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Date: 05-31-2017

Case Style: Kevin D. Fields v. Good Shepherd Hospital, Inc., d/b/a Good Shepherd Medical Center

Case Number: 06-17-00001-CV

Judge: Josh R. Morriss III

Court: Texas Court of Appeals, Sixth Appellate District on appeal from the County Court at Law No. 2, Gregg County

Plaintiff's Attorney: William T. Hughey

Defendant's Attorney: Ken C. Cunningham, Stephen A. Madsen and Brian C. Brisco

Description: In his second attempt at providing a qualifying expert report to support his health care liability claim against Good Shepherd Hospital, Inc., d/b/a Good Shepherd Medical Center, Kevin D. Fields filed a report that Good Shepherd attacked as being deficient.1 The trial court, agreeing that Fields’ second report also failed to comply with the statutory requirements, dismissed Fields’ claims with prejudice.2
Fields appeals the dismissal. We affirm the trial court’s ruling because (1) the expert report stated no standard of care for Good Shepherd or its employees, (2) the report failed to state how a standard of care was breached, and (3) the report stated a conclusory opinion on causation.3
A claimant who files a health care liability claim must serve on each defendant one or more expert reports, along with each expert’s curriculum vitae (CV), not later than the 120th day after each defendant files an answer. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). A trial court may grant a motion to dismiss under Section 74.351 if it determines that the expert report does not constitute a good faith effort to comply with subsection (r)(6) “with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the
1Fields’ petition alleged that, after he visited Good Shepherd’s emergency department, Good Shepherd’s employees failed to remove an intravenous (IV) cannula that had been placed in his left arm, which ultimately caused him to undergo surgery, hospitalization, and extensive recovery. The trial court had sustained Good Shepherd’s objections to Fields’ initial expert report and granted Fields a thirty-day extension to cure the report’s deficiencies. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2017).
2See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2).
3The parties hotly dispute whether the author of the expert report, Dr. D.G. Edwards, was qualified to render an opinion on the nursing standard of care and the breach of that standard. Since we find that the report is otherwise deficient, we will assume, without deciding, that Edwards was qualified to render those opinions.
trial court to conclude that the claims have merit.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Highland Pines Nursing & Rehab. v. Wiley, 496 S.W.3d 804, 809 (Tex. App.—Texarkana 2016, no pet.); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).4 Merely stating the expert’s conclusions about the standard of care, breach, and causation does not constitute a good-faith effort to comply with the statute. Palacios, 46 S.W.3d at 879. Rather, to be a good-faith effort, the report must discuss the expert’s opinions regarding the standard of care, breach, and causation with sufficient specificity to both inform the defendant of the questionable conduct and to give the trial court a basis to determine the claims have merit. Id.; Wiley, 496 S.W.3d at 809. Further, “the expert must explain the basis of his statements to link his conclusions to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). If the report omits any of the elements required by subsection (r)(6), it does not constitute a good-faith effort. Palacios, 46 S.W.3d at 879.
We review for an abuse of discretion a trial court’s decision on a motion to dismiss pursuant to Section 74.351. Marente v. Asah, 486 S.W.3d 680, 684 (Tex. App.—Texarkana 2016, no pet.) (citing Palacios, 46 S.W.3d at 875). We will reverse the trial court’s decision only if we find it acted in an unreasonable or arbitrary manner without reference to any guiding rules or principles. Wiley, 496 S.W.3d at 809 (citing Wright, 79 S.W.3d at 52). In our review, we may not substitute our opinion for that of the trial court. Id. (citing Wright, 79 S.W.3d at 52).
4Subsection (r)(6) requires that an expert report “provide[] a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
(1) The Expert Report Stated No Standard of Care for Good Shepherd or Its Employees
In the section of the report titled “Standard of Care,” Edwards set out the purpose of an IV lock placement, but otherwise simply recited the facts regarding Fields’ emergency room visit and discharge and Edwards’ understanding of subsequent events. Nowhere in the section was a standard of care stated for either Good Shepherd or its nurses. Further, the “Breach of Standard of Care” section merely recited Edwards’ understanding of the legal definition of negligence and proximate cause. Recognizing these deficiencies, Fields argues that Edwards made an “open ended statement” on the standard of care when he stated that he was familiar with the standard of care for IV placement and removal in an emergency room visit. He also argues that the “Proximate Cause” section of the report stated the standard of care, and the breaches thereof, “in the Negative.” The “Proximate Cause” section stated:
(l) Amanda Olivera-Hall, no title given, discharged the patient with the IV still in place at 14:45.
(2) The discharge instructions do not mention the examination of Mr. Fields[’] skin where the IV was placed and the condition it was in when he was discharged by the nurse or doctor. Therefore, the patient was not made aware what to possibly look for in his discharge summary of what signs, symptoms, fever, uncontrollable pain, nausea, vomiting, or signs of infection at the site of the IV.
(3) No documentation of Mr. Fields’ return to the ED as to the time of his signed in or did not sign in as a patient or the time of the return.
(4) No documentation that Mr. Fields[’] chart was re-opened or an addendum of the time he returned, his condition upon his return and what was discussed with him.
(5) No documentation of the condition or color of the left forearm when the IV was removed.
(6) No documentation alerting the ED physician of the incident and allowing him or her to assess the condition of the left upper arm after removal of the IV.
(7) No documentation that the patient was properly instructed and educated orally or on paper that his condition could become very serious requiring surgery if it is not regularly evaluated for swelling, redness, fever, pain, numbness, drainage or may require antibiotics.
(8) Failure to file an incident report with the Director of Nursing or nursing supervisor concerning this matter.
(9) Proper documentation and instructions to Mr. Fields could have likely prevented an unnecessary surgery and hospitalization.
Fields particularly points to statements 1, 2, 6, and 7 as stating the standard of care. Although these statements recited certain acts and possible omissions by Good Shepherd and its employees and pointed out alleged deficiencies in Good Shepherd’s documentation, they do not in any way state a standard of care for either Good Shepherd or its nurses. Further, stating that one is familiar with the standard of care and concluding it was not met will not satisfy the requirement to state the standard of care with sufficient specificity. See Palacios, 46 S.W.3d at 880.
“Identifying the standard of care is critical: Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.” Id. In Palacios, the claimants relied on the following statement to establish a standard of care:
Based on the available documentation I was able to conclude that: Mr. Palacios fell from his bed on 5/14/94 while trying to get out of it on his own. The nursing notes document that he was observed by nursing on the hour for two hours prior to the fall. In addition, ten minutes before the fall, the nursing notes documents [sic] the his wrist/vest restraints were on. Yet, at the time of his fall he was found on the floor with his vest/wrist restraints on but not tied to the bed. It is unclear how he could untie all four of the restraints from the bedframe in under ten minutes.
Obviously, Mr. Palacios had a habit of trying to undo his restraints and precautions to prevent his fall were not properly utilized.
Id. at 879. The Palacios court explained that the expert’s statement, to the effect that precautions to prevent the fall were not properly utilized, was not a statement of a standard of care since neither the defendant nor the trial court would be able to determine whether the expert believed the standard of care required the defendant “to have monitored Palacios more closely, restrained him more securely, or done something else entirely.” Id. at 880. Similarly, the statements on which Fields relies would not enable the trial court or Good Shepherd to determine whether the standard of care required (a) that the IV be removed by a nurse before discharge, (b) that the IV be removed by a physician before discharge, (c) that the IV need not even be removed before discharge, (d) that a nurse should examine the site where the IV was removed, (e) that a physician should examine the site, (f) that a nurse, a physician, or some other person should give instructions to Fields, if so, (g) what those instructions should be, and (h) the form in which those instructions should be delivered. In short, these statements fail to specifically state what an ordinarily prudent health care provider would have done under the same or similar circumstances.5 Id.
For that reason alone, the dismissal was not error.
5Fields also asserts that any lay person would have known that releasing a patient without removing an IV would be a breach of the standard of care. We understand this statement to be positing that he was excused from stating a standard of care by the circumstances. Fields cites no authority for this argument. The Texas Rules of Appellate Procedure require an appellant to present “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i); In re Estate of Curtis, 465 S.W.3d 357, 379 (Tex. App.—Texarkana 2015, pet. dism’d). “Bare assertions of error, without argument or authority, waive error.” Curtis, 465 S.W.3d at 379 (quoting McKellar v. Cervantes, 367 S.W.3d 478, 484 n.5 (Tex. App.—Texarkana 2012, no pet.)). Therefore, Fields has waived this argument. We note, however, that several of our sister courts of appeal who have considered the issue have held, for example, that res ipsa loquitur does not excuse the filing of an expert report in a health care liability claim. See Merry v. Wilson, 498 S.W.3d 270, 277 (Tex. App—Fort Worth 2016, no pet.) and cases cited therein.
(2) The Report Failed to State How a Standard of Care Was Breached
Likewise, these statements failed to state any breach of a standard of care. Although some of the statements recited what Good Shepherd or its employees did or omitted doing and recited the alleged deficiencies in its documentation, nowhere in the report did Edwards explain how these acts, omissions, and deficiencies breached any standard of care, or what Good Shepherd or its employees should have done differently. These conclusory statements would not provide the trial court any basis to conclude that Fields’ claims have merit. See id. at 879.
(3) The Report Stated a Conclusory Opinion on Causation
The report also contains a single, conclusory statement regarding causation. Edwards states, “Proper documentation and instructions to Mr. Fields could have likely prevented an unnecessary surgery and hospitalization.” However, “[a]n expert cannot simply opine that the breach caused the injury” because “it does not give the trial court any reasonable basis for concluding that the lawsuit has merit.” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Palacios, 46 S.W.3d at 879). Rather, the expert must “explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented.” Id. at 539–40. The expert is required to “explain the basis of his statements to link his conclusions to the facts.” Wright, 79 S.W.3d at 52 (quoting Earle, 998 S.W.2d at 890).
In his report, Edwards never identifies any act or omission by Good Shepherd or any employee that caused Fields to undergo surgery. Further, although he opines that proper documentation and instructions “could have likely” prevented an unnecessary surgery, he never explains what documentation and instructions could have prevented the surgery or how they could
have prevented it. Although Fields asks us to infer that Edwards was referring to the discharge instructions, to the lack of documentation alerting the ED physician of the incident, and to the lack of documentation that Fields was properly instructed about his condition, we may not do so any more than we can infer that Edwards was referring to the lack of documentation as to the time of Fields’ return to the ED and the condition of his skin when the IV was removed, or to the lack of an incident report. See Wright, 79 S.W.3d at 53. Further, even if we did as Fields asks, Edwards still did not explain how the lack of the documentation is causally linked to an unnecessary surgery. Without explaining the causal link between the alleged breach and the harm, the causation statement is conclusory. Id.
Since the report does not state a standard of care for either Good Shepherd or its employees, does not state how they breached any standard, and contains only a conclusory causation statement, the trial court did not abuse its discretion in finding that the report was not a good-faith effort to comply with the statutory requirements. Based on those findings, the trial court appropriately dismissed Fields’ claims. See id. at 54.

Outcome: We affirm the trial court’s judgment dismissing Fields’ claims.

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