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Curnel v. Houston Methodist Willowbrook Hospital

Court of Appeals of Texas, First District

December 31, 2019

NANCY CARMEN CURNEL AND RONALD CURNEL, Appellants
v.
HOUSTON METHODIST WILLOWBROOK HOSPITAL, THE METHODIST HOSPITAL D/B/A THE METHODIST HOSPITAL SYSTEM, OBIOHA TOBECHUKWU EMENANJO, RN, LIQUN MICHELLE JIANG, RN, AND MOSHIR SIMON BANSUAN, RN, Appellees

          On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2016-36453

          Panel consists of Justices Lloyd, Goodman, and Landau.

          MEMORANDUM OPINION

          Sarah Beth Landau Justice

         In this interlocutory appeal, Nancy Carmen Curnel and Ronald Curnel appeal from a judgment dismissing their health care liability claim for failure to serve adequate expert reports. Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9), 74.351(a), (b). In a single issue, the Curnels contend that the trial court abused its discretion by granting the motion to dismiss for failure to serve adequate expert reports. We reverse and remand.

         Background

         This case has been before us twice previously.[1] According to the expert reports, Nancy Curnel visited a local walk-in clinic on October 4, 2015. She was diagnosed with a urinary tract infection and prescribed the antibiotic nitrofurantoin. Nitrofurantoin is known for potential hepatotoxic effects and can cause drug-induced liver injury ("DILI").

         Four days later, Curnel presented to the emergency department at Houston Methodist Willowbrook Hospital ("Willowbrook") with elevated liver enzymes. Dr. M. Esantsi, an on-duty hospitalist, examined Curnel and misdiagnosed her with viral hepatitis. Without evaluating her current medications for hepatotoxicity, Dr. Esantsi told Curnel to continue taking the antibiotic that caused her elevated liver enzymes. He then admitted her to the hospital for further evaluation. Once admitted, Dr. Esantsi ordered nurses to administer acetaminophen to Curnel, which is a well-known hepatoxic medication.

         Shortly thereafter, two nurses administered nitrofurantoin to Curnel at separate times. On the third day of her hospitalization, Dr. S. Ugbarugba, a gastroenterologist, examined Curnel, noted that she might be suffering from DILI, and ordered a biopsy of her liver for additional testing. Dr. Ugbarugba did not record the medications that Curnel had been taking at that time, including nitrofurantoin. Dr. Y. Naygandhi, another hospitalist, examined Curnel that same day, documented the "medication-related hepatitis," and ordered a review of Curnel's medications to determine the cause of her elevated liver enzymes.

         Dr. Naygandhi further ordered Curnel to discontinue nitrofurantoin, and Curnel's liver enzymes improved.[2] Her bilirubin began to decrease, her AST continued to decrease, and her ALT and ALP underwent "non-significant changes." Dr. Ugbarugba examined Curnel examined a third time. His progress note contained the "exact" same "assessment from the day prior" except that it noted, "Liver bx today."[3] "A pre-procedure prothrombin time/INR ordered by Dr. Esantsi return[ed] as normal (this was the first time checked since presentation)."[4]

         Despite Curnel's liver enzymes showing signs of improvement after discontinuing nitrofurantoin, neither the physicians nor the nurses canceled or postponed the biopsy. A radiologist performed the biopsy. He obtained two "cores," which showed that "the liver function abnormalities were due to medication effects." During the biopsy, the radiologist nicked Curnel's artery, causing severe injuries, including shock, anemia, and intra-abdominal hemorrhage. Curnel required multiple blood transfusions, medications to maintain circulation, mechanical ventilation, prolonged resuscitation, and extended ICU care.

         Procedural History

         Curnel and her husband, Ronald (the "Curnels"), asserted health care liability claims against Willowbrook, Dr. Ugbarugba, and various other physicians who treated her throughout her hospitalization. The Curnels obtained and served a series of expert reports from a gastroenterologist, Dr. T. Sheer, and a registered nurse, J. Fomenko. Dr. Sheer's report addressed whether the failure to evaluate the toxicity of Curnel's medications and whether the failure to implement a "chain of command" system caused Curnel's injuries. Fomenko's report addressed the standard of care and its breach. Willowbrook and Dr. Esantsi filed motions to dismiss under Texas Civil Practice and Remedies Code Section 74.351. The trial court found that the combined expert reports were inadequate as to all three elements of the Curnels' claims (i.e., standard of care, breach, and causation), denied the Curnels' request for an extension to cure the deficiencies, and dismissed the Curnels' claims against Willowbrook and Dr. Esantsi. The Curnels appealed the trial court's interlocutory order dismissing their claims with prejudice against Willowbrook, contending the trial court abused its discretion in granting the motion to dismiss for failure to serve adequate expert reports. See Curnel v. Houston Methodist Hosp.-Willowbrook, 562 S.W.3d 553, 561 (Tex. App.- Houston [1st Dist.] 2018, no pet.) (op. on reh'g) ("Curnel I").

         In Curnel I, this Court held Fomenko's reports on Willowbrook provided adequate opinions on the standard of care and breach but that Dr. Sheer's reports on Willowbrook did not adequately address cause-in-fact and foreseeability, as required to establish causation. Id. at 570. This Court also held that the expert reports were potentially curable and therefore the trial court erred in failing to allow an extension to cure deficiencies. Id. The case was remanded for further proceedings. Id.

         While the Curnel I interlocutory appeal was pending, the Curnels filed an amended petition, which asserted health care liability claims against TMH Health Care Group, the Methodist Hospital System ("Methodist"), which manages and oversees Willowbrook, as well as three Willowbrook nurses, M. Bansuan, O. Emenanjo, and L. Jiang (the "Nurse Defendants"). The Curnels' claim against Methodist was based on the same allegations as their direct liability claim against Willowbrook, and their claims against the Nurse Defendants were based on the same allegations as their vicarious liability claim against Willowbrook. The Curnels served additional expert reports. Willowbrook and the Nurse Defendants objected to the expert reports as deficient and moved to dismiss the Curnels' claims. The Curnels filed a response and requested an extension to cure the expert reports. Finding the expert reports deficient, the trial court denied the Curnels' motion for an extension to cure and dismissed their claims against Methodist and the Nurse Defendants. The Curnels filed a second interlocutory appeal, contending that the trial court abused its discretion by granting the motions to dismiss and denying their motion for an extension to cure. See Curnel v. Methodist Hosp., No. 01-17-00742-CV, 2018 WL 4014590, at *2 (Tex. App.-Houston [1st Dist.] Aug. 23, 2018, no pet.) (mem. op.) ("Curnel II").

         In Curnel II, the Court held that Dr. Sheer's reports on Methodist and the Nurse Defendants failed to adequately address cause-in-fact and foreseeability, as required to establish causation. Id. at *8-*9. The Court also held that the trial court abused its discretion by denying the Curnels' motion for an extension to cure because the expert reports were deficient but curable and reversed and remanded the case. Id. at *10.

         On remand, the Curnels served three additional expert reports from Dr. Sheer, Fomenko, and Dr. D. Kett, addressing the deficiencies identified in Curnel I and Curnel II.

         Willowbrook, Methodist, and the Nurse Defendants objected to the expert reports as deficient and moved to dismiss the Curnels' claims. The trial court granted the motion to dismiss. This interlocutory appeal followed.

         Motion to Dismiss

         In their sole issue, the Curnels contend that the trial court abused its discretion by dismissing their claims against Willowbrook, Methodist, and the Nurse Defendants.

         A. Applicable law and standard of review

         Under the Medical Liability Act, a plaintiff asserting health care liability claims must timely serve each defendant physician and health care provider with one or more expert reports and a curriculum vitae of each expert whose opinion is offered to substantiate the merits of the claims. Tex. Civ. Prac. & Rem. Code § 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.-Houston [1st Dist.] 2015, no pet.). The expert report must provide a "fair summary" of the expert's opinions regarding the (1) applicable standards of care, (2) manner in which the care rendered by the physician or health care provider failed to meet the standards, and (3) causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). A "fair summary of the expert's opinions" means that, at the least, the report must state more than mere conclusions and must instead explain the basis of the expert's opinion so as to link the conclusions to the facts of the case. See Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)).

         For standard of care and breach, the expert report must explain what the physician or health care provider should have done under the circumstances and what the physician or health care provider did instead. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). For causation, the expert report must explain how and why the physician's or health care provider's breach proximately caused the plaintiff's injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459-60 (Tex. 2017).

         Causation consists of two components: (1) cause-in-fact and (2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A physician's or health care provider's breach was a cause-in-fact of the plaintiff's injury if the breach was a substantial factor in bringing about the harm, and absent the breach the harm would not have occurred. Id. Even if the harm would not have occurred absent the defendant's breach, "the connection between the defendant and the plaintiff's injuries simply may be too attenuated" for the breach to qualify as a substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (per curiam) (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)). A breach is not a substantial factor if it "does no more than furnish the condition that makes the plaintiff's injury possible." Id. A physician's or health care provider's breach is a foreseeable cause of the plaintiff's injury if a physician or health care provider of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. Puppala v. Perry, 564 S.W.3d 190, 197 (Tex. App.-Houston [1st Dist.] 2018, no pet.).

         The expert report is not required to prove the defendant's liability but only to provide notice of the conduct forming the basis of the plaintiff's claim. Gracy Woods I Nursing Home v. Mahan, 520 S.W.3d 171, 189 (Tex. App.-Austin 2017, no pet.). The report "need not anticipate or rebut all possible defensive theories that may ultimately be presented" in the case. Owens v. Handyside, 478 S.W.3d 172, 187 (Tex. App.-Houston [1st Dist.] 2015, pet. denied). "Nothing in Section 74.351 suggests the preliminary report is required to rule out every possible cause of the injury, harm or damages claimed, especially given that Section 74.351(s) limits discovery before the report is filed." Meyer v. Strahan, 578 S.W.3d ...


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