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Healthsouth Rehabilitation Hospital of Beaumont, LLC v. Abshire

Court of Appeals of Texas, Ninth District, Beaumont

March 30, 2017

HEALTHSOUTH REHABILITATION HOSPITAL OF BEAUMONT, LLC AND CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A CHRISTUS HOSPITAL-ST. ELIZABETH, Appellants
v.
SUE ABSHIRE, Appellee

          Submitted on September 1, 2016

         On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-196, 658

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON Justice

         This is an accelerated appeal from the trial court's order overruling the defendants' objections to plaintiff's expert reports and denying a motion to dismiss plaintiff's health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2016); see also id. § 51.014(a)(9) (West Supp. 2016).[1]

          Defendants Christus Health Southeast Texas d/b/a Christus Hospital-St. Elizabeth (Christus) and HealthSouth Rehabilitation Hospital of Beaumont, LLC d/b/a HealthSouth Rehabilitation Center-Beaumont (HealthSouth) (collectively Appellants) timely filed this appeal complaining that the trial court erred in overruling their objections and in failing to dismiss the health care liability claim of plaintiff, Sue Abshire (Abshire, Plaintiff, or Appellee). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351; see also id. § 51.014(a)(9). We granted the parties' request for argument, and we now reverse and remand.

         Background

         Allegations in Original Petition

         On February 2, 2015, Abshire filed an Original Petition and Request for Disclosure (Original Petition) against defendants Christus, HealthSouth, Frank Fasullo, M.D., and Sidney Marchand, M.D., wherein she asserted a claim of negligence based on care or treatment that she received between November 19, 2012, and December 6, 2012. Abshire alleged that on November 19, 2012, Abshire went to Christus with sharp pain in her chest and back, and she was admitted to the hospital by Dr. Fasullo. Abshire was then discharged home with pain medication and that the medical history taken at Christus "fail[ed] to note her long standing diagnosis of osteogenesis imperfecta[]" (OI). According to Abshire, "[o]steogenesis imperfecta predisposes the patient to fractures." Abshire returned to Christus on November 22, 2012, and she was admitted for chest pain and breathing difficulty, and then discharged home. Abshire contends that on November 30, 2012, Abshire returned to Christus where Dr. Marchand admitted her for worsening symptoms. According to Abshire, Abshire's medical records contain a note that she has a twenty-year history of treatment for OI but Abshire contends that her spine was not evaluated or stabilized during the November 30th hospital visit. According to the Original Petition, Abshire was transferred to HealthSouth on December 3, 2012, where she was "started [] on a physical therapy program without recognizing the fragility of her condition." Abshire alleges that on December 6, 2012, Abshire was diagnosed with a compression fracture and underwent emergency surgery, but she emerged from surgery as a paraplegic.

In her petition, Abshire made the following allegations as to Christus:
Specifically, the health care professionals at Christus Hospital St. Elizabeth Hospital who attended the patient failed to recognize the signs and symptoms of a spinal compression fracture resulting in a delay in treatment which caused Ms. Abshire's paraplegia. They also missed the history of osteogenesis imperfecta that predisposes one to fractures.

         With respect to her claims against Dr. Fasullo and Dr. Marchand, who are not parties to this appeal, Abshire pleaded the following:

Specifically Doctors Fasullo and Marchand failed to conduct a thorough medical history, examine the patient's medical records, evaluate the patient properly for her spinal symptoms, failed [to] recognize the implications of osteogenesis imperfecta, and failed to stabilize her spine.

         As to her claim against HealthSouth, Abshire pleaded as follows:

The health care professionals at Healthsouth Rehabilitation Hospital of Beaumont failed to evaluate the patient properly for her spinal symptoms, failed to consult the medical records and recognize the implications of osteogenesis imperfecta, failed to stabilize her spine and, started her on a physical therapy program without recognizing the fragility of her condition.

With respect to all defendants, Abshire made the following general allegations:

Defendants failed to exercise the requisite degree of skill and care ordinarily exercised by any careful, prudent physician, resident, intern, representative, employee or agent in the same or similar circumstances, and thereby was negligent.
Each of the acts and/or omissions of the Defendants, as alleged herein, but not necessarily limited thereto, singularly or in combination with others, constituted negligence and proximately caused the resulting [] injuries and damages suffered by Plaintiff.
. . . .
As a result of these actions, singular or in combination, Plaintiff Sue Abshire suffered severe personal injuries and damages for which she now sues.

          On February 25, 2015, HealthSouth filed an answer and denied the allegations. On February 28, 2015, Christus filed an answer and also denied the allegations.[2]

         Dr. Rushing's June Report

         On or about June 23, 2015, Abshire produced a report and curriculum vitae (CV) from Lige B. Rushing, M.D. (Dr. Rushing or Rushing). In the June Report, Dr. Rushing stated that he received his M.D. degree from Baylor University College of Medicine, and interned at Harris Hospital in Fort Worth, Texas. Rushing also has a Master of Science degree in medicine from the University of Minnesota, and he received "specialty training in internal medicine and rheumatology" at the Mayo Clinic in Rochester, Minnesota. According to the June Report and CV, Dr. Rushing is board-certified in internal medicine, rheumatology, and geriatrics, and he continues to actively practice these specialties. Rushing is on the attending staff of the Presbyterian Hospital in Dallas, Texas. Rushing's June Report included the following statement:

In the regular course of my medical practice I have [had] occasion to diagnose and treat patients with osteogenesis imperfect[a]. This is a rare genetic condition, however, during the course of my career I have provided primary medical care to two patients with this condition and based on my training as a rheumatologist, I am trained to recognize, diagnose, and treat patients with this condition.

         In summarizing the records of Abshire's treatment that he reviewed, Dr. Rushing stated in his June Report that, although Abshire was treated at Christus on November 19, 20, 22, 23, and 29 of 2012, her history of OI was noted in the records only on November 22 and 23. According to Rushing, Abshire presented at Christus on December 3, 2012, "complaining of pain in her back and stated that she wished to go to a rehabilitation center because she could not walk at home and needed help." Rushing indicated in his June Report that Abshire was transferred to HealthSouth on December 3, 2012, where Dr. Smith evaluated her, and the following day Abshire "complained of electrical voltage shooting down her shoulders, back, and legs" when she was sitting or when she was moved, and she also reported loss of bowel and bladder control.[3] According to Rushing, Dr. Smith's "plan was to have cervical, thoracic, and lumbar spine non contrast MRI studies performed." Dr. Rushing stated that "instead of stabilizing Ms. Abshire's fragile spine, it was recommended that she continue a 3 hour per day, 5 day per week therapy program starting immediately." Rushing's June Report also noted Abshire's records reflect that on November 29, December 1, and December 2, she had a history of "psychiatric disturbances[]" and schizophrenia and that she received a diagnosis of schizophrenia at Christus on November 30 and on December 2. Dr. Rushing wrote that it appeared that Abshire had a psychiatric disorder "which could be a somatization type disorder, " but that acute neurologic injury should have also been considered as accounting for Abshire's symptoms.

         Dr. Rushing's June Report stated that Abshire was transferred back to Christus on December 5, 2012, where a physician "medically cleared" her and notified Dr. Smith that Abshire would be returning to HealthSouth. Dr. Smith then ordered Abshire to be routed to Baptist Beaumont Hospital Emergency Room (Baptist Hospital). An MRI was performed at Baptist Hospital, Abshire was then transferred to Memorial Hermann Hospital in Houston, and she was diagnosed with "a Compression Fracture of T-5 with loss of motor function to lower extremities."

         According to Rushing's June Report, the standard of care required Christus to: (1) evaluate the cause of Abshire's pain, (2) examine her back for musculoskeletal problems, (3) consider her relevant prior medical history, (4) recognize signs and symptoms indicating a compromise of the musculoskeletal system in Abshire's neck, shoulders, and back, and (5) institute early stabilization of the spine prior to the establishment of paraplegia. The standard of care for HealthSouth required it to "properly evaluate and assess Ms. Abshire before admission and prior to physical therapy."

         Dr. Rushing opined that Christus breached the applicable standard of care in the following ways: (1) failure to evaluate the cause of Abshire's chest, back, and neck pain, (2) failure to examine Abshire's back for musculoskeletal problems, (3) failure to consider Abshire's prior medical history and her "longstanding" diagnosis of OI, (4) failure to recognize the signs and symptoms indicating a compromise of the musculoskeletal system in the neck, shoulders, and back, and (5) failure to institute early stabilization of the spine prior to the development of paraplegia. Dr. Rushing addressed causation as to Christus as follows:

The harm/injury that resulted from the substandard care provided by the Defendant Christus . . . was the exacerbation of an undiagnosed vertebral fracture that lead [sic] to a spinal cord injury resulting in paraplegia and bowel and bladder incontinence. Had Defendant Christus . . . followed the Standard of Care for patients with OI, Ms. Abshire in medical probability would not have developed paraplegia and bowel and bladder incontinence.

         According to Rushing, appropriate assessment would have detected the vertebral fracture and spinal cord injury and Christus's breach of the standard of care "in medical probability caused the eventual loss of bladder and bowel function and paralysis in both legs."

          Dr. Rushing's June Report concluded that HealthSouth should have but did not properly evaluate and assess Abshire before admission and before beginning physical therapy, that HealthSouth's screener failed to properly assess Abshire, and that HealthSouth "accepted a patient they never should have accepted." According to Rushing:

The harm/injury that resulted from the substandard care provided by the Defendant [HealthSouth] . . . was the exacerbation of an undiagnosed vertebral fracture and spinal cord injury. Had Defendant [HealthSouth] . . . followed the Standard of Care for patients with OI and a spinal cord injury, Ms. Abshire in medical probability would not have developed paraplegia and bowel and bladder incontinence.

         In his report, Dr. Rushing also included the following description of OI and certain symptoms of OI that he concluded Abshire had manifested:

Osteogenesis imperfecta (OI) is an inherited connective tissue disorder with many phenotypic presentations. It is often called "brittle bone disease." Severely affected patients suffer multiple fractures with minimal or no trauma, and infants with the worst form of OI die in the perinatal period. Mild forms of OI may manifest with only premature osteoporosis or severe postmenopausal bone mineral loss.
Osteogenesis imperfecta is a disease of the mesodermal tissues with abnormal or deficient collagen that has been shown in bone, skin, sclera, and dentin. The so-called diagnostic triad of blue sclera, dentinogenesis imperfecta, and generalized osteoporosis in a patient with multiple fractures or bowing of the long bones usually is used clinically. Osteogenesis imperfecta congenita is characterized at birth by multiple fractures, bowing of the long bones, short extremities, and generalized osteoporosis.
People with this condition have bones that fracture easily, loose joints and muscle weakness, blue sclera, tendency toward spinal curvature, and bone deformity.
Ms. Abshire had the common signs and symptoms of Osteogenesis Imperfecta including bi-lateral ankle deformity which was most likely a result of the bowing of the long bones in her legs, and blue sclera.
There is no cure for osteogenesis imperfecta. Treatment involves supportive therapy to decrease the number of fractures and disabilities, help with independent living and maintain overall health.

HealthSouth's Objections to Dr. Rushing's June Report

         On July 14, 2015, HealthSouth filed objections to Dr. Rushing's June Report and a motion to dismiss. According to HealthSouth, Dr. Rushing's report was conclusory as to the standard of care and breach, it failed to articulate a standard of care for a rehabilitation hospital and its nonphysician healthcare providers (including admissions, physical therapists, and nurses), and it failed to articulate what HealthSouth's personnel should have done differently. HealthSouth argued that the report was conclusory as to causation, and that it did not adequately link the alleged deviations of the standard of care by HealthSouth to Abshire's injuries. Finally, HealthSouth argued that Dr. Rushing did not show he was qualified to address the standard of care for a rehabilitation hospital and its non-physician workers, to provide an opinion as to the causation of a spinal injury, or to opine as to how HealthSouth's alleged deviation from the applicable standard of care caused or exacerbated Abshire's spinal injury.

         Christus's Objections to Dr. Rushing's June Report

         On July 14, 2015, Christus filed objections to Dr. Rushing's June Report. Christus argued that the report "fails to adequately establish the standard(s) of care applicable to Defendant, the manner in which Defendant breached any alleged standard(s) of care and/or the causal link between Defendant's alleged misconduct and the injuries of Ms. Abshire."

         On September 9, 2015, Christus separately filed a motion to dismiss. Therein, Christus argued that (1) because only a physician may diagnose and treat, Christus cannot be liable for failures regarding diagnosis or treatment, (2) Dr. Rushing's report failed "to state in factual terms what [Christus] did or failed to do that led to [Abshire's] injuries and how and why this conduct or failure to act resulted in the injuries[, ]" and (3) Dr. Rushing had not shown he was qualified to offer opinions in neurology, neurosurgery or spinal cord injuries, "which is exactly what he offers in his report."

          Plaintiff's Response to the Objections to the June Report

         On October 12, 2015, Abshire filed a response to HealthSouth's objections and motion to dismiss. Therein, Abshire argued that Rushing's report was adequate. Abshire argued that Dr. Rushing's opinion as to causation was not conclusory and that it was supported by facts.

         On October 12, 2015, Plaintiff also filed a response to Christus's objections and motion to dismiss. In her response to Christus, Abshire argued that Dr. Rushing had stated in his report that the hospital staff failed to note Abshire's history of OI, which was "a clear indication of failure to properly document on the part of the hospital staff." Abshire also asserted that Rushing's report adequately addressed causation and explained that her complaints should have been investigated by means of CT or MRI imaging. Abshire maintained that Dr. Rushing was qualified to render a Chapter 74 expert report and that "[n]ot one breach of the standard of care alleged by plaintiff implicates the specialties of neurology, neurosurgery, or spinal cord injury care." Abshire also noted that the objections Christus included in its motion to dismiss (filed on September 9) were untimely and, if the trial court found the report insufficient, Abshire should be granted a thirty-day extension to cure any deficiency.[4]

          Trial Court's October 2015 Ruling Order

         On October 16, 2015, the trial court held a hearing on the objections to Dr. Rushing's June Report, during which the parties reurged their arguments but presented no additional evidence. On October 26, 2015, the trial court issued a letter with its findings regarding Dr. Rushing's June Report. The court found that Dr. Rushing's report was a good faith effort to comply with Chapter 74 but that the June Report did not comply with the requirements of the statute in the following respects: (1) Dr. Rushing's report failed to identify the source of his knowledge concerning the standard of care for Christus, HealthSouth, and/or the nurses or other hospital personnel at Christus or HealthSouth; (2) Dr. Rushing's report failed to identify a specific standard of care as to each defendant; (3) Dr. Rushing's report failed to identify the specific methods by which Abshire's back would have been stabilized; (4)Dr. Rushing's report failed to identify the "appropriate treatment" that should have been undertaken and how it would have prevented Abshire's paraplegia; and (5)Dr. Rushing's report failed to explain how the nurses' failure to ...


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