Columbia Valley Healthcare System L.P. D/B/A Valley Regional Medical Center v. Maria Zamarripa, as Guardian of the Estates of Rey Francisco Ramirez and Rammy Justin Ramirez, Minors

ACCEPTED
13-14-00696-CV
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI - EDINBURG 6/15/2015 4:15:33 PM
CECILE FOY GSANGER
CLERK
06/15/15
NO. 13-14-00696-CV
CECILE FOY GSANGER, CLERK
BY cholloway
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
THIRTEENTH JUDICIALCORPUS
DISTRICTCHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI/EDINBURG,6/15/2015
TEXAS4:15:33 PM
______________________________________________________
CECILE FOY GSANGER
Clerk
COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. D/B/A
VALLEY REGIONAL MEDICAL CENTER,

Appellant
vs.

REYNALDO RAMIREZ, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF YOLANDA IRIS FLORES AND AS
REPRESENTATIVE OF ALL WRONGFUL DEATH BENEFICIARIES AND
AS NEXT FRIEND OF R.R.R. AND R.J.R., MINORS,

Appellee
___________________________________________________

APPELLANT’S RESPONSE TO APPELLEE’S
SUR-REPLY BRIEF
_________________________________________________________

Thomas F. Nye
State Bar No. 15154025
Robert W. Clore
State Bar No. 24012436
Gault, Nye & Quintana, LLP
717 Everhart Rd., Suite A
Corpus Christi, TX 78411
361-654-7008
361-654-7001 Fax

ATTORNEYS FOR APPELLANT
Appellant Request for Oral Argument
 TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................. iii

I. Section 74.402(b)(1) Applies and Nurse Spears is Unqualified ................ 1

II. Plaintiff Cannot Explain How Nurse Spears Has Experience
in the Relevant Context .............................................................................. 5

III. Nurse Spears’ Vague Discussion of the Standard of Care is
Inadequate...................................................................................................6

IV. Plaintiff’s Sur-Reply Further Illustrates the Disconnect between
Nurse Spears’ and Dr. Harlass’ Reports..................................................... 9

V. The Fact that the Nurses Do Not Have the Authority to Permit
or Not Permit Transfer Renders Dr. Harlass’ Opinion on
Causation Inadequate................................................................................11

CONCLUSION AND PRAYER .............................................................................12

Rule 9.4(i) Certification ...........................................................................................13

CERTIFICATE OF SERVICE ................................................................................13

ii
 Table of Authorities

Cases
American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001) ............................................................................. 7

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)......................................10

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) ......................................................... 5

Christus Health Southeast Tex. v. Broussard, 267 S.W.3 531 (Tex.
App.—Beaumont 2008, no pet.)...................................................................... 5

Christus Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-CV,
2013 WL 6576041 (Tex. App.—Corpus Christi 2013, no pet.)
(mem. op.) ................................................................................................2, 4, 6

Christus Spohn Health Sys. Corp. v. Johnston,13-12-00778-CV, 2013
WL 2298471 (Tex. App.—Corpus Christi, May 23, 2013, no
pet.) ..................................................................................................................5

Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, No. 02-10-
00342-CV, 2011 WL 3211239 (Tex. App.—Fort Worth, July
28, 2011, no pet.) .............................................................................................2

Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006)......................................... 3

Garza v. DeLeon, No. 13-13-00342-CV, 2013 WL 6730177 (Tex.
App.—Corpus Christi, Dec. 19, 2013, no pet.) ............................................... 3

Grynberg v. M-I L.L.C., 398 S.W.3d 864 (Tex. App.—Corpus Christi
2012, no pet.) ...................................................................................................3

Haddad v. Marroquin, No. 13-07-014-CV, 2007 WL 2429183 (Tex.
App.—Corpus Christi, Aug. 29, 2007, pet. denied) ........................................ 3

Health Care Unlimited, Inc. v. Villarreal, No. 13-09-00456-CV, 2010
WL 468061 (Tex. App.—Corpus Christi, Feb. 11, 2012, no
pet.) ..................................................................................................................2

iii
Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex. App.—San
Antonio 2004, no pet.) ...................................................................................11

Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) ................................................................. 8

Murphy v. Mendoza, 234 S.W.3d 23 (Tex. App.—El Paso 2007, no
pet.) ................................................................................................................11

Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (Tex.
App.—Beaumont 2011, no pet.)..........................................................4, 5, 8, 9

Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107 (Tex.
App.—Corpus Christi, Nov. 25, 2009, pet. denied) ........................................ 3

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) ................................................12

Twist v. Flores, 13-03-171-CV, WL 1919505 (Tex. App.—Corpus
Christi, May 13, 2010, no pet.) ........................................................................ 2

TTHR, L.P. v. Coffman, 338 S.W.3d 103 (Tex. App.—Fort Worth,
2011, no pet.) ...................................................................................................4

Wilcox v. Montalvo, No. 13-10-611-CV, 2011 WL 1443689 (Tex.
App.—Corpus Christi, Apr. 14, 2011, no pet.) ............................................... 8

STATUTES AND RULES

TEX. HEALTH & SAFETY CODE § 241.027(b).......................................................... 6, 9

25 TEX. ADMIN. CODE § 133.44 .............................................................................6, 9

TEX. CIV. PRAC. & REM. CODE § 74.402(b) ............................................................... 5

TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1) ..........................................1, 2, 3, 4, 5

TEX. CIV. PRAC. & REM. CODE § 74.402(b)(2)(3) ...................................................... 5

iv
 NO. 13-14-00696-CV

IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT
CORPUS CHRISTI/EDINBURG, TEXAS
______________________________________________________

COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. D/B/A
VALLEY REGIONAL MEDICAL CENTER,

Appellant
vs.

REYNALDO RAMIREZ, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF YOLANDA IRIS FLORES AND AS
REPRESENTATIVE OF ALL WRONGFUL DEATH BENEFICIARIES AND
AS NEXT FRIEND OF R.R.R. AND R.J.R., MINORS,

Appellee
___________________________________________________

APPELLANT’S RESPONSE TO APPELLEE’S
SUR-REPLY BRIEF
_________________________________________________________

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

I. Section 74.402(b)(1) Applies and Nurse Spears is Unqualified.

Plaintiff, in the Sur-Reply Brief, does not even attempt to argue that Nurse

Spears was “practicing health care in a field of practice that involves the same type

of care or treatment” as the nurses in this case at the time Plaintiff’s claim arose or

at the time she prepared her report. TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1).

Indeed, since Nurse Spears was practicing in hematology and oncology, as
opposed to labor and delivery, no argument can be made that Nurse Spears

satisfies this requirement.

Instead, Plaintiff maintains that Section 74.402(b)(1) does not apply because

the hospital is not an individual. This would be a compelling argument if

Plaintiff’s suit were based solely on the direct acts of the hospital, and not, as it is,

on the vicarious acts of the individual nurses at the hospital. As this Court has

implicitly recognized, a vicarious liability action against a hospital based on the

acts of individual nurses implicates Section 74.402(b)(1). See Christus Spohn

Health Sys. Corp. v. Castro, No. 13–13–00302–CV, 2013 WL 6576041, at *4-5

(Tex. App.—Corpus Christi Dec. 12, 2013, no pet.) (mem. op.); Health Care

Unlimited, Inc. v. Villarreal, No. 13-09-00456-CV, 2010 WL 468061, at *3-5

(Tex. App.—Corpus Christi Feb. 21, 2010, no pet.); see also Columbia North Hills

Hosp. Subsidiary, L.P. v. Alvarez, No. 02–10–00342–CV, 2011 WL 3211239, at

*3-5 (Tex. App.—Fort Worth July 28, 2011, no pet.) (mem. op.) (applying Section

74.402(b)(1) in case involving, among other claims, a vicarious claim against

hospital nurses).

Plaintiff suggests, without referencing any authority, that since this Court

did not explain why it was applying Section 74.402(b)(1), its authority should be

disregarded in favor of opinions from other courts of appeals. In fact, this Court is

bound by its own precedent, and not opinions from sister courts of appeals. Twist

2
v. Flores, No. 13-03-171-CV, 2010 WL 1919505, at *4 (Tex. App.—Corpus

Christi May 13, 2010, no pet.) (noting “we are bound by our own precedent”);

Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at *4 (Tex.

App.—Corpus Christi Nov. 25, 2009, pet. denied) (“We, thus, are bound by our

precedent”); Haddad v. Marroquin, No. 13-07-014-CV, 2007 WL 2429183, at *6

(Tex. App.—Corpus Christi Aug. 29, 2007, pet. denied) (“we are compelled to

follow our own precedent”); see also Fiess v. State Farm Lloyds, 202 S.W.3d 744,

749–50 (Tex. 2006) (holding that courts are “bound to consider the principles of

stare decisis” and that “stare decisis has its greatest force in cases construing

statutes....”); Garza v. Deleon, No. 13-13-00342-CV, 2013 WL 6730177, at *5

(Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (“as a decision of one of our

sister courts it is not binding authority”); Grynberg v. M-I L.L.C., 398 S.W.3d 864,

871-72 (Tex. App.—Corpus Christi 2012, no pet.) (“Chaves is from the Houston

First District Court of Appeals and Norwood is from the Amarillo Court of

Appeals, both sister courts, and we are not bound to follow a decision of another

court of appeals.”). There is no reason to think, and Plaintiff advances none, that

this Court was unaware of the language of Section 74.402(b)(1) when it applied it

to vicarious liability cases against hospitals involving the conduct of individual

nurses.

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 Further, this Court’s application of Section 74.402(b)(1) in Castro and

Villarreal is a reasonable construction of the statute. When a plaintiff’s claims

concern the conduct of individual nurses, as opposed to direct conduct of the

hospital, it logically follows that the expert should be practicing in a field that

involves the same type of care or treatment as the individual nurses.

A case relied on by Plaintiff, TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112

(Tex. App.—Fort Worth 2011, no pet.), demonstrates the distinction between a

direct claim against a hospital and a vicarious claim based on the conduct of

individual nurses. In Coffman, the court of appeals declined to apply Section

74.402(b)(1) when a patient brought a direct claim against a hospital for

improperly releasing her medical records. Unlike Coffman, Plaintiff’s claim in this

case is based on the care administered by individual nurses, and not a general

hospital standard of care involving the release of medical records, and as such

triggers application of Section 74.402(b)(1).

Further, the language in Renaissance Healthcare Systems, Inc. v. Swan, 343

S.W.3d 571 (Tex. App.—Beaumont 2011, no pet.), stating that Section

74.402(b)(1) does not apply to a hospital should not, as Plaintiff urges, be applied

“globally” to both vicarious and direct liability claims. Swan found Section

74.402(b)(1) inapplicable to the hospital in the specific context of the direct

negligent credentialing claim against the hospital, and not the vicarious claim.

4
Swan, 343 S.W.3d at 588-89 (rejecting the assertion that an expert was unqualified

because he was not involved with a hospital quality assurance committee, which

would pertain to the negligent credentialing claim); see also Christus Spohn Health

Sys. Corp. v. Johnston, No. 13-12-00778-CV, 2013 WL 2298471, at *1 (Tex.

App.—Corpus Christi May 23, 2013, no pet.) (noting a negligent credentialing

claim is a direct liability claim). 1

Because Section 74.402(b)(1) applies to the vicarious liability claims against

the Hospital based on the conduct of its individual nurses, Nurse Spears was

required, at the time the Plaintiff’s claim arose or at the time she prepared her

report, to be practicing in a field of practice involving the same type of care as the

labor and delivery nurses. She was not, and Plaintiff does not suggest that she was.

Accordingly, she is unqualified to opine on the standard of care in this case.

II. Plaintiff Cannot Explain How Nurse Spears Has Experience in the
Relevant Context.

Nurse Spears is also unqualified because her CV and report fail to explain

how, in the specific context of R.N.s working in labor and delivery, she has the

specific knowledge, skill, experience, training, or education to opine in this case.

TEX. CIV. PRAC. & REM. CODE § 74.402(b)(2),(3); Broders v. Heise, 924 S.W.2d

148, 153 (Tex. 1996). Plaintiff states without explanation that “Nurse Spears

1
Plaintiff’s reference to Christus Health Southeast Tex. v. Broussard, 267 S.W.3d 531, 535
(Tex. App.—Beaumont 2008, no pet.) should be disregarded because the court did not address
the qualifications of an expert; thus, the language discussing Section 74.402(b) is dicta.
5
connects her training, experience, and certifications, to the relevant context

(emergent care and Labor and Delivery).” Yet, the record reveals otherwise.

Nurse Spears has no R.N. experience in labor and delivery, yet her opinions

are directed at R.N.s in labor and delivery. Her only experience in labor and

delivery was nine years ago as an L.V.N., where she acted under the direction of an

R.N. (CR 124). Nurse Spears does not explain how being under the direction of

R.N.s in labor and delivery nine years ago now qualifies her to opine concerning

their standard of care.

Thus, Plaintiff’s attempt to distinguish Christus Spohn Health Sys. Corp. v.

Castro misses the mark. As in Castro, Nurse Spears does not have “relevant

experience in . . . the relevant field of practice” in the same context as the care

provided by the nurses. Id. at *4. Accordingly, Nurse Spears’ report, the only

report offered on the standard of care or breach of the standard of care, does not

satisfy the criteria of the TMLA and Plaintiff’s health care liability claim must be

dismissed.

III. Nurse Spears’ Vague Discussion of the Standard of Care is
Inadequate.

Plaintiff’s Sur-Reply Brief does not dispute that Texas law precludes the

nurses from ordering patient transfers. Tex. Health & Safety Code § 241.027(b);

see also 25 Tex. Admin. Code § 133.44. Seemingly recognizing this fact, the Sur-

6
Reply Brief drops discussion of the standard of care as the nurses refusing to

permit transfer, which obviously is not the standard under Texas law.

Plaintiff now focuses on Nurse Spears’ statement that “the VRMC nurses

should have advocated for her to remain at VRMC” (CR 178). This bare

conclusion does not give sufficient factual detail to satisfy the requirements of the

TMLA.

The Texas Supreme Court instructs that “[w]hether a defendant breached his

or her duty to a patient cannot be determined absent specific information about

what the defendant should have done differently.” American Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). There is no

specific information here.

Plaintiff’s Sur-Reply does not identify where Nurse Spears explains what the

nurses were required to do to advocate against the transfer. In fact, Nurse Spears

does not explain to whom the nurses were required to advocate, whether they were

to follow a chain of command in doing so, nor what factors were they were

required to advocate.

To the extent Nurse Spears’ report can be read as stating that the standard of

care required the nurses to avoid facilitating or permitting the transfer, and even

ignoring the fact that the nurses could not, as a matter of law, permit the transfer,

there is likewise no factual explanation as to what the nurses were specifically

7
required to do. There is no discussion of how the nurses were to avoid facilitating

the transfer, whether they were required to refuse the doctor’s orders, nor whether

they were required to follow a chain of command. Nurse Spears’ report does not

address any of these issues, and neither does Plaintiff’s Sur-Reply Brief.

Plaintiff does not distinguish the Kingwood and Wilcox opinions, where, as

here, the expert articulated a conclusory standard of care without explaining how it

should have been accomplished. Kingwood Pines Hosp., LLC v. Gomez, 362

S.W.3d 740, 748 (Tex. App.–Houston [14 Dist.] 2011, no pet.) (plaintiff’s expert

reports were inadequate when they only stated a “conclusion that appellants did not

provide a safe and secure environment for V.G., but [did] not specify how this

should have been accomplished.”); Wilcox v. Montalvo, No. 13-10-611-CV, 2011

WL 1443689, at *1, *4 (Tex. App.—Corpus Christi Apr. 14, 2011, no pet.) (expert

report conclusory and inadequate in describing the standard of care in making sure

to take proper precautions in transferring patients from wheelchairs to beds,

because “the report [did] not mention what precautions should be taken to properly

transfer a patient”).

Meanwhile, the Swan opinion relied upon by Plaintiff illustrates the type of

factual specificity missing in this case. In Swan, the expert explained the factual

details of the nurses advocating for different treatment:

A qualified PACU nurse also has the obligation to act as the patient's
advocate. In the presence of a clinically unstable patient[,][a] PACU
8
 nurse should have insisted that either Dr. Baker or Dr. McHargue
come to and remain at the bedside. In addition, should the
anesthesiologist or neurosurgeon fail to institute the right treatment[,]
... the nurse has not only the right but the obligation to rapidly institute
the chain of command. This requires the involvement of a qualified
supervisor and involves the summoning of another qualified
anesthesiologist and surgeon to provide the appropriate care of the
patient.

Swan, 343 S.W.3d at 576.

This is the type of factual specificity missing from Nurse Spears’ report.

Because Nurse Spears’ conclusions on the standard of care do not satisfy the

TMLA’s most basic requirements, Plaintiff’s health care liability claim must be

dismissed with prejudice.

IV. Plaintiff’s Sur-Reply Further Illustrates the Disconnect between
Nurse Spears’ and Dr. Harlass’ Reports.

As discussed in Appellant’s Briefing, Dr. Harlass’ only opinion on the

causal link as to Valley Regional is that its personnel’s “permitting and facilitating

the transfer” caused Mrs. Flores’ death (CR 114). In the Sur-Reply Brief, Plaintiff

does not dispute that Texas law does not allow nurses to transfer patients between

hospitals. TEX. HEALTH & SAFETY CODE § 241.027(b); see also 25 Tex. Admin.

Code § 133.44. As such, Nurse Spears’ statement that the nurses breached the

standard of care by permitting the transfer cannot, as a matter of law, satisfy the

requirements of the statute.

9
 What is left from Dr. Harlass’ report on causation is facilitating the transfer.

Again, Nurse Spears’ report does not actually assert that the standard of care is for

the nurses to refuse to facilitate transfer, and this Court cannot infer that that is

what she meant to say. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex.2002). Even if Nurse Spears’ report could be read as requiring the nurses to

refuse to facilitate transfer, as described above, any such statement is

impermissibly conclusory.

Dr. Harlass never opined that the nurses’ failure to advocate against the

transfer was the cause of Mrs. Flores’s death. Rather, the only standard of care

common to both Nurse Spears’ and Dr. Harlass’ report is that the nurses permitted

or facilitated the transfer.

Nurse Spears’ statements on standard of care and breach simply do not

correspond to Dr. Harlass’ opinions on causation. Compare (CR 171) (Dr. Harlass

opines that Valley Regional personnel caused Mrs. Flores’ death by “permitting

and facilitating the transfer”) with (CR 120) (Nurse Spears opines that “[t]he

VRMC nurses should have advocated for her to remain at VRMC rather than

permitting and facilitating her transfer. . . . .”). The result is that Dr. Harlass does

not opine that any of Nurse Spears’ articulated breaches of the standard of care

caused Mrs. Flores’ death. Accordingly, Dr. Harlass’ report fails to satisfy the

10
TMLA’s causal link requirement, and the trial court abused its discretion in

denying Valley Regional’s motion to dismiss.

V. The Fact that the Nurses Do Not Have the Authority to Permit or
Not Permit Transfer Renders Dr. Harlass’ Opinion on Causation
Inadequate.

As noted in Appellant’s Briefing, the care rendered by the Hospital’s nurses

could not be a cause as a matter of law because it was the physicians’ decision

alone to order the transfer. While Plaintiff responds to this argument as to Nurse

Spears’ opinions on the standard of care, Plaintiff offers no response that this fact

renders Dr. Harlass’ causation opinion inadequate.

Plaintiff’s reports are impermissibly speculative because the nurses are

legally incapable of transferring a patient and therefore could not have caused the

death by permitting or facilitating the transfer, or in failing to advocate against the

transfer. Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex. App.—El Paso 2007, no

pet.) (holding that expert’s opinion was speculative and conclusory where it was

not supported by the facts and the expert relied upon an assumption); Hutchinson

v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.)

(liability in a medical malpractice suit cannot be made to turn upon speculation or

conjecture). That is, even if the nurses had not permitted or facilitated the transfer,

and had advocated against it, it was still the physician’s decision to transfer the

patient. Given this fact, Dr. Harlass’ opinion on causation does not “provide a

11
basis for the trial court to conclude that the plaintiff’s claims have merit.”

Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011).

Plaintiff’s expert reports fail individually and collectively to satisfy the basic

requirements of the Texas Medical Liability Act. Accordingly, this Court should

reverse the trial court’s denial of Valley Regional’s motion to dismiss.

WHEREFORE, PREMISES CONSIDERED, Defendant Valley Regional

Medical Center finds nothing in the Appellee’s Brief that diminishes its right to

relief, and reiterates the prayer in Appellant’s Brief with even greater confidence.

Respectfully submitted,

__/s/Thomas F. Nye ____________
Thomas F. Nye
State Bar No. 15154025
Robert W. Clore
State Bar No. 24012436
Gault, Nye & Quintana, L.L.P.
717 Everhart Road, Suite A
Corpus Christi, Texas 78411
(361) 654-7008
(361) 654-7001 Telecopier

ATTORNEYS FOR APPELLANT,
VALLEY REGIONAL MEDICAL
CENTER

12
 Rule 9.4(i) Certification

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this brief, excluding those matters listed in Rule
9.4(i)(1), is 2,563.

__/s/Thomas F. Nye ____________
Thomas F. Nye

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to counsel, as listed below, on this the 15th of June,
2015, in accordance with the Texas Rules of Civil Procedure.

Walter L. Boyaki - wboyaki@aol.com
Gaines West – gaines.west@westwebblaw.com

VIA E-FILING

__/s/Thomas F. Nye ____________
Thomas F. Nye

13