Methodist Health Centers D/B/A Houston Methodist Sugar Land Hospital v. Patty Crawford and Harry Smith, Individually and as Heirs of Jeanette Smith

Opinion issued October 30, 2014.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00291-CV
———————————
METHODIST HEALTH CENTERS D/B/A HOUSTON METHODIST
SUGAR LAND HOSPITAL, Appellant
V.
PATTY CRAWFORD AND HARRY SMITH, INDIVIDUALLY AND AS
HEIRS OF JEANETTE SMITH, Appellees

On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 13-DCV-208281

MEMORANDUM OPINION

Patty Crawford and Harry Smith sued Methodist Health Centers for medical

malpractice in connection with its care for Jeanette Smith, their mother. Methodist

moved to dismiss the suit on the ground that Crawford and Smith’s medical expert
report was inadequate. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West

Supp. 2014). The trial court denied the motion. Methodist appeals, contending

that the report fails to affirmatively demonstrate the expert’s familiarity with the

applicable standard of care. Finding no error, we affirm.

Background

In September 2012, the Rosenberg Skilled Nursing Facility admitted

Jeanette Smith, an eighty–three–year–old woman with a history of dementia and

diabetes. 1 Smith had a pressure ulcer on her sacrum and required a feeding tube.

About a month later, Rosenberg transferred Smith to Houston Methodist Sugar

Land Hospital for treatment of a urinary tract infection and vomiting. At that

point, Smith had developed an additional pressure ulcer on her right hip. By a few

days later, the pressure ulcers had worsened. In late November, Methodist

discharged Smith back to the Rosenberg facility.

In March 2013, the Rosenberg facility transferred Smith back to Methodist,

due to her complaints of vomiting, fever, and shortness of breath. Smith also

suffered from sepsis secondary to the infected sacral pressure ulcer, pneumonia,

malnutrition, a urinary tract infection, and seven other severe pressure ulcers.

Despite aggressive wound care treatment and antibiotic therapy, Smith’s condition

1
For purposes of our review of the adequacy of a medical expert report under
Chapter 74, we take the allegations in the report as true. Marino v. Wilkins,
393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied).

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deteriorated. Four days after her admission, she died of respiratory failure,

pneumonia, and infection.

Course of proceedings

Crawford and Smith sued Methodist and Rosenberg, individually and as the

heirs of Jeanette Smith. Crawford and Smith attached Christopher Davey, M.D.’s

expert report and curriculum vitae to the petition, pursuant to Chapter 74 of the

Texas Civil Practice and Remedies Code, and later proffered an amended report.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The Smith family and the

Rosenberg facility settled their dispute. Methodist then moved to dismiss the case

against it for failure to serve an adequate Chapter 74 expert report.

Discussion

Standard of review

We review the trial court’s ruling for an abuse of discretion. Bowie Mem’l.

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)).

A court abuses its discretion if it acts without reference to any guiding rules or

principles. Wright, 79 S.W.3d at 52 (citing Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). When reviewing matters committed

to the trial court’s discretion, we may not substitute our judgment for the trial

court’s judgment. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (citing

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Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989)). Our analysis

of an expert’s qualifications is limited to the four corners of the expert’s report and

curriculum vitae. Palacios, 46 S.W.3d at 878.

Analysis

In a health care liability claim, a plaintiff must serve a defendant with an

expert report, along with the curriculum vitae of each expert listed in the report, no

later than 120 days after the defendant files its answer. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a). A person is qualified to opine whether the health care

provider departed from the accepted standard of care if the person (1) practices

health care in the same field as the health care provider; (2) knows the accepted

standard of care for the health care provider; and (3) is qualified on the basis of

training or experience to offer an expert opinion regarding that standard of care.

Id. § 74.402(b).

If a physician fails to state in his expert report that he has knowledge of the

standard of care applicable to the specific type of health care provider defending

against the claim, the physician is not qualified to opine whether the health care

provider departed from the accepted standard of care. Baylor Med. Ctr. at

Waxahachie v. Wallace, 278 S.W.3d 552, 558 (Tex. App.—Dallas 2009, no pet.).

To overcome a defendant’s motion to dismiss, the physician–expert must

affirmatively demonstrate experience and familiarity with that standard of care in

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the Chapter 74 report. Tawa v. Gentry, No. 01-12-00407-CV, 2013 WL 1694869,

at *13 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.); see

also Simonson v. Keppard, 225 S.W.3d 868, 873 (Tex. App.—Dallas 2007, no

pet.) (holding that physician was not qualified to opine on standard of care for

nurse practitioner because he failed to state that he had familiarity with standard of

care for nurse practitioners).

This claim against Methodist involves standards of nursing care. A

physician who is familiar with the appropriate standard of care for nurses for the

prevention and treatment of the condition involved in the claim may opine as to

whether a health care provider’s nurses departed from the accepted standard of

care. Wallace, 278 S.W.3d at 558; San Jacinto Methodist Hosp. v. Bennett, 256

S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2008), no pet.).

Dr. Davey meets the criteria for familiarity with the applicable standard of

nursing care. In the report, he discusses his extensive training and education,

particularly in the area of wound care. He is board certified as a wound specialist

by the American Academy of Wound Management and serves as the medical

director and active physician at Hyperbaric Medicine at the Edward White Center

for Wound Care and Hyperbaric Medicine. He has also served as the medical

director of ten nursing homes and holds admitting privileges at two hospitals. In

his report, he states that he has practiced Geriatric Medicine in “office, hospital,

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and nursing home settings.” When Dr. Davey describes the standard of care

applicable to Methodist, he refers only to the standard of care for nurses, as

supported by the Board of Nurse Examiners and the Nurse Practice Act. In laying

this groundwork, Dr. Davey demonstrates familiarity with the standard of care for

nurses. See Wright, 79 S.W.3d at 52.

Relying on Tawa v. Gentry, Methodist contends that Dr. Davey’s report does

not demonstrate that he is familiar with the specific standard of care for its nurses.

2013 WL 1694869, at *13. Tawa, however, is distinguishable. There, a physician

did not profess any knowledge about the standard of care for nurse practitioners

and provided no basis for the trial court to conclude that he was familiar with such

a standard other than stating that he was “familiar with the management of patients

with medical conditions similar to [the patient’s condition].” Id. at *14 (internal

quotation omitted). In contrast, Dr. Davey states that he “understand[s] not just

what the standard of care requires, but also what is likely to occur if the standard of

care is not met.” Coupled with the specific references to standards of nursing care

in describing the conduct applicable to Methodist, the four corners of the report

show familiarity with the applicable standard.

Methodist contends that Dr. Davey’s report is nonetheless insufficient

because it does not specifically address critically ill patients in a hospital setting,

citing Christus Spohn Health System Corp. v. Castro, No. 13-13-00302-CV, 2013

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WL 6576041, at *4 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.) (mem.

op.). Castro, too, is distinguishable. In that case, a nurse and a physician were

experts in the field of nursing home care, but not experts in the field of ICU/trauma

care. Id. at *4. In contrast, in this case, the relevant field of practice is the

treatment of pressure ulcers in a hospital setting. Dr. Davey has demonstrated

extensive knowledge and experience in this field of practice. He is board certified

as a wound specialist, has served on the Utilization Review and Quality Assurance

Committee at HCA Edward White Hospital and Columbia Edward White Hospital

and on the Medical Quality and Education Committee at St. Anthony’s Hospital.

In his curriculum vitae, he states that he is an active member of the medical staff at

two hospitals. Contrary to Methodist’s assertion, Dr. Davey’s training and

experience as set forth in the report extends beyond the nursing–home setting to

the hospital setting. Accordingly, we hold that the trial court did not err in denying

Methodist’s motion to dismiss.

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 Conclusion

Because Dr. Davey’s report and curriculum vitae demonstrate that he is

familiar with the applicable standard of care for nurses in a hospital setting, we

hold that the trial court did not err in denying Methodist’s motion to dismiss.

Accordingly, we affirm the order of the trial court.

Jane Bland
Justice

Panel consists of Justices Higley, Bland, and Sharp.

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