                                                                                     ACCEPTED
                                                                                 12-14-00357-CV
                                                                    TWELFTH COURT OF APPEALS
                                                                                  TYLER, TEXAS
                                                                             5/4/2015 4:45:48 PM
                                                                                   CATHY LUSK
                                                                                          CLERK

                 ORAL ARGUMENT REQUESTED

                           NO. 12-14-00357-CV         FILED IN
                                               12th COURT OF APPEALS
                                                    TYLER, TEXAS
                                                5/4/2015 4:45:48 PM
      IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT
                       AT TYLER, TEXAS              CATHY S. LUSK
                                                        Clerk


               PINECREST SNF, LLC D/B/A PINECREST
               NURSING & REHABILITATION CENTER,
                            Appellant,

                                     v.

    TASCO BAILEY, NATHAN BAILEY, CURLIE BAILEY, ROY BAILEY,
BILL BAILEY, JAMES BAILEY, EARL BAILEY, MARY DUNLAP AND LICILLE
               MARTIN, AS HEIRS OF ARCHIE BAILEY,
                             Appellees.


                     On Interlocutory Appeal from the
            114th Judicial District Court of Smith County, Texas
                            Cause No. 14-0856-B
                 The Honorable Christi Kennedy Presiding


   REPLY BRIEF OF PINECREST NURSING PINECREST SNF, LLC D/B/A
         PINECREST NURSING & REHABILITATION CENTER


                                     NICHOL L. BUNN
                                     State Bar No. 00790394
                                     STEPHANIE A. ERHART
                                     State Bar No. 24007180
                                     LEWIS, BRISBOIS, BISGAARD
                                     & SMITH, LLP
                                     2100 Ross Avenue, Suite 2000
                                     Dallas, Texas 75201
                                     (214) 722-7100
                                     (214) 722-7111 (fax)
                                     ATTORNEYS FOR
                                     PINECREST NURSING SNF, LLC
                                     D/B/A PINECREST NURSING &
                                     REHABILITATION CENTER
                               TABLE OF CONTENTS

TABLE OF CONTENTS

INDEX OF AUTHORITIES                                                           ii

I.    SUMMARY OF THE ARGUMENT                                                  1

II.   REPLY                                                                    2

      A.   Appellee has Failed to Adequately Address Dr. Davey's Failure to
           Address Ms. Bailey's Underlying Conditions.                         2

      B.   Appellee Ignored Case Law Which Holds an Expert Report is
           Conclusory Where it Fails to Address Underlying Medical
           Conditions.                                                         5

      C.   Contrary to Appellee's Assertion, Appellant has not attempted to
           Mislead the Court                                                   8

      D.   Appellee Concedes Dr. Davey's Report Fails to Adequately
           Explain How Pinecrest Nursing's Alleged Breaches of the
           Standard of Care Caused Mrs. Bailey's Death.                       10

IV. CONCLUSION AND PRAYER                                                     1I

CERTIFICATE OF SERVICE                                                        14

CERTIFICATE OF COMPLIANCE                                                     15
                            INDEX OF AUTHORITIES

Cases

Bowie Mem? Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)                         9

Christus Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-CV,
 2013 Tex. App. LEXIS 14932 (Tex. App.—Corpus Christi
 Dec. 12, 2013, no pet.)                                                   3, 4

Conboy v. Lindale Health Care, LLC, NO. 12-12-00241-CV,
 2013 Tex. App. LEXIS 11013, 11 (Tex. App.—Tyler Aug. 29, 2013,
 no pet.)                                                                    7

Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245
 (Tex. App.—San Antonio 2004, no pet.)                                      11

Doe v. Boys Clubs, 907 S.W.2d 472 (Tex. 1995)                          10-11

Hillcrest Baptist Med. Ctr. v. Payne, No. 10-11-00191-CV,
 2011 Tex. App. LEXIS 9182 (Tex. App.—Waco Nov. 16, 2011,
 pet. denied)                                                                6

Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App.—Dallas 2011, no pet)     8

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010)                               8, 9

Nexion Health at Southwood, Inc. v. Judalet, No. 12-08-00464-CV,
 2009 Tex. App. LEXIS 7404, 11 (Tex. App.—Tyler Sept. 23, 2009,
 no pet.)                                                                    5

Pisasale v. The Ensign Group, Inc., No. 11-05-00196-CV,
 2006 Tex. App. LEXIS 7983 (Tex. App.--Eastland September 7, 2006,
 pet. denied) (memo. op.)                                                  6,7

Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992)                   10




                                       ii
TO THE HONORABLE TWELFTH DISTRICT COURT OF APPEALS:

      Appellant Pinecrest Nursing submits this Reply Brief praying that this Court

reverses the trial court's ruling overruling the Chapter 74 objections and denying

Appellant's motion to dismiss.

                                     I.
                          SUMMARY OF THE ARGUMENT

      Despite the fact that Dr. Davey concedes that a patient's underlying

conditions can make pressure ulcers unavoidable, nowhere in his report does he

state that Mrs. Bailey's underlying conditions (Alzheimer's, congestive heart

failure, diabetes mellitus) did not made her pressure ulcer unavoidable. The report

fails to explain that absent an act or omission of Pinecrest Nursing the harm would

not have occurred. Therefore, his report is conclusory as to causation and does not

meet the requirements of Chapter 74. Further, Appellees have pleaded wrongful

death damages in their petition, but Dr. Davey's report does not sufficiently

explain how Pinecrest Nursing's breach of the only identified standard of care

(alleged failure to reposition Mrs. Bailey in August and September 2013) was a

substantial factor in bringing about her death in December 2013 at a different

facility. Despite the omission of an adequate causation analysis, the trial court

found Dr. Davey's report sufficient. Because the trial court abused its discretion in
applying Chapter 74 causation requirements to the report of Dr. Davey, this Court

should reverse the order of the trial court denying Pinecrest's motion to dismiss.

                                         II.
                                       REPLY

A.    Appellee has Failed to Adequately Address Dr. Davey's Failure to
      Address Ms. Bailey's Underlying Conditions.

      Appellee attempts to divert the Court's attention from Appellant's argument

with respect to Dr. Davey's failure to address Ms. Bailey's underlying conditions

in opining that Pinecrest caused Ms. Bailey's pressure ulcers. While Appellee

would like for the Court to overlook it, Dr. Davey himself conceded that a patient's

clinical condition is a necessary consideration when determining whether pressure

sores are unavoidable. Dr. Davey stated multiple times in his report:

      the standard of care mandates that a facility and its nurses ensure that
      a resident who is admitted without pressure sores does not develop
      pressure sores unless the individual's clinical condition
      demonstrates that they were unavoidable.. .

(CR 148, 151) (emphasis added). The bottom line of Dr. Davey's opinion is that

Ms. Bailey developed pressure ulcers because Pinecrest breached the standard of

care. However, if pressure sores were unavoidable due to the patient's underlying

clinical condition, they would have occurred absent a breach in the standard of care

by Pinecrest. Nowhere in Dr. Davey's report does he state that Mrs. Bailey's

underlying health conditions did not cause the pressure ulcers. Nowhere in his

report does Dr. Davey state that Mrs. Bailey's clinical condition did not

                                          2
demonstrate that pressure ulcers were unavoidable. Therefore, Dr. Davey's

causation opinion is conclusory and insufficient to satisfy Chapter 74 of the Texas

Civil Practice and Remedies Code.

       Appellee attempts to distinguish a strikingly similar case cited by Appellant.

In Christus Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-CV, 2013 Tex.

App. LEXIS 14932 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.), the

Corpus Christi Court of Appeals held that an expert report was conclusory where it

failed to address the patient's underlying health issues and their effects on the

development of pressure ulcers.

       While Appellee concedes that the Castro Court found the expert's report

conclusory because the expert failed to discuss the development of pressure ulcers

in the specific trauma conditions present in that case, Appellee incorrectly asserts

that the "conditions" to which the Court was referring were the ICU conditions, not

the patient's medical conditions. Appellee's assertion is in contradiction to the

opinion of the Court. In Castro, the hospital argued the expert report failed to

"'explain how taking any particular action would have prevented the development

of a pressure ulcer given the complex medical issues involved in [Casto]'s

care." Id. at 18 (emphasis added). The complex medical issues were identified by

the Court as quadriplegia, diabetes, bacterial infections, and respiratory distress.

Id. at 3.


                                          3
      The Court, reversing the order of the trial court denying Spohn's motion to

dismiss, explained:

      Castro's claim involves his development of a pressure ulcer while he
      was being treated in Spohn's ICU over the course of several months
      for severe injuries he suffered in an automobile accident. Neither
      du Bois nor Dr. Starer discusses Castro's injuries in the context of
      these conditions. And the omission of this context renders any
      conclusion on the cause of Castro's injuries incomplete.

Id. at *18-19. The Court found that the expert's report was conclusory because it

failed to discuss the development of Castro's pressure ulcer in the context of his

quadriplegia, diabetes, bacterial infections, and respiratory distress.      See id.

Therefore, the Court found the report deficient. Id. This case is directly on point.

      Despite the fact that Dr. Davey concedes multiple times that Mrs. Bailey's

clinical condition alone could be the cause of her pressure ulcer, nowhere in his

report does he address her clinical condition and whether it was the sole cause of

her pressure ulcer. (CR 148, 151). The underlying conditions in this 84 year old

woman were not insignificant. According to Dr. Davey's own report, Mrs. Bailey

had Alzheimer's disease; Hypertension; Congestive Heart Failure; Diabetes

Mellinus (Type II); and Asthma. (CR 146). However, Dr. Davey's report does not

address any of these conditions and their propensity to make pressure ulcers

unavoidable, and he does not state that these underlying conditions did not render

Mrs. Bailey's pressure ulcer's unavoidable; therefore, Dr. Davey's report is



                                          4
impermissibly conclusory. The trial court improperly denied Pinecrest's motion to

dismiss.

B. Appellee Ignored Case Law Which Holds an Expert Report is
    Conclusory Where it Fails to Address Underlying Medical Conditions.

      Appellee argues that an expert report that does not address hypothetical

situations does not necessarily render it conclusory on causation. Nowhere in

Appellant's brief did it argue that Dr. Davey should address hypothetical

situations. Appellee has missed the holding of on-point case law and argument of

Appellant. The case law cited by Appellant holds that an expert must address other

conditions of the patient where they could be the cause of the plaintiff's injuries.

      In Nexion Health at Southwood, Inc. v. Judalet, No. 12-08-00464-CV, 2009

Tex. App. LEXIS 7404, 11 (Tex. App.—Tyler Sept. 23, 2009, no pet.), the patient

fell and fractured her leg while at Nexion Health. She had congestive heart failure,

a stage IV decubitus ulcer, MRSA and post-op anemia. Plaintiffs expert opined

that the fall at Nexion Health caused her death without addressing any of her

underlying health conditions. The Court found the report deficient stating "Dr.

Colon's opinion on causation is conclusory because he failed to explain how he

ruled out other probable causes of the decedent's death." Id. at *11. Similarly, in

this case, Dr. Davey failed to explain how he ruled out other probable causes of

Mrs. Bailey's pressure ulcers despite recognizing there could be other causes.



                                          5
      Similarly, in Pisasale v. The Ensign Group, Inc., No. 11-05-00196-CV,

2006 Tex. App. LEXIS 7983 (Tex. App.--Eastland September 7, 2006, pet. denied)

(memo. op.), the patient had diabetes, seizure disorder, anemia, severe cervical

spondylosis, hyponatremia, severe chronic obstructive pulmonary disease (COPD),

neurogenic bladder, extremity weakness, hypertension, and altered mental status.

After residing at Northern Oaks Nursing home for one month, Mr. Pisasale was

admitted to the hospital, as a result of developing pneumonia and a urinary tract

infection. Id. at *3. The court held the expert report did not constitute a good-faith

effort to comply with statute where the expert "made no effort to eliminate Mr.

Pisasale's preexisting conditions as the cause for the injuries described in his report

which he attributes to Northern Oaks." Id. at *13. In this case, Dr. Davey made no

effort to eliminate Mrs. Bailey's preexisting conditions as the cause for the injuries

which he attributes to Pinecrest Nursing.

      Compare the above cases with Hillcrest Baptist Med. Ctr. v. Payne, No. 10-

11-00191-CV, 2011 Tex. App. LEXIS 9182 (Tex. App.—Waco Nov. 16, 2011,

pet. denied). In Payne, the plaintiff was admitted to the hospital with MRSA,

septic shock, respiratory failure, diabetes, hypertension, and end-stage renal failure

that required frequent dialysis. While a patient, she developed pressure ulcers. Id.

at *2. The expert report detailed how the breaches in the standard of care caused

the plaintiffs pressure ulcers. Id. It also stated:


                                            6
            "Within a reasonable degree of medical probability, Ms.
            Payne's comorbid conditions listed above did not cause
            the pressure ulcer because those conditions cannot
            spontaneously cause such a condition." Id. at 26-27.

 The court concluded report sufficient where "Dr. Haines opined that, based on a

reasonable degree of medical probability, the other conditions did not contribute to

the development of Payne's pressure ulcers."        Id. at *28; see also Conboy v.

Lindale Health Care, LLC, NO. 12-12-00241-CV, 2013 Tex. App. LEXIS 11013,

11 (Tex. App.—Tyler Aug. 29, 2013, no pet) ("While Dr. Langan may not have

been required to rule out all possible causes, he must establish in his report a causal

connection between the defendants' conduct and the injuries Jack suffered, and that

the defendants proximately caused the injuries suffered."). Dr. Davey's report did

not include a statement based on reasonable medical probability that other

conditions did not contribute to the development of Mrs. Bailey's pressure ulcers.

      Appellee cites to case law for the proposition that an expert report is not

required to address every possible cause of the plaintiff's injury. The case law

cited is inapposite. Appellant is not suggesting that Dr. Davey was required to rule

out every possible cause of the pressure ulcers. However, case law requires that he

establish a causal connection between Pinecrest's conduct and the injuries suffered.

Dr. Davey himself conceded that pressure ulcers can be caused by a patient's

underlying medical condition and can be unavoidable despite appropriate care.

Although Dr. Davey admits in his report that there are underlying health conditions

                                           7
which render pressure ulcers unavoidable, he does not state in his report that Mrs.

Bailey's underlying conditions did not render pressure ulcer's unavoidable, and his

statement regarding causation is conclusory at best. Ultimately, the Court cannot

determine from Dr. Davey's report that a different, better result would have been

achieved if Pinecrest Nursing had met its standard of care. See Hollingsworth v.

Springs, 353 S.W.3d 506, 523 (Tex. App.—Dallas 2011, no pet). Therefore, the

trial court abused its discretion in overruling Pinecrest Nursing's objection to Dr.

Davey's report, and the Court should reverse the order of the trial court overruling

Pinecrest Nursing's objections and denying its Motion to Dismiss.        Jelinek v.

Casas, 328 S.W.3d 526, 539-40 (Tex. 2010).

C.    Contrary to Appellee's Assertion, Appellant has not attempted to
      Mislead the Court.

      In their brief, Appellees took issue with Appellant's argument that Dr.

Davey's opinion that the nurses' failure to reposition Mrs. Bailey is speculative

and conclusory in that it is not supported by the facts because Dr. Davey relied on

an assumption. Appellees assert that Appellants attempted to "mislead this Court

to believe when it misstates that Dr. Davey's opinion on the nurses' failure to

reposition is conclusory in that he relies on assumption that Ms. Bailey was never

repositioned." Appellee's Brief, pg. 16. However, Appellant did not misstate but

rather quoted Dr. Davey's opinion. On page 11 of Appellants brief, Appellant

stated:
                                         8
      He states "the medical records fail to present any evidence that Ms.
      Bailey's turning/repositioning schedule was ever documented, which
      suggests she was not repositioned every two hours. . . . Over the
      course of Ms. Bailey's entire stay at Pinecrest Nursing, there are
      no entries in the nursing notes indicating the resident was ever
      repositioned." (CR 152).

Appellant's Brief, pg. 11 (emphasis added). Despite the fact that Dr. Davey states

that he reviewed the medical records of Pinecrest Nursing & Rehab Center for over

three years of care, he did not find any notes regarding the repositioning of Ms.

Bailey. Therefore, he assumes that in three years, the patient was never

repositioned. Dr. Davey's assumption is absurd and not based on fact. If

repositioning was as important as he would lead this Court to believe, if Mrs.

Bailey was truly never repositioned, surely she would have developed a pressure

ulcer much sooner in her 3 year residency. This point makes it clear that Dr.

Davey's opinion is based upon conjecture.

      An expert must explain the basis of his statements and link his conclusions

to the facts in order for his opinions not to be conclusory. Jelinek, 328 S.W.3d at

539. Dr. Davey's opinion based on assumptions that are not tied to facts in the

record are speculative and are not sufficient to meet Chapter 74's requirements.

See id. Ultimately, the report fails to info!ni Pinecrest Nursing with sufficient

specificity the conduct called into question and provide a basis for the trial court to

conclude the claims have merit. See Bowie Mem '1 Hosp. v. Wright, 79 S.W.3d 48,

52 (Tex. 2002).

                                          9
D. Appellee Concedes Dr. Davey's Report Fails to Adequately Explain
     How Pinecrest Nursing's Alleged Breaches of the Standard of Care
     Caused Mrs. Bailey's Death.

      In their brief, Appellees assert that Dr. Davey's report is not required to

explain how Pinecrest's alleged breach of the standard of care caused Mrs.

Bailey's death because Appellees have not alleged a wrongful death action--

despite the fact that Dr. Davey did opine that Pinecrest's breach caused her death.

However, in their petition, Appellees have alleged they are entitled to damages for

their own mental anguish in addition to Mrs. Bailey's. (CR 9-10). In a survival

action, Appellees can only recover damages the decedent suffered as a result of

Pinecrest's alleged tort. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345

(Tex. 1992). Appellees can only seek their own mental anguish damages through a

wrongful death cause of action.

      As explained fully in Appellant's brief, although Dr. Davey states that

Pinecrest's breaches caused Mrs. Bailey's death, Dr. Davey's report fails to

articulate facts connecting the criticized deviations from the standard of care by

Pinecrest Nursing to Mrs. Bailey's death. Dr. Davey's opinions were wholly

inadequate in establishing a causal connection between Pinecrest Nursing's actions

and Mrs. Bailey's death. The alleged conduct of Pinecrest Nursing is too

attenuated from the resulting injuries to Mrs. Bailey to be a substantial factor in

bringing about her death. See Doe v. Boys Clubs, 907 S.W.2d 472, 477 (Tex.


                                        10
1995). Because Dr. Davey's report fails to explain how Pinecrest Nursing's

conduct was a substantial factor in Mrs. Bailey's death, his report is deficient and

the Court should have sustained Pinecrest Nursing's objections to the report.

Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249

(Tex.App.—San Antonio 2004, no pet.).

                                     III.
                            CONCLUSION AND PRAYER

      Dr. Davey's Amended Report failed to comply with the statutory

requirements of Chapter 74. Specifically, Dr. Davey's Amended Report fails to

explain how or why any alleged breaches in the standard of care by Pinecrest

Nursing were a substantial factor in bringing about Mrs. Bailey's pressure ulcer.

Dr. Davey's Amended Report fails to address whether Mrs. Bailey's pressure ulcer

was unavoidable in this case. As such, this Court is left to infer or guess that Mrs.

Bailey's outcome would have been different absent Pinecrest Nursing's alleged

breaches of the standard of care. Furthermore, Dr. Davey wholly failed explain

how or why any alleged breaches in the standard of care by Pinecrest Nursing were

a substantial factor in bringing about Mrs. Bailey's death. Thus, the trial court

abused its discretion in denying Pinecrest Nursing's objections to Dr. Davey's

Amended Report and Motion to Dismiss with Prejudice, and this Court should

reverse the trial court's decision and dismiss the Baileys' claims against Pinecrest



                                         11
Nursing with prejudice and remand for a determination of attorneys' fees and costs

permitted by Chapter 74.

       WHEREFORE, PREMISES CONSIDERED, Appellant, Pinecrest SNF,

LLC d/b/a Pinecrest Nursing & Rehabilitation Center, respectfully prays that this

Court sustain Pinecrest Nursing's issues on appeal and REVERSE the trial court's

November 25, 2014 Order overruling Pinecrest Nursing's objections to Dr.

Davey's Amended Report and denying Pinecrest Nursing's Motion to Dismiss

with Prejudice. Pinecrest Nursing further requests that this Court REMAND to the

trial court with an order that the Baileys' claims against Pinecrest Nursing be

dismissed with prejudice and to award Pinecrest Nursing its reasonable attorneys'

fees and costs as allowed by Chapter 74 of the Texas Civil Practice & Remedies

Code. Pinecrest Nursing further prays for such other relief that it may be justly

entitled.




                                       12
Respectfully submitted,



Nichol L. Bunn
State Bar No. 00790394
Nichol.Bunn@lewisbrisbois.com
Stephanie A. Erhart
State Bar No. 24007180
Stephanie.Erhart@lewisbrisbois.com
LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
2100 Ross Avenue, Suite 2000
Dallas, Texas 75201
(214) 722-7100
(214) 722-7111 (fax)

ATTORNEYS FOR PINECREST NURSING
PINECREST SNF, LLC D/B/A PINECREST
NURSING & REHABILITATION CENTER




 13
                            CERTIFICATE OF SERVICE

       Pursuant to TEX. R. Civ. P. 21a and TEX. R. APP. P. 25.1 (e), I hereby certify
that a true and correct copy of the foregoing instrument has been served upon the
following:

      Robert M. Wharton
      Lauren Schultz
      Mary E. Green
      MCIvER BROWN LAW FIRM
      JP Morgan Chase Bank Building
      712 Main Street, Suite 800
      Houston, Texas 77002
      (832) 767-1673
      (832) 767-1783 (fax)
      firm@mciverbrown.com

BY THE FOLLOWING:

                  Certified Mail/Return Receipt Requested
     X           Telephonic Document Transfer (Fax)
                Federal Express/Express Mail
                  Hand-Delivery (In Person)
                  First Class Mail


DATE:       May 4, 2015.




                                             Stephanie A. Erhart




                                        14
                         CERTIFICATE OF COMPLIANCE

       Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Reply Brief
contains 3,388 words. This is a computer-generated document created in Microsoft
Word, using 14-point typeface for all text, except for footnotes which are in 12-
point typeface. In making this certificate of compliance, I am relying on the word
count provided by the software used to prepare the document.




                                     Stephan A. Erhart




                                       15
