El Paso Healthcare System, Ltd. D/B/A Las Palmas Medical Center v. Santiago Monsivais, by and Through His Next Friends Cinthia Monsivais and Samuel Monsivais and Cinthia Monsivais and Samuel Monsivais, Individually

ACCEPTED
08-18-00043-CV
EIGHTH COURT OF APPEALS
EL PASO, TEXAS
08-18-00043-CV 5/18/2018 12:06 PM
DENISE PACHECO
CLERK

No. 08-18-00043-CV
COURT OF APPEALS FOR THE
FILED IN
EIGHTH DISTRICT OF TEXAS 8th COURT OF APPEALS
EL PASO, TEXAS
EL PASO HEALTHCARE SYSTEM, LTD., dba
5/18/2018 12:06:57 PM
Las Palmas Medical Center, DENISE PACHECO
Appellant Clerk

v.
SANTIAGO MONSIVAIS, Deceased By and Through His Next Friends
Cinthia Monsivais and Samuel Monsivais and Cinthia Monsivais and
Samuel Monsivais, Individually,
Appellees.
On Appeal from the County Court at Law No. 3
El Paso County, Texas
Cause No. 2017DCV1526
APPELLEES’ BRIEF
JOE P. LOPEZ, IV
State Bar No. 12566435
jlopez@jrlawfirm.com
RASANSKY LAW FIRM
2525 McKinnon, Suite 550
Dallas, Texas 75201
(214) 651-6100
(214) 651-6150 (Fax)
 TABLE OF CONTENTS
Table of Authorities ii.
Statement of Facts v.
Summary of the Argument v.
Background 1
Argument 11
Conclusion 33

i.
 TABLE OF AUTHORITIES
Cases
Abshire v. HealthSouth Rehab. Hosp. of Beaumont, L.L.C.,
No. 09-16-00107-CV Tex.App. LEXIS 2730, 2017,
WL 1181380 (Tex.App.—Beaumont March 30, 2017, pet. filed) 18, 24, 25

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873 (Tex.2001) 28, 31

Blan v. Ali, 7 S.W.3d 741(Tex.App.-Houston [14th Dist.] 1999, no pet.) 21

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) 22

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex.2002) 22

Certified EMS, Inc. dba CPNS Staffing v. Potts,
392 S.W.3d 625 (Tex. 2013) 27, 28, 29, 30, 31, 32, 33

Denton Reg’l Med. Ctr. V. La Croix, 947 S.W.2d 941, 950
(Tex.App.—Fort Worth 1997, pet. denied) 20, 21, 23

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, (Tex.1985),
cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) 22, 23

Exxon Pipeline Co. v. Zwahr 88 S.W.3d 623, 629 (Tex. 2002) 22

Hall v. Huff, 957 S.W.2d 90, 101 (Tex. App.-Texarkana 1997, pet. denied) 21

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) 22

Hood v. Phillips, 554 S.W. 2d 160, 165 (Tex.1977) 21

In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) 32

ii.
In Re McAllen Medical Center, Inc., 275 S.W.3d 458,
463 (Tex. 2008) 34

Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010) 11

Loaisiga, v. Cerda 379 S.W.3d 248 (Tex. 2012) 32

Methodist Hosp. v. German, 369 S.W.3d., 333, 343
(Tex. App.—Houston [1st Dist.] 2011, pet. denied) 11, 12, 13, 14, 15

Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011) 31

Reed v, Granbury Hosp. Corp., 117 S.W.3d 404, 415
(Tex.App.—Ft. Worth 2003, no pet.) 18, 19

Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011) 32

TTHR Ltd. v. Moreno, 401 S.W.3d 41 (Tex. 2013) 26, 27, 28, 29

Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972) 21

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009) 11

Other Authorities
Act of June 11, 2003, 78th Leg., R.S., Ch. 204,
§ 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884 31

Texas Administrative Code 13

22 Tex. Admin. Code § 217.11 13, 14, 16, 17

Medical Practice Act §151.002(a)(13) 23

Tex. Civ. Pr. & Rem. Code §51.014(a)(9) 27

Texas Hospital Law: Liability & Damages §3.1.1 at 3-3 20, 21

iii.
Texas Occ. Code, Ann. §151.002(a)(13) (West Supp. 2016) ……..14, 23, 26

Tex. Occ.Code Ann. §§ 301.001–301.3607
(West 2004 & West Supp. 2010) 13, 14

Tex. Occ.Code Ann. § 301.002(2) (West Supp. 2010) … 14, 17

Tex. Occ.Code. § 301.004(b) 14

Nursing Practice Act; 22 Tex. Admin. Code §§ 213.1–227.6 (2010) 13

iv.
 STATEMENT OF FACTS
Appellees want to correct or clarify the following: Specifically, in Roman

Numeral II of the Appellant’s Statement of Facts, Appellant makes reference to

Plaintiffs’ Amended Original Petition. However, Plaintiffs (Appellees herein),

previously filed a Second Amended Petition which is the live pleading in this case

therein identifying RN Jimenez and Paramedic Bustos by name and adding a cause

of action for Negligent Supervision and/or Control.

SUMMARY OF THE ARGUMENT
As per Dr. Dallas Johnson’s supplemental expert report, (CR 107-129), the

standard of care was for all LPMC ED personnel to thoroughly, accurately, and

completely examine, assess, observe, and treat Santiago. (CR119). The standard of

care in emergency departments is to obtain and record a thorough and complete

medical history. (CR 120).

As per Dr. Johnson’s report, the standard of care required a thorough,

accurate, and complete history and examination of all reasonable and pertinent

information before proceeding with a diagnosis and treatment plan. (CR 127, 128).

In addition, the standard of care required LPMC to conduct a through ( sic), detailed,

and accurate analysis of all of the information available to the ED team. (CR 126).

v.
 Background
In its brief, Appellant sets forth some (but not all) of the chronology of events

which Appellant, hereinafter LPMC, encountered and what its non-physician

employees and ER doctor did and/or did not do to care for the decedent, Santiago

Monsivais. (Appellant’s Brief pp. 1-3).

The Appellee’s expert report however describes the actions and omissions of the

hospital (LPMC). Specifically, inter alia, Santiago’s mother, Mrs. Monsivais

initially presented with Santiago at LPMC-ED at 0254 hours with Triage Level

EST3/Urgent on February 20, 2015. (CR 116). At that time, RN Renato Jimenez

noted the “stated complaint” as constipation and the chief complaint as

“GI/Abdominal pain” but did not mention that Santiago had had history of trouble

breathing only one day before when he had been seen by his pediatrician, Dr. Nicolas

Rich, M.D. (CR 111). He was then seen initially at 3:01 a.m. by Michael Bustos,

a Paramedic-Emergency Medical Technician. (CR 123), who likewise, did not

document that Santiago had had history of trouble breathing only one day before

when he had been seen by his pediatrician, Dr. Nicolas Rich, M.D. (CR 111).

According to the medical record, Mrs. Monsivais told Bustos that Santiago

“was experiencing constipation with nausea and vomiting for the previous five hours

and had two episodes of emesis” (i.e., vomiting). (CR 123). Bustos recorded

1
Santiago’s “chief complaint” only as “abdominal pain,” and at 3:14 a.m. reported

that Santiago “was experiencing nausea, constipation that had been constant for [four

to six] hours and feeding problems.” (CR 123). Bustos also recorded that Santiago

“had only one wet diaper in the previous [eight] hours.” (CR 123). Following his

physical examination of Santiago, Bustos reported “[b]owel sounds were not present

and normal in all four quadrants and at the umbilicus.” (CR 123-24). At 3:28 a.m.,

Bustos and Renato Jimenez, a Registered Nurse, reported that Santiago “was lying

quietly with no cry.” (CR 124). Dr. Michael Payne was the Emergency Department

physician who saw Santiago at Las Palmas. In his Emergency Provider Report Dr.

Payne recorded much of the same information recorded by Bustos, but added that

Santiago was exhibiting “fussiness” and was “crying more.” (CR 124. Likewise,

Dr. Payne’s report did not indicate Santiago had been seen the previous day by Dr.

Rich. Dr Payne diagnosed Santiago as suffering from infantile colic and discharged

him. (CR 117, 123). Santiago was discharged from Las Palmas at 3:49 a.m. on

February 20. (CR 116).

Unfortunately, Santiago’s condition continued to deteriorate, and Mrs.

Monsivais took him to Providence Memorial Hospital, where he was admitted at

6:56 a.m. (CR 119). Santiago died later that night at 10:51 p.m. The cause of death

2
was “cardiogenic shock from severe sepsis, secondary to Streptococcus agalactiea,

otherwise known as Group B Strep or GBS.” (CR 119).

Dr. Dallas Jonson’s Supplemental Expert Report

As per Dr. Dallas Johnson’s supplemental expert report, (CR 107-129), the

standard of care was for all LPMC ED personnel to thoroughly, accurately, and

completely examine, assess, observe, and treat Santiago. (CR119). And, the

standard of care in emergency departments is to obtain and record a thorough and

complete medical history. (CR 120).

As per Dr. Johnson’s report, the hospital records reflect that Santiago

presented with a significant medical history. He was born a very healthy normal

infant 16 days before presenting to LPMC. Less than 15 hours before presenting to

LPMC he began to experience changes in his normal behavior. These changes. as

reported by his mother, included decreased bowel and bladder function, emesis, and

difficulty breathing. (CR 119). When a patient, particularly an infant barely two

weeks old, presents with significant signs and symptoms that are not improving,

signs and symptoms that were concerning enough for his mother to seek medical

care a second time in 12 hours, an abundance of caution is required and is the

standard of care. Common sense tells us when there has been no treatment and a

child's medical condition is not getting better there is something wrong with the child
3
and it is incumbent on medical professionals to make every reasonable effort to

determine the cause of the complaints, why they have persisted, and to begin

treatment. Doing nothing meaningful caused Santiago's death.

As per the Appellee’s expert report, the standard of care in emergency

departments in which Dr. Johnson has worked, is to obtain and record a thorough

and complete medical history. (CR 120). In the setting of a very young infant it is

prudent to consider a significant problem exists until reasonable diagnostic efforts

show that it does not exist. When the child's medical history reveals signs and

symptoms incompatible with a healthy two week old infant such as absence of

multiple bowel movements in multiple hours in a 100% breast-fed infant, a single

wet diaper in more than 8 hours, emesis (a mother who has been nursing her child

for all of its life knows the difference between spitting up with burping and vomiting)

are not signs of a well baby. (CR 119, 120).

As per Dr. Johnson, every person from the intake and receiving personnel who

heard Ms. Monsivais state why she brought her infant to the Emergency Department

to the educator who instructed Ms. Monsivais on care of Santiago once discharged

as well as those persons who carried out the patient's discharge from the ED to home

were employees of LPMC. (CR 121). LPMC acting through it employees had a

duty to provide adequate, timely and proper care to Santiago. The standard of care

4
required (1) a thorough and accurate medical history, (2) a physical examination of

Santiago with reporting of pertinent findings, (3) laboratory studies to evaluate the

infant for otherwise unseen signs to explain his symptoms, (4) development of an

assessment and differential diagnosis that used all the information previously

obtained to arrive at a reasonable explanation of and (5) treatment (blood work

including CBC with differential, CRP, and gram stain-IV, and antibiotics

(penicillin), and the administration of IV fluids) for the condition that brought

Santiago to LPMC. (CR 121, 122). (It is noted that generally, only the physician

could diagnose Santiago’s condition and order tests).

In any event, and notwithstanding the foregoing, as per Dr. Johnson, the

medical history taken by LPMC was deficient in that it made no mention of the fact

Santiago had been seen by a board-certified pediatrician less than 12 hours prior to

his arrival at LPMC with no improvement in the same symptoms for which he was

seen by that pediatrician. This was a significant error because it established a firm

time line for Santiago's symptoms and the fact they were continuing unabated and

untreated. This was notice to the LPMC ED staff to be on high alert that something

was continuing to change this infant's behavior and the standard of care was for

LPMC to make every reasonable effort to determine what that something was and

5
to treat it. A cursory and inadequate examination of Santiago was conducted and the

findings were abnormal. (CR 122).

In addition, the observation that the child was "lying quietly without crying”

by Bustos and Jimenez is inconsistent with a diagnosis of infantile colic. (CR. 122).

No fever was reported but, LPMC personnel failed to determine if Santiago's vital

signs were changing during his 55 minute stay at LPMC because the only VS

recorded were those at the time of presentation to LPMC. (CR 122). The standard

of care for the history and examination alone required more investigation of this

infant. (CR 122).

If the LPMC ED team arrived at the diagnosis of infantile colic independently

it was incumbent on individuals who examined Santiago including but not limited

to Paramedic Bustos and Nurse Jimenez to document the other possible diagnoses

associated with Santiago's signs and symptoms including the possibility of a serious

condition including the early stages of an infection. However, they did not and

instead went on to support the incorrect diagnosis of infantile colic.

The failure to document the fact Santiago was seen by his pediatrician, Dr.

Nicolas Rich, 12 hours earlier with the same complaints but who had diagnosed him

with jaundice, with no improvement, was a breach of the standard of care. (CR 122

and RR Vo.2, page 16, line6-10). The failure to adequately observe and record serial

6
VS on an infant who was not improving was a breach of the standard of care. (CR

123). The failure to adequately observe the infant for further evaluation was a breach

of the standard of care. (CR 123). The failure of LPMC ED personnel, including but

not limited to, Bustos and Jimenez to consider anything but a benign diagnosis that

was not supported by the available evidence was a breach of the standard of care.

These breaches of the standard of care resulted in Paramedic Bustos and Nurse

Jimenez, with Dr. Payne's approval, to send Santiago home with instructions and

advice for Ms. Monsivais for a completely benign condition that Santiago did not

have and completely ignore a very serious condition Santiago did have, namely GBS

disease. (CR 123)

Appellee’s expert also points out glaring differences between the reports of

Bustos and Jimenez and those of Dr. Payne which would lead a person to believe

that they were describing completely different patients. (CR 124). As per

Appellee’s expert, this is clearly below the standard of care that requires accurate,

thorough, and complete medical information prior to providing care to a patient.

(CR 124). For example, Appellee’s expert points out that Santiago’s medical records

indicate that he was afebrile, as per Bustos and Jimenez, when he arrived at the

LPMC ED. (CR 125). However, Santiago’s temperature was not recorded by Bustos

or Jimenez when he was discharged to home from the LPMC ED which was a breach

7
of the standard of care. (CR 125). In addition, at the time of discharge, Renato

Jimenez, RN saw the infant and obtained a heart rate that showed a pulse increase

from 127 bpm to 144 bpm from vital signs obtained 47 minutes earlier. This increase

in heart rate was an additional indicator that something of concern was occurring to

Santiago and he had a much more serious condition than infantile colic. An increase

in heart rate is associated with increasing body temperature as in a fever associated

with a bacterial infection such as GBS disease. Ms. Monsivais informed Paramedic

Bustos that her infant was ill. She stated he was not urinating or emptying his bowels

as he normally did and he had two episodes of emesis. Santiago was a 100% breast-

fed infant and such infants have very soft and abundant stool and very rarely become

constipated. This information was passed on to LPMC personnel as part of

Santiago’s history. They took this information as well as the information he obtained

from examining Santiago to form an opinion about Santiago's medical condition

otherwise known as a clinical impression. This clinical impression and the

information included in the patient's medical record led Nurse Jimenez to enter a

diagnosis (primary impression) of infantile colic, a benign and self-limiting newborn

condition. (CR 125, 126).

Santiago's medical record does not support a diagnosis of a benign and self-

limiting newborn condition. However, his medical record contains several elements,

8
including significantly decreased bowel and bladder activity, breathing difficulties,

absent bowel sounds, lethargy, and emesis that should cause prudent physicians and

Emergency Department personnel to seriously consider this infant has a condition

more serious than colic such as a serious infection like GBS. (CR 126).

Again, the standard of care required LPMC to conduct a thorough, detailed,

and accurate analysis of all of the information reasonably available to the ED team.

(CR 126).

The diagnosis of infantile colic also led to teaching by Nurse Jimenez to Ms.

Monsivais about managing infantile colic when her child actually had a much more

serious condition, GBS. (CR 126).

Actions by the LPMC ED personnel led to decisions about disposition of the

child and the educational information to be provided to Ms. Monsivais regarding the

care of Santiago following his discharge to home. The educational material

(including but not limited to, the "Discharge Instructions” which was provided to

Ms. Monsivais, was specifically for infantile colic and made no mention of

warnings, signs, symptoms and necessary actions for a more serious condition such

as GBS. In fact, LPMC’s standard Discharge Instructions stated that the fussiness

and crying were a ''completely normal pattern." LPMC’s Discharge Instructions

went on to state that a medical exam would help determine the causes of most

9
"colicky babies,'' and that in most cases, there is nothing physically or emotionally

wrong with the baby (or the parents). LPMC’s Discharge Instructions went on to

provide instruction to the parent regarding feeding methods and changes in diet only.

The Discharge Instructions also instructed the parent to return or to contact a doctor

if the child experienced certain specified symptoms such as: poor feeding, repeated

vomiting, unexpected changes in crying pattern or behavior, suspected abdominal

pain, etc. The LPMC record clearly shows that Santiago was exhibiting all of the

foregoing symptoms and complaints while at LPMC; yet, LPMC did nothing to

address the complaints and symptoms. LPMC grossly mishandled and mismanaged

Santiago's care and breached the standard of care, which proximately caused his

death. LPMC ED personnel who examined and treated Santiago did not utilize the

information reasonably available to them including, but not limited to, the patient's

history of present illness and chief complaint.

As per Dr. Johnson’s report, the standard of care required a thorough,

accurate, and complete history and examination of all reasonable and pertinent

information before proceeding with a diagnosis and treatment plan. (CR 127, 128).

10
 Argument

1. The Appellee’s Expert Report Does Not Impose a Higher Standard of
Care Than That Allowed by Law.
Challenges to expert opinions ordinarily arise in the context of rulings on their

admissibility, which are reviewed for an abuse of discretion. See Whirlpool Corp.

v. Camacho, 298 S.W.3d 631, 638 (Tex.2009). While it may be true that is not

enough for an expert simply to opine that the defendant’s negligence caused the

plaintiff’s injury, proximate cause need not be proven by expert testimony if it

involved a case of “common sense.” Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex.

2010). In any event, Appellant herein does not raise the issue of proximate cause

in its brief and therefore, it need not be addressed any further other than to point

out that the case at bar is a case involving “common sense.” Doing nothing to

address the patient’s dire condition is not the standard of care required of

Appellant LPMC and its employee staff but, that is exactly what LPMC did,

nothing. (RR Vol. 2, page 23, lines 4-7).

The Appellant argues that the bounds of the standard of care are set by

legislation and regulation promulgated by licensing board and that therefore, an

expert cannot impose a higher standard of care upon a health care provider than

what the law allows. (Appellant’s Brief @ 9 citing Methodist Hosp. v. German,

11
 369 S.W.3d., 333, 343 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). That

case is inapposite to the case at bar.

German was a medical malpractice case against a hospital involving the care

provided by its nurses. Appellee John German was admitted to Methodist Hospital

for surgery to repair a congenital heart defect. A tragic surgical error committed

during his first heart surgery required additional surgeries and interventions. German

survived, but only after suffering the amputation of one leg, one foot, and most of

his fingers. German filed suit to recover damages for injuries arising from the

original surgery and his subsequent course of treatment. After settling with his

doctors, he proceeded to trial against the sole remaining defendant, the Methodist

Hospital. German sought to hold Methodist responsible for the acts of its nurses,

alleging that the nurses failed to notice that he was having a dangerous reaction to

medication, and that their failure to take appropriate action led to the eventual

amputations. German also alleged that Methodist did not properly train its nurses to

recognize and appropriately respond to his symptoms. German at 333.

The jury awarded damages to German based on findings that Methodist was

negligent and was 50% responsible for the injuries. The jury also found that the

hospital had acted with conscious indifference in providing medical care and

awarded exemplary damages. The trial court entered judgment on the verdict in

12
German's favor. Among other things, the hospital contends on appeal that the

evidence was legally insufficient to support the verdict, primarily because critical

testimony by German's expert witness was unreliable and conclusory. German at

333.

As to the theory based on the nurses' alleged failures, Methodist argued that a

critical component of German's proposed standard of care conflicted with Texas law

by effectively requiring the nurses to diagnose German's symptoms as HIT, and

therefore the proposed standard was not supported by any legally sufficient

evidence. (Emphasis added). German at 338.

The German court pointed out that German’s expert witness “could not testify

that the nurses should have diagnosed HIT.” German at 339.

As per the opinion in German, both Methodist and German relied on the

Nursing Practice Act and its implementing regulations in the Texas Administrative

Code as defining the standard of care for nurses applicable to that case. See Tex.

Occ.Code Ann. §§ 301.001–301.3607 (West 2004 & West Supp. 2010) (Nursing

Practice Act); 22 Tex. Admin. Code §§ 213.1–227.6 (2010). Rule 217.11 of the

Texas Administrative Code, entitled “Standards of Nursing Practice,” defines the

“minimum acceptable level of nursing practice” for a given setting. See 22 Tex.

Admin. Code § 217.11. Among the standards applicable to all nurses are the

13
requirements that a nurse know the rationale for, and effects of, medications and

treatments and correctly administer them, as well as, accurately and completely

reporting the patient's signs, symptoms, and responses. Id. § 217.11(1)(C), (D).

(Emphasis added). German at 340.

In defining “professional nursing,” the Nursing Practice Act specifically

excludes “acts of medical diagnosis.” Tex. Occ.Code Ann. § 301.002(2) (West Supp.

2010). Furthermore, the Act specifically states that it “does not authorize the practice

of medicine as defined by Chapter 151” of the Occupations Code. See id. §

301.004(b). The Medical Practice Act defines “practicing medicine” to include “the

diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a

physical deformity or injury by any system or method, or the attempt to effect cures

of those conditions.” Id. §151.002(a)(13). Medical diagnosis is commonly

understood to be the determination of the cause and nature of a patient's condition.

German at 340. Both Methodist and German agreed that nurses cannot legally make

medical diagnoses. German at 340.

The court in German held that “German offered no evidence of any standard

of care effectively requiring the nurses to diagnose HIT. (Emphasis added). German

at 343. The German court went on to state that “This holding does not mean that a

14
nurse has no duty to recognize and appropriately report or otherwise act on the signs

and symptoms of a dangerous allergic reaction.” German at 343. (Emphasis added).

It is interesting to point out that, as per the Texas Department of State Health

Services, the “Nursing Standards of Care” as defined therein, “pertain to

professional nursing activities that are demonstrated by the nurse through the nursing

process. These involve assessment, diagnosis, outcome identification, planning

implementation, and evaluation. The nursing process is the foundation of clinical

decision making and encompasses all significant action taken by nurses in providing

care to all consumers.” (September 1, 2004). (Emphasis added). It uses the word

“diagnosis” as part of “professional nursing activities.”

In addition, Section 217.11 of the Texas Administrative Code; Standards of

Nursing Practice, provides in relevant part that:

The Texas Board of Nursing is responsible for regulating the practice of
nursing within the State of Texas for Vocational Nurses, Registered Nurses,
and Registered Nurses with advanced practice authorization. The standards of
practice establish a minimum acceptable level of nursing practice in any
setting for each level of nursing licensure or advanced practice authorization.
Failure to meet these standards may result in action against the nurse's license
even if no actual patient injury resulted.

The relevant portions of that section provide as follows:

(1) Standards Applicable to All Nurses. All vocational nurses, registered
nurses and registered nurses with advanced practice authorization shall:

…
15
 (F) Promote and participate in education and counseling to a client(s) and,
where applicable, the family/significant other(s) based on health needs;

(H) Make a reasonable effort to obtain orientation/training for competency
when encountering new equipment and technology or unfamiliar care
situations;

(M) Institute appropriate nursing interventions that might be required to
stabilize a client's condition and/or prevent complications;

(N) Clarify any order or treatment regimen that the nurse has reason to
believe is inaccurate, non-efficacious or contraindicated by consulting
with the appropriate licensed practitioner and notifying the ordering
practitioner when the nurse makes the decision not to administer the
medication or treatment;

(P) Collaborate with the client, members of the health care team and, when
appropriate, the client's significant other(s) in the interest of the client's
health care.

In addition, the Texas Occupations Code, Section 301.002 states in relevant part that:

(2) “Professional nursing” means the performance of an act that requires
substantial specialized judgment and skill, the proper performance of which is
based on knowledge and application of the principles of biological, physical, and
social science as acquired by a completed course in an approved school of
professional nursing. The term does not include acts of medical diagnosis or the
prescription of therapeutic or corrective measures. Professional nursing involves:

(A) the observation, assessment, intervention, evaluation,
rehabilitation, care and counsel, or health teachings of a person who is
ill, injured, infirm, or experiencing a change in normal health
processes;

(B) the maintenance of health or prevention of illness.

16
 In the case at bar, the acts of Nurse Jimenez should have included the

observation, assessment, intervention, evaluation, rehabilitation, care and counsel,

of Santiago. In addition, “health teachings” as contained in (2)(A) above, included

the teaching in the case at bar to Ms. Monsivais by Nurse Jimenez of LPMC in the

Discharge Summary about “infantile colic” (although Santiago was not afflicted

with that condition).

Appellant wants this Court to conclude that Appellee was requiring LPMC to

make diagnoses. That is simply not true. Having said that, it is incumbent on the

non-physician personnel to thoroughly, accurately, and completely examine, assess,

observe, and treat Santiago (CR119) and to obtain and record a thorough and

complete medical history. That being said, the standard of care which is set forth

repeatedly by the Appellee’s expert was for LPMC and its ED personnel to

thoroughly, accurately, and completely examine, assess, observe, and treat Santiago

(CR119) and to obtain and record a thorough and complete medical history (CR 120,

121). The standard of care for the history and examination alone required more

investigation of this infant. (CR 122). The standard of care also required accurate,

thorough, and complete medical information prior to providing care to a patient.

(CR 124). Therefore, in view of the foregoing argument and authorities, Dr.

Johnson’s report does not impose a higher standard of care than that allowed by law.

17
 II.

Dr. Johnson’s Supplemental Report Which Sets Forth a Standard of Care for
Las Palmas’ Non-Physician Staff Does Not Amount to the Practice of
Medicine
Appellant argues that a hospital cannot practice medicine and may not be held

liable for functions that require the practice of medicine. (Citing Reed v. Granbury

Hosp. Corp., 117 S.W.3d 404, 415 (Tex.App.—Ft. Worth 2003, no pet.) and Abshire

v. HealthSouth Rehab. Hosp. of Beaumont, L.L.C., No. 09-16-00107-CV Tex.App.

LEXIS 2730, 2017, WL 1181380, at *43 (Tex.App.—Beaumont March 30, 2017,

pet. filed). Appellee incorporates the arguments and authorities set forth in Roman

Numeral I above, as if set forth herein at length.

In Roman Numeral II of its brief, Appellant argues that Dr. Johnson’s

Supplemental Report which sets forth a standard of care for Las Palmas’ non-

physician staff amounts to the practice of medicine. Furthermore, Appellant claims

that Jimenez and Bustos and other “unidentified personnel” failed to, diagnose, order

tests, and treat Santiago. What Dr. Johnson actually said in part, inter alia, was that

standard of care was for LPMC ED personnel to thoroughly, accurately, and

completely examine, assess, observe, and treat Santiago. (CR119). Two of the

“personnel” that Dr. Johnson was obviously referring to were EMT Bustos and RN

Jimenez. The only other person whom Dr. Johnson referred to in his report was the

18
“intake person,” who was not named by LPMC, and, whom Dr. Johnson opined,

should have taken an accurate, thorough, and complete medical history. In addition,

defense counsel for LPMC represented to the trial court at the February 23, 2018,

hearing that Dr. Johnson did not identify the LPMC to whom he is referring in his

report. (RR Vol 3, page 16, lines 8-11). On the contrary, the Plaintiffs’ expert report

is replete with the identification of the LPMC personnel. (CR 120, 122, 123, 124,

125, 126). This matter was raised by Plaintiffs’ counsel at RR Vol. 3, page 30, line

2 – page 32, line 4.

Appellant cites this Court to the case of Reed v. Granbury Hosp. Corp. 117

S.W.3d 404 (Tex.App.—Ft. Worth 2003, no pet.) for the proposition that a hospital

cannot practice medicine and therefore cannot be held directly liable for any acts or

omissions that constitute medical functions.

That case involved an individual (Mr. Reed) who had suffered stroke-like

symptoms and was taken to the hospital. A registered nurse had recently heard on a

television documentary program that the drug t-PA could be used as a clot-busting

treatment for stroke if administered within three hours after a stroke. At the Hospital,

Mrs. Reed told Dr. Don Davis, the emergency-room physician, that she had heard

about t-PA and, "if possible, [she] wanted Jess to get this." On the date of Mr. Reed's

stroke, the Hospital had t-PA available and also had a written policy allowing its

19
administration to cardiac patients. The Hospital did not, however, have a protocol

for administering t-PA to stroke victims, and it had no written standard of care for

stroke patients. Dr. Davis testified that, although he did not rely on the Hospital to

advise him regarding what medical treatments were appropriate for a patient,

including Mr. Reed, he did not consider administering t-PA to Mr. Reed without a

Hospital protocol. The Reeds sued the Hospital for negligence in the medical

treatment Mr. Reed received. The Reed case involved policies and procedures of a

hospital.

Contrary to the appellant’s position, in the instant case, a hospital may in fact,

be liable for injuries arising from the negligent performance of a duty that the

hospital owes directly to a patient. Denton Reg’l Med. Ctr. v. La Croix, 947 S.W.2d

941, 950 (Tex.App.—Fort Worth 1997, pet. denied). (Emphasis added). One such

duty is the duty to use reasonable care in formulating the policies and procedures

that govern the hospital's medical staff and non-physician personnel. Id. The test

used to determine the standard of care a hospital is required to use in formulating its

policies and procedures is what a hospital of ordinary prudence would have done

under the same or similar circumstances. LaCroix, 947 S.W.2d at 950; Texas

Hospital Law: Liability & Damages §3.1.1 at 3-3. Circumstances to be considered

include, but are not limited to, the expertise of, and means available to, the hospital

20
and the state of medical knowledge. Hood v. Phillips, 554 S.W.2d 160, 165

(Tex.1977). Expert testimony is generally required to establish the governing

standard of care and to determine whether the standard has been breached. Id. at 165-

66; LaCroix, 947 S.W.2d at 950. While the standard of administrative care at a

hospital may be established by lay testimony, medical expert testimony is required

where the underlying issue involves the performance of medical procedures.

LaCroix, 947 S.W.2d at 950-51; Texas Hospital Law: Liability & Damages § 3.1.2

at 3-5.

There are certain standards universally regarded as ordinary medical standards

beneath which no common or community standards may fall. Webb v. Jorns, 488

S.W.2d 407, 411 (Tex.1972). This is because universality of education, training,

testing, and travel in the realm of medical treatment have produced a correspondent

right to expect the same basic quality of care from region to region. Hall v. Huff, 957

S.W.2d 90, 101 (Tex. App.-Texarkana 1997, pet. denied). These universal standards

apply to multiple schools of practice and to any medical doctor. Blan v. Ali, 7 S.W.3d

741, 746 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

In the case at bar, LPMC can be held directly liable for the acts and omissions

of its non-physician personnel, such as nurse Jimenez, EMT Bustos, and/or the

intake person. Among other things, as the medical records confirm, those

21
individuals, which the hospital employed, did not record/take an accurate or

complete medical history, did not perform more than one set of vitals, did not

properly adequately observe Santiago, did not adequately examine Santiago, and did

not properly evaluate Santiago, and did not document that Santiago had had history

of trouble breathing only one day before when he had been seen by his pediatrician,

or that Santiago had been seen by his pediatrician less than 12 hours before his

mother brought Santiago to LPMC. (CR 119-129). Those failures, among others

as set forth in Dr. Johnson’s supplemental report, proximately caused the death of

Santiago. (CR 128).

The trial court has broad discretion to determine admissibility, and an

appellate court will not reverse the trial court's ruling absent a clear abuse of that

discretion. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629; Helena Chem. Co. v.

Wilkins, 47 S.W.3d 486, 499; Broders v. Heise, 924 S.W.2d 148, 151. A trial court

abuses its discretion only if it acts arbitrarily and capriciously, without reference to

any guiding rules or principles. See Carpenter v. Cimarron Hydrocarbons Corp., 98

S.W.3d 682, 687 (Tex.2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d

721 (1986). Merely because a trial court may decide a matter within its discretion in

22
a different manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242.

Dr. Johnson set forth his experience and familiarity and special knowledge

with regard to about what protocols, policies, or procedures a hospital of ordinary

prudence, would have had in place for it and its staff and what it and its staff should

have done. (CR 107-109). Again, if the subject matter is common to, and equally

recognized in, all fields of practice, any physician familiar with the subject may

testify regarding the standard of care.

Interestingly, in its brief, Appellant does not set forth what it thinks the

standard of care is. It only seems to maintain that whatever the standard of care is,

the hospital cannot be held directly liable for a breach of it. While a hospital’s

internal policies and procedures do not, alone, determine the standard of care, they

may be considered in determining that standard. La Croix, 947 S.W.2d at 951.

Although it may be the case that medical decisions are to be made by attending

physicians and that a hospital cannot practice medicine, (Tex. Occ. Code, Section

151.002(a)(13)), the actions of RN Jimenez and of EMT Bustos, as well as its intake

staff, did not entail making medical decisions or the diagnosis, treatment, or offer to

treat a physical disease, disorder, or injury. (RR Vol. 2, page 15, lines 5-15). On

the contrary, the facts confirm that Nurse Jimenez, EMT Bustos, and the intake staff,

23
did not make any medical decisions. But, what little they did do, they did so

inadequately and incompletely. (CR 119-129).

Appellant also cites the court to the case of Healthsouth Rehab. Hosp. of

Beaumont and Christus Healthsouth Southeast Texas dba Christus Hospital-St.

Elizabeth v. Abshire, 2017 WL 1181380 (Tex.App.—Beaumont, March 30, 2017,

pet. filed). That was a case involving an accelerated appeal from the trial court's

order overruling the defendants' objections to plaintiff's expert reports and denying

a motion to dismiss plaintiff's health care liability claim. Abshire at *1. Abshire

alleged, as to Christus Hospital, that the health care professionals there who attended

to the patient failed to recognize the signs and symptoms of a spinal compression

fracture resulting in a delay in treatment which caused Ms. Abshire's paraplegia.

They also missed the history of osteogenesis imperfecta that predisposes one to

fractures.

The Plaintiffs in Abshire produced an expert report setting forth the standard

of care which required Christus to: (1) evaluate the cause of Abshire's pain, (2)

examine her back for musculoskeletal problems, (3) consider her relevant prior

medical history, (4) recognize signs and symptoms indicating a compromise of the

musculoskeletal system in Abshire's neck, shoulders, and back, and (5) institute

early stabilization of the spine prior to the establishment of paraplegia. Abshire @*3.

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A hearing was thereafter held on the objections to the expert’s report. The court

found that although Dr. Rushing's report was a good faith effort to comply with

Chapter 74, it did not comply with the requirements of the statute and granted an

extension of time to supplement the expert report. Abshire @*5.

The purpose of Appellant citing the Abshire case seems to be to make the

point that allegedly “a hospital may not be held liable for functions that require the

practice of medicine.” (Appellant’s brief at page 9). That alleged verbiage however,

was merely an argument made by Christus Hospital in the Abshire case and in any

event, is NOT what the Christus argument was. Christus’s argument was that “a

hospital cannot practice medicine and therefore cannot be held directly liable for any

acts or omissions that constitute medical functions.” Abshire at *9.

The trial court in Abshire concluded that “Dr. Rushing's qualifications were

adequate because Rushing had supervised nurses for a fifteen-year period, had

participated in setting medical policy at hospitals, and Rushing oversees

rehabilitation efforts of his patients. The trial court wrote that Dr. Rushing had stated

that the standard of care for the nurses at Christus was “to accurately assess,

document and communicate matters to the physician[ ]” and Dr. Rushing cited

“numerous examples” of a failure of the nursing staff to do so.” Abshire @ 9.

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 Texas Occ. Code, Ann. §151.002(a)(13) (West Supp. 2016) defines

“practicing medicine” as the diagnosis, treatment, or offer to treat a physical disease,

disorder, or injury by a licensed physician or surgeon.

In the instant case, neither Nurse Jimenez or EMT Bustos (or the hospital’s

intake staff for that matter) diagnosed, treated, or offered to treat Santiago. This is

contrary to what defense counsel Norton argued to the trial court. As Dr. Johnson

set forth in his reports, and as stated hereinabove, the standard of care was to properly

and completely assess, evaluate, observe, and examine Santiago, and to take more

than one set of vital signs, and to take an accurate or complete medical history, and

to document that Santiago had had history of trouble breathing only one day before

when he had been seen by his pediatrician. (CR 119, 120).

Appellee’s expert repeatedly sets forth the standard of care for the hospital

and its non-physician staff. Appellant, on the contrary did not, not even once, set

forth what it believes to be the SOC which is applicable to it. Of course, if you

believe LPMC, maybe the standard of care was for it was to do exactly what it and

its employees did for the decedent, to wit, nothing, other than to discharge him with

a diagnosis of infantile colic.

A case which Appellant believes to be relevant is the case of TTHR Ltd. v.

Moreno, 401 S.W.3d 41 (Tex. 2013), which involved a suit against a hospital and

26
two doctors. Plaintiff alleged that the hospital was liable for the injuries to F.C.

because of its own direct negligence, as well as, its vicarious liability for the

negligence of its nurses and the two doctors. Moreno at 43. The hospital objected

to the adequacy of the experts’ two reports and the trial court sustained same. The

Plaintiff was given a thirty-day extension to cure the reports. The Plaintiff then filed

a report of a pediatric neurologist, to which the hospital also objected. The trial court

determined that when the three reports were read in concert, Moreno had met the

TMLA's requirements. It denied the hospital's motion to dismiss, and an

interlocutory appeal followed. See Tex. Civ. Pr. & Rem. Code §51.014(a)(9). The

court of appeals affirmed as to the adequacy of the reports regarding Moreno's claim

that Presbyterian was vicariously liable for the doctors' negligence but, in addressing

the direct liability claims, the court concluded that one of the expert’s report did not

adequately address the applicable standards of care or how Presbyterian breached

those standards, and neither of the reports of the other two experts addressed any

standard or breach by the hospital. Moreno at 43, 44. The court remanded the case

to the trial court and instructed it to consider granting Moreno a thirty-day extension

to cure the deficiencies found on appeal.

After the Supreme Court heard oral argument in that case, it then held in

Certified EMS, Inc. dba CPNS Staffing v. Potts, 392 S.W.3d 625 (Tex. 2013) that

27
the TMLA does not require an expert report for each liability theory pleaded against

a defendant. Certified EMS, Inc., 392 S.W.3d at 632. The Court went on to state that

“our decision in that case controls the outcome here because we conclude that

Moreno's expert reports addressing the hospital's alleged liability for the actions of

Drs. Wilson and Gore-Green are adequate.” Moreno at 44.

The Supreme Court agreed with the court of appeals which held that the trial

court did not abuse its discretion by finding Moreno's reports adequate as to the claim

that the hospital was vicariously liable for the negligence of the doctors. Moreno at

44. The court of appeals’ review of the trial court's ruling was under the abuse of

discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d

873, 877 (Tex.2001).

The Supreme Court went on to state that “as we articulated in Certified EMS,

the TMLA requires a claimant to timely file an adequate expert report as to each

defendant in a health care liability claim, but it does not require an expert report as

to each liability theory alleged against that defendant. Certified EMS, Inc., 392

S.W.3d at 632.” (See also RR Vol 2, page 31, lines 20 - page 32, line 1). Potts went

on to state that “[H]ere, because the trial court did not abuse its discretion in finding

Moreno's reports adequate as to her theory that Presbyterian is vicariously liable for

the doctors' actions, her suit against Presbyterian — including her claims that the

28
hospital has direct liability and vicarious liability for actions of the nurses — may

proceed. See id. at 632.” Moreno at 45.

Potts was a case in which a patient alleged that a hospital nurse, who was

temporarily placed with the hospital by a staffing service, assaulted her. The patient

sued under the Texas Medical Liability Act, asserting that the staffing service was

directly and vicariously liable for the nurse's conduct. The staffing service sought

dismissal because the patient's expert reports did not specify how the service was

directly negligent. Potts at 626. The trial court denied the motion to dismiss, and the

court of appeals affirmed. It held that because the reports support a theory of

vicarious liability against the staffing service, the lack of a description supporting

direct liability is not fatal to the claimant's maintaining her cause of action. The

Supreme Court agreed with the court of appeals, but for different reasons. Potts at

626.

Potts claimed that Certified EMS was directly liable for Nurse Hardin’s

conduct because it failed to properly train and oversee its staff, enforce applicable

standards of care, and employ protocols to ensure quality patient care and adequate

staff supervision.

Similarly, in the case at bar, in Plaintiffs’ Second Amended Original Petition,

which Plaintiffs ask the Court to take judicial notice of, Plaintiffs pled “negligent

29
supervision and control.” (Suppl. CR Vol. 1, p. 14). Plaintiffs alleged therein that

“Defendant Las Palmas Medical Center owed Plaintiffs a legal duty to hire and

supervise and/or control competent workers to do perform the functions in its

emergency department. Defendant Las Palmas Medical Center breached those

duties by hiring and/or by failing to supervise and/or adequately supervise its

workers, which proximately caused the damages and injuries to the plaintiffs for

which plaintiffs seek compensation.” (Suppl. CR Vol. 1, p. 14).

In the Potts case, Certified EMS challenged the reports and the court gave

Potts thirty days to cure the deficiencies. Certified EMS objected to the newly

submitted reports and moved to dismiss on numerous grounds, among them, that the

reports omitted any explicit reference to Certified EMS's direct liability for Hardin's

conduct. The trial court denied the motion, and Certified EMS appealed. The court

of appeals affirmed, holding that "if the claimant timely serves an expert report that

adequately addresses at least ---
one liability theory against a defendant health care

provider, the suit can proceed, including discovery, without the need for every

liability theory to be addressed in the report." (Emphasis added). The Supreme Court

granted Certified EMS's petition for review, which raised a single issue: Must a

claimant in a health care liability suit provide an expert report for each pleaded

liability theory? 55 Tex. Sup. Ct. J. 461 (Mar. 30, 2012).

30
 A report need not cover every alleged liability theory to make the defendant

aware of the conduct that is at issue. Potts (citing Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)), which recognized that an

expert report does not require litigation-ready evidence. Rather, "to avoid dismissal

... [t]he report can be informal in that the information in the report does not have to

meet the same requirements as the evidence offered in a summary-judgment

proceeding or at trial." Id. and RR Vol. 2, page 17, lines 18 – page 19, line 14. For

the particular liability theory addressed, the report must sufficiently describe the

defendant's alleged conduct. Such a report both informs a defendant of the behavior

in question and allows the trial court to determine if the allegations have merit. If the

trial court decides that a liability theory is supported, then the claim is not frivolous,

and the suit may proceed. Potts at 631.

The Potts court stated that “[t]his approach is consistent with the Legislature's

intent. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). ("Our primary

objective in construing statutes is to give effect to the Legislature's intent."). In

amending the Act, the Legislature sought to reduce "the excessive frequency and

severity of ... claims," but to "do so in a manner that will not unduly restrict a

claimant's rights any more than necessary to deal with the crisis." Act of June 11,

2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884. In

31
accordance with this goal, we have opined that one purpose of the report requirement

is "to expeditiously weed out claims that have --
no merit." Loaisiga, v. Cerda 379

S.W.3d 248, 263. (RR Vol. 2, page 19, lines 22-24). (Emphasis added). We have

also stated that the purpose of evaluating expert reports is "to deter frivolous claims,

not to dispose of claims regardless of their merits." Scoresby v. Santillan, 346

S.W.3d 546, 554 (Tex. 2011); see also Loaisiga, at 258 (recognizing that the expert

report "requirements are meant to identify frivolous claims and reduce the expense

and time to dispose of any that are filed"); In re Jorden, 249 S.W.3d 416, 421 (Tex.

2008).” Potts at 631.

To require an expert report for each and every theory would entangle the courts

and the parties in collateral fights about intricacies of pleadings rather than the merits

of a cause of action, creating additional expense and delay as trial and appellate

courts parse theories that could be disposed of more simply through other means as

the case progresses. Cf. Scoresby, 346 S.W.3d at 549 (applying a "lenient standard"

to a plaintiff's right to cure a deficient report, noting that approach "avoids the

expense and delay of multiple interlocutory appeals and assures a claimant a fair

opportunity to demonstrate that his claim is not frivolous"). Potts at 631.

The Supreme Court also pointed out that while a full development of all

liability theories may be required for pretrial motions or to convince a judge or jury

32
during trial, there is no such requirement at the expert report stage. See Palacios, 46

S.W.3d at 879. Potts at 632.

The Act requires the expert report to summarize the expert's opinions "as of

the date of the report," recognizing that those opinions are subject to further

refinement. CPRC§74.351(r)(6). Discovery can reveal facts supporting additional

liability theories, and the Act does not prohibit a claimant from amending her

petition accordingly. Under Potts’ reasoning, a claimant would have to serve an

expert report each time a new theory is discovered. Not only would that be

impractical, it would prohibit altogether those theories asserted more than 120 days

after the original petition was filed — effectively eliminating a claimant's ability to

add newly discovered theories. Potts at 632. In sum, an expert report that adequately

addresses at least one pleaded liability theory satisfies the statutory requirements,

and the trial court must not dismiss in such a case. To the extent other cases hold

differently, we disapprove of them. Potts at 632.

III.

CONCLUSION

The Nightingale Pledge’s first principle, to do no harm, is directly related to

the nurse’s duty to protect the patient’s safety. Born out of the hipocratic oath, this

principle dictates that “we do not cause injury to our patients.”

33
 Likewise, the EMT Code of Ethics provides in relevant part: A fundamental

responsibility of the Emergency Medical Technician is to conserve life, to alleviate

suffering, to promote health, to do no harm, and to encourage the quality and equal

availability of emergency medical care.

Lastly, the standard of care for a hospital is “what an ordinary prudent hospital

would do under the same or similar circumstances.” In Re McAllen Medical Center,

Inc., 275 S.W.3d 458, 463 (Tex. 2008).

It’s a sad day when a new first-time mother takes her 15-day old infant who

was born healthy, to Las Palmas Medical Center (LPMC) complaining that her son

has been suffering from trouble breathing (which was not documented by either the

LPMC intake person, or by RN Jimenez, or by EMT-P Bustos, or by any other

LPMC employee), was experiencing constipation with nausea and vomiting for the

previous five hours, has had two episodes of emesis, has been experiencing feeding

problems, has had only one wet diaper in the previous eight hours, and who has been

seen by his pediatrician only 12 hours before for substantially the same symptoms

(which was also not documented by either the LPMC intake person, or by RN

Jimenez, or EMT-P Bustos), is nevertheless discharged from Las Palmas with a

diagnosis of infantile colic, and is then taken by his mother to Providence Memorial

Hospital, where he is admitted but who dies that night from cardiogenic shock from

34
severe sepsis, secondary to Streptococcus agalactiea, otherwise known as Group B

Strep or GBS.

Although it this writer’s opinion that “common sense” plays a major role in

this case, Dr. Johnson’s reports adequately and repeatedly set forth the appropriate

standard of care applicable to LPMC.

WHEREFORE, PREMISES CONSIDERED, the Court should affirm the trial

court’s order overruling Las Palmas’ objections to Dr. Johnson’s supplemental

report and for such other and further relief to which Plaintiffs may show themselves

to be justly entitled.

Respectfully submitted,
RASANSKY LAW FIRM

/s/ Joe P. López, IV

JEFFREY H. RASANSKY
State Bar No. 16551150
jrasansky@jrlawfirm.com
JOE P. LÓPEZ, IV
State Bar No. 12566435
jlopez@jrlawfirm.com

2525 McKinnon, Suite 550
Dallas, TX 75201
Telephone: (214) 651-6100
Facsimile: (214) 651-6150

ATTORNEYS FOR APPELLEES

35
 CERTIFICATE OF COMPLIANCE

The foregoing Appellee’s Brief complies with the type volume limitations of
Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure because it contains 8,120
words, excluding those parts of the brief exempted by Rule 9.4(i)(1).

/s/ Joe P. Lopez, IV

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was
served upon the following persons pursuant to the Texas Rules of Appellate
Procedure 9.5(b)(1) on this 18th day of May, 2018:

VIA E-SERVICE
Joseph L. Hood, Jr.
Windle Hood Alley Norton
Brittain & Jay, LLP
201 E. Main, Suite 1350
El Paso, Texas 79901
hood@windlehood.com
/s/ Joe P. Lopez, IV

36