File: 070639F - From documents transmitted: 12/07/2007
AFFIRM; Opinion issued December 7, 2007
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00639-CV
............................
BAYLOR UNIVERSITY MEDICAL CENTER
AND SARA THOMAS, R.N., Appellants
V.
DIANNA ROSA, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. cc-05-13659-b
.............................................................
OPINION
Before Justices Whittington, Bridges, and Francis
Opinion By Justice Whittington
In this interlocutory appeal, Baylor University Medical Center (BUMC) and
Sara Thomas, R.N. appeal the trial judge's order denying their objections to Dianna Rosa's
expert reports and denying their motion to dismiss. BUMC and Nurse Thomas raise two issues:
(i) error by the trial judge in finding a sufficient expert report and denying their motion to dismiss,
and (ii) whether a deposition satisfies statutory expert report requirements. We affirm the trial
court's order.
Background
Rosa underwent orbital decompression right eye surgery at BUMC. Dr.
Harrington performed the surgery to address a condition that causes the eye to swell in the eye
orbit resulting in pressure on the eye. Dr. Harrington noted postoperatively in the recovery room
that Rosa's vision in the right eye was intact. To control postoperative swelling, Dr. Harrington
ordered an ice pack placed on Rosa's right eye until the patient went to sleep. Nurse Thomas
placed an ice pack (a surgical glove containing ice) on Rosa's eye and secured the ice pack in
place with a velcro strap. Dr. Harrington was later called to examine Rosa regarding swelling.
When he arrived, he found the ice pack had been secured with the velcro strap and removed the
strap. Upon testing Rosa's right eye, he found blindness (no light perception) .
Rosa filed this medical malpractice action against BUMC See
Footnote 1 and Nurse Thomas alleging the loss of sight in her right eye was due to Nurse
Thomas postoperatively securing the ice pack with a velcro strap. Rosa alleges pressure from the
velcro strap impeded blood flow and caused damage resulting in loss of sight in her right eye.
Rosa served experts' reports from Nurse Cynthia Manning and Dr. Alan M.
Berg, and excerpts of the deposition of Dr. John N. Harrington to comply with the statutory
requirements for maintaining a medical malpractice action. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a) (Vernon Supp. 2007). BUMC and Nurse Thomas challenged Rosa's expert
reports and the deposition excerpts of Dr. Harrington. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a). The trial judge denied BUMC and Nurse Thomas's motion to dismiss. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(b). BUMC and Nurse Thomas filed this appeal.
Jurisdiction
As an initial matter, we address Rosa's contention that the Court lacks
jurisdiction over this interlocutory appeal. We have previously concluded we have jurisdiction
under similar facts and circumstances as are presented here. See Cayton v. Moore, 224
S.W.3d 440, 444 (Tex. App.-Dallas 2007, no pet.) (court has jurisdiction when trial judge's
order denies in part request for dismissal challenging adequacy of expert report under Texas
Civil Practices and Remedies Code section 74.351(l) (Vernon Supp. 2007)). See also
HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 908 (Tex. App.-Dallas 2007, no pet.);
Harris v. Jones, 2007 WL 1866879, *1 (Tex. App.-Dallas June 29, 2007, no pet.); Bidner v.
Hill, 231 S.W.3d 471, 472 (Tex. App.-Dallas 2007, pet. denied); Romero v. Lieberman, 232
S.W.3d 385, 388 (Tex. App.-Dallas 2007, no pet.).
Waiver
Rosa asserts that BUMC and Nurse Thomas waived objections to Rosa's
tendered experts' reports by making inadequate objections. Rosa claims that the alleged failure
of BUMC and Nurse Thomas to set out in detail the bases for their objections constitutes
waiver of those objections. We disagree.
Chapter 74 of the Texas Civil Practice and Remedies Code sets out the
deadlines for objecting to the sufficiency of served experts' reports and for objecting to the
qualifications of experts on standard of care and causation. Under “Procedural Provisions,”
with regard to challenging the sufficiency of an expert report, section 74.351(a) provides:
Each defendant physician or health care provider whose conduct is implicated in a report
must file and serve any objection to the sufficiency of the report not later than the 21st day
after the date it was served, failing which all objections are waived.
With respect to challenging qualifications of an expert witness in a suit against a health care
provider and the qualifications of an expert witness on causation in a health care liability claim,
the statutes provide in pertinent part:
A pretrial objection to the qualifications of a witness under this section must be made not
later than the later of the 21st day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the witness's deposition.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.402(f), 74.403(d) (Vernon 2005).
As
to a person giving opinion testimony on whether a health care provider
departed from accepted standards of health care, expert means an
“expert qualified to testify under the requirements of Section 74.402.”
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B). With respect to
a person giving opinion testimony about the causal relationship between
the injury, harm, or damages claimed and the alleged departure from the
standard of care in any health care liability claim, expert means “a
physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence.” Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(r)(5)(C). “Expert report” means:
[A] written report by an expert that provides 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 standards, and the
causal relationship between that failure and the injury, harm, or damages claimed.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
The record shows that within the 21-day deadline imposed by statute, BUMC
and Nurse Thomas objected to the experts' reports (with curriculum vitaes) of Nurse Manning
and Dr. Berg, as well as the deposition excerpts of Dr. Harrington (accompanied by the
curriculum vitae information obtained from Dr. Harrington's internet website). See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a). With regard to Nurse Manning and Dr. Berg, BUMC and
Nurse Thomas raised the objections to the tendered expert reports “that the qualifications and
the expert report[s] do not meet the required elements of an expert report under 74.351,” citing
sections 74.351(r)(5) and (6). BUMC and Nurse Thomas further filed objections to the
sufficiency of the reports under § 74.351(a), stating they are not valid reports under the statute.
As to Dr. Harrington, BUMC and Nurse Thomas filed objection to the qualifications of Dr.
Harrington and objected that the deposition excerpts do not constitute an expert report under
section 74.351(r)(6), therefore objecting “to the sufficiency of the report under § 74.351(a).”
Thus, BUMC and Nurse Thomas timely raised objections to the qualifications
of Nurse Manning, Dr. Berg, and Dr. Harrington. BUMC and Nurse Thomas further timely
objected to the sufficiency of the experts' reports and deposition excerpts served by Rosa. In
their later filed motion to dismiss, BUMC and Nurse Thomas elaborated on the specific
arguments concerning the statutory objections raised. Therefore we do not agree that BUMC
and Nurse Thomas failed to preserve the timely objections by not including specific details with
the statutory objections raised.
Medical Liability Expert Reports
An appellate court reviews a trial judge's decision on a motion to dismiss a
claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of
discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) (discussing
former article 4590i); Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875
(Tex. 2001) (discussing former article 4590i); Simonson v. Keppard, 225 S.W.3d 868, 871
(Tex. App.-Dallas 2007, no pet.).
A trial judge abuses his discretion if he acts in an arbitrary or unreasonable
manner without reference to guiding rules or principles. See Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Garcia v.
Martinez, 988 S.W.2d 219, 222 (Tex. 1999)). When reviewing matters committed to the trial
judge's discretion, an appellate court may not substitute its judgment for that of the trial judge.
See Gray, 189 S.W.3d at 858 (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding)). A trial judge does not abuse his discretion merely because he decides a
discretionary matter differently than an appellate court would under similar circumstances. See
Gray, 189 S.W.3d at 858 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985)). However, a trial judge has no discretion in determining what the law is or
in applying the law to the facts. See Walker, 827 S.W.2d at 840. A clear failure by the trial
judge to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827
S.W.2d at 840.
An expert report under section 74.351(r) of the Texas Civil Practices and
Remedies Code must provide enough information to fulfill two purposes if it is to constitute an
objective good faith effort. The report must inform the defendant of the specific conduct the
plaintiff has called into question and must provide a basis for the trial judge to conclude the
claims have merit. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859.
An expert report must provide a fair summary of the expert's opinions as of the
date of the report regarding the applicable standard of care, the manner in which the care
rendered by the physician failed to meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(6). The statute does not require that a single expert address all liability and causation
issues with respect to a health care provider. Section 74.351(r) provides:
Notwithstanding any other provision of this section, a claimant may satisfy any requirement
of this section for serving an expert report by serving reports of separate experts regarding
different physicians or health care providers or regarding different issues arising from the
conduct of a physician or health care provider, such as issues of liability and causation.
Nothing in this section shall be construed to mean that a single expert must address all
liability and causation issues with respect to all physicians or health care providers or with
respect to both liability and causation issues for a physician or health care provider.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). See HealthSouth Corp., 228 S.W.3d at
907 (that expert report fails to address causation does not render it otherwise incompetent or
insufficient).
A report cannot merely state the expert's conclusions as to the standard of
care, breach, and causation. See Palacios, 46 S.W.3d at 879; Hansen v. Starr, 123 S.W.3d
13, 20 (Tex. App.-Dallas 2003, pet. denied); Garcia v. Marichalar, 198 S.W.3d 250, 254
(Tex. App.-San Antonio 2006, no pet.); Gray, 189 S.W.3d at 859. The expert must explain
the basis for his statements and must link his conclusions to the facts. Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002); Garcia, 198 S.W.3d at 254; Gray, 189 S.W.3d at
859. A trial judge may not draw any inferences. See Palacios, 46 S.W.3d at 879; Gray, 189
S.W.3d at 859. Instead, the trial judge must rely exclusively on the information contained within
the four corners of the report. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859.
The expert report does not need to marshal all of the plaintiff's proof, but it must include the
expert's opinion on each of the elements identified in the statute. See Ehrlich v. Miles, 144
S.W.3d 620, 626 (Tex. App.-Fort Worth 2004, pet denied). The expert report may be informal
and the information presented need not meet the same requirements as evidence offered in
summary judgment proceedings or in a trial. See Ehrlich, 144 S.W.3d at 626. Also, it is the
substance of the opinions, not the technical words used, that constitutes compliance with the
statute. See Ehrlich, 144 S.W.3d at 626-27.
BUMC and Nurse Thomas challenge the sufficiency of the expert reports of
Nurse Manning and Dr. Berg. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). They also
challenge the qualifications of Nurse Thomas to render opinions on standard of care and Dr.
Berg to render opinions on causation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.402(f),
74.403(d). After reviewing the record, we cannot agree.
Nurse
Manning, a certified critical care nurse, holds a master of science
degree in nursing. In addition to teaching nursing students, she has practiced as a registered nurse since
1983, with experience in caring for post-operative patients who have doctors' orders for cold
therapy for a part of the body. Through her experience, education and training, she is familiar
with the nursing standards of care applicable in this matter and to render opinions regarding the
manner in which the nursing standard of care was allegedly breached by Nurse Thomas.
Dr. Berg, with twenty-five years practice in ophthalmology and board
certifications in ophthalmology and eye surgery, states:
. . . I have been involved with treating eye conditions concerning the effects of surgery on
or around the eyes, involving reasons and means for controlling swelling in or around the
eyes pre and postoperatively, and their effects on vision. I have performed or been involved
in treating over 40,000 surgical cases, and of those, over 500 involve similar issues
concerning eye pressure(s) after surgery. I have been directly involved with these cases
where pressure on the eye or about the eye, if not treated properly, can lead to loss of vision
as it did in this case.
We
conclude that Nurse Manning's qualifications as set forth sufficiently
qualify her to opine on the nursing standard of care and the alleged breach of the standard of care, and
Dr. Berg's qualifications as set forth sufficiently qualify him to opine on causation.
Nurse Manning's report includes the following with regard to the standard of
care and her opinion that Nurse Thomas breached the nursing standard of care:
There was not an order in the chart which indicates to secure the ice pack in any manner. .
. . Promoting and maintaining a safe environment involves ensuring that all equipment and
treatments are appropriately applied. . . . The registered nurse has an obligation to ensure
that the application of an ice pack is as the physician has ordered. Applying an ice pack or
any other treatment or equipment inappropriately could cause harm to the client. . . .
The physician is responsible for directing medical treatment such as the application of an ice
pack to a body part. Before a deviation from the physician order occurs, such as securing
the ice pack with a strap, the nurse must contact the physician to ensure this is appropriate
method of application. . . .
The nursing staff at Baylor University Medical Center including Nurse Thomas, RN, should
not have placed a strap without an order or should have called to clarify that a strap could
be used to secure the ice pack over Ms. Rosa's eye before placing the strap on the ice
pack. . . . Nurse Thomas should not have applied the strap without an order or she should
have called to clarify the need for a method to secure the ice pack prior to placing the strap
on the ice pack.
Dr. Berg's report contains the following regarding causation opinions:
In this case, an ice pack was ordered to be applied on the eye and on the orbital tissue
surrounding the eye to control postoperative swelling. This is the usual and customary
protocol in cases of this nature. This is important, because if swelling is not controlled, it can
lead to pressure upon the eye and damage to the inner structures of the eye, the retina, and
optic nerve. . . . The issue in this case, is the excessive pressure placed onto the eye, which
was caused by the Velcro strap that pushed the ice pack tightly against the globe-eye, after
Diana Rosa's orbital decompression surgery . . ., therefore, transmitting pressure throughout
the eye. This increase in eye pressure caused decreased blood flow to both the retina and
optic nerve of the eye, to the point that any tissue relying on blood supply would be
permanently damaged. . . . [D]r. Harrington found the ice pack had been strapped onto
Mrs. Rosa with a Velcro strap and [Dr. Harrington] immediately removed the strap and
found no light perception, which established a direct case [sic] and effect in the Velcro strap
and the ice pack leading to the loss of sight. Dr. Harrington noted in the Baylor records that
it appeared Mrs. Rosa's loss of vision was due to pressure on the eye due to the ice pack
being strapped on the eye with a Velcro strap without any order from him to use the Velcro
strap. I believe that Dr. Harrington followed the usual protocol to control postoperative
swelling with an ice pack. Unfortunately for Mrs. Rosa, the Velcro was applied over the ice
pack, leading to complete loss of sight in her right eye.
. . . I believe that the causative agent in the loss of vision of Mrs. Rosa's right eye was due
to the Velcro strap attached to the ice pack that was placed over her right eye after surgery.
This led to excessive pressure, which deprived the retina and the optic nerve of oxygen,
leading to permanent loss of sight. I could find no other plausible cause other than the
pressure that the Velcro strap transmitted through the ice pack to the eye that would lead to
her loss of vision.
Through these reports, the experts have addressed how Nurse Thomas's
conduct has been called into question, as well as the causal relationship between Nurse
Thomas's alleged error and Rosa's loss of sight. The reports provide a sufficient basis for the
trial judge to conclude that Rosa's claims against Nurse Thomas have merit. We conclude that
Nurse Manning's and Dr. Berg's reports represent objective good faith efforts to comply with
the definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
Therefore, we conclude the trial judge did not abuse his discretion in overruling BUMC's and
Nurse Thomas's objections to Rosa's reports of Nurse Manning and Dr. Berg or in denying
BUMC and Nurse Thomas's motion to dismiss. We overrule BUMC and Nurse Thomas's first
issue.
In light of our disposition of the first issue, we need not address whether the
deposition excerpts of Dr. Harrington satisfy the requirements of a statutory expert report. See
Tex. R. App. P. 47.1.
We affirm the trial judge's order overruling BUMC and Nurse Thomas's
objections toRosa's experts' reports and denying BUMC and Nurse Thomas's motion to
dismiss.
MARK WHITTINGTON
JUSTICE
070639F.P05
Footnote 1 Allegations against BUMC are limited to vicarious liability.
File Date[12/07/2007]
File Name[070639F]
File Locator[12/07/2007-070639F]