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Columbia Medical Center of Arlington Subsidiary L.P. v. L.M.

Court of Appeals of Texas, Second District, Fort Worth

March 1, 2018

COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY L.P. AKA/DBA MEDICAL CENTER OF ARLINGTON APPELLANT
v.
L.M. APPELLEE

         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 096-284523-16

          PANEL: WALKER and PITTMAN, JJ.; CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).

          MEMORANDUM OPINION[1]

          CHARLES BLEIL, JUSTICE

         In this case involving alleged sexual misconduct by a nurse against a patient, Columbia Medical Center of Arlington Subsidiary L.P. d/b/a Medical Center of Arlington (MCA) brings an interlocutory appeal from the trial court's April 11, 2017 order overruling its motion objecting to the patient L.M.'s revised expert report and seeking dismissal of L.M.'s claims. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2017), § 74.351(b)(2) (West 2017). MCA contends in a single issue that the trial court erred (1) by granting L.M. an extension to cure deficiencies in her original expert report because it was so lacking in substance that it was no report at all, (2) by overruling its objections to L.M.'s original report and a revised report that she timely filed after the extension, and (3) by "denying [its] motions to dismiss." Because we conclude that L.M.'s original proffered report was deficient but curable and that L.M.'s revised expert report is not deficient, we affirm the trial court's denial of MCA's second motion to dismiss.

         I. Background Facts And Procedural History

         L.M. sued nurse Gerald Thomas Cagle, Staff Quest Plus, his staffing agency employer, and MCA for common law negligence and health care liability under chapter 74 of the Texas Civil Practice and Remedies Code. L.M. alleged that after she went to MCA's emergency room complaining only of chest pain, Cagle--without obtaining a doctor's order and without following established protocol or policy--performed an unnecessary invasive catheterization (an "in-and-out" catheterization) and after doing so, performed an unnecessary and also unordered digital vaginal examination.[2] L.M. alleged that MCA was vicariously liable for Cagle's conduct and that it had negligently trained, instructed, and supervised Cagle.

         L.M. timely filed documents purporting to constitute an expert report: a transcript of sworn testimony during a Texas Board of Nursing hearing by nurse Denise Benbow concerning Cagle's conduct; Benbow's curriculum vitae (CV); an administrative law judge's (ALJ) recommendation to the Board that Cagle's license be revoked; and an opinion and order of the Board revoking Cagle's license prepared by nurse Katherine A. Thomas. MCA objected to the documents on numerous grounds, including that the documents constituted either no report at all or a deficient report, and filed a motion to dismiss alleging the same grounds it raised in its objections. At a hearing on its objections and motion, MCA's counsel argued, "[A]ll they've done is they've pieced together documents from Nurse Cagle's Texas Board of Nursing ALJ hearing and have attempted to repurpose same as an expert report." Instead of ruling at the hearing, the trial court took the matter under advisement.

         Three weeks later, on October 26, 2016, the trial court signed an order finding that "the expert report [was] deficient" and granting L.M. a thirty-day extension to cure the deficiencies. See id. § 74.351(c), (r)(6). The order did not expressly deny the motion to dismiss. MCA did not appeal from this order.

         L.M. timely filed a "Revised Chapter 74 Expert Report, " which included a "Medical Review Report" by Dr. Lola Lumpkins along with her CV. MCA objected to Dr. Lumpkins's expert report on the grounds that her causation opinion is conclusory and that she improperly relied on the causation opinions of Benbow, Thomas, and the ALJ instead of making an independent causation determination. MCA also again sought dismissal based on Dr. Lumpkins's allegedly-deficient expert opinion. MCA alternatively argued in this second motion to dismiss that the trial court should have granted its first motion to dismiss because the documents L.M. originally filed constituted no report at all; thus, the trial court erred by granting L.M. a thirty-day extension. After a hearing, the trial court overruled MCA's objections to Dr. Lumpkins's expert report and denied MCA's second motion to dismiss. MCA appealed.

         II. Complaints On Appeal

         In a single issue, MCA raises the following complaints:

• the documents L.M. originally served did not constitute a "'written report' providing a 'fair summary' of an expert's opinions on the standards of care, breach, and causation particular to this lawsuit";
• even if the documents could be considered an expert report, they were so deficient that they were no report at all because (a) they did not contain a physician's causation opinion, (b) Benbow, Thomas, and the ALJ are not qualified to opine about the standard of care and breach, and (c) even if they are qualified, their opinions about the standard of care and breach are conclusory;
• Dr. Lumpkins's report is deficient as to L.M.'s vicarious liability claim because her causation opinion is conclusory and she improperly relied on Benbow's, Thomas's, and the ALJ's causation opinions contained in the first proffered report; and
• because Dr. Lumpkins's report is deficient as to vicarious liability and because neither the original report nor Dr. Lumpkins's report addressed any direct liability claims against MCA, L.M. failed to file an adequate expert report on any of her claims.

         Because L.M. has not argued in this court or the trial court that her allegations against MCA do not fall within chapter 74's scope, we will review only whether the trial court abused its discretion by denying MCA's second motion to dismiss under section 74.351's applicable law. See, e.g., Loaisiga v. Cerda, 379 S.W.3d 248, 257 (Tex. 2012) (setting out three-part test for rebutting presumption that claim against health care provider is a section 74.351 health care liability claim); Murphy v. Russell, 167 S.W.3d 835, 838-39 (Tex. 2005) (holding that medical battery claim required expert report under former article 4590i because expert testimony necessary regarding whether health care provider had any reasons for performing unconsented-to procedure that did not breach standard of care); T.C. v. Kayass, No. 02-16-00248-CV, 2017 WL 5180773, at *2, *6 (Tex. App.--Fort Worth Nov. 9, 2017, no pet.) (holding that claim against doctor for alleged sexual assault of mother during her children's appointment was not a health care liability claim for which an expert report must be filed); Appell v. Muguerza, 329 S.W.3d 104, 109-13 (Tex. App.--Houston [14th Dist.] 2010, pet. denied) (concluding that part of claim sounding only in assault was not a health care liability claim for which an expert report is required but also citing cases holding that alleged sexual assaults of patients during course of medical examination were inseparable from rendition of medical care), abrogated in part on other grounds by Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 184-86 (Tex. 2012); Vanderwerff v. Beathard, 239 S.W.3d 406, 409 (Tex. App.--Dallas 2007, no pet.) (concluding that expert report was required in claim that chiropractor sexually touched patient during examination when expert testimony was necessary to establish proper standard of care for examination for patient's particular complaint).

         We review a trial court's denial of a motion to dismiss under section 74.351(b) for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. Low, 221 S.W.3d at 620; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

         III. L.M.'s First Report Was Deficient But Curable

         MCA's issue on appeal includes several complaints related to its alternative argument in its second motion to dismiss: that the documents L.M. filed as her original expert report were so deficient that they constituted no report at all and that the trial court therefore erred by extending the time for her to file a report to correct the deficiencies. A complaint that a report is so deficient that it is tantamount to no report at all is immediately appealable upon the trial court's denial of a motion to dismiss raising that ground even if the plaintiff has already filed an amended report in accordance with an order extending the time to do so. See Scoresby v. Santillan, 346 S.W.3d 546, 555, 557 (Tex. 2011); In re Watkins, 279 S.W.3d 633, 634 (Tex. 2009) (orig. proceeding); Badiga v. Lopez, 274 S.W.3d 681, 684-85 (Tex. 2009); see also Tex. Civ. Prac. & Rem. Code Ann. ยงยง 51.014(a)(9), 74.351(b). Here, the trial court's October 26, 2016 order found the documents L.M. served as her first report deficient and granted L.M. thirty days to file a new report but ...


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