TOMBALL TEXAS HOSPITAL COMPANY, LLC D/B/A TOMBALL REGIONAL MEDICAL CENTER, Appellant
v.
LA NETA BOBINGER, Appellee
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 ...