NUMBERS 13-14-0700-CV and 13-15-0119-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HARLINGEN MEDICAL CENTER,
LIMITED PARTNERSHIP, Appellant,
v.
ROSA ANDRADE, AS NEXT FRIEND
OF MARY HELEN ANDRADE, A MINOR
CHILD; AND DOLORES RINCONES,
ACTING BY AND THROUGH AS POWER
OF ATTORNEY AND IN THE ALTERNATIVE
AS NEXT FRIEND OF RICARDO ANDRADE,
SURVIVING FATHER OF GEORGE ANDRADE,
DECEASED, AND SERJIO ANDRADE,
AS REPRESENTATIVE OF THE ESTATE
OF GEORGE ANDRADE, DECEASED,
AND ON BEHALF OF HEIRS OF THE
ESTATE AND ON BEHALF OF ALL
THOSE ENTITLED TO RECOVER
UNDER THE TEXAS WRONGFUL
DEATH ACT FOR THE DEATH OF
GEORGE ANDRADE, DECEASED, Appellees.
On appeal from the 404th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
In this consolidated appeal, appellant Harlingen Medical Center, L.P. (“Harlingen
Medical Center”) asserts by three issues, which we construe as one, that the trial court
abused its discretion in denying its two motions to dismiss the medical negligence suit
brought by appellees (collectively “Andrade”).1 We affirm.
I. BACKGROUND
Andrade alleges that on December 18, 2011, George Andrade (herein “George”)
arrived at Harlingen Medical Center’s emergency room complaining of severe chest
pains. Shortly thereafter, doctors admitted George and diagnosed him with a dissected
aorta extending from the thoracic aorta to the iliac crests. The next day, doctors
concluded that George required surgery to address his condition, and Dr. Ruben M.
Lopez, a surgeon, recommended that George be transferred from Harlingen Medical
Center to Memorial Hermann Hospital in Houston; however, Memorial Hermann declined
the transfer request. According to Andrade’s lawsuit, no other attempts were made to
1 The full list of appellees is as follows: Rosa Andrade, as next friend of Mary Helen Andrade, a
minor child; and Dolores Rincones, acting by and through as power of attorney and in the alternative as
next friend of Ricardo Andrade, surviving Father of George Andrade, deceased, and Serjio Andrade, as
representative of the estate of George Andrade, deceased, and on behalf of heirs of the estate and on
behalf of all those entitled to recover under the Texas Wrongful Death Act for the death of George Andrade,
deceased.
2
transfer George despite the fact that he was “facing a life or death emergency.” On
December 20, 2011, doctors entered an order of transfer “for emergent surgery” to treat
his “ascending aortic [dissection],” but George was never transferred. Harlingen Medical
Center personnel also made other unsuccessful attempts to transfer Andrade to hospitals
in Galveston and San Antonio. Andrade alleges that on December 21, 2011, no further
attempts were made to transfer George to another hospital. On December 22, 2011,
George died at Harlingen Medical Center.
On March 3, 2014, Andrade filed a wrongful death lawsuit against Harlingen
Medical Center, David Yardley, M.D., Nataraj Desai, M.D., M. Shereef Hilmy II, M.D., and
Dr. Lopez, alleging various acts of medical negligence related to George’s death. On
June 27, 2014, Andrade filed her statutorily-mandated expert reports, see TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351 (West, Westlaw through 2015 R.S.), prepared by C. Warren
Adams, M.D. and Daniel DeBehnke, M.D. At some point after filing these two expert
reports, Andrade served an additional expert report by Ralph Cross, a hospital
administrator. On July 18, 2014, Harlingen Medical Center filed a motion to dismiss
Andrade’s cause of action against it by alleging that none of Andrade’s three expert
reports gave an opinion as to how it violated the applicable standards of care, and that
the reports were “conclusory and speculative” with regard to causation of any breach by
Harlingen Medical Center or its agents. On November 12, 2014, the trial court granted
in part and denied in part Harlingen Medical Center’s motion to dismiss. In its order, the
trial court granted Andrade a thirty-day extension to supplement its expert reports with
“an expert qualified to render an opinion concerning the applicable standard of care for
Harlingen Medical Center and whether that standard of care was breached.”
3
On December 10, 2014, Andrade filed an expert report written by Gerald “Craig”
Felty, R.N., who opined as to the standards of care applicable to Harlingen Medical Center
and its agents in this case, as well as how those standards of care were breached.
Harlingen Medical Center subsequently filed its second motion to dismiss alleging that
because Felty is not a physician, he cannot provide an opinion on causation, and that his
opinions regarding causation are conclusory and insufficient. After holding a hearing,
the trial court denied Harlingen Medical Center’s second motion to dismiss. This
interlocutory appeal followed. See id. § 51.014(a)(9) (West, Westlaw through 2015
R.S.).
II. EXPERT REPORTS
By three issues, which we treat as one, Harlingen Medical Center asserts that the
trial court abused its discretion in denying its second motion to dismiss based upon the
alleged inadequacies of Andrade’s expert reports.
A. Standard of Review and Applicable Law
A trial court's ruling on the sufficiency of an expert's report is reviewed for an abuse
of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).
Under this review, we defer to the trial court’s factual determinations if they are supported
by the evidence, but review its legal determinations de novo. Id. A trial court abuses
its discretion if it acts without reference to guiding rules or principles. Id. However, in
exercising its discretion, it is incumbent upon the trial court to review the reports, sort out
their content, resolve any inconsistencies, and decide whether the reports demonstrated
a good faith effort to show that the plaintiff’s claims have merit. See id. at 144; see TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(l) (“A court shall grant a motion challenging the
4
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 definition of an expert
report . . . .”).
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 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). In his report, an expert must explain, based on
facts set out in the report, how and why the breach caused injury. Van Ness, 461 S.W.3d
at 142. Finally, only a physician may render an opinion about the causal relationship
between the injury, harm, or damages claimed and the alleged departure from the
applicable standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C);
Henry v. Kelly, 375 S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
B. Discussion
Harlingen Medical Center first argues that Andrade’s expert reports are inadequate
because the opinions regarding causation were “impermissibly conclusory and
speculative.” As a preliminary matter, we note that Harlingen Medical Center challenges
only the issue of causation on appeal and does not challenge the opinions offered by
Andrade’s experts regarding the applicable standards of care and the failures to meet
these standards of care. Thus, we will solely examine the issue of causation. See TEX.
R. APP. P. 47.1.
We agree with Harlingen Medical Center’s argument that non-physicians cannot
render opinions regarding causation, see TEX. CIV. PRAC. & REM. CODE ANN. §
5
74.351(r)(5)(C); Henry, 375 S.W.3d at 535; accordingly, we will only review the opinions
offered by Dr. Adams and Dr. DeBehnke regarding causation for purposes of this
analysis. First, Dr. Adams, who is a board-certified cardiovascular and thoracic surgeon,
opined that George presented to Harlingen Medical Center with a “Type 1 aortic
dissection,” which is “a tear in the wall of the aorta from above or at the level of the aortic
valve, thru the aortic arch and down thru the descending aorta.” Dr. Adams further
labeled George’s condition as a “cardiovascular surgical emergency” due to the “high
incidence of rupture or pericardial tamponade resulting in immediate mortality.” Dr.
Adams noted in his report that failure to receive surgical treatment within 72 hours of this
condition “can cause immediate bleeding into the pericardium mediastinum or free rupture
into the thoracic cavities.” With regard to the allegations of breaches of the standard of
care by Harlingen Medical Center, Dr. Adams asserted that Harlingen Medical Center and
its agents’
delay and failure to provide and arrange for providing immediate surgery
within the capabilities of the hospital and medical staff, arranging for an
emergent and proper transfer for [George] to a tertiary center as ordered by
physicians . . . and in a timely manner resulted in progression of the
dissection, with the known complication of rupture and death.
Dr. Adams further emphasized that Harlingen Medical Center and its staff failed to provide
George with an emergent transfer in a timely manner, in a situation where “time [was] of
the essence.” Finally, Dr. Adams opined that had Harlingen Medical Center facilitated
this emergent transfer with time in mind, within reasonable medical probability, George
would have “more likely than not survived.” Second, Dr. DeBehnke, who is an
emergency medicine physician, similarly opined that George’s aortic rupture and ultimate
death would not have occurred had Harlingen Medical Center and its agents not failed to
6
“implement and complete . . . two emergent transfer orders” to “another facility in a timely
manner,” and that Harlingen Medical Center and its employees’ “delays adversely
affected” George’s condition.
Harlingen Medical Center argues, however, that despite these opinions offered by
Dr. Adams and Dr. DeBehnke, it is nevertheless entitled to dismissal because their
opinions fail to state how more efforts to accomplish Andrade’s transfer would have
resulted in a successful transfer by pointing out that Andrade lacked financial resources
and transportation to a possible transferee hospital. We find this argument unpersuasive
because it places a higher burden on Andrade than that which is required at this stage of
the proceeding.
An expert report in a medical negligence case serves two purposes: (1) inform
the defendant of the specific conduct the plaintiff has called into question; and (2) provide
a basis for the trial court to conclude that the claims have merit. Certified EMS, Inc. v.
Potts, 392 S.W.3d 625, 630 (Tex. 2013). In other words, the report need not cover every
alleged liability theory to make the defendant aware of the conduct that is at issue, or
require “litigation-ready evidence.” Id. at 630–31. The evidentiary burden borne by a
plaintiff seeking to avoid dismissal at this stage of her case is a lower standard than that
required in a summary-judgment proceeding or trial. See id. at 631. Thus, the report
must sufficiently describe the defendant’s alleged conduct, inform the defendant of the
behavior in question, and allow the trial court to determine if the allegations have merit.
Id. If the trial court decides that the liability theory is supported, then the claim is not
frivolous, and the suit may proceed. See id. This approach fulfills the Legislature’s
intent of Chapter 74 by expeditiously weeding out claims that have no merit, deterring
7
frivolous claims, and not disposing of claims regardless of their merit. Id. (citing Loaisiga
v. Cerda, 379 S.W.3d 248, 263 (Tex. 2012); Scoresby v. Santillan, 346 S.W.3d 546, 554
(Tex. 2011)).
Here, Andrade advanced at least one theory of liability against Harlingen Medical
that had expert support: Harlingen Medical Center and its agents failed to effectuate a
timely transfer order for Andrade, which prolonged the lack of emergent intervention
necessary to treat his Type 1 dissected aorta that ultimately led to his death.
Accordingly, the trial court did not abuse its discretion by denying Harlingen Medical
Center’s motions to dismiss based on the alleged inadequacies of Andrade’s expert
reports.
Finally, Harlingen Medical Center appears to challenge the merits of one of
Andrade’s theories of liability regarding whether it was negligent for not ensuring that
Andrade’s surgery was performed at Harlingen Medical Center by Dr. Lopez. Harlingen
Medical Center argues that because Dr. Lopez determined to transfer Andrade rather
than operate on him at Harlingen Medical Center, Harlingen Medical Center cannot be
held liable under such a theory. We decline to address the merits of this argument
because we have already concluded that the trial court did not abuse its discretion in
finding at least one theory of liability against Harlingen Medical Center supported by
expert reports, which makes the claim not frivolous and permits the suit to proceed. See
id.; see also TEX. R. CIV. P. 47.1.
Harlingen Medical Center’s three issues are overruled.
8
III. CONCLUSIONS
We affirm the trial court’s orders.
GINA M. BENAVIDES,
Justice
Delivered and filed the
21st day of April, 2016.
9