Opinion issued October 4, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00253-CV
———————————
CVS PHARMACY, INC., CAREMARK, L.L.C., CVS RX SERVICES, INC.,
AND CAREMARK PHC, L.L.C., Appellants
V.
KENT BLAND BALLARD, JUDITH BALLARD CONNORS, AND GARY
THOMAS BALLARD, INDIVIDUALLY AND AS CO-EXECUTORS OF
THE ESTATE OF MARGARET BALLARD, DECEASED, AND THOMAS
HUGH BALLARD, AS SURVIVING SPOUSE OF MARGARET BALLARD,
DECEASED, Appellees
On Appeal from the 189th Judicial District Court
Harris County, Texas
Trial Court Case No. 2011-52145
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, CVS Pharmacy, Inc., Caremark,
L.L.C., CVS RX Services, Inc., and Caremark PHC, L.L.C. (collectively, “CVS”),
challenge the trial court’s order denying its motion to dismiss the health care
liability claim2 made against them by appellees, Kent Bland Ballard, Judith Ballard
Connors, and Gary Thomas Ballard, individually and as co-executors of the estate
of Margaret Ballard, and Thomas Hugh Ballard, as surviving spouse of Margaret
Ballard (collectively, the “Ballards”), for the wrongful death3 of Margaret Ballard.
In its sole issue, CVS contends that the trial court erred in concluding that the
Ballards’ medical expert report is sufficient and not dismissing the Ballards’ claim.
We affirm.
Background
In their original petition, the Ballards assert a health care liability claim
against Dr. Bhakti Khatri, Medical Clinic of Houston, L.L.P., and CVS. The
Ballards allege that Dr. Khatri negligently prescribed Margaret Ballard
“Methotrexate with severely incorrect dosage instructions” and failed “to recognize
the medication error” when Margaret returned to Dr. Khatri with “Methotrexate
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (Vernon Supp. 2012).
2
See id. § 74.001(a)(13) (Vernon Supp. 2012).
3
See id. §§ 71.001, 71.021 (Vernon 2008).
2
toxicity symptoms.” The Ballards further allege that CVS negligently failed “to
recognize and correct a dangerous drug overdose” and “to fill the prescription in
compliance with Texas Pharmacy Practice Standards.”
The Ballards attached to their petition an expert report4 authored by Dr. Bill
Pittman, a practicing pharmacist. In the report, Dr. Pittman stated that Dr. Khatri
prescribed Margaret “90 methotrexate 2.5 mg tables to be taken one tablet by
mouth every day,” but he defined an “appropriate dose” of Methotrexate to be no
more than one tablet of 2.5, 5, or 7.5 milligrams “taken once a week.” Dr. Pittman
concluded that the overdose was a “dangerous error” that “resulted in [Margaret’s]
suffering and eventual death.”
Dr. Pittman then quoted the Texas Pharmacy Act, which states that a
pharmacist may be disciplined if he has been “negligent in the practice of
pharmacy.”5 In addition, he cited the Texas Pharmacy Rules as follows,
281.7 Grounds for Discipline for a Pharmacist License
(a)(13) Failing to practice pharmacy in an acceptable manner
consistent with the public health and welfare.
291.73(b) Pharmacist-in-charge.
(2) Responsibilities. The Pharmacist-in-charge shall have
the responsibility for, at a minimum, the following:
4
See id. § 74.351 (Vernon 2011) (requiring expert report to be served in health care
liability claims).
5
See TEX. OCC. CODE ANN. § 565.001(a)(13) (Vernon 2012).
3
(B) Ensuring that drug and/or devises are
prepared for distribution safely, and
accurately as prescribed;
291.32(c) Pharmacists
(F) A dispensing pharmacist shall ensure that the drug is
dispensed and delivered accurately as prescribed . . . .6
Noting that a “prescribing physician is to be called any time a pharmacist has a
question about a prescription,” Dr. Pittman concluded that CVS’s failure “to
recognize and correct the prescription error” constituted a “breach of the
pharmacist’s duty to comply with the standard of care expected of prudent Texas
pharmacists.”
Under a section of his report entitled “Standard of Care in Pharmacy
Practice,” Dr. Pittman further stated,
In this case, a reasonably prudent pharmacist would have:
1. Carefully examined the methotrexate prescription;
2. Input (or overseen a technician’s input) of accurate patient data
into the computer;
3. Performed a Drug Utilization Review to ensure, among other
requirements, that the correct dosage was being dispensed;
4. Noticed the overdose, called the physician and corrected the
prescription[;] then
6
22 Tex. Admin. Code §§ 281.7, 291.32, 291.73 (2012) (Tex. St. Bd. of Pharmacy).
4
5. Dispensed the correct number and strength of the prescribed
drug, properly labeled with the correct directions for use.
Dr. Pittman asserted that CVS had not “completely met” the standards of a
reasonably prudent pharmacist and had been “negligent in the practice of pharmacy
by failing to recognize and correct a dangerous drug overdose.”
CVS objected to Dr. Pittman’s expert report and filed a motion to dismiss
the Ballards’ claim. In its motion, CVS argued that Dr. Pittman’s expert report is
“wholly conclusory as to his argument that the amount prescribed and properly
dispensed constitutes an overdose,” “[f]ails to cite the actual applicable standard of
care for pharmacies,” “[f]ails to identify any of the alleged pharmacy defendants
by the name(s) under which they have been sued,” and is “insufficient to establish
causation.”7 After a hearing, the trial court denied the motion to dismiss.
Standard of Review
We review a trial court’s decision on a motion to dismiss a health care
liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
7
The Ballards later served an expert report, authored by Dr. Spencer Wilking,
which addressed only the element of causation. CVS objected to Dr. Wilking’s
report and filed a separate motion to dismiss, but the trial court overruled the
motion. CVS does not appeal that ruling.
5
reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539
(Tex. 2010). When reviewing matters committed to the trial court’s discretion, we
may not substitute our own judgment for that of the trial court. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its
discretion merely because it decides a discretionary matter differently than an
appellate court would in a similar circumstance. Harris Cnty. Hosp. Dist. v.
Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Sufficiency of Expert Report
In its sole issue, CVS argues that the trial court erred in denying its motion
to dismiss the Ballards’ health care liability claim because Dr. Pittman’s expert
report “failed to identify the applicable standard of care” and “failed to provide a
fair summary of how CVS breached the standard of care.” CVS also argues that
the Ballards’ expert report constitutes “no report” because the Ballards failed “to
serve one or more expert reports for each of the pharmacy entities they named in
their complaint.”
A health care liability claimant must provide each defendant health care
provider with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351
(Vernon 2011); Gray, 189 S.W.3d at 858. The expert report must provide a fair
summary of the expert’s opinions as of the date of the report regarding the
applicable standards of care, the manner in which the care rendered by the health
6
care provider failed to meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6).
If a defendant files a motion to dismiss challenging the adequacy of the
claimant’s expert report, the trial court shall grant the motion to dismiss only if it
appears to the court, after a hearing, that the report does not represent an objective
good faith effort to comply with the definition of an expert report. Id. § 74.351(l).
The only information relevant to the inquiry is that contained within the four
corners of the document. Palacios, 46 S.W.3d at 878. Although the claimant need
not marshal all of his proof in the report, the report must include the expert’s
opinion on each of the elements identified in the statute. See id. at 878–79; Gray,
189 S.W.3d at 859.
In setting out the expert’s opinions, the report must provide enough
information to fulfill two purposes to constitute a good faith effort. Palacios, 46
S.W.3d at 879. First, the report must inform the defendant of the specific conduct
the claimant has called into question. Id. Second, the report must provide a basis
for the trial court to conclude that the claim has merit. Id. A report that merely
states the expert’s conclusions does not fulfill these two purposes. Id. The expert
must explain the basis of his statements to link his conclusions to the facts. Bowie,
79 S.W.3d at 52. However, a claimant need not present evidence in the report as if
7
he were actually litigating the merits. Palacios, 46 S.W.3d at 879. Furthermore,
the report may be informal in that the information in the report does not have to
meet the same requirements as the evidence offered in a summary-judgment
proceeding or trial. Id. We review the sufficiency the report by looking at the four
corners of the report. See Palacios, 46 S.W.3d at 878.
Standard of Care
CVS first asserts that Dr. Pittman’s report “failed to articulate the standard
of care for each defendant.” CVS argues that Dr. Pittman’s report presented “no
evidence of the applicable standard of care” because the stated standard of care is
“plainly erroneous,” “vague and cursory,” and based on “irrelevant or contrary
statutes and rules.”
Identifying the standard of care in a health care liability claim is critical:
whether a defendant breached his or her duty to a patient cannot be determined
absent specific information about what the defendant should have done differently.
Id. at 880. While a “fair summary” is something less than a full statement of the
applicable standard of care and how it was breached, even a fair summary must set
out what care was expected, but not given. Id. When a claimant sues more than
one defendant, the expert report must set forth the standard of care for each
defendant and explain the causal relationship between each defendant’s individual
acts and the injury. See Doades v. Syed, 94 S.W.3d 664, 671 (Tex. App.—San
8
Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). However, when each defendant owes the
same duty to the patient, the claimant is not required to specifically state the same
standard of care for each individual defendant. See Rittger v. Danos, 332 S.W.3d
550, 556–57 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (stating that claimants
“are not required to specifically state the same standard of care for each individual
physician practicing on the same patient when each physician owes the same duties
to the patient.”); Romero v. Lieberman, 232 S.W.3d 385, 391–92 (Tex. App.—
Dallas 2007, no pet.) (holding that expert report was sufficient when it stated
standard of care for “any medical doctor” for treatment of “septic shock” and all of
defendants were doctors who “participated in treating this condition”); In re
Boone, 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006, orig. proceeding)
(holding that export report was sufficient when it ascribed same standard of care to
physicians and physician’s assistant).
Here, Dr. Pittman evaluated “the manner in which the care and supervision
rendered by the personnel of CVS/Caremark Pharmacy stood in relation to the
standard of care.” The report states Dr. Pittman’s asserted standard of care for
pharmacists, and each named defendant is either a pharmacy or its parent
company. When a party’s alleged health care liability is purely vicarious, a report
that adequately implicates the actions of that party’s agents or employees is
9
sufficient. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008);
see also Mariner Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 206
(Tex. App.—Houston [1st Dist.] 2010, no pet.). Accordingly, we hold that Dr.
Pittman’s expert report articulated a standard of care for each of the named
defendants.
Regarding the sufficiency of the articulated standard of care, CVS argues
that Dr. Pittman’s citations to the Texas Occupations Code and the rules
promulgated by the Texas Pharmacy Board are “irrelevant” because courts “have
declined to hold that even specific provisions regulating pharmacist conduct
impose a standard of care.” See, e.g., Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d
455, 466–67 (Tex. App.—Austin 2000, pet. denied) (holding that administrative
rules did not impose legal duty on pharmacists to warn purchasers of potential side
effects). CVS further argues that even if the statutes and administrative rules are
relevant, they are “contrary” to the Ballards’ position because they actually
“indicate that CVS acted properly,” noting that the administrative rules cited by
Dr. Pittman advise pharmacists to dispense drugs “safely and accurately as
prescribed.” See 22 Tex. Admin. Code § 291.32(b)(2)(B) (2012) (Tex. St. Bd. of
Pharmacy). It argues that because the Ballards allege that Dr. Khatri prescribed the
overdose and pharmaceutical staff “accurately” dispensed the drugs as prescribed,
CVS did not breach Dr. Pittman’s asserted standard of care.
10
However, Dr. Pittman, under a section of the report specifically titled
“Standard of Care in Pharmacy Practice,” states,
In this case, a reasonably prudent pharmacist would have:
1. Carefully examined the methotrexate prescription;
2. Input (or overseen a technician’s input) of accurate patient data
into the computer;
3. Performed a Drug Utilization Review to ensure, among other
requirements, that the correct dosage was being dispensed;
4. Noticed the overdose, called the physician and corrected the
prescription[;] then
5. Dispensed the correct number and strength of the prescribed
drug, properly labeled with the correct directions for use.
Thus, Dr. Pittman, in articulating the standard of care, did not rely solely on the
statutes and administrative rules that CVS alleges are “irrelevant” and “contrary.”
Rather, Dr. Pittman’s asserted standard of care—the expert’s opinion regarding the
“specific information about what the defendant should have done differently”—is
stated in the five steps quoted above. See Palacios, 46 S.W.3d at 880.
CVS also argues that the standard of care is “plainly erroneous,” citing
Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455 (Tex. App.—Austin 2000, pet.
denied) and Simonson v. Keppard, 225 S.W.3d 868 (Tex. App.—Dallas 2007, no
pet.). In Morgan, the plaintiffs alleged that the staff of a Wal-Mart pharmacy had
negligently failed to warn its customers of the side effects of Despramine,
11
proximately causing a patient’s death; a jury awarded the plaintiffs $674,500 in
damages. 30 S.W.3d at 460. Wal-Mart argued that its pharmacists had no duty, as
a matter of law, to “warn of the potential dangers of Despramine because that duty
rested with the prescribing physician.” Id. at 460–61. The Austin Court of
Appeals first noted that several courts from other jurisdictions had not recognized
such a duty where “the prescription is proper on its face and neither the physician
or the manufacturer has required that the pharmacist give the customer any
warning.” Id. at 461. The court held that “pharmacists have no generalized duty to
warn patients of potential adverse reactions to prescription drugs absent some
special circumstances.” Id. at 469.
Here, unlike in Morgan, CVS appeals only the trial court’s order denying
their motion to dismiss under Chapter 74. A motion to dismiss under Chapter 74
seeks only to demonstrate that a claimant has not satisfied the procedural
requirements of the statute. Wissa v. Voosen, 243 S.W.3d 165, 169 (Tex. App.—
San Antonio 2007, pet. denied). And, under Chapter 74, a report need only
represent a “good faith effort” to comply with the definition of an expert report.
TEX. CIV. PRAC & REM. CODE ANN. § 74.351(l); Wissa, 243 S.W.3d 165 at 169–
70.8 While CVS may disagree with the standard of care asserted by Dr. Pittman,
8
CVS argues that Wissa is distinguishable because it “addressed a disagreement
about a precise standard of care within a particular profession.” They assert that
Dr. Pittman’s expert report states the standard of care for a physician and not a
12
we cannot say that his expert report does not represent a good faith effort to
provide his opinion regarding “what [CVS] should have done differently.” See
Palacios, 46 S.W.3d at 878; see also Woofter v. Benitez, No. 01-09-00161-CV,
2009 WL 3930839, at *7 (Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.)
(mem. op.).
In Simonson, the court held that a doctor was not qualified to report on the
standard of care applicable to an advanced practice nurse because the doctor gave
no indication that he “had any familiarity with the standard of care for a nurse
practitioner.” 225 S.W.3d at 873–74. As CVS concedes, the court “did not decide
the case” on an alleged “articulation of a plainly erroneous standard of care,” but
rather held that the expert was not qualified to state a standard of care for that
particular profession. Id. Thus, Simonson cannot stand for the proposition that the
standard of care articulated by Dr. Pittman is plainly erroneous.
Finally, CVS argues that Dr. Pittman’s “purported articulation of the
standard of care is so vague as to constitute no evidence” because he “fails to
describe what kind of training pharmacists actually receive, provide any
meaningful definition of ‘safety net’ and ‘errant,’ or describe how a reasonably
pharmacist. However, in his expert report, Dr. Pittman, himself a physician,
clearly identifies “the personnel of CVS/Caremark Pharmacy,” relies partially on
statutes and administrative rules related to pharmacists, and asserts that the CVS
pharmacist should have called the physician to correct the prescription. Thus, Dr.
Pittman’s expert report clearly asserts a standard of care for a pharmacist, even if
CVS disagrees about the scope of that standard of care.
13
prudent pharmacist would have been trained to respond under the facts of this
case.” However, as stated above, Dr. Pittman articulated five precise steps that a
“reasonably prudent pharmacist” should have performed in the present case,
including noticing the overdose, contacting the prescribing physician, and then
correcting the prescription. And Dr. Pittman opined that the overdose consisted of
a dosage prescribed to be taken daily, which should have been “taken once a
week.” Moreover, he stated that the CVS pharmacist should have noticed the
overdose “during the final prescription filling step” because the Texas State Board
of Pharmacy Rules “require a pharmacist to perform the final label check.” We
conclude that this constitutes a “good faith effort” to sufficiently inform CVS of
Dr. Pittman’s opinions concerning “what care was expected, but not given.” See
Palacios, 46 S.W.3d at 880.
Breach
CVS further argues that Dr. Pittman’s “unsupported conclusion that CVS
breached the standard of care is so cursory and divorced from the known facts in
this case that it constitutes no evidence at all.” Specifically, it asserts that Dr.
Pittman’s statement that 2.5 milligrams of Methotrexate to be taken daily
constitutes a “large overdose” is conclusory, he failed to inform CVS of the
conduct the Ballards have called into question, and he does not mention the
policies that CVS actually had in place for filling prescriptions.
14
In his expert report, Dr. Pittman defined a “typical” dosage of Metrotrexate
for treating Rheumatoid Arthritis as either:
1.) Single oral doses of 7.5 mg weekly.
2.) Divided oral doses of 2.5 mg at 12 hour intervals for 3 doses
given as a course once weekly.
Dr. Pittman later asserted that,
In the above referenced case the physician prescribed 90 methotrexate
2.5 mg tablets to be taken one tablet by mouth every day. An
appropriate dose would have been one 2.5 mg tablet (or perhaps 5 mg
or 7.5 mg as referenced above) to be taken once a week . . . .
It has been my observation that pharmacists typically discover a
physician’s mistake during the prescription filling process, then call
the physician and correct the error . . . . At any rate, the error should
have been caught during the final prescription filling step by a
pharmacist.
We conclude that Dr. Pittman provided a good faith summary of his opinion
concerning “the conduct the plaintiff has called into question,” namely, CVS’s
failure to recognize an overdose and failing to contact the prescribing prescription.
Although CVS argues that Dr. Pittman needed to provide more information
regarding his opinion on the “typical” dosage schedule for Methotrexate, Margaret
Ballard’s medical history,9 and the precise procedures in place at CVS, a Chapter
9
CVS notes that Dr. Wilking’s report does address Margaret’s medical history.
However, his report necessarily had to address Margaret’s medical history because
it addressed the issue of causation, and he concluded that there was a “direct
causal link between Mrs. Ballard’s death and the Methotrexate use.” And, in
addition to an analysis of Margaret’s medical history, Dr. Wilking noted that a
15
74 proceeding only addresses the requirements of the statute. Wissa, 243 S.W.3d
at 169. Again, to avoid dismissal in a Chapter 74 proceeding, a claimant need not
present evidence in the report as if it were actually litigating the merits. Palacios,
46 S.W.3d at 879.
“No Report”
Finally, CVS argues that Dr. Pittman’s report constitutes “no report” for the
purposes of Chapter 74 because it does not “name, let alone distinguish between,
CVS Pharmacy, Inc., Caremark L.L.C., CVS RX Services, Inc., and Caremark
PHC, L.L.C.” and “fails to describe the conduct of any of these entities in a manner
that might shed some light into which entity’s conduct” it implicates. However, as
noted above, when a party’s alleged health care liability is purely vicarious, a
report that adequately implicates the actions of that party’s agents or employees is
sufficient. Gardner, 274 S.W.3d at 671–72. A report does not fail to implicate a
defendant’s conduct solely because the defendant is not identified in the report by
name. Troeger v. Myklebust, 274 S.W.3d 104, 110 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied) (citing Ogletree v. Matthews, 262 S.W.3d 316, 321–22
(Tex. 2007)).
“high dose [of] Methotrexate is not an appropriate therapy for treatment of . . . any
chronic pain syndrome,” and he described the dosage prescribed to her as at a
“toxic level.”
16
In support of its argument that Dr. Pittman’s report constitutes “no report” as
to the named defendants, CVS relies on Rivenes v. Holden, 257 S.W.3d 332, 340–
41 (Tex. App.—Houston [14th Dist.] 2008, pet. denied.). In Rivenes, the court
held that an expert report constituted no report as to a specific doctor where it did
not name the doctor and only implicated the negligence of other co-defendants and
“Hospital staff.” Id. at 338. Likewise, the other cases relied on by CVS hold
expert reports insufficient because they did not name the defendants or implicate
their conduct. See Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex. App.—Austin
2008, no pet.) (holding that report failed to identify defendant doctor or ascribe
standard of care as to him); Apodaca v. Russo, 228 S.W.3d 252, 255–58 (Tex.
App.—Austin 2007, no pet.) (holding that expert report did not implicate
defendant because it referred only to other health care providers); Garcia v.
Marichalar, 198 S.W.4d 250, 252 (Tex. App.—San Antonio 2006, no pet.)
(“[T]hat report, which focused on the acts committed by other defendants, did not
mention [the defendant] at all.”) (emphasis added).
Here, however, Dr. Pittman’s expert report implicates CVS as being
vicariously liable for the negligence of their employees. CVS asserts that the
Ballards pleaded only direct liability claims. However, in their original petition,
the Ballards assert that:
Defendants, CVS PHARMACY, were negligent in one or more of the
following particulars.
17
a. By failing to recognize and correct a dangerous drug
overdose.
b. In failing to fill the prescription in compliance with
Texas Pharmacy Practice Standards.
Although the Ballards did not use the words “vicarious liability,” the test for
determining if a petition provides fair notice of a claim is whether the opposing
party can ascertain from the pleading the nature and basic issues of the
controversy. Southwest Gen. Hosp., L.P. v. Gomez, 357 S.W.3d 109, 112 (Tex.
App.—San Antonio 2011, no pet.) (citing Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 896 (Tex. 2000)). Petitions are construed liberally and in favor of
the drafter if no special exceptions have been sustained to that petition. Id. Here,
the language used by the Ballards in their petition implicates CVS as being
vicariously liable for the failure of its employees to “recognize and correct a
dangerous drug overdose” and “fill the prescription in compliance with Texas
Pharmacy Practice Standards.” And it is undisputed that each of the named
defendants are connected to CVS Pharmacy or the parent corporate entity of CVS
Pharmacy. Accordingly, we hold that the trial court did not err in concluding that
the Ballards’ medical expert report is sufficient and not dismissing their health
liability claim.
18
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
19
CVS Pharamacy, Inc., Caremark L.L.C., CVS RX Services, Inc., and Caremark PHC, L.L.C. v. Kent Bland Ballard
Combined Opinion