Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCoy v. Sandoval

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 30, 2017

MARY McCOY, Appellant,
v.
VILMA SANDOVAL, Appellee.

         On appeal from the 275th District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

          MEMORANDUM OPINION

          LETICIA HINOJOSA Justice

         This is an interlocutory appeal of the trial court's order denying appellant Mary McCoy's motion to dismiss the health care liability claims of appellee Vilma Sandoval. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9); 74.351(a), (b) (West, Westlaw through 2015 R.S.). In four issues, McCoy contends that the trial court abused its discretion in overruling her objections to the report of Federico Roman Ng, M.D. and denying dismissal on the grounds that Dr. Ng's report fails to (1) establish that he is qualified to testify regarding the standard of care applicable to McCoy, a nurse practitioner; (2) specify the standard of care applicable to McCoy; (3) establish his qualifications to testify regarding causation; and (4) explain how McCoy's "purported breach of an unidentified standard of care caused" Sandoval's alleged injuries. We reverse and remand.

         I. Background

         The underlying healthcare liability claims were filed by Sandoval against three defendants: McCoy; Cash Medical Clinic of Center Pointe, LLC; and Luis M. Gonzalez, M.D. According to Sandoval's one-hundred-and-fourteen paragraph original petition, she sought treatment from Cash Medical Clinic and Dr. Gonzalez for multiple reasons, including painful urination. As Dr. Gonzalez was unavailable, McCoy, a nurse practitioner, treated Sandoval. Sandoval's petition alleges that McCoy diagnosed Sandoval with a urinary tract infection, a yeast infection, and vaginosis based on urinalysis results. McCoy prescribed two medications.

         About five days later, Sandoval returned to the clinic with worsened symptoms. During a pelvic examination at the second office visit, McCoy, according to Dr. Ng's report, exclaimed to "students" who were observing, "That's Gonorrhea." McCoy then prescribed a different oral medication and two injections. Sandoval's petition alleges that she questioned McCoy about the gonorrhea diagnosis in light of her being in a "monogamous relationship" for six months and not having had sexual relations with anyone for several years before her current relationship. McCoy, according to

         Sandoval's petition, told Sandoval that her boyfriend probably had given her gonorrhea and that "men are like chickens; they poke everything in sight." Sandoval's petition alleges that the diagnosis of gonorrhea was in error, and it pleads claims against McCoy for "failure to disclose risks, " "lack of consent, " "breach of confidential communication, " "intentional infliction of emotional distress, " "intrusion on seclusion, " "public disclosure of private facts, " and "negligent misrepresentation." Sandoval sought damages for, among other things, physical pain and mental anguish.

         In an effort to comply with section 74.351 of the Texas Civil Practice and Remedies Code, Sandoval served a report by Dr. Ng but no curriculum vitae. All three defendants objected to Dr. Ng's report, and McCoy also moved for dismissal. Sandoval then served Dr. Ng's curriculum vitae. All three defendants filed supplemental objections, and Dr. Gonzalez and Cash Medical Clinic moved for dismissal. The trial court overruled McCoy's objections to Dr. Ng's report and denied dismissal. This interlocutory appeal followed.[1]

         II. Discussion

         A. General Authority & Standard of Review

         An "expert report" is 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. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).

         A trial court's ruling on the sufficiency of an expert's report is reviewed for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). Under this review, we defer to the trial court's factual determinations if they are supported by the evidence, but review its legal determinations de novo. Id. A trial court abuses its discretion if it acts without reference to guiding rules or principles. Id. However, in exercising its discretion, it is incumbent upon the trial court to review the reports, sort out their content, resolve any inconsistencies, and decide whether the reports demonstrated a good faith effort to show that the plaintiff's claims have merit. See id. at 144; see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1) ("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 . . . .").

         B. Qualifications Regarding the Standard of Care

         In McCoy's first issue, she argues that Dr. Ng's report fails to establish that he is qualified to testify regarding the standard of care applicable to McCoy, a nurse practioner.[2] An expert must satisfy section 74.402 to be qualified to provide opinion testimony regarding whether a health care provider departed from the accepted standard of care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B). Section 74.402 lists three specific qualifications an expert witness must possess in order to provide opinion testimony on how a health care provider departed from accepted standards of health care. The expert must:

1.[be] 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 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;
2.[have] knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
3.[be] qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Id. § 74.402(b) (West, Westlaw through 2015 R.S.). In determining whether a witness is qualified on the basis of training or experience, section 74.402 also requires the court to consider whether the witness:

1.is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.