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Nugent v. Highland Pines, G.P., Inc.

Court of Appeals of Texas, Twelfth District, Tyler

April 24, 2019

BEVERLY NUGENT, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF CHESTER L. NUGENT, APPELLANT
v.
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

          APPEAL FROM THE COUNTY COURT AT LAW NO. 2 GREGG COUNTY No. 2017-1644-CCL2, TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Greg Neeley Justice

         Beverly 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.

         Background

         Chester 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 malnutrition.

         Beverly 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.

         After 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.[1]

         Expert Report

         In her 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.

         Standard of Review

         A trial 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.).

         Expert Report Requirements

         The 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 ...


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