




02-10-334-CV
























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-10-00334-CV
 
 



TTHR Limited Partnership d/b/a Presbyterian
  Hospital of Denton


 


APPELLANT




 
V.
 




Claudia Moreno, Individually and as Next Friend of
  Freddy Coronado, a Minor


 


APPELLEE



 
 
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FROM THE 362nd
District Court OF Denton COUNTY
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MEMORANDUM
OPINION[1]
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          TTHR
Limited Partnership d/b/a Presbyterian Hospital of Denton (Presbyterian)
appeals the trial court’s order on its motion to dismiss.  Presbyterian moved
to dismiss based on the alleged failure of Appellee Claudia Moreno,
individually and as next friend of Freddy Coronado, a minor, to comply with
chapter 74 of the civil practice and remedies code.  We will affirm in part and
reverse and remand in part.
Background
Facts
          Moreno
was admitted to Presbyterian in January 2007, complaining of pain and swelling
associated with her pregnancy with twin boys.  Moreno’s obstetrician, Dr. Marc
Wilson, was out of town.  Nurses in the labor and delivery department had
difficulty monitoring Moreno and paged the physician on call, Dr. Lori
Gore-Green, at 8:00 p.m. on January 21.  Dr. Gore-Green did not see Moreno
until 8:03 a.m. on January 22.  Dr. Wilson arrived and also saw Moreno that
morning.
          Dr.
Wilson induced labor, and the first twin was delivered without a problem.  Dr.
Wilson then used forceps and a “vacuum extraction” device to assist with the
delivery of the second twin, Freddy.  Freddy suffered blood loss and a “hypoxic
ischemic insult” that allegedly caused damage to his nervous system and his
kidneys.
          Moreno
filed suit against Presbyterian, Dr. Gore-Green, and Dr. Wilson alleging that
their negligence caused Freddy’s injuries.  In an attempt to comply with
chapter 74 of the civil practice and remedies code, Moreno filed an expert
report by Dr. Samuel Tyuluman with her petition.  See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351 (Vernon Supp. 2010).  Presbyterian
objected to Dr. Tyuluman’s report on the grounds that, as an obstetrician and
gynecologist, Dr. Tyuluman is not qualified to opine on kidney damage and
neurological injuries.  Moreno then filed an expert report by Dr. Billy Arant,
who is board certified in pediatric nephrology.  Presbyterian objected to this
report as well and filed a motion to dismiss for failure to comply with chapter
74.  Presbyterian argued that Dr. Arant’s report failed to address causation
and that Moreno still had not provided a report addressing the neurological
injuries.
          A
hearing was held on Presbyterian’s motion, at which the trial court found that
the reports were sufficient as to the kidney damage claims, but insufficient as
to the neurological damage claims.  The trial court granted a thirty-day
extension “to make a causal link for the neurological damage.”
Moreno
then filed a third expert report by Dr. John Seals, a neurologist. 
Presbyterian objected to Dr. Seals’s report, arguing it failed to address
causation, and it moved again to dismiss the claims against it.  A hearing was
held and the court denied Presbyterian’s motion.  Presbyterian appeals.
Standard
of Review
We
review a trial court’s denial of a motion to dismiss for an abuse of
discretion.  Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris
v. Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied);
Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91
(Tex. App.—Fort Worth 2008, pet. denied).  To determine whether a trial court
abused its discretion, we must decide whether the trial court acted without
reference to any guiding rules or principles; in other words, we must decide
whether the act was arbitrary or unreasonable.  Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied,
476 U.S. 1159 (1986).  Merely because a trial court may decide a matter within
its discretion in a different manner than an appellate court would in a similar
circumstance does not demonstrate that an abuse of discretion has occurred.  Id. 
But a trial court has no discretion in determining what the law is or in
applying the law to the facts, and thus “a clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion.”  Walker
v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); Ehrlich
v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).
The
Chapter 74 Expert Report Requirement
The
purpose of the expert report requirement is to inform the defendant of the
specific conduct the plaintiff has called into question and to provide a basis
for the trial court to conclude that the claims have merit.  Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)).  An
expert report “need not marshal all the plaintiff’s proof.”  Palacios,
46 S.W.3d at 878 (construing former Texas Revised Civil Statute art. 4590i, §
13.01).  Additionally, the information in the report “does not have to meet the
same requirements as the evidence offered in a summary-judgment proceeding or
at trial.”  Id. at 879.
A
defendant may meet the requirements of chapter 74 through multiple reports.  Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(i).  A single report need not “address
all liability and causation issues with respect to all physicians or health care
providers or with respect to both liability and causation issues for a
physician or health care provider.”  Id.  But read together, the reports
must provide a “fair summary” of the experts’ opinions regarding the “applicable
standards of care, the manner in which the care rendered by the physician or
health care provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed.”  Id. § 74.351 (r)(6).
If
the defendant files a motion challenging the adequacy of the expert report, the
court shall grant the motion “only if it appears to the court, after hearing,
that the report does not represent an objective good faith effort to comply
with the definition of an expert report.”  Id. § 74.351(l).  An expert
report is defined as a report that “provides 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 damages claimed.”  Id. § 74.351(r)(6).  The trial court may
grant one thirty-day extension to cure a deficiency in the expert report.  Id.
§ 74.351(c).
Discussion
          Moreno
sued Presbyterian for failing to provide adequate training to employees;
adequately-trained personnel; adequate policies and procedures; and adequate
supervision of employees.  She brought claims for negligence as well as vicarious
liability for the negligent actions of the nurses and the doctors.  For each of
those claims, Moreno was required to submit expert reports that set forth the
standard of care, the breach of that standard, and the causal connection
between the breach and the damages suffered.  Id. § 74.351(r)(6).
1.   
The direct liability claims
Dr.
Tyuluman’s report stated that the standard of care for a hospital is to “have
properly trained nursing staff, appropriate policies and procedures and to make
sure the nurses follow them, including a chain of command policy.”  The only
reference by Dr. Tyuluman to a breach of the standards set forth in his report
was to summarily allege that the hospital and nurses violated each of those
standards.
Neither
Dr. Arant nor Dr. Seals attempted to describe any standard or breach by the
hospital.  Instead their reports were specifically directed to fulfilling the
requirement of showing a causal connection between the failure of the health
care providers to meet the standards of care and the injury, harm, or damages
claimed.  Dr. Arant opined that the proximate cause of Freddy’s kidney injuries
was asphyxia prior to birth.  His report contains no opinion concerning how the
actions of the hospital caused asphyxia prior to birth.  Dr. Seals’s report
states that the damage to Freddy’s brain was the result of “an Hypoxic-Ischemic
process which occurred during the labor and delivery process.”  Once again, the
doctor’s report is completely devoid of any opinion as to how the hospital
violated a standard of care that caused this brain injury.  Nowhere in any of
the reports does an expert provide insight on Presbyterian’s staff training,
its policies or procedures, or what its “chain of command” policy is.
Section
74.351(r)(6) of the civil practice and remedies code specifically requires an
expert report to include a fair summary of the manner in which care
rendered by the health care provider failed to meet the standards of care.  Id.
 Considering all the reports together, they still do not inform the hospital of
what specific conduct Moreno is calling into question.  This deficiency fails
to provide a basis for the trial court to assess whether the claims have
merit.  See Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 12 (Tex. App.—Tyler
2002, pet. denied) (“To constitute a good-faith effort, the report must inform
the defendant of the specific conduct the plaintiff has called into question
and provide a basis for the trial court to determine that the claims have
merit.”); RGV Healthcare Associates, Inc. v. Estevis, 294 S.W.3d 264,
270–71 (Tex. App.—Corpus Christi 2009, pet. denied) (holding that an expert
report was deficient because it “did not speak as to how RGV Healthcare’s
direct conduct, such as the implementation of procedures, policies, or rules
that could have ensured vigilant care, deviated from the applicable standard of
care”).  These reports merely provide an expert conclusion about a breach by
the hospital and therefore do not constitute a good faith effort.  See
Palacios, 46 S.W.3d at 880 (holding that an expert report’s conclusory statements
“do not put the defendant or the trial court on notice of the conduct
complained of” and does not represent a good faith effort).  The expert reports
were therefore deficient as to the direct liability claims against
Presbyterian, and the trial court abused its discretion by not finding them to
be so.  See Estorque v. Schafer, 302 S.W.3d 19, 25 (Tex. App.—Fort
Worth 2009, no pet.) (noting that a report does not comply with statute if it
omits the statutorily required discussion of the standards of care, breach, or
causation).  We affirm Presbyterian’s issue as to those claims.
2.   
The vicarious liability claims for the nurses’ alleged
negligence
Dr.
Tyuluman’s report stated,
The standard of care
for nurses is to adequately monitor the patient and to keep the physician
informed of the patient’s condition.  If the physician doesn’t respond to
notification of inability to monitor the patient, then the standard of care
requires the nurse to invoke the chain of command.  Further, if a nurse
observes a physician misusing forceps and/or a vacuum extractor, the nurse
likewise has to invoke the chain of command.  According to the chart, this was
not done.
 
However,
he fails to state how the nurses violated any of those standards.  An expert
report “must inform the defendant of the specific conduct the plaintiff has
called into question.”  Palacios, 46 S.W.3d at 879.  Dr. Tyuluman’s
report does not discuss what a nurse should do if monitoring the patient is
impossible.  It does not explain what the “chain of command” is or how and when
a nurse should invoke it.  It does not opine on the proper length of time a
nurse should wait for a physician before invoking the chain of command or whether
the amount of time Moreno’s nurses waited, if they did, fell below the standard
of care.  It also does not state that the nurses did in fact observe a
physician misusing forceps or a vacuum extractor, or if they did, how and when they
should have initiated the chain of command.  Dr. Tyuluman’s report does not
fairly describe what acts he thinks are negligent, nor does it “provide a basis
for the trial court to conclude that the claims have merit.”  Id. 
Neither of the other expert reports attempt to address the standard of care or
breach by the nurses.  Further, neither Dr. Arant’s nor Dr. Seals’s report
describes any causal relationship between any action or inaction of the nurses
and the injuries complained of.  We therefore hold that the trial court abused
its discretion by finding the reports sufficient as to these claims.  See
Davisson v. Nicholson, 310 S.W.3d 543, 559 (Tex. App.—Fort Worth 2010,
no pet.) (holding that reports that failed to fault defendant for plaintiff’s
injuries were inadequate).  We sustain Presbyterian’s issue as to these claims.
3.   
The vicarious liability claims for the doctors’ alleged
negligence
Dr.
Tyuluman’s report states that the standard of care for an obstetrician is “to
carefully monitor the patient and develop a plan for ultimate delivery;” “to
obtain regular non-stress tests and biophysical profiles of the patient;” “to
come and evaluate the mother and fetus, especially when called by the nursing
staff;” “to make sure the patient is adequately monitored and if that is not
done or cannot be done, then to proceed with a different plan;” and when it was
discovered that the second twin was in distress, “to quickly deliver the second
baby.”  He states that the doctor should have “avoided” use of forceps and the
vacuum extractor, and that the doctors should have decided to perform a
Cesarean section when they realized they could not monitor the babies and again
when the second twin went into distress.  Dr. Tyuluman also states that because
Moreno was of “advanced maternal age,” the doctors should have obtained
“regular non-stress tests and biophysical profiles” and that the doctors’
failure to do this fell below the standard of care.  While Dr. Tyuluman was
unqualified to testify as to the causal link between the delivery and Freddy’s
kidney and neurological injuries, Dr. Arant and Dr. Seals are qualified and did
opine on the causal connection.
Taken
together, the expert reports set out the standard of care, breach, and causal
relationship for the vicarious liability claims for the doctors’ alleged
negligence.  They therefore provide enough information to fulfill the two
purposes of the expert report—to inform the defendant of the specific conduct
the plaintiff has called into question and to provide a basis for the trial
court to conclude that the claims have merit.  See id.  The trial court
did not abuse its discretion in refusing to dismiss these claims.  We overrule
Presbyterian’s issue as to these claims.
Chapter
74’s Thirty-Day Extension
          If
an expert report has not been served, chapter 74 requires the dismissal of the
plaintiff’s claims.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).  It
further provides that if a report is considered not to have been served
“because elements of the report are found deficient, the court may grant one
30-day extension to the claimant in order to cure the deficiency.”  Id.
§ 74.651(c).
Moreno
already received one extension.  However, that extension was only to cure the
deficiency “regarding the causal relationship between the failure to meet
applicable standards of care of the hospital and/or nurses and Freddy
Coronado’s alleged neurological injury.”  The trial court specifically directed
what deficiency should be addressed.  The trial court otherwise found the
expert reports sufficient.  Moreno therefore had no cause to amend the expert
reports in any other regard.  Because the trial court did not find the reports
deficient regarding the standard of care and breach of that standard, the trial
court did not determine whether Moreno should be granted an extension to cure
those deficiencies or if the claims should be dismissed.  We remand the case so
that the trial court has the opportunity to make such a determination.  See
Estorque, 302 S.W.3d at 25 (“An appeals court may find an expert report
deficient and remand the case to the trial court to decide whether to grant a
thirty-day extension to cure the deficiency.”).
Conclusion
          We
affirm the trial court’s judgment as to the vicarious liability claims for the
doctor’s actions.  As for the direct liability claims against Presbyterian and
the vicarious liability claims for the nurses’ actions, we reverse.  We remand
the case to the trial court for further proceedings consistent with this
opinion.
 
 
 
LEE GABRIEL
JUSTICE
 
PANEL: 
DAUPHINOT,
MEIER, and GABRIEL, JJ.
 
DELIVERED:  March 17, 2011




[1]See Tex. R. App. P. 47.4.


