Reversed and Remanded and Memorandum Opinion filed March 25, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00617-CV

 SJ MEDICAL CENTER, LLC, INDIVIDUALLY AND D/B/A ST. JOSEPH
  MEDICAL CENTER, HOSPITAL PARTNERS OF AMERICA, INC., SJ
   MEDICAL CENTER MANAGEMENT, LLC, IASIS HEALTHCARE
       CORPORATION, IASIS HEALTHCARE, LLC, Appellants

                                         V.
REGINA WALKER, INDIVIDUALLY AND AS SURVIVING SPOUSE AND
 HEIR OF THADDAUS WALKER, DECEASED AND TRACY WALKER,
 THADDEUS WALKER, LARRY WALKER, REGINALD WALKER AND
   TIFFANY BRITTON AS CHILDREN AND HEIRS OF THADDAUS
               WALKER, DECEASED, Appellees

                    On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-20429

                 MEMORANDUM                       OPINION


      In this health-care liability case, the defendant hospital appeals the denial of
its motion to dismiss the claims against it due to the inadequacy of the original and
amended expert reports. We agree that the expert’s opinion of the standard of care
applicable to the hospital lacks specificity and that his discussion of the hospital’s
breach of that standard is conclusory. We therefore reverse and remand the case
with instructions to the trial court to (a) sever the claims against the hospital from
the remainder of the action, (b) assess and award to the hospital its reasonable
attorney’s fees and costs incurred, and (c) dismiss the claims against it with
prejudice.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      After a motor-vehicle accident on January 27, 2010, Thaddaus Walker was
admitted to St. Joseph Medical Center, LLC d/b/a St. Joseph Medical Center
(“SJMC”). According to the reports of the claimants’ expert Dr. Brian Camazine,
Walker’s injuries included an orbital-floor fracture, a broken toe, a large bruise on
one thigh, and “pulmonary contusion vs pneumonia with hemoptysis.” Walker
also had a history of coronary-artery disease, hypertension, diabetes, and obesity.
We will focus on Walker’s cardiac, pulmonary, and glycemic conditions because
in the reports at issue, Dr. Camazine attempted to relate only those conditions or
symptoms to the claims against SJMC.

    Cardiac condition. At 3:45 a.m. on January 28, 2010, Walker experienced
      chest pain that was relieved with nitroglycerin. An EKG performed at 4:00
      a.m. showed premature ventricular contractions, but cardiac-enzyme tests
      performed at the same time did not suggest a myocardial infarction. Walker
      had a second episode of chest pain at 7:30 a.m., and again, it was relieved
      with nitroglycerin. Dr. Camazine does not indicate that Walker had any
      further chest pain, although Walker did have an episode of tachycardia on
      January 29, 2010.

    Pulmonary condition. Walker experienced sputum production, hemoptysis,
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       and wheezing at unspecified times during his stay at SJMC. On January 28,
       2010, he was reportedly short of breath upon exertion. At noon the next day,
       he had an oxygen saturation of 88% and was started on albuterol nebulizers
       for wheezing. When Walker was discharged later that day, he was not
       complaining of any shortness of breath.

    Glycemic condition. During his two days at SJMC, Walker’s glucose level
       increased from 119 mg/dl upon his admission to a high of 421 mg/dl. At
       11:30 a.m. on January 29, 2010, his glucose level was 377 mg/dl, which Dr.
       Camazine described as being three times the normal level.                   Walker’s
       physicians started him on an aggressive insulin regimen at noon that day.

       Walker was discharged at around 5:00 p.m. on January 29, 2010. During the
ride home, he complained of shortness of breath, then stopped breathing. Walker
was transported to Memorial Hermann Hospital, where cardiac-enzyme tests
“showed an evolving myocardial infarct.” Walker died on January 31, 2010.
According to Dr. Camazine’s expert reports, the autopsy showed acute myocardial
infarction, severe coronary-artery disease, and “an undiagnosed squamous cell
carcinoma of the right upper lobe”; however, Dr. Camazine did not specifically
identify Walker’s cause of death.

       Walker’s wife and children sued SJMC and others,1 then served the
defendants with Dr. Camazine’s first expert report. SJMC moved to dismiss the
claims against it on the grounds that the expert report was vague and conclusory,
and thus, was not a good-faith effort to fulfill the statutory requirements governing
expert reports in health-care-liability claims.2 The trial court denied the motion

       1
           SJMC is the only defendant that is a party to this appeal.
       2
        SJMC also challenged Dr. Camazine’s qualifications, but does not reurge that objection
on appeal.

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“for the time being” and gave Walker’s survivors a thirty-day extension to amend
the expert report to address SJMC’s objections. After the amended expert report
was served, SJMC again moved to dismiss. The trial court denied the motion.

                             II. STANDARD OF REVIEW

      When reviewing the trial court’s ruling on a challenge to an expert report,
we apply the abuse-of-discretion standard. Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court “‘abuses its
discretion when it acts in an arbitrary or unreasonable manner without reference to
guiding rules or principles.’” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010)
(quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per
curiam)). When determining whether the trial court abused its discretion, we may
not substitute our judgment for that of the trial court. Wright, 79 S.W.3d at 52.

                                   III. ANALYSIS

      A claimant under the Texas Medical Liability Act must serve each defendant
health-care provider with one or more expert reports and with the curriculum vitae
of each expert listed in the report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)
(West Supp. 2013). The expert report must provide a fair summary of the expert’s
opinions regarding the applicable standard of care, the manner in which the health-
care provider failed to meet that standard, and the causal relationship between that
failure and the injury or harm alleged. Id. § 74.351(r)(6); Wright, 79 S.W.3d at 52;
Palacios, 46 S.W.3d at 878–79. In setting forth the expert’s opinions on each of
these three elements, the report must (a) inform the defendant of the specific
conduct the plaintiff has called into question, and (b) provide a basis for the trial
court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report
does not fulfill these requirements if it merely states the expert’s conclusions about
the standard of care, breach, and causation. Id. The expert instead “‘must explain
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the basis of his statements to link his conclusions to the facts.’” Jelinek, 328
S.W.3d at 539 (quoting Wright, 79 S.W.3d at 52).

A.    Dr. Camazine’s discussion of the standard of care lacks specificity.

      Dr. Camazine opined that under the standard of care applicable to SJMC, the
hospital and its nursing staff were required to

      [e]nsure that a patient is not discharged prematurely. The nursing
      staff, as a result of constant contact with a patient, are in a unique
      position to know when a patient is stable for discharge. The nurses
      are usually acutely aware of a patient’s cardiac-pulmonary status and
      a patient[’]s glycemic control. Although nursing staff are not in a
      position to write the orders to discharge a patient, there are means by
      which the nursing staff can prevent the discharge of a patient if they
      feel that the patient is not ready for discharge. Such means may be as
      simple as contacting the attending surgeon and voicing concerns.
      Other means to prevent a discharge involve contacting a nursing
      supervisor or even the Chief of Staff of the hospital. By no means are
      nurses at the mercy of following an order that would put the patient in
      danger.
We agree with SJMC that Dr. Camazine failed to specify what care SJMC was
required to give.

      “While a ‘fair summary’ is something less than a full statement of the
applicable standard of care and how it was breached, even a fair summary must set
out what care was expected, but not given.” Palacios, 46 S.W.3d at 880 (quoting
Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865 (Tex.
App.—Houston [1st Dist.] 1999) (Taft, J., dissenting)).            Dr. Camazine
acknowledged that “nursing staff are not in a position to write the orders to
discharge a patient,” but paradoxically, he opined that SJMC and its nursing staff
nevertheless were required to “[e]nsure that a patient is not discharged
prematurely.”       This presupposes not only that the patient’s discharge was
premature, but also that SJMC had some way of knowing that the discharge was

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premature, despite a physician’s orders to the contrary.           Nevertheless, Dr.
Camazine does not identify any actions that SJMC or its staff were required to take
to determine whether Walker’s physicians’ discharge orders were premature, and
he does not identify what “concerns” should have been voiced by SJMC’s staff in
the absence of such a determination.

      Walker’s survivors argue that this case is like San Jacinto Methodist
Hospital v. McCoy, No. 14-12-00682-CV, 2013 WL 3009318 (Tex. App.—
Houston [14th Dist.] June 13, 2013, no pet.) (mem. op.), in which this court found
a standard of care sufficiently specific where the expert opined that the standard
required “the operating room nurse to examine the specimen that was removed and
verify that is [sic] the entire appendix. If it was not, the operating room nurse
needs to bring it to the attention of the surgeon performing the operation.” 2013
WL 3009318, at *3. Thus, the expert in that case opined that the nurse had a duty
to make an independent determination based on his or her own examination of a
specimen. That case is distinguishable because Dr. Camazine does not contend
that SJMC’s staff had a similar duty to “examine,” to “verify,” or to perform any
act to independently determine whether discharge was appropriate.

      The claimants also cite Bidiwala v. Cockerell, No. 05-08-01156-CV, 2009
WL 866380 (Tex. App.—Dallas Apr. 1, 2009, no pet.) (mem. op.), stating that the
court in that case found the expert’s standard of care sufficiently specific where the
expert opined that “‘[s]tatements made by the patient regarding difficulty breathing
should be reported and or charted and brought to the attention of the appropriate
physician.’” 2009 WL 866380, at *2. According to the expert in that case, if the
defendant—a consulting physician—“‘was present when the patient stated that she
could not breathe or was having difficultly [sic] breathing, . . . then [the defendant]
breached the standard of care by not reporting those statements to the attending

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physicians and by not taking actions to assure that appropriate interventions were
begun.’” Id. Contrary to the claimants’ characterization of the case, the authoring
court did not address the question of whether the stated standard of care was
sufficiently specific; it addressed the question of whether the description of the
breach was based on improper inferences. Id. Moreover, the case is factually
distinguishable in that the expert in that case cited evidence that the defendant was
present when the patient complained of difficulty breathing but failed to document
the complaint or report it to the treating physician. Here, no one contends that
SJMC failed to document anything or that it possessed any information that
Walker’s physicians lacked.3

B.    Dr. Camazine’s discussion of the breach of the standard of care is
      conclusory.
      According to Dr. Camazine, SJMC breached the standard of care by
“[a]llowing Mr. Walker to be discharged prematurely despite known unresolved
cardiac-pulmonary issues and poor glycemic control.” We agree with SJMC that
Dr. Camazine’s opinion that it breached the standard of care is conclusory.

      Dr. Camazine does not identify the “cardiac-pulmonary issues” that were
both “known” by SJMC and “unresolved” at the time of Walker’s discharge.
Although the only conditions he related to Walker’s death were myocardial
infarction and pneumonia, he does not contend that these conditions were “known”
to SJMC. As Dr. Camazine himself points out, even Walker’s physicians did not
detect these conditions. Dr. Camazine does not contend that SJMC’s staff had an
independent duty to “know” or “resolve”—that is, to diagnose and treat—
conditions that allegedly were not detected or sufficiently addressed by Walker’s

      3
           A second failure-to-document case cited by Walker’s survivors is factually
distinguishable for the same reason. See Gannon v. Wyche, 321 S.W.3d 881 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied).

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physicians, who—unlike SJMC’s nursing staff—were actually licensed to do so.
Compare TEX. OCC. CODE ANN. § 151.002(a)(13) (West Supp. 2013) (“‘Practicing
medicine’ means the diagnosis, treatment, or offer to treat a mental or physical
disease or disorder or a physical deformity or injury by any system or
method . . . .”) with id. § 301.002 (“‘Professional nursing’ . . . does not include acts
of medical diagnosis or the prescription of therapeutic or corrective measures.”)
and id. § 301.004 (“[The Nursing Practice Act] does not authorize the practice of
medicine . . . .”).

       Dr. Camazine’s statement about “poor glycemic control” suffers from the
opposite problem: physicians did detect and treat this condition, initiating “an
aggressive insulin regimen” five hours before Walker’s discharge. Dr. Camazine
does not contend that the treatment that was instituted at that time was in any way
inappropriate, and he does not explain why it was premature to discharge Walker
after instituting appropriate treatment.4

       Finally, Dr. Camazine listed some actions that SJMC’s staff could take “if
they feel that the patient is not ready for discharge,” but he does not contend that
SJMC’s staff knew or should have known that Walker’s discharge was premature.
In the absence of such actual or constructive knowledge, there were no “concerns”
for SJMC’s staff to express.

       Because we conclude that Dr. Camazine’s reports fall short of statutory
standards on the interrelated issues of the standard of care and its breach, we
sustain the sole issue presented without addressing SJMC’s arguments concerning
causation.


       4
        Moreover, Dr. Camazine’s reference to “poor glycemic control” is a red herring,
inasmuch as he does not relate that condition to Walker’s myocardial infarction, pneumonia, or
death.

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C.    SJMC is entitled to recover reasonable attorney’s fees and costs in an
      amount to be determined by the trial court.
      Because Walker’s survivors failed to produce an expert report that satisfies
statutory requirements, SJMC is entitled to recover its reasonable attorney’s fees
and costs incurred. See Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex.
2008) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351); Hightower v. Baylor
Univ. Med. Ctr., 348 S.W.3d 512, 521–22 (Tex. App.—Dallas 2011, pet. denied).
SJMC asked that if we determined that the claimants failed to produce an expert
report meeting statutory requirements, we either (1) reverse and render judgment
assessing attorney’s fees and dismissing the claims against it with prejudice, or
(2) reverse and remand the cause with instructions to the trial court to assess
statutory attorney’s fees and dismiss the case with prejudice.

      Although this court can review an award of fees and costs, the initial
determination of a reasonable amount falls in the first instance to the trial court.
Cf. Awoniyi v. McWilliams, 261 S.W.3d 162, 166 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (addressing sufficiency of the evidence presented to the trial
court in determining the amount of the award). Where the trial court fails to
consider the matter, remand is appropriate to allow the court to do so. See Rivenes
v. Holden, 257 S.W.3d 332, 341 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied). We accordingly reverse and remand the case.

                                 IV. CONCLUSION

      Because the standard of care as stated in Dr. Camazine’s original and
amended expert reports lacks specificity and his opinion that SJMC breached the
standard of care is conclusory, we hold that the trial court abused its discretion in
failing to assess attorney’s fees and costs and dismiss the claims against SJMC.
We therefore reverse the judgment and remand the cause with instructions to the


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trial court to (a) sever the claims against SJMC from the remainder of the action,
(b) assess and award to SJMC its reasonable attorney’s fees and costs incurred, and
(c) dismiss the claims against SMJC with prejudice in accordance with this
opinion.



                                      /s/    Tracy Christopher
                                             Justice



Panel consists of Justices Boyce, Christopher, and Brown.




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