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considering "the underlying nature of" plaintiff's contract claim, not whether it would have existed but for defendant's alleged negligence
Summary of this case from Calabria-Ellis v. HoOpinion
No. 01-04-00580-CV
Opinion Issued April 28, 2005.
On Appeal from the 164th District Court, Harris County, Texas, Trial Court Cause No. 2003-00278.
Panel consists of Chief Justice RADACK, and Justices HIGLEY and BLAND.
MEMORANDUM OPINION
This appeal arises from medical malpractice and contractual claims brought by appellant, Cheryl P. Hillman, against appellee, Diagnostic Clinic of Houston, P.A. ("the Clinic"). The trial court dismissed Hillman's claims with prejudice on the ground that the expert report she filed to support her medical malpractice claim did not comply with section 13.01, article 4590i, the Medical Liability and Insurance Improvement Act.
We determine this case under section 13.01 of former article 4590i because the action was filed prior to September 1, 2003, the effective date of the new statute. See Act of April 19, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2064, repealed by Act of June, 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (recodified at Tex. Civ. Prac. Rem. Code Ann. # 167; 74.351 (Vernon Supp. 2004-2005)).
In two points of error, Hillman contends that the trial court erred (1) in finding her expert's report inadequate and (2) in dismissing her remaining contractual claim. In a cross — point, the Clinic contends that the trial court erred in granting Hillman an extension to file the report.
We affirm the trial court's ruling that the expert report is inadequate, and reverse and remand Hillman's breach of contract claim.
BACKGROUND
On October 20, 2000, Hillman, while in the midst of undergoing chemotherapy, suffered a chemical burn to her left arm when the treating agent leaked outside of her vein and under her skin. Hillman suffered pain and damage to her skin. Due to the injury, further chemotherapy was postponed.
Because treatment was delayed, Hillman's insurance provider, Unicare, refused to pay an outstanding bill in the amount of $2,721.00 to the Clinic. The Clinic sought reimbursement directly from Hillman. To end incessant collection calls, Hillman paid the bill. On or about November 12, 2002, Unicare advised Hillman that it had paid the Clinic the $2,721.00 and that the Clinic would reimburse her. Hillman has requested the reimbursement from the Clinic but has been denied.
On January 3, 2003, Hillman filed suit against the Clinic, alleging medical malpractice. Hillman amended her petition on September 16, 2003 to add the breach of contract claim for the Clinic's failure to reimburse.
The parties do not dispute that Hillman failed to timely file her expert report, as required under article 4590i, subsection 13.01(d). However, Hillman was granted a 30-day extension under subsection 13.01(g) because the trial court found that Hillman's failure to timely file her expert report was not intentional. Hillman then filed an expert report by Judith A. Headley, R.N.
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985-87 (repealed 2003).
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(g), 1995 Tex. Gen. Laws 985-87 (repealed 2003).
On October 2, 2003, the Clinic moved to dismiss Hillman's case on the grounds that the report filed was substantively inadequate. The trial court found Hillman's report inadequate to meet the requirements of section 13.01(r)(6) and dismissed all of Hillman's claims with prejudice. A. Standard of Review
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985-87 (repealed 2003).
We review all section 13.01, article 4590i, rulings for an abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Downer v. Aquamarine Ops., Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
B. Inadequacy of the Expert Report
In her first point of error, appellant contends that the trial court abused its discretion in dismissing her suit for failure to file an adequate expert report.
Expert testimony is required to support a medical-malpractice claim. Palacios, 46 S.W.3d at 876. Under former subsection 13.01(r)(6), a claimant in a health care liability claim must file an expert report
that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985-87 (repealed 2003).
The expert report must represent a good-faith effort to comply with this statutory definition. Palacios, 46 S.W.3d at 878. The report can be informal and need not marshal all of the plaintiff's proof, but must include the expert's opinion on each of the elements identified in the statute — standard of care, breach, and causation. Id. To constitute a good-faith effort, (1) the report must inform the defendant of the specific conduct the plaintiff has called into question and (2) must provide a basis for the trial court to conclude that the claims have merit. Id. at 879. A report that merely states the expert's conclusions as to the standard of care, breach, and causation does not fulfill these two purposes. Id. The expert must explain the basis for his statements and must link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
Hillman filed an expert medical report by Judith A. Headley, R.N., stating in part:
Applicable standards of care for vesicant chemotherapeutic agents such as doxorubicin include:
a) Patient education regarding the vesicant potential of drugs (citation)
b) Education of patients to report immediately any pain or burning or swelling during the infusion (citation)
c) Avoidance of the dorsum of the hand or wrist for venous access to administer vesicants (citation)
d) Frequent (every 1-2 cc) checks for blood return when administering vesicants (citation)
e) At the first sign of infiltration of drug, stop the infusion, disconnect the IV and attempt to aspirate residual drug with a syringe (citation)
f) Application of ice pack to the site at least four times daily for the first 24-48 hours (citation)
I am of the opinion that [the Clinic] departed from the above-referenced acceptable standards of nursing care in failure to educate Ms. Hillman regarding the risks and potential adverse reactions regarding administration of vesicant agents, failure to monitor frequently for blood return during the drug infusion, and failure to attain and secure adequate venous access via a central line after the infiltration of the first peripheral IV line. Additionally, failure to adhere fully to standards of nursing care for the management of doxorubicin extravasation is noted.
It is my opinion that, within a reasonable medical probability, the above-referenced departures from the acceptable standards of nursing care by [the Clinic] caused the extravasation of doxorubicin with subsequent damage to the structures and tissues of the left arm sustained by Ms. Hillman on October 20, 2000.
My opinions are based upon the review of documents that have been made available to me as of this report date. The Clinic contends that Headley's report fails to meet the statutory requirements because "it provided generic conclusions about breach and causation without tying the conclusions to the specific facts of Hillman's case." The Clinic contends that Headley never showed actual facts from Hillman's treatment that constituted a breach of her stated standards, or showed that a breach of the stated standards caused Hillman's injury. The Clinic argues that Headley does not state which documents she relied upon or that she ever actually reviewed Hillman's medical records.
The standard of care is what a reasonably prudent physician or health-care provider would do under the same or similar circumstances. Palacios, 46 S.W.3d at at 880. It is not sufficient for an expert to state that he or she is familiar with the standard and simply to conclude whether the standard was met. Id. Rather, there must be specific information in the report to indicate what the expectation was, how it was not met, and what the defendant should have done differently. Id.
As to breach, Headley's report generally opines that the Clinic failed to meet the standard of care, as follows:
failure to educate Ms. Hillman regarding the risks and potential adverse reactions . . ., failure to monitor frequently for blood return during the drug infusion, and failure to attain and secure adequate venous access via a central line. . . . Additionally, failure to adhere fully to standards of nursing care for the management of doxorubicin extravasation is noted.
The expert report does not indicate the bases for Headley's conclusions. She does not state that she reviewed Hillman's records or refer to any specific entries in Hillman's records to support her conclusions. Rather, Headley generally summarizes the standards and seems to generally opine that they were not met because Hillman is injured. This is inadequate to constitute a good-faith effort under the statute. See id.; Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 13-14 (Tex.App.-Tyler 2002, no pet.) (concluding that a report that does not specifically state what care was expected and what care was not given can not be considered good-faith effort to comply with the statutory requirements concerning expert reports).
In Palacios, the Texas Supreme Court held that an expert report concerning a fall from a hospital bed was deficient because it failed to specifically relate the injurious event to a breach of a particular standard of care. See Palacios, 46 S.W.3d at 879-80. There, the expert failed to state what specific conduct the standard of care required and what the defendant should have done differently — whether the patient should have been restrained differently, or monitored more closely, or some other precaution was required. Id. As in Palacios, this report fails to explain how the standard of care was breached. It does not indicate whether improper methods were used in administering the agent, how often Hillman was monitored, whether staff educated Hillman about her treatment, or what measures were taken when a problem was discovered.
As to causation, Headley states that it is her "opinion that, within a reasonable medical probability, the above-referenced departures from the acceptable standards of nursing care by [the Clinic] caused the extravasation of doxorubicin with subsequent damage to the structures and tissues of the left arm sustained by Ms. Hillman on October 20, 2000." However, this conclusion is not explained or linked to any facts demonstrating a specific departure from the standard. See Bowie Mem'l Hosp., 79 S.W.3d at 53-54; Strom, 110 S.W.3d at 224.
In Bowie, the trial court examined an expert's statement that had radiographs been correctly read and had appropriate personnel acted upon the findings, the patient would have had a better outcome. Bowie, 79 S.W.3d at 52-53. The court found that there was no language in the expert's report to indicate what specific failure to meet the applicable standards caused the injury to the patient. Id. at 53.
In Strom, this Court found an expert's report conclusory because it stated that the failure to properly pad and position a patient's leg and knee resulted in injury but did not set out the manner in which the improper procedure caused the injury. Strom, 110 S.W.3d at 224.
Here, as in Bowie and Strom, the expert's report fails to link a specific manner of conduct by the Clinic to Hillman's injury.
Although Hillman is not required to marshal all of her proof, the report must include, within its four corners, information linking Headley's conclusions to the Clinic's alleged breach. See Palacios, 46 S.W.3d at 878. We are not permitted to infer breach and causation on the basis that an injury occurred and something must have caused the injury. Bowie, 79 S.W.3d at 53. We cannot say that Headley's report provided enough information to inform the Clinic of the specific conduct that Hillman has called into question or provided enough information to allow the trial court to determine that Hillman's claims have merit. See Palacios, 46 S.W.3d at 878.
We hold that the trial court did not abuse its discretion in concluding that the report did not represent a good faith effort to meet the requirements of section 13.01(r)(6) and in dismissing Hillman's medical malpractice claim against the Clinic as required under section 13.01(e).
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985-87 (repealed 2003).
Hillman's first point of error is overruled.
C. Breach of Contract Claim
In her second point of error, Hillman contends that the trial court erred in dismissing her breach of contract claim because the contract claim is separate and distinct from her medical malpractice claim, and the Clinic's motion to dismiss did not address her contract claim.
A health-care liability claim is
[A] cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.
State v. Thirteenth Court of Appeals, 933 S.W.2d 43, 45 (Tex. 1996). We look to the underlying nature of the claim to determine whether the claim is a health-care liability claim. Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995). If the cause of action is based on a health-care facility's breach of the standard of medical care, then the claim is a health-care liability claim, no matter how it is labeled. Id.
After examining the allegations, we conclude that Hillman's claim for reimbursement is not based on a breach of a standard of medical care. See Bush v. Green Oaks Op. Inc., 39 S.W.3d 669, 671-72 (Tex.App.-Dallas 2001, no pet.). Rather, it is simply a claim that the Clinic has received double-payment for a service. This is in the nature of a contract claim and is not an inseparable part of the medical services rendered. See id. at 672. Hence, her claim is not subject to the Medical Liability and Insurance Improvement Act, and no expert report was required to support her claim.
In addition, the Clinic never sought dismissal of Hillman's contract claim. When a trial court grants more relief than was requested, we consider all matters raised on appeal and reverse and remand those portions of the judgment rendered in error. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997).
Hillman's second point of error is sustained.
CONCLUSION
Having determined that the trial court did not abuse its discretion in dismissing Hillman's medical malpractice claim because the expert report was inadequate, we need not reach the Clinic's cross-point that the trial court erred in granting Hillman an extension of time to file the report.
We reverse and remand the trial court's judgment as to Hillman's breach of contract claim. We affirm the trial court's judgment in all other respects.