Opinion issued December 20, 2016.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00142-CV
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GERIATRIC ASSOCIATES OF AMERICA, P.A., Appellant
V.
STEPHEN ALEX, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Case No. 2014-63269
MEMORANDUM OPINION
In this interlocutory appeal, appellant Geriatric Associates of America, P.A.
is challenging the trial court’s order denying its motion to dismiss the healthcare
liability claims filed against it by appellee Stephen Alex. GAA argues that the trial
court abused its discretion by denying the motion to dismiss because Alex’s expert’s
report does not comply with the requirements of Chapter 74 of the Civil Practice &
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp.
2016), § 74.402 (West 2011). We affirm.1
Background
Alex underwent cardiovascular surgery at Texas Methodist Hospital in San
Antonio, Texas, in March 2013. After his surgery, Alex was referred to SSC
Kerrville Hilltop Village Operating Company LLC a/k/a Hilltop Village Nursing
and Rehabilitation Center for a post-surgical rehabilitation program in order to
recover from the surgery before eventually returning home. Alex’s physicians at
Methodist noted that sternal precautions were necessary for his rehabilitation
because he had a large incision down his chest from the surgery which had not fully
healed.
1
The parties disagree as to whether GAA, individually, can challenge the sufficiency
of the report as to its employee, Dr. Milton Shaw, when Dr. Shaw is not challenging
the sufficiency of the report. Although we have not found any legal authority that
expressly addresses this point, we find the Texas Supreme Court’s opinion in TTHR
Ltd. Partnership v. Moreno, 401 S.W.3d 41, 45 (Tex. 2013) to be instructive. In
Moreno, the plaintiff asserted that the hospital was liable because of its own direct
negligence, as well as its vicarious liability for the negligence of its nurses and two
of its doctors. Id. at 43. Although the doctors were defendants in the suit, they were
not parties to the appeal. Nevertheless, the Supreme Court considered the hospital’s
challenge to the sufficiency of the report with respect to the vicarious liability claim
and held that because the reports were adequate to support the plaintiff’s claims
against the doctors, “the trial court did not abuse its discretion by finding [the
plaintiff]’s reports adequate as to the claim that [the hospital] is vicariously liable
for actions of the doctors.” Id. at 44.
2
Alex was admitted to Hilltop on March 22, 2013, to begin his rehabilitation
program. Milton Shaw, M.D., Hilltop’s medical director, was Alex’s attending
physician at Hilltop and supervised his treatment. Eight or nine days after Alex’s
surgery, members of Hilltop’s staff instructed Alex to support his full weight on the
parallel bars while walking on a treadmill. While attempting to perform this exercise,
Alex experienced “a severe and sudden pain in his sternum.” He was transported to
a nearby hospital several hours later, where he was diagnosed with sternal
dehiscence. Alex was then transferred back to Methodist where he underwent
surgery to repair his sternum the next day.
Alex subsequently filed suit against GAA, Hilltop, and Dr. Shaw. In his
petition, Alex alleged that GAA was liable for its own negligence with respect to the
care, services, treatment, and supervision of treatment provided to him, as well as
vicariously liable for the negligent acts or omissions of its employees and agents.
Alex served GAA with a report prepared by his expert, Janice K. Smith, MD, MPH.
GAA objected to the sufficiency of the report and filed a motion to dismiss pursuant
to Civil Practice and Remedies Code section 74.351. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351. After a hearing, the trial court denied GAA’s motion to dismiss.
This interlocutory appeal followed.
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Discussion
In four issues, GAA argues that the trial court abused its discretion when it
denied the motion to dismiss because Dr. Smith’s expert report does not satisfy the
requirements of Chapter 74 with respect to Alex’s direct liability claim against GAA
or his vicarious liability claim against GAA that is based on Dr. Shaw’s conduct.
Specifically, GAA contends that Dr. Smith is not qualified to opine as to GAA’s
standard of care or give legal opinions with respect to Alex’s direct liability claim.
GAA further contends that Dr. Smith’s opinions as to the applicable standard of care,
any breaches thereof, and causation are conclusory, with respect to both Alex’s
direct and vicarious liability claims.
A. Chapter 74 Expert Reports
Section 74.351 of the Civil Practice and Remedies Code serves as a
“gate-keeper” through which no medical negligence causes of action may proceed
until the claimant has made a good-faith effort to demonstrate that at least one expert
believes that a breach of the applicable standard of care caused the claimed injury.
See TEX. CIV. PRAC. & REM. CODE § 74.351; Murphy v. Russell, 167 S.W.3d 835,
838 (Tex. 2005). To constitute a good faith effort, the report must provide enough
information to fulfill two purposes: (1) inform the defendant of the specific conduct
that the plaintiff has called into question and (2) provide a basis for the trial court to
conclude that the claim has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v.
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Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001). A report that merely states the
expert’s conclusions as to the three statutory elements of standard of care, breach,
and causation does not fulfill these two purposes. Id. at 879. The expert must explain
the basis for his statements and link his conclusions to the facts. Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882,
890 (Tex. 1999)). The trial court may not draw any inferences, but must rely
exclusively on the information contained within the four comers of the report. See
Palacios, 46 S.W.3d at 878.
When a healthcare liability claim involves a vicarious liability theory, an
expert report that adequately implicates the actions of that party’s agents or
employees is sufficient to implicate the party under the vicarious theory. Gardner v.
U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam). And, if any
liability theory has been adequately covered, the entire case may proceed. Certified
EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013).
B. Standard of Review
We review a trial court’s ruling on a motion to dismiss for an abuse of
discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or without reference to any guiding rules
or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). However, a trial court has no discretion in determining what the law is
5
or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992) (orig. proceeding).
C. GAA’s Vicarious Liability Based on Dr. Shaw’s Conduct
Alex’s vicarious liability claim against GAA is based on Dr. Shaw’s conduct.
GAA argues that Dr. Smith’s report does not comply with Chapter 74 because the
report does not provide specific information as to the applicable standards of care,
how Dr. Shaw allegedly breached those standards, and how such breaches were a
substantial factor in Alex’s injuries, and is, therefore, conclusory.
In her report, Dr. Smith identified Dr. Shaw as an employee of GAA and
stated that Dr. Shaw was Hilltop’s Medical Director, as well as Alex’s
admitting/supervising physician while he was rehabilitating at Hilltop. She further
stated that the “prevailing standard of care” for “physicians serving in a medical
supervisory role in rehabilitation centers” makes that supervisory physician
“responsible for approving the treatment protocols to be followed by the facility’s
medical support staff,” and also “responsible for insuring that those protocols are
followed faithfully by the staff.”2
Dr. Smith stated that because Alex exhibited at least two risk factors for
sternal dehiscence (i.e., morbid obesity and a history of poorly controlled diabetes
2
In light of our disposition, we need not address the other standards of care and Dr.
Shaw’s alleged breaches of those standards that Dr. Smith identified in her report.
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mellitus), the standard of care also required that “sternal precautions be observed
during the first 4 to 12 weeks, following surgery” in order to avoid undue stress to
his sternum.
The report further stated that although “Hilltop was aware of the need to
follow sternal precautions in directing Mr. Alex’s physical rehabilitation,” Hilltop’s
nursing staff directed Alex, a morbidly obese patient, “to perform an exercise that
involved supporting his entire weight on parallel bars while walking on a treadmill”
only eight or nine days after his surgery. According to Dr. Smith, this exercise
involved three activities that are specifically prohibited for patients like Alex who
require sternal precautions (i.e., lifting, pushing, or pulling more than ten pounds,
full weight-bearing through upper extremities, and activities that cause excessive
Valsalva maneuver). Dr. Smith further explained that “it was during this period of
prohibited exercise that Mr. Alex exhibited a severe and sudden pain in his sternum,
clear evidence of sternal dehiscence caused by the mechanical stress to his chest
produced by the exercise.”
According to Dr. Smith, “no copies of Hilltop’s post-surgical exercise
protocols were provided in the medical records [she] reviewed, and without such
review it is impossible to determine whether those protocols were inadequate to
protect at-risk patients such as Mr. Alex, or whether the correct protocols existed
and were simply ignored by the staff at Hilltop.” Dr. Smith opined that “[e]ither case
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would represent a failure to meet the standard of care for treating such patients, and
the concurrent failure of Dr. Shaw to insure that either the correct protocols were in
place or that the medical staff was in fact following said protocols.” Dr. Smith further
stated that:
Because of Dr. Shaw’s systematic failure to provide oversight over
[Alex’s] treatment and insure that the treatment plan being followed for
[Alex] was both safe and effective, Hilltop staff under Dr. Shaw’s
supervision both as Medical Director for Hilltop and
admitting/supervising physician for [Alex] engaged [Alex] in
rehabilitative exercises that were specifically prohibited for patients
with “sternal precautions” such as [Alex], causing [Alex]’s sternum
sutures to break apart. . . . Dr. Shaw is therefore directly and vicariously
responsible to a high degree of medical certainty for . . . the initial injury
to [Alex]’s sternum . . . .
Dr. Smith’s report stated that Dr. Shaw had a duty to Alex to insure that the
correct “safety protocols regarding post-surgery exercise” for patients like Alex were
in place, and that Hilltop’s medical staff were following said protocols. Dr. Smith
inferred from the lack of post-surgical exercise protocols in the medical records
provided by GAA that the protocols in place at the time of Alex’s injury were either
inadequate or that “the correct protocols existed and were simply ignored by the staff
at Hilltop.” She also explained that the correct protocols for a patient with sternal
precautions would have prohibited Alex from attempting the upper-body exercise
that Hilltop’s medical staff directed him to perform only a week after his surgery.
According to Dr. Smith, this exercise, prohibited by the appropriate protocols,
placed undue stress on Alex’s sternum, and caused Alex’s sternal dehiscence.
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The report provided GAA and Dr. Shaw with a fair summary of Dr. Smith’s
opinions concerning the applicable standard of care and how Dr. Shaw failed to meet
that standard. See Palacios, 46 S.W.3d at 880. The report also informed GAA and
Dr. Shaw of the specific conduct that Alex called into question, i.e., “implement[ing]
(or allow[ing] to be implemented under his supervision) an upper-body exercise
program, including the use of parallel bars, on a morbidly obese patient who had just
undergone cardiac surgery and was instructed to take sternal precautions.” Dr.
Smith’s report is sufficient with regard to standard of care and breach. See id. at 879.
Dr. Smith’s report also explained that it was this conduct by Dr. Shaw that caused
Hilltop’s staff to direct Alex to perform an exercise that, not only would have been
prohibited by the proper protocols, but also directly caused Alex’s sternal
dehiscence. Thus, Dr. Smith’s report provided a factual basis for her statements and
she linked those factual statements to her conclusion that Dr. Shaw’s specific actions
or inaction ultimately caused Alex’s injury. See Wright, 79 S.W.3d at 52.
GAA also challenges the accuracy of Dr. Smith’s opinions with respect to the
applicable standard of care. According to GAA, the “nebulous” standard of care
articulated by Dr. Smith “is an impossible standard for anyone to meet. In short, this
is a legal standard (and a dubious one at that) masquerading as a standard of care.”
Whether Dr. Smith’s opinions regarding the applicable standard of care are correct,
however, is an issue for summary judgment, not a motion to dismiss under Chapter
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74. See Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, 199 n.2 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (citing Sanjar v. Turner, 252 S.W.3d 460,
467 n.6 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding that doctor’s
arguments that he did not owe duty to patient as described in expert report was issue
for summary judgment rather than motion to dismiss) and Wissa v. Voosen, 243
S.W.3d 165, 169–70 (Tex. App.—San Antonio 2007, pet. denied) (same)).
Citing to Methodist Hospital of Dallas v. King, GAA also argues that Dr.
Smith’s report is deficient with respect to causation because Dr. Smith simply
concludes, without explanation, that Dr. Shaw’s failure to train and ensure that
proper “protocols” are followed resulted in Alex’s injuries. 365 S.W.3d 847 (Tex.
App.—Dallas 2012, no pet.). King, however, is distinguishable because in that case,
the court noted that the plaintiff, not the expert, “infer[red] a breach by Methodist
based on the occurrence of King’s fall, gaps in the medical records, and breaches by
Methodist’s personnel.” 365 S.W.3d at 851. The court further noted that “[a]lthough
in some instances it may be permissible for an expert to make inferences in a report
based on medical history or other facts, [the expert]’s report does not make such
inferences, and we are precluded from guessing as to what she meant or intended
with respect to how Methodist’s alleged breaches caused King’s fall.” Id. (citing
Palacios, 46 S.W.3d at 878). Here, Alex’s expert, Dr. Smith, drew reasonable
inferences about Dr. Shaw’s breaches from gaps in the medical records. She also
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explained how each of those breaches led to Alex’s sternal dehiscence. This is
sufficient under section 74.351. See Patel v. Williams, 237 S.W.3d 901, 905–06
(Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently
set forth causation when it presented chain of events beginning with contraindicated
prescription and ending with patient’s death).
Because Dr. Smith’s report satisfies Chapter 74’s requirements with respect
to Alex’s negligence claim against Dr. Shaw, the trial court did not abuse its
discretion by finding the report adequate as to Alex’s claim that GAA is vicariously
liable for Dr. Shaw’s actions. TTHR Ltd. Partnership v. Moreno, 401 S.W.3d 41, 44
(Tex. 2013). Furthermore, because the trial court did not abuse its discretion by
finding the report adequate as to Alex’s claim that GAA is vicariously liable for Dr.
Shaw’s action, Alex’s suit against GAA can continue in its entirety and we need not
consider whether the report is also sufficient with respect to Alex’s direct liability
claim against GAA. See Potts, 392 S.W.3d at 632.
We overrule GAA’s first, second, third, and fourth issues.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
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