Rose v. Garland Community Hospital

FITZGERALD, J.

dissenting.

Dissenting Opinion by Justice FITZGERALD.

On remand, the issue before us is whether Rose’s expert reports constituted a good faith effort to comply with the Medical Liability and Insurance Improvement Act (“MLIIA”). See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex.2004). The parties narrowed the issue by focusing *358our attention upon the part of the definition of expert report that requires the written report(s) to provide a fair summary of the expert’s opinions regarding “the causal relationship between [the failure to meet the applicable standards of care] and the injury” (hereafter the “causal relationship element”). See Tex.Rev. Civ. Stat. Ann. art. 4590i, § lS-Olfr)©.1

I part company with the majority because of the approach used to analyze the issue. The majority searches the expert reports to determine if they state the hospital’s credentialing process caused Rose’s injuries.2 The majority finds no such language. The majority acknowledges that the expert reports do contain language referring to the causal link between the medical treatment and Rose’s injuries.3

The supreme court, on the other hand, dictates we recognize the inherently inseparable nature of the credentialing process and medical treatment. We, therefore, must review the expert reports to determine if they state that the hospital’s credentialing process, in conjunction with the medical treatment given Rose, caused Rose’s injuries. The specific issue, then, is whether the expert reports sufficiently state the causal relationship between (1) the hospital’s alleged negligent credentialing of Dr. Fowler and Dr. Fowler’s alleged negligent treatment of Rose, and (2) Rose’s injuries. They do.

Rose stressed that the hospital’s credentialing process was “inseparable” from the medical services provided. The supreme court emphasized that a hospital’s credentialing process is “an inseparable part of the medical services” a patient receives, that a hospital’s primary function is to provide a place in which doctors can provide health care services, and that the quality of the hospital’s medical staff is “intimately connected with patient care.” In short, “a hospital’s credentialing of doc*359tors is necessary to that core function and is, therefore, an inseparable part of the health care rendered to patients.” Rose, 156 S.W.3d at 545.

The supreme court observed in Rose that our prior analysis of the hospital’s credentialing function was unrealistic and flawed. Our analysis on remand should, therefore, be very mindful of the supreme court’s compelling evaluation of the credentialing function of a hospital. The hospital’s credentialing decision enables the only doctor to access the operating room and medically treat the patient. It is patently obvious that negligent credentialing, an “enabling” act, without more, cannot and will not, per se, cause any injury to any patient. A negligent credentialing claim is illusory absent negligent medical treatment. Under these circumstances, the majority’s analysis of the causal relationship element — limited strictly to the negligent credentialing claim — is unrealistic and inconsistent with Rose.

The supreme court honed in on this essential point in more eloquent terms when it wrote:

When a plaintiffs credentialing complaint centers on the quality of the doctor’s treatment, as it does here, the hospital’s alleged acts or omissions in credentialing are inextricably intertwined with the patient’s medical treatment and the hospital’s provision of health care. Although neither the Hospital as an entity nor the credentialing board actually performed the surgeries on Rose, a doctor lacking credentials could not have performed surgery in that hospital. Likewise, Rose’s negligent credentialing claim derives from Dr. Fowler’s alleged negligent treatment. Indeed, without negligent treatment, a negligent credentialing claim could not exist.

Id. at 546.

Thus, the supreme court recognized the intertwined relationship of these claims by saying the credentialing claim against the hospital “derives from” the malpractice claim, and the two are “inseparable.” Id. When the two claims — negligent credentialing and negligent medical treatment— are considered together in this case, those segments of the expert reports referenced in detail by the majority sufficiently state the causal relationship element. This approach effectuates the core analysis of Rose.

The report qualifies as a good faith effort to provide a fair summary of the expert’s opinions. See art. 4590i, § 13.01(Z), (r)(6). The report meets both requirements of the Palacios test: it describes the elements of the intertwined offenses with sufficient specificity to inform the hospital of the conduct Rose has called into question, and it provides a basis for the trial court to conclude the claims have merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876-77 (Tex.2001).4 The trial court’s order dismissing Rose’s credentialing claims under the MLIIA should be re*360versed. Accordingly, I respectfully dissent from the majority’s opinion.

. The hospital argued that “any act of negligence that does nothing more than put a person in a particular place at a particular time is too remote to constitute legal causation.” The hospital thus recognized the significance of the credentialing process when it conceded that this act gave Dr. Fowler the opportunity to be in the operating room to operate upon Rose. The hospital, however, minimized the conduct by arguing it was “too remote.” The hospital primarily relied upon Gonzalez v. El Paso Hosp. Dist., 68 S.W.3d 712 (Tex.App.-El Paso 2001, no pet.), which sets forth the applicable rules. The facts, however, involve health care providers who allegedly failed to respond to certain warning signs that occurred prior to the birth of a baby who died shortly after birth. The case does not address negligent credentialing and, therefore, is of marginal value. Rose countered that the reports adequately addressed causation as "the surgery could not have been botched if [Dr.] Fowler had not been credentialed by the Hospital.”

. The majority quotes six paragraphs of the second expert report pertaining to the hospital’s alleged negligent credentialing and a single paragraph of the first report pertaining to Dr. Fowler’s alleged negligent medical treatment. I adopt these quoted segments to avoid needless repetition. The majority agrees the single paragraph relating to Dr. Fowler's alleged negligent medical treatment and Rose’s injuries does set forth the causal relationship element, but only between Dr. Fowler's medical treatment and Rose’s injuries. The majority stresses that neither report sets out the causal relationship element between the Hospital’s alleged negligent credentialing and Rose's injuries and, therefore, the expert reports do not constitute a good faith effort to comply with the MLIIA.

.The relevant part of the report states:

The failure to utilize the appropriate procedures as outlined above constitutes negligence and gross negligence on the part of Dr. James H. Fowler and on the part of the facility where the treatment took place, Garland Community Hospital. Said failures were the proximate cause of Ms. Rose’s deformed abdomen, overly large breast augmentation, irregularities in her hips, thighs, arms, and shoulders, as well as the staph infection.

. In Palacios, the supreme court concluded the expert report failed because it did not adequately describe the relevant standard of care. As a result, neither the trial court nor the defendant could determine from the report what the expert believed the defendant was required to do differently. 46 S.W.3d at 880 ("Neither the trial court nor American Transitional would be able to determine from this conclusory statement if [the expert] believes that the standard of care required American Transitional to have monitored Pa-lacios more closely, restrained him more securely, or done something else entirely.”). The majority has not identified any similar difficulty in this case on the issue of causation.