Garrison Nursing Home and Rehabilitation Center and Garrison Nursing Home, Inc. v. Legatha Demings

ACCEPTED
12-15-00189-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/9/2015 2:58:15 PM
Pam Estes
CLERK

CAUSE No. 12-1 5-001 89-CV

FILED IN
12th COURT OF APPEALS
IN TT{E COURT OF APPEALS OF TEXAS TYLER, TEXAS
FOR THE TWELFTH CIRCUIT 11/9/2015 2:58:15 PM
TYLER, TEXAS PAM ESTES
Clerk

GARNSON NURSING HOME AND REHABILITATION CENTER AND
GARNSON NURSING HOME, INC.,
Appellant

V

LEGATHA DEMINGS,
Appellee

On Appeal From Cause No.
In the 745th Judicial District Court of Nacogdoches County, Texas

APPELLEE'S BRIEF

Law OTTIcB oF STEPHEN SHIRES, PLLC
Attorney & Counselor at Law

W. Stephen Shires
State Bar No. 50511894
123 San Augustine Street
P.O. Box 2224
Center, Texas 75935
(936) s98-30s2 (Phone)
(936) s98-303 1 (Facsimile)
stephen @s hire s I aw firm. c o m
ATTORNEY FOR LEGATHA DEMINGS

ORAL ARGUMENT REQUESTED IF GRANTED TO APPELLANT
 IDENTITY OF PARTIES AND COUNSEL
In accordance with TBx. R. App. P.38.1(a), the following is a list of the

parties to this action, their respective counsel, and the presiding judge at trial:

Appellants Garrison Nursing Home and
Rehabilitation Center and Garrison
Nursing Home, Inc. (ooGNHoo)

Trial and Appellate Counsel: David'W. Frost
Kent, Anderson, Bush, Frost, and Metcalf, P.C.
1121 E.S.E Loop 323, Suite 200
Tyler, Texas 7570t
(903) s79-7s00 (phone)
(903) 58 1-3701 (facsimile)
dfrost@tyler.net

Appellee Legatha Demings ("Demings")

Trial and Appellate Counsel: Stephen Shires
Law Office of Stephen Shires, PLLC
123 San Augustine Street
P.O. Box 2224
Center, Texas 75935
(936) s98-30s2 (phone)
(936) 598-303 1 (facsimile)
stephen@shireslawfirm. com

Trial Judge Honorable Campbell Cox II
145th Judicial Court, Nacogdoches, Texas

1t
 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COTINSEL l1

TABLE OF CONTENTS 111

TABLE OF AUTHORITIES ..... iv
STATEMENT REGARDING ORAL ARGUME,NT 1

STATEMENT OF ISSUES 1

STATEMENT OF'TITE CASE 1

STANDARD OF REVIEIT I

STATEMENT OF FACTS 2
a
STTMMARY OF THE ARGITME,NT J

ARGUMENT 4

A. GNH improperly seeks a technical dismissal of claims that clearly
have merit.

B. Dr. Miller is qualified to address causation in this case.
7

C. The reports do not simply provide conclusory statements on
causation.
11

D. Alternatively, this is a matter of r¿s ipsa loquilut
I7
CONCLUSION AND PRAYER 18

CERTIFICATE OF SERVICE .......... I9

CERTIF'ICATE OF' COMPLIANCE t9

INDEX OF APPENDIX 20

lll
 TABLE OF AUTHORITIES
CASES
Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios,46 S.V/.3d 873
(Tex. 2001) ...2,4
Bowie Mem'l Hosp. v. Wright,79 S.W.3d 48, 52 (Tex. 2002) 6

Broders v. Heise,924 S.W.2d I48 (Tex. 1996) 7

Collini v. Pustejovsky,2S0 S.W.3d 456 (Tex. App. Fort Worth 2009,
no pet) 11

Daubert v. Merrill Dow Pharmaceuticals, [nc.,509 U.S. 579 (1993) ........ 10
Downer v. Aquamarine Operators, Inc.,70l S.W.2d 238 (Tex. 1985) .........2
Gammill v.Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) ..... 10
Haddockv. Arnspiger,793 S.W.2d 948,950 (Tex. 1990) 17, 18
Hall v. Huff 957 S.W.zd90 (Tex. App. - Texarkana 1997, pet. denied) ......7
HEB Grocery Co. v. Galloway,2014 WL 2152128 (Tex. App. - Beaumont
2014, not pet) 11

Kunho Tire Co. v. Carmichael,526 U.S. 137 (1999) 10

Mack Trucks, Inc. v. Tøme2,206 S.W.3d 572 (Tex. 2006) 10

Nenno v. State,970 S.W.2d 549 (Tex. Crim. App. 1998) 10

,Ross v. St. Luke's Episcopal Hospital,462 S.W.3d 496 (Tex.2015)............. 5

Samlowski v. Wooten,332 S.W.3d 404,410 (Tex.20ll) 6

Scoresby v. Santillan,346 S.W.3d 546 (Tex. 2011) 5

Van Ness v. ETMC First Physicians,46l S.W.3d 140 (Tex. 2015)
1,4,5,6,16, 17

STATUTES AND RULES
a
Tsx. Cry. Pnacr. & Rpvr. Cooe Ann. $74.001 J

TEx. Cru. Pnacr. & Rpvt. Cons Ann. ç74.201(Jones McClure 2015) ........17
TEx. Ctv. Pnacr. & RsN4. Conp Ann. $74.351 (Jones McClure 2015)...... l, 5

TBx. Ctv. Pnacr. & RBH¿. Conr Ann. ç74.403 (Jones McClure 2015) ..........7

lv
 STATEMENT REGARDING ORAL ARGUMENT
GNH requested oral argument in this case. In the event that the Court grants

GNH's request, then Demings also requests oral argument in this matter.

STATEMENT OF ISSUES
GNH has raised the following two issues:

1. Whether the trial court abused its discretion in overruling GNH's objections
to Demings' supplemental expert report from Dr. Keith E. Miller for the
failure to show he was qualified to provide opinions regarding the element
of causation and denying GNH's motion to dismiss pursuant to TEx. CIv.
Pnacr. & REII¿. ConBAnn. 574.351 (Jones McClure 2015).

2. Whether the trial court abused its discretion in overruling GNH's objections
to Demings' supplemental expert report from Dr. Keith E,. Miller for failure
to adequately address the element of causation and denying GNH's motion
to dismiss pursuant to TBx. Ctv. Pnecr. & REM. Conp Ann. ç74.351 (Jones
McClure 2015).

STATEMENT OF THE CASE

GNH accurately stated the Statement of the Case in this matter. Demings

would only add that the Supplemental Miller Report filed by Demings in this

matter (CR 50) was expressly incorporated by reference into the previous Kaper

Report (CR 25), and vice-versa. In other words, the two reports are to be

construed together, as if one report, along with all the information contained in

both reports.

STANDARD OF REVIEW
Demings agrees that the Standard of Review in this matter is abuse of

discretion. See Van Ness v. ETMC First Physicians,46l S.W.3d 140,742 (Tex.
2015); Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873,877

(Tex. 2001). Demings further agrees that a trial court abuses its discretion only

when it acts in an arbitrary or unreasonable manner without regard to any guiding

rules or principals. Downer v. Aquamarine Operators, Inc.,70l S.!V.2d 238,24I-

42 (Tex. 1985).

STATEMENT OF FACTS

This case arises out of, among various breaches of duty, the complete failure

of GNH to administer the medication Xarelto to Demings despite a prescription

from her treating physician for that medication. (CR 25, 50). Demings had been

diagnosed with atrial fibrillation and previously suffered a mild ischemic
cardiovascular accident. (CR 55). As a result, her physician, Dr. Dennis

Calhoun, had prescribed Xarelto, to be taken by Demings as a measure to prevent

her from suffering another and possibly greater and much more severe stroke. (CR

55). To be clear - the purpose for Demings taking the Xarelto in this case was

solely to prevent her from suffering another stroke resulting from her atrial

fibrillation. (CR 25, 50). GNH's own report admits that GNH failed to provide

the Xarelto to Demings due to an 'oerror in the transcription of [the] order." (CR

64). Demings then actually suffered a severe stroke, and, prior to transferring

Demings to the hospital, the charge nurse at GNH, after talking to a doctor, that the

medication had effoneously been omitted from the MAR. (CR 55, 57, 64). As a

2
result, Demings has sued GNH for negligence, alleging that GNH, among other

things

o breached their duty to provide her with necessary supervision;

a breached their duty to use reasonable care in treating her with the degree of
skill and learning ordinarily possessed and used by nursing home facilities
East Texas;

o breached their duty to assist her in attaining and maintaining the highest
practicable level of physical, mental, and psychosocial well-being;

o breached their duty to make sure that she received all of her medications
timely and in the appropriate doses - namely the prescribed Xarelto;

a breached their duty to make sure that her' prescription(s) and/or orders were
accurately transcribed by the nursing home staff onto her
charts/records/orders and to properly send her prescription to be filled by the
pharmacy - namely failing to include Xarelto as one of the medications for
the pharmacy to fill; and

a breached their duty to have a system in place that insures the accuracy of the
transcription of her prescription order.

SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in this case. The reports

submitted by Demings meet the requirements of TBx. Cry. Pnacr. & RsNl. CopB

Ann. $74.001 et. seq. (Jones McClure 2015) (hereinafter the "Medical Liability

Act"). The reports provide more than adequate information to: (i.) inform GNH of

the specific conduct that Demings has called into question, and (ii.) provide a basis

for the trial court to conclude that her claims have sufficient merit for the case to

proceed in the litigation. GNH seems to interpret the Medical Liability Act to

-1
require Demings to provide a level of proof that is more attributable to what is

expected at the final trial of this matter. Such is improper. Given the nature of this

case, Dr. Miller's credentials are more than sufficient to demonstrate that he is

qualified to render an opinion on causation in this matter. Further, the information

provided in the reports on causation makes them not merely "conclusory." The

reports provide reasoned analysis on the matter that provides a basis for causation.

Should this Court disturb the trial court's decision in this case, such would be

effoneous. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex. 2015).

Finally, Demings argues in the alternative that the doctrine of res ipsa loquitor

excuses the requirement of demonstrating causation in this case.

ARGUMENT
GNH argues that the reports proffered by Demings are deficient under the

standards set forth by the Medical Liability Act, as interpretedby Am. Transitional

Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3 d 873 (Tex. 2001). Originally,

GNH argued that there was a problem with the causation portion of the report

proffered by Pauline Kaper, R.N. ("Kaper") because she is not a physician.

Demings remedied that issue by supplementing that report with the report of Keith

Miller, M.D., who is clearly a physician. The report of Dr. Miller, which was

supplemental to the Kaper report, addresses and reinforces the standards of care,

breaches of the standard, and the causation in this case, as originally set forth in the

4
Kaper report. Read together, the original report of Kaper and the supplemental

report of Miller fulfill the obligations required by the Medical Liability Act. For

this reason, this Court should affirm the order of the trial court in this matter

A. GNH imnronerlv seeks a techn I dismissal of claims that clearlv
have merit.

The purpose of the Medical Liability Act's expert report requirement is not

to have claims dismissed regardless of their merits, but rather it is to identiff and

deter frivolous claims while not unduly restricting a claimant's rights. Ross v. Sr.

Luke's Episcopal Hospital, 462 S.W.3d 496, 502 (Tex. 2015); Scoresby v.

Santillan, 346 S.W.3d 546,554 (Tex. 20Il). A plaintiff asserting a health care
liability claim must serve each defendant with an expert report that includes a fair

summary of the expert's opinions 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 damage claimed." Van Ness v. ETMC First Physicians, 467

S.V/.3d 140, 141(Tex. 2015) (quoting Tex. Cry. Pnacr. & RsN4. CooB Ann.
ç74.351(r)(6) (Jones McClure 2015)). A challenge to the sufficiency of a report

will only be sustained if "the report does not represent an objective good faith
effort to comply with the fstatutory requirements]." 1d The report constitutes a

good faith effort if it provides adequate information to inform the defendant of the

specific conduct the plaintiff has called into question, provide[s] a basis for the

5
trial court to conclude that the claims have merit, and does not contain a material

deficiency. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);

Samlowski v. Wooten, 332 S.W.3d 404,410 (Tex.20ll). The reports proffered by

Demings clearly meet these standards. As stated above, the purpose of the expert

report requirement is not to have claims dismissed regardless of their merit, but

rather to identifi'and deter frivolous claims. In the very least the proffered reports

demonstrate that Demings claims rise above the level of frivolous. The purpose of

the report is not to fully and finally litigate the merits of the case, but rather to

provide a mechanism to make sure the case is not being brought to harass the

defendant.

As such, GNH was attempting to abuse a process, designed to merely insure

that a claim being brought is bonafide, in order to cause a claim with clear merit to

be summarily dismissed. Such was wholly improper.

In this case, the trial court found that Demings fulfilled the requirements of

the Medical Liability Act. The trial court acted within its discretion in overruling

GNH's objections and denying its motion to dismiss the case. To upset the trial

court's decision in this matter would be improper, just as it was in Van Ness v.

ETMC First Physicíans,461 S.W.3d 140 (Tex. 2015). (Appendix C). In that case,

the Texas Supreme Court reversed this Court's decision reversing the trial court's

6
decision to deny ETMC's motion to dismiss case on virtually the same grounds

and for the same reasons proffered by GNH in this matter.

B. Dr. Miller is qualified to address causation in this case.

In order to provide testimony on causation, the expert must (i.) be a
physician, and (ii) be qualified to give an opinion under the Texas Rules of

evidence. TBx. Clv. Pnacr. &, Rru. CooB Ann. ç74.403 (a)-(c) (Jones McClure

2015). The expert simply must demonstrate that he has knowledge about the

specific issue that he is testi$ring about and that he meets the requirements of

Texas Rule of Evidence 702 regarding the issue. Broders v. Heise, 924 S.W.2d

148, 152-153 (Tex. 1996). Put another way, the expert only has to demonstrate

that the subject is common to and developed in his or her field or practice. Id.;

Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App. - Texarkana 1997, pet. denied). In

this case, Dr. Miller unequivocally states that he has familiarity with the standard

of care (and the related assessment of causation) for the treatment of patients with

strokes, hypertension, and related illnesses, and with conditions similar to those

experienced by Demings

At the time of the care and treatment of Ms. Legatha Demings by
Garrison Nursing Home and Rehabilitation Center in Garrison, Texas,
form May 2012 through June 2012,I was familiar with the minimum
medical standards of care applicable to the assessment, diagnosis and
treatment of patients with strokes, hypertension, and related illnesses,
as well as their complications and other medical conditions similar to
those experienced by Ms. Legatha Demings and described in the
referenced medical records.

7
 I am familiar with the medical and nursing standards of care for the
above referenced conditions applicable to Garrison Nursing Home and
Rehabilitation Center in Garrison, Texas. The minimum standards of
care for treatment of patients with similar signs, symptoms and
conditions as Ms. Legatha Demings that are the basis of this report,
are national standards of care and do not differ from community to
community.

From the time of the medical treatment of Ms. LegathaDemings from
ll4ay 2012 through June 2012, and through the present, I have had an
active clinical practice as a family practitioner in Center, Texas that
includes providing care to adult patients in nursing homes and
rehabilitation centers, such as Ms. Legatha Demings. During my
career as a family practitioner, I have worked with and or supervised
medical office stafï, hospital staff, cursing home staff, and
rehabilitation center staff, inducing medical technologists and nurses,
in the care of my patients. I have also participated in the development
and use of protocols, policies and procedures for the care of patients
with strokes, hypertension and related illnesses, as well as their causes
and complications, including adults such as Ms. Legatha Demings.

In addition, based on my education, training knowledge and direct
experience, I am familiar with the accepted and expected standards of
cate, as listed below, for nursing home and rehabilitation center
facilities who take care of patients with conditions such as strokes,
hypertension, related illnesses, and their complications, and can offer
opinions on the standards of care, the breaches of the standards of care
and the causation of the injuries from these breaches.

In my medical practice, I routinely rely on medical records, nursing
records, lab reports, diagnostic tests and images, consulting physician
reports and other patient data. I consider materials of this type to be
generally reliable, unless evidenced otherwise, and they are the type
of materials routinely relied upon by physicians and clinical staff in
providing care to patients.

,See Report of Dr. Miller, pp 5-6 (CR 50) (Appendix B). Without a doubt, the

prescription of a regime of blood thinner is clearly with the scope of Dr. Miller's

8
practice as a physician that deals with patients that are stroke victims and patients

that reside in nursing homes. It is clearly within the scope of his expertise, then, to

testiSr about the effect of failing to take the prescribed regime of the blood thinner.

Moreover, Dr. Miller goes on to state additional information concerning his "case

specific expertise," that further demonstrates his expertise in treating patients in

nursing homes, expressly including patients that suffer from the "same or similar"

conditions Demings, including illnesses related to strokes, hypertension, and

related illnesses, gained through:

1) His attending, and successfully completing, medical school classes, and
residency, that teach the evaluation, diagnosis, cafe and treatment of patients
with the same or similar conditions as Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications.

2) Practical experience of diagnosing and treating patients with the same or similar
conditions as Ms. Legatha Demings, and for illnesses related to strokes,
hypertension, and their complications;

3) Discussions with colleagues atyearly conferences, seminars and meetings;

4) Study of technical works routinely published in textbooks, journals and
literature conceming the evaluations, diagnosis, care and treatment of patients
with the same or similar conditions as Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications;

5) My routine discussions and consultations with other physicians who also treat
patients with the same or similar conditions as Ms. Legatha Demings, and for
illnesses related to strokes, hypertension, and their complications;

9
6) His routine and regular contact with nursing home nurses, staff and residents
who take care of patients with the same or similar conditions as Ms. Legatha
Demings, and for illnesses related to strokes, hypertension, and their
complications;

7) His knowledge and experience giving lectures and in-service conferences to the
nurses and staff;

8) His experience service on numerous hospital and nursing home committees;
and

9) His observation ofnurses and nurse conduct, supervising residents and
instructing nurses and residents in the evaluation, diagnosis ) eare and treatment
of patients the same as, or similar to Ms. Legatha Demings, and for illnesses
related to strokes, hypertension, and their complications.

Id. at pp. 6-7. Without a doubt, Dr. Miller provides sufficient information to meet

the requirements for reliability under the applicable standards for Texas Rules of

Evidence 702 and 703. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993); Kunho Tire Co. v. Carmíchael, 526 U.S. 137 (1999); Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006); Gammill v. Jack Williams

Chevrolet, lnc.,972 S.W.2d 713 (Tex. 1998); Nenno v. State,970 S.W.2d 549

(Tex. Crim. App. 1998). As a practical matter, it would be virtually impossible to

locate and retain a practicing physician who could truthfully state that he has

specifically studied the specific effects of or had specific training concerning the

specific drug Xarelto, as GNH asserts is required in this case. That is not required

by the Medical Liability Act. Instead, Dr. Miller has provided more than sufficient

l0
information that would qualiS him to testiff under Texas Rules of Evidence 702

and 703 on this issue, which is what is required. In this case, Dr. Miller provided

sufficient information that he has experience in treating patients in nursing homesl

and treating patients that have suffered strokes, which would necessarily include

the medications associated with the treatment of the condition. Dr. Miller's report

contains a long recitation of his experience and qualifications in dealing with
stroke victims and nursing home patients. For this reason, the cases cited by GNH

on this issue are inapposite,2 and GNH's argument on this point is simply not

persuasive.

C. The reports do not simplv provide conclusory statements on
causation.

Dr. Miller provides a seventeen (17) page, single spaced report. He devotes

four (4) pages of the report to addressing causation. See Dr. Miller Report pp. 11-

15 (Appendix B) (CR 50). Dr. Miller ultimately concludes that:

As a direct cause, this facility and its staff failed to comply with those
standards set forth in paragraph numbers: 1 , 2, 3, 4, 5, 6, 7 , 8, 9, 10, 1
l, 12, 13, 14, 15, 16, 17, 18, 19, and 20.It is my opinion, based upon
my experience, knowledge, qualifications and review of these records
that these standards were not followed and the result was that Ms.
I Interestingly, GNH chooses to focus simply on its failure to provide Demings with the
medication. However, it should be noted that Demings has asserted a number of breaches of
duty in this matter, including the duty to provide the proper medication, that led to the demise of
Ms. Demings. See Facts Section, supro, Page 3. These items are clearly addressed by the Miller
and Kaper reports.

2
Colliri v. Pustejovslry,280 S.V/.3d 456 (Tex. App. Fort V/orth 2009, no pet) and HEB Grocery
Co. v. Galloway,2014WL2l52I28 (Tex. App. - Beaumont 2014, not pet).

11
 Legatha Demings was harmed and injured. The failure to comply with
these standards caused, within a reasonable degree of medical and
nursing, probability and certainty, Ms. Demings to suffer a stroke,
extensive hospitalization, rehabilitation, and related complications,
which compromised her overall health and well-being, and resulted in
an overall worsening of her condition, unnecessary and preventable
pain, suffering, mental anguish, and loss of dignity. These injuries and
illnesses could have, within a reasonable degree of medical and
nursing, probability and certainty, been prevented or
detected/addressed earlier if these standards had been followed.

See id. atp. 14 (Appendix B) (CR 50). Dr. Miller did not simply state this opinion

in a conclusory matter. Instead, he devotes pages 11-L4 on providing the basis for

his opinion, which includes, but is not limited to, the following matters:

o In the hospital, Ms. Demings was diagnosed as having had a cerebrovascular
accident (CVA) or stroke. Ms. Demings was discharged from the hospital on
May 25,2012.In his discharge summary, Ms. Demings' physician documented
that this patient's stroke was of ". ..ischemic origin, most likely caused by her
atrial fibrillation.

a In order to treat Ms. Demings' condition and prevent further strokes, her
physician discharged her from the hospital on a blood-thinning medication,
Xarelto. This physician stated in his discharge summary that Ms. Demings
would be "...started (on) Xarelto for her anticoagulation to avoid further strokes.

a On May 25,2012, Ms. Demings was discharged from the hospital and admitted
to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas for
further recovery and rehabilitation. According to Ms. Demings' physician, this
resident had begun to make some improvement as evidenced by improvement
in her speech and increased movement of her left side.

o After being in the care of Garrison Nursing Home and Rehabilitation Center for
less than two weeks, Ms. Demings became "confused, combative, and unable to
communicate". On June 8,2012, she was taken by emergency medical services
back to Nacogdoches Medical Center for emergency evaluation. There a

l2
 computerized tomography (CT) scan of her head revealed an ischemic
infarction of her brain consistent with a stroke.

a One of Ms. Demings' consulting physicians, a neurological specialist,
documented in the medical record that Ms. Demings had suffered a
"Cerebrovascular accident extension with newly developed global aphasia,
aphasia and left-sided flaccid paralysis".

a Ms. Demings remained in the hospital for 12 days, and was discharged on June
20, 2012. At the time of her discharge from the hospital, Ms. Demings'
physician noted in his discharge summary that this patient's overall medical
condition had deteriorated as a result of her stroke she suffered at Garrison
Nursing home and Rehabilitation Center, to the point that Ms. Demings was
made a do-not-resuscitate status such that if she experienced a cardiovascular or
respiratory failure, she would not be intubated or placed on a ventilator or
breathing machine.

a A "Medication Error Report" made by the nursing staff of Garrison Nursing
Home and Rehabilitation Center on June 8, 2012, documented that from the
time Ms. Demings was first admitted to this facility on May 25,2012 until the
time of her stroke and transfer on June 8,2012, Ms. Demings was not given her
blood-thinning medication, Xarelto as ordered by her physician. This
medication had been ordered to be given in a dose of 20 milligrams (mgs) at
bedtime daily.

a This same report stated that "res. (resident) arrived after 5:00 pm on a Friday.
This medication (Xarelto) was ordered along (with) all other meds from nursing
home pharmacy nurse transcribing orders had to have all meds written on
-
pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be
delivered that night".

o The Medication Error Report went on to document that a nurse at this nursing
home "failed to transcribe this med (medication) to MAR (Medication
Administration Record)"... "an oversight". A question on this same form asked
"Could the error have endangered the life or welfare of the patient?" The
responsible nurse completing the form answered the question with "Makes her a
higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

t3
a On a subsequent hospitalization on August 5, 2012, in his pre-operative history
and physical, one of Ms. Demings' physicians documented what had happened
to her during her stay at Garrison Nursing Home and Rehabilitation Center
from May 25,2012 through June 8, 2012. This physician stated that prior to her
first admission to this nursing home, Ms. Demings "was found in atrial
fibrillation. She was started (on) Xarelto. Apparently... did not follow-through
in the nursing home, and she had.. strokes, disabling, with severe
She was rendered substantially disabled."

a This physician also documented in his discharge summary of this August 5,
2012 hospital stay, the importance of a patient such as Ms. Demings who
suffered with atrial fibrillation, to always remain on a blood-thinning
medication such as Xarelto. He stated that "She is to continue with Xarelto.
Instructions were given to the family to make sure that this medication is never
stopped."

o The staff of Garrison Nursing Home and Rehabilitation Center in Garrison,
Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for
the development of future strokes due to her past medical history which
included hypertension, atrial fTbrillation, a previous TIA and aprevious stroke.

See id. at pp. tI-14 (Appendix B) (CR 50). What is more, Dr. Miller reviewed the

report of Kaper, to which his report is supplementary. In Kaper's report, there is

also a discussion concerning causation:

Causal Relationship Between the Fail ure and the Iniurvl}{arm

Xarelto is a blood thinner, the precise purpose of which is to reduce
the risk of stroke in patients who suffer from atrial fibrillation.
Defendant(s) failed to provide Ms. Demings, with the Xarelto for
fourteen (14) days . She then had a severe stroke, which would have
in all reasonable medical probability been avoided had Ms. Demings
been administered the Xarelto, the purpose of which was to prevent a
stroke.

Further, the Medication Error Report generated by Defendant(s)
clearly recognizes the problem of not administering the Xarelto to Ms.
Demings Checking rr\Esrr to the question of whether the "error"

t4
(failure to administer the Xarelto to Ms. Demings), "could have
endangered the life or welfare of the patient," the Director of Nursing
stated:

Makes her a higher risk for stroke in view of her diag. of
atrial fibrillation (not taking it) Taking the medication
makes res. higher risk for a bleed.

Atrial fibrillation the heart to pump irregularly, and the
causes
concern is that pooling blood can clot in the upper chambers of the
heart. These clots may then sometimes travel through the body to the
brain, with a stroke being the result. As a result, many patients
diagnosed with atrial fibrillation are prescribed a blood thinner, one of
which is Xarelto,

Xarelto is designed to block the enzyme called Factor Xa. Factor Xa
is the activated form of the coagulation factor thrombokinase, known
eponymously as Stuart-Prower factor. Factor X is an eîzymq a serine
endopeptidase, which plays a key role at several stages of the
coagulation system. Inhibition of Factor Xa interrupts the intrinsic and
extrinsic pathway of the blood coagulation cascade, inhibiting both
thrombin formation and development of thrombi, Factor Xa is
inactivated by proteinZ-dependent protease inhibitor (ZPl"), a serine
protease inhibitor (serpin). By inhibiting Factor Xa in this way,
Xarelto is able to inhibit the dangerous blood clotting that can be a
result of a patient suffering from atrial fibrillation:. Xarelto is well
absorbed from the gut, and maximum inhibition of the Factor Xa
occurs four hours after a dose. The intended effect lasts approximately
8-12 hours, but Factor Xa activity does not return to normal within 24
hours.

Given that Ms. Demings had previously suffered a mild CVA, likely
as a result of clotting caused by atrial fibrillation, it was extremely
important that she be placed on (and maintain) a regime of medication
to reduce blood clotting. That is why Ms. Demings' treating physician
prescribed the Xarelto. Ms. Demings entered Defendant(s) facility to
rehabilitate herself. The family reports that she was doing very well,
that she could communicate well, and that she was fully cognizant.
According to the family, Ms. Demings was needing to gain strength in
her hand. It was only after she stopped taking the medication that she
suffered another, this time much more sever CVA that, according to

15
 the family totally and completely incapacitated her. The medical
records on June 8, 2012, indicate that any blood thinner that
Defendant(s)had huniedly administered to Ms. Demings had not
taken effect in time to stave off the CVA.

Since June of 2012, while taking the Xarelto, Ms. Demings' medical
records demonstratethat she has not suffered another CVA.

See Kaper Report 3-a (Appendix A) (CR 25). The information contained in these

two reports provides adequate information to inform GNH of (i.) the specific

standards of care at issue, (ii.) the specific conduct of GNH that Demings has

called into question, and (iii.) how GNH's conduct caused injrrry to her. Further,

the information provided a basis for the trial court to conclude that the claims have

merit, and are they are not frivolous. For these reasons, then, the statements on

causation as provided by Kaper and Dr. Miller are more than sufficient to meet the

requirements of the Medical Liability Act. GNH seems to interpret the Medical
Liability Act to require Demings to provide a level of proof that is more

attributable to what is expected at the final trial of this matter. Such is improper.

The reports provide reasoned analysis on the matter that provides a basis for

causation in this case. The trial court found the reports to be sufficient and denied

GNH's objections and motion to dismiss. Should this Court disturb the trial

court's decision in this case, such would be erroneous. See Van Ness v. ETMC

First Physicians,46l S.W.3d 140 (Tex. 2015).

t6
 D. Alternativelv. this is a ma tter of res ínsa loouitur.

For the reasons stated above, the expert reports that were furnished were

sufficient to meet the requirements of the Medical Liability Act. To upset the trial

court's ruling would be erroneous. See Van Ness v. ETMC First Physicians,46l

S.\M.3d 140 (Tex. 2015). Alternately, however, Demings also respectfully asserted

in the trial court that an expert opinion in this case on causation is not required in

this matter because the doctrine of res ipsa loquitur applies. Res ipsa loquitur \s

applicable when the following two circumstances are present: (1) the character of

the accident is such that it would not ordinarily occur in the absence of negligence,

and (2) the instrumentality causing the injury is shown to have been under the

management and control of the defendant. See Haddock v. Arnspiger,793 S.W.2d

948,950 (Tex. 1990). Res ipsa loquitur is a rule of evidence by which negligence

many be inferred, it is not a separate cause of action from negligence. Id. With

regard to medical malpractice cases, res ipsa loquitur applies to those cases to

which it had been applied as of August 29, 1977, the effective date of the Medical

Liability Act. Tpx. Crv. Pnacr. & Rrv. ConB Ann. ç74.20I (Jones McClure

2015). Res ipsa loquitur remains applicable to medical malpractice cases where

the nature of the alleged malpractice and injuries are within the common

knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at

951. The Haddock case describes examples of areas where res ipsa loquitur has

T7
been held to apply to medical malpractice claims: negligence in the use of
mechanical instruments, operating on the wrong portion of the body, and leaving

surgical instruments or sponges within the body. Id. This is the sort of case in

which res ipsa loquítur applies. GNH clearly asserted in its own report that the

failure to administer the Xarelto to Demings "makes her a higher risk for stroke in

view of her diag. of atrial defibrillation." No expert is needed - causation is shown
directly from GNH's own mouth. Put another wây, GNH, by failing to provide the

Xarelto to Demings caused her to suffer from the exact malady as what the

medicine is intended to prevent - a stroke. That is by definition res ipsa loquitur

As such, Demings would alternatively argue that expert testimony on causation is

not even necessary in this case.

CONCLUSION AND PRAYER
WHEREFORE PREMISES CONSIDERED, Appellee Legatha Demings

respectfully requests that the Court deny Appellants Garrison Nursing Home and

Rehabilitation Center's and Garrison Nursing Home, Inc.'s appeal in this matter,

affirm the order of the trial court in this matter, remand this matter to the trial

court, and grant to her any and all further relief to which she may be justly entitled.

18
 Respectfully Submitted,

L¡.w Onnrcn on SrrpHnN SHrnns, PLLC
Attorney and Counselor atLaw
123 San Augustine Street
Center, Texas 75935
Tel. (936) s98-30s2
Fax. (936) 598-3031
stephen@shireslawfi rm. com

By: /s/ Stephen Shires
\il.Stephen Shires
Texas Bar No.50511894
Attorney for Legatha Demings

CERTIFICATE OF SERVICE

This is to certi$ that on the 9th day of November,2015, atrue and correct
copy of the above and foregoing document was served on the following in
accordance with the Texas Rules of Appellate Procedure:

Mr. David W. Frost
1121 ESE Loop 323, Suite 200
Tyler, Texas 75701
Facsimile (903) 58 1 -3701
/s/ Stephen Shires
Stephen Shires

CERTIFICATE OF' WORD COUNT COMPLIANCE
I certifu that the word count of this Appellee's Brief is 5801 words. I relied
on the word count function of my word processor to determine this count. I certiSr
that this brief compliance with the typed-volume limitations of Texas Rule of
Appellate Procedure Number 9. It has been prepared in proportionately spaced
typeface in 14 pt. Times New Roman font.

Dated: November 9,2015

By: /s/ Stephen Shires
Stephen Shires

I9
 INDEX OF APPENDIX
A. Expert Report of Pauline Kaper
B. Expert Report of Dr. Keith Miller
C. Van Ness v. ETMC First Physicians,46I S.W.3d 140 (Tex. 2015)

D. Tpx. Ctv. Pnacr. & Rstvt. Coop Ann. ç74.201(Jones McClure 2015)
Tsx. Ctv. Pnecr. & RBIr,l. Coos Ann. 574.351 (Jones McClure 2015)
Tpx. Cw. Pnacr. & Rsivt. Coop Ann. ç74.403 (Jones McClure 2015)

20
 o

Append 1X
 DISAßTLTTY NHHDS
116 Tenaha Street
Center, Texas 15935
Phone: (936) 59i-8900 Pauline Kaper, R.N.
Facsimile: (936) 598-2300

JanuarY 10,2014
Mr, Stephen Sirires '\
Law Office of Stephen Shires PLLC
403 Nacogdoches Street, Suite 1

Center, Texas 75935

RE: Legatha Denmùngs v. Garrison Nursing Home and Relmbilitation Center, et. al,,
Cause Number CÍ+¡O¡ 19; in the District Court of Nacogdoches County, Texas

Dear Mr. Shires,

In response to your request for me to review the above-matter, the foliowing
is my report,
It is my r:lcle¡siandin[ ttrut yóu hnvc" instituted suit against Defendants Ganison Nursing Home
an¿ Ránabilitatior¡. Ceirter and Ganison Nur:sing Home, Inc., alleging that
they, through their
directors, officers, employees, and/or agents, committed negligence (and potentially gross
tnedisnlio¡:l to
neglige.rroe) against you]: ciient, Ms. Legalhtr Ðerrlnings, by fai.liilg Tr¡ adnünister
hei tliat had been prescribcd 1o her by her treating physician. \iou allege thal sl,le {.lien suff'ered a
severe stroke that the said medication was intendecl to prevert. It i.s rriy furthe¡: unrlc.lslnnclin¡¡
that you are assertí¡g tJrat ìJeft¡clant(s) also conlu,i{ßcl negligencc by failÍng
to itave a ¡:ltlcetlttre
in piacc to insure tliat rrrrors ir: î:.anscription of ¡:eço¡:tls (as was ilte ca,se in thj.s maller) do nnl
ardlor are iclentified ancl coueclecl in n timely rnârJticï. Thu fbllorl'irrg consti{irtes m.y
'sáor
o1:inion as to the relev¿ult standard of care govcrrrirrg nuruitrg honre concluct, how Def'end¿rrts
proximately
violate,cl their duties/stanrJarcl crf care to Ms. Dcmmings, and how those violations
caused Ms. Demmings' injurY.

A nnlicablc Stantlard ol' (-*arc

In general, nursing facilities have the following duties, among others, as a part of their
applicable standard of care:
1. to provide lcsidenls tliith rinrely ¿urd accr.uate care ¿Ì:ìsesËil1eüts ¿utcl necessal¡' srqlcrvision;
2. to use ïeasonable c¿ire in trealing resiclc¡rts rvith the cie'gree ol, sk"ilJ ancl learuing orrlinarily
possessed and used by nursing home facilitics in the salrc ür sirnilar locality; nrrcl

I
 and rnaintaining the higirest practicable level
of physical'
3. to assist residents in attainiirg
mental, and psychosocial well-being'
parlicular duties that are
Included within these general duties are the following
particularly relevant in this case:

o the duty to make sure that residents receive all
of their medications timely and in the
approPriate doses;
arrcì/Or: Úl'clers are acculalely
o the rluty to make sure that the rcsirienl,rs ¡:rescliption(s)
cha.rl,n^/reoortis and properly sent
transcribed by the rur::sing home stalf ontr¡ ilìe residctrt's
to be f,riled bY the PharmacY; and
accu¡acy of said tLanscriptions'
the duty to have a system in place that insures the
" til. to N{.tet
M ch d
Slatrdnl'tls ol'Care
.L

Nursing Home and
In this matter, Ms. Demrnings was a resident at Garrison
she rrad bee' rliagnosed with
r{e}nbilitati*n center for the purpose of seeking rerrabiritatior:.
carciiovascnlar ¿ccident ("cvA" or
arrjar fibriJ,ration and p."uio"Ëry suffered a milã iscrrcnric
,*stroke,,), and as a result, her ph.yrician had prcscriboel xarelto (20nrg) to be Hkcn to reduce the
greltcr a¡rd much mole scvei:e) CVA' The
rislc that she would suffer atrr:ther (and possibly
n:cclicalicxr *u, prup*,ìf oraerert by Dr. Ilen.Dis
ir*llrnun. I-}Orryer¡¡,r. i1** tr¡ ail err:(.r: in the
h:anscri¡:tir:n of the ,oa*í Uy a nulfÌe ín the cnrploy
of De'f'errdar:f(s)' thc Xarclto was nilt included
for Ms' Demmings' According to the
in the list of medications that Defendant(s) wås tó provide
Medication Error Report generated by Defendant(s):
hospital)] - Ies'
Error in transcription of order [(written doctor's order from
ordered along [with] ali
arrived ater l,oolp.m. on a Friday. This medication was
other meds nnr,, riu,:si,rg home ¡rl ur,'.,,nry - nur.se
lrarlscrillìng cUrlers had to have
all meds 1rh*ärruoy oirJer sheets and
faxcti itt 1o 1r¡nrruacy by 6 p'm' so
"uitt*n ",
¿*v-"ãrrá te deliverea thai night. Nurse transcribing faiied to transcribe this
med. to MAR' Al oversight.
orders are
At that time, Defendant did not appeã to have a system in place
to. insure
-that for Ms'
i"ranscrihecl proirerly, Å.s a result, ihe pharL,racy did
not frll a prescriptiol.for Xarelto
did not administer any
llennri:rgs, ar:cì from N,l;ry 25, ZOiZ, through iune,S, 2-012,Defendant(s)
Xarelto tä lr¿s. Demmings, as her doctor had prescribed'
'Further, it appears from that same Medication Error Report
tha! al some p-oint on June 8'
2012, after O"f"oa^tttqs) realized that they made a mistake
in not giving Ms. Demmings the
of the medication (60 mg) in a very
Xarelto, fufr. n"*-ioËr',h"r, was adminisiered th¡ee doses
,frot pétioa of time. This creates a veïy dangerous situation for Ms'
Demmings'

onJune8,20!2,Ms.Demmingssufferedasubsequent,verySevefeCVA'

For reasorrs that sh6¡.lcl be iqr¡rarent on ll:ßir face, it is irn¡:crntive
thtt' nnrsing holnes
nmount to its vesidsr¡'ts' cle::tninly, this i's an
administer the prr:per rneiiioation i,:r'the proper

2
 even to a healtliy
important issue for all medical personnel, including pharmacists, because
dose) rnay be extremely harmful, toxic
p"rron, ingestion of the wt'ong mådication (or the wÏ91g
and in some cases even lethal. This concern is magnified exponentially for residents in nursing
Further, the failure to
hornes, many of whom are already in a weakened physical condition'
can complicate
continue a rágime of medication that has already been introduced into the body
the pliysical l::oblems that the patient suffers from, and may cause problems with any other
medications that he or she is taking.
that his or her
Therefore, it is crucial that when a new resident is admitted to the facility
it comes.to prescriptions and medications'
information be properly transcribed, especially when
omitted, could lead to
For exampl., ,ho.,íd information about an allergy to a medication be such
a very dangerous situation. The exact same thing is true here where
the enor in the transcription
of thå order/records caused Defendants to fail to administer a medication to Ms. Demmings, the
purpose of which was to prevent any further (or more severe) strokes' As such, it is extremely
irnportant that ilie facility tav" u proô"rr in piace io verify that the transcription
is correct, or that
any mistake be caught aå quickly as possible and fixed. No such process existed in this case, and
as a result of Ms. Demmings .toi tuking the Xarelto, she suffered
a severe stroke while in the care
of Defendant(s).

C ¿rnd th

Xarelto is a blood thinner, the precise pulpose of which is to reduce the risk of stroke in
patients who su1'¡sr l1:::r nlrjal fib¡:illaiion. Def'erxiuurt(s) f'ai.led ln providc Ms. Dentnìngs
rvith
the Xar.eito for f:i:uïtcen (14) clays. She thsn lt¿lci a severe sir
When d2
Who notif ied the physician?
When?

Hes he seen the patient since the error was made7 úr", n¡ro
What precautions can you take to prevent a similar error

nð re¡ Nurse mð ettot o gnature o urslng

S¡9n¡t U Ph ysic lan
D ate

f orm 3117 BRtcGS, oes Mo¡nes, towa 50306 PRINTEO IN U.S.A MEDICATION FRRNR RtrÞñT¡T
Curriculum Vitae of

LOIS PAULINE I{APER, R.N.
B7B County Road
|oaquin, Texas 7 5954-33L8
Phone 936'248-45t4

JltilSLo_NAt;
Marital status Married.
Date of Birth: August 3,1939.

ED"lJç,ÁTION,I
Alvin funior Colìege
August t97Z - Associate inApplied Science Degree
San Iacinto Junior College
May I979 Nursing Home Administrator #4392

LICENSE:
Registered Nurse #2'28t64
Nursing Home Administration

T'liAclTI,l\1ft.
August - November lg}4lnstructor Alvin communify college
Meãication Administration course to certify Medication Aides

UXJIIil};W
A-¡¡eust lq72 - Itt
Registered Nurse at U.T.M.B. in Gaiveston, Texas

¡:ø - ¡¡*1979
Iulv ll974":.Mav
bii".totof Nursing at Manor Care - Texas City, Managed 40 nursing facility
employees and staffing for a 110 bed nursing home.

Ma¡' 197? - Itlcvenrbel:l
Administrator at Manor Care - Texas City. Managed 100 empioyees.
Operated the facilÍty within budget. impìemented a safefy prog{am which
réduced lost time accidents. One year with no accidents. Reduced the aged
accounts to a minimum. Developed an incentive plan and reduced sick
time to almost zero, Developed policies and procedure manuals, During
my admÍnistration, the facility maintained a Superior Rating with the Texas
Department of Health. Increased the private pay census to 50% and had a
waiting list for admissions.
 9!3 ;- Xe!:çt g¡lil!-q ¡-r-ll y' I h e S l- a tc Il r¡ a-r-dlf'NUr¡iug$ul
e,:
Ss p t c¡1i¡elå-1
Manor Care Nursing H;r; received a direct hit by Hurricane Alicia'
My
staff of twenty-two ãmployees and I cared for over ninety residents'
State

Board of Nursing necognized my facility for the job that we did during the
hurricane.

t8 3 --D ecq ÌlrJ:E: !lj¿84
D elcem h f¡*'!.
R%irt.;d Ñu.r. Coordinator of Home Health ServÍces at Memorial Hospital
of Galveston County. Employed to start up a new department of Home
Health Service, Coårdinating services in the home for NursÍng, Physical
of I and
Therapy, Occupational Therapy and Speech. Coordinated a staff
*orkud wit thã doctors and S-ocial Services to receive referrals. Developed
forms, policies and procedures manual to develop the Home Health
Department.

I_u¡sjggå:U.a rshlåB-6*
'itot"
of Texas v Autumn Hills Convalescent Center, Inc'
to work
Requeited by the Assistant Attorney General of Texas, David Marks
witir the prosecution of the staff and management of Autumn Hill Nursing
Home. ihe care concerned the multiple deaths of nursing home patients
but specifically Elnora Breed, As reported, "ln November L978, Mrs' Kaper,
R.N. a nursing consultant was hired by Autumn Hills NursÍng
Home after the
state health ãepartment found problems at the home. Mrs' I{aper was to
create and put.in place a plan of correction for the problerns' Mrs' Kaper
consulted with the staff and patients for three weeks and the state came back
and the problems *"ru ,eroÍved at that time." Mrs. I(aper worked with the
special prosecutor during the six month trial where she testified multiple
times cbncerning the murder case. The .State of Texas v Autum Hílls
Convalescent Center, Inc. revolved around the widespread care
and
deprivation and harm caused by a corporation's financial decision to cut
esiential services and supplies in order to maximize profits.

J¿rntl¡rr.v 1.9tF - L9B6
Mu.,o. Healthcare, lnc,: Asked to trouble shoot for a nursing home that
was in trouble as Administrator for Clear Lal