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El Paso Healthcare System, Ltd. v. Monsivais

Court of Appeals of Texas, Eighth District, El Paso

October 31, 2019


          Appeal from the County Court at Law Number Three of El Paso County, Texas (TC# 2017DCV1526)

          Before Rodriguez, J., McClure, C.J. (Senior Judge), and Larsen, J. (Senior Judge)



         Group B streptococcus bacteria, while generally harmless to adults, can seriously threaten newborns, the elderly, or otherwise compromised individuals.[1] 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.


         We take the following chronology from the petition and the expert report at issue, noting that none of these factual claims have yet been proven.

         February 4, 2015

         Cinthia 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.

         February 10 to 19, 2015

         Santiago 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.

         Following 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."[2] 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.

         February 20, 2015

         At 2:54 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 cry[.]"

         Michael 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.

         Cinthia 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.

         The Litigation

         Cinthia 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."

         As 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.

         After 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 law.[3] 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.[4] This appeal follows.


         Dr. 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 employees' practice.


         We 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 § 74.351(c).

         The 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).

         STANDARD ...

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