Court of Appeals of Texas, Twelfth District, Tyler
BEVERLY NUGENT, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF CHESTER L. NUGENT, APPELLANT
HIGHLAND PINES, G.P., INC., HIGHLAND PINES NURSING HOME, LTD., HIGHLAND PINES, SNF, LTD, AND HIGHLAND PINES NURSING AND REHABILITATION A/K/A HIGHLAND PINES CONVALESCENT CENTER, APPELLEES
FROM THE COUNTY COURT AT LAW NO. 2 GREGG COUNTY No.
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Nugent, Individually and as Representative of the Estate of
Chester L. Nugent appeals the trial court's order
granting a motion to dismiss filed by Highland Pines Nursing
Home, Ltd. and Highland Pines, SNF, Ltd. (collectively
"Highland Pines"). We reverse and remand.
L. Nugent suffered a fractured hip on August 24, 2015. He was
admitted to Good Shepherd Medical Center on August 25 and
underwent surgery. On August 28, Chester was transferred to
Highland Pines. Shortly before his discharge from Good
Shepherd, a bed sore was detected on his sacrum. The bed sore
was documented upon Chester's admission to Highland
Pines. It was noted that Chester had a "decubitus ulcer
unstable" and that it was "dark red/purple, non
blanchable redness." While at Highland Pines,
Chester's bed sore worsened. He was transferred to
Longview Regional Medical Center on September 19. His
infection had become septic, and he was in septic shock.
While at Longview Regional, Chester was diagnosed with
necrotizing fasciitis. He was later transferred to Select
Specialty Hospital and then to another nursing home. Chester
died on October 27 from sepsis, sacral decubitus, and
brought healthcare liability claims against several of
Chester's medical providers, including Highland Pines.
She alleges that Highland Pines failed to adequately care for
Chester's bed sore, which ultimately led to his death. In
an attempt to comply with Section 74.351 of the Texas Civil
Practice and Remedies Code, Beverly served Highland Pines
with an expert report and curriculum vitae of Dr. Jeffrey
Stone. Highland Pines filed objections to Dr. Stone's
report, including an objection that Dr. Stone was unqualified
as an expert, and a motion to dismiss Beverly's claim.
The trial court allowed Dr. Stone to supplement his report in
accordance with Section 74.351(c) to cure deficiencies
regarding his qualifications.
Dr. Stone timely supplemented his report, Highland Pines
renewed its objections and again moved for dismissal.
Following a hearing, the trial court sustained the objections
and granted the motion. Specifically, the trial court found
that Dr. Stone's expert report does not demonstrate that
he is actively treating patients in facilities
"substantially similar" to Highland Pines. As a
result, the trial court found that Dr. Stone is not actively
rendering health care services relevant to the claims
alleged. Beverly filed a motion for new trial and motion for
reconsideration, both of which were denied. This
interlocutory appeal followed.
sole issue, Beverly contends the trial court abused its
discretion when it granted Highland Pines's motion to
dismiss. Specifically, she argues the trial court erred in
finding that Dr. Stone is not "actively practicing
health care in rendering health care services relevant
to" the claims at issue.
court's ruling on qualifications of a medical expert and
the sufficiency of an expert's report under Chapter 74 is
reviewed 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, 875 (Tex. 2001). A trial court
abuses its discretion if it acts without reference to guiding
rules or principles. Van Ness, 461 S.W.3d at 142.
However, in exercising its discretion, it is incumbent upon
the trial court to review the report, sort out its content,
resolve any inconsistencies, and decide whether the report
demonstrated a good faith effort to show that the
plaintiff's claims have merit. See id. at 144.
When reviewing factual matters committed to the trial
court's discretion, an appellate court may not substitute
its judgment for that of the trial court. Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston
[1st Dist.] 2006, no pet.).
Texas Medical Liability Act requires a claimant to serve an
expert report early in the proceedings on each party against
whom a health care liability claim is asserted. Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(a) (West 2017). The
Texas Supreme Court has explained that "eliciting an
expert's opinions early in the litigation [is] an obvious
place to start in attempting to reduce frivolous
lawsuits." Palacios, 46 S.W.3d at 877. The
purpose of evaluating expert reports is to deter frivolous
claims, not to dispose of claims regardless of their merits.
See Certified EMS, Inc. v. Potts, 392 S.W.3d 625,
631 (Tex. 2013). A valid expert report must fairly summarize
the applicable standard of care; explain how a physician or
health care provider failed to ...