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Jepson v. Wyrick

Court of Appeals of Texas, Second District, Fort Worth

May 9, 2019

Erin Jepson, N.P., Appellant
v.
Salina S. Wyrick, Appellee

          On Appeal from the 153rd District Court Tarrant County, Texas Trial Court No. 153-292369-17.

          Before Gabriel, Pittman, and Bassel, JJ.

          MEMORANDUM OPINION

          Lee Gabriel, Justice.

         Appellant Erin Jepson, N.P. brings this interlocutory appeal from the trial court's order denying her motion to dismiss the healthcare liability claim Appellee Salina S. Wyrick has asserted against her. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). In a single issue, Jepson contends that the report of Wyrick's expert, a board-certified diagnostic radiologist, failed to establish the expert's qualifications to provide an opinion concerning the standard of care applicable to Jepson, a nurse practitioner. Jepson also argues that the expert's opinion as to causation is impermissibly conclusory. We reverse the trial court's order denying her motion to dismiss and remand this case for further proceedings in accordance with this opinion.

         I. BACKGROUND

         A. Wyrick Undergoes a Nephrectomy

         On May 30, 2017, Wyrick filed healthcare liability claims against several health care providers, including Jepson, who was a nurse practitioner working in Baylor All Saints Medical Center's emergency department at the time relevant to this case. Wyrick alleges that she presented to the emergency department on Saturday, March 14, 2015, complaining of nausea and right-sided abdominal pain. Jepson took Wyrick's medical history, but according to Wyrick, Jepson did not identify herself as a nurse practitioner, so Wyrick assumed Jepson was a physician. Jepson performed a physical examination of Wyrick's abdomen, told Wyrick that her abdominal pain was kidney related, and ordered a CT scan of Wyrick's abdomen.

         According to Wyrick, after performing the CT scan, the radiologist reported that there was a poorly defined area of low attenuation measuring 2.5 x 1.8 x 2.7 cm in the middle pole of Wyrick's right kidney peripherally and that the margination was irregular and not indicative of a simple cyst. Wyrick asserts that the radiologist's impressions included the following:

Peripheral low attenuated right renal lesion. Finding does not represent a simple cyst. This could represent an infarct. Pyelonephritis is a consideration although there is no perinephric inflammation and the remainder of the right kidney has normal enhancement. Neoplasm also a consideration. Additional correlation with MR may be of benefit.

         Wyrick alleges that after the CT scan, the radiologist told Jepson that Wyrick may have a renal mass and would probably need to follow up with a urologist. According to Wyrick, Jepson also noted a physician consultation with a urologist, who had stated that he needed to evaluate Wyrick as soon as possible and that Wyrick should visit his office the first thing Monday morning. According to Wyrick, when Jepson returned to the room where Wyrick was waiting, Jepson told Wyrick that "[i]t look[ed] like [she had] a little bit of kidney cancer"; that the radiologist had consulted with a urologist, and the urologist wanted to see her the first thing Monday morning; and that she would be in good hands because the urologist was a very good doctor and was on the hospital's board. Wyrick also alleges that Jepson said, "Don't worry, you're young and you can fight this," as she walked out of the room. According to Wyrick, another nurse then gave her discharge instructions to undergo a renal biopsy at the urologist's office the following Monday.

         Wyrick, along with her husband, went to the urologist's office as instructed. According to Wyrick, the urologist showed them the scans of her abdomen, which showed a sizable mass. The urologist explained the Bosniak scale to them and said that he would rate the mass in her abdomen as a three on that scale. The urologist further told them that the mass displayed in the images was consistent with malignancy and that it appeared to have made its way to the blood supply. According to Wyrick, the urologist told them that this likely meant the entire kidney would need to be removed.

         Wyrick asserts that she and her husband asked the urologist about a biopsy, since that was the reason she had been referred. The urologist told them that biopsies sometimes resulted in false positives and that removing cells for a biopsy had the potential of introducing cancer into her abdominal cavity. The urologist further said that laparoscopic surgery would enable him to evaluate whether he had clear margins to remove the kidney mass. If not, the urologist stated that Wyrick's kidney could not be saved. The urologist further stated that if the mass had reached the fatty tissue that surrounded the kidney, then the kidney could not be saved. Wyrick alleges that she and her husband then asked the urologist what all that he had told them meant and what the next steps were. The urologist stated that he could monitor her kidney but that "if [she] was [his] sister, [he] would have had this thing out like yesterday."

         Wyrick alleges that her husband asked the urologist about the possibility that Wyrick's kidney could be saved. The urologist responded that he hoped to perform a partial nephrectomy but that if he could not remove the entire mass or if the remaining portion of the kidney would not be functional, then he would remove the entire kidney. The urologist told Wyrick that kidney cancer usually spread to other places in the abdominal cavity, lungs, or brain but that her scans did not show that anything had spread beyond her kidney. Wyrick told the urologist that if he thought the mass was cancerous, then she preferred that he remove the entire kidney. According to Wyrick, the urologist then asked her if she wanted her entire kidney removed, and she replied that she did.

         Wyrick presented for surgery the following week, and her right kidney was removed. Wyrick alleges that during the surgery, the urologist discovered that the mass in her kidney was solid. She further asserts that the urologist told her husband that it was a good decision to remove the entire kidney. According to Wyrick, a subsequent pathological examination of the removed kidney revealed an infarct and an incidental small benign renomedullary interstitial cell tumor with a background normal kidney. In other words, the kidney was noncancerous. Wyrick alleges that her remaining kidney is not functioning as it should, that she has been diagnosed with chronic kidney disease, and that she has to see a nephrologist every three months.

         B. Wyrick's Claims Against Jepson

         Wyrick brought healthcare liability claims against several health care providers, physicians, and at least one health care institution that were allegedly connected with the removal of her kidney, including Baylor All Saints Medical Center, the radiologist who performed her CT scan, Jepson, and the urologist who performed the surgery. This appeal only involves Wyrick's claims against Jepson.

         In her petition, Wyrick broadly pleaded negligence claims against Jepson, alleging that Jepson "failed to provide timely, proper, and/or adequate medical care and treatment to and for Ms. Wyrick's above-described illness(es), injury(ies), and/or condition(s)"; that Jepson "engaged in other wrongful or improper acts or omissions in the course of her care, and treatment of Ms. Wyrick's above-described illness(es), injury(ies), and/or condition(s)"; and that Jepson's negligence "proximately caused the occurrence(s) or injuries and harm to" Wyrick and resulted in injuries, harm, and damages to her.

         Wyrick timely served the chapter 74 expert report of Eric D. Johnson, MD.[1]See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). On November 2, 2017, Jepson filed objections to Dr. Johnson's report and moved to dismiss Wyrick's claims against her. See id. § 74.351(a)-(b). Jepson raised two objections. First, she asserted that Dr. Johnson's report did not satisfy chapter 74's requirements because it did not adequately explain the causal relationship between her alleged negligence and the removal of Wyrick's kidney. See id. § 74.351(r)(6). Second, Jepson asserted that Dr. Johnson was not qualified to opine as to how a nurse practitioner such as Jepson should communicate diagnoses to patients. See id. § 74.351(r)(5).

         C. Dr. Johnson's Report

         Dr. Johnson's report spans nine pages. The first three pages outline his expert credentials. The bulk of the fourth and fifth pages set forth Dr. Johnson's understanding of the factual background of Wyrick's care at Baylor All Saints Medical Center.

         In relevant part, Dr. Johnson's recitation of the facts is largely consistent with the factual allegations set forth in Wyrick's pleadings, which we summarized above. But relevant to this appeal, the pertinent facts recited in the report include the following. After the CT scan, Jepson noted that the radiologist told her that Wyrick "may have a renal mass" and "[would] probably need [a] urology follow up." Jepson consulted with the urologist, who stated that he needed to evaluate Wyrick as soon as possible and told Jepson to have Wyrick go see him first thing Monday morning.

         The report also notes that Jepson told Wyrick, "It looks like you have a little bit of kidney cancer"; that the radiologist had consulted with the urologist on call; that the urologist wanted to see Wyrick "first thing on Monday morning"; and that Wyrick needed to have a renal biopsy. Dr. Johnson's report also notes that Jepson told Wyrick, "Don't worry, you're young and you can fight this," as Jepson walked out of the hospital room. The report states that according to Wyrick, when she left the emergency room March 14, 2015, she believed that she had kidney cancer.

         The next relevant portion of Dr. Johnson's recitation of the facts states that on March 24, 2015, Wyrick returned to Baylor All Saints Medical Center and underwent a radical nephrectomy of her right kidney that was performed by the urologist. Dr. Johnson's outline of the facts did not discuss anything that occurred between the time Wyrick left the emergency room on March 14, 2015, to the time she presented to the hospital to have her kidney removed on March 24, 2015.

         The bottom portion of page five through the middle portion of page eight of the report contains Dr. Johnson's discussion of the standard-of-care, breach, and causation elements required under chapter 74. See id. ยง 74.351(r)(6). The report states that the standard of care applicable to Jepson's treatment of Wyrick was to "communicate and report [the radiologist's] interpretations and diagnostic impressions [of the CT scan] in a proper and accurate manner," which in the circumstances of this case required Jepson "to avoid communicating and reporting a cancer diagnosis until a proper cancer diagnosis [had been] made." Dr. Johnson's report says that in the circumstances of this case, the standard of care not only required Jepson to specifically tell Wyrick that the radiologist's impressions of the CT scan "were that there was a right renal lesion, that the lesion did not represent a simple cyst, that the lesion could have represented an infarct, and that pyelonephritis and a neoplasm (tumor) were also considerations," but also required her to avoid telling Wyrick "that she had kidney cancer or any degree of kidney ...


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