Methodist Hospitals of Dallas D/B/A Methodist Health System and D/B/A Methodist Dallas Medical Center v. Jesus Nieto, Richardo Felipe Nieto, Jesse Nieto, and Orlando Nieto, Each Individually and as Heirs of the Estate of Mary Jessie Alvarez

AFFIRMED; Opinion Filed August 22, 2019.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01073-CV

METHODIST HOSPITALS OF DALLAS D/B/A METHODIST HEALTH SYSTEM AND
D/B/A METHODIST DALLAS MEDICAL CENTER, Appellant
V.
JESUS NIETO, RICHARDO FELIPE NIETO, JESSE NIETO, AND ORLANDO NIETO,
EACH INDIVIDUALLY AND AS HEIRS OF THE ESTATE OF MARY JESSIE
ALVAREZ, DECEASED, Appellee

On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-02115

MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
In consolidated interlocutory appeals, appellant Methodist Hospitals of Dallas d/b/a

Methodist Health System and d/b/a Methodist Dallas Medical Center (Methodist) challenges the

trial court’s orders denying its first and second motions to dismiss the health care liability claims

of appellees Jesus Nieto, Richardo Felipe Nieto, Jesse Nieto, and Orlando Nieto, each individually

and as heirs of the estate of Mary Jessie Alvarez, deceased (the Nietos). Methodist argues that the

trial court abused its discretion in denying the motions to dismiss because the expert reports were

so lacking in substance they constituted “no report” at all, and because the amended expert report

did not address how and why the actions or inactions of Methodist and its nurses caused the

premature discharge of Mary Jessie Alvarez (Mrs. Alvarez). We affirm.
 BACKGROUND AND PROCEDURAL HISTORY

On February 15, 2016, Dr. Theresa Patton, M.D., assisted by Dr. Melodi Reese-Holley,

M.D., performed a robotic-assisted total laparoscopic hysterectomy with bilateral salpingectomy

on Mary Jessie Alvarez at the Methodist Dallas Medical Center. The procedure began at 12:39

p.m. and ended at 2:40 p.m., and following post-operative recovery, Mrs. Alvarez was discharged

at 8:30 p.m. She continued to experience severe pain after arriving home, and the next day her

husband called the doctors’ surgical practice, Kessler Women’s Healthcare, and complained that

his wife was suffering severe post-surgical pain. Dr. Reese-Holley instructed Mr. Alvarez to

double his wife’s pain medication. Mrs. Alvarez’s family discovered her in a state of “extreme

distress” early on the morning of February 17, 2016. After she was transported to Arlington

Memorial Hospital, resuscitative efforts failed and Mrs. Alvarez was pronounced dead at 9:24 a.m.

on February 17, 2016. The cause of death was peritonitis and small bowel perforation.

Mrs. Alvarez’s husband and children (the Nietos), the appellees in these consolidated

appeals, filed suit against the two doctors who performed the surgery, their surgical practice, and

appellant Methodist. The Nietos pleaded negligence causes of action against Dr. Patton, Dr.

Reese-Holley, Kessler Women’s Healthcare, and Methodist. The Nietos’ negligence claims

against Methodist included both direct and vicarious claims. The Nietos alleged that Methodist’s

“acts and/or omissions” were “singularly and/or severally a proximate cause of the occurrence in

question and resulted in Decedent’s death and damages to Plaintiffs.” The Nietos asserted both

survival and wrongful death claims and sought actual damages.

The Nietos timely served expert reports prepared by Dr. Steven McCarus, M.D., and

Patricia Spellman-Foley, R.N. Methodist filed objections to these expert reports and moved to

dismiss, arguing they were so deficient regarding causation they constituted “no report” at all as

to Methodist. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b). The trial court held a hearing

–2–
on the motion to dismiss and it signed an order on August 27, 2018, granting the Nietos a thirty-

day extension of time to cure any deficiencies. See id. § 74.351(c). The trial court’s order granting

the thirty-day extension is the subject of Methodist’s first accelerated interlocutory appeal,

docketed under appellate cause number 05–18–01073–CV.

The Nietos timely filed an amended report from Dr. McCarus, and Methodist again

challenged it as inadequate and moved to dismiss. The trial court held a hearing on the second

motion to dismiss and on October 29, 2018, it signed an order denying Methodist’s second motion.

Methodist filed another accelerated, interlocutory appeal from that order, and this second appeal

was originally docketed under appellate cause number 05–18–01381–CV.

On April 10, 2019, this Court consolidated appellate cause number 05–18–01381–CV into

cause 05–18–01073–CV, and transferred all documents in cause 05–18–01381–CV (which is now

a closed case) into cause number 05–18–01073–CV.

DISCUSSION

1. First Motion to Dismiss

In its first interlocutory appeal, Methodist asserted that the trial court abused its discretion

in denying Methodist’s first motion to dismiss because the Nietos’ expert reports failed to provide

a causal link between any acts or omissions by Methodist or its staff and the injuries allegedly

sustained by Mrs. Alvarez. Hence, the reports were so lacking in substance they constituted “no

report” as to Methodist, and the trial court had no discretion but to dismiss the case with prejudice.

We review a trial court’s decision denying a motion to dismiss based on the adequacy of

an expert report for an abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219,

223 (Tex. 2018) (per curiam). A trial court abuses its discretion if it acts without reference to

guiding rules or principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).

In analyzing a report’s sufficiency under this standard, we consider only the information contained

–3–
within the four corners of the report. Abshire, 563 S.W.3d at 223.

Chapter 74 of the Texas Civil Practice and Remedies Code, also known as the Texas

Medical Liability Act, requires health care liability claimants to serve an expert report upon each

defendant not later than 120 days after that defendant’s answer is filed. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a); Abshire, 563 S.W.3d at 523. Under the Act, a defendant is entitled to

dismissal of a healthcare liability claim if, within 120 days of filing suit, the defendant is not served

with an expert report showing the claim has merit. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a), (b); Post Acute Medical, LLC v. Montgomery, 514 S.W.3d 889, 892 (Tex. App.––Austin

2017, no pet.). The Act has specific requirements for an adequate expert report and requires “an

objective good faith effort” be made to comply with the requirements, but it also authorizes the

trial court to grant one thirty-day extension for the claimant to cure deficiencies in an otherwise

timely filed expert report. See id. § 74.351(c), (l); Post Acute Medical, 514 S.W.3d at 892. “The

trial court should err on the side of granting the additional time and must grant it if the deficiencies

are curable.” Post Acute Medical, 514 S.W.3d at 892 (footnotes omitted).

“Section 74.351 distinguishes between a report that is timely served but deficient and when

no report is served.” Villarreal v. Fowler, 526 S.W.3d 633, 635 (Tex. App.—Fort Worth 2017,

no pet.). “If a report is timely served but deficient, the trial court may grant an extension to cure

the deficiency, and no appeal lies from the extension order.” Id. (citing TEX. CIV. PRAC. & REM.

CODE ANN. §§ 74.351(c), 51.014(a)(9); Ogletree v. Matthews, 262 S.W.3d 316, 320–21 (Tex.

2007)); see also Taton v. Taylor, No. 02–18–00373–CR, 2019 WL 2635568, at *8 (Tex. App.––

Fort Worth June 27, 2019, no pet.) (mem. op). If, however, no report “is timely served, the trial

court has no option but to dismiss the claim, and an appeal lies from the trial court’s failure to do

so, even if it grants an extension.” Villareal, 526 S.W.3d at 636 (citing TEX. CIV. PRAC. & REM.

CODE ANN. §§ 74.351(b), 51.014(a)(9); Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009)).

–4–
 In distinguishing between a deficient report and no report at all, we are guided by the Texas

Supreme Court’s decision in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). “While the Act

thus contemplates that a document can be considered an expert report despite its deficiencies, the

Act does not suggest that a document utterly devoid of substantive content will qualify as an expert

report.” Id. at 549. The court has established the following standard for determining whether a

deficient report is curable:

We conclude that a thirty-day extension to cure deficiencies in an expert report may
be granted if the report is served by the statutory deadline, if it contains the opinion
of an individual with expertise that the claim has merit, and if the defendant’s
conduct is implicated. We recognize that this is a minimal standard, but we think
it is necessary if multiple interlocutory appeals are to be avoided, and appropriate
to give a claimant the opportunity provided by the Act’s thirty-day extension to
show that a claim has merit.

Id. at 557; Post Acute, 514 S.W.3d at 892.

The first report submitted by Dr. McCarus, a board certified obstetrician-gynecologist and

a gynecologic surgeon, opined regarding the premature discharge of Mrs. Alvarez following the

severe bowel perforation and the clinical significance of this delay in the recognition and treatment

of her condition. Dr. McCarus described his qualifications as follows:

My name is Steven McCarus, M.D. I am Board Certified in OB/GYN, currently
licensed to practice medicine in the state of Florida. My office is located at 380
Celebration Place, Celebration, Florida 34747. I am currently in active, full-time,
practice. A copy of my curriculum vitae is attached to this report, which more fully
discusses my background and credentials and is fully incorporated. I am familiar
with the standards of care as they apply to the surgical care provided by Theresa
M. Patton, M.D. and Melodi Reese-Holley, M.D. I am familiar with these standards
based upon my education, training, years of experience, and board certification in
OB/GYN.

I am familiar with the surgical standard of care applicable to the management of
patients and potential and/or actual surgical complications during robotic
hysterectomies. As an ob/gyn, I have cared for numerous patients with the same or
similar clinical circumstances such as those Mrs. Alvarez presented with [sic]. The
standard of care requires that surgeons act as reasonable and prudent physicians
and health care providers in their patient care.

As a gynecologic surgeon, I am also familiar with postoperative complications of

–5–
 surgical patients including but not limited to bowel perforation and the potential for
peritonitis. As a trained and experienced surgeon, I have education, training, and
experience with this complication. As a trained and experienced obstetrician, I have
knowledge of the potential signs and symptoms and when additional studies or
referrals are needed in order to properly evaluate the patient.

I am currently Chief of the Division of Gynecologic Surgery at Florida Hospital
Celebration Health and Associate Professor in the Department of OB/GYN at the
University of Central Florida.

He stated that not only were multiple bowel perforations not recognized by the physicians

“intraoperatively,” but the Methodist nursing staff failed to properly assess Mrs. Alvarez

postoperatively, resulting in her premature and unmonitored discharge from the hospital. Dr.

McCarus concluded in part:

It was foreseeable that failing to properly visualize the surgical field for a patient,
like Mrs. Alvarez, would result in a severely perforated bowel. Within reasonable
medical probability, based on the patient’s development of peritonitis and sepsis
following the hysterectomy procedure, and the findings of the medical examiner,
the bowel perforation was caused intraoperatively during the robotic hysterectomy
procedure. Because this bowel perforation was not diagnosed and treated in a
timely fashion, and the patient was discharged from the hospital, unmonitored,
within hours of the injury being sustained, Mrs. Alvarez’s medical emergency
continued to evolve into peritonitis and septic shock on February 16, 2016. By the
time Mrs. Alvarez received emergency medical treatment, she was in septic shock
and was experiencing multi-system organ failure leading to her ultimate demise.

According to Dr. McCarus, the violations of the standard of care that contributed to Mrs. Alvarez’s

premature and unmonitored discharge were a proximate cause of her death.

Nurse Spellman-Foley’s report identified the applicable standards of nursing care and

violations of that standard of care by Methodist employees that allegedly contributed to Mrs.

Alvarez’s premature and unmonitored discharge. Here are the portions of her report that are

relevant to the motions to dismiss:

Standards and Violations of Nursing Postanesthesia Care

Hysterectomy is a surgical procedure with a risk of internal bleeding and impaired
urinary elimination due to mechanical trauma or surgical manipulation. Therefore,
post-surgical care requires monitoring the patient for complications with a focus on
ineffective tissue perfusion, deficiency in fluid volume and acute pain. The standard
of care for assessing for ineffective tissue perfusion is evidenced by changes in skin
–6–
color, bleeding, temperature, pulse pressure and urinary output. The standard of
care in assessing for deficient fluid volume is evidenced by fever, diminished
urinary output and tachycardia. The standard of care required for assessing acute
pain is evidenced by verbal reports, muscle guarding and changes in vital signs.

In this case, Marla D. Curry, RN and Jane M. Swanson, RN failed to examine the
abdomen for tenderness by palpation and distention, especially when the patient
consistently made compliant [sic] of abdominal pain (“5/10”). Any guarding,
rigidity, mass and distention should have been noted including fluid balance with
intake and output measurements. In this case, the nursing team at Methodist Dallas
Medical Center fell below the standard of care by conducting inadequate and
untimely gastrointestinal post-op assessments of Mrs. Alvarez which ultimately
lead to premature discharge and unmonitored development of peritonitis.

The standard of care for post-op genitourinary assessment requires the patient to
void at least 250 ml of urine prior to discharge for same-day surgery patients. Urine
volume below the minimum threshold amount indicates inadequate vascular
volume and the potential for acute renal failure. It is standard to note the amount
and color of urine, including the presence of blood in urine at all times. The standard
of care also requires the use of bladder scanner [sic] to detect retained urine in the
bladder.

In this case, Marla Curry, RN reported that, during Mrs. Alvarez’s two hour stay in
PACU [post-anesthesia care unit], she did not void before leaving PACU for the
ward. And while she was at the ward, only an hour before her discharge about 1900,
Jane Swanson, RN, noted that Mrs. Alvarez voided a very small amount of urine
with complaint of burning sensation. Nurse Swanson further noted that she assisted
Mrs. Alvarez to the bathroom and she was unable to void and that patient was very
drowsy. The chart notations indicate that the nursing team was very much aware of
the fact that the patient was not voiding adequately post-op and prior to discharge.

Since urinary retention result from complicated surgery procedures such as
hysterectomy, at least, a bladder scan should have been performed to measure the
amount of urine in the bladder to assess for cause of urinary retention. Mrs.
Alvarez’s verbal statement of “I feel like my bladder is empty” is inadequate to
measure urinary retention. The standard of measuring urine by bladder scanning
should have been implemented to rule-out urinary retention to prevent
complications. Furthermore, the compliant [sic] of a burning sensation indicated
concentrated urine and likely development of infection, requiring adequate
monitoring to prevent peritonitis. After five hours of post-surgical procedure, it was
reported that Mrs. Alvarez voided only a small amount of urine which was well
below the standard of 250 ml prior to discharge. Mrs. Alvarez did not meet the
clinical pathway for same-day discharge and there is no recorded documentation of
any advanced practice providers being notified of Mrs. Alvarez’s failure to meet
milestones. Due to the inadequate assessment of the genitourinary system, the
nursing team fell below the standard of care which led directly to premature
discharge and unmonitored development of peritonitis.

The patient’s vital signs at an interval determined by the facility and according to
–7–
the patient’s condition is essential in the post-surgical care. It is important for the
patient to achieve normothermia at all times and before discharge to rule-out
infection or sepsis. It is the standard requirement that the patient’s blood pressure,
pulse and respiratory rate should remain within 20% of pre-operative baseline. Vital
signs should focus on pulse rate to note tachycardia for pain and possible
perforation or emerging symptoms of fluid volume deficit.

In this case, during Phase II assessment, Mrs. Alvarez was noted to have had
tachycardia as documented by Jane Swanson, RN. Her heart rate increased to 102
with consistent complaints of abdominal pain, but Jane Swanson, RN did not
conduct any intervention or assessment to rule-out complications. Accordingly,
Mrs. Alvarez did not meet the clinical pathway for same-day discharge and there is
no recorded documentation of any advanced practice providers being notified of
Mrs. Alvarez’s failure to meet milestones. Due to the inadequate vital signs
assessment, the nursing team at Methodist Dallas Medical Center fell below the
standard of care which directly lead to premature discharge and unmonitored
development of peritonitis.

Finally, the standard of care requires that patients may be discharged from the post-
surgical only when they are physiologically ready. Among patient teaching on
infection, bleeding and emergency room access, the patient’s pain level should be
evaluated and acceptable before discharge. Nausea should be at a minimum before
discharge. Documentation of all intake and output, including adequate urinary and
GI should be noted. In this case, Mrs. Alvarez was in active pain and with no
adequate urinary output before discharge only five hours after surgery.

Discharging a patient after five hours of surgical operation under these
circumstances was not indicated and this patient did not meet the clinical pathway
guidelines for outpatient discharge. Furthermore, Mrs. Alvarez did not meet the
clinical pathway for same-day discharge and there is no recorded documentation of
any advanced practice providers being notified of Mrs. Alvarez’s failure to meet
milestones. Mrs. Alvarez should have been admitted and monitored overnight until
clinically indicated. Therefore, due to the inadequate assessment and premature
discharge, the nursing team fell below the requisite standard of care.

Conclusion

It is my opinion that the nursing staff at Methodist Dallas Medical Center failed to
timely and appropriately discharge Mrs. Alvarez from the post-surgical unit.
Furthermore, the nursing staff at Methodist Dallas Medical Center failed to timely
recognize and treat the signs and symptoms of small bowel perforation, which
ultimately lead to development of peritonitis, septic shock and Mrs. Alvarez’s
eventual demise. The failure to timely and appropriately assess and monitor the
patient, in addition to the failure to identify and properly treat her post-surgical
complications, was a departure from the accepted standard of nursing care. It is my
opinion, to a reasonable degree of medical probability, that appropriate post-op
assessment and monitoring of Mrs. Alvarez would have led to the discovery of
severe post-surgical complications related to her severe bowel perforation. The
failure of Methodist Hospital nurses to properly assess and monitor Mrs. Alvarez
–8–
 and administer post-surgical care fell below the requisite standard of care.

All of the opinions expressed in this report are based on my review of the medical
records from Methodist Dallas Medical Center and I reserve the right to modify
and/or supplement any opinions contained herein.

Methodist asserts that Dr. McCarus, the causation expert, offered no causation opinion

linking the alleged breach of the standard of care by Methodist or its nurses to the injuries, harm,

and damages claimed by the Nietos. Thus, Methodist argues, his report constituted “no report” at

all as to Methodist. The Nietos do not dispute that Dr. McCarus’s first report was inadequate

regarding causation, but they maintain that the combined reports were nonetheless a good faith

effort to satisfy the statutory requirement, and that they were not “utterly devoid of substantive

content.” See Scoresby, 346 S.W.3d at 549. We agree. Scoresby characterizes the standard for

granting a thirty-day extension as “minimal” and “lenient,” and that an opinion’s inadequacies are

deficiencies a plaintiff should be given a chance to cure if it is possible to do so. Id. at 549, 557.

Therefore, applying Scoresby, we conclude the Nietos satisfied this standard and that the

trial court did not abuse its discretion in granting the Nietos a thirty-day extension to cure the

deficiencies in their expert reports. See id. at 549 (Chapter 74’s “lenient standard avoids the

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

demonstrate that his claim is not frivolous.”); Wheeler v. Methodist Richardson Med. Ctr., 05–17–

00332–CV, 2017 WL 6048153, at *4 (Tex. App.––Dallas Dec. 7, 2017, pet. denied) (mem. op.).

Because the trial court granted an extension of time to cure the deficiencies in the expert reports

originally filed by the Nietos, we lack jurisdiction over the trial court’s implicit denial of

Methodist’s first motion to dismiss, and we dismiss Methodist’s issue. See Certified EMS, Inc. v.

Potts, 355 S.W.3d 683, 689 (Tex. App.––Houston [1st Dist.] 2011) (dismissing issues related to

defendant’s interlocutory appeal of trial court’s denial of defendant’s first motion to dismiss

because original reports were sufficient to implicate defendant’s conduct and because trial court

–9–
granted an extension of time to cure deficiencies in original reports; thus, court lacked jurisdiction

over the appeal of the denial of the first motion to dismiss) (opinion on rehearing), aff’d on other

grounds, 392 S.W.3d 625 (2013).

2. Second Motion to Dismiss

In its second interlocutory appeal, Methodist argued the trial court abused its discretion in

denying Methodist’s second motion to dismiss because the expert reports did not address how and

why the actions or inactions of Methodist and its nurses caused the premature discharge of Mrs.

Alvarez. Thus, we should reverse the trial court’s order and dismiss the Nietos’ health care liability

claims against Methodist with prejudice, and remand this case to the trial court for a determination

of reasonable attorneys’ fees.

“[T]he purpose of the expert report requirement is to weed out frivolous malpractice claims

in the early stages of litigation, not to dispose of potentially meritorious claims.” Abshire, 563

S.W.3d at 223. An expert report is sufficient under the Act if it “provides a fair summary of the

expert’s opinions . . . regarding applicable standards of care, the manner in which the care rendered

. . . failed to meet the standards, and the causal relationship between that failure and the injury,

harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Abshire, 563

S.W.3d at 523. “Importantly, the trial court need only find the report constitutes a ‘good faith

effort’ to comply with the statutory requirements.” Abshire, 563 S.W.3d at 523; see TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(l). The report is adequate if it contains sufficient information

(1) informing the defendant of the specific conduct called into question, and (2) providing a basis

for the trial court to conclude the claims have merit. Abshire, 563 S.W.3d at 523; Baty v. Futrell,

543 S.W.3d 689, 693–94 (Tex. 2018). A report need not marshal all of the claimant’s proof, but

a report that merely states the expert’s conclusions about the standard of care, breach, and

causation is insufficient. Abshire, 563 S.W.3d at 223.

–10–
 One expert need not address the standard of care, breach, and causation; multiple expert

reports may be read together to determine whether the requirements have been met. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(i); Abshire, 563 S.W.3d at 223. 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. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632

(Tex. 2013). A court may not “fill gaps” in an expert report by drawing inferences or guessing

what the expert likely meant or intended. Patterson v. Ortiz, 412 S.W.3d 833, 835–36 (Tex.

App.—Dallas 2013, no pet.). But a report’s adequacy does not depend on the use of any particular

“magic words.” See Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2017). Moreover, an adequate

expert report does not have to meet the same standards as the evidence offered in a summary

judgment proceeding or at trial. See Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d

510, 517 (Tex. 2017) (per curiam).

In this case, we must look to both Dr. McCarus’s amended report and Nurse Spellman-

Foley’s report to determine whether the trial court abused its discretion in concluding that those

reports, considered together, demonstrated a good faith effort to comply with the Act’s

requirements. See Abshire, 563 S.W.3d at 223–24. Methodist argues that the causation opinion

presented by the Nietos is conclusory because it never establishes what signs and symptoms would

have caused a doctor to postpone discharge or otherwise be concerned for the health of Mrs.

Alvarez at or before her discharge. To the extent Spellman-Foley presented examples of actions

that the nurses could have taken, it was up to Dr. McCarus to explain how and why those actions

would have changed the outcome. Dr. McCarus, in other words, was required to explain how

proper assessment and monitoring would have changed the physician’s decision to discharge.

Even if Spellman-Foley’s report accurately and sufficiently established the nurses’ standard of

care and the breaches of that standard, it was, argues Methodist, the responsibility of Dr. McCarus

–11–
to “‘convincingly tie the alleged departure from the standard of care to specific facts of the case.’”

Hickory Trail Hosp., L.P. v. Webb, No. 05–16–00663–CV, 2017 WL 677828, at *7 (Tex. App.––

Dallas Feb. 21, 2017, no pet.) (mem. op.) (quoting Gray v. CHCA Bayshore L.P., 189 S.W.3d 855,

855 (Tex. App.––Houston [1st] 2006, no pet.)).

Spellman-Foley opined regarding the following standards of nursing care and how they

were allegedly breached: (l) Methodist nurses Marla D. Curry and Jane M. Swanson failed to

examine Mrs. Alvarez’s abdomen for tenderness by palpation and distention, even when the patient

consistently complained about abdominal pain; (2) the nursing team at Methodist conducted

inadequate and untimely gastrointestinal post-operative assessments of Mrs. Alvarez––i.e.,

monitoring her urine output and using a bladder scanner to detect retained urine in the bladder––

that ultimately led to premature discharge and unmonitored development of peritonitis; (3) the

nursing team at Methodist failed to notify any advanced practice providers regarding Mrs.

Alvarez’s failure to meet the clinical pain-control discharge milestones; (4) the nursing team at

Methodist failed to notify any advanced practice providers regarding Mrs. Alvarez’s failure to

meet genitourinary discharge milestones; and (5) Mrs. Alvarez did not meet the clinical pathway

guidelines for same-day outpatient discharge and there is no recorded documentation of any

advanced practice providers being notified of Mrs. Alvarez’s failure to meet same-day outpatient

discharge milestones; and (6) the nursing team at Methodist failed to timely and appropriately

assess and monitor Mrs. Alvarez, in addition to failing to identify and properly treat her post-

surgical complications, and an appropriate post-operative assessment and monitoring of Mrs.

Alvarez would have led to the discovery of severe post-surgical complications related to her severe

bowel perforation.

According to the Nietos, the following portion of Dr. McCarus’s amended report linked

the alleged failures to observe and/or report identified in Spellman-Foley’s report to Mrs.

–12–
Alvarez’s injuries and eventual death:

For additional clarification, I reviewed the expert report of Patricia Spellman-Foley,
RN dated June 21, 2018, who opined at length regarding the multiple failures by
Methodist Dallas to timely and appropriately monitor and assess Mary Alvarez
post-operatively. The failures to appropriately observe, monitor, and assess this
postoperative patient resulted in Mary Alvarez being prematurely discharged from
the hospital within hours of the injury being sustained. The multiple violations of
the standard of care that led to premature discharge resulted in the unmonitored
development of peritonitis and septic shock, and, in reasonable medical probability,
were a proximate cause of the damage, injuries, and the eventual death of Mrs.
Alvarez. Due to Mary Alvarez’s subsequent development of peritonitis, septic
shock, and related deterioration, has [sic] she been appropriately observed,
monitored and assessed at Methodist Dallas, in reasonable medical probability, her
injury would have been discovered before her condition became life-threatening
and appropriate intervention would have likely prevented her demise.

We conclude that the Nietos’ expert reports, considered together, demonstrate a good faith

effort to comply with the statutory requirements. See Abshire, 563 S.W.3d at 223–24.1 Nurse

Spellman-Foley described the breaches of the standards of care and the nursing staff’s role in Mrs.

Alvarez’s premature discharge. Her opinions on the standard of care and breach, which Methodist

does not challenge, are directed at the nurses’ alleged substandard, post-operative monitoring and

reporting of Mrs. Alvarez’s condition to the physicians who made the decision of when she was to

be discharged. Dr. McCarus’s amended report draws a direct line from the nurses’ failure to

properly document and report Mrs. Alvarez’s condition, to a delay in diagnosis and proper

treatment of the sepsis, and to her eventual death. See id. at 225. He opined that if she had been

“appropriately observed, monitored and assessed at Methodist Dallas, in reasonable medical

1
Methodist does not challenge Nurse Spellman-Foley’s statement of the standard of care or the nurses’ alleged breaches of it.
It challenges Dr. McCarus’s opinion on causation, arguing in part that to the extent Spellman-Foley opined “about inappropriate
discharge and inappropriate treatment of small bowel perforation, physicians are solely responsible for discharge and treatment
decisions.” Methodist, however, does not cites any legal authority to support this statement. Furthermore, we are aware that only
qualified physicians may render an opinion on causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C); Abshire, 563
S.W.3d at 224, n. 8. But as we noted earlier, a single expert need not address all liability and causation issues concerning each
healthcare provider. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); Abshire, 563 S.W.3d at 223. It is not unusual to have
combined reports in a case such as this, which involves (at least in part) nursing care, because a nurse is qualified to opine as to the
standards of care and breach of those standards, but a physician’s opinion is needed to opine on whether those breaches were a
proximate cause of the injury or injuries on which the suit is based. See Abshire, 563 S.W.3d at 223-24. Expert reports from a
doctor and a nurse may be considered together to determine whether there has been a good faith effort to comply with the Act’s
requirements. See id.

–13–
probability, her injury would have been discovered before her condition became life-threatening

and appropriate intervention would have likely prevented her demise.” This draws a direct causal

link between the Methodist nurses’ failure to meet their standard of care in observing and

monitoring Mrs. Alvarez and––based on the monitoring they did conduct, which showed that she

failed to meet the criteria for discharge––Mrs. Alvarez’s premature discharge. It also linked the

premature discharge to her cause of death, stating that allowing the unmonitored development of

a rapidly evolving infection to progress to peritonitis and septic shock was a proximate cause of

Mrs. Alvarez’s death. The amended report states that had her clinical condition been monitored

appropriately, she would not have been prematurely discharged, and the apparent cause of her

rapidly-deteriorating condition would have been timely discovered before her condition became

life-threatening, such that appropriate intervention would have likely prevented her death.

Accordingly, the trial court did not abuse its discretion in denying Methodist’s second

motion to dismiss, and we overrule appellant’s issue. Because we lack jurisdiction, we do not

address the portion of this consolidated interlocutory appeal that concerns Methodist’s first motion

to dismiss. We affirm the trial court’s order denying Methodist’s second motion to dismiss.

/Lana Myers/
LANA MYERS
JUSTICE

181073F.P05

–14–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

METHODIST HOSPITALS OF DALLAS On Appeal from the 193rd Judicial District
D/B/A METHODIST HEALTH SYSTEM Court, Dallas County, Texas
AND D/B/A METHODIST DALLAS Trial Court Cause No. DC-18-02115.
MEDICAL CENTER, Appellant Opinion delivered by Justice Myers.
Justices Osborne and Nowell participating.
No. 05-18-01073-CV V.

JESUS NIETO, RICHARDO FELIPE
NIETO, JESSE NIETO, AND ORLANDO
NIETO, EACH INDIVIDUALLY AND AS
HEIRS OF THE ESTATE OF MARY
JESSIE ALVAREZ, DECEASED,
Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is

AFFIRMED. It is ORDERED that appellees JESUS NIETO, RICHARDO FELIPE NIETO,

JESSE NIETO, AND ORLANDO NIETO, EACH INDIVIDUALLY AND AS HEIRS OF THE

ESTATE OF MARY JESSIE ALVAREZ, DECEASED recover their costs of this appeal from

appellant METHODIST HOSPITALS OF DALLAS D/B/A METHODIST HEALTH SYSTEM

AND D/B/A METHODIST DALLAS MEDICAL CENTER.

Judgment entered this 22nd day of August, 2019.

–15–