ACCEPTED
12-14-00357-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/11/2015 5:41:13 PM
CATHY LUSK
CLERK
ORAL ARGUMENT REQUESTED
NO. 12-14-00357-CV
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS FOR THE TWELFTH 3/11/2015 5:41:13 PM
DISTRICT
AT TYLER, TEXAS CATHY S. LUSK
Clerk
PINECREST SNF, LLC D/B/A PINECREST
NURSING & REHABILITATION CENTER,
Appellant,
v.
TASCO BAILEY, NATHAN BAILEY, CURLIE BAILEY, ROY BAILEY,
BILL BAILEY, JAMES BAILEY, EARL BAILEY, MARY DUNLAP AND LICILLE
MARTIN, AS HEIRS OF ARCHIE BAILEY,
Appellees.
On Interlocutory Appeal from the
114th Judicial District Court of Smith County, Texas
Cause No. 14-0856-B
The Honorable Christi Kennedy Presiding
BRIEF OF PINECREST NURSING PINECREST SNF, LLC D/B/A
PINECREST NURSING & REHABILITATION CENTER
NICHOL L. BUNN
State Bar No. 00790394
STEPHANIE F. ERHART
State Bar No. 24007180
LEWIS, BRISBOIS, BISGAARD
& SMITH, LLP
2100 Ross Avenue, Suite 2000
Dallas, Texas 75201
(214) 722-7100
(214) 722-7111 (fax)
ATTORNEYS FOR
PINECREST NURSING SNF, LLC
D/B/A PINECREST NURSING &
REHABILITATION CENTER
4830-3029-8914.1
IDENTITY OF PARTIES AND COUNSEL
In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,
Pinecrest Nursing provides the following complete list of all parties and counsel to
the trial court’s order that forms the basis of this appeal:
Pinecrest Nursing: Pinecrest SNF, LLC d/b/a
(Defendant) Pinecrest Nursing & Rehabilitation Center
Pinecrest Nursing’s Counsel: Nichol L. Bunn (Trial & Appeal)
Stephanie F. Erhart (Appeal)
LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
2100 Ross Avenue, Suite 2000
Dallas, Texas 75201
(214) 722-7100
(214) 722-7111 (fax)
Nichol.Bunn@lewisbrisbois.com
Stephanie.Erhart@lewisbrisbois.com
The Baileys: Tasco Bailey, Nathan Bailey, Curlie Bailey, Roy
(Plaintiffs) Bailey, Bill Bailey, James Bailey, Earl Bailey,
Mary Dunlap, and Lucille Martin, as Heirs of
Archie Bailey
The Baileys’ Counsel: Robert M. Wharton (Trial & Appeal)
Lauren Schultz (Trial & Appeal)
Mary E. Green (Trial & Appeal)
MCIVER BROWN LAW FIRM
JP Morgan Chase Bank Building
712 Main Street, Suite 800
Houston, Texas 77002
(832) 767-1673
(832) 767-1783 (fax)
firm@mciverbrown.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................................... ii
TABLE OF CONTENTS ............................................................................................iii-iv
ABBREVIATIONS AND RECORD REFERENCES ...............................................................v
INDEX OF AUTHORITIES......................................................................................... vi-ix
STATEMENT OF THE CASE ...................................................................................... x-xi
STATEMENT REGARDING ORAL ARGUMENT .............................................................xi
STATEMENT OF JURISDICTION ............................................................................. xi-xii
ISSUES PRESENTED ................................................................................................... xii
INTRODUCTION ............................................................................................................1
I. STATEMENT OF FACTS ........................................................................................2
A. Factual Background .............................................................................. 2-3
B. Allegations Against Pinecrest Nursing .....................................................3
C. Procedural History of Dr. Davey’s Reports ..............................................4
II. SUMMARY OF THE ARGUMENT ............................................................................5
III. ARGUMENT .........................................................................................................6
A. Standard of Review ...................................................................................6
B. Requirements of 74.351 Expert Reports ............................................... 6-8
C. Dr. Davey’s Amended Report is Deficient Because it Addresses
Causation in a Conclusory Manner ....................................................... 8-9
1. Dr. Davey’s Amended Report Failed to Adequately Explain
How Pinecrest Nursing’s Alleged Breaches of the Standard
of Care Caused Mrs. Bailey’s Pressure Ulcer............................. 9-15
iii
2. Dr. Davey’s Amended Report Failed to Adequately Explain
How Pinecrest Nursing’s Alleged Breaches of the Standard
of Care Caused Mrs. Bailey’s Death......................................... 15-19
IV. CONCLUSION AND PRAYER ...............................................................................20
CERTIFICATE OF SERVICE ..........................................................................................22
CERTIFICATE OF COMPLIANCE ..................................................................................23
APPENDIX TO PINECREST NURSING’S BRIEF........................................................ 24-84
1. Amended Expert Report of Dr. Christopher Davey
2. Order on Expert Report Challenges
3. Amended Order on Expert Report Challenges
4. Tex. Civ. Prac. & Rem. Code 74.351
iv
ABBREVIATIONS AND RECORD REFERENCES
ABBREVIATIONS:
Pinecrest Nursing/Defendant Pinecrest SNF, LLC d/b/a Pinecrest Nursing &
Rehabilitation Center is referred to as “Pinecrest Nursing” or “Pinecrest”.
The Baileys/Plaintiffs Tasco Bailey, Nathan Bailey, Curlie Bailey, Roy Bailey, Bill
Bailey, James Bailey, Earl Bailey, Mary Dunlap, and Lucille Martin, as Heirs of
Archie Bailey are collectively referred to as “the Baileys”.
Archie Bailey is referred to as “Mrs. Bailey”.
Chapter 74 of the Texas Civil Practice & Remedies Code is referred to as “Chapter
74”.
The Baileys’ Chapter 74 Expert will be referred to as “Dr. Davey”.
The report at issue – Dr. Davey’s Amended Report filed on June 27, 2014 and
attached to Plaintiffs’ Notice of Filing Amended Ch. 74 Expert Report is referred
to as the “Amended Report.”
Curriculum vitae will be referred to as “CV”.
RECORD REFERENCES:
References in the clerk’s record are in the form (CR [page #]).
v
TABLE OF AUTHORITIES
STATE COURT CASES
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001).............................................................................................. 6, 7, 10
Austin Heart, P.A. v. Webb,
228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ................................................................. 9
Bakhtari v. Estate of Dumas,
317 S.W.3d 486 (Tex. App.—Dallas 2010, no pet.).................................................................. 8
Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002)...................................................................................... 6, 7, 8, 12, 15
Castillo v. August,
248 S.W.3d 874 (Tex. App.—El Paso 2008, no pet.)................................................................ 8
Christus Spohn Health Sys. Corp. v. Castro,
No. 13-13-00302-CV, 2013 Tex. App. LEXIS 14932 (Tex. App.—Corpus Christi
Dec. 12, 2013, no pet.).............................................................................................................. 13
Conboy v. Lindale Health Care, LLC, NO.,
12-12-00241-CV, 2013 Tex. App. LEXIS 11013 (Tex. App.—Tyler Aug. 29, 2013,
no pet.) ...................................................................................................................................... 14
Constancio v. Bray,
266 S.W.3d 149 (Tex. App.—Austin 2008, no pet.) ............................................................... 18
Cooper v. Arizpe,
No. 04-07-00734-CV, 2008 Tex. App. LEXIS 2506, 2008 WL 940490 (Tex. App.—
San Antonio Apr. 9, 2008, pet. denied) .................................................................................... 11
Costello v. Christus Santa Rosa Health Care Corp.,
141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.)............................................ 8, 16, 19
Doe v. Boys Clubs,
907 S.W.2d 472, 477 (Tex. 1995)............................................................................................ 19
Granbury Hosp. Corp. v. Hosack,
No. 10-09-00297-CV, 2010 Tex. App. LEXIS 3132 (Tex. App.—Waco Apr. 28,
2010, no pet.) ............................................................................................................................ 17
vi
Hillcrest Baptist Med. Ctr. v. Payne,
No. 10-11-00191-CV, 2011 Tex. App. LEXIS 9182 (Tex. App.—Waco Nov. 16,
2011, pet. denied)...................................................................................................................... 14
Hutchinson v. Montemayor,
144 S.W.3d 614 (Tex. App.—San Antonio 2004, no pet.)...................................................... 11
IHS Cedars Treatment Ctr. v. Mason,
143 S.W.3d 794 (Tex. 2003)................................................................................................ 8, 16
Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010).............................................................................................. 11, 15
Jernigan v. Langley,
195 S.W.3d 91 (Tex. 2006)........................................................................................................ 6
Lear Siegler, Inc. v. Perez,
819 S.W.2d 470 (Tex. 1991).............................................................................................. 16, 19
Lewis v. Funderburk,
234 S.W.3d 204 (Tex. 2008)...................................................................................................... 3
Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2012)...................................................................................................... 6
Methodist Hosp. of Dallas v. King,
365 S.W.3d 847 (Tex. App.—Dallas 2012, no pet.).................................................................. 6
Murphy v. Mendoza,
234 S.W.3d 23 (Tex. App.—El Paso 2007, no pet.)................................................................ 11
Nacogdoches County Hosp. Dist. v. Felmet, NO.,
12-12-00393-CV, 2013 Tex. App. LEXIS 14478 (Tex. App. —Tyler Nov. 26, 2013,
no pet.) ...................................................................................................................................... 10
Nexion Health at Southwood, Inc. v. Judalet,
No. 12-08-00464-CV, 2009 Tex. App. LEXIS 7404 (Tex. App. —Tyler Sept. 23,
2009, no pet.) ............................................................................................................................ 18
Nexion Health at Southwood, Inc. v. Judalet,
No. 12-08-00464-CV, 2009 Tex. App. LEXIS 7404 (Tex. App.—Tyler Sept. 23,
2009, no pet.) ...................................................................................................................... 13, 17
Ortiz v. Patterson,
No. 05–10–01356–CV, 2012 WL 3809217 (Tex. App.—Dallas, Aug. 31, 2012, no
pet. h.) ......................................................................................................................................... 7
vii
Perez v. Daughters of Charity Health Servs. of Austin,
No. 03-08-00200-CV, 2008 Tex. App. LEXIS 7648, 2008 WL 4531558 (Tex. App.—
Austin Oct. 10, 2008, no pet.)................................................................................................... 18
Pisasale v. The Ensign Group, Inc.,
No. 11-05-00196-CV, 2006 Tex. App. LEXIS 7983 (Tex. App. —Eastland
September 7, 2006, pet. denied)................................................................................................ 14
Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave,
300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................................... 19
Regent Health Care Ctr. of El Paso, L.P. v. Wallace,
271 S.W.3d 434 (Tex. App. —El Paso 2008, no pet.)............................................................. 17
Simonson v. Keppard,
225 S.W.3d 868 (Tex. App.—Dallas 2007, no pet.).................................................................. 6
Valle v. Taylor, NO.,
09-11-00223-CV, 2012 Tex. App. LEXIS 110 (Tex. App.—Beaumont Jan. 5, 2012,
no pet.) ...................................................................................................................................... 17
STATUTORY AUTHORITIES
Tex. Civ. Prac. & Rem. Code § 51.014(a)(9)(West........................................................................ 3
Tex. Civ. Prac. & Rem. Code §74.351. .......................................................................................... 4
Tex. Civ. Prac. & Rem. Code §74.351 ......................................................................................... 25
Tex. Gov’t Code § 22.201(m)......................................................................................................... 3
Tex. Gov’t Code § 24.216............................................................................................................... 3
STATE RULES AND REGULATIONS
Tex. R. App. P. 25.1...................................................................................................................... 22
Tex. R. Civ. P. 21a........................................................................................................................ 22
Tex. R. APP. P. 9.4 ....................................................................................................................... 23
viii
STATEMENT OF THE CASE
This health care liability claim arises from the care given to a resident during
one month of a three-year stay in a nursing home. This interlocutory appeal
focuses on the trial court’s ruling regarding the sufficiency of the 74.351 expert
report of Dr. Christopher Davey. (CR 243).
The Baileys filed the underlying health care liability lawsuit claiming that
Pinecrest Nursing was negligent in providing nursing care to Archie Bailey during
her residency in its facility thereby resulting in the development of a pressure sore
which became infected and contributed to Mrs. Bailey’s death. (CR 1-12). In an
attempt to comply with the statutory requirements of Chapter 74 of the Texas Civil
Practice and Remedies Code, the Baileys served an expert report and curriculum
vitae (“CV”) of Christopher M. Davey, M.D. (“Dr. Davey”). (CR 54-74).
Pinecrest Nursing objected to Dr. Davey’s report. (CR 75-105). The Court ruled
that Dr. Davey’s report was insufficient and gave the Baileys an extension in which
to cure the deficiencies in Dr. Davey’s report. (CR 139-140).
The Baileys filed an Amended Report from Dr. Davey. (CR 141-165).
Because Dr. Davey’s opinions regarding causation were conclusory, Pinecrest
Nursing objected that the Amended Report was still inadequate. (CR 166-192).
The Baileys filed an Original and an Amended Motion to Overrule Defendant’s
Objections to the Amended Chapter 74 Report of Christopher M. Davey, M.D.
ix
(CR 193-237). Pinecrest Nursing responded to the Baileys motion and requested
its objections be sustained. (CR 238-242). The Court overruled Pinecrest
Nursing’s objections by Order entered on November 25, 2014. (CR 243). This
appeal ensued. (CR 244-245).
STATEMENT REGARDING ORAL ARGUMENT
Pinecrest Nursing believes that oral argument would aid the Court in
reaching a resolution of this case. Even if the facts are simple (and medical facts
rarely are) and the legal issue is straightforward, oral argument will allow the
parties to explain the application of law to fact and, in particular, how the report of
Dr. Davey fails to satisfy the Chapter 74 requirements. Additionally, it would also
allow the parties to answer any questions that the Court may have.
STATEMENT OF JURISDICTION
This Court has jurisdiction to hear an interlocutory appeal denying a motion
to dismiss in a health care liability claim. Lewis v. Funderburk, 234 S.W.3d 204,
208 (Tex. 2008); TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9)(West Supp. 2012).
“The 114th Judicial District is composed of Smith County.” TEX. GOV’T CODE §
24.216 (West 2013). This Court’s appellate district contains Smith County, among
other counties. TEX. GOV’T CODE § 22.201(m) (West Supp. 2014). Thus, this Court
has jurisdiction to determine this interlocutory appeal about the trial court’s abuse
x
of discretion in ruling on Pinecrest Nursing’s objections to the 74.351 expert report
and its motion to dismiss.
ISSUE PRESENTED
Section 74.351 requires that the expert report explain the causal connection
between the alleged breaches in the standard of care and the injuries in question in
a non-conclusory manner. The report in this case only addresses causation in a
conclusory manner. It does not adequately explain how any breaches in the
standard of care by Pinecrest proximately caused injury to Mrs. Bailey. Further,
the Baileys’ expert report fails to explain how Pinecrest Nursing’s conduct caused
Mrs. Bailey’s death by cardiac arrest three months after she left the facility. Did
the trial court abuse its discretion in applying the law of 74.351 reports to Dr.
Davey’s report?
xi
TO THE HONORABLE TWELFTH DISTRICT COURT OF APPEALS:
Appellant Pinecrest Nursing submits this Brief praying that this Court
reverses the trial court’s ruling overruling the Chapter 74 objections and denying
Appellant’s motion to dismiss.
INTRODUCTION
Dr. Davey’s report fails to comply with the statutory requirements of
Chapter 74 because it contains no analysis of causation. In fact, the fifteen page
report only mentions causation in one 5 sentence paragraph and fails to adequately
explain the link between the alleged breaches in the standard of care to the cause of
Mrs. Bailey’s pressure ulcers and/or death. Although the report concedes that an
individual’s clinical condition can make pressure ulcers unavoidable, there is no
discussion of Mrs. Bailey’s underlying conditions and whether or not her pressure
ulcers were unavoidable in her case. As such, the report does not sufficiently
address causation with respect to Mrs. Bailey’s pressure ulcer and simply
concludes that her death was a result of Pinecrest Nursing’s conduct without
adequately linking the two.
The report’s lack of analysis is insufficient to meet even these minimal
standards. Therefore, the trial court abused its discretion when it found the report
sufficient.
1
I.
STATEMENT OF FACTS
A. Factual Background
This is a healthcare liability claim arising from the last month of residency
of 88 year-old Archie Bailey at Pinecrest Nursing & Rehabilitation Center.
Although Mrs. Bailey was a resident of Pinecrest for over 3 years, the care
questioned by the Baileys is limited to one month of her time there. (CR 4-9; 141-
165). Mrs. Bailey was admitted to Pinecrest on June 12, 2010 for long term care
for Alzheimer’s disease. (CR 146). At the time of her admission, Mrs. Bailey was
84 years old and her medical diagnoses included, but were not limited to:
Alzheimer’s disease; Hypertension; Congestive Heart Failure; Diabetes Mellinus
(Type II); and Asthma. See id.
Almost three years after her admission, on March 20, 2013, Mrs. Bailey
developed a pressure ulcer. (CR 146). However, it resolved with in two weeks.
See id. Mrs. Bailey had no other skin issues until August 12, 2013. (CR 146). At
that time, the nursing staff observed a 0.3x0.2cm sized macerated area on Mrs.
Bailey’s gluteal fold. (CR 146). By August 19, 2013, the area was slightly bigger
at 0.3x0.3cm and a small amount of serous exudate was observed with an odor. Id.
Between August 19, 2013 and September 19, 2013, Mrs. Bailey’s pressure ulcer
treatments were provided by her doctors, including a wound specialist, and nurses
2
at Pinecrest, but as of September 19, 2013, the wound had deteriorated to a Stage
IV pressure ulcer. (CR 146-147).
On September 19, 2013, Mrs. Bailey was discharged from Pinecrest Nursing
to Trinity Mother Francis Hospital where she was diagnosed with an UTI and
infected wound. (CR 146-147). She did not return to Pinecrest Nursing. Id.
Between September 19, 2013 and December 2013, Mrs. Bailey was in and out of
the hospital and rehabilitation facilities with a host of problems related to her
underlying conditions. (CR 146-147). Mrs. Bailey died on December 4, 2013 at
the age of 88 years old. (CR 147). According to her death certificate, Mrs.
Bailey’s cause of death was cardio pulmonary arrest. Id. No autopsy was
performed.
B. Allegations Against Pinecrest Nursing
On March 31, 2014, Mrs. Bailey’s husband and nine adult children (“the
Baileys”) filed a survival action based on a theory of medical negligence. (CR 1-
12). Specifically, the Baileys claim that Pinecrest Nursing’s nursing staff failed to
accurately asses Mrs. Bailey’s condition; failed to implement proper measures to
prevent ulcers, and; failed to appropriately and timely treat the ulcers. Id. They
further claim Pinecrest Nursing’s facility was understaffed and that these failures
led to the development and deterioration of Mrs. Bailey’s wound and subsequent
infection, which caused her death. Id.
3
C. Procedural History of Challenges to Dr. Davey’s Reports
As a health care liability claim, the Baileys’ claim is governed by Chapter 74
of the Texas Civil Practice & Remedies Code (“Chapter 74”). In an effort to
comply with the reporting requirements of Chapter 74, the Baileys served an expert
report and curriculum vitae prepared by Dr. Christopher Davey. (CR 54-74); TEX.
CIV. PRAC. & REM. CODE §74.351. Pinecrest Nursing filed an objection to Dr.
Davey’s report. (CR 75-105). Following hearing, the trial court ruled that Dr.
Davey’s report was insufficient and gave the Baileys an extension in which to cure
the deficiencies in Dr. Davey’s report. (CR 139-140).
In an attempt to cure the deficiencies, the Baileys filed an Amended Report
from Dr. Davey. (CR 141-165). However, the Amended Report failed to
adequately explain how any of the alleged breaches cause injuries or Mrs. Bailey’s
pressure ulcer and death and was only conclusory in this regard; therefore,
Pinecrest Nursing again filed objections. (CR 166-192). The Baileys filed a
Motion to Overrule Defendant’s Objections to the Amended Chapter 74 Report of
Christopher M. Davey, M.D. and an Amended Motion seeking to overrule
Pinecrest Nursing’s objections to the Amended Report. (CR 193-237). The Court
overruled Pinecrest Nursing’s objections by Order entered on November 25, 2014.
(CR 243). Pinecrest timely filed its notice of accelerated appeal from the Trial
Court’s interlocutory Order. (CR 244-245).
4
II.
SUMMARY OF THE ARGUMENT
The trial court abused its discretion in evaluating Dr. Davey’s expert report
when it failed to rule that the report was inadequate, as Dr. Davey’s report lacks
the required analysis on the causation requirement. First, although Dr. Davey
summarily states that alleged breach of the standard of care by Pinecrest Nursing
caused Mrs. Bailey’s pressure ulcer, his report fails to explain how. Importantly,
Dr. Davey concedes that a patient’s underlying conditions can make pressure
ulcers unavoidable; however, nowhere in his report does he discuss whether Mrs.
Bailey’s underlying conditions (Alzheimer’s, congestive heart failure, diabetes
mellitus) made her pressure ulcer unavoidable. The report fails to explain that
absent the act or omission of Pinecrest Nursing the harm would not have occurred.
Finally, Dr. Davey states that Pinecrest Nursing’s conduct was a contributing
factor to Mrs. Bailey’s death. However, nowhere in his report does Dr. Davey
explain how Pinecrest Nursing’s breach of the only identified standard of care
(alleged failure to reposition Mrs. Bailey in August and September 2013) was a
substantial factor in bringing about her death in December 2013 at a different
facility. Despite the omission of a causation analysis, the trial court found Dr.
Davey’s report sufficient on causation. Because the trial court abused its discretion
in applying Chapter 74 causation requirements to the report of Dr. Davey, this
Court should reverse and remand.
5
III.
ARGUMENTS
A. Standard of Review
A trial court’s order on a Chapter 74 motion to dismiss is reviewed for an
abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per
curiam)1; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875
(Tex. 2001); Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex. App.—Dallas
2007, no pet.). The trial court abuses its discretion when it acts arbitrarily,
unreasonably, or without reference to any guiding rules and principles. Simonson,
225 S.W.3d at 871. When reviewing factual matters committed to the trial court’s
discretion, an appellate court may not substitute its judgment for that of the trial
court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court
cannot exercise discretion when determining what the law is or when applying the
law to the facts. Methodist Hosp. of Dallas v. King, 365 S.W.3d 847, 849 (Tex.
App.—Dallas 2012, no pet.).
B. Requirements of 74.351 Expert Reports
A court shall grant a motion challenging the adequacy of an expert report when
the report “does not represent an objective good faith effort to comply” with the
statutory definition of an expert report. § 74.351(l); Loaisiga v. Cerda, 379 S.W.3d
1
Discussing former Article 4590i of the Texas Revised Civil Statute Annotated, which was the
precursor to Chapter 74. See Jernigan, 195 S.W.3d at 92 n.1.
6
248 (Tex. 2012); Ortiz v. Patterson, No. 05–10–01356–CV, 2012 WL 3809217, *3
(Tex. App.—Dallas, Aug. 31, 2012, no pet. h.). According to the Texas Civil Practice
& Remedies Code, an “expert report” is defined as
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). An expert report that omits any of these statutory requirements
does not represent a good faith effort. Palacios, 46 S.W.3d at 879. While the expert
report does not have to marshal the plaintiff’s proof, it must provide a fair
summary of the above elements. See Wright, 79 S.W.3d at 52. Ultimately, the
report must inform the defendant with sufficient specificity the conduct called into
question and provide a basis for the trial court to conclude the claims have merit.
Id.
A report cannot merely state the expert’s conclusions about the standard of
care, breach, and causation. Palacios, 46 S.W.3d at 879. An expert must explain
the basis of his statements to link his conclusions to the facts. Wright, 79 S.W.3d at
52. When determining the sufficiency of the report, the courts look exclusively
within the four corners of the report itself. Id. Inferences from the report are not
permitted. Id. at 53. Thus, all of the information and explanations necessary to
7
satisfy the expert report requirements must be contained within the report itself.
See id.
C. Dr. Davey’s Amended Report is Deficient Because it Addresses
Causation in a Conclusory Manner.
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 this
act or omission, the harm would not have occurred. Costello v. Christus Santa
Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no
pet.). Cause in fact is not established where a defendant’s negligence “does no
more than furnish a condition which makes the injuries possible.” IHS Cedars
Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003).
To satisfy the required element of causation under chapter 74, an expert
report must include a fair summary of the expert's opinion regarding the causal
relationship between the breach of the standard of care and the injury, harm, or
damages claimed. Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496 (Tex. App.—
Dallas 2010, no pet.). Merely providing some insight into the plaintiff's claims
does not adequately address causation. Wright, 79 S.W.3d at 53. Accordingly,
causation cannot be inferred; it must be clearly stated. Castillo v. August, 248
S.W.3d 874, 883 (Tex. App.—El Paso 2008, no pet.). Indeed, a court may not fill
in gaps in a report by drawing inferences or guessing what the expert meant or
8
intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin
2007, no pet.).
1. Dr. Davey’s Amended Report Failed to Adequately Explain How
Pinecrest Nursing’s Alleged Breaches of the Standard of Care
Caused Mrs. Bailey’s Pressure Ulcer.
Dr. Davey’s report reads like a manual on possible interventions to address
pressure ulcers. (CR 144-158). A large portion of his report appears to be taken
from another source that generally discusses and explains pressure ulcers, their
causes, and treatments. (CR 148-151, 155-157). While the report generally
discusses topics, it is difficult to identify the standards of care applicable to
Pinecrest Nursing.
This is most evident when considering his causation paragraph. Despite the
fact that Dr. Davey’s report is 15 pages long, he only mentions causation in one 5
sentence paragraph at the very end of his report. However, his statement fails to
specifically identify the standard of care applicable to Pinecrest Nursing that
caused harm to Mrs. Bailey. Dr. Davey states:
Because Pinecrest Nursing failed to reposition her every two hours
and failed to implement effective interventions, Ms. Bailey had
sustained pressure on her sacral area, which caused the blood to stop
flowing to that part of the body and the skin to distort. Because of the
lack of blood flow, the tissue died, causing Ms. Bailey to develop an
infected State IV pressure ulcer.
(CR 158). However, Dr. Davey’s causation paragraph fails to identify the specific
“effective interventions” that the standard of care dictated should have been
9
implemented. This statement by Dr. Davey is conclusory and does not sufficiently
explain how these unidentified “interventions” caused harm to Mrs. Bailey.
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.
Palacios, 46 S.W.3d at 880; Nacogdoches County Hosp. Dist. v. Felmet, NO. 12-
12-00393-CV, 2013 Tex. App. LEXIS 14478, 14 (Tex. App. –Tyler Nov. 26, 2013,
no pet.) (concluding expert report deficient where it failed to explain how the
deviation from the standards led to the patient’s subsequent surgeries)
Additionally, Dr. Davey’s opinion that the nurses’ failure to reposition Mrs.
Bailey is speculative and conclusory in that it is not supported by the facts because
Dr. Davey relied on an assumption. He states “the medical records fail to present
any evidence that Ms. Bailey’s turning/repositioning schedule was ever
documented, which suggests she was not repositioned every two hours. . . . Over
the course of Ms. Bailey’s entire stay at Pinecrest Nursing, there are no entries in
the nursing notes indicating the resident was every repositioned.” (CR 152).
Despite the fact that Dr. Davey states that he reviewed the medical records of
Pinecrest Nursing & Rehab Center for over three years of care, he did not find any
notes regarding the repositioning of Ms. Bailey. Therefore, he assumes that in
three years, the patient was never repositioned. (CR 152). Dr. Davey’s
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assumption is absurd and not based on fact. If repositioning was as important as he
would lead this Court to believe, if Mrs. Bailey was truly never repositioned,
surely she would have developed a pressure ulcer much sooner in her 3 year
residency. This point makes it clear that Dr. Davey’s opinion is based upon
conjecture.
Interestingly, although Dr. Davey indicated that he reviewed all of Mrs.
Bailey’s records from Pinecrest Nursing’s, he fails to point to any doctors’ orders
that the nurses did not follow, fails to point to any evidence that the nurses did not
follow a plan of care or interventions ordered by the doctors, and Dr. Davey does
not identify any information that the nurses did not provide to doctors. (CR 141-
165). "[L]iability in a medical malpractice suit cannot be made to turn upon
speculation or conjecture." Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.
App.—San Antonio 2004, no pet.). An opinion is speculative if an expert's opinion
is not supported by the established facts but only by an assumption regarding the
underlying facts. See Cooper v. Arizpe, No. 04-07-00734-CV, 2008 Tex. App.
LEXIS 2506, 2008 WL 940490, at *3 (Tex. App.—San Antonio Apr. 9, 2008, pet.
denied) (mem. op.) (citing Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex. App.—El
Paso 2007, no pet.)). An expert must explain the basis of his statements and link
his conclusions to the facts in order for his opinions not to be conclusory. Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010). Dr. Davey’s opinion based on
11
assumptions that are not tied to facts in the record are speculative and are not
sufficient to meet Chapter 74’s requirements. See id. Ultimately, the report fails to
inform Pinecrest Nursing with sufficient specificity the conduct called into
question and provide a basis for the trial court to conclude the claims have merit.
See Wright, 79 S.W.3d at 52.
Further evidence of the conclusory nature of Dr. Davey’s opinion regarding
causation is the following statement in his report:
the standard of care mandates that a facility and its nurses ensure that
a resident who is admitted without pressure sores does not develop
pressure sores unless the individual’s clinical condition
demonstrates that they were unavoidable. . .
(CR 151) (emphasis added). Despite the fact that Dr. Davey concedes that Mrs.
Bailey’s clinical condition alone could be the cause of her pressure ulcer, nowhere
in his report does he address her clinical condition and whether it was the sole
cause of her pressure ulcer. The underlying conditions in this 84 year old woman
were not insignificant. According to Dr. Davey’s own report, Mrs. Bailey had
Alzheimer’s disease; Hypertension; Congestive Heart Failure; Diabetes Mellinus
(Type II); and Asthma. (CR 146). However, Dr. Davey’s report does not address
any of these conditions and their propensity to make pressure ulcers unavoidable.
Further, although Dr. Davey seems to focus on the time in which the ulcer
deteriorated, he does not discuss the development of pressure ulcers, and he failed
to address the fact that they can develop and deteriorate very quickly in patients
12
despite adequate care. Additionally, Dr. Davey does not address why Mrs. Bailey
continued to develop pressure ulcers even after she left Pinecrest Nursing and was
a patient of a different facility. Because Dr. Davey’s report fails to discuss Mrs.
Bailey’s development of a pressure ulcer in the context of her underlying
conditions, his conclusion on the cause of her injuries is impermissibly incomplete.
In a strikingly similar case, the Corpus Christi Court of Appeals held that an
expert report was conclusory where it failed to address the patient’s underlying
health issues and their effects on the development of pressure ulcers. Christus
Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-CV, 2013 Tex. App. LEXIS
14932 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.). The Court explained:
Although du Bois and Dr. Starer's reports go into great detail about
the procedures necessary to prevent pressure ulcers in standard
conditions, they do not address the specific conditions present in
Castro's care. As discussed in detail above, Castro's claim involves his
development of a pressure ulcer while he was being treated in Spohn's
ICU over the course of several months for severe injuries he suffered
in an automobile accident. Neither du Bois nor Dr. Starer discusses
Castro's injuries in the context of these conditions. And the omission
of this context renders any conclusion on the cause of Castro's injuries
incomplete. Because Castro's reports do not adequately address the
causation element, they did not provide a basis for the trial court to
conclude that Castro's claims have merit.
Id. at *18-19. The Court reversed the order of the trial court denying Spohn’s
motion to dismiss. Id.; see also Nexion Health at Southwood, Inc. v. Judalet, No.
12-08-00464-CV, 2009 Tex. App. LEXIS 7404, 11 (Tex. App.—Tyler Sept. 23,
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2009, no pet.) (“Dr. Colon's opinion on causation is conclusory because he failed
to explain how he ruled out other probable causes of the decedent's death.”).
Other courts of appeals have recognized the requirement of discussing a
patient’s underlying conditions to adequately address causation. See Pisasale v.
The Ensign Group, Inc., No. 11-05-00196-CV, 2006 Tex. App. LEXIS 7983 (Tex.
App.--Eastland September 7, 2006, pet. denied) (memo. op.) (holding expert report
did not constitute a good-faith effort to comply with statute where, among other
things, expert "made no effort to eliminate [the deceased's] preexisting conditions
as the cause for the injuries described in his report"); compare Hillcrest Baptist
Med. Ctr. v. Payne, No. 10-11-00191-CV, 2011 Tex. App. LEXIS 9182 (Tex.
App.—Waco Nov. 16, 2011, pet. denied)(concluding report sufficient where “Dr.
Haines opined that, based on a reasonable degree of medical probability, the other
conditions did not contribute to the development of Payne's pressure ulcers.”); see
also Conboy v. Lindale Health Care, LLC, NO. 12-12-00241-CV, 2013 Tex. App.
LEXIS 11013, 11 (Tex. App.—Tyler Aug. 29, 2013, no pet.) (“While Dr. Langan
may not have been required to rule out all possible causes, he must establish in his
report a causal connection between the defendants' conduct and the injuries Jack
suffered, and that the defendants proximately caused the injuries suffered.”).
While Dr. Davey’s report identifies multiple alleged breaches of the standard
of care, he only mentions one of those standards in his causation paragraph.
14
However, he does not explain how and why the allegedly breach caused the injury.
The report fails to contain sufficiently specific information to demonstrate
causation beyond mere conjecture. Ultimately, because Dr. Davey’s report does
not address Mrs. Bailey’s underlying conditions, it fails explain why a different,
better result would have been achieved if Pinecrest Nursing had met its standard of
care. See Hollingsworth, 353 S.W.3d at 523. There is no question that Dr. Davey’s
report fails to inform Pinecrest Nursing with sufficient specificity the conduct
called into question and provide a basis for the trial court to conclude the claims
have merit. See Wright, 79 S.W.3d at 52. Therefore, the trial court abused its
discretion in overruling Pinecrest Nursing’s objection to Dr. Davey’s report.
Jelinek, 328 S.W.3d at 539-40.
2. Dr. Davey’s Amended Report Fails to Adequately Explain How
Pinecrest Nursing’s Alleged Breaches of the Standard of Care
Caused Mrs. Bailey’s Death.
Although Dr. Davey’s report summarized select records related to Mrs.
Bailey’s nursing home visit between August and September 2013 and he
summarily stated her ulcer was a contributing factor to her death, Dr. Davey's
report fails to articulate facts connecting the criticized deviations from the standard
of care by Pinecrest Nursing to Mrs. Bailey’s death.
In his report, Dr. Davey states:
On 12-4-13, Ms. Bailey expired from cardio pulmonary arrest, as
indicated on her death certificate (TR-002743). However, it is my
15
opinion, to a reasonable degree of medical probability, that Ms.
Bailey’s large and infected ulcer was a significant, contributing factor
to her death.
(CR 148). Despite this proclamation, Dr. Davey’s report is not sufficient as to
causation under the applicable standard. The standard is substantial factor, not
contributing factor. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.
1991) (holding that it is not enough that harm would not have occurred had actor
not been negligent and that actor's negligence must also be a substantial factor in
bringing about the plaintiff's harm).
Moreover, nowhere in his report does Dr. Davey explain how Pinecrest
Nursing’s breach of the only identified standard of care (alleged failure to
reposition Mrs. Bailey in August and September 2013) was a substantial factor in
bringing about her death in December 2013 at a different facility. Chapter 74
dictates that his report must demonstrate that Pinecrest Nursing’s actions did more
than simply furnish a condition that made the injuries possible. IHS Cedars
Treatment Ctr., 143 S.W.3d at 798. To summarily state that the failure to
reposition Mrs. Bailey every two hours from August until September was a
substantial factor in bringing about Mrs. Bailey’s death in December without
discussing her clinical course over those intervening months at different facilities
and her underlying health issues, namely Alzheimer’s, diabetes mellinus, and
16
congestive heart failure, undermines the very requirement of proximate causation.
Costello, 141 S.W.3d at 249.
In a similar case involving pressure ulcers, the Beaumont Court of Appeals
found an expert report deficient where the expert failed to explain how pressure
ulcers were related to the patient’s death. The Court explained
Dr. Rushing addresses the element of causation in his report.
However, unlike the report in Nexion, Dr. Rushing's report does not
address whether the condition at issue here (pressure ulcers) can lead
to death, under what circumstances such condition can lead to death,
or how the ankle fracture or pressure ulcers caused or contributed to
Taylor's death in this case.
Valle v. Taylor, NO. 09-11-00223-CV, 2012 Tex. App. LEXIS 110 (Tex. App.—
Beaumont Jan. 5, 2012, no pet.). This case is similar to Valle in that Dr. Davey’s
report does not address whether pressure ulcers can lead to death, under what
circumstances such condition can lead to death, or how the pressure ulcer caused
or contributed to Mrs. Bailey's death. Therefore, Dr. Davey’s report in this case, as
the report in Valle, is deficient.
Courts of appeals are consistent in requiring more than Dr. Davey has stated
in his report in cases involving allegations that pressure ulcers have caused a death.
See also Granbury Hosp. Corp. v. Hosack, No. 10-09-00297-CV, 2010 Tex. App.
LEXIS 3132, 6-7 (Tex. App.—Waco Apr. 28, 2010, no pet.) (concluding expert
report insufficient on element of causation where report failed to connect the
occurrence of pressure ulcers to patient’s cardiorespiratory arrest and death);
17
Regent Health Care Ctr. of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex.
App.--El Paso 2008, no pet.) ("[W]hile the report indicates that the breach of the
standard of care resulted in worsening of the described skin conditions, there is no
linkage to the cause of death, aside from the assertion of a close temporal
proximity between the conditions and the premature death.").
Courts, including this Court, have consistently required more than what Dr.
Davey has provided in terms of expert testimony on causation in the context of
section 74.351. See Nexion Health at Southwood, Inc. v. Judalet, No. 12-08-00464-
CV, 2009 Tex. App. LEXIS 7404, *11 (Tex. App.--Tyler Sept. 23, 2009, no pet.)
(mem. op.) (Expert report was deficient on causation because "[expert] failed to
explain the causal relationship between the decedent's leg fracture and her death;"
i.e., "how a fractured leg caused her to experience congestive heart failure.");
Constancio v. Bray, 266 S.W.3d 149, 157-58 (Tex. App.—Austin 2008, no pet.)
(holding that expert report that alleged that breach of standard of care by doctor
caused patient's death is insufficient when report did not explain how increased
monitoring of patient, detection of hypoxemia, and other actions would have
prevented patient's death); Perez v. Daughters of Charity Health Servs. of Austin,
No. 03-08-00200-CV, 2008 Tex. App. LEXIS 7648, 2008 WL 4531558, at *4
(Tex. App.—Austin Oct. 10, 2008, no pet.) (mem. op.) (concluding expert report
18
insufficient on causation because it did not link hospital's actions to patient's death
that would have been prevented had hospital complied with standard of care).
In fact, the San Antonio Court of Appeals held that Dr. Davey’s report was
deficient in a similar case. Regent Care Ctr. of San Antonio II, Ltd. P’ship v.
Hargrave, 300 S.W.3d 343, 348 (Tex. App.—San Antonio 2009, pet. denied). The
Court stated “Dr. Davey's opinion fails to articulate facts connecting the criticized
deviations from the standard of care by Regent Care with Mrs. Montgomery's
dehydration, sepsis, or death.” Therefore, the Court held that Dr. Davey’s report
failed to represent a good-faith effort to comply with the statutory requirements
and held that the trial court abused its discretion in failing to dismiss the case
against Regent Care Center. Id.
In this case, Dr. Davey’s opinions were wholly inadequate in establishing a
causal connection between Pinecrest Nursing’s actions and Mrs. Bailey’s death.
The conduct of Pinecrest Nursing is too attenuated from the resulting injuries to
Mrs. Bailey to be a substantial factor in bringing about the harm. Doe v. Boys
Clubs, 907 S.W.2d 472, 477, (Tex. 1995). In fact, Dr. Davey’s report does not
even state that Pinecrest Nursing’s conduct was a substantial factor, only a
contributing factor. However, the Texas Supreme Court has held that is not
sufficient. Perez, 819 S.W.2d at 472. Because Dr. Davey’s report fails to explain
how Pinecrest Nursing’s conduct was a substantial factor in Mrs. Bailey’s death,
19
his report is deficient and the Court should have sustained Pinecrest Nursing’s
objections to the report. Costello, 141 S.W.3d at 249.
IV.
CONCLUSION AND PRAYER
Dr. Davey’s Amended Report failed to comply with the statutory
requirements of Chapter 74. Specifically, Dr. Davey’s Amended Report fails to
explain how or why any alleged breaches in the standard of care by Pinecrest
Nursing were a substantial factor in bringing about Mrs. Bailey’s pressure ulcer.
Dr. Davey’s Amended Report fails to address whether Mrs. Bailey’s pressure ulcer
was unavoidable in this case. As such, this Court is left to infer or guess that Mrs.
Bailey’s outcome would have been different absent Pinecrest Nursing’s alleged
breaches of the standard of care. Furthermore, Dr. Davey wholly failed explain
how or why any alleged breaches in the standard of care by Pinecrest Nursing were
a substantial factor in bringing about Mrs. Bailey’s death. Thus, the trial court
abused its discretion in denying Pinecrest Nursing’s objections to Dr. Davey’s
Amended Report and Motion to Dismiss with Prejudice, and this Court should
reverse the trial court’s decision and dismiss the Baileys’ claims against Pinecrest
Nursing with prejudice and remand for a determination of attorneys’ fees and costs
permitted by Chapter 74.
WHEREFORE, PREMISES CONSIDERED, Appellant, Pinecrest SNF,
LLC d/b/a Pinecrest Nursing & Rehabilitation Center, respectfully prays that this
20
Court sustain Pinecrest Nursing’s issues on appeal and REVERSE the trial court’s
November 25, 2014 Order overruling Pinecrest Nursing’s objections to Dr.
Davey’s Amended Report and denying Pinecrest Nursing’s Motion to Dismiss
with Prejudice. Pinecrest Nursing further requests that this Court REMAND to the
trial court with an order that the Baileys’ claims against Pinecrest Nursing be
dismissed with prejudice and to award Pinecrest Nursing its reasonable attorneys’
fees and costs as allowed by Chapter 74 of the Texas Civil Practice & Remedies
Code. Pinecrest Nursing further prays for such other relief that it may be justly
entitled.
Respectfully submitted,
Nichol L. Bunn
State Bar No. 00790394
Nichol.Bunn@lewisbrisbois.com
Stephanie F. Erhart
State Bar No. 24007180
Stephanie.Erhart@lewisbrisbois.com
LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
2100 Ross Avenue, Suite 2000
Dallas, Texas 75201
(214) 722-7100
(214) 722-7111 (fax)
ATTORNEYS FOR PINECREST NURSING
PINECREST SNF, LLC D/B/A PINECREST
NURSING & REHABILITATION CENTER
21
CERTIFICATE OF SERVICE
Pursuant to TEX. R. CIV. P. 21a and TEX. R. APP. P. 25.1 (e), I hereby certify
that a true and correct copy of the foregoing instrument has been served upon the
following:
Robert M. Wharton
Lauren Schultz
Mary E. Green
MCIVER BROWN LAW FIRM
JP Morgan Chase Bank Building
712 Main Street, Suite 800
Houston, Texas 77002
(832) 767-1673
(832) 767-1783 (fax)
firm@mciverbrown.com
BY THE FOLLOWING:
_____________ Certified Mail/Return Receipt Requested
_____________ Telephonic Document Transfer (Fax)
_____________ Federal Express/Express Mail
_____________ Hand-Delivery (In Person)
_____________ First Class Mail
______X______ EFile (Pro Docs)
DATE: March 11, 2015.
STEPHANIE F. ERHART
22
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellant’s Brief
contains 7,088 words. This is a computer-generated document created in Microsoft
Word, using 14-point typeface for all text, except for footnotes which are in 12-
point typeface. In making this certificate of compliance, I am relying on the word
count provided by the software used to prepare the document.
___________________________________
Stephanie F. Erhart
23
ORAL ARGUMENT REQUESTED
NO. 12-14-00357-CV
IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT
AT TYLER, TEXAS
PINECREST SNF, LLC D/B/A PINECREST
NURSING & REHABILITATION CENTER,
Appellant,
v.
TASCO BAILEY, NATHAN BAILEY, CURLIE BAILEY, ROY BAILEY,
BILL BAILEY, JAMES BAILEY, EARL BAILEY, MARY DUNLAP AND
LICILLE MARTIN, AS HEIRS OF ARCHIE BAILEY,
Appellees.
On Interlocutory Appeal from the
th
114 Judicial District Court of Smith County, Texas
Cause No. 14-0856-B
The Honorable Christi Kennedy Presiding
APPENDIX TO APPELLANT’S BRIEF
Pursuant to Rule 38.1(k) of the Texas Rules of Appellate Procedure,
Pinecrest Nursing hereby submits this Appendix to its Brief containing the
following items:
TAB A Amended Expert Report and Curriculum Vitae of Christopher Davey,
M.D. (CR 141-165).
TAB B Pinecrest Nursing’s Objections to Dr. Davey’s amended report and
Motion to Dismiss with Prejudice. (CR 166-192).
24
TAB C November 25, 2014 Order overruling Pinecrest Nursing’s objections
to Dr. Davey’s amended report and denying Pinecrest Nursing’s
Motion to Dismiss with Prejudice. (CR 243).
TAB D TEX. CIV. PRAC. & REM. CODE §74.351 (West Supp. 2013).
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