace io verify that the transcription
                                                                                       is correct, or that
any mistake be caught aå quickly as possible      and fixed.  No  such process  existed in this case, and
as a result of Ms. Demmings .toi tuking the Xarelto, she suffered
                                                                       a severe stroke  while  in the care
of Defendant(s).

C                                                 ¿rnd   th

        Xarelto is a blood thinner, the precise pulpose of which is to reduce the risk of stroke in
patients who su1'¡sr l1:::r nlrjal fib¡:illaiion. Def'erxiuurt(s) f'ai.led ln providc Ms. Dentnìngs
                                                                                                        rvith
the Xar.eito for f:i:uïtcen (14) clays. She thsn lt¿lci a severe sir<lke,        rvi¡ich would  liavc' in  all
                                                                                               tltc Xarelio,
reasonable medical probabiliiy been avoided had \4s. Denrmîngs bee¡: ¡.c1minjsfi:led
the pu¡pose of which was to plevent a stroke'
        Further, the Medication Error Report generated by Defendant(s)          clearly recognizes the
                                                                             r(111{)' to the questior: <lf'
  ro¡lenr of not -adr¡inis1elirlg the Xarclto tr: Ms. Demnrin¡1s. Checl*"ing
rvhelher
'        the ,fcrro¡'', ({hÍlure to atlmi:ri.ster ti]s X.ar'{,!lto To il4s. Deni:Ïings), "could havt:
endangered the iife or welfare of the patient," thc Directal'of Nutsing $ta1'ed:

         Makes her a higher risk for stroke in view of her diag. of atrial fibrillation (not
         taking it) Taking the medication makes res, higher risk for a bleed'

         Atrial fibrillation causes the heart to pump irregularly, and the concern is that pooling
biood can clot in the upper chambers of the heart. These clots may then sometimes travel
ti:uo¡gh the body to fliô b::ain, with a stroke being lJ:e result. As a result, rn¿ìny patients
clingnTrsed with a;id fi.]:rillation are prescribed a blood thinne"r, one of r'r'hich is Xa::elto.

          Xarelto is designed to block the enzyme called Factor Xa. Factor Xa is the activated
 form of the coagulatión factor thrombokinase, known eponymously as Stuart-Prower factor.
 Facto¡ X is an erTzyme, a serine endopeptidase, which plays a key role at several stages of the
 coagulation systcm. Tnhibition r¡l Faclor Xa intcr:rupts the ilrtr:insic ancl exü"iÛsic pzrthrvay of tlie
 i:to|d coagulation cascerde, inhilritir:.g both tirrornbin forrnation atrd developnent of thlomhi'
 Factor Xa=is inactivated by protein Z-dependent protease ir:ldllitor
                                                                            ("ZpI"). a serine protea$e
 irllibitor (scrpi6). ey infriúiririg Factor Xa in this way, Xarelto is abler to inllibit the detnge.rous
 blood ctoit¡rg that can be a result of a patient suffering from ¿rt¡:ial fibrillarion. Xare"lto is well
                                                                                                                 3
absorbed from the gut, and maximum inhibition of the Factor Xa occurs four hours after a
                                                                                         dose.

The inte¡ded effect lasts approxirnateiy 8-12 hours, but Factor Xa activþ  does not  return to
normal within 24 hours.

         Given that Ms- Demmings had previously suffered a mild CVA, likely as a result of
clotting caused by atrial fibrillation, it was extremely irnportant that she be placed on (and
maintaìn) a regimã of medication to reduce blood clotting. That is why Ms. Demrnings' treating
plrvsiciaá pr:escr.ibccl the Xarelto. Ms. l)cimnings entareel De'ftnclcnt(s)' facility.ttl rchnbilit¿rte
Treiself. Tire fan:ily reports that she was doirr,g verlr çsll, thnt she cnuJçl ocunnlunic¿tl.e r,r'ell, ancl
that she was ful1y cognizant.      According to the farniJy, M.s. J)en:ntings was r:ecclittg ft: gitin
                          -
strength in her hãnd. It was only after she stopped taking the rnedication that she suffered
unoth-"r, this time much more sever CVA that, according to the family totally and completely
incapacitated her. The medical records on June 8,2012, indicate that any blood thinner that
t)efcncta¡t(s) had huniedly administered to Ms. Demmings had not taken effect in time to stave
r:ff the CVA".r

         Since June      of   20!2, while taking the Xarelto, Ms. Demmings' medical                        records
demonstrate that she has not suffered another CVA.'

$UUttlt.r,¡ f.llxtt"l.{.()Hi¡li'ol\
       Defendant failed to meet its applicable standard of care in this case. Defendant breached
the general and specific duties that it owed to Ms, Demmings. Namely, Defendant:

    .    breached. its duty   to provide Ms. Demmings with necessary supervision;
    .    breached its duty     to use reasonable        care   in treating Ms. Demmings with the        degree   of
         skili   and leaming ordinarily possessed and used by nursing home facilities East Texas;
    ¡    breached its duty to assist Ms. Demmings in attaining and rnaintaining the highest
         practicable level of physical, mental, and psychosocial well-being;
     .   breached     its duty to make swe that Ms. Demmings received all of their                    medications
         timely and in the appropriate      doses   -   nameiy the prescribed Xarelto;
     r   breached its duty to make sure that Ms. Demmings' prescription(s) and/or orders were
         accurately transcribed by the nursing home staff onio her charts/records/orders and to
         properly send her prescription to be frlled by the pharmacy - namely failing to include
         Xalelto as one of the medications for the pharmacy to fill; and
     ,   breached its duty to have a system in place that insures the accuracy of the transcription
         of Ms. Demmings' prescription order.
        Defendant's breach of its duties (as described above) in this case directly and proximately
 caused the injuries suffered by Ms. Demmings -namely the stroke she suffered on June 8,2QI2.
 What makes matters even worse is that the family members state that they repeatedly informed

 t ln fact, administering such a large arnount of Xarelto in such a short period of time after uot giving it to Ms.
 Demmings for two weeks was likely defrimental to Ms. Demmings, and it likely also contributed to causing the
 severe  CÍA.    If this was done without the express direction of the treating physician, then this wouid constitute
 another violation of the standard of care by Defendants.

                                                                                                                     4
                                                                               the Xarelto' and
the nursing home staff that Ms. Dernmings was supposed to be receiving
                                                                             to see if a mistake
ufparently"no one in Defendant's organization decided to check the records
had been made. It was only whãr Ms. Demmings was             being  taken  to  the hospital that
                                                                     Error Report  generated by
Defendant(s) realized their mistake. According to the the Medication
Defendant(s):

        How was the error discovered? Prior to transfer to Hosp. Chg. Nurse_When
        talking [with] Dr. coffman realized medication not on MAR & reported
                                                                             to c'
                 'When?
        Hughes.         9:00 AM 618112.

        i have developed the foregoing opinions after reviewing:

    n   Various medical records of Ms. Demings, specifically including,
                                                                        b{ ryt limited to,
                                                                      22,2012, and June 8,
        records from Nacogdoches Medical Center foi admission on May
        2012;
    .       .,Medication Enor Report" generated by Defendant(s); and
        The
    r   Other information provirled by Ms' Demmings' family'


Date:   JanuarY    I0,20I4

                                                                       Pauline Kaper,


                                                                                 Ischemic Attack ('TIA") on March 3,
¡
  Although, it appears that Ms. Demmings may have suffe¡ed a mild Transient
Z-Of ¿, ulîrórt t*o CZ) years later. The farnily reports
                                                         that all symptoms of the TiA had resolved themselves by the
time Ms. Demmings reached the emergency room'




                                                                                                                       5
                                                                                      Medication Error Report
                                                                                                                                        Date of Report


                                ûu'.rx,^                    S
      Patient
                                                                                                                         P    hysicia n
                                                                   st

     Room No                                                                  Date   of Error                                                   Time   of Error                         .l\
               M(
     Medicat ion Give
                                                                                                     Do       tven                                                Rte. of Adm

     What was Ph                                                                                Ê
     What was your source         of information regarding the medicat¡o                       ? f] Kardex E
                                                                                        iven                         cr'urt             f-l   Verbal order                          0
 .   Reason     for making                                                                                a                             YeÞ,




     Cou                                       the   l¡
                                                                 PA     1
                                                          n or welfare of the pat
                                                                                          'n{,( /,


                Yes            f] ruo        Explain




                                'r
 What is the actual effect of the error made on the patient?




                               scovere
                                                                                                                                                                                ã
                                                                                        '¿>
                                                                                                                                        When                 d2
Who notif ied the physician?
                                                                                                                                         When?

 Hes he seen the patient since the error was made7                      úr",             n¡ro
What precautions can you take to prevent a similar error




     nð    re¡ Nurse     mð          ettot                              o                                 gnature                   o         urslng



S¡9n¡t U         Ph ysic lan
                                                                        D   ate



f orm 3117             BRtcGS, oes Mo¡nes, towa 50306                       PRINTEO IN U.S.A                                                                 MEDICATION FRRNR RtrÞñT¡T
Curriculum Vitae of

LOIS PAULINE I{APER, R.N.
B7B County Road
|oaquin, Texas      7   5954-33L8
Phone 936'248-45t4

JltilSLo_NAt;
        Marital status       Married.
        Date of Birth:      August 3,1939.

ED"lJç,ÁTION,I
        Alvin funior Colìege
        August t97Z - Associate inApplied Science Degree
        San Iacinto Junior College
        May I979 Nursing Home Administrator #4392

LICENSE:
         Registered Nurse #2'28t64
         Nursing Home Administration

T'liAclTI,l\1ft.
         August - November lg}4lnstructor Alvin communify college
         Meãication Administration course to certify Medication Aides

UXJIIil};W
         A-¡¡eust   lq72 - Itt
         Registered Nurse at U.T.M.B. in Gaiveston, Texas

         ¡:ø  -         ¡¡*1979
         Iulv ll974":.Mav
         bii".totof Nursing at Manor Care - Texas City, Managed 40 nursing facility
         employees and staffing for a 110 bed nursing home.

         Ma¡' 197? - Itlcvenrbel:l
         Administrator at Manor Care - Texas City. Managed 100 empioyees.
         Operated the facilÍty within budget. impìemented a safefy prog{am which
         réduced lost time accidents. One year with no accidents. Reduced the aged
         accounts to a minimum. Developed an incentive plan and reduced sick
         time to almost zero, Developed policies and procedure manuals, During
         my admÍnistration, the facility maintained a Superior Rating with the Texas
         Department of Health. Increased the private pay census to 50% and had a
         waiting list for admissions.
                 9!3 ;- Xe!:çt g¡lil!-q ¡-r-ll y' I h e S l- a tc Il r¡ a-r-dlf'NUr¡iug$ul
                                                                                           e,:
Ss   p t c¡1i¡elå-1
Manor Care Nursing H;r; received a direct hit by Hurricane Alicia'
                                                                                              My
staff of twenty-two ãmployees and I cared for over ninety residents'
                                                                                            State

Board of Nursing necognized my facility for the                      job  that  we did during the
hurricane.

            t8 3 --D ecq ÌlrJ:E: !lj¿84
D elcem h f¡*'!.
R%irt.;d Ñu.r. Coordinator of Home Health ServÍces at Memorial Hospital
of Galveston County. Employed to start up a new department of Home
Health Service, Coårdinating services in the home for NursÍng, Physical
                                                                   of I and
Therapy, Occupational Therapy and Speech. Coordinated a staff
*orkud wit thã doctors and S-ocial Services to receive referrals. Developed
forms, policies and procedures manual to develop the Home Health
Department.

I_u¡sjggå:U.a rshlåB-6*
'itot"
       of Texas v Autumn Hills Convalescent Center, Inc'
                                                                  to work
Requeited by the Assistant Attorney General of Texas, David Marks
witir the prosecution of the staff and management of Autumn Hill Nursing
Home. ihe care concerned the multiple deaths of nursing home patients
but specifically Elnora Breed, As reported, "ln November L978, Mrs' Kaper,
R.N. a nursing consultant was hired by Autumn Hills NursÍng
                                                            Home after the
state health ãepartment found problems at the home. Mrs' I{aper was to
create and put.in place a plan of correction for the problerns' Mrs' Kaper
consulted with the staff and patients for three weeks and the state came back
and the problems *"ru ,eroÍved at that time." Mrs. I(aper worked with the
special prosecutor during the six month trial where she testified multiple
times cbncerning the murder case. The .State of Texas v Autum Hílls
 Convalescent Center, Inc. revolved around the widespread care
                                                                          and
deprivation and harm caused by a corporation's financial decision to cut
esiential services and supplies in order to maximize profits.

 J¿rntl¡rr.v 1.9tF - L9B6
 Mu.,o. Healthcare, lnc,: Asked to trouble shoot for a nursing home that
 was in trouble as Administrator for Clear Lal<e Care Center in Webster, Texas'
 This nursing home was in serious trouble with multiple deficiencies and
 placed on vJndor hold by the state of Texas, Brought facility out of vendor
 hold in forfy-six daYs'

 Agssåt-l-9$ú:l.u-us,l-995
 M".,o. Healthcare, Inc. Began as a trouble shooter for the twenty nursing
 homes in Texas, Arkansas, Oklahoma, and New Mexico. At this same time
 was NursÍng Home Administrator for Pine Grove Nursing Home in center,
 Texas. Managed 80 employees. Operated the facility within budget'
  1-10 Bed skilled facilitY,
tuucl-9tì{l-
Received Nursing Home Administrator 0f The
                                           Year Award frorn the Texas
Board Of Nursing Home Administrators'

lru$-f9 i.ü-:Awust ? 0-il 5
;,1"*î"g H"-" e¿*inîritttor       of Green Acres Nursing Home Center, Texas'
f"frn"gãa gO emplo;;s. Operated the facility within budget'
                                                            L09                 Bed

skilled facilitY.

Ian\rary ?Û06 - Il'qstl¡rf
fWii*ì,*¿                                           Inc"
               Nut:se em¡-rlr:yed by Disability Needs'
Wo'rl< rlirectly wifli iUfutt*yt anil         Pamela Cunningham non'attorney
dis ability rePresentative.
                                                              disability clients that
Maintain aìl medical records received on the B0 to 100
are represented at anY given time'
prepar.e an outline         the ciictll and his or her physical and mental status'
witilin the outline "f"¡rit
                      read and write about all medical records on each
                                                                                  and
                                                         outline  the  reason for the
every visit. From the medical records state in the
                                                                     and the  plan  of
visit, the diagnosis, the current vital signs and description,
action for that client'
                                                             required by the Texa¡
Meet with every client and prepare all documentation
                                                           Discuss by phone with
Disability Determination Serviies in Austin, Texas.
 physicians and meáical personal who are making thtl
                                                              clcr:isions concerning
                                                            they    have all current
ifrå mectical conditior, ãf th. client to make sure
 documentation.
Appendix B
                                                 NO. C-14-30319

LEGATHA DEMINGS                                          $   IN THE DISTRICT COURT
Plaintifl,                                               $
                                                         $
v                                                        $   145th   JUDICIAL DISTRICT
                                                         $
GARRISON NURSING HOME AND                                $
REHABILITATION CENTER AND                                $
GARRTSON NURSING HOME, INC.                              $
Ðefendants.                                              $   oF N.A.COGDOCHES COUNTY, TEXAS

                            PI,AINTIFF'   S SUPPLEMEIÍ.TIA.LITXPERT         REPORT

           COMES NOW Legatha Demings ("Demings"                       or "Plaintiff') and files this her
Supplemental Expert Report in this matter, and in support thereof respectfully shows the Court

as   follows:

      l.   On April 6,2075, the Court heard Defendants' Motion to Dismiss, wherein Defendants

           assefted that the expert report proffered by Demings in this matter was deficient.

     2.    On April 6,2A15, the Court signed zurd entered an Order (filed on April 7,2015) that

           denied Defendants' Motion to Dismiss, but found that the expert report was deficient in

           that   "it   was not created by a physician as required by Section 74.351(r) (5) (c)."

     3,    The Court granted Demings a thirty (30) day extension to cure the deficiency pursuant to

           Section 74.351.

     4.    Demings now supplements the expert report that she previously filed in this matter with

           the attached expef report of Keith E. Miller, M.D., which, among other things, addresses

           causation in this matter. Dr. Miller's report addlesses all the issues of the case, cures the

           deficiency iclentified by the Courl, and is supplemerfal to the expert report previously

           filed by Plaintiff in this matter.

     5.    Dr. Miller's expert report and curriculum vilae are attached hereto and incorporated by
       reference herein (and in the previous expert report from Pauline Kaper) for all pulposes

       as   if recited verbatim.

                                          Respectfully Submitted,
                                          Lnw Ornce oF   STEPHEN SHnes, PLLC
                                          Attorney and Counselor at Law
                                          123 San Augustine Street
                                          Center, Texas 75935
                                          Tel. (936) 598-3052
                                          Fax. (936) 598-3031
                                          stephen@shireslawfi rm. corn

                                          By: /s/ $iephçn Sllires
                                          W. Stephen Shires
                                          Texas Bar No. 505f 1894
                                          Attorney for Legatha Demings

                                   CERTIFICATE,qI SS.ßVICE

        This is to certiS that on the 5l' day of May, 20!5, a true and correct copy of the above
and foregoing document was served on the following in accordance with the Texas Rules of
Civil Procedure:

Mr. David W. Frost
1121 ESE Loop323, Suite 200
Tyler, Texas 75701
Facsimile (903) 581 -3701
                                                   lsl Steplren shtuei
                                                   Stephen Shires




                                               2
                   Ku)   8, l4¿/J")r, /î4,5,, 4,r4,,,.4,P,
                       ø¿O'/atalt" &l¿eá' ' &nle¿, '/e'z<t¿ 759.?.5
                        (rsø¡ srs-zz/6 . 4"" (rsø) s98-5059




                                        May 4, 2015




Mr. W. Stephen Shires, Attorney at Law
The Law Offices of Stephen Shires, P.L.L.C"
123 San Augustine Street
Center, Texas 75935

                                        Re: Ms. Legatha Demings

Dear Mr. Shires:

        Thank you for allowing me to review this case on behalf of Ms. Legatha
Demings. My opinions in this report are based on the information I have
reviewed to date and my education, training, and direct experience in the
diagnosis and treatment of patients with conditions similar to those of Ms.
Legatha Demings as described in the materials I have reviewed and discussed in
thið report. Èach opinion is based on reasonable medical and nursing,
probability and certainty.

                                   BACKGROUND

        My name is Keith E. Miller, M,D., and I give this report for the purpose of
complying with any applicable provisions or codes. As my attached curriculum
vitae demonstrates and which is incorporated into this report by reference, I am a
Medical Doctor currently licensed to practice in the State of Texas and formerly
licensed in the States of Louisiana and Arkansas. I currently practice in nursing
homes similar to Garrison Nursing Home and Rehabilitation Center in Garrison,
Texas, I have had numerous patients similar to Ms. Legatha Demings. I am
board-certified in Family Medicine and I have been in practice for more than 25
years. By virtue of my education, training, and direct experience, I am qualified
io render opinions regarding the standards of care as they apply to this particular
case.




                                                  i
       I am over the age of 18, of sound mind, and capable of preparing      this
expert medical report. My opinions in this report are based on the information I
have reviewed to date, as well as my education, training, knowledge, and direct
experience in the diagnosis and treatment of patients with conditions similar to
those of Ms. Legatha Demings, as described in the materials I have reviewed
and discussed in this report. My opinions are based on reasonable medical and
nursing, probability and certainty. My opinions concern the care and treatment
received by Ms. Legatha Demings, or lack thereof, in regard to the applicable
standards of care and the manner, in which the care rendered to Ms. Legatha
Demings by the healthcare facility in this case, fell below the standards of care
and caused the illnesses of Ms. Legatha Demings,

       It is impossible in an expert medical report to marshal all of the proof
regarding the standard of care, breach, and causation and include it within my
expert opinions in this case. My report represents a good faith effort to inform
the health-care facility of the specific conduct that I am calling into question and
to provide a basis for anyone to conclude that the claims in this matter have
merit. Obviously, âñv defendant in a medical malpractice case has medical
knowledge of medical terms which, when read in context with my opinions, will
be clear to any competent healthcare facility,

       This report will provide a summary of my opinions, as of this date,
regarding: 1) the applicable standards of care at issue in this case; 2) how the
apþticanie siandards of care were violated and breached; 3¡ how the violations
and breaches of the applicable standards of care resulted in the illnesses of Ms.
Legatha Demings; and 4) what the health-caie facility in this case should have
done differently to prevent the illnesses of Ms. Demings. I reserve the right to
amend, or add to, my opinions upon review of new records, testimony, or facts,
as they become available, or upon further review of existing materials.

                                 MY EXPERTISE

       I am a medical doctor currently licensed to practice in the State of Texas
and formerly licensed in the States of Louisiana and Arkansas. I have been a
licensed medical doctor since 1985, have been practicing medicine continuously
since then, including during the time of this claim, and as part of my practice,
have been, and am currently, involved in the diagnosis, care, and treatment of
many patients similar to Ms. Legatha Demings. I am familiar with the diagnosis
and treatment      ofpatients with cerebral vascu[ar accidents (strokes),
hypertension, related illnesses and their complications, along with any other
conditions experienced by Ms, Legatha Demings. I am familiar with the
standards of care applicable to physicians, nurses, hospitals, nursing homes,
rehabilitation centers and their statfs that treat patients such as Ms, Demings.
Report of Keith E. Miller, M.D                                              Page2
My training is similar to the training of the physician, healthcare providers,
nurses, and facility staff in this case,

      After graduating from medical school in 1985 at the University of
Arkansas, I received additional training and experience in a family practice
residency program which lsuccessfully completed in 1988. I have over 25 years'
experience practicing medicine in office settings, hospitals, nursing homes,
rehabilitation centers and emergency departme.nts. I am board-certified in
Family Medicine by the American Board of Family Medicine, and have been in
practice for more than 25 years. By virtue of my education, training, knowledge
and direct experience, I am qualified to render opinions regarding the standards
of care as they apply to this particular case, including the standards of care
applicable to physicians, nurses, hospitals, nursing homes, rehabilitation centers
and their staffs treating patients for strokes, hypertension, related illnesses and
their complications, along with any other conditions exhibited by Ms. Legatha
Demings, because I have treated many patients with these conditions.

                         A COPY OF MY CYl9 AI:ÏA9HED

       My attached curriculum vitae is incorporated herein as part of my repoft,

                               MATERIALS REVIEWED

         The specific records and documents concerning Ms. Legatha Demings
which I have reviewed include the following:

          1) Medical Records of Ms. Legatha Demings from Nacogdoches
            Medical Center in Nacogdoches, Texas;
         2) Garrison Nursing Home and Rehabilitation Center in Garrison,
            Texas;
         3) Plaintiff's Original Petition; and
         4) Expert Nursing Report of Pauline Kaper, R.N.

                                  slgNltlcANï tacrq
        Ms. Legatha Demings is an adult female whose date of birth is April 28,
1945. ln May 2012, Ms. Demings was 67 years-old. She had a past medical
history of hypertension, atrial fibrillation, congestive heart failure, emphysema,
and a previous transient ischemic attack (TlA).

           on May 22, 2012, Ms. Demings was living at home. she suddenly
developed slurred speech, weakness in her extremities, and she fell out of bed.
She was taken to a         ital in Carthage, Texas, and then subsequently
Report of KeÍth E. Miller, M.D.                                            Page 3
transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further
evaluation and treatment.

           ln the hospital, Ms. Demings was diagnosed as having had a
cerebrovascular accident (CVA) or stroke, Ms. Demings was discharged from
the hospital on May 25, 2A12. ln his discharge summary, Ms, Demings'
physician documented that this patient's stroke was of ".,.ischemic origin, most
likely caused by her atrialfibrillation."

         ln order to treat Ms. Demings' condition and prevent further strokes, her
physician discharged her from the hospital on a blood-thinning medication,
Xarelto. This physician stated in his discharge summary that Ms. Demings would
be "...started (on) Xarelto for her anticoagulation to avoid further strokes..."

          On May 25,2012, Ms. Demings was discharged from the hospital and
admitted to Garrison Nursing Home and Rehabilitation Center in Garrison,'Texas
for further recovery and rehabilitation. According to Ms. Demings' physician, this
resideñt had begun to make some improvement as evidenced by improvement in
her speech and increased movement of her left side.

         After being in the care of Garrison Nursing Home and Rehabilitation
Center for less than two weeks, Ms. Demings became "confused, combative,
and unablè to communicate". On June 8, 2012, she was taken by emergency
medical seruices back to Nacogdoches Medical Center for emergency
evaluation. There a computerized tomography (CT) scan of her head revealed
an ischemic infarction of her brain consistent with a stroke.

        One of Ms. Demings' consulting physicians, a neurological specialist,
documented in the medical record that Ms. Demings had suffered a
"Cerebrovascular accident extension with newly developed global aphasia,
aphasia and left-sided flaccid paralysis".

       Ms. Demings remained in the hospital for 12 days, and was discharged on
June 20, 2012. At the time of her discharge from the hospital, Ms. Demings'
physician noted in his discharge summary that this patient's overall medical
condition had deteriorated as a result of her stroke she suffered at Garrison
Nursing home and Rehabilitation Center, to the point that Ms. Demings was
made a do-not-resuscitate status such that if she experienced a cardiovascular
or respiratory failure, she would not be intubated or placed on a ventilator or
breathing machine.

    A "Medication Error Report" made by th e nursing statf of Garrison Nursing
Home and Rehabilitation Center on June 8, 2012, documented that from the
Report of Keith E. Miller, M.D"                                           Page 4
time Ms. Demings was first admitted to this facility on May 25,2012 until the time
of her stroke and transfer on June 8, 2012, Ms. Demings was not given her
blood-thinning medication, Xarelto as ordered by her physician. This medication
had been ordered to be given in a dose of 20 milligrams (mgs) at bedtime daily.

         This same report stated that "res. (resident) arrived after 5:00 pm on a
Friday. This medication (Xarelto) was ordered along (with) all other meds from
nursing home pharmacy - nurse transcribing orders had to have all meds written
on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be
delivered that night'

          The Medication Error Report went on to document that a nurse at this
nursing home "failed to transcribe this med (medication) to MAR (Medication
Administration Record)"..."an oversight". A question on this same form asked
"Could the error have endangered the life or welfare of the patient?" The
responsible nurse completing the form answered the question with "Makes her a
higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

          On a subsequent hospitalization on August 5,2012, in his pre-operative
history and physical, one of Ms. Demings' physicians documented what had
happened to her during her stay at Garrison Nursing Home and Rehabilitation
Center from May 25,2012 through June 8, 2012. This physician stated that prior
to her first admission to this nursing home, Ms. Demings "was found in atrial
fibrillation. She was started (on) Xarelto, Apparently,.. did not follow-through in
the nursing home, and she had.,,strokes, disabling, with   severe-.        She was
rendered substantially disabled."

        This physician also documented in his discharge summary of this Au$ust
5, 2012 hospital stay, the importance of a patient such as Ms. Demings who
sutfered with atrial fibrillation, to always remain on a bloodthinning medication
such as Xarelto. He stated that "She is to continue with Xarelto...lnstructions
were given to the family to make sure that this medication is never stopped."

                    ,F"AMTUARTTY    W|TH THE STANDAFp OE çARE

       At the time of the care and treatment of Ms. Legatha Demings by Garrison
Nursing Home and Rehabilitation Center in Garrison, Texas, from May 2012
through June 2012, I was familiar with the minimum medical standards of care
applicable to the assessment, diagnosis and treatment of patients with strokes,
hypertension, and related illnesses, as well as their complications and other
medical conditions similar to those experienced by Ms. Legatha Demings and
described in the referenced medical records, I am familiar with the medical and
nursing standards of care for the above referenced conditions applicable to
Report of Keith E. Miller,   M.D,                                          Page 5
Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The
minimum standards of care for treatment of patients with similar signs,
symptoms, and conditions as Ms, Legatha Demings that are the basis of this
report, are national standards of care and do not differ from community to
community.

            From the time of the medical treatment of Ms. Legatha Demings from
May 2012 through June 2012, and through the present, I have had an active
clinical practice as a family practitioner in Center, Texas that includes providing
care to adult patients in nursing homes and rehabilitation centers, such as Ms.
Legatha Demings. During my career as a family practitioner, I have worked with
and or supervised medical office statf, hospital staff, nursing home statf, and
rehabilitation center staff, including medical technologists and nurses, in the care
of my patients. I have also participated in the development and use of protocols,
policies and procedures for the care of patients with strokes, hypertension, and
related illnesses, as well as their causes and complications, including adults
such as Ms. Legatha Demings. ln addition, based on my education, training,
knowledge, and direct experience, I am familiar with the accepted and expected,
standards of care, as listed below, for nursing home and rehabilitation center
facilities, who take care of patients with conditions such as strokes, hypertension,
related illnesses, and their complications, and can offer opinions on the
standards of care, the breaches of the standards of care and the causation of
the injuries from these breaches.

            ln my medical practice, I routinely rely on medical records, nursing
records, lab reports, diagnostic tests and images, consulting physician reports
and other patient data, I consider materials of this type to be generally reliable,
unless evidenced othen¡rise, and they are the type of materials routinely relied
upon by physicians and clinical staff in providing care to patients.

                           C"AqF SIPECIFIC EXPERTISE

        At the time of the medical treatment of Ms, Legatha Demings, from May
 2012 through June 2012, I was treating patients with symptoms similar to those
experienced by Ms, Demings. I am familiar with the accepted medical and
nursing standards of care applicable to the assessment, diagnosis, and
treatment of patients with strokes, hypertension, and related illnesses, as well as
any other medical conditions similar to those experienced by Ms. Legatha
Demings during that time as described in the referenced medical records, I am
familiar with the standards of care for physicians, nurses, and nursing home and
rehabilitation center staff treating patients such as Ms, Demings. I am familiar
with the medical and nursing standards of care for the above referenced medical
conditions, including strokes, hypertension, related illnesses, and their
Report of Keith E. Miller, M,D.                                            Page 6
complications, as they apply to Garrison Nursing Home and Rehabilitation
Center in Garrison, Texas. The accepted and applicable standards of care for
the treatment of patients with similar signs, symptoms, and conditions as Ms.
Legatha Demings, that are the basis of this report, are national standards of care
and do not differ from community to community, and also apply to the specific
medical care provided to Ms. Demings in this case. The accepted medical and
nursing standards of care for the assessment, diagnosis, and treatment of
medical conditions similar to those of Ms. Legatha Demings apply to all nursing
home and rehabilitation center facilities. I know the accepted standards of care,
the breaches and violations of the standards of care, and the causation link
between the breaches and violations of the standards of care and the illnesses,
of Ms. Legatha Demings, as they apply to Gamison Nursing Home and
Rehabilitation Center in Garrison, Texas, on the basis of my education,
knowledge, training, and direct experience.

        I acquired this education, knowledge, training and experience through:

        1) My attending, and successfully completing, medical school classes,
and   residency,  that teach the evaluation, diagnosis, care and treatment of
patients with the same or similar conditions as Ms. Legatha Demings, and for
illnesses related to strokes, hypertension, and their complications;

       2) Practical experience of diagnosing and treating patients with the same
or similar conditions as Ms, Legatha Demings, and for illnesses related to
strokes, hypertension, and their complications;

       3)   Discussions with colleagues   at yearly conferences, seminars        and
meetings;

        4) Study of technical works routinely published in textbooks, journals and
literature concerning the evaluation, diagnosis, care and treatment of patients
with the same or similar conditions as Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications;

       5) My routine discussions and consultations with other physicians who
also treat patients with the same or similar conditions as Ms. Legatha Demings,
and for illnesses related to strokes, hypertension, and their complications;

      6) My routine and regular contact with nursing hofne nurses, staff and
residents who take care of patients with the same or similar conditions as Ms.
Legatha Demings, and for illnesses related to strokes, hypertension, and their
complications;


Report of KeÍth E. Miller, M.D.                                           PageT
       7) My knowledge and experience             giving lectures and   in-service
conferences to the nurses and staff;

       8) My   experience serving      on numerous hospital and nursing     home
committees; and

      9) My observation of nurses and nurse conduct, supervising residents,
and instructing nurses and residents in the evaluation, diagnosis, care and
treatment of patients the same as, or similar to Ms. Legatha Demings, and for
illnesses related to strokes, hypertension, and their complications.

                      FAC|L|TY - PATIENT RELATIONSHIP

            Based upon the above facts, there was a facility-patient relationship
established between Ms. Legatha Demings and Garrison Nursing Home and
Rehabilitation Center in Garrison, Texas.

                                        DUTY

         There was a duty owed to Ms. Legatha Demings by Garrison Nursing
Home and Rehabilitation Center in Garrison, Texas, to do what a reasonable
nursing home or rehabilitation center would have done under the same or similar
circumstances, or not to do what a reasonable nursing home or rehabilitation
center would not have done under the same or similar circumstances.

                  RFLHVANT STANDARU$           pt Ê_&RE lN lssl,F
       This section addresses some of the principal applicable standards of care
that Garrison Nursing Home and Rehabilitation Center in Garrison, Texas and its
staff should have met for Ms. Legatha Demings, specifically how Garrison
Nursing Home and Rehabilitation Center and its staff breached the standards of
oare and the causal relationship of the breach to Ms. Demings' illnesses and
related complications. These standards are based on my education, training,
and direct experience, and are reflected in the state and federal regulations that
govern nursing homes, rehabilitation centers, and skilled nursing facilities.

      The following standards, among others, are consistent with the standards
of care that were required to be fòllowed by Garrison Nursing Home and
Rehabilitation Center in Garrison, Texas, and its staff as it concerns Ms. Legatha
Demings:

1. TAC Ch apter 217 Rule S217.11 Standards of Nursing Practice (1) Stan-
dards   ti cable to All Nurses, A ll vocational nurses, istered nurses and
Report of Keith E. Miller, M.D.                                           Page 8
istered nurses with advanced practice authorization shall: (A) Know and conform
to the Texas Nursing Practice Act and the Board's rules and regulations as well
as all federal, state, or local laws, rules or regulations affecting the nurse's cur-
rent area of nursing practice;

2, TAC Chapter 217 Rule $2f7,11 Standards of Nursing Practice                      (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shatl: (B) lmplement
measures to promote a safe environment for clients and others;

3. TAC Chapter 217 Rule S2f7.11 Standards of Nursing Practice                 (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (C) Know the ratio-
nale for and the etlects of medications and treatments and shall correctly admin-
ister the same;

4. TAC Subchapter H Rule 519.701. A facility must care for its residents in a
manner and in an environment that promotes maintenance or enhancement of
each resident's quality of life. (5) Accommodation of needs. A resident has the
right to: (A) reside and receive services in the facility with reasonable
accommodation of individual needs and preferences, except when the health or
safety of the individual or other residents would be endangered;

5. TAC Subchapter B Rule S{9.101 Neglect - A                   deprivation   of   life's
necessities of food, water, or shelter, or a failure of an individual to provide
services, treatment, or care to a resident which causes or could cause mental or
physical injury, or harm or death to the resident.

6. TAC Ghapter 217 Rule 5217.11 Standards of Nursing Practice                    (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (D) Accurately and
completely report and document: (iii) physician, dentist, or podiatrist orders; (iv)
administration of medications and treatments; (v) client responses(s); and (vi)
contacts with other health care team members concerning significant events
regarding client's status; (G) Obtain ínstruction and supervision as necessary
when implementing nursing procedures or practices; (N) Clarify any order or
treatrnent regimen that the nurse has reason to believe is inaccurate, non-
efficacious or contraindicated by consulting with the appropriate licensed
practitioner and notifying the ordering practitioner when the nurse makes the
decision not to administer the medication or treatment.

7. TAC Chapter 217 Rule S217.fl Shndards of Nursing Practice                        (1)

åtil,çFI9:nPåHnInn#$,
Report of Keith E, Miller,   M.D.
                                       î                                     Page 9
registered nurses with advanced practice authorization shall: (F) Promote and
participate in education and counseling to a client(s) and, where applicable, the
family/significant other(s) based on health needs;

8, TAC Chapter 217 Rule        5217.11 Standards of Nursing Practice (1)
Standards Applicable to All Nurses, All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (G) Obtain
instruction and supervision as necessary when implementing nursing procedures
or practices;

9. TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice                   (1)
Standards Applicable to All Nurses, All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (M) lnstitute
appropriate nursing interventions that might be required to stabilize a client's
condition and/or prevent complications;

10. TAC Ghapter 217 Rule S2f7.11 Standards             of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (T) Accept only
those nursing assignments that take into consideration client safety and that are
commensurate with the nurse's educational preparation, experience, knowledge,
and physical and emotional ability;

11. TAC Chapter 217 Rule $217.11 Standards              of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (U) Supervise
nursing care provided by others for whom the nurse               is professionally
responsible;

 12. TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (3)
Standards Specific to Registered Nurses. The registered nurse shall assist in
the determination of healthcare needs of clients and shall: (A) Utilize a
systematic approach to provide individualized, goal-directed, nursing care by: (i)
performing comprehensive nursing assessments regarding the health status of
the client; (ii) making nursing diagnoses that serve as the basis for the strategy
of care; (iii) developing a plan of care based on the assessment and nursing
diagnosis; (iv) implementing nursing care; and (v) evaluating the client's
responses to nursing interventions;

13. TAC Chapter 217 Rule 5217.12 Unprofessional Conduct (1) Unsafe
Practice - actions or conduct including, but not limited to: (A) Carelessly failing,
repeatedly failing, or exhibiting an inability to perform vocational, registered, or
advanced practice nursing in conformity with the standards of minimum
Report of Keith E. Miller,   M.D.                                          Page L0
acceptable level of nursing practice set out in Rule 217 .11,

14. TAC Ghapter 217 Rule $217.12 Unprofessional Conduct (1) Unsafe
Practice - actions or conduct including, but not limited to: (B) Carelessly or
repeatedly failing to conform to generally accepted nursing standards in
applicable practice settings;

15. TAC Chapter 217 Rule 5217.12 Unprofessional Conduct (4) Careless or
repetitive conduct that may endanger a client's life, health, or safety. Actual
injury to a client need not be established.

16. 42 CFR 483,20, 483.25.The facility must conduct initially a comprehensive,
accurate assessment of each resident's functional capacity, a plan      of  care,
based on a resident assessment, which will be used to provide care and
services to attain the highest practical physical, mental, and psychosocial well-
being;

17. 42 CFR 483.15- A facility must care for its residents in      a manner   that
promotes quality of life and dignity;

18. 42 CFR 483.30- The facility must have sufficient nursing staff to provide
nursing and related services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, as determined by
resident assessments and individual plans of care;

19, 42 CFR 483.13, F 224- "Neglect" means failure to provide goods and
services necessary to avoid physical harm, mental anguish, or mental illness,

20.42 CFR 483.20 (k) (3) (l) - The services provided or arranged by the facility
must meet professional standards of quality;




       lllnesses Caused by Failing to Properly Administer Medications

         Ms. Legatha Demings is an adult female whose date of birth is April 28,
1945. ln May 2012, Ms, Demings was 67 years-old. She had a past medical
history of hypertension, atrial fibrillation, congestive heart failure, emphysema,
and a previous transient ischemic attack (TlA).


Report of Keith E. Miller, M.D,                                           Page L1
          On May 22, 2012, Ms. Demings was living at home. She suddenly
developed slurred speech, weakness in her extremities, and she fell out of bed,
She was taken to a hospital in Carthage, Texas, and then subsequently
transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further
evaluation and treatment.

           ln the hospital, Ms, Demings was      diagnosed as having had a
cerebrovascular accident (CVA) or stroke. Ms. Demings was discharged from
the hospital on May 25, 2012, ln his discharge summâry, Ms. Demings'
physician documented that this patient's stroke was of "...ischemic origin, most
likely caused by her atrialfibrillation."

          ln order to treat Ms. Demings' condition and prevent further strokes, her
physician discharged her from the hospital on a blood-thinning medication,
Xarelto. This physician stated in his discharge summary that Ms. Demings would
be "...started (on) Xarelto for her anticoagulation to avoid further strokes..."

          On May 25,2012, Ms. Demings was discharged from the hospital and
admitted to Garrison Nursing Home and Rehabilitation Center'in Garrison, Texas
for further recovery and rehàbilitation. According to Ms. Demings' physician, this
resident had begun to make some improvement as evidenced by improvement in
her speech and increased movement of her left side.

         After being in the care of Garrison Nursing Home and Rehabilitation
Center for less than two weeks, Ms, Demings became "confused, combative,
and unable to communicate". On June 8, 2012, she was taken by emergency
medical services back to Nacogdoches Medical Center for emergency
evaluation. There a computerized tomography (CT) scan of her head revealed
an ischemic infarction of her brain consistent with a stroke.

         One of Ms. Demings' consulting physicians, a neurological specialist,
documented in the medical record that Ms. Demings had. s.uffered a
"Cerebrovascular accident extension with newly developed global aphasia,
aphasia and left-sided flaccid paralysis".

         Ms. Demings remained in the hospital for 12 days, and was discharged
on June 20,2012, At the time of her discharge from the hospital, Ms, Demings'
physician noted in his discharge summary that this patient's overall medical
condition had deteriorated as a result of her stroke she suffered at Garrison
Nursing home and Rehabilitation Center, to the point that Ms. Demings was
made a do-not-resuscitate status such that if she experienced a cardiovascular
or respiratory failure, she would not be intubated or placed on a ventilator or
breathing machine.
Report of Keith E. Miller, M.D.                                            Page L2
      A "Medication Error Report" made by the nursing staff of Garrison Nursing
Home and Rehabilitation Center on June 8, 2012, documented that from the
time Ms. Demings was first admitted to this facility on May 25,2012 until the time
of her stroke and transfer on June 8, 2012, Ms, Demings was not given her
blood{hinning medication, Xarelto as ordered by her physician, This medication
had been ordered to be given in a dose o'f 20 milligrams (mgs) at bedtime daily.

         This same report stated that "res. (resident) arrived after 5:00 pm on a
Friday. This medication (Xarelto) was ordered along (with) all other meds from
nursing home pharmacy - nurse transcribing orders had to have all meds written
on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be
delivered that night".

          The Medication Error Report went on to document that a nurse at this
nursing home "failed to transcribe this med (medication) to MAR (Medication
Administration Record)'..."an oversight". A question on this same form asked
"Could the error have endangered the life or welfare of the patient?" The
responsible nurse completing the form answered the question with "Makes her a
higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

          On a subsequent hospitalization on August 5, 2012, in his pre-operative
history and physical, one of Ms. Demings' physicians documented what had
happened to her during her stay at Garrison Nursing Home and Rehabilitation
Center from May 25,2012 through June 8,2012. This physician stated that prior
to her first admission to this nursing home, Ms. Demings "was found in atrial
fibrillation. She was started (on) Xarelto. Apparently... did not follow-through in
the nursing home, and she had...sttokes, disabling, with severe            She was
rendered substantially disabled."
                                                                  -.
       This physician also documented in his discharge summary of this August
5, 2012 hospital stay, the importance of a patient such as Ms. Demings who
suffered with atrial fibrillation, to always remain on a blood-thinning medication
such as Xarelto. He stated that "she is to continue with Xarelto...lnstructions
were given to the family to make sure that this medication is never stopped."

      The statf of Garrison Nursing Home and Rehabilitation Center in Garrison,
Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for
the development of future strokes due to her past medical history which included
hypertension, atrial fibrillation, a previous TlA, and a previous stroke.

       The nursing staff of Garrison Nursing Home and Rehabilitation Center ob-
viously needed better training in safe and systematic methods to properly trans-
fer medication orders to their MAR. Ms. Demings arrived at this nursing home in
Report of Keith E. MÍller, M.D.                                            Page L3
the late evening on a Friday. The Medication Error Report indicated that the
staff of this nursing home was under a short deadline to get Ms. Demings' medi-
cation orders to the pharmacy in order to obtain her medications by that evening
otherwise they would not receive her medications until at least the following day
or perhaps even longer since the following day,fell on a weekend. lt is certain
that the nurse transcribing these pharmacy orders felt pressured to get this
process done quickly. Unfortunately there was no procedure in place at the time
of this incident to ensure that medication orders would always be accurately and
precisely transcribed by the nursing staff of this facility, even under stressful situ-
ations.

         After it was recognized by this nursing home staff that Ms. Demings had
failed to properly receive her medications, the nursing staff of this facility recog-
nized the need to improve their procedures for medication ordering from the
pharmacy. ln lhe Medication Error Report, the nursing staff responded to a
question which asked, 'What precautions can you take to prevent a similar
error?" The nurse completing this report answered by stating "always have two
nurses check orders on new admissions to make sure (orders are) transcribed
correctly".

         The specific steps of an appropriate procedure for Ms, Demings would
have been tailored to her and would have been determined by an extensive as-
sessment by the nursing staff. These measures would have included such
things as having in place an appropriate plan to ensure this resident's medication
çrdérs were properly transcribed to her MAR, ensure that her medications were
properly ordered and received from the pharmacy, and comparing her physi'
cian's orders with her MAR to ensure her original medication orders were always
being properly carried out.

         As a direct cause, this facility and its staff failed to comply with those
standards set forth in paragraph numbãrs: 1,2,3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17,18, 19, and 20. lt is my opinion, based upon my experience,
knowledge, qualifications and review of these records that these standards were
not followed and the result was that Ms. Legatha Demings was harmed and
injured. The failure to comply with these standards caused, within a reasonable
degree of medical and nursing, probability and certainty, Ms. Demings to sutfer a
stroke, extensive hospitalization, rehabilitation, and related complications, which
compromised her overall health and well-being, and resulted in an overall
worsening of her condition, unnecessary and preventable pain, suffering, mental
anguish, and loss of dignity. These injuries and illnesses could have, within a
reásonable degree of medical and nursing, probability and certainty, been
prevented or detected/addressed earlier if these standards had been followed.


Report of Keith E. Miller, M.D                                                 Page L4
       To meet the standards, Garrison Nursing Home and Rehabilitation Center
in Garrison, Texas, and its statf were required to do among other things the fol-
lowing when caring for Ms. Legatha Demings:

       A. Recognize        and act on the fact that Ms. Legatha Demings was at high
             risk for illnesses due to a stroke and its related complications, by pre-
             paring and following a Care Plan based on an accurate assessment;

       B. Specifically implement an etfective and accurate Care Plan by ensuring:

            1. That the Care Plan which included the method for safely and accu-
              rately administering Ms. Demings' medications was implemented and
              used at alltimes;

         2. That Ms. Demings had sufficient and knowledgeable personnel for
            p roperly ad min isterin g her. med ications safely;


       C.   Ensure that a safe and appropriate system was in place to make sure
            that Ms. Demings' physician orders for medications were properly and
            accurately transcribed and transmitted to the pharmacy;

       D. Put in place a method to recheck Ms. Demings' physician mediation or-
            ders from time to time to ensure she was receiving all her necessary,
            prescribed medications; and

       E. lnform and Educate Ms. Demings'family and/or caretakers to the risk
          of suffering illnesses including strokes if she did not properly receive her
          medications.


                                       SU-U!.MARY

I have been advised that "Neg/þence" means:

           Negllgence, when used with respect to the conduct of a medical
facility means failure fo use ordinary care, that is, failing to do that which a
medical facility of ordinary prudence would have done under the 'same or
similar circumstances or doing that which a medical facility of ordinary
prudence would not have done under the same or similar circumstances.




Report of Keith E. Miller, M.D                                                  Page 15
 I have been advised "proximate cause" means:

        That cause which, in a natural and continuous seguence, produces an
event, and without cause such event would not have occurred. ln order to
be a proximate cause, the act or omission complained of must be such
that a health care facility, using ordinary care, would have
foreseen that the event or some similar event míght reasonably result there
from. There may be more than one proximate cause of an event.

         More likely than not, this failure on the part of Garrison Nursing Home and
Rehabilitation Center in Garrison, Texas, to practice in an acceptable manner
directly resulted in Ms. Legatha Demings' illnesses due to a stroke and its
complications, as well as overall worsening of her condition, unnecessary and
preventable pain, suffering, extensive hospitalization, mental anguish, and loss
of dignity. As more specifically set forth above, the actions and inactions of this
facility caused the conditions and complications described above.

           ln summary, Garrison Nursing Home and Rehabilitation Center in
Garrison, Texas, did not meet the standard of care in their treatment of Ms.
Legatha Demings. lt is my opinion, based on my medical education, experience,
and training and based upon a reasonable degree of medical and nursing,
probability ãnd certainty, that these negligent acts and omissions as stated
above proximately caused Ms, Demings' illnesses due to a stroke, and their
complications, along with overall worsening of condition, as well as caused her
unnecessary and preventable pain, extensive hospitalization, suffering, mental
anguish, and loss of dignity. lt is my opinion that Garrison Nursing Home and
Rehabilitation Center in Garrison, Texas, knew or should have known that their
failure to meet the standards of care would put Ms. Demings at extreme risk of
harm and knew or should have known that this failure to meet these standards
would likely cause complications or illnesses to Ms, Demings. Nevertheless,
Garrison Nursing Home and Rehabilitation Center still failed to follow the above
standards. Had the standards of care been followed by Garrison Nursing Home
and Rehabilitation Center, more likely than not and based upon a reasonable
degree of medical and nursing, probability and certainty, Ms. Demings would not
have suffered the illnesses due to a stroke, along with their complications, as
well as overall worsening of her condition, unnecessary and preventable pain,
sutfering, extensive hospitalization, mental anguish, and loss of dignity.




Report of Keith E. Miller, M.D,                                             Page 16
                                    0
                                  Center,   Texas 75935




Report of Keïth E. Miller, M.D.                           PageLT
CURRICULUM VITAE



 KEITH E. MILLER, M.D.



   620 Tenaha Street

 Center,   Texas 75935
    (e36) 5e8-2716
           KEITH E. MILLER, M.D.


                . EDUCATION -

            Chief Resident, 7/87 to 6/88
 University of Arkansas Medical Sciences Campus
  Area Health Education Center, South Arkansas
                El Dorado, Arkansas

     Family Practice Residency, T lS6 to 6/88
 University of Arkansas Medical Sciences Campus
  Area Health Education Center, South Arkansas
                El Dorado, Arkansas

      Family Practice lnternship ,7185 to 6/86
                University Hospital
              Little Rock, Arkansas

     Doctor of Medicine Degree, 8/81 to 5/85
    University of Arkansas College of Medicine
               Little Rock, Arkansas

               Attended, 8/80 to 5/81
University of Arkansas at Little Rock, School of Law
                Little Rock, Arkansas

           Bachelor of Arts, 8/76 to 5/79
             German and Chemistry
               Baylor of University
                  Waco, Texas

              Attended, 8175 to 5176
              Biology and Chemistry
            East Texas Baptist College
                  Marshall, Texas

       Shelbyville High School, Bl71to 5i75
                 Shelbyville, Texas




                         2
                         KEITH E. MILLER, M.D.


                        -PRACT¡CE ACTIVITIES-

           Full Time Family Medicine Practice, July 19BB to Present

                         Commissioner, 9/03 to 9/07
        Texas State Board of Medical Examiners / Texas Medical Board
                   State Medical Licensing Board of Texas

         Physician Consultant for Physician Peer Review, 8/90 to 9/03
                   Texas State Board of Medical Examiners
                    State Medical Licensing Board of Texas

    Member, Texas Statewide Medical Advisory Committee, 8/95 to Present
                      Blue Cross/Blue Shield of Texas
Performs Physician Peer Review for All Blue CrossiBlue Shield Patients in Texas

                          President, 1990 to Present
                        Shelby County Medical Society

       Advisory Committee Member and Clinical Faculty, 8/90 to Present
                   School of Licensed Vocational Nursing
                               Panola College
                               Center, Texas

       Member, Board of Directors, and Medical Director, 8/90 to Present
                   Shelby County Child Advocacy Center
                                Center, Texas

                               2014 to Present
                      Family Medicine Service Privileges
                       Memorial Hospital San Augustine
                            San Augustine, Texas

                              2014 to Present
                      Family Medicine Service Privileges
                        Nacogdoches Medical Center
                            Nacogdoches, Texas

     Former Physician Reviewer, Texas Medical Foundation, B/90 to 8/03
           Pedorms Physician Peer Review/Quality Assurance for
               All Medicare and Champus Patients in Texas
                                       a
                                       1
              KEITH E. MILLER, M.D.


  -PRACTTCE ACTTVTTTES (CONTINUED)-

  Former Clinical Faculty, Preceptor, B/90 to 8/03
   University of Texas Health Sciences Center
       Family Practice Residency Program
                   Tyler, Texas

Former Director of Emergency Services, 8/90 to 8/11
         Shelby Regional Medical Center
                   Center, Texas

               Former Chief of Staff
          Shelby Regional Medical Center
                  Center, Texas

          .      July 1988 to 2013
     Full Time Active Family Practice Privileges
           Shelby Regional Medical Center
                   Center, Texas

              September 2010 to Present
                   Medical Director
               Legacy Hospice of Center
                    Center, Texas

                March 2011 lo Present
              Assistant Medical Director
              The Hospice of East Texas
                     Tyler, Texas

                July 1988 to Present
     Full Time Active Family Practice Privileges
               Holiday Nursing Home
                    Center, Texas

                July 1988 to Present
     Full Time Active Family Practice Privileges
             Pine Grove Nursing Home
                   Center, Texas



                          4
        KEITH E. MILLER, II'I.D.


-PRACTTCE ACTIV¡T¡ES (CONT¡NUED)-

             July 1988 to Present
  Full Time Active Family Practice Privileges
          Green Acres Nursing Home
                Center, Texas

             July 1988 to Present
  Full Time Active Family Practice Privileges
          Twin Lakes Nursing Home
            San Augustine, Texas

             July 1988 to Present
  Full Time Active Family Practice Privileges
         Colonial Pines Nursing Home
            San Augustine, Texas

              July 1988 to Present
  Full Time Active Family Practice Privileges
   Trinity Nursing and Rehabilitation Center
             San Augustine, Texas

              July 1988 to Present
  Full Time Active Family Practice Privileges
        El Camino House Nursing Home
             San Augustine, Texas

          December 2013 to Present
  Full Time Active Family Practice Privileges
        Lakeside Village Assisted Living
                 Center, Texas

          March 2012 to Present
             Medical Director
     Bethany Home Health Care AgencY
             Carthage, Texas

         January 2014 to MaY 2015
      Medical Director, Jennings Place
   Day Care for Mentally Challenged Adults
                Center, Texas

                       5
             KEITH E. MILLER, M.D.


          - BOARD CERTIFICATIONS .

     American Board of Family Medicine, lD 53861

            Certification Date July 8, 1988

          Re-Certification Date July 14, 1995

          Re-Certification Date July 1 2, 2AA2

          Re-Certification Date July 15, 2010


     . PROFESSIONAL CERTIFICATIONS -
      Hospice Medical Director Certified (HMDC)
     Hospice Medical Director Certification Board
               July 8, 2014 to Present

             Certified Medical Review Otficer
       Medical Review Officer Certification Council
       United States Department of Transportation
United States Department of Health and Human Services
               Certified February 21, 2006
              Re-certified March 24, 2012

               Certified Medical Examiner
       Federal Motor Carrier Safety Administration
       United States Department of Transportation
United States Department of Health and Human Services
               Certified February 1 1, 2414

          Fellow (AAFP), 1990 to Present
       American Academy of Family Physicians

              American Heart Association
                    CPR lnstructor
       Advanced Cardiac Life Support Instructor
       Pediatric Advanced Life Support Provider



                           6
               KEITH E. MILLER, M.D,

      . PROFESSIONAL AFF¡LIAT¡ONS .
            American Med ical Association

            Southern Medical Association

       American Academy of Family Physicians

              Texas Medical Association

            Shelby County Medical SocietY


          . VOLUNTEER ACTIVITIES -

                Texas State Legislature
         Physician of the Day, 1989 to Present

Coordinator, Free Physicals Programs, 1988 to Present
                Department of Athletics
  Center lndependent School District, Center, Texas

          Team Physician, 1988 to Present
               Department of Athletics
          Center lndependent School District

    Vice-President, Board of Trustees, '1990 to 1999
   Center lndependent School District, Center, Texas

              Preceptor, 1990 to Present
Texas Statewide Medical Student Preceptorship Program

            Member, Development Council
                 Baylor University

 Former Member, Committee on Rural Health Concerns
            Texas Medical Association

      Former Member, Committee on Rural Health
         Texas Academy of Family Physicians


                           7
          KE¡TH E. MILLER, M.D.


                .LICENSURE.

    State of Texas (H-2155), 8/87 to Present

 Formerly Licensed in Arkansas and Louisiana


                 - AWARDS .

    Texas Academy of Physician Assistants
    Supervising Physician of the Year - 2004

         American Medical Association
         Physician's Recognition Award

   American Academy of Family Physicians
Award for Clinical lnstruction of Medical Students

     Center lndependent School District
 Community Service Award for Contributions to
      Student Academics and Athletics

   Anderson County Educational Cooperative
   Service Award for Organizing Programs for
           Special Services Students

             Texas State Legislature
      Award of Appreciation for Serving as
    Physician to Legislators While in Session


             - PUBLICATIONS.
 "Use of Digoxin in the Family Practice Setting"
   Journal of the Arkansas Medical Society
                 February 1988




                        8
                               KEITH E. IIJIILLER, M.D.


                                     - ARTICLES -

                  "More Doctors in Texas After Malpractice Caps"
                                 New York Times
                                 October 5,2007
         Story of Texas Medical Board Responding to lncreased Licensing
        Demands During My Tenure as Chairman of the Licensing Committee

                              "Dangerous Doctors"
                                 Reader's Dþesf
                                    June 2004
               Background Story of Texas Medical Board Prior to My
                        Appointment as a Commissioner

                         "Dangerous Doctors - Follow-Up"
                                 Reader's Digest
                                    March 2005
                 Follow-up Story of Texas Medical Board After My
Appointment as a Commissioner lncluding Motion Made by Myself for the Largest Fine
                  Levied Against a Doctor by any State in History

                                "No Medicinal Jet Fuel"
                                    Iexas Medicine
                                     August 2009
 Story of My Filing of Complaint Against a Physician for Non-Therapeutic Prescribing


                                    - PERSONAL .

                       Married to Linda Gee Miller since 1975

    lnterests Are Health-Care Reform and Finance lssues, in America and Abroad

                   Speaks Fluent German and Passable Spanish

                       I   nstrument-Rated Private Aircraft Pilot

                              Umpire, High School Baseball



                                             9
Appendix C
Van Ness v. ETMC First Physicians,46l S,W.3d 140 (2015)
2015 WL 1870051, 58 Tex. Sup. Ct. J. 746



                                                                           provides adequate information to inform the
                             46r S.W.3d t4o                                defendant of the specific conduct the plaintiff
                         Supreme Court of Texas.                           has called into question, provides a basis for the
                                                                           trial court to conclude that the claims have
      Melissa Van Ness, Individually and as Next                           merit, and does not contain a material
   Friend, an Heir at Law, and a Suryiving Parent of                       defrciency. Tex. Civ. Prac, & Rem. Code Ann.
  Nicholas Van Ness, Ronald Van Ness, Individually                         $$ 7a.3s1(l), (rX6).
      and as Next Friend, an Heil at Law, and a
  Surviving Parent of Nicholas Van Ness, and Estate
          of Nicholas Van Ness, Petitioners,                               2 Cases that cite this headnote
                                   v.
         ETMC First Physicians & Kristin Ault, D.O.,
                      Respondents
                                                                     l2l   Appeal and Error
       No. r4-o353 | Opinion delivered:April24, zor5
                                                                           q.'*Rulings on adrnissibility of evidence in
                                                                           general

Synopsis                                                                   A trial court's ruling on the sufficiency of an
Bacl<ground: Parents             of minor child who died of                expeft's report in a health care liability case is
pertussis (whooping cough) brought a health care liability                 reviewed for abuse of discretion. Tex. Civ. Prac.
action against physician and physician's employer. The                     & Rem. Code Ann. $$ 74.351(l), (rX6).
2nd Judicial District Cour1, Cherokee County, denied
physician and employer's motion to dismiss based on
parents' alleged failure to cornply with requirements for                  Cases that cite this headnote
an expeft report. Physician and employer appealed. The
Tyler Court of Appeals, 2014 WL 1308624, reversed,
rendered, and remanded, Parents petitioned for review.

                                                                     f3l
                                                                           Appeal and Error
                                                                           ,;'-Cases Triable in Appellate Court
[Holding:l The Suprerne Court held that the trial court                    Appeal and Error
acted within its discretion in determining that expert's                   q"*SuffTciency of Evidence in Support
report was a good-faith effort to comply with the statutory
requirernents for expert reports in health care liability                  When reviewing          for   abuse   of   discretion,
cases.                                                                     appellate coufts defer to the trial court's factual
                                                                           determinations if they are supported by evidence
                                                                           but review its legal determinations de novo.
Petition for review granted; judgrnent of Couft of Appeals
reversed and case remanded.
                                                                            1 Cases   that cite this headnote



 West Headnotes (6)
                                                                     l4l   Appeal and Error
                                                                           ç*Abuse of discretion
 lll        Health
            ù'-"Affidavits of merit or meritorious defense;                A trial court  abuses its discretion if it rules
            expert affidavits                                              without reference to guiding rules or principles.

            A report is a good-faith effort to comply with
            the statutory requirements for expeft reports in                1 Cases   that cite this headnote
            health care liability cases, so as to survive a
            challenge to the sufficiency of the report, if it                                             _*
        _
1.'irp'.1{,1¡,¡;f{py.l   O 2015 fhomson Reuters. No claim to original U.S. Government    Works.                                 1
Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015)
2015 WL 187005'1 , 58 Tex. Sup. Ct. J. 746

                                                                      Heidi O. Vicknair, Jason Charles Webster, Houston, Tina
                                                                      Brumbelow, Tyler, Vincent L. Marable III, Paul Webb,
 lst       Health                                                     P,C., Wharton, for Petitioners Estate of Nicholas Van
           n^Affidavits of merit or meritorious defense;              Ness, Melissa Van Ness, Ronald Van Ness, individually
            expert affìdavits                                         and as next friend, heirs at law, and surviving parents of
                                                                      Nicholas Van Ness.
           For an expert's repofi in a health care liability
           case to be sufficient, the expert must explain,            Russell G. Thornton, Thiebaud Remington Thornton
           based on facts set out in the report, how and why          Bailey LLP, Dallas, for Respondents Kristin Ault, D,O.,
           the breach caused the injury; a bare opinion that          ETMC First Physicians,
           the breach caused the injuLy will not suffice.
           Tex, Civ. Prac. & Rem. Code Ann, $$ 74.351(l),             Opinion
           (Ð(6).
                                                                      PER CURIAM

           2 Cases that cite this headnote
                                                                      **1 This case, which is subject to the Texas Medical
                                                                      Liability Act (TMLA), TEX. CIV. PRAC, & REM,
                                                                      CODE ch. 74, involves the adequacy of an expert report,
                                                                      The issue is whether the trial court abused its discretion
 I6l
           Health                                                     by denying the defendants' motion to disrniss in light of
           'f*Affidavits of merit or meritorious   defense;           conflicting statements in the plaintiffs' expeft report,
            expert affidavits                                         some of which the defendants alleged, and the court of
                                                                      appeals held, failed to link the expert's conclusions to the
           Trial court acted within its discretion in                 underlying facts,
           determining that expert's report was not
           conclusory but, instead, was a good-faith effort           Nicholas Van Ness died from pertussis (whooping cough)
           to comply with the statutory requirements for              when he was two months old. His parents, Melissa and
           expert reports in health care liability cases, such        Ronald Van Ness, sued Kristin Ault, D,O,, and her
           that parents' action against physician and                 employer, ETMC First Physicians, alleging that Dr.
           physician's employer after minor child died of             Ault's negligence caused Nicholas's death and that
           pertussis (whooping cough) survived a motion               ETMC was vicariously liable for her negligence. The Van
           to dismiss for failure to comply with the                  Nesses timely served Dr. Ault and ETMC with an experl
           requirements, even though the report contained             report by Alvin Jaffee, M.D., then served an amended
           conflicting statements regarding antibiotics and           repoft after the trial court sustained the defendants'
           causation; the reporl also set out that child's            objections to the original. The defendants again moved to
           illness was treatable when physician saw him               dismiss the suit, contending that Dr, Jaffee's opinions as
           and that starting antibiotics at that time and             to causation were conclusory because the amended report
           continuing them as indicated by diagnostic                 (the report) failed to link his opinions to the underlying
           testing probably would have prevented child's              facts, The trial court denied the motion, On interlocutory
           death. Tex, Civ, Prac. & Rem, Code Ann. $$                 appeal, seeTEX. CIV. PRAC. &. REM. CODE $
           74,351(l), GX6).                                           51,01a(a)(10), the court of appeals reversed and ordered
                                                                      the suit dismissed. ETMC First Physiciqns v. Van Ness,
                                                                      461 S.W,3d 152 (Tex.App.-Tyler 2014). We reverse the
           I   Cases that cite this headnote                          judgment ofthe court ofappeals.

                                                                      ttlA plaintiff asserting a health care liability claim must
                                                                      serve each defendant with an expeft repoft that includes
                                                                      "a fair summary of the expert's opinions ... regarding
*I4I
   ON PETITION FOR REVIEW FROM THE
                                                                      applicable standards of care, the manner in which the care
                                                                      rendered by the physician or health care provider failed to
COURT OF APPEALS FOR THE TWELFTH                                      meet the standards, and the causal relationship between
DISTRICT OF TEXAS
                                                                      that failure and the injury, harm, or damage claitned."
Attorneys and Law Firms
                                                                      TEX, CrV. PRAC.       & REM. CODE $ 74.351GX6).           A
                                                                      challenge to the sufficiency of a report must be sustained

ti',r¡¡1,i!.,,t.,:;f{*rt' @2015   Thomson Reuters. No claim to original U.S. Government Works.                                 2
Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015)
2015 WL '1870051 , 58              ïex. Sup. Ct. J. 746

if "the report does not represent an objective good faith                The defendants objected to Dr. Jaffee's report on the
effoñ to cornply with the fstatutory requirements]." 1d. $               ground that it failed to explain how Dr. Ault's alleged
74.351(l). A repoft is a good faith effort if it provides                negligence caused Nicholas's death, specifÏcally
adequate infonnation to "inform the defendant of the                     contending that Dr. Jaffee's rnedical conclusion was not
specific conduct the plaintiff has called into question, ..,             linked to the facts of the case and was conclusory. The
providefs] a basis for the trial court to conclude that the              defendants moved for dismissal of the suit. The trial court
clairns have merit,"Bowie Mem'l Hosp. v. Wright, 79                      denied the motion. The couft of appeals reversed and
S.W.3d 48, 52 (Tex.2002) (per curiam), and "does not                     rendered judgment dismissing the Van Nesses' suit with
corrtain * 142 a material deficiency,"Samlowski v. Iïooten,              prejudice, agreeing with the defendants that Dr. Jaffee's
332 S,W.3d 404,410 (Tex.2011),                                           report was deficient as to the causation element. 461
                                                                         S.W.3d at 143
l2l l3l l4l ltlA trial court's ruling on the sufficiency of an
expert's report is reviewed for abuse of discretion.                     IolDr. Jaffee's nine-page repoft generally        discusses
Rosentond v. Al-Lahiq, 33 1 S.W.3d 764, 766 (Tex.201 1);                 pertussis, including its diagnosis and treatment. His reporl
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46                also contains separate sections addressing the applicable
S.W.3d 873,877 (Tex.2001). Under that standard,                          standard ofcare, breach ofthe standard, and causation. In
appellate coults defer to the trial court's factual                      the standard ofcare section, he opined, in part, that
detenninations if they are supported by evidence, but
review its legal determinations de novo. See Stockton v.                   [t]he applicable standard of care as to Kristin Ault, DO
Offenbach,336 S.W.3d 610, 615 (Tex.2011). A trial court                    is upon evaluation of a one month old child who
abuses         its    discretion    if it   rules without reference to     pl'esents with symptoms such as a history of fever,
guiding rules or principles. Samlowski, 332 S,W.3d                  at     cough and nasal congestion, compounded        by sick
410. An expert must explain, based on facts set out in the                 contacts       at home, is to perform laboratory tests,
repoft, how and why the breach caused the injury, See                      administer antibiotics prophylactically while the tests
Jelinekv, Casas,328 S,W,3d 526,53940 (Tex,20l0). A                         are pending and/or to admit the infant to a medical
bare expert opinion that the breach caused the injury will                 facility...,
not suffice. Id

**2 Dr. Jaffee set out the following facts in his report as
those on which he based his opinions, Nicholas was born
                                                                           .., [H]ad Dr. Ault, performed any of these tests, it
                                                                           would have shown Bordetella pertussis at a treatable
orr November 13, 2009. He was seen by Dr. Ault on
                                                                           stage and but for the failure to treat Nicholas Van *143
Novernber 19 and November 30 for regular checkups, and
                                                                           Ness as outlined above he would have had a 51% or
Dr. Ault noted no concerns at either visit. However, the
                                                                           more chance of survival.
records from his four-week checkup on December                      11
reflected that Nicholas had a fever with a temperature of
                                                                         In the breach section, Dr. Jaffee states again that Dr. Ault
100.2 degrees, was coughing and suffering from nasal
                                                                         breached the standard of care in several ways on both
congestion, and was exposed to "sick contacts at home."
                                                                         December 11 and December 15, including failing to have
According to an affidavit submitted by Nicholas's mother,
                                                                         various laboratory diagnostic tests performed on Nicholas
she reported to Dr. Ault on December 11 that Nicholas
                                                                         and failing to administer antibiotics prophylactically
had been coughing to the point that he could not breathe
                                                                         while the tests were perforrned. Finally, in the causation
and was exhibiting facial discoloration. Nothing indicated
                                                                         section of his report, Dr. Jaffee repeats his opinion that
that Dr. Ault performed any laboratory or diagnostic tests
                                                                         Dr, Ault should have taken specifìed actions including
on Nicholas.
                                                                         running diagnostic tests on Nicholas and administering
                                                                         antibiotics prophylactically. He also states, "It is within a
The Van Nesses returned to see Dr. Ault on December 15
                                                                         reasonable degree of medical cerlainty and/or with 51%
and explained that Nicholas's symptoms had worsened.
                                                                         certainty that had Dr. Ault appropriately evaluated and
Dr. Ault physically examined Nicholas, but again did not
                                                                         diagnosed him, Nicholas Van Ness would have received
perform or order any tests. On December 20, the Van
                                                                         the appropriate dosage and treatment of antibiotics in a
Nesses took Nicholas to East Texas Medical Center
                                                                         timely manner, and he would not have expired on January
Hospital in Jacksonville, where he was treated for acute
                                                                         20,2010."
pneurnonia, wheezing, and tachycardia. The following
day he was transfened to the Children's Medical Center
                                                                         As supporl for its conclusion that the report was deficient
Hospitalin Dallas, where he died on January 20,2010.
                                                                         as to causation, the appeals court focused on several
                                                                         statements from the report, including the following:

''1ir¡:¡..i¡;,i'.r¡þjsy"t.   @2015 Thomson Rer"rters. No claim io original U.S. Government Works                                   3
Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015)
2015 WL 1870051 , 58 Tex, Sup. Ct. J, 746

      .  "prevention of pertussis via vaccination is of          would not have prevented Nicholas's death; thus, the
      primary impoftance because treatment is of little          report did not *144 demonstrate a causal relationship
      benefit to the person infected";                           between Dr. Ault's alleged negligence and Nicholas's
                                                                 death.461 S.W,3d 152.
      **3 .     ((s¡v¿ccinated
                                 or   incompletely vaccinated
      infants younger than 12 months         of   age have the   In its analysis however, the appeals court did not fully
      highest     risk for   severe and life-threatening         credit all of Dr. Jaffee's factual statements and opinions.
      complications and death";                                  In particular, the court did not credit statements and
                                                                 opinions from Dr. Jaffee's report to the effect that (1) a
      . "A reasonable guideline is to treat .,. infants aged     stage existed at which pertussis could be treated with
      less than [one] year within six weeks of cough             antibiotics; (2) if Dr, Ault had given Nicholas antibiotics
      onset"; and                                                prophylactically and ordered testing, the tests would have
                                                                 shown his pertussis was at a treatable stage; and (3)
      .     "antibiotics may 'shoften       the duration of      Nicholas would have had a 5|Yo chance of recovery if Dr.
      infectiousness and are thus recotntnended.'    "           Ault had started Nicholas on prophylactic antibiotics and
                                                                 continued antibiotics as indicated by results ofthe tests.
461 S.W.3d       152.

                                                                 Dr. Jaffee's statetnent about antibiotics having little effect
In reaching its conclusion as to Dr, Jaffee's repoft, the        on pertussis other than reducing the potential for
couft of appeals noted that Nicholas began receiving             spreading the disease is in tension with his statements that
treatment on December 20 in the Jacksonville hospital. It
                                                                 Nicholas was treatable with antibiotics and would have
fufiher identified December 20 as being approximately            had a 51o/o chance of survival if Dr, Ault had adrninistered
three weeks after Nicholas's visit with Dr, Ault on
                                                                 them. The first-referenced statement, by itself, indicates
November 30, at which time he was not yet feverish,
                                                                 that whatever Dr. Ault did on December l1 or December
coughing, or presenting other symptoms, Given the                15 would have had little effect on the course of Nicholas's
temporal sequence of events, the appeals court reasoned
                                                                 illness and would not have prevented his death.
that treatment beginning on December 20 "was well                Accordingly, as the couft of appeals explained, that
within the reasonable guideline of treating the disease          statement standing alone would not demonstrate that
within six weeks of cough onset" specified by Dr. Jaffee
                                                                 under the facts as set out in the report Dr. Ault's alleged
and
                                                                 negligence was causally related to Nicholas's death, and
                                                                 his causation opinion would be conclusory.
  Dr. Jaffee's conclusion that Nicholas would not have
  died had Dr. Ault began treatment on December ll,              **4
  2010, or December 15, 2010, does not follow from the
                                                                       However,    Dr. Jaffee's report also set out that
                                                                 Nicholas's illness was treatable when Dr. Ault saw him in
  aforementioned discussion of the facts in his repoft.
                                                                 December, and starting antibiotics     at that time and
  Rather, because treatment is of little benefit to the          continuing them        as indicated by diagnostic testing
  person affected, the facts lead to the conclusion that         probably would have prevented Nicholas's death. Given
  had Dr. Ault provided antibiotics to Nicholas on either        these parts of the repotl, the trial court could have
  of those dates, at most Nicholas's symptoms may have           determined that Dr. Jaffee's opinions were linked to the
  lessened and his ability to spread the disease to others       underlying facts and explained why and how Dr. Ault's
  may have diminished. The facts discussed in the repoÍ          timely treatment of Nicholas with antibiotics would have
  do not show that treatment would have altered the              prevented his death,
  course of the disease, but lead to the conclusion that
  Nicholas was unfortunately one of those infants who            Under     the   circumstances,     the trial couft had
  did not survive despite timely treatment.                      discretion-indeed it was incumbent on the trial court-to
                                                                 review the report, sort out its contents, resolve any
461       S.W.3d at 144                                          inconsistencies in it, and decide whether the report
                                                                 demonstrated a good faith effort to show that the Van
The couft of appeals focused on Dr. Jaffee's statements          Nesses' claims had merit, Considering both the repoft's
that treatment with antibiotics is of little benefìt and only    explication of how Dr. Ault's alleged negligence was
would have lessened Nicholas's symptoms and reduced              causally related to Nicholas's death and the conflicting
the contagiousness of his pertussis. 461 S.W.3d 152.             statements as to that causal relationship, we conclude that
Based on those statements, the court concluded that the          the trial court did not abuse its discretion by determining
repoft showed that treatment earlier than December 20            that the report was not conclusory, but was a good faith


',ïi.',.Íi;,rrrl{Êxf O 2015 Thomson Reuters. No claim to original U.S. Government Works                                      4
Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015)
2015   Wt   1870051 , 58 Tex. Sup. Ct, J, 746


efforl to cornply with the TMLA's requirements. Thus the
trial court did not abuse its discretion by denying Dr.
Ault's motion to dismiss, see Samlowski, 332 S,W.3d at
410, and the court of appeals erred by reversing the trial         All Citations
court's judgment.
                                                                   461 S.W,3d 140,2015 WL 1870051, 58 Tex. Sup. Ct.            J
                                                                   746
We grant the petition for review, 'Without hearing oral
argument, s¿eTEX, R. APP. P. 59.1, we reverse the court
of appeals' judgrnent and remand the case to the trial
couft for further proceedings.
End of Document                                              O 2015 Thomson Reuters, No claim to original U.S. Government Works.




'#*Ett,r;vfrlnxt. O 2015 Thomson Reuters. No claim to original U.S. Government Works                                           5
pendix D
                                                                                    CIV¡L PRACTIgE & REMEÞIES CODE
                                                                                              CHAPTER 74. MEDICI\L LIABILITY
                                                                                                                5574.r54-74.2s1

                                                                                                                                   *
/B S.W.3d
          SS2,       556                /cì that is related t0 an emergency caused in                                                             SUBCHAPTER F. STATUTE OF
    ne pnrases ,stan.                                                                                                                                    LIMITATIONS
                                      , -\i'., in part by the negligence of the defendant.
I

t  are not Syn0nv.                  tt'io,ro rio, g74 ì54: Acts 2003, 78th Leg' ch 204, 0l, cff sept' l,
                                               t                                       "sl0                                                       GPRC ç74.25I. STATUTE OF
llpractice actions.                                                                                                                                 LIMITATIONS ON HEALTH
l    expert's medical               ',iirflli?rtru;tffias
                                                                       co'n' "uedicar Negrigcnce under the ,vredicar                                 CARE LIABILITY CLAIMS
le applicable
                                                                                                                                              (a)
                                                                                                                                                Notwithstanding any other law and subject to
                  stan:                                   74'155'74'200 reserued for expansion
; not constituts                              Secilons                                                                                 Subsection (b), no health care liability claim may be

5Z+.SSr1¿10¡. ¡n.
                          ¿
                                                                     E. REs lPsA LoQUITUR                                              commenced unless the action is filed within two years
                                       "u""toPTER                                                                                      from the occurrence of the breach 0r tort 0r from the
rndard of proof ¡s.                     ¿pRC 574,201. APPLIGATION OF
 cases. In the ¿¡.
                                              RES IPSA LOQUITUR                                                                        date the medical or health care treatment that is the
                                            The common
                                                       lawdoctrine of res ipsa loquitur shall                                          subject of the claim or the hospitalization for which the
    any expert rep¡¡¡
                                    nnlv apply t0
                                                  health care liability claims against health                                          claim is made is completed; provided that, minors un-
r or     health     s¿¡s
                                    .oé provi¿ers or   physicians  in those cases t0 which it                                          der the age of 12 years shall have until their 14th birth-
md wanton         could
                                        nr.n applied by  the appellate  courts of this state as                                        day in which to file, or have filed on their behalf, the
ne dixit      because               f'ur
                                    ofAugust29,1977'                                                                                   claim.r Except as herein provided this section applies to
n expert report       is
                                            Hjstory of CPRC .s74 20l:
                                                                      Acls 2003, 78th   Leg, ch. 204,   $   I0 0I' eff Sept   l'       all persons regardless of minority or other legal disabil-
                                             Source: TRCS art 4590i' N7
                                                                          0l
                                    2003.
                                                                                                                                       ity.
                                            See also   |'Connot's Tems C1A, "Res ipsa loquitur," ch. 20-4,              $9 3'

TRUCTIONS                           P 66S
                                                                                                                                           (b) A claimant must bring a health care liability
MERGENCY                                                            ANNorarroNs                                                        claim not later than l0 years after the date of the act or
E                                                                                                                                      omission that gives rise to the claim. This subsection is
                              ''        Kinguood Pines Hosp, LLC a, Gomez, 362 S.W.3d
Lt   involves a claim                                                                                                                  intended as a statute of repose so that all claims must
                                    740,751 (Tex.App.-Houston Il4th Dist'] 2011, no
iion of emergency                                                                                                                      be brought within l0 years 0r they are time barred.
                                    pet,). "Res ipsa loquitur is not a cause of action sepa-
 department or ob- i'                                                                                                                       l. Ilditor's notei A minor is not lcgally capable 0fbringing suit until she
                                    rate from negligence; rather, it is a rule of evidence by                                          reaches the agc of 18. Weinet u. l/as.son, 900 S.W2d 316, 318 (Tex,1995).
rmediately follow. l                                                                                                                   Thus,aminorhasuntilher20thbirthdaytofilesrrit./¿/. at32l;seeolsoAdams
                                    which the jury may infer negligence. It applies to situa-
ratient in a hospi-                                                                                                                    n, GottØal(t,179 S.W.3d l0l, 103 ('Iex.App.-San Antonio 2005, pet, denied)
                                    tions in which two factors are present: (l) the charac-                                            (applying open-courts provisi0n 0fTexas Constitut¡on to $74,251).
 shall instruct the
                                    ter of the accident is such that it would not ordinarily                                                Historyof CPRC $74,251: Acts 2003, 78th Leg., ch. 204, $10.01, eff. Sept. l,
her relevant mat-                                                                                                                      2003. Source: TRCS art.4590i, $10,01.
                                    occur in the absence of negligence, and (2) the instru-
                                                                                                                                              See also }'Connor's Texas C0A,"LimiTations," ch. 20-4, $5, p. 637.
                                    mentality causing the injury is shown to have been un-
rg care    did or   did             der the management and control ofthe defendant, Fur-
or was able or      un-        ,.
                                    ther, the doctrine applies only when the nature of the                                                                              Generally
ry     including the          ';.   alleged malpractice and injuries are plainly within the
                                                                                                                                          Methodíst Heulthcare Sys, a. Ranhin, 307 S.W.3d
.ditions, allergies,                common knowledge of laypersons, requiring no expert
                                                                                                                                       283, 290 (Tex.20l0). "To hold that a statute of repose
                                    testimony. .., The three recognized areas in which res
                                    ipsa loquitur applies to health care claims are negli-
                                                                                                                                       [ike $74.251(b)] must yield to IP's] inability to dis-
risting physician'                                                                                                                     cover her injury would treat a stâtute of repose like a
                                    gence in the use
ovider-patient re'                                      of mechanical instruments, operating                                           statute of limitations, and would effectively repeal this
                                    0n the wrong body part, and leaving surgical instru-
                                                                                                                                       and all other statutes 0f repose. At 292: Section
                                    menß 0r sponges inside the body," Jee also Haddocþ a,
rg   the emergencY;                                                                                                                    74.25 I (b)'s grant of absolute protection against indefi-
                                    ArnspÍger, ?93 S.Wzd 948, 951 (Tex.1g90); Broxter-
                                                                                                                                       nite potential liability does not violate the Texas Consti-
                                    man u. Corson,
                                                         309 S.W3d 154, 158-59 (Tex.App,-                                              tution.",See also Walters a, Cleaeland Reg'l Med, Ctr,,
ng the delivery of                  Dallas 2010,
                                                   pet. denied).
                                                                                                                                       307 S.W3d 292,298 (Tex,20l0).
                                        Traut a. Beaty, zs S,W.Bd 661, 662 (Tex.App.-
    (a) do not   aPPIY              ^
                                    rexarkana
                                                 2002, no pet.). " lRles ipsa loquitur cannot
                                                                                                                                           Shah u. Moss,67 S.W.3d 836, 841 (Tex.200l). TRCS
                                    ue aPplied
                                                                                                                                       art. 4590i, $10.01, now CPRC $74.251(a), "measures
                                                 in every case in which an object is left in a
                                                                                                                                       the limitations period for medical negligence claims
                                    Patie.nt's boOy."
                     is
                                                      HetO: Although p used the theory of res
i stabilized and
                                    tÞsa loquiturjexpert                                                                               from one of three dates: (l) the occurrence of the
nt as a noneflof'                                           testimony was needed to eitablish                                          breach or tort, (2) the last date ofthe relevant course of
                                    a^causal
                                               ,onn.ótion between D's negligence and P's
                                    Þai¡.
                                                                                                                                       treatment, or (3) the last date ofthe relevant hospital-
    al medical efler'                                                                                                                  ization. A plaintiff may not choose the most favorable
                                              Sections 74.202-f4.250                                                                   date that falls within $10.01's three categories. Rather,
                                                                     reserued                 for exponsion

                                                                                                                                                                         O'CoNNoR's TExa,s cPRC 265
                                               CIVIL PRACTICE & REMEDIES CODE
                                                      CHAPTER 74. MEDICAL LIABILITY
                                                                         ss74.3o3 - 74.351

                                                                                            *-
 time at which damages subject to such limits                                     are             ity claim is asserted, The date for serving the reÞ'rt
 awarded by finaljudgment or settlement.                                                          may be extended by written agreement of the affei¡g¿                            (k)
     (c) Subsection (a) does not apply to the amount of                                           parties. Each defendant physician or health care                             served
                                                                                                                                                            Þr0.
 damages awarded on a health care liability claim for                                             vider whose conduct is implicated^in a report musifile                          (1)
 the expenses of necessary medical, hospital, and custo-                                          and serve any objection to.the sufficie¡6y of the repo¡¡                        (2)
 dial care received before judgment or required in the                                            not later than the later of the 2 I st day after the date                    pr0cee(
                                                                                                                                                             the
 future for treatment of the injury.                                                              report is serued or the 2 I st day after the date the defen_                    (3)
      (d) The liability of any insurer under the common                                           dant's answer is filed, failing which all objections
                                                                                                                                                             ¿¡q
                                                                                                                                                                               c0urse
 law theory of recovery commonly known in Texas as the                                            waived.                                                                         (t)
 "Stowers Doctrine" shall not exceed the liability of the                                            (b) If, as to a defendant physician or health ç¿¡g                        equacy
 insured.                                                                                        provider, an expert report has not been served within                         after ht
     (e) In any action on a health care liability     claim                                      the period specified by Subsection (a), the court, 0n
                                                                                                                                                       the
                                                                                                                                                                               jective    I




 that is tried by ajury in any court in this state, the fol-                                     motion of the affected physician or health care pr'.                          an exp(

 lowing shall be included in the court's written instruc-                                        vider, shall, subject to Subsection (c), enter an oider                           (ml
 tions to the jurors:                                                                            that:                                                                             (r)
     (l)    "Do not consider, discuss, nor                             speculate                        (l)
                                                                                                         awards to the affected physician or health care               ,           (l)
 whether or not liability, if any, on the part of any party is                                   provider reasonable attorney's fees and costs of court                        physici
                                                                                                                                                        in.
 or is not subject to any limit under applicable law."                                           curred by the physician or health care provider; and                          fected    t
    (2) "A finding of negligence may not be based                                                                                                                              this sec
                                                                                                     (2) dismisses the claim with respect to the physi_
solely on evidence of a bad result to the claimant in                                                                                                                          tion wh
                                                                                                 cian 0r health care provider, with prejudice to the refil.
question, but a bad result may be considered by you,                                                                                                                           0r agrel
                                                                                                 ing of the claim.
along with other evidence, in determining the issue of
                                                                                                                                                                                   (2)
                                                                                                       (c)
                                                                                                         If an expert report has not been serued within                            (3)
negligence, You are the sole judges of the weight, if                                                                                                                      .
                                                                                                 the period specified by Subsection (a) because ele.
any, to be given to this kind of evidence."                                                                                                                                        (4)
                                                                                                 ments of the report are found deficient, the court may
     History of CPRC $74.303: Acts 2003, 78rh Leg., ch. 204,   g   10.01, eff. Sepr.   l,                                                                                      provide
2003, Source: 1'llCS art. 4590i, gl 1.04.                                                        grant one 30-day extension to the claimant in order to
                                                                                                                                                                               asserte
    See also 0'Co¿¡¡¿or's Texqs COA, "Stoøers Doctrine," ch. l3-8, p. 367;                       cure the deficiency. If the claimant does not receive      no-
"Medical Negligence Under. the Merlical Liability Act," ch. 20-A, p. S99.                                                                                                      cross-dr
                                                                                                 tice of the court's ruling granting the extension until
                                                                                                                                                                                   (5)
                              ANNOTATIONS                                                        after the 120-day deadline has passed, then the 30-day
                                                                                                                                                                                   (A)
   Phíllips u, Bromlett,2BB S,W.3d 8Z6, 880 n.5 (Tex.                                            extension shall run from the date the plaintiff first re-
                                                                                                                                                                               m0ny r(
2009). "The IMLIIA], ITRCSI arr. 4590i ..., was re-                                              ceived the notice.
                                                                                                                                                                               cepted     r

peâIed.... The cap in [TRCS art. 4590i,] gll.02 was,                                                   (d) to (h)   [Reserved.]                                                testify   r
however, carried forward in ICPRC] $?4.303(a).... The                                                  (i)Notwithstanding any other provision of this              .               (B)
Stowers exception in S11.02(c) was not carried for-                                              section, a claimant may satisff any requirement of this                       m0ny r
ward, but rather replaced by 974.303(d) which ex-                                                section for serving an expert report by serving reports                       parted         ;

pressly provides that the insurer can now use the cap to                                         of separate experts regarding different physicians or                         pert qui
limit its liabilily.. .."                                                                        health care providers or regarding different issues aris'                     tion 74.

      Sections 74.304-74.350 reserued for expansion                                              ing from the conduct of a physician or health care pro'                           (c)
                                                                                                 vider, such as issues ofliability and causation. Nothing                      mony al
         SUBqHAPTER H. PRoqEÞURAL                                                                in this section shatl be construed to mean that a single                      harm, t
                           pRovtstoNs                                                                                                                                          from th
                                                                                                 expert must address all liability and causation issues
    CPRC 574.35f . EXPERT REPORT                                                                 with respect to all physicians or health care províders                       liabitity
    (a) In a health care liability claim, a claimant shall,                                      or   with respect to both liability and causation   issues for
                                                                                                                                                                               render         ,




not later than the 120th day after the date each defen-                                          a   physician or health care provider.                                        Texas     R

dant's original answer is filed, serve 0n that party or the                                            (i)
                                                                                                         Nothing in this section shall be construed          t0                    (D)
                                                                                                                                                                               rnony al
party's attorney one 0r more expert reports, with a cur-                                         require the serving of an expert report regardin9
riculum vitae of each expert listed in the report for each                                                                                                                     harm, (
                                                                                                 issue other than an issue relating to liability or
physician or health care provider against whom a liabil-                                                                                                                       from thr
                                                                                                 tion.

27O O'CoNNoR's TExas CpRC
                                                             CIVIL PRAcT¡qE & REMEDIES CoÞE
                                                                     CHAPTER 74. MEDICAL LIABf LITY
                                                                                        574.35 t

                                                                                          *
                       ,    fk)    Subject   to Subsection (t), an expert report              tist or physician who is otherwise qualified to render
                                         this section:                                        opinions on such causal relationship under the Texas
r care                ^.*ii       under
                                                                                              Rules of Evidence; or
                      '"'   rtl    ir not admissible in evidence by any party;
t must                                                                                            (E) with respect to a person giving opinion testi-
                                  stralt not be used   in a deposition, trial, or other
                            iZi                                                               mony about the causal relationship between the injury
                                      und
re date               n,oùáding;                                                              harm, or damages claimed and the alleged departure
the
                      l-    13; shall
                                      not.be referred to by any party during the
                                                                                              from the applicable standard of care for a podiatrist, a
                                    actl0n 10r any purpOse'
                      rourse of the                                                           podiatrist or physician who is otherwise qualified to
                            lD          shall grant a motion challenging the ad-
                                  A court
                                                                                              render opinions on such causal relationship under the
                                 an expert report only if it appears to the court,
:alth                 ,ouàóy of                                                               Texas Rules of Evidence.
             care
                      ,tiert''euting, that the report does not represent an ob-                  (6) "Expert report" means a written report by an
ed within
                      Lctive good faith
                                        effort to comply with the         definition of
rrt, on the                                                                                   expert that provides a fair summary of the expert's
                                       in SubsecLion (r)(6)'
                      än expert report                                                        opinions as of the date of the report regarding appli-
care pro.
                            (m) to   (q)     [Reserved.]                                      cable standards of care, the manner in which the care
    an   order,
                            (Ð    In this section:                                            rendered by the physician or health care provider failed
                            (1)"Affected partíes" means the claimant and the                  to meet the standards, and the causal relationship be-
lalth       care
                      physician or health care provider who are directly af-                  tween that failure and the injury harm, or damages
f   court in:
                      fected by an act or agreement required or permitted by                  claimed.
r; and
                      this section and does not include other parties to an ac-                   (s) Until a claimant has served the expert report
he physi.
                      tion who are not directly affected by that particular act               and curriculum vitae as required by Subsection (a), all
    the refil.        or agreement.                                                           discovery in a health care liability claim is stayed ex-
                            (2) "Claim" rneans       a health care   liability claim.         cept for the acquisition by the claimant of information,
:d within                   (3)   [Reserued.]                                                 including medical or hospital records or other docu-
ruse ele.                   (4) "Defendant" means a physician or health care                  ments 0r tangible things, related to the patient's health
ourt may              provider against whom a health care   liability claim is                care through:
    order        to   asserted,     The term includes a third-party defendant,                     (l)    written discovery as defined in Rule                        192.7,
:eive no.             cross-defendant, or counterdefendant.                                   Texas Rules of Civil Procedure;
ion until                   (5)   "Expert" means:                                                  (2)    rlepositions on written questions under Rule
e 30-day                                                                                      200, Texas Rules of Civil Procedure; and
'
                            (A) wiih respect to a person giving opinion testi-
    first   re-
                      mony regarding   whether a physician departed from ac-
                                                                                                   (3) discovery from nonparties under Rule                              205,
                      cepted standards of medical care, an expert qualified to                Texas Rules of Civil Procedure.
                      testi$' under the requirements of Section 74.401;                           (t) If an expert report is used by the claimant in
                         (B) with respect to a person giving opinion testi-                   the course of the action for any purpose other than to
rt of this            mony regarding whether a health care provider                           meet the service requirement ofSubsection (a), the re-
                                                                           de-
    reports           parted from accepted                                                    strictions imposed by Subsection (k) on use of the ex,
                                                  standards of health care, an ex-
                      pert qualified                                                          pert report by any party are waived.
:ians ot                               to testify under the requirements of Sec-
tes aris'             tion 74.402;                                                                (u) Notwithstanding any other provision of this
are pr0'                    (C) with respect to a person giving opinion                       section, after a claim is filed all claimants, collectively,
Vothing
                      _
                      mony about
                                                                        testi-                may take not more than two depositions before the ex-
                                      the causal relationship between the injury
I    single,                                                                                  pert report is served as required by Subsection (a),
                                damages claimed and           the alleged depariure
                      1.1'*:.0,                                                                    History of CPRC S74.351: Acts 2003, 78th Leg,, ch. 204, $10.01, efi Sept. l,
    issues                      applicable standard of care in any heaith care                2003. Amended byActs 2005,79th Leg., ch.635, gl, eff. Sept. 1,2005; Acts 2013,
                      llT,lh-
                      ttabili$ claim,                                                         83rd Leg., ch.870, $2, eff. Sept. l,2013. Source: TRCS art.4590i, $13.01.
oviders                               a physician who is otherwisã qualified to
                      render opinions                                                              See also   O'Co¡¡¡¡orb Tems C0A,"ExperL report," ch.20,4, $7.2, p. 652.
iues for
                                        on such causal relationshipunder the
                      texas Rules
                                  of Evidence:
rued        t9                    with respect to a person giving opinion testi-
                      .^{D)                                                                                                    574.351    (a)
ng       any
                      'uOny ab0ut    the causal retátionship between the injury                    Zanchi a, Lane,408 S.W3d 373,375 (Tex.2013).
    causa'
                      ,,iiiifJ.iii:f';:                                                       "Today we determine whether a claimant asserting Ian
                                               :li iHå îï : JåïJ i å:i      ff il: ::         HCLCI complies with tCPRCI $74.351(a)'s mandate to

                                                                                                                               O'CoNNoR's TEXAs              CPRC        2-71
                                                                CIVTL PRAGTIGE & REMEDIES CODE
                                                                        CHAPTER 74. MEDICAL LII\BILITY
                                                                                58   74.402 - 74.405

                                                                                              *
                                       sp ecialty may be qualified to testi ry if                 and the injury harm, or damages claimed if the person
                          from 0ne
I but                                 kn owledge of what ls cu stomari ly done                    is a dentist or physician and is otherwise qualified to
                           pracli cal
                               nef  t of    d ifferent spe ct alty unde clrcum"                   render opinions on that causal relationship under the
rto                            imilar to thos e at ssue
                                                        ln the case Indeed,             if        Texas Rules of Evidence.
e                             matter c0mm0n to and equally recognized
                                             IS                                                       (c)  In a suit involving a health care liability claim
ny         if                     in all fields of practice, any physician fa-                    against podiatrist, a person may qualiff as an expert
                                                                                                           a
                                             may testify as to the standard 0                     witness on the issue of the causal relationship between
                         with the subj ect                         ts
                                   the proffered medi cal expert expertise                        the alleged departure from accepted standards of care
                           evl dent from the four corners of
                                                                his report and                    and the injury harm, or damages claimed if the person
)e
n                                 vilae." See also Methodíst Hosp, a. Shep-                       is a podiatrist or physiciaú and is otherwise qualified to
                                         ,   296 S.W.3d 193,            l98   (Tex.App,-          render opinions on that causal relationship under the
0ns
                                      Dist.       ]   2009, no Pet.).                             Texas Rules of Evidence.
tter                           I l4th
                                    t). Gueffa,252            S.W.3d 511, 531-32 (Tex.                (d) A pretrial objection to the qualifications of a
rbj
                                 uston   [4th Dist.]         2008, pet, denied). Corpo-           witness under this section must be made not later than
lm
                        attOrney's expert "report explaining the'contrac-                         the later of the 2lst day after the date the objecting
                        and corporate inter-relationships    of the various                       party receives a copy of the witness's curriculum vitae
h ich
                    Dsl 'along with their
                                           duties to each other   Iis admis-                      or the 21st day after the date of the witness's deposi-
een
                         because CPRCI 5$74.401(d)      and  74.402(d)    are                     tion. If circumstances arise after the date on which the
and
s      for                   for use at the   expert  report  phase   of [an                      objection must be made that could not have been rea-
                                                                                                  sonably anticipated by a party before that date and that
loes                   Group u,  Vicento,l64 S.W.3d 724,731 (Tex.App'-                            the party believes in good faith provide a basis for an
s00n                          [14th Dist.] 2005, pet. denied). "IS]ection                         objection to a witness's qualifications, and if an objec'
rut                       (a)'s two definitions of 'practicing health care'                       tion was not made previously, this subsection does not
tness           'are not exclus ive.         H I Reading        574.402 subsections    (a)        prevent the party from making an objection as s00n as
f an                (b)(1) together, subsection (a) expands upon the                              practicable under the circumstances. The court shall
                definition of'practicing health care' to include quali-                           conduct a hearing to determine whether the witness is
rg t0               teachers and consulting health care providers who                             qualified as s00n as practicable after the filing of an ob-
le                    not otherwise be qualified under subsection                                 jection and, if possible, before trial. If the objecting
sectioll        (b)(l) because they are not practicing health care and                            party is unable to object in time for the hearing to be
                instead teach        or consult." See also Foster a, Zaaala,                      conducted before the trial, the hearing shall be con-
                .?14
ali                    S,W3d 106, 113     (Tex.App.-Eastland 2006, pet. de-                        ducted outside the presence of the jury. This subsection
                ried)                                                                              does not prevent a party from examining 0r cross'ex-
                a

ff.
                ,,CPRC s 74 403. a U l\ L F CAT o N s o F                                          amining a witness at trial about the witness's qualifica-

i8, p.
                   EX P E R T W T N ES s o N c l\ U SA T o N                                      tions.
                   N H E A LT H c A R E L A B L T Y c L A M                                               Historyof CPRC $74.403:Acts 2003, 78th Leg., ch 204, $10.01, eff. Sept. I,

      ¡i        I (a) Except as provided by Subsections (b) and (c),                              2003.
                                                                                                          See also   0'Co¡¡¡¡orb Texas C0A,"F'xperlTestimony," ch.20"4, $8, p.661'
                       suit involving a health care              liabi lity claim against a
                                                                                                                                    ANNOTAT¡ONS
an                            or health care provider, a person may qualify
                     an expert  witness on the issue of the causal relation                         TTHR, L,P, a. Coffman,338 S.W.3d 103, 111 (Tex,
                        between the alle ge d departure from accep ted stan
'ery                                                                                              App.-Fort Worth 2011, no pet.), "IP] argues that an
 ify                     of care and the lnJ ury harm 0r damage claimed                           expert report Ion a claim for the wrongful release of
rq                      if the   pers0n      IS   a p hysician and IS oth e rwlse qu ali          medical information prohibited by Occ. Code $ 159.002 l
                          render 0p lnl0n s on that causal relationship u n                       would require the expert to render a legal opinion and,
                           Texas Rules of Evidence
er                                                                                                because the statute requires a physician to render the
                           In a suit involving a health care liability claim                      expert opinion, it cannot be created. At I I4: Because
ß                          a   denti st,     d   pers0n may qual ifv as an expert wit-            the standard of care regarding confidentiality is a stan-
t.ue                     0n the issue                                                             dard that applies to all health care providers and be-
                                      of the causal           relati onsh lp betwee n
                       alleged departure
                                                    from accepted standards of care               cause health care providers are expected to know the

                                                                                                                                       o,coNNoR's TExas cPRC 243
