Henry Scott Baker v. Regency Nursing and Rehabilitation Centers, Inc., Port Lavaca Nursing and Rehabilitation Center, Inc., Regency Nursing Center Partners of Port Lavaca, Ltd., Timothy McFarland, M.D., and Don Paul Bunnell, M.D.

NUMBER 13-12-00331-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

HENRY SCOTT BAKER, Appellant,

v.

REGENCY NURSING & REHABILITATION
CENTERS, INC., PORT LAVAC NURSING
AND REHABILITATION CENTER, INC.,
REGENCY NURSING CENTER PARTNERS
OF PORT LAVACA, LTD., TIMOTHY
MCFARLAND, M.D., AND DON PAUL
BUNNELL, M.D., Appellees.

On appeal from the 24th District Court
of Calhoun County, Texas.

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion on Rehearing by Chief Justice Valdez
 After considering appellee, Don Paul Bunnell, M.D.’s, motion for rehearing, we

deny the motion; however, we withdraw our opinion and judgment of July 25, 2013, and

substitute the following.

Appellant, Henry Scott Baker’s deceased father, Henry Herbert Baker (the

“deceased”), was a patient of appellees, Regency Nursing and Rehabilitation Centers,

Inc., Port Lavaca Nursing and Rehabilitation Center, Inc., Regency Nursing Center

Partners of Port Lavaca, Ltd., Timothy McFarland, M.D., and Don Paul Bunnel, M.D.

Baker appeals from the trial court’s order dismissing his cause of action against

appellees. By six issues, which we have renumbered and reorganized, Baker contends

that the trial court abused its discretion by: (1) ruling that Baker’s expert was not

qualified to render an expert report; (2) considering and relying on information outside

the four corners of the expert report and “effectively” granting summary judgment in

favor of appellees; (3) finding that the expert report was deficient; and (4) incorrectly

concluding that the statute of limitations had expired when Baker filed suit. We reverse

and remand.

I. BACKGROUND

The deceased died on June 15, 2009 at the Port Lavaca Nursing and

Rehabilitation Center (“PLNRC”). On August 10, 2011, Baker filed suit against

appellees claiming that appellees had negligently violated the standard of care and had

violated the requirements of the Texas Nursing Home Regulations because appellees

failed to ensure that the deceased: (1) “did not develop pressure sores unless his

clinical condition demonstrated that pressure sores were unavoidable”; (2) was provided

the “necessary treatment and services to promote healing, prevent infection and prevent

2
new sores from developing, when [the deceased] developed pressure sores”; (3)

“received appropriate treatment and services to correct any mental or psychological

adjustment difficulty”; (4) “received adequate supervision and assistive devices to

prevent accidents”; (5) “maintained acceptable parameters of nutritional status, such as

body weight and protein levels, unless his clinical condition demonstrated that was not

possible, and required [PLNRC] to ensure that [the deceased] received a therapeutic

diet when there was a nutritional problem”; (6) was “free of” any “unnecessary drugs”;

and (7) “received gradual dose reductions for the anti-psychotic drugs that [appellees]

prescribed to him and behavior interventions, so that [the deceased] could discontinue

use of the may anti-psychotic and psycho-active medications which [appellees] used to

control [the deceased’s] behavior.” Baker claimed that appellees and their employees,

acting within the course and scope of their employment, negligently failed to provide the

proper level of care to the deceased. Baker stated that “as a sole, direct, and proximate

result of [appellees’] negligence, and their agents or employees” the deceased suffered:

(1) “large ulcerous wounds that required hospitalization and amputation, extreme pain

and suffering, loss of enjoyment of life and his death”; (2) “malnutrition that caused

extreme pain and suffering, loss of enjoyment of life and his death”; and (3) “confusion,

diminished mental capacity, loss of the ability to speak and communicate, depression,

anxiety, fear, extreme emotional distress and loss of enjoyment of life.” Baker accused

the appellees of causing the deceased’s death by the following allegedly negligent acts

and omissions: (1) providing “inadequate assessment, evaluation, and management of

the effect on [the deceased’s] health from the combination of anti-depressant, anti-

psychotic, psycho-active, and other medications that were being administ[ered]”; (2)

3
causing the deceased “to become overmedicated”; (3) failing to maintain “a proper

regimen of exercise, physical therapy, nutrition, skin care, and personal hygiene for [the

deceased]”; (4) administering medications to the deceased “for the convenience of

[appellees], who otherwise would have been required to spend more time and energy in

caring for and treating [the deceased]”; (5) permitting “the life-threatening conditions

suffered by [the deceased] to deteriorate without rendering appropriated remedial or

curative treatment, despite knowing that if these conditions continued for any length of

time these conditions would pose a sever threat to [the deceased’s] health and life”; (6)

refusing “to take appropriate action necessary to prevent the deterioration of the life

threatening conditions”; and (7) failing to “timely and appropriately order diagnostic

and/or laboratory tests, medical procedures and/or other intervention or treatments that

could have spared [the deceased’s] right leg and life, including but not limited to

peripheral vascular testing to determine whether he suffered from arterial or venous

insufficiency, and/or arterial or venous grafts or other procedures to restore or increase

blood flow into his limbs.”

Baker filed an expert report from Lige Rushing, M.D. on November 18, 2011.

Appellees objected to the report for a variety of reasons. The trial court ordered a

supplemental report. After Baker filed a supplemental report, appellees again objected

to Dr. Rushing’s report arguing that the report did not sufficiently advise them of the

nature of Baker’s claims, that Baker’s claims were barred by the statute of limitations,

and that the deceased’s sores were “unavoidable.” 1 The trial court granted appellees’

objections and dismissed the case. This appeal followed.

1
Appellees did not file any expert reports or affidavits supporting their arguments.

4
 II. STANDARD OF REVIEW AND APPLICABLE LAW

We review the trial court’s decision on a motion to dismiss a health care liability

claim under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc.

v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001). “An abuse of discretion occurs when

a trial court acts in an arbitrary or unreasonable manner or without reference to any

guiding principles.” Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.—Texarkana

2003, pet. denied) (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)). We

may not reverse for abuse of discretion simply because we would have decided the

matter differently. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.

1985).

We may not substitute our judgment for that of the trial court concerning the

resolution of factual issues or matters committed to the trial court’s discretion. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex.1992). The appellant must “establish that the trial

court could reasonably have reached only one decision.” Id. at 840. A trial court has no

discretion in determining what the law is or in applying the law to the facts and “a clear

failure by the trial court to analyze or apply the law correctly will constitute an abuse of

discretion.” Id.

Section 74.351 requires a plaintiff to serve on each defendant physician or health

care provider whose conduct is implicated by a healthcare liability claim a curriculum

vitae of each expert listed in the report and one or more expert reports setting forth the

standard of care, breach of the standard of care, and causation. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a), (r)(6) (West 2011). An “expert report” is defined as

a written report by an expert that provides a fair summary of the expert’s
opinions as of the date of the report regarding applicable standards of

5
 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 that failure and the injury, harm, or damages claimed.

Id. § 74.351(r)(6).

A court must grant a motion to dismiss under section 74.351(b) if, after the 120-

day deadline has passed, it appears to the court that the report does not represent an

objective, good-faith effort to comply with the definition of an expert report. Id. §

74.351(l). A “good-faith effort” means that the report “provide[s] enough information

to . . . inform the defendant of the specific conduct the plaintiff has called into

question . . . [and] a basis for the trial court to conclude that the claims have merit.”

Palacios, 46 S.W.3d at 879. A report cannot constitute a good-faith effort if it omits any

of the statutory requirements. Id.

III. OBJECTIONS TO DR. RUSHING’S QUALIFICATIONS

By his first issue, Baker contends that the trial court abused its discretion in

finding that Dr. Rushing was not qualified to file an expert report. Specifically, appellees

challenged Dr. Rushing’s report in the trial court on the basis that he was not qualified to

opine regarding causation. 2

Not every licensed physician is always qualified to testify on every medical

question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). Therefore, the focus

should not be on whether the expert is a physician and instead should be on the

medical expert’s “knowledge, skill, experience, training, or education” concerning the

specific issue before the court which would qualify the expert to give an opinion on that

2
We note that on appeal, appellees do not address this issue.

6
particular subject. Broders, 924 S.W.2d at 153–54 (applying Texas Rule of Evidence

702).

In his report, Dr. Rushing stated that he is a practicing physician licensed by the

State of Texas and that he received his M.D. Degree from Baylor University College of

Medicine in Houston, Texas. Dr. Rushing received his “specialty training in internal

medicine and rheumatology at the Mayo Clinic” in Rochester, Minnesota. Dr. Rushing

is board certified in internal medicine, rheumatology, and geriatrics. Dr. Rushing stated

that “at the time of the occurrence of this case, [he] was actively engaged in the practice

of internal medicine, rheumatology, and geriatrics” and that he has continued “to

actively practice in these specialties as of [November 17, 2011, the date he wrote his

report].” Dr. Rushing stated that in order to write his report, he reviewed records from

Memorial Medical Center and PLNRC, the deceased’s death certificate, Baker’s petition

for damages, Dr. McFarland’s answer, PLNRC’s answer, and Dr. McFarland’s office

records from Coastal Medical Center.

Our review of Dr. Rushing’s curriculum vitae shows that at the time of the lawsuit,

he was certified by the American Board of Geriatrics, the American Board of

Independent Medical Examiners, the American Board of Internal Medicine, and the

American Board of Rheumatology. Dr. Rushing was also an attending physician at

Presbyterian Hospital of Dallas, Texas. Dr. Rushing was also a member of, among

other organizations, the American Geriatric Society.

In his report, Dr. Rushing explained the methodology that he used to formulate

his opinions regarding the standard of care, the breach of the standard of care, and

causation. Dr. Rushing stated that he evaluated whether “breaches in the standards of

7
care resulted in any injury to [the deceased]” by employing the “generally accepted

method for evaluating whether or not a long-term care facility, a hospital, or a

physician’s care and treatment of a patient met or fell below the accepted standards of

care.” Dr. Rushing stated that his opinions were based on his “review of the pertinent

medical records, [his] education, training, and experience as a practicing board certified

internist, geriatrician, and rheumatologist and [his] knowledge of the accepted medical

and nursing standards of care for the diagnoses, care, and treatment of the illnesses,

injuries, and conditions involved in this claim.”

In his report, Dr. Rushing set out the complex nature of the deceased’s medical

conditions upon admission to the nursing home in this case and explained that “in the

regular course of [his] medical practice” he has examined, diagnosed, and treated

“patients with complaints and diseases similar or identical” to the complaints and

diseases suffered by the deceased. Dr. Rushing stated:

During the course of my career, I have served as a primary care physician
for more than 10,000 hospitalized and nursing home patients. I have had
patients who were at high risk for pressure ulcer development like [the
deceased]. I have written orders for the prevention and the treatment of
pressure ulcers such as [the deceased] had. I have supervised the
execution of these orders by LVNs, RNs, [and] CNAs who were assigned
to provide the hands-on nursing care for my patients. I am therefore
intimately familiar with the standards of care for the RNs, LVNs, and CNAs
who were providing hands-on care for [the deceased].

As set out above, Dr. Rushing is licensed to practice medicine in Texas. He is

board certified in internal medicine and geriatrics and is actively engaged in the practice

of these specialties. He regularly engages in the diagnosis and treatment of patients

who have similar or identical conditions to those suffered by the deceased. Finally, Dr.

Rushing stated that he has treated patients in nursing homes and patients with a high

8
risk of pressure ulcers and patients who have pressure ulcers. We conclude that Dr.

Rushing has the “knowledge, skill, experience, training, or education” to opine on the

issue before the trial court on whether the appellees’ alleged breach in not providing

appropriate wound care to the deceased caused his pressure ulcers, caused the

pressure ulcers to become worse, and caused his eventual death. 3 Therefore, the trial

court abused its discretion if it determined that Dr. Rushing was not qualified to opine

regarding causation. We sustain Baker’s first issue.

IV. OBJECTIONS TO ADEQUACY OF DR. RUSHING’S REPORT

Next, by his second issue, Baker contends that the trial court relied on

information that was not contained within the four corners of the expert report and

essentially granted summary judgment in favor of appellees without proper discovery. 4

Appellees respond that Dr. Rushing’s report failed “to address the [deceased’s] medical

reports that indicated the ulcers were unavoidable and the [the deceased] was being

given palliative care. . . . .”5 Thus, according to appellees, “Dr. Rushing dodged the

critical medical causation issue determinative of whether the case is meritorious.”6 By

his third issue, Baker contends that Dr. Rushing’s report is sufficient.

3
We note that the death certificate states that the deceased died as a result of Alzheimer’s,
malnutrition, and wounds contractures.
4
Baker alleges that the trial court relied on the deceased’s medical records when determining
whether Dr. Rushing’s report was sufficient. We note that according to Baker the medical records consist
of over 2,000 pages.
5
Appellees cited Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997) to
support their argument that an expert report requires that the expert rule out other possible causes of the
patient’s injury. However, Havner concerns the reliability of an expert’s testimony at trial pursuant to an
objection under rule of evidence 702. See id. Havner does not concern an expert’s report submitted to
satisfy section 74.351. Appellees do not explain how Havner should apply to an expert report submitted
to satisfy section 74.351, and we conclude that Havner does not apply in this context.
6
On appeal, appellees cite the same cases cited to the trial court which deal with exclusion of
expert testimony pursuant to rule of evidence 702. Appellees did not acknowledge in the trial court and
on appeal that their arguments relate to testimony at trial being excluded under rule 702. Moreover,

9
A. Other Causes

Appellees complained to the trial court that Dr. Rushing failed to consider the

deceased’s medical records that state that the ulcers were unavoidable because of

other possible causes. 7 However, whether the ulcers were unavoidable is a defensive

theory that must be supported by the evidence presented at trial, and constitutes a

question of fact for the jury to determine. 8 Wisenbarger v. Gonzales Warm Springs

Rehabilitation Hospital, 789 S.W.2d 688, 690 (Tex. App.—Corpus Christi 1990, writ

denied) (stating that “[i]n a medical negligence case, when expert testimony establishes

that another physical condition or circumstance was the probable cause of the injury,

the definition of unavoidable accident must immediately follow the jury instruction

defining proximate cause” and that an “[u]navoidable accident [definition] is to be

appellees did not argue to the trial court and do not argue on appeal that rule 702 applies to an expert
report filed pursuant to section 74.351.
7
The issue of “unavoidable accident” can be raised in cases involving medical negligence. For
example, in Wisenbarger v. Gonzales Warm Springs Rehabilitation Hospital, a paraplegic patient sued
the treating health care provider because he developed “a bed sore, or decubitus ulcer” on his spine while
being treated. 789 S.W.2d 688, 690 (Tex. App.—Corpus Christi 1990, writ denied ). The jury charge
included an unavoidable accident instruction. Id. at 691–92. We stated, “An instruction on unavoidable
accident is properly submitted if any evidence shows that neither party proximately caused the incident in
question.” Id. at 92. We further explained that “in this case, in order for an instruction on unavoidable
accident to be proper, there must have been some evidence offered by an expert, or evidence from which
inferences could be made, that it was probable that Wisenbarger’s decubitus ulcer was not proximately
caused by the negligence of any party but was instead caused by some other physical condition or
circumstance.” Id.
8
See Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006) (explaining that
unavoidable accident is not an alternative theory of liability but is “an inferential rebuttal issue that
requires plaintiffs to prove the nonexistence of an affirmative defense . . .”; and must be raised by the
evidence before the definition is included in the jury charge); Lemos v. Montez, 680 S.W.2d 798, 800
(Tex. 1984) (citing Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379, 380, 151 Tex. 359 (Tex. 1952))
(“[I]f the evidence does not raise the issue that something other than the negligence of one of the parties
(to the event) caused the injuries, then it does not raise the issue of unavoidable accident” and if
“[u]navoidable accident was not raised by the evidence in this case . . . the court erred in giving the
instruction.”); see also Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 433 (Tex. 2006) (stating that
unavoidable accident instruction informs jury it may consider causes of occurrence other than negligence
of parties, including causes such as obstruction of view); Harris v. Vazquez, No. 03-07-00245-CV, 2008
Tex. App. LEXIS 4117, at *15 (Tex. App.—Austin June 5, 2008, no pet.) (documenting that the jury found
no liability on either driver where the trial court submitted unavoidable accident instruction because one
driver testified that his view was obstructed).

10
submitted [to the jury] when there is a possible causal effect of some physical condition

or circumstance, or when one of the parties to the event is incapable of negligence.”).

Here, we are examining the sufficiency of an expert report pursuant to section 74.351.

At this stage of the proceeding, no evidence has been presented, and a plaintiff is

neither required, nor expected, to present evidence in the report as if it were actually

litigating the merits. Palacios, 46 S.W.3d at 879. The report need not marshal all of the

plaintiff’s proof, but it must include the expert’s opinion on each of the following

elements: (1) standard of care; (2) breach; and (3) causal relationship. Bowie, 79

S.W.3d at 53. There is nothing in the statute requiring the plaintiff to address the

unavoidability of the patient’s condition, negate other causes of the patient’s injury, or

that allows the trial court to engage in such a fact-specific inquiry. See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351; Palacios, 46 S.W.3d at 878–79; Bowie, 79 S.W.3d at 53.

Therefore, Dr. Rushing was not required pursuant to section 74.351 to address whether

the pressure ulcers were unavoidable or rule out or negate other possible causes of the

deceased’s pressure ulcers and ultimate death. 9

Moreover, appellees cite no authority and we find none supporting a conclusion

that an expert report filed pursuant to section 74.351 must negate other possible causes

of the patient’s injury or address whether the injury is unavoidable. Therefore, the trial

court abused its discretion when it determined that Dr. Rushing’s report is insufficient

under section 74.351 on this basis. We sustain Baker’s second issue.

9
We note that Dr. Rushing stated in his report that the deceased’s pressure ulcers were
avoidable. Moreover, if the expert believed that the injury was unavoidable or that something else caused
the injury, the expert would not write a report stating that the health care provider caused the injury.

11
B. The Adequacy of Dr. Rushing’s Report

By his third issue, Baker contends that Dr. Rushing’s report met the requirements

of section 74.351 because it provided appellees with sufficient notice of the applicable

standards of care, appellees’ breaches of those standards, and causation. Appellees

respond that “[t]he only opinion expressed by Dr. Rushing’s second report is: ‘[The

deceased’s] pressure ulcers on his heel and sacral area were proximate causes of his

death.’” Appellees claim that Dr Rushing does not “mention[] any other condition, factor

or conduct which he contends is a proximate cause of [the deceased’s] death.” 10

Dr. Rushing indicated that based on his review of the medical records, when the

deceased entered the appellees’ facility, he did not have any pressure ulcers;

specifically, he did not have any “heel ulcers or sacral/coccyx ulcers.” Dr. Rushing

stated that the deceased developed these ulcers while he was appellees’ patient. Dr.

Rushing opined, “Based on the comprehensive assessment of the resident, the facility

must ensure that a resident who enters the facility without pressure sores does not

develop [them] unless the individual’s clinical condition demonstrates that they were

unavoidable and that a resident having pressure sores upon admission receive the

10
Appellees appear to acknowledge that Dr. Rushing’s report addresses causation in their brief
by stating, “Dr. Rushing ties his opinion with regard to the ulcers being a proximate cause of the death of
[the deceased] with the conduct of [appellees] by saying that [appellees] failed to prevent the
development of the pressure ulcers” and “Dr. Rushing equates his contention that the pressure ulcers
were a proximate cause of [the deceased’s] death to the notion that alleged negligence by physicians was
a proximate cause of [the deceased’s] death.” However, appellees claim that Dr. Rushing failed to state
that they “actually caused” the ulcers or that they caused the deceased’s death. Appellees complain that
Dr. Rushing merely stated that they “failed to prevent the ulcers” and “[t]his is particularly significant
because the ulcers were clinically unavoidable.” However, we have already concluded that Dr. Rushing
was not required to address whether the pressure ulcers were unavoidable. Moreover, in Dr. Rushing’s
opinion the pressure ulcers were avoidable. Appellees direct the Court to review thirty-three pages of the
deceased’s medical records. Although we have reviewed the medical records cited, we decline to rely on
appellees’ own statements in the medical records to conclude that the deceased’s wounds were
unavoidable because our duty is to examine Dr. Rushing’s report and to determine whether it is a good-
faith effort to comply with section 74.351.

12
necessary care, treatment, and services to promote healing, prevent infection, and

prevent new sores from developing.” According to Dr. Rushing, the deceased’s “clinical

condition did not demonstrate that [his] pressure ulcers were unavoidable” and the

clinical condition did indicate that “he was at high risk for the development of pressure

ulcers” due to his peripheral vascular disease, which impairs “arterial circulation to the

legs and feet.”

Dr. Rushing opined that due to the deceased’s clinical condition, the standard of

care required the nursing personnel and doctors “caring for patients like [the deceased]

with these problems” to ensure that “there is not pressure on the heels.” Dr. Rushing

stated this is best achieved by utilizing a foam rubber pad that is placed under the

patient’s lower leg. Dr. Rushing opined that in this case, the standard of care “required

that the Nursing Home and its staff provide effective pressure ulcer prevention program”

consisting of, but not limited to, “regular scheduled skin checks, documented turning

and repositioning protocol every two hours.” According to Dr. Rushing, the protocol was

not followed. Dr. Rushing stated that the standard of care required that the deceased’s

pressure ulcers be relieved. Dr. Rushing said, “The standard of care also requires that

appropriate wound documentation and wound descriptions be provided on a regular and

consistent basis so that one can assess whether the wound is getting better or worse or

just how it has responded to treatment.” Dr. Rushing stated that proper documentation

as set out in his report was not done in this case. Dr. Rushing opined that the standard

of care required medical directors of the nursing home such as Drs. McFarland and

Bunnell to ensure that the deceased had been “turned and repositioned appropriately

13
every two hours and that he had proper pressure relief for his heels and skin checks.”

This was not done for the deceased according to Dr. Rushing.

Dr. Bunnell asserts “that dismissal was [not] proper to him because [he] did not

provide medical treatment or medical care to Mr. Baker, nor did he ever have any

contact with Mr. Baker.” Dr. Bunnell also states that Dr. Rushing’s report does not

“address how [he] breached the standard of care for a medical director or explain how

anything [he] did or did not do specifically caused Mr. Baker’s death . . . .” Finally, Dr.

Bunnell claims that in our withdrawn memorandum opinion, this Court misstated the

expert’s opinion that “the standard of care required medical directors [including Dr.

Bunnell] to ensure that the deceased [Mr. Baker] had been ‘turned and repositioned

appropriately every two hours and that he had proper pressure relief for his heels and

skin checks.’”

Appellant’s petition characterizes Drs. McFarland and Bunnell as both being

medical directors of the nursing home where the deceased suffered his alleged injury. 11

In his expert report, Dr. Rushing stated that:

The standard of care for Dr. Timothy McFarland and Dr. Don Paul
Bunnell required that they provide that level of care and treatment
reasonable, prudent physicians would provide under the same or similar
circumstances. As medical directors of the nursing home, the standard of
care required that they [Drs. McFarland and Bunell] provide the
coordination of medical care in the facility. The medical directors’
“coordination role’ means that the medical director is responsible for
assuring that the facility is providing appropriate care as required. This
involves monitoring and insuring implementation of a resident care policies
[sic] and providing oversight and supervision of physician services and the
medical care of the residents. It also includes having a significant role in
overseeing the overall clinical care of patients to ensure [sic] to extend
possible care is adequate. When the medical director identifies or
receives the report of possible inadequate medical care including drug

11
Appellant’s petition also states that Dr. McFarland was the deceased’s treating physician.

14
 irregularities, he or she is responsible for evaluating the situation and
taking appropriate steps to try to correct the problem. This may include
any necessary consultation with the resident and his or her physician
concerning care and treatment. The medical directors’ coordination role
also includes ensuring the support to essential medical consultations as
needed.

The standard of care also requires that the physician provide and/or
supervise the provision of a pressure ulcer prevention program as
described earlier in this report. . . . It is . . . the physician’s responsibility to
see that such a program is in place and functioning properly. In this case,
the standard of care requires that the doctors [McFarland and Bunnell] see
to it that Mr. Baker [the deceased] was indeed being turned and
repositioned appropriately every two hours and that he had proper
pressure relief for his heels and skin checks as previously described.

The standard of care for the doctors [McFarland and Bunnell] also
requires that they have an effective pressure ulcer treatment program.
This has been described previously in this report. The ulcer treatment
program should consist of regular turning and repositioning with
documentation, pressure relief of the heels and any other pressure areas
by means of special boots, special mattresses, special wedges, pillows,
and devices to relieve pressure on the various body parts. The standard
of care also require[s] that the doctors see to it that the nursing home
keep[s] appropriate clinical records upon which the doctors can rely to
assess the clinical status of the patient, and in this case assess the
progress or lack of progress as relates to [the deceased’s] pressure ulcer
on his heel and his hip.

In his supplemental report, Dr. Rushing stated, “The care and treatment rendered

to [the deceased] by Drs. McFarland and Bunnell fell below the accepted standard in

the following ways:” (1) “Failed to prevent the development of pressure ulcers”; (2)

“Inappropriately administered medications;” (3) “Failed to keep appropriate clinical

records”; and (4) “Failed to properly assess [the deceased].”

As we understand the above-quoted portions of Dr. Rushing’s report, Dr.

Rushing believed that the standard of care required Dr. Bunnell to provide that level of

care and treatment reasonable, prudent physicians would provide under the same or

similar circumstances and that the standard of care required for doctors in Dr. Bunnell’s

15
circumstances to ensure that the deceased received proper care for his ulcers. Dr.

Rushing also stated that the standard of care required that Dr. Bunnell ensure that a

proper ulcer treatment program was in place. Throughout his report, Dr. Rushing

explained how the appellees, including Dr. Bunnell, failed to provide the proper care for

the deceased’s ulcers. Moreover, Dr. Rushing opined that the standard of care required

that Dr. Bunnell ensure that the deceased had been “turned and repositioned

appropriately every two hours and that he had proper pressure relief for his heels and

skin checks.” According to Dr. Rushing’s report, Dr. Bunnell had failed to do so. Thus,

this Court concludes that Dr. Rushing set out what standard of care Dr. Bunnel should

have followed and how Dr. Bunnell breached that standard of care. Finally, Dr. Rushing

stated that he believed that the failure to provide proper care to the deceased’s wounds

lead to a variety of injuries cumulating in the deceased’s death. Accordingly, we

conclude that Dr. Rushing’s report provided a “fair summary” of the standard of care Dr.

Bunnell was required to follow and how he breached it. See Palacios, 46 S.W.3d at 880

(explaining that a “fair summary is something less than a full statement of the applicable

standard of care and how it was breached” but must “set out what care was expected,

but not given”).

Dr. Rushing opined that the standard of care “requires that a long-term facility

must neither accept nor retain a resident whose needs they cannot meet” and that once

it was evident to the nursing home staff that the deceased’s “pressure ulcer on his heel

was getting progressively worse and that it was getting progressively worse because of

the failure to relieve the pressure on his heel. What should have been done is that the

nursing home and its staff should have notified the family and the attending physicians

16
that they were unable to meet [the deceased’s] needs” and the appellees should have

transferred the deceased “to a facility where a high level of care would be made

available and his needs could be met.” Dr. Rushing opined that the failure to transfer

the deceased to a facility better capable of dealing with the deceased’s wounds resulted

in “the progressive worsening of his heel pressure ulcer.” Dr. Rushing concluded that

the worsening of the pressure ulcers led to a lack of blood supply leading to necrotic or

decayed tissue, which then became infected. Dr. Rushing explained in specific detail

the process leading to decaying of the tissue which then led to infection and higher

caloric requirements. Dr. Rushing stated that because of the enlarging of the pressure

ulcer due to lack of care, the deceased’s caloric requirement increased “by as much as

80%” which meant, the deceased’s caloric requirement was “approximately 2400

calories.”

It is Dr. Rushing’s opinion that all appellees breached their respective standards

of care by not properly caring for the pressure ulcers especially in light of the fact that

the deceased suffered from conditions, such as the peripheral vascular disease, that

caused him to be particularly susceptible to avoidable complications such as pressure

ulcers. Dr. Rushing faulted the nurses and doctors for not utilizing the foam rubber pad,

for not turning or repositioning the deceased in order to relieve the pressure to his hip

and foot, for not properly documenting the wound care given, for not preventing the

ulcers in the first place, and for allowing the ulcers to become infected.

Dr. Rushing further determined that appellees failed to prevent the pressure ulcer

on the deceased’s heel, relieve the pressure on the deceased’s heel once the pressure

ulcer developed, and that if the appellees had relieved the pressure to the deceased’s

17
heel and sacral area as per the standard of care the deceased would not have

developed the pressure ulcers in the first place. According to Dr. Rushing, the

proximate cause of the deceased’s pressure ulcers was the lack of proper pressure

relief, which the appellees had a duty to do but failed to do. Dr. Rushing opined that the

deceased sacral pressure ulcer developed as a result of the appellees’ failure to turn

and reposition the deceased every two hours. Dr. Rushing believed that if the

deceased had received the proper wound care, the sacral pressure ulcers would not

have developed.

Dr. Rushing stated that in his opinion, the pressure ulcers on the deceased heel

and sacral area were the proximate causes of his death. Dr. Rushing explained:

As described in my original chapter 74 report the large sacral pressure
ulcer coupled with the gangrene of the right foot due to the pressure ulcer
of his heel and the above the knee amputation of his right leg all increased
his caloric requirements to at least 2400 cal per day. He was unable to
take enough oral nourishment to meet this requirement. He did not
receive TPN or enternal [sic] feedings. His caloric requirement was simply
not met and as a result he consumed his own body tissues resulting in a
cachectic state with his weight ultimately being approximately 116 pounds.
If he had not had the large sacral pressure ulcer and and [sic] his heel
ulcer and his amputation then he would not have had this excess caloric
requirement. In the absence of this excess caloric requirement he was
able to consume enough calories to maintain his weight. I do agree with
the diagnosis on his death certificate that malnutrition and wounds,
meaning pressure ulcers, were contributing factors to his death and were
proximate causes of his death due to the mechanisms described in this
report and in my chapter 74 report.

Dr. Rushing then expressed his ultimate conclusions: “It is my opinion that the failures

outlined in this report proximately caused [the deceased’s] death. Had it not been for

these failures, [the deceased] would not have died when he did.”

Finally, Dr. Rushing believes that had the deceased been given the proper

wound care, he would not have needed an amputation of his leg, and he would not have

18
died due to the pressure ulcers. Dr. Rushing opined that had the foam rubber pad been

utilized, the deceased would not have developed an ulcer on his heel. Dr. Rushing also

believed that the lack of proper documentation of the wound care led to an “inability to

assess accurately whether [the] ulcer was getting better” and that it is obvious that the

ulcers became progressively worse due to the lack of proper wound care. Dr. Rushing

opined that the nursing home failed to transfer the deceased to a facility able to provide

appropriate care to prevent the development of pressure ulcers and that failure caused

the pressure ulcers to develop and worsen.

In Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013), the Texas

Supreme Court stated that it has “opined that one purpose of the report requirement is

to expeditiously weed out claims that have no merit” and “that the purpose of evaluating

expert reports is to deter frivolous claims, not to dispose of claims regardless of their

merits.” Thus, “[i]f a health care liability claim contains at least one viable liability theory,

as evidenced by an expert report meeting the statutory requirements, the claim cannot

be frivolous.” Id. “In sum, an expert report that adequately addresses at least one

pleaded liability theory satisfies the statutory requirements, and the trial court must not

dismiss in such a case.” Id. at 632.

Here, an examination of Dr. Rushing’s report shows that he set out the standard

of care for each appellee, how each appellee breached the standard, and he opined

regarding causation. A report that omits any of the statutory requirements cannot

constitute a good-faith effort; however, in this case, Dr. Rushing did not omit any of the

statutory requirements. The report in this case provided enough information to inform

19
appellees of the specific conduct that Baker called into question and to support a

conclusion that the claims have merit.

Dr. Rushing explained that appellees had a duty to prevent and properly treat the

deceased’s pressure ulcers and that they had failed to do so. Dr. Rushing further

explained that because of the lack of the proper wound care, the deceased developed

serious complications and eventually died from the lack of the proper wound care. We

conclude that Dr. Rushing’s report contained at least one viable theory of liability and

that Dr. Rushing’s report met the standards required under section 74.351. See Potts,

392 S.W.3d at 630. Thus, because Baker’s claim is not frivolous, the trial court abused

its discretion by dismissing Baker’s claim on the basis that it did not comply with section

74.351(r)(6). See Palacios, 46 S.W.3d at 877–78. We sustain Baker’s third issue.

V. STATUTE OF LIMITATIONS

By his fourth issue, Baker contends that the trial court abused its discretion in

determining that Dr. Rushing’s report was deficient because the statute of limitations

had expired. Appellees respond that the report is deficient because it “fails to indicate

that there is a valid and meritorious cause of action, insofar as the dates relied upon for

the care given reveal that the only conduct complained of occurred beyond the statute

of limitations.”

Section 74.351 does not include any requirement regarding the statute of

limitations. Appellees cite no authority, and we find none, allowing a defendant in a

health care liability claim to contest the sufficiency of an expert report based on the

expiration of the applicable statute of limitations. Appellees merely invite this Court to

conclude that because the statute says that “the report must provide a basis for the trial

20
court to conclude that the claims have merit,” the trial court may find the expert report

insufficient on the basis that the statute of limitations has expired. We decline

appellees’ invitation. Therefore, we conclude that the trial court abused its discretion by

finding Dr. Rushing’s report insufficient on the basis that the statute of limitations had

allegedly expired. 12 We sustain Baker’s fourth issue.

VI. CONCLUSION

We reverse the trial court’s dismissal and remand the cause for further

proceedings consistent with this memorandum opinion.

____________________
ROGELIO VALDEZ
Chief Justice

Delivered and filed the
24th day of October, 2013.

12
We make no determination regarding whether the statute of limitations had expired and note
that Baker claims the statute of limitations has been tolled because the deceased was incapacitated when
he died.

21