Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Ashford Hall, Inc.

Court of Appeals of Texas, Fifth District, Dallas

May 22, 2018

VICKIE JONES, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF LEROY JONES, Appellant
v.
ASHFORD HALL, INC. D/B/A ASHFORD HALL, ASHFORD HALL, INC., AND LION HEALTH SERVICES, Appellee

          On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-15042

          Before Justices Lang-Miers, Fillmore, and Stoddart

          MEMORANDUM OPINION

          ROBERT M. FILLMORE, JUSTICE

         Vickie Jones, individually, and on behalf of the Estate of Leroy Jones (Jones) appeals the trial court's order dismissing her claims against Ashford Hall, Inc., d/b/a Ashford Hall, Ashford Hall, Inc. (collectively, Ashford Hall) and Lion Health Services (Ashford Hall and Lion Health Services, collectively, Ashford), and denying her motion for new trial by operation of law. In three issues, Jones argues the trial court: (1) erred in sustaining Ashford's First Objections to Plaintiff's original expert report; (2) abused its discretion in sustaining Ashford's Second Objections to Plaintiff's amended expert report and granting Ashford's motion to dismiss; and (3) abused its discretion by overruling Jones's motion for new trial by operation of law. For the reasons that follow, we conclude the amended expert report satisfied the statutory requirements of chapter 74 of the Texas Civil Practice and Remedies Code; and the trial court abused its discretion by sustaining Ashford's objections to the amended expert report, and granting Ashford's motion to dismiss. Accordingly, we reverse the trial court's award of attorneys' fees in favor of Ashford, reverse the trial court's order dismissing Jones's claims against Ashford, and remand this case to the trial court for further proceedings.

         Background

         Factual Allegations

         Jones filed this lawsuit against Ashford following the death of Jones's father, Leroy Jones (Mr. Jones), while he was a resident at Ashford Hall, a skilled nursing facility "owned, operated, managed and/or staffed" by Ashford. With the exception of a February 2013 hospital stay at Baylor Medical Center of Irving precipitated by injuries and illnesses Mr. Jones sustained after his admission to and while under the care of Ashford, Mr. Jones resided at Ashford Hall from January 2013 until his death on March 4, 2013.

         The petition asserted Ashford admitted Mr. Jones to Ashford Hall knowing he required assistance, skilled nursing care, proper medical oversight, and qualified, trained medical staff support for the activities of daily living, as well as his advancing Alzheimer's disease. Ashford represented its facilities and services were equipped, and it was "able, knowledgeable and sufficiently staffed, " "to adequately care for Mr. Jones' conditions" and meet his needs. The petition alleged Ashford was negligent and grossly negligent in its care and treatment of Mr. Jones, failed to provide continuous care to Mr. Jones, and breached its duty of care in the following ways, among others:

• failing to observe, intervene, and provide the medical and nursing care reasonably required for Mr. Jones's known conditions;
• failing to provide appropriate supervision of and training to its staff and personnel to ensure Mr. Jones received the requisite care to meet his needs at all relevant times;
• failing to provide a written care plan specifying the care and services necessary to meet, and appropriate to address the severity of, Mr. Jones's specific needs; and
• failing to ensure Mr. Jones's care plan was properly updated upon a significant change in his condition.

         As a result of Ashford's negligence and gross negligence, the petition alleged Mr. Jones: became wheelchair bound and lost the ability to perform every-day activities he had been able to perform with little to no assistance just ten days prior to his admission to Ashford Hall; lost forty pounds due to malnutrition; became weak and lethargic; developed pressure wounds and sores on his body and feet that Ashford failed to treat; as a result of Ashford's failure to properly treat the pressure wounds and sores, developed multiple injuries and illnesses; suffered a heart attack that Ashford failed to detect;[1] experienced a drop in blood pressure that required hospitalization; was transferred to Baylor Medical Center of Irving where "it was discovered that Mr. Jones had developed untreated [pressure wounds and sores] while he was a resident at Ashford Hall"; and died. The petition alleged that physicians at Baylor Medical Center of Irving were unable to perform the surgery required to treat and heal Mr. Jones's pressure wounds because his undetected heart attack "left him too physically weak to survive a surgical procedure."

         The petition alleged the injuries and illnesses Mr. Jones sustained as a result of Ashford's acts and omissions severely diminished his quality of life; caused unnecessary and preventable harm, substantial injuries, pain, and suffering; and caused his untimely and preventable death. The petition further stated Mr. Jones "would have been entitled to bring a suit for damages he incurred as a resident of [Ashford's] Facility if he were still alive, " and sought damages for past physical pain, past mental anguish, past disfigurement, past physical impairment, past medical expenses, and past and future loss of companionship and society.[2]

         Procedural History

         Jones filed the petition on December 31, 2014. Because this lawsuit involved a health care liability claim, it was subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 74.001-.507 (West 2017). In accordance with chapter 74, on July 14, 2015, Jones timely served on Ashford an expert report and curriculum vitae of Dr. E. Rawson Griffin, III, M.D. (Dr. Griffin). On August 3, 2015, Ashford filed a motion to dismiss and objections pursuant to chapter 74 for failure to file an adequate expert report. The trial court granted Ashford's motion to dismiss, but gave Jones thirty days to "correct any deficiencies" in Dr. Griffin's expert report. The trial court did not identify specific deficiencies in the original expert report. On December 4, 2015, Jones served on Ashford the amended expert report of Dr. Griffin. On December 28, 2015, Ashford filed a motion to dismiss the amended report and objections pursuant to chapter 74 for failure to file an adequate expert report, which the trial court granted on August 31, 2016, dismissing Jones's claims with prejudice and ordering Jones to pay $6, 500 in attorneys' fees to Ashford, "plus any additional fees and expenses associated with any oral hearing on this matter and any appeal of this order." Jones filed a "Motion for New Trial/Reconsideration" on September 30, 2016. The trial court did not rule on Jones's motion, which was subsequently overruled by operation of law, and Jones filed a notice of appeal.

         Applicable Law

         Chapter 74 of the civil practice and remedies code requires a claimant pursuing a health care liability claim to serve one or more expert reports on each physician or health care provider against whom a health care liability claim is asserted no later than 120 days after the date each defendant's original answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). A report meets the requirements of chapter 74 if it represents "an objective good faith effort to comply with the definition of an expert report." Id. § 75.351(1). "Expert report" is defined as:

[A] written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. § 74.351(r)(6).

         The trial court may grant a motion challenging the adequacy of an expert report under the provisions of chapter 74 only if the report does not represent an objective good faith effort to comply with section 74.351(r)(6) by informing the defendant of the specific conduct that is the subject of the plaintiff's claim, and providing a basis for the trial court to conclude the plaintiff's claim has merit. Id. at § 74.351(1); Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012); Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016). The expert report need not marshal all of the plaintiff's proof, Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001), but it must include a fair summary of the expert's opinion as of the date of the report on each of the three elements required by chapter 74: the applicable standard of care, the manner in which the physician or health care provider failed to meet the standard of care, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

         The purpose of the expert report requirement is to "deter baseless claims, not to block earnest ones." Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013); see also Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011); Nexion Health at Garland, Inc. v. Townsend, No. 05-15-00153-CV, 2015 WL 3646773, at *3 (Tex. App.-Dallas June 12, 2015, pet. denied) (mem. op.). Thus, the expert report must link its conclusions to the facts, but no "magical words" are required. Bowie Mem. Hosp., 79 S.W.3d at 53. Because the expert report requirement "is a threshold mechanism to dispose of claims lacking merit, " Potts, 392 S.W.3d at 631, it may be informal. See Godat v. Springs, No. 05-08-00791-CV, 2009 WL 2385569, at *3 (Tex. App.- Dallas Aug. 5, 2009, no pet.) (mem. op.). In other words, the information presented need not meet the same requirements as evidence offered at trial or in summary judgment proceedings that dispose of claims lacking evidentiary support, see id., "especially given that section 74.351(s) limits discovery before a medical expert's report is filed, " Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 797 (Tex. App.-Dallas 2009, no pet.); see also Potts, 392 S.W.3d at 631-32 (recognizing expert reports are provided prior to discovery and do not require the type of evidence offered at trial or in summary judgment proceedings, but only need inform defendant of conduct in question). "Further, the report is not required to address every alleged liability theory to make the defendant aware of the conduct at issue." Nexion Health at Garland, 2015 WL 3646773, at *3. "If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous." Id. (quoting Potts, 392 S.W.3d at 631); see also SCC Partners, Inc. v. Ince, 496 S.W.3d 111, 113- 15 (Tex. App.-Fort Worth 2016, pet. dism'd) (concluding entire case could proceed when expert report sufficiently addressed causation for pain and suffering in survival claim, even if it may not have explained how injuries led to decedent's death in wrongful death action).

         To establish a causal relationship between the injury and the defendant's negligent act or omission, the expert report must show the defendant's conduct was a substantial factor in bringing about the harm, and, absent this act or omission, the harm would not have occurred. Mitchell v. Satyu, M.D., No. 05-14-00479-CV, 2015 WL 3765771, at *4 (Tex. App.-Dallas June 17, 2015, no pet.) (mem. op.) Causation is generally established through evidence of a "reasonable probability" that the injury was caused by the negligence of one or more of the defendants, meaning that it is more likely than not that the ultimate harm or condition resulted from such negligence. See Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex. 2010). "An expert may show causation by explaining a chain of events that begins with [the defendant's] negligence and ends in injury to the plaintiff." Mitchell, 2015 WL 3765771, at *4; see also McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.-Texarkana 2012, no pet.). The report must explain "to a reasonable degree, how and why the breach [of the standard of care] caused the injury based on the facts presented." Mitchell, 2015 WL 3765771, at *4 (quoting Jelinek, 328 S.W.3d at 539-40); Quinones v. Pin, 298 S.W.3d 806, 814 (Tex. App.-Dallas 2009, no pet.) (to satisfy chapter 74's requirement of a showing of causation, expert report must include fair summary of expert's opinion regarding causal relationship between breach of standard of care and injury, harm, or damages claimed). "We determine whether a causation opinion is sufficient by considering it in the context of the entire report." Mitchell, 2015 WL 3765771, at *4 (citing Ortiz v. Patterson, 378 S.W.3d 667, 671 (Tex. App.-Dallas 2012, no pet.)); Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496 (Tex. App.-Dallas 2010, no pet.).

         Standard of Review

         We review the trial court's determination of the adequacy of an expert report for an abuse of discretion.[3] Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Cook v. Spears, 275 S.W.3d 577, 579 (Tex. App.-Dallas 2008, no pet.). We defer to the trial court's factual determinations if they are supported by the evidence, but review its legal determinations de novo. Van Ness, 461 S.W.3d at 142. The trial court has no discretion in determining what the law is or applying the law to the facts. Sanchez v. Martin, 378 S.W.3d 581, 587 (Tex. App.- Dallas 2012, no pet.). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Jelinek, 328 S.W.3 at 539.

         The Amended Expert Report

         In her second issue, Jones contends the trial court abused its discretion in sustaining Ashford's objections to the amended expert report and granting Ashford's motion to dismiss. Jones argues the amended expert report satisfied chapter 74 requirements. Ashford, however, contends the amended expert report failed to establish all three elements of an adequate expert report. Applying the above-stated standard of review, we thus consider whether Dr. Griffin's amended expert report sufficiently described the standard of care Ashford owed to Mr. Jones, Ashford's alleged conduct in breach of that standard, and how Ashford's conduct caused Mr. Jones's death. See Bowie Mem. Hosp., 79 S.W.3d at 51-52. We determine the sufficiency of Dr. Griffin's opinion by evaluating the amended report in its entirety. Mitchell, 2015 WL 3765771, at *4.

         In the amended expert report, Dr. Griffin stated his qualifications and the records he reviewed in forming his conclusions, which consisted of Jones's petition, Ashford's answer, Mr. Jones's death certificate, and the records of Ashford Hall, Baylor Medical Center of Irving, and Lions Hospice.[4] Dr. Griffin also stated his opinions were based on his "education, training, and experience as a practicing board certified internist, geriatrician, rheumatologist, and [his] knowledge of the accepted medical and nursing standards of care for the diagnoses, care and treatment of the illnesses, injuries, and conditions involved in this claim." While Dr. Griffin's qualifications are not challenged, they are worth noting in this case. Dr. Griffin holds a "certificate of added qualification in geriatrics, " has many years' experience as a certified director of long- term care and skilled nursing facilities, and served as director and consultant of numerous geriatric and rehabilitation health care facilities. Dr. Griffin has "provided primary medical care to thousands of patients in hospitals, nursing homes and assisted living facilities, " and treated patients "who, like Mr. Jones, were suffering from multiple illnesses including, but not limited to, pressure ulcers, acute kidney failure, deep vein thrombosis, [and] Alzheimer's . . . ." The amended expert report indicated Dr. Griffin:

. . . supervised the execution of [his written orders] by RNs[, ] LVNs and CNA's who were assigned to provide the hands on care to [his] patients. These orders included orders for the prevention and treatment of pressure ulcers and infection. [He is] therefore intimately familiar with the standards of care for the facilities involved in this claim as well as the RNs, LVNs and CNAs who were providing care to Mr. Jones.

         Dr. Griffin's amended expert report opined on all three required elements of an adequate expert report under chapter 74: the standard of care Ashford owed to Mr. Jones, the manner in which Ashford breached that standard, and how the breach caused Mr. Jones's death. Specifically, the amended expert report described Mr. Jones's condition and health upon his admission to Ashford Hall; identified Mr. Jones's specific care and support needs; chronicled the existing medical records; detailed the deficiencies in the care and treatment rendered by Ashford and the resultant decline in Mr. Jones's health; specified the care Ashford should have provided to Mr. Jones; and explained how and why Ashford's acts and omissions caused Mr. Jones's injuries and death. Dr. Griffin "compared [Ashford's] conduct in their care and treatment of Mr. Jones' illnesses, injuries, and conditions as revealed in the records to the accepted standards of care . . . employed by every physician who is asked to evaluate the quality of another professional caregiver's care and treatment of a patient, " and opined that "this method is the generally accepted method for evaluating whether or not a long-term care facility, a hospital, or a physician's care and treatment of a patient met or fell below the accepted standards of care."

         The amended expert report stated the records showed Mr. Jones "had a history of acute kidney failure, deep vein thrombosis, Alzheimer's, depression, hyperlipidemia and hypotension." The amended expert report then observed:

At the time he was admitted to Ashford Hall, Mr. Jones was noted to need assistance performing/completing his activities due to his dementia. . . . He was also assessed to need extensive assistance with bed mobility, transfers, ambulation, dressing, eating, toileting and personal care.

(Emphasis added.) The amended expert report stated:

There is no documentation evidencing that Mr. Jones had any pressure ulcers or skin breakdowns at the time he was admitted to Ashford Hall [in January 2013]. Specifically, an assessment performed states that Mr. Jones had "no skin problems." It is also noted that wound care was not needed.

(Emphasis added.) Dr. Griffin then provided a timeline of events that transpired during Mr. Jones's residence at Ashford Hall, which lasted no longer than two months.

         Records showed that on January 18, 2013, Ashford discontinued skilled care, despite Mr. Jones's need for "extensive assistance" with acts of every-day living, such as "bed mobility, " walking, "toileting and personal care." "Wound care" was not ordered until February 13, 2013. The amended expert report stated, "[t]he lack of documentation from the time skilled care was discontinued" on January 18 until February 13 "indicates that Mr. Jones' care was essentially abandoned and he was not treated appropriately or not treated at all." Although nurse's notes document Mr. Jones was incontinent of bowel from January 20, 2013, to January 25, 2013, the amended expert report indicated:

[T]here is no documentation as to caring for or addressing his incontinence. . . . There is only one note, dated January 22nd at 04:30 a.m. that documents "incontinence care." The lack of continuous incontinence care, as evidenced by lack of facility documentation, implies that Mr. Jones was left to continue to be incontinent for many days, violating the standard of care.

(Emphasis added.) After January 25, there were no nurse's notes on Mr. Jones until February 23, when he returned to Ashford Hall from the hospitalization that began on February 17. Ashford first documented the development of unstageable skin ulcers on both of Mr. Jones's heels and his buttock in a February 14, 2013 wound report. However, there is no ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.