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
KINDRED HEALTHCARE OPERATING, INC., KINDRED HOSPITAL HOUSTON MEDICAL CENTER, AND KINDRED HOSPITALS LIMITED PARTNERSHIP, Appellees
Appeal from the 190th District Court Harris County, Texas
Trial Court Cause No. 2014-27575
consists of Justices Christopher, Bourliot, and Spain.
FRANCES BOURLIOT, JUSTICE
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. 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
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). 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.
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.
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.
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. 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.
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. We discuss each argument in turn.
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
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
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.
Dumas Qualified to Opine on Standard of Care for
Kindred's Healthcare Providers
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
See Tex. Civ. Prac. & Rem. Code §
74.402(b)(1) (emphasis added by Kindred).
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). Kindred is not an
agree that Dumas's qualifications to opine as to
acceptable standards of care applicable to nonphysician
healthcare providers are governed by section
74.402. 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.
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).
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."
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