Cristina Marente, Individually and as Representative of the Estate of Christian Marente v. Eunice Asah and Epic Health Services, Inc.

ACCEPTED
06-15-00049-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/14/2015 7:12:21 PM
DEBBIE AUTREY
CLERK

No. 06-15-00049-CV

In the Sixth District Court of Appeals at Texarkana, FILED
TexasIN
6th COURT OF APPEALS
TEXARKANA, TEXAS
12/15/2015 8:24:00 AM
Christina Marente, Individually and as Representative
DEBBIEof the
AUTREY
Clerk
Estate of Christian Marente, Deceased,
Appellant

v.

Eunice Asah and Epic Health Services, Inc.,
Appellees

On Appeal from Cause No. 86812,
40th Judicial District Court, Ellis County, Texas
Hon. Bob Carroll, Presiding

JOINT BRIEF OF APPELLEES

David M. Walsh IV Winston L. Borum
State Bar No. 00791874 State Bar No. 02675500
dmwalsh@chambleeryan.com borum@borumhancock.com
Chamblee, Ryan, Kershaw & Borum & Hancock, L.L.P.
Anderson, P.C. 801 Cherry Street
2777 N. Stemmons Freeway Suite 2485
Suite 1157 Fort Worth, Texas 76102
Dallas, Texas 75207 (817) 336-4100, ext. 1 – Phone
(214) 905-2003 – Phone (817) 336-4141 – Fax
(214) 905-1213 – Fax

Counsel for Appellee Counsel for Appellee
Eunice Asah Epic Health Services, Inc.

Oral Argument Conditionally Requested
 Identities of Parties and Counsel

1. Appellant Christina Marente, Individually and as
Representative of the Estate of Christian Marente, Deceased

Represented in the trial court and on appeal by:

Douglas T. Floyd
3336 Therondunn Dr.
Plano, Texas 75023
(214) 704-7081 – Phone
(469) 519-9488 – Fax

2. Appellee Eunice Asah

Represented in the trial court by:

Peter H. Anderson
Kimberly K. Bocell
David M. Walsh IV
Chamblee, Ryan, Kershaw & Anderson, P.C.
2777 N. Stemmons Freeway, Suite 1157
Dallas, Texas 75207
(214) 905-2003 – Phone
(214) 905-1213 – Fax

Represented on appeal by:

David M. Walsh IV
Chamblee, Ryan, Kershaw & Anderson, P.C.
2777 N. Stemmons Freeway, Suite 1157
Dallas, Texas 75207
(214) 905-2003 – Phone
(214) 905-1213 – Fax

3. Appellee Epic Health Services, Inc.

Represented in the trial court and on appeal by:

2
Winston L. Borum
Borum & Hancock, L.L.P.
801 Cherry Street
Suite 2485
Fort Worth, Texas 76102
(817) 336-4100, ext. 1 – Phone
(817) 336-4141 – Fax

3
 Table of Contents

Identities of Parties and Counsel 2

Index of Authorities 8

Statement of the Case 14

Statement Regarding Oral Argument 15

Issues Presented 15

Introduction 16

Statement of Facts 19

A. The Medical Events 19

B. The Lawsuit 23

Summary of the Argument 26

Argument 27

A. The abuse of discretion standard applies 27
to this case

B. The trial court did not abuse its discretion 29
in finding neither expert qualified

1. Chapter 74 requires qualified experts 29

a. Chapter 74 provides detailed rules 30
for one to qualify as an expert against
a health care provider

4
 b. Judicial interpretations of the statute 33
require “expertise” on the subject matter
of the case

c. The statutory requirements require a 44
limited view of the qualifications issue

2. Marable never explained any knowledge base 47
that qualified him to offer opinions about
tracheostomy nursing care in a
home-health setting

a. Marable’s CV did not demonstrate he 48
was qualified

b. Marable’s first report did not show he 48
was qualified

c. Marable’s amended report showed no 53
experience with the subject matter
at hand

3. Bingham never explained what qualifications 59
she had to offer opinions about nursing care
in a home-health setting

a. Bingham’s first report and CV did not 59
demonstrate qualifications for this case

b. Bingham’s second report and CV do not show 62
she was qualified

c. Bingham’s third report and CV do not 69
establish that she is qualified

5
 4. The experts’ claim that Marente said that 72
changing the tracheostomy tube was not
Nurse Asah’s responsibility does not
render the experts qualified

5. Marable was not qualified to offer opinions 77
about Epic’s potential direct liability

C. While Marente did not need a separate expert on the 80
issue of the vicarious liability issue, she still needed to
have a qualified expert report for Nurse Asah’s conduct
in order for the vicarious liability claim to proceed;
because Marente had no qualified expert regarding
Nurse Asah, the vicarious liability claim against
Epic failed

D. The trial court did not abuse its discretion by finding 82
the experts were not qualified and dismissing
Marent’s claims

E. Marent’s other arguments about the sufficiency of the 84
reports on the statutory elements are irrelevant

Prayer 87

Certificate of Service 89

Certificate of Compliance 89

6
Appendix

1. Order on Defendants Eunice Asah’s and Epic Health
Services, Inc.’s Objections to Plaintiff’s Amended Chapter 7
Expert Reports and Motions to Dismiss
2. Curriculum Vitae of Charles Marable, M.D.
3. Amended Expert Report of Charles Marable, M.D.
4. Curriculum Vitae of Patti Bingham, R.N.
5. Amended Expert Report of Patti Bingham, R.N.
6. Tex. Civ. Prac. & Rem. Code § 74.402

7
 Index of Authorities

Cases

Adeyemi v. Guerrero, 42
329 S.W.3d 241 (Tex.App.—Dallas 2010, no pet.)

Am. Transitional Care Ctrs. of Tex. v. Palacios, 27-28
46 S.W.3d 873 (Tex.2001)

Arlington Mem’l Hosp. v. Baird,
991 S.W.2d 918 (Tex.App.—Ft. Worth 1999, 62
pet. denied)

Bowie Mem’l Hosp. v Wright, 19, 28-29
79 S.W.3d 48 (Tex. 2002)

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

Carreras v. Trevino, 40
298 S.W.3d 721 (Tex.App.—Corpus
Christi-Edinburg 2009, no pet.)

Certified EMS, Inc. v. Potts, 81
392 S.W.3d 625 (Tex. 2013)

Chester v. El-Ashram, 37
228 S.W.3d 909 (Tex.App.—Dallas 2007, no pet.)

Chisholm v. Maron, 85
63 S.W.3d 903 (Tex.App.—Amarillo 2001, no pet.)

Christus Health Ark-La-Tex v. Curtis, 28
412 S.W.3d 44 (Tex.App.—Texarkana 2013, pet.
denied)

Coastal Oil & Gas Corp. v. Garza Energy Trust, 63
268 S.W.3d 1 (Tex. 2008)
8
Davisson v. Nicholson,
310 S.W.3d 5435 (Tex.App.—Ft. Worth 2010, no pet) 33

E.I. du Pont de Nemours & Co. v. Robinson, 34
923 S.W.2d 549 (Tex. 1995)

FFE Transp. Servs., Inc. v. Fulgham, 73
154 S.W.3d 84 (Tex. 2004)

Forrest v. Danielson, 39
77 S.W.3d 842 (Tex.App.—Tyler 2002, no pet.)

Foster v. Zavala, 40
214 S.W.3d 106 (Tex.App.—Eastland 2006, pet.
denied)

Ganske v. Spence, 28
129 S.W.3d 701 (Tex.App.—Waco 2004, no pet.)

Group v. Vicento, 42
164 S.W.3d 724 (Tex.App.—Houston [14th Dist.]
2005, pet. denied)

Helena Chem. Co. v. Wilkins, 33
47 S.W.3d 486 (Tex. 2001)

Hendrick Med. Ctr. v. Conger, 40, 84
298 S.W.3d 784 (Tex.App.—Eastland 2009, no pet.)

Hollingsworth v. Springs, 29
353 S.W.3d 506 (Tex.App.—Dallas 2011, no pet.)

HN Tex. Properties, L.P. v. Cox, 40
No. 02-09-00111-CV, 2009 WL 3337190 *3-*4
(Tex.App.—Ft. Worth 2009, no pet.)

9
Jones v. King, 73
255 S.W.3d 156 (Tex.App.—San Antonio 2008,
pet. denied)

Kerr-McGee Corp. v. Helton, 63
133 S.W.3d 245 (Tex. 2004)

Larson v. Downing, 34
197 S.W.3d 303 (Tex. 2006)

Loaisiga v. Cerda, 86
379 S.W.3d 248 (Tex. 2012)

Mangin v. Wendt, 40
No. 01-14-00852-CV, 2015 WL 6830198 *4-*6
(Tex.App.—Houston [1st Dist.] 2015, no pet. h.)

In re McAllen Med. Ctr., Inc., 40
275 S.W.3d 458 (Tex. 2008)

Methodist Hosp. v. Shepherd-Sherman, 34
296 S.W.3d 193 (Tex. App.—Houston [14th Dist.]
2009, no pet.)

Obstetrical & Gynecological Assocs., P.A. v. McCoy, 80
283 S.W.3d 96 (Tex.App.—Houston [14th Dist.]
2009, pet. denied)

Olveda v. Sepulveda, 38
141 S.W.3d 679 (Tex.App.—San Antonio 2004,
pet. denied)

Packard v. Guerra, 74-75
252 S.W.3d 5112 (Tex.App.—Houston [14th Dist.]
2008, pet. denied)

Perry v. Bradley, 33, 36, 83
No 10-10-00402, 2011 WL 6415135 *3n.1
(Tex.App.—Waco 2011, no pet.)
10
Reed v. Granbury Hosp. Corp., 33, 39
117 S.W.3d 404 (Tex.App.—Ft. Worth 2003, no pet.)

Salais v. Tex. Dept. of Aging and Disability Servs., 28
323 S.W.3d 527 (Tex.App.—Waco 2010, pet. denied)

Samlowski v. Wooten, 29
332 S.W.3d 404 (Tex. 2011)

In re Samonte, 41, 83
163 S.W.3d 229 (Tex.App.—El Paso 2005)
(orig. proceeding)

Stephanie M. Phillipp, P.A. v. McCreedy, 19
298 S.W.3d 682 (Tex.App.—San Antonio 2009, no pet.)

Tenet Hosp. Ltd. v. Love, 40
347 S.W.3d 743 (Tex.App.—El Paso, no pet.)

Thomas v. Alford, 34
230 S.W.3d 853, 857 (Tex.App.—Houston [14th Dist.]
2007, no pet.)

Tomasi v. Liao, 39
63 S.W.3d 62 (Tex.App.—San Antonio 2001, no pet.)

Van Ness v. ETMC First Physicians, 82
461 S.W.3d 140 (Tex. 2015)

Weisgram v. Marley Co., 62-63
528 U.S. 440 (2000)

In re Windisch, 34, 41
138 S.W.3d 507 (Tex.App.—Amarillo 2004, no pet.)

Yamada v. Friend, 86
335 S.W.3d 192 (Tex. 2010)

11
Statutes

Tex. Civ. Prac. & Rem. Code § 74.351(a) 17

Tex. Civ. Prac. & Rem. Code § 74.351(c) 86

Tex. Civ. Prac. & Rem. Code § 74.351(r)(5)(B) 30

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) 30

Tex. Civ. Prac. & Rem. Code § 74.351(s) 20

Tex. Civ. Prac. & Rem. Code § 74.401 32

Tex. Civ. Prac. & Rem. Code § 74.402 32

Tex. Civ. Prac. & Rem. Code § 74.402(b) 31, 56

Tex. Civ. Prac. & Rem. Code § 74.402(b)(1) 33, 45

Tex. Civ. Prac. & Rem. Code § 74.402(c) 31

Tex. Civ. Prac. & Rem. Code § 74.402(d) 31, 74

Tex. Civ. Prac. & Rem. Code § 74.403(a) 62

Tex. Occ. Code § 301.002(2) 61

Tex. Occ. Code § 301.002(5) 61

Tex. Rev. Civ. Stat. Art. 4590i § 14.01(a) 32, 33

Tex. Rev. Civ. Stat. Art. 4590i § 14.01(a)(1) 33-34

Tex. Rev. Civ. Stat. Art. 4590i § 14.01(c) 32

Tex. R. App. P. 38.2(a)(1)(B) 20

Tex. R. App. P. 41.3 28 n.2
12
Miscellaneous

W. Wendell Hall, Standards of Review in Texas, 29
38 St. Mary’s L. J. 47, 62 (2006)

https://www.nlm.nih.gov/medlineplus/ency/article/002955.htm 29 n.1

13
 Statement of the Case

Nature of the Case: This health care liability claim arises out of
nursing care that Eunice Asah, R.N.
provided to Christian Marente in a home-
health setting. CR 8, 17, 43-44, 50, 64, 74,
266-267, 308-309, 326, 328, 332, 351-352,
354 (all discussing the fact that Nurse Asah
cared for Christian in his home). Nurse
Asah was employed by Epic Health Services,
Inc. See CR 17.

Course of the Marente sued and initially served only a
Proceedings: nursing expert report in her effort to comply
with the Chapter 74 preliminary expert
report requirement; Defendants objected to
that nurse’s qualifications. CR 7-15; 40-56.
Marente then served the report of a
neurologist; Defendants again objected. CR
57-163. After Marente responded and
argued that the experts were qualified, the
trial court found the reports were deficient
and granted Marente a 30-day extension to
cure the deficiencies. CR 193-196. Marente
served “amended” reports from the nurse
and neurologist; Defendants again objected.
CR 197-306.

Trial Court’s After hearing from the parties and extensive
Disposition: post-argument briefing, the trial court
found that the nurse and neurologist were
not qualified and dismissed the case with
prejudice and awarded attorneys’ fees and
costs. CR 307-359; 368; 379-385. This
appeal followed. CR 395.

14
 Statement Regarding Oral Argument

Appellees believe that this case can be decided without oral

argument. The central issue in the case is whether Marente’s nursing

and neurology experts were qualified to offer opinions about Nurse

Asah’s care in a home-health setting. Under the abuse of discretion

standard of review that applies to cases like this one, that

determination can easily be made by reviewing paperwork – the

reports and curricula vitae of the purported experts. Argument

should not be helpful in (a) determining qualifications and (b)

determining whether the trial court’s qualifications ruling amounted

to an abuse of discretion. Despite the belief that this Court can

decide this case without argument, Appellees conditionally requested

oral argument to preserve their right to argue should this Court

determine that argument would assist the resolution of the case.

Issues Presented

Issue 1 (Responsive to Appellant’s Issues 1 and 2): In order to

be qualified under Chapter 74, an expert must have expertise in the

specific subject matter at issue in the case. The subject matter here

is providing home-health care to a ventilator-dependent patient

whose tracheostomy tube became dislodged and how to respond to
15
an emergency in that setting. Neither expert had any experience in

that practice setting or with that subject matter. Did the trial court

abuse its discretion in finding the experts were not qualified and then

dismissing the case?

Issue 2 (Responsive to Appellant’s Issue 3): Under Chapter 74,

a claimant must provide an expert report that connects the dots for

one entire theory of the case to maintain a claim against a party. A

theory of vicarious liability based on an employee’s conduct requires

a report that satisfies the Chapter 74 elements (including

qualifications) for the employee’s conduct. Neither report satisfied

the Chapter 74 burden as to Nurse Asah. Did the trial court abuse

its discretion in dismissing the claims against Epic Health Services,

Inc. when no report from a qualified expert satisfied the Chapter 74

burden?

Introduction

It has been said that “hard facts make bad law.” The temptation

exists here because the case presents very sympathetic facts:

Christian Marente suffered very serious pre-existing medical

conditions, was ventilator-dependent, and died as a result of the

displacement of his tracheostomy tube that Nurse Eunice Asah’s
16
could not replace. But that a sympathetic patient died under the

watch of a health care provider does not mean that the provider was

negligent or even that the resulting claim had any merit. Indeed

Texas law requires claimants in such health care case to serve an

expert report early in the case that demonstrates the claim has merit

to prevent overly sympathetic juries from reaching an incorrect

conclusion based on that sympathy. Tex. Civ. Prac. & Rem. Code §

74.351(a).

The trial court – while acknowledging the obvious sympathy for

Christina Marente’s situation – did not succumb to the temptation to

make bad law. See CR 371 (acknowledging that Christian’s death

was a tragedy and that “the sympathy of the trial court is

understandably with his surviving mother”). Instead the trial court

thoroughly evaluated the expert reports and case law, requested

multiple rounds of briefing from the parties, and ultimately

concluded that, despite the sympathy, dismissal was “the legally

correct result.” Id. See also CR 307-359 (containing the parties’ post-

argument briefing and the trial court’s additional questions and

analysis).

17
 Marente’s general arguments that the reports met the statutory

requirements ignore the fact that neither expert was qualified. And

her specific argument on qualifications ignores the fact that neither

expert had any experience in this particular health care setting:

providing home-health nursing care to a ventilator-dependent patient

when an emergency arises. Marente’s approach to qualifications is

the exact opposite of the Supreme Court’s requirement that experts

have expertise “on the very subject matter” on which they offer

opinions. Broders v. Heise, 924 S.W.2d 148, 153-154 (Tex. 1996).

The trial court properly rejected Marente’s arguments because the

law requires more expertise than her experts demonstrated.

The deferential standard of review must be kept in mind at all

times in assessing the judgment of the trial court. An appellate court

reviews a trial court’s rulings on Chapter 74 expert reports as well as

on expert qualifications for an abuse of discretion, i.e. the trial court

must have acted arbitrarily without reference to any guiding

principles or rules. Under this standard, the question is never

whether this Court agrees with the result below, but instead whether

any reasonable court could have ruled in that fashion. With the

18
degree of deference owed to the ruling below, this Court should

affirm.

Appellees are not attempting to parse nuances of medicine or

be hypercritical of a fellow lawyer. Nor are they trying to make courts

the “pawns in the ‘little game’ of expert report litigation” and the

apparent development of “a cottage industry of expert-report

litigation.” See Stephanie M. Phillipp, P.A. v. McCreedy, 298 S.W.3d

682, 684 (Tex.App.—San Antonio 2009, no pet.). The expert report

serves an important function: informing the defendant of the conduct

called into question and demonstrating to the court that the claim

has merit. Bowie Mem’l Hosp. v Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Here, serious concerns exist regarding the qualifications of the

experts. Appellees and the trial court were not being hypertechnical

or splitting hairs by having these concerns.

Statement of Facts

A. The Medical Events

As a preliminary note regarding these facts, the trial court

dismissed the case at the expert report stage. Unlike a trial on the

merits where the facts can be contested, the only possible sources for

what occurred are the expert reports and Marente’s pleading.
19
Discovery did not occur. See Tex. Civ. Prac. & Rem. Code § 74.351(s).

Nurse Asah and Epic did not have the opportunity to create an

appellate record that contained their side of the story let alone have

the opportunity to prove to a jury that their side was the correct

version of the facts. While the facts in this Brief must necessarily

come from Marente’s version of the case, Appellees do not agree with

those facts and, by reciting them in this brief, do not admit that those

facts are true.

With that important caveat, Nurse Asah and Epic provide this

Statement of Facts because they are dissatisfied with Marente’s. Tex.

R. App. P. 38.2(a)(1)(B). An important component for dissatisfaction

with Marente’s Statement of Facts is that it appears unhelpful

because it is bereft of citations to the record – with the sole exception

of a single citation to a lengthy quote from the allegations contained

in the First Amended Petition. Appellant’s Brief, pp. 5-7.

Christian Marente had a difficult life. At age 17, important

medical notes by his physician included the fact that he “was eating

and drinking by mouth.” CR 50. Such simple tasks should easily be

within the reach of 17-year olds, but Christian was different. He

suffered from Jeune syndrome and restrictive lung disease. Id.
20
According to Marente’s own experts, Jeune syndrome – asphyxiating

thoracic dystrophy – “is a rare autosomal recessive skeletal

dysplasia” (a cellular abnormality affecting growth, development, and

function) that is “characterized by a small, narrow chest and variable

limb shortness.” Id. With the narrow ribcage, breathing problems

occur because the lungs do not “develop[] fully or expand[] when the

child inhales.” CR 63

Not only was Christian’s condition rare, but also was the fact

that he lived for 17 years because “there is considerable neonatal

mortality” with his condition. CR 50. Even if one survives the

neonatal period, complications abound, including kidney, liver,

pancreas, and eye problems. Id. Christian’s disease “left him with a

tracheostomy1 and mechanical-ventilator depend[ence]” in addition

1 A tracheostomy, according to Medline, is an operation to create an
opening through the neck into the trachea (windpipe). A tube is usually placed
through this opening to provide an airway and to remove secretions from the
lungs. https://www.nlm.nih.gov/medlineplus/ency/article/002955.htm (last
visited November 18, 2015). After placement, the neck would look – generally –
like the following:

21
to having asthma and chronic kidney disease that required a

transplant five years before his death. Id. (And even after the

transplant, Christian’s medical records reflect that he still suffered

from “kidney failure.” CR 63.) He required two liters of oxygen per

minute; up to three liters at night. CR 50. The only time he was free

from the ventilator “was when he was being bathed.” CR 64.

Not surprising for a patient with these conditions, Christian

needed round the clock nursing care. Id. On the day in question,

Nurse Asah was Christian’s home-health nurse. CR 50. She bathed

Christian, which necessarily involved disconnecting him from the

22
ventilator. CR 64. The record is unclear as to the exact mechanism

but Christian’s tracheostomy tube “came out.” Compare CR 50-51

(describing the tube coming out) with CR 241-242 (describing Nurse

Asah removing and replacing the tube as part of cleaning Christian).

Nurse Asah “made multiple attempts to place the…tube…but was

unable to do so, even with a smaller tube.” CR 50. See also CR 241-

242 (describing Nurse Asah’s efforts to replace the tube, including

using a 5.0 tracheostomy tube). She then used a bag valve to attempt

ventilation and called 911. CR 50, 242. In the end, Christian was

without a pulse for a protracted period and eventually died. CR 50,

65, 242, 257.

B. The Lawsuit

Less than a year after Christian’s death, Marente (in her own

capacity as well as representative of his estate) sued Nurse Asah and

her employer Epic. CR 7-15. Shortly thereafter, and before either

Defendant answered, she amended her pleading. CR 16-24. While

she asserted claims related to malpractice, DTPA, and assault, the

gravamen of her complaint related to the medical care that Nurse

Asah and Epic provided to Christian. Id. Nurse Asah and Epic timely

23
answered. CR 25-39. The debate then began over the sufficiency of

Marente’s Chapter 74 expert reports.

Marente joined the issue by initially serving Nurse Asah with a

report from Patti Bingham, R.N. in April 2013, but apparently did not

serve Epic at that time. CR 40; CR 83. Within the 21 days to object,

Nurse Asah objected to Bingham’s qualifications. CR 43-45. In late

June 2013, Marente served both Defendants with a report from

neurologist Charles Marable, M.D. and a second report from

Bingham. CR 57-58, 62, 73. Epic and Nurse Asah timely objected to

these reports and moved to dismiss, again pointing out that neither

expert was qualified among other arguments. CR 82-163,

particularly CR 88-96 and 132-140. Marente separately responded.

CR 164-192.

The trial court heard the objections and dismissal motions in

August 2013 and concluded, in relevant part, that the reports were

deficient because neither expert was qualified to express opinions on

the standard of care. CR 193-194. The trial court gave Marente 30

days to cure the deficiencies in the reports. CR 194. Within that 30-

day period, Marente served “amended” reports by Marable and

Bingham. See CR 197. These reports relied on certain information
24
provided by Marente and, according to Nurse Asah and Epic, still did

not establish the qualifications of either expert, resulting in a second

round of objections and dismissal motions based on the

qualifications issue. CR 199-265, particularly 206-216 and 225-235.

Marente responded separately to each motion. CR 266-306.

The trial court heard this second round of arguments in

November 2013, but the trial court’s conscientious evaluation of

these legal issues did not end there. CR 307. Instead, that hearing

merely began the conversation between the court and the parties

about the legal issues and the experts’ claims about facts and

included several questions by the trial court about the contours of a

potential ruling. In the first wave of post-argument briefing,

Defendants addressed specific issues raised during the hearing,

ultimately arguing that Bingham and Marable were not qualified. CR

307-312. Marente responded; Defendants replied. CR 313-323.

A few months later, the trial court issued a letter ruling that

generally found neither expert qualified on the issues in this case but

requested ancillary briefing on some specific concerns about the

resuscitative efforts by Nurse Asah. CR 324-330. Defendants

responded, explaining why the statute required expert reports even
25
for the resuscitative efforts and that neither expert was qualified. CR

331-335. Marente responded. CR 336-346. The trial court issued

another request for briefing about specific components of Marente’s

response, including whether the assault claim could survive without

an expert report and whether it mattered whether this task of

changing the tracheostomy tube was assigned to Nurse Asah. CR

347-349. Defendants and Marente responded to the trial court’s

questions. CR 350-359. After reviewing all the documents in the

case and extensive case law, the trial court finally ruled that the

experts were not qualified and granted Defendants’ Motions to

Dismiss. CR 368-372; 379-385. This appeal followed. CR 395.

Summary of the Argument

For a person to qualify as an expert under the health care

statute, he or she must provide the same type of care as the

defendant at the time of the opinions or at the time when the

defendant provided care. The person must have expertise in the very

subject matter at issue in the case. Neither of Marente’s experts had

experience providing home-health care to a ventilator dependent

patient, which was the type of care provided by Nurse Asah. Neither

“expert” had expertise in the very subject matter of the case. Because
26
the experts were not qualified, Marented did not serve an expert

report in the time provided by Chapter 74, mandating dismissal of

her claims. The trial court did not err when it determined that

Martente’s experts were not qualified.

The standard of review in this case provides another reason why

this Court should affirm. In order to amount to an abuse of

discretion so that this Court could reverse, the trial court had to act

without reference to guiding principles. The guiding principle of the

statute necessitates that the so-called expert practice the same type

of care. Guiding principles from case law requires that the expert

have expertise in the specific subject of the case. Because the trial

court acted in reference to guiding principles, any error in the trial

court’s evaluation of the experts’ qualifications did not amount to an

abuse of discretion. This Court should affirm.

Argument

A. The abuse of discretion standard applies to this case

The abuse of discretion standard applies to an appellate court’s

review of a trial court’s order on a Chapter 74 motion to dismiss. See

Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875

(Tex. 2001); Christus Health Ark-La-Tex v. Curtis, 412 S.W.3d 44, 46
27
(Tex.App.—Texarkana 2013, pet. denied); Salais v. Tex. Dept. of Aging

and Disability Servs., 323 S.W.3d 527, 532 (Tex.App.—Waco 2010,

pet. denied). 2 The abuse of discretion standard also applies to this

appeal because the issue is the experts’ qualifications, which is

reviewed under that standard. Salais, 323 S.W.3d at 531.

Under the abuse of discretion standard, an appellate court must

determine if the trial court acted “arbitrarily and without reference to

any guiding rules or principles.” Christus Health Ark-La-Tex, 412

S.W.3d at 46. See also Ganske v. Spence, 129 S.W.3d 701, 706

(Tex.App.—Waco 2004, no pet.)(requiring an arbitrary and

unreasonable decision before it amounts to an abuse of discretion).

When reviewing factual matters committed to the trial court’s

discretion, an appellate court may not substitute its judgment for

that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002). An appellate court cannot find an abuse of discretion

“merely because a trial court may decide a matter within its

2 This case appears in this Court via transfer from the Tenth District Court
of Appeals at Waco pursuant to the Supreme Court’s administrative order
equalizing the dockets. Misc. Docket No. 15-9114 (June 23, 2015). In such
cases, the Court of Appeals receiving the case “must decide the case in
accordance with the precedent of the transferor court under principles of stare
decisis if the transferee court’s decision otherwise would have been inconsistent
with the precedent of the transferor court.” Tex. R. App. P. 41.3.
28
discretion in a different manner than [the appellate court] would in a

similar circumstance.” Hollingsworth v. Springs, 353 S.W.3d 506,

513 (Tex.App.—Dallas 2011, no pet.). Thus, this standard “insulates

the trial judge’s reasonable choice from appellate second guessing.”

Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011)(quoting W.

Wendell Hall, Standards of Review in Texas, 38 St. Mary’s L. J. 47,

62 (2006)).

B. The trial court did not abuse its discretion in finding
neither expert qualified

1. Chapter 74 requires qualified experts

Within 120 days of filing suit, 3 a health care liability claimant

must serve “one or more expert reports, with a curriculum vitae of

each expert listed in the report….” Tex. Civ. Prac. & Rem. Code §

74.351(a). This statute defines an “expert report” as a “report written

by an expert that provides a fair summary of the expert’s opinions”

on the standard of care, breach, and the causal relationship between

the breach and alleged injury. Tex. Civ. Prac. & Rem. Code §

74.351(r)(6).

3 At the time suit was filed in the present case, the trigger for service of the
report was the filing of the petition, but effective September 1, 2013, the trigger
is the defendant’s answer. Compare Acts 2005, 79th Leg., ch. 635 § 1, eff. Sept.
1, 2005 with H.B. 658 § 2, 83rd Leg., eff. Sept. 1, 2013.
29
 a. Chapter 74 provides detailed rules for one to
qualify as an expert against a health care provider

Appellees have never asserted that Marable and Bingham are

unqualified to provide opinions in every case, just that they have not

shown themselves were qualified in this case – as was found by the

trial court. The expert-report statute defines who qualifies as an

expert, requiring that a person providing standard of care and breach

opinions against a health care provider meet the requirements in

Section 74.402 of the Texas Civil Practice & Remedies Code. Tex.

Civ. Prac. & Rem. Code § 74.351(r)(5)(B). That section has stringent

requirements for expert qualifications, mandating that a person

qualifies as an expert “only if the person:

(1) is practicing health care in a field of practice that
involves the same type of care or treatment as that
delivered by the defendant…at the time the testimony
is given or was practicing that type of health care at
the time the claim arose;
(2) has knowledge of accepted standards of care for
health care providers for the diagnosis, care, or
treatment of the illness, injury, or condition involved
in the claim; and
(3) is qualified on the basis of training or experience to
offer an expert opinion regarding those accepted
standards of health care.”

Tex. Civ. Prac. & Rem. Code § 74.402(b)(emphasis added). Other

factors that the trial court must consider are whether the person is
30
certified by a licensing agency or has substantial training or

experience “in an area of health care relevant to the claim” and

actively practices “in an area of health care services relevant to the

claim.” Tex. Civ. Prac. & Rem. Code § 74.402(c). A trial court may

only depart from these standards with “good cause” and then must

state the reasons “on the record.” Tex. Civ. Prac. & Rem. Code §

74.402(d).

From a historical perspective, one should remember that the

2003 tort reform provisions tightened up the qualifications

requirements for experts in health care liability claims. Under former

Article 4590i of the Texas Revised Civil Statutes, Section 14.01

provided that an expert was qualified if he or she

(1) is practicing medicine at the time such testimony is
given or was practicing medicine at the time the claim
arose;
(2) has knowledge of accepted standards of medical care
for the diagnosis, care, or treatment of the illness,
injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to
offer an expert opinion on those accepted standards
of medical care.

Tex. Rev. Civ. Stat. Art. 4590i § 14.01(a). The former statute also

required a court to consider whether the expert was board certified

or had substantial training or experience in an area of medical
31
practice relevant to the claim and was actively practicing medicine in

rendering medical services relevant to the claim. Tex. Rev. Civ. Stat.

Art. 4590i § 14.01(c).

While the two statutes have some similarity, important

differences exist. First, the provision in Article 4590i pertained to

experts offering criticisms against physicians and did not

differentiate different between health care providers and physicians

as the current statute does. Compare Tex. Rev. Civ. Stat. Art. 4590i

§ 14.01(a) with Tex. Civ. Prac. & Rem. Code §§ 74.401 and 74.402.

Second – and perhaps more importantly here – it strengthened the

requirement in the first subsection, not only requiring active practice

at the time of the events or the time of the testimony but also

requiring that the practice involve “the same type of care or

treatment as that delivered by the defendant.” Compare Tex.

Rev. Civ. Stat. Art. 4590i § 14.01(a)(1) with Tex. Civ. Prac. & Rem.

Code § 74.402(b)(1) (emphasis added).

b. Judicial interpretations of the statute require
“expertise” on the subject matter of the case

Courts interpreting Chapter 74 and the predecessor statute

mandate that the qualifications be apparent from the four corners of

32
the report or the curriculum vitae of the purported expert. Perry v.

Bradley, No 10-10-00402, 2011 WL 6415135 *3n.1 (Tex.App.—Waco

2011, no pet.); Davisson v. Nicholson, 310 S.W.3d 543, 550-552, 553-

555 (Tex.App.—Ft. Worth 2010, no pet). A trial court has an

obligation to ensure that “those who purport to be experts truly have

expertise concerning the actual subject about which they are offering

an opinion.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.

2001). General experience is insufficient to qualify as an expert in a

specialized subject. Reed v. Granbury Hosp. Corp., 117 S.W.3d 404,

410 (Tex.App.—Ft. Worth 2003, no pet.).

The proponent of the expert must “establish that the expert has

knowledge, skill, experience, training, or education regarding the

specific issue before the court which would qualify the expert to give

an opinion on that particular subject.” Broders, 924 S.W.2d at 153

(emphasis added, internal quotation marks omitted). Courts must

scrutinize the expert’s qualifications regarding the specific issue in

the case in order to determine if the expert is qualified. Methodist

Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 198 (Tex. App.—

Houston [14th Dist.] 2009, no pet.); Thomas v. Alford, 230 S.W.3d

853, 857 (Tex.App.—Houston [14th Dist.] 2007, no pet.); In re
33
Windisch, 138 S.W.3d 507, 512-513 (Tex.App.—Amarillo 2004, no

pet.). This scrutiny must occur because some experts are willing to

offer dubious opinions “for the proper fee.” E.I. du Pont de Nemours

& Co. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995).

In Larson v. Downing, the Supreme Court reviewed a trial

court’s decision to exclude an expert due to lack of qualifications.

197 S.W.3d 303, 303-305 (Tex. 2006). The specific issue in that case

that arose under Article 4590i was the purported negligence of a

plastic surgeon who left a muscle entrapped when repairing an

orbital blow-out fracture. Id. at 304. It had been 15 years since the

expert had treated an orbital blow-out fracture, and the expert had

never used the specific mesh that the defendant had used to repair

the fracture. Id. The expert pointed to being licensed in several

states, his board certification in plastic surgery, and a professorship

in plastic surgery that ended just before the care in question. Id. The

expert explained in his deposition that, as one advances in a plastic

surgery career, he or she tends to practice cosmetic surgery because

it involves fewer emergencies than general plastic surgery. Id. Plus

there was no indication that the expert had ever taught this

procedure. Id.
34
 With this record, the trial court excluded the expert’s testimony

because the expert was not qualified. Id. The appellate court reversed

because a qualified expert did not necessarily have to perform the

same procedure and teaching was specifically included in the

definition of “practicing medicine” in the predecessor statute. Id. The

Supreme Court reversed the court of appeals, reinstating the trial

court’s ruling. Id. at 305. The Supreme Court noted that the trial

court had to consider whether the expert actively practiced medicine

in an area relevant to the claim and that the expert had not performed

the procedure in years, which suggested that he was not actively

practicing in the relevant area. Id. Nor did the record show that the

expert taught the procedure. Id. Thus, “the trial court was well

within its discretion” to find the expert not qualified. Id.

The intermediate appellate courts have reached similar

conclusions, finding no abuse of discretion when an expert has not

shown expertise in the subject matter. In Perry v. Bradley, the Waco

Court of Appeals evaluated the qualifications of a pharmacy expert.

No. 10-10-00402-CV, 2011 WL 6415135 (Tex.App.—Waco 2011, no

pet.)(mem. op.). That case involved a retail pharmacist who allegedly

filled a prescription incorrectly. The plaintiff supported the
35
negligence claim with two expert reports, one from a pharmacist

addressing the standard of care issues and one from a physician

addressing causation. Id. at *1.

After reciting the statutory requirements under 74.402, the

appellate court noted from the pharmacist’s report that he was “a

licensed Texas pharmacist” with experience “as a clinical pharmacist

and pharmacy school faculty member.” Id. at *3. The report then

described the routine responsibilities for pharmacists in retail or

outpatient pharmacies. Id. But the report did not explain how the

expert was knowledgeable about the standard of care in a retail

setting, and the appellate court could not “infer from his training and

experience that he is qualified to offer an expert opinion regarding

the standard of care applicable to retail or outpatient pharmacies.”

Id. Because merely being a physician is insufficient to qualify as an

expert, so too merely being a pharmacist is insufficient to qualify as

a pharmacy expert. Id. Thus, the Waco court could not say that the

trial court abused its discretion in finding the academic-pharmacy

expert unqualified and dismissing the case. Id. at *4.

Similarly, Chester v. El-Ashram from the Dallas Court of Appeals

evaluated whether an anesthesiologist was qualified to render
36
opinions against a pulmonologist. 228 S.W.3d 909, 913-914

(Tex.App.—Dallas 2007, no pet.). After reciting the Article 4590i

requirements, the appellate court discussed the anesthesiologist’s

qualifications, which were essentially limited to evaluating medical

conditions like the patient’s to see whether the patient could undergo

surgery as opposed to ordering medicine, tests, and treatment to

resolve the conditions. Id. at 913-914. The expert had not prescribed

antibiotics or intubated a patient either at the time of his testimony

or the time of the treatment. Id. at 914. And the expert never

explained how evaluating a patient for surgery qualified the expert to

opine on what treatment a non-surgical patient should receive. Id.

Thus, the appellate court concluded the trial court did not abuse its

discretion by excluding the expert’s testimony.

The San Antonio appellate court reached a similar result when

evaluating an obstetric anesthesiologist’s report that criticized the

conduct of a urologist under Article 4590i. Olveda v. Sepulveda, 141

S.W.3d 679, 681 (Tex.App.—San Antonio 2004, pet. denied). The

case involved the medical issue of preeclampsia (pregnancy-induced

hypertension) in a patient who was undergoing a surgical procedure

that resulted in the deaths of the fetus and a few days later the
37
mother. Id. at 680-681. The expert never stated that the diagnosis

of preeclampsia was within the field of urology or that it was even

developed in more than one field. Id. at 682-683. And the expert

limited her expertise to anesthesiology and obstetrics. Id. at 683.

The court held that, while the expert may, theoretically, have the

requisite qualifications, the expert needed to show those

qualifications in her report. Id. Without an explanation of why the

expert was qualified, the appellate court affirmed the trial court’s

conclusion that the expert was not qualified. Id.

Other examples include:

• Reed v. Granbury Hosp. Corp., 117 S.W.3d 404
(Tex.App.—Ft. Worth 2003, no pet.)(affirming trial
court’s exclusion of experts’ testimony against
hospital where neither expert had any experience
formulating hospital policy);
• Forrest v. Danielson, 77 S.W.3d 842 (Tex.App.—Tyler
2002, no pet.)(affirming trial court’s dismissal for
deficient expert report where orthopedic surgeon did
not explain how he was qualified to opine about
treatment for disc protrusion); and
• Tomasi v. Liao, 63 S.W.3d 62 (Tex.App.—San Antonio
2001, no pet.)(affirming dismissal where trial court
found that psychiatry expert provided no explanation
for how his expertise translated into qualifications to
criticize post-neurosurgical care).

This line of cases is instructive because it shows that a trial court’s

rejection of an expert’s qualifications does not amount to an abuse of
38
discretion, especially where the expert does not explain how they

have expertise in the relevant subject matter.

In addition to these cases, another important line exists: cases

where it was held that trial courts abused their discretion by finding

unqualified experts to be qualified. This second line of cases is

important because it demonstrates another end of the spectrum of

the expert-qualification issue: qualifications so lacking that approval

by the trial court amounted to an abuse of discretion. Among these

cases are those that:

• rejected the trial court’s conclusion that an
anesthesiologist was qualified (without further
explanation) to opine about complications of a heart
procedure performed by a cardiologist, Mangin v.
Wendt, No. 01-14-00852-CV, 2015 WL 6830198 *4-
*6 (Tex.App.—Houston [1st Dist.] 2015, no pet. h.);
• concluded that the trial court abused its discretion
because neither proffered expert demonstrated
expertise in hospital’s determination of staffing needs
of specialists or transfer policies, Tenet Hosp. Ltd. v.
Love, 347 S.W.3d 743, 750-752 (Tex.App.—El Paso,
no pet.);
• determined that the trial court erred by concluding
that physician was qualified to criticize nursing care
when the physician never explained how or why he
was, HN Tex. Properties, L.P. v. Cox, No. 02-09-
00111-CV, 2009 WL 3337190 *3-*4 (Tex.App.—Ft.
Worth 2009, no pet.);
• reversed the trial court’s determination that
emergency room physician was qualified when the
expert never provided any qualifications for the
39
 development of hospital policies and procedures in
an ICU, Hendrick Med. Ctr. v. Conger, 298 S.W.3d
784, 788-789 (Tex.App.—Eastland 2009, no pet.);
• determined that an interventional cardiologist had
not demonstrated qualifications about operative and
post-operative care for a knee replacement, Carreras
v. Trevino, 298 S.W.3d 721, 725-726 (Tex.App.—
Corpus Christi-Edinburg 2009, no pet.);
• granted mandamus relief where expert provided no
qualifications in hospital credentialing to support a
negligent credentialing claim, In re McAllen Med. Ctr.,
Inc., 275 S.W.3d 458, 462-463 (Tex. 2008);
• held that cardiologist did not explain what
qualifications he had to offer criticisms of podiatrist
in a case involving complications from a diabetic foot,
Foster v. Zavala, 214 S.W.3d 106, 114-116
(Tex.App.—Eastland 2006, pet. denied);
• granted mandamus relief when “anesthesia
professor” never explained any qualifications to
render criticisms about anesthesiologist, In re
Samonte, 163 S.W.3d 229, 237-238 (Tex.App.—El
Paso 2005)(orig. proceeding); and
• granted mandamus relief when radiologist, who
appeared not to have performed neuroradiology
interventional procedures for a few years before the
case, did not explain how he was qualified to render
opinions about an embolization procedure that
caused a brain hemorrhage, In re Windisch, 138
S.W.3d 507, 511-514 (Tex.App.—Amarillo 2004)(orig.
proceeding).

These cases demonstrate that the expert must explain how his or her

qualifications lead to expertise in the subject matter of the case.

Absent such an explanation, the expert is not qualified and the report

is deficient.

40
 Appellees acknowledge those cases where the trial court found

the expert to be qualified and the appellate court affirmed. That

result should not be surprising – especially where an explanation

exists – because the standard of review is deferential to the trial

court’s ruling. This line is significant in evaluating Marente’s Brief

because it is the primary source of authority referenced by Marente.

Those cases are distinguishable based on their procedural posture

alone: the trial court found the expert qualified, so the standard of

review was favorable to the trial court’s ruling. Marente improperly

relies on at least three of these cases.

In Adeyemi v. Guerrero, the trial court found that a neurologist

was qualified to offer opinions about an obstetrician. 329 S.W.3d

241, 246-247 (Tex.App.—Dallas 2010, no pet.). The appellate court

addressed the central medical issue: a headache following a fall

during the postpartum period. Id. at 247 (“Guerrero complained of

persistent headaches and vomiting after falling. Guerrero’s claims

focus not on her pregnancy but on her head trauma.”). The

neurologist had treated hundreds of patients who had developed

problems after falling. He said he was familiar with the standard of

care for all physicians evaluating such patients. Id. The expert had,
41
therefore, explained why he was qualified for the specific issue in the

case, i.e. evaluating patients who had fallen, suffered head trauma,

and exhibited signs of injury from the trauma. Id.

One of the Houston appellate courts evaluated a similar

circumstance in Group v. Vicento, where the claimant attempted to

use an anesthesiology/pain management specialist to criticize care

provided by a chiropractor. 164 S.W.3d 724, 732-733 (Tex.App.—

Houston [14th Dist.] 2005, pet. denied). The trial court found the

expert qualified, and the appellate court affirmed. The appellate

court noted that it was not necessarily the specific practice area that

answered the question of qualifications, but whether the purported

expert “practices health care in a field of practice that involves the

same type of care or treatment” as delivered by the defendant. Id. at

732. Over the course of five paragraphs, the expert explained that

the pain management part of his practice “overlap[ped] and

intertwine[d] with chiropractic practice,” which included engaging in

many of the same modalities of care, using similar treatments, using

similar methods of evaluation and referral to other providers, and

working with and supervising chiropractors. Id. at 732-733. Thus,

the appellate court was able to conclude that the trial court had not
42
abused its discretion in finding that the field of practice involved the

same type of care or treatment. Id.

These cases – and others like them – are distinguishable for two

reasons. First, as developed more fully below, those experts provided

significantly more information about their expertise for the specific

issue in the case than Marente’s experts did. Here, Dr. Marabel and

Nurse Bingham did not supply sufficient information supporting

their assertions of being qualified, so the trial court’s decision was

correct. Second, the procedural posture of those cases is vitally

distinguishable because the deferential standard of review favored

the claimant’s position. The opposite exists here: the standard of

review favors the trial court’s ruling in favor of Appellees.

c. The statutory requirements require a limited view
of the qualifications issue

A few final points of emphasis are warranted before addressing

the purported qualifications of Marente’s experts. First, what is the

appropriate focus of the issue in the case to determine qualifications?

Second, having determined the proper focus, did Marente’s experts

provide “the same type of care and treatment” either at the time of

the events in this case or at the time of writing their opinions?

43
 On the first point, Marente suggests a broad focus: any

physician that supervises nurses and any nurse are qualified.

Appellant’s Brief, 11, 16-17. That broad focus ignores the realities of

the specific care provided in this case and abandons the express

statutory requirement that the expert practices “the same type of care

or treatment” as provided by the health care provider. Tex. Civ. Prac.

& Rem. Code § 74.402(b)(1). In the context of the care provided, the

home-health aspect is a vitally important consideration of the type of

care provided. Home-health providers work in different homes, so

they are not in a fixed location like a health care worker that cares

for patients in a hospital or facility-based location. The latter goes to

the same facility day in and day out. The former may be at a different

address not only on different days but also at several times during a

particular day.

Moreover, the home-health worker does not have all of the

equipment, resources, and support that a hospital or other facility-

based nurse has. A code can be called in a facility with a push of a

button that assembles a team of responders, with resuscitation

equipment and medications, within seconds. The home-health

worker, however, is on an island by herself. She has to start CPR on
44
her own, while calling 911. Then she must continue CPR while

waiting for help to arrive (which took five minutes in this case). CR

51. In this case, arrangements were then made to care flight

Christian to Children’s Medical Center of Dallas, but care flight did

not even arrive on scene until 45 minutes after Nurse Asah called

911. CR 51 (showing 911 call at 17:23) and 256 (showing AirEvac

Lifeteam being with the patient at 18:11). This sequence was not at

all like pushing a code-blue button in a health care facility.

Even Marable’s report acknowledges that the issue here is the

ability to provide care for a tracheostomy patient in a home-health

setting. See CR 66 (describing the specific issue as Nurse Asah’s

qualification to care for a tracheostomy patient and immediately call

911 and provide CPR, which would not be necessary in a facility

where help is available by pushing a code-blue button on the wall of

the patient’s room).

Indeed, the trial court, when determining the subject matter on

which the experts required qualifications, rejected Marente’s

contention that the subject matter should be broad. The trial court

determined that the subject of the case was (1) a patient with

Christian’s condition, (2) with a tracheostomy and ventilator
45
dependence, (3) in a home-health setting, and (4) requiring a

tracheostomy-tube change. CR 326. The trial court pointed out that

even Marable suggested that a key issue was tracheostomy care. CR

327. The trial court then pointed out that Marente’s experts had not

demonstrated qualifications in the relevant subject matter. CR 327-

329.

On the second point, not only does the statute require an expert

who provides “the same type of care and treatment” as the defendant,

but it also mandates that the expert have those qualifications “at the

time the testimony is given or was practicing that type of health care

at the time the claim arose.” So if the experts do not currently have

this type of practice or did not have it at the time of the occurrence,

they are not qualified under the statute. With this preliminary

backdrop, one can now analyze the qualifications of Marente’s

experts Charles Marable, M.D. and Patti Bingham, R.N.

2. Marable never explained any knowledge base that
qualified him to offer opinions about tracheostomy
nursing care in a home-health setting

Marente served two reports from Marable: one before the trial

court’s first ruling on the sufficiency of the expert reports, and one

after a 30-day extension. Both reports attached the same curriculum
46
vitae (CV). These items did not demonstrate that Marable was

qualified.

a. Marable’s CV did not demonstrate he was
qualified

Marable’s CV demonstrates that he is a neurologist in Fort

Worth with “26 years of experience.” CR 71 and 265. He is on staff

at several hospitals, but he is not affiliated with any home-health

entities. Id. In fact, his CV is silent about any experience in the

home-health setting, and it is not even apparent from his CV that he

has ever worked with ventilator-dependent young adults. Id.

Moreover, his CV provides no details about any supervision or

instruction of nurses. Id.

Marable’s CV reveals that he should be quite familiar with what

Chapter 74 requires in terms of expert qualifications because his

second listed “Area of Expertise” is “Medical Malpractice regarding

Neurological issues.” Id. Also, the concept of expert qualifications as

required under Texas law should not be foreign to Marable because

47
he has given “over 700” depositions, 90% of which were for Plaintiffs.

Id.

b. Marable’s first report did not show he was
qualified

Marable’s first report contains a section on his qualifications,

consisting of five short paragraphs. CR 62-63. Much of the first

paragraph contains boilerplate: a recitation of some of the statutory

standards. CR 62. That paragraph also attempts to define the issue

in this case as “anoxic encephalopathy,” which defines the end-point,

i.e. what injury Christian suffered, instead of the type of care that

Nurse Asah provided, i.e. home-health care of a ventilator-dependent

patient. Id. But even Marable’s discussion of anoxic encephalopathy

only describes the fact that he has treated such patients during his

practice. Id. This paragraph contains no explanation of how that

experience qualifies him to establish standards of care and offer

criticisms of a home-health nurse caring for a ventilator-dependent

patient. Id. Likewise, the second paragraph describes the fact that

neurologists are consulted for anoxic encephalopathy events and

perform brain death examinations, which says nothing at all about

48
qualifications to provide standard of care or breach of standard of

care opinions in this case. Id.

The third paragraph finally says something about a ventilator,

but it is ultimately not very illuminating about the type of care at

issue in this case. CR 63. Marable explains that neurologists (among

some other specialists) handle ventilator settings “in the ICU.” Id.

But that experience is not at all helpful to establish his qualifications

in this case. No one is complaining that the ventilator settings were

incorrect or improperly adjusted, causing damage to Christian.

Indeed, Christian was not on the ventilator at the time this crisis

occurred because he had been bathed (off ventilator) and the

tracheostomy tube came out or was being changed. CR 50-51, 64,

74, 241-242, and 255-256. That a person has experience with the

settings of a mechanical ventilator does not mean that he is qualified

to say what a home-health care nurse is required to do when a

tracheostomy tube comes out or when a tracheostomy tube needs

changing. Moreover, his purported experience occurred in an

intensive care unit, i.e. in an extremely controlled setting in a

hospital, not in a home-health setting. CR 63. In short, Marable’s

claimed experience with ventilator settings in a hospital does nothing
49
to show that he has qualifications on the very subject matters in this

case, a home-health event with a tracheostomy tube becoming

displaced or being changed.

The fourth paragraph merely states that he treats “neurological

cases” that involve children as young as 13 or 14, implying that

Christian’s care would fall within his realm.4 Id. Neurology involves

a wide field and includes a host of problems that have nothing to do

with Christian’s condition or being ventilator dependent. While the

report suggests qualifications that may cover Christian’s care,

Marable fails to establish that he has treated pediatric neurological

cases remotely similar to Christian’s: a ventilator-dependent patient

requiring round-the-clock nursing care in a home-health setting.

The last paragraph is where Marable describes his purported

qualifications to render opinions about the standard of care for

nurses. Id. That paragraph is almost a qualifications tautology: any

4 Dr. Marable’s signature line in both reports suggest that the young are
not any focus of his practice. CR 263. The signature lines note that Dr. Marable
is board certified in neurology and geriatric medicine. Id. If he truly treated
pediatric patients, one would expect sub-specialization in pediatrics or pediatric
neurology instead of going the opposite direction with certification in the care of
the elderly.
50
doctor should be allowed to say what home-health nurses should be

trained to do just because he is a doctor. Marable stated:

…I still have the qualifications of being able to ascertain
when a nurse should have adequate qualifications to treat
certain illnesses. And in this case, Nurse Asah should
have had the minimal requirements to provide home
health nursing care and experience in treating oxygen
ventilator dependent pediatric patients, as well as being
able to know how to change a patient’s tracheostomy tube
in a home health setting, as well as responding to
emergency situations as what occurred in this case. This
is basic information that any doctor should be able to
discuss.

Id. Missing from this discussion is how or why Marable is qualified

in this regard. In its essence, this paragraph only describes what

qualifications a home-health nurse with a ventilator-dependent

patient should have. The paragraph does not explain Marable’s

education, training, or experience in dealing with nurses in this

setting or why he qualifies as an expert on this topic.

Because the report is read as a whole and not just limited to the

qualifications section, Marable says one more thing about his

qualifications to render nursing opinions. He claims that he “had

extensive training with nurses” during his residency, post-residency,

and in hospitals as well as having given lectures to nurses and “dealt

with home-health nurses” in his practice. CR 66. But Marable’s
51
claim does not explain how these “interactions” with nurses – even

home-health nurses – qualify him to know the standard of care

required for a home-health nurse caring for a patient like Christian.

He never claimed to be trained in tracheostomy-tube changes or in-

home emergencies, to have lectured nurses on those subjects, or even

to have interacted with them on those subjects.

One should not be surprised that the trial court found Marable’s

report deficient. He never demonstrated any experience

• dealing with the situation where a tracheostomy tube

came out and could not be replaced;

• dealing with tracheostomy tube changes; and

• dealing with similar emergencies that could arise in a

home-health setting.

In short, Marable never explained that he practiced in a medical field

that involved the “same type of care or treatment” provided by Nurse

Asah.

c. Marable’s amended report showed no experience
with the subject matter at hand

Marable’s “amended” report provides no further details that

qualify him as an expert in the subject matter of the case. The

52
qualifications section is quite similar to the first report, but the last

two paragraphs are different. Because the first few paragraphs are

the same as the first report, the problems with those paragraphs will

not be repeated. The change in the qualifications section deals with

Marable’s specific claim of interaction with home-health nurses. But

vague interactions with home-health nurses does not mean that

Marable has practice experience with the issues in this case, and his

changes to the qualifications section did not correct the qualifications

deficiency.

Additionally, mere interaction with another person is not (and

should not be) sufficient to confer expertise. A homeowner may

interact frequently with a plumber, but no court would let the

homeowner testify as an expert witness on plumbing issues based on

those interactions alone. That approach would also allow any

licensed person to be qualified based on interactions. The reality is

that Marable is just providing anecdotal experience, which does not

qualify him to sit in judgment of the standards by which home-health

professionals should conduct themselves. The trial court

appropriately rejected that “I’m-qualified-because-I-interact”

standard.
53
 In the second to last paragraph (which is really a new paragraph

in the qualifications section), Marable explains that he refers patients

for home-health care and therefore has to write orders for home-

based care. CR 254. He has to follow-up to see that the nurses

provide the prescribed care. Id. While that activity may be common

in his office practice, Marable never explains what type of care he

prescribes to his home-health patients. Indeed as a neurologist, his

patient population in the home-health setting easily could suffer from

neurological complaints that have nothing to do with ventilators,

tracheostomies, or emergencies in that setting. Without further

explanation of what he orders the home-health nurses to do and

without any explanation of what follow-up he provides, this

paragraph provides no insight about how or why Marable is qualified

on the issues in this case.

One final point about this paragraph, which amounts to little

more Marable’s assertion of qualifications due to the fact that he

issues orders. When one looks to the criticisms rendered by Marable

(and Bingham for that matter), none deal with how Nurse Asah

carried out a physician’s order. See CR 258 (containing Marable’s

description of the standard of care for dealing with airway
54
obstruction, tracheostomy tube replacement, and the ensuing

emergency). Instead, the criticisms address how she responded to an

emergency, and whether she should have changed the tracheostomy

tube according to Marente’s claims about her job responsibilities, etc.

CR 258-259. No one mentions any physician’s order on any of these

subjects. Marable’s claim of qualification from giving orders to home-

health nurses does not even square with the criticisms that he

provides. If giving orders qualified a physician to offer nursing

standard of care opinions, then every physician would be qualified in

every aspect of every field of nursing care without further inquiry. We

know that is not the case: the statute and attendant case law say

otherwise. Tex. Civ. Prac. & Rem. Code § 74.402(b); Broders, 924

S.W.2d at 153-154.

The last part from the qualification section attempts to rework

the paragraph where Marable says that he is qualified because a

doctor is qualified to know what a nurse should be able to do. As

with the first report, this version is little more than Marable claiming

that “I-am-qualified-because-I-say-I-am,” and not actually explaining

how his interactions gave him relevant experience in the subject. The

re-tweaked paragraph now says:
55
 …because of my experience since 1986 in referring
patients for home health care and working with nurses
that provide home health care for my patients, I am
qualified to ascertain when a nurse should have adequate
qualifications to treat certain illnesses in the home care
environment. I am qualified to state the standard of care
for a nurse treating Christian Marente and opine on the
breach of the standard of care. My experience and training
in working with health care institutions such as Epic
Health Services, Inc., qualify me to render an opinion as
to the standard of care for such institutions and opine on
the breach of the standard of care.

CR 254.

The essence of the first sentence is that because Marable

interacts with home-health nurses generally, he claims to be

qualified to offer opinions in this specific case. That “I-deal-with-

home-health-nurses-and-therefore-am-qualified” argument has

already been addressed. Marable never explained that he interacts

with home-health nurses on any of the subject matters in this

lawsuit. The last two sentences are conclusory, merely claiming to

be qualified because he says he is, instead of explaining how he is

actually qualified.

As with the qualifications section, Marable also tinkered with

the one other paragraph in the report that addresses qualifications.

To that paragraph, he adds that he has had nurses in his office, “and

56
any doctor expects a nurse to be competent enough to fulfill certain

duties as indicated by her education and training.” CR 259. That

addition, like the previous incarnation of the paragraph, says nothing

about what knowledge or experience Marable has with the particular

health care issue of this case, i.e. home-health care to a ventilator-

dependent patient. Moreover, interacting with nurses in his office is

not at all like interacting with them when they are alone in a patient’s

home. He fails to establish anything occurring in his office that is

akin to providing tracheostomy care in a home. The addition adds

nothing to Marable’s qualifications.

Regardless, nothing in the revamped qualifications discussion

actually answers the question called for by the statute: does

Marable’s practice provide “the same type of care or treatment” as

Nurse Asah? The reports, on their face, suggest that Marable does

not provide “the same type of care or treatment” because, at best, he

orders others to provide that care, which assumes that his home-

health interactions even deal with ventilator-dependent patients like

Christian that require tracheostomy tube changes in a home-health

setting. Moreover, he never says that he orders the type of care for

57
his home-health patients that is at issue in this case. The trial court

did not abuse its discretion by ruling that Marable was not qualified.

3. Bingham never explained what qualifications she had
to offer opinions about nursing care in a home-health
setting

Like Marable, Bingham did little to explain how she was

qualified to render opinions about the care provided to Christian in a

home-health setting. The issue of Bingham’s qualifications was

something of a moving target in the trial court, because she provided

three reports and a different CV with each report. In the end, she

never explains how she has provided the same type of care “at the

time” of her report or “at the time” of Nurse Asah’s care. The trial

court did not abuse its discretion in ruling that she was not qualified.

a. Bingham’s first report and CV did not
demonstrate qualifications for this case

Bingham, like Marable, is quite familiar with the litigation

process. She has worked since 2009 as an “Independent Legal Nurse

Consultant,” so one would expect her to understand the importance

of showing that she has expertise in the relevant subject matter. CR

54. That makes her qualifications omissions even more telling.

58
 Beginning with the first CV, Bingham – at the time of the events

in question and her report – worked as a weekend nurse supervisor

at a nursing a rehabilitation center in Victoria. Id. At that time, she

was also a legal nurse consultant and advised on Medicare issues

(set asides, audits, and appeals). Id. No description of her

responsibilities in her CV at the time of the events or her report

showed that she had “at the time” experience with tracheostomy care

in a home-health setting. Id.

Indeed, the only mention of something remotely touching on

home-health care is her work with a hospice facility from 2003 to

2008. CR 54-55. But even that description, comprising nearly one-

half of a page, never mentions care that is remotely similar to what

Nurse Asah provided to Christian. Id. All of the care, with the

possible exception of hospice care, was at a health care facility

instead of a home-health setting. CR 54-56.

Even hospice care is not similar to home-health care in an

emergent setting like that faced by Nurse Asah. In hospice care, the

patient has a do not resuscitate order, and the providers make the

patient as comfortable as possible as the patient approaches death.

Thus, with a hospice patient, the emergency in this case (the inability
59
to re-place the tube in the airway) would not be handled in the same

fashion in hospice because the patient chooses not to undergo such

heroic measures. Caring for a hospice patient, even in a home

setting, is not similar to the care provided by Nurse Asah in this

setting and certainly does not amount to the “same type of care.”

The first report provides no further details, essentially saying

that she is a qualified nurse in a conclusory fashion. Bingham

specifically stated that she “remain[s] in practice as a Registered

Nurse in the state of Texas. I thus attest that I am familiar with the

standard of care in Texas under the same or similar circumstances

of the matter of Christian Marente.” CR 49. She never explains what

experience she has as a nurse that would constitute relevant

expertise in this case. Such a conclusory statement is not sufficient

to show that she was qualified as an expert in this case.

The fact that Bingham opines on causation further

demonstrates that her claim of qualifications rings hollow. She

presumes herself to be qualified on causation despite the fact that

she is prohibited from doing so by the Nurse Practice Act, Chapter

74, and case law. Tex. Occ. Code § 301.002(2) and (5)(excluding

medical diagnoses from the definition of professional and vocational
60
nursing); Tex. Civ. Prac. & Rem. Code § 74.403(a)(requiring a

causation expert be a physician except in limited circumstances not

applicable here); Arlington Mem’l Hosp. v. Baird, 991 S.W.2d 918, 921

(Tex.App.—Ft. Worth 1999, pet. denied)(excluding nursing opinions

on medical causation because nurses cannot be qualified on that

topic).

b. Bingham’s second report and CV do not show she
was qualified

One important fact in considering the revisions to Bingham’s

report and CV at this stage of the case was the fact that Nurse Asah

had already objected to Bingham’s qualifications because the care at

issue involved tracheostomy care in a home-health setting. CR 43-

44. When responding to such objections, one would put in all the

requisite experience that the person had – especially a legal nurse

consultant, who should be familiar with the expert-qualifications.

Omission of important facts that support an expert’s qualifications

could doom the expert’s ability to render opinions in the case,

especially because the exacting standards for admission of expert

testimony have been known for twenty years. See Weisgram v. Marley

Co., 528 U.S. 440, 445 (2000)(suggesting that, in light of the exacting

61
standards for experts, no party would put less than the best foot

forward on the first try so that a remand for a second bite to get the

issue right should be denied); Kerr-McGee Corp. v. Helton, 133 S.W.3d

245, 259-260 (Tex. 2004)(same) overruled on other grounds Coastal

Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 18-19 (Tex.

2008). As we shall shortly see, Bingham’s qualifications continued to

evolve with the third version of her report and CV, suggesting that

maybe her claimed qualifications should be more carefully

scrutinized.

The second version of the report and CV do not provide details

regarding any tracheostomy care at the time of the events in question

or her report. Bingham’s second CV is similar in format, abbreviating

the description of her current work at the nursing home and still

working with Medicare issues. CR 78. The CV is silent about

tracheostomy care with her current work. Id. Indeed tracheostomy

care is only mentioned two times, and both are remote from the

events of this case. Id. She added that she provided tracheostomy

care from 2003 to 2008 as part of her hospice work without reference

to a home-health setting. CR 79. That work is distant from the

events of this case, from a factual and testimonial perspective. That
62
addition does not make Bingham qualified because it was not “at the

time” of her report or Nurse Asah’s care.

The second reference to tracheostomy care relates to work that

Bingham performed from 1993 to 1998 for Matagorda General

Hospital. Harkening back to her first CV, she described that work as

being an operating room staff nurse and a trauma coordinator/case

manager – with appropriate descriptions for those job titles, none of

which included tracheostomy care or home-health care. CR 55-56.

The second CV adds a section between operating room nurse and

trauma coordinator, where she had duties with Matagorda Home

Health Agency that purportedly included tracheostomy care. CR 80.

Again, the recent addition might have suggested to the trial court that

this change may not be truly reflective of her work experience. In any

event, whatever she did for Matagorda General Hospital back in the

1990s and its home-health unit is in the distant past and cannot

count as being “at the time” of the events of this case or “at the time”

she gave her opinions in this case. Thus, this remote line item in her

CV does not make Bingham qualified.

The second report, like the second CV, does not show that

Bingham was qualified. Bingham describes that she has been
63
licensed as a nurse in Texas for 20 years, working in “both the

emergency room and operating room at various hospitals in Texas.”

CR 74. She has certifications in life support and asserts that she is

qualified to care for patients of all ages. Id. But she does not explain

how those certifications and experience are relevant to the health

care focus in this case. Instead of describing work in emergent

situations for patients in a home, Bingham describes an anecdotal

event where she had to perform CPR on her own mother. Id. Then

she explains that she provided tracheostomy care when she worked

as a hospice nurse, which, according to her CV, traces to her job from

2003 to 2008. Id. and CR 79.

Finally, without explanation, Bingham claims that home-health

care for Christian was the same as the care she provided in hospice.

CR 74. On its face, caring for a dying patient with a do-not-

resuscitate order is different than caring for a patient where

resuscitation will occur, so Bingham needed to explain further her

claim of similarity. In any event, her hospice care was remote and

cannot amount to experience being “at the time” of Nurse Asah’s care

or Bingham’s opinions.

64
 c. Bingham’s third report and CV do not establish
that she is qualified

Marente finally provided an “amended” report and CV of

Bingham. But those items, like the ones preceding them, did not

show that she was qualified. Starting with the third CV, one

difference is that for Bingham’s present job in the rehabilitation and

healthcare center, she has gone back to describing her duties, which

remarkably for the first time includes mention of the fact that she

provides tracheostomy care. CR 248. Why she failed to mention that

aspect of her job in the first or second versions of her CVs and reports

was never explained.

While there may be some tracheostomy care at this nursing

home, two problems exist with her job description. First, she still

does not tie that care to the time of the events in this case or to the

time of her opinions, instead simply saying that it occurred at some

point during her tenure. Second, and perhaps more importantly,

that tracheostomy care was facility-based, which is a far cry from

events occurring in a home-health setting. Other providers and

equipment are on hand; the code button is just a reach away to bring

immediate assistance and a crash cart full of resuscitation supplies.

65
Home-health care in this context is very different than facility-based

care. See CR 332-333 (discussing why the home-health events are

not remotely akin to an event occurring in a hospital). Any other

tracheostomy care is remote or facility-based, rendering that

experience inapplicable to this setting.

Turning to Bingham’s report: her opening “I’m a nurse and

therefore qualified” statement and then her “I’m qualified because I

performed CPR on my mother in a house” statement has finally

evolved to a several paragraph discussion. CR 240. Even this

ramped up version fails to show that Bingham is qualified to render

opinions in this case. The first paragraph describes her license,

certifications, and years of practice. That discussion contains no

description of tracheostomy care or home-health care, and certainly

not tracheostomy care in a home-health setting. It is also worth

pointing out that her own description of her experience is “work[ing]

in both the emergency room and operating room at various hospitals

in Texas.” Id. If she truly had the type of experience that she claims

in the subsequent paragraphs, then why emphasize an emergency

room and operating room nursing practice in this paragraph?

66
 In the second qualifications paragraph, Bingham describes her

work at the rehabilitation and healthcare center. Id. In that capacity,

she works in a facility that provides “24-hour skilled nursing care,

including intravenous [IV] therapy with antibiotics, TPN

administration, and diabetic therapy.” Id. Missing from this

description is tracheostomy care. Id. She then describes how she

supervises various personnel on the weekends, which includes

adequate staffing and assessing the patients’ needs. Id.

This paragraph ends with Bingham’s description of duties that

involve monitoring patients for respiratory distress and that she has

– in the past – provided tracheostomy care – without specifying the

when this type of care is supposed to have occurred. Id. In fact,

Bingham admits that this facility does not have any such patients

currently. Id. That concession means that “at the time” she gave her

opinions, she was not then performing that type of care. The failure

to identify when she provided that care also means that the report

does not state that she provided that care “at the time” Nurse Asah

cared for Christian. Thus, even these statements cannot satisfy the

“at the time” requirement of the statute.

67
 She then says, without explanation, that she is familiar

generally with the standard of care for tracheostomies (yet still

without linking that “familiarity” to the home-health setting). Id. The

statutory requirements of Chapter 74, however, require much more

than a conclusory statement of qualifications. That type of

conclusory statement cannot be allowed to eliminate the trial court’s

role in determining an expert’s qualification. Experts cannot be

qualified merely on their own say-so.

This say-so problem extends to the three numbered paragraphs

that attempt to isolate the statutory requirements. Id. Bingham

never explains how or why she is qualified, and instead just insists

that she is qualified. For example, in the first numbered paragraph,

she claims to have practiced “in the health care field of a registered

nurse that involved the same type of care or treatment that Nurse

Asah delivered to Christian…” Id. On the contrary, her report and

CV reveal that she has never rendered the same type of care – she

has no experience providing tracheostomy care to a young adult (who

is not a no-code patient) in a home-health setting. With the exception

of hospice care, all of her late-found tracheostomy care occurred in a

facility that is markedly different than the home-health setting. And
68
the hospice care that purportedly occurred in homes was remote in

time to this case and involved patients that had do-not-resuscitate

orders. The other numbered paragraphs suffer from the same

problem: Bingham merely says she is qualified without providing the

required supporting explanation.

One last point regarding the numbered paragraphs: Bingham

purports to define the type of care or the accepted standards of care

“below.” But the description of the type of care below shows that

Bingham did not provide that “same type of care” at the time required

by the statute. She goes on to state that the setting of a home-health

setting made no difference. CR 243. That argument ignores the

significant differences that exist between facility-based and home-

based care, differences that the trial court, appropriately exercising

its discretion, considered to be important in deciding what

qualifications the experts needed. CR 326. Moreover, the fact that

Bingham described standards of care later in her report, see CR 243,

did not mean, by virtue of that fact alone, that she was qualified to

render those opinions. The references to other parts of the report do

not correct the deficiencies in Bingham’s qualifications.

69
 In Marente’s Brief, she argues that “Bingham has more

qualifications and experience as a registered nurse than Nurse Asah”

and that her experience shows she knows the standard of care –

without record citation. Appellant’s Amended Brief, 14. This

argument is specious, at least in part, because Nurse Asah’s

qualifications are not even in the record at this preliminary stage.

The argument is also specious because it assumes that merely being

a nurse establishes standard of care expertise in every nursing field

and scenario. As discussed, Bingham did not establish that she

provided “the same type of care” as Nurse Asah – either “at the time”

of Nurse Asah’s care or at the time of Bingham’s opinions. That claim

of expertise, based on a lengthy career, does not prove knowledge of

any particular subject matter and was rejected by the Supreme Court

in Broders. 924 S.W.2d at 153-154. As such, Marente’s claim of

greater qualifications cannot stand.

Marente also argues in her Brief that Bingham recites the

correct standard of care and breaches, suggesting that she must

therefore be qualified. Appellant’s Brief, 14-15. But that argument

puts the cart before the horse. The only way to know that she

correctly recited the standard of care and attendant breaches is for
70
her to be a qualified witness. She failed to demonstrate that

expertise, and the trial court properly rejected that argument.

4. The experts’ claim that Marente said that changing the
tracheostomy tube was not Nurse Asah’s responsibility
does not render the experts qualified

In their amended reports, Marable and Bingham note that a

signed statement of the mother (Appellant) furnished to them claims

that changing the tracheostomy tube was not Nurse Asah’s

responsibility. CR 242, 259. But even if that allegation were true as

a matter of some policy – whether contractual, job duty, or even

written – that allegedly prohibited Nurse Asah from changing the

tracheostomy tube, does not establish that changing it was below the

standard of care or that the manner in which the task was performed

was below the standard of care. A company (or parties to a contract)

could decide to operate, or to try to operate, well above the minimal

standard of care, setting policies accordingly. A breach of that policy

would not necessarily mean that the care provided was negligent.

Expert testimony is needed to corroborate that the policy was the

minimal standard of care. The Supreme Court said as much in FFE

Transp. Servs., Inc. v. Fulgham, relying on a series of health care

liability cases on this very point. 154 S.W.3d 84, 92-93 (Tex. 2004).
71
See also CR 350-351. A mere claim by the mother that Nurse Asah

did something beyond her duties does not establish that her conduct

was negligent; qualified experts must make that point. The fact that

both experts have to rely on Marente’s claim about Asah’s job duties

only emphasizes that they do not know what the standard of care is

for caring for a ventilator-dependent patient in a home-health setting.

The experts cannot overcome their lack of qualifications by

relying on Marente’s narrative for a second reason: Chapter 74

experts can only rely on opinions of other experts known to be

qualified. In Jones v. King, the San Antonio appellate court held that

an expert could cure his own deficiencies by relying on a statement

from another physician whose qualifications were unknown. 255

S.W.3d 156, 160 (Tex.App.—San Antonio 2008, pet. denied). Here,

however, Marable and Bingham explain no basis to know that

Marente – who has no medical or nursing training – qualifies as one

with expertise in any area of medicine or nursing – let alone this

specific one.

Marente argues that her experts can rely on her written

statement in forming their opinions. Appellant’s Amended Brief, 19-

20. But Appellees have never argued that experts cannot include
72
such information in their decision calculus – just that the

information does not advance her position. That is true because her

statement about Nurse Asah’s job duties does not establish that

exceeding the job duties amounts to a breach of the standard of care.

A qualified expert must say that, and no qualified expert has.

Additionally, Marente’s reliance on 74.402(d) in her Brief is

misplaced. That provision allows – in limited circumstances – a court

to depart from the other criteria in Section 74.402 when it determines

a good reason exists to do so and states on the record the reasons for

the departure. Tex. Civ. Prac. & Rem. Code § 74.402(d). The trial

court here declined to make such a departure, and Marente raised

no point of error on the subject, thereby waiving that issue for appeal.

Similarly, Marente’s citation of the Packard v. Guerra case is

unavailing. In that case, the plaintiffs had several physician experts

but also included a legal expert on the complicated interrelationship

between several corporate entities in an effort to justify keeping those

parties in the suit at the expert report stage. 252 S.W.3d 511, 517-

519 and 528-532 (Tex.App.—Houston [14th Dist.] 2008, pet. denied).

The trial court specifically invoked 74.402(d) and stated the reasons

on the record. Id. at 517-519. The appellate court determined that
73
that lawyer’s report was appropriate given the complicated corporate

structure and legal theories of extending liability to the corporations.

Id. at 528-532. This legal precedent adds nothing to Marente’s case

because the trial court did not make the appropriate finding (on the

record) and because Marente’s statement, unlike the legal expert’s

opinions in Packard, has never been provided, i.e. a report from her

was not served on Appellees. CR 351-352.

Finally, Marente’s claim of Nurse Asah’s job responsibility is

just untrue. As this argument developed in the trial court, Marente

asserted that, if Nurse Asah had responsibility for changing the

tracheostomy tube, then surely Appellees would have produced

records showing as much. See CR 337. While acknowledging that

the trial court can only look at the four corners of the report,

Defendants pointed out below that Nurse Asah did frequently change

the tracheostomy tube. CR 353. One would think that having been

proved wrong on this point, this argument would have withered away.

Yet Marente persists in this Court with that argument that is

factually inaccurate. Appellant’s Amended Brief, 14.

Regardless, whether or not changing the tracheostomy tube was

within Nurse Asah’s job responsibility does not determine a standard
74
of care or a breach – or that Marente’s experts were qualified to render

opinions in that regard. The fact that the experts had to rely on

Marente’s statement to conclude that Nurse Asah should not have

changed the tracheostomy tube only buttresses Appellees’ argument

that the experts were not qualified. If the experts had the knowledge

and experience to say that Nurse Asah should not have changed the

tracheostomy tube, then they should have said so from the

beginning. Instead, their criticisms focused on her inability to re-

insert the tube and the subsequent emergency instead of

undertaking the obligation at all. CR 51, 66. Without sufficient

qualifications for her experts, Marente failed to comply with the

expert report requirement. The trial court did not abuse its discretion

by determining that the experts did not have expertise in the very

subject matter of the case and then dismissing the case due to

Marente’s insufficient expert reports.

5. Marable was not qualified to offer opinions about
Epic’s potential direct liability

Marente argues that Marable’s report sufficiently addresses the

direct liability claims against Epic. Appellant’s Amended Brief, 13.

But her argument only addresses the fact that Marable asserted that

75
Epic should have had certain “protocols” in place and that its failure

was a breach of the standard of care. Id. 5 Marable never describes

in his CV or either report any qualifications regarding the formulation

of protocols for a health care entity. According to his CV, Marable

never participated in any committee that might have formulated

protocols for any health care entity, and the CV does not even

indicate that he formulated protocols for his own employees.

Likewise, both of his reports have no discussion of Marable ever being

involved in the formulation of any protocols. Moreover, even if he had

been on a hospital committee or had formulated protocols for his own

practice, that experience would not show that he is qualified to opine

about protocols for a home-health agency that supervised home-

health nurses like Nurse Asah.

Marable also never explained how these mythical protocols –

never described with any substance – would have prevented the

outcome in this case. As explained in Marente’s Brief, the protocols

5 Purporting to quote from Dr. Marable’s report, Marente speaks of
inadequate policies regarding “dural sinus thrombosis and idiopathic
intracranial hypertension.” Appellant’s Amended Brief, p. 13. Despite a review
of the cited passages, Appellees were unable to find the purported quote. See
CR 262-263. Dr. Marable’s report contains references to certain breaches by
Epic, but none of them relate to the previously quoted medical issues.
76
should have concerned “evaluation, consultation, admission, and

follow-up that resulted in adequate care of patients should an

emergency condition arise.” Appellant’s Amended Brief, 13. As

described by Marente, these protocols would be triggered following

the emergency – thus they would not have prevented the

tracheostomy tube from coming out and not being replaced. Further,

the protocols – as explained by Marente – do not appear to guide

treatment during the emergency. The protocols then cannot possibly

change the outcome in this case; they do not prevent the tube from

coming out, thereby triggering the same problems when it cannot be

replaced. They do not provide what steps to take during the

emergency and only address events that would occur after

stabilization from the emergency. By then it is too late because, as

Marable explained, Christian had been without oxygen for 10-14

minutes by that point. CR 67, 260.

Additionally, the merits of such a claim would still depend on

the ability to establish a claim of nursing negligence as to Epic’s

employee, Nurse Asah. If the nurse that was subject to the policies

did not breach the standard of care, then any deficiency in the

policies could not have harmed Christian. Without a qualified expert
77
on the Nurse Asah portion of the case, the portion of Epic’s policies

would inevitably fail.

While both experts may have had other criticisms of Epic (such

as supervision and training), Marente abandoned any claim

regarding the sufficiency of those claims by not advancing them on

appeal. Instead she focuses her claim of error solely on Marable’s

argument regarding protocols. Thus, she waived her claims for any

other theory of direct liability against Epic. And even without waiver,

she never demonstrated that either expert had any qualifications

regarding any other potential theory of direct liability against Epic.

Neither expert purported to supervise or train home-health nurses

providing tracheostomy tube care, which is a prerequisite to being

qualified on those direct-liability theories.

C. While Marente did not need a separate expert on the issue
of the vicarious liability, she still needed to have a qualified
expert report for Nurse Asah’s conduct in order for the
vicarious liability claim to proceed; because Marente had no
qualified expert regarding Nurse Asah, the vicarious liability
claim against Epic failed

Relying on Obstetrical & Gynecological Assocs., P.A. v. McCoy,

Marente claims that Chapter 74 requires no expert report for claims

of vicarious liability. Appellant’s Amended Brief, 20. Her position

78
cannot be correct because, at a minimum, the claimant must serve

reports that implicate the conduct for which vicarious liability is

alleged to attach. The McCoy case proves that point. 283 S.W.3d 96

(Tex.App.—Houston [14th Dist.] 2009, pet. denied). There, the

claimants sued two physicians and their professional association. Id.

at 99. The only claim against the professional association was to

hold it vicariously responsible for the conduct of the physicians. Id.

The claimants served expert reports that implicated the conduct of

each physician but did not address the association’s conduct. Id.

The unobjected-to reports about the physicians’ conduct satisfied the

expert report requirement for the vicarious liability claims. Id. at

102-103. The appellate court never held that a report for vicarious

liability was not required – just that a report did not have to address

the association by name. Id.

In fact, the Supreme Court’s subsequent holding in Certified

EMS, Inc. v. Potts disproves Marente’s claim. 392 S.W.3d 625, 631-

632 (Tex. 2013). There, the court held that the expert report

requirement is satisfied as long as an expert report connects all the

dots on at least one theory of liability – direct or vicarious. Id. Even

with vicarious liability, a report that is sufficient as to the employee
79
satisfies the expert-report requirement for the employer. Id. at 632.

The problem, for Marente, is that no sufficient expert report exists for

Nurse Asah’s conduct: the reports of Marable and Bingham did not

show that they were authored by experts with the qualifications

required in this case. Marente cannot, therefore, claim to have

satisfied the expert report requirement for vicarious liability. The

trial court did not abuse its discretion in determining that Marente

had not provided an expert report for her claim of vicarious liability

against Epic.

D. The trial court did not abuse its discretion by finding the
experts were not qualified and dismissing Marente’s claims

A trial court abuses its discretion by ruling without reference to

guiding rules or principles. Van Ness v. ETMC First Physicians, 461

S.W.3d 140, 142 (Tex. 2015). Chapter 74 and the relevant case law

demonstrates that the trial court acted with reference to guiding rules

and principles. Thus, the rulings below cannot amount to an abuse

of discretion.

80
 First, Chapter 74 requires that the expert offering opinions

about the conduct of a health care provider be involved in the “same

type of care” as the defendant. Here, Nurse Asah provided

tracheostomy care and then emergency care in a home-health

setting. Neither expert had any experience with the “same type of

care” as that provided by Nurse Asah. The trial court acted in

reference to guiding principles.

Second, Chapter 74 also requires that expert practice that care

“at the time” of the events in question or “at the time” of the

testimony. Neither expert explained that they had the requisite

experience during the relevant time period. The trial court again

acted in reference to guiding principles.

Third, case law requires that an expert explain how their

qualifications fit with the specific issue at hand in the case. A

physician is not qualified merely because he is a physician. Broders,

924 S.W.2d at 153-154. An anesthesiologist is not qualified in the

subject of anesthesia merely by holding the title of anesthesiologist,

when he fails to explain his education and training and establish how

he is qualified to render a standard of care opinion for the particular

case. In re Samonte, 163 S.W.3d at 237-238. Similarly, a pharmacist
81
is not qualified on the standard of care for pharmacists just because

he is a pharmacist. Perry, 2011 WL 6415135 at *3-4. These concepts

reject Marente’s theory that the nursing expert was qualified because

she was a nurse and that the doctor was qualified because he was a

doctor that interacted with nurses. Instead, these cases require that

the expert explain why or how he or she is qualified in light of the

particular factual scenario. Neither expert did. In this way, the trial

court also acted with reference to guiding principles.

Finally, courts have held that an expert purporting to offer

opinions about the policies and procedures for health care entities

need to demonstrate that they have expertise in that arena. Hendrick

Med. Ctr., 298 S.W.3d at 788-789. Without a showing of involvement

in drafting policies, a person does not qualify as an expert in that

subject. Id. Thus, the trial court acted with regard to guiding

principles in determining that neither expert was qualified regarding

Epic’s policies.

At all turns regarding the qualification of Marente’s experts, the

relevant provision of Chapter 74 and the attendant case law provide

support for the trial court’s actions. Guiding principles support the

trial court’s determination that Marente’s experts were not qualified.
82
Thus, even if the trial court erred in determining that the experts

were not qualified, that error did not amount to an abuse of

discretion. This Court should, therefore, affirm.

E. Marente’s other arguments about the sufficiency of the
reports on the statutory elements are irrelevant

Finally, Marente – throughout her brief – points out that her

reports may have satisfied the specific statutory elements of Chapter

74. See Appellant’s Amended Brief, 12, 13, 14-15. But such a

discussion ignores what the trial court did and that the focus of the

parties’ dispute below centered on whether her experts were

qualified. See CR 193-194 (containing the order sustaining the initial

round of objections based on the lack of qualifications and granting

a 30-day extension to cure). As a preliminary matter, the statutory

elements must be provided by an expert, i.e. the report and CV “must

illustrate that the person rendering the opinion therein is a qualified

expert.” Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex.App.—Amarillo

2001, no pet.). Not vigilantly enforcing the requirement that the

elements must come from an expert “fall[s] short of providing a basis

for the trial court to conclude that the claims have merit.” Id.

83
 The fact that the reports may have specified a standard of care

or a breach and may have explained causation does not answer the

question of whether the experts were qualified. Without

qualifications, the fact that the other elements may have been

provided in the report is irrelevant. The trial court did not abuse its

discretion in dismissing Marente’s claims.

In the trial court, Marente also alleged that her assault claim

survived the expert report challenge. In this Court, she has not

asserted that any of her claims should have survived the expert

report challenge, thereby waiving any error in that regard. More

importantly, she could not assign error in that regard because the

gravamen of her claims centered on the nursing care that Nurse Asah

provided to Christian in his home. She cannot use artful pleading to

avoid the expert-report requirement. Yamada v. Friend, 335 S.W.3d

192, 196 (Tex. 2010). See also Loaisiga v. Cerda, 379 S.W.3d 248,

255 (Tex. 2012)(holding that assault claim in the context of

healthcare is presumed to be a health care liability claim). So the

fact that Marente’s pleading includes allegations beyond a traditional

health care liability claim should give this Court no pause in

affirming the trial court’s dismissal of the entire case.
84
 One last point: the result may seem unfortunate, and even

harsh. The trial court recognized that in announcing its ruling. But

Marente had previously received a 30-day extension to cure the

qualifications issue. CR 194. The statute only permits a court to

provide a claimant with one 30-day extension. Tex. Civ. Prac. & Rem.

Code § 74.351(c). While dismissal may seem harsh, the statute

provides no other recourse in this situation. Moreover, the fact that

Marente ultimately failed to serve a report from an expert within the

time permitted means that the law deems her case frivolous

warranting this result.

Wherefore, Appellees Eunice Asah, R.N. and Epic Health

Services, Inc. pray that this Court affirm the trial court’s judgment

in their favor, tax appellate costs in their favor, and grant them such

other relief to which they may be entitled.

85
Respectfully submitted,

/s/ David M. Walsh IV
David M. Walsh IV
State Bar No. 00791874
dmwalsh@chambleeryan.com
Chamblee, Ryan, Kershaw &
Anderson, P.C.
2777 N. Stemmons Freeway
Suite 1157
Dallas, Texas 75207
(214) 905-2003 – Telephone
(214) 905-1213 – Fax

Counsel for Appellee
Eunice Asah

/s/ Winston L. Borum
Winston L. Borum
State Bar No. 02675500
borum@borumhancock.com
Borum & Hancock, L.L.P.
801 Cherry Street
Suite 2485
Fort Worth, Texas 76102
(817) 336-4100, ext. 1 – Phone
(817) 336-4141 – Fax

Counsel for Appellee
Epic Health Services

86
 Certificate of Service

On December 14, 2015, I served a true and correct copy of
Appellees’ Brief on Appellant’s and Epic’s counsel by email and
through the e-filing system

Douglas T. Floyd
3336 Therondunn Dr.
Plano, Texas 75023
lawyerfloyd@aol.com

Winston Borum
801 Cherry Street
Suite 2845
Ft. Worth, Texas 76102
borum@borumhancock.com

/s/ David M. Walsh IV
DAVID M. WALSH IV

Certificate of Compliance

Relying on the word count in Microsoft Word (2007), I certify
that this computer-generated document contains 14,014 words,
excluding the items in Rule 9.4(i)(1), i.e. the caption, identity of
parties and counsel, table of contents, index of authorities, statement
of the case, issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, and certificate of
compliance. The text for the body of this document is in 14-point
font, and the footnotes are in 12-point font.

/s/ David M. Walsh IV
DAVID M. WALSH IV

87
 CAUSE NO. 86812 FILED FOR RECORD

CRISTINA MARENTE §
INDIVIDUALLY AND AS § HELI'-d~IE i\EED
REPRESENTATIVE OF THE § DISTRICT CLEf\K
ELLIS COU!HY. TX
ESTATE OF CHRISTIAN §
MARENTE,DECEASED §
§
vs. § DISTRICT COURT OF
§
EUNICE ASAH AND EPIC §
HEALTH SERVICES, INC. § ELLIS COUNTY, TEXAS

ORDER ON DEFENDANTS EUNICE ASAH'S AND EPIC HEALTH
SERVICES, INC.'S OBJECTIONS TO PLAINTIFF'S AMENDED
CHAPTER 74 EXPERT REPORTS AND MOTIONS TO DISMISS

CAME ON to be heard(l) Defendant Eunice Asah's Objections to

Plaintiffs Amended Chapter 74 Expert Reports and Motion to Dismiss and

(2) Defendant Epic Health Services, Inc.'s Objections to Plaintiffs

Amended Chapter 74 Expert Reports and Motion to Dismiss. After

rev1ewmg and considering the Motions, Plaintiffs Response, and the

pleadings on file with the Court, the arguments of counsel at the two

properly-noticed hearings on the Motions, and the subsequent additional

briefing by the parties as requested by the Court, the Court rules that

Defendants' Objections are SUSTAINED and rules that Defendants'

Motions to Dismiss are GRANTED.

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 1
379
 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED

that (1) Defendant Eunice Asah's Objections to Plaintiff's Amended Chapter

74 Expert Reports are SUSTAINED and Defendant Eunice Asah's Motion

to Dismiss is GRANTED and (2) Defendant Epic Health Services, Inc.'s

Objections to Plaintiff's Amended Chapter 74 Expert Reports are

SUSTAINED and Defendant Epic Health Services, Inc.'s Motion to

Dismiss is GRANTED. Plaintiff's claims against all Defendants are,

therefore, dismissed with prejudice. The Court orders that Plaintiff take

nothing against Defendants, who are hereby discharged.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

THAT the Defendant Eunice Asah recover her reasonable and necessary

attorneys' fees and court costs as required under Section 74.3 51 (b) of the

Texas Civil Practice & Remedies Code as follows:

The amount of $ 1J 1
) ~ <->. u u from Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

Marente, Deceased, for recovery of reasonable and necessary

attorneys' fees and court costs for work performed in this case.

The Court further orders that Defendant Eunice Asah recover

her reasonable and necessary attorneys' fees and court costs in the

amount of $ l S~ '""'""" 0 . v from Plaintiff Cristina Marente,

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 2
380
..

Individually and as Representative of the Estate of Christian Marente,

Deceased, in the event of an ultimately unsuccessful appeals to the

Court of Appeals.

Additionally, the Court further orders that Defendant Eunice

Asah recover her reasonable and necessary attorneys' fees and court

costs in the amount of $ l (\ c c '"' 0 ~_:; 6 from Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

Marente, Deceased, if Plaintiff Cristina Marente, Individually and as

Representative of the Estate of Christian Marente, Deceased, files a

petition for review and review is not granted by the Supreme Court of

Texas or if Defendant Eunice Asah seeks review in the Supreme

Court of Texas that is ultimately successful.

Additionally, the Court further orders that Defendant Eunice

Asah recover her reasonable and necessary attorneys' fees and court

costs in the amount of $ l l c <;0 '- · 0 0 from Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

Marente, Deceased, if briefing on the merits is requested in the

Supreme Court of Texas but review is ultimately denied (i.e. a petition

for review is denied) or this Court's ruling is ultimately affirmed by

the Supreme Court of Texas.

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 3
381
..

The Court further orders that Defendant Eunice Asah recover

her reasonable and necessary attorneys' fees and court costs in the
6 0
amount of $ ] r ( CJ c) · from Plaintiff Cristina Marente,

Individually and as Representative of the Estate of Christian Marente,

Deceased, in the event that a petition for review is granted by the

Supreme Court of Texas and oral argument occurs in the case but

review is ultimately denied or this Court's ruling is ultimately

affirmed.

The Court further orders that Defendant Eunice Asah recover

her reasonable and necessary attorneys' fees and court costs in the

amount of $-~
- - = - - - - - - in the event that Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

Marente, Deceased, seek rehearing in the Supreme Court of Texas but

that motion is ultimately denied.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED

THAT the Defendant Epic Health Services, Inc. recover its reasonable and

necessary attorneys' fees and court costs as required under Section 74.351(b)

of the Texas Civil Practice & Remedies Code as follows:

The amount of $ ( 01 <:> u 0 , 0° from Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 4
382
 Marente, Deceased, for recovery of reasonable and necessary

attorneys' fees and court costs for work performed in this case.

The Court further orders that Defendant Epic Health Services,

Inc. recover its reasonable and necessary attorneys' fees and court

costs in the amount of $ ~I 1 ~? .) ~ from Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

Marente, Deceased, in the event of an ultimately unsuccessful appeals

to the Court of Appeals.

Additionally, the Court further orders that Defendant Epic

Health Services, Inc. recover its reasonable and necessary attorneys'

fees and court costs in the amount of $ ), ~ s3 ~J from

Plaintiff Cristina Marente, Individually and as Representative of the

Estate of Christian Marente, Deceased, if Plaintiff Cristina Marente,

Individually and as Representative of the Estate of Christian Marente,

Deceased, files a petition for review and review is not granted by the

Supreme Court of Texas or if Defendant Epic Health Services, Inc.

seeks review in the Supreme Court of Texas that is ultimately

successful.

Additionally, the Court further orders that Defendant Epic

Health Services, Inc. recover its reasonable and necessary attorneys'

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 5
383
 fees and court costs in the amount of $ S ~ 1 .>. ·~ 3 from

Plaintiff Cristina Marente, Individually and as Representative of the

Estate of Christian Marente, Deceased, if briefing on the merits is

requested in the Supreme Court of Texas but review is ultimately

denied (i.e. a petition for review is denied) or this Court's ruling is

ultimately affirmed by the Supreme Court of Texas.

The Court further orders that Defendant Epic Health Services,

Inc. recover its reasonable and necessary attorneys' fees and court

costs in the amount of $ ~ t S: 00 · 0 J from Plaintiff Cristina

Marente, Individually and as Representative of the Estate of Christian

Marente, Deceased, in the event that a petition for review is granted

by the Supreme Court of Texas and oral argument occurs in the case

but review is ultimately denied or this Court's ruling is ultimately

affirmed.

The Court further orders that Defendant Epic Health Services,

Inc. recover its reasonable and necessary attorneys' fees and court

costs in the amount of$ --+-l;-··. . ._,--
--------
in the event that Plaintiff

Cristina Marente, Individually and as Representative of the Estate of

Christian Marente, Deceased, seeks rehearing in the Supreme Court of

Texas but that motion is ultimately denied.

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 6
384
.

These rulings complete the Court's resolution of Defendants Eunice

Asah' s and Epic Health Services, Inc.'s Objections to Plaintiffs' Amended

Chapter 74 Expert Reports and Motions to Dismiss so that this Order ( 1)

constitutes a final judgment regarding Plaintiffs claims against Defendants

Eunice Asah and Epic Health Services, Inc., (2) resolves all claims against

all parties, and therefore (3) constitutes a final appealable order.

BOB CARROLL
JUDGE PRESIDING

ORDER ON DEFENDANTS OBJECTIONS AND MOTION TO DISMISS Page 7
385
·,
Charles D. Marable, M.D.
Consulting Neurologist

800 8th Ave, Ste. #118, Fort Worth, TX 76104

Areas of Neurology, Medical Malpmctice regarding Neurological issues, Closed-Head Injuries,
Expertise: Medical Case Management, Phannacology, Spinal Injuries, Toxicology

Professional 26 years of experience in private practice, internships and hospitals;
Experience: Consulting Neurologist, John Peter Smith Hospital, Ft. Worth, Texas (1986, 2004-2006) ·

Consulting Neurologist, Veterans Administration Medical Center, Dallas, Texas
(1986 only)

Adjunct Clinical Instructor ofNeurology, University of Texas Health Science
Center at Dallas Southwestern Medical School, Dallas, Texas (1986 only)

Currently on Staff at Ft. Worth and Dallas Hospitals; Medical Plaza, Baylor All Saints
and Forest Park Medical Center

Education/ B.S., Pharmacy Science, University of Texas at Austin
Training M.D., Universidad Autonoma de Guadalajara, 1976-1979
Fifth Pathway Internship, Loma Linda University Medical Center, Glendale, CA 1981

Internship in Neurology and Internal Medicine, Tulane University Medical School,
New Orleans, Louisiana, July 1982- June 1983

Neurology Residency, Tulane University Medical School and Affiliate Hospitals, June
1983~ June 1984

Neurology Residency, University of Texas Health Science Center at Dallas Southwestern
Medical School and Affiliated Hospitals, Dallas, Texas

Professional Board Certified in Neurology
. Qualifications: Tarrant County Medical Society
Texas Medical Association
Texas Neurological Society
American Academy of Neurology

Cases/Clients: Depositions-over 700
Plaintiff 90%, Deftmse I 0%
Court appearances, case reviews

Comments: Bilingual- English and Spanish : ·

71
06~26/,13 06:15AM PDT Dougl• . Floyd -> Peter Anderson •
21~9051213 Pg14/26

CHARLES D. MARABLE, M.D.
DiploiiJit oflhe Anrican Bom\ ofN euzolcgy and Psyohiall)'
800 &"'Ave., s•tts ·
Port Wonb, Texas 76104
817·334·0338 OFFICE 817-334-0586 FAX

August 20, 2013

oou;aa T. Flcyd
/;JtiJtTJey At L&w
6521 Preston Road, Suite 100
Plam, Texas 75024

RE: CAUSE# 86812; CHRISnAN MARENTE v EUNICE ASAH AND BPIC HEALTI!
SERVICES, INC.

Please accept !his as ~ ameruied lbmBI. expert report in the above case.

RECORDS REVIEWED: In an:Mna at tile opilion aet out later in tbis report, l have reviewed
tile :ilDowillg items:

.., Medi:al reconls tom Air Bvac Lifi:team
ClDidren's Medi:al Cell!er reconls
East Texas Medical Cemr. - EMS
Texas~ ofS~ Heallh SeMle& Vbl S1aliltics Dealh Certii:ate
0Ulpltiem notes ftom Our CID!ren's House
Progress IIOtfi fi'om Dr. Jose J. Salguero, MD.
Skil£d NIJI'SlD&Fiowsbilctdnd.09/10t2012 sWlad by~ Asab, RN.
Mallm related to m: rejplllillg S1aterJmls ofCrislila Muezte concerning tbe treafmlllt of
Cbriltian Maeme

BACKGROUND: My name is Charll!s DOups M.atablc, M.D. I am a. Board Certified
Neuro!ogi!t, and~ placo ofetq>loym:ut ill 800 8° Ave., Side 118, Fort Worth, Texas
76104.

QU.uMCATIONS: I amactively~m:clalenow, as well as the tin: tl1c illcidem
arose irun area rcll:vant. to tl1c claim, I am Board Certified in Neurobgy. I have substantial
,. traiDiDg and expcrtmc in the area. relevatt to 'Ibis clain.l have the knowlcdF of accepted
staDda.rds ofmedical care flr tile dlaplsil, care an:i treaDnmlt of the injuy, i!lllcss or condilion
involved in lbis ilcK!ent, wbQ is 1hat ofam:xic enceptelopuby, a.s su&red by lbis patient. I am
1itri6ar wlh aMxic encepba.bpa.lhy and h&ve treallld patma d1 \bis iliDess throughout m,y
resi:leoce. as well as inm,yprivate office and hosplalpracti:e. Ihave seenliteraly luldteds of

CDM!MARBNTE • 08/20/13 PAGEl

253
 •
patienla wbo 'bs.ve SU8I:l1lcd hypoxi:: as well as AIIOllic e.ocepblbpathy.

mr
It is IISilally the ceurology aelYice tbat ill oonsuked epBodee of eD)Jiic cnccpbaklpa~. and
ll&naliy the llllUI"Olo&Y ~~also asked to pri.tm brail dealh0ll8l!irla!ioos on patients.

Neurolopts, as wen as pulmmary medrire and~ are usually the ollU wbo 'bs.ve
the abiiy in the lCU to·hmldle vmlator ~

I also bave ~ experlilcindealillgwilhpedi&lric 11 wellu adui!Delll'Ologicalcasea. In
fic1, ftoml986 to 2000, l dii both p~ and aduk COlliUb, aDd ftom 2000 to the present
time, I aDl! see :YOIIII8 ebildral. but tbey are usually over aae 13 or 14.

I currently and sklce 1986 reauJarly reilr Ill' neurological pel:I!Gta :fbr lKl1llc health C~~.R:. As a
reaut fur these re&mls, I write tbe OldeR ilr bomll bedh care lrll«1!1J'!tt fDr mnes aDd 1bcn
ftlllow up with the patiellt to insure lbat they receMd the p~ care and collli!JJe to receive
lbatc~ ifitis ongoq. This is a. veryCOl!IXIOilslluationin!ll' oilice.

ADhl!boughi amoota Reg8tered Nurse, becauseof~ey"'41"imc-. sioce 1986 inrei:rring
paticma fur bom: Melh caze and wcrldng wllh lllr8e81bat proviie bom: blallh care ftlr m;y
pJ!ienls, I am qualified to aaeertain wbcn a llllr8e sbould have adequatl!l queljfi:ttil\11$ to treat
cenain bases i1, the boroe beallh caze enviro!IIZDt. I am q1111i&ed to state the standard of we
ibr a rurse trealiog ClDtian Marel!te ad opirle on the breach ofthe standard ofcare. My
experieDce and ll:ainq in worldag Mil bcalth care iDstl.uti:ma such as Ppie Heallh Servlcea,
Inc., qua.VJYme to renderanopilionu to the stmlard ofcm f>rsuchin!tilntims and opiDe on
the breach ofthe S1andard of care.

MEDICAL LEGAL STANDARD: Unleu stated~ anm;y o~ in 1hia report are
based upon the medical legal stm:lard of reasonable mcdi:sl probabi!ly.

FACl'S OF CASFJOP.INIONS: Cbrinian Mareza was a 17-yesr-old ~. OOB S/1:2/95, with
a histo!y ofJeuce S}'lldrome, and rcatrictive iq cmeue. Jeune disease is a beredilary
~!woP !asia ofthe thorax, or also laJown as asphyxia!iJg lbomclc chondrod)m>pby. 1bil

basUily afiilcq tbe chM'a lile&F. peMs, mm mi._
S)Mrome is a rare gDII8ti: disorder that allilctB the way a cbikl's cartilage and bones develop, it
Due to the rbcsge being narrow, tbil
keep& the ehild's UDal ftomclevelopilg Wily or "lpM'ti!lgwhan the cbM inba.ils. Thay can also
devebp problems wlh ther kidneys. This is taken limn !blll1tice, "Jeutll! Syodrom:" at Seattle
Cbildrcifs HDspi!al in Washillgton.

On 8/11/11 Cllistian MARENm was seen f>r !bllht mm by Dr. Salguero, who, noted bil
lltliJn)Jog¥: exan:was t!Orrral, be was wdcq well, He was very pleasant ml smart

On 9!8/11 be was seen agail with & ooll!lllneurolollic eqrni:wtim.

On 9114111, be is seen by Dr. S~, wbo ootedbe to be unwithaoonnalneurobgic exam.

CDMIMARENTB • 08120113 PAOE2

254
 < !

08/26/13 08:15AM PDT Dougl• . FlOYd -;;_tMPeter ~n,.~on
• 2149051213 Pg16/26

On 11123/11 Ill! wu seen 8.fllin by Dr. Salgue.to, 111111 was DOted to be NlJy alert His ncurolo,P:
exam showed he had a mllllll gait. The neck was ~le. He had 11. negati\Jcd a uacbeos~ ml was attached ro a
ventilator t~Rlco. The only t;m be wu mt on a veidaror was whim be was beilg batbed. Even
with 1lle trac.beostozey he was able to 1d, and Olb!twise lead a Iea.sOnah~ active li! with his
filmly &l1d fiieDda.

It bas beenr~ thatonSep1elliler 10, 2012, atapproxil!&t8ly S!JO p.m., NUrBeAsah was
barhingCbriltian in hi9 bo~m. Thme it collfljcq il:!imm1ioll.as to cadlywbat oCC'UI1'0d aext.

1. Per 1he 911 cal1, Nt~~~e Asah was abne and whilll pllltiDg Chrlatim 'baolc ro bed" the
"tnicheos!omy'' ~ out.

· 2. Per lbe Skilled Nursirl& Flowsbeet Nurse Asah reponed, ''Aftl!r I pulled out the dirty ·
aacll, I was UDSllCCC811blinserlingtbe clean6.0 Biwna tlexcutrtrech. A second a~t
with the 5.0 Bivona icx cutrttach a118ilable was IIIISUCcels1ill."

3. Per the respooae to an iltmoe,stories propol.lllded to Nurse Asab, her verified respolliCO
wuasmlbws:
INTBRROGATORY NO. 8: De8eribe in clolail ~!bat )'OU did wth CHRISTIAN
MAR.ENTBlntbe o:neboll'belbre his 1rachtubqcsme outonSepizltnber 10,2012. ·

ANSWER: St:bjeot Ill and without waMD.g aail objectims, on Septertiler 10, 2012,
Nurse Asahprepared to give Cbril!ianMa!eab: a batb. She tirat laid out all ofber
r' supplies befure gettilg staned. That lnchxlcod the bath lft¥lplies, ClTistian's change of
' clothes, and all oftte supplies m !he flacbeostotey cbaD&e, i!lckldillg a clean 6.0 ttach, a
baclc- up (mmller) 5.0 trach. and an ambu baa- Cbm\U's traclleostomy change oecuned
'· eveJy Momay. Nurse Asah made all ofthcac plq)MidoDS befure bllhing Cbristian on
September 10, 2012. Upon co~tpletiilglm beth and clressio&Cbrislian on SepteJmel' 10,
2012, N\I'Se Asah began to cllal1ge bil trach. The b:achia held in place with sot tie& that
ti: arollld his :nec.k. Sbc undid the ti:8 and cleaned CJri!tiall's :nec.k. In acconlaDce with
her staDiard procedln, Vlbi:h abc bad peri:lrroed ~tina be.filre, Nurse Asah tb!.n
removed the exirtillgb:achand co~~~ to place 1bc cloan6.0 b:achinto

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C1lria1ian's ~sire, biX it would D:lt go it. She itm:diately grabbed rl1e
Slmller, S.O ttach and tried to place it ittto Clntim'sttacheostomy aile, but it too would
oot go in. At that poitlt, she ttmw!iate\Y callecl911 onbcrccnphom and proceeded to
ilitia.~e CPR uutil em:rgeJI)y medioal acM:es mived. In addlion, pase see the
dc:p011ilion ofNuree Asah wbmJ!iftaken1Dr filrtber .inimnltiln ~the care
proWied tbat day, as wen as the relevatt medioalrecords rel&ted to 1ltis ma.tter.

The EMT team iluo:l he had a cardiac arrest, illmd IS)'Itolc at 1730 and absent respi"a!OJy
drive. He was mted to have cya110tic skin. His caplla!y refill was dele.)'ed. His pupil size was
pupil dilalafull. Level ofconaeioUille88 was l.lllelpO!Wive, wilh 0 out of S ltlllcu!ar streogd1. At
1754 his blood pre8SU!C wu 94162, pulse was 142, respitUotyrste 13, source was suppleli'JI:lDial.
Thc.Ai-Evac LifCtcam was then called at 1749 and u:riued. at 1809, and was wifh the patient at
1811. He was rolled to be UDre8pOil8ivc level ofcoMcK!IIIIIIIISS. Loas of coqcioUS!liiSS was ooted
to be 'yes." His Glasgow Co1111 Seal= was 3.

He was lhcn 11'111lSpoiUld to Children's Medkal Center In Dallu, Texaa. The ililUlOiogy
comullation note on Chr8t;ian ah.:lwcd that the EMS was called and q~on dleir arrival, he was
still pulleleu, so chest cotqJmSims Mill eoomued. He was pen a dose ofepilepbrine it was
estimated the episode ofpukeleasae.u lu1ed approximtcly 10-14 ~. but lhe exact titne
was~. He was begpi in roure iillm the .Ait lMi In the Brnetgen=y Departtnlmt he was
8iven 3 litera ofDOmllllsaiuc d\le to profium, b\.1 did rot ~~quire &II)' pressure support. He was
ilOted to have rnyocboi:jetks atJd was Pa!At!Yan4q-X2, Dilalllin 1 gram, Keppra·1 gram,
hydrocortisone and then an addJinMl bolus ofl 0 q'lq ofphotpbrm;ytoin beilre rmve!IIDills
deereascd.

At tbat time, a stat CT ofthe head, wu dODe on 9/10/12, aho~ Jill:! volm: loss ilvoMIIg
pnme.rily the iilllllallobes, but oo evidence ofin!ercmnial hemm:bage, DliS& cililct of
parencb,ymal edema.

He was noted to be obwnded upon mlYal to the Eme!:pr;y Room, but the rmthcr stated he
would wallt and eat by rmutb, ilrmct wth the imiy at boo, wiD:h was hill baselme prior to
09/10/2012 ilcilent

He was admjl!ed to PICU lllld NCII'Ology was consulted BEG on 9/11112 sboMd bllt'st
suppn:ssiln pattcm, but liD sei'lJire ac!My, and d!Dilre <i:onwlsaota were stopped. The
jerking was ooted to be post &jplOSdc lii)'Oebnus ml oot aelmre adivay.

He was also seen by nephlulo&Y atJd Jiwn Cak:lro~ I.asi!c and ilmmosl.ppression,

MRI ofthe head on 9/12112 sbowed CICial8iYe symnettical ~and suprtmltor&\
cytotoxi: edema of'tbe cortex, and Sq!Ja~deep grayllllllllrstructures. Theae mfinss
n:pteBCIIt sequeee ofprofllllld global ilchcuE 1\ypoxic insul

He was seen by cardiology because of11chymhytluiu, and bad 11atrialatopic ~.

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Pukmnaly !mdi:ioe aaw bimm:l it was mltbe bad epBodes of•ption willl byp~
tachycardia, ilcreased respiratmy ra1e, cotx:etnillg fbr AIIIOno!IJi: stonnlag. He was given
Versed, Fentanyl am Vaim.

Th:n fiDal!y, !he piilmy 1U.m had e. btlg discusahnwilh the m>dm about DNR.

It was llOted on admissioulhat the ~Was IDl!'elpODIM tn verbal or tactile stimlli, but had
reactive pllpils and twitch like m>WI!le:IIIS on exam. The reason ilr admission was acute
respiratory distress, tracbeos~ cotq~bmns, allmed mmral status, llllid overload, lOOney
trallSplant CO!qlblions, e.cure kidney i$Xy, cardi.lc dysdl.ylbD:il, IUlO!lOIIK: il111abilily and
cogcilive d~n.

Attcndil& Dr. Mattbias, M.D., Jmde tbl comnent 9/i2/12111at th:y were very concerned about ·
his neurolop! propsiOn. NNObgy also noted il. tbck notea t1m.t tbe patitm acquired stupor
mr I 0-IS minutes, llOt weJI.d~ am .bad a quelliollllble slxlrt ~tom-clonic
sei!ure in the Emergen:y Room Depam-t tblt jnc!lr:spy! 110t11e anoxic brain iqjury and Wl4
loaded wlh phospholatcd DilaDI:in m:1 Kcppta. He noted 1he CT offhe head and EEG. It was
also noted tblt 1he pro!JM)sil had been verified ailzlr 24 ho1.111 tom 1be event, so to keep ~he EEO
on ilr now, ll!ld tteai!DW ofthe UI)OCbnic jerks could be treated with bemlodiucpi1.cs,
phecytoin or Vqw~. 1Mugh fbi use1!mess is qucstio!lablc given 1be vmy poor, prognotia.

0\liQ& his bolipial stay be wu illteu~ 1bbriZ and uea1ed Mil Clildamycm a:nd
CetbiaxOllC. He bad occasional episodes oftaoh)pMA, ~and hypenension, probably
due to neurolop mmillg. ·

On 9123/ll, support was ~wn d1111 tn the fact be~~ brail damage. His admit
m:l1illal diatp)sea were respiratory BI.Wre and bypoxi: eocephalop~ it Wl4 noted cause of
dealh as ~iratory atrest secondary to wilblrawal of care, and aevcre bl'llin hypoxic
iichemia.

In a mq,r&eti:e case, there are bur elcm:urs tblt need to be mJfilled. 1b:re is ~ breach of
stalldan:l ofcare, CW~ati>n and darns£!es.

What is lhe i!pecific conduct callo!d into qucadon? It is lbe conduct ofmne Asah. RN. who filll
below the standard ofcare wbm she tied tn ba~~e lbe proper traiDiug aDd education !Dr health
care ilrtrllebeolltomy patienls, as well u her 1i.ilure 1o propc:dy cae ilrlbe 'lracbeostomy, as
wen as to immediately call911 to ask tbr lmdi::al•!fttaace, m:l i.Wre to do CPR. It is the
filihJre oftbis rurse 1hat was the sole and etiologic cause lilr the severe anoxic cnccpllalopalby.

Anoxic eacepbak>~ is debe! aa the CO!q!lete lick ofoxysm to tbe !nail, wbi:h in peml
cauaes an eacephabpatbic pictu'e, ~ by abnd rmmal &ta1lle that is acoolql&llicd by
p~ ~·· Baaklally, anoxic encephalopa11\ymnns brain danlaF due to lack of oxygen.
in this case, it bad ilal ~tationl, endillg in coma and death ofCbrilltian M=ntc.

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VU/L.U/J...J vu. J.;,JtU•.a t"'Ul uuuK.LA·t·. r J.oya -> 1-'eter Anderson • 2149051213 Pg19/26

Wltll regard to the alalldard of care for N~~r~e Allah the folio~ slalldardiare appUcable:

1. Ifa displaced trac.beostomy lUbe iA SUtpeCICd, 1hc standard ofcare requi:es bilateral
auscubation ofbreath anUDds, observation ofeMit rise 8lld i.D, 8lld ~e of an exhaled
C02 dett:ctor to ISie8S filr place!mnt.

2. The s1alldard of care tequires that obstructed uacbeostomy ubel ~ suspecflld with
decreased breath souods bllatemlly, or decreued chest rile 8lld &11.

3. The s1andsrd of~ requns that salme be iUected iltD the tnlcbeostomytube to 1bin
secreliom, then a properly silled suction catln:r be pused into the tube and suction is
applied to clear secretions from the tncheostomy tube..

4. The standard of care mr mnillarequires tllat iftbe obsttuctionis stillprcsem, ~uahall
repear this procedure ooe time a1!er ~ wmtiJetlm between attcnpfs.
5. Ifthin is no ilqlroYCI!Iellt in TeSpi!'atory distreu, the uacbeostomy tube will be cbanpi
inmediately.

6. The slandard ofcare requm tbat if& lradieostomy Idle doel not pus easily, the attelqlt
shall be nwle im:lediately wilh a smallr:r silm tube to re-eambish an ailwi.y.

7. After tht tube li placed, assessing placem=lr oftbc tube wlh at lesst two oonima10cy
measures such as lisllmilg to breath anl.llda, ~n ofequal r:Ee and &.1! ofcheat,
and I& ofC02 detector shall be docnmen!M by the RN.

8. The rtuldard ofcare filr severe airway obatnlction inchildrenrequi'ea tbatpractitio!lel'll
call early m adVIIIICed help.

9. A reasonable and pnldent lllliSe !.!1 requRd 10 rcali2e the patient's c:rika1 asscssm:mt
findm&! 8lld initiate an =gcwcy resp0ll5e i:mw!iately.
10. To haw the imdamentalla!owfcdt= of CPR..

11. To koow ttacbeostomy care me a hom:: care patialt.
12. To koow how 10 properly posiioD, rcmow and replace a ttac.beostomy tube.

13. To la!ow to call911 itmldiately, idezuey lwselfappropriately and give tbe correct
.address of the :icilty.

Describe the lllfUiller In 1'lfdcll the care failed to meet the slandards.

Faihlrea ofNuraeAsab:As anRN WOJ:klngundalbe camofEpil HcakhScrvi;es, sbewas acnt
to care fur and treat Christian Marente. Her dillies incbled proper cam and tteatmcnt of the

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:.

tracheostomy tube.

1.. Sbe i.iled to have the proper traioi!g fill' boa heaJdl eare ilr ~torny patilns
wben ~ undertook to ~eplace die t:ee.b, aprocedure that wu !lOt her respondlilil:y.

2. She miled to properly reinsert the catbamr in tiDa to, pMvem w aeveM amxi: damase.

3. She p81licked wben lhe C01M t10t teiasert tiJc trach.

4. She i.iled 10 jmrrwlia1elycall911 wbenthe crisi9 occmred.

$. It waa also Mf2d intbe911 displtdlcallof6 millies, tbemne didnot~herself
as a Registered N11r.1e, theremrc vabable time was klss with the rcsuscitatim 1caln givilig
her tbe basi: principles ofCPR.

Agaio, allboughi am not a lliiiSe, but am a medal doctor, I have had cxtellSive trailing~
lll(se5 during my residea:y as weU as post R&ileo:c ~ in boepilals. I have pen rwlt:iple
lecms to llli'Silg staft'tbrougbout my time Jl:aD as an attclldillg p~ 8lld I bave deak
with.hon health care llii!8CI in the past as wen sa preaertly in my cunem day practice. I bave
bad nurses in my office, and any doctor expects a mne to be CO!qletent cnougb to fu1iD. certain
dillies as indicated by her oducation and lraioiog.

For exa~~:plo, a IIUIJe 21 tbe Canliac Care tblit would be eotpec1ed 10 Ulldentalld cardiac patienbl,
10 be able to uode.tStaild the nw!ieaoot11, melbodokii!Y and tl\!aiDalt ofcardiac palieul:&.

AI. a bom: ~we nurse, Nurse A.sab, shouki have had the trailiD& elCpei'IBe and
knowJedae, because lhe was adYe111sed as sW!, 10 care Jbr.lraaostollil:s and treat any type of
·, · ~~ that misJtt arise in the home, aspecBIIy in the care ofCilisdan M8Iellle, and at
least be pll!pmd 10 treat any eowgeocy that should arise in a botne bcath eare patent

AU these above lililun:a ofNtne Asab was lbe sole oo••tioo ofthe lliOXi:: eno:epbalopatey,
which led to 1bt: bospitalizati)n, coma and death ofClriatian Marenle.

This is substantiated s~ in the nw!i:alrccorda. Upon aniwl by the EMS services. the
patical: was fuuod 10 be asystolic (pulselcls), and n:api:atozy dqnessed.ln other words, mt
,·I. breadirJ& He was quadq,• or had 1lacci! paralysB. ic., mt movilg any eXII'ell'ity. His
Glasgow Coma Scal8 was 3 out of IS. In118iuctbe scale, one is giwn S poiolsilreye opezi!& 5
poirUa mr verllal response, and Spoiltl fill' motor respome. He jpt I poirll each mr baYing no
eye opening, no verllalrceponsc and no motor resp0111e, a to!Bl score of3.AJzy score bebw 9,
accordiag to the litm.ture, il 1!.1/Cly aev= sco:e, and the lower the score usually illdi;ate., Jess
cbsllco ofrccoVCiy. A.ccordilg to 1be CDC, buecl on mo10r response, Yt:ilbal pedltmiDce and
C)ll opeaiq 10 appropriam stimili oftbo Glasgow Coma Scale well! desi&ned and sbouil be
used to asseas the dep1h and duralbn ofcou. and i:qlaired co~. This 9CU helps 10
~ the irrpact of a wide variety ofOO!ditia1111 such as ecute blain damage, 8lld in Ibis case,

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due to severe anoxia sustain&!d by this pllliett.

It is eatinet.ed !be patient had lack of0¥)'11en fbr at least 10-14 nimlta. !tis krown that !be
brUl requm a constatt tlow ofoxyacnto ~!medon nomaJiy. A ~xic III!Oxic iqjmy occurs
when that flow iJ disrupted, esaeD:ially stuving the brain and prevemina it li'om. prirming vJial
bioclmical. processes. Ho-, anoxi: JlleallS a to1allaCk of oxyg~m. ln general, !be l!lDre
CO!qlict= the deprivalion, tbe mote severe the hann ID 1be brail, and the greater the
comeqllellet8. Dimilirbed OX)'Fil supply can cause serbuel:qlalments in cognlive sldls, as
wen as pbyaj:al, psycholop and otller 1imc1ixls. Most =tbook and sources state tbat abol.t 5
lllimies is the time we start seeing dying of'!he cells.(I.scbo!smia)

Accordilg to Clay Ooodmm, M.D., Aasocialc Proll:ssor ofNeuropa111olos,y at Baybr Colege of
Medl:ine, Ilk 1997 Neuropalholos,y Notes, pap ! 8 andl9, 1Blk about global iJchtmia, wbi:h
leads to widespread 1issue iqury, rcsukilg in condll:bna referted to ~ cncepbabpathy,
wiD this patient sulll:rcd, The mote severe il1iliiYIIIlY lead to tftnm6e and spasti::ity, Iftbe
iscbimic period is prottacted, the patied may oot regain consciouszlcat, and may exhibit
decorticate p081I.I'ing and seiuca, and mAY remail. il. a vegetatiw ataz D:lefi!IU!y. Certain cen
populations that are seleetivelyvu!nmh!c to iac:betiit qury incb!.e large DCIIIOIJS ofilom= of
!be sectors of the hppOCII!qlllll, Purlcille cells ofthe cenlbellumuxl DCIIIOII! oflayers 3 and 5 of
!be cerebral cortex. ·

,.
Not ODly di::l Cmstian MareJU's brain Ulldergo oJ.)'Silndeprivation, !be bran
ofadequate bbod 11ow.
was a1sa deprived
It is alsa DOled tbe patimt had been fbund to be puH!eas am wZhout respinltory drive. It was
fi.a:'tllllr ascertained be bad a poor GluiDW Conil Scale of3. Upon his llll'iYal at the Chidreds
Medi:al. Centm" in Dallas, be stiR bad a wry poor progoostic inc!U:tion ofbeil!g comatose with
pupils dilated, and basicall)l flaccil with llO neurobp:a! n:spoDSe, except ilr pupil!ary resction.
This was further subf!an!iettd by the bllf8t ~siln EEG and the MRI ~. which! will
elicit fill1her on.

~f:~~~~~~~~~~~~i~~~i~~~~m~sasbaL
Wcilanm; 1iom the states that patie:m! who have
\llldersom cardilpulmoilllly resuscila1ion have a poor proplllis. Fewer than 5% ll1.lrYiw
resuscilation on &vefa.F in rural areas, while in cl:ie$ up to 113 aurvive. They cilher @ soon
aitcrwards or el!e aurvive with severe irrevershle bran damAge, C8UIIiagpeiiXIIIICnt
Ut¥X1118CioiiiiiCI8.

~.what were tbe ~ fbr the progaosis aaseasmett ofresuscila1ive piUicnts? Age,
u:nderlyilg il!nleses, etiology of caroac arrest, ~e ofcanliac anilytlmiu, liftsavilg measures,
interval betweea from collapse Ill arriYBliD 1he Fmetaea;y Room, spootalleoll'l respiral»n, light
response, ell8 or co¥ reflex, Glasillw ComA Scale, ~ fivlinp, ~d U¥\cblu,
puphly Jigbt responses. The p81imJt bad ae-abed IIIYOClollll alld pupilmy light respoDSea.
He did IXIt have response to paioful stirwli. His O:EsiDW Coma Scale was 3. l.englh of

PAGB8

260
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08/28/13 08:15AM PDT Dougl~. Floyd ->Peter Anderson ~

=nscilumess was approximamly I 0 milxltcs. Electtopltysiobgy sbJdies such burst
~presaant EF.G 8.lld
MRI &bowed ebmacterism conilal damage.

The MRI report of9/12112 showed extaiw ~~ mi supratolliOrill
cyrom edema oftba cortexllld suprateztorialdeep pymai:la' &tructll'ea, lirlc!qpl represenliog
scqucae ofpro!bll!ld global il)poxi:lilehctmic illslllt,
The progwsis ofpatimts in coma wirh geoerallaed lll'I'Ocbml wirh24 hours of
catAM PUT oouglaW. Floyd - > Peter Anderson • 2149051213 Pg23/26

provide t ad CII'Ji"oalmllt mr die patieulad be ready 10 rilate ~ I'.DCUUI'CS
sbould tb: need arise.

2. All~.DCUums involving !be patient IDlSt COilliler tbe possibility of e.ce¥1ental
dilbdgmW of tile tube and be c1om iniiUCha wayw uiniuite S\lilinw.

3. Epic Heallh SeM:ea, Jn:., !Dl!lt ensure that lliiSea aze be trailed to UDdentand tile risk.
ofnile displacelmnt in order to Wilimia: tbe rislc ofis ocGUI1'ioa and to manage the
pt!ZDt sbould t occur.

4. Epi: HeakhServiccs, lnc.,ID.I!tprovidc filrcareillbend!inaoftbe patient, close
monitoringoftbe pa1ilmto plani>r~ recop:bn oftbe t.racbeostomy rube
beilg displaced, and sewral plans ilr ~ tbe alway should accidemal dislodgmem
occur.
5. With aey deterbration in the plli:llts condilion, or whln a pat:at exlZits aigDs and
S)111ltoms ofmpntol)' dil!reBS u CbMim Mualte dii, dillod~ or obstnJOiion of
the lUbe IXIIIlt be comideted u tbe pouble eauae, even ifextemal parts of the tube
visuallv appear to be 11Drmal(ypositioned.
6. Wbm a. tra.ebcostomy nile becotUS dillplat.ed or o~ and 1here is a detm:lration in
tbe patient's condDln, an applicable profJsailDal h=lp milt be lmnwfietely zmbili2Jod to
remwe aey obatruclim or comet am; dislod!P"""l This tDBt incbie jnmwljate COlllact
oflb: pbysicim in llltaldance 11111 !be Sll'geon Who pla.eed the hebcoStOroy alld
'
" i:ti!Ediate il1ilialilnofenmem:Ycode procedurea.
'
7. A ttadleostomytube of!be sam~ type 8lld site u tbe one \lied, pbs one ofaiz: smaller
llliSt be at !be bedsiie. Anobtmator ilrtbetube inplaoe tDBt be placed at the bei!Die in
a bigbly viaille loe4tba.

8. The nunc ID.ISt understand that a~ tube should never be subjected to beicg
baa venr•WJ unJe&a it is known to be il. tbe ttacbea.
;
:I
Therefore, bowdld the violation of the •tudardofi!Aft u.e i»Jmy.
,.'
The nesJigcnce ofNune Aaab, RN, .who repreiCilled Epic Healrb Care, by failiDg to prop~
cate mr a home beakh tmched pa.tiant, iDabiliLy to replace thl1ri.Cheostomy in a mm)¥ &abion,
and 1w iDability to balldle even siqlle CPR and 911 emergency calls, was tbe direct etillogi:a.l
cause oftbe lack ofoxyaen, ~hebpalby mi bnil claaqo to Chrit1iln Marente. He was
illl!ld to be uystoic or pulscless, end wilbout roapiatol)' drive, aai Jm he wu down
somewhere between 10 and 15 mirm12s. Thil i:uubi18Diial:d by the 1iJdilljp ofthc RMT't
wberc tbl:y li:nmd bin puEeless and wibolll tespi:almy dri.w. 11 was also subiit.alltialed by tbc
poor Glasgow Coa Scale of3. It was filrtber sm•ntiated by 1he ~ in till: E=rgeocy
Room,.wbere he had seilure activiy, tim~ tbcn proceeded to have a burst

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2149051213 Pg24/26

lq)?ression EEO !bllowed by a. poUive MRl, w!U:h was chan.cla:istic ofa. hypoxil event.

It is a.ko weJl..klloWil, u indicated above, 1bat the bnil COiq)l':ie& less tban 5% of the body's
wei&bt, butbasi:a!lyconrumea about20010 oftbebody's oxywm S~corebxalhypoxia
a!Jd 1110xil ~ 1D tile death ofthe cells nthe brain, eapccially the cells of the bippoCIIllllUS, the
Purlci!ie's oelk and ls.ym 3, S Slld 6.

Thereiilre, had Nurse A5ah been more properly sehoaled in traobeos1Dmy protoco~ ha.d Dlt
retooved the 1riCk, or successfully retooved it and replaced il wid! a rt:W 1Iaek, this qury wouk!
not have occurred. It wu a.ko noted thc child, prior1D 1hZ, was able to wak and talk, had a
&irly llll1lllS.1 neurolop: exam accordilg 1D ptbr repor1S. It was e~~~mooted When be appeared to
tbehospail!lc CTsean~did notshowenyev&Dcc ofanin&'Ctoreny evidence ofa
bleed. It wu only a!tcr2 cla}'s 1hatthe MRI showed the nme (!lobaleilectl of the aDOxia.
It is my expert opinion 1bat Nurse Asah panicked au!. did. DOt act approprialdy, ~ly or
profesa»lllll.y dtling Chi'Btisn's crilis. A! a llllSC, Nurse Asah sbouid have been prepared 10
care 1Dr Cldtian Slld treat the type ofemergeocy that blppeacd on 9/10/12. It is further my
expert opinion tlrlt Epi:: Heallh Services, Inc., ililed to propcd;y lq)eMe Nurse Asah and
ililed 1D ensure that Nurse Asah was traiDed and prepared 10 reapo¢1D the emerpncy siluamn
that oCClll'l'ed ~n 9/10112. Aocordilgly, 1he tire on thc part o~i.c ~ Se:vices, Inc., 1D
ensure !Mt Nurse A!ah was 1rBilcd and prepared to deal wilh an ll!lkipatcd situati:m, directly
led to the iqury a!ld death ofCbr.istian Marellle.

Ifyou need any addU!mlinfh!'lllll.1ilm, please letJDBialow, a:Dd I wDI.colqllywlth any
reuoDablc request. This report is being written ir.l an attempt to idxm all parties exactly what
my opiliors in this m&tter are, bow and, why I aniYed at 1bcm, what the s1IIXIdard of care is
n
reprding thc lleatrilelt question, bow the stazldan1 was violated, and row 1llc violarioll ofthe
staDdard caused thc *!jury in question. I reserve !be rigid to change, alter, am::!ld or witbdJP.w my
opinions srouk! Ul'!J addmnal inii:lrma.tion be made to !DB dler the da!ie ofthis report.

Si!K:etely yo~n,

I

!
~#:r~!!b
C~s D. Marable, M.D.
i Bosn!CcrtificdinNcurology
'••
Board Certified in Geriatric Medi::m

CDM/bls Maybe subject to ~fun va.rimce.

!
i

CDM!MARENTE· 08/20113 PAGEll

263
 •
Petti Blnaham, RN ·
106 Cille Ricardo
Victoria, Texas 77904
Cell: (361) 652·3558
Fax: (361) 575·8312
Qattlrnnursetlyaboo.com

PROFESSIONAL EXPERIENCE

4/4/11- Tile Courtyards, {Rehabilitation & NUrsiiiJ Home]3401 E. Airline,
Victoria, Tx 77901
Present Weekend RN supervisor- Supervisor/Clinical responsibilities include overseeine
all nursing care throughout the facility, monitoring vital signs, passing
medications, change dressings, track care, conduct range of motion exercises,
check the status of wounds, administer enemas and start Intravenous OVI
medications and fluids.

2/25/11- Blaekbu.rn Group, Inc., 6709 Glenklrk Road, Baltimore, MD. 21239
Present [Medicare Set Aside (MSA) and Claim Settlement Solutions Company]
Assisting with MSA/Future medical cost projections (Including Workers
Compensation)

1/2/2011- Jackson Davis Healthcara, 3570 E. 12'" Ave, Denver, Colorado 80206
Present Medicare Audit Defense and Medicare Appeals- Nurse Auditor

01/2008 Citizens Medical canter, 2501 Medical Drive, Victoria, Texas 77901
-12/28/2010 Charca/Staff Nurse of Day Sur1erv
· • Responsibilities include clinical and supervisory: startingiV's, managing
Foley catheters, assessing post-operative patients, managing and
implementing patient care; staffing nequirements; participating in Quality
Assurance program; auditing medical records and following up with
patient care satisfaction surveys.

Triumph Hospital VIctoria, 506 E. San Antonio St, VIctoria, Texas (PRN & Full
S/25/06- Times Status)
02/21/08 • Charse Nurse/Clinical Staff Nurse· responsibilities included planning,
managing, and assessing care, administration of medications and
treatments, maintain record of codes and care, wound care, and assisted
with wound VACs.
• Charge nurse/ Clinical Staff Nurse- Medical Observation Unit (comparable

Updated: 08/15/2013
P. Blnsham 1

248
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08/26/13 08:15AM PDT Dougl~. Floyd -> Peter Anderson ~ 2149051213 Pg11/26

to Step Down Unit}- duties Included stertlngiV's, monitoring patient's
respiratory ventilation -tracheotomy's, intubatlons, pulse Olllmetry,
respond to all codes, set nasogastrlc and monitor dobhoff feeding tubes,
foley and swan ganz catheters, central and arterial lines, temporary
pacemakers.

2003-200 Hospice of South Texas. 605 Locust Ave., VIctoria, Tellis 77901
8 Admissions Coordinator I case Manacer/ Clinical Nurse
• Responsible for coordinating admissions between hospitals, nursing homes,
private homes, and respite care facilities along with durable medical
equipment companies and pharmacies, coordinated care, and assessed and
intei'Jlreted needs and requirements
• Responsible for clinical care of patients -Obtaining doctor's orders, start in&
and maintaining. tV's catheters, Hypodermodysls, Foley catheters, pain and
nausea control, managing pain pumps, obtaining blood/urine for cultures,
trach care, etc.
• Casa Manaaamant responsibilities: Make Initial assessments regarding
patient treatment plans and establish collaborative relationships with
physicians, clients, patients, and providers, coordinated patient's care, and
assessed and interpreted needs and requirements, coordinated admissions
with dlscharae planners from. hospitals and transferring patients to Nursing
Home's and family homes assuring tile necessary medications and
equipment were available.

. 07/27/1.998- Citizens Medical Center, 2501 Medical Orlve, Victoria, Tellis
1.2/23/2003 Operatina Room staff Nurse
• Functioned as a circulating nurse In all sur(lical disciplines lndudlng.
general, vascular, orthopedic, 09-GYN, urology, and primarily cardiac
patients.
1 Responsible for pre-operative and Intra-operative phases of surgical
experience, requlrlnglcnowledsa of 1eneral and specialty equipme11t and
instrumentation, comprehensive record keeping and review.
1 Aided conscious sedation of patients undergoing heart catheterlzatlons,
ansloplastles, liver biopsies, and peripheral vasculature runoff studies.

Emergency Room
• Charge nurse ·responsibilities Included manasin& and staffing a 15 bed
emeraency room department.
• Ensure the provision of quality emergency medical care to patients
requiring eme11encytreatmentln accordance with physician orders,
Updated: 08/15/2013
P. Blnsham 2

249
ut1'n:t>tl~ uts: l~AM PUT uougLa.··· r Loy a -> Pe10er Anaen;on •

ho.spltal pollcy, and standard nursing practice.
• Trtase and performed patient assessment and nursing diagnosis.
1993-1998 • Manage the plannln& and Implementation of interventions.
Mataaorda General Hospital, 1115 Ave G, Bay City, Texas 77414
Operatlnc Roam Staff N~o~rse
• Functioned as a clrculatlnl nurse In ail surslcal disciplines including,
general, vascular, orthopedic, 08-GYN, and ENT
• Responsible for pre-operative and Intra-operative phases of surgical
experience, requiring knowltdle of general and specialty
Matqarda Horne Health A.~ency
• Duties lnduded assessments of systems, wounds, Intravenous sites,
medications- subcutaneou5ly or intramuscular Injections, any ordered
treatments- tracheostomy care; breathing treatments, blood dl'liws,
Intravenous flushes, dressln& chan&es, or wound care the doctor has
ordered, and teaching as Indicated.
Trauma Coordinator I ER Staff Nuna
• Provided oversight for all clinical policies and procedures In accordance
with local and state accrediting body standards; Adhered to state Trauma
guidelines and hospitals and State Trauma policies, procedures, and
reporting requirement
• Made Initial assessments reprdlng patient treatment plans and
established collaborative relationships with physicians, families, patients,
.and providers, ensured that patients received the proper levels of care

• Ensure the provision of quality emercencv medical care to patients
requirtns amercency treatment In accordance with physician orders,
hospital policy, and standard nursing practice.
• Tria1e and performed patient assessment and nursing diagnosis.

EDUCATION
• Associate In Applied SCience Nursing, Wharton County Jr. College, Wharton, Texas-
S~pternber22,1993 ·
• Associate ln Applied Science Ras\$tared Dental Hv1lena, See County Jr. College, Beeville,
Texas -June 30, 1980

PROFESSIONAL CERTIFICATIONS

• Certified Adult, Child, & Infant CPR- American Heart Association 2010 Guidelines-
Current
• N HT.I.L.E. Training on Long Term care Standards for Medicaid- Texas State University,
San Marcos; 6/20/2005

Updated: 08/15/2013
P. Binsham

250
 • Jllatlonal Board for Certification of Hospice and PaiUative Nurses (CHPN) -Inactive

• Certification Nurse Operattnc Room (CNOR) :..lnactlva
• Pad iatric Advanced Life Support
• Advanced Cardiac life Support
• Trauma Nursing Core Course

PROFESSIONAL ASSOCIAnONS
• National Allianea of Certified legal Nurse Consultants
• American Association of legal Nurse Consultants

Updated: 08/1S/l013
P. Bingham 4

251
 2149051213 Pg 2/26

Patti Bingham, RN
I06 Calle Ricardo
Victoria, Tcxu 77904
Cell: (361) 652-3558
patrim.nuua@vahoo.com
August 20, 2013

Douglu T. Floyd
Attorney at Law
6521 Preston Road, Suite I00
Plano, Texas 75024

RE: Mr. Christian Marente

Dear Mr. Floyd:

Pleue accept this report u my expert report under Tex. Civ. Prac. & Rem. Code§ 74.351. This
reporc replaces the report of January 8, 2013 andJWIC 22, 2013.

JUtCOBDS BEVIEWEQ
In arriving at the opinion set out below in this letter, I have reviewed the following items:

1. Medical records from Air Evac Ufcteam- 2 pages titled "Prclimiruu:y Patient Care
Record" [Email: Medicai_Records_ 1-25]
2. Children's Medical Center medical records
3. ETMC-EMS; Run Number: 110658; Date of Service: 09/1012012; pages 1·4 of 4
4. Outpatient Note from Our Children's House at Baylor 07119/2012,
5. Kidney Transplant Visit Note, 06/2012012, 1-4 pages,
6. Progress Note: Jose J. Salguero, MD Office Notes: 11/2312011,0911412011, 09/8/2011,
011/1112011,
7. Telephone Encounters.
8. Skilled Nursing Flowsheets dated: 0!110612012, 011/07/2012, 08/1312012, 08/20/2012,
.,,, 08127/2012,09/312010
9. Skilled N~ Flowsheet dated 09/1012012 sisned by Eunice Asah, R.N.
I 0. Report of Cristina Marentc.

BACKGROUND
My name is Patti Bingham, I am a Registered Nurse in the State ofTcxu. My Texu Nursing
Certification Number is 593336. I have been a regia=ed nunc in Texu since September 22,
1993.

MARENTE 08/20/13 PAGEl

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08/26~13 08:15AM PDT Dougl~. Floyd -> Peter Anderson ~ 2149051213 Pg 3/26

QUALIFICATIONS

I am pr¢sently a. registered nurse in Texas and have been so registered for over 20 yean. I ha.ve
continued to use my nursing skills within tbose 20 years. I have worked in both the emergency
room and operating room at various hospitals in Texas. I have been certified in Pediatric
Advanced Life Support and Advanced Cardiac Life Suppnrt. I am qualified to care for pediatric,
adolescent, and adult patients in all nursing settings.

I pmently work a.t The Courtyard Rehabilitation&: Healthcare Center, 3401 E. Airline, Victoria.
Texas, 77901, as a Registered Nurse supervisor. This 56-bed facility currently has 49 residents.
The Center provides medical xnanagement and 24-hour skilled nuning care, including
intravenous [IV] therapy with antibiotics. TPN adminlstration. end diabetic therapy. The Center
has physical medicine and rehabilitation and offer wound care. Rehabilitative services include
Speech, Physical, and Occupational Therapy. My supervisory responsibilities include ensuring
there is Adequate nursing staff during the: weekends IUld assessing the health needs of each
resident. I supervise 3-4 Lioensed yoeational Nunes [LVN] and 3-4 Certified Nurse Aides
[CNA] during the weekends. I oversee the care these nurces give our patients and infOrm the
physicians and families as patient carelconditiou warrant. In addition to my supervisory duties,
I work with the Other nurses pcrf'orzni.na patient·care. I monitor patients for signs of stress or
difficulty breathing end pedorm complete, totaluseasmentS on patients. While I currently do
not have trs.cheostomy patients at the facility, I have treated patients with tracheostomy at the
nursins home many times in the put. I am personally famil!ar with the nursing standsrd of care
to be delivet¢d to patients with traCheotomies.

I have personal knowledge of the accepted standards of care for a registered nurse in Texas in
the same: type of care or treatment that Nurse Asah delivered to Christian Marente on September
10,2012.

1. . On September I0, 2012 and at all r¢\evant times to the pment, I ha.ve practiced in the
health care field of a r¢gistered nl.lllle that involved the same type of care or treatment
that Nurse Asah delivered to Chris1ian Marente on that date. That type of care or
treatment is more specifically identified below.

2. I have: knowledge of the accepted standuds of care for a r¢gistered nurse of the care or
treatment for the condition involved in the claim against Nurse Asah and Epic Health
Services, Inc. My knowJ.edee is of the ~ standards of csre is more specifically
indentified below; and

3. ·I am qualified based on my 20 years oftl'alnlng and experience to offer an expert opinion
regarding those accepted standards of care as shown in my curriculum vitae attached
hereto.

BRIEF HISTORY AND SUMMARY OF CARE

Christian Marente was a seventeen-year-old male with a history of Jeune syndrome and
restrictive lung disease. Jeune syndrome (asphyxiating thoracic dystrophy, ATD} is a.rare
autosotnal recessive skeletal dy~plasia Idy~plasia is en abnonnality within tbe cells of tissue that

~11B08fl0/IJ PA0£2

240
 ll~~Obl213 ~g 4126
vbt .. u, ;., uu. ~""'"' .-u< uuui!J.••. r J.uya -> r.-et:er Anoerson •

affects growth, development and function] ehara.cterlzed by a small, lliiTOW chest and variable
limb shortness. Th=rc is a considerable neonaw mortality as a result of I'CSJliratory dist:ess.
Renal, hepatic, pancreatic, and ocular complications may occur later in life. Christian had
respiratory complications that had left him with a tracheostomy and mechanical-ventilator
dependent. He had asthma and chronic kidney disease and had received a kidney transplant in
July2007.

On January 5, 2012. Christian urulerwent a tracheostomy at Children's Medical Center Dallas.

On July 19,2012, Christian had a medical check-up with Dr. Joseph Rosen at Our Children's
House in Dallas, Texas. Per Dr. Rosen's notes, Christian was eating and drinking by mouth and
was on continual oxygen at 2 liters per minute. He had not had any Emergency Room visits
since 4/l 0/2012. Per his mother and Dr. Rosen's notes, Christian was "without coughina or
wheezing." His tracheostomy cuff was deflated during the da.y and had 3 liters durllli the night.

Be(iinnlng in February 2012, Nurse Asah, provided general nurslni services for Christian,
'
usually from 7:00a.m. until 7:00p.m, Monday through Friday. Per the Flow Sheets Between
August 6, 2012 and September 3, 2012. the general nursina services provided by Nurse Asah
' were:
·''

Monitor the vital signs of Christian;
To annotate the Skilled Nursing Flowsheet daily;
Monitor the ventilator equipment:
Check the mucus build up in the tl'aeh and suction ilie mucus out periodically;
Clean around the trach opening;
Observe Christian for any signs of stress or difficulty breathing:
Bath Christian aa required.

In lhe Skilled Nursing Flowsheets named above, at no time did Nurse Asah change Christian's
tracheostomy.

It has been reported that on September 10, 2012, at approxlmately 5:00p.m., Nurse Asah was
bathinli Christian in his home. There ill conflicting information aa to exactly what oceurred next:
1. Per the 911 cal~ Nurse Asah was alone and while putting Christian "back to bed" the
''tracheostomy'' esme out.

2. . Per the Skilled Nursing Flowsheet Nurse Asah reported, "After I pulled out the dirty
traoh, l was unsueewful inserting the clean 6.0 Bivona flex cufftrach. A second attel!lpt
with the 5.0 Bivo111. flex cufftrach available was unsuccessful."

3. Per the response to an interrogatories propounded to Nurse Asah, her verified response
was as follows:

INTERROGATORY NO. 8: Describe in dotai1 eveJY!bing that you did with CHRISTIAN
MARENTE in the one hour before his triCh tube came out on September 10, 2012.

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• 2149051213 Pg 5/26

ANSWER: Subject to and without waiving said objection11, on September I0, 2012,
Nurse A.sah prepercd to give Chri&tillll Marente a bath. She fust laid out all of her
supplies before getting started. That included the bath supplies, Christian's change of
clothes, and all of the supplies for the ttacheostomy change, including a clean 6.0 trach, a.
back-up (smaller) S.O traeh, and an ambu bag· Christian's tracheostomy change occurred
every Monday. Nurse Asah made all of these Jli'8P8l&fions before bathing Christian on
September 10, 2012. Upon CO!Ilp!eting hit bath and dressina Christian on September 10,
2012, Nurse Asah began to clumge his trach. The trech is held in place with soft ties that
tie around his neck. She undid the ties and cleaned Christian's neclc. In accordance with
her standard procedw-e, which she had perfonned many times before, Nurse A8ah then
removed the existing trech and concurrently attempted to place the clean 6.0 trach into
Christian's tracheostomy site, but it would not go in. She immediately grabbed the
smaller, 5.0 trach and tried to place it into Christian's tracheostomy site, but it too would
not go in. At that point, she immediately called 911 on her cell phone and proceeded to
initiate CPR until emergency medical services arrived. In addition, please see the
deposition of Nurse Asah when/if taken for further information concel'JI.ing the care
provided that day, as well as the relevant medical records related to this matter.

·; As documented in the EMS Patient Care Report, Nurse Asah "made multiple attempts to place
the trachea tube back into place but has been ~ssful." Christian received Bag·Valve-Mask
[BVMJ ventilation and became pulseless. Nurse A8ah began chest oompressions. EMS was
called and upon anival continued Cardio-pulinonary resuscitation, obtained a blood pressure and
then transported Christian to Children's Medical Center, Dallas, Texas for ongoing care.
Christian had been pulseless approximately 10-l Sminutes but the exact time is unclear from the
medical records.

AJ reported by Cristina Marente, the mother of Christian Marente, Nurse Asah had never
changed the ttach of Christian and the changing of the trach was never the responsibility of
Nurse As8h. The changing of the trach was solely tht responsibility of Cri&tina. Cristina had
received special training in February 2012 at Baylor Hospital Dallas on the procedure for
changing the trach. In fact, the medical records show that the ttach was changed every Monday
on the shift following the end of the shift ofNIIl'!le Asah. The procedure of changing the trach
started in February 2012 and continued through September 3, 2012 when the trach was changed
every Monday by Cri~ shonly before Christian went to bed. The Skilled Nursing Flowsheet
ofN\II'SC Asah shows that the last time the trach was chan&ed was September 3, 2012. The
Skilled. Nursing Flowsheet for Monday, September 3, 2012 shows that the trach of Christian was
changed on the shift of Nurse Modupe Olojo thllt began at 7:00 p.m. on that da.te and on all
proceeding Mondays during the relevant time period.

BASIS OF EXPERT A&LVSI$

On September 10, 2012, at approximately S:IS p.m. Nurse Asah was in the home of seventeen
year-old Christian Marente providing general ni.ning care or ueatment as set forth above when
the trach was removed by Nurse Asah. Removing or chanQina of the trach was not the
responsibility of Nurse Asah. Nlll'!le Asah was unable to re-iMert the trach or a second smaller
trach. She then began bag-valve masking [BVM) Christian through his trachea in which she had
told the 911 dispatcher the traeh was "halfway in."

MAR.ENTE 08/20/13 PAGE4

242
 r .J..uy u -" t""t:H.ts.l· 1\nac:sr~on

•
Nurse Asah spoke with the 911 dispatcher for a total of 6 minutes. During this time, she did not
identifY herself as a Registered Nurse. The 911 dispatcher wasted valuable time cxpJ.ai.nina to
Nurse Asah how to complete the Cardio-pulmonazy resuscitation [CPR] procedures.
Per EMS records, page 114, EMS received the call at 17:23 and anived a.t the h.ome 17:28. Upon
anival, Christian did not have a pulse, and· CPR was conlinued. EMS documented "Pt' s tta.ehea
opening is blocked by the pt's neck." They noted inserting a "6.0mm ET tube through his
ttachea." They then transfm:ed Christian to the airport where air-team emergency flight. Air
Evac 74, met them and transferred Christian to Children's Medical Center in Dallas, Texas.

1]IE STANDARD OF CARE APPUCADLE TO NURSE A8AH ON 09/10/12;

The Standard of Care for a reaistered nurse is the level at which the average, prudent provider in
a given community would practice. It is how similarly q_uallfied practitioners would have
mmaaed ~e patient's care under the same or similar circumstances. In my opinion, the
appropriate standard of care that Nurse Asah should have provided Christian Marente was
dependent on the duties and reaponsibilities of Nurse Asah in caring for Christian. Those duties
.· and responsibilities were to properly:
:,
1. Monitor the vital signs of Christian per the Skilled Nursing F!owsheet daily;

2. To annotate the Skilled Nursing Flowsheet daily;

3. Monitor the ventilator equipment;

4. Monitor the mucus build up in the trach and suction the mucus out periodically;

5. Clean around the trach opening;

:: 6. Observe Christian for any signs of stress or difficulty breathing;

7. Bath Christiao as required.

It is my opinion that the medical condition of the patient is not the determinative ot'the standard
of care lf the duties and responsibilities of the assianed nurse do not require any specialized
training based on the patients actual medical condition. In this _case, the fact that Christian bad a
history ofJeune syndrome and restrictive lung disease did not require Nurse Asah to have any
,.., specialized training to perform her assigned nursing duties as set forth above. Additionally, the
location of the nursing services provided by Nwse Asah did not require any specialized training
to perfonn her assigned nursing duties. The standard of care would be the same whether or not
in a hospital, nursing home, or private home.

BREACHES OF THE STANDARD 0\! CAPE BY NJJRSE ASAIJ;

It is my opinion that on Septembet I0, 2012, Nurse Aaah breached the Standard of Care
applicabale to Eunice Asah. RN, as follows:

MARENTE 08120113 PAGES

243
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•

• 21~90~1213 Pg 7/26

l. Nurse Asah. RN breached the nursing Standard of Ctre when she removed the t.rach from
Cbristien: a procedure that waa not her mponsibillty.

2. Nurse Aaah, RN breached the nursing Standard of Ctre when she failed to immediately
. call appropriate emergency medical assistance when the patient showed initial signs of
dimss.

3. Nurse Aaah, RN breached the nursina Stlndard of Care when she failed to give the 911
dispatcher the correct street address of 311 East Freeman Streel.

4. Nurse Asah, RN breached the nursing Standard ofCtre when she failed to immediately
identil}' herself as a registered nurse resuJtina in unnecessary delay .
.,
1 s. Nurse Asah, RN breached the nursing Standard of Care when ,the failed to properly
communicate with the 911 operator.

6. Nurse Asah, RN breached the nlll'Sing Standard of Care when she failed to remain calm
and collected in a professional manner.

7. Nurse Asah, RN breached the nursin&Standard of Care when she failed to have the
proper training for home health care for tracheostomy patients.

To achieve positive outcomes in patients with trach tubes, e\IClY nurse needs to keep abreast of
the best practices, develop, and maintain the necessary skills. A nurse who performs trach care
needs to be familiar with their facility's policy and procedure. Per the Six-Step Decision·
Making Model for Determining Nursing Scope of Practice in Texas. "A nurse always has a duty
to his/her clients/patients to assure that they arc safe. One of the most important actions a nurse
can take toward that goal is making sure that he/the only accepts those assigrunen1S for which
the nurse has the education. training, and skill competency. Physical and emotional ability can
al$0 impact a nurse's ability.to maintain client safety when accepting an assignment."

It is my opinion. with a reasonable degree of nursing certainty that the care rendered to Christian
Marente by Epie Home Service, Inc., and Nurse Asah cl.id not meet the applicable nursing
Standard of Ctre. It is my opinion Nurse Asah should have:

;;
I. Not have attempted to change the trach of Christian; a procedure that was not her
l, responsibility.

2. I11101cdiately called Emergency personnel for additional help when she could not re-insert
thetrach.
3. Immediately identij}' llcnelf' as a Re&istered Nurse qualliications to the appropriate
authorities to avoid unnecessary delay in additional assistance.
'
4. Maintain a composed, professiOnal conduct while under an emergency situation.

s. Follow the American Heart Association's auidelines for Cardio-pulmonary resuscitation.

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• 2149051213 Pg 8/26

6. Instituted appropriate nursing interventions that requited stabilization in a patient's
condition.

7. Been properly trained in the we of a tracheostomy patient and in how to properly act in
an emergency situation.

THE SIANPARD Of CARE APP!JCART B TO EPIC HEALTH SERVICES. INC.

It is my opinion that bqed on my experience 114 a registered nurse and supervising nurse with
duties to detennine the treatment standards to be used by nurses under my responsibility that the
applicable standard of care for Epic Health Services, Inc., are the treatment st41ldards to be
applied are to ensure that e.Jl patients receive appropriate we regardless of the setting and to
only qaign nurses to patients that meet those standards. Those standards of care include:

I. To ensure that nurses are properly trained to provide basic nursing services;
2, T0 ensure that nurses are properly i!lformed to know the limitationS of their 114Signed
duties and responslbilitie• to assianed patients;

3. To properly instnlet assigned nurses not Ill undertake nursing/medical procedures that are
not the nurses assigned duties and responsibilities;

4. To ensure that assigned nurses have the appropriate communication skills, particularly in
an emergency situation; and

5. To enswe that assigned nurtes have the proper training and experience to remain calm
and collected in an emergency situation.

BREAQHES bF THE STANDARD OF CAREBY SPIC HEALTH SERV!Ct;S, INC.

It is my opinion that on September 10, 2012 that Epic Health Services, Inc., breached the
applicable standards of we for a. medical provider of nursing services by assignment of Nurse
Asah to provide nursing services to Christian Marente as follows: Epic Health Services, Inc.,
failed:
''·
ii
I. To ensure that Nurse Asah was properly trained to provide basic nursing sen-ices;

2. To ensure that Nurse Asah was properly infonned to know the limitations of her assigned
duties and responsibiiities to Christian Marentc;

3. To properly instruct Nurse Asah not to undertake nursinefmedical procedures that are not
: her assigned duties and responsibilities;
,.:.
4. To ensure that Nurse Aash bad the appropriate communication skills, particularly in an
emergency situation; and

s. To ensure that Nurse Aash had the proper training and experience to remain calm and
"

MARENTE 08120/13 PA,OE7

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08/26/13 08:15AM PDT Dougl~. Floyd -> Peter Anderson ~ 2149051213 Pg 9/26

co~ ilan ~dlla1lon.

My opil'lions are based on !be ililnm1im I haw~ ll1lll :llr ani 1reseM 1hc ~ tc
ella¥. ~k:a=Jt or ~ tba1 opiion if btber i.D:Immion becotrei avaiBblo.

~.

iu~~"~•v,. I