Opinion
No. 12-03-00221-CV.
Opinion delivered January 21, 2004.
Original Proceeding.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DEVASTO, J.
MEMORANDUM OPINION
Relator Highland Pines Nursing Home Ltd. d/b/a Highland Pines Nursing Rehabilitation Center ("HP") filed a petition for writ of mandamus complaining of the trial court's order denying HP's motion to dismiss. For the reasons set forth below, we conditionally grant the writ.
BACKGROUND
Real parties in interest Michael Lincoln, Yvonne Lilly, Loretta Austin, Angelina Lincoln, Lawanda Glaspher, Kim Lincoln, Cortez Lincoln, Tom Andrew Lincoln, Orlando Lincoln, Karl Cox, and Marilyn Austin, individually and as representative of the estate of Tom Lincoln, deceased, (collectively "the Lincolns") are the plaintiffs in the underlying lawsuit. The Lincolns sued HP to recover damages for the alleged negligent medical care and treatment provided to Tom Lincoln. In their original petition, the Lincolns alleged that while Tom Lincoln was a resident of Highland Pines Nursing and Rehabilitation Center ("Highland Pines"), decubitus ulcers were allowed to develop or, alternatively, worsen and that this condition contributed to Mr. Lincoln's death. The Lincolns further alleged that Mr. Lincoln's injuries and death were proximately caused by HP's negligence. To support these allegations, the Lincolns filed an expert report and curriculum vitae submitted by Mildred O. Hogstel, Ph.D., RN, and C. Gerontological Nursing Consultant.
HP filed a motion to dismiss asserting that Nurse Hogstel's report does not meet the statutory definition of an "expert report" and therefore the underlying lawsuit must be dismissed. As one of the grounds for its motion, HP alleged that Nurse Hogstel is not qualified to express an opinion on medical causation. The trial court conducted a hearing on HP's motion to dismiss. By written order, the trial court denied HP's motion and made a specific finding that "Dr. Hogstell possesses the requisite knowledge and experience to render opinions relating to the acceptable standards of nursing care." This original proceeding followed.
PREREQUISITES TO MANDAMUS
Mandamus will issue to correct a clear abuse of discretion when there is no other adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court abuses its discretion if it reaches a decision "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Where mandamus relief is sought based upon the trial court's resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court. Id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989)). For the writ to issue, the relator must establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if we would have decided the issue differently, we cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Id.
Mandamus is intended to be an extraordinary remedy and is available only in limited circumstances. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). Therefore, the writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies such as an appeal. See id. This limitation is necessary to preserve "orderly trial proceedings" and to prevent the "constant interruption of the trial process by appellate courts." Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). The relator has the burden of showing an abuse of discretion and the inadequacy of appeal as a remedy. See id.
THE EXPERT REPORT
The Medical Liability and Insurance Improvement Act requires a plaintiff in a medical malpractice action to provide each defending physician or health care provider with one or more expert reports relating to liability and causation. TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(d) (Vernon Supp. 2003). The expert report, along with a curriculum vitae of each expert, must be furnished to each defendant not later than the 180th day after the date on which a health care liability claim is filed or the last day of any extended period as permitted under the statute. Id. If a claimant fails to comply with this requirement, the trial court must, on motion of the affected physician or health care provider, dismiss the claimant's action against that defendant with prejudice. Id. at § 13.01(e)(3).
Article 4590i was repealed and recodified at TEX. CIV. PRAC. REM. CODE ANN. § 74.351, which was effective on September 1, 2003. The underlying action in this proceeding was filed on August 2, 2002.
An expert report must show within the document itself that the purported expert is qualified to testify about the particular matter on which the opinion is offered. Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.-Amarillo 2001, no pet.). The report must also provide a fair summary of the expert's opinion regarding the applicable standards of care, the manner in which the care rendered failed to meet the standards, and the causal relationship between the failure to meet the standards and the claimed injury, harm, or damages. See TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(r)(6).
AVAILABILITY OF MANDAMUS Abuse of Discretion
In its mandamus petition, HP argues that Nurse Hogstel's report does not meet the statutory definition of an expert report and therefore the Lincolns have not filed an expert report at all. Consequently, it concludes, the trial court abused its discretion by denying HP's motion to dismiss. Because HP's proximate cause argument is dispositive of HP's abuse of discretion argument, we need not address HP's other arguments regarding the adequacy of Nurse Hogstel's report.
In a medical negligence suit, the proximate causation element must generally be proved by expert medical testimony. See, e.g., Pack v. Crossroads, Inc., 53 S.W.3d 492, 510 (Tex. App.-Fort Worth 2002, pet. denied); Lesser v. St. Elizabeth Hosp., 807 S.W.2d 657, 659 (Tex. App.-Beaumont 1991, writ denied). Nurses can certainly qualify as medical experts. Id. Therefore, a nurse, through specialized experience or training, might be very qualified to testify about medical causation. Id. The qualification of a witness to offer expert testimony is a matter committed to the trial court's discretion. United Blood Svcs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). The burden of establishing an expert's qualifications is on the offering party. Id. at 30.
In their original petition, the Lincolns allege that HP negligently allowed Mr. Lincoln to develop decubitus ulcers or, alternatively, allowed the ulcers to worsen and that this negligence proximately caused Mr. Lincoln's injuries and death. Thus, the Lincolns were required to establish that Nurse Hogstel is qualified to testify about whether HP proximately caused Mr. Lincoln's injuries as well as his death. See Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 422 (Tex. App.-Dallas 2002, no pet.). Nurse Hogstel has submitted a curriculum vitae, which states that (1) she has been a registered nurse since 1951; (2) she was certified as a gerontological nurse in 1985 and from 1990 through 1999; (3) she has five years of nursing experience; (4) she has twenty-two years of experience as a nursing instructor; (5) she has been active in a number of professional organizations; and (6) she has written a number of published articles relating to nursing home personnel issues and nursing care for elderly patients. This information supports the trial court's finding that Nurse Hogstel is qualified to testify about the standard of care for nurses. This same information also supports the trial court's implied findings that Nurse Hogstel is qualified to express an opinion about the nurses' alleged breach of the standard of care and the proximate cause of Mr. Lincoln's decubitis ulcers. However, the curriculum vitae includes no information supporting the trial court's implied finding that Nurse Hogstel is qualified as an expert witness concerning the cause of Mr. Lincoln's death. Moreover, the Lincolns do not identify any such qualifications, but simply argue generally that Nurse Hogstel is a qualified expert.
Because the Lincolns had the burden to show that Nurse Hogstel is qualified to testify about Mr. Lincoln's cause of death, see Chisholm, 63 S.W.3d at 907, and because her curriculum vitae does not contain any information showing that she is qualified to do so, the trial court could not have reasonably concluded that Nurse Hogstel's report is adequate. Therefore, the trial court's denial of HP's motion to dismiss constitutes an abuse of discretion.
Adequate Remedy at Law
As a general rule, a reviewing court lacks jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of the trial court when there is an adequate remedy by appeal. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). A trial court's ruling on a motion to dismiss is such an incidental ruling. Low v. King, 867 S.W.2d 141, 142 (Tex. App.-Beaumont 1993, orig. proceeding). Nonetheless, HP argues that where an expert report in a medical malpractice case is inadequate, a defendant should be able to avoid the expense and delay of a trial because the case should have been dismissed from the outset. HP further contends that this is the result the Texas Legislature envisioned when it enacted article 4590i and specifically section 13.01. In support of its position, HP cites In re Collom Carney Clinic, 62 S.W.3d 924 (Tex. App.-Texarkana 2001, orig. proceeding). In Collom, the court held that because article 4590i expresses a specific legislative purpose in requiring dismissal if a proper expert report is not filed and served on defendants in medical malpractice cases, a remedy by direct appeal is inadequate. Id. Thus, mandamus is available where a trial court abuses its discretion by denying a motion to dismiss when an inadequate expert report is filed. Id. We agree with the reasoning in Collom. Therefore, having held that the trial court abused its discretion in denying HP's motion to dismiss, we also hold that appeal is not an adequate remedy under the facts presented.
CONCLUSION
HP has satisfied both prerequisites to mandamus. Accordingly, the petition for writ of mandamus is conditionally granted. We trust that the trial court will promptly vacate its order dated May 20, 2003 denying HP's motion to dismiss and enter an order consistent with this opinion. The writ will issue only if it fails to do so.