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Gower v. University Behavioral Health of Denton

Court of Appeals of Texas, Second District, Fort Worth

July 20, 2017

JON GOWER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF AARON ASHLEY GOWER APPELLANT
v.
UNIVERSITY BEHAVIORAL HEALTH OF DENTON A/K/A UHP, LP D/B/A UNIVERSITY BEHAVIORAL HEALTH OF DENTON; UNIVERSAL HEALTH SERVICES, INC.; AND NISHENDU M. VASAVADA, M.D. APPELLEES

         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 14-07848-431

          PANEL: LIVINGSTON, C.J.; SUDDERTH and KERR, JJ.

          MEMORANDUM OPINION [1]

          TERRIE LIVINGSTON CHIEF JUSTICE

         Appellant Jon Gower, individually and as representative of the Estate of Aaron Ashley Gower, appeals the trial court's dismissal of his health care liability claims against appellees University Behavioral Health of Denton a/k/a UHP, LP d/b/a University Behavioral Health of Denton (University); Universal Health Services, Inc. (Universal); and Nishendu M. Vasavada, M.D. The trial court dismissed Gower's claims because the expert report that he served on appellees did not comply with provisions of chapter 74 of the civil practice and remedies code.[2] On appeal, Gower contends that the trial court should not have dismissed his claims because the report was sufficient or because the court should have granted him an opportunity to cure any deficiencies. He also argues that the trial court erred by considering documents outside of the report to determine the report's sufficiency and that the court improperly awarded attorney's fees to appellees. Appellees contend that the report did not qualify as a good faith effort to comply with the statutory requirements and that under the circumstances of this case, the trial court was not required to grant an opportunity to cure. Because we hold that the report was deficient but that Gower was entitled to an opportunity to cure, we reverse and remand.

         Background Facts

         In September 2014, Gower sued appellees, seeking damages. In his original petition, Gower alleged that in January 2013, Aaron, Gower's son, had been admitted to a mental health hospital and had died there the next month. Gower alleged that Aaron had presented to the hospital with symptoms of insomnia, depression, suicidal gestures, hearing voices, and agitation. According to Gower, during Aaron's time at the hospital, he was manic, distraught, delusional, and depressive. Gower pled that near noon on February 2, 2013, Aaron was found face down in his room; he had vomit in his mouth and was unresponsive. Paramedics took Aaron to an emergency room, where he died four days later from respiratory failure, brain death, pneumonia, and sepsis.

         Gower alleged that during Aaron's treatment, University (as a health care provider) and Dr. Vasavada (as a specialist in the field of psychiatry) had acted negligently. Specifically, Gower pled that University and Dr. Vasavada had been negligent and grossly negligent by, among other acts, prescribing excessive medication, failing to properly monitor Aaron, failing to adequately assess him upon presentation and stabilize him thereafter, failing to ensure that he was seen by qualified health care providers, and failing to properly supervise him. Gower further pled that Universal owns and operates University and was negligent and grossly negligent by failing to use ordinary care to monitor and supervise its employees, failing to properly secure the premises and protect psychiatric patients from harm, failing to use ordinary care to protect Aaron from the danger presented by employees and other patients, failing to adequately warn Aaron of the dangers presented by the lack of proper security on the premises, and failing to have or enforce policies and procedures on various matters.

         Each appellee answered the petition in November 2014. In January 2015, Gower served appellees with an expert report. Dr. Leo Borrell, a board certified psychiatrist, wrote the report. Concerning the events related to Aaron's death, the report stated,

On January 16, 2013, [Aaron] voluntarily checked himself into [University]. He presented with agitation, bizarre behavior, severe anxiety, suicidal ideation, and . . . synthetic marijuana (K2) abuse. He reported a history of depression and chemical dependency. [Aaron], 22 years old at the time, was admitted to adult inpatient care at [University] for psychiatric stabilization under the care and treatment of psychiatrist Dr. Nishendu M. Vasavada. . . .
[Aaron] was diagnosed [with] bipolar disorder with psychotic features and K2 and marijuana abuse. He was delusional and also had a history of suicide ideation. . . . [He] remained in [University] until February 2, 2013, as in inpatient in the [Critical Stabilizing Unit].
The records reflect that [Aaron] was initially prescribed Depakote and Seroquel but refused to take either[, ] stating he was worried about the side effects. . . . On January 23, he was . . . administered Vistaril 50 mg because he was suffering from severe anxiety. On January 28, there was a change in [Aaron's] behavior and he became very distraught. He was suffering from a great deal of depression, anxiety, agitation[, ] and delusional thinking. . . . [Aaron] became hypertensive, so an internal medicine consult was ordered and he began taking [Lisinopril] . . . and Clonidine . . . on January 31. Dr. Dipprey, [3] the internal medicine specialist that treated [Aaron] for hypertension[, ] did not note any specific findings in his charts. On February 1, . . . [Aaron] appeared to be somewhat sedated. . . .
When Dr. Vasavada saw [Aaron] around 10:30 a.m. on February 2, he noted that [Aaron] was sedated . . . and needed to be seen by a medical doctor. According to medical records, around noon [Aaron] was sleeping in his room and began making strange noises. The nursing staff . . . found him unconscious with vomit in his mouth. A code blue was called . . . . His eyes were fixed and dilated. . . .
[Aaron] was transferred to [a hospital] where he was placed on life support. His family was advised [he] had suffered severe brain damage due to a lack of oxygen for an extended period of time leading up to the time he was found at [University]. [Aaron] was pronounced dead on February 6, 2013.

         In the report, Dr. Borrell separated his discussion of the alleged negligence of Universal, University, and Dr. Vasavada. With respect to Universal, Dr. Borrell wrote,

At all relevant times [Universal] owned . . . and managed [University] . . . . [Universal] held itself out as providing for the diagnosis, treatment, and care of [psychiatric] patients . . . . [Universal] owed a duty to [Aaron] to act as a reasonably prudent owner, operator, and/or management company of an inpatient psychiatric facility under the same or similar circumstances.
. . . [Universal] committed one or more of the following acts . . . of negligence[:] . . . failing to use ordinary care to monitor and supervise its employees charged with the care and supervision of psychiatric patients, including but not limited to the plaintiff [R.H.], all of which posed an unreasonable risk of harm to patients like the plaintiff[;] . . . and failing to have/or enforce policies and procedures on: 1) Failing to use ordinary care in the hiring, monitoring, evaluating[, ] and supervising [of] employees and staff charged with the care and supervision of psychiatric patients; 2) Conducting appropriate screening/review of credentials for staff physicians; 3) Ensuring patient safety; 4) Preventing the prolonged hospitalization of patients for the purpose of profit over patient care; and 5) Implementing proper procedures to ensure patients were properly evaluated and treated from the time of admission through the time of discharge.
Further, [Universal] is liable for the negligent acts and omissions of its various agents . . . pursuant to the doctrine of respondeat superior . . . . Each of the above-cited acts . . . [was] foreseeable and a proximate cause of the injuries, damages, suffering[, ] and death of [Aaron]. [Emphasis added.] Concerning University's alleged negligence, Dr. Borrell stated in his report that University breached the standard of care in this matter. On the occasion(s) in question, as described herein, [University] committed one or more of the following acts . . . of negligence[:] . . . failing to use ordinary care to monitor and supervise its employees charged with the care and supervision of psychiatric patients, including but not limited to [Aaron], . . . and failing to have/or enforce policies and procedures on: 1) Hiring, monitoring, evaluating and supervising employees and staff; 2) Conducting appropriate screening/review of credentials for staff physicians; 3) Ensuring patient safety; 4) Prescribing excessive medication to [Aaron] under the circumstance[s][;] 5) Failing to properly monitor [Aaron's] condition; . . . 6) Failing to provide the appropriate level of supervision; [and] 7)[ ]Failing to properly stabilize [Aaron].
I have experience and I am familiar with the standard of care that . . . hospitals treating mental healthcare patients should follow when a patient's vitals are out of normal range. . . . First, a registered nurse must supervise and evaluate the nursing care for each patient. Thus, once a patient's vitals are above the normal range, it is imperative that those vitals are re-checked and that there is nurse or even physician intervention if necessary. [Aaron's] blood pressure and heart rate were above the normal range on several occasions during his time as an inpatient . . . . [O]n each of these occasions, [Aaron's] blood pressure and heart rate should have been re-checked, a nurse should have been notified, and nurse intervention should have occurred. The staff failed to do this . . . . [Aaron's] blood pressure and/or heart rate were out of the normal range and no follow-up and/or re-check was completed . . . .

         Finally, in the section of the report concerning Dr. Vasavada's alleged negligence, Dr. Borrell stated,

Further, the internal medicine specialist, Dr. Dipprey, who evaluated [Aaron's] hypertension did not note anything in his chart. The only thing that is noted is that [Aaron's] hypertension was "treated." No specific findings are mentioned nor even what testing and procedures Dr. Dipprey performed. Dr. Vasavada was the attending and was similarly responsible for monitoring [Aaron's] medical conditions and changes thereto at all time[s], including ensuring proper orders were put in place to manage and monitor [Aaron's] blood pressure and heart rate. Moreover, Dr. Vasavada's discharge summary merely states that an internal medicine consult was ordered and that [Aaron] was evaluated, but once again no specific findings are documented. [Aaron's] chart has no indication of proper treatment relating to his hypertension. . . .
There were also other occasions that [Aaron] exhibited unusual behavior and/or symptoms and no follow-up or interventions were taken. . . . In all of the above instances, [University] did not meet the standard of care in that it failed to ensure registered nurses supervised and evaluated the nursing care of [Aaron], and the signs and symptoms associated with his changing medical condition. Specifically, [Aaron's] vitals and life-threatening condition were either not documented and/or his vitals were not properly monitored and re-evaluated.
Furthermore, I am familiar with the standard of care required in emergency situations like [Aaron's], when he was found unresponsive in his room on the floor. The patient has the right to receive care in a safe setting . . . . [University] did not meet the standard of care in that it had inadequate emergency equipment needed to resuscitate [Aaron]. Namely, the pads for Automated External Defibrillator (AED) were not available on the crash cart causing the AED to be useless. (See Dept. of Health Complaints - Investigation dated 5/16/13).

         Dr. Borrell closed his report with a summarizing paragraph about the alleged negligence of all three defendants:

In summary, the conduct called into question is the failure by [University], its parent company [Universal], Dr. Dipprey, and Dr. Vasavada to recognize and properly treat [Aaron's] symptoms and failure to provide the appropriate medications that ultimately led to his untimely death. Furthermore, the parties also failed to meet the standard of care as described above by failing to adequately respond to [Aaron's] distress or to have the proper life-saving equipment available. It is my opinion that the failures set forth above were the proximate cause of [Aaron's] death. Namely, had [Aaron's] high blood pressure been properly monitored and treated in a timely manner so as to investigate the cause, or had [University] had the appropriate life-saving equipment, it is my opinion that to a reasonable degree of medical probability he would have received timely treatment of his condition and [would have] survived.

         University, Universal, and Dr. Vasavada all filed timely objections to the adequacy of Dr. Borrell's report. They all contended that the report did not qualify as a good faith effort to satisfy the requirements of section 74.351 of the civil practice and remedies code. They all argued that the report failed to establish Dr. Borrell's qualifications to opine about the subjects discussed within the report and did not sufficiently describe the applicable standard of care, how each defendant breached the standard, and the causal relationship between the alleged breaches and Aaron's death. Dr. Vasavada also noted that the report discussed the care received by an unknown patient, R.H. University and Universal attached documents to their objection to Dr. Borrell's report, including a report from Aaron's autopsy stating that he had died from dural sinus thrombosis with associated brain edema.

          Dr. Borrell did not amend his report to address the deficiencies asserted by appellees' objections. Months after appellees filed their objections, they filed motions to dismiss Gower's lawsuit for his failure to serve an expert report that complied with section 74.351. Gower responded to the objections and the motions to dismiss. He contended that Dr. Borrell's report represented a good faith effort to comply with the ...


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