Opinion
No. 09-06-118 CV
Submitted on April 6, 2006.
Opinion Delivered June 15, 2006.
Original Proceeding.
Writ of Mandamus Conditionally Granted.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
In this mandamus proceeding, Baptist Hospitals of Southeast Texas complains of the trial court's refusal to dismiss the healthcare liability claims of Connie Woods and Jeff Woods, the Real Parties in Interest. Connie Woods was admitted to Baptist Hospital with "bizarre and delusional" behavior. While a patient in Baptist's psychiatric unit, Connie was found to have "severe caustic burns" on her feet. The Woods sued Baptist and asserted the burns were "proximately caused and contributed to" by Baptist's negligence. Pursuant to statute, the Woods filed an expert report by Linda Stafford, an "Advanced Practice Registered Nurse," who concluded Baptist was negligent. Baptist challenged the expert report in its Motion to Dismiss. Subsequently, the Woods added claims for premises liability and breach of contract. The trial court overruled Baptist's dismissal motion. Baptist seeks a writ of mandamus directing the trial court to vacate its order denying Baptist's motion to dismiss, to enter a final judgment dismissing the Woods' claims with prejudice, and to award Baptist attorney's fees and costs of court. We conditionally grant the writ.
The law applicable to this case is former article 4590i, section 13.01 of the Medical Liability and Insurance Improvement Act. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. All section references in this opinion are to the 1995 version of Texas Revised Civil Statutes, article 4590i. The current version is found in chapter 74 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.001- 74.507 (Vernon 2005 Supp. 2005).
Standard of Review
Mandamus will issue only if the trial court has committed a clear abuse of discretion and the relators have no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). A trial court abuses its discretion when it fails to analyze or apply the law correctly or when it acts unreasonably, arbitrarily, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Packer, 827 S.W.2d at 840. We review a trial court's ruling on a motion to dismiss a healthcare liability claim for clear abuse of discretion. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
Waiver
The Woods argue Baptist did not employ due diligence in contesting the report, because Baptist waited too long after the Woods filed suit to file the dismissal motion. Section 13.01 of former article 4590i contains no deadline for filing a motion to dismiss. In Jernigan v. Langley, the Supreme Court held that when a defendant waits to file a motion for dismissal, the delay is insufficient to establish waiver unless the defendant's silence or inaction shows an intent to yield the right to dismissal. Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003) (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996)). Participation in discovery is insufficient to establish waiver because an attempt to learn more about the case in which one is a party does not demonstrate an intent to waive the right to move for dismissal under section 13.01(e). Jernigan, 111 S.W.3d at 157. The record does not show Baptist did anything inconsistent with an intent to rely upon its right to file a motion to dismiss. We conclude Baptist did not waive this statutory right.
The Woods maintain Baptist waited almost three years. The record and briefs reveal the time between the Woods' filing of suit and Baptist's filing of its motion to dismiss was almost two years.
Expert Report
Section 13.01(d) requires plaintiffs in healthcare liability suits to submit an expert report. The expert report requirement "establishes a threshold over which a claimant must proceed to continue a lawsuit." Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). The issue for the trial court is whether the report represents a good-faith effort to comply with the statute's requirement for an expert report. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); art. 4590i, § 13.01(r)(6). To satisfy the "good-faith effort" requirement, the report must provide sufficient specific information to fulfill two purposes: (a) inform the defendant of the specific conduct the plaintiff has called into question; and (b) provide a basis for the trial judge to conclude the claim has merit. Palacios, 46 S.W.3d at 875, 879. The report must include the expert's opinion on three elements: standard of care, failure to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. at 878; art. 4590i, § 13.01(l), (r)(6). A report that omits any of the statutory elements is not a good-faith effort. Palacios, 46 S.W.3d at 879. The report cannot merely state the expert's conclusions about these elements. Id. "'[R]ather, the expert must explain the basis of [her] statements to link [her] conclusions to the facts.'" Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). "The trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners." Wright, 79 S.W.3d. at 52 (citing Palacios, 46 S.W.3d at 878).
Baptist contends the expert report is insufficient because Stafford is not qualified to give an opinion on medical causation, and the opinions she offers on causation are conclusory. Baptist argues an expert who makes conclusions about causation must be qualified to diagnose the cause of the burns and to treat the burns. In its motion to dismiss, Baptist described some of the report's alleged deficiencies as follows: "[B]ecause [Stafford] has no expertise regarding such burns, her opinion reveals nothing regarding the likely timing of [Connie's] exposure, what an earlier assessment would have revealed, what treatment would have been initiated or how earlier treatment could have prevented or lessened such injuries." The Woods explain the report does not address medical diagnosis or medical causation because those are not issues in this case. Safety, the Woods argue, is the issue.
In setting out the standard of care in her report, Stafford states the hospital should have provided a "secure and safe environment" for the patient. As a minimum safety standard, Stafford asserts that "[a]ny individual as psychiatrically ill as this woman should have been observed at least every 15 minutes. . . ." Further, the "hospital should have had policies, procedures and staff supervision sufficient to insure such close monitoring and supervision of Connie Woods' movements and activities sufficient to prevent her from deliberately and/or unintentionally harming herself while she was in a psychotic and delusional state." In stating the acceptable standard of care, Stafford sets out precautions that should be taken:
1. Careful inspection of entire body and contents of clothing and shoes at time of admission;
2. A refusal to rely solely on statements and/or medical history provided by the patient;
3. A thorough physical exam of the patient. Family members, if available, should be questioned about the patient's recent activities and possible condition;
4. Measures taken to insure patient's understanding of needed medical interventions (including sedation, if necessary);
5. "1:1 observation, or in the alternative, close and frequent personal observations of the patient . . ."
6. Ingress/egress security to prevent elopement.
The report then states the ways in which Baptist breached the acceptable standard of care. Stafford states Baptist failed to carefully inspect the patient's entire body and contents of her clothing and shoes at the time of admission; relied on unreliable or incomplete statements or medical history provided by the patient; failed to conduct a thorough physical exam upon admission; failed to gather all available information pertinent to the patient's condition from family members, if available; failed to promptly identify and treat her severe and ongoing caustic burns; failed to enhance the likelihood of the patient's compliance with instructions and acceptance of necessary medical aid (including sedation if necessary); and failed to "provide 1:1 observation" or, in the alternative, close and frequent personal observations of the patient. The report's causation statement is as follows:
Regardless of what caustic agent was the specific etiology of the burns, I believe that a caring, watchful hospital staff would have prevented this tragic occurrence. Specifically, it is my opinion that the errors and deficiencies listed above caused the patient to suffer severe caustic burns to her feet, and/or to increase the severity of such burns, which would not have occurred had the hospital rendered a prudent standard of care.
Medical causation as it relates to the defendant's conduct is a required element to be included in the report. Wright, 79 S.W.3d at 52. There must be a causal connection between the defendant's negligence and the injuries. Id. at 51-52. Proximate cause includes cause-in-fact and foreseeability. IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)). The test for cause-in-fact is whether the negligent act or omission, without which the harm would not have occurred, is a substantial factor in bringing about an injury. IHS Cedars Treatment Ctr., 143 S.W.3d at 799. The defendant's conduct may be too attenuated from the resulting injuries to be a substantial factor in bringing about the harm. Id. at 800. Put another way, the causal link between conduct and injury may be too remote when two separate and sequential tortious incidents join to lead to the injury. Id.
Given the "substantial factor" requirement, if Connie Woods sustained the burns prior to becoming a patient at Baptist, it is possible Baptist's negligence, if any, did not increase or cause the ultimate harm. The report does not explain the extent of the injury suffered prior to admission to the hospital. Stafford's report takes the position that the timing of the burns makes no difference, and the Woods maintain there was no reason for Stafford to render any "diagnosis" that Connie suffered "caustic burns." The fact that the burns existed at some time may not need to be established by expert testimony; however, an expert's opinion regarding the time frame in which Connie sustained the burns and the effect of earlier discovery upon the ability to successfully treat the burns are issues relevant to whether the hospital could have prevented further injury if the burns occurred before she was seen at the hospital. The report does not explain how the alleged breaches of the standard of care increased the severity of the injuries if the burns occurred before admission. Although an expert report need not marshall all the plaintiffs' proof or meet the requirements for evidence offered to support a summary judgment or at trial, the report must set out sufficiently specific information to provide the trial court a basis to conclude the claim has merit. See Palacios, 46 S.W.3d at 875, 878-79.
The report does not adequately address the causal connection between the claimed omissions and the burns. See Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.). Stafford is a nurse, not a physician. The report does not show Stafford possesses qualifications to offer an expert opinion on when the burns were sustained and the efficacy, if any, of earlier treatment. See In re Samonte, 163 S.W.3d 229, 237-38 (Tex.App.-El Paso 2005, orig. proceeding) (When no qualifications regarding the particular subject matter are shown to exist in the report, the document cannot be a good-faith effort to comply with the statutory requirements for an expert report.); see also In re Windisch, 138 S.W.3d 507, 514 (Tex.App.-Amarillo 2004, orig. proceeding) (Expert report did not provide any explanation or credentials indicating expertise regarding the subject of the case, and the trial court erred by not dismissing the case.). We conclude the trial court misapplied section 13.01 to the report submitted by the plaintiffs and abused its discretion in denying Baptist's motion to dismiss the plaintiff's claim.
The Woods' "Alternative" Claims
In their response to Baptist's mandamus petition, the Woods argue the trial court was correct in not dismissing their "alternative" claim that the burns actually occurred at Baptist, a claim described as a premises liability claim or a negligent supervision claim. Under Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005), a cause of action against a provider of healthcare is a healthcare liability claim under the MLIIA (Medical Liability and Insurance Improvement Act) if it is based on a claimed departure from an accepted standard of medical care, healthcare, or safety of the patient, whether the action sounds in tort or contract. The supervision and monitoring of Connie Woods and the nursing services provided to her were part of her healthcare. See Rubio, 185 S.W.3d at 850. The claims that Baptist breached a contract with Connie and failed to provide safe premises are also healthcare liability claims. They both relate to and are an inseparable part of the Woods' claim that Baptist departed from acceptable standards of medical care in failing to properly supervise and monitor Connie. The Woods' claims fall within the scope of MLIIA.
Although the Woods do not mention their breach of contract cause of action in their mandamus response brief, the contract claim also relates to the alleged failure to provide Connie a safe and secure custodial environment while she was a patient at Baptist. In this context and under Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005), the breach of contract cause of action is a healthcare liability claim subject to the required elements set out by section 13.01 for an expert report.
Under the MLIIA, a claimant must file a report setting out the expert's opinion of the causal relationship between the failure to meet the standard of care and the injury. See art. 4590i, § 13.01(r)(6). If the Woods contend the burns occurred at Baptist and intend to prove the time of the burns by expert testimony, that information must be in a report provided by an expert competent to express that opinion. Here, Stafford's report offers no explanation of how Baptist's alleged breaches of the standard of care caused the burns. The report is based on speculation that Connie could have sustained the burns on Baptist's premises.
No Adequate Remedy at Law
Baptist contends it has no adequate remedy at law and is entitled to mandamus relief. The Legislative "Findings and Purposes" of the MLIIA reveal the Legislature's clear intent to remedy a crisis in Texas regarding the number of healthcare liability claims. Section 13.01 entitles a defendant to pretrial dismissal if an adequate expert report is not timely filed. See art. 4590i, § 13.01(d), (e)(3), (l), (r). A post-trial appeal cannot remedy the deprivation of a statutory right to pretrial dismissal with prejudice. See In re Samonte, 163 S.W.3d at 238; In re Collom Carney Clinic Ass'n, 62 S.W.3d 924, 928-30 (Tex.App.-Texarkana 2001, orig. proceeding) (Mandamus was proper becaue the Act requires dismissal when a proper expert report is not timely filed.). "Where a report totally omits one of the three required elements, the trial court has a ministerial duty to dismiss the lawsuit with prejudice and has no discretion to do otherwise." In re Samonte, 163 S.W.3d at 238 (citing In re Tenet Hosps. Ltd., 116 S.W.3d 821, 823-27 (Tex.App.-El Paso 2003, orig. proceeding)).
Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02, 1977 Tex. Gen. Laws 2039 (former Tex. Rev. Civ. Stat. art. 4590i, § 1.02), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 874, 884; see also Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5), 2003 Tex. Gen. Laws 847, 884 (reiterating the Legislature's concern about the gravity of an ongoing "medical malpractice insurance crisis").
The Texas Supreme Court recently denied petitions for mandamus in a series of cases discussed in a 2004 concurring and dissenting opinion. See In re Woman's Hosp. of Tex., Inc., 141 S.W.3d 144 (Tex. 2004) (Owen, J., concurring and dissenting). After the Supreme Court's denial of these mandamus petitions, a series of courts of appeals' cases denying mandamus relief followed. However, we agree with the Amarillo court that "[p]ending a definitive ruling from the high court, [the court of appeals] will adhere . . . to [its] previously-expressed view that mandamus is available in a proper case." In re Windisch, 138 S.W. 3d at 510. We consider the adequacy of a remedy by appeal on a case-by-case basis.
See In re Benavides, 180 S.W.3d 211, 212 (Tex.App.-San Antonio 2005, orig. proceeding); In re McAllen Med. Ctr., Inc., No. 13-05-441-CV, 2005 Tex. App. Lexis 8235, *2 (Tex.App.-Corpus Christi, Oct. 5, 2005, orig. proceeding); In re Schneider, 134 S.W.3d 866, 869-70 (Tex.App.-Houston [14th] 2004, orig. proceeding).
We conclude the expert report does not comply with the Act's requirements and that Baptist has no adequate remedy at law. We conditionally grant the petition for writ of mandamus and order dismissal of the claim. We are confident the trial court will grant the relief to which Baptist is entitled under Section 13.01(e) and this opinion, and dismiss the case; the writ will issue only if the court does not.