Columbia Valley Healthcare System, L.P. A/K/A Valley Regional Medical Center v. Eliseo Guerrero, Individually and on Behalf of the Estate of Hilda Guerrero

NUMBER 13-18-00382-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

COLUMBIA VALLEY HEALTHCARE
SYSTEM, L.P. A/K/A VALLEY REGIONAL
MEDICAL CENTER, Appellant,

v.

ELISEO GUERRERO, INDIVIDUALLY
AND ON BEHALF OF THE ESTATE
OF HILDA GUERRERO, DECEASED, Appellee.

On appeal from the 404th District Court
of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
Appellant Columbia Valley Healthcare System, L.P. a/k/a Valley Regional Medical

Center (VRMC) appeals the trial court’s order denying its motion to dismiss a healthcare
liability claim brought by appellee Eliseo Guerrero, individually and on behalf of the Estate

of Hilda Guerrero, deceased (Guerrero). See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(9). In four issues, which we treat as one, VRMC argues that the trial court

erred in denying its motion to dismiss because Guerrero failed to serve a compliant expert

report as required by the Texas Medical Liability Act (TMLA). See id. § 74.351. We affirm.

I. BACKGROUND 1

On March 4, 2015, Guerrero presented to the VRMC emergency room complaining

of chest tightness, cough, fever, sinus trouble, and a headache. Christian Ellis, M.D

diagnosed Guerrero with acute coronary syndrome 2 and ordered that she receive a

therapeutic dose of enoxaparin, an anticoagulant type of blood thinner. On March 5, Dr.

Ellis updated his diagnostic impression to hypertensive emergency 3 without acute

coronary syndrome. Dr. Ellis indicated in his progress note on that day that he intended

to lower Guerrero’s enoxaparin dose to a prophylactic level. However, Dr. Ellis did not

create a separate physician’s order to change the dosing at that time, and Guerrero

continued to receive a therapeutic dose of enoxaparin for the next two days. On March 6,

Dr. Ellis noted constipation and abdominal discomfort and planned to pursue an

abdominal CT scan and brain MRI. On March 7, Dr. Ellis noted that Guerrero’s blood

1 We derive the factual background from the pleadings and expert reports. See Columbia Valley

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 456 n.5 (Tex. 2017).
2 “Acute coronary syndrome is a term used to describe a range of conditions associated with
sudden, reduced blood flow to the heart.” Acute Coronary Syndrome, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/acute-coronary-syndrome/symptoms-causes/syc-
20352136 (last visited Nov. 3, 2020).

3 “A hypertensive crisis is a severe increase in blood pressure that can lead to a stroke.” Sheldon

G. Sheps, M.D., Hypertensive Crisis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/high-
blood-pressure/expert-answers/hypertensive-crisis/faq-20058491 (last visited Nov. 3, 2020).

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pressure was mildly low. He detected a small hematoma in the left abdominal wall and a

“hematoma of the left rectus abdominis muscle.” On this day, the administration of

enoxaparin was discontinued.

On March 8, Guerrero developed an acute and severe hemorrhage. She was

transferred to the intensive care unit (ICU) where she received repeated blood

transfusions, intubation with mechanical ventilation, renal replacement therapy, and

broad-spectrum antibiotics. Guerrero remained hospitalized until her death on March 24,

2015.

Guerrero sued Dr. Ellis 4 and VRMC alleging health care liability claims. With

respect to VRMC, Guerrero alleged that its nursing staff was negligent in failing to: (1)

properly evaluate Guerrero; (2) properly interpret diagnostic data pertaining to Guerrero’s

condition; (3) “recognize the signs and symptoms of hematoma, renal failure and life-

threatening bleed”; (4) “properly and timely report vital clinical and laboratory results to

the physician”; and (5) discontinue “administration of therapeutic anti-coagulant

medication following the physician’s orders to decrease and/or discontinue the

medication[.]” Guerrero alleged that the continued administration of the anticoagulant at

a therapeutic dose resulted in “multiple hematoma suffered by [Guerrero] caus[ing] her to

lose more than half of her blood volume during her hospitalization, . . . hemorrhagic shock

and her ultimate death.”

Guerrero timely served the expert report of Timothy Niessen, M.D., pursuant to

§ 74.351 of the Texas Civil Practice and Remedies Code. See id. VRMC filed objections

4 Dr. Ellis is not a party to this appeal.
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to the report, and the trial court entered an agreed order granting Guerrero thirty days to

cure the alleged deficiencies in the report. See id. § 74.351(c). Within the thirty-day

window, Guerrero served two amended expert reports by Dr. Niessen.

In his most recent report, Dr. Niessen expressed the following opinions:

• The standard of care for a hospital like VRMC requires clear communication of
orders between the physicians and hospital departments. As a result of the
lack of communication, orders for therapeutic enoxaparin were not
discontinued despite a change in dosage being expressed in the progress
notes. To the extent that VRMC maintains a medical records system that does
not require separate physician orders, this is a deviation of the standard of
care.

• The standard of care for Dr. Ellis required that he enter a separate medication
order. Dr. Ellis deviated from this standard of care by not entering a separate
physician’s order to discontinue therapeutic enoxaparin and replace it with
prophylactic dosing.

• The standard of care requires nurses to monitor the patient’s chart for orders
and continued care, specifically regarding the administration of high-risk
medications such as anticoagulants. The nurses deviated from the standard of
care by ignoring the plan of care set forth by Dr. Ellis in the March 5 progress
notes.

• The standard of care for the nursing staff requires that the documented plan of
care correspond to the executed plan of care. The nursing staff breached the
standard of care by continuing to administer life-threatening anticoagulants to
Guerrero for two days contrary to the documented plan of care and when not
indicated by her presentation. This increased dosage resulted in severe
bleeding, hypotension, 5 and ultimately Guerrero’s death.

• The standard of care for physicians managing patients with hypertensive
emergency requires that the patient be transferred to an intermediate care unit
(IMC) or ICU for the frequent assessment of vital signs and response to
therapy. VRMC and Dr. Ellis deviated from the standard of care by admitting
Guerrero to a general ward with inadequate monitoring of hemodynamic and
laboratory parameters.

5 Hypotension, or low blood pressure, is indicated by “[a] blood pressure reading lower than 90

millimeters of mercury (mm Hg) for the top number (systolic) or 60 mm Hg for the bottom number
(diastolic)[.]” Low Blood Pressure (Hypotension), Mayo Clinic, https://www.mayoclinic.org/diseases-
conditions/low-blood-pressure/symptoms-causes/syc-20355465 (last visited Nov. 3, 2020).
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• The standard of care for the nursing staff provides the nurses with an
independent duty to see that patients are receiving the appropriate level of care
to ensure the adequate monitoring of hemodynamic and laboratory
parameters. VRMC nurses deviated from the standard of care by not initiating
the proper chain of command to address the inadequate level of care and by
not monitoring Guerrero at time intervals appropriate to her required level of
care. Closer monitoring would have, based upon reasonable medical
probability, allowed Guerrero’s condition to be appropriately treated and she
more than likely would have survived the initial negligent treatment.

• In a patient who presented with severely elevated blood pressure, the standard
of care requires the nursing staff to communicate changes in patient condition
to the physicians, including Guerrero’s development of new relative and
absolute hypotension, or low blood pressure. The available medical records do
not contain such communication. The nursing staff’s failure to communicate life
threatening perturbations in vital signs to Dr. Ellis in a timely manner is a
deviation of the nursing standard of care.

• Administering a therapeutic dose of anticoagulants without medical necessity
is a breach of the standard of care by Dr. Ellis and the nursing staff at VRMC.

• Unintended but continued therapeutic administration of anticoagulants and the
subsequent delay in recognition and treatment of hemorrhaging directly
contributed to Guerrero’s death and represent deviations from the standard of
care by Dr. Ellis and by the nursing staff.

• Due to the risks of bleeding, therapeutic anticoagulation is only appropriate for
patients with a compelling indication. Guerrero did not require therapeutic
anticoagulant therapy; therefore, the continued administration of the
medication by the VRMC nursing staff resulted in severe bleeding.

• The risk of bleeding, including life-threatening hemorrhage, with therapeutic
anticoagulation is increased in patients with severe uncontrolled hypertension.
Once the diagnostic impression evolved from acute coronary syndrome to
hypertensive emergency without acute coronary, therapeutic enoxaparin
should have been stopped. Dr. Ellis documented his intention to reduce the
dose in his progress notes. However, the plan was not carried out by either the
nursing, pharmacy or physician staff. This error was not recognized until
Guerrero suffered life-threatening bleeding, which reflects a breakdown of
communication between the physician, pharmacist and nursing staff and a
deviation from the standard of care for both Dr. Ellis and VRMC.

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 • Because anticoagulants increase the risk of bleeding, close monitoring of
patients treated with anticoagulant therapy is necessary. Inadequate
monitoring of therapeutic anticoagulation by VRMC and Dr. Ellis led to a delay
in the recognition and management of acute and severe hemorrhaging
associated with hypotension, tissue ischemia, and end-organ dysfunction.

VRMC filed objections to Dr. Niessen’s report and a motion to dismiss Guerrero’s

claims pursuant to § 74.351(b) of the TMLA. Id. § 74.351(b). VRMC argued that the expert

report was “insufficient to show [VRMC] or its nurses breached any standard of care

applicable to it or that any such breach proximately caused [Guerrero’s] injury or death.”

See id. § 74.351(r)(6). VRMC also argued that there were analytical gaps in Dr. Niessen’s

causation analysis.

Following a hearing, the trial court signed an order denying VRMC’s motion to

dismiss. This interlocutory appeal followed. See id. § 51.014(a)(9).

II. STANDARD OF REVIEW & APPLICABLE LAW

Chapter 74 of the Texas Civil Practice and Remedies Code requires a plaintiff

bringing a healthcare liability suit against a health care provider to timely file and serve

an expert report providing:

[A] fair summary of the expert’s opinions as of the date of the report
regarding applicable standards of care, the manner in which the care
rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.

Id. § 74.351(r)(6); see Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011).

Should a defendant health care provider file a motion challenging the adequacy of

an otherwise timely report, “the court may grant the motion ‘only if it appears to the court,

after hearing, that the report does not represent an objective good faith effort to comply

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with the [TMLA’s] definition of an expert report.’” Baty v. Futrell, 543 S.W.3d 689, 692–93

(Tex. 2018) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l)). To constitute a good

faith effort, the report must (1) inform the defendant of the specific conduct forming the

basis of the claim and (2) provide an evidentiary foundation for the trial court to conclude

that the claim has legal merit. Baty, 543 S.W.3d at 693–94; Bowie Mem’l Hosp. v. Wright,

79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

A report meets the minimum requirements under the statute if it provides an

explanation of “how and why” the defendant’s alleged conduct is factually implicated in

the injury in question; “i.e., but for the act or omission—the harm would not have

occurred.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460

(Tex. 2017) (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per

curiam)). “While the plaintiff is not required to prove her claim with the expert report, the

report must show that a qualified expert is of the opinion she can.” Zamarripa, 526 S.W.3d

at 460. “No particular words or formality are required, but bare conclusions will not

suffice.” Scoresby, 346 S.W.3d at 556; see Zamarripa, 526 S.W.3d at 460. Courts review

the sufficiency of the expert report by looking within the four corners of the report. Abshire

v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam) (citing Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)).

An appellate court reviews the trial court’s ruling on the adequacy of an expert

report and denial of a motion to dismiss for an abuse of discretion. Miller v. JSC Lake

Highlands Operations, LP, 536 S.W.3d 510, 512 (Tex. 2017). A trial court abuses its

discretion when it makes a decision without using guiding rules or principles. Id. at 512–

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13.

III. DISCUSSION

VRMC argues that Dr. Niessen’s expert report is inadequate because it fails to: (1)

set forth a specific standard of care applicable to VRMC; (2) demonstrate factually that

VRMC breached any applicable standard of care; and (3) demonstrate that VRMC

proximately caused any harm to Guerrero. VRMC also argues that Guerrero should not

have been permitted to file two amended expert reports within the thirty-day window

allowed for curing deficiencies.

A. Amended Expert Report

We first address VRMC’s contention that this Court should disregard the second

amended expert report of Dr. Niessen. VRMC argues that a plaintiff is permitted to amend

its expert report only once when granted a thirty-day extension to cure a deficient report.

“In construing a statute, our objective is to determine and give effect to the

Legislature’s intent.” Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008) (citing Nat’l

Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)). We first look to the

statute’s language, because the words the Legislature chooses is the surest guide to

legislative intent. Id. If the statute’s language is unambiguous, its plain meaning will

prevail. Id. (citing McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003)).

The TMLA provides, “If an expert report has not been served within the period

specified by Subsection (a) because elements of the report are found deficient, the court

may grant one 30-day extension to the claimant in order to cure the deficiency.” TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c). VRMC contends that the statute’s reference to “one

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30-day extension” should be construed as permitting the filing of only one amended report

during the thirty-day time period. We disagree.

Section 74.351(c) plainly limits the time in which a plaintiff may cure a deficient

expert report, but it places no limitation on the number of expert reports that may be

served within that time. At any rate, Guerrero served the first amended report before the

thirty-day extension was granted. After the extension, Guerrero served only one additional

amended report. The Texas Supreme Court has previously held that § 74.351 permits a

plaintiff to file multiple reports before a trial court has ruled on a defendant’s motion to

dismiss without forfeiting the right to obtain an additional thirty-day extension to cure any

deficiencies. See Leland, 257 S.W.3d at 208. Therefore, even if we were to accept

VRMC’s argument, Guerrero did not forfeit her right to serve an additional amended report

by having previously done so before the extension was granted. For the foregoing

reasons, we conclude that the second amended report was properly served. Therefore,

the trial court did not err in considering the report.

B. Standard of Care & Breach

Next, VRMC argues that the trial court abused its discretion in denying VRMC’s

motion to dismiss because “Dr. Niessen fails to set forth a specific standard of care

applicable to [VRMC and its nursing staff.]” VRMC asserts that Dr. Niessen “uses

ambiguous language to suggest a physician’s standard of care applies to [VRMC] and its

nursing staff.” It argues that such a standard would require the hospital to engage in the

unlawful practice of medicine. VRMC further argues that Dr. Niessen’s expert report fails

to demonstrate that VRMC breached “any applicable, lawful standard of care[.]”

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 The applicable standard of care is defined by what an ordinarily prudent health

care provider would have done under the same or similar circumstances. Palacios, 46

S.W.3d at 880; Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.—

Houston [14th Dist.] 2011, no pet.). To adequately identify the standard of care and

breach thereof, an expert report must set forth “specific information about what the

defendant should have done differently.” Abshire, 563 S.W.3d at 226 (citing Palacios, 46

S.W.3d at 880). While the TMLA requires only a “fair summary” of the standard of care

and how it was breached, the report must set out what care was expected but not given.

Id. An expert’s articulated standard of care for nurses cannot require the practice of

medicine because nurses are prohibited from doing so under Texas law. See TEX. OCC.

CODE ANN. §§ 155.001–.003 (providing that no person may “practice medicine” without a

medical license); id. § 151.002(a)(13) (“‘[p]racticing medicine’ means the diagnosis,

treatment, or offer to treat a mental or physical disease or disorder . . . or injury. . . .”); id.

§ 301.002(2), (4)–(5) (barring nurses from “acts of medical diagnosis or the prescription

of therapeutic or corrective measures”); Zamarripa, 526 S.W.3d at 461 n.36.

Dr. Niessen opined that the standard of care required the nursing staff to: (1)

communicate changes in a patient’s condition to the physicians; (2) monitor the patient’s

chart for orders and continued care, specifically regarding the administration of high-risk

medications such as anticoagulants; (3) ensure that the plan of care corresponded with

the plan documented by the physician; (4) initiate chain of command if they believed a

patient was not receiving the appropriate level of care; and for VRMC, in particular, to (5)

provide for the clear communication of orders between the physicians and hospital

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departments.

We disagree that the articulated standard of care impermissibly required VRMC or

its nurses to practice medicine. In other words, Dr. Niessen did not propose a standard

of care that required the nursing staff to diagnose or treat a mental or physical disease or

disorder. See TEX. OCC. CODE ANN. § 151.002(a)(13); see also Columbia Med. Ctr. of

Arlington v. Shelby, No. 05-17-01358-CV, 2018 WL 6187437, at *8 (Tex. App.—Dallas

Nov. 27, 2018, no pet.) (mem. op.) (concluding that nurses’ alleged failure to notify doctors

of symptoms they observed or to initiate the chain of command did not require the nurses

to diagnose the patient’s condition or to practice medicine). Texas courts have found that

similar articulations by experts constitute a proper, lawful, standard of care for nurses.

See Renaissance Healthcare Sys. v. Swan, 343 S.W.3d 571, 586 (Tex. App.—Beaumont

2011, no pet.) (mem. op.) (concluding that an expert report sufficiently articulated a

standard of care which required nursing personnel to recognize the signs of hemorrhage,

summon a physician to patient’s bedside, and institute the chain of command); Tenet

Hosps. v. Barnes, 329 S.W.3d 537, 542–43 (Tex. App.—El Paso 2010, no pet.)

(concluding that the expert reports of a doctor and a nurse adequately articulated the

standard of care which required nurse to notify the physician of a significant change in

the patient’s blood pressure following angiogram); see also Columbia Plaza Med. Ctr. of

Fort Worth v. Jimenez, No. 02-15-00275-CV, 2016 WL 2586738, at *4–5 (Tex. App.—

Fort Worth May 5, 2016, no pet.) (mem. op.) (concluding that the expert report properly

articulated the standard of care for hospital staff which required that they observe,

monitor, and recognize symptoms or conditions).

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 Further, Dr. Niessen identified the following specific breaches of the standard of

care by VRMC and its nursing staff: (1) failing to communicate life threatening

perturbations in vital signs such as hypotension to Dr. Ellis in a timely manner; (2) ignoring

the plan of care set forth by Dr. Ellis in the March 5 progress notes; (3) continuing to

administer life-threatening anticoagulants to Guerrero for two days contrary to the

documented plan of care; (4) failing to initiate the proper chain of command to address

the inadequate level of care; and (5) failing to maintain a proper medical record system

for the communication of physician orders.

With respect to the nurses’ purported failure to communicate changes in vital signs,

Dr. Niessen properly inferred such a breach from the lack of documentation in the medical

records. See Bay Oaks SNF, LLC v. Lancaster, 555 S.W.3d 268, 273–74, 280–84 (Tex.

App.—Houston [1st Dist.] 2018, pet. filed) (affirming trial court’s approval of expert report

that relied in part on lack of documentation of required care to prevent pressure ulcers);

see also Hood v. Kutcher, No. 01-12-00363-CV, 2012 WL 4465357, at *4 (Tex. App.—

Houston [1st Dist.] Sept. 27, 2012, no pet.) (mem. op.) (holding that an expert could infer

from lack of documentation in medical records that thorough wound cleaning did not occur

and breached standard of care). Further, Dr. Niessen was not required to identify with

exacting precision the acts or omissions by which VRMC’s staff deviated from the

standard of care. See Palacios, 46 S.W.3d at 879 (explaining that “a plaintiff need not

present evidence in the report as if it were actually litigating the merits”). Such detail is

simply not required at this stage of the proceedings. Abshire, 563 S.W.3d at 227. Dr.

Niessen identified the specific actions that should have been taken by VRMC and its staff

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but were not. See id. at 226. In that regard, his report is neither conclusory nor

speculative. Accordingly, we conclude that Dr. Niessen’s expert report provides a fair

summary of the standard of care and how it was breached. See id; Tenet Hosps. v. De

La Rosa, 496 S.W.3d 165, 172 (Tex. App.—El Paso 2016, no pet.); Barnes, 329 S.W.3d

at 542–43.

C. Causation

Next, VRMC argues that Dr. Niessen failed to demonstrate that VRMC

“proximately caused any harm to [Guerrero].” The causation requirement requires that

the expert explain “how and why” the alleged negligence caused the injury in question.

Abshire, 563 S.W.3d at 224 (citing Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010)).

A conclusory statement of causation is inadequate; instead, the expert must explain the

basis of his statements and link conclusions to specific facts. Id.; see also Zamarripa, 526

S.W.3d at 461 (“[W]ithout factual explanations, the reports are nothing more than the ipse

dixit of the experts, which . . . are clearly insufficient.”). In satisfying this “how and why”

requirement, the expert need not prove the entire case or account for every known fact;

the report is sufficient if it makes “a good-faith effort to explain, factually, how proximate

cause is going to be proven.” Zamarripa, 526 S.W.3d at 460.

In Abshire, the Texas Supreme Court reviewed whether an expert report

sufficiently demonstrated causation with respect to the nursing staff’s purported failure to

recognize and document a patient’s osteogenesis imperfect (OI), also known as brittle

bone disease and to recognize the symptoms of a spinal compression fracture. 563

S.W.3d at 224–26. The patient’s expert opined that the failure of the nursing staff to

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document a complete and accurate assessment resulted in a delay in proper medical

care that would have included the ordering of imaging studies and protection of the spine.

Id. at 224. The expert explained that the nursing staff should have linked the patient’s

symptoms to her OI diagnosis, which would have resulted in the patient’s admission to

the hospital on absolute bed rest and the receipt of treatment to preserve the integrity of

the spine. Id. According to the expert, these failures lead to the exacerbation of an

undiagnosed vertebral facture which resulted in paralysis. Id. at 225.

The supreme court concluded that the expert’s “explanation provides a

straightforward link between the nurses’ alleged breach of the standard of care and [the

patient’s] spinal injury.” It explained that “the report draws a line directly from the nurses’

failure to properly document [the patient’s] OI and back pain, to a delay in diagnosis and

proper treatment (imaging of her back and spinal fusion), to the ultimate injury

(paraplegia).” Id. Accordingly, the court held that the report provided a fair summary of

the causal relationship between the defendant’s breach and the patient’s injury. Id. at 226.

Here, Dr. Niessen’s report similarly provides a straightforward link between the

nurses’ alleged breach of the standard of care and Guerrero’s life-threatening injuries. Dr.

Niessen draws a direct line from the nurses’ deviations from the standard of care to the

prolonged administration of therapeutic enoxaparin, which, according to Dr. Niessen, led

to Guerrero’s hemorrhaging and ultimate death. See id. As such, we conclude that the

report provides a fair summary of the causal relationship between VRMC’s breach of the

standard of care and Guerrero’s death. See id.

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D. Summary

We conclude that Dr. Niessen’s report qualifies as a “good-faith” effort to comply

with the requirements of § 74.351. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351; see

also Abshire, 563 S.W.3d at 224. Therefore, we hold the trial court did not abuse its

discretion in denying VRMC’s motion to dismiss. As reframed, we overrule VRMC’s sole

issue.

IV. CONCLUSION

We affirm the trial court’s order.

LETICIA HINOJOSA
Justice

Delivered and filed the
19th day of November, 2020.

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