ACCEPTED
03-14-00765-CV
4651725
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/26/2015 10:43:01 AM
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
3/26/2015 10:43:01 AM
JEFFREY D. KYLE
Clerk
NANCY JO RODRIGUEZ,
Appellant,
vs.
THE WALGREEN 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
APPELLANT’S REPLY BRIEF
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
TABLE OF CONTENTS
Index of Authorities .................................................................................................. 3
Summary of Reply Argument .................................................................................... 4
Argument in Reply ..................................................................................................... 6
I. DR. HARDY’S REPORT SETS FORTH A FAIR AND DETAILED
SUMMARY OF THE STANDARD OF CARE AND WALGREEN AND
MCGUIRE’S BREACH OF THE STANDARD OF CARE ........................................... 6
II. DR. HARDY IS QUALIFIED TO OPINE ON THE ISSUES IN THIS
CASE PURSUANT TO THE STATUTORY DEFINITION OF PRACTICING
MEDICINE ....................................................................................................... 10
III. DR. BREALL’S REPORT PROVIDES A CAUSAL LINK BETWEEN
NANCY RODRIGUEZ’S CONTINUED PRADAXA THERAPY AND HER
INJURIES ......................................................................................................... 12
Prayer ....................................................................................................................... 13
Certificate of Compliance ........................................................................................ 14
Certificate of Service ............................................................................................... 15
2
INDEX OF AUTHORITIES
Case Law
Abilene Regional Medical Center v. Allen, 387 S.W.3d 914, 918 (Tex.
App.—Eastland 2012, pet. denied) .......................................................................... 12
Am. Transitional Care Center of Texas v. Palacios, 46 S.W.3d 873, 875
(Tex. 2001) ............................................................................................................. 6, 7
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) ......................... 7, 10
Davisson v. Nicholson, 310 S.W.3d 543, 558 (Tex. App.—Fort Worth
2010, no pet.) .......................................................................................................... 12
Gannon v. Wyche, 321 S.W.3d 881, 897 (Tex. App.—Houston [14th Dist.]
2010, pet. denied) ....................................................................................................... 7
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) ........................................................................................... 7
In re Stacy K. Boone, 223 S.W.3d 398, 406 (Tex. App.—Amarillo
2006, orig. proceedings) ............................................................................................ 6
Mettauer v. Noble, 326 S.W.3d 685, 694 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) ........................................................................................... 7
Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.—Houston [1th Dist.]
2008, pet. denied) ..................................................................................................... 12
Statutes
TEX. CIV. PRAC. & REM. CODE § 74.351(a) ............................................................... 6
TEX. CIV. PRAC. & REM. CODE § 74.402(a) ............................................................. 11
TEX. CIV. PRAC. & REM. CODE § 74.402(b) ....................................................... 10-11
3
SUMMARY OF REPLY ARGUMENT
The expert reports of J. Chad Hardy, Pharm.D., M.S. and Jeffrey A. Breall,
M.D., when considered in the aggregate, satisfy Nancy Jo Rodriguez’s expert
report requirements under Chapter 74. The expert reports provide a fair summary
of the experts’ opinions on each required element of Rodriguez’s claim against The
Walgreen Company and Sara Elizabeth McGuire. As a result, the trial court abused
its discretion in granting Walgreens and McGuire’s Motion to Dismiss.
In their Brief, Walgreens and McGuire argue that Dr. Hardy’s opinion is
conclusory and speculative because it is allegedly contingent on their knowledge
that the drug Pradaxa had been discontinued by Nancy’s physicians. Appellees
then conclude that Dr. Hardy’s report is deficient because he fails to opine that
they actually knew Pradaxa should not be dispensed. In making this argument,
Appellees either misunderstand or misconstrue Dr. Hardy’s opinion, which is
based on Appellees’ failure to obtain verification from Nancy’s physician to
continue dispensing the drug. Dr. Hardy specifically faults Walgreens and
McGuire for failing to verify whether the prescription should be continued in the
first place – an omission, rather than for dispensing the medication despite
knowing that it should not be dispensed, a comission. Dr. Hardy opines that it was
the responsibility of Appellees to communicate with the physician to verify
4
whether the drug should be continued. It was this failure, combined with
Appellees’ decision to fill the prescription without verification, that fell below the
standard of care. In addition, despite Appellees’ contention to the contrary, Dr.
Hardy references both Walgreens and McGuire by name in describing the manner
in which they breached the standard of care.
Dr. Hardy is qualified to opine on the issues in this case because he is
“practicing medicine” in the area relevant to the claim, as that term is defined in
TEX. CIV. PRAC. & REM. CODE § 74.402(a). As described in his report and
curriculum vitae, Dr. Hardy is a pharmacy consultant and is licensed to practice as
a pharmacist. Because he actively consults and is licensed in the same field as
Appellees, Dr. Hardy is “practicing medicine” in the area relevant to the claim.
Further, as discussed in Appellant’s Brief, he has extensive knowledge in
processing and handling prescriptions, including prescriptions for the drug at issue
here: Pradaxa. Although Appellees choose to disregard the statutory definition of
“practicing medicine”, the clear language of his report and curriculum vitae
demonstrate that Dr. Hardy is qualified to opine in this case under Chapter 74.
Finally, the reports of Dr. Hardy and Dr. Breall provide a fair summary of
the experts’ opinions on each element of Rodriguez’s claim. Dr. Hardy states, in
specific and detailed language, the standard of care applicable to Appellees as well
as their breach of that standard. His report shows that Appellees failed to verify
5
that the drug should be continued with Nancy’s physicians, and that Appellees
dispensed the drug to Nancy without verifying it with a physician. Dr. Breall’s
report then demonstrates the causal link between Nancy’s continued Pradaxa
therapy – which resulted from Walgreens and McGuire dispensing the drug
without verification – and her injuries.
ARGUMENT IN REPLY
I. DR. HARDY’S REPORT SETS FORTH A FAIR AND DETAILED SUMMARY OF THE
STANDARD OF CARE AND WALGREENS AND MCGUIRE’S BREACH OF THE
STANDARD OF CARE.
The expert report of Dr. J. Chad Hardy, Pharm.D., M.S. sets forth a fair and
detailed summary of the standard of care as well as Walgreens and McGuire’s
breach of that standard. A report satisfies the requirements of TEX. CIV. PRAC. &
REM. CODE § 74.351 if the report is 1) sufficiently specific to inform the defendant
of the conduct the plaintiff has called into question and (2) provides the trial court
with a basis to conclude her claims have merit. Am. Transitional Care Center of
Texas v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Although “[Defendants] may
disagree with [Plaintiff’s expert’s] opinions” contained in an expert report, the
report is adequate if it contains a fair summary of the expert’s opinions and
adequately informs them of the specific conduct called into question. In re Stacy K.
Boone, 223 S.W.3d 398, 406 (Tex. App.—Amarillo 2006, orig. proceedings).
6
The Supreme Court has recently stressed that the Chapter 74 expert report
requirement is a threshold requirement in a medical malpractice lawsuit.
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). In analyzing a
Chapter 74 expert report, the trial court’s role “is not to determine the truth or
falsity of the expert’s opinion but to act as gatekeeper.” Mettauer v. Noble, 326
S.W.3d 685, 694 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In addition,
“[b]ecause the statute focuses on what the report discusses, the only information
relevant to the inquiry is within the four corners of the document.” Palacios, 46
S.W.3d at 878. The trial court may not draw inferences from information outside
the expert report, or infer additional information. Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Gannon v.
Wyche, 321 S.W.3d 881, 897 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
The decision before the trial court in this case was whether the expert reports
of Dr. Hardy and Dr. Breall constituted an adequate Chapter 74 expert report.
Contrary to the arguments of Walgreens and McGuire, which misconstrue the
requirements necessary for an expert report at this threshold stage of litigation, Dr.
Hardy’s report fully satisfies these requirements with regard to the standard of care
and Walgreen and McGuire’s breach of that standard. In his report, Dr. Hardy sets
forth the standard of care applicable to Walgreens and McGuire and opines that
this level of care was not provided to Nancy. According to Dr. Hardy, pharmacists
7
must “contact the prescribing physician if patient harm is possible to validate the
prescription” and are “responsible for ensuring prescription is accurately
communicated and dispensed as intended by the prescriber.” CR 40-41. He further
provides that pharmacists must communicate with the prescribing physician to
“validate continuation of therapy when no refills remain on a prescription.” CR 41.
Dr. Breall notes that Walgreens and McGuire failed to provide care according to
these standards. CR 41. He specifically opines that Walgreens and McGuire failed
to abide by the standard of care by (1) continuing to dispense a prescription for
[Pradaxa] after the prescribing physician indicated it should be discontinued; and
(2) Failing to verify if the prescription for [Pradaxa] should be continued with
the prescribing physician.
Dr. Hardy’s opinion, as set forth in his report, is that the standard of care
required Walgreens and McGuire to verify if Pradaxa should be continued – and
they failed to do so. In other words, Walgreens and McGuire were unaware that the
medication should not be continued because they failed to verify the prescription
with the prescribing physician, thus breaching the standard of care. Appellees
argue that Dr. Hardy’s report is “speculative because it relies on the assumption
that Walgreen and McGuire were aware of Dr. Kessler’s advice to discontinue the
use of Pradaxa.” (Brief of Appellees, pp. 9-10) (emphasis added). Dr. Hardy’s
report does not speculate, and it does not rest on the argument that Walgreens and
8
McGuire were actually aware that the medication was discontinued. Instead, Dr.
Hardy’s report specifically provides that the breach of the standard of care was in
failing to be aware that the prescription was discontinued. By arguing that Dr.
Hardy’s report somehow requires Appellees to have had knowledge that Pradaxa
was discontinued, they misconstrue the plain language of Dr. Hardy’s report. They
fail to understand that Dr. Hardy faults Appellees for their negligent omission in
failing to contact Nancy’s physicians as well as for their actions in dispensing the
medication without verifying it. Nothing in his opinion is premised on Appellees
having actual knowledge that the medication was discontinued. Such a level of
knowledge would be tantamount to an intentional act, which was not plead. Dr.
Hardy’s opinion within the four corners of his report – which is all that may be
considered when analyzing a Chapter 74 report – sets forth a detailed and fair
summary of the conduct called into question by Rodriguez’s claims.
Dr. Hardy’s report is sufficient as to both Walgreens and McGuire.
Appellees allege that Dr. Hardy’s report “does not separately set out the alleged
acts of negligence and causal connection for each of the multiple defendants.”
However, Dr. Hardy’s report specifically refers to the conduct of “Walgreens, Sara
Elizabeth McGuire (pharmacist), and pharmacist with the initials MDD”, and sets
out the manner in which they breached the standard of care. CR 41. Dr. Hardy’s
9
report names Walgreen and McGuire and then describes the negligent acts and
omissions applicable to both. Walgreen and McGuire’s argument is without merit.
Furthermore, Appellant’s claims against Walgreens are vicarious in nature.
“When a health care liability claim involves a vicarious liability theory...an expert
report that meets the statutory standards as to the employee is sufficient to
implicate the employer’s conduct under the vicarious theory.” Certified EMS, Inc.
v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). As a result, any argument that the
report is deficient for not specifying Walgreen’s actions as an employer must also
fail. In setting out the acts and omissions of Walgreen’s pharmacist – specifically,
McGuire’s conduct in continuing to dispense an unauthorized prescription and her
failure to verify the prescription – Dr. Hardy’s report meets the statutory standard
as to McGuire. As a result, pursuant to Potts, the report is also sufficient against
Walgreen.
II. DR. HARDY IS QUALIFIED TO OPINE ON THE ISSUES IN THIS CASE PURSUANT
TO THE STATUTORY DEFINITION OF PRACTICING MEDICINE.
Dr. Hardy is qualified under TEX. CIV. PRAC. & REM. CODE § 74.402
because he is “practicing” in the areas directly relevant to this claim. 1 Section
74.402 requires that an expert be “practicing health care in a field of practice that
1
While Appellees choose to refer to Dr. Hardy as “Mr. Hardy” throughout their Brief, Dr. Hardy’s report and
curriculum vitae indicate he holds a Doctorate of Pharmacy from the University of Texas.
10
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...at the time the claim
arose.” TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1). Section 74.402(a) defines
“practicing health care” to include:
(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 (emphasis added).
Dr. Hardy’s report and curriculum vitae demonstrate he is “practicing medicine”
because he serves as a pharmacy consultant and is a licensed pharmacist. CR 13;
CR 39-40. He consults in, and holds an active license in, the “same field” as
McGuire (a pharmacist) and Walgreens (a pharmacy). Appellees argue that Dr.
Hardy is not “practicing and rendering health care” because he was allegedly not
filling prescriptions for patients. In making this argument, Appellees ignore the
definition of “practicing health care” in § 74.402(a), and fail to reference this
definition or explain how Dr. Hardy fails to meet it. Appellees further fail to
address Dr. Hardy’s extensive experience in handling prescriptions, managing
pharmacies, and ensuring proper patient care, as discussed in Appellant’s Brief.
His report and curriculum vitae make it clear that he practices in precisely the
“very matter” relevant to this claim – the proper handling and processing of
11
prescriptions. CR 13; CR 40. Based on the statutory definition of “practicing health
care”, it is evident that the Dr. Hardy is qualified to opine on the issues in this case.
III. DR. BREALL’S REPORT PROVIDES A CAUSAL LINK BETWEEN NANCY
RODRIGUEZ’S CONTINUED PRADAXA THERAPY AND HER INJURIES.
The reports of Dr. Breall and Dr. Hardy, when considered in the aggregate,
satisfy each element of Rodriguez’s claims against Walgreen and McGuire. 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.). Further, “a plaintiff may serve multiple reports by separate experts
regarding different defendants, different claims, and different issues, as long as the
reports, read together, provide a fair summary of the standard of care, breach, and
causation.” Abilene Regional Medical Center v. Allen, 387 S.W.3d 914, 918 (Tex.
App.—Eastland 2012, pet. denied).
The report of Dr. Hardy provides that Appellees dispensed Pradaxa in
violation of the standard of care. Specifically, Appellees dispensed Pradaxa
without authorization, and failed to contact the prescribing physician to verify
whether the medication should be dispensed. His report makes it clear that the drug
was dispensed to Nancy in violation of the standard of care. Dr. Breall’s report
12
then connects Nancy’s injuries to her continued Pradaxa therapy. Appellees
complain that Dr. Breall’s report does not specify them by name, and thus
Appellant failed to serve an expert report as to them. This argument would be
correct if only the report of Dr. Breall was served on Appellees. However, the
report of Dr. Hardy specifies the negligent acts of both Walgreens and McGuire,
and it must be “read together” with the report of Dr. Breall. Indeed, since Dr.
Breall is not a pharmacist, he would not even be qualified to opine that Appellees
breached the standard of care so as to necessitate naming them. He is qualified to
opine only as to causation, and he has done so in this case. If the reports are
considered in the aggregate, as the trial court here was required to do, the reports
present a fair summary on each element of Plaintiff’s claim as to Appellees.
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.
13
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 2,382 words, based on
Microsoft Word’s word-count function.
/s/ L. Todd Kelly
L. Todd Kelly
14
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 26th day of
March, 2015.
Electronic Transmission:
Cynthia Day Grimes
Cynthia.Grimes@strasburger.com
Judith R. Blakeway
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
15