Memorial Hermann Health System, Individually and D/B/A Memorial Hermann Hospital - Texas Medical Center, Memorial Hermann Health System D/B/A Memorial Hermann Hospital v. Dianne G. McBride

Opinion issued August 28, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00572-CV
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MEMORIAL HERMANN HEALTH SYSTEM, INDIVIDUALLY AND
D/B/A MEMORIAL HERMANN HOSPITAL - TEXAS MEDICAL
CENTER, MEMORIAL HERMANN HEALTH SYSTEM D/B/A
MEMORIAL HERMANN HOSPITAL, Appellants
V.
DIANNE G. MCBRIDE, Appellee

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2013-25710

MEMORANDUM OPINION

In this interlocutory appeal, Memorial Hermann Health System, individually

and d/b/a Memorial Hermann Hospital - Texas Medical Center and Memorial
Hermann Health System d/b/a Memorial Hermann Hospital (collectively

“Memorial Hermann”) appeal the trial court’s order denying their motion

challenging the sufficiency of appellee Dianne McBride’s expert report of Jon C.

Walkes, M.D. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351, 74.402. 1 We

affirm.

Background

On the morning of January 7, 2012, Dianne McBride was transported by

ambulance to the emergency room of Memorial Hermann Hospital, complaining of

severe abdominal pain. Following an exploratory procedure, an arterial line was

placed in McBride’s right superficial femoral artery and she underwent surgery

during which a perforated duodenal ulcer was discovered and repaired. McBride

was subsequently transferred to the Shock Trauma Intensive Care Unit to recover

with her daughters, Connie Stewart and DeMonica Gladney, and her sister, Joyce

James, with her at the hospital.

Approximately 8:30 that evening, with Stewart and James at her bedside,

McBride, still intubated, awoke briefly several times, hit her right leg, and fell back

1
In 2013, the Legislature amended section 74.351 of the Texas Medical Liability
Act. See Act of May 26, 2013, 83rd Leg. R.S., ch. 870, § 2. The new provision
applies to all suits filed after September 1, 2013. Because McBride filed her
original petition prior to September 1, 2013, we will apply the former version of
section 74.351 to her claims. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, §
1, 2005 TEX. GEN. LAWS 1590 (amended 2013) (current version at TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2014)).

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asleep. When a nurse entered the room between 8:45 and 9:00 p.m., Stewart and

James told her that McBride was hitting her leg, complaining as if she were in pain

(“8:45 complaint”). The nurse told Stewart and James that she would make a note

of it and report it to the doctors. The nurse also advised them to inform the

doctors. Stewart and James returned to the waiting room after their visit.

At approximately 9:00 p.m., Stewart and Joyce approached McBride’s

doctors outside of her room and told them that McBride had woken up, hitting her

right leg and trying to mouth something about her leg (“9:00 complaint”). The

doctors told them that McBride’s stomach was their primary concern and that they

would attend to McBride’s leg complaint later when she was extubated, and left.

When Stewart and James gave McBride a pen and paper so that she could

communicate her complaint, McBride wrote that her right leg was “hot” and

“numb.” Stewart showed McBride’s note to one of the nurses at approximately

9:15 p.m., who advised her to report the complaint to the doctors when they

returned (“9:15 complaint”). Stewart and James left McBride’s room between

9:30 and 10:00 p.m. and remained in the waiting room.

The doctors returned to McBride’s room at approximately 6:00 a.m. the next

morning. Following an examination during which no pulse was detected in

McBride’s right leg, an angiogram was performed which revealed that the catheter

inserted into her leg for the arterial line had blocked blood flow to the leg resulting

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in a diagnosis of right lower leg ischemia. Due to the level of irreversible tissue

damage caused by the blocked artery, McBride’s right leg had to be amputated. 2

On April 30, 2013, McBride filed suit against Memorial Hermann 3 alleging

that appellants’ nurses were negligent in their post-surgery treatment by failing to

chart and report her right leg complaints to her treating physicians, and attached to

her petition an expert report by Jon C. Walkes, M.D. On May 30, 2013, appellants

filed a motion challenging the sufficiency of Dr. Walkes’s expert report alleging

that it failed to demonstrate a causal relationship between any alleged negligence

by appellants’ nurses and McBride’s injury. Following a hearing on June 17,

2013, the trial court denied appellants’ motion. It is from the denial of their motion

that appellants now appeal.

Discussion

A. Chapter 74 Expert Report Requirements

Section 74.351 of the Civil Practice and Remedies Code serves as a “gate-

keeper” through which no medical negligence causes of action may proceed until

the claimant has made a good-faith effort to demonstrate that at least one expert

2
Dr. Walkes’s report notes that one of McBride’s treating physicians reportedly
told McBride’s family that the blockage occurred because “they probably caused it
with the arterial line, because the catheter that was used was too large for her
arteries.”
3
McBride also named several other defendants, including several of her treating
physicians, in her suit but those defendants are not parties to this appeal.
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believes that a breach of the applicable standard of care caused the claimed injury.

See TEX CIV. PRAC. & REM. CODE ANN. § 74.351; Murphy v. Russell, 167 S.W.3d

835, 838 (Tex. 2005). To constitute a good faith effort, the report must provide

enough information to fulfill two purposes: (1) inform the defendant of the specific

conduct that the plaintiff has called into question and (2) provide a basis for the

trial court to conclude that the claim has merit. See Am. Transitional Care Ctrs. of

Tex. Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). A report that merely states

the expert’s conclusions as to the standard of care, breach, and causation does not

fulfill these two purposes. Id. The expert must explain the basis for his statements

and link his conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,

52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Although a report need not marshal all of the plaintiff’s proof, it must

include the expert’s opinions on the three statutory elements: standard of care,

breach, and causation. See Palacios, 46 S.W.3d at 880 (plaintiff need not present

evidence in report as if it were actually litigating merits); Spitzer v. Berry, 247

S.W.3d 747, 750 (Tex. App.—Tyler 2008, pet. denied) (quoting Palacios, 46

S.W.3d at 880) (stating “fair summary” is “something less than a full statement” of

applicable standard of care, how it was breached, and how that breach caused

injury). As to causation, an expert report must provide a fair summary of the

expert’s opinions regarding the causal relationship between the failure of the health

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care provider to provide care in accord with the pertinent standard of care and the

injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(r)(6).

The trial court may not draw any inferences, but must rely exclusively on the

information contained within the four corners of the report. See Palacios, 46

S.W.3d at 878. We determine whether a causation opinion is sufficient by

considering it in the context of the entire report. Bakhtari v. Estate of Dumas, 317

S.W.3d 486, 496 (Tex. App.—Dallas 2010, no pet.).

B. Standard of Review

We review a trial court’s ruling on a motion to dismiss for an abuse of

discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner or without reference to any guiding

rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985). In other words, when its actions are arbitrary or unreasonable. Id.

“The mere fact that a trial judge may decide a matter within his discretionary

authority in a different manner than an appellate judge in a similar circumstance

does not demonstrate that an abuse of discretion has occurred.” Id. at 242.

However, a trial court has no discretion in determining what the law is or in

applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)

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(orig. proceeding); Children’s Med. Ctr. of Dall. v. Durham, 402 S.W.3d 391, 395

(Tex. App.—Dallas 2013, no pet.).

C. Analysis

Memorial Hermann contends that the trial court abused its discretion by

denying their motion challenging the sufficiency of Dr. Walkes’s expert report

because the report does not establish a causal connection between the nurses’

alleged negligence and McBride’s injury. McBride argues that the trial court did

not err in finding that Dr. Walkes’s report sufficiently supports a causal link

between the nurses’ failure to report McBride’s complaint and the amputation of

her right leg.

In his report, Dr. Walkes discusses the applicable standard of care related to

the diagnosis and treatment of ischemia:

The standard of care for diagnosing ischemia required that the nurses
and doctors attending to the patient, who had become aware of the
patient’s right leg complaint, look for and respond immediately to the
clinical symptoms of limb ischemia. The six characteristic signs and
symptoms of limb ischemia are:

1. Pulselessness: An absent or weak pulse in the affected limb
is an early warning sign of ischemia;

2. Pain: The presence and progression of pain to the affected
limb is also an early warning sign of ischemia;

3. Pallor: Paleness of the skin on the affected limb is also an
early warning sign and is generally followed by cyanosis,
which is a dark bluish or purplish coloration of the skin due
to deficient oxygenation of the blood;
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 4. Poikilothermia: Unusual temperature variation, a cold or hot
limb is also an early sign of ischemia and the coolness and
pallor is usually one level below the point of occlusion on
the arterial tree;

5. Paresthesia: The loss of sensation for light touch, two-point
discrimination, and vibration is a crucial finding because it
may represent the first sign of tissue loss; and

6. Paralysis: Paralysis of the limb is an indication of advanced
limb threatening ischemia, usually requiring immediate
vascular surgery to avoid amputation.

The standard of care requires that any patient exhibiting any of these
symptoms be evaluated for ischemia immediately i.e. without delay. .
. . The treatment of limb ischemia is an emergency requiring rapid
restoration of blood flow to avoid amputation. If the symptoms are
consistent with early onset ischemia, i.e., no detectable pulse in the
leg, pain, pallor, and/or the leg is cold or hot[, t]he standard of care
requires an arteriogram in order to confirm the ischemia. If the
ischemia is confirmed, immediate surgery is indicated to restore blood
flow. This should be done without any delay because the level of
tissue death that would require amputation can occur in as little as 6
hours following the onset of a complete blockage. . . . In order to
have saved this patient’s leg, the standard of care required that the
physical examination for the six signs of ischemia, arteriogram, and
surgery to restore circulation be accomplished within 6 hours
following a complete blockage of blood flow. . . . It is reasonably
probable that the blockage had been complete by 8:00 [p.]m. when the
patient made the initial complaint about right leg pain.

With regard to how the standard of care was breached, Dr. Walkes opined as
follows:

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 The second departure from the standard of care was the failure
of the hospital nurse and the doctor on the patient’s surgical team . . .
to respond appropriately to the patient’s post-operative complaints of
right leg pain, numbness, and poikilothermia (temperature variant) on
the evening of January 7, 2012.

The Memorial Hermann Hospital nurse, to whom the complaint
was made on January 7, 2012 following the patient’s surgery, was
required by the standard of care to chart the complaint and promptly
report it to the patient’s doctor. This was not done. Had the nurse
reported these symptoms to the patient’s doctor, the doctor, acting in
compliance with the standard of care, would have conducted an
immediate assessment, ordered the arteriogram, and initiated the
angioplasty or revascularization surgery that was necessary to restore
circulation and save the patient’s leg before tissue death had
progressed too far to save the leg. Had these standards been complied
with on the evening of January 7, 2012 as soon as the right leg
compliant [sic] was made known, it is my opinion that the patient
would not have lost her leg.

In his report, Dr. Walkes also asserts that the physicians to whom Stewart

and Joyce reported McBride’s complaint at approximately 9:00 p.m. breached the

applicable standard of care by failing “to immediately examine or make sure the

patient’s leg was immediately examined” upon receiving the complaint.

Appellants argue that Dr. Walkes’s assertion that McBride’s treating

physicians were aware of her right leg complaint as of 9:00 p.m. and, therefore,

already under a duty to act, is at odds with McBride’s claim that the nurse to whom

McBride’s 9:15 written complaint was shown was negligent in failing to chart and

report the complaint to doctors. In other words, appellants contend that Dr.

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Walkes’s opinion regarding the physicians’ negligence necessarily broke the chain

of causation as to Memorial Hermann, and the nurse’s failure to report the 9:15

complaint could not have caused McBride’s injury. The hospital cites no authority

for this proposition. Dr. Walkes’s opinion that both doctors and nurses breached

the standard of care and caused McBride’s injury are not necessarily inconsistent.

See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (noting

there may be more than one proximate cause of an event).

McBride argues that when Stewart and James informed McBride’s doctors

at approximately 9:00 p.m. that McBride had awakened hitting her right leg, this

information conveyed only a general complaint that something was wrong with her

leg. McBride’s specific written 9:15 complaint that her right leg was hot and numb

however, conveyed at least two characteristic signs of limb ischemia, i.e.,

poikilothermia (temperature variation) and paresthesia (loss of sensation),

symptoms of which the doctors were not aware. According to Dr. Walkes, “[t]he

standard of care requires that any patient exhibiting any of these symptoms be

evaluated for ischemia immediately, i.e., without delay.” Dr. Walkes’s report

states that the nurse who saw this written complaint had a duty to report these

specific symptoms to McBride’s doctors so that the patient could be evaluated

immediately for ischemia and, in failing to do so, breached the applicable standard

of care. Dr. Walkes opined that “[h]ad the nurse reported these symptoms to the

10
patient’s doctor, the doctor, acting in compliance with the standard of care, would

have conducted an immediate assessment, ordered the arteriogram, and initiated

the angioplasty or revascularization surgery that was necessary to restore

circulation and save the patient’s leg before tissue death had progressed too far to

save the leg.” Dr. Walkes concluded that “[h]ad these standards been complied

with on the evening of January 7, 2012 as soon as the right leg compliant [sic] was

made known, it is my opinion that the patient would not have lost her leg.”

At this stage of the proceeding, all that is required is that Dr. Walkes’s

expert report inform the defendants of the specific conduct the plaintiffs have

called into question and provide a basis for the trial court to conclude that the

claims have merit. See Palacios, 46 S.W.3d at 879. Dr. Walkes’s report does just

that. His report links his causation opinion to specific facts such that appellants

had notice of the complaint against them. Keeping in mind that expert reports,

such as that of Dr. Walkes, are only a preliminary method to show that a plaintiff

has a viable cause of action that is not frivolous or without expert support, we hold

the trial court did not abuse its discretion when it denied appellants’ motion

challenging the sufficiency of Dr. Walkes’s expert report on the element of

causation. See Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). Appellants’ issue is overruled.

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 Conclusion

We affirm the trial court’s order denying appellants’ motion challenging the

sufficiency of McBride’s expert report.

Jim Sharp
Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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