Court of Appeals of Texas, Second District, Fort Worth
JON GOWER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF AARON ASHLEY GOWER APPELLANT
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
THE 431ST DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; SUDDERTH and KERR, JJ.
MEMORANDUM OPINION 
LIVINGSTON CHIEF JUSTICE
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. 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.
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.
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.
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
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,  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,
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
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 . . . .
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
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.
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.
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 ...