Court of Appeals of Texas, Eighth District, El Paso
EL PASO HEALTHCARE SYSTEM, LTD., D/B/A LAS PALMAS MEDICAL CENTER, Appellant,
SANTIAGO MONSIVAIS, DECEASED BY AND THROUGH HIS NEXT FRIENDS, CINTHIA MONSIVAIS AND SAMUEL MONSIVAIS AND CINTHIA MONSIVAIS AND SAMUEL MONSIVAIS, INDIVIDUALLY, Appellees.
from the County Court at Law Number Three of El Paso County,
Texas (TC# 2017DCV1526)
Rodriguez, J., McClure, C.J. (Senior Judge), and Larsen, J.
CRAWFORD MCCLURE, CHIEF JUSTICE (SENIOR JUDGE)
streptococcus bacteria, while generally harmless to adults,
can seriously threaten newborns, the elderly, or otherwise
compromised individuals. In this case, a GBS infection
apparently took the life of Santiago Monsivais when he was
just sixteen-days old. The resulting healthcare liability
lawsuit by his parents faulted his pediatrician, an emergency
room physician, and El Paso Healthcare System, Ltd. which
operates Las Palmas Medical Center (Las Palmas). The issue
before us in this interlocutory appeal is whether the
statutorily required preliminary-expert report filed by
Santiago's parents relies on a duty for hospital staff
that the law would not recognize. Specifically, Las Palmas
contends that the expert report attempts to hold the nurses
and staff of the hospital to the same duties that under Texas
professional licensing standards, can only be discharged by a
medical doctor. While we mostly agree with Las Palmas, one
theory of liability survives, and we therefore conclude the
trial court did not abuse its discretion in denying Las
Palmas's motion to dismiss.
the following chronology from the petition and the expert
report at issue, noting that none of these factual claims
have yet been proven.
Monsivais gave birth to Santiago Monsivais on February 4,
2015. Santiago was described as a healthy seven-pound baby
boy, whose hospital course was unremarkable. He and his
mother were discharged the next day.
10 to 19, 2015
was followed by pediatrician Dr. Nicolas Rich, who saw the
child three times. Dr. Rich first saw Santiago on February 10
for a routine bilirubin and weight check. Other than the
mention of mild jaundice, all findings were within normal
limits. Santiago was seen again on February 12, 2015, and
reported to be sleeping normally, had normal bowel and
bladder function, and appeared neither ill nor in any
distress. All physical findings were noted within normal
limits. Cinthia was instructed to seek further follow-up for
Santiago on an as-needed basis.
that direction, on February 19 Cinthia took Santiago back to
Dr. Rich's office because he was having less frequent
bowel movements and trouble breathing. She saw the doctor at
2:39 p.m. His records report that the infant was
"afebrile, alert, and vigorous with mild jaundice to
appearance." Dr. Rich diagnosed Santiago with mild
jaundice, sending mother and child home with instructions to
return in one week. From our limited record, Dr. Rich ordered
no tests and prescribed no treatments.
a.m. Cinthia took Santiago to the emergency room at Las
Palmas. The infant was triaged as a level 3
("urgent") patient. Cinthia was interviewed at 3:01
a.m. by Michael Bustos, an Emergency Medical
Technician-Paramedic. He recorded that Santiago was
experiencing constipation with nausea and had two episodes of
vomiting in the past five hours. He noted the chief complaint
as abdominal pain. At 3:14 a.m. he noted the infant had pain,
nausea, constipation that was constant for four to six hours,
and had decreased appetite. The child also had had only one
wet diaper in the past eight hours. Bustos's physical
exam revealed "[b]owel sounds were not present and
normal in all four quadrants and at the umbilicus."
Santiago did not have a fever on arrival at Las Palmas. At
3:28 a.m. Bustos and Renato Jimenez, a registered nurse,
noted that Santiago was lying quietly "with no
C. Payne, MD, the attending emergency department physician,
electronically signed Las Palmas's "Emergency
Provider Report." That report notes similar findings to
those of Paramedic Bustos, except Dr. Payne adds that
Santiago was fussy and "crying more." The physical
exam portion of Dr. Payne's report states Santiago was
well appearing with no irritability. Dr. Payne diagnosed
Santiago with infantile colic (uncontrolled crying in a
newborn) and discharged him from the hospital. Discharge
vitals showed that Santiago's heart rate had increased
from 127 to 144 beats per minute. The mother was counseled on
colic in newborns. According to our record, no tests were
run, or treatments administered at Las Palmas. Santiago was
discharged at 3:49 a.m., meaning the entire encounter at Las
Palmas lasted 55 minutes.
returned home, but Santiago then developed a fever. She then
took Santiago to Providence Memorial Hospital at 6:56 a.m.
that same morning. On admission, he was reported to have a
temperature of 104.3 degrees, was in moderate respiratory
distress, and tachycardic. He experienced respiratory arrest
at 8:36 a.m. Efforts to treat him were unsuccessful, and his
condition deteriorated until he expired at 10:51 p.m. that
same day. The cause of death was listed as cardiogenic shock
from severe sepsis secondary to Streptococcus
agalactiae, otherwise known as Group B Strep or GBS.
and Samuel Monsivais, individually and on behalf of Santiago,
filed a wrongful death suit against Dr. Nicolas Rich, Dr.
Michael C. Payne, and Las Palmas. They originally contended
that Las Palmas was vicariously responsible for the conduct
of Dr. Payne under a variety of theories, including direct
employment, agency, apparent agency, or estoppel. In a first
amended petition, however, the Monsivaises dropped those
allegations, and only asserted direct liability claims
against Las Palmas. Specifically, they alleged that Las
Palmas personnel "wholly failed to diagnose
Santiago's condition, failed to observe him for any
meaningful period of time, failed to order any diagnostic
studies, failed to appreciate the severity of Santiago's
condition at a time when he was septic, and merely discharged
him to home."
required for health care liability claims, the Monsivaises
filed a preliminary expert report. See Tex.Civ.Prac.
& Rem. Code Ann. § 74.351. The report is authored by
Dallas Johnson, MD, who is a board-certified Ob-Gyn
physician. Las Palmas, Dr. Rich, and Dr. Payne challenged the
report, contending in part that Dr. Johnson, an Ob-Gyn
physician, never established his qualifications to opine on
the standard of care for a pediatrician, an emergency
department doctor, or the hospital staff. At a hearing on Dr.
Rich and Las Palmas's objections, the trial court
sustained the objections, but reconvened the hearing after
granting the Monsivaises a thirty-day extension to file a
revised report addressing the concerns raised at the hearing.
the Monsivaises filed a new report, the physician defendants
either withdrew or failed to urge any objections. Las Palmas,
however, re-urged and refined its objections. It contended in
part that Dr. Johnson's preliminary report imposes a
higher duty on the hospital staff than is required by
Las Palmas urged that hospital staff are not licensed in
Texas to order tests, diagnose medical conditions, admit
patients, or prescribe medications, yet Dr. Johnson's
report criticizes Las Palmas personnel for each of those
failures. Following a second hearing, however, the trial
court overruled Las Palmas's objection in part and
declined to dismiss the case. This appeal follows.
Johnson's report begins his criticism of Las Palmas by
stating all of its personnel owed a standard of care "to
thoroughly, accurately, and completely examine, assess,
observe, and treat Santiago." He then elaborated on
specific breaches, which we detail below. In this appeal, Las
Palmas brings a single issue that argues Dr. Johnson's
supplemental report effectively faults Las Palmas and its
non-physician staff for breaching a standard of care
applicable only to physicians, such as Dr. Payne, the
emergency room physician, and Dr. Rich, Santiago's
pediatrician. And Las Palmas urges it cannot be liable for
breaching duties that are beyond the scope of its health care
begin with the familiar standards governing expert medical
reports in health care liability claims. The statute requires
that within 120 days of when each defendant health care
provider files an answer that an "expert report" as
to that provider must be served by the plaintiff.
Tex.Civ.Prac.&Rem. Code Ann. § 74.351(a). An
"expert report" is statutorily defined as one that
"provides a fair summary of the expert's
opinions" regarding (1) the standard of care, (2) how
the health care provider failed to meet that standard, and
(3) the causal relationship between that failure and the
injury, harm, or damages claimed. Id. at §
74.351(r)(6). An expert report that does not represent a good
faith effort to comply with the statute is inadequate, and a
trial court must grant a motion challenging an inadequate
report. Id. at § 74.351(l). Or, as
here, the trial court may grant one thirty-day extension to
allow the plaintiff to file a curative report if elements of
the original report are found deficient. Id. at
phrase "fair summary of the expert's opinions"
means at least that the expert must state more than a mere
conclusion. American Transitional Care Centers of Texas,
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).
Instead, the expert must explain the basis of the opinion so
as to link the conclusion to the facts of the case. Bowie
Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
While claimants need not marshal all their evidence to
support the opinion, they must meet the two objectives of the
statute: to inform the defendant of the specific conduct
claimed to be negligent; and to satisfy the trial court that
the claims have merit. Palacios, 46 S.W.3d at 877.
We look no further than the report itself, because all the
information relevant to the inquiry must be contained within
the four corners of the document. Bowie Mem'l
Hosp., 79 S.W.3d at 52. Nor should a court have to fill
in missing gaps in a report by drawing inferences or
resorting to guess work. See Bowie Mem'l Hosp.,
79 S.W.3d at 52; THN Physicians Ass'n v.
Tiscareno, 495 S.W.3d 914, 922 (Tex.App.--El Paso 2016,
no pet.). The report must distinctly address each health care
defendant's breach of the standard of care and how that
breach caused injury. Clapp v. Perez, 394 S.W.3d
254, 259 (Tex.App.--El Paso 2012, no pet.). However, a
plaintiff does not need file an expert report with respect to
each liability theory alleged against the defendant. See
Tenet Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 171
(Tex.App.--El Paso 2015, no pet.). Instead, an expert report
that adequately addresses at least one pleaded theory of
liability satisfies the statutory requirements. Certified
EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013).