Affirmed and Opinion Filed April 12, 2016
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-15-01083-CV
NEXION HEALTHCARE MANAGEMENT, INC. D/B/A DUNCANVILLE
HEALTHCARE AND REHABILITATION CENTER, Appellant
V.
MARIA SOSA, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF NICOLAS
RUBEN SOSA, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-01708
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Myers
Opinion by Justice Bridges
Appellant Nexion Healthcare Management, Inc. d/b/a Duncanville Healthcare and
Rehabilitation Center filed a motion to dismiss pursuant to chapter 74 of the Texas Civil Practice
and Remedies Code based on the expert report filed by appellee Maria Sosa, individually and on
behalf of the Estate of Nicolas Ruben Sosa. The trial court denied the motion. On appeal,
Duncanville argues the trial court abused its discretion by denying its motion to dismiss because
the doctor was unqualified to give an opinion and his opinion did not sufficiently identify
causation. We affirm the trial court’s order.
Background
Nicolas Sosa was admitted to Duncanville on June 28, 2013. At the time, he suffered
from hypertension, altered mental state, congestive heart failure, chronic kidney disease stage IV,
high cholesterol, respiratory failure, diabetes, dementia, encephalopathy, depression, COPD, and
difficulty swallowing. Because of his swallowing problems, Mr. Sosa was fed by a gastrostomy
tube into his stomach. On admission to Duncanville, Mr. Sosa weighed 165 pounds. On July 8,
2013, a registered dietician performed a nutritional assessment and recommended his tube
feedings be changed to increase his caloric intake. However, the dietician did not have Mr.
Sosa’s weight and could not do an accurate assessment of his nutritional needs. Regardless, Mr.
Sosa maintained his weight through July 27, 2013. However, on August 5, 2013, he weighed
149, which represented a nine percent loss in body weight in less than two weeks.
Documentation by the nursing staff was inaccurate in many ways making it impossible to
accurately determine how and when Mr. Sosa was being fed, but it appeared nursing staff failed
to feed him on July 10, July 11, and July 12.
On July 18, 2013, the dietician determined Mr. Sosa was not receiving adequate
hydration and requested an increase in fluids and food. She made this determination based on
lab results showing elevated Creatinine and Blood Urea Nitrogen (BUN) levels. Records also
indicated Mr. Sosa was given Lasix, a diuretic which exacerbates dehydration, despite a doctor’s
order to stop the medication.
Around 9 a.m. on August 6, 2013, nursing staff noted Mr. Sosa had poor posture, low
blood pressure, and increased tiredness. At 11:30 a.m., Mr. Sosa’s blood sugar was high, but he
did not receive insulin. Mr. Sosa was found unresponsive in his room at 2:30 p.m. and
immediately transported to the hospital. The emergency room doctor told Sosa her husband was
brain dead; however, doctors resuscitated his heart and put him on a ventilator. Hospital records
indicated Mr. Sosa was suffering from kidney failure, sepsis, bloody and cloudy urine, and
aspiration pneumonia. Mr. Sosa died the next day after life support was removed.
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Sosa filed suit alleging Duncanville acted negligently by (1) failing to properly supervise
a patient under its care; (2) failing to properly monitor a patient under its care; (3) leaving a
patient unattended; (4) failing to reasonably ensure the safety of a patient under its care; and (5)
failing to provide the care a reasonable and prudent nursing home provider should have
provided. Dr. Michael Zeitlin and Donna du Bois, MPH, RN filed expert reports in support of
Sosa’s claims. Duncanville objected to both reports and argued neither person was qualified to
provide an expert opinion and Dr. Zeitlin failed to provide a causal relationship between
Duncanville’s alleged actions and Mr. Sosa’s death. The trial court denied the motion, and this
appeal followed.
Standard of Review and Applicable Law
We review a trial court’s decision on a motion to dismiss under section 74.351 of the
Texas Civil Practice and Remedies Code for an abuse of discretion. Strobel v. Marlow, 341
S.W.3d 470, 473 (Tex. App.—Dallas 2011, no pet.). The trial court abuses its discretion if it acts
unreasonably, arbitrarily, or without reference to any guiding rules or principles. Kelly v.
Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We may not
reverse a trial court’s discretionary ruling simply because we may have decided it differently. Id.
Trial courts are instructed that they “shall grant a motion challenging the adequacy of an
expert report only if it appears to the court, after hearing, that the report does not represent an
objective good faith effort to comply with [the Act.]” TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(l) (West Supp. 2015). Under the statute, the expert report must provide a “fair summary”
of the expert’s opinions regarding applicable standards of care, the manner in which the care
rendered by the defendant physician or healthcare 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).
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The causation requirement is met if the report explains the basis of the expert’s
statements, linking his conclusions to the facts. Christus Spohn Health Sys. Corp. v. Lackey, No.
13-10-00222-CV, 2010 WL 3279706, at *2 (Tex. App.—Corpus Christi Aug. 19, 2010, no pet.)
(mem. op.). Causation may not be inferred; therefore, a conclusory report does not meet the
statutory requirements of chapter 74. See Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.—
El Paso 2008, no pet.); see also Lackey, 2010 WL 3279706, at *2.
An expert report need not marshal all of the plaintiff’s proof, but it must include the
expert opinion on each of the elements identified in the statute. Kelly, 255 S.W.3d at 672. The
report must provide only enough information to fulfill two purposes: (1) it must inform the
defendant of the specific conduct the plaintiff has called into question and (2) it must provide a
basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Kelly, 255 S.W.3d at 672.
In deciding whether the statutory standard has been met, the trial court examines only the
four corners of the expert’s report and curriculum vitae (CV). Kelly, 255 S.W.3d at 672. A court
may not fill gaps in a report by drawing inferences or guessing what the expert meant or
intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).
Is Dr. Zeitlin Qualified to Give an Expert Opinion?
In its second issue, Duncanville argues the trial court abused its discretion by denying its
motion to dismiss because Dr. Zeitlin’s report and CV fails to show he is qualified to give expert
opinions. Duncanville asserts Dr. Zeitlin failed to satisfy the requirements of section
74.402(a)(2) because he has never practiced health care in a nursing home and his report does
not demonstrate he “has other substantial training or experience in providing nursing care to
nursing home residents.” Duncanville also argues because he has no experience working in a
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nursing home, he does not actively practice healthcare “in rendering health care services relevant
to Plaintiff’s claim” as required by section 74.402(c)(2).
In determining whether a witness is qualified on the basis of training or experience, the
trial court considers 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 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(c). “Practicing health care”
includes: (1) training health care providers in the same field as the defendant health care provider
at an accredited educational institution; or (2) serving as a consultant health care provider and
being license, certified, or registered in the same field as the defendant health care provider. Id.
§ 74.402(a).
Although Duncanville argues Dr. Zeitlin is unqualified to give an expert opinion because
he has no training or experience in a nursing home, the relevant question is not so narrow.
Rather the broader question is whether he is knowledgeable through his training and experience
to opine on the causal relationship between the alleged departure from the accepted standards of
care and the injuries suffered by an elderly and infirm person. See Christian Care Ctrs., Inc. v.
Golenko, 328 S.W.3d 637, 644 (Tex. App.—Dallas 2010, pet. denied) (noting relevant question
was whether nursing home staff should have recognized patient’s condition and not whether
expert doctor had worked in a nursing home); IHS Acquisition No. 140, Inc. v. Travis, No. 13-07-
481-CV, 2008 WL 1822780, at *5 (Tex. App.—Corpus Christi Apr. 24, 2008, pet. denied)
(mem. op.).
Dr. Zeitlin’s CV states he is “actively practicing medicine and rendering medical care
services relevant to the issues presented in Nicolas Sosa’s claim.” He is board certified in family
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practice and geriatric medicine. During his geriatric fellowship training, he worked at the Jewish
Home for the Ageing, described as providing “acute care for the elderly” and “skilled nursing
facility.” In addition, he had staff privileges at Warm Springs Long Term Acute Care Hospital
during the relevant time. Since 2003, he has served as the chairman of the Geriatric Medicines
Sub-committee of the Bexar County Medical Society. He is a member of the American
Geriatrics Society and serves as a “Developmental Consultant, PACE de Bexar (Program for the
All Inclusive Care for the Elderly) Bexar County Medical Society.” Dr. Zeitlin has authored
papers on issues pertaining to the elderly and given multiple lectures on such geriatric topics
including “Parenteral Feeding in Long Term Care, Ethical and Technical Considerations,”
“Pressure Ulcers,” “Wellness for Older Adults,” “Introduction to Geriatric Medicine,” and “Gait
Instability & Falls in the Elderly.”
Dr. Zeitlin’s CV demonstrates he has the necessary training and experience to qualify as
an expert under section 74.402. Accordingly, the trial court did not abuse its discretion by
determining Dr. Zeitlin was qualified to provide an expert opinion. We overrule Duncanville’s
second issue.
Did Dr. Zeitlin’s Report Sufficiently Identify Causation?
In its first issue, Duncanville argues the trial court abused its discretion by denying its
motion to dismiss because Dr. Zeitlin’s report is nothing more than conclusory statements that
fail to explain how or why Duncanville’s conduct led to Mr. Sosa’s death. Sosa responds,
viewing the report in its entirety, the report provides several specific acts of negligence that
caused Mr. Sosa’s death and adequately puts Duncanville on notice of the claims against it.
Before considering Dr. Zeitlin’s report, we must first address Duncanville’s argument
that we may not consider the expert report of Donna du Bois, MPH, RN in our analysis.
Duncanville acknowledges that multiple expert reports may be considered in determining
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whether a claimant has satisfied the requirements of chapter 74. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(i). However, Duncanville argues du Bois’s report cannot be used to supply a
causation opinion because she is not a physician. Id. § 74.351(r)(5)(C) (stating a physician must
render opinion on medical causation). We disagree.
“While a nurse’s report, standing alone, is inadequate to meet the requirements of the
statute as to medical causation, nothing in the health care liability statute prohibits an otherwise
qualified physician from relying on a nurse’s report in the formation of the physician’s own
opinion.” Kelly, 255 S.W.3d at 676. In preparing his report, Dr. Zeitlin reviewed du Bois’s
report. Duncanville has not challenged on appeal du Bois’s expert report explaining standard of
care or breach of the standard of care. Thus, we are permitted, as was the trial court, to read Dr.
Zeitlin’s and du Bois’s reports together in determining whether Sosa established the causal
relationship between any negligence by Duncanville and the injuries suffered by Mr. Sosa. Id.;
see also Lackey, 2010 WL 3279706 at *4.
In reviewing whether an expert report addresses the causal relationship between the
health care provider’s failure to meet the applicable standard of care and the injury, there are no
“magical words” required to establish causation. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
53 (Tex. 2002). Rather, a causal relationship is established by proof that the negligent act or
omission was a substantial factor in bringing about the harm, and that absent the act or omission,
the harm would not have occurred. Nexion Health at Garland, Inc. v. Townsend, No. 05-15-
00153-CV, 2015 WL 3646773, at *4 (Tex. App.—Dallas June 12, 2015, pet. denied) (mem. op.).
An expert may show causation by explaining a chain of events that begins with the defendant
health care provider’s negligence and ends in injury to the plaintiff. McKellar v. Cervantes, 367
S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.). While a claimant is not required to
conclusively prove the case through preliminary expert reports, the reports may not merely state
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conclusions but must link the causation opinions to the alleged breach. Townsend, 2015 WL
3646773, at *4.
Dr. Zeitlin, relying on Mr. Sosa’s death certificate, states Mr. Sosa died from anoxic
encephalopathy from prolonged cardiac arrest, end state heart disease, and stage V chronic
kidney disease. Duncanville argues the report does not explain how or why any of its alleged
conduct caused these conditions.
Dr. Zeitlin, relying on du Bois’s report, states Duncanville provided substandard care
throughout Mr. Sosa’s residency and did not meet his needs. Because of Duncanville’s breach of
the standard of care, Mr. Sosa “became malnourished and dehydrated, developed pressure sores,
and died.”
Dr. Zeitlin opines that Duncanville breached the standard of care by failing to properly
manage Mr. Sosa’s feeding tube and failing to properly manage his kidney disease, which
resulted in dehydration thereby causing Mr. Sosa’s kidneys to fail. Dr. Zeitlin notes there is
“overwhelming evidence of neglect of Mr. Sosa’s nursing and dietary needs,” and explains that
despite the dietician recommending an increase in his caloric intake on July 8, 2013, the dietician
did not have his accurate weight, which is necessary to evaluate if he is at his ideal body weight
and to determine his caloric needs. Dr. Zeitlin notes that documentation of Mr. Sosa’s feedings
are inaccurate making it impossible to determine how and when he was fed; however, the staff
failed to feed him on July 10, July 11, and July 12. “This was a breach of the standard of care
and deadly for Mr. Sosa who was fragile and completely dependent on staff for his feedings.” At
the time of his death, Mr. Sosa weighed 149 pounds, which represented a nine percent loss in
body weight in a short period of time.
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Dr. Zeitlin’s report further explains lab results indicating Mr. Sosa was not receiving
adequate hydration. On July 18, 2013, Mr. Sosa had elevated BUN and Creatinine levels, which
Dr. Zeitlin explains as follows:
Creatinine is a chemical waste molecule that is generated from
muscle metabolism. It is filtered by the kidneys. The level of
Creatinine in the blood is a reliable measure of the level of kidney
function. A high Creatinine level is indicative of the kidneys not
filtering as needed and the build up of waste in the blood. Mr.
Sosa’s Creatinine level was 3.4, which is over the normal range of
.6 to 1.3. BUN is also a metabolic by-product which can build up
if the kidney function is impaired. Mr. Sosa’s BUN was 53, above
the normal range of 7 to 18. BUN level is also a reliable indicator
of dehydration, with the BUN increasing as a person becomes
more dehydrated.
Dr. Zeitlin explains Duncanville’s staff improperly gave Mr. Sosa Lasix, a diuretic that
exacerbated his dehydration by removing excess fluid from the body. Nurse du Bois’s report
states that the staff gave Mr. Sosa Lasix twice a day beginning August 1, 2013, despite a July 1,
2013 order to hold the medication. She further explains the Lasix would have worsened his
dehydration, and Lasix can easily become toxic in patients with renal disease and create
electrolyte imbalances. Further, “[s]taff did not follow physician orders to monitor his intake
and output and this was of critical importance due to his kidney disease since dehydration can
lead to kidney failure even in someone with healthy kidneys.” Monitoring Mr. Sosa’s fluid
intake was part of two care plans and “essential” to his kidney health. However, staff did not
develop a care plan to address his kidney disease, despite knowing upon his admission that he
suffered stage IV chronic kidney disease. Nurse du Bois’s report explains that although most
patients with stage IV renal disease are on dialysis, he had not yet required it. “Still his kidneys
were badly damaged and staff needed to take every precaution to maintain they remained
functioning . . . [b]ecause dehydration can lead to kidney failure.”
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Despite Mr. Sosa’s July 18, 2013 lab results indicating dehydration and an order from the
dietician to increase fluid intake, Mr. Sosa’s dehydration worsened. On August 6, 2013, his
BUN level reached 189, his Creatinine increased to 7.00, and his electrolytes were high. Dr.
Zeitlin’s report also states Mr. Sosa’s Osmolality was 378, which he explains as follows:
Osmolality is a test of the concentration of all chemical particles in
the fluid of the blood. Normal range is from 260-280. A high
Osmolality is indicative of dehydration, high levels of uremia
waste in the blood, high blood sugar, and diabetes insipidus, a
condition in which the kidneys are unable to prevent the excretion
of water.
He then opines that Mr. Sosa’s body could not survive with such stress on his kidneys and these
lab reports “are indicative of acute kidney failure.” He then concludes:
The failures of the nursing staff of Duncanville Healthcare and
Rehabilitation Center to manage his kidney disease and provide
food and water as needed caused Mr. Sosa to become dehydrated
and caused his kidneys to fail . . . Had the nursing staff properly
managed Mr. Sosa’s feeding tube and ensured that he received
proper food and water, it is medically probable that his kidneys
would not have failed and he would not have died August 7, 2013.
Reading Dr. Zeitlin’s and du Bois’s reports together, the reports address and link Dr.
Zeitlin’s causation opinion to specific facts such that Duncanville had notice of the complaints
against it. He explained the chain of events that began with Duncanville’s negligence—failing to
follow orders to increase fluid intake, failing to provide any nutrition for three days, ignoring
orders to stop giving Lasik and instead continuing the medicine twice a day, and failing to
monitor intake and output—and resulted in Mr. Sosa’s kidney failure, which partly led to his
death. See McKellar , 367 S.W.3d at 485.
The two-fold purpose of an expert report under section 74.351 is to inform the defendants
of the specific conduct the plaintiff has called into question and to provide the trial court with a
basis to determine whether or not the plaintiff’s claims have merit and are not frivolous. Kelly,
255 S.W.3d at 679. Dr. Zeitlin’s report meets this standard. And while we acknowledge Dr.
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Zeitlin’s report details other acts of negligence possibly causing injury and contributing to Mr.
Sosa’s death, such as failing to discover his aspiration pneumonia and failing to prevent pressure
sores on his hip and heel, we need not address them. See Certified EMS, Inc. v. Potts, 392
S.W.3d 625, 630 (Tex. 2013) (concluding a report that satisfies chapter 74, “even if as to one
theory only, entitles the claimant to proceed with a suit against the physician or health care
provider”). The trial court did not abuse its discretion by denying Duncanville’s motion to
dismiss. We overrule Duncanville’s first issue
Conclusion
We affirm the trial court’s order.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
151083F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEXION HEALTH MANAGEMENT, INC. On Appeal from the 14th Judicial District
D/B/A DUNCANVILLE HEALTHCARE Court, Dallas County, Texas
AND REHABILITATION CENTER, Trial Court Cause No. DC-15-01708.
Appellant Opinion delivered by Justice Bridges.
Justices Francis and Myers participating.
No. 05-15-01083-CV V.
MARIA SOSA, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF NICOLAS
RUBEN SOSA, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee MARIA SOSA, INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF NICOLAS RUBEN SOSA recover her costs of this appeal from appellant
NEXION HEALTH MANAGEMENT, INC. D/B/A DUNCANVILLE HEALTHCARE AND
REHABILITATION CENTER.
Judgment entered April 12, 2016.
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