Ana Maria Gonzalez Salais, Individually and as Representative of the Estate of Ruben Gonzalez v. Texas Department of Aging & Disability Services

IN THE
TENTH COURT OF APPEALS

No. 10-09-00155-CV

ANA MARIA GONZALEZ SALAIS, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATE
OF RUBEN GONZALEZ, DECEASED,
Appellants
v.

TEXAS DEPARTMENT OF AGING
& DISABILITY SERVICES,
Appellee

From the 77th District Court
Limestone County, Texas
Trial Court No. 28901A

OPINION

Ana Maria Gonzalez Salais appeals the trial court’s order dismissing her health-

care liability claim against the Texas Department of Aging and Disability Services

(TDADS).

Salais’s live petition alleges that her son Ruben Gonzalez was a patient at the

Mexia State School, a TDADS facility, because of his developmental disability. Late one
evening (after midnight), Ruben had refused to go to bed and was then physically

restrained by Sheri Thornton and Charles Korn, two TDADS employees. After Joel

Thomas, a third employee, arrived, they placed Ruben on a restraint board. Sue

Sanderson, a TDADS nurse, was called to the scene and found Ruben pale with no

pulse or blood pressure. Sanderson was unable to resuscitate Ruben. An automated

external defibrillator (AED) was employed, but it was not used to shock Ruben.

Paramedics arrived and their monitor showed a flat line and no cardiac rhythm. Ruben

was taken to a hospital, where he was pronounced dead.

Salais also pleads:

In the Prevention & Management of Aggressive Behavior Course
Synopsis allegedly provided by Defendant Mexia [State School] to its
employees, employees are warned that “[e]xtreme care must be exercised
during any horizontal restraint to insure that the person’s ability to
breathe is not restricted. . . . [D]uring all horizontal restraints, the person
must remain in a side-lying position and monitored continuously. Failure
to do so may risk serious injury and death from positional asphyxia,
[which] occurs when there is insufficient intake of oxygen as a result of
body positioning that interferes with one’s ability to breathe.” [Ellipsis
and brackets in original].

She further pleads that the “Mexia State School Annual Retraining Course

Synopsis,” allegedly provided to every participant, gives the same warning and also

provides “that the person who is restraining the lower body has an important role in

monitoring breathing, circulation, and general condition of the restrained individual,

and in assisting in maintaining the restrained individual in a side-lying position.”

In her health-care liability cause of action, Salais alleges that TDADS [Mexia State

School] and TDADS employees Korn, Thornton, and Thomas were negligent in the care

Salais v. TDADS Page 2
and treatment of Ruben in each of the following ways:

1. Failure to recognize and/or appreciate the risk factors for the potential
occurrence of death when performing a physical restraint;

2. Misuse of the restraints and restraint board when performing a
physical restraint;

3. Failure to anticipate the risk of traumatic asphyxia when performing a
physical restraint;

4. Failure to plan the physical restraint according to the increased risk for
serious injury to Decedent;

5. Inappropriate management of the complication of performing a
physical restraint;

6. Failure to have the requisite knowledge regarding appropriate
responses to a combative physical restraint;

7. Failure to perform the appropriate interventions during the physical
restraint of Decedent once health complications were encountered;

8. Failure to provide proper education and training to employees who
were called upon to assist in the restraint of Decedent.

Section 74.351 of the Civil Practices and Remedies Code provides that within 120

days of filing suit, a claimant must serve a curriculum vitae (CV) and one or more

expert reports regarding every defendant against whom a health care claim is asserted.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon Supp. 2009). Salais provided two

expert reports. One report was by James Wohlers, a paramedic, which addresses the

standard of care and breach elements relating to the use of the restraint board and the

AED. The other report, of Donald Winston, M.D., addresses the causation element.

TDADS objected to the reports and moved to dismiss Salais’s health-care liability

claim under section 74.351. See id. The motion asserted that Salais’s experts were not

Salais v. TDADS Page 3
qualified and that their reports were inadequate. The trial court granted TDADS’s

motion to dismiss without stating any grounds. In her first issue, Salais argues that the

trial court erred in granting TDADS’s motion to dismiss.

We review the trial court’s decision to dismiss a health-care liability claim by the

abuse-of-discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 877 (Tex. 2001). Also, a trial court’s decision on whether a person is

qualified to offer an expert opinion in a health-care liability claim is reviewed under the

abuse-of-discretion standard. Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort

Worth 2008, pet. denied). “However, a trial court has no discretion in determining

what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992). A clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279-80

(Tex. App.—Austin 2007, no pet.); see also Methodist Hosp. v. Shepherd-Sherman, 296

S.W.3d 193, 197 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“Though we may not

substitute our judgment for that of the trial court, the trial court has no discretion in

determining what the law is or applying the law to the facts.”).

Wohlers Report

Qualifications

TDADS’s motion to dismiss and brief assert that Wohlers’s report and CV do not

establish his qualifications to testify about the standards of care applicable to the Mexia

State School healthcare staff or to the treatment for individuals with behavioral, mental,

and developmental disabilities. Its brief also asserts that Wohlers’s report does not

Salais v. TDADS Page 4
show that the “management and care” of Ruben on the occasion in question is

“something universally done.”

Regarding his qualifications, Wohlers’s report states:

I received my paramedic education from Creighton University in
1992. Initially I was a paramedic in Omaha, Nebraska from 1992 to 1996,
then a paramedic for the City and County of Denver from 1996 until 2000.
Since 2000, I have been with the Grand Island Fire Department in Grand
Island, Nebraska as a paramedic/firefighter. I have also been involved in
restraint asphyxia education since 2006. I teach to EMS, Law Enforcement
and persons involved in the restraining of combative persons. I have been
qualified as an expert in the field of restraint asphyxia.

Wohlers’s CV restates the above history and notes his certification as an EMS

instructor and that he specializes in “restraint-related issues” and instructs on

Advanced Life Support and Basic Life Support topics. His report further states:

I am familiar with the standard of care for restraining a combative
person and understand what steps should be taken to monitor for
respiratory distress. Through my education, background and experience,
I am knowledgeable in the standard of care that the staff of Mexia State
School should have provided to Mr. Gonzales on the night he died.

On the issue of Wohlers’s qualifications, we turn to the applicable statute, section

74.402, which provides in pertinent part:

(b) In a suit involving a health care liability claim against a health care
provider, a person may qualify as an expert witness on the issue of
whether the health care provider departed from accepted standards of
care only if the person:

(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the defendant health
care provider, if the defendant health care provider is an individual, at the
time the testimony is given or was practicing that type of health care at the
time the claim arose;

(2) has knowledge of accepted standards of care for health care

Salais v. TDADS Page 5
 providers for the diagnosis, care, or treatment of the illness, injury, or
condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of health care.

(c) In determining whether a witness is qualified on the basis of training
or experience, the court shall consider whether, at the time the claim arose
or at the time the testimony is given, the witness:

(1) is certified by a licensing agency of one or more states of the
United States or a national professional 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b, c) (Vernon 2005).

We disagree that Wohlers was required to be qualified in general as an expert

about the standards of care applicable to the Mexia State School healthcare staff for the

care and treatment for individuals with behavioral, mental, and developmental

disabilities. Rather, under the literal language of subsections 74.402(b)(1, 2), Wohlers is

only required to be practicing health care in a field of practice that involves the same type

of care or treatment as that delivered by the defendant health care provider and have

knowledge of the accepted standards of care for health care providers for the care or

treatment of the condition involved in the claim. See id. § 74.402(b)(1, 2); see, e.g., Group v.

Vicento, 164 S.W.3d 724, 730-31 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

Based on Salais’s allegations and the information in Wohlers’s report, the type of care or

treatment and the condition involved is the use of physical restraint and a restraint

board on a combative person. Wohlers’s report and CV show that he is a certified

Salais v. TDADS Page 6
practitioner and instructor in health care services relevant to the health-care liability

claim in this case; he has been a paramedic since 1992 and has been instructing on

restraint asphyxia since 2006, including teaching persons involved in the restraining of

combative persons. His report states that he is familiar with the standard of care for

restraining a combative person and is knowledgeable of the standard of care that the

staff of Mexia State School should have provided to Ruben on the night he died with

respect to the use of physical restraint and a restraint board.

Under the applicable criteria in section 74.402(b), Wohlers’s report and CV

demonstrate that he is qualified to offer an expert opinion on the accepted standards of

care for this type of care or treatment by TDADS healthcare staff of combative persons.

To the extent the trial court concluded otherwise, the trial court abused its discretion.

Adequacy

TDADS’s motion to dismiss asserted that Wohlers’s report is inadequate because

it does not articulate the relevant standard of care and/or the bases for the relevant

standards of care applicable to TDADS and it does not specifically state the manner in

which TDADS breached the applicable standard of care.

When considering a motion to dismiss under subsection 74.351(b), the issue is

whether the report represents a good-faith effort to comply with the statutory definition

of an expert report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);

Palacios, 46 S.W.3d at 878. An “expert report” is “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 care, the manner in which the care rendered by the physician or

Salais v. TDADS Page 7
health care provider failed to meet the standards, and the causal relationship between

that failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(6).

In determining whether the report represents a good-faith effort, the inquiry is

limited to the four corners of the report. Palacios, 46 S.W.3d at 878. The report need

only represent a good-faith effort to provide a fair summary of the expert’s opinions.

Id. The report does not have to marshal all of the plaintiff’s proof and the plaintiff need

not present evidence in the report as if it were actually litigating the merits. Id. at 879.

Rather, to constitute a good-faith effort, the report must address the standard of care,

breach, and causation with sufficient specificity to inform the defendant of the conduct

the plaintiff calls into question and to provide a basis for the trial court to conclude that

the claims have merit. Id. at 875.

The Wohlers report notes that he has been qualified as an expert in restraint

asphyxia. It cites an investigative report that he reviewed and details the course of

events and the conduct of three employees (Thomas, Korn, and Thornton) in placing

Ruben on a restraint board and, according to Thomas, using a restraint strap across his

diaphragm, after which Ruben “was breathing hard, in gasps, and making gurgling

sounds.” According to Korn, a restraint strap was across Ruben’s chest, and Korn

observed only a “slight rise” in his chest; Ruben had a weak pulse. Thornton observed

Ruben on the restraint board and thought he was asleep, but he looked “funny” and

was breathing shallow. Nurse Sanderson arrived, and after finding Ruben’s color to be

abnormally pale, no blood pressure, and no pulse, she initiated CPR and attempted to

Salais v. TDADS Page 8
use an AED. Mexia Fire/EMS then arrived, took over CPR, and did an endotracheal

intubation before transferring Ruben to Parkview Regional Hospital, where he was

pronounced dead. Wohlers states:

I am familiar with the standard of care for restraining a combative
person and understand what steps should be taken to monitor for
respiratory distress. Through my education, background and experience,
I am knowledgeable in the standard of care that the staff of Mexia State
School should have provided to Mr. Gonzalez on the night he died.

The standard of care requires that if any one of the persons
involved in the restraining of Mr. Gonzalez had recognized that he was in
respiratory distress, he should not have been placed on a restraint board
and had straps placed across his chest. Had anyone of the restrainers
prevented the application of the restraint board, it is more likely than not
that Mr. Gonzalez would not have suffered restraint asphyxia. No one
intervened in the application of the restraint board.

Wohlers’s report sets forth his familiarity with the standard of care and the basis

therefor, what the standard of care is, and how the TDADS staff breached it on the

occasion in question. The report addresses the standard of care and breach with

sufficient specificity to inform TDADS of the conduct that Salais calls into question and

provides a basis for the trial court to conclude that the claims have merit. See Palacios,

46 S.W.3d at 875. It informs TDADS “what care was expected but not given.” Fagadau

v. Wenkstern, 311 S.W.3d 132, 138 (Tex. App.—Dallas 2010, no pet. h.) (citing Palacios, 46

S.W.3d at 880). To the extent the trial court concluded otherwise, the trial court abused

its discretion.

Dr. Winston Report

Section 74.351(i) permits a claimant to satisfy any requirement of section 74.351

for serving an expert report by serving reports of separate experts. TEX. CIV. PRAC. &

Salais v. TDADS Page 9
REM. CODE ANN. § 74.351(i); see Packard v. Guerra, 252 S.W.3d 511, 527 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). Expert reports can be considered together in

determining whether the plaintiff in a health care liability action has provided adequate

expert opinion regarding the standard of care, breach, and causation. See Walgreen Co.

v. Hieger, 243 S.W.3d 183, 186 n.2 (Tex. App.—Houston [14th Dist.] 2007, pet. denied);

Martin v. Abilene Regional Med. Center, No. 11-04-00303-CV, 2006 WL 241509, at *4-5

(Tex. App.—Eastland Feb. 2, 2006, no pet.) (mem. op.). A physician’s report on

causation should not be read in isolation. See Martin, 2006 WL 241509, at *4; see also TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C) (providing that only a physician can be

an expert giving opinion testimony on causal relationship).

Qualifications

TDADS’s motion to dismiss and brief assert that Dr. Winston’s report and CV do

not establish his qualifications to testify about causation. Its brief first asserts that there

is no showing that Dr. Winston is a licensed physician. "Expert" means, “with respect to

a person giving 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, a physician who is otherwise qualified to render

opinions on such causal relationship under the Texas Rules of Evidence.” TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(r)(5)(C) (Vernon Supp. 2009); see also TEX. CIV. PRAC.

& REM. CODE ANN. § 74.403(a) (Vernon 2005).

Dr. Winston’s report is in a letter format, and his letterhead and typed signature

block identify him as “Donald Winston, MD.” His letterhead also reveals his website

Salais v. TDADS Page 10
(www.urbansurgeon.com) and his email address at that website. Furthermore, his

December 2008 CV reflects that he is a licensed Texas physician (No. F0832, licensed in

February 1978 and expiring May 31, 2010). TDADS’s assertion that there is no showing

that Dr. Winston is a licensed physician is incorrect.

Dr. Winston’s report is a letter to Salais’s attorney and states in its entirety:

At your request, I have reviewed an autopsy report and death certificate
of Ruben Gonzales, a 15 year old Hispanic male who apparently was a
student at the Mexia State School.

I have no way of knowing exactly what took place on or about January 15,
2007, but I have reviewed a Third Amended Petition in Cause 28901A
which states that three employees of Mexia State School physically
restrained Mr. Gonzales. After a period of time, a nurse at the hospital
found Mr. Gonzales dead. Resuscitation failed, and after endotrachial
[sic] intubation by Mexia Fire Department EMS, he was taken to Parkview
Regional Hospital where he was pronounced dead.

My focus is on the Autopsy report in Case No. JP0187-07-0120ACG done
January 16th 2007.

I agree with the physical findings of:
1. Petechiae in the right and left conjunctivae
2. Contusions to the right arm and left leg
3. Subcutaneous hemorrhage on the upper back and lower back
4. Two subgaleal hemorrhages
5. Abrasions and contusions on face and arms
6. Mechanical asphyxia

I disagree with the final opinion of the nine pathologists to the extent that
there is evidence that Mr. Gonzales in any way contributed to his own
death, but I agree that his death was a homicide caused by restraint and
mechanical asphyxia imposed on him by the three Mexia State School
employees.

If you have any other questions, please feel free to contact me.1

1 To the extent that Salais has asserted a health-care liability claim based on alleged misuse of the AED (it
is in the Wohlers report, but it is not pleaded by Salais), there is “no report” at all as to causation, and the

Salais v. TDADS Page 11
 TDADS is correct that Dr. Winston’s report fails to show how he is qualified to

render an expert opinion on causation in this case. Rule 702 of the Texas Rules of

Evidence requires that an expert be qualified by “knowledge, skill, experience, training,

or education.” TEX. R. EVID. 702. The qualifications of an expert must appear in the

report itself and cannot be inferred. See Benson v. Hall, No. 10-09-00284-CV, 2010 WL

376957, at *1 (Tex. App.—Waco Feb. 3, 2010, no pet. h.); Estorque v. Schafer, 302 S.W.3d

19, 26 (Tex. App.—Fort Worth 2009, no pet.); Philipp v. McCreedy, 298 S.W.3d 682, 686

(Tex. App.—San Antonio 2009, no pet.); Baylor College of Medicine v. Pokluda, 283 S.W.3d

110, 117 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Hansen v. Starr, 123 S.W.3d 13,

19 (Tex. App.—Dallas 2003, pet. denied). Dr. Winston’s report does not set forth his

qualifications at all. His CV reflects that he is currently practicing in the field of

emergency medicine in Houston and has held several positions as an emergency

medicine physician and a general and trauma surgeon. Aside from their not being in

the report itself, these position descriptions alone are inadequate to show how Dr.

Winston is qualified to opine on the causal relationship of Ruben’s death. Merely being

a physician is insufficient to qualify as a medical expert. See Broders v. Heise, 924 S.W.2d

148, 152 (Tex. 1996); Hagedorn v. Tisdale, 73 S.W.3d 341, 350 (Tex. App.—Amarillo 2002,

no pet.).

Because there is no showing in Dr. Winston’s report that he is qualified to give

an expert opinion on causation, to the extent the trial court granted the motion to

trial court properly dismissed that part of the health-care liability claim. See Benson v. Vernon, 303 S.W.3d
755, 760-61 (Tex. App.—Waco 2009, no pet.).

Salais v. TDADS Page 12
dismiss on this basis, it did not abuse its discretion. We overrule Salais’s first issue.

Adequacy

Because of our disposition of the second issue, we must address TDADS’s

challenge to the adequacy of Dr. Winston’s report in its motion to dismiss. On the

adequacy of Dr. Winston’s report, we are precluded “from filling gaps in a report by

drawing inferences or guessing as to what the expert likely meant or intended.” Austin

Heart, 228 S.W.3d at 279. But here, there is no gap, and there is no guessing, that Dr.

Winston’s opinion on the cause of Ruben’s death—“restraint and mechanical asphyxia

imposed on him by the three Mexia State School employees”—is the same conduct

referred to in the Wohlers report as being the three Mexia State School employees’

breach of the standard of care in restraining a person in respiratory distress.

When the reports are read together, as they must be in this case, they satisfy the

causal-relationship requirement because they constitute a good-faith effort to provide a

fair summary of the causal relationship between the employees’ conduct and Ruben’s

death by restraint asphyxia. See Martin, 2006 WL 241509, at *5. Read together, they

provide “enough information linking the defendant’s breach of the standard of care to

the plaintiff’s injury.” Baker v. Gomez, 276 S.W.3d 1, 8 (Tex. App.—El Paso 2008, pet.

denied). And because Dr. Winston’s report does link the employees’ conduct with

Gonzalez’s death, TDADS’s reliance on Bogar v. Esparza and Shaw v. BMW Healthcare,

Inc. is misplaced, as those cases are distinguishable on that basis. Cf. Bogar v. Esparza,

257 S.W.3d 354, 364 (Tex. App.—Austin 2008, no pet.) (“In essence, Dr. Adame’s report

is a second autopsy report, opining about the cause of Ms. Guerrero’s death without

Salais v. TDADS Page 13
explaining who caused it or how.”) (emphasis added); Shaw v. BMW Healthcare, Inc., 100

S.W.3d 8, 12-13 (Tex. App.—Tyler 2002, pet. denied) (op. on reh’g) (“An opinion solely

addressing the cause of death does not satisfy the statutory requirements.”).

Extension

Subsection 74.351(c) provides: “If an expert report has not been served within

the period specified by Subsection (a) because elements of the report are found

deficient, the court may grant one 30-day extension to the claimant in order to cure the

deficiency.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). In her second issue, Salais

asserts that the trial court abused its discretion in not granting her alternative motion

for a thirty-day extension to cure her expert report’s deficiency.

The docket sheet appears to reflect the trial court’s denial of that motion, but

docket-sheet entries are not “of-record” rulings. Any order or judgment, to be effective,

must be entered of record. Kocman v. Kocman, 581 S.W.2d 516, 518 (Tex. Civ. App.—

Waco 1979, no writ); see also Willis v. Nucor Corp., 282 S.W.3d 536, 543 (Tex. App.—Waco

2008, no pet.).

Dr. Winston’s report is technically deficient—as opposed to being “no report”—

because the report lacks his qualifications to give an expert opinion on causation. It is

thus appropriate to remand this case to the trial court so it can exercise its discretion

whether to grant a thirty-day extension so that Salais can attempt to cure this deficiency.

See Austin Heart, 228 S.W.3d at 284-85; see also In re Buster, 275 S.W.3d 475, 477 (Tex.

2008) (“A report by an unqualified expert will sometimes (though not always) reflect a

good-faith effort sufficient to justify a 30-day extension.”).

Salais v. TDADS Page 14
 Accordingly, we sustain the second issue and remand this cause to the trial court

with the instruction to consider and rule on Salais’s motion for a thirty-day extension to

attempt to cure the deficiency in Dr. Winston’s report.

REX D. DAVIS
Justice

Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed August 4, 2010
[CV06]

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