                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00402-CV


BAYLOR ALL SAINTS MEDICAL                                           APPELLANT
CENTER

                                        V.

PAMELA MARTIN AND JOHN                                              APPELLEES
MARTIN


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         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION
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                                 I. Introduction

      In one issue, Appellant Baylor All Saints Medical Center asserts that the

trial court erred when it determined that the expert report filed by the Appellees

Pamela and John Martin met the requirements of section 74.351 of the civil

practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351

(Vernon 2011). We reverse and remand.
                        II. Factual and Procedural History

      The Martins sued Baylor for negligence, alleging that Pamela was sexually

assaulted in her hospital room as she recovered from surgery. In support of their

claim, the Martins served Baylor with Dr. John C. Shershow, M.D.‘s expert report

and curriculum vitae.     Baylor objected to the report‘s sufficiency, moved to

dismiss the Martins‘ claim, and requested attorney‘s fees.         The trial court

overruled Baylor‘s objections after a hearing and denied Baylor‘s motion to

dismiss and request for attorney‘s fees. This appeal followed.

                                III. Expert Report

      Baylor appeals the trial court‘s order overruling its objections that the

Martins‘ expert witness report does not comply with section 74.351, arguing that

the report failed to adequately set forth the standard of care applicable to Baylor

and how that standard was breached.

A. 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). A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner or without reference to any guiding

rules or principles. 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


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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. However, 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).

B. Applicable Law

      Section 74.351 of the civil practice and remedies code, entitled ―Expert

Report,‖ provides,

      (a) In a health care liability claim, a claimant shall, not later than the
      120th day after the date the original petition was filed, serve on each
      party or the party‘s attorney one or more expert reports, . . .

      ....

      (c) If an expert report has not been served within the period specified
      by Subsection (a) 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. . . .

      ....

      (l) A court shall grant a motion challenging the adequacy of an
      expert report 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 in Subsection (r)(6).
      ....

      (r) In this section: . . . .



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             (6) ―Expert report‖ means a written report by an expert
             that provides a fair summary of the expert‘s opinions as
             of the date of the report 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.

      (s) Until a claimant has served the expert report and curriculum vitae
      as required by Subsection (a), all discovery in a health care liability
      claim is stayed except for the acquisition by the claimant of
      information, including medical or hospital records or other
      documents or tangible things, related to the patient‘s health care[.]

Tex. Civ. Prac. & Rem. Code Ann. § 74.351.

      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, 879 (Tex. 2001)). When a defendant moves to

dismiss a plaintiff‘s claims for failure to provide the required expert report,

      The issue for the trial court is whether ―the report‖ represents a
      good-faith effort to comply with the statutory definition of an expert
      report. That definition requires, as to each defendant, a fair
      summary of the expert‘s opinions about the applicable standard of
      care, the manner in which the care failed to meet that standard, and
      the causal relationship between that failure and the claimed injury.
      Because the statute focuses on what the report discusses, the only
      information relevant to the inquiry is within the four corners of the
      document.

Palacios, 46 S.W.3d at 878 (citations omitted).

      An expert report ―need not marshal all the plaintiff‘s proof.‖ Id. at 878–79.

While the report must do more than simply state the expert‘s conclusions about


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the standard of care, breach, and causation, to avoid dismissal ―a plaintiff need

not present evidence in the report as if it were actually litigating the merits. The

report can be informal in that 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.

      [t]he standard of care for a hospital is what an ordinarily prudent
      hospital would do under the same or similar circumstances.
      Identifying the standard of care is critical: Whether a defendant
      breached his or her duty to a patient cannot be determined absent
      specific information about what the defendant should have done
      differently. ―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.‖

Id. at 880 (citations omitted). Assaults of the type alleged by the Martins are

covered by section 74.351. See, e.g., Diversicare Gen. Partner, Inc. v. Rubio,

185 S.W.3d 842, 853, 855 (Tex. 2005) (holding that a patient‘s claim against a

nursing home for negligence in failing to provide sufficient staff and supervision

to prevent her sexual assault by another patient is a health care liability claim).

C. Analysis

      Baylor argues that Dr. Shershow‘s report fails to adequately identify the

standard of care and that he does not include specific information about what

Baylor should have done differently.          Dr. Shershow‘s report presents the

following as Baylor‘s standard of care under the facts of this case:




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      Standard of Care

      A hospital such as Baylor All Saints Medical [C]enter is expected to
      adhere to specific standards of care in regard to all of its patients. A
      bedrock principal [sic] in providing care to its patients is the
      understanding that all of a hospital‘s patients by nature of their
      disease or injury are potentially vulnerable and necessarily need to
      receive treatment in a safe and secure environment. The Joint
      Commission on Accreditation of Health Care Organizations (JCAHO)
      has established in its Hospital Standards that all healthcare
      organizations must have in place policies which safeguard patients
      from assault by hospital staff and by strangers that enter the
      hospital. The JCAHO requires that hospitals adequately implement
      these standards, and monitor this implementation. The JCAHO
      patient security and safety expectations would require at a minimum
      that hospitals should employ a sufficient number of security personal
      [sic] to insure that no unauthorized persons enter patients[‘] rooms
      and physically assault their patients. Additionally, the JCAHO
      standards would expect that all hospital staff should be trained to
      identify persons that are not authorized to enter patients[‘] rooms
      and should monitor and prevent unauthorized persons from having
      access to patients receiving treatment at the hospital.

      The Martins reply that the trial court did not abuse its discretion by denying

Baylor‘s motion to dismiss, claiming that Dr. Shershow‘s report was adequate.

They alternatively argue that the medical records that section 74.351(s) allows

them to discover do not contain adequate information to establish the appropriate

standard of care and breach thereof, and hence, further discovery should be

allowed.

      We observe that the Martins were well aware, as set out in their petition, of

the alleged facts of the assault. Hence, it was incumbent upon their expert to

articulate the standard of care applicable to the hospital to prevent such an




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assault, which does not require a factual inquiry into the measures taken by the

hospital to meet this standard of care.

          Dr. Shershow‘s report opines (1) that Baylor is expected to adhere to

―specific standards of care‖ for its patients, (2) that there must be policies in place

to safeguard patients from assault, including employing ―a sufficient number of

security personal [sic] to insure that no unauthorized persons assault patients

and training staff to identify persons not authorized to enter patients[‘] rooms and

prevent them from doing so,‖ and (3) that these standards must be adequately

implemented.        These opinions do not establish what specific policies and

safeguards should have been in place. For example, the ―policies in place to

safeguard patients‖ are not identified; neither are the number of security

personnel required nor the training the staff should have received regarding

identifying unauthorized persons. See Wright, 79 S.W.3d at 52 (stating that the

expert must explain the basis of his statements to link his conclusions to the

facts).

          Keeping in mind that mere conclusions about the standard of care are

insufficient, that the standard is ―what an ordinary prudent hospital would do

under the same or similar circumstances,‖ and that ―even a fair summary must

set out what care was expected,‖ see Palacios, 46 S.W.3d at 880, we cannot

agree that Dr. Shershow‘s report fulfills the required specificity.

          And although the Martins specifically complain that section 74.351(s) only

allows discovery of medical records and billing records, which do not contain the


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circumstances surrounding the assault and hence provide no discovery as to

whether security standards were met, this is a misreading of the discovery

allowed under section 74.351(s).        Section 74.351(s) allows discovery ―of

information, including medical or hospital records or other documents or tangible

things, related to the patient‘s health care.‖ See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(s) (emphasis added). Furthermore, as assaults of the type here

are covered by section 74.351, see Rubio, 185 S.W.3d at 851, logically,

discovery of the hospital‘s policies and procedures regarding the protection of

patients from assault must be covered by section 74.351(s). See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(s) (stating that all discovery is stayed except for

acquisition by the claimant of information related to the patient‘s health care); see

also Bogar v. Esparza, 257 S.W.3d 354, 371–72 (Tex. App.—Austin 2008, no

pet.) (op. on reh‘g) (noting that the plaintiff has the burden to establish that

section 74.351‘s discovery limitations have in fact prevented her from satisfying

the statute‘s expert report requirements and pursuing her claim).            But cf.

Simmons v. Texoma Med. Ctr., 329 S.W.3d 163, 174 (Tex. App.—El Paso 2010,

no pet. h.) (interpreting section 74.351(s) to preclude ―[d]iscovery of issues such

as financial information, insurance and indemnity agreements, corporate

organization, and even bylaws, policies, and procedures‖ until an expert report is

served).

      Therefore, we hold that with respect to the establishment of the

appropriate standard of care for Baylor and the breach of that standard, the


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Martins‘ expert report was deficient, and the trial court abused its discretion by

finding otherwise. We sustain Baylor‘s sole issue.1

                                IV. Conclusion

      Having sustained Baylor‘s sole issue, we reverse the trial court‘s order and

remand this case to the trial court to consider whether to grant a thirty-day

extension to cure the deficiency.    See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008); Foster v.

Richardson, 303 S.W.3d 833, 845–46 (Tex. App.—Fort Worth 2009, no pet.).




                                                  BOB MCCOY
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DELIVERED: April 14, 2011




      1
       Based on our resolution, we do not reach Baylor‘s other arguments. See
Tex. R. App. P. 47.1.


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