                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00181-CV


LONNIE WAYNE SHAW, INDIVIDUALLY, AND D/B/A SKYWEST ASSISTED LIVING
                 CENTER, BY SHAW, APPELLANTS

                                           V.

LOUDENE WEST, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE
 ESTATE OF BILLY EUGENE WEST, TERRY WESTER, BILL WEST AND KELLEY
                       GARDNER, APPELLEES

                          On Appeal from the 181st District Court
                                   Randall County, Texas
               Trial Court No. 66,246-B, Honorable John B. Board, Presiding

                                   September 24, 2014

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Lonnie Wayne Shaw, individually, and d/b/a Skywest Assisted Living Center

(collectively Skywest) appeals from an order denying its objections to two expert reports

and motion to dismiss the healthcare liability lawsuit filed against it by Loudene West,

individually and as personal representative of the estate of Billy Eugene West, Terry

Wester, Bill West, and Kelley Gardner (collectively West). We reverse and remand.
       Background

       Billy West was a resident of Skywest through July of 2011.1 He was involved in

an altercation with another resident on July 29th which altercation left him with fractures

to his jaw, eye socket, and cheekbone and a bloody face, nose, ear and lip. Later that

same day, he went to the same resident’s room and was found therein with a bloody

mouth and a wound on his hand.

       A day later, Billy fell several times while attempting to leave his bed. These

events left him with additional injuries to his mouth, nose, hands, and leg. According to

the record before us, he was not afforded medical care or attention for the

aforementioned injuries until July 31st. On that date, he was transferred to Baptist St.

Anthony Hospital (BSA) whereat he underwent surgery for the fractures. On August 5,

2011, his caretakers placed him in the care of a hospice. Billy then died of pneumonia

on August 18, 2011.

       West filed a lawsuit claiming that Skywest 1) failed to have adequate staff, 2)

failed to adequately supervise and control its patients, 3) accepted patients into the

facility that it was unable or unqualified to care for and failed to refer those patients to a

specialized facility, 4) failed to refer Billy to a facility to handle his injuries, and 5) failed

to timely treat or secure treatment for Billy. West sought two forms of recovery. One

involved damages to recompense Billy’s pain and suffering prior to death and medical

expenses. The other encompassed recovery by his spouse and family members for his

wrongful death.

       To support the claims asserted, West served two expert reports on Skywest

pursuant to § 74.351 of the Texas Civil Practice and Remedies Code. One was from
       1
           The exact date of his admission to Skywest is not discernible from the record.

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Dr. Randall Samberson, a trauma physician. The other was from Donna McCauley, a

registered nurse. Skywest challenged both those affidavits as deficient and moved for

dismissal of the lawsuit. The trial court denied the motion, from which decision this

appeal followed.

       Authority

       In a health care liability claim, the claimant must serve on each party one or more

expert reports not later than the 120th day after the original petition is filed. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351 (a) (West Supp. 2014). A court shall grant a motion

challenging the adequacy of an expert report only if it appears that the report does not

represent an objective good faith effort to comply with the definition of an expert report.

Id. § 74.351(l). Furthermore, an expert report means a written 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).   This definition is satisfied when the report

provides 1) enough information to inform the defendant of the specific conduct that is

questioned and 2) a basis for the trial court to conclude the claims have merit. Certified

EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). The report does not comply with

the statute by merely stating the expert’s conclusions about the standard of care,

breach, and causation. Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747

(Tex. App.—Houston [14th Dist.] 2011, no pet.). Instead, it must explain the basis of the

expert’s statement to link the conclusions to the facts, Bowie Mem. Hosp. v. Wright, 79

S.W.3d 48, 52 (Tex. 2002), and explain what care was expected but not given. Bailey



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v. Amaya Clinic, Inc., 402 S.W.3d 355, 367 (Tex. App.—Houston [14th Dist.] 2013, no

pet.).

         Finally, in reviewing the trial court’s decision viz the adequacy of the reports, we

apply the standard of abused discretion. TTHR Ltd. Partnership v. Moreno, 401 S.W.3d

41, 44 (Tex. 2013). If the decision abides by controlling rules and principles, the trial

court did not abuse its discretion.

         Samberson Report

         Dr. Samberson’s report dealt with Billy’s death and the breached standard of

care that caused it. Therein, he opined:

         It is my medical opinion that the 48 hour delay in Mr. West’s emergency
         medical management for severe facial trauma and dehydration
         exacerbated the overall condition for this confused 81 year old gentleman.

                                            * * *

         His cause of death at autopsy was pneumonia as a consequence of blunt
         force injury to the head. He was diagnosed with right lower lobe
         pneumonia, which is common with aspiration. Confused patients with
         severe facial trauma are susceptible to aspiration of saliva and later
         developing pneumonia. These patients can not clear oral secretions
         normally resulting in inhalation of those secretions. Only by early
         intervention (>45 degrees) of the head of the bed and close respiratory
         management immediately following the injury can this outcome be
         avoided. . . .

         Emergency intervention for facial fractures require airway maintenance
         and control of hemorrhage . . . Mr. West was unable to close his mouth
         with a fracture of the right mandible, ongoing hemorrhage, and tongue
         edema.

         Dysfunctional ventilation leading to intubation greatly increases the risk of
         ventilator associated pneumonia associated with mortality risk greater
         than 50% . . . .

                                            * * *



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       The cause of death is pneumonia caused by the severe facial injury and
       delay of treatment for that injury. . . .

According to Skywest, this report was deficient because it 1) failed to describe how a

delay in treatment caused pneumonia, 2) did not articulate a standard of care, 3)

contained conclusory statements requiring one to infer the meaning of “respiratory

management” and “early intervention,” and 4) failed to identify the person who should

have provided respiratory management or early intervention.

       Skywest correctly observed that Samberson attributed Billy’s death to pneumonia

caused by a forty-eight hour delay in securing emergency medical management for the

fractures suffered by Billy. How that delay caused Billy’s pneumonia, however, went

unexplained. Admittedly, the doctor suggested that pneumonia could arise from the

“aspiration” of saliva or “[d]ysfunctional ventilation leading to intubation [that] greatly

increases the risk of ventilator associated pneumonia.” Yet, he did not state or illustrate

that Billy aspirated saliva during the forty-eight hours in question. Nor did he assert that

the decedent suffered from “dysfunctional ventilation” (a condition that also went

undescribed) during that same time period. Similarly omitted is any discussion as to

how “aspiration” of saliva or “dysfunctional ventilation” could cause pneumonia. So, the

report failed to link the delay to the ultimate cause of death; that rendered the document

deficient.

       McCauley

       Next, McCauley’s report dealt with both the injury suffered by Billy before he was

removed from Skywest and hospitalized as well as the cause of his death. We first

address the latter opinion, that is, the cause of death. She opined that he died from

pneumonia due to the injuries suffered while under the care of Skywest on July 29th

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and 30th. Statute specifies that “in a suit involving a health care liability claim against a

physician or health care provider, a person may qualify as an expert witness on the

issue of the causal relationship between the alleged departure from accepted standards

of care and the injury, harm, or damages claimed only if the person is a physician and is

otherwise qualified to render opinions on that causal relationship.” TEX. CIV. PRAC. &

REM. CODE ANN. § 74.403(a) (West 2011). Because McCauley is not a “physician,” she

cannot render an opinion on the cause of Billy’s death. See Rusk State Hosp. v. Black,

379 S.W.3d 283, 292-93 (Tex. App.—Tyler 2010), aff’d, 392 S.W.3d 88 (Tex. 2012)

(holding that a psychologist could not render an opinion on causation due to the

statute); Christian Care Centers, Inc. v. Golenko, 328 S.W.3d 637, 647 (Tex. App.—

Dallas 2010, pet. denied) (stating that a nurse and nursing home administrator were not

qualified to testify to causation because neither were physicians). Nor may she opine

on whether the purported breaches of duty committed by Skywest caused any other

injury to Billy.

        Being a non-physician, however, does not prevent McCauley from being an

expert on other matters, assuming she is otherwise a qualified expert. As disclosed in

her report and resume attached thereto, McCauley has been a registered nurse since

1998, holds a Bachelor of Science in Nursing degree, and served as director of nursing

for six years in a 120-bed long term care and rehabilitation facility. She also 1) is

employed as a clinical field staff supervisor overseeing a nursing staff and assisting with

the care of multiple patients with “various disease processes including Alzheimer's and

disease processes similar to that of” Billy’s, 2) has worked in other long-term care

facilities and assisted living facilities such as Ware Memorial, which also has an



                                             6
Alzheimer’s unit, 3) has “knowledge of state and federal regulations” applicable to such

facilities, 4) “oversee[s] the care the nursing staff delivers and assist[s] them with any

complications that arise,” 5) is familiar with “the nursing standards of care applicable in

this case and the state and federal guidelines governing nursing homes and assisted

living facilities,” 6) ensures, through her work, compliance with applicable state and

federal “regulatory requirements in providing optimal care for the [e]lderly patients,” and

7) “[a]ssess[es] acutely ill elders and determine[s] [their] need for medical care [a]nd or

hospitalization.”

       One may become an expert in a matter through knowledge, skill, training, or

education. TEX. R. EVID. 702; In re Commitment of Bohannan, 388 S.W.3d 296, 305

(Tex. 2012), cert. denied, _U.S._, 133 S.Ct. 2746, 186 L.Ed.2d 202 (2013). Moreover, a

trial court has great discretion in determining whether a person is qualified as an expert.

Lopez-Juarez v. Kelly, 348 S.W.3d 10, 20 (Tex. App.—Texarkana 2011, pet. denied).

By refusing to accept Skywest’s attack upon the report of McCauley, the trial court

implicitly found her qualified to opine, as an expert, on the standard of care applicable to

the care of the elderly, those afflicted with medical conditions experienced by Billy, and

those who reside in assisted living facilities (like Skywest). We cannot say that the trial

court abused its discretion in so concluding given McCauley’s experience, skill, and

training described above.

       Furthermore, McCauley proffered several opinions regarding the standards of

care applicable to Skywest and their breach.       But that is not enough to satisfy the

requirements of § 74.351. The expert report, by definition, must address not only the

standard of care and its breach but also how the breach (or breaches as mentioned



                                             7
here) caused injury. To reiterate, Nurse McCauley is not a physician; so, her opinions

as to causation cannot be considered in determining whether West complied with

§ 74.351.

       Accordingly, both expert reports are deficient. However, that does not mandate

the dismissal of the suit. Instead, the trial court is authorized to determine whether a

thirty-day extension to cure any and all deficiencies within the report is warranted.

Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); HEB Grocery Co., L.P. v.

Galloway, No. 09-13-00486-CV, 2014 Tex. App. LEXIS 5506, *21-22 (Tex. App.—

Beaumont May 22, 2014, no pet.) (permitting remand for such a purpose). The order of

the trial court denying Skywest’s motion to dismiss is reversed, and the cause is

remanded to the trial court to determine whether West should be afforded a thirty-day

extension to cure the deficiencies noted in this opinion and any others that may be

present in the reports.



                                                      Brian Quinn
                                                      Chief Justice




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