ACCEPTED
03-14-00765-CV
4240890
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/22/2015 3:07:21 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00765-CV
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
2/23/2015 3:07:21 PM
JEFFREY D. KYLE
Clerk
NANCY JO RODRIGUEZ,
Appellant,
vs.
THE WALGREENS COMPANY AND SARA ELIZABETH MCGUIRE,
Appellees
On Appeal from the 419th Judicial District Court of Travis County, Texas
Trial Court Cause No. D-1-14-GN-000903
The Honorable Gus J. Strauss, Judge Presiding
BRIEF FOR APPELLANT
L. Todd Kelly
Texas Bar No. 24035049
The Carlson Law Firm, P.C.
11606 N. IH-35
Austin, Texas 78753
Tel. 512-346-5688
Fax 512-719-4362
Tkelly@carlsonattorneys.com
Counsel for Nancy Jo Rodriguez
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant Nancy Jo
Rodriguez provides the following complete list of all parties and counsel to the
trial court’s order that forms the basis of this appeal:
Nancy Jo Rodriguez
Appellant
The Walgreen Company
Sara Elizabeth McGuire
Appellees
L. Todd Kelly
Texas Bar No. 24035049
The Carlson Law Firm, P.C.
11606 N. IH-35
Austin, Texas 78753
Telephone: 512-346-5688
Facsimile: 512-719-4362
Tkelly@carlsonattorneys.com
Trial and Appellate Counsel for Plaintiff Nancy Jo Rodriguez
Cynthia Day Grimes
State Bar No. 11436600
Strasburger & Price, LLP
2301 Broadway
San Antonio, Texas 78215
Telephone: 210-250-6000
Facsimile: 210-250-6100
Cynthia.Grimes@strasburger.com
Trial Counsel for Appellees The Walgreens Co. And Sara Elizabeth
McGuire
Judith R. Blakeway
2
Strasburger & Price, LLP
State Bar No. 02434400
2301 Broadway
San Antonio, Texas 78215
Telephone: 210-250-6000
Facsimile: 210-250-6100
Judith.Blakeway@strasburger.com
Appellate Counsel for The Walgreen Co. and Sara Elizabeth McGuire
Chris Knudsen
Texas Bar No. 24041268
Nicole Andrews
Texas Bar No. 00792335
Serpe Jones Andrews Callender & Bell, PLLC
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: 713-452-4400
Facsimile: 713-452-4499
cnudsen@serpejones.com
nandrews@serpejones.com
Counsel for Vivek Goswami, M.D. and Austin Heart, PLLC (not parties to
this appeal)
Missy Atwood
Texas Bar No. 01428020
Germer Beaman & Brown, PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
Telephone: 512-472-0288
Facsimile: 512-472-0721
matwood@germer-austin.com
Counsel for Defendant St. David’s Health Care Partnership (not a party to
this appeal)
3
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ 2
INDEX OF AUTHORITIES...................................................................................... 5
STATEMENT OF THE CASE .................................................................................. 6
ISSUES PRESENTED............................................................................................... 6
STATEMENT OF FACTS ........................................................................................ 7
SUMMARY OF THE ARGUMENT ........................................................................ 8
ARGUMENT ............................................................................................................. 9
A. DR. HARDY IS QUALIFIED TO OPINE ON THE ISSUES
PERTINENT TO THIS CASE ............................................................................... 11
B. DR. BREALL’S REPORT LINKS NANCY’S CONTINUED
PRADAXA THERAPY TO HER INJURIES ............................................................ 14
C. THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING WALGREENS AND MCGUIRE’S MOTION
TO DISMISS ..................................................................................................... 17
PRAYER .................................................................................................................. 19
CERTIFICATE OF COMPLIANCE ....................................................................... 20
CERTIFICATE OF SERVICE ................................................................................ 20
APPENDIX
Trial Court Order .............................................................................................. A
Statutes .............................................................................................................. B
4
INDEX OF AUTHORITIES
CASE LAW
Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873,
878-879 (Tex. 2001) ..........................................................................................10, 17
Blan v. Ali, 7 S.W. 3d 741, 746 (Tex. App. - Houston [14th Dist.] 1999,
no writ) ..................................................................................................................... 12
Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) ................................. 17
Broders v. Heise, 924 S.W. 2d 148 (Tex. 1995) ...................................................... 12
Davisson v. Nicholson, 310 S.W.3d 543, 558 (Tex. App.—Fort Worth
2010, no pet.) ........................................................................................................... 14
Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) ................................................................................. 14
STATUTES
Texas Civil Practice and Remedies Code § 74.351 .................................9, 14, 16, 17
Texas Civil Practice and Remedies Code § 74.402 ................................................. 11
5
STATEMENT OF THE CASE
This case involves a claim for damages arising out of medical malpractice
(CR 4). It was originally filed in the 419th District Court of Travis County, Texas.
Id. The reports of Dr. J. Chad Hardy and Dr. Jeffrey A. Breall were filed and
served with Plaintiff’s Original Petition on March 26, 2014 (CR 13). Appellees
The Walgreen Company and Sara Elizabeth McGuire filed Objections to the
reports of Dr. Hardy and Dr. Breall on May 6, 2014, and later filed a Motion to
Dismiss based on these objections on September 10, 2014 (CR 64 and CR 212). A
hearing on Appellees’ objections and Motion to Dismiss and Plaintiff’s
countermotion for the filing of frivolous objections was held on October 29, 2014
(CR 210). On December 3, 2014, the Honorable Visiting Judge Gus J. Strauss
signed an order dismissing The Walgreen Company and Sara Elizabeth McGuire
(CR 375). Appellant filed her Notice of Appeal of this order (Supp. CR 3).
ISSUES PRESENTED
1. Dr. J. Chad Hardy, Pharm.D., M.S. is qualified to render an opinion on
Appellees’ breach of the applicable standard of care, given his statements within
the four corners of his report setting forth his qualifications, together with his
extensive knowledge and experience in processing and handling prescriptions; and
2. The expert reports of Dr. J. Chad Hardy, Pharm.D., M.S. and Dr. Jeffrey A.
Breall, M.D., which clearly apprise Appellees of the claims asserted against them
6
and inform the court that the claims are not frivolous, are sufficient under the
Texas Civil Practice and Remedies Code when considered in the aggregate.
STATEMENT OF FACTS
On February 10, 2012, 53-year-old Nancy Jo Rodriguez is sent by her
psychiatrist to Seton Northwest Hospital Emergency Center (Seton) for evaluation
of confusion. Although Nancy suffers from bipolar disorder and has a history of
confusion, she is able live independently at this time (see CR 44). While at Seton,
Nancy is referred to Vivek Goswami, M.D. (Dr. Goswami), a cardiologist with
Austin Heart, PLLC (Austin Heart). Dr. Goswami treats her for atrial fibrillation
by placing Nancy on Pradaxa, an anticoagulant or “blood thinner”. Pursuant to the
medical records relied on by Dr. Jeffrey A. Breall, Nancy is discharged home from
Seton with instructions to follow-up with David Kessler, M.D. (Dr. Kessler), who
also practices with Austin Heart. Based on Nancy’s follow-up visit, Dr. Kessler
orders that her Pradaxa therapy be stopped.
Pursuant to the records upon which Dr. Hardy relied in forming his opinions,
including a copy of the image of the prescription filled by Appellees, refills of
Pradaxa were not signed by any physician. Despite having no authorization to refill
Nancy’s Pradaxa medication, Appellees continue to refill her prescription for the
drug (CR 41). Appellees make no effort to protect Nancy, a person with a history
of confusion and mental health issues, from a potentially dangerous drug known to
7
have an array of severe side effects (CR 43-44). Due in part to the omissions of
Appellees, Nancy continues to take Pradaxa over the course of the next 4 months.
On July 2, 2012, Nancy’s son and daughter-in-law find Nancy in her
apartment, covered in bruises, blood, and feces. Her medical records from Seton
Northwest indicate she is admitted to the ICU at Seton and diagnosed with severe
coagulopathy, or a severe impairment of her blood’s ability to clot. She is treated
for gastrointestinal bleeding, hypotension, and kidney injury (CR 44). Nancy is
eventually discharged and cared for at Ashwood Assisted Living, an extended-care
facility (CR 43). Her discharge summary from Seton Northwest indicates her
primary discharge diagnosis is “1. Acute blood loss anemia secondary to acute
gastrointestinal bleed secondary to hypercoagulable state while on Pradaxa.”
SUMMARY OF THE ARGUMENT
The trial court abused its discretion when it dismissed Rodriguez’s claims
against Appellees The Walgreen Company (Walgreens) and Sara Elizabeth
McGuire (McGuire). To comply with the requirements of Chapter 74 of the Texas
Civil Practice and Remedies Code, Rodriguez filed and served the expert reports of
Dr. J. Chad Hardy and Dr. Jeffrey A. Breall with her Original Petition. Together,
these reports demonstrate that Walgreens and McGuire breached multiple duties to
Nancy by continuing to dispense the drug Pradaxa to Nancy without verifying
whether it should be continued with her physician and despite the fact the
8
prescribing physician indicated it should be discontinued. Because Nancy
continued to take Pradaxa, she suffered kidney injury, gastrointestinal bleeding,
and hypotension which have resulted in her long-term clinical demise.
Dr. Hardy is a licensed pharmacist who is qualified to opine on the standard
of care applicable to Walgreens and McGuire because of his extensive experience
in pharmacy operations, including the proper processing and handling of
prescriptions to ensure patient safety. Dr. Breall, a board-certified cardiologist,
then opines on the causal relationship between Nancy’s continued Pradaxa therapy
and her injuries. When these reports are read in the aggregate, it is clear that
Rodriguez has more than satisfied the requirements of Chapter 74. She has
apprised Walgreens and McGuire of specific conduct called into question, and she
has demonstrated that her claims have merit. For these reasons, the trial court
abused its discretion in granting Walgreens and McGuire’s Motion to Dismiss.
ARGUMENT
Because this is a case involving permanent, devastating damages resulting
from medical neglect, Rodriguez must meet the procedural requirements of Texas
Civil Practice and Remedies Code §§ 74.351 – 74.403. TEX. CIV. PRAC. & REM.
CODE § 74.351(r)(6) mandates that a plaintiff provide an expert report that sets
forth 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
9
physician or health care provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or damages claimed.”
However, the report “need not marshal all the plaintiff’s proof” as long as it
provides the expert’s opinion on each element listed in the statute. Am.
Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878-879 (Tex.
2001). The Texas Supreme Court has ruled that:
“In setting out the expert’s opinions on each of those elements, the 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 trial court to conclude that the claims
have merit.” Palacios, 46 S.W.3d at 878-79.
Thus, the only requirements of the statute with regard to an expert report is that the
report (1) give the defendant notice of the conduct upon which the plaintiff is
basing her claim, and (2) provide the court with sufficient information to determine
that the plaintiff’s claim has merit. Id.
The trial court abused its discretion when it granted Walgreens and
McGuire’s Motion to Dismiss. To meet her Chapter 74 expert report requirements,
Rodriguez served the expert reports of Dr. J. Chad Hardy, Pharm.D., M.S. and Dr.
Jeffrey A. Breall, M.D. Dr. Hardy, a licensed Texas pharmacist, opines on the
standard of care applicable to Walgreens and McGuire as well as their breach of
that standard. Dr. Breall, a medical doctor and board-certified cardiologist, then
10
provides an opinion on the causal link between their breach of the standard of care
and Nancy’s injuries. When considered in the aggregate, these reports more than
satisfy Rodriguez’s Chapter 74 expert report requirements.
A. DR. HARDY IS QUALIFIED TO OPINE ON THE ISSUES PERTINENT TO THIS CASE.
Dr. Hardy is qualified to opine on the standard of care applicable to
Walgreens and McGuire because of the nature of his practice as well as his
knowledge, experience, and training regarding the specific issues giving rise to this
claim. Civil Practice and Remedies Code § 74.402(b) provides that a person may
qualify as an expert if the person:
(1) is practicing in a field of practice that involves the same type of care or
treatment as that delivered by the defendant health care provider at the time
the testimony is given or was practicing that type of care when the claim
arose;
(2) has knowledge of accepted standards of care for health care providers for
the diagnosis, care, or treatment of the illness, injury, or condition involved
in the claim; and
(3) is qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standard of care. (emphasis added)
Courts have further determined that the test for whether a medical expert is
qualified to render opinions in a case is “rooted in the expert’s training, experience
and knowledge of the standards applicable to the illness, injury or condition
involved in the claim.” Blan v. Ali, 7 S.W. 3d 741, 746 (Tex. App. - Houston [14th
Dist.] 1999, no writ). The test of an expert’s qualifications is not whether the
11
expert has the same practice as the Defendant; instead, the offering party must
establish that the expert has “knowledge, skill, experience, training or education
regarding the specific issue before the Court which would qualify the expert to
give an opinion on that particular subject.” Broders v. Heise, 924 S.W. 2d 148
(Tex. 1995).
Dr. Hardy received his Doctorate of Pharmacy from the University of Texas
in 2000 and is a licensed pharmacist in Texas (CR 39). At the time of the negligent
acts of Appellees, Dr. Hardy worked in Pharmacy Operations Management and as
a Pharmacy Consultant (CR 13). His expert report and curriculum vitae
demonstrate his extensive knowledge of the standard of care relevant to pharmacy
operations, including the applicable standards for the “refilling and processing of
the prescription [Pradaxa]” (CR 40). Dr. Hardy’s expert report and CV plainly
demonstrate that his practice focuses on the health care services about which he
opines: pharmacy operations, including the refilling and processing of
prescriptions. It is Appellees’ refilling and processing of Pradaxa without
authorization from Nancy’s physician that fell below the standard of care in this
case, contributing to Nancy’s overdose and resulting in the significant personal
injuries and damages she suffered.
Dr. Hardy has extensive experience in the operations and standards that
govern the allegations which form the basis of Rodriguez’s claims. However, in
12
their objections to Rodriguez’s expert report, Walgreens and McGuire complained
that Dr. Hardy’s CV “fails to demonstrate that he was engaged in the practice of
pharmacy in 2012” and that “there is no indication that he is actively practicing
health care in rendering health care services relevant to the claim” (CR 69).
Walgreens and McGuire disregard the clear evidence that demonstrates Dr.
Hardy’s qualifications to opine on the issues central to Rodriguez’s claims of
negligence.
Dr. Hardy’s field of practice focuses on pharmacy operations and the
standards by which pharmacies must abide to provide the appropriate care for their
patients. The operations of a pharmacy, including the proper refilling and
processing of prescriptions, are central to the care and treatment provided by both
Dr. Hardy’s practice and the practice of Walgreens and McGuire. At the time of
the events made the basis of this case, Dr. Hardy was extensively involved in
pharmacy operations, using his “clinical knowledge to ensure proper effective and
timely patient care” during his management of 16 pharmacies (CR 13). Dr.
Hardy’s work focuses on the handling of medications – such as Pradaxa – by
pharmacies and pharmacists such as Walgreen and McGuire. He is more than
qualified to opine on the standard of care in a case concerning the improper
handling of a prescription.
13
B. DR. BREALL’S REPORT LINKS NANCY’S CONTINUED PRADAXA THERAPY TO
HER INJURIES.
Dr. Hardy opines that Nancy’s continued Pradaxa therapy was the result of
Walgreens and McGuire’s processing and refilling the drug without her
physician’s authorization. As he explains in his report, pharmacists “have a duty to
contact the prescribing physician if patient harm is possible to validate the
prescription.” By dispensing Pradaxa to Nancy without authorization from her
physician, Walgreens and McGuire breached this standard as well as the other
duties set forth by Dr. Hardy. Dr. Breall then opines on the causal connection
between Nancy’s continued Pradaxa therapy – which resulted in part from
Appellees’ breach of the standard of care, as provided in Dr. Hardy’s report – and
her injuries.
Pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6), an expert report
must set out “the causal relationship” between the breach and “the injury, harm, or
damages claimed.” When a plaintiff serves multiple expert reports, the reports
should be considered in the aggregate to determine whether her expert report
requirements have been met. See Packard v. Guerra, 252 S.W.3d 511, 526 (Tex.
App.—Houston [1th Dist.] 2008, pet. denied); Davisson v. Nicholson, 310 S.W.3d
543, 558 (Tex. App.—Fort Worth 2010, no pet.). In their Motion to Dismiss,
Walgreens and McGuire alleged that Dr. Breall’s expert report “fails to comment
14
on any causal connection between an act or failure to act by Walgreens or McGuire
which was a cause of plaintiff’s injuries.” However, as discussed above, the reports
of Dr. Breall and Dr. Hardy should be considered in the aggregate to determine
whether Rodriguez has met the expert report requirements. Walgreens and
McGuire were responsible for continuing to dispense Pradaxa to Nancy, and Dr.
Breall links her continued Pradaxa therapy to the injuries she suffered.
In his report, Dr. Hardy sets forth the specific conduct of Appellees which
constitute departures from the standard of care. Specifically, Dr. Hardy states that
Walgreens and McGuire breached their standard of care by continuing to dispense
Pradaxa after the prescribing physician indicated it should be discontinued and by
failing to verify if that prescription should be continued with the prescribing
physician. Dr. Breall then opines in his expert report on the causal relationship
between Nancy’s injuries and the departures from the standard of care set forth in
Dr. Hardy’s report. Dr. Breall provides that the “[f]ailure to discontinue the use of
Pradaxa was a direct cause of her subsequent acute admission to the hospital with
hypotension, acute kidney injury and apparent gastrointestinal bleeding – known
side effects of the over-use of Pradaxa” (CR 44). Furthermore, Dr. Breall states
that “Ms. Rodriguez’s hospitalization would never have needed to take place” if
Pradaxa therapy would have been stopped “as ordered by Dr. Kessler”. Id. These
acts and failures are, incidentally, the same as those identified by Dr. Hardy as
15
breaches in the standard of care applicable to Walgreens and McGuire. Dr. Breall
attributes Nancy’s injuries to these acts and failures.
When the reports of Dr. Hardy and Dr. Breall are read in the aggregate, it is
evident that Rodriguez has addressed each element of her claims against Appellees
as required by Chapter 74. Thus, Rodriguez has set forth a good-faith effort to
comply with her expert report requirements. She has addressed each required
element of her cause of action by providing the reports of both a qualified
pharmacist (Dr. Hardy) and a qualified medical doctor (Dr. Breall).
In their Motion to Dismiss, Walgreens and McGuire further complain that
Rodriguez failed to offer a report that addresses the damages claimed in her
petition because the report does not address the damages she is suffering and will
suffer in the future. However, § 74.351(r)(6) requires only that the expert set forth
the causal relationship between the breach and some “injury, harm, or damages
claimed”. Dr. Breall provides in his report that Nancy from “acute admission to the
hospital with hypotension, acute kidney injury, and apparent gastrointestinal
bleeding” – known side effects of the over-use of Pradaxa that Dr. Breall attributes
to her continued Pradaxa therapy. Chapter 74 does not require that Dr. Breall detail
all of Plaintiff’s damages beyond giving an opinion as to this causal relationship,
and certainly the current and future damage elements claimed by Rodriguez in her
report are beyond the scope of a Chapter 74 expert report. Rodriguez has
16
sufficiently fulfilled the expert report requirements by setting forth the injuries and
harm suffered by her as a result of Defendants’ negligent acts.
C. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING WALGREENS CO.
AND MCGUIRE’S MOTION TO DISMISS.
The trial court abused its discretion when it granted Defendants’ Motion to
Dismiss. An appellate court generally reviews a trial court’s decision to dismiss
under TEX. CIV. PRAC. & REM. CODE § 74.351 for an abuse of discretion. Bowie
Mem. Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court abuses its
discretion if it acts “arbitrarily or unreasonably or without reference to any guiding
rules or principles.” Id.
Pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351, plaintiffs must provide
a timely expert report that demonstrates a “good-faith effort” to set forth a “fair
summary” of the applicable standard of care, the manner in which the health care
provider breached the standards, and the causal relationship between that failure
and the injury, harm, or damages claimed. Am. Transitional Care Ctrs. of Texas,
Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). To satisfy this requirement,
“a plaintiff need not present evidence in the report as if it were actually litigating
the merits…the report does not have to meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.” Id. at 879. A trial court
abuses its discretion in granting a motion to dismiss based on § 74.351 if there is
17
no reasonable basis for the court to determine that the report fails to set forth the
requisite good-faith effort. See Wright, 79 S.W.3d at 53. Here, the trial court acted
arbitrarily, unreasonably, and without reference to the above rules and principles
governing the expert report requirements by granting Defendant’s Motion to
Dismiss.
To comply with the expert report requirements of Chapter 74, Plaintiff
served the reports of both Dr. Hardy and Dr. Breall. Dr. Hardy, a licensed Texas
pharmacist, thoroughly sets forth his opinion on the standard of care applicable to
Appellees and the manner in which the care rendered by Appellees failed to meet
that standard. Among other acts and omission, Dr. Hardy opines that Appellees
continued to dispense Pradaxa after the prescribing physician indicated it should be
discontinued and failed to verify if the prescription should be continued in
violation of the standard of care. Dr. Breall, a medical doctor who is board certified
in cardiology, then opines on the causal relationship between Nancy’s continued
Pradaxa use and her injuries, which include hospitalization with acute kidney
injury, hypotension, and gastrointestinal bleeding. Dr. Hardy is not qualified to
opine on causation because he is not a medical doctor. Dr. Breall is not qualified to
opine on the standard of care of a pharmacist because he is not a pharmacist.
However, when these reports are read in the aggregate, they apprise Walgreens and
McGuire of the specific conduct called into question by Rodriguez’s claims and
18
demonstrate that Rodriguez’s claims have merit. Because the expert reports of Dr.
Breall and Dr. Hardy set forth a good-faith effort to provide a fair summary of their
opinions on each element of Rodriguez’s claim, the trial court abused its discretion
by granting the Motion to Dismiss.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant Nancy Jo Rodriguez
respectfully requests that the Court reverse the decision of the trial court granting
Walgreens and McGuire’s Chapter 74 Motion to Dismiss. Rodriguez also requests
that she be awarded her reasonable attorney’s fees and costs as allowed by Chapter
74 of the Texas Civil Practice and Remedies Code. Rodriguez further prays for
such other relief to which she may be justly entitled.
19
Respectfully submitted,
L. Todd Kelly
Tkelly@carlsonattorneys.com
State Bar No. 24035049
THE CARLSON LAW FIRM, P.C.
11606 N. IH-35
Austin, Texas 78753
(512) 346-5688
(512) 719-4362 (Fax)
/s/ L. Todd Kelly
L. Todd Kelly
ATTORNEY FOR
NANCY JO RODRIGUEZ
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant’s Brief contains 3,264 words, based on
Microsoft Word’s word-count function.
/s/ L. Todd Kelly
L. Todd Kelly
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
forwarded to the following in accordance with the Texas Rules on the 22nd day of
February, 2015.
Electronic Transmission:
Cynthia Day Grimes
Cynthia.Grimes@strasburger.com
Judith R. Blakeway
20
Judith.Blakeway@strasburger.com
Strasburger & Price, LLP
2301 Broadway
San Antonio, Texas 78215
Chris Knudsen
Cknudsen@serpejones.com
America Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Tel. (713) 452-4400
Fax. (713) 452-4499
Missy Atwood
Matwood@germer-austin.com
Germer, Beaman & Brown, PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
/s/ L. Todd Kelly
L. Todd Kelly
21
APPENDIX A
TRIAL COURT ORDER
APPENDIX B
STATUTES
Sec. 74.351. EXPERT REPORT. (a) In a health care
liability claim, a claimant shall, not later than the 120th day
after the date each defendant's original answer is filed, serve
on that party or the party's attorney one or more expert
reports, with a curriculum vitae of each expert listed in the
report for each physician or health care provider against whom a
liability claim is asserted. The date for serving the report
may be extended by written agreement of the affected parties.
Each defendant physician or health care provider whose conduct
is implicated in a report must file and serve any objection to
the sufficiency of the report not later than the later of the
21st day after the date the report is served or the 21st day
after the date the defendant's answer is filed, failing which
all objections are waived.
(b) If, as to a defendant physician or health care
provider, an expert report has not been served within the period
specified by Subsection (a), the court, on the motion of the
affected physician or health care provider, shall, subject to
Subsection (c), enter an order that:
(1) awards to the affected physician or health care
provider reasonable attorney's fees and costs of court incurred
by the physician or health care provider; and
(2) dismisses the claim with respect to the physician
or health care provider, with prejudice to the refiling of the
claim.
(c) If an expert report has not been served within the
period specified by Subsection (a) because elements of the
report are found deficient, the court may grant one 30-day
extension to the claimant in order to cure the deficiency. If
the claimant does not receive notice of the court's ruling
granting the extension until after the 120-day deadline has
passed, then the 30-day extension shall run from the date the
plaintiff first received the notice.
[Subsections (d)-(h) reserved]
(i) Notwithstanding any other provision of this section, a
claimant may satisfy any requirement of this section for serving
an expert report by serving reports of separate experts
regarding different physicians or health care providers or
regarding different issues arising from the conduct of a
physician or health care provider, such as issues of liability
and causation. Nothing in this section shall be construed to
mean that a single expert must address all liability and
causation issues with respect to all physicians or health care
providers or with respect to both liability and causation issues
for a physician or health care provider.
(j) Nothing in this section shall be construed to require
the serving of an expert report regarding any issue other than
an issue relating to liability or causation.
(k) Subject to Subsection (t), an expert report served
under this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or
other proceeding; and
(3) shall not be referred to by any party during the
course of the action for any purpose.
(l) A court shall grant a motion challenging the adequacy
of an expert report only if it appears to the court, after
hearing, that the report does not represent an objective good
faith effort to comply with the definition of an expert report
in Subsection (r)(6).
[Subsections (m)-(q) reserved]
(r) In this section:
(1) "Affected parties" means the claimant and the
physician or health care provider who are directly affected by
an act or agreement required or permitted by this section and
does not include other parties to an action who are not directly
affected by that particular act or agreement.
(2) "Claim" means a health care liability claim.
[(3) reserved]
(4) "Defendant" means a physician or health care
provider against whom a health care liability claim is asserted.
The term includes a third-party defendant, cross-defendant, or
counterdefendant.
(5) "Expert" means:
(A) with respect to a person giving opinion
testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testify under
the requirements of Section 74.401;
(B) with respect to a person giving opinion
testimony regarding whether a health care provider departed from
accepted standards of health care, an expert qualified to
testify under the requirements of Section 74.402;
(C) with respect to a person giving opinion
testimony about the causal relationship between the injury,
harm, or damages claimed and the alleged departure from the
applicable standard of care in any health care liability claim,
a physician who is otherwise qualified to render opinions on
such causal relationship under the Texas Rules of Evidence;
(D) with respect to a person giving opinion
testimony about the causal relationship between the injury,
harm, or damages claimed and the alleged departure from the
applicable standard of care for a dentist, a dentist or
physician who is otherwise qualified to render opinions on such
causal relationship under the Texas Rules of Evidence; or
(E) with respect to a person giving opinion
testimony about the causal relationship between the injury,
harm, or damages claimed and the alleged departure from the
applicable standard of care for a podiatrist, a podiatrist or
physician who is otherwise qualified to render opinions on such
causal relationship under the Texas Rules of Evidence.
(6) "Expert report" means 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.
(s) Until a claimant has served the expert report and
curriculum vitae as required by Subsection (a), all discovery in
a health care liability claim is stayed except for the
acquisition by the claimant of information, including medical or
hospital records or other documents or tangible things, related
to the patient's health care through:
(1) written discovery as defined in Rule 192.7, Texas
Rules of Civil Procedure;
(2) depositions on written questions under Rule 200,
Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas
Rules of Civil Procedure.
(t) If an expert report is used by the claimant in the
course of the action for any purpose other than to meet the
service requirement of Subsection (a), the restrictions imposed
by Subsection (k) on use of the expert report by any party are
waived.
(u) Notwithstanding any other provision of this section,
after a claim is filed all claimants, collectively, may take not
more than two depositions before the expert report is served as
required by Subsection (a).
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 635 (H.B. 2645), Sec. 1, eff.
September 1, 2005.
Acts 2013, 83rd Leg., R.S., Ch. 870 (H.B. 658), Sec. 2,
eff. September 1, 2013.
Sec. 74.402. QUALIFICATIONS OF EXPERT WITNESS IN SUIT
AGAINST HEALTH CARE PROVIDER. (a) For purposes of this
section, "practicing health care" includes:
(1) training health care providers in the same field
as the defendant health care provider at an accredited
educational institution; or
(2) serving as a consulting health care provider and
being licensed, certified, or registered in the same field as
the defendant health care provider.
(b) In a suit involving a health care liability claim
against a health care provider, a person may qualify as an
expert witness on the issue of whether the health care provider
departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice
that involves the same type of care or treatment as that
delivered by the defendant health care provider, if the
defendant health care provider is an individual, at the time the
testimony is given or was practicing that type of health care at
the time the claim arose;
(2) has knowledge of accepted standards of care for
health care providers for the diagnosis, care, or treatment of
the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or
experience to offer an expert opinion regarding those accepted
standards of health care.
(c) In determining whether a witness is qualified on the
basis of training or experience, the court shall consider
whether, at the time the claim arose or at the time the
testimony is given, the witness:
(1) is certified by a licensing agency of one or more
states of the United States or a national professional
certifying agency, or has other substantial training or
experience, in the area of health care relevant to the claim;
and
(2) is actively practicing health care in rendering
health care services relevant to the claim.
(d) The court shall apply the criteria specified in
Subsections (a), (b), and (c) in determining whether an expert
is qualified to offer expert testimony on the issue of whether
the defendant health care provider departed from accepted
standards of health care but may depart from those criteria if,
under the circumstances, the court determines that there is good
reason to admit the expert's testimony. The court shall state
on the record the reason for admitting the testimony if the
court departs from the criteria.
(e) This section does not prevent a health care provider
who is a defendant, or an employee of the defendant health care
provider, from qualifying as an expert.
(f) A pretrial objection to the qualifications of a
witness under this section must be made not later than the later
of the 21st day after the date the objecting party receives a
copy of the witness's curriculum vitae or the 21st day after the
date of the witness's deposition. If circumstances arise after
the date on which the objection must be made that could not have
been reasonably anticipated by a party before that date and that
the party believes in good faith provide a basis for an
objection to a witness's qualifications, and if an objection was
not made previously, this subsection does not prevent the party
from making an objection as soon as practicable under the
circumstances. The court shall conduct a hearing to determine
whether the witness is qualified as soon as practicable after
the filing of an objection and, if possible, before trial. If
the objecting party is unable to object in time for the hearing
to be conducted before the trial, the hearing shall be conducted
outside the presence of the jury. This subsection does not
prevent a party from examining or cross-examining a witness at
trial about the witness's qualifications.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
Sec. 74.403. QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION
IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided by
Subsections (b) and (c), in a suit involving a health care
liability claim against a physician or health care provider, a
person may qualify as an expert witness on the issue of the
causal relationship between the alleged departure from accepted
standards of care and the injury, harm, or damages claimed only
if the person is a physician and is otherwise qualified to
render opinions on that causal relationship under the Texas
Rules of Evidence.
(b) In a suit involving a health care liability claim
against a dentist, a person may qualify as an expert witness on
the issue of the causal relationship between the alleged
departure from accepted standards of care and the injury, harm,
or damages claimed if the person is a dentist or physician and
is otherwise qualified to render opinions on that causal
relationship under the Texas Rules of Evidence.
(c) In a suit involving a health care liability claim
against a podiatrist, a person may qualify as an expert witness
on the issue of the causal relationship between the alleged
departure from accepted standards of care and the injury, harm,
or damages claimed if the person is a podiatrist or physician
and is otherwise qualified to render opinions on that causal
relationship under the Texas Rules of Evidence.
(d) A pretrial objection to the qualifications of a
witness under this section must be made not later than the later
of the 21st day after the date the objecting party receives a
copy of the witness's curriculum vitae or the 21st day after the
date of the witness's deposition. If circumstances arise after
the date on which the objection must be made that could not have
been reasonably anticipated by a party before that date and that
the party believes in good faith provide a basis for an
objection to a witness's qualifications, and if an objection was
not made previously, this subsection does not prevent the party
from making an objection as soon as practicable under the
circumstances. The court shall conduct a hearing to determine
whether the witness is qualified as soon as practicable after
the filing of an objection and, if possible, before trial. If
the objecting party is unable to object in time for the hearing
to be conducted before the trial, the hearing shall be conducted
outside the presence of the jury. This subsection does not
prevent a party from examining or cross-examining a witness at
trial about the witness's qualifications.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.