                                           NO. 07-09-0104-CV

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL C

                                      SEPTEMBER 29, 2009
                                ______________________________

                            METHODIST HOSPITAL LEVELLAND d/b/a
                              COVENANT HOSPITAL LEVELLAND,

                                                                         Appellant

                                                      v.

                                         JEFFREY KIMBRELL,

                                                                         Appellee
                              _________________________________

                FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                      NO. 08-06-21,355; HON. PAT PHELAN, PRESIDING
                            _______________________________

                                     Memorandum Opinion
                               _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       In this accelerated appeal, Methodist Hospital Levelland d/b/a Covenant Hospital

Levelland (Covenant) appeals from an order of the trial court denying its objections to the

sufficiency of a medical expert report served by Jeffrey Kimbrell (Kimbrell) in his lawsuit for

medical malpractice against Covenant.1 Kimbrell suffered respiratory arrest after allegedly

being given too much narcotic pain medication following surgery to remove his gall bladder.


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           Covenant also sought dism issal of the lawsuit.
In seeking reversal of the order, Covenant asserts that the expert report of Dr. Rolando H.

Saenz (Saenz) failed to 1) show he was qualified to render an opinion as to the standard

of care for nurses, 2) state the standard of care applicable to a nurse, and 3) identify the

causal relationship between the alleged breach of the standard of care and the claimed

damages. We reverse the order.

       Background

       After successful surgery on Kimbrell, Dr. Weerachai Wiri (Wiri) wrote post-operative

orders for intravenous Demerol to be given every two hours “as needed” for pain as well

as a Fentanyl transdermal patch. The nurse applied the patch at 3:05 p.m. and ten

minutes later gave Kimbrell a dose of Demerol. Two additional doses of Demerol were

administered at 5:25 p.m. and at 11:35 p.m. The next morning, Kimbrell was found to be

in respiratory arrest.

       Kimbrell filed suit on June 17, 2008, pursuant to Chapter 74 of the Civil Practice and

Remedies Code. As required by §74.351, he served his expert report on October 13,

2008. See TEX . CIV. PRAC . & REM . CODE ANN . §74.351(a) (Vernon Supp. 2008). In that

report, Saenz opined about the negligence of Wiri and the nurse administering medicine

to Kimbrell. Covenant does not challenge the adequacy of the report with respect to Wiri.

However, it does contend that Saenz failed to illustrate that he was qualified to offer an

opinion as to the standard of care applicable to nurses, failed to state the applicable

standard of care imposed on nurses, and failed to establish a causal link between the

nurse’s actions and the damages suffered by Kimbrell.




                                             2
       Discussion

       An expert witness on the issue of whether the health care provider departed from

accepted standards of care may qualify as one only if he:

       (1)    is practicing health care in a field of practice that involves the same
              type of care or treatment as that delivered by the defendant health
              care provider, . . . ;

       (2)    has knowledge of accepted standards of care for health care
              providers for the diagnosis, care, or treatment of the illness, injury, or
              condition involved in the claim; and

       3)     is qualified on the basis of training or experience to offer an expert
              opinion regarding those accepted standards of health care.


Id. §74.402(b) (Vernon 2005). Here, Saenz stated that he was board certified in general

as well as colon and rectal surgery, did a six-year surgical rotation which included one year

of intensive care medicine, did a fellowship in colon and rectal surgery, had been an

assistant professor of clinical surgery, and maintained a private practice comprised of 60%

general surgery and 40% colon and rectal surgery. He further represented that he

performed 500-600 surgeries a year, 25 to 35 percent of which encompass the removal

of gall bladders. So too did he opine that the nurse who administered the pain medication

“was negligent in not questioning that two narcotics were being ordered at the same time,

and in administering the types of narcotics in the dosage levels as prescribed without first

determining the patient’s pain tolerance.”

       Yet, nothing is said in the report about how Saenz came to know the standards of

care applicable to nurses, as opposed to physicians, in like circumstances. That is

problematic. Admittedly, being a physician may qualify someone to offer an opinion on the

standard of care applicable to nurses or other medical personnel merely because he is a

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physician. In re Stacy K. Boone, P.A., 223 S.W.3d 398, 404 (Tex. App.–Amarillo 2006,

orig. proceeding); Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App.–Texarkana 1997, pet.

denied). Yet, the converse is equally true; being titled a physician does not alone qualify

a doctor to opine about the standards a nurse must follow. And, while various courts have

found physicians so qualified, they did so when the physicians stated that they were

familiar with the standard of care applicable to nurses when preventing or treating the

illness, injury or condition involved or that they were familiar with the standard of care and

responsibilities of nurses because they had worked and interacted with them. Baylor

Medical Center v. Wallace, 278 S.W.3d 552, 558 (Tex. App.–Dallas 2009, no pet.); see

also San Jacinto Methodist Hospital v. Bennett, 256 S.W.3d 806, 813 (Tex. App.–Houston

[14th Dist.] 2008, no pet.) (noting that the expert stated he was familiar with the standard

of care for nurses in the treatment of decubitus ulcers); In re Stacy K. Boone, P.A., 223

S.W.3d at 404 (noting that the expert stated he was familiar with the standards of care and

regularly provided and supervised care in connection with the treatment of patients similarly

situated in terms of physicians, physician’s assistants, nurses, and hospitals); Hall v. Huff,

957 S.W.2d at 99-100 (noting that the expert stated he taught nursing courses and had

testified about the standards of nursing care). No such allegations appear in Saenz’ report

or curriculum vitae, though. That is, neither illustrate that he was familiar with the

standards of nursing care as they relate to post-operative pain management, that he

supervised or worked with nurses in that area, or that he had taught classes to nurses on

the subject.




                                              4
      In short, Saenz may well be highly qualified to render an opinion on the standards

of care a nurse must follow. Yet, we cannot simply conclude that he is. Indeed, standards

of care may well differ between physicians and nurses. See e.g., Simonson v. Keppard,

225 S.W.3d 868, 873-74 (Tex. App.–Dallas 2007, no pet.) (so noting there). And before

we can deem sufficient his opinions regarding the care provided by the nurse at bar, we

must know not only what the nurse was obligated to do but also how the expert knew that.

Unlike situations wherein parents are talking to their children, saying or assuming

“because” is not enough.

      Given our disposition of the first argument, we need not address the others

proffered by Covenant. Instead, we reverse the trial court’s order and remand the cause

for further proceedings.



                                               Brian Quinn
                                               Chief Justice




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