Pinecrest SNF, LLC D/B/A Pinecrest Nursing & Rehabilitation Center v. Tasco Bailey, Nathan Bailey, Carlie Bailey, Roy Bailey, Bill Bailey, James Bailey, Earl Bailey, Mary Dunlap and Licille Martin, as Heirs of Archie Bailey

ACCEPTED
12-14-00357-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/31/2015 4:10:12 PM
CATHY LUSK
CLERK

No. 12-14-00357-CV
______________________________________________________________________________
FILED IN

In The Court of Appeals 12th COURT OF APPEALS
TYLER, TEXAS
3/31/2015 4:10:12 PM
For the Twelfth District of Texas CATHY S. LUSK
Clerk

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 LUCILLE MARTIN, AS HEIRS OF ARCHIE BAILEY,
Appellees.
______________________________________________________________________________

On Appeal from the 114th Judicial District Court of Smith County, Texas
The Honorable Christi Kennedy, Presiding Judge
(Trial Cause No. 14-0856-B)
______________________________________________________________________________

BRIEF OF APPELLEES
______________________________________________________________________________
Robert M. Wharton Andrea Zarikian
Texas Bar No: 24079562 Texas Bar No: 24093411
firm@mciverbrown.com firm@mciverbrown.com
MCIVER BROWN LAW FIRM MCIVER BROWN LAW FIRM
712 Main Street, Suit 800 712 Main Street, Suite 800
Houston, Texas 77002 Houston, Texas 77002
Telephone: 832-767-1673 Telephone: 832-767-1673
Facsimile: 832-767-1783 Facsimile: 832-767-1783

Counsel for Appellees
ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................i
TABLE OF AUTHORITIES .......................................................................................... ii
STATEMENT OF THE CASE .........................................................................................1
ISSUE PRESENTED .....................................................................................................2
STATEMENT OF THE FACTS .......................................................................................3
SUMMARY OF THE ARGUMENT ..................................................................................4
ARGUMENT ...............................................................................................................5
I. THE STANDARD OF REVIEW ON THIS APPEAL IS ABUSE OF DISCRETION. ........5
II. PURSUANT TO APPLICABLE TEXAS CASE LAW AND CHAPTER 74, DR.
DAVEY’S AMENDED REPORT CONSTITUTES A GOOD FAITH EFFORT TO
COMPLY WITH THE REQUIREMENTS OF SECTION 74.351 ............................... 8
A. DR. DAVEY’S AMENDED EXPERT REPORT ADEQUATELY EXPLAINS
THE CAUSAL RELATIONSHIP BETWEEN APPELLANT’S FAILURES TO
MEET THE STANDARD OF CARE AND MS. BAILEY’S INJURIES .............. 11
B. BECAUSE APPELLEES DID NOT ASSERT A WRONGFUL DEATH CLAIM,
DR. DAVEY’S AMENDED EXPERT REPORT DOES NOT REQUIRE
EXPLANATION OF HOW APPELLANT’S FAILURES TO MEET THE
STANDARD OF CARE CAUSED MS. BAILEY’S DEATH ............................ 19
CONCLUSION AND PRAYER ..................................................................................... 21
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ........................................................ 24
CERTIFICATE OF SERVICE........................................................................................ 25
APPENDIX TO APPELLEES’ BRIEF ............................................................................ 26

APPENDIX:

Dr. Davey’s Amended Expert Report Appendix A
Dr. Davey’s Curriculum Vitae Appendix B

i
 TABLE OF AUTHORITIES

CASES

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001) .............................................................. 6, 8, 9, 12

Arboretum Nursing and Rehab. Ctr. of Winnie, Inc., v. Issacks,
No. 14-07-00895-CV, 2008 Tex. App. LEXIS 3672 (Tex. App.–Houston
[14th Dist.] May 22, 2008) (memo. op.) ..................................................... 13

Bakhtari v. Estate of Dumas,
317 S.W.3d 486 (Tex. App.—Dallas 2010, no pet.) ................................... 11

Baylor Med. Ctr. at Waxahachie v. Wallace,
278 S.W.3d 552 (Tex. App.—Dallas 2009, no pet.) ................................... 13

Certified EMS, Inc. v. Potts,
392 S.W.3d 625 (Tex. 2013, rehearing denied) ............................... 10, 20, 21

Chaupin v. Schroeder,
No. 14-06-01102-CV, 2007 Tex. App. LEXIS 5837 (Tex. App.–Houston
[14th Dist.] July 26, 2007, no pet.) (memo. op.) ......................................... 13

Christus Spohn Health Sys. Corp. v. Castro,
No. 13-13-00302, 2013 WL 6576041 (Tex. App.—Corpus Christi, Dec.
12, 2013, no pet. h.) ..................................................................................... 13

Costello v. Christus Santa Rosa Health Care Corp.,
141 S.W.3d 245 (Tex. App. —San Antonio 2004, no pet.) ........................ 11

Cruz v. Paso Del Norte Health Found.,
44 S.W.3d 622 (Tex. App. —El Paso 2001, pet. denied) ............................ 12

Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985), cert denied, 476 U.S. 1159 (1986)..................7

Flores v. Fourth Court of Appeals,
777 S.W.2d 38 (Tex. 1989) ........................................................................... 6

ii
Greenberg v. Gillen,
257 S.W.3d 281 (Tex. App— Dallas 2008, pet. dism’d) .............................. 8

In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458 (Tex. 2008) ......................................................................... 6

Jelinek v. Casas
328 S.W.3d 526 (Tex. 2010) ....................................................................... 12

Johnson v. Fourth Court of Appeals,
700 S.W.2d 916 (Tex. 1985) ......................................................................... 6

Kayani v. Stevens,
No. 09-12-00462-CV, 2013 Tex. App. LEXIS 363 (Tex.
App.—Beaumont 2013, no pet.).................................................................. 13

Larson v. Downing,
197 S.W.3d 303 (Tex. 2006) ......................................................................... 7

Lee Lewis Constr. Inc. v. Harrison,
70 S.W.3d 778 (Tex. 2001) ......................................................................... 11

Leland v. Brandal,
257 S.W.3d 204 (Tex. 2008) ......................................................................... 8

Renaissance Surgical Ctrs.-S. Texas, L.L.P. v. Jimenez,
No. 13-07-00121-CV, 2008 Tex. App. LEXIS 6857 (Tex. App.—Corpus
Christi Aug. 28, 2008, no pet.) ....................................................................... 6

Valle v. Taylor,
No. 09-11-00223-CV, 2012 Tex. App. LEXIS 110 (Tex. App.—Beaumont
Jan. 5, 2012, not pet.) .................................................................................. 20

STATUTES

TEX. CIV. PRAC. & REM. CODE § 74.351..................................................... 3, 4, 8, 21

iii
 STATEMENT OF THE CASE

Nature of the case:

This is a medical malpractice case governed by Chapter 74 of the Texas Civil
Practice and Remedies Code. Tasco Bailey, Nathan Bailey, Curlie Bailey, Roy
Bailey, Bill Bailey, James Bailey, Earl Bailey, Mary Dunlap, and Lucille Martin,
as heirs of Archie Bailey, Deceased, (“Appellees”) filed a medical malpractice
claim against Pinecrest SNF LLC d/b/a Pinecrest Nursing & Rehabilitation Center
(“Appellant”). Appellees provided Appellant with an expert report authored by Dr.
Christopher Davey. The trial court sustained Appellant’s objections to the
sufficiency of Dr. Davey’s expert report. Appellees subsequently served a timely
amended expert report authored by Dr. Davey in compliance with the statutory
requirements of Chapter 74. The amended expert report authored by Dr. Davey
was sufficient because it thoroughly explained the causal connection that
adequately links Ms. Bailey’s injuries to Appellant’s breaches in the standard of
care. On November 25, 2014, the trial court entered an order overruling
Appellant’s objections to Dr. Davey’s amended report and denying Appellant’s
Motion to Dismiss. This interlocutory appeal followed.

Trial court information:

Hon. Christi Kennedy, Judge Presiding, 114th Judicial District Court, Smith
County, Texas.

Trial court disposition:

Judge Kennedy overruled Appellant’s objections to Dr. Davey’s amended report
and denied Appellant’s Motion to Dismiss..

1
 ISSUE PRESENTED

1. As it pertains to the statutory element of causation for which a medical
expert must provide a fair summary of his opinion on pursuant to Chapter
74, the expert must explain in his report the basis for his statements by
linking conclusions to facts and need not rule out all potential causes. In his
amended report, Dr. Davey more than meets this threshold standard to
sufficiently notify Defendant Pinecrest Nursing of at least one causation
theory by providing a basis for his opinion that adequately links Ms.
Bailey’s injuries to at least one of Defendant Pinecrest Nursing’s breaches of
the standard of care. Did the Honorable Christi Kennedy properly exercise
her discretion by ruling that Dr. Davey’s amended expert report complied
with the statutory requirements set forth in Chapter 74?

2
 STATEMENT OF THE FACTS

This medical malpractice case was filed after Ms. Archie Bailey, deceased,

was so neglected while she was a patient at Appellant’s facility that she developed

a severe and infected Stage IV sacral decubitus ulcer. As a result of the

substandard care their mother received, Appellees sought redress through filing

this suit. Pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351, Appellees served

Appellant with the expert report and curriculum vitae (“CV”) of Christopher

Davey, M.D., a board-certified Wound Specialist physician. (C.R.: 54 to 74).

After the trial court sustained Appellant’s objections to Dr. Davey’s initial report,

Appellees subsequently served Appellant with an Amended Expert Report from

Dr. Davey. (C.R.: 139 to 165). Appellant again objected. (CR.: 166-192). In

order to obtain a ruling on Appellant’s objections to Dr. Davey’s Amended Expert

Report, Appellees filed a motion to overrule Appellant’s objections, and set their

motion for hearing. Following this hearing, the Honorable Christi Kennedy,

Presiding Judge of the 114th Judicial District of Smith County, overruled

Appellant’s objections by Order entered on November 25, 2014 (CR.: 243).

Appellant has now taken this subsequent interlocutory appeal. For the same

reasons iterated at the trial court below, Appellees request that this Court affirm the

trial court’s November 25, 2014 Order overruling Appellant’s objections to Dr.

Davey’s amended expert report and denying Appellant’s Motion to Dismiss.

3
 SUMMARY OF THE ARGUMENT

Appellant’s brief requests dismissal of this suit and incorrectly argues that

Appellees have failed to comply with the expert report requirements of TEX CIV.

PRAC. & REM. CODE § 74.351. The trial court’s ruling should stand for the

following reasons.

Appellants contend that the trial court committed an abuse of discretion by

overruling its Chapter 74 objections and denying its Motion to Dismiss. Quite

simply, Appellant’s argument is not borne out by the record. Judge Kennedy did

not abuse her discretion in determining that Dr. Davey’s amended report complies

with the statutory report requirements of Chapter 74 because it represents a good

faith effort to provide a fair summary of Dr. Davey’s opinions concerning the

applicable standard of care, the manner in which the care failed to meet that

standard, and the causal relationship between the failure and the sustained injuries.

In fact, contrary to Appellant’s colorable claims, Dr. Davey’s amended report

specifically identifies Appellant’s conduct that is being questioned and explicitly

explains how that conduct caused Ms. Bailey’s injuries. Within his report, Dr.

Davey clearly establishes what standard of care is required, sets forth in detail how

Appellant breached the standard of care, and thoroughly explains how and why

those breaches of the standard of care caused the harm suffered by Ms. Bailey.

Moreover, Appellant’s assertions of conjecture are profoundly misplaced, as Dr.

4
Davey appropriately expresses in terms of medical probability, and not mere

conjecture, how pressure ulcers form and how a lack of proper treatment can lead

to the development and worsening of pressure ulcers. Lastly, Appellant

mischaracterizes the claims asserted by Appellees, alleging that Dr. Davey is

required to opine on how Appellant’s breaches of the standard of care caused Ms.

Bailey’s death despite Appellees having only asserted survival claims. Dr.

Davey’s amended report undeniably provides the information required under

Chapter 74 by informing Appellant of the specific conduct Appellees have called

into question and sufficiently linking that conduct and the injuries to provide a

sufficient basis for the trial court to conclude that Appellees’ survival claims have

merit. Therefore, the trial court did not abuse its discretion when it concluded that

Dr. Davey’s amended report adequately constituted an objective, good faith effort

to comply with the statutory requirements of Chapter 74. Appellant’s arguments to

the contrary are unfounded.

Accordingly, for the reasons set forth above, Appellant’s appeal should be

denied, and this meritorious case should be allowed to proceed.

ARGUMENT

I. The Standard of Review on This Appeal is Abuse of Discretion.

Judge Kennedy’s decision that Dr. Davey’s amended report is adequate is

reviewed under a purely clear abuse of discretion standard. Am. Transitional Care

5
Ctrs. of Tex, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); (holding a trial

court’s decision regarding the adequacy of an expert report and denial of a

defendant’s motion to dismiss is reviewed under the abuse of discretion standard);

see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex. 2008). As the

Supreme Court stated, “a party who attacks the ruling of a trial court that is

reviewed under the abuse of discretion standard labors under a heavy burden.”

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.

proceeding). In that case, the Texas Supreme Court stated the standard of review

as follows:

In order to find an abuse of discretion, the reviewing court must
conclude that the facts and circumstances of the case extinguish any
discretion in the matter and that the law permits but one decision.

Id. at 918. What is more, “[a] reviewing court may not substitute its judgment for

that of the trial court,” when reviewing a discretionary matter. Renaissance

Surgical Ctrs.-S. Tex., L.L.P. v. Jimenez, No. 13-07-00121-CV, 2008 Tex. App.

LEXIS 6857, at *10 (Tex. App.—Corpus Christi Aug. 28, 2008, no pet.) (mem.

op.); Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989) (orig.

proceeding). To further clarify and define the heavy burden that both an appellant

and an appellate court must shoulder when reviewing a discretionary order by a

district court, the Texas Supreme Court stated:

The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial

6
 court’s action. Rather, it is a question of whether the court acted
without reference to any guiding rules and principles. Another way of
stating the test is whether the act is arbitrary and unreasonable.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert

denied, 476 U.S. 1159 (1986).

Indeed, the Supreme Court has reversed appellate decisions where the

appellate courts found that the trial judge had abused his discretion, and reinstated

the trial court’s original ruling on the expert reports, noting that “[w]e do not

disturb the trial court’s discretion absent a clear abuse,” and that any “[c]lose calls

must go to the trial court.” Larson v. Downing, 197 S.W.3d 303, 304-305 (Tex.

2006).

Therefore, it is under this most strict and deferential standard of review that

the issues raised by the Appellant are reviewed. Judge Kennedy’s order should be

reversed only if she failed to apply any guiding rules and principles in denying the

Appellant’s Motion to Dismiss. As will be shown, there is absolutely nothing in

the record of this case that constitutes any evidence, or any indication whatsoever,

that in denying the Appellant’s objections, Judge Kennedy made her ruling

“without reference to any guiding rules and principles.” In fact if anything, Judge

Kennedy’s decision is entirely consistent with the principles and standards

pronounced by the Texas Supreme Court.

7
II. Pursuant to Applicable Texas Case Law and Chapter 74, Dr. Davey’s
Amended Expert Report Constitutes a Good Faith Effort to Comply
with the Requirements of Section 74.351.

The purpose of the report requirement is not to preclude meritorious claims

but to weed out frivolous claims. Leland v. Brandal, 257 S.W.3d 204, 208 (Tex.

2008) (Brister, J., dissenting). In that regard, a plaintiff must serve an expert report

that provides a fair summary of the expert’s opinion as to each of the statutory

elements of: (1) standard of care; (2) breach; and (3) causation. TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(6); Greenberg v. Gillen, 257 S.W.3d 281, 282 (Tex. App—

Dallas 2008, pet. dism’d). When considering the sufficiency of a Chapter 74

expert report, the Supreme Court has established this singular standard:

The issue for the trial court is whether ‘the reports’ represent a good
faith effort to comply with the statutory definition of an expert report.
***
[T]he report must provide enough information to fulfill two purposes
if it is to constitute a good-faith effort. First, the report must inform
the defendant of the specific conduct the plaintiff has called into
question. Second, and equally important, the report must provide a
basis for the court to conclude the claims have merit.

Palacios, 46 S.W.3d at 878-89. An expert report need not meet the same

evidentiary standards that an expert witness would later need to satisfy in offering

evidence in a summary-judgment proceeding or during a trial on the merits. To

quote from the Palacios Court:

However, to avoid dismissal, a plaintiff need not present evidence in
the report as if it were actually litigating the merits. The report can be
informal in that the information in the report does not have to meet the

8
 same requirements as the evidence offered in a summary-judgment
proceeding or at trial.

Id.

Dr. Davey’s amended report easily satisfies the requirements of section

74.351. Confusingly, Appellant contends difficulty in identifying both the

applicable standards and the breaches of those standards within Dr. Davey’s

amended report. Contrary to Appellant’s gravely misfounded contentions, the

amended report articulates with straightforward precision a fair summary of both

the applicable standards of care and the conduct of Appellant that is being called

into question. (CR 148-155; Appendix A, p. 5-12). In adequately discussing the

standard of care applicable to Appellant, Dr. Davey specifically identifies that 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” and “that a

resident who has pressure sores must receive the necessary treatment and services

to promote healing and prevent infection.” (CR 151; Appendix A, p. 8). Dr. Davey

provides further explanation on the applicable standards of care wherein he

exhaustively identifies, with sufficient particularity, what specific interventions

exist to prevent and treat pressure ulcers, including turning and repositioning a

patient, providing pressure-relieving devices, keeping patients clean and dry, and

keeping the patient properly nourished. (CR 148, 150; Appendix A, p. 5, 7). By

identifying in his amended report the specific interventions that exist to prevent

9
and treat pressure ulcers, Dr. Davey provides a fair summary that explains with

sufficient clarity the standards of care applicable to Appellant.

Dr. Davey also sufficiently identifies in his amended report the specific

failures by Appellant, and how Ms. Bailey was affected. Specifically within his

amended report, Dr. Davey sets forth Appellant’s breaches in the standard of care

that caused Ms. Bailey’s injuries wherein he explicitly enunciates Appellant’s

failures. (CR 151-155; Appendix A, p. 8-12). Without question, Dr. Davey

expressly states Appellant’s breaches in the standard of care to include: (1) failing

to prevent the development of pressure ulcers, (2) failing to properly treat the

patient’s pressure ulcers one they developed, and (3) allowing the patient’s ulcer to

worsen and become infected. (CR 151-155; Appendix A, p. 8-12). If at least one

of these liability theories is adequately addressed and sufficiently linked to the

development or worsening of pressure ulcers, Plaintiffs’ suit must be allowed to

proceed. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). Contrary

to Defendant’s misguided understanding, which will be explained in greater detail

below, Dr. Davey’s detailed and specific amended report exceeds the Palacios

good faith threshold standard by identifying the conduct that is being called into

question and thoroughly explaining how that conduct is connected as the cause of

Ms. Bailey’s injuries to provide the Court with a basis to conclude Appellees’

claims have merit.

10
 A. Dr. Davey’s Amended Expert Report Adequately Explains the
Causal Relationship Between Appellant’s Failures to Meet the
Standard of Care and Ms. Bailey’s Injuries.

The only issue in this Appeal is the adequacy of the causation analysis

within Dr. Davey’s amended expert report. Appellant incorrectly asserts that Dr.

Davey’s amended report is conclusory with respect to causation. In fact,

Appellant’s misplaced arguments are squarely refutable. Contrary to Appellant’s

understanding, the amended report is more than sufficient because it thoroughly

explains the causal connection that adequately links Ms. Bailey’s injuries to

Appellant’s breaches in the standard of care.

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.). 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 said 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.). More than one act may be the proximate cause of the same

injury. Lee Lewis Constr. Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001). A

plaintiff need not establish causation in terms of medical certainty, nor is she

11
required to exclude every other reasonable hypothesis; reasonable inferences may

be drawn from the evidence. Cruz v. Paso Del Norte Health Found., 44 S.W.3d

622, 630 (Tex. App. —El Paso 2001, pet. denied). When the Plaintiff alleges a

breach with regard to the method of treatment, the reports cannot merely state the

expert's conclusions but rather must explain the basis of the expert's statements to

link his or her conclusions to the facts. Palacios, 46 S.W.3d at 879. 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 causation opinion, which is four pages in length, is sufficiently

detailed. Within the causation section, Dr. Davey’s amended report goes into a

pathophysiological explanation for how pressure ulcers develop and how the

standards of care he previously articulated are designed to prevent ulcers from

occurring or worsening. (CR 155-158; Appendix A, p. 12-15). Within his causation

opinion, Dr. Davey describes precisely how Appellant’s breaches more likely than

not, within a reasonable degree of medical probability, caused Mr. Bailey’s

injuries. (CR 155-158; Appendix A, p. 12-15). As will be discussed in greater

detail below, this causation section is far from conclusory.

Appellant argues that Dr. Davey’s amended report must address Ms.

Bailey’s development of a pressure ulcer in the context of her underlying

12
conditions. However, Defendant’s claim that an expert must rule out all other

potential causes of an alleged injury is wholly unsupported. The fact that the

expert report does not address hypothetical situations does not necessarily render it

conclusory on causation. VHS San Antonio Partners LLC v. Garcia, No. 04-09-

00297-CV, 2009 Tex. App. LEXIS 7790, at *15 (Tex. App.—San Antonio 2009,

pet. denied) (mem. op.). Although the law requires the expert report to link the expert's

conclusion on causation with the alleged breach of the standard of care, nothing in

Chapter 74 requires the expert report to address or rule out all other possible scenarios.

Id. In fact, binding precedent has held that a Chapter 74 expert report need not rule

out all potential causes.1

In support of its argument, Appellant cites Christus Spohn Health Sys. Corp.

v. Castro. According to Appellant, this case holds 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, 2013 WL 6576041 (Tex. App.—Corpus Christi, Dec. 12, 2013,

1
VHS San Antonio Partners LLC v. Garcia, No. 04-09-00297-CV, 2009 Tex. App. LEXIS
7790, at *15 [*9] (Tex. App.—San Antonio 2009, pet. denied) (mem. op.); see also Kayani v.
Stevens, No. 09-12-00462-CV, 2013 Tex. App. LEXIS 363 (Tex. App.—Beaumont 2013, no
pet.); Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas
2009, no pet.); Arboretum Nursing and Rehab. Ctr. of Winnie, Inc., v. Issacks, No. 14-07-00895-
CV, 2008 Tex. App. LEXIS 3672 at *15 (Tex. App.–Houston [14th Dist.] May 22, 2008)
(memo. op.), citing Chaupin v. Schroeder, No. 14-06-01102-CV, 2007 Tex. App. LEXIS 5837
(Tex. App.–Houston [14th Dist.] July 26, 2007, no pet.) (memo. op.) (holding that this was not
relevant and pointing out that more than one act and more than one actor can be the proximate
cause of same damages).

13
no pet. h.). However, Appellant grossly misconstrues the holding of this case and

its applicability here. Following an automobile accident, the plaintiff in Castro

received trauma care in the ICU after suffering severe injuries, including, but not

limited to, fracture and dislocation of his cervical spine at C5–C6, multiple rib

fractures, a collapsed lung, and damage to his right phrenic nerve. Id. at *1. The

Corpus Christi Court of Appeals held that while plaintiff’s reports detailed

procedures necessary to prevent pressure ulcers in standard conditions, plaintiff’s

reports were deficient because they did not discuss the development of plaintiff’s

pressure ulcer in the specific trauma or ICU conditions present in Castro’s care.

See Id. at *18.

Clearly, the Castro holding is distinguishable from this case. First, the court

in Castro connotes “conditions” to mean the ICU environment under which the

plaintiff developed his pressure ulcer. See Id. at *3-6. Here, however, Appellant

artfully attempts to suggest to this Court that the word “conditions” is synonymous

with health issues, which is contrary to the word’s implication in Castro. In

Castro, a nurse and a physician were experts in the field of nursing home care, but

not experts in the field of ICU or trauma care. See Id. at *4. In contrast, in this

case, the relevant field of practice is the prevention and treatment of pressure

ulcers in a nursing home setting. Dr. Davey makes clear in his amended Chapter

74 report that he is discussing the prevention and treatment of pressure ulcers in

14
the same conditions under which Appellant permitted the development and

worsening of Ms. Bailey’s pressure ulcer. Specifically, Dr. Davey discusses in

detail how Ms. Bailey developed a pressure ulcer in the conditions, or setting, of

being a patient at Appellant’s nursing home. Similarly, Dr. Davey provides his

opinion on the prevention of pressure ulcers within the context of a patient residing

in a nursing home setting comparable to Appellant’s. Thus, Appellant’s

contradictory argument that Dr. Davey’s expert report is conclusory is grossly

misfounded.

Appellant further argues that Dr. Davey fails to link his articulated breaches

of the standard of care, such as Appellant’s failure to adequately reposition Ms.

Bailey or to perform accurate and consistent medical documentation, with the

causes of Ms. Bailey’s injuries. Such an assertion largely ignores the plain

language of Dr. Davey’s amended report. Appellant disregards Dr. Davey’s

comprehensive pathophysiological explanation regarding the formation of pressure

ulcers and how the standards of care he previously articulated are intended to

prevent development or worsening of pressure ulcers. For instance, multiple

sections in the amended report state precisely the myriad of interventions that

would have prevented Ms. Bailey from suffering a Stage IV pressure ulcer.

Specifically, he says frequent and regular repositioning, pressure-relieving devices,

proper nourishment, and consistent and accurate medical documentation are all

15
necessary health interventions for the prevention of pressure ulcers. (CR 148, 151-

154, 157-158; Appendix A, p. 5, 8-11, 14-15). In fact, Dr. Davey explains that had

Defendant implemented adequate interventions such as frequent turning and

repositioning, initiation and follow through with pressure distribution devices, or

regular assessment and monitoring of Ms. Bailey’s skin, such interventions would

have prevented Ms. Bailey’s sacral ulcer from developing and encouraged healing

once it developed. (CR 151-154, 157-158; Appendix A, p. 8-11, 14-15).

Within his causation section, Dr. Davey describes how a sore forms when

there is a sustained pressure on a particular part of the body and expounds at length

how interventions such as frequent repositioning and pressure-relieving devices

would have greatly reduced the force of pressure on the skin. (CR 157-158;

Appendix A, p. 14-15). As Appellant would like to mislead this Court to believe

when it misstates that Dr. Davey’s opinion on the nurses’ failure to reposition is

conclusory in that he relies on assumption that Ms. Bailey was never repositioned,

Appellees would point the Court to where Dr. Davey states that the medical

records fail to indicate that “nurses were frequently turning and repositioning” Ms.

Bailey. (CR 152; Appendix A, p. 9). He opines that had appropriate interventions

been implemented, such as frequent turning and repositioning and timely

placement of pressure-relieving devices, such interventions would have offloaded

the pressure to Ms. Bailey’s sacral area to prevent the development and worsening

16
of the pressure ulcer. (CR 151-154, 157-158; Appendix A, p. 8-11, 14-15). To a

reasonable degree of medical probability, Dr. Davey explains that Appellant’s

failures to reposition Ms. Bailey every two hours and implement the additional

aforementioned interventions caused Ms. Bailey to endure sustained pressure on

her sacral area, resulting in the pressure ulcer. (CR 157-158; Appendix A, 14-15).

To further illustrate his opinion, Dr. Davey discusses how Appellant’s

improper assessment, monitoring, and treatment would cause the pressure ulcer to

worsen. (CR 151-155; Appendix A, p. 8-12). In addition to all of the other

breaches that Dr. Davey links, Dr. Davey further bolsters his opinion with

explanation of how accurate medical documentation is crucial to consistent

medical care that will prevent and properly treat pressure ulcers. Specifically, Dr.

Davey emphasizes Appellant’s failure to present evidence documenting a

consistent turning and repositioning schedule. (CR 152; Appendix A, p. 9). Even

more, Dr. Davey further indicates how Appellant’s failure to regularly,

appropriately, and timely assess Ms. Bailey’s skin with accurate and complete

documentation can prevent skin breakdown and provide proper treatment of

pressure ulcers. (CR 152-154; Appendix A, p. 9-11). For instance, Dr. Davey

points to Appellant’s nursing staff’s failure to regularly assess Ms. Bailey, which is

indicated by the lack of skin and wound care assessments in the nursing notes. (CR

153-154; Appendix A, p. 10-11). Consequently, Appellant’s failure to accurately

17
and consistently document on Ms. Bailey’s skin condition delayed pivotal

communication to the attending physician of Ms. Bailey’s worsening pressure

ulcer and also prevented the implementation of an appropriate plan of care. (CR

152-153; Appendix A, p. 9-10). Had Appellant employed a proper care plan, Dr.

Davey opines that appropriate interventions, such as crucial monitoring of skin

integrity and tracking of the wound’s progress, would have been implemented

before the skin breakdown on Ms. Bailey’s sacrum became a severe pressure ulcer.

(CR 152; Appendix A, p. 9).

Walking the reader through the connections between Appellant’s failures

and the development and worsening of Ms. Bailey’s pressure ulcer, Dr. Davey

explicates with ease and clarity that because of the prolonged pressure exerted on

Ms. Bailey’s sacrum, blood was prevented from flowing to this part of her body.

(CR 157-158; Appendix A, 14-15). As a result of the lack of blood flow, Dr.

Davey notes that Ms. Bailey’s skin was allowed to distort, causing the tissue to die

and result in the development of an infected Stage IV sacral pressure ulcer. (CR

157-158; Appendix A, 14-15).

As can be extrapolated, Dr. Davey’s meticulous explanation of how

Appellant’s failures to meet the standard of care more likely than not led to the

injury that he concludes. Because Dr. Davey sufficiently opines that at least one

theory of liability is linked to the development or worsening of Ms. Bailey’s

18
pressure ulcers, Appellant’s allegations of speculation are misplaced, and

Plaintiff’s claim must be allowed to proceed. Thus, Dr. Davey’s causation opinion

sufficiently linking the facts and medical science with his conclusion that

Appellant’s negligence caused a severe and infected Stage IV sacral ulcer is not

conclusory and far surpasses the threshold requirements of Chapter 74.

For all of the reasons set forth above, Dr. Davey’s amended report informs

Appellant of the specific conduct in question by explaining, in detail, what the

standard of care required and how it was breached by Appellant. Likewise, his

amended report provides the Court with a basis to conclude Appellees’ claims have

merit by walking the Court through the facts of this case, explaining the

pathophysiological process that leads to the development of a pressure ulcer, the

worsening of a pressure ulcer, and then linking the facts and medical science with

his conclusion that Appellant’s negligence caused the development of a severe

Stage IV pressure ulcer, infection, and malnutrition, from which Ms. Bailey

suffered until her death. As such, Judge Kennedy did not abuse her discretion

when holding that Dr. Davey’s amended report comports with the threshold

requirements of Chapter 74.

B. Because Appellees Did Not Assert a Wrongful Death Claim, Dr.
Davey’s Amended Expert Does Not Require Explanation of How
Appellant’s Failures to Meet the Standard of Care Caused Ms.
Bailey’s Death.

With a lack of reverence for this Court’s time, Appellant renews its

19
misguided argument that Dr. Davey is required to opine on how Appellant’s

breaches of the standard of care caused the death of Ms. Bailey. While Appellant

devotes five pages of its brief and cites to a litany of inapposite cases in attempt to

craft a creative argument, it can hardly support its own weight, especially in

consideration of the underlying claims asserted in Appellees’ Original Petition.

The expert report requirement is a threshold mechanism to dispose of claims

lacking merit. Potts, 392 S.W.3d at 631. The original and amended petitions

inform a defendant of the claims against it and limit what a plaintiff may argue at

trial. Id at 632. If an expert report adequately addresses a single liability theory

within a cause of action, the entire case may proceed. Id. at 629-31.

As to the underlying survival claims filed against it, Appellant relies on

Valle v. Taylor in attempt to deceive this Court as to what is required of Dr.

Davey’s causation analysis. The holding in Valle is clearly distinguishable. In

Valle, the plaintiffs filed wrongful death and survival claims against a nursing

home. Valle v. Taylor, No. 09-11-00223-CV, 2012 Tex. App. LEXIS 110, at *9

(Tex. App.—Beaumont Jan. 5, 2012, not pet.). The Beaumont Court of Appeals

found the expert report deficient on causation with regard to plaintiff’s wrongful

death suit because it failed to explain how pressure ulcers were related to the

patient’s death. See Id. at *23.

To clarify Appellant’s confusion, Appellees’ Original Petition unequivocally

20
asserts only survival claims. (CR 1-12) (emphasis added). From the plain language

of the Original Petition, it clearly states that Appellees “bring their survival claims

as heirs of Archie Bailey.” (CR 1-12). At no point within the Original Petition do

Appellees assert a wrongful death claim. That is to say that Appellees make no

contentions that Appellant’s breaches in the standard of care caused the death of

Ms. Bailey. Stated differently, Appellees’ Original Petition, which limits what

may be argued at trial and affords Appellant the explanation of the claims against

it, does not at any point allege the pressure ulcer caused or contributed to Ms.

Bailey’s death. Accordingly, Dr. Davey is not required to opine on how

Appellant’s breaches of the standard of care caused the death of Ms. Bailey.

Because Dr. Davey’s amended report sufficiently notifies Appellant of at

least one liability theory, Plaintiffs have provided a report that complies with the

statutory requirements set for in Chapter 74, and the entire case may proceed. Tex.

Civ. Prac. & Rem. Code. Ann. §74.351; Potts, 392 S.W.3d at 629-31. As such,

Judge Kennedy did not abuse her discretion when holding that Dr. Davey’s

amended report comports with Chapter 74.

CONCLUSION AND PRAYER

Chapter 74 and corresponding Texas case law make clear that the expert

report requirement is a threshold one, for which the objective is to preclude

frivolous cases. Appellees’ case, as demonstrated by their detailed expert report, is

21
clearly meritorious and more than satisfies the low burden required by Chapter 74.

Because Dr. Davey’s amended report sufficiently fulfills the requirements of an

expert report under Chapter 74, the trial court was obligated to overrule

Appellant’s objections to Dr. Davey’s amended report and deny its Motion to

Dismiss.

Accordingly, for the foregoing reasons, Appellees respectfully request that

this Court find that Judge Kennedy did not abuse her discretion, affirm the lower

court’s overruling of Appellant’s objections to Dr. Davey’s amended report, and to

also affirm the lower court’s decision to deny Appellant’s Motion to Dismiss.

Appellees additionally request any such further relief to which they may be justly

entitled at law and in equity.

22
Respectfully submitted,

MCIVER BROWN LAW FIRM

Robert M. Wharton
Texas Bar No: 24079562
Andrea Zarikian
Texas Bar No: 24093411
Mary E. Green
Texas Bar No: 24087623
firm@mciverbrown.com
JP Morgan Chase Bank Building
712 Main Street, Suite 800
Houston, Texas 77002
Telephone: 832-767-1673
Facsimile: 832-767-1783
COUNSEL FOR APPELLEES

23
 CERTIFICATE OF COMPLIANCE WITH RULE 9.4

1. This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
because:

this brief contains 4,739 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4

2. This brief complies with the typeface requirements of TEX. R. APP. P. 9.4(e)
because:

this brief has been prepared in a proportionally spaced typeface using
Microsoft Word for Mac 2011 in 14 point Times New Roman font for
the text and 12 point Times New Roman font for the footnotes.

____________________________
Robert Wharton

24
 CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of March, 2015, a true and correct copy of the
foregoing instrument was electronically filed and served by certified mail, return
receipt request to the following counsel of record:

Nichol L. Bunn
Stephanie F. Erhart
Lewis, Brisbois, Bisgaard & Smith, LLP
2100 Ross Avenue, Suite 2000
Dallas, Texas 75201
Telephone: (214) 722-7100
Fax: (214) 722-7111

______________________________
Robert Wharton

25
 No. 01-14-00291-CV
______________________________________________________________________________

In The Court of Appeals
For the First District of Texas
Houston, 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 LUCILLE MARTIN, AS HEIRS OF ARCHIE BAILEY,
Appellees.
______________________________________________________________________________

On Appeal from the 114th Judicial District Court of Smith County, Texas
The Honorable Christi Kennedy, Presiding Judge
(Trial Cause No. 14-0856-B)
______________________________________________________________________________

APPENDIX TO APPELLEES’ BRIEF
________________________________________________________________________

Dr. Davey’s Amended Expert Report Appendix A
Dr. Davey’s Curriculum Vitae Appendix B

26
APPENDIX
A
1 am pf\)viding this amended exp<;:rt report in the Archie Bailey (also referred to herein as
"the patient") matter, This report reflects my expert opinion regarding th,' standard of
care and the proximate cause of injuries sustained by Ms, Bailey,

It is my opinion that Pinecrest Nnrsing & Rehab Center (also referred to herein as
"Pinecrest Nursing") breached the standard of care by allowing Ms. Bailey's intact skin
to deteriorate, which developed into an infected Stage IV pressure ulcer on her sacrum
during the time of her stay (TR.000002 to TR.()OO()()5, TR.()O()712), Ms, Bailey was
admitted to Pinecrest Nursing with intact skill. '(,he standard of care requires facilities
like Pinecrest Nursing to prevent press,lre ulcers from developing and to promote the
heali.ng of any pressure ulcers that do develop. Pinecrest Nursing breached the standard
of care by allowing Ms, Bailey to develop a pressure ulcer and by allowing the pressure
ulcer to progress to a Stage IV. Specifically, Pinecrest Nursing [2,0 em (TR·OOI980),
According to the documentatioJl in the weekly preSSl~re ulcer record, the wound had II
moderate amount (Jf serosanguinc()lls exudate and was causing M.s. Bailey a significant
amount of pain (TR-OOI98()),

On 9-19-13, Ms. Bailey was discharged ii'om Pinecrest Nursing and transferred to Trinity
Mother Frances Hospital for elevated white blood cell count of 20.6 thou/mm} (TR,"
000002, TR-OOI972, TR-002528). Upon admission to the f:R lit 'I"rinity Mother Frances
Hospital, Ms, Bailey was diagnosed with Il Stage IV decubitus ulcer on her sacrum,

9962L28L2L X1f ~ .LH)l]S1f1 dH
leukocytosis, and a urinary tract inrection (UTI) (TR·000002, TR-OOOO(5). Cultures
taken from the wound on her Sacrum later reveak:d the presence \Jf Proteus mirabillis
(TR-000007, TR-000712). Sh~ also had a St!lge II pressure ulcer on her left buttock (TR-
000026). That same day, Ms. Bailey was transferred to Tyler Continue Care Hospital for
further managelm:nt of her wounds (TR-000006, TR-0000(1).

Upon admission to Tyler Continue Care Hospital, Ms, Bailey hlld a Stage IV sacral ulcer
that measured 11.0 x. 12,0 x 3.0 and had ,\ foul odor (TR·000285, TR-00(483). The
wound had a small amount of green purulent drainage and was covered in black eschar
(TR-000285, TR-(}O()930), Ms. Bailey als() h.!d !\ Stage II prcssllre ulcer on her left
buttock that measured 3.0 x 3,0 x. 0,25 em and 11 Stage II pressure ulcer on her right
buttock that measured S.O x 5.0 x. 0.1 em (TR·000285). Both buttock w\Junds had a small
am()unt of serosanguineous drainage present (TR·000285). According to her diotary
consult on 9-20-13, Ms, Bail~y was malnourished, and her nlltritional status was
described as "severely compromised" (TR-()00285). Her lab vulucs from 9·19· 13
revealed an albumin of 2.4 gldL, f()1' which a normal range is 3,9-5,0 g/dL, and a pre-
albumin of 58 mg/L, for which a norl11al fange is 176.. 360 Illg/L CfR-OOOOll, TR-
000283, TR·(j00701, TR-002S29). Ms, Bailey's low pre-albumin level suggested severe
visceral protein depletion (TR-000283).

According to the wound care consult on 9·24- I3, the pressure uker h!ld a "foul
malodorous odor," and the surrounding peri.wound area had excoriated non-blal1chable
redness (TR-000842), On 9·26·13, Ms, Bailey underwent (lxcisi()oal debrid(~mt~nt of
necrotic tissue from her sacral wound as well as partial cxeisiol1 of portions of bon" of the
involved coccyx (TR-00031 J to TR-00(312). Th" bone sample later revealed reactive
changes and acute int1111nrnation, indicating possible osteomyelitis (TR·000448).
Following debridement, the wound measured 11.5 x 8.0 x. 6.0 em with moderate
serosanguineous dnlinage and 5.0 em of undermining, and the tW() buttocks wounds had
become part ()f the sacral wound (TR-000842, TR-000908 to TR·O()0909). A w(lUnd
VAC W(iS placed on the S~lcral ulcer to promote healing, lind IV antibiotics were
administered to treat Ms, Bailey's infections (TR·000055, TR-OOOI67, TR-000(42).

On 9-30·13, Ms. Bailey underwent another surgical debridement of her Stnge IV pressure
ulcer, and following the procedure, the wound measured It.O x. 7.0 x 7.0 em (Tl{.
0(0842). The wound VAC was chlmged, ,Ind the negative pressure trl:atmcnt was
continued (TR·000842). Ms. Bailey's sacral ulcer was debrided two more t.imes before
her discharge on 10·22-13 (TR-00084() t() TR·()00841).

On 10-22-13, Ms. Bailey was admitted to Colonial Tyler Care Ccntcr for I:ontinllcd
wound care and nutritional therapy (TR-002566 to TR-O()2569). She continued to
receive negative pressure therapy from a wound VAC as well as a therapeutic diet to
promote wound healing (TR·002617, TR-O(2635). As of 11-6·13, Ms. Bailey's sacral
pressure ulcer measured 11,0 x 9.0 x 6.0 em (TR-()02644). Unfortunately, her condition
f'llIed to improve, and she was plact,d on hospice care. 011 12-4-13, Ms. Bailey expired
from cllrdio pulmonary arrest, as indicated ()Il her death certificate (TR'()02743).
However, it is my opinion, !() a reasonable degree ()f medical probability, tbtlt Ms.

4

996H<;8LH XH 1.&l'd]S1f1 dH Hd<;S:SO ~T!9<;!90
Builey's large and infected pressure ulcer was a significant, contributing factor to her
death.

Following my review of the medical records in this matter, it is my opinion that the staff
at Pinecrest Nursing violated the standard of care. For the purpose of this report, I will
discuss the standard of care, breach of standard of care, and proximate causation.

RelevatltStandards of ()!rC

First: Pnvent Avoidllble Pressure \JIct,rs. Medicare !md Medicaid provide rules that
require long term Cflrc fHcilitie~ to provide a base level of care, Failure 10 !lweI the level
of care pwvided by the rules Ibund in 42 eFR 4R3. Subpart B i~ a violation of the
regulations intended to protect J'c~itlcnts. It is al.5o an indication of a vjolatioll of the
standard of (:arc by the staff of tbeilldlity and the IldminiHtration of the filciiity. Seetion
483.25(c)(1) providos that it .f.9ciJity and its nurses ensure that a resident who is admitted
without pressure sores does !lot develop pressure sorO$ unless the individllal's ciillic:11
condition demonstrates that the sores were unavoidable and that a l'(Osidcnt who develops
pressure Sows reccive~ l'I<:cesslIry treatment .md services to promote hC(lling, prevent
infection. and prevent new sores li'om developing. The purpO$C of this is to pr~vcnt
residents from getting pressure ulcers fmd to pl'Omote bt,haviOl' that allows fur the healing
of ckt(;ubitus ulcers. Thel'tt are a number of interventions that exist to prevcl1t pressure
sores that are identifled anti explain~d in more detail below. For exampl¢, the standard of
('(Ire requires that a patient be turned, provided with prcssum-l'dicving devices, be kept
dean and dry, and be kept properly nourished. The st.andard of care also requires thn! II
patient receive frequent head.to·IOC body examinations to look for early signs of skin
problems.

One !Idditional source regarding the standard of care is the National Pressure Ulcer
Advisory Panel. Tht: NJ>UAP is a collection of (!xperts tasked with creating treatment
alg()rithm~ that show the proper ll'It'thod for preventing pressure ulcer~, In 2009, the
NPUAP published 11 26·page reference guide on how to prevent pressure ulcers. This
reference gtlide, which is available under the educational and clinical resources tab of the
NJ>UAP website (www.npuap.org), provides a detailed description of whllt the stllndllrd
of care requires.

The NPUAP identifies eight things that he,lIth care providers should address when caring
for a patient at risk of developing pressure ulcers:

1. Pressllre ulcer risk assessment: T'he standard of care requires health care
providers to conduct a structured risk assessment on admission and as
frequently and a$ regularly required based on pationt acuity, In addition,
health care providers should re!lssess the patient's risk level if the pHlient
has a change in condition. The purpose of the assessments is to gauge the
patient's risk of developing a pressure ulcer and to ensure a proper plan of

5

9962L28L2L X1f.!l .LHll]S1f1 dH
 care is implemented to prevent a pressure ulcer from developing.

2. Skin assessment: LikewIse, the standard of care requires health care
providers to perf that the l1.ecessary interventions can be.
implemented. Failing to do any of the above is a breach of the stand,!rd (>f care.

Third: Implement 40 Texns Admin. Code, Rule 19.001. Another source of
requirements that nursing homes must meet is Title 40, Chapter 19 of the T(~XIIS
Administrative Code. The Texas AdmilliHtrativ~ Codc, Chapter 19, Nursing Facility
Rcquirements For Licensure lind Medicaid Certification, Rule § 19.100 I states (a) the
nu:ility must have sufficient staff to provide 24-hour nursing and relttted s~l'vices to attain
or maintain the highest practicable physical, mental and psychosocial well-being of each
resident, as determined by resident assessments and individualized plans of care. When
treating a patient with a high risk of developing pressure \Ilccrs, a facility and its agents
must properly and regularly assess the patient, inclUding daily atld complete skin
assessments, proper documentation of the patient's daily activities, and monitoring the
patient's body weight. SUdl accurate and comp.lete (\ocul11etllatiOI1 is necessary to
properly assess and implement optimal nmsing i.nterventkms. In addition, staffIng levels
should reflect the complexity ()t'the care required, the si.:c of the facility, and the type of
services delivered. This means that the training, selection, and supervision of the staft'
must be sumcicnt to handle the nursing care that is needed by the residents who me Rcf()flu Act, part of the Omnibus Budget Reconciliation Act of J987" The
basic objective of the NUl'sil)!! Home Reform Act was to ensure that !"e$idcnts of nUl'sing
homes t'cceived quality care that resulted in their achieving Of maintaining their "highest
practicable" physical, men!"I, (lnd psych()social well-being.

Fourth: Implement The Nursing Home Reform Act of 1987. To secUI'e quality care in
llursing homes, the Nursing Home Reform Act requires the provision of certain services
to each resident and establishes a Residents' Bill of Rights. Nursing homes receive
Medicaid and MedicaI'e payments for long-term can" of residents only if they are certified
by the ~tate to be in substantial compliance with the requirements of the Nursing H.()me

7

80'U XV.!l .LHd]SV1 dH Hd~E:SO tT!9~!90
Reform Act 'I'he purpose of these ret\:mns was to ensure that facilities had suft1cient
staff that was sufficiently trained and supervised to provide quality care to the residents.
Such training and supervision are especi:1I1y important when it comes \(1 care of
dependent residcnts. Failing to have a staff that is sufficiently trained and supervised,
which includes the facilities policies as well as the implementation of those policies, to
attain and maintain the highest practicable physical. mental and psychosocial well·being
of the residents is a violation of the standard of care applicable to nursing homes.

Over the course of the care of Ms, Bailey, it is clear that Pinecrest Nursing viohlted the
stnndnrd of care in the t<)llowing respects:

.'irst: Failing t() prevent a pfe~Sllre sorc;
Second: Failing to properly treat the patient's pressure ulcers once they developed;
Third: Failing to implement The Texas Administrative C()de, Chapter 19, Nursing
Facility Requirements For Licensure and Medicaid Certification, Rule § 19.1001; and
Fourth: Failing t() implement The Nursing Home Reform Act of 1987.

l<'lrst: Pinecrest Nursing violatcd the standard of care by failing to prevent a pressure
ulcer from occurring, which was II proximate cause of harm to Ms. Bailey. This standard
of care mandates that a fncility and its nurses IlI1SUN thllt a resident who is adrnittcd
without pressure sonlS does not develop pressure sores unless the individual's clinical
condition demonstrates that they were unavoidable and that a resident who has pressurtl
sores rc~civcs ncccss!u'Y treatment and services to prolllote healing, prevent infection, and
prevent new sores frorl1 developing. Ms, Bailey was admitted to Pinecrest Nursing
without any pressure ulcers (TR·()()2227, TR-()02533), The Braden Skin Scor" is lIsed t()
assess a resident's risk for developing pressure ulcers, According to Pinecrest Nursing.
Ms. B,llitly wa.s not a high risk of developing pressure ulcers with a Braden Score of 13
(TR-OOI977). On7-I .. J3, the nursing s\!IITasscsscd Ms, Builey us only being a tnoderate
risk for thc development of prt'ssure ulcers (TR·()OI977), In my professional opinion,
this is not an accurate ,Issessment (If Ms, Bailey'S risk leveL At the lillle of this
,ISSI;SSIl1GIlI, Ms. Bailey required extensive assistall\;e for all her Activities of Daily
Living, including bed lTI(lbility. (IlKI she had a history of gcr10ralizcd weakness ami
debility, which would have severely limited her from freely repositioning herself erR-
002018 to TR·002019, TR-002184, TR-O()2252 to TI~A)02253). Despite these factors,
she was assessed as "chair/as!" when she should have be~n lssessed the pressure
ulcer as measuring 2.0 x 2.0 x 2.0 em, but they failed to stage it (TR·001979). Five days
later, Ms. Bailey's sacral ulcer had become unstageable (TR-OO 1(80). Wh(~ll all ulcer is
clltssificd as un stageable, it means that the ulcer is at lellSt Stag~l III or Stage IV, but the
ulcer is heavily covered in necrotic tissue, prev~mting health care providers from seeing
how deep the injury extends under the skin. On 9-17-13, Ms. Hailey'S unstageable
pressure ulcer measurlld 8.0 x 15.0 x >2.0 em with 11 moderate amount of
serosanguineous drainage, according to the documentation in the weekly pressure ulcer
record (TR-OO I980), That same day, the wound W,I$ tlssessed for the tirst time in the
nursing notes, and the entry described the wound as "deteriorated" with meaSlLrements of
18.0 )( 10.0 em (TR·002053). ACC(lrding to the nursing notes, the wound had 100%
necrotic tissue, and its depth was unable t() be measured (TR-00205J). The medical
records here dem(mstrate both inaccurate and inconsistent documentation. Proper
assessment is necessary for proper treatment of pressure ulcers. Measurement and
accurate description of wounds is crucial to track a w(mlld's progress and response to
trcntment. By the time Ms. Bailey transferred to the ER ,Lt Trinity Mother Fnmces
Hospital, she hud an infected Stage IV pressure ulcer (TR-000002 to TR-000005). If
Pinecrest Nursing and its nurses had properly a~scssed lind do(;Umcnt,ld Ms. Bailey's
pressure ulcer, the appropriatll intcrvcntion$ could have b..'ctl imp.lclllcllkd betbn:' the
wound progressed to a Stage IV pressure ulcer (TR-TR-000002 to TR-·O()0005).

Not only is accurate and complete documentatioll necessary t() properly assess and
properly implement optimal nursing interv(ll1tions, it also assists other members of the
facility, such as physicians and dkticians, to treat the patient's conditions promptly and
correctly. The nursing stafl' at Pinecrest Nursing failed to regularly assess Ms. Bailey's
pressure ulcer as indicated by the llick M skin and wound care assessments in the nursing
notes (TIHl02030 to TR·OO2(76). Because the nurses tltiled to accurately and
consistently document the status of Ms. {hiley's pressure ulcer and provide Mlequate and
detailed descriptions, the attending physician was not 110ti!1ed of Ms. ,Bailey's worsening

10

TT 'U 9962i..28i..2i.. X1f .. .LHlI]51f1 dH IdZE:SO tT/9Z/90
pressure ulcer for over two weeks (TR·002048). As a result, (\ wound care C()flsultation
and wound cure treatments were not ordered for Ms. Bailey until after her sacral ulcer
had developed a depth of 0.2 CIll, which was indio,I!!ve of a Stage III pressure ulcer (IR·
001979, TR-00200 I to TR·002002, TR·002048, THAJ0253I ). Aside from these orders,
Ms. Bailey's pressure ulcer was never mentioned in ,Iny of the physician's progress notes
or consultations (TR-OOI990 to TR-OOI 992). The nurses caring tbr Ms. Bailey shOUld
have brought the WQulld and the filct that it W(lS becoming necrotic to the attending
physician's attention, both by accurately documenting thtlir assessment of the wound in
the records and by verbally reporting it to one of the physicians. Nurses are required to
rclay It patient's changes in conditi(lrt to the ~\ttcnding physician, sUl~h as further skin
breakdown, such dUit It physician could evaluate the necessity of interventions sudl as It
low air mattress or a wound consult. If the nurses at Pim)crest Nursing had ootiticd thll
attending physician of Ms. BaUey's change in condition so,mer, the proper interventions
could have been implemented before Ms. Bailey's pressure ulcer became unstageable
(TR-OO 1980).

Finally, the nursing staff at Pinecrest Nursing should have paid closer attention to Ms.
Bailey's nutritional status. In order to promote skin integrity, it is vital that a resident
rec<.!ives adcqmltc nutrition and hydratkm. As mentioned in the medical summary, Ms.
Bailey was admitted to Pinecrest Nursing with adequate nutrition levels (TR-OO 1977),
Despite Ms. Bailey's development of a pressure ulcer, the nursing staff at Pinecrest
Nursing fililed to monitor the resident's labonllory values (TR-002519 to TR-002529).
As a result, the nurses were unable to assess Ms. Bailey's nutritional status, and were
thcretbrc un,lwarc of her w()rsening albumin and pre-albumin levels throughout hcr stay
at Pinecrest Nursing. While II multivitamin was administered, additional interventions
such as providing sn;lCks between meals, fortifying meals, andlor providing smuller, more
frequent meals were never initiated (TR-002000). PressufC ulcer development or the
presence of" chronic n()U-healing pressure ulcer places increased metabolic demands on
a patient. Without immediate and assertive nutritional iIltervention to provide the raw
Illilterials to meet this increased demand for energy, initiate wound closure, and replace
pot(:ntiallosses during the wound healing process, healing will be delayed. Ms. Bailey's
lab values were not tllken Ilntil9-19-l3, the day of her disch!lrge (TR-002529). By this
time, she had an albumin level of 2.4 g/dL, indicating malnutrition (TR-002529). Up()!)
admis8ioll te) the ER a! Trinity Moth~l' Frances Hospital, she was diagnosed with protein
calori" malnlltrition and had (I pnHllbumin kvel of 58 mg/L (TR-OOOO II, TR-OOO(57).
The failun' (If the nurses to institute appropriate interventions required to stahilize Ms.
Bailey's skin integrity, maintain her nutritional status, and prevent complications WllS
clearly a br<':!lch in the sttmdard of ellrc.

Third: Pinecre~t Nursing violated the standard of care by lfliling implement The Texas
Administrative Code, Title 40, Chapter 19, Nursing Facility Requirements For Licensure
and Medicaid Certification, Rule § 19.100 I by m)t pf()vlding $umdent stall' to provide
24·i1our nursing care and rdated services reflecting the complexity of the care required,
the size (If the facility, and the type of services necessary to aWlin or maintain the highest
practicable physical, mental and psychosocial well-being of Ms. II,tiley, as determined by
the resident assessmellls and individualized plans of c~m), When a r~side!'lt does 1Wt

II

2T'U 996ZL28LZL XV l l.Hd],V1 dH Id2E:SO tT/92/90
reedve frequent and regular assessments and care, it is indicative of an insuflicicnt staff
level. If staffing levels had been appropriate, there w(mld have been nurses and/(l" staff
available to attend to Ms. Bailey. The failure ofthe facility to provide sufficient staffand
to provide 24·houf nursing care and related services is a breach in the standard of care .

.Fourtb: Pinecrest Nursing violat<;1d the standard of care applicable to ntlrsing homes by
tailing to properly train and supervise its staff and by i(liling to have policies in pbce that
are designed to maintain the highost practicable physical, mental, IIl1d psychosocial weU·
being of Ms. Bailey. Had the care to Ms. Bailey been provided by sufficiently trained
staff and based on wel.l·conceived policies and procedures, appropriate and timely care
plans would have been implemented and interventions would have been put in place
which would have prevented Ms. B!liley from developing it Stage IV pressure nIcer (TR-
000002 to TR-OOO()05). As a result, Pinecrest Nursing brc(I(:hed this standard of care.

The following is an explanation of how, t(l II reasonable degree of medical probability,
the breaches of the standard of care idcntiticd above proximatdy caused Ms. Bailey's
injuries, including the deVelopment of II Stage IV pressure ulcer.

To understand how a pressure ulcer is caused by the negligence of a nursing staff and a
facility, it is lirst important to understand what a pressure ulcer is and what happens to
the body to allow them to develop.

Whut i,~ II pres.mre ulcer?

Pressure ulcers, also known as decubitus ulcers or bedsores, are !(lcalized injuries to th(~
skin and/or underlying tissue usually over a bony prominence, as II result of pressure, or
pressure in combination with shear ,\11(Vor friction. Most commonly they are found on
the sacrum, coccyx, heels or the hips, but other sites such as the elbows, knees, ankles, or
the back of the cranium can be aftected. They range in severity from mild (minor skin
reddening) to ~evere (doep craters down to musdc and bOlle).

What causes II pressure ulcer (0 develop?

Pressure ulcers occur when soft tissues are distorted in a fixed Imlllner over" period of
time. This distortion usually occurs when the soft tissues arc compressed and/or sheared
between the skeleton and a supportive device (such as a bed or chair). This causes the
blood vessels within the distorted tissue t(l become compressed, angulated, or stretched
out of their usual shape. As a result, blo\)d is unable to pass through the vessels. When
blood is ul1