FROM
THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-15-002030, THE HONORABLE AMY CLARK MEACHUM, JUDGE
PRESIDING
Before
Chief Justice Rose, Justices Triana and Kelly
MEMORANDUM OPINION
GISELA
D. TRIANA, JUSTICE
Retirement
and Nursing Center - Austin Ltd. (Nursing Home) challenges
the district court's rulings overruling objections to the
adequacy of expert reports in a health-care-liability claim
filed by Israel Joseph, Individually and as Personal
Representative of the Estate of Adriana Lopez Joseph,
Deceased.[1] See Tex. Civ. Prac. & Rem.
Code § 74.351(a), (c), (l) (addressing
expert-reports under Medical Liability Act). On appeal, the
Nursing Home contends that it was entitled to dismissal of
Israel's liability claim and attorney's fees because
the expert reports from an orthopedic surgeon and a
gerontology nurse were deficient and because the nurse was
unqualified to render an opinion as to causation. For the
reasons that follow, we will affirm.
BACKGROUND[2]
In June
2011, Adriana was admitted to the Nursing Home. At the time
of admission, she suffered from multiple medical problems,
including an intracerebral hemorrhage that left her totally
dependent on the nursing home staff for all of her activities
of daily living, medications, and assistance with transfers
and repositioning. Adriana was also at increased risk for
fractures because of her osteoporosis. Given her frail
condition and immobility, it was necessary for Nursing Home
staff to use proper transfer techniques with correct
alignment of her body when transferring her and performing
daily activities for her, such as bathing and dressing.
On or
about July 5, 2013, nurses noted a small bruised area on
Adriana's lower right jaw area with yellowish color
around it. No other assessment was documented, and no
investigation into the cause of her injuries was conducted.
The next day, Nursing Home staff noted that Adriana's
right knee was swollen. Areas of dark discoloration on her
right lower jaw and left upper jaw were also noted. A
hospital x-ray showed that Adriana had a displaced spiral
fracture to her right femur that was inoperable. On or about
July 10, 2013, Adriana was placed in hospice care related to
the pain associated with her fracture. She died on July 23,
2013.
Israel
Joseph, acting individually and on behalf of his mother's
estate, sued the Nursing Home, alleging that it was negligent
in:
a. Failing to properly position Ms. Joseph during a transfer;
b. Failing to immediately recognize and report Ms.
Joseph's injuries;
c. Transferring Ms. Joseph in such a manner as to cause a
fracture to her femur;
d. Failing to assign nursing personnel duties consistent with
their qualifications based on each resident's written
plan of care and the nursing skills needed to provide care to
residents, and failing to provide services which meet
professional standards of quality, in violation of §
19.802, Texas Dept. of Aging and Disability Services
Regulations, and OBRA Code § 483.30;
e. Failing to maintain clinical records on each resident that
are complete and accurately documented, in violation of
§ 19.1910 of the Texas Dept. of Aging and Disability
Services Regulations;
f. Fail[ing] to implement and maintain programs of
orientation, training and continuing in-service education to
develop skills of its staff: as described in § 19.1903
and § 19.1929 of the Texas Dept. of Aging and Disability
Services Regulations;
g. Failing to use proper transfer techniques, considering Ms.
Joseph's needs and risk for fractures;
h. Fail[ing] to investigate the cause of Ms. Joseph's
injuries when it was clear to the Nursing Home staff that she
had been injured;
i. Failing to care for its residents in a manner and in an
environment that promotes maintenance or enhancement of each
resident's quality of life, in violation of 42 CFR §
483.15;
j. Failing to provide goods and services necessary to avoid
physical harm, mental anguish, or mental illness, in
...