San Jacinto Methodist Hospital v. Aaron McCoy

Affirmed and Memorandum Opinion filed June 13, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00682-CV

SAN JACINTO METHODIST HOSPITAL, Appellant,
V.

AARON MCCOY, Appellee.

On Appeal from the 125th District Court
Harris County
Trial Court Cause No. 2011-45867

MEMORANDUM OPINION

Appellee Aaron McCoy brought the underlying healthcare-liability suit
against appellant San Jacinto Methodist Hospital (“Methodist”) under the Medical
Liability Act. See Tex. Civ. Prac. & Rem. Code §§ 74.001–.507. In this
interlocutory appeal, Methodist argues the trial court abused its discretion by
denying Methodist’s motion to dismiss McCoy’s claims against it because,
Methodist maintains, McCoy’s expert reports are insufficient. We affirm.
 I

On September 6, 2009, McCoy was admitted to Methodist’s emergency
room with abdominal pain and was diagnosed with acute appendicitis. Dr. Monira
Hamid-Kundi performed a laparoscopic appendectomy on McCoy that same day,
and Robin Johnson, a Methodist employee, served as the operating-room nurse
during the procedure. The operation appeared to be successful, and McCoy was
discharged the following day. But over one year later, on October 29, 2010,
McCoy was admitted to the emergency room at Cypress Fairbanks Medical Center
with similar abdominal pain and was again diagnosed with appendicitis. He
underwent a second laparoscopic appendectomy, during which an additional 4.2
centimeters of his appendix was removed.

McCoy sued Methodist, alleging both vicarious liability for the conduct of
its employees and direct liability for hiring an inadequate surgeon and failing to
monitor her work.1 On September 14, 2011, McCoy timely served Methodist with
an expert report by Dr. W. Owen Cramer pursuant to section 74.351(a) of the
Medical Liability Act. See Tex. Civ. Prac. & Rem. Code § 74.351(a). Methodist
objected to the sufficiency of the report, which primarily addressed McCoy’s
claims against Dr. Hamid-Kundi and made only limited references to Methodist.
Methodist also objected to Dr. Cramer’s qualifications to render an expert opinion
related to the field of nursing. On November 30, McCoy served Methodist with an
expert report by nurse Cecelia C. Monge and a second report by Dr. Cramer.
Methodist again objected to sufficiency of these reports and to the qualifications of
the experts to render some of the opinions in their respective reports, and on
January 13, 2012, Methodist filed a motion to dismiss McCoy’s claims against it.
Following a hearing, the trial court granted McCoy a 30-day extension to cure any

1
McCoy also sued Dr. Hamid-Kundi for medical malpractice.

2
deficiencies in the reports. After McCoy served Methodist with a second report
from Monge and a third report from Dr. Cramer, Methodist filed a second motion
to dismiss under section 74.351(l) based on the insufficient reports. The trial court
denied the motion, and this interlocutory appeal followed.

II

A medical-malpractice plaintiff must timely serve on each defendant an
expert report that provides a fair summary of the expert’s opinions as of the date of
the report regarding (1) the applicable standards of care, (2) the manner in which
the care rendered by the physician or healthcare provider failed to meet the
standards, and (3) the causal relationship between that failure and the injury, harm,
or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(a), (r)(6); Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex. 2002) (per curiam). When a
plaintiff sues more than one defendant, the expert report must set forth the standard
of care for each defendant and explain the causal relationship between each
defendant’s individual acts and the injury. Sanjar v. Turner, 252 S.W.3d 460, 465
(Tex. App.—Houston [14th Dist.] 2008, no pet.). This includes a hospital if a
plaintiff alleges that the hospital is directly liable for its own negligence rather than
only vicariously liable for an agent or employee’s negligence. Univ. of Tex. Med.
Branch v. Railsback, 259 S.W.3d 860, 864 (Tex. App.—Houston [1st Dist.] 2008,
no pet.). The plaintiff may satisfy the statutory requirements by serving reports of
separate experts regarding different physicians and healthcare providers or
regarding different issues arising from the conduct of a physician or healthcare
provider. Tex. Civ. Prac. & Rem. Code § 74.351(i); Gannon v. Wyche, 321 S.W.3d
881, 885 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Only a physician,
however, is qualified to render an expert opinion about the element of causation.
See Tex. Civ. Prac. & Rem. Code §§ 74.351(r)(5)(C), 74.403(a).

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 In American Transitional Care Centers of Texas, Inc. v. Palacios, the
supreme court explained that when considering a motion to dismiss a healthcare-
liability claim because of insufficient expert reports, “[t]he issue for the trial court
is whether ‘the report’ represents a good-faith effort to comply with the statutory
definition of an expert report.” 46 S.W.3d 873, 878–79 (Tex. 2001). To constitute a
“good-faith effort,” the report must provide enough information to fulfill two
purposes: (1) It must inform the defendant of the specific conduct the plaintiff has
called into question, and (2) it must provide a basis for the trial court to conclude
that the claims have merit. Id. at 879; Gannon, 321 S.W.3d at 889. Because all the
information relevant to the inquiry is contained within the document’s four
corners, the trial court should look no further than the report itself. Palacios, 46
S.W.3d at 878. The report need not marshal all of the plaintiff’s proof, but it must
include the expert’s opinion on each of the elements identified in the statute. Id. It
must also include an explanation of the basis for the expert’s statements and link
his conclusions to the facts. Bowie Mem’l Hosp., 79 S.W.3d at 52; Gannon, 321
S.W.3d at 897. A report that merely states the expert’s conclusions about the
standard of care, breach, and causation does not satisfy the Palacios test and
therefore does not meet the statutory requirements. Palacios, 46 S.W.3d at 879;
Bowie Mem’l Hosp., 79 S.W.3d at 53. If a sufficient expert report has not been
served within the statutory period as to any defendant, the trial court must, on the
motion of the affected defendant and subject to subsection (c), 2 enter an order
dismissing the claim with prejudice and awarding the defendant reasonable
attorney’s fees and costs. Tex. Civ. Prac. & Rem. Code § 74.351(b).

2
If an expert report has not been timely served because elements in the report are found
deficient, the trial court may grant one 30-day extension to the claimant to cure the deficiency.
Tex. Civ. Prac. & Rem. Code § 74.351(c). As discussed above, the trial court granted McCoy a
30-day extension before he offered the reports that are the subject of this appeal.

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 We review a trial court’s denial of a motion to dismiss under section
74.351(l) for an abuse of discretion. See Palacios, 46 S.W.3d at 878. A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. Larson v. Downing, 197 S.W.3d 303,
304–05 (Tex. 2006) (per curiam). When reviewing matters committed to the trial
court’s discretion, we may not substitute our judgment for that of the trial court.
Bowie Mem’l Hosp., 79 S.W.3d at 52. But when the expert’s report’s conclusory
statements do not satisfy the two purposes identified in Palacios, section 74.351(l)
affords the trial court no discretion but to conclude that the report does not
represent a good-faith effort to provide a fair summary of the statutory elements.
Palacios, 46 S.W.3d at 880.

In its sole issue on appeal, Methodist argues the expert reports of Dr. Cramer
and Monge do not evidence a good-faith effort to satisfy the requirements of
section 74.351(r)(6), and therefore the trial court abused its discretion by denying
Methodist’s motion to dismiss McCoy’s claims against it. See Tex. Civ. Prac. &
Rem. Code § 74.351(l).

A

Dr. Cramer is an expert in general surgery and specifically in diagnosing and
treating patients with appendicitis. In his report, Dr. Cramer explains that the
standard of care applicable to a general surgeon performing a laparoscopic
appendectomy “requires the entire appendix be removed.” He further opines that
Dr. Hamid-Kundi’s care fell below that standard because she “failed to remove the
entire appendix during her appendectomy of September 6, 2009,” and that Dr.
Hamid-Kundi’s substandard care “led directly to a recurrent episode of acute
appendicitis.” Specifically, Dr. Cramer explains, “Because the appendix was not
fully removed bacteria was able to enter the remaining portion of the appendix and

5
it subsequently became infected. If Mr. McCoy did not have an appendix, like he
thought, there is no chance that it could become infected.”

Following this explanation, Dr. Cramer continues:

Lastly, if Dr. Monira Hamid-Kundi had a contractual relationship with
San Jacinto Methodist Hospital, which is something that I cannot
determine by review of the medical records, then San Jacinto
Methodist Hospital would similarly be liable for the substandard acts
of Dr. Hamid-Kundi as well as the subsequent medical and surgical
intervention required to resolve the substandard care along with
additional pain and suffering. I have also reviewed the report prepared
by Cecelia C. Monge, RN, MS/HRC, DABFN, CWOCN. The
negligence of San Jacinto Methodist in her report, specifically the
negligence of Ms. Robin Johnson, caused damages to Aaron McCoy.
Those damages would be similar to those obviously of Dr. Hamid-
Kundi.
The portion of Monge’s report to which Dr. Cramer refers states:

The standard of care for San Jacinto Methodist Hospital is for the
operating room nurse to examine the specimen that was removed and
verify that is [sic] was the entire appendix. If it was not, the operating
room nurse needs to bring it to the attention of the surgeon performing
the operation. Clearly Mr. McCoy’s entire appendix was not removed
and San Jacinto Methodist breached their [sic] standard of care by the
operating room nurse not bringing that fact to the attention of the
surgeon.
Monge also notes that, according to McCoy’s medical records, Johnson was the
operating-room nurse during the surgery. Monge expresses no opinion as to
causation in her report, nor was she qualified to. See Tex. Civ. Prac. & Rem. Code
§§ 74.351(r)(5)(C), 74.403(a).

B

With respect to McCoy’s vicarious-liability claims, Methodist argues Dr.
Cramer’s statement that Johnson’s alleged negligence “caused damages” is
conclusory. Alternatively, Methodist contends that the opinion Monge provides in
6
her report effectively required Johnson to engage in the unauthorized practice of
medicine.

1

Methodist alleges that Dr. Cramer’s opinion is conclusory as to the causal
relationship between Johnson’s conduct and McCoy’s injury because “Dr. Cramer
gives no supporting discussion, reason, or factual detail.” This argument is
unpersuasive. When determining whether expert reports represent a good-faith
effort to satisfy the statutory requirements, we consider them cumulatively rather
than in isolation. See Tex. Civ. Prac. & Rem. Code § 74.351(i).

In Dr. Cramer’s report, he opines that Dr. Hamid-Kundi should have
removed McCoy’s entire appendix and that the failure to do so caused McCoy’s
subsequent case of appendicitis. In Monge’s report, she asserts that Johnson should
have examined the specimen that Dr. Hamid-Kundi removed and verified that it
was the entire appendix. If it was not, Johnson should have brought that to Dr.
Hamid-Kundi’s attention. When read together, the reports allege that if Johnson
had realized the specimen was not McCoy’s entire appendix and informed Dr.
Hamid-Kundi of that fact, Dr. Hamid-Kundi should have removed the remainder of
the appendix before concluding McCoy’s surgery. This allegation constitutes a
“good-faith effort to provide a fair summary” of the causal relationship between
Johnson’s actions and McCoy’s injury. See Palacios, 46 S.W.3d at 878–79; see
also Martin v. Abilene Reg’l Med. Cntr., 2006 WL 241509, *4–5 (Tex. App.—
Eastland 2006, no pet.) (mem. op.) (reaching a similar conclusion by reading a
nursing expert’s report together with a physician expert’s report, even though the
physician’s report did not expressly address causation as to the nurse).

7
 2

Methodist also argues that, according to Monge’s opinion, Johnson had a
duty to recognize and report a “strictly medical condition” which would
“effectively require Nurse Johnson to engage in the unauthorized practice of law.”

To support this argument, Methodist relies on Methodist Hospital v.
German, 369 S.W.3d 333 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). In
that case, the First Court of Appeals determined that the standard of care attributed
to the hospital’s nurse by the plaintiff’s physician expert would have required them
to render a medical diagnosis and thus engage in the unauthorized practice of
medicine. Id. at 342. For that reason, the court held, the expert’s testimony
amounted to no evidence of the nurse’s applicable standard of care. Id. at 343.

But German is an appeal from a jury verdict rather from the denial of a
motion to dismiss under chapter 74. For McCoy to avoid dismissal in this case, the
information in the reports do not have to meet the same requirements as the
evidence offered in a summary-judgment proceeding or at trial. See Palacios, 46
S.W.3d at 879. As the supreme court has explained, the legislature intended the
expert-report requirements “to deter baseless claims, not to block earnest ones.”
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). Based on the expert
reports McCoy provided from Dr. Cramer and Monge, the trial court could have
reasonably determined that McCoy’s claims were not baseless and that he was
entitled to proceed with his case. See id. (“[The appellee] demonstrated to the trial
court that at least one of her alleged theories—vicarious liability—had expert
support. She cleared the first hurdle, and the appeals court correctly recognized her
right to have the entire case move forward.”).

And despite Methodist’s arguments to the contrary, we do not conclude that
Johnson would have had to engage in the unauthorized practice of medicine to
8
determine whether the specimen was McCoy’s entire appendix. The Medical
Practice Act defines the term “practicing medicine” as “the diagnosis, treatment, or
offer to treat a mental or physical disease or disorder or a physical deformity or
injury by any system or method, or the attempt to effect cures of those conditions.”
Tex. Occ. Code § 151.002(a)(13). The Nursing Practice Act defines “professional
nursing” as “the performance of an act that requires substantial specialized
judgment and skill, the proper performance of which is based on knowledge and
application of the principles of biological, physical, and social science.” Tex. Occ.
Code § 301.002(2).

In German, the standard at issue would have required nurses to diagnose a
medical condition—namely, a rare adverse reaction to heparin called heparin-
induced thrombocytopenia—which would have required the unauthorized practice
of medicine. See 369 S.W.3d at 337, 342–43. In this case, however, the standard of
care proposed by Monge required Johnson to determine whether the specimen was
McCoy’s entire appendix, not to diagnose or treat a medical condition. This
standard can reasonably be understood to require the performance of an act that
requires substantial specialized judgment and skill based on knowledge and
application of the principles of biology, which would constitute professional
nursing. See Tex. Occ. Code § 301.002(2). And again, expert reports need not meet
the same requirements as evidence offered in a summary-judgment proceeding or
at trial to avoid dismissal. See Palacios, 46 S.W.3d at 879.

Thus, we conclude the trial court did not abuse its discretion by determining
that the expert reports constituted a good-faith effort to comply with section
74.351(r)(6) as to McCoy’s vicarious-liability claim against Methodist.3

3
Because the expert reports were sufficient as to McCoy’s vicarious-liability claims, we
need not address the reports’ sufficiency as to McCoy’s direct-liability claims against Methodist.
9
 ***

Accordingly, we conclude that the trial court did not abuse its discretion by
denying Methodist’s motion to dismiss and we affirm the trial court’s order.

/s/ Jeffrey V. Brown
Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.

See Potts, 392 S.W.3d at 630–31 (holding that when expert reports are sufficient as to at least
one of alleged theory of liability, the plaintiff has the right to have the entire case move forward).

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