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Gracy Woods I Nursing Home v. Mahan

Court of Appeals of Texas, Third District, Austin

May 4, 2017

Gracy Woods I Nursing Home, Appellant
Martha Mahan, as the Representative of the Estate of Mary Rivera, Appellee


          Before Chief Justice Rose, Justices Pemberton and Bourland.


          Bob Pemberton, Justice.

         This is an appeal taken by a health care provider, a nursing home, to challenge the district court's denial of its motion to dismiss a "health care liability claim" based on the claimant's asserted noncompliance with the Medical Liability Act's expert-report requirement. The pivotal issue in the appeal is whether the claimant, who alleges that her late mother was sexually assaulted in the nursing home due to the facility's negligence, was required to present an expert report that would establish the alleged assault in fact occurred, through an expert qualified to diagnose the occurrence of rape or sexual assault, or merely a causal linkage between the facility's asserted breach of the duty of care in regard to patient safety and the type of harm and injury the claimant alleges. Concluding the latter, and that the nursing home has not otherwise demonstrated any abuse of discretion in the district court's ruling, we will affirm.


         The claimant, Martha Mahan, is the daughter of the late Mary Rivera, who in her waning years had severe dementia and resided in a nursing home operated by the appellant, Gracy Woods I Nursing Home. Mahan alleges that during a visit to her mother at Gracy Woods one morning, Mahan "noticed signs of a struggle in her mother's room and found bloody tissue in the bathroom trashcan, " leading to a "rape examination" at a local emergency room that, according to Mahan, confirmed that her mother had been sexually assaulted. Mahan attributes this alleged assault to Gracy Woods's negligence in failing to adequately protect her mother, especially vulnerable given her cognitive state, from being victimized in this way. Mahan further claims that she had actually warned Gracy Woods staff previously "that her mother was receiving inappropriate advances from other much younger residents." Gracy Woods denies these allegations, or even that the sexual assault ever occurred.

         The parties do not dispute that Mahan's claim is a "health care liability claim" (HCLC) under the Medical Liability Act (MLA).[1] Thus, in an attempt to comply with the MLA's expert-report requirement, [2] Mahan served Gracy Woods with a report from Loren G. Lipson, M.D., as well as a copy of Dr. Lipson's curriculum vitae (CV). In his report, Dr. Lipson opined that Gracy Woods breached the applicable standard of care by not providing twenty-four-hour-a-day skilled nursing care and by not preventing access to Rivera's room by unsupervised males. Dr. Lipson further opined that Gracy Woods's breach resulted in the sexual assault of Rivera, and there was "no evidence" that Rivera's injuries were self-inflicted or inflicted by someone outside Gracy Woods.

         Gracy Woods objected to Dr. Lipson's qualifications and to the sufficiency of his report. Subsequently, after the MLA's expert-report deadline had run, Gracy Woods moved to dismiss Mahan's suit with prejudice and for attorney's fees.[3] It argued that Dr. Lipson was not qualified to offer expert opinions regarding causation or liability, and his report lacked the factual bases required by the MLA. Following a hearing at which the parties presented argument, the district court denied the motion to dismiss. This interlocutory appeal followed.[4]


         We review a trial court's determination regarding the sufficiency of an expert report under an overarching abuse-of-discretion standard.[5] We "defer to the trial court's factual determinations if they are supported by evidence, but review its legal determinations de novo."[6] A trial court abuses its discretion if it acts "without reference to guiding rules or principles."[7]

         The MLA defines an "[e]xpert report" as:

[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.[8]

         "A court shall grant a motion challenging the adequacy of an expert report only if it appears . . . that the report does not represent an objective good faith effort to comply with the definition of an expert report."[9] To constitute a "'good-faith effort, '" the report must "provide[] information sufficient to (1) 'inform the defendant of the specific conduct the plaintiff has called into question, ' and (2) 'provide a basis for the trial court to conclude that the claims have merit.'"[10] We are limited to "the four corners of the expert report, which need not 'marshal all the plaintiff's proof' but must include the expert's opinion on each of the three main elements: standard of care, breach, and causation."[11] In sum, "[n]o particular words or formality are required, but bare conclusions will not suffice. The report must address all the elements, and omissions may not be supplied by inference."[12]


         Gracy Woods contends that Mahan failed to meet the statutory requirements of an "expert report" because Dr. Lipson's report does not show he is an "expert" qualified to testify with respect to the opinions in his report regarding causation and the applicable standards of care.[13] An expert's qualifications must appear in his report and CV and "cannot be inferred."[14] Our analysis is limited to the four corners of the report and the CV.[15]

         Dr. Lipson's report and CV

         Dr. Lipson's qualifications are set forth in his report and in his 44-page CV, which is attached to the report.[16] These documents indicate that Dr. Lipson is a physician trained in geriatric medicine[17] and licensed by the State of California. He is board certified in internal medicine[18] and in "quality assurance and utilization review."[19] He was previously board certified in geriatric medicine (though this certification has apparently lapsed), and he holds a "Certificate of Experience" in geriatric medicine.[20] Dr. Lipson has served for many years on the faculty of the USC School of Medicine, including as an Associate Professor of Medicine (Division of Geriatric Medicine, 1984-2006), as the Chief of the Division of Geriatric Medicine (1984-2005), and more recently, as a Professor Emeritus of Medicine (2006-present).[21] He was the Senior Staff Physician in charge of geriatric programs at the Los Angeles County/USC Medical Center (1985-2004), and the Chief of Geriatric Medicine at the USC University Hospital (1991-2004). He also served as the Physician Advisor to USC University Hospital in "utilization management and quality assurance."[22]Moreover, he has received academic appointments from other universities and hospitals, including from the University of Alaska, where he has served since 2006 as an Affiliate Professor, [23] a Faculty Consultant in Geriatrics, and a Co-Director in Geriatric Education, and since 2005 as the Medical Director of the Alaska Geriatric Education Center.

         Dr. Lipson is a consultant on long-term care, geriatric medicine and elder abuse to the United States Department of Justice (2006-present), the United States Department of Health and Human Services (2006-present), Office of the Inspector General, and to the states of California (2000-present)[24] and New Mexico (2003-present).[25] His CV lists nearly 200 lectures (selected from over 3, 500 lectures given), including lectures related to geriatrics, long-term care, and elder abuse.[26]His CV also lists his "[r]esearch [i]nterests" as including "[s]tudies in elder abuse" and his "[r]esearch in [p]rogress" as including "[s]tudies on the prevention and early detection of elder abuse."[27]

         Dr. Lipson's qualifications relating to "causation"

         Dr. Lipson's report opines that Rivera was sexually assaulted, and that there is "no evidence" that her injuries were self-inflicted or inflicted by someone outside Gracy Woods. Gracy Woods contends that Dr. Lipson is not qualified to offer these "[c]ausation [o]pinions, [p]articularly [t]hat a [s]exual [a]ssault [o]ccurred, "[28] because he has no experience regarding the diagnosis or treatment of sexual assault, nor the diagnosis or treatment of the female genitalia. Mahan counters that no such expert testimony is required here (though Dr. Lipson endeavored to cover these issues in his report), citing UHS of Timberlawn, Inc. v. S.B. ex rel. A.B.[29]

         The plaintiff in Timberlawn alleged that, while a patient in a psychiatric treatment facility (Timberlawn), she was raped by a fellow patient.[30] The plaintiff claimed that Timberlawn's negligence proximately caused her injuries.[31] Timberlawn argued that the report of the plaintiff's expert was deficient because "[he] did not opine, nor did he show he was qualified to opine, as to whether [the plaintiff] had been raped."[32] "[T]he premise of Timberlawn's arguments" was that "the report of a qualified expert opining that [the plaintiff] was actually raped" was necessary to satisfy the statutory requirement that an expert report "identify the alleged causal relationship" between Timeberlawn's alleged breach and the plaintiff's alleged injuries.[33] Our sister court of appeals rejected this premise.[34]

         The court in Timberlawn observed that the alleged "injury" in some healthcare liability claims "flow[s] from the existence of a medical condition that itself resulted from" (or was exacerbated by) the defendant's negligence.[35] "In such cases, identifying the causal relationship" may require expert testimony as to how the breach of the applicable standard of care gave rise to (or exacerbated) the medical condition.[36] In contrast, "[r]ape is not a medical condition, " but rather, "[i]t is an assault."[37] It "may-or may not-be accompanied by medically ascertainable evidence of physical trauma, or even physical evidence that it occurred."[38] Accordingly, the court declined to hold that the MLA required an expert report "opining that [the plaintiff] was in fact raped" as a condition to identifying the requisite "causal relationship."[39] However, the court required the plaintiff's expert report to "link Timberlawn's alleged negligence with [the plaintiff's] alleged harm or injuries-her sexual assault by a male patient."[40] After reviewing the report in light of this standard, the court concluded that the report sufficiently addressed how Timberlawn's alleged breach caused the plaintiff's injuries.[41]

         We find Timberlawn's analysis persuasive-while the MLA required Mahan to present an expert report that would establish a causal link between a breach of the standard of care and the type of "harm" or "injury" that allegedly befell her mother, [42] it did not require Mahan (at least at this stage of the case) to present expert testimony establishing that the sexual assault did in fact occur. In other words, the statute required Dr. Lipson's report to provide "a fair summary" of his opinions regarding the requisite causal link, [43] and the report was deficient only if it "[did] not represent an objective good faith effort to comply with" this requirement, [44] i.e., if it did not inform Gracy Woods of the specific conduct called into question and provide a basis for the trial court to conclude that Mahan's claims had merit.[45] In the context of this case, in which the alleged "harm" or "injury" was a sexual assault (which is not itself a medical condition and for which medically ascertainable evidence may not even exist), [46] we conclude that Dr. Lipson's report need not establish the fact of the assault itself in order to constitute a "good-faith" effort to provide "a fair summary" of Dr. Lipson's opinions regarding the causal link between Gracy Woods's alleged breach and Rivera's alleged injury.

         Gracy Woods attempts to distinguish Timberlawn by citing to subsequent decisions from our sister courts that it portrays as having "acknowledg[ed] the limited nature" of the Timberlawn holding. These authorities do not convince us that Timberlawn's analysis is inapplicable here.[47] Gracy Woods further suggests that Timberlawn may have turned on the plaintiff's being available to testify at trial that she was sexually assaulted, [48] whereas here Rivera is now deceased, and thus will not testify. The fact that Rivera is unavailable as a witness makes no difference here.[49]

         We conclude that the MLA did not require Dr. Lipson's report to opine that Rivera was in fact sexually assaulted as a component of the "causal relationship" between Gracy Woods's purported breach and Rivera's alleged injury. In turn, we cannot conclude that the district court abused its discretion in declining to dismiss Mahan's case based on Dr. Lipson's purported lack of expert qualifications as to this issue.[50]

         Dr. Lipson's qualifications relating to standards of care

         Dr. Lipson's report describes the applicable standards of care as follows:

1. The standard of care requires the nursing home provide twenty-four hour a day skilled nursing care. The practical result of this requirement is that the staff must be moving through the halls and the rooms of the residents all night long. There should never be a time when a staff member is not in the next room or moving through the halls next to a resident's room.
2. The standard of care requires that following the report of an assault at a nursing facility that the facility control unsupervised access to the rooms of residents at risk. The standard of care requires the facility take note of the families' concerns of inappropriate behavior and eliminate access to the patient by unsupervised males. Residents at risk include women with significant dementia such as Ms. Rivera. In light of the [family's] expressed concern of inappropriate advances to Ms. Rivera, the standard requires heightened scrutiny to include regular walks through the entire hall at intervals not to exceed ten minutes to prevent access to her room by males. The standard of care requires the nursing staff document the fact that it is performing the regular checks in the patients' charts. In addition, the standard of care requires Ms. Rivera be moved to a room in close proximity to the nursing station following complaints of inappropriate contact with Ms. Rivera.

         Gracy Woods contends that Dr. Lipson does not demonstrate his qualifications to opine concerning these standards of care. While "expert qualifications should not be too narrowly drawn, "[51] a licensed doctor is not "automatically qualified to testify as an expert on every medical question."[52] "What is required is that the offering party establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject."[53] In the context of this appeal, we must consider whether the trial court abused its discretion in determining that Dr. Lipson's report and CV, within their four corners, adequately articulate his qualifications to opine on the standards of care at issue here.[54]

         "[W]ith respect to . . . opinion testimony regarding whether a health care provider departed from accepted standards of health care, " the MLA defines an "[e]xpert" as one who is "qualified to testify under the requirements of [Civil Practice and Remedies Code] Section 74.402."[55]Section 74.402, in turn, provides that "a person may qualify as an expert witness on . . . depart[ure] from accepted standards of care 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 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;[56]
(2) 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 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.[57]

         "In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether . . . the witness:"

(1) is certified by a licensing agency of one or more states . . . or a national professional certifying 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[58] in rendering health care services relevant to the claim."[59]

         This case, at its core, concerns the standards of care applicable to nursing homes in order to protect patients from harming each other.[60] Thus, Dr. Lipson's report and CV must articulate a factual basis[61] that sufficiently demonstrates (1) his "knowledge of [the] accepted standards of care"[62] applicable to nursing homes, and (2) his qualifications "on the basis of training or experience to offer an expert opinion regarding [these] accepted standards, "[63] e.g., his relevant licensing certifications, his "other substantial training or experience, " and his "actively practicing health care in rendering health care services relevant to the claim."[64]

         Dr. Lipson describes his familiarity with the standards of care as follows:

I have extensive personal experience in primary medical care as well as subspecialty consultation and long-term care. I personally have provided care for patients in addition to my academic teaching, research and administrative responsibilities. My background is more fully described in my curriculum vitae attached hereto . . . .
I am familiar with the problem of sexual assault in the nursing home setting. I am familiar with the standard of care for preventing such assaults.
I continue to treat patients in the long[-]term care setting and have done so for more than thirty years. I am familiar with the standard of care for the treatment of patients like Mary Rivera and familiar with the required training of employees providing care to residents like Mary Rivera.

         In Harrington v. Schroeder, which involved a nursing home resident (Sylvia Ramos) who died from an assault by a fellow nursing home resident, the plaintiffs proffered an expert report by Dr. Lipson, which opined that the defendant, a physician, "was negligent in failing to":

(1) provide appropriate input as to Ms. Ramos's care plan; (2) perform timely and adequate assessments of Ms. Ramos; (3) document Ms. Ramos's medical care accurately; and (4) coordinate discharge of Ms. Ramos to another facility that could meet her needs.[65]

         The defendant moved to dismiss, arguing that Dr. Lipson's report failed to establish his qualifications.[66] The defendant argued that Dr. Lipson was not qualified to testify as to the standard of care because he had not shown that he "was board certified and was actively practicing medicine or rendering medical care relevant to the claim . . . at the time the claim arose or at the time the report was authored."[67] Our sister court rejected this contention and observed:

Even though Dr. Lipson's board certifications may have lapsed, his training and experience make him sufficiently qualified in this case. According to the expert report, Dr. Lipson has extensive experience in the areas of geriatric medicine and long term care; he is also the author of several articles relating to those subjects. His resume reflects post-graduate training in the area of geriatrics and care of the elderly. Dr. Lipson's experience in geriatric medicine, as set forth in his 47-page curriculum vitae, is significant and he continues to be on staff at the University of Alaska, Anchorage and at the School of Community and Global Health, Claremont Graduate University. In addition, he is Professor Emeritus of Medicine at the University of Southern California. He also currently serves as a consultant to various governing bodies in the areas of geriatric care and elder abuse. Accordingly, the fact that Dr. Lipson's board certifications have lapsed does not alone render him unqualified as an expert in this case.[68]

         The court held that "the trial court did not abuse its discretion in finding Dr. Lipson sufficiently qualified, as set forth in his report and curriculum vitae, to opine on the accepted standards of medical care applicable to [the defendant]."[69]

         Gracy Woods nevertheless contends that Dr. Lipson's report fails to articulate a sufficient factual basis to demonstrate how or why he knows what the standards of care required of Gracy Woods in this case.[70] It contends that Dr. Lipson's experience as a physician treating geriatric patients in nursing homes, or serving on various committees, does not automatically establish his expertise to opine on the standards of care regarding nursing home policies and protocols for the prevention of sexual assaults.[71] For example, Gracy Woods contends that Dr. Lipson's "report does not establish that he has ever participated in determining nursing home staffing levels or supervising nursing home staff, or that he has any expertise to opine that the standard of care requires nursing staff to walk the halls at intervals not to exceed ten minutes." It further contends that his report does not "offer any explanation . . . as to how he would know the documentary requirements for nursing home staff, generally, or in relation to performing 'regular checks' on residents."

         As previously discussed, Dr. Lipson is licensed to practice medicine in California, is board-certified in quality assurance and utilization review, and was previously board-certified in (and currently holds a "Certificate of Experience" in) geriatric medicine. He has treated patients "in the long[-] term care setting" for more than thirty-years, and he continues to do so. His report and CV describe his training and experience related to long-term care, geriatric medicine, and elder abuse, for example, his decades of service as a professor in geriatrics at the USC School of Medicine; his prior directorship of two USC Teaching-Nursing Home Programs; his consultantships to the federal government (the Departments of Justice and Health and Human Services) and to three state governments (California, New Mexico, and Alaska) regarding these topics, including consulting the California Attorney General on "Operation Guidelines (nursing homes [-] unannounced inspections)";[72] his many lectures to governmental entities and nursing homes on issues related to these topics, including a lecture on the "Standard of Care" at a 2007 symposium on elder abuse;[73] his prior service as the Senior Staff Physician in charge of geriatric programs at the Los Angeles County/USC Medical Center, and as the Chief of Geriatric Medicine at the USC University Hospital; and his current service as a Professor Emeritus of Medicine at USC and as an Affiliate Professor at the University of Alaska. Based on this experience, Dr. Lipson states that he is "familiar with the problem of sexual assault in the nursing home setting" and "with the standard of care for preventing such assaults."

         We conclude that Dr. Lipson's report and CV sufficiently articulate his qualifications to opine on the "accepted standards of health care" at issue here.[74] Accordingly, the trial did not abuse its discretion in finding Dr. Lipson qualified, as ...

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