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Courtyard SNF, LLC v. Robinson

Court of Appeals of Texas, Fourteenth District

May 16, 2017

COURTYARD SNF, LLC D/B/A COURTYARD CONVALESCENT CENTER, Appellant
v.
CHLOE ROBINSON, INDIVIDUALLY AND AS P/O/A FOR OTIS ROBINSON, A DISABLED INDIVIDUAL, LUCY ROBINSON AND DYKE ROBINSON AND AS P/O/A FOR OTIS ROBINSON A DISABLED INDIVIDUAL, Appellees

         On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2015-51389

          Panel consists of Justices Christopher, Busby, and Jewell.

          MEMORANDUM OPINION

          Tracy Christopher Justice.

         In this health-care liability case, Courtyard SNF, LLC d/b/a Courtyard Convalescent Center appeals the denial of its motion to dismiss the claims against it due to the inadequacy of the original and amended expert reports. Courtyard contends the expert report served by appellees Chloe Robinson, individually and as P/O/A for Otis Robinson, Lucy Robinson and Dyke Robinson (collectively the "Robinson Parties") was insufficient as it fails to provide a fair summary of the (1) applicable standard of care, (2) manner in which Courtyard failed to meet the standard of care, and (3) causal relationship between Courtyard's failure and the injury. We agree that the expert report falls short of the statutory standards on the issues of breach and causation. We therefore reverse the trial court's order denying the motion to dismiss, render judgment dismissing the Robinson Parties' claims against Courtyard, and remand this case to the trial court with instructions to assess and award Courtyard its reasonable attorney's fees and costs incurred.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Otis Robinson suffered a serious stroke rendering him unable to verbally communicate and dependent on others for care. Courtyard admitted him for skilled nursing care. Prior to his admission, Otis Robinson was diagnosed with a subarachnoid hemorrhage (a brain bleed), a persistent vegetative state, pressure ulcers (commonly known as a bed sore), urinary tract infection, acute respiratory failure, tracheostomy, gastrostomy, hypertension, diabetes type II, and hypercholesterolemia. Otis Robinson developed gangrene in both feet as a result of pressure ulcers on his heels in 2014. As a result of the infection, both of his legs were amputated above the knee.

         The Robinson Parties brought a medical negligence claim against Courtyard, Advanced Health Care Solutions, 7499 Stanwick Drive LLC, Teddy Lichtschein, Eliezer Scheiner, Khoa Don Nguyen, M.D., Houston Family Physicians, P.A., LQVC Management, Inc., Northland Surgical, P.A., and Huynh Nguyen Investments, LLC on August 31, 2015.[1] The Robinson Parties alleged Courtyard and the other defendants failed to treat, monitor, and maintain the condition of the pressure ulcers which resulted in severe pain and ultimately, the amputation of both legs. The Robinson Parties filed and served an expert report by Dr. Lige B. Rushing, Jr. on the defendants pursuant to section 74.351 of the Texas Civil Practice and Remedies Code.[2]

         Dr. Rushing opined the standard of care required Courtyard to (1) provide the level of care, treatment, and supervision that a reasonably prudent similar facility would provide under the same or similar circumstances; (2) ensure a resident who enters the facility without pressure sores does not develop pressure sores unless unavoidable and provide necessary treatment and services to promote healing and prevent infection of existing pressure sores and prevent new sores from developing; (3) maintain clinical records in accordance with accepted professional standards; (4) neither accept nor retain a resident whose needs the facility could not meet; and (5) implement a pressure ulcer prevention program. Dr. Rushing further opined that Courtyard did not meet these standards of care by (1) failing to appropriately treat or increase or change treatment levels to combat the pressure ulcers; (2) failing to maintain complete, accurate, and systematically organized records; (3) retaining Otis Robinson as a patient even though it was abundantly clear that his pressure ulcers were getting progressively worse; and (4) failing to document Otis Robinson's wounds. Dr. Rushing concluded that if Courtyard and its medical personnel had not breached the standard of care, Otis Robinson would not have suffered the infection, gangrene, and eventual amputation of his legs.

         Courtyard moved to dismiss the Robinson Parties' claims against it in the trial court under section 74.351(b).[3] The trial court denied the motion to dismiss.[4]This interlocutory appeal followed.

         II. STANDARD OF REVIEW

         When reviewing the trial court's ruling on a challenge to an expert report, we apply the abuse-of-discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court "'abuses its discretion when 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) (quoting Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). When determining whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court. Wright, 79 S.W.3d at 52.

         III. ANALYSIS

         Courtyard challenges the trial court's order in two issues. First, Courtyard contends the Robinson Parties did not provide an expert report that satisfies the statutory requirements of section 74.351(r)(6). Courtyard challenges the sufficiency of the expert report as to the (1) applicable standard of care, (2) manner in which Courtyard failed to meet the standard of care, and (3) causal relationship between Courtyard's failure and the injury. Second, Courtyard requests that we render judgment dismissing the Robinson Parties' claims against it and remand this matter to the trial court for a determination of attorney's fees.

         A. Dr. Rushing's report is deficient under section 74.351(r)(6)

         A claimant under the Texas Medical Liability Act must serve each defendant health-care provider with one or more expert reports and with the curriculum vitae of each expert listed in the report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). The expert report must provide a fair summary of the expert's opinions regarding the applicable standard of care, the manner in which the healthcare provider failed to meet that standard, and the causal relationship between that failure and the injury or harm alleged. Id. § 74.351(r)(6); Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878-79. In setting forth the expert's opinions on each of these three elements, the report must (a) inform the defendant of the specific conduct the plaintiff has called into question, and (b) provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report does not fulfill these requirements if it merely states the expert's conclusions about the standard of care, breach, and causation. Id. The expert instead "'must explain the basis of his statements to link his conclusions to the facts.'" Jelinek, 328 S.W.3d at 539 (quoting Wright, 79 S.W.3d at 52).

         1. Dr. Rushing provides separate standards of care for Courtyard and Dr. Nguyen

         Courtyard contends that Dr. Rushing's report contains a standard of care which is not individualized to any particular health care provider making it conclusory and inadequate. The Robinson Parties contend that Dr. Rushing's report includes discussion of the standard of care applicable to Courtyard separate from Dr. Nguyen and Houston Family Physicians. We agree with the Robinson Parties that the report contains separate standards of care for Courtyard and Dr. Nguyen and Houston Family Physicians.

         The standard of care is what an ordinarily prudent health care provider would have done under the same or similar circumstances. Palacios, 46 S.W.3d at 880; Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.- Houston [14th Dist.] 2011, no pet.). "Identifying the standard of care is critical: Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Palacios, 46 S.W.3d at 880. The standard of care must explain what care was expected but not given. Id. When there is more than one defendant, the standard of care must be set out in the report for each defendant and explain the causal relationship between each defendant's acts and the injury. Id.

         Courtyard asserts the standard of care established in Dr. Rushing's report requires all parties to "provide that level of care, treatment, and supervision that a reasonabl[y] prudent similar facility would provide under the same or similar circumstances." The Robinson Parties contend that standard of care as to Courtyard articulated by Dr. Rushing also requires:

Each resident must receive [and] the facility must provide [the] necessary care and services to attain or maintain [the] highest practicable[] physical, mental, and psychosocial well-being, as defined by and in accordance with the comprehensive assessment and plan of care.
In order to meet the standard of care, based on the comprehensive assessment of the resident, the facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable. A resident who has pressure sores on admission to a facility must receive the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. Otis Robinson's clinical condition did not demonstrate that his pressure ulcers were unavoidable or untreatable. In fact, records ...

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