In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-04-00089-CV
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IN RE:
DWIGHT WAYNE JONES
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Original Mandamus Proceeding
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Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
          Dwight Wayne Jones, an inmate at the Texas Department of CorrectionsâInstitutional Division, has filed a petition for writ of mandamus. He asks us to order the Honorable Robin Sage, presiding judge of the 307th Judicial District Court in Gregg County, Texas, to rule on Jones' motion for a bench warrant he filed October 24, 2003.
          Mandamus relief is an extraordinary remedy. We will issue a writ of mandamus only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a legally imposed duty, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994).
          In this case, Jones has not supplied this Court with a record of the proceedings from the underlying case. Nor has he supplied us with anything, other than his petition, from which we could determine if the trial court abused its discretion or violated a duty imposed by law. Without such a recordâas well as a clear showing that the trial court abused its discretion and that Jones has no other adequate relief available, such as appealâmandamus relief is inappropriate.
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          Accordingly, we deny Jones' petition for writ of mandamus.
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                                                                           Donald R. Ross
                                                                           Justice
Date Submitted:Â Â Â Â Â Â August 11, 2004
Date Decided:Â Â Â Â Â Â Â Â Â August 12, 2004
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. §Â 74.351(r)(6).
A. A Nurse Is Not Statutorily Qualified to Provide an Expert Report on Causation in a Health Care Liability Claim
Since Ray's claim is a health care liability claim, she was required to file, "not later than the 120th day after the date the original petition was filed . . . one or more expert reports, with a curriculum vitae." (4) Absent compliance with this requirement, the trial court was mandated to enter an order dismissing Ray's claim with prejudice unless the report was found not served due to some deficiency. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b), (c). Before a document can be considered as an expert report, it must be rendered by a person qualified to testify as an expert on a particular matter. Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.--Amarillo 2001, no pet.). It was Ray's burden to demonstrate that the purported expert, D'Uva, had the requisite knowledge, skill, and experience that would qualify her as an expert witness in this case. See Broders v. Heise, 924 S.W.2d 148, 149, 151-52 (Tex. 1996).
Section 74.351(r)(5)(B) of the Texas Civil Practice and Remedies Code defines the term "expert" "with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care" as a person that meets the requirements of Section 74.402. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B) (emphasis added). Section 74.402 states:
(b) . . . a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person . . . [practices] 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 . . . has knowledge of accepted standards of care for health care providers . . . and . . . is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
Tex. Civ. Prac. & Rem. Code Ann. § 74.402 (Vernon 2008).
D'Uva may have met these requirements. However, with respect to the issue of causation, Section 74.403(a) states that a person may qualify as an expert witness on the issue of causation between the alleged departure from standards of care and the injury, harm, or damages claimed "only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under Texas Rules of Evidence." Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a) (Vernon 2008) (emphasis added), § 74.351(r)(5)(C). Despite this clear statutory mandate, Ray suggests a nurse is qualified to render an expert report on causation in a health care liability case.
Ray relies in part on Baptist Hospitals, 2006 WL 2506412, at *1, and In re Highland Pines Nursing Home, Ltd. v. Brabham, for the proposition that "[n]urses can certainly qualify as medical experts." No. 12-03-00221-CV, 2004 WL 100403, at *2 (Tex. App.--Tyler Jan. 21, 2004, no pet.) (mem. op.) (conditionally granting writ of mandamus from trial court's denial of motion to dismiss because plaintiff did not meet burden to demonstrate purported expert was qualified to render opinion on causation). Given the current statutory scheme recited above, the proposition holds true only with respect to opinions on standards of care and breach of those standards.
Significantly, Baptist Hospitals pointed out that "[t]he law applicable to this case is former 4590i . . . repealed by Act of June 2, 2003." 2006 WL 2506412, at *1. Highland Pines also specifically noted, "Article 4590i was repealed and recodified at Tex. Civ. Prac. & Rem. Code Ann. § 74.351, which was effective on September 1, 2003. This underlying action in this proceeding was filed on August 2, 2002." 2004 WL 100403, at *2 n.1. These facts are important because unlike the current Section 74.403, the now-superseded Article 4590i did not require a physician to testify on causation issues. See Walgreen Co. v. Hieger, 243 S.W.3d 183, 186 (Tex. App.--Houston [14th Dist.] 2007, pet. denied). Similarly, the remainder of Ray's cases cited for this proposition (5) were filed prior to the effective date of the current law, Section 74.351 of the Texas Civil Practice and Remedies Code.
New caselaw clearly establishes that a nurse is not qualified to render an expert opinion regarding causation. Educare Cmty. Living Corp. v. Rice, No. 05-07-00964-CV, 2008 WL 2190988, at *3 (Tex. App.--Dallas May 28, 2008, no pet.) (reversing trial court's denial of motion to dismiss because nurse not a physician and could not qualify as expert); San Jacinto Methodist Hosp. v. Carr, No. 01-07-00655-CV, 2008 WL 2186473, at *4 (Tex. App.--Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.); Kelly v. Rendon, 255 S.W.3d 665, 675 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (because a nurse is not qualified, their report, "standing alone, can not meet the statutory report requirement on medical causation"); Cuellar v. Warm Springs Rehab. Found., No. 04-06-00697-CV, 2007 WL 3355611, at *3 (Tex. App.--San Antonio Nov. 14, 2007, no pet.) (mem. op.); Talmore v. Baptist Hosps. of Se. Tex., No. 09-06-024-CV, 2006 WL 2883124, at *4 n.4 (Tex. App.--Beaumont Oct. 12, 2006, no pet.) (mem. op.) ("Nurse Practitioner Lindsay is disqualified by statute as an expert witness on causation in this case. Specifically, under the circumstances of this case she could not offer an opinion that any breach of a standard of medical care was a cause of Talmore's injuries and death.") (citations omitted); Belcher, 2006 WL 2067981, at *2; see also Christus Health Se. Tex. v. Hall, No. 09-07-074-CV, 2008 WL 2759785, at *4 (Tex. App.--Beaumont July 17, 2008, no pet.) (mem. op.) (citing Esquivel v. El Paso Healthcare Sys., Ltd., 222 S.W.3d 83, 90-91 (Tex. App.--El Paso 2005, no pet.) (for rule that nurse's report may only be considered in conjunction with physician's medical expert report)). Thus, Ray failed to meet the critical requirement to provide an expert report on causation issues as required by Section 74.351(r)(6).
B. Expert Opinion on Causation by Statutorily-Qualified Expert Was Required
Ray's alternative contention that this case does not require expert testimony on causation because the underlying negligence "is one of common knowledge and . . . is readily apparent to anyone with common sense" fails. See Cuellar, 2007 WL 3355611, at *2. Citing res ipsa loquitur cases, Ray's briefing alternatively claims that no causation testimony was required because "causal connection between falling and broken bones is self-evident." Ray does not properly analyze or evaluate the causation requirement, suggesting that she must only prove that the fall caused her broken bones. (6)
The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and the defendant's negligence is probable. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004). Res ipsa loquitur, which means "the thing speaks for itself," is only used in the rare case where the circumstance surrounding the accident constitutes sufficient evidence of negligence. Belcher, 2006 WL 2067981, at *1. It is applied where the character of the accident would not ordinarily occur absent negligence and the cause of the injury was under a defendant's management and control. Id. However, "Generally, Texas courts recognize that res ipsa loquitur is inapplicable to medical malpractice cases." Id. The application of the doctrine of res ipsa loquitur is specifically limited in health care liability claims to "those cases to which it has been applied by the appellate courts of this state as of August 29, 1977." Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005). The three categories where appellate courts have typically applied the doctrine in the medical malpractice arena include: "(1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body." Belcher, 2006 WL 2067981, at *1 (citing Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990)).
Ray's fall, with its resulting injuries, fits in none of these parameters. Thus, the doctrine of res ipsa loquitur does not apply and Ray was required to file an expert report on causation. See Belcher, 2006 WL 2067981, at *2. Because we have determined that nurse D'Uva was disqualified by statute to render an opinion on causation, her report was tantamount to no report at all; therefore, dismissal was mandatory. Because dismissal of the case after such a motion was required under the statutes governing health care liability claims, the trial court had no discretion in the matter.
IV. Conclusion
For the foregoing reasons, we reverse the trial court's order denying the Hospital's motion to dismiss and remand the cause to the trial court for further proceedings in accordance with this opinion.
Bailey C. Moseley
Justice
Date Submitted: February 23, 2009
Date Decided: February 24, 2009
1. Ray acknowledges, by her attempt to file an expert report within the statutory time period,
that this is a health care liability claim which is governed by the statutes pertaining to that kind of
action.
2. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).
3. Because the issue of the qualification of the expert giving the causation report is dispositive,
we need not address the Hospital's assertions that nurse D'Uva's report was otherwise insufficient.
4. 5. Singleton v. Nw. Tex. Healthcare Sys., No. 07-03-0552-CV, 2006 WL 468747, at *1 (Tex.
App.--Amarillo Feb. 28, 2006, no pet.) (mem. op.) (suit filed October 22, 2001); Costello v.
Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 247-48 (Tex. App.--San Antonio 2004,
no pet.) (decided under Article 4590i but holding nurse's report insufficient); Lesser v. St. Elizabeth
Hosp., 807 S.W.2d 657 (Tex. App.--Beaumont 1991, writ denied).
6.