HN Texas Properties, L.P. v. David H. Cox, Individually and on Behalf of the Estate of David William Cox, and on Behalf of All Wrongful Death Beneficiaries of David William Cox

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-09-111-CV

HN TEXAS PROPERTIES, L.P. APPELLANT

V.

DAVID H. COX, INDIVIDUALLY APPELLEE
AND ON BEHALF OF THE
ESTATE OF DAVID WILLIAM
COX, DECEASED AND ON
BEHALF OF ALL WRONGFUL
DEATH BENEFICIARIES OF
DAVID WILLIAM COX, DECEASED

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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I. INTRODUCTION

Appellant HN Texas Properties, L.P. brings this accelerated, interlocutory

appeal of the trial court’s order denying its motion to dismiss the health care

1
… See Tex. R. App. P. 47.4.
liability claims of Appellee David H. Cox, individually and on behalf of the estate

of David William Cox, deceased and on behalf of all wrongful death

beneficiaries of David William Cox, deceased. See Tex. Civ. Prac. & Rem. Code

Ann. § 51.014(a)(9) (Vernon 2008). In three issues, HN argues that Cox’s civil

practice and remedies code section 74.351(a) expert report is neither authored

by a physician qualified to render an expert opinion with regard to the claims

against HN nor sufficient to comply with section 74.351’s statutory

requirements. See id. § 74.351(a), (l) (Vernon Supp. 2009), § 74.402 (Vernon

2005). We will affirm in part and reverse and remand in part.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND

According to the report of Kenneth Mitchell, M.D., on April 6, 2006,

David William Cox fell from his porch and landed on his back. He was taken to

Lake Granbury Medical Center and diagnosed with multiple bilateral rib

fractures, a small hematoma in the left pleural space, posterior left lung

contusion, and a fracture of the transverse process of the L1 and L2 vertebra.

The hospital discharged David William two days later, but he returned to the

hospital on April 11, 2006, complaining of shortness of breath and pain. Two

days later, he was transferred to HN’s facility, where he stayed until April 22,

2006, when he was transferred to Campbell Health System Emergency Room

after complaining of shortness of breath; an x-ray showed a large left pleural

2
effusion. David William underwent a thoracentesis during which 2000 cc of

bloody fluid was removed, but the fluid reaccumulated, and a chest tube was

placed. David William died on May 2, 2006. The autopsy showed that he died

from extensive thromboemboli that extended from the deep veins in the legs to

the right and left pulmonary arteries.

Cox filed a health care liability claim against HN in July 2008.2 He later

filed an amended petition alleging vicarious liability against HN. Cox timely

served HN with Dr. Mitchell’s report. HN timely filed objections to Dr.

Mitchell’s report on the grounds that Dr. Mitchell is not qualified to offer an

expert opinion as to HN’s potential liability and that he failed to sufficiently set

forth in the report the applicable standards of care, how HN breached the

standards of care, and how HN’s alleged breach of the standards of care

caused David William’s injuries. HN also filed a motion to dismiss Cox’s claims

against it. The trial court overruled HN’s objections to Dr. Mitchell’s report and

denied the motion to dismiss.

2
… Cox also sued Weatherford Texas Hospital Company, LLC; Campbell
Health System; Joseph Zadeh, M.D.; Tom Tarkenton, D.O.; Robert Gene
Garmon, D.O.; Andrew Scott Walker, M.D.; and Andrew Scott W alker M.D.,
P.A. None of these defendants are parties to this appeal.

3
 III. S TANDARD OF R EVIEW

We review a trial court’s order on a motion to dismiss a health care

liability claim for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91,

93 (Tex. 2006). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner, or if it acts without reference to any guiding rules or

principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)

(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

1985), cert. denied, 476 U.S. 1159 (1986)). We may not substitute our

judgment for the trial court’s judgment. Id. Nor can we determine that the trial

court abused its discretion merely because we would have decided the matter

differently. Downer, 701 S.W.2d at 242.

IV. E XPERT R EPORT R EQUIREMENTS

Civil practice and remedies code section 74.351 provides that, within 120

days of filing suit, a plaintiff must serve expert reports for each physician or

health care provider against whom a liability claim is asserted. Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(a). An expert report is a written report by an

expert that provides a fair summary of the expert’s opinions regarding the

applicable standard 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. Id.

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§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may

file a motion challenging the report’s adequacy. See id. § 74.351(a), (c), (l).

A trial court must grant a motion to dismiss based on the alleged inadequacy

of an expert report only if it finds, after a hearing, “that the report does not

represent an objective good faith effort to comply with the definition of an

expert report” in the statute. Id. § 74.351(l).

The information in the report does not have to meet the same

requirements as evidence offered in a summary judgment proceeding or at trial,

and the report need not marshal all the plaintiff’s proof, but it must include the

expert’s opinions on each of the elements identified in the statute—standard of

care, breach, and causation. Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Thomas v. Alford, 230 S.W.3d

853, 856 (Tex. App.—Houston [14th Dist.] 2007, no pet.). In detailing these

elements, the supreme court has made clear that an expert report must provide

enough information to fulfill two purposes if it is to constitute a good faith

effort: the report must (1) inform the defendant of the specific conduct the

plaintiff has called into question and (2) provide a basis for the trial court to

conclude that the plaintiff’s claims have merit. Palacios, 46 S.W.3d at 879;

Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). A report does not fulfill these two purposes if it merely

5
states the expert’s conclusions or if it omits any of the statutory requirements.

Palacios, 46 S.W.3d at 879.

Under section 74.402, a person may qualify as an expert witness on the

issue of whether a health care provider departed from accepted standards of

care only if the person

(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the defendant
health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing that
type of health care at the time the claim arose;

(2) has knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness, injury,
or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of health care.

Id. § 74.402(b). In determining whether a witness is qualified on the basis of

training or experience under section 74.402(b)(3), the court shall consider

whether, at the time the claim arose or at the time the testimony is given, the

witness (1) is certified by a licensing agency of one or more states of the

United States or a national professional certifying agency, or has other

substantial training or experience, in the area of health care relevant to the

claim and (2) is actively practicing health care in rendering health care related

services relevant to the claim. Id. § 74.402(c).

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 V. D R. M ITCHELL’S Q UALIFICATIONS

In its first issue, HN argues that the trial court abused its discretion by

denying its motion to dismiss Cox’s health care liability claim because Dr.

Mitchell is not qualified to render an expert opinion against HN. According to

HN, “[n]owhere in Dr. Mitchell’s report or CV is there anything to suggest that

Dr. Mitchell is qualified to discuss the standard of care applicable to a nursing

home or the nurses who provided care for [David William] at the facility.” HN

contends that Cox’s claim against it is a claim against a nursing home for

inadequate nursing care but that Dr. Mitchell’s report and CV contain nothing

to show that he is qualified to opine about how nurses at a nursing home

breached the standard of nursing care rendered to David William.

Our analysis of Dr. Mitchell’s qualifications under section 74.351 is

limited to the four corners of the report and curriculum vitae. Polone v.

Shearer, 287 S.W.3d 229, 238 (Tex. App.—Fort Worth 2009, no pet.). Dr.

Mitchell stated the following about his qualifications and medical expertise in

his report:

I graduated, cum laude, from the University of Texas in
Austin in 1981 with a degree in Biology. I received my Medical
Degree from the University of Texas Health Science Center at
Houston in 1985. I then completed my internship and residency in
Internal Medicine at the University of Texas Health Science Center
at Houston, Hermann Hospital, St. Joseph Hospital, and MD
Anderson Cancer Institute in 1988. I was board-certified by the

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 American Board of Internal Medicine in 1988. I have been licensed
to practice medicine, continuously, in the state of Texas since
1986, and was in active practice during the time Mr. Cox was
cared for by [HN] . . . . Presently, I am practicing as an Internal
Medicine physician with St. David’s North Austin Medical Center
where I also serve as Vice-President of Medical Affairs and Chief
Medical Officer. I am a member of several medical societies and
organizations including the Travis County Medical Society and
Texas Medical Association. I am on the active admitting staff at
North Austin Medical Center, Cornerstone Hospital of Austin, and
Seton Medical Center in Austin. From 1990-1996, I was on the
Board of Directors of the American Heart Association, Capital Area
Division and served as the Board President from 1995-1996. I
have served on the Physician Advisory Committee of Blue Cross
Blue Shield of Texas, Sanus/NYLCare, the Humana Quality
Improvement Committee and Aetna Quality Improvement
Committee in Austin.

Dr. Mitchell’s curriculum vitae contains information regarding his qualifications

and experience that mirrors the information in the report: he is the Vice-

President of Medical Affairs and Chief Medical Officer at St. David’s North

Austin Medical Center, and he was previously employed as a physician in the

Department of Internal Medicine at The Austin Diagnostic Clinic and at Austin

Regional Clinic. Under “Other Professional Experience,” Dr. Mitchell states,

“Affiliated Hospitalist rounding with Hospital Internists of Austin, North Austin

Medical Center”; “Medical Director, Transitional Care Unit”; and “Macgregor

Medical Clinic, After Hours Physician.”

Dr. Mitchell’s report and curriculum vitae demonstrate that he has

experience and expertise as an internal medicine physician and as a medical

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administrator, but there is nothing in his report or curriculum vitae

demonstrating or explaining that he has knowledge of or is familiar with the

accepted standard of care in this case for nurses or that he is qualified on the

basis of training or experience to offer an expert opinion regarding the accepted

standard of care in this case for nurses. See Jones v. Ark-La-Tex Visiting

Nurses, Inc., 128 S.W.3d 393, 396–97 (Tex. App.—Texarkana 2004, no pet.)

(holding that physician was not qualified to opine about nursing standards

because his report failed to state his qualifications to opine about the standard

of care for nurses monitoring a patient in a home healthcare setting and

because his curriculum vitae did not contain information showing he is an

expert on nursing care); cf. San Jacinto Methodist Hosp. v. Bennett, 256

S.W.3d 806, 812–14 (Tex. App.— Houston [14th Dist.] 2008, no pet.)

(overruling argument that expert physician was not qualified to opine about

nursing care because expert indicated in his report that he had either trained,

served as a consultant to, or observed health care providers in the same fields

as the defendants and stated that he is familiar with the applicable standard of

care for both nurses and physicians); Nexion Health at Humble, Inc. v. Whitley,

No. 14-09-00052-CV, 2009 WL 2589221, at *2–3 (Tex. App.—Houston [14th

Dist.] Aug. 25, 2009, no pet. h.) (mem. op.) (reasoning that unlike the facts of

two other cases in which the expert was not qualified to opine about the

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standard of care for nurses, the expert in this case was qualified to opine about

the standard of nursing home care because he stated that he had experience

with nursing home patients and was familiar with the appropriate standard of

care). Though Dr. Mitchell is not automatically disqualified from giving an

expert opinion regarding the accepted standard of care for HN’s nurses simply

because he is an internal medicine physician instead of a nurse, we may not

through inferences or otherwise fill in the gaps in his report where he fails to

detail why or how he is qualified to opine about the applicable standard of care

for HN’s nurses. See Wright, 79 S.W.3d at 53; Methodist Hosp. v. Shepherd-

Sherman, No. 14-08-01090-CV, 2009 WL 2568347, at *3 (Tex.

App.—Houston [14th Dist.] Aug. 20, 2009, no pet.). We hold that Dr. Mitchell

did not demonstrate that he is qualified to opine about the standard of medical

care applicable to HN’s nurses and that the trial court abused its discretion by

overruling HN’s objection and by denying its motion to dismiss the claims

against it based on the acts and omissions of the nurses on this ground. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b). We sustain HN’s first issue.

VI. S UFFICIENCY OF D R. M ITCHELL’S R EPORT

In its second issue, HN argues that Dr. Mitchell’s report does not

represent an objective good faith effort to comply with the definition of an

expert report because it fails to provide a fair summary regarding the standard

10
of care applicable to HN, the manner in which HN breached the standard of

care, and the causal relationship between the alleged breach and David

William’s death.

Dr. Mitchell stated the following in his report regarding the standard of

care applicable to HN:

•The standard of care required HN and its nurses and staff to
identify David William as being at risk for the development of
pulmonary embolism and thrombotic complications and take
necessary precautions against the development of thrombotic
conditions. Risk factors present in David William that necessitated
identifying him as a patient at risk for thrombotic complications
included that David William was obese, immobile, unable to
participate in exercise or therapy, and had an elevated
homocysteine level, which is known to be a risk factor for
thrombotic complications and pulmonary embolism.

•Precautions that HN and its nurses and staff should have taken to
prevent thrombotic complications included use of TED hose,
sequential compression hose, low-dose heparin therapy or IVC filter
placement.

•In reasonable medical probability, if precautions against the
development of pulmonary embolism and thrombotic complications
had been taken, David William would not have developed the
massive pulmonary emboli which proximately caused his death and
he would be alive today.

Dr. Mitchell stated the following in his report regarding the standard of care

applicable to Dr. Zadeh:

•The standard of care required Dr. Zadeh to identify David William
as a patient at risk for thrombotic complications due to his multiple
risk factors and order precautions against the development of

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 pulmonary embolism and thrombotic complications. David William
was a patient who was obese, immobile, unable to participate in
exercise or therapy, and had an elevated homocysteine level, which
is known to be a risk factor for thrombotic complications and
pulmonary embolism.

•Treatment to prevent thrombotic complications should have
included the use of TED hose, sequential compression hose, low-
dose heparin therapy, or IVC filter placement.

•In reasonable medical probability, if the foregoing precautions
against the development of pulmonary embolism and thrombotic
complications had been taken, David William would not have
developed the massive pulmonary emboli which proximately caused
his death and he would be alive today.

The standard of care that Dr. Mitchell identified for Dr. Garmon, Dr. Tarkenton,

and Dr. Walker included some variation of the following:

•The standard of care required them to order precautions against
the development of pulmonary embolism and thrombotic
complications for David William, a patient with multiple risk factors
that placed him at risk for the development of thrombotic
complications including obesity, prolonged immobility, inability to
participate in exercise or therapy, and who had an elevated
homocysteine level, which is known to be a risk factor for
thrombotic complications and pulmonary embolism.

•Precautions that they should have ordered included TED hose,
sequential compression hose, low-dose heparin therapy or IVC filter
placement.

•In reasonable medical probability, if these precautions against the
development of pulmonary embolism and thrombotic complications
had been taken, David William would not have developed the
massive pulmonary emboli which proximately caused his death and
he would be alive today.

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 With the exception of some minor variations, Dr. Mitchell’s report sets

forth virtually identical standards of care applicable to both HN’s nurses and Dr.

Zadeh, Dr. Garmon, Dr. Tarkenton, and Dr. Walker, the defendant physicians.

The report thus does not differentiate between the standard of care applicable

to HN’s nurses and the standard of care applicable to the physicians. Although

an expert is not prohibited from applying the same standard of care to more

than one health care provider (so long as they all owe the same duty to the

patient), there is nothing in the report stating or somehow providing that the

standard of care that applies to HN’s nurses is the same standard of care that

applies to the physicians. See Polone, 287 S.W.3d at 234–35 (holding report

that set forth single standard of care applicable to physician and physician’s

assistant insufficient to represent a good faith effort because “[a]lthough the

standards of care might be the same for both [the physician and physician’s

assistant], the report does not specifically state as much”); cf. In re Stacy K.

Boone, P.A., 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006, orig.

proceeding) (holding that a single standard of care applicable to physicians and

physician’s assistant was sufficient because all participated in administering

treatment). The report impermissibly required the trial court to infer that HN’s

nurses—who are not physicians—shared standards of care with the physicians

requiring the identification of David William’s risk for thrombotic complications

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and the taking of appropriate precautions to prevent such complications,

including using hose and an IVC filter placement—“precautions” that HN

contends nurses do not undertake. We hold that the trial court abused its

discretion by overruling HN’s objection and by denying its motion to dismiss as

to the claims based on the acts and omissions of the nurses on the ground that

Dr. Mitchell’s report is deficient for failing to adequately set forth the standard

of care applicable to HN’s nurses. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l), (r)(6).

Like the standards of care applicable to both HN’s nurses and the

physicians, Dr. Mitchell’s opinion regarding how HN’s nurses allegedly breached

the applicable standard of care is virtually identical to his opinion of how the

physicians allegedly breached the applicable standard of care: failing to

institute, order, or provide precautions—use of TED hose, sequential

compression hose, low-dose heparin therapy, or IVC filter placement—against

the development of pulmonary embolism and thrombotic complications.

Because Dr. Mitchell’s report does not differentiate between what the nurses

did wrong and what the physicians did wrong, the report is insufficient to

identify how HN’s nurses allegedly breached the applicable standard of care.

See Jones, 128 S.W.3d at 397. Further, because Dr. Mitchell’s report did not

sufficiently identify the standard of care applicable to HN’s nurses and how

14
HN’s nurses allegedly breached the standard of care, the report cannot

sufficiently identify how HN’s nurses’ alleged breach of the standard of care

caused David William’s death.

We hold that the trial court abused its discretion by overruling HN’s

objections and by denying its motion to dismiss on the grounds that Dr.

Mitchell’s report is deficient for failing to adequately set forth how HN’s nurses

allegedly breached the applicable standard of care and the causal relationship

between the breach and David William’s death. See id. We sustain HN’s

second issue.

In HN’s “Issues Presented,” it states that its third issue is whether the

trial court abused its discretion by failing to dismiss Cox’s claims against it with

prejudice. HN asserts no argument to support this “issue.” To the extent HN

intended this as an independent issue for appellate review, we overrule it. See

Polone, 287 S.W.3d at 239–40 (holding that remand, not dismissal, is the

appropriate remedy after a trial court’s ruling that a report is adequate is

reversed on appeal) (citing Leland v. Brandal, 257 S.W.3d 204, 207–08 (Tex.

2008)).

VII. A LTERNATIVE B ASIS FOR V ICARIOUS L IABILITY—D R. Z ADEH

Cox pleaded in his original petition and second amended original petition

that until April 22, 2006, David William was a patient at HN’s facility “under

15
the care of Dr. Zadeh.” In Cox’s second amended petition, he alleged vicarious

liability against HN for Dr. Zadeh’s acts or omissions. 3 In setting forth the

standard of care applicable to HN, how HN allegedly breached the standard of

care, and the causal connection between HN’s alleged breach and David

William’s injuries, Dr. Mitchell referred not only to HN’s nurses but also to HN’s

“staff.” The record does not demonstrate that HN filed any special exceptions

to Cox’s pleadings. Those pleadings can be construed to allege vicarious

liability against HN for the actions or inactions of its staff, which may include

Dr. Zadeh. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (stating that

pleadings are to be liberally construed when there are no special exceptions).

HN has not challenged Dr. Mitchell’s report insofar as it pertains to Dr. Zadeh;

it has only challenged the report as it pertains to its nurses. Thus, to the extent

the trial court denied HN’s motion to dismiss on the basis that the report is

adequate as to Cox’s allegations that HN is vicariously liable for Dr. Zadeh’s

actions or inactions, the trial court did not abuse its discretion in doing so.

3
… The petition alleged, “Furthermore, Defendant [HN] is vicariously liable
and/or liable through respondeat superior by and through their actual and
ostensible agents, employees, vice principals, borrowed servants, and/or
managing and/or limited partners, including, but not limited to Defendant Zadeh
. . . .”

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 VIII. C ONCLUSION

The record does not demonstrate that the trial court has already granted

Cox a section 74.351(c) extension.4 Having sustained HN’s first and second

issues, we reverse the trial court’s order denying HN’s motion to dismiss and

remand the case to the trial court to determine whether to dismiss Cox’s claim

against HN based on the acts or omissions of its nurses or to grant Cox a thirty-

day extension to cure the deficiency. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(b), (c). To the extent the trial court denied HN’s motion to dismiss

on the basis of HN’s vicarious liability for Dr. Zadeh, we affirm the trial court’s

order.

BILL MEIER
JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DELIVERED: October 15, 2009

4
… Cox included a motion for extension of time pursuant to section
74.351(c) in his response to HN’s objections.

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