Tomball Texas Hospital Company, LLC v. Bobinger

          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2017-31139

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          Gordon Goodman Justice

         In this interlocutory appeal, ^[1] Tomball Texas Hospital Company, LLC, doing business as Tomball Regional Medical Center (the "Hospital"), appeals the trial court's denial of its motion to dismiss the health-care liability claim^[2] brought against it by La Neta Bobinger. The Hospital contends that the trial court erred in denying its motion to dismiss because Bobinger failed to serve an adequate expert report.^[3]

         We affirm.

         Background^[4]

         On May 11, 2015, Bobinger underwent a total arthroplasty of her left hip (hip replacement) at the Hospital. Her surgeon, Michael Blackwell, M.D., and radiologist, Voon Ping Liaw, M.D., ^[5] reviewed post-operative x-rays and concluded that the hip showed "satisfactory alignment without fracture or loosening." During her two-day hospital stay following surgery, Bobinger received care from the Hospital's nurses and assistance from its physical therapists.

         The supplemental report prepared by Bobinger's expert, Cecil Rene Arredondo, M.D., details "the involvement of [the Hospital's] physical therapists and nurses in the post-operative care provided to [Bobinger] beginning May 11, 2015 and continuing up to the time of her discharge on May 13, 2015." According to Bobinger's medical records, he reports, Bobinger was able to walk, but "exhibited a very unsteady gait"; she "could only tolerate little weight bearing"; she had "a lot of swelling in the left hip and thigh area"; and her "reported level of pain [was] out of proportion to the normal post-op physical therapy progression," despite the medications being administered. Dr. Arredondo's review of the records shows that

[t]he therapist noted the PT impairment and limitations included gait, endurance, range of motion, and strength deficits, in addition to pain limiting her function. . . .

The therapist also noted the patient saying, "I don't know why it is hurting so much," and "I don't know why the medicine is not helping." . . . .

         The physical therapist's notes for the physical therapy session that took place the morning of Bobinger's discharge and her final assessment of Bobinger's condition, Dr. Arredondo noted, indicate that

the patient had a pain rating of 8 at rest . . . [and] she had not met her short term goal of being able to go up and down one flight of stairs (she could only do 3 steps). . . .

[T]he patient's pain was less than the day before but . . . the patient had not attempted further ambulation . . . . The patient was not able to increase her repetitions due to pain and ha[d] a lot of pain and swelling in her left hip thigh area.

         On May 19, 2015, Bobinger was readmitted to the Hospital with a fracture of the proximal femur, and Blackwell performed a revision surgery and internal fixation of the fracture. Bobinger returned to the Hospital again on June 9, 2015, this time with a prosthetic-joint-and-hardware infection. She was then transferred to St. Joseph Medical Center, ^[6] where she was diagnosed with a failed arthroplasty and a greater trochanteric femoral fracture. On June 14, 2015, a surgeon at St. Joseph performed a revision surgery on Bobinger's hip, reduced both fractures, and drained and debrided her hip wound.

         Bobinger brought negligence claims against the Hospital, Dr. Blackwell, Dr. Liaw, and Houston Northwest Radiology Association. This interlocutory appeal concerns Bobinger's vicarious liability claim against the Hospital based on alleged omissions by its physical therapists and nurses.

         As to the Hospital, Bobinger alleges that "through its agents and/or employees," while in the course of providing her with medical care and treatment, "fail[ed] to properly administer drugs to prevent infection"; "fail[ed] to properly evaluate [her] before discharge"; "fail[ed] to timely diagnose and monitor infection and misplacement of the prosthesis in [her] hip and leg"; improperly discharged her; and discharged her while she was in pain and had a "misaligned fractured hip and infection." She asserts that, as a proximate result of these negligent acts and omissions, she has suffered, and, in all reasonable medical probability, will continue to suffer, physical pain, mental anguish, physical impairment, and disfigurement. In addition, Bobinger alleges, she has incurred, and will continue to incur, medical expenses and loss of earnings.

         Bobinger filed and served on the Hospital Dr. Arredondo's initial medical expert report. Dr. Arredondo, a board-certified orthopedic surgeon, stated:

The management of [Bobinger] by Drs. Blackwell and Liaw as well as the therapy by Tomball's employees was below the standard of care and more likely than not the basis of the proximate cause of [Bobinger's] complicated post-operative course. The complications suffered would have been averted by a more diligent and timely diagnosis and management of the femoral fracture which was likely caused by the hip surgery. Had Mrs. Bobinger been properly diagnosed and treated she would not, within reasonable medical probability, suffered the orthopedic complications and the infection and would have recovered from the initial surgery without further problems. The complications could have been prevented.

         The Hospital objected to Dr. Arredondo's report on various grounds, including its "fail[ure] to differentiate between physicians, nursing, and therapy care." In detailing this objection, the Hospital complained that Dr. Arredondo's report makes "blanket criticisms against physicians and hospital nursing staff, without specifically and separately identifying the standard of care applicable to each individual, the breaches of the standard of care by each individual, and how those breaches proximately caused [Bobinger's] alleged injuries." The trial court sustained the Hospital's objections and granted Bobinger an extension to file and serve an amended report.^[7]

         Dr. Arredondo's supplemental report states that the standard of care applicable to a physical therapist providing inpatient therapy to a patient after hip-replacement surgery "is to report to the ordering orthopedist (Dr. Blackwell) prior to discharge, that the patient [is] experiencing significant post-operative pain with ambulation and stair climbing ([Bobinger] lived in a 2-story home)" and "significant swelling in the left hip area."

         The supplemental report notes that the medical records document that the floor nurse "was also aware of the patient's significant pain with physical therapy even after administration of [pain medication]." The supplement recites that the standard of care applicable to "orthopedic floor nurses" is to inform the orthopedic surgeon of the patient's problems," such as a lack of progress in physical therapy and "significant out of proportion pain, if they are made aware of it, as they were in this case." The supplemental report declares that the standards of care "for both the physical therapist and orthopedic floor nurses in this case further require[] that each advocate to the orthopedic surgeon to re-evaluate the left hip prior to discharge." These duties are necessary, the report explains, because "[o]rthopedic surgeons rely on nurses and physical therapists to inform them of post-operative difficulties their patients are having." Dr. Arredondo opined that the physical therapist and the floor nurse breached their respective standards of care by failing to inform Dr. Blackwell, before Bobinger's discharge, of the persistent pain in Bobinger's left hip and her inability to progress in physical therapy.

With respect to causation, Dr. Arredondo's supplemental report states:

[I]t is reasonable to accept that had Dr. Blackwell been informed on May 12 and 13 that his patient was experiencing considerable pain with standard inpatient physical therapy for postop hip replacement patients, could not meet her short term goal of stair climbing, and had significant swelling in the left hip, he would have likely ordered another set of x-rays (AP and lateral) of the left hip prior to the patient's discharge on May 13, 2015. Presumably, this x-ray series would have revealed the same femoral fracture that was shown on the first post-op x-ray from 2 days before[, ] which presumably would have caused Dr. Blackwell to cancel the discharge and expeditiously take the patient back to surgery to address the fracture, as he did after the patient was readmitted on May 19, with surgery on May 20, 2015.

The failure of the [Hospital's] orthopedic floor nurses and physical therapists to inform Dr. Blackwell of the unexpected results from physical therapy due to high levels of pain, contributed to the inappropriate discharge of this patient and delay in receiving the additional surgical intervention she needed to address the fracture until she returned to the hospital on May 19, 2015. As this patient was scheduled to continue with physical therapy at home it is reasonable to expect that continued attempts at ambulation, stair stepping, toilet transfers, and heel/toe strikes would have caused [Bobinger] significant pain in the left hip. In fact, Dr. Blackwell['s] orthopedic consult from May 20, 2015 indicates he was aware that after her discharge [Bobinger] had called his clinic complaining of increasing pain and that he had referred [her] to the emergency room on two separate occasions.

         The Hospital moved to dismiss Bobinger's claim against it on the ground that the expert reports failed to adequately address the applicable standards of care, breach, and causation. The trial court denied the Hospital's motion.

         Discussion

         The Hospital contends that the trial court erred in denying its motion to dismiss Bobinger's vicarious liability claim based on the alleged negligence of its physical therapists and nursing staff because the expert reports do not adequately address the applicable standards of care, breach, and causation.

         A. Standard of Review

         We review a trial court's ruling on a motion to dismiss a health-care liability claim for an abuse of discretion. See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner ...