Legend Oaks–-South San Antonio, LLC D/B/A Legend Oaks Healthcare and Rehabilitation Center–-South San Antonio v. Emma Molina on Behalf of the Estate of Adella Rocamontes

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00289-CV

LEGEND OAKS-SOUTH SAN ANTONIO, LLC d/b/a Legend Oaks Healthcare and
Rehabilitation Center—South San Antonio,
Appellant

v.

Emma MOLINA on Behalf of the Estate of Adella Rocamontes,
Appellee

From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-17554
Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice

Delivered and Filed: February 18, 2015

AFFIRMED

Legend Oaks-South San Antonio, LLC appeals the trial court’s order denying its motion

to dismiss plaintiff’s health care liability claims. Legend Oaks argues the trial court abused its

discretion because the expert was not qualified to render the report and because the report did not

adequately address the causal relationship between the alleged breaches in the standard of care and

the decedent’s death. We affirm the trial court’s order.
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BACKGROUND

Adella Rocamontes died on February 21, 2012, after having spent the previous five months

in various health care facilities, including three stays at Legend Oaks.

Rocamontes was admitted to Metropolitan Methodist Hospital on September 21, 2011,

complaining of abdominal pain radiating to her back and weight loss. 1 She was eighty-five years

old, and her medical history included diagnoses of Type II diabetes, hypertension, permanent

pacemaker, hypothyroidism and shingles of the lower extremity, gastroesophageal reflux disease,

anemia, peripheral neuropathy, and chronic renal disease. While a patient at Metropolitan

Methodist, Rocamontes suffered a fractured left tibia. On September 28, she had surgery to repair

the fracture. Wound care orders required cleansing and dressing changes to the surgical incision

every other day.

Rocamontes was discharged to Legend Oaks for rehabilitation on October 4, 2011. On

admission to Legend Oaks, Rocamontes had a foley catheter and “Foley care” was ordered every

shift. The pre-admission notes stated dressing changes to the surgical site “shin area” were

required every other day. Rocamontes was not walking and required assistance for transfers and

bed mobility.

Rocamontes remained at Legend Oaks for thirty-five days. Dr. Uribe’s report states he

found no records documenting Rocamontes’s fluid intake and output. He states that Legend

Oaks’s records do not contain an assessment of the surgical wound on her left tibia on admission

or any nursing notes describing the wound or its appearance during those thirty-five days at Legend

1
Because our review of the adequacy of the expert’s report is limited to the four corners of the report, the facts recited
in this opinion are taken from the report. See Peterson Reg’l Med. Ctr. v. O’Connell, 387 S.W.3d 889, 895-96 (Tex.
App.—San Antonio 2012, pet. denied). We note that Legend Oaks contends the expert has not reviewed all the
relevant documents and contends the report contains factual misstatements of the contents of some of the records.
Nevertheless, Legend Oaks concedes that for the purpose of this appeal, we assume the facts are as stated in the report.
See id.

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Oaks. 2 Nor are there any wound care records or notes reflecting dressing changes of the surgical

wound during this period of time. A non-pressure skin report dated November 7 states the skin

surrounding the surgical site was normal.

The following day, November 8, 2011, Rocamontes was transferred to Nix Hospital. 3

Although Legend Oaks’s records are unclear about the reason for the transfer, the Nix’s records

indicate Rocamontes had a severe bladder infection, the surgical wound had pus draining from the

incision, and her leg was red and swollen. Cultures of the wound were positive for Methicillin-

resistant Staphylococcus aureuis (MRSA) infection.

Rocamontes returned to Legend Oaks on December 8 with orders for Wound Vac dressing

changes to the infected surgical wound three times a week. However, eight days later, on

December 16, she was found confused and slurring her speech and was taken to the Nix Riverwalk

Clinic. Testing revealed Rocamontes had extremely low blood sugar and was severely acidotic,

and the admitting diagnosis was severe sepsis. She was also diagnosed with disseminated

intravascular coagulation, a condition commonly associated with sepsis, and physician notes stated

she had severe sepsis, severe metabolic acidosis, and respiratory failure.

After she was stabilized, Rocamontes was transferred to a hospital with the chief

complaints of an unhealed surgical wound with hardware exposure and severe sepsis. She was

started on dialysis for renal failure as a result of the infection. The hardware was removed from

Rocamontes’s infected left leg, and on January 23, 2012, she underwent a skin graft from the lower

abdomen and groin area to cover the open wound to her leg.

2
A pressure skin condition report prepared on Rocamontes’s admission to Legend Oaks states the surgical site is on
Rocamontes’s left hip (instead of left tibia) and says the incision is clean. Various notes throughout Rocamontes’s
first stay at Legend Oaks refer to a surgical wound of the “left hip” and “left thigh” and state that the incision was
healed.
3
According to Dr. Uribe’s report, after Rocamontes had been transferred to the Nix, Legend Oaks’s nursing staff
continued to make notes “documenting” that Rocamontes was assisted with bed mobility and transfers and that her
skin was within normal limits.

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Rocamontes was discharged from Nix Hospital back to Legend Oaks on January 27 with

diagnoses of severe sepsis, acute renal failure, and disseminating intravascular coagulation.

Physician’s orders included cleaning the graft site and surgical site every other day and dialysis

three days a week. Dr. Uribe states that it appears from Legend Oaks’s records that the nursing

staff completely ignored the graft site over the next twelve days while Rocamontes was at the

facility.

Legend Oaks’s records indicate that on February 2, Rocamontes became short of breath

and was given oxygen. She was then sent to the dialysis center for most of the day. However,

Legend Oaks’s records do not reflect that Rocamontes’s treating physician or the dialysis center

were notified of her decreased oxygen saturation. Dr. Uribe states the records do not reflect that

any effort was made to identify the problem that resulted in her needing oxygen or to initiate a

plan of care for Rocamontes regarding administration of oxygen. On February 8, Rocamontes was

reported to be lethargic and her oxygen saturation level was low. She was transferred to Nix

Hospital, where she was unresponsive on admission. Notes on admission to Nix state the wound

at the graft site had heavy serous drainage and the surrounding skin was warm and moist.

Rocamontes’s condition continued to deteriorate and she was admitted to hospice care on

February 20. She died on February 21, 2012. The death certificate states she died of complications

of a tibia fracture.

Emma Molina, as representative of Rocamontes’s estate, filed a health care liability suit

against Legend Oaks on October 21, 2013. Molina served on Legend Oaks an expert report and a

supplemental report prepared by Eduardo Javier Uribe M.D., together with Dr. Uribe’s curriculum

vitae, within the 120 days required by section 74.351 of the Texas Civil Practice and Remedies

Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014). Dr. Uribe’s report

asserted that Legend Oaks and its nursing staff breached the standard of care by failing to develop
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and implement a comprehensive care plan, failing to properly care for and document Rocamontes’s

surgical wounds, and failing to provide proper foley catheter care and monitoring. He concluded

that these breaches proximately caused Rocamontes to suffer the renal failure and sepsis and

caused her death. He further concluded that the nursing staff’s failure to develop a comprehensive

care plan and properly monitor her condition caused them to fail to identify signs of deterioration

or report them, thus delaying Rocamontes’s transfer to the hospital until she was in crisis and

unable to recover.

Legend Oaks timely objected to Dr. Uribe’s qualifications and to the sufficiency of the

reports, and moved to dismiss the suit. The trial court heard Legend Oaks’s objections to the report

and supplemental report and subsequently signed an order overruling the objections and denying

the motion to dismiss. Legend Oaks timely appealed. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(9) (West 2015).

THE SECTION 74.351 EXPERT REPORT REQUIREMENT

A health care liability claimant must timely provide each defendant health care provider

with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2014). The

report must provide a fair summary of the expert’s opinions as of the date of the report regarding

the applicable standards of care, how the health care provider failed to meet the standards, and the

causal relationship between that failure and the injury, harm, or damages claimed. Id.

§ 74.351(r)(6). The report must be prepared by a person qualified to testify about the standard of

care and the causal relationship between the alleged departure from that standard and the injury,

harm, or damages claimed. Id. § 74.351(r)(5). The trial court may not dismiss the suit if the report

represents a good faith effort to comply with the expert report requirement. Id. § 74.351(l); see

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002) (per curiam). A report constitutes

a “good faith effort” if it provides enough detail to inform the defendant of the specific conduct
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being questioned and provides a basis for the trial court to conclude the claim has merit. Jelinek

v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873, 879 (Tex. 2001). The claimant is not required to present evidence in the report as

if he were actually litigating the merits. Palacios, 46 S.W.3d at 879. And the report may be

informal in that the information in the report does not need to meet the same requirements as the

evidence offered in a summary judgment proceeding or trial. Id. If the report satisfies these

requirements as to any one theory of liability, the claimant is entitled to proceed with the suit

against the health care provider and the motion to dismiss should be denied. Certified EMS, Inc.

v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).

On appeal, Legend Oaks challenges Dr. Uribe’s qualifications as an expert and the

sufficiency of his report on the issue of causation. We review the trial court’s ruling on Legend

Oak’s motion to dismiss for an abuse of discretion. Jelinek, 328 S.W.3d at 539; Palacios, 46

S.W.3d at 877.

QUALIFICATIONS

Legend Oaks argues Dr. Uribe is not qualified to testify about the alleged breaches of the

standard of care or about the causal relationship between the alleged breaches and Rocamontes’s

death. A person may qualify as an expert witness on the issue of whether a health care provider

that is not an individual departed from accepted standards of care if the person (1) 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 (2) is qualified on the basis of training or

experience to offer an expert opinion regarding those standards. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(5)(B) (West Supp. 2014); § 74.402(b) (West 2011). In determining if the witness

is qualified on the basis of training and experience, the court considers whether the witness (1) is

certified by a licensing agency of one or more states of the United States or a national professional
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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 services relevant to

the claim. Id. § 74.402(c).

In order to give opinion testimony about the causal relationship between the injury, harm,

or damages claimed and the alleged departure from the applicable standard of care in any health

care liability claim, an expert must be “a physician who is otherwise qualified to render opinions

on such causal relationship under the Texas Rules of Evidence.” Id. § 74.351(r)(5)(C); see also

id. § 74.403(a). Under the Texas Rules of Evidence, “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702; see also Broders v. Heise, 924

S.W.2d 148, 153 (Tex. 1996). “The qualification of a witness as an expert is within the trial court’s

discretion. We do not disturb the trial court’s discretion absent clear abuse.” Broders, 924 S.W.2d

at 151 (internal citations omitted).

Dr. Uribe’s curriculum vitae shows that he has been practicing medicine since 1986. He

did his internship in internal medicine and a residency in family practice. Dr. Uribe has been

practicing family medicine for his entire career, and he has worked in San Antonio as a hospitalist

since 2004. Dr. Uribe’s report states that he is Board Eligible for the American Board of Family

Practice and that he is currently practicing as a hospitalist with a specialty in family medicine.

Dr. Uribe’s report states that a substantial part of his practice involves the treatment of

geriatric patients and that he has cared for and supervised the care of hundreds of elderly patients

such as Rocamontes with multiple diagnoses, both in nursing homes and in acute care settings. He

states that he has provided care for the patients, including evaluating, planning implementation,

supervision of nursing staff and evaluation of care. The report states that Dr. Uribe has in the past
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and was at the time of the report managing elderly patients with diabetes, hypertension, sick sinus

syndrome, pacemakers, shingles, renal disease, and infections, both in long term care and in acute

care settings.

The report states that by virtue of his training and experience, Dr. Uribe has knowledge of

the standards of post-operative care that should have been provided to Rocamontes. He states he

is familiar with the standard of care in Texas applicable to nurses for the diagnosis, assessment

and treatment of geriatric residents post-surgery for fractures related to falls and the risks

associated with the immobile geriatric resident with multiple diagnoses including diabetes,

hypertension, and sick sinus syndrome resulting in permanent pacemaker placement. He also

states that he has knowledge of the standard of care for nurses caring for patients at risk for

decubitus ulcers and infection of wounds post-operatively, and is qualified to render opinions

regarding the provision of Foley catheter care and wound care for nursing home patients similar

to Rocamontes.

An expert physician is not required to have practiced in every medical discipline involved

in the care of the patient, so long as he has practical knowledge and experience of the standard of

care under circumstances similar to those confronting the defendant and in the areas on which he

gives his opinion. See Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied). Further, the care and treatment of open wounds and the prevention of infection are

subjects “common to and equally recognized and developed in all fields of practice,” thus any

physician familiar with and experienced in the subject may testify as to the standard of care. Khan

v. Ramsey, No. 01-12-00169-CV, 2013 WL 1183276, at *5-6 (Tex. App.—Houston [1st Dist.]

Mar. 21, 2013, no pet.) (mem. op.); Keo, 76 S.W.3d at 732; Garza v. Keillor, 623 S.W.2d 669, 671

(Tex. Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) (“[T]he standard of care in the

infection process . . . is common to and equal in all fields of medical practice”).
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The curriculum vitae and report reflect that Dr. Uribe has substantial training and

experience in treating, managing the care of, and directing nurses in the care of elderly patients

with some of the pre-existing medical conditions that Rocamontes had, both in acute care settings

and in nursing homes. The report demonstrates his familiarity with the nursing standard of care

for preparing and implementing a plan of care for a patient such as Rocamontes, for preventing

ulcers and infections, and for providing foley catheter care. And, the report and curriculum vitae

reflect that at the time the claim arose and the report was prepared, Dr. Uribe was actively

practicing health care in rendering health care services relevant to the claim. Based on the reports

and curriculum vitae, the trial court could have reasonably found that that Dr. Uribe was qualified

to give an expert opinion on the issue of whether Legend Oaks departed from accepted standards

of care in this case. See, e.g., Hillcrest Baptist Med. Ctr. v. Payne, No. 10-11-00191-CV, 2011

WL 5830469, at *7 (Tex. App.—Waco Nov. 16, 2011, pet. denied) (mem. op.).

When a trial court finds for purposes of chapter 74 that a physician is qualified to give his

opinion about the standard of care for a certain procedure, it is reasonable for the trial court to

conclude that the physician is qualified to opine on the causal relationship between the failure to

meet that standard and the resulting harm. See id.; Whisenant v. Arnett, 339 S.W.3d 920, 927 (Tex.

App.—Dallas 2011, no pet.). Because Dr. Uribe’s report demonstrates his training, knowledge,

and experience with familiarity with the issues involved in the underlying claim, the trial court

also could reasonably have concluded that Dr. Uribe is qualified to state his opinion as to the

causation element.

We hold the trial court did not abuse its discretion in denying the motion to dismiss on the

ground that Dr. Uribe was not qualified to render the opinions he gave.

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CAUSATION

In its second issue, Legend Oaks argues the trial court should have dismissed the suit

because Dr. Uribe’s report fails to meet the expert report requirement on the issue of causation. A

chapter 74 expert report must provide a fair summary of the expert’s opinions regarding the causal

relationship between the failure to meet the applicable standards of care and the injury, harm, or

damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). It is not sufficient for the

expert to conclusorily opine that the breach caused the injury. Jelinek, 328 S.W.3d at 539. He

must explain the basis of his statements and link his conclusions to the facts. Id. at 540. However,

because one of the purposes of the expert report requirement is to provide a basis for the trial court

to conclude the claims have merit, the expert report needs to meet the statutory requirements only

as to one liability theory. Certified EMS, 392 S.W.3d at 630-31. If the expert reports shows that

at least one of the alleged theories of liability has expert support, the claim is not frivolous and the

entire case should move forward. Id. at 631; see Nexion Health at Duncanville, Inc. v. Ross, 374

S.W.3d 619, 626 (Tex. App.—Dallas 2012, pet. denied) (holding report need not be sufficient as

to, or even address, each specific act of negligence pleaded in order to satisfy expert report

requirement).

Dr. Uribe’s report addresses Legend Oaks’s alleged negligence in three areas: the initiation

and implementation of a comprehensive plan of care, wound care, and care for a resident with a

foley catheter. He concludes that Legend Oaks’s nursing staff’s breaches of the standard of care

in each of these areas contributed to Rocamontes’s death.

Initially, Dr. Uribe explains that the standard of care for the nurses at Legend Oaks included

initiating and implementing a comprehensive plan of care for Rocamontes. On admission, the

nursing staff should establish a plan of care that identifies the risks unique to the resident and

specifies the interventions required by staff to proactively care for the resident and meet the goals
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of the resident. The plan of care is a “road map” that allows the nursing home to be proactive,

provide appropriate interventions, have a tool to communicate with other staff members, and

identify and prevent complications. The standard of care then requires implementation of the plan

by careful and frequent monitoring of the resident’s physical and mental conditions, and assessing

and reporting to the treating physician on her ongoing condition and any changes.

The report states that Legend Oaks “breached the standard of care by failing to identify on

a systematic plan of care the risk for infection, dehydration, pacemaker identification, hydration

needs or increase metabolic needs, clinical conditions and the primary risk factors associated

[with] diabetes, infection, foley catheters, wound care, oxygen, dialysis, need for increase in

caloric intake, urinary stasis, constipation, or fluid balance with Rocamontes on any of the

admissions to Legend Oaks.” Dr. Uribe states that Legend Oaks’s records are “very poor” and

“never reflect concisely or accurately the patient’s care” while she was at the facility. The report

details numerous instances of Legend Oaks failing to evaluate, monitor, document, or report

Rocamontes’s status. One such instance was Rocamontes’s lethargy and decreased oxygen

saturation on February 2, which Dr. Uribe states should have been recognized as a sign of acute

septic shock. Because Legend Oaks failed to initiate and implement a comprehensive care plan,

the nursing staff failed to identify this acute change in her condition, failed to promptly notify her

physician, and failed to adequately respond to it. Dr. Uribe states that prompt treatment of septic

shock “was crucial to survival.” He concludes that “[t]he failure of the nursing staff at Legend

Oaks to identify signs of deterioration and lack of skills in responding to Rocamontes[’] acute

change in condition, proximately lead [sic] to the delay in transferring her to the hospital . . . and

proximately caused her death.”

Dr. Uribe’s report also states in detail the standard of care for nursing home residents with

surgical wounds. He explains that such residents are at high risk of infection and proper wound
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care, skin care, and turning are critical to prevent skin breakdown and infection of open wounds.

He explains that wounds in the geriatric population heal more slowly than those in younger patients

and lists factors such as inadequate nutritional intake, diabetes, and immobility that may delay

healing or heighten the risk of infection. The standard of care is for the nursing staff to evaluate

and document the surgical site upon admission. Then, at every shift throughout the healing

process, the nursing staff should assess and document the skin and any wounds or sores and

document a list of measures, including the anatomic location of the wound or sore, the appearance

of the wound, to include the size and depth of the incisions, the surrounding skin color and

temperature, the surrounding edges, whether there is odor, pain, or tenderness, and whether there

is any drainage. The standard of care requires the nursing staff to document and notify the

physician at the first signs of infection, which include redness, bogginess of tissue that indicates

fluid in the tissue, swelling, and drainage of the wound, lack of tissue growth or regenerations,

fever and pain among other signs and symptoms. The standard of care requires wound care and

cleaning in accordance with doctor’s orders.

The report recites numerous breaches of the standard of care of post-surgical wounds by

Legend Oaks at each admission, including failing to properly assess and document the wounds on

admission, failing to follow the physician’s orders for wound care, and failing to assess and

document the condition of the skin and surgical wounds at every shift. Dr. Uribe states that the

records of Rocamontes’s initial admission to Legend Oaks fail to even identify the surgical site.

He also states that it appears from the records that the nursing staff completely ignored the surgical

site and the grafting cite when she returned to Legend Oaks. Dr. Uribe states that although wound

care was ordered at every admission, the Legend Oaks’s nursing staff never properly assessed the

correct surgical site and there are no wound care records regarding any cleaning or dressing

changes of the surgical wound on her left tibia. The staff failed to perform and document skin and
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wound assessments, and failed to timely communicate changes in Rocamontes’s physical

condition to other staff members or her physician. The day before Rocamontes’s first transfer

back to the hospital with a red, swollen, draining, and seriously infected surgical wound, the

Legend Oaks staff records state the skin surrounding the surgical site was “normal.” Dr. Uribe’s

report states that these breaches in the standard of care proximately caused Rocamontes’s surgical

wound to become seriously infected and delayed her getting appropriate medical treatment.

According to Dr. Uribe, the infection and delayed treatment “proximately caused Rocamontes to

die of sepsis secondary to renal failure and colitis.”

Rocamontes had a foley catheter when she was admitted to Legend Oaks. Dr. Uribe’s

report explains that foley catheters are used by patients that are unable to urinate independently,

walk to the bathroom, or use a bed pan. Long term use of a foley catheter presents risks of bladder

infections and serious ascending infections of the kidneys that can lead to renal damage and failure.

The report states that “[b]acteria can be introduced by failure to keep the site clean and dry and by

the lack of fluid intake.” The standard of care requires the nursing staff to monitor fluid intake

and output, encourage fluids, assess and document the color and amount of urine output every

shift, and to keep the foley catheter site, including the perineal area, clean and dry.

Dr. Uribe’s report states the nursing staff at Legend Oaks breached the standard of care by

failing to keep Rocamontes’s perineal area clean and by failing to document her fluid intake and

urinary output. Dr. Uribe opines that as a result, when she was transferred from Legend Oaks to

Nix Hospital on November 8, Rocamontes had a “severe bladder infection due to a virulent

pathogen pseudomonas,” and this in turn caused Rocamontes to suffer renal failure and was a

proximate cause of her death.

Dr. Uribe’s report states: “It is clear that this facility failed to follow doctors [sic] orders,

failed to document and provide wound care, failed to monitor this patient’s dietary and fluid intake,
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[and] failed to report changes in the condition of this patient until she was in crisis and had to be

transferred to the hospital in critical condition. By the breach in the delineated basic standard of

care, this facility proximately caused the untimely death of Adella Rocamontes.”

We hold the trial court acted within its discretion to conclude that Dr. Uribe’s report

represents a good faith effort to provide a fair summary of his opinions regarding the applicable

standards of care, the manner in which Legend Oaks failed to meet those standards, and the causal

relationship between the failures and the harm claimed. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(l), (r)(6). Dr. Uribe’s report identifies the acts and failures that breached the standard of

care and sufficiently links those breaches to the infection of Rocamontes’s surgical wound, her

bladder infection, renal failure, and death. The report sufficiently links Dr. Uribe’s conclusions to

the facts, it gives Legend Oaks fair notice of the plaintiff’s complaints against it, and is sufficient

to have permitted the trial court to conclude there is merit to one or more of the claims. See Jelinek,

328 S.W.3d at 539; Nexion, 374 S.W.3d at 626.

CONCLUSION

Because the trial court did not err in determining Dr. Uribe was qualified as an expert

witness and in finding the report met the requirements of an “expert report,” the court did not abuse

its discretion by overruling Legend Oaks’s objections and denying the motion to dismiss. We

affirm the trial court’s order.

Luz Elena D. Chapa, Justice

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