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holding expert report was sufficient even though it met the statutory requirements for only a subset of plaintiff's allegations
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No. 14-07-00895-CV
Submitted on December 12, 2007.
Opinion filed May 22, 2008.
On Appeal from the 253rd District Court, Chambers County, Texas, Trial Court Cause No. 23389.
Panel consists of Chief Justice HEDGES and Justices BROWN and BOYCE.
MEMORANDUM OPINION
This is a health care liability lawsuit governed by chapter 74 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. REM. CODE ANN. § 74.001-.507 (Vernon 2005). Arboretum Nursing and Rehabilitation Center of Winnie brings this interlocutory appeal from the trial court's denial of its motion to dismiss, which was based on the alleged inadequacy of the preliminary expert report prepared by Dr. Lige Rushing and filed by Mary Isaacks, Robert Isaacks' widow, along with her children, Robert Isaacks Jr. and Debra Gernert. On appeal, Arboretum contends the report is inadequate because it fails to address (1) causation, (2) all of appellees' claims, and (3) Rushing's qualifications to render an opinion. We affirm.
I. FACTUAL BACKGROUND
On April 15, 2005, Robert Isaacks, Sr. was admitted to the Arboretum for long term care. At the time of his admission, he had been diagnosed with Alzheimer's disease, left carotid artery stenosis, diet-controlled diabetes, renal insufficiency, dyslipidemia, osteoarthritis, right knee arthritis, and left lung collapse. Approximately one year later, on April 24, 2006, a nurse noted that pressure ulcers had developed on Mr. Isaacks' right ankle and under his right foot. Mr. Isaacks suffered a fall on the same day and was admitted to Bayside Hospital where he remained until May 1, 2006.
Background facts are derived from Dr. Rushing's report.
The attending physician at Bayside Hospital noted a plantar ulcer on Isaacks' foot and a pressure ulcer on his right ankle. The plantar ulcer on the right foot was noted to be healing at the time of discharge. When Isaacks was re-admitted to the Arboretum, the admission nursing assessment noted the ankle ulcer was two centimeters in size with a six centimeter reddened area around it. The plantar ulcer was one and one-half centimeters in diameter and one and one-half centimeters deep with no drainage. By June 2, 2006, the right ankle ulcer had increased in size and was diagnosed as a Stage III ulcer. On the same day, due to the advanced stage of infection, Isaacks' right leg was amputated above the knee. On June 27, 2006, Isaacks died as a result of aspiration pneumonia. Aspiration pneumonia results when acidic gastric content or other foreign material is aspirated in the lining of the lungs.
On April 23, 2007, Isaacks' widow and children filed suit against Arboretum alleging survival and wrongful death causes of action. As is required by Chapter 74 of the Civil Practice and Remedies Code, appellees submitted the report of Dr. Lige B. Rushing. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351 (Vernon 2006). On June 7, 2007, Arboretum filed objections to Dr. Rushing's expert report and moved to dismiss appellee's petition. On June 18, 2007, Rushing supplemented his original report. On June 28, 2007, the trial court held a hearing and denied Arboretum's motion to dismiss. Pursuant to section 51.014 of the Texas Civil Practice and Remedies Code, the Arboretum filed this interlocutory appeal.
II. JURISDICTION
Appellees argue that Arboretum cannot bring an interlocutory appeal from the trial court's denial of its motion to dismiss. A person may appeal from an interlocutory order issued pursuant to section 74.351 when the trial court: (1) denies the relief sought under section 74.351(b); or (2) grants the relief sought under section 74.351( l). See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(9), (10); Olgetree v. Matthews, 2007 WL 4216606, 51 Tex. Sup. Ct. J. 165 (Tex. Nov. 30, 2007). Appellees argue that Arboretum's interlocutory appeal would be proper only under section 51.014(a)(10), which applies when an expert report was filed and the trial court granted the motion to dismiss on the basis of an inadequate report. Since appellees filed their brief, the supreme court held that a challenge to the sufficiency of an expert report is a challenge pursuant to section 74.351(b) that no compliant report has been served. Lewis v. Funderburk, No. 06-0518 2008 WL 1147188, 51 Tex. Sup. Ct. J. 747 (Tex. April 11, 2008). Therefore, we have jurisdiction to consider Arboretum's interlocutory appeal.
III. STANDARD OF REVIEW
A plaintiff asserting a healthcare liability claim must submit an expert report to each healthcare provider and defendant physician. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a). A compliant expert report is defined as a written report providing a fair summary of the expert's opinions regarding the standard of care, the manner in which the care rendered by the health care provider failed to meet the standard of care, and the causal relationship between that failure and the harm claimed. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(6). The trial court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in subsection (r)(6). TEX. CIV. PRAC. REM. CODE ANN. § 74.351( l). We review a trial court's decision on a motion to dismiss under section 74.351 of the Civil Practice and Remedies Code for abuse of discretion. Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2006, no pet.).
To constitute a good faith effort, an expert's medical liability report must establish the expert's qualifications, the applicable standard of care, how that standard was breached by the particular actions of the defendant, and how the breach caused the damages claimed by the plaintiff. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). Although an expert report need not marshal and present all of the plaintiff's proof, a report that omits any of the elements required by the statute does not constitute a good faith effort. Id.
IV. ADEQUACY OF EXPERT REPORT
A. Causation
In its first issue, Arboretum contends that Dr. Rushing's report is not sufficient to establish causation. Arboretum first argues that Rushing's report is inadequate because it is based on assumptions, not facts. Arboretum identified sources of information that Rushing stated were unavailable or unclear from the medical records. In his report, Rushing refers to ulcers that were present on Isaacks' foot and ankle at the time Isaacks was re-admitted to the Arboretum on May 1, 2006:
The records at Arboretum, E-Z graph shows that the lateral malleolus [ankle] ulcer increased in size from 05/07/06 to 05/30/06. The E-Z graph wound assessment also indicates there is a posterior right foot ulcer. However, this is not marked on the manikins and I am unable to determine the precise location. The records are simply insufficient to determine if this is a new ulcer or the original plantar ulcer.
* * * * *
There is a note on 06/02/06 by a wound care nurse that the right lateral malleolus ulcer is 4.5 cm x 4.5 cm in size. A photograph was also made at this time and there is a black and white reproduction that is unclear and that I am unable to interpret.
* * * * *
I am unable to find a surgical pathology report describing the amputated right leg in the records provided to me.
In his supplemental report, Rushing states that the above statements did not form any basis of his opinion, but were included for the purposes of completeness and thoroughness.
Arboretum claims that in forming his opinion, Rushing inappropriately relied on Arboretum's incomplete records. Specifically, Arboretum claims that Rushing failed to rule out the possibility that a new ulcer could have formed while Isaacks was at Bayside Hospital. We do not read Rushing's report as leading to such a conclusion. Rushing's statement about the possibility of a new ulcer was based on notes that were recorded May 30, 2006, one month after Isaacks was discharged from Bayside Hospital. Any possibility of a new ulcer appears to be attributable to Arboretum, not Bayside. Moreover, whether an additional ulcer occurred at Bayside Hospital is irrelevant to the issue of whether the ulcers that were first discovered at Arboretum contributed to Isaacks' injuries.
To constitute an objective good-faith effort, an expert report must provide enough information to fulfill two purposes. The report must inform the defendant of the specific conduct the plaintiff has called into question, and it must provide a basis for the trial judge to conclude the claims have merit. Palacios, 46 S.W.3d at 878-79. In his supplemental report, Rushing reported that the standard of care for the nursing home and their nurses requires that they (1) inspect and assess the skin, head to toe, every day with particular attention to pressure points such as heels, toes, hip, and sacrum, (2) document new skin changes on the very day that they are noted, (3) perform a regular and detailed documented skin assessment once a week, and (4) treat the stage I and stage II pressure ulcers as soon as they are discovered.
Dr. Rushing reported that the standard of care required that once stage I and II pressure ulcers were discovered, they should be treated by relieving pressure on the affected area and ensuring that nothing touched the ulcer. Dr. Rushing opined that by failing to perform regular skin assessments and properly treat the stage I and II ulcers, the nursing staff at Arboretum breached the standard of care. Dr. Rushing further opined that most stage I and II ulcers, when treated properly, heal well. Had the ulcers been diagnosed and treated in the earlier stages, they would have healed and not progressed to stage III ulcers and osteomyelitis, ultimately resulting in amputation of the leg.
Dr. Rushing's report addresses the pain and mental anguish suffered by Isaacks when his leg was amputated. Dr. Rushing opined that the cutting of the skin and deeper tissue including the bone is associated with physical pain due to the severing of the sensory nerves. Dr. Rushing opined that amputation is associated with mental anguish because of the human cerebral/emotional response to the loss of a body part. With regard to Mr. Isaacks' death, Dr. Rushing opined that following the surgery, Mr. Isaacks was further debilitated and weakened "to the point where he could not protect the tracheobronchial tree from inhalation/aspiration of fluid particles." This inability to protect the tracheobronchial tree led to aspiration pneumonia, which caused Mr. Isaacks' death.
Appellees filed suit alleging causes of action for physical pain and mental anguish suffered prior to Isaacks' death and seeking medical expenses incurred prior to his death. Appellees also alleged a cause of action for the wrongful death allegedly attributable to Arboretum's negligence. Rushing's report sufficiently stated the standard of care and breach of that care.
Arboretum complains that Rushing speculates about the possibilities that could happen regarding Isaacks' pressure ulcers and ultimate death, but falls short of a good-faith effort to comply with the statute. Specifically, Arboretum contends that "non-detection" and "non-treatment" do not show causation. In his report, Rushing states that inspection and assessment of the skin is crucial to detect skin abnormalities before they become infected. Rushing stated that the "standard of care requires that when a resident enters a long-term facility without pressure ulcers that they be provided the necessary care and treatment to prevent the development of pressure ulcers unless their clinical condition demonstrates that the ulcers are unavoidable. There was nothing in Mr. Isaacks' history to indicate that this pressure ulcer was unavoidable or inevitable." He further states, "With early recognition and early aggressive treatment of stage I and stage II ulcers, a cure can be accomplished in almost every case."
Arboretum cites several cases in support of its contention that Rushing's report is conclusory as to causation. However, those cases are factually distinguishable in that the expert reports in those cases contained an analytical gap not found in Rushing's report. See e.g., Clark v. HCA, Inc., 210 S.W.3d 1, 11 (Tex.App.-El Paso 2005, no pet.) (missing link in report linking use of drug to syndrome suffered by plaintiff); Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 409-10 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (statement that nursing home "robbed [appellant] of quality of life, and hastened the loss of her legs" considered conclusory because it did not link breach of standard of care with injury); Hillman v. Diagnostic Clinic of Houston, P.A., No. 01-04-00580-CV, 2005 WL 995453, *4 (Tex.App.-Houston [1st Dist.] April 28, 2005, no pet.) (memo. op.) (expert's conclusion not explained or linked to any facts demonstrating a specific departure from the standard of care); Davis v. Markey, No. 03-04-00455-CV, 2005 WL 670525, *4 (Tex.App.-Austin March 24, 2005, pet. denied) (memo. op.) (report failed to link failure to be vigilant in the post-operative period to the conclusion that the alleged error increased the plaintiff's disability); and Barko v. Genzel, 123 S.W.3d 457, 460 (Tex.App.-Eastland 2003, no pet.) (conclusion that "[t]hese violations of the standards of emergency medical practice were a proximate cause of this patient's injury" insufficient because it merely stated the expert's conclusions about causation, but did not link alleged error to patient's injury).
Arboretum further argues that Rushing merely speculated about the possibilities that could happen and that such speculation does not constitute a good-faith effort to comply with the statute. For this proposition, Arboretum cites Estate of Allen v. Polly Ryon Hosp. Auth., No. 01-04-00151-CV, 2005 WL 497291 (Tex.App.-Houston [1st Dist.] March 3, 2005, no pet.). In that case, an elderly male patient suffered from pressure ulcers, and his family sued his treating doctors and hospital for negligent nursing care. Id. at *1. The expert report described the standard of care for treatment of pressure ulcers and alleged that the hospital and doctor had not followed the appropriate standard. Id. at *5. The report then stated that, "[a]s a result these wounds were more likely to persist and/or worsen, increasing [the patient]'s level of pain and risk of wound infection." Id. The court found that a report that "recites mere possibilities of a better outcome, as here, without explaining how the defendant caused the injury alleged, is conclusory and therefore does not comply with the good-faith effort requirement of the statute[.]" Id.
Rushing's report differs from those in the cited cases in that his statements link the breach of the standard of care to the cause of Isaacks' injury and death. He explains that if Isaacks' skin had been properly monitored, he would not have developed pressure ulcers, and the ulcers would not have become infected. Further, Rushing goes beyond reciting mere possibilities of a better outcome and opines that if the nursing home had followed the proper standard of skin detection and treatment at the early stages of the ulcers, more likely than not, Isaacks would have recovered. Finally, Rushing's report sufficiently describes how Isaacks' pneumonia could have been caused by the inability to protect the tracheobroncihial tree due to his weakened state as a result of the infection and amputation. Dr. Rushing's report does not state conclusions without reference to the underlying facts upon which he premised his opinion. See Patel v. Williams ex rel. Estate of Mitchell, 237 S.W.3d 901, 904 (Tex.App.-Houston [14th Dist.] 2007, no pet.). We find that Rushing's report discusses the standard of care, breach, and causation with sufficient specificity to inform Arboretum of the conduct appellees have called into question and to provide a basis for the trial court to conclude that appellees' claims have merit. See Palacios, 46 S.W.3d at 875; see also, Agana v. Terrell, No. 09-07-088-CV; 2007 WL 1793786 at *6 (Tex.App.-Beaumont June 21, 2007, no pet.) (memo. op.) (Because "bedsores are observable by visual examination," expert report stating that failure to properly monitor patient's skin proximately caused bedsores was adequate under section 74.351). Arboretum's first issue is overruled.
B. Elimination of Other Causes
In its second issue, Arboretum claims Rushing's report fails to eliminate pre-existing conditions as the cause of injury and death. Arboretum contends that Rushing identified numerous pre-existing conditions suffered by Isaacks, but failed to eliminate those conditions beyond Arboretum's control as causes of his injury or death. See Pisasale v. The Ensign Group, Inc., No. 11-05-00196-CV, 2006 WL 2567400, at *4 (Tex.App.-Eastland September 7, 2006, pet. denied) (memo. op.) (holding expert report did not constitute a good-faith effort to comply with statute where, among other things, expert "made no effort to eliminate [the deceased's] preexisting conditions as the cause for the injuries described in his report").
We have previously held that such an opinion is not required. Chaupin v. Schroeder, No. 14-06-01102-CV; 2007 WL 2127713 at *8 (Tex.App.-Houston [14th Dist.] July 26, 2007, no pet.) (memo. op.). Further, in his report, Rushing addressed Isaacks' pre-existing conditions when he stated, "[t]here is nothing in Mr. Isaacks history to indicate that this pressure ulcer was unavoidable or inevitable." Arboretum's second issue is overruled.
C. Failure to Address All Claims
In its third issue, Arboretum contends that Rushing's expert report fails to address all of appellees' claims. To constitute a good-faith effort, the report must inform the defendant of the specific conduct the plaintiff has called into question. Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.-Dallas 2007, no pet.) (citing Palacios, 46 S.W.3d at 879). In addressing each element of the statute, the report qualifies as a good-faith effort if, in describing the expert's opinion on the statutory elements, it provides enough information to (1) inform the defendant of the specific conduct at issue, and (2) provide a basis for the trial court to conclude the plaintiff's claims are meritorious. Cayton, 224 S.W.3d at 445. If an expert report omits any of the statutory elements, it cannot be a good-faith effort. Id.
Arboretum first claims Rushing's report did not address Isaacks' physical pain and mental anguish. However, in his supplemental report, Rushing stated that Isaacks suffered amputation of his right leg and that such an amputation is associated with physical pain and mental anguish due to cutting sensory nerves and the emotional response to loss of a limb. We conclude that Rushing's report is a fair summary of the harm suffered by Isaacks.
Next, Arboretum claims that Rushing's report failed to address several specific contentions in appellees' petition. An expert report must provide a fair summary of the standard of care, the manner in which the care rendered failed to meet the standard, and the causal relationship between that failure and the harm claimed. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(6). The expert's report need not identify all evidence necessary to litigate the merits of the plaintiff's case, nor must it marshal all of the plaintiff's proof. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Rushing's report sufficiently addresses the statutory elements. Although the report does not address each detail of the plaintiff's petition, there is no requirement that the report meet the same requirements as evidence offered in summary judgment proceedings or in a trial. Cayton, 224 S.W.3d at 445. Arboretum's third issue is overruled.
D. Rushing's Qualifications
In its fourth issue, the Arboretum contends that the report fails to establish that Rushing is qualified to provide an expert medical report. Specifically, Arboretum contends that Dr. Rushing's report and curriculum vitae do not provide sufficient details regarding relevant experience. To provide a compliant report, the expert must establish that he or she is qualified to do so. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(5)(A). An expert providing opinion testimony regarding whether a health care provider departed from the accepted standards of health care must satisfy the requirements set forth in section 74.402. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(5)(B). Section 74.402 provides:
(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care 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 health care provider, if the defendant health care provider is an individual, 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 ANN. § 74.402(b).
In determining whether a witness is qualified "on the basis of training or experience," the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.
TEX. CIV. PRAC. REM. CODE ANN. § 74.402(c)(1)—(2).
Arboretum claims that Rushing's report and curriculum vitae contain only conclusory statements and do not show Rushing's experience with (1) pressure ulcers in patients suffering from medical conditions identical to those of Isaacks, (2) MRSA — streptococcus infections, or (3) aspiration pneumonia. Section 74.402 does not require that Dr. Rushing have experience with patients identical to Isaacks. Rather, the focus of our inquiry is whether Dr. Rushing practices health care in a field of practice that involves the same type of care or treatment as that delivered by Arboretum. See Group v. Vicento, 164 S.W.3d 724, 732 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).
Rushing's report and curriculum vitae reveal that he is board certified in internal medicine, rheumatology, and geriatric medicine. He is currently engaged in the private practice of medicine and is on the attending staff of Presbyterian Hospital in Dallas, Texas. Rushing further stated his opinions were based on his experience caring for patients both in the hospital and nursing home settings. He also has worked closely with and supervised nurses who have been assigned to provide nursing care and treatment for his patients. Finally, the report states:
In the regular course of my medical practice, I have occasion to diagnose and treat patients with conditions substantially similar to or identical with Mr. Isaacks. I have also served as a primary care physician for more than 10,000 hospitalized and nursing home patients. Many of these patients have had the same types of condition as Mr. Isaacks. Accordingly I have cared for and treated many patients who were at a risk for the development of pressure ulcers. Likewise, I have treated patients who have pressure ulcers over the course of my career.
Rushing's report and curriculum vitae adequately demonstrate that he is qualified under section 74.402 of the Civil Practice and Remedies Code. Rushing's report states that he was practicing medicine at the time his report was given, he has knowledge of the accepted standards of medical care for the diagnosis, cure, or treatment of pressure ulcers and infections related to those ulcers, and he is qualified on the basis of training and experience to offer an expert opinion regarding those standards of care. The report states specifically that Rushing has experience with patients under similar or identical conditions as Isaacks. The trial court did not abuse its discretion in denying Arboretum's motion to dismiss. Arboretum's fourth issue is overruled.
Accordingly, we affirm the trial court's denial of the motion to dismiss.