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Texas Home Health Skilled Services, LP v. Anderson

Court of Appeals of Texas, Tenth District

September 13, 2017

TEXAS HOME HEALTH SKILLED SERVICES, LP, Appellant
v.
JUDY ANDERSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ELIZABETH TIMMONS, DECEASED, Appellees

         From the 278th District Court Walker County, Texas Trial Court No. 1527363

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          MEMORANDUM OPINION

          AL SCOGGINS Justice.

         In one issue, appellant, Texas Home Health Skilled Services, L.P., argues that the trial court erred in refusing to dismiss a wrongful-death and survival lawsuit brought by appellee, Judy Anderson, individually and as representative of the estate of Elizabeth Timmons, deceased, because Anderson failed to serve compliant expert reports. This is the second time that appellant has challenged the trial court's refusal to dismiss this lawsuit for Anderson's purported failure to serve compliant expert reports. See generally Tex. Home Health Skilled Servs., L.P. v. Anderson, No. 10-15-00440-CV, 2016 Tex.App. LEXIS 11319 (Tex. App.-Waco Oct. 19, 2016, no pet.) (mem. op.). We once again conclude that Anderson's expert reports are insufficient as to causation. Accordingly, we reverse the trial court's order denying dismissal, render judgment dismissing Anderson's claims against appellant, and remand to the trial court for determination of reasonable attorney's fees and court costs. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2017).

         I. Background

         In the first iteration of this dispute, we recited the underlying facts. See Anderson, 2016 Tex.App. LEXIS 11319, at **1-4. As a brief summary, we highlight that Anderson filed a wrongful-death and survival suit against numerous parties, including appellant, on April 2, 2015. Id. at *1. With respect to appellant, Anderson asserted negligence, vicarious-liability, and gross-negligence claims pertaining to the death of Timmons. Id. Anderson served on appellant expert reports drafted by Paul O. Warshawsky, M.D. and Lori Rozas, R.N.[1] Id. at **4-5. Appellant challenged the sufficiency of Anderson's expert reports. The trial court determined that Anderson's expert reports were sufficient and, therefore, denied a motion to dismiss filed by appellant. Id. at **5-6.

         On appeal, we reversed the trial court's denial of appellant's motion to dismiss, concluding that Anderson's expert reports were insufficient as to causation. Id. at **30-31. Specifically, we noted the following:

A review of Dr. Warshawsky's expert reports reveals that dehydration was the cause of Timmons' death; however, he failed to explain how Timmons' subdural hematoma was a substantial factor in her death from dehydration. Because Anderson's expert reports fail to connect the occurrence of the subdural hematoma to Timmons' death, we conclude that Anderson's expert reports are insufficient on the element of causation.

Id. at **30-31. However, despite the foregoing, we further concluded that Anderson's expert reports were not "so deficient as to constitute no report at all." Id. at *31 (citing Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 670 (Tex. 2008); Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)). As such, we remanded the matter for the trial court to determine whether the deficiency in Anderson's expert reports could be cured, and thus, whether to grant an extension of time to cure. Id. at *32 (citing Samlowski v. Wooten, 332 S.W.3d 404, 411-13 (Tex. 2011) (noting that the trial court is in the best position to decide whether a cure is feasible)).

         On remand, Anderson filed a motion for a thirty-day extension of time to provide an amended expert report as to the causation element. The trial court granted Anderson's motion, and Anderson subsequently served Dr. Warshawsky's supplemental expert report on appellant. Thereafter, appellant filed a motion to dismiss Anderson's lawsuit for failure to serve an adequate expert report. The trial court denied appellant's motion to dismiss, and this accelerated, interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2016) (authorizing an interlocutory appeal from the denial of "all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351 . . . .").

         II. Standard of Review

         We review all rulings related to Section 74.351 of the Texas Civil Practice and Remedies Code under an abuse-of-discretion standard. Jelinek v. Casas, 328 S.W.3d 526, 538-39 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Although we defer to the trial court's factual determination, we review questions of law de novo. See Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 757 (Tex. App.-Houston [1st Dist.] 2012, no pet.); see also Hillcrest Baptist Med. Ctr. v. Dixon, No. 10-12-00396-CV, 2013 Tex.App. LEXIS 8565, at **4-5 (Tex. App.- Waco July 11, 2013, no pet.) (mem. op.). A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. See Poland v. Orr, 278 S.W.3d 39, 45 (Tex. App.-Houston [1st Dist.] 2008, pet. denied); see also Dixon, 2013 Tex.App. LEXIS 8565, at *5. An abuse of discretion occurs if the trial court fails to correctly apply the law to the facts or if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Haskell, 363 S.W.3d at 757 (citing Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.- Dallas 2010, no pet.)).

         III. Applicable Law

         A plaintiff who asserts a health-care-liability claim, as defined by Chapter 74, must provide each defendant physician or health-care provider with an expert report which provides "a fair summary of the expert's opinions" as of the date of the report regarding the applicable standards of care, the manner in which the care rendered failed to meet the applicable standards, and the causal relationship between that failure and the claimed injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6); see also Dixon, 2013 Tex.App. LEXIS 8565, at **5-6. "The purpose of the expert report requirement is ...


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