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Pinnacle Health Facilities XV, LP v. Robles

Court of Appeals of Texas, Fourteenth District

June 22, 2017

PINNACLE HEALTH FACILITIES XV, LP D/B/A WOODRIDGE NURSING AND REHABILITATION, Appellant
v.
JORGE ROBLES AND WERNER ROBLES, INDIVIDUALLY AND AS HEIRS OF ZOILA ROBLES, Appellees

         On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2015-11057

          Panel consists of Justices Busby, Donovan, and Wise.

          SUBSTITUTE MEMORANDUM OPINION

          John Donovan Justice

         We issued our opinion in this case on December 15, 2016. Thereafter, Jorge Robles and Werner Robles, individually and as heirs of Zoila Robles, (collectively "appellees") filed a motion for en banc reconsideration. Pinnacle Health Facilities XV, LP d/b/a Woodridge Nursing and Rehabilitation ("appellant") filed a response. We withdraw our previous opinion, vacate our previous judgment, and issue this substitute opinion and judgment. Appellees' motion is denied as moot.

         Pinnacle Health Facilities XV, LP d/b/a Woodridge Nursing and Rehabilitation ("appellant") appeals from the trial court's denial of its motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2010). Finding the expert report insufficient, we reverse and remand.

         I. Background

         Appellees filed a health care liability claim alleging Zoila Robles ("Robles") suffered injuries and died as a result of a faulty sling transfer[1] from her geri-chair[2]to her bed at Woodridge Rehabilitation Center. Pursuant to section 74.351 of the Texas Civil Practices and Remedies Code, appellees served appellant with the expert report of Christopher Davey, M.D. Appellant objected to his original report, prompting appellees to file and serve an amended expert report by Davey. Appellant again objected. In order to obtain a ruling on appellant's objections to allow discovery to proceed, appellees filed a motion to overrule appellant's objections. Following a hearing, the trial judge granted that motion. Appellant then filed a motion to reconsider and motion to dismiss. From the trial court's order denying the motion to dismiss, appellant initiated this interlocutory appeal.

         II. Standard Of Review And Applicable Law

         The Texas Medical Liability Act ("the Act") entitles a defendant to dismissal of a health care liability claim if he is not served with an expert report showing that the claim has merit within 120 days of the date suit was filed. Tex. Civ. Prac. & Rem. Code § 74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial court's refusal to dismiss may be immediately appealed. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a trial court's denial of a motion to dismiss under section 74.351 for abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006); see also Jelinek, 328 S.W.3d at 539. When reviewing these matters, "a court of appeals may not substitute its own judgment for the trial court's judgment." 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. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.- Houston [1st Dist.] 2006, no pet.).

         The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 141 (Tex. 2015). The report must fairly summarize (1) the applicable standard of care, (2) a breach of that standard, and (3) causation. See Van Ness, 461 S.W.3d at 141; Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). Further, a report must provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct that the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d 860, 863 (Tex. App.-Houston [1st Dist.] 2008, no pet.).

         A court must grant a motion challenging the adequacy of a report if it is not "an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Tex. Civ. Prac. & Rem. Code § 74.351(l). When a report does not fairly summarize the three elements or provide enough information to fulfill the two purposes above, it is not considered an "objective good faith effort" to comply with the statute. Scoresby, 346 S.W.3d at 555-56. A report that merely states the expert's conclusions also does not amount to a good faith effort. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert must explain the basis for his statements and must link his conclusions to the facts. Jelinek, 328 S.W.3d at 539. It is not necessary, however, for the plaintiff to assemble all his proof or present evidence in the report as if he were in fact litigating the merits. Palacios, 46 S.W.3d at 879.

         A "good-faith effort" provides sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provides a basis for the trial court to conclude that the claims have merit. Van Ness, 461 S.W.3d at 141; Patel v. Williams, 237 S.W.3d 901, 904 (Tex. App.-Houston [14th Dist.] 2007, no pet.). When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. See Bowie Mem'l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.

         III. Analysis

         In a single issue, appellant questions whether the trial court erred in denying the motion to dismiss after appellees failed to serve an amended expert report that complies with Chapter 74. See Tex. Civ. Prac. & Rem. Code ยง 74.351(l), (r)(6). Specifically, appellant claims the amended expert report failed to provide any specific factual information as to how appellant breached its standards of care and simply assumes a breach occurred by virtue of Robles' fall. Further, appellant contends the amended ...


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