Opinion issued March 21, 2013




                                     In The
                                Court of Appeals
                                    For The
                             First District of Texas
                          ————————————
                             NO. 01-12-00390-CV
                      ———————————
             IPH HEALTH CARE SERVICES, INC., Appellant

                                       V.

           JOHN RAMSEY AND JENNIFER RAMSEY, Appellees

                       On Appeal from the 23rd District Court
                             Brazoria County, Texas
                           Trial Court Cause No. 63804


                         MEMORANDUM OPINION

      In this interlocutory appeal, 1 appellant, IPH Health Care Services (“IPH”),

challenges the trial court’s order denying its motion to dismiss the health care


1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (Vernon Supp. 2012).
liability claim2 made against it by appellees, John Ramsey and Jennifer Ramsey, in

their suit for negligence. In its sole issue, IPH contends that the trial court erred in

not dismissing the Ramseys’ claim.

                                      Background

      In their original petition, the Ramseys assert a health care liability claim

against IPH, Dr. Mohammad Khan, M.D., and Dr. O.C. Oandasan, M.D., alleging

that John was hospitalized on March 30, 2009, for a “suspected stroke.” He was

ultimately diagnosed with endocarditis, an infection of the heart characterized by

heart-valve vegetation growth. On April 9, John underwent “mitral valve surgical

debridement” to repair and remove the “vegetation which had grown on his mitral

valve.”   Khan discharged John on April 14 with follow up treatment to be

administered by his primary care physician, Oandasan. From April 14 to April 24,

John received treatment at his home from IPH, a licensed Home and Community

Support Services Agency, 3 which administered to him “two potent antibiotics”:

vancomycin and gentamycin.           During this time, John “developed signs and

symptoms of severe antibiotic overdose,” but IPH “did not take action as required


2
      See id. § 74.001(a)(13) (Vernon Supp. 2012).
3
      For purposes of a health care liability claim, a “health care institution” includes “a
      home and community support services agency.” See id. § 74.001(a)(12)(A)(vii),
      (11)(E).



                                                2
by the standard of care for a home health network.” Although IPH “did attempt to

communicate information” to Oandasan about John’s condition, Oandasan “either

failed to review” or “ignored” the information.

      By April 24, the levels of vancomycin and gentamycin in John’s system

were “off the chart,” his renal function was “severely compromised,” and he felt

“lethargic with a cough and fever.” IPH staff contacted an on-call doctor for Dr.

Oandasan, Dr. Bui, who warned that John “should go to the emergency room ‘or

he would die.’”     John who was ultimately diagnosed with Stevens-Johnson

Syndrome, lapsed into a coma and underwent years of treatment and therapy. As a

result of the incident, he is “totally disabled” with “persistent vertigo from

vestibular damage, left side weakness, cognitive disorder, memory loss, tinnitus,

migraine headache syndrome, depression, and other issues all arising from the

antibiotic overdose.”

      The Ramseys allege that IPH “deviated from the standard of care involved in

providing [John’s] home IV antibiotics treatment.” The Ramseys specifically

allege that IPH was negligent by:

      1)    failing to recognize signs of overdose of vancomycin and
            gentamycin;

      2)    failing to immediately contact a physician when [John]
            exhibited severe urticaria, fever, lethargy, itching and altered
            mental status;

      3)    sending lab results to the wrong doctor; and
                                            3
      4)     failing to take immediate emergency action when critical lab
             results were received.

The Ramseys further allege that IPH’s “deviation[s] from the standard of care,” in

addition to those of Dr. Khan and Dr. Oandasan, were “the proximate cause of the

severe iatrogenic antibiotic toxicity which resulted in [John’s] permanent injury

and disability.”

      The Ramseys served IPH with an expert report 4 authored by Dr. Charles J.

Chitwood, M.D., a practicing physician. In the section of his report entitled,

“Qualifications,” Chitwood notes that he is board certified in Family Medicine,

works in a “large Community Medical Center’s Department of Family Medicine, ”

has practiced a “full range of family medicine,” and has treated “many patients

over the years with endocarditis (both native and artificial valves).” He explains

that he has “personally supervised the medical management of multiple patients

with infectious endocarditis, to include developing the treatment plan, ordering,

administering and monitoring intravenous antibiotics and writing the detailed home

health discharge planning and follow-up schedules.” Chitwood “always handled

the diagnosis, work-up, treatment and follow-up of serious infectious disease cases


4
      See id. § 74.351 (Vernon 2011) (requiring expert report to be served in health care
      liability claims).



                                               4
with the highest of priority.” He also has “served as the primary care manager for

a multitude of patients over the years, always in collaboration with a holistic care

team, to include home health nursing services. . . . [and] consulted multiple home

health companies for myriad patient needs, ranging from home oxygen therapy, to

supportive ventilator devices and long-term intravenous antibiotics.”           And

Chitwood explains that he is “very familiar with home health care and ha[s]

conducted many home health visits [him]self and actually worked for ‘House Call

Doctors’ for quite some time.” Based on these and other qualifications, Chitwood

asserted that he is “qualified to review and prepare an expert opinion regarding this

case.”

         In his report, Dr. Chitwood notes that John was first admitted into

emergency care on March 19, 2009, exhibiting symptoms that “painted a

worrisome picture for endocarditis.” However, he was released on oral antibiotics,

including vancomycin, with no diagnosis of endocarditis. The physician ordered

the pharmacy “‘to manage Vancomycin,’ indicating an understanding of the

meticulous care required when overseeing this drug with multiple potential serious

side effects.” Subsequently, on March 30, after a follow-up examination, John was

referred to Dr. Khan, who performed tests on John that revealed “mitral valve

vegetations.” Khan began a “broad-spectrum antibiotic regiment,” and on April 9,

John underwent mitral valve surgical debridement to remove the heart valve

                                             5
vegetation. He was discharged on April 14 “with a plan for long-term vancomycin

and gentamycin” as recommended by the hospital’s Infectious Disease Consultant,

Dr. Farooq.

      Dr. Chitwood notes that Dr. Khan provided an “addendum to the discharge

summary . . . months after [John’s] release,” which he read as an “attempt to

underscore all of the risks and concerns that should have been addressed in April.”

Chitwood explained that, on April 10, Dr. Farooq stopped treating John with

vancomycin due to “metabolic/allergic concerns.” Nevertheless, Khan prescribed

vancomycin for John four days later, upon his discharge. Chitwood could see no

“rationale” for the change in John’s medication.

      From April 14 to April 24, John was under the care of IPH, which

administered vancomycin and gentamycin intravenously pursuant to the hospital

discharge plan.    During this time, John developed symptoms of antibiotic

overdose. By April 24, John’s mental status and sense of balance had deteriorated

and he had a markedly worsening skin rash with swelling. Dr. Chitwood notes that

the “problem began soon after his transfer home.”

      When John began exhibiting symptoms of vancomycin and gentamycin

overdose, IPH could not contact Dr. Khan because it had “the wrong contact

points.” It actually had contact information for another Dr. Khan in McKinney,




                                            6
Texas, rather than the Dr. Khan who treated John. IPH’s earliest notes show Dr.

Oandasan as the primary attending physician.

      IPH notes, signed by Betty Woodard on April 15, show that John was then

exhibiting a rash on his torso and IPH was to “notify MD in am.” Notes from a

different nurse, recorded the next day, have no mention of the rash or whether a

doctor was contacted. Dr. Chitwood opines that reasonable nurses and physicians

would recognize the rash as a severe allergic reaction and “not taking immediate

action to mitigate this reaction” is “[a] clear deviation from the standard of care.”

      IPH notes from April 17 show “a gentamycin trough of 3.6 (normal 0-2.0

mcg/dl)” with the results faxed, presumably to the wrong Dr. Khan. The notes also

show that a nurse also called and left a message at “BRHS.” By April 20, the

gentamycin trough had “climbed to 12.4” and the vancomycin trough was also

“elevated at 28.3 (normal 5-20 mcg/dl).” IPH communicated with Dr. McFadden,

who stopped the gentamycin dose, ordered it restarted later at half strength, and

ordered a follow up in one week. The rash was not reported to McFadden, and the

repeat levels on April 24 were sent to Dr. Oandasan.

      A resident nurse also wrote an “addendum progress note,” which states that

“multiple attempts to notify [Dr. Oandasan] of treatment and lab results were

unsuccessful. [Oandasan] stated to notify Dr. Khan or Dr. McFadden. Dr. Khan

when contacted stated to notify [Oandasan].” IPH notes, dated April 24, show that

                                              7
John was “lethargic with a cough and fever” and “[l]eft voicemail.” Dr. Chitwood

opines that at this juncture, with a critically ill patient, “calling 911 would have

been the prudent course of action and a failure to take immediate action was a clear

deviation from the standard of care.”

      Additional progress notes by an IPH nurse, according to Dr. Chitwood,

reveal the “confusion and poor management of this patient’s condition and

treatment.”   The notes state, “during the course of treatment for the patient,

multiple attempts to notify PCP of treatment and lab results were unsuccessful.

PCP stated to notify Dr. Khan or Dr. McFadden. Dr. Kahn when contacted stated

to notify PCP.”

      Ultimately, an on-call doctor advised IPH personnel to transport John to an

emergency room. On April 24, John was readmitted to the hospital with symptoms

of an allergic reaction to the prescribed antibiotics and antibiotic overdose. His lab

results demonstrated “severe antibiotic toxicity,” and the levels of vancomycin and

gentamycin in his system were “astronomically ‘off the chart’ in fatal toxicity

regions.” John was in critical condition and diagnosed with Stevens-Johnson

Syndrome.

      In regard to the standard of care applicable to IPH, Dr. Chitwood explains

that “the discharge is a period of transition from hospital to home that involves a

transfer in responsibility from the hospitalist to the patient and primary care

                                             8
physician.”     And “[o]ngoing monitoring and care are equally important.”

Chitwood continues,

      IPH staff failed to recognize signs of a true medical emergency;
      severe urticarial, fever, lethargy, itching and change in mental status.
      Any of these alone, and certainly combined, would lead any prudent
      and reasonable nurse to force immediate contact with a physician.
      Instead of routine efforts to leave messages with the doctor’s
      answering service, the treating nurses should have called 911 at the
      very 1st sign of severe adverse drug reactions. I remain confused as
      to how IPH tried to send lab results to the wrong Dr. Kahn in
      McKinney, Texas which is outside Dallas, when all parties were
      located in the Lake Jackson/South of Houston region of Texas?
      Finally, when critical labs were received, more extreme measures to
      contact the treating physician should have been made, along with
      contacting EMS for patient transport to a medical facility for acute
      evaluation and treatment of severe antibiotic reactions. Failure by
      IPH and multiple IPS nurses to take appropriate action when faced
      with a critical medical emergency breaches the standard of care.

      Dr. Chitwood further explains in his report that, in all reasonable medical

probability, with the early detection and response he described, John would not

have suffered any of the severe medical maladies that resulted from the antibiotic

toxicity. He opines:

              The breach of the standard of care by both Drs. Oandasan and
              Kahn and IPH’s staff’s failure to identify and appropriately
              respond to the very obvious, characteristic signs of Vancomycin
              and gentamycin toxicity substantiated with objective serum
              antibiotic level lab measurements which were ignored, were the
              cause in the delayed diagnosis and this delay was the proximate
              cause of the certainty of permanent disability and need for
              extensive treatment described herein.

              Standard of care NOT met by Drs. Oandasan, Kahn and IPH
              Health Services. I believe with a reasonable degree of medical
                                            9
             certainty that the above described delays, oversight and
             submaximal care caused Mr. Ramsey’s cutaneous, vestibular,
             renal and neurologic damages.
      In its answer, IPH generally denied the Ramseys’ allegations. IPH objected

to Dr. Chitwood’s expert report on the grounds that it is insufficient and Chitwood

is unqualified to render an opinion as to IPH’s standards of care or IPH’s alleged

breach of those standards.        IPH also objected to Chitwood’s report as not

specifically setting forth the applicable standards of care for IPH, or specifically

identifying how IPH fell below the standards of care. IPH asserted that Chitwood,

in his expert report, makes only conclusory allegations regarding causation and

“fail[s] to specifically explain how IPH’s alleged breach of care specifically caused

[John’s] alleged injuries.” In their response, the Ramseys asserted that Chitwood’s

report is adequate. They attached an amended report to their response, along with

a request for a 30-day extension 5 to file the amended report, “[s]hould any aspect

of [the] initial report be found inadequate.”

      After a hearing, the trial court granted the Ramsey’s request for a 30-day

extension to file the amended report. It overruled the objections to the report made

by IPH and the other defendants. IPH later filed a second motion to dismiss the


5
      See id. § 74.351(c). In their brief, the Ramseys assert that their request for a 30-
      day extension was unopposed.




                                                10
Ramseys’ health care liability claim made against it, and the trial court denied

IPH’s motion.

                                Standard of Review

      We review a trial court’s decision on a motion to dismiss a health care

liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court

abuses its discretion if 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). When reviewing matters committed to the trial court’s discretion, we

may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

appellate court would in a similar circumstance. Harris Cnty. Hosp. Dist. v.

Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

                           Sufficiency of Expert Report

      In its sole issue, IPH argues that the trial court erred in denying its motion to

dismiss the Ramseys’ health care liability claim because Dr. Chitwood “lacks the

expertise necessary to provide an opinion on the standard of care to be followed by

IPH,” “the alleged breach of care committed by IPH,” and “the causation of [the

                                             11
Ramseys’] injuries based on IPH’s alleged breach.” It also asserts that Chitwood’s

expert report “does not address the standard of care, breach or causation of

damages . . . as to [] IPH.”

      A health care liability claimant must timely provide each defendant health

care provider with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351 (Vernon 2011); Gray, 189 S.W.3d at 858. The expert report must provide a

fair summary of the expert’s opinions as of the date of the report regarding the

applicable standards of care, the manner in which the care rendered by the health

care provider failed to meet the standards, and the causal relationship between that

failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6).

      If a defendant files a motion to dismiss challenging the adequacy of the

claimant’s expert report, a trial court shall grant the motion to dismiss only if it

appears to the court, after a hearing, that the report does not represent an objective

good faith effort to comply with the definition of an expert report. Id. § 74.351(l).

The only information relevant to the inquiry is that contained within the four

corners of the report. Palacios, 46 S.W.3d at 878. Although the claimant need not

marshal all of his proof in the report, the report must include the expert’s opinion

on each of the elements identified in the statute. See id. at 878–79; Gray, 189

S.W.3d at 859.

                                             12
      In setting out the expert’s opinions, the report must provide enough

information to fulfill two purposes to constitute a good faith effort. Palacios, 46

S.W.3d at 879. First, the report must inform the defendant of the specific conduct

the claimant has called into question. Id. Second, the report must provide a basis

for the trial court to conclude that the claim has merit. Id. A report that merely

states the expert’s conclusions does not fulfill these two purposes. Id. The expert

must explain the basis of his statements to link his conclusions to the facts. Bowie,

79 S.W.3d at 52. However, a claimant need not present evidence in the report as if

he were actually litigating the merits. Palacios, 46 S.W.3d at 879. Furthermore,

the report may be informal in that the information in the report need not meet the

same requirements as the evidence offered in a summary-judgment proceeding or

trial. Id. We review the sufficiency the report by looking at the four corners of the

report. See Palacios, 46 S.W.3d at 878.

Qualifications

      IPH first asserts that Dr. Chitwood does not possess the special knowledge

required or is not “specially qualified” to render an opinion regarding the acts and

omissions of a home support services agency. IPH also asserts that Chitwood is

“not qualified to provide an opinion . . . based on training or experience.” We note

at the outset that a physician is not automatically disqualified from rendering an

expert opinion regarding other types of health care providers, such as home health

                                            13
support services, even though the standard of care may be different for those

providers. See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 198 (Tex.

App.—Houston [14th Dist.] 2009, no pet.); Baylor Med. Ctr. at Waxahachie v.

Wallace, 278 S.W.3d 552, 558 (Tex. App.—Dallas 2009, no pet.). If the physician

is familiar with the standard of care for other health care providers, such as home

health support services, based on experience working with or supervising them,

then he or she may be qualified to render an opinion. See Shepherd-Sherman, 296

S.W.3d at 198 (concluding physician qualified to render expert opinion on standard

of care of hospital based on his experience in hospital admissions and working

with hospital personnel when patients request specific doctors); San Jacinto

Methodist Hosp. v. Bennett, 256 S.W.3d 806, 813–14 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (concluding physician qualified as expert to state standard of

care for nurse in preventing bed sores based on previous work with nurses in same

situation).

       A person may qualify as an expert in a suit involving a health care liability

claim against a health care provider, including a home health services provider,

only if the person:

       (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, if the defendant health care




                                             14
             provider is an individual, at the time the testimony is given or
             was practicing that type of health care at the time the claim
             arose; 6

      (2)    has knowledge of accepted standards of medical 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b) (Vernon 2011). An expert

providing testimony regarding whether a health care provider departed from the

accepted standards of health care must satisfy the requirements of section 74.402.

See id. § 74.351(r)(5)(B).

      In determining whether a witness is qualified “on the basis of training or

experience,” the court shall consider “whether, at the time the claim arose or at the

time the testimony is given, the witness . . . (1) is certified by a licensing agency

. . . or has other substantial training or experience, in the area of health care

relevant to the claim; and (2) is actively practicing health care in rendering health

care services relevant to the claim.” Id. § 74.402(c). “Practicing health care”

includes,


6
      By its express terms, this subsection of section 74.402 does not apply because the
      health care providers here are not individuals. See Renaissance Healthcare Sys.,
      Inc. v. Swan, 343 S.W.3d 571, 588 (Tex. App.—Beaumont 2011, no pet.).



                                             15
      (1)          training health care providers in the same field as the
                   defendant health care provider at an accredited educational
                   institution; or

      (2)          serving as a consulting health care provider and being
                   licensed, certified, or registered in the same field as the
                   defendant health care provider.

Id. § 74.402(a).
      An expert report by a person not qualified to testify does not represent a

good-faith effort to comply with the definition of an expert report. Foster v.

Zavala, 214 S.W.3d 106, 116 (Tex. App.—Eastland 2006, pet. denied) (citing In re

Windisch, 138 S.W.3d 507, 511 (Tex. App.—Amarillo 2004, orig. proceeding)

(interpreting predecessor statute to section 74.351)).

      Different standards of care apply to physicians and other health care

providers, including home health support agencies. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.402(b). A physician may testify as to the applicable standard of

care for nurses, nurse practitioners, and physicians assistants. See Wallace, 278

S.W.3d at 558. If a physician states in his expert report that he is familiar with the

standard of care for the applicable health care providers and the prevention and

treatment of the illness, injury, or condition involved in the claim, the physician is

qualified on the issue of whether the health care provider departed from the

accepted standards of care for health care providers. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.402(b); Bennett, 256 S.W.3d at 814.


                                             16
      IPH argues that Dr. Chitwood does not possess special knowledge regarding

the delivery of home health care or home support because he is a family practice

physician who practices in a traditional clinical office setting and “not as a

deliverer of home support services.” IPH asserts that Chitwood “is not qualified to

address the issues of standard of care, breach, and causation as it applies to IPH, a

home support services agency.” In support of its argument, IPH cites Chisholm v.

Maron, 63 S.W.3d 903, 907 (Tex. App.—Amarillo 2001, no pet.) and Richburg v.

Wolf, 48 S.W.3d 375, 378 (Tex. App.—Eastland 2001, pet. denied).

      In Chisholm, the Amarillo Court of Appeals held that to meet the statutory

requirement that a physician expert be actively practicing medicine, it was required

that the physician expert have experience in the particular field of the defendant

doctor, orthopedic surgery. 63 S.W.3d at 907 n.1. In Richburg, the expert was

found to be unqualified to render an expert opinion because although the report

revealed that the expert had a distinguished medical career, it demonstrated no

expertise specific to the reconstructive breast surgery performed by the physician

defendant. 48 S.W.3d at 378. Dr. Chitwood’s expert report does not suffer from

the same deficiencies.

      Here, the Ramseys had to demonstrate that Dr. Chitwood has knowledge of

the accepted standards of care for the diagnosis, care, or treatment of John’s injury

or condition. See TEX. CIV. PRAC. & REM. CODE § 74.402(b)(2). In his expert

                                            17
report, Chitwood states that is he familiar with the standard of care as it pertains to

the treatment and care of infectious endocarditis, the infection for which John was

hospitalized. In a section of his report entitled, “Application of Facts and the

Standard of Care. The Question of Negligence,” Chitwood explains and applies

the facts of John’s illness to the applicable standards of care for IPH and Drs. Khan

and Oandasan. Specifically pertaining to IPH as a home health services provider,

Chitwood details a knowledge of what home health care professionals are expected

to do when caring for an intravenous patient experiencing severe allergic reactions

to antibiotics. He details what is expected of home health care staff and how IPH

failed to meet that standard. Chitwood notes in his report that he has treated

patients with endocarditis, both individually and in a team setting, and he has

handled the diagnosis, work-up, treatment, and follow-up in these cases. And he

has been required to coordinate the care of patients with such serious infections.

Chitwood further states that he has worked with home health care personnel

overseeing the administration of intravenous antibiotics, and he provides details

from treatises on the side effects of gentamycin and vancomycin overdoses, the

toxicity of which is well known in many fields of medicine. Chitwood outlines his

experience “personally supervis[ing] the medical management of multiple patients

with infectious endocarditis, to include developing the treatment plan, ordering,

administering and monitoring intravenous antibiotics and writing detailed home

                                             18
health discharge planning and follow-up schedules.”         He also has experience

consulting with multiple home health companies for various patient care needs,

including cases in which antibiotic therapy was conducted in patient homes,

resulting in diagnoses, including osteomyelitis, pulmonary abscesses, tuberculosis,

and endocarditis. Moreover, Chitwood has conducted many home health care

visits and worked for “House Call Doctors,” noting that he is “very familiar with

home health care.”

      IPH complains that Dr. Chitwood, in his report, does not define what the

applicable standard of care is for IPH, and it asserts that he is unaware of the three

statutory authorities that “govern and regulate the standards of care related to home

support service agencies,” specifically the Texas Administrative Code, the Texas

Government Code, and the Texas Health and Safety Code. IPH asserts that, as a

home health support service, it is required to comply with the statutes governing

home support services and regulations found in the Texas Administrative Code.

      In his expert report, Dr. Chitwood opines that IPH breached its standard of

care by failing to take immediate action when an IPH nurse observed and noted a

red, slightly raised rash on John’s torso. He explains that such a rash “prompts

most reasonable nurses and physicians to think of a potentially SEVERE allergic

reaction and intervention should have taken place then. . . [n]ot taking immediate

action [was] . . . [a] clear deviation from the standard of care.” Chitwood also

                                             19
opines that when IPH was unable to obtain a response from Dr. Oandasan’s office,

“calling 911 would have been the prudent course of action and failure to take

immediate action was a clear deviation from the standard of care.”

      The Texas Administrative Code sets forth a list of “core standards” for home

health service providers, but it does not articulate any standards of care for home

health service providers. As IPH concedes in its briefing to this Court, a standard

of care for a home health services provider is that which an ordinary and prudent

home support agency employee would do under the same or similar circumstances.

See Palacios, 46 S.W.3d at 880. Dr. Chitwood simply was not required to state

that his familiarity with the core standards contained in the administrative code.

See Cook v. Spears, 275 S.W.3d 577, 583 (Tex. App.—Dallas 2008, no pet.);

Simonson v. Keppard, 225 S.W.3d 868, 873 (Tex. App.—Dallas 2007, no pet.).7

Chitwood was, in his report, required to demonstrate his familiarity with the

pertinent standards of care of home health service providers under the same or

similar circumstances as presented in this case, i.e., what an ordinary prudent home

7
      In Simonson, the court held that a doctor was not qualified to report on the
      standard of care applicable to an advanced practice nurse because the doctor did
      not state that he “had any familiarity with the standard of care for a nurse
      practicioner.” 225 S.W.3d at 873–74. The court did not decide the case on an
      alleged articulation of a plainly erroneous standard of care, but rather held that the
      expert was not qualified to state a standard of care for that particular profession.
      Id. In contrast, Dr. Chitwood states that he is familiar with the standard of care for
      home health care services.



                                               20
health service provider would have done instead of what IPH actually did or failed

to do. Indeed, in his report, Chitwood states that he is “very familiar with home

health care and ha[s] conducted many home health visits [him]self and actually

worked for ‘House Call Doctors’ for quite some time.” He explained that this

experience has led to “familiarity with [the] standard of care as it applies to home

health antibiotic administration, monitoring and supervision. I am also familiar

with [the] standard of care . . . applie[d] to handling medication errors, adverse

reactions, and reporting in the home health care field.”

      Further, if a physician states his familiarity with the pertinent standard of

care and the responsibilities and requirements of a home health care support

services provider, and he has worked with, interacted with, and supervised in the

home health care field, the physician is qualified on the issue of whether a home

health care support services provider departed from the pertinent accepted

standards of care. See Cook, 275 S.W.3d at 582–84 (distinguishing Simonson).

      In his report, Dr. Chitwood opines that IPH breached the pertinent standard

of care when:

      IPH staff failed to recognize signs of a true medical emergency;
      severe urticaria, fever, lethargy, itching and change in mental status.
      Any of these alone, and certainly combined, would lead a prudent and
      reasonable nurse to force immediate contact with a physician. Instead
      of routine efforts to leave messages with the doctor’s answering
      service, the treating nurses should have called 911 at the very 1st sign
      of severe adverse drug reactions. I remain confused as to how IPH
      tried to send lab results to the wrong Dr. Kahn in McKinney, Texas
                                            21
      which is outside Dallas, when all parties were located in the Lake
      Jackson/South of Houston region of Texas? Finally, when critical
      labs were received, more extreme measures to contact the treating
      physician should have been made, along with contacting EMS for
      patient transport to a medical facility for acute evaluation and
      treatment of severe antibiotic reactions. Failure by IPH and multiple
      IPS nurses to take appropriate action when faced with a critical
      medical emergency breaches the standard of care.

         Because Dr. Chitwood has over eighteen years of medical experience,

including ambulatory, urgent, and emergent care, he possesses specialized

knowledge on “subject matter [that] is common to and equally recognized and

developed in all fields of practice,” such as hospital discharge, recognizing the

importance of patient history, and the infection process, all of which are addressed

in his report. See Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.]

2002, pet. denied); Hersh v. Hendley, 626 S.W.2d 151, 155 (Tex. Civ. App.—Fort

Worth 1981, no writ) (labeling “taking a medical history” and “discharge before

complete recovery” as “acts related to practices which are commonly and equally

recognized in all fields of practice”); Garza v. Keillor, 623 S.W.2d 669, 671 (Tex.

Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) (“[T]he standard of care in

the infection process . . . is common to and equal in all fields of medical practice”).

      Additionally, Dr. Chitwood possesses specialized knowledge particular to

John’s treatment. In his report, Chitwood indicates that he has “supervised the

medical management of many patients with infectious endocarditis,” which is the

same type of the infection for which John was originally hospitalized. Chitwood’s
                                             22
medical    management       included    developing     treatment    plans;   ordering,

administering, and monitoring intravenous antibiotics; and writing detailed home

health discharge plans with follow-up schedules. The Ramseys’ claim involves

each of these areas of experience. Chitwood’s experience also includes consulting

with home health companies for patient needs, including the administration of

long-term intravenous antibiotics. This claim also involves the coordination

between a doctor and a home health services company regarding the dispensation

of antibiotics intravenously.

      The trial court could have reasonably concluded that Dr. Chitwood “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 [this]

claim.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2). Thus, his expert

report satisfies the requirements of section 74.402(b)(2). See Group v. Vicento,

164 S.W.3d 724, 734 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)

(holding that doctor’s statement of knowledge of standard of care for the injury or

illness at issue satisfies the requirements of section 74.402(b)(2)).

      The Ramseys had to further demonstrate that Dr. Chitwood is qualified on

the basis of his training or experience. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.402(b)(3).    To determine whether Chitwood is qualified under section

74.402(b)(3), we consider whether he is (1) certified by a licensing agency or has

                                             23
substantial training or experience relevant to the claim and (2) actively practicing

health care relevant to the claim. See id. § 74.402(c).

      IPH argues that Dr. Chitwood is not qualified as an expert because he is not

licensed in the specific field of home health care support services. We note that

the statute requires certification by a licensing agency, but it does not specifically

require licensure in the same field of practice as the health care provider. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.402(c)(1); see also Roberts v. Williamson, 111

S.W.3d 113, 121 (Tex. 2003) (physician board certified in pediatrics but not

neurology could offer expert opinion on neurological injuries when particular issue

in case involved pediatric neurological injury, an area in which the expert had

considerable knowledge and experience). Here, it is undisputed that Chitwood is

currently licensed by the Texas State Board of Medical Examiners in Family

Medicine and currently practices “in a large Community Department of Family

Medicine.” And he has been board certified in Family Medicine for 12 years.

      Because section 74.402(c)(1) is phrased in the disjunctive, we may also

consider whether Dr. Chitwood is qualified on the basis of his training or

experience if he “has other substantial training or experience in the area of health

care relevant to the claim.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402

(c)(1). And, as described above, Chitwood possesses substantial training and

experience relevant to this claim.      He indicates that “as a Board Certified,

                                             24
independent staff physician” with “over 18 years of ambulatory, urgent and

emergent care experience,” he has experience with treating endocarditis, including

“developing the treatment plan, ordering, administering and monitoring

intravenous antibiotics and writing the detailed home health discharge planning

and follow-up schedules.” And again, Chitwood is currently practicing as a staff

physician in family medicine at a large community medical center.

      Further, specific to home health services, Dr. Chitwood states that he is very

familiar with home health care and has conducted many home health visits as a

physician and when he was employed by “House Call Doctors.” Chitwood has

also served as a primary care manager for many patients and collaborated with a

care team, including home health nursing services. His experience also includes

consulting with multiple home health companies.

      The trial court could have reasonably concluded that Dr. Chitwood has

substantial training or experience in an area of health care relevant to the Ramseys’

claim under section 74.402(c)(1) and he is actively practicing health care in

rendering health care services relevant to the Ramseys’ claim as required under

section 74.402(c)(2). Thus, his expert report satisfies the requirements of section

74.402(b)(3). Accordingly, we hold that the trial court did not err in denying IPH’s

motion to dismiss the Ramsey’s health care liability claims on the ground that

Chitwood is not qualified to render his opinion.

                                            25
Standard of Care and Breach

        IPH next asserts that Dr. Chitwood, in his expert report, makes only

generalized “conclusory” remarks regarding the applicable standard of care, does

not clearly define the applicable standard of care for IPH, and fails to enumerate

the steps that IPH employees should have taken to comply with the standard of

care.

        Identifying the standard of care in a health care liability claim 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.

Palacios, 46 S.W.3d at 880. 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. When a plaintiff

sues more than one defendant, the expert report must set forth the standard of care

for each defendant and explain the causal relationship between each defendant’s

individual acts and the injury. See Doades v. Syed, 94 S.W.3d 664, 671–72 (Tex.

App.—San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex.

App.—Houston [14th Dist.] 2001, no pet.).

        In his report, Dr. Chitwood’s explains,

        IPH staff failed to recognize signs of a true medical emergency;
        severe urticarial, fever, lethargy, itching and change in mental status.
        Any of these alone, and certainly combined, would lead any prudent
        and reasonable nurse to force immediate contact with a physician.
                                             26
      Instead of routine efforts to leave messages with the doctor’s
      answering service, the treating nurses should have called 911 at the
      very 1st sign of severe adverse drug reactions. I remain confused as
      to how IPH tried to send lab results to the wrong Dr. Kahn in
      McKinney, Texas which is outside Dallas, when all parties were
      located in the Lake Jackson/South of Houston region of Texas?
      Finally, when critical labs were received, more extreme measures to
      contact the treating physician should have been made, along with
      contacting EMS for patient transport to a medical facility for acute
      evaluation and treatment of severe antibiotic reactions. Failure by
      IPH and multiple IPS nurses to take appropriate action when faced
      with a critical medical emergency breaches the standard of care.
The pertinent standard of care identified by Chitwood required that IPH recognize

the medical emergency and force immediate contact with a physician. Rather than

leaving messages for Drs. Khan and Oandasan, the standard of care, when dealing

with a critically ill patient, required immediate telephoning for emergency medical

assistance for the transport of John to a medical facility for acute diagnosis and

treatment. Chitwood indicates that the specific risks associated with vancomycin

toxicity are renal side effects, nervous system damage, hematologic complications,

and “red man syndrome,” among others. He further identifies IPH’s failure to

comply with the standard of care when it failed to have John transported to a

hospital when IPH received abnormal critical lab reports and that the failure to do

so breached the standard of care for home health personnel.          Chitwood also

specifies that IPH’s failure to show that it had followed up with the physician after

noting the generalized rash was a deviation from the standard of care. When IPH

notified Dr. McFadden of the second lab results showing high levels of gentamycin
                                            27
and vancomycin, it failed to also inform him about the rash which indicated a

severe allergic reaction. Chitwood opines that IPH’s delayed reaction allowed

John’s condition to deteriorate to a critical level when his antibiotic levels reached

fatal toxicity range. And he explains how these failures breached the standard of

care.

        Thus, the trial court could have reasonably concluded that Dr. Chitwood’s

report represents a “good faith effort” to inform IPH of the specific conduct called

into question, the standards of care that should have been followed, and what it

should have done differently. Accordingly, we hold that the trial court did not err

in denying IPH’s motion to dismiss the Ramsey’s health care liability claims on the

ground that Chitwood’s expert report makes only “conclusory” assertions and fails

to identify the pertinent standards of care and breach of the standards.

Causation

        Finally, IPH argues that Dr. Chitwood “wholly fails to address causation”

because his report does not “link up” his conclusions to the damages and fails to

“establish what actual injuries/damages (if any) were caused by the alleged

negligence of IPH.” It asserts that Chitwood’s report “does not show causation

beyond that of mere conjecture.” As noted above, an expert report must provide a

fair summary of the expert’s opinions regarding the causal relationship between the

failure of the health care provider to provide care in accord with the pertinent

                                             28
standard of care and the injury, harm, or damages claimed. TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(r)(6).

      In support of its argument, IPH relies on Bowie Memorial Hospital v.

Wright, 79 S.W.3d 48 (Tex. 2002).           In Bowie, the plaintiff alleged that a

physician’s assistant misread or misplaced an x-ray and, therefore, did not discover

that the plaintiff had fractured her foot. Id. at 50. Approximately one month later,

the plaintiff’s orthopedic surgeon discovered the fracture. Id. The plaintiff filed

the report of an expert, who stated that had the x-ray been properly read, she

“would have had the possibility of a better outcome.” Id. at 51. The court, after

recognizing that a report need not use any particular phrase, held that the trial court

could have reasonably determined that the report did not represent a good-faith

effort to summarize the causal relationship. Id. at 53. The court noted that the

report simply opined that the plaintiff had a “possibility of a better outcome,” and

it did not sufficiently “[link] the expert’s conclusion (that [the plaintiff] might have

had a better outcome) to [the hospital’s] alleged breach (that it did not correctly

read and act upon the x-rays).” Id.

      Here, in contrast, Dr. Chitwood opines in his expert report that, “[i]n all

reasonable medical probability, with proper oversight, early detection and response

in this case, even as conducted, [John] would not have suffered any of the severe

medical maladies resulting from his antibiotic toxicity.”      He also states that the

                                              29
doctors’ and IPH’s breach of their standards of care “[was] the cause in the delayed

diagnosis and this delay was the proximate cause of the certainty of permanent

disability and need for extensive treatment described herein.” He continues, “I

believe within a reasonable degree of medical certainty that the above described

delays, oversight and submaximal care caused [John’s] . . . damages.” See Linan v.

Rosales, 155 S.W.3d 298, 305–06 (Tex. App.—El Paso 2004, pet. denied)

(affirming verdict in favor of plaintiff for doctor’s failure to timely diagnose

cancer); In re Barker, 110 S.W.3d 486, 491 (Tex. App.—Amarillo 2003, orig.

proceeding) (concluding expert report sufficient in stating that negligent failure to

recognize medical condition and delay in treatment increased severity of plaintiff’s

injuries).

       In his report, Dr. Chitwood indicates that IPH failed to recognize and

respond to a severe allergic reaction and lab results showing toxic levels of

antibiotics, and he opines that the breach in the standard of care was a cause in the

delayed diagnosis of John’s condition.        The specific risks associated with

vancomycin toxicity include renal side effects, nervous system damage,

hematologic complications, “red man syndrome,” and Stevens-Johnson Syndrome,

among others. John actually suffered from renal side effects, nervous system

damage, hematologic complications, “red man syndrome,” and Stevens-Johnson

Syndrome. In Chitwood’s professional opinion, John suffered these effects “due to

                                            30
a failure of recognition and treatment.” Chitwood provided a fair summary of his

opinion that IPH failed to meet the standard of care in managing John’s

intravenous antibiotic treatment by not recognizing that John was suffering from a

severe allergic reaction to the antibiotics, making contact with Dr. Oandasan, and,

when IPH did not make contact with a physician, telephoning for emergency

medical assistance to have John transported to a medical facility for acute

assessment and treatment. He opines that with “early detection and response in

this case, even as conducted, [John] would not have suffered the effects of

antibiotic toxicity.” Thus, Chitwood provided IPH a fair summary of his opinion

as to how IPH’s failure to act appropriately caused John’s ultimate injuries.

      The trial court could have reasonably concluded that Dr. Chitwood, in his

report, made a “good faith effort” to provide a fair summary of the causal

relationship between IPH’s failure to meet the pertinent standard of care and

John’s injury. Accordingly, we hold that the trial court did not err in denying IPH’s

motion to dismiss the Ramseys’ health care liability claim on the ground their

expert report does not address causation.

      We overrule IPH’s sole issue.




                                            31
                                    Conclusion

      We affirm the order of the trial court.




                                                   Terry Jennings
                                                   Justice


Panel consists of Justice Jennings, Higley and Sharp.




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