Garrison Nursing Home and Rehabilitation Center and Garrison Nursing Home, Inc. v. Legatha Demings

ACCEPTED
12-15-00189-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/16/2015 5:22:49 PM
Pam Estes
CLERK

CAUSE NO. 12-15-00189-CV ORAL ARGUMENT
REQUESTED
FILED IN
12th COURT OF APPEALS
IN THE TYLER, TEXAS
COURT OF APPEALS FOR THE 9/16/2015 5:22:49 PM
TWELFTH DISTRICT OF TEXAS SITTING IN TYLER, TEXAS
PAM ESTES
Clerk

GARRISON NURSING HOME AND REHABILITATION CENTER
AND GARRISON NURSING HOME, INC.,

APPELLANTS,
VS.

LEGATHA DEMINGS,

APPELLEE.

On Appeal from the 145th Judicial District Court
of Nacogdoches, Nacogdoches County, Texas

APPELLANTS GARRISON NURSING HOME AND REHABILITATION
CENTERAND GARRISON NURSING HOME, INC. BRIEF

KENT, ANDERSON, BUSH, FROST &
METCALF, P.C.
DAVID W. FROST
1121 E.S.E. LOOP 323, SUITE 200
TYLER, TEXAS 75701
(903) 579-7507
(903) 581-3701 (FAX)

ATTORNEYS FOR APPELLANTS
GARRISON NURSING HOME AND
REHABILITATION CENTER AND
GARRISON NURSING HOME, INC.
 IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s judgment or

order appealed from and the names and addresses of all trial and appellate counsel:

Plaintiffs/Appellee:
Legatha Demings
Trial Counsel and Appellate Counsel:
W. Stephen Shires
Law Office of Stephen Shires, PLLC
123 San Augustine Street
Center, Texas 75935
(936) 598-3052
(936) 598-3031 facsimile
stephen@shireslawfirm.com

Defendant/Appellant:
Garrison Nursing Home and Rehabilitation Center and Garrison Nursing
Home, Inc.
Trial Counsel and Appellate Counsel:
David W. Frost
Kent, Anderson, Bush, Frost & Metcalf, P.C.
1121 E.S.E. Loop 323, Suite 200
Tyler, Texas 75701
(903) 579-7500
(903) 581-3701 Facsimile
dfrost@tyler.net

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 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ISSUE PRESENTED (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. In an Alleged Medical Malpractice Case, the Plaintiff Must Provide
an Expert Report to the Defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. Dr. Miller is not qualified to address causal relationship between
alleged failure to administer Xarelto and an alleged stroke.. . . . . . . . . . 8

A. Qualification to express causation opinions.. . . . . . . . . . . . . . . . . . 8

B. The causal relationship between the alleged stroke and the alleged
failure to administer Xarelto is the very matter at issue. . . . . . . . 9

C. Appellee fails to establish that Dr. Miller is qualified to address
causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Dr. Miller provides no information regarding
Xeralto and his experience with Xeralto. . . . . . . . . . . . . . . 10

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IV. Keith E. Miller M.D.’s Report is conclusory regarding causation. . . . 13

A. An expert report that is conclusory fails to satisfy
the statutory requirements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Dr. Miller’s causation opinions are impermissibly conclusory. . 14

1. Opinions that alleged violations of administrative rules
caused stroke are conclusory.. . . . . . . . . . . . . . . . . . . . . . . . 14

2. Opinion that Alleged failure to administer Xarelto caused
stroke is conclusory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

a. Dr. Miller provides no more than a “bare assertion”
of causation, and he fails to link his
conclusions to the facts. . . . . . . . . . . . . . . . . . . . . . . . 18

b. The court cannot infer that, because Xarelto was
not given, Ms. Demings suffered a stroke. . . . . . . . . 20

V. Res Ipsa Loquitur does not excuse production of expert report. . . . . . . 22

PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

APPENDICES

Order Denying Defendant’s Objections to Plaintiff’s Supplemental
Expert Report and Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

Expert Report of Keith E. Miller, M.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B

Tex. Civ. Prac. & Rem. Code Ann. §74.351. . . . . . . . . . . . . . . . . . . . . . . . . . . . C

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 INDEX OF AUTHORITIES

CASES PAGE

Am. Transitional Care Ctrs. of Tex. v. Palacios,
46 S.W.3d 873 (Tex.2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 13, 14

Bogar v. Esparza,
257 S.W.3d 354 (Tex. App.–Austin 2008, no pet.). . . . . . . . . . . . . . . 22, 23

Bowie Mem'l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Broders v. Heise,
924 S.W.2d 148 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Castillo v. August,
248 S.W.3d 874 (Tex. App.–El Paso 2008, no pet.). . . . . . . . . . . . . . . . . . 8

Collini v. Pustejovsky,
280 S.W.3d 456 (Tex. App.–Fort Worth 2009, no pet.). . . . . 8, 11, 13, 20

Conboy v. Lindale Health Care, LLC,
2013 WL 4680516 (Tex. App.–Tyler August 29, 2013, no pet.). . . 14, 20

Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Earle v. Ratliff,
998 S.W.2d 882 (Tex.1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 19

Flores v. Fourth Court of Appeals,
777 S.W.2d 38 (Tex.1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Garcia v. Marichalar,
198 S.W.3d 250 (Tex. App.–San Antonio 2006, no pet.). . . . . . . . . . 22, 23

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Gingrich v. Scarborough,
2010 WL 1711067 (Tex. App.–Beaumont April 29, 2010, no pet.).. . . . 21

HEB Grocery Co. v. Galloway,
2014 WL 2152128 (Tex. App.–Beaumont May 22, 2014, no pet.)1.1, 12, 13

Ibrahim v. Gilbride, 2010 WL 5064430
(Tex. App.–Houston [14th Dist.] December 9, 2010, no pet.).. . . . . . 19, 20

Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 2

Shaw v. BMW Healthcare, Inc.,
100 S.W.3d 8 (Tex. App.-Tyler 2002, pet. denied). . . . . . . . . . . . . . . . . . . 5

Sherman v. HealthSouth Specialty Hosp. Inc.,
397 S.W.3d 869 (Tex. App.–Dallas 2013, pet. denied). . . . . . . . . . . . 22, 23

Thomas v. Alford,
230 S.W.3d 83 (Tex. App.–Houston [14th Dist.] 2008, no pet.). . . . . . . . . 8

STATUTES PAGE

TEX. CIV. PRAC. & REM. CODE §74.201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. CIV. PRAC. & REM. CODE §74.351.. . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24

TEX. CIV. PRAC. & REM. CODE §74.351 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. CIV. PRAC. & REM. CODE §74.351 (b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. CIV. PRAC. & REM. CODE §74.351 (r)(5)(C).. . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. CIV. PRAC. & REM. CODE §74.351 (r)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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 STATEMENT OF THE CASE

On August 21, 2014, Appellee filed an Original Petition alleging a health care

liability claim against Garrison Nursing Home and Rehabilitation Center and

Garrison Nursing Home, Inc. (collectively “Garrison”). (CR 5 ). On September 12,

2014, Garrison filed its Original Answer. (CR 19). On January 10, 2015, Appellee

filed an expert report and curriculum vitae from Pauline Kaper, R.N., (CR 25). On

January 29, 2015, Garrison filed its Objections to Expert Report and Motion to

Dismiss. (CR 33). On April 7, 2015, the trial court entered an Order Denying

Defendant’s Motion to Dismiss and Granting Plaintiff a 30 Day Extension to Cure a

Deficient Expert Report having found the report of Pauline Kaper, R.N. deficient.

(CR 49). After the Appellee produced a Supplemental Expert report from Keith E.

Miller, M.D. on May 5, 2015 (CR 50), Garrison filed its Objections to Plaintiff’s

Supplemental Expert Report and Motion to Dismiss on May 22, 2015. (CR 78).

Appellee filed the Response to Garrison’s motion on June 19, 2015. (CR 115). On

June 29, 2015, the trial court issued its Order Denying Defendant’s Objections to

Plaintiff’s Supplemental Expert Report and Second Motion to Dismiss. (CR 164).

On July 17, 2015, Garrison filed a notice of interlocutory appeal (CR 165).

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 ISSUE PRESENTED

(1) Whether the trial court abused its discretion in overruling Garrison’s
objections to Appellee’s supplement expert report from Dr. Keith E.
Miller for the failure to show he was qualified to provide opinions
regarding the element of causation and denying Garrison’s motion to
dismiss pursuant to section 74.351 of the Texas Civil Practice and
Remedies Code.

(2) Whether the trial court abused it’s discretion in overruling Garrison’s
objections to Appellee’s supplemental expert report from Dr. Keith E.
Miller for failure to adequately address the element of causation and
denying its motion to dismiss those claims pursuant to section 74.351 of the
Texas Civil Practice and Remedies Code.

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 CAUSE NO. 12-15-00189-CV ORAL ARGUMENT
REQUESTED

IN THE
COURT OF APPEALS FOR THE
TWELFTH DISTRICT OF TEXAS SITTING IN TYLER, TEXAS

GARRISON NURSING HOME AND REHABILITATION CENTER
AND GARRISON NURSING HOME, INC.,

APPELLANT,
VS.

LEGATHA DEMINGS,

APPELLEE.

On Appeal from the 145th Judicial District Court
of Nacogdoches, Nacogdoches County, Texas

APPELLANTS GARRISON NURSING HOME AND REHABILITATION
CENTERAND GARRISON NURSING HOME, INC. BRIEF

COMES NOW, GARRISON NURSING HOME AND

REHABILITATION CENTER AND GARRISON NURSING HOME, INC.,

Appellants in the above-entitled and numbered cause and files the following

Appellants’ brief asking the court of appeals to reverse the trial court’s ruling on its

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motion to dismiss and in support thereof would respectfully show the court the

following:

STATEMENT OF FACTS

This suit involves a health care liability claim related to alleged care and

treatment rendered to Legatha Demings by Appellants. The care and treatment at

issue occurred between May 25, 2012 and June 8, 2012. (CR 55) On June 8, 2012,

Appellee alleges that Ms. Demings suffered a cerebral vascular accident or stroke

(collectively “stroke”). (CR 55)

Legatha Demings was born April 28, 1945.1 Ms. Demings was diagnosed with

the condition atrial fibrillation in the Fall of 2010, for which Ms. Demings began

taking medication. (CR 64; RR page 5, lines 9-14) One of the risks related to atrial

fibrillation is stroke. (RR page 5, lines 13-14).

On May 22, 2012, Ms. Demings suffered a cerebral vascular accident (“CVA”)

for which she was hospitalized initially in Carthage, Texas, and subsequently at

Nacogdoches Medical Center in Nacogdoches, Texas. (CR 55) On May 25, 2012,

Ms. Demings was discharged from Nacogdoches Medical Center and transferred to

Garrison. (CR 55) One of the discharge medications ordered by Ms. Demings’

1
It is Appellant’s understanding that Ms. Demings passed away during the summer of 2015
during the pendency of this lawsuit.

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physician was Xarelto, a blood thinning medication. (CR 63)

On June 8, 2012, Ms. Demings was transferred from Garrison back to

Nacogdoches Medical Center for evaluation after exhibiting signs of confusion,

combativeness and inability to communicate. (CR 55) Appellee alleges that while at

Nacogdoches Medical Center Ms. Demings was diagnosed with a stroke. (CR 55)

Appellee alleges that Ms. Demings suffered the stroke due to Garrison’s alleged

failure to administer Xarelto to Ms. Demings. (CR 115) Ms. Demings was

hospitalized in Nacogdoches medical Center until June 20, 2012, when she was

transferred back to Garrison. (CR 55)

SUMMARY OF ARGUMENT

This is an appeal of the trial court’s review of an expert report. To comply with

Chapter 74 of the Texas Civil Practice and Remedies Code, the expert must make a

“good faith attempt” to inform the defendants what they did wrong and how that

caused damages to the plaintiffs. The expert is required under the case law to apply

his conclusions on causation to the underlying facts of the case. In this case, the

Appellee relies upon a report authored by Dr. Keith Miller in an effort to comply with

causation requirements of Chapter 74.

The trial court abused its discretion in denying Garrison’s Motion to Dismiss.

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First, Dr. Miller has failed to show that he is qualified to provide opinions regarding

the causal relationship between the alleged failure to administer Xarelto and the

stroke allegedly suffered by Ms. Demings.

Second, the trial court abused its discretion in denying Garrison’s motion to

dismiss based on grounds that Dr. Miller’s opinion regarding causation is

impermissibly conclusory because he fails to provide any explanation whatsoever

linking an alleged failure to provide the medication Xarelto to Ms. Demings to the

stroke allegedly suffered by Ms. Demings. Since the report fails to satisfy the legal

requirements of an expert report, the trial court clearly abused its discretion in

denying the motion to dismiss. This court should reverse and render.

ISSUE PRESENTED (RESTATED)

(1) Whether the trial court abused its discretion in overruling Garrison’s
objections to Appellee’s supplement expert report from Dr. Keith E.
Miller for the failure to show he was qualified to provide opinions
regarding the element of causation and denying Garrison’s motion to
dismiss pursuant to section 74.351 of the Texas Civil Practice and
Remedies Code.

(2) Whether the trial court abused it’s discretion in overruling Garrison’s
objections to Appellee’s supplemental expert report from Dr. Keith E.
Miller for failure to adequately address the element of causation and
denying its motion to dismiss those claims pursuant to section 74.351 of the
Texas Civil Practice and Remedies Code.

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 ARGUMENT AND AUTHORITIES

I. Standard of Review

The standard of review in this case is abuse of discretion. Am. Transitional

Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); Shaw v. BMW

Healthcare, Inc., 100 S.W.3d 8, 12 (Tex. App.-Tyler 2002, pet. denied). Under an

abuse of discretion standard, appellate courts defer to a trial court's factual

determinations, but review questions of law de novo. Shaw, 100 S.W.3d at 12. A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex.1985). When reviewing matters committed to the trial

court's discretion, a court of appeals may not substitute its own judgment for the trial

court's judgment. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989).

If a trial court fails to apply the law correctly to the case, the trial court has clearly

abused its discretion requiring correction by the court of appeals.

II. In an Alleged Medical Malpractice Case, the Appellees Must
Provide an Expert Report to the Defendant.

Chapter 74 of the Texas Civil Practice and Remedies Code states the following:

(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

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 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 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.

See TEX. CIV. PRAC. & REM. CODE art. §74.351 (a). The statute defines “expert

report” as:

(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.

Id. at §74.351 (r) (6).

Therefore, to satisfy the requirements of the statue, a plaintiff in an alleged

medical malpractice case must provide an expert report to the defendants. The report

must provide a fair summary of the expert’s opinions, must set out what the expert

alleges the defendant did wrong and how those actions allegedly caused injury to the

plaintiffs. In Wright, the Supreme Court of Texas stated, "[i]f a plaintiff timely files

an expert report and the defendant moves to dismiss because of the report's

inadequacy, the trial court must grant the motion only if it appears to the court, after

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hearing, that the report does not represent a good faith effort to comply with the

definition of an expert report in Subsection (r)(6) of this section.” Bowie Mem'l Hosp.

v. Wright, 79 S.W.3d 48, 51-52 (Tex.2002) (per curiam).

The Supreme Court of Texas has defined a "good-faith effort" as one that

provides information sufficient to (1) inform the defendant of the specific conduct the

plaintiff has called into question, and (2) provide a basis for the trial court to conclude

that the claims have merit. Id. at 52 (citing Palacios, 46 S.W.3d at 879). The trial

court’s review is limited to the four corners of the expert report, which need not

"marshal all the plaintiff's proof" but must include the expert's opinion on each of the

three main elements: standard of care, breach, and causation. Id.

If a report fails to comply with the requirements of chapter 74 of the Texas

Civil Practice and Remedies Code, the trial court is required to dismiss the case

because of the defendants failure to serve an adequate expert report. Tex. Civ. Prac.

& Rem. Code § 74.351 (b). The dismissal also carries mandatory sanctions, requiring

an award to the defendant of his costs and attorney's fees against the plaintiff or the

plaintiff's attorney. Id.; see Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 877 (Tex.2001).

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III. Dr. Miller is not Qualified to Address Causal Relationship between
alleged Failure to administer Xarelto and an alleged stroke

A. Qualification to express causation opinions

“A report authored by a person who is not qualified to testify cannot constitute

an expert report.” Castillo v. August, 248 S.W.3d 874, 879 (Tex. App.–El Paso 2008,

no pet). A physician is qualified to submit an expert report on the causal relationship

between a departure from a standard of care and an injury when he would otherwise

be qualified to address causation under rule 702 of the Texas Rules of Evidence. Tex.

Civ. Prac. & Rem. Code §74.351 (r)(5)(C). To be so qualified, “an expert must have

knowledge, skill, experience, training, or education regarding the specific issue

before the court that would qualify the expert to give an opinion on that particular

subject.” Thomas v. Alford, 230 S.W.3d 83, 857 (Tex. App.–Houston [14th Dist.]

2007, no pet.). The party offering a witness as an expert on causation must establish

that the witness is qualified under rule 702. Collini v. Pustejovsky, 280 S.W.3d 456,

466 (Tex. App.– Fort Worth 2009, no pet.). Further, not every licensed doctor is

automatically qualified to testify as an expert on every medical question. Broders v.

Heise, 924 S.W.2d 148, 152 (Tex. 1996). In deciding whether an expert is qualified,

the trial court “must ensure that those who purport to be experts truly have expertise

concerning the actual subject about which they are offering an opinion.” Id. at 151.

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Therefore, the focus is on the very matter on which the expert is to give an opinion.

Id.

B. The causal relationship between the alleged stroke and the alleged
failure to administer Xarelto is the very matter at issue

The Appellee alleges that Ms. Demings suffered a stroke as a result of Garrison

allegedly failing to administer Xarelto. While not very explicit in his report, it

appears that Dr. Miller is of the opinion that Plaintiff suffered a stroke because

Defendant allegedly did not administer to her the medication Xarelto from May 25,

2012 through June 8, 2012. So, the actual subject upon which Dr. Miller is offering

an opinion is the relationship between an alleged stroke and the alleged failure to

administer the medication Xarelto.

C. Appellee fails to establish that Dr. Miller is qualified to address
causation

Given that Dr. Miller is attempting to offer opinions on the causal connection

between the alleged failure to administer Xarelto to Ms. Demings and her alleged

stroke, it is Appellee’s burden to establish that Dr. Miller truly has expertise as to

Xarelto, strokes, and the relationship between Xarelto and strokes. However, Dr.

Miller has failed to establish this expertise.

Dr. Miller indicates that he is a medical doctor licensed in Texas with 25 years

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experience practicing medicine in office settings, hospitals, nursing homes,

rehabilitation centers and emergency departments. (CR 52, 54) He indicates that he

is board certified in Family Medicine. (CR 54) He also indicates that he practices in

nursing homes similar to Garrison and that he has numerous patients similar to Ms.

Demings. (CR 52) Dr. Miller writes

I am familiar with the diagnosis and treatment of patients with cerebral
vascular accidents (strokes), hypertension, related illnesses and their
complications, along with any other conditions experienced by Ms.
Legatha Demings.

(CR 53)

As set forth below, Dr. Miller does not establish that he is qualified to render

an opinion regarding the causal relationship between a stroke and Xarelto.

1. Dr. Miller provides no information regarding Xarelto and his
experience with Xarelto

Dr. Miller fails to provide any information in his report regarding his

familiarity with the drug Xarelto; whether he has ever prescribed Xarelto; or whether

he has ever seen a patient suffer a stroke because of the failure to administer Xarelto.

In fact, he does not even describe how Xarelto works or its purpose. The lack of such

information regarding a physician’s experience and familiarity with the medication

at issue has led several appellate courts to find an expert unqualified to provide

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causation opinions related to other medications.

In Collini v. Pustejovsky, the Fort Worth Court of Appeals addressed the

qualifications of an expert to express causation opinions regarding negligent

administration of a medication. 280 S.W.3d 456, 465 (Tex. App.– Fort Worth 2009,

no pet.). In Collini, the plaintiff alleged the defendant had negligently prescribed the

drug Reglan, which caused her to suffer tardive dyskinesia. Id. at 460. In finding the

plaintiff’s chapter 74 expert unqualified to opine on causation, the Collini court wrote

that the expert does

not indicate that he has any specific knowledge, experience, education,
or training in assessing the causal relationship between the prolonged
use of Reglan and tardive dyskenesia. In fact, his report does not state
that he has any experience or training regarding Reglan or tardive
dyskinesia at all; rather, it only generally states that he has knowledge
applicable to ‘primary care and family medicine.’

Id. at 465-66.

In HEB Grocery Co. v. Galloway, 2014 WL 2152128 (Tex. App.–Beaumont

2014, no pet.), the plaintiff sued the defendant pharmacy for allegedly mixing the

wrong medication (an anti-fungal medication, Ketoconaxole) with her blood pressure

medication, Coreg. Id. at *1. The plaintiff alleged that the mis-filled prescription led

to her suffering uncontrolled blood pressure, neurologic symptoms and pain. Id. The

defendant challenged the qualifications of plaintiff’s expert, Jerry Keepers, M.D. Id.

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The trial court denied the challenge and motion to dismiss. Id. On appeal, the

Beaumont Court of Appeals found that Dr. Keepers was not qualified to opine that

the alleged mistake in the filling of the prescription caused the condition in question.

Id. at *6. The court noted that Dr. Keepers’ report and CV lacked the specific detail

necessary to establish he was qualified to render causation opinions. In relevant part,

the Galloway court noted that Dr. Keepers’ report failed to state

that he has treated patients with high blood pressure or similar
conditions; that he has prescribed blood pressure medication to patients
or that he has actually prescribed Coreg; that he is familiar with what
happens generally to patients who fail to take their blood pressure
medications; that he has treated patients with, or read peer-reviewed
articles about, and has personal knowledge or experience or training
regarding, the side effects and symptoms of failing to take Coreg as
prescribed; or that he is familiar with the pharmacology of Coreg and
Ketoconaxole.

In the present case, the very matter about which Dr. Miller is attempting to

provide opinions is the alleged failure to administer Xarelto causing Ms. Demings to

allegedly suffer a stroke. Yet, Dr. Miller provides no information regarding his

experience or training with Xarelto. He does not indicate that he has ever prescribed

Xarelto; he does not set forth that he is familiar with what happens to patients who

do not take Xarelto; and he does not identify any peer-reviewed articles regarding the

side effects and symptoms of failing to take Xarelto. This is the very type of

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information that was missing from the expert reports in the Collini and Galloway

cases.

Dr. Miller provides no information as to his specific knowledge, experience,

education, or training in assessing the causal relationship between the alleged failure

to administer Xarelto and a stroke. Dr. Miller fails to provide any information to

show that he is qualified to provide opinions on the topic at issue. Therefore, Dr.

Miller’s report is deficient with regard to showing he is qualified to provide opinions

on the causal relationship between the alleged departures from the standard of care

and any injury or damage alleged by Appellee.

Because Dr. Miller is not qualified to provide the causation opinions in this

case, Garrison filed a motion to dismiss. The trial court clearly abused its discretion

in denying the motion to dismiss.

IV. Keith E. Miller, M.D.’s Report is Conclusory Regarding Causation

A. An Expert Report That is Conclusory Fails to Satisfy
the Statutory Requirements

The Supreme Court of Texas has held that the expert “report cannot merely

state the expert's conclusions about [the elements required in an expert report],” but

“‘the expert must explain the basis of his statements to link his conclusions to the

facts.’” Palacios, 46 S.W.3d at 877 (Tex.2001) (quoting Earle v. Ratliff, 998 S.W.2d

- 13 -
882, 890 (Tex.1999)). “A report that merely states the expert's conclusions about the

standard of care, breach, and causation" does not fulfill the two purposes of a

good-faith effort.” Palacios, 46 S.W.3d at 879.

This court has written that

[a] causal relationship is established by proof that the negligent act or
omission was a substantial factor in bringing about the harm and that
absent this act or omission, the harm would not have occurred. Merely
providing some insight into the plaintiff's claims does not adequately
address causation. Accordingly, causation cannot be inferred; it must be
clearly stated. The court may not fill in gaps in a report by drawing
inferences or guessing what the expert meant or intended.

Conboy v. Lindale Health Care, LLC, 2013 WL 4680516, *2 (Tex. App.–Tyler 2013,

August 29, 2013, no pet.) Further, statements concerning causation cannot be

inferred, speculative, or conclusory. Id. at *4.

B. Dr. Miller’s Causation Opinions are impermissibly conclusory

Dr. Miller’s report addresses causation in a conclusory fashion and is therefore

insufficient. He merely asserts that violations of the standard of care caused Ms.

Demings to suffer a stroke without providing any medical detail at all on how any

alleged violations of the standard of care caused the alleged stroke.

1. Opinions that alleged violations of administrative rules caused
stroke are conclusory

In his report, Dr. Miller sets forth a dizzying array of administrative rules

- 14 -
which he believes Garrison violated in its care and treatment of Ms. Demings. (CR

59-62) He then, in conclusory fashion, writes that

[t]he failure to comply with these standards caused, within a reasonable
degree of medical and nursing, probability and certainty, Ms. Demings
to suffer a stroke, extensive hospitalization, rehabilitation, and related
complications, . . . .

(CR 65)

Dr. Miller’s causation opinion provides absolutely no link between these

alleged violations and the stroke which Plaintiff alleges she suffered. For example,

Dr. Miller alleges that Garrison violated

2. TAC Chapter 217 Rule 217.11 Standards of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered
nurses and registered nurses with advanced practice authorization shall
(B) implement measures to promote a safe environment for clients and
others.

(CR 60) Dr. Miller simply writes that the violation of this Rule caused Ms. Demings

to suffer a stroke. He provides no information at all on the connection of how failing

to “implement measures to promote a safe environment for clients and others” was

a substantial factor in causing Ms. Demings to suffer a stroke. This example is

applicable to all 20 administrative rules which Dr. Miller alleges were violated.

- 15 -
 2. Opinion that Alleged failure to administer Xarelto caused stroke is
conclusory

Appellee has alleged that Ms. Demings suffered a stroke because of the failure

to administer Xarelto. Dr. Miller never explicitly states this opinion in his report.

However, to the extent Dr. Miller is attempting to provide the opinion that Ms.

Demings suffered a stroke because Garrison allegedly did not administer Xarelto to

Ms. Demings, this opinion is impermissibly conclusory because Dr. Miller fails to

provide any explanation whatsoever on how an alleged failure to provide the

medication Xarelto caused Ms. Demings to suffer a stroke.

In Jelinek v. Casas, the Texas Supreme Court addressed conclusory reports.

328 S.W.3d 526 (Tex. 2010). In Jelinek, the patient was admitted to the hospital with

abdominal pain for which she was placed on antibiotics to treat and prevent intra-

abdominal infections. Id. at 529. Following an intra-abdominal surgery, the hospital

inadvertently failed to renew the antibiotics prescriptions resulting in a four-and-a-

half day period during which the patient did not receive the antibiotics. Id. at 530.

The plaintiff filed suit against the hospital and the patient’s treating physicians.

The plaintiff produced an expert report alleging that the patient’s physicians

were negligent in failing to discovery that the antibiotics were not being administered

and “in ‘reasonable medical probability, resulted in a prolonged hospital course and

- 16 -
increased pain and suffering experienced by Ms. Casas.’” Id. at 539. Defendant Dr.

Jelinek challenged the expert report and sought a dismissal, but his challenge was

overruled by the trial court and affirmed by the appellate court. Id. at 531. On appeal

to the Texas Supreme Court, Dr. Jelinek argued that the report was deficient because

it failed to state the applicable standard of care and because it only provided

conclusory statements of causation. Id. at 538-39.

The Supreme Court reviewed the report and agreed with Dr. Jelinek with

regard to causation. Id. The Jelinek Court wrote:

An expert cannot simply opine that the breach caused the injury. Stated
so briefly, the report fails the second Palacios element — it does not
give the trial court any reasonable basis for concluding that the lawsuit
has merit. An expert’s conclusion that “in medical probability” one
event caused another differs little, without an explanation tying the
conclusion to the facts, from an ipse dixit, which we have consistently
criticized. . . . Instead, the expert must go further and explain, to a
reasonable degree, how and why the breach caused the injury based on
the facts presented.

Id. at 539 (citations omitted). The court went on to write that the plaintiff’s expert

report offered

no more than a bare assertion that Dr. Jelinek’s breach resulted in
increased pain and suffering and a prolonged hospital stay. Beyond that
statement, the report offers no explanation of how the breach caused the
injury.

Id. at 540 (emphasis added). The Jelinek Court held the report insufficient because

- 17 -
the report “lacked any explanation linking the experts conclusion to the relevant

facts.” Id.

Therefore, a report that is conclusory and fails to link the expert’s opinions on

causation to the facts of the case is not a “good faith attempt” and the trial court is

required to sustain objections to such a report.

a. Dr. Miller provides no more than a “bare assertion” of causation,
and he fails to link his conclusions to the facts

In the present case, Dr. Miller’s report is very similar to the report in Jelinek.

Dr. Miller provides nothing more than the “bare assertion” that failing to meet the

standards of care

within a reasonable degree of medical and nursing, probability and
certainty, Ms. Demings to suffer a stroke, extensive hospitalization,
rehabilitation, and related complications, . . .

(CR 14) This is the very ipse dixit the Jelinek Court held was not permissible. Dr.

Miller is simply stating one event (alleged failure to give Xarelto) caused another

(alleged stroke) “without an explanation tying the conclusion to the facts.” Jelinek,

328 S.W.3d at 539.

Assuming for argument that Ms. Demings did suffer a stroke on June 8, 2012,

Dr. Miller provides no explanation as to how the administration of the Xarelto

between May 25 and June 8, 2012, would have prevented Ms. Demings’ stroke. Dr.

- 18 -
Miller fails to explain how Xarelto works, the efficacy of Xarelto, his experience with

Xarelto, or studies about the effectiveness of Xarelto in preventing strokes, or specific

types of strokes. He basically asks the court to believe and agree that Xarelto

prevents all strokes. Dr. Miller has not explained the basis of his statements in order

to link his conclusions to the facts. See Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.

1999). He simply opines that Xarelto was not administered and, therefore, Ms.

Demings had a stroke. This does not meet the expert requirements for causation.

The issues in this case are also similar to Ibrahim v. Gilbride, 2010 WL

5064430 (Tex. App.–Houston [14th Dist.], December 9, 2010, no pet.). In Ibrahim,

the plaintiff alleged that the defendant had failed to prescribe anti-seizure medications

and as a result, the plaintiff suffered a grand mal seizure, struck her head during the

seizure causing brain hemorrhages and other sustained injuries. Id. at *1. The

plaintiff produced an expert report which the defendant challenged as insufficient.

With regard to causation, the plaintiff’s expert opined that as a direct and proximate

result of the defendant failing to prescribe appropriate anti-seizure medications, the

plaintiff suffered a grand mal seizure and resulting brain injuries. Id. at *10. In

finding the report deficient on causation, the Ibrahim court wrote the following:

Dr. Smith fails to identify the seizure disorder suffered by Mrs. Gilbride
and its pathology and thus show that medication was a necessary and

- 19 -
 potentially effective treatment . . . . Therefore, although “anti-seizure
medications” are indubitably intended to prevent seizures. Dr. Smith
does not sufficiently inform Dr. Ibrahim and the trial court why such
medication would necessarily have prevented Mrs. Gilbride’s seizure.

Id. at *11. Similarly, in the present case, Dr. Miller has not identified anything

regarding the nature of the alleged stroke which Ms. Demings suffered, or show how

the medication Xarelto was necessary and potentially effective treatment. While he

identifies Xarelto as a blood thinning medication, Dr. Miller does not provide any

information as to why the Xarelto would necessarily have prevented Ms. Demings’

alleged stroke.2 He fails to identify any specifics about the stroke that Ms. Demings

allegedly suffered which would have allegedly been prevented by Xarelto.

b. The court cannot infer that, because Xarelto was not given, Ms.
Demings suffered a stroke

A court cannot infer causation. Conboy, 2013 WL 4680516 at *2. Dr. Miller

is attempting to have the court infer that had Xarelto been given to Ms. Demings, she

would not have suffered a stroke. This is not permitted.

In Collini, the court addressed causation inferences. The defendant doctor had

challenged the causation opinion of the plaintiff’s expert that prolonged use of the

medication Reglan had caused tardive dyskinesia. 280 S.W.3d at 467. The Collini

2
Appellee’s first expert Pauline Kaper, R.N. acknowledges that Ms. Demings suffered a
transient ischemic attack (“TIA”) while on Xarelto on March 3, 2014. (CR 45)

- 20 -
court agreed with the defendant doctor noting that the expert report did “not provide

any detail as to how Reglan caused [the plaintiff’s] conditions, or, more importantly,

how Dr. Collini’s specific prescriptions of Reglan attributed to the harm.” The court

noted that while the manufacturer’s warning regarding prolonged use of Reglan and

other causation opinions by doctors “may create a reasonable inference” that Dr.

Collini’s prolonged prescription of Reglan caused the plaintiff’s condition, the court

wrote that it was “not permitted to rely on that inference in reviewing [the

expert’s] report.” Id. (emphasis added); see also Gingrich v. Scarborough, 2010

WL 1711067, *2-3 (Tex. App.–Beaumont April 29, 2010, no pet.) (Report was

insufficient on causation where it stated that the cause of death was combined drug

toxicity and pulmonary edema, but it failed to explain why combined drug toxicity

occurred, how the combined drug toxicity related to pulmonary edema, or why it was

fatal.)

In his report, Dr. Miller is asking the court to infer that failing to give Xarelto

caused Ms. Deming to suffer a stroke. He has provided no specifics about Ms.

Demings situation to show she suffered a stroke because Xarelto was not

administered. Dr. Miller is essentially asking the court infer that all stokes are

prevented by Xarelto. Causation cannot be inferred, and, therefore, Dr. Miller’s

- 21 -
report is insufficient as to causation.

In the present case, Dr. Miller has simply opined that an alleged breach caused

an injury, instead of explaining how and why the alleged breach caused the specific

injuries and damages claimed. Jelinek, 328 S.W.3d at 539. Accordingly, Dr. Miller’s

report is inadequate and conclusory, and the trial court abused its discretion in

denying Garrison’s motion to dismiss.

V. Res Ipsa Loquitur does not excuse production of expert report

Based upon Appellee’s arguments at the hearing on Appellant’s motion to

dismiss, it is anticipated that Appellee will argue that the doctrine of res ipsa loquitur

applies to this case, therefore, excusing Appellee from the expert report requirements

set forth in section 74.351. However, appellate decisions on this issue are quite clear

in that even if res ipsa loquitur were to be applicable as an evidentiary rule at time

of trial, it does not excuse the procedural requirement of providing an expert report

pursuant to section 74.351. See Sherman v. HealthSouth Specialty Hosp. Inc., 397

S.W.3d 869, 875-876 (Tex. App.–Dallas 2013, pet. denied); Bogar v. Esparza, 257

S.W.3d 354, 369 (Tex. App.–Austin 2008, no pet.); Garcia v. Marichalar, 198

S.W.3d 250 (Tex. App.–San Antonio 2006, no pet.).

Res ipsa loquitur is an evidentiary rule by which negligence may be inferred

- 22 -
by a jury, it is not a cause of action separate and apart from negligence. Garcia, 198

S.W.3d at 255. It applies in situations in which (1) the character of the accident is

such that it would not ordinarily occur in the absence of negligence, and (2) the

instrumentality causing the injury is shown to have been under the management and

control of the defendant. Id. Further, it applies only when “the nature of the alleged

malpractice and injuries are plainly within the common knowledge of laymen,

requiring no expert testimony.” Sherman, 397 S.W.3d at 875.3

“In contrast, section 74.351's expert requirement establishes a threshold over

which claimant must proceed to continue in a lawsuit; it does not establish a

requirement for recovery.” Id. Res ipsa loquitur does not eliminate the procedural

requirement of an expert report at the commencement of litigation. See Sherman v.

HealthSouth Specialty Hosp. Inc., 397 S.W.3d 869, 875-876 (Tex. App.–Dallas 2013,

pet. denied); Bogar v. Esparza, 257 S.W.3d 354, 369 (Tex. App.–2008, no pet.);

Garcia v. Marichalar, 198 S.W.3d 250 (Tex. App.–San Antonio 2006, no pet.).

Whether res ipsa loquitur is applicable to this case or not at time of trial is

3
The legislature has limited the applicability of res ipsa loquitur in health care claims only
to those cases in which the doctrine had been applied by Texas appellate courts as of August 29,
1977. See Tex. Civ. Prac. & Rem. Code Ann. §74.201. These categories have been limited to (1)
negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and
(3) leaving surgical instruments or sponges within the body. Sherman, 397 S.W.3d at 875; Garcia,
198 S.W.3d at 256. In the present case, none of these categories apply, so even at any evidentiary
stage of this case, the doctrine of res ipsa loquitur does not apply.

- 23 -
irrelevant to the issue of the sufficiency of Appellee’s expert report from Dr. Miller.

Appellee’s were required to produce a sufficient expert report and res ipsa loquitur

does not excuse section 74.351's expert report requirements.

Since Dr. Miller's report is inadequate and conclusory, Garrison filed a motion

to dismiss. The trial court denied the motion. The trial court clearly abused its

discretion in doing so and this court should reverse and render dismissal of the case.

PRAYER

WHEREFORE, PREMISES CONSIDERED, GARRISON NURSING

HOME AND REHABILITATION CENTER AND GARRISON NURSING HOME,

INC., Appellants in the above referenced appeal, asks the court of appeals to reverse

the trial court’s denial of Appellant’s motion to dismiss and render the judgment in

favor of Appellants dismissing the Appellees case against it and for such other and

further relief either at law or in equity to which Appellants may show just entitlement.

- 24 -
 Respectfully submitted,

KENT, ANDERSON, BUSH,
FROST & METCALF, P.C.
Woodgate I
1121 E.S.E. Loop 323, Suite 200
Tyler, Texas 75701
(903) 581-5588
(903) 581-3701 (Fax)

By: /s/ David W. Frost
David W. Frost
State Bar No. 24002111
dfrost@tyler.net

ATTORNEYS FOR APPELLANT

- 25 -
 CERTIFICATE OF COMPLIANCE

The undersigned certifies this brief complies with the typed-volume limitations
of Texas Rule of Appellate Procedure 9. This brief contains 6,696 words and has
been prepared in proportionately spaced typeface using Word Perfect X6 in 14 point
Times New Roman font.

Dated: September 16, 2015

/s/ David W. Frost

David W. Frost

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was electronically transmitted to

the following counsel on this 16th day of September, 2015.

Mr. W. Stephen Shires
Law Office of Stephen Shires, PLLC
123 San Augustine Street
Center, Texas 75935
(936) 598-3031 - FAX

/s/ David W. Frost
David W. Frost

- 26 -
APPENDICES

Order Denying Defendant’s Objections to Plaintiff’s Supplemental
Expert Report and Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

Expert Report of Keith E. Miller, M.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B

Tex. Civ. Prac. & Rem. Code Ann. §74.351. . . . . . . . . . . . . . . . . . . . . . . . . . . . C
 APPENDIX ''A''

Order Denying Defendants'
Objections to Plaintiffs
Supplemental Expert Report
and Motion to Dismiss
 F~D
~: -P--M.
JUN 2 9 2015
NO. C-14-30319
DISTRICT CLERK
LEGATHA DEMINGS § IN THE DISTRICT C()UifrjJOCHES COUNTY, TX
Plaintiff, §
§
v. § 145 1h JUDICIAL DISTRICT
§
GARRISON NURSING HOME AND §
REHABILITATION CENTER AND §
GARRISON NURSING HOME, INC. §
Defendants. § OFNACOGDOCHESCOUNTY,TEXAS

ORDER DENYING DEFENDANTS' OB.JECTION TO PLAINTIFF'S
SUPPLEMENTAL EXPERT REPORT AND SECOND MOTION TO DISMISS

On June 22, 2015, came before the Court Defendants' Objection to Plaintiffs

Supplemental Expert Report and Motion lo Dismiss (hereinafter the "Motion"). Having

considered the Motion, Plaintiff's Response to same, the pleadings, the evidence, and the

arguments of counsel, the Court hereby finds that the Motion should be, and is in all things,

DENIED.

DISTRICT JUDGE PRESIDING

164
 APPENDIX ''B''

Expert Report of Keith E.
Miller, M .D.
 May 4, 2015

Mr. W. Stephen Shires, Attorney at Law
The Law Offices of Stephen Shires, P.L.l.C.
123 San Augustine Street
Center, Texas 75935

Re: Ms. Legatha Demings

Dear Mr. Shires:

Thank you for allowing me to review this case on behalf of Ms. Legatha
Demings. My opinions in this report are based on the information I have
reviewed to date and my education, training, and direct experience in the
diagnosis and treatment of patients with conditions similar to those of Ms.
Legatha Demings as described in the materials I have reviewed and discussed in
this report. Each opinion is based on reasonable medical and nursing,
probability and certainty.

BACKGROUND
My name is Keith E. Miller, M.D., and I give this report for the purpose of
complying with any applicable provisions or codes. As my attached curriculum
vitae demonstrates and which is incorporated into this report by reference, I am a
Medical Doctor currently licensed to practice in the State of Texas and formerly
licensed in the States of Louisiana and Arkansas. I currently practice in nursing
homes similar to Garrison Nursing Home and Rehabilitation Center in Garrison,
Texas. I have had numerous patients similar to Ms. Legatha Demings. I am
board-certified in Family Medicine and I have been in practice for more than 25
years. By virtue of my education, training, and direct experience, I am qualified
to render opinions regarding the standards of care as they apply to this particular
case.
 I am over the age of 18, of sound mind, and capable of preparing this
expert medical report. My opinions in this report are based on the information I
have reviewed to date, as well as my education, training, knowledge, and direct
experience in the diagnosis and treatment of patients with conditions similar to
those of Ms. Legatha Demings, as described in the materials I have reviewed
and discussed in this report. My opinions are based on reasonable medical and
nursing, probability and certainty. My opinions concern the care and treatment
received by Ms. Legatha Demings, or lack thereof, in regard to the applicable
standards of care and the manner, ir'l which the care rendered to Ms. Legatha
Demings by the healthcare facility in this case, fell below the standards of care
and caused the illnesses of Ms. Legatha Demings.

It is impossible in an expert medical report to marshal all of the proof
regarding the standard of care, breach, and causation and include it within my
expert opinions in this case. My report represents a good faith effort to inform
the health-care facility of the specific conduct that I am calling into question and
to provide a basis for anyone to conclude that the claims in this matter have
merit. Obviously, any defendant in a medical malpractice case has medical
knowledge of medical terms which, when read in context with my opinions, will
be clear to any competent healthcare facility.

This report will provide a summary of my opinions, as of this date,
regarding: 1) the applicable standards of care at issue in this case; 2) how the
applicable standards of care were violated and breached; 3) how the violations
and breaches of the applicable standards of care resulted in the illnesses of Ms.
Legatha Demings; and 4) what the health-care facility in this case should have
done differently to prevent the illnesses of Ms. Demings. I reserve the right to
amend, or add to, my opinions upon review of new records, testimony, or facts,
as they become available, or upon further review of existing materials.

MY EXPERTISE

I am a medical doctor currently licensed to practice in the State of Texas
and formerly licensed in the States of Louisiana and Arkansas. I have been a
licensed medical doctor since 1985, have been practicing medicine continuously
since then, including during the time of this claim, and as part of my practice,
have been, and am currently, involved in the diagnosis, care, and treatment of
many patients similar to Ms. Legatha Demings. I am familiar with the diagnosis
and treatment of patients with cerebral vascular accidents (strokes),
hypertension, related illnesses and their complications, along with any other
conditions experienced by Ms. Legatha Demings. I am familiar with the
standards of care applicable to physicians, nurses, hospitals, nursing homes,
rehabilitation centers and their staffs that treat patients such as Ms. Demings.
Report of Keith E. Miller, M.D. Page2

131
My training is similar to the training of the physician, healthcare providers,
nurses, and facility staff in this case.

After graduating from medical school in 1985 at the University of
Arkansas, I received additional training and experience in a family practice
residency program which t successfully completed in 1988. I have over 25 years'
experience practicing medicine in office settings, hospitals, nursing homes,
rehabilitation centers and emergency departme.nts. I am board-certified in
Family Medicine by the American Board of Family Medicine, and have been in
practice for more than 25 years. By virtue of my education, training, knowledge
and direct experience, I am qualified to render opinions regarding the standards
of care as they apply to this particular case, including the standards of care
applicable to physicians, nurses, hospitals, nursing homes, rehabilitation centers
and their staffs treating patients for strokes, hypertension, related illnesses and
their complications, along with any other conditions exhibited by Ms. Legatha
Demings, because I have treated many patients with these conditions.

A COPY OF MY CV IS ATT ACHED

My attached curriculum vitae is incorporated herein as part of my report.
\
MATERIALS REVIEWED

The specific records and documents concerning Ms. Legatha Demings
which I have reviewed include the following:

1) Medical Records of Ms. Legatha Demings from Nacogdoches
Medical Center in Nacogdoches, Texas;
2) Garrison Nursing Home and Rehabilitation Center in Garrison,
Texas;
3) Plaintiff's Original Petition; and
4) Expert Nursing Report of Pauline Kaper, RN.

SIGNIFICANT FACTS

Ms. Legatha Demings is an adult female whose date of birth is April 28,
1945. In May 2012, Ms. Demings was 67 years-old. She had a past medical
history of hypertension, atrial fibrillation, congestive heart failure, emphysema,
and a previous transient ischemic attack (TIA).

On May 22, 2012, Ms. Demings was living at home. She suddenly
developed slurred speech, weakness in her extremities, and she fell out of bed.
She was taken to a hospital in Carthage, Texas, and then subsequently
A~--•'W '

Report of Keith E. Miller, M.D. Page3

132
transferrecj to Nacogdoches Medical Center in Nacogdoches, Texas for further
evaluation and treatment.

In the hospital, Ms. Demings was diagnosed as having had a
cerebrovascular accident (CVA) or stroke. Ms. Demings was discharged from
the hospital on May 25, 2012. In his discharge summary, Ms. Demings'
physician documented that this patient's stroke was of " ... ischemic origin, most
likely caused by her atrial fibrillation."

In order to treat Ms. Demings' condition and prevent further strokes, her
physician discharged her from the hospital on a blood-thinning medication,
Xarelto. This physician stated in his discharge summary that Ms. Demings would
be "... started (on) Xarelto for her anticoagulation to avoid further strokes ... "

On May 25, 2012, Ms. Demings was discharged from the hospital and
admitted to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas
for further recovery and rehabilitation. According to Ms. Demings' physician, this
resident had begun to make some improvement as evidenced by improvement in
her speech and increased movement of her left side.

After being in the care of Garrison Nursing Home and Rehabilitation
Center for less th~n two weeks, Ms. Demings became "confused, combative,
and unable to communicate". On June 8, 2012, she was taken by emergency
medical services back to Nacogdoches Medical Center for emergency
evaluation. There a computerized tomography (CT) scan of her head revealed
an ischemic infarction of her brain consistent with a stroke.

One of Ms. Demings' consulting physicians, a neurological specialist,
documented in the medical record that Ms. Demings had suffered a
"Cerebrovascular accident extension with newly developed global aphasia,
aphasia and left-sided flaccid paralysis".

Ms. Demings remained in the hospital for 12 days, and was discharged on
June 20, 2012. At the time of her discharge from the hospital, Ms. Demings'
physician noted in his discharge summary that this patient's overall medical
condition had deteriorated as a result of her stroke she suffered at Garrison
Nursing home and Rehabilitation Center, to the point that Ms. Demings was
made a do-not~resuscitate status such that if she experienced a cardiovascular
or respiratory failure, she would not be intubated or placed on a ventilator or
breathing machine.

A "Medication Error Report" made by the nursing staff of Garrison Nursing
Home and Rehabilitation Center on June 2012, documented that from the
Report of Keith E. Miller, M.D. Page4

133
time Ms. Demings was first admitted to this facility on May 25, 2012 until the time
of her stroke and transfer on June 8, 2012, Ms. Demings was not given her
blood-thinning medication, Xarelto as ordered by her physician. This medication
had been ordered to be given in a dose of 20 milligrams (mgs) at bedtime daily.

This same report stated that "res. (resident) arrived after 5:00 pm on a
Friday. This medication (Xarelto) was ordered along (with) all other meds from
nursing home pharmacy - nurse transcribing orders had to have all meds written
on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be
delivered that night".

The Medication Error Report went on to document that a nurse at this
nursing home "failed to transcribe this med (medication) to MAR (Medication
Administration Record)" ... "an oversight". A question on this same form asked
"Could the error have endangered the life or welfare of the patient?" The·
responsible nurse completing the form answered the question with "Makes her a
higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

On a subsequent hospitalization on August 5, 2012, in his pre-operative
history and physical, one of Ms. Demings' physicians documented what had
happened to her during her stay at Garrison Nursing Home and Rehabilitation
Center from May 25, 2012 through June 8, 2012. This physician stated that prior
to her first admission to this nursing home, Ms. Demings "was found in atrial
fibrillation. She was started (on) Xarelto. Apparently ... did not follow-through in
the nursing home, and she had ... strokes, disabling, with severe __ . She was
rendered substantially disabled."

This physician also documented in his discharge summary of this August
5, 2012 hospital stay, the importance of a patient such as Ms. Demings who
suffered with atrial fibrillation, to always remain on a blood-thinning medication
such as Xarelto. He stated that "She is to continue with Xarelto ... Instructions
were given to the family to make sure that this medication is never stopped."

.EAMILIARITY WITH THE STANDARD OF GAR~

At the time of the care and treatment of Ms. Legatha Demings by Garrison
Nursing Home and Rehabilitation Center in Garrison, Texas, from May 2012
through June 2012, I was familiar with the minimum medical standards of care
applicable to the assessment, diagnosis and treatment of patients with strokes,
hypertension, and related illnesses, as well as their complications and other
medical conditions similar to those experienced by Ms. Legatha Demings and
described in the referenced medical records. I am familiar with the medical and
nursing standards of care for the above referenced conditions applicable to
---~~_..,. ... ._ ... _ ............ ···•· ····•••4•••• .-..-.-.-. ••---.-..-..-.~····---- .,. .•• ., ..... "'"'"""""""""~·-·

Report of Keith E. Miller, M.D. Pages

134
Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The
minimum standards of care for treatment of patients with similar signs,
symptoms, and conditions as Ms. Legatha Demings that are the basis of this
report, are national standards of care and do not differ from community to
community.

From the time of the medical treatment of Ms. Legatha Demings from
May 2012 through June 2012, and through the present, I have had an active
clinical practice as a family practitioner in Center, Texas that includes providing
care to adult patients in nursing homes and rehabilitation centers, such as Ms.
Legatha Demings. During my career as a family practitioner, I have worked with
and or supervised medical office staff, hospital staff, nursing home staff, and
rehabilitation center staff, including medical technologists and nurses, in the care
of my patients. I have also participated in the development and use of protocols,
policies and procedures for the care of patients with strokes, hypertension, and
related illnesses 1 as well as their causes and complications, including adults
such as Ms. Legatha Demings. In addition, based on my education, training,
knowledge, and direct experience, I am familiar with the accepted and expected,
standards of care, as listed below, for nursing home and rehabilitation center
facilities, who take care of patients with conditions such as strokes, hypertension,
related illnesses, and their complications, and can offer opinions on the
standards of care, the breaches of the standards of care and the causation of
the injuries from these breaches.

In my medical practice, I routinely rely on medical records, nursing
records, lab reports, diagnostic tests and images, consulting physician reports
and other patient data. I consider materials of this type to be generally reliable,
unless evidenced otherwise, and they are the type of materials routinely relied
upon by physicians and clinical staff in providing care to patients.

CASE SPECIFIC EXPERTISE

At the time of the medical treatment of Ms. Legatha Demings, from May
2012 through June 2012, I was treating patients with symptoms similar to those
experienced by Ms. Demings. I am familiar with the accepted medical and
nursing standards of care applicable to the assessment, diagnosis, and
treatment of patients with strokes, hypertension, and related illnesses, as well as
any other medical conditions similar to those experienced by Ms. Legatha
Demings during that time as described in the referenced medical records. I am
familiar with the standards of care for physicians, nurses, and nursing home and
rehabilitation center staff treating patients such as Ms. Demings. I am familiar
with the medical and nursing standards of care for the above referenced medical
conditions, including strokes, hypertension, related illnesses, and their
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Report of Keith E. Miller, M.D. Page 9

138
registered nurses with advanced practice authorization shall: (F) Promote and
participate in education and counseling to a client(s) and, where applicable, the
family/significant other(s) based on health needs;

8. TAC Chapter 217 Rule §217.11 Standards of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (G) Obtain
instruction and supervision as necessary when implementing nursing procedures
or practices;

9. TAC Chapter 217 Rule §217.11 Standards of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (M) Institute
appropriate nursing interventions that might be required to stabilize a client's
condition and/or prevent complications;

10. TAC Chapter 217 Rule §217.11 Standards of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (T) Accept only
those nursing assignments that take into consideration client safety and that are
commensurate with the nurse's educational preparation, experience, knowledge,
and physical and emotional ability;

11. TAC Chapter 217 Rule §217.11 Standards of Nursing Practice (1)
Standards Applicable to All Nurses. All vocational nurses, registered nurses and
registered nurses with advanced practice authorization shall: (U) Supervise
nursing care provided by others for whom the nurse is professionally
responsible;

12. TAC Chapter 217 Rule §217.11 Standards of Nursing Practice (3)
Standards Specific to Registered Nurses. The registered nurse shall assist in
the determination of healthcare needs of clients and shall: (A) Utilize a
systematic approach to provide individualized, goal-directed, nursing care by: (i)
performing comprehensive nursing assessments regarding the health status of
the client; (ii) making nursing diagnoses that serve as the basis for the strategy
of care; (iii) developing a plan of care based on the assessment and nursing
diagnosis; (iv) implementing nursing care; and (v) evaluating the client's
responses to nursing interventions;

13. TAC Chapter 217 Rule §217.12 Unprofessional Cond·uct (1) Unsafe
Practice - actions or conduct including, but not limited to: (A) Carelessly failing,
repeatedly failing, or exhibiting an inability to perform vocational, registered, or
advanced practice nursing in conformity with the standards of minimum
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Report of Keith E. Miller, M.D. Page 10

139
acceptable level of nursing practice set out in Rule 217.11.

14. TAC Chapter 217 Rule §217.12 Unprofessional Conduct (1) Unsafe
Practice - actions or conduct including, but not limited to: (B) Carelessly or
repeatedly failing to conform to generally accepted nursing standards in
applicable practice settings;

15. TAC Chapter 217 Rule §217.12 Unprofessional Conduct (4) Careless or
repetitive conduct that may endanger a client's life, health, or safety. Actual
injury to a client need not be established.

16. 42 CFR 483.20, 483.25-The facility must conduct initially a comprehensive,
accurate assessment of each resident's functional capacity, a plan of care,
based on a resident assessment, which will be used to provide care and
services to attain the highest practical physical, mental, and psychosocial well-
being;

17. 42 CFR 483.15- A facility must care for its residents in a manner that
promotes quality of life and dignity;

18. 42 CFR 483.30- The facility must have sufficient nursing staff to provide
nursing and related services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, as determined by
resident assessments and individual plans of care;

19. 42 CFR 483.13, F 224- "Neglect" means failure to provide goods and
services necessary to avoid physical harm, mental anguish, or mental illness.

20. 42 CFR 483.20 (k) (3) (I) - The services provided or arranged by the facility
must meet professional standards of quality;

HQV\l THE STANDABDS QF C~Jil:: WERE BREA~HED AND CAUSED
INJURY.,. HARM, OR DAMAGES

Illnesses Caused by Failing to Properly Administer Medications

Ms. Legatha Demings is an adult female whose date of birth is April 28,
1945. In May 2012, Ms. Demings was 67 years-old. She had a past medical
history of hypertension, atrial fibrillation, congestive heart failure, emphysema,
and a previous transient ischemic attack (TIA).

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Report of Keith E. Miller, M.D. Page 11

140
 On May 22, 2012, Ms. Demings was living at home. She suddenly
developed slurred speech, weakness in her extremities, and she fell out of bed.
She was taken to a hospital in Carthage, Texas, and then subsequently
transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further
evaluation and treatment.

In the hospital, Ms. Demings was diagnosed as having had a
cerebrovascular accident (CVA) or stroke. Ms. Demings was discharged from
the hospital on May 25, 2012. In his discharge summary, Ms. Demings'
physician documented that this patient's stroke was of "... ischemic origin, most
likely caused by her atrial fibrillation."

In order to treat Ms. Demings' condition and prevent further strokes, her
physician discharged her from the hospital on a blood-thinning medication,
Xarelto. This physician stated in his discharge summary that Ms. Demings would
be "... started (on) Xarelto for her anticoagulation to avoid further strokes ... "

On May 25, 2012, Ms. Demings was discharged from the hospital and
admitted to Garrison Nursing Home and Rehabilitation Center.in Garrison, Texas
for further recovery and rehabilitation. According to Ms. Demings' physician, this
resident had begun to make some improvement as evidenced by improvement in
her speech and increased movement of her left side.

After being in the care of Garrison Nursing Home and Rehabilitation
Center for less than two weeks, Ms. Demings became "confused, combative,
and unable to communicate". On June 8, 2012, she was taken by emergency
medical services back to Nacogdoches Medical Center for emergency
evaluation. There a computerized tomography (CT) scan of her head revealed
an ischemic infarction of her brain consistent with a stroke.

One of Ms. Demings' consulting physicians, a neurological specialist,
documented in the medical record that Ms. Demings had suffered a
"Cerebrovascular accident extension with newly developed global aphasia,
aphasia and left-sided flaccid paralysis".

Ms. Demings remained in the hospital for 12 days, and was discharged
on June 20, 2012. At the time of her discharge from the hospital, Ms. Demings'
physician noted in his discharge summary that this patient's overall medical
condition had deteriorated as a result of her stroke she suffered at Garrison
Nursing home and Rehabilitation Center, to the point that Ms. Demings was
made a do-not-resuscitate status such that if she experienced a cardiovascular
or respiratory failure, she would not be intubated or placed on a venti.lator or
breathing machine .
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