Opinion
No. 10-17-00096-CV
09-13-2017
TEXAS HOME HEALTH SKILLED SERVICES, LP, Appellant v. JUDY ANDERSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ELIZABETH TIMMONS, DECEASED, Appellees
From the 278th District Court Walker County, Texas
Trial Court No. 1527363
MEMORANDUM OPINION
In one issue, appellant, Texas Home Health Skilled Services, L.P., argues that the trial court erred in refusing to dismiss a wrongful-death and survival lawsuit brought by appellee, Judy Anderson, individually and as representative of the estate of Elizabeth Timmons, deceased, because Anderson failed to serve compliant expert reports. This is the second time that appellant has challenged the trial court's refusal to dismiss this lawsuit for Anderson's purported failure to serve compliant expert reports. See generally Tex. Home Health Skilled Servs., L.P. v. Anderson, No. 10-15-00440-CV, 2016 Tex. App. LEXIS 11319 (Tex. App.—Waco Oct. 19, 2016, no pet.) (mem. op.). We once again conclude that Anderson's expert reports are insufficient as to causation. Accordingly, we reverse the trial court's order denying dismissal, render judgment dismissing Anderson's claims against appellant, and remand to the trial court for determination of reasonable attorney's fees and court costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West 2017).
I. BACKGROUND
In the first iteration of this dispute, we recited the underlying facts. See Anderson, 2016 Tex. App. LEXIS 11319, at **1-4. As a brief summary, we highlight that Anderson filed a wrongful-death and survival suit against numerous parties, including appellant, on April 2, 2015. Id. at *1. With respect to appellant, Anderson asserted negligence, vicarious-liability, and gross-negligence claims pertaining to the death of Timmons. Id. Anderson served on appellant expert reports drafted by Paul O. Warshawsky, M.D. and Lori Rozas, R.N. Id. at **4-5. Appellant challenged the sufficiency of Anderson's expert reports. The trial court determined that Anderson's expert reports were sufficient and, therefore, denied a motion to dismiss filed by appellant. Id. at **5-6.
As noted in our previous memorandum opinion, Nurse Rozas's expert report "was provided to address appellant's objections to the qualifications of Dr. Warshawsky to opine on the standard of care for a home-health nurse." Tex. Home Health Skilled Servs., L.P. v. Anderson, No. 10-15-00440-CV, 2016 Tex. App. LEXIS 11319, at **4-5 (Tex. App.—Waco Oct. 19, 2016, no pet.) (mem. op.). Anderson did not use Nurse Rozas's expert report to establish the causation element.
On appeal, we reversed the trial court's denial of appellant's motion to dismiss, concluding that Anderson's expert reports were insufficient as to causation. Id. at **30-31. Specifically, we noted the following:
A review of Dr. Warshawsky's expert reports reveals that dehydration was the cause of Timmons' death; however, he failed to explain how Timmons' subdural hematoma was a substantial factor in her death from dehydration. Because Anderson's expert reports fail to connect the occurrence of the subdural hematoma to Timmons' death, we conclude that Anderson's expert reports are insufficient on the element of causation.Id. at **30-31. However, despite the foregoing, we further concluded that Anderson's expert reports were not "so deficient as to constitute no report at all." Id. at *31 (citing Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 670 (Tex. 2008); Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)). As such, we remanded the matter for the trial court to determine whether the deficiency in Anderson's expert reports could be cured, and thus, whether to grant an extension of time to cure. Id. at *32 (citing Samlowski v. Wooten, 332 S.W.3d 404, 411-13 (Tex. 2011) (noting that the trial court is in the best position to decide whether a cure is feasible)).
On remand, Anderson filed a motion for a thirty-day extension of time to provide an amended expert report as to the causation element. The trial court granted Anderson's motion, and Anderson subsequently served Dr. Warshawsky's supplemental expert report on appellant. Thereafter, appellant filed a motion to dismiss Anderson's lawsuit for failure to serve an adequate expert report. The trial court denied appellant's motion to dismiss, and this accelerated, interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2016) (authorizing an interlocutory appeal from the denial of "all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351 . . . .").
II. STANDARD OF REVIEW
We review all rulings related to Section 74.351 of the Texas Civil Practice and Remedies Code under an abuse-of-discretion standard. Jelinek v. Casas, 328 S.W.3d 526, 538-39 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Although we defer to the trial court's factual determination, we review questions of law de novo. See Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also Hillcrest Baptist Med. Ctr. v. Dixon, No. 10-12-00396-CV, 2013 Tex. App. LEXIS 8565, at **4-5 (Tex. App.—Waco July 11, 2013, no pet.) (mem. op.). A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. See Poland v. Orr, 278 S.W.3d 39, 45 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Dixon, 2013 Tex. App. LEXIS 8565, at *5. An abuse of discretion occurs if the trial court fails to correctly apply the law to the facts or if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Haskell, 363 S.W.3d at 757 (citing Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.—Dallas 2010, no pet.)).
III. APPLICABLE LAW
A plaintiff who asserts a health-care-liability claim, as defined by Chapter 74, must provide each defendant physician or health-care provider with an expert report which provides "a fair summary of the expert's opinions" as of the date of the report regarding the applicable standards of care, the manner in which the care rendered failed to meet the applicable standards, and the causal relationship between that failure and the claimed injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6); see also Dixon, 2013 Tex. App. LEXIS 8565, at **5-6. "The purpose of the expert report requirement is to deter frivolous claims, not to dispose of the claims regardless of their merits." Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).
When a plaintiff timely files an expert report and a defendant moves to dismiss on the basis that the report is insufficient, the trial court must grant the motion only if the report does not represent a good-faith effort to meet the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); see also Dixon, 2013 Tex. App. LEXIS 8565, at *6. To constitute a good-faith effort, a report "must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 875; see Wright, 79 S.W.3d at 52.
A report cannot merely state the expert's conclusions about these elements; instead, the report must explain the basis of the statements and link the conclusions to the facts. Wright, 79 S.W.3d at 52; see Jelinek, 328 S.W.3d at 539-40. A report that merely states the expert's conclusions about the standard of care, breach, and causation is deficient. Palacios, 46 S.W.3d at 879. Further, a report that omits any of the statutory elements is likewise deficient. Id. In determining whether the trial court's ruling on a motion to dismiss was correct, we review the information contained within the four corners of the report. Wright, 79 S.W.3d at 53. "The report can be informal in that the information in the report does not have to meet the same requirements as evidence offered in a summary-judgment proceeding or at trial." Palacios, 46 S.W.3d at 879.
Furthermore, reports may be considered together in determining whether a health-care-liability claimant provided a report meeting the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see also Salais v. Tex. Dep't of Aging & Disability Servs., 323 S.W.3d 527, 534 (Tex. App.—Waco 2010, pet. denied). A single report need not "address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider." TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see, e.g., Dixon, 2013 Tex. App. LEXIS 8565, at *11 n.2. But read together, the reports must provide a "fair summary" of the experts' opinions. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see Barber v. Mercer, 303 S.W.3d 786, 791 (Tex. App.—Fort Worth 2009, no pet.); Walgreen Co. v. Hieger, 243 S.W.3d 183, 187 n.2 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
IV. ANALYSIS
In its sole issue on appeal, appellant contends that Anderson's expert reports are once again inadequate as to the causation element because they fail to "explain how [appellant's] alleged breach resulting in a subdural hematoma was a substantial factor in Ms. Timmons' death from dehydration/acute renal failure." We agree.
In his November 25, 2016 supplemental expert report, Dr. Warshawsky indicated that he incorporated his prior March 19, 2015 expert report while providing additional explanation regarding causation. Moreover, as stated above, we may consider multiple reports in determining whether a health-care-liability claimant provided an expert report meeting the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see also Salais, 323 S.W.3d at 534.
Notably, in his March 19, 2015 expert report, Dr. Warshawsky stated the following:
Aging causes changes in body water composition, and kidney function and thirst perception declines in older adults. These factors account for the prevalence of dehydration in older adults. Dehydration is a common and very serious condition in the elderly. Mortality is high if not treated adequately. A timely diagnosis and adequate treatment of dehydration is required to reduce the serious effects on the elderly patient. Female patients over the age of 85, having 5 or more chronic diseases, taking 5 or more kinds of medication, poor mobility, inability to feed oneself, reduced intake due to anorexia, dysphagia, and dementia, are significant risk factors in developing dehydration. Ms. Timmons was clearly at risk for dehydration.
. . . .
Elderly patients like Ms. Timmons are at greater risk of becoming dehydrated. Aging can cause changes in body water composition, renal function and thirst perception can decline in older adults. Additionally, Ms. Timmons had multiple significant risk factors placing her at a greater risk for dehydration[.](Emphasis added). Moreover, Dr. Warshawsky established in his March 19, 2015 expert report that Timmons "was a 90 year old black female with a history of dementia, coronary artery disease, breast cancer, hyperlipidemia, hypertension, vitamin D deficiency, esophageal reflux, rheumatoid arthritis, renal insufficiency, atrial fibrillation, and aortic heart valve replacement." Later, Dr. Warshawsky noted that Timmons also suffered from "altered mental status, hypotension, acute renal failure, hypernatremia, hyperkalemia, dehydration, decubitus ulcers, and anemia." And finally, Dr. Warshawsky opined that "the pressure ulcers that were permitted to form on Ms. Timmons was a proximate cause of her declining physical condition and which made her unable to take in adequate fluid and food to sustain life as well as increasing her susceptibility to the effects of dehydration which led to her death."
However, in his November 25, 2016 supplemental expert report, Dr. Warshawsky, without explanation, abandoned all of the risk factors mentioned above and opined that Timmons became dehydrated solely because of her subdural hematoma, which resulted from her Coumadin intake that allegedly was not properly monitored by appellant.
In Jelinek, the Texas Supreme Court noted:
It is not enough for an expert simply to opine that the defendant's negligence caused the plaintiff's injury. The expert must also, to a
reasonable degree of medical probability, explain how and why the negligence caused the injury. We have rejected expert opinion not grounded in sound evidentiary basis: "[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection. '[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.'" City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)); see also Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009) ("Conclusory or speculative opinion testimony is not relevant evidence because it does not tend to make the existence of material facts more probable or less probable."). When the only evidence of a vital fact is circumstantial, the expert cannot merely draw possible inferences from the evidence and state that "in medical probability" the injury was caused by the defendant's negligence. The expert must explain why the inferences drawn are medically preferable to competing inferences that are equally consistent with the known facts. Thus, when the facts support several possible conclusions, only some of which establish that the defendant's negligence caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's opinion. See Lenger [v. Physician's Gen. Hosp., Inc.], 455 S.W.2d [703,] 707 [(Tex. 1970)] ("[E]xpert testimony that the event is a possible cause of a condition cannot ordinarily be treated as evidence of reasonable medical probability except when, in the absence of other reasonable causal explanations, it becomes more likely than not that the condition did not result from the evidence."); Hart [v. Van Zandt], 399 S.W.2d [791,] 792 [(Tex. 1966)] ("The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor's negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury.").Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010) (emphasis added).
Because Dr. Warshawsky did not explain his conclusion that the subdural hematoma was the superior or medically-preferable cause of Timmons' death based on verifiable medical evidence when compared to the other significant risk factors he mentioned in his March 19, 2015 expert report, we conclude that his expert reports are conclusory and raise no more than a possibility of causation. See id. at 537 ("When the circumstances are equally consistent with either of two facts, neither fact may be inferred. . . . Based on the record evidence, an anaerobic infection cannot be proved or disproved. It is equally plausible that Casas had such an infection or that she did not. Dr. Deller opined that she did, but he did not explain why that opinion was superior to the opposite view. Such evidence raises no more than a possibility of causation, which is insufficient." (internal citations & quotations omitted)); Ponte v. Bustamante, 490 S.W.3d 70, 82-84 (Tex. App.—Dallas 2015, pet. granted) (op. on reh'g) ("Here, like Jelinek, the evidence showed that there was a significant chance that Daniella would have suffered the same injuries even if Llamas had performed the surgery as Good said he should have. The evidence also showed that Daniella had specific risk factors that made a bad outcome in her case more likely. But Good did not explain why performing the surgery differently probably would have prevented Daniella's injuries in her particular case, despite the possibility of a bad outcome even with proper treatment and despite her particular risk factors that increased the likelihood of a bad outcome. After reviewing the record, we conclude that Good's causation testimony regarding Llama's negligent surgery was conclusory because Good did not explain how and why performing the surgery differently probably would have resulted in a different outcome for Daniella."); see also Healthsouth Rehab. Hosp. of Beaumont v. Abshire, No. 09-16-00107-CV, 2017 Tex. App. LEXIS 2730, at *38 (Tex. App.—Beaumont Mar. 30, 2017, no pet.) (mem. op.); Al-Lahiq v. Rosemond, No. 14-13-00158-CV, 2013 Tex. App. LEXIS 13775, at **13-14 (Tex. App.—Houston [14th Dist.] Nov. 7, 2013, no pet.) (mem. op.) ("Further, the report fails to explain the impact of Rosemond's multiple medical problems had on the development and treatment of his contractures. . . . Consequently, we conclude that this report fails to provide a causal link between Dr. Al-Lahiq's care and Rosemond's contractures." (internal citations omitted)). And because we conclude that Dr. Warshawsky's expert reports fail to provide a causal link between appellant's care and Timmons' death, we hold that the trial court abused its discretion in denying appellant's motion to dismiss. See Jelinek, 328 S.W.3d at 538-39; see also Palacios, 46 S.W.3d at 877. Accordingly, we sustain appellant's sole issue on appeal.
It is also worth mentioning that, in his November 25, 2016 expert report, Dr. Warshawsky changed his opinion regarding the cause of death to "acute renal failure which was brought on by the acute kidney injury she suffered as a result of her profound anemia." This differs from his prior conclusion that severe dehydration was the cause of Timmons' death. See Anderson, 2016 Tex. App. LEXIS 11319, at *30. He does not adequately explain the change in his opinion regarding the cause of Timmons' death, nor does he adequately explain that this new cause of death is superior or medically preferable to the other potential causes of death explained in his March 19, 2015 expert report.
And furthermore, Dr. Warshawsky's causation opinion is significantly undermined by his observation that Timmons exhibited abnormal kidney function on April 25, 2014, as a result of the subdural hematoma, yet her kidney function returned to normal by May 9, 2014, when she was transferred to the care of Huntsville Healthcare Center for further rehabilitation. In fact, Dr. Warshawsky noted that, as of May 9, 2014, Timmons "had recovered enough to eat and drink with assistance."
V. CONCLUSION
Based on the foregoing, we reverse the trial court's order denying appellant's motion to dismiss, render judgment dismissing Anderson's claims against appellant with prejudice, and remand to the trial court for determination of reasonable attorney's fees and court costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).
The plain language of section 74.351 permits one thirty-day extension to cure a specified deficiency in an expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West 2017); see also Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008). Anderson has already received one thirty-day extension to cure deficiencies in her expert reports, and the statute provides no basis for another extension. Therefore, we must dismiss Anderson's claims with prejudice against appellant, rather than remand for another opportunity to cure.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
(Chief Justice Gray dissenting with a note)*
Reversed and rendered, in part, and reversed and remanded, in part
Opinion delivered and filed September 13, 2017
[CV06] *(Chief Justice Gray dissents. A separate opinion will not issue.)