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MCH Professional Care v. Zubia

Court of Appeals of Texas, Eleventh District

June 6, 2019


          On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B-16-12-1170-CV

          Panel consists of: Bailey, C.J., Willson, J., and Wright, S.C.J. [3]



         MCH Professional Care and Kristopher Kindle, CRNA, bring this interlocutory appeal from the trial court's denial of a motion to dismiss the health care liability claims brought by Appellees: Yulissa Zubia, individually and as representative of the Estate of Elpidia Rios De Zubia; Rene Zubia; and Rene Zubia, Jr. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (West 2017). Because the expert report filed by Appellees in support of their claims fails to state the specific conduct that breached the applicable standard of care and is conclusory regarding causation, we reverse the trial court's order denying Appellants' motion to dismiss, and we remand this cause for further proceedings.

         Background Facts

         Appellees alleged that Elpidia Rios de Zubia (Zubia) died while under general anesthesia for the "routine placement of a port-a-cath." Appellees brought health care liability claims against several health care providers and physicians connected with Zubia's procedure, including Kindle, a certified registered nurse anesthetist, [1]and his employer, MCH Professional Care (MCH). In their original petition, Appellees alleged that Kindle was responsible for "anesthetizing" Zubia during the procedure and that his failure to properly use and supervise the anesthesia equipment and to properly monitor Zubia caused Zubia's death. Appellees also asserted that MCH was vicariously liable for Kindle's alleged negligence.

         Appellees attached the expert report of Dr. Michael Hurt, an anesthesiologist, to their original petition. See Civ. Prac. & Rem. § 74.351(a). Appellants objected to the report as insufficient and filed a motion to dismiss Appellees' claims against them. See id. § 74.351(a)-(c), (l). Appellants specifically argued that the report failed to specify how any conduct by Appellants deviated from the identified standards of care and did not adequately explain the causal relationship between Appellants' alleged negligence and Zubia's death. The trial court overruled Appellants' objections to Dr. Hurt's report and denied the motion to dismiss.


         In a single issue on appeal, Appellants contend that the trial court abused its discretion when it overruled the objections to the sufficiency of Dr. Hurt's report and denied the motion to dismiss. See id. § 74.351(l), (r)(6).

         The Texas Medical Liability Act (the TMLA) requires health care liability claimants to serve an expert report upon each defendant within 120 days after the defendant files an answer. Id. § 74.351(a); Scott v. Weems, No. 17-0563, 2019 WL 1867916, at *2 (Tex. Apr. 26, 2019). The purpose of the expert report requirement is "to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims." Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam).

         An expert report must provide a fair summary of the expert's opinions regarding the applicable standard of care, the manner in which the care rendered failed to meet that standard, and the causal relationship between the failure to meet the standard of care and the injury suffered. Civ. Prac. & Rem. § 74.351(r)(6); Abshire, 563 S.W.3d at 223; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (citing former version TMLA). A trial court may grant a motion to dismiss under the TMLA only if it appears that the expert report is not an objective good faith effort to comply with the statutory requirements. Civ. Prac. & Rem. § 74.351(l). An expert report demonstrates a "good faith effort" when it informs the defendant of the specific conduct the plaintiff has called into question and provides a basis for the trial court to conclude that the claims have merit. Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018).

         In order for a report to be sufficient under the TMLA, the expert is required to explain the basis of his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing former version TMLA); see also Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). An expert report "need not marshal all the plaintiff's proof," but '[a] report that merely states the expert's conclusions about the standard of care, breach, and causation' is insufficient. Palacios, 46 S.W.3d at 878-79; accord Abshire, 563 S.W.3d at 223. In determining whether an expert report contains the required information, a court must review the entire report, not just specific portions or sections. Baty, 543 S.W.3d at 694.

         We review a trial court's decision to deny a motion to dismiss based on the sufficiency of an expert report for an abuse of discretion. Abshire, 563 S.W.3d at 223. In analyzing a report under this standard, we consider only the information contained within the four corners of the report. Id. We defer to the trial court's factual determinations if supported by the evidence but review its legal determinations de novo. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Id.

         Appellants first assert that the expert report was insufficient because Dr. Hurt failed to identify specific conduct by Appellants that breached the applicable standard of care. An expert report must inform the defendant of the specific conduct called into question. Palacios, 46 S.W.3d at 880. Although the plaintiff is required to provide only a "fair summary" of the expert's opinion, that summary "must set out what care was expected, but not given." Id. (quoting Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865 (Tex. App.-Houston [1st Dist.] 1999) (Taft, J., dissenting), rev'd, 46 S.W.3d 873 (Tex. 2001)). An ...

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