In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00338-CV
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W. BRYAN SIMS, Appellant
V.
STEPHANIE KEMMERLING, Appellee
_______________________________________________________ ______________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-191,821
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MEMORANDUM OPINION
The trial court overruled objections to expert reports and denied a motion to
dismiss filed by a health care provider. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(9) (West Supp. 2012); see also Tex. Civ. Prac. & Rem. Code Ann. §
74.351 (West 2011). In his first issue, W. Bryan Sims contends jurisdiction is
proper in this Court. In his second issue, Sims argues the expert reports offered by
Stephanie E. Kemmerling are wholly inadequate as to breach and causation.
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Sims contends this case falls within the purview of Chapter 74 of the Civil
Practice and Remedies Code because Kemmerling has brought a health care
liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West
Supp. 2012). He seeks a dismissal with prejudice of all of Kemmerling’s claims.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). Kemmerling agrees that her
suit includes allegations of negligence that present a health care liability claim. But
she contends her suit includes allegations of statutory sexual exploitation and
common law battery that are not health care liability claims subject to the Texas
Medical Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13),
81.002 (West 2011).
The accelerated appeal authorized by section 51.014(a)(9) provides for
interlocutory appellate review of the trial court’s denial of Sims’s motion to
dismiss Kemmerling’s health care liability claim for failure to timely provide an
expert report. Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9), 74.351(b). An
“expert report” for purposes of section 74.351(b) is a report that “provides a fair
summary of the expert’s opinions as of the date of the report regarding the
applicable standards of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standards, and the causal
relationship between the failure and the injury, harm, or damages claimed.” Tex.
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Civ. Prac. & Rem. Code Ann. §§ 74.351(b), (r)(6). Section 51.014(a)(9) grants this
Court appellate jurisdiction to review the trial court’s order. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(9).
In reviewing the trial court’s decision regarding the adequacy of an expert
report, an appellate court considers whether the trial court could reasonably
determine that the report represents a good-faith effort (1) in informing the
defendants of the specific conduct the plaintiff calls into question and (2) in
providing a sufficient basis for the trial court to determine the claims have merit.
See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79
(Tex. 2001); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). A report
need not cover every alleged theory to make the defendant aware of the specific
conduct the plaintiff calls into question. Certified EMS, Inc. v. Potts, No. 11-0517,
2013 WL 561471, at *4 (Tex. Feb. 15, 2013). A health care liability claim that
contains at least one viable liability theory -- as evidenced by an expert report
meeting the statutory requirements -- is not frivolous. Id. at *5.
Kemmerling supplied a report and a supplemental report by Cissi Wimberly
Oloomi, a family nurse practitioner. In the report Oloomi states the standard of
care requires an advance practice nurse to conform to the Texas Nurse Practice
Act. According to Oloomi, the standards of care require that a nurse implement
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measures to promote a safe environment for clients and maintain professional
boundaries, but Sims violated the Texas Nurse Practice Act and breached the
standard by engaging in sexual contact with Kemmerling. The standard of care
requires that the nurse know the rationale for and the effect of medication and
treatment, and properly manage a client’s records, but Sims breached these
standards by providing medication without adequate documentation or assessment,
and without making appropriate notes in the clinical records. In Oloomi’s opinion
the standard of care prohibits a nurse from practicing outside the scope of practice
for a nurse practitioner but Sims breached the standard by engaging in the
treatment of mental health services without having been properly credentialed to
make the diagnosis or treat the condition. According to Oloomi, Sims violated a
Nursing Board Position Statement that nurses should not provide treatment to an
individual with whom they have a close personal relationship; the standard of care
required him to cease treating Kemmerling.
Kemmerling also provided a report and a supplemental report by Fred R.
Bakht, M.D. Dr. Bakht agrees with and incorporates Nurse Oloomi’s statements
regarding the standard of care and its breach. “[N]othing in the health care liability
statute prohibits an otherwise qualified physician from relying on a nurse’s report
in the formation of the physician’s own opinion.” Kelly v. Rendon, 255 S.W.3d
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665, 676 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Dr. Bakht further states
that “[t]he violations of boundaries by Nurse Sims and engaging in sexual contact
between patient S.K. (including sexual intercourse) was inappropriate under
various statutes and codes constituted unprofessional conduct.” The experts’
reports state that Sims should not have commenced an intimate relationship with a
patient and that once he did so he should have ceased providing treatment to her.
In addition to the inappropriate personal relationship between the nurse and
his patient, Oloomi describes breaches of the standard of care concerning Sims’s
decisions regarding Kemmerling’s treatment. Dr. Bakht also discusses how Sims
departed from the standard of care by attempting to treat a mental disorder without
an appropriate evaluation. He does not detail how the failure caused harm to the
patient, separate from the improper relationship, but a report need not cover every
theory alleged by the plaintiff. The trial court may deny the motion to dismiss if
the plaintiff provides a report that is adequate as to any of the theories alleged.
Potts, 2013 WL 561471, at *4.
The expert must link conclusions to the facts. Jelinek v. Casas, 328 S.W.3d
526, 539-40 (Tex. 2010) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
Dr. Bakht explains that but for the inappropriate crossing of professional
boundaries, the sexual contact between Sims and Kemmerling would not have
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occurred, and had the sexual conduct been avoided, to a reasonable degree of
medical probability the feelings of shame and guilt, depression and eating
disorders would not have occurred. According to Dr. Bakht, these conditions
resulted in impairment of social and intellectual functioning in Kemmerling’s
relationships and daily life. He states that Kemmerling’s injuries are a foreseeable
consequence of the inappropriate relationship with a patient when the relationship
ceases. Dr. Bakht’s explanation of how and why Sims’s breach of the standard of
care caused injury to Kemmerling provides a sufficient basis for the trial court to
determine that the claim has merit. Jelinek, 328 S.W.3d at 540; Palacios, 46
S.W.3d at 879; see Potts, 2013 WL 561471, at *5. The trial court’s order denying
the motion to dismiss is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on January 17, 2013
Opinion Delivered March 21, 2013
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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