COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00334-CV
TTHR LIMITED PARTNERSHIP APPELLANT
D/B/A PRESBYTERIAN HOSPITAL
OF DENTON
V.
CLAUDIA MORENO, APPELLEE
INDIVIDUALLY AND AS NEXT
FRIEND OF FREDDY CORONADO,
A MINOR
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION ON REHEARING1
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We have considered Appellant‘s motion for partial rehearing. We deny the
motion but withdraw our opinion of March 17, 2011, and we substitute the
following to clarify, as requested, what the trial court should consider granting
Moreno an extension to do.
1
See Tex. R. App. P. 47.4.
TTHR Limited Partnership d/b/a Presbyterian Hospital of Denton
(Presbyterian) appeals the trial court‘s order on its motion to dismiss.
Presbyterian moved to dismiss based on the alleged failure of Appellee Claudia
Moreno, individually and as next friend of Freddy Coronado, a minor, to comply
with chapter 74 of the civil practice and remedies code. We will affirm in part and
reverse and remand in part.
Background Facts
Moreno was admitted to Presbyterian in January 2007, complaining of pain
and swelling associated with her pregnancy with twin boys. Moreno‘s
obstetrician, Dr. Marc Wilson, was out of town. Nurses in the labor and delivery
department had difficulty monitoring Moreno and paged the physician on call, Dr.
Lori Gore-Green, at 8:00 p.m. on January 21. Dr. Gore-Green did not see
Moreno until 8:03 a.m. on January 22. Dr. Wilson arrived and also saw Moreno
that morning.
Dr. Wilson induced labor, and the first twin was delivered without a
problem. Dr. Wilson then used forceps and a ―vacuum extraction‖ device to
assist with the delivery of the second twin, Freddy. Freddy suffered blood loss
and a ―hypoxic ischemic insult‖ that allegedly caused damage to his nervous
system and his kidneys.
Moreno filed suit against Presbyterian, Dr. Gore-Green, and Dr. Wilson
alleging that their negligence caused Freddy‘s injuries. In an attempt to comply
with chapter 74 of the civil practice and remedies code, Moreno filed an expert
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report by Dr. Samuel Tyuluman with her petition. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351 (West Supp. 2010). Presbyterian objected to Dr.
Tyuluman‘s report on the grounds that, as an obstetrician and gynecologist, Dr.
Tyuluman is not qualified to opine on kidney damage and neurological injuries.
Moreno then filed an expert report by Dr. Billy Arant, who is board certified in
pediatric nephrology. Presbyterian objected to this report as well and filed a
motion to dismiss for failure to comply with chapter 74. Presbyterian argued that
Dr. Arant‘s report failed to address causation and that Moreno still had not
provided a report addressing the neurological injuries.
A hearing was held on Presbyterian‘s motion, at which the trial court found
that the reports were sufficient as to the kidney damage claims, but insufficient as
to the neurological damage claims. The trial court granted a thirty-day extension
―to make a causal link for the neurological damage.‖
Moreno then filed a third expert report by Dr. John Seals, a neurologist.
Presbyterian objected to Dr. Seals‘s report, arguing it failed to address causation,
and it moved again to dismiss the claims against it. A hearing was held and the
court denied Presbyterian‘s motion. Presbyterian appeals.
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Standard of Review
We review a trial court‘s denial of a motion to dismiss for an abuse of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris v.
Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied); Ctr.
for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.
App.—Fort Worth 2008, pet. denied). To determine whether a trial court abused
its discretion, we must decide whether the trial court acted without reference to
any guiding rules or principles; in other words, we must decide whether the act
was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely
because a trial court may decide a matter within its discretion in a different
manner than an appellate court would in a similar circumstance, does not
demonstrate that an abuse of discretion has occurred. Id. But a trial court has
no discretion in determining what the law is or in applying the law to the facts,
and thus ―a clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion.‖ Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992) (orig. proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort
Worth 2004, pet. denied).
The Chapter 74 Expert Report Requirement
The purpose of the expert report requirement is to inform the defendant of
the specific conduct the plaintiff has called into question and to provide a basis
for the trial court to conclude that the claims have merit. Bowie Mem’l Hosp. v.
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Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). An expert report ―need not
marshal all the plaintiff‘s proof.‖ Palacios, 46 S.W.3d at 878 (construing former
Texas Revised Civil Statute art. 4590i, § 13.01). Additionally, the information in
the report ―does not have to meet the same requirements as the evidence offered
in a summary-judgment proceeding or at trial.‖ Id. at 879.A defendant may meet
the requirements of chapter 74 through multiple reports. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(i). A single report need not ―address all liability and
causation issues with respect to all physicians or health care providers or with
respect to both liability and causation issues for a physician or health care
provider.‖ Id. But read together, the reports must provide a ―fair summary‖ of the
experts‘ opinions regarding the ―applicable standards of care, the manner in
which the care rendered by the physician or health care provider failed to meet
the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.‖ Id. § 74.351 (r)(6).
If the defendant files a motion challenging the adequacy of the expert
report, the court shall grant the motion ―only if it appears to the court, after
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). An expert report is
defined as a report that ―provides a fair summary of the expert‘s opinions . . .
regarding applicable standards of care, the manner in which the care rendered
by the physician or health care provider failed to meet the standards, and the
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causal relationship between that failure and the injury, harm, or damages
claimed.‖ Id. § 74.351(r)(6). The trial court may grant one thirty-day extension to
cure a deficiency in the expert report. Id. § 74.351(c).
Discussion
Moreno sued Presbyterian for failing to provide adequate training to
employees, adequately-trained personnel, adequate policies and procedures,
and adequate supervision of employees. She brought claims for negligence as
well as vicarious liability for the negligent actions of the nurses and the doctors.
For each of those claims, Moreno was required to submit expert reports that set
forth the standard of care, the breach of that standard, and the causal connection
between the breach and the damages suffered. Id. § 74.351(r)(6).
1. The direct liability claims
Dr. Tyuluman‘s report stated that the standard of care for a hospital is to
―have properly trained nursing staff, appropriate policies and procedures and to
make sure the nurses follow them, including a chain of command policy.‖ The
only reference by Dr. Tyuluman to a breach of the standards set forth in his
report was to summarily allege that the hospital and nurses violated each of
those standards.
Neither Dr. Arant nor Dr. Seals attempted to describe any standard or
breach by the hospital. Instead their reports were specifically directed to fulfilling
the requirement of showing a causal connection between the failure of the health
care providers to meet the standards of care and the injury, harm, or damages
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claimed. Dr. Arant opined that the proximate cause of Freddy‘s kidney injuries
was asphyxia prior to birth. His report contains no opinion concerning how the
actions of the hospital caused asphyxia prior to birth. Dr. Seals‘s report states
that the damage to Freddy‘s brain was the result of ―an Hypoxic-Ischemic
process which occurred during the labor and delivery process.‖ Once again, the
doctor‘s report is completely devoid of any opinion as to how the hospital violated
a standard of care that caused this brain injury. Nowhere in any of the reports
does an expert provide insight on Presbyterian‘s staff training, its policies or
procedures, or what its ―chain of command‖ policy is.
Section 74.351(r)(6) of the civil practice and remedies code specifically
requires an expert report to include a fair summary of the manner in which care
rendered by the health care provider failed to meet the standards of care. Id.
Considering all the reports together, they still do not inform the hospital of what
specific conduct Moreno is calling into question. This deficiency fails to provide a
basis for the trial court to assess whether the claims have merit. See Shaw v.
BMW Healthcare, Inc., 100 S.W.3d 8, 12 (Tex. App.—Tyler 2002, pet. denied)
(―To constitute a good-faith effort, the report must inform the defendant of the
specific conduct the plaintiff has called into question and provide a basis for the
trial court to determine that the claims have merit.‖); RGV Healthcare Associates,
Inc. v. Estevis, 294 S.W.3d 264, 270–71 (Tex. App.—Corpus Christi 2009, pet.
denied) (holding that an expert report was deficient because it ―did not speak as
to how RGV Healthcare‘s direct conduct, such as the implementation of
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procedures, policies, or rules that could have ensured vigilant care, deviated from
the applicable standard of care‖). These reports merely provide an expert
conclusion about a breach by the hospital and therefore do not constitute a good
faith effort. See Palacios, 46 S.W.3d at 880 (holding that an expert report‘s
conclusory statements ―do not put the defendant or the trial court on notice of the
conduct complained of‖ and does not represent a good faith effort). The expert
reports were therefore deficient as to the direct liability claims against
Presbyterian, and the trial court abused its discretion by not finding them to be
so. See Estorque v. Schafer, 302 S.W.3d 19, 25 (Tex. App.—Fort Worth 2009,
no pet.) (noting that a report does not comply with statute if it omits the statutorily
required discussion of the standards of care, breach, or causation). We affirm
Presbyterian‘s issue as to those claims.
2. The vicarious liability claims for the nurses’ alleged negligence
Dr. Tyuluman‘s report stated,
The standard of care for nurses is to adequately monitor the patient
and to keep the physician informed of the patient‘s condition. If the
physician doesn‘t respond to notification of inability to monitor the
patient, then the standard of care requires the nurse to invoke the
chain of command. Further, if a nurse observes a physician
misusing forceps and/or a vacuum extractor, the nurse likewise has
to invoke the chain of command. According to the chart, this was
not done.
However, he fails to state how the nurses violated any of those standards.
An expert report ―must inform the defendant of the specific conduct the plaintiff
has called into question.‖ Palacios, 46 S.W.3d at 879. Dr. Tyuluman‘s report
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does not discuss what a nurse should do if monitoring the patient is impossible.
It does not explain what the ―chain of command‖ is or how and when a nurse
should invoke it. It does not opine on the proper length of time a nurse should
wait for a physician before invoking the chain of command or whether the amount
of time Moreno‘s nurses waited, if they did, fell below the standard of care. It
also does not state that the nurses did, in fact, observe a physician misusing
forceps or a vacuum extractor, or if they did, how and when they should have
initiated the chain of command. Dr. Tyuluman‘s report does not fairly describe
what acts he thinks are negligent, nor does it ―provide a basis for the trial court to
conclude that the claims have merit.‖ Id. Neither of the other expert reports
attempt to address the standard of care or breach by the nurses. Further, neither
Dr. Arant‘s nor Dr. Seals‘s reports describe any causal relationship between any
action or inaction of the nurses and the injuries complained of. We therefore hold
that the trial court abused its discretion by finding the reports sufficient as to
these claims. See Davisson v. Nicholson, 310 S.W.3d 543, 559 (Tex. App.—Fort
Worth 2010, no pet.) (holding that reports that failed to fault defendant for
plaintiff‘s injuries were inadequate). We sustain Presbyterian‘s issue as to these
claims.
3. The vicarious liability claims for the doctors’ alleged negligence
Dr. Tyuluman‘s report states that the standard of care for an obstetrician is
―to carefully monitor the patient and develop a plan for ultimate delivery;‖ ―to
obtain regular non-stress tests and biophysical profiles of the patient;‖ ―to come
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and evaluate the mother and fetus, especially when called by the nursing staff;‖
―to make sure the patient is adequately monitored and if that is not done or
cannot be done, then to proceed with a different plan;‖ and when it was
discovered that the second twin was in distress, ―to quickly deliver the second
baby.‖ He states that the doctor should have ―avoided‖ use of forceps and the
vacuum extractor, and that the doctors should have decided to perform a
Cesarean section when they realized they could not monitor the babies and
again when the second twin went into distress. Dr. Tyuluman also states that
because Moreno was of ―advanced maternal age,‖ the doctors should have
obtained ―regular non-stress tests and biophysical profiles‖ and that the doctors‘
failure to do this fell below the standard of care. While Dr. Tyuluman was
unqualified to testify as to the causal link between the delivery and Freddy‘s
kidney and neurological injuries, Dr. Arant and Dr. Seals are qualified and did
opine on the causal connection.
Taken together, the expert reports set out the standard of care, breach,
and causal relationship for the vicarious liability claims for the doctors‘ alleged
negligence. They therefore provide enough information to fulfill the two purposes
of the expert report—to inform the defendant of the specific conduct the plaintiff
has called into question, and to provide a basis for the trial court to conclude that
the claims have merit. See id. The trial court did not abuse its discretion in
refusing to dismiss these claims. We overrule Presbyterian‘s issue as to these
claims.
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Chapter 74’s Thirty-Day Extension
If an expert report has not been served, chapter 74 requires the dismissal
of the plaintiff‘s claims. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). It further
provides that if a report is considered not to have been served ―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.‖ Id. § 74.651(c).
Moreno already received one extension. However, that extension was
only to cure the deficiency ―regarding the causal relationship between the failure
to meet applicable standards of care of the hospital and/or nurses and Freddy
Coronado‘s alleged neurological injury.‖ The trial court specifically directed what
deficiency should be addressed. It otherwise found the expert reports sufficient.
Moreno therefore had no cause to amend the expert reports in any other regard. 2
See Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008) (―The statute does not
2
But see Women’s Clinic of South Tex. v. Alonzo, No. 13-10-00159-CV,
2011 WL 1106698, at *3, *6 (Tex. App.—Corpus Christi Mar. 24, 2011, no pet.)
(mem. op.) (refusing to remand for consideration of a thirty-day extension
because plaintiff already took advantage of an extension). In Alonzo, the trial
court‘s order directed Alonzo ―to cure the report‘s deficiency‖ and ―to produce a
report that attempts to cure the deficiencies in [the] current expert report.‖ Id. at
*1. Because the defendant had claimed there were a number of deficiencies,
Alonzo moved the court to specify what deficiencies she was to correct. Id. The
trial court did not so specify, and Alonzo attempted to correct only one of the
purported deficiencies. The appeals court noted that by virtue of the defendant‘s
objections and motion to dismiss, Alonzo ―was on notice of the potential
deficiencies in her report and acted at her own risk in failing to remedy those
alleged deficiencies . . . .‖ Id. at *3. In Alonzo, the trial court arguably found
more than one element deficient. In this case, the trial court specifically noted in
its order what it found deficient, and Moreno was only ordered to cure the
specified deficiency.
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allow for an extension unless, and until, elements of a report are ‗found
deficient.‘‖). Moreno attempted to cure the deficiency as directed by the court by
filing the report by Dr. Seals, and we hold that Dr. Seals‘s report adequately
summarized the causal relationship between events at delivery and Freddy‘s
neurological injuries.3 What we have not found sufficient is the description of the
hospital‘s standard of care, its breach of that standard, and the breach of the
nursing standard of care by the nurses. Because the trial court did not find the
reports deficient on those issues, the trial court did not determine whether
Moreno should be granted an extension to cure those deficiencies or if it should
dismiss the claims against the hospital as well as the vicarious liability claims for
the nurses‘ alleged negligence.
Contrary to Presbyterian‘s assertion in its motion for rehearing, this court is
not allowing Moreno a second extension. Rather, we remand the case so that
the trial court has the opportunity to determine whether Moreno should be
granted a thirty-day extension to cure what we have held to be deficient. See
Leland, 257 S.W.3d at 207 (noting that every court of appeals that has
addressed a deficient report has remanded the case to the trial court for the trial
court to determine whether to grant an extension); see also Gates v. Altaras, No.
10-09-00236-CV, 2010 WL 965960, at *3 (Tex. App.—Waco Mar. 10, 2010, no
pet.) (remanding the case to the trial court to consider an extension despite the
3
We also agree with the trial court that Dr. Arant‘s report satisfactorily
states the causal relationship between the delivery and Freddy‘s kidney injuries.
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fact that the parties previously agreed to one extension in the trial court because
the report was not found to be deficient until the appeal). Specifically, the trial
court must determine whether to afford Moreno the opportunity to serve an
expert report which sufficiently (1) sets forth the standard of care for the hospital
and describes the manner in which the hospital failed to meet that standard; and
(2) describes the manner in which the nurses breached the standard of care that
Dr. Tyuluman described as it pertains to them. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(6) (requiring an expert report to ―provide[] a fair summary of the
expert‘s opinions . . . regarding applicable standards of care, the manner in which
the care rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury, harm,
or damages claimed‖); Ctr. For Neurological Disorders, P.A. v. George, 261
S.W.3d 285, 296 (Tex. App.—Fort Worth 2008, pet. denied) (―The dismissal
remedy under subsection 74.351(b) is expressly made ‗subject to‘ subsection
74.351(c), and thus the legislature intended that the right to have a claim
dismissed under the subsection be limited by the trial court‘s ability to grant an
extension of time to cure any deficiencies.‖).
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Conclusion
We affirm the trial court‘s order as to the vicarious liability claims for the
doctors‘ actions. As for the direct liability claims against Presbyterian and the
vicarious liability claims for the nurses‘ actions, we reverse. We remand the case
to the trial court for further proceedings consistent with this opinion.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: July 7, 2011
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