Opinion
04-22-00213-CV
08-16-2023
Sylvia G. VALDEZ, Individually and as Administrator of the Estate of Josefina Leonor Trevino Gonzalez, Appellant v. Nancy CISNEROS, Individually and as Director of Nursing, Luis Manuel Mauricio, Individually and as Assistant Director of Nursing, and Touchstone Communities, Appellees
From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2022-CV-B-000430D3 Honorable Sandee Bryan Marion, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice, concurring in the judgment without opinion Lori I. Valenzuela, Justice
OPINION
Rebeca C. Martinez, Chief Justice
Appellant Sylvia G. Valdez, individually and as representative of the Estate of Josefina Leonor Trevino Gonzalez, filed health care liability claims against appellees Nancy Cisneros, Luis Manuel Mauricio, and Touchstone Communities, Inc. ("Touchstone"), for "personal injury, mental anguish, severe health complications and death" allegedly relating to the health care Trevino Gonzalez received while a patient at Laredo Nursing & Rehabilitation Center ("Laredo Nursing"). Appellees challenged the adequacy of two amended expert reports tendered by Valdez, and they moved to dismiss Valdez's claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The trial court sustained appellees' objections, granted their motion to dismiss Valdez's claims with prejudice, assessed $33,500 in attorney's fees, and, by virtue of a severance order, rendered a final judgment in appellees' favor. In two issues, Valdez complains that the trial court abused its discretion by: (1) holding that the amended reports she tendered were inadequate under Section 74.351 and dismissing her health care liability claims; and (2) granting appellees' motion for severance. We reverse and remand.
Valdez purported to sue Cisneros and Mauricio individually and as director and assistant director of nursing, respectively.
I. Background
Trevino Gonzalez was an eighty-five-year-old patient at Laredo Nursing, which Valdez's live petition alleges is "a nursing home owned and managed by" Touchstone. While at Laredo Nursing, Trevino Gonzalez received care from Adonis Zuniga Goldwater, M.D. In November 2018, Trevino Gonzalez suffered a fall at Laredo Nursing, sustained an "intracranial hemorrhage," and later died. Valdez filed survival and wrongful death claims against appellees and Dr. Goldwater. In Valdez's live petition, she alleged that "Cisneros and Mauricio are liable under the doctrines of Respondeat Superior and agency and Touchstone is vicariously liable for their acts and omissions."
Before the instant lawsuit, Valdez had filed health care liability claims against, among others, Laredo Nursing. Valdez served no expert report in that lawsuit, and a different trial court dismissed with prejudice those health care liability claims.
In an effort to comply with the expert-report requirement in Section 74.351 of the Texas Civil Practice and Remedies Code, Valdez served reports signed by LeAnne Powell, a registered nurse, and Timothy Robert Klein, M.D., a physician specializing in geriatric medicine. Appellees objected to these two reports. The trial court sustained appellees' objections, but it granted Valdez a thirty-day extension to cure any deficiency. See id. at § 74.351(c). Thereafter, Valdez timely served amended reports signed by Nurse Powell and Dr. Klein.
A. LeAnne Powell, R.N.
According to Nurse Powell's amended report, Trevino Gonzalez was "re-admitted" to Laredo Nursing on September 28, 2018, in a "persistent vegetative state/no discernible consciousness." Nurse Powell observed that, upon her admission, Trevino Gonzalez suffered from several medical conditions, including cerebral infarction, hypertension, diabetes, and atrial fibrillation, and that Trevino Gonzalez was at risk of falling because she was "incontinent and tak[ing] 4 or more medications." Nurse Powell wrote that Trevino Gonzalez's
Activities of Daily Living were as follows: Bed Mobility = Extensive assistance with 2+ person physical assist; Transfer = Extensive assistance with 2+ person physical assist; Eating was not assessed; Toilet use was noted as "activity did not occur"; Dressing was not assessed; Personal hygiene = Extensive assistance with 2 + person physical assist; Bathing = Total dependence with 2+ person physical assist.
Nurse Powell quoted from a November 5, 2018, nursing progress note, which provides that Trevino Gonzalez was "found on the floor on the right side of her bed, resident was gotten [sic] up to the bed by coworkers, large hematoma present to left side of forehead, abrasion to left knee also present, no further cuts nor bruises present. Dr. Zuniga Goldwater made aware; no orders given."
A November 6, 2018, nursing progress note, according to Nurse Powell, provides that a "physician was notified that the purple discoloration to the left forehead was expanding to [Trevino Gonzalez's] left eye with redness and [a] swollen eyelid." On November 8, 2018, a nurse noticed Trevino Gonzalez's nose bleeding. The nurse called a physician, and the physician directed that Trevino Gonzalez be evaluated by the emergency department at Laredo Medical Center ("LMC"). Nurse Powell reported that the radiological imaging completed at LMC revealed "an acute subdural hematoma over the left convexity measuring up to 2.1 cm. [sic] in thickness. There is a mass effect with effacement of the left lateral ventricle, and approximately 1.3 cm of left[-]to[-] right midline shift." An emergency physician at LMC discharged Trevino Gonzalez back to Laredo Nursing. A November 9, 2018, physician's progress note, according to Nurse Powell, recounted Trevino Gonzalez's November 5, 2018, fall differently. It provides that Trevino Gonzalez "sustained fall . . . accidently fell out CNA's [certified nursing assistant's] hands and struck L forehead, sustaining . . . Hematoma . . . . She was referred to ER . . . Positive subdural . . . some brain shift from midline." Nurse Powell reported that a "second CT noted 'acute intracranial hemorrhage seen.'" Trevino Gonzalez died at Laredo Nursing on November 18, 2018.
Nurse Powell recounted that Trevino Gonzalez's death certificate notes her cause of death as: chronic vegetative state, chronic aspiration, subdural hematoma, right MCA stroke with left hemiplegia. Nurse Powell opined that "[t]he Directors of Nursing and Touchstone Communities" did not "provide the needed care and services - 2 person assist for bed mobility/incontinent care that would have been resident centered for Ms. Trevino [Gonzalez] and would meet her physical, mental, and psychosocial needs."
B. Timothy Robert Klein, M.D.
In Dr. Klein's amended report, he highlighted that the November 5, 2018, nursing progress note portrays that no one witnessed Trevino Gonzalez fall, which conflicts with the November 9, 2018, physician's progress note, which indicates that she "accidentally fell out of CNA's hands." Dr. Klein opined:
It is my opinion that in all likely medical probability, had the direct[or] of nurses, Nancy Cisneros and assistant director of nurses, Luis Manuel[,] and Dr. Goldwater implemented the fall interventions described in Nurse Powell's report, and followed their own guidelines for caring for Ms. Trevino [Gonzalez][,] which required at least two staff members at all times, she would not have been dropped
by a CNA on November 5, 2018. Dr. Goldwater, Nancy Cisneros, Luis Manuel, the CNAs and Touchstone all clearly failed to develop and implement an initial baseline plan of care to adequately address Ms. Trevino [Gonzalez's] risk of falls and prevent Ms. Trevino [Gonzalez] from falling. They failed to have two staff members assigned to her on the date of the injury, although the records indicate she required that for bed mobility and incontinent care; this resulted in her being dropped on her head by [a] CNA . . . . Any plan for fall prevention should have also incorporated a consideration of the fact that Ms. Trevino [Gonzalez] was taking blood thinners, which vastly increased the risk of serious damage and possible death to an elderly fall victim.
In sum, Ms. Trevino [Gonzalez] fell and suffered severe head trauma because, without the nursing protection described by Nurse Powell, she was left exposed to the known risk of injury from falling, as well as the known risk of suffering uncontrolled bleeding afterward caused by blood thinners.
C. Appellees' Objections and Motion to Dismiss
Appellees objected to the amended reports of Nurse Powell and Dr. Klein. Appellees' objections to Nurse Powell's amended report were twofold. First, appellees criticized Nurse Powell's amended report for opining on the incorrect legal entity by arguing that her references to Laredo Nursing failed to assail any conduct on the part of Touchstone. Appellees elaborated that Trevino Gonzalez was a resident of Laredo Nursing, not Touchstone. According to appellees, Touchstone is "an independent contractor" that does not provide any medical care. Second, appellees contended that Nurse Powell failed to delineate a standard of care for each of them, and instead, impermissibly grouped two nursing administrators and an "independent contractor" together. As for Dr. Klein, appellees criticized his amended report for "vaguely and carelessly lump[ing]" all of the appellees and Dr. Goldwater when describing any such standard of care and related conduct. Aside from the foregoing criticism and casting Dr. Klein's report as "insufficient," appellees did not explicitly challenge Dr. Klein's causation opinion.
Appellees also criticized Nurse Powell for failing to provide a causation opinion. Valdez responded that she relied on only Dr. Klein to articulate a causation opinion.
Valdez responded by arguing that Touchstone's contention that it is not a health care provider is "disingenuous" and "unsubstantiated and plainly untrue." Alternatively, Valdez argued "if that is Touchstone's position, then [she] was not required to proffer any Chapter 74 expert report[] about Touchstone at all." Valdez further argued that an expert may apply the same standard of care to two different health care providers "without separating them out from each other." Lastly, Valdez highlighted the portions of the amended reports that she contended satisfied the standard of care, breach, and causation elements of the expert-report requirement.
The trial court sustained appellees' objections, granted appellees' motion to dismiss, awarded appellees $33,500 in attorney's fees, and granted, over Valdez's objections, appellees' motion to sever Valdez's claims against appellees from those against Dr. Goldwater. Valdez timely appealed.
II. Discussion
A. Expert Report
1. Standard of Review and Applicable Law
We review a trial court's ruling on the sufficiency of an expert's report for an abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam).
No later than 120 days after each defendant's original answer is filed, a health care liability claimant must timely serve each defendant health care provider with an expert report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The report must provide a fair summary of the expert's opinions regarding the applicable standards of care, how the health care provider breached those standards, "and the causal relationship between that failure and the injury, harm, or damages claimed." Id. at § 74.351(r)(6). The trial court may not dismiss the suit if the report represents a good faith effort to comply with these requirements. Id. at § 74.351(1).
A report constitutes a good faith effort if it provides enough detail to inform the defendant of the specific conduct being questioned and provides a basis for the trial court to conclude the claim has merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The report need not marshal all the plaintiff's proof to meet this requirement. Id. at 878. It may be informal in that the information in the report does not need to meet the same requirements as the evidence offered in a summary-judgment proceeding or trial. Id. at 879.
2. Related Appeal
In Goldwater v. Valdez, No. 04-22-00176-CV, 2022 WL 3640225, at *1 (Tex. App.-San Antonio Aug. 24, 2022, no pet.) (mem. op.), Dr. Goldwater appealed the trial court's denial of his Chapter 74 motion to dismiss Valdez's health care liability claims relating to the care he provided Trevino Gonzalez while she was a patient at Laredo Nursing. Specifically, Dr. Goldwater asserted that Dr. Klein's causation opinions were conclusory. Id. at *2-*4. We note that Dr. Klein's causation opinions that we recited in Goldwater are identical to the causation opinions in Dr. Klein's amended report in the instant appeal. We overruled Dr. Goldwater's sole appellate issue and affirmed the trial court's order denying his motion to dismiss. Id. at *5.
3. Standard of Care and Breach
Appellees lodged four interrelated objections to Nurse Powell's opinions regarding the standard of care and their alleged breach of it. First, appellees argued that:
Nowhere in her Amended Report does Powell identify any conduct or act of Touchstone to establish Touchstone was providing, responsible for, or involved in the nursing care of [Trevino] Gonzalez on or after 9/28/2018, meaning her report is entirely devoid of any specific conduct of Touchstone relating to [Trevino] Gonzalez at the time of her alleged fall and injury.
Similarly, appellees contended that Nurse Powell's amended report did not "identify any specific conduct of Cisneros or Mauricio as to [Trevino] Gonzalez." Thirdly, appellees fault Nurse Powell for relying on federal regulations that relate to "nursing facilities" as authority for her standard-of-care opinions and in applying that same standard of care to all of them. Specifically, appellees asserted that:
[G]iven that all claims against Laredo Nursing and Rehabilitation Center, the actual nursing facility that provided care to [Trevino] Gonzalez, have already been dismissed with prejudice, it is impermissible for [Valdez] and [Nurse] Powell to shift standards of care applicable only to Laredo Nursing [] and its staff onto Cisneros and Mauricio as individuals or onto Touchstone as an independent contractor.
Relatedly, appellees complained that Nurse Powell's amended report did not "indicate specifically how each standard applies to each Defendant and how each Defendant then directly and individually deviated therefrom." Appellees continued arguing that Nurse "Powell vaguely lumps all the Defendants together for each alleged deviation, alleging Cisneros, Mauricio, and Touchstone all corporately breached the standards with no additional details."
As authority for appellees' objection that Nurse Powell's report lacks adequate specificity, they reference, among other cases, Jernigan v. Langley, 195 S.W.3d 91, 93-94 (Tex. 2006) (per curiam). In Jernigan, the Texas Supreme Court noted that the physician seeking dismissal:
appears in only one line of one report. This passing reference does not identify with specificity any action or inaction by Dr. Jernigan that breached the applicable standard of care. This perfunctory mention alleges no misconduct whatsoever, much less discusses the required elements with "sufficient specificity" to inform Dr. Jernigan of "the conduct the plaintiff has called into question."Id. at 93 (quoting Palacios, 46 S.W.3d at 875). Nurse Powell's amended report is not akin to the one in Jernigan. Instead, it identifies Touchstone by name and articulates a standard of care that applies to it and its alleged employees - Cisneros and Mauricio. Specifically, Nurse Powell opined:
The day of the incident, Ms. Trevino [Gonzalez] was not assisted with bed mobility/incontinent care by two staff members, and one staff member left her too close to the edge of the bed which resulted in her fall. If Cisneros, Mauricio and Touchstone Communities had developed and implemented an appropriate plan of care that addressed [Trevino Gonzalez's] risk for falls and utilized two staff members to provide bed mobility/incontinent care to her, she more than likely would not have fallen, sustaining the head injury that caused the brain bleed that more likely than not, contributed to her overall progressive decline in condition, and contributed to her eventual demise on 11/18/2018.(Emphasis added).
Next, appellees' concern regarding Nurse Powell's "vaguely lump[ing] all the Defendants together," which threads through all four of their objections, appears rooted in a notion that various health care providers may not share the same standard of care. However, Texas law provides that the same standard of care may be applied to one or more health care providers if they owed the same duty to the patient. See Hollingsworth v. Springs, 353 S.W.3d 506, 514 (Tex. App.-Dallas 2011, no pet.) ("Thus, to the extent appellants contend appellee's expert reports must fail because they assign the same duties and obligations as to each of a group of defendants, we reject this contention and overrule appellants' objections."); Sanjar v. Turner, 252 S.W.3d 460, 466 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("We therefore conclude that grouping the defendant doctors together under the relevant standard of care for each condition does not render Hoffman's report inadequate."); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 367 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("However, grouping defendants together in discussing the relevant standards of care does not render an expert report inadequate when all the defendants owed the same duty to the plaintiff."); see also Bell v. Markham, No. 05-19-00041-CV, 2020 WL 486668, at *5 (Tex. App.-Dallas Jan. 30, 2020, no pet.) (mem. op.) (holding that trial court abused its discretion if it sustained health care provider's objection to a report that grouped two dentists together to articulate the standard of care).
Appellees' remaining criticism - that Laredo Nursing's dismissal with prejudice precludes Nurse Powell from "shift[ing]" its standard of care to Touchstone - is similarly unavailing. As previously stated, the same standard of care may be applied to one or more health care providers - including Laredo Nursing and Touchstone - if they owed the same duty to the patient. Moreover, the adjudication of which legal entity actually owed a standard of care to Trevino Gonzalez would have forced the trial court to stray from the four corners of Nurse Powell's amended report. E.D. by & through B.O. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022); see also Thilo Burzlaff, M.D., P.A. v. Weber, 582 S.W.3d 314, 324 (Tex. App.-San Antonio 2018, no pet.) ("When determining whether a report represents a good faith effort to comply with the statute, the trial court looks only to the information within the four corners of the report and is prohibited from making any inferences therefrom.").
We conclude that the trial court abused its discretion to the extent that it sustained appellees' objections to the standard of care and breach opinions in Nurse Powell's amended report.
4. Causation
On appeal, Valdez argues that the amended reports of Nurse Powell and Dr. Klein "are all supported by factual data and thus the opinions are causally adequate." In appellees' motion to dismiss, they objected to Dr. Klein's amended report as insufficient. Appellees' objections to Dr. Klein's amended report provide, in their entirety:
Defendants object to Klein's Amended Report because, as with his original report, Klein largely relied on Powell's Amended Report, which is unquestionably flawed and deficient, in crafting his opinions concerning Defendants. In fact, Klein's Amended Report does not identify or cite any standards of care applicable to nurses like Cisneros and Mauricio or independent contractors like Touchstone. Rather, Klein merely notes on Page 2 of his Amended Report that he "agree[s] with the fall protections and post-fall interventions identified in Nurse Powell's report." This is problematic because[,] as detailed above[,] Powell cites no standards of care applicable to Cisneros and Mauricio as nurses or Touchstone as an independent
contractor that did not provide nursing care in her Amended Report. Taken together, neither Powell's nor Klein's report cite one standard of care applicable or expressly noted to apply to Cisneros, Mauricio, or Touchstone. Klein's report also notes that it concerns care and treatment provided to [Trevino] Gonzalez exclusively at and by Laredo Nursing [] on or after September 28, 2018, while not mentioning or discussing any specific care, treatment, or actions of Cisneros, Mauricio, or Touchstone. Further, Klein's report blames and attempts to hold Cisneros, Mauricio, and Touchstone responsible for care and actions of other nurses and healthcare providers without explaining how or what standard and guideline makes Cisneros and Mauricio as individuals legally responsible for the conduct of others or how Touchstone, as merely an independent contractor, is legally responsible for the actions of individuals not employed by it or under its control.
To the extent Klein's report sets forth any applicable standards of care for Defendants, which is denied by Defendants, Klein's report still fails because none of his opinions are specific to any of the Defendants. Just like Powell, Klein nowhere in his Amended Report specifically states how each standard of care applies to each Defendant and how each Defendant then directly and individually deviated therefrom. Rather, Klein vaguely and carelessly lumps all the Defendants together along with Dr. Zuniga-Goldwater when describing any such standards and the related conduct. Indeed, there is no place in Klein's report where any of the Defendants are discussed alone or apart from another party or healthcare provider, making it impossible to identify what each Defendant allegedly did to breach any applicable standard. [Citations omitted].
The foregoing continued deficiencies render Klein's Amended Report inadequate under Chapter 74. Therefore, Defendants' objections should be sustained, and the Lawsuit should be dismissed with prejudice.
Dr. Klein's causation opinion provides in relevant part:
It is my opinion that in all likely medical probability, had the director of nurses, Nancy Cisneros and assistant director of nurses, Luis Manuel[,] and Dr. Goldwater implemented the fall interventions described in Nurse Powell's report, and followed their own guidelines for caring for Ms. Trevino [Gonzalez][,] which required at least two staff members at all times, she would not have been dropped by a CNA on November 5, 2018.
. . . .
. . . Ms. Trevino [Gonzalez] fell and suffered severe head trauma because, without the nursing protection described by Nurse Powell, she was left exposed to the known risk of injury from falling, as well as the known risk[] of suffering uncontrolled bleeding afterward caused by blood thinners.
Even reading appellees' motion to dismiss generously, we cannot say that appellee's motion to dismiss assailed Dr. Klein's causation opinion. Appellees' general assertion that Dr. Klein's report was "insufficient" was itself insufficient to apprise either the trial court or Valdez of why Dr. Klein's report failed to provide a fair summary of his causation opinion. Cf. RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 270 (Tex. App.-Corpus Christi-Edinburg 2009, pet. denied) (objection that expert report was conclusory did not preserve objection that report was insufficient as to causation, where conclusory objection referenced the wrong report and the facts it referenced were irrelevant to argument on appeal).
Assuming appellees - as Dr. Goldwater did in the related appeal - assailed Dr. Klein's causation opinion as conclusory, such an objection fails for two reasons. First, in Goldwater, 2022 WL 3640225, at *5, we held that the trial court did not abuse its discretion in concluding that Dr. Klein's amended report sufficiently provided a fair summary of his causation opinion. In analyzing appellees' objections to Nurse Powell's amended report, we have already applied the rule that the same standard of care may be applied to one or more health care providers if they owed the same duty to the patient. See Hollingsworth, 353 S.W.3d at 514; Sanjar, 252 S.W.3d at 466; Bailey, 402 S.W.3d at 367; see also Bell, 2020 WL 486668, at *5. Applying that rule to a potential argument that Dr. Klein's causation opinion is conclusory as to appellees yields the same result.
Second, notwithstanding Goldwater, our opinion in Harrington v. Schroeder, No. 04-15-00136-CV, 2015 WL 9001573, at *1 (Tex. App.-San Antonio Dec. 16, 2015, pet. denied) (mem. op.), militates against appellees' argument. In Harrington, a nursing-home resident sustained multiple falls and assaults by fellow residents. Id. at *5. The survivors of the resident brought health care liability claims against the resident's attending physician. Id. at *1. The claimants alleged that the physician was negligent in failing to provide appropriate input as to the resident's care plan and coordinate the resident's discharge to a facility that could meet her needs. Id. The physician sought dismissal because, among other things, the claimant's expert report failed to adequately identify and explain any causal link between the alleged breaches of the standard of care by the physician and the resident's injuries. Id. The expert's opinion regarding the cause of the resident's injuries after multiple falls provided:
[The resident's] falls and resulting fractures, and specifically including the 11-20- 09 and 3-20-10 falls, were proximately caused in part by the aforementioned breaches of the standard of care by [the physician]. [The physician] failed to properly assess [the resident], including an assessment of her fall risks, and failed to provide proper input into [the resident's] care plan to address falls and fall risks. If [the physician] had properly assessed [the resident] and provided proper input into [the resident's] care plan to address falls, in some of the ways enumerated above, in reasonable medical probability, [the resident] would not have continued to suffer repeated falls and injuries and would not have suffered the 11-20-09 and 3-20-10 falls.Id. at *6. We "conclude[d] [that] the information in [the expert's] report adequately discusse[d] causation so as to inform [the physician] of the conduct that [the claimants] called into question and to provide a basis for the trial court to conclude that [the claimants'] claims have merit." Id. at *7.
The facts in this case are even more compelling than those in Harrington. In Harrington, the health care liability claim was against a physician for his alleged negligence in, among other things, "provid[ing] proper input into [the resident's] care plan to address falls." Id. at *6. In this case, appellees are alleged to be the owner and manager of the nursing home where Trevino Gonzalez resided (Touchstone) and two nursing administrators (Cisneros and Mauricio). Dr. Klein's opinion that appellees' failure to "implement[] the fall interventions described in Nurse Powell's report" adequately discusses causation so as to inform appellees of the conduct that Valdez calls into question and provides a basis to conclude that Valdez's survival claim has merit. Palacios, 46 S.W.3d at 875.
Two of our sister courts have held that if an expert report is sufficient as to a survival claim, then an accompanying wrongful death claim may proceed. See Bay Oaks SNF, LLC v. Lancaster, 555 S.W.3d 268, 271, 278-79 (Tex. App.- Houston [1st Dist.] 2018, pet. denied); SCC Partners, Inc. v. Ince, 496 S.W.3d 111, 114-15 (Tex. App.-Fort Worth 2016, pet. dism'd). Following Bay Oaks and SCC Partners, in light of the adequacy of Dr. Klein's causation opinion regarding Valdez's survival claim, we need not determine whether it is adequate as to her wrongful death claim.
We conclude that the trial court abused its discretion to the extent that it sustained appellees' objections to the causation opinion in Dr. Klein's amended report. Valdez's first issue is sustained.
B. Severance
In Valdez's second issue, she argues that the trial court abused its discretion by granting appellees' motion to sever the claims that she asserted against appellees from those that she asserted against Dr. Goldwater.
Texas Rule of Civil Procedure 41 provides that "[a]ny claim against a party may be severed and proceeded with separately." Tex.R.Civ.P. 41. "A severance divides the lawsuit into two or more separate and independent causes." In re United Fire Lloyds, 327 S.W.3d 250, 254 (Tex. App.-San Antonio 2010, orig. proceeding, no pet.); see Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985) ("A severance splits a single suit into two or more independent actions, each action resulting in an appealable final judgment.").
Generally, a claim is properly severable if (1) the controversy involves more than one cause of action; (2) the severed claim would be the proper subject of a lawsuit if independently asserted; and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. In re State, 355 S.W.3d 611, 614 (Tex. 2011) (orig. proceeding); F.F.P. Op. Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007) (quoting Guar. Fed. Sav. Bank v. Horseshoe Op. Co., 793 S.W.2d 652, 658 (Tex. 1990)). We review a trial court's order on a motion to sever for an abuse of discretion. F.F.P. Op. Partners, 237 S.W.3d at 693; Liberty Nat'l Fire Ins. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996) (orig. proceeding) ("Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court.").
Texas courts, including ours, have held that severing a claim after a dispositive ruling on that claim to expedite appellate review is not an abuse of discretion. See Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525-26 (Tex. 1982) (concluding that severance of deed-reformation claim after trial court granted summary judgment on declaratory judgment claim, "apparently in an effort to expedite appellate review of the declaratory judgment action," did not constitute abuse of discretion); Dorsey v. Raval, 480 S.W.3d 10, 15 (Tex. App.-Corpus Christi- Edinburg 2015, no pet.) (holding that trial court did not abuse its discretion by severing claims against particular defendant because, at time severance occurred, all claims against defendant had been dismissed by summary judgment); Smith v. Tex. Farmers Ins., 82 S.W.3d 580, 588 (Tex. App.-San Antonio 2002, pet. denied) ("Where summary judgment in favor of a single defendant is proper in a case with multiple defendants, severance of that claim is also proper so that it may be appealed.").
In appellees' motion for severance, they referenced Cherokee Water and argued that "[s]everance is necessary to make the order granting Defendants' Motion to Dismiss with Prejudice final and appealable." In response, Valdez orally argued to the trial court that the discretion afforded in Cherokee Water should not extend from partial summary judgments to Chapter 74 dismissal orders because doing so swaps a health care liability claimant's expedited interlocutory appeal for an ordinary appeal, "which takes longer." Appellees replied that, contrary to Valdez's position, severance was more economical. Specifically, appellees posited that, were severance denied, Valdez could forgo an interlocutory appeal, wait until her claims against Dr. Goldwater resulted in a final judgment, and at that time, lodge an ordinary appeal. Appellees further posited that failure to sever would be uneconomical for two reasons. First, appellees would expend resources monitoring Valdez's claims against Dr. Goldwater. Second, if the dismissal order were reversed, appellees would transition back to an active role after a potentially prolonged period of inactivity.
The parties have not briefed - and our independent research has not found - a case where a partial dispositive order, rendered final upon a severance, has been reversed and the accompanying severance order has also been challenged. As an issue of first impression, and in light of Cherokee Water, Smith, and the arguments presented to the trial court, we cannot say that the trial court, at the time it signed the order granting appellees' motion for severance, abused its discretion. The trial court may have concluded that appellees' efficiency arguments were more persuasive than Valdez's. Valdez's first issue is overruled.
This holding should not be read as precluding the trial court from entertaining a motion to reconsider the severance order or a motion to consolidate upon remand.
III. Conclusion
The trial court's order granting appellees' Chapter 74 objections and motion to dismiss with prejudice, rendered a final judgment by an accompanying severance order, is reversed and the cause is remanded for further proceedings consistent with this opinion.