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Kerr v. Pirf Operations, LLC

Court of Appeals of Texas, Fifth District, Dallas

August 27, 2019

VICTORIA KERR, Appellant
v.
PIRF OPERATIONS, LLC DBA ACCEL REHABILITATION HOSPITAL OF PLANO AND JANE DOE, Appellees

          On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-04279-2017

          Before Justices Myers, Molberg, and Carlyle

          MEMORANDUM OPINION

          KEN MOLBERG JUSTICE

         Victoria Kerr appeals the trial court's order dismissing with prejudice her health care liability claims against PIRF Operations, LLC d/b/a Accel Rehabilitation Hospital of Plano (Accel) and Jane Doe. In four issues, Kerr contends the trial court erred by dismissing her claims without granting her a thirty-day extension of time to cure any deficiencies in the medical expert report she served on Appellees pursuant to the Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507, arguing: (1) Karis Schirmer, RN, BSN, was qualified to testify to the applicable standard of care for nurses and nurse assistants; (2) the expert report submitted by Kerr represented a good faith effort to comply with the statutory requirements of the TMLA; (3) the trial court should have granted Kerr a thirty-day extension of time to cure any deficiencies in her expert report; and (4) the trial court's failure to file findings of fact and conclusions of law is presumed harmful.[1]

         For the reasons that follow, we conclude Kerr's chapter 74 expert report represented a good faith effort to comply with the statutory requirements of the TMLA, and the trial court should have granted Kerr a thirty-day extension of time to cure any deficiencies in her expert report. Accordingly, we reverse the trial court's order dismissing Kerr's claims with prejudice, and we remand this cause to the trial court with the instruction to grant Kerr a thirty-day extension of time to afford her the opportunity to cure any deficiencies in her chapter 74 expert report, and for further proceedings consistent with this opinion.

         BACKGROUND

         Factual Background

         The following facts are drawn from the allegations in Kerr's petition. Kerr filed this lawsuit against Appellees after she fell in a shower at Accel, sustaining severe injuries to her lumbar spine, pelvis, knees, toes, and jaw. Kerr sustained these injuries after her admission to and while under the care of Accel.

         Kerr was admitted to Accel on July 7, 2015, for inpatient rehabilitation to regain "mobility and Activities of Daily Living." Upon her admission, Accel assessed Kerr as "a moderate fall risk." Accordingly, Accel employed fall precautions for Kerr's stay, including assistance during bathing. Four days later, on July 11, Kerr was assessed as "an extreme fall risk."[2] Accel assigned a hospital staff person (Jane Doe) to assist Kerr while she showered. Later that day, Jane Doe left Kerr alone while Kerr was showering. While unattended, Kerr fell and sustained a compression fracture of her L1 vertebrae, a torn meniscus in her right knee, gashes on and nerve damage to both of her big toes, and a broken jaw.

         The petition alleges Appellees were negligent and grossly negligent by leaving Kerr unattended in the shower, which resulted in the fall. The petition also alleges Accel was negligent and grossly negligent in failing to adequately "screen, train, and supervise Jane Doe."

         The petition alleges that, as a direct and proximate result of Appellees' negligence and gross negligence, Kerr sustained specified injuries to her neck, back, pelvis, knees, toes, and jaw. The petition seeks damages for reasonable and necessary past medical care and expenses, past and future physical pain and suffering, and past and future mental pain and anguish. Alleging that Appellees' acts and omissions constituted gross negligence, as they were committed knowingly, intentionally, and recklessly, the petition seeks exemplary damages as permitted under section 41.003(a)(3) of the Texas Civil Practice and Remedies Code.

         Procedural History

         Kerr filed her petition on September 5, 2017. Accel filed an answer on September 27, 2017. Because this lawsuit involves a health care liability claim, it is subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507. In accordance with chapter 74, Kerr served on Accel the expert report and curriculum vitae of Karis Schirmer, RN, BSN (Schirmer Report), on February 11, 2018.[3] Kerr did not serve an expert report from a physician. On March 2, 2018, Accel filed "Objections to Plaintiffs Inadequate Chapter 74 Expert Report and Motion to Dismiss" (motion to dismiss). In its motion to dismiss, Accel argued:

• The Schirmer Report failed to identify any injuries sustained by Kerr.
• The Schirmer Report failed to identify the standard of care applicable to a rehabilitation hospital.
• The Schirmer Report failed to discuss the "nursing standard of care" with specificity. By way of example, Appellees argued, "the Schirmer Report does not attempt to explain what it means for Defendant to be 'by patient's side.'"
• The Schirmer Report failed to sufficiently describe how Appellees breached the standard of care.
• The Schirmer Report failed to discuss how any breach in the standard of care proximately caused Kerr's injuries.
• Schirmer was unqualified to opine as to causation because she is a nurse practitioner and not a physician.

         In her March 26, 2018 reply to Accel's motion to dismiss, Kerr argued that she submitted the Schirmer Report in good faith, but, in the event the trial court deemed her expert report deficient, Kerr requested a thirty-day extension of time to cure the deficiency under section 74.351(c). After a hearing on Accel's motion to dismiss, the trial court sustained Accel's objections and granted Accel's motion to dismiss, dismissing the case with prejudice by order dated May 30, 2018.

         THE TEXAS MEDICAL LIABILITY ACT

         Chapter 74 's Expert Report Requirement

         Chapter 74 of the TMLA requires a plaintiff pursuing a health care liability claim to serve an expert report on each physician or health care provider against whom a health care liability claim is asserted no later than 120 days after the date each defendant's answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The purpose of the expert report requirement is "to eliminate frivolous health care liability claims" and "preserve those of potential merit." Samlowski v. ...


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