TTHR Limited Partnership D/B/A Presbyterian Hospital of Denton v. Claudia Moreno, Individually and as Next Friend of Freddy Coronado, a Minor

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 OPINION1
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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

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See Tex. R. App. P. 47.4.
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

report by Dr. Samuel Tyuluman with her petition. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351 (Vernon 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.

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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.

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

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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.

Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 878 (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.

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 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

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).

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 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

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

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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

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

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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 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

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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 report describes 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

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

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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. The trial court otherwise found the expert

reports sufficient. Moreno therefore had no cause to amend the expert reports in

any other regard. Because the trial court did not find the reports deficient

regarding the standard of care and breach of that standard, the trial court did not

determine whether Moreno should be granted an extension to cure those

deficiencies or if the claims should be dismissed. We remand the case so that

the trial court has the opportunity to make such a determination. See Estorque,

302 S.W.3d at 25 (―An appeals court may find an expert report deficient and

remand the case to the trial court to decide whether to grant a thirty-day

extension to cure the deficiency.‖).

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 Conclusion

We affirm the trial court’s judgment as to the vicarious liability claims for

the doctor’s 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: March 17, 2011

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