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Harvey v. Kindred Healthcare Operating, Inc.

Court of Appeals of Texas, Fourteenth District

May 9, 2019

AIMEE HARVEY INDIVIDUALLY AND AS NEXT FRIEND OF TALISA PHILLIPS, AMANDA HARVEY, HENRY WILSON, III, AS NEXT FRIEND OF AALEISA PHILLIPS (A MINOR), AND GWENDOLYN WILSON, Appellants
v.
KINDRED HEALTHCARE OPERATING, INC., KINDRED HOSPITAL HOUSTON MEDICAL CENTER, AND KINDRED HOSPITALS LIMITED PARTNERSHIP, Appellees

          On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2014-27575

          Panel consists of Justices Christopher, Bourliot, and Spain.

          OPINION

          FRANCES BOURLIOT, JUSTICE

         In this case, we address the adequacy of an expert report under the Texas Medical Liability Act when the only defendants are the hospital and affiliated entities and the expert report does not separately address standard of care, breach of the standard of care, and causation as to each healthcare provider involved in caring for the patient.[1] We conclude that the expert report is adequate-it represents an objective good faith effort to comply with the Act because the expert opined that the same standard of care was applicable to all involved healthcare providers, none of the healthcare providers complied with that standard, and such failure resulted in the patient's injuries. We further conclude the expert's opinions are not conclusory and the expert is qualified to opine on the standards of care applicable to nonphysician healthcare providers.

         Appellants Aimee Harvey, Amanda Harvey, Henry Wilson III, and Gwendolyn Wilson challenge the trial court's dismissal of their medical malpractice claims in favor of appellees Kindred Healthcare Operating, Inc., Kindred Hospital Houston Medical Center (Kindred Hospital), and Kindred Hospitals Limited Partnership (collectively, Kindred).[2] Kindred moved for dismissal on four grounds: (1) appellants' expert is not qualified to opine on the applicable standard of care, breach, or causation; (2) the expert report does not include fair summaries of the standard of care applicable to Kindred, breach of that standard, or causation; (3) the report groups together several unidentified healthcare providers; and (4) the report is conclusory. The trial court granted the motion, dismissed the claims against Kindred, and rendered final judgment. Concluding that the trial court abused its discretion in dismissing the case, we reverse and remand.

         Background

         Talisa Phillips died while she was a patient at Kindred Hospital. She had been admitted due to respiratory failure. At the time of her admission, she was awaiting a lung transplant and had cardiac disease. Five days later, Phillips was experiencing shortness of breath and "chest tightness." Upon assessment, a physician discovered that Phillips's "chest tube was kinked." The chest tube was adjusted, which resulted in symptom relief. No follow-up x-ray was taken that day to assess the placement or effectiveness of the chest tube.

         The next morning, Phillips went into acute respiratory acidosis, a condition caused by decreased ventilation resulting in increased concentration of carbon dioxide in the blood. She was transferred to the intensive care unit, and a note was placed in her file that she would need extracorporeal membrane oxygenation (ECMO) support if she did not improve. ECMO is a technique that provides cardiac and respiratory support oxygen to patients whose heart and lungs are severely diseased or damaged. Because Kindred Hospital does not provide ECMO services, transfer orders were written that morning for Phillips to be transferred to another hospital. Phillips experienced cardiac arrest while she was in the elevator en route to be transferred. She was rushed back to the ICU while CPR was being performed on her. She was resuscitated but could not be transferred to the other hospital due to her critical condition. She suffered from another cardiac arrest that afternoon and subsequently died.

         Phillips's heirs filed a medical malpractice suit, bringing negligence, gross negligence, survival, and wrongful death claims against Kindred. Appellants served two expert reports on Kindred. Kindred objected to the reports and moved to dismiss appellants' claims.[3] The trial court sustained Kindred's objections but permitted appellants to serve amended expert reports. Appellants served one amended expert report, prepared by Natascha Dumas, M.D. That expert report is at issue in this appeal.

         Discussion

         Kindred challenged Dumas's qualifications to opine on the applicable standard of care, breach, and causation, and the reliability of Dumas's opinions. Specifically as to the latter, Kindred maintains that the expert report does not include a fair summary of the standard of care applicable to Kindred, groups together several unidentified healthcare providers, and is conclusory.[4] We discuss each argument in turn.

         The Act entitles a defendant to dismissal of a healthcare liability claim if it is not timely served with an expert report showing that the claim has merit. Tex. Civ. Prac. & Rem. Code § 74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). We review a trial court's ruling on a healthcare provider's motion to dismiss a healthcare liability claim for an abuse of discretion. Houston Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 129 (Tex. App.-Houston [14th Dist.] 2015, pet. denied). In the absence of findings of fact or conclusions of law, we uphold a trial court's ruling on a motion to dismiss on any theory supported by the record and infer any necessary findings of fact to support the ruling. Id. (citing Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011)). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (per curiam); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

         The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); Scoresby, 346 S.W.3d at 549. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 (Tex. 2001); Bailey, 402 S.W.3d at 361.

         An expert must establish that she is qualified to provide an acceptable report. Tex. Civ. Prac. & Rem. Code § 74.351(r)(5)(B). Qualifications must appear in the expert report and cannot be inferred. Bailey, 402 S.W.3d at 361. Accordingly, analysis of expert qualifications is limited to the four corners of the expert's report and the expert's curriculum vitae. Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Additionally, an expert report must provide a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard (breach); and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Palacios, 46 S.W.3d at 879. In compliance with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Bailey, 402 S.W.3d at 362 (citing Palacios, 46 S.W.3d at 879). A report may not merely contain the expert's conclusions about these elements. Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879. The expert must explain the basis for her statements and link her conclusions to the facts. Jelinek, 328 S.W.3d at 539. However, a plaintiff need not present all the evidence necessary to litigate the merits of her case. Palacios, 46 S.W.3d at 879; Bailey, 402 S.W.3d at 362. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Bailey, 402 S.W.3d at 362.

         I. Dumas Qualified to Opine on Standard of Care for Kindred's Healthcare Providers

         Kindred contends that Dumas is not qualified to opine on whether Kindred's nurses departed from accepted standards of care as to patients with chronic respiratory failure or lung transplantation patients. Kindred asserts that under the Act, Dumas could qualify as an expert

'only if [she was] practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider . . . at the time the testimony is given or was practicing that type of health care at the time the claim arose.'

See Tex. Civ. Prac. & Rem. Code § 74.402(b)(1) (emphasis added by Kindred).

         But in its placement of ellipses, Kindred omitted key language from subsection (b)(1) making that subsection applicable only "if the defendant health care provider is an individual," as follows:

[A] person may qualify as an expert . . . only if the person . . . is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose.

See id. (emphasis added).[5] Kindred is not an individual.

         We agree that Dumas's qualifications to opine as to acceptable standards of care applicable to nonphysician healthcare providers are governed by section 74.402.[6] See Tex. Civ. Prac. & Rem. Code § 74.351(r)(5)(B) (stating that expert for establishing standard of care applicable to nonphysician healthcare provider must meet qualifications of section 74.402). But subsection (b)(1), cited by Kindred, does not apply here since Kindred is not an individual. Gracy Woods I Nursing Home v. Mahan, 520 S.W.3d 171, 183 n.56 (Tex. App.-Austin 2017, no pet.); Doctors Hosp. v. Hernandez, No. 01-10-00270-CV, 2010 WL 4121678, at *5 (Tex. App.-Houston [1st Dist.] Oct. 21, 2010, no pet.) (mem. op.). Moreover, even if that subsection applied, we note that the issues in this case relate to the fields of respiratory and cardiac arrest and Dumas states in her report that she is certified in cardiac life support and is trained to handle cardiovascular and respiratory emergencies, including post-cardiac arrest care.

         Two other statutory requirements under section 74.402 do apply here. First, Dumas must have "knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim." Tex. Civ. Prac. & Rem. Code § 74.402(b)(2). Second, Dumas must be "qualified on the basis of training or experience." Id. § 74.402(b)(3). To evaluate the expert's training or experience, we are required to examine whether the expert is "certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim . . . [and] is actively practicing health care in rendering health care services relevant to the claim." See id. § 74.402(c) (stating court "shall consider" these two factors).

         Kindred argues that Dumas is not qualified to testify regarding "respiratory or pulmonary issues." Appellants are required to establish only that Dumas has "knowledge, skill, experience, training, or education" regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. See Bailey, 402 S.W.3d at 363 (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)). Appellants contend that the case is about patient mismanagement and misdiagnosis because Kindred's employees purportedly failed to follow doctor's orders, provide respiratory monitoring, and provide "adequate transfer services in an acute respiratory situation."

         As relevant to the issues in this case, Dumas is a board-certified family practice doctor, who is also certified in cardiac life support and trauma life support. She is self-employed and practices in "various emergency rooms, urgent care centers and family practice offices in Houston, Texas." In her curriculum vitae, Dumas listed nearly twenty years' experience working in emergency rooms. Before becoming self-employed, she had been the "Cluster Medical Director" and then the "Houston District Medical Director" for the University of Texas Medical Branch for seven years. In these roles, she supervised primary ...


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