Opinion
NO. 09-11-00223-CV
01-05-2012
CHRISTOPHER VALLE, Appellant v. PAUL TAYLOR, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF ANITA GLYNN TAYLOR, AND JAMES TAYLOR, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF ANITA GLYNN TAYLOR, Appellees
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 10-04-03514 CV
MEMORANDUM OPINION
Appellees, Paul Taylor and James Taylor, filed suit individually and as co-executors of the Estate of Anita Glynn Taylor, against Christopher Valle, M.D., alleging that Dr. Valle failed to properly treat a fracture Anita Glynn Taylor ("Taylor") had received and failed to make appropriate discharge orders with regard to her condition. Dr. Valle filed a motion to dismiss the suit pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. The trial court denied Valle's motion and this appeal followed. We affirm in part and reverse in part. We remand this case for further proceedings.
BACKGROUND
On June 17, 2009, Taylor, a resident of Willis Nursing and Rehabilitation, was found lying on her bathroom floor. She had fallen and broken her leg. An ambulance took Taylor to Conroe Regional Medical Center where Dr. Christopher Valle treated her in the emergency room. Taylor's leg was x-rayed and she was diagnosed with left distal fibula/tibula fractures, commuting with fibula displacement (a fractured left ankle). At the time of the fracture Taylor was eighty-three years old and had a history of diabetes, peripheral vascular disease, congestive heart failure, hypothyroidism, high blood pressure, chronic ischemic heart disease, anxiety, depression and hallucinations. Dr. Valle placed Taylor in a posterior and stirrup splint and wrote an order for her to follow-up with an orthopedic surgeon, in five to seven days. Taylor was discharged to the nursing home staff with "Patient Discharge Instructions," which set forth generic instructions for a "Fractured Extremity," and stated "Please do not remove the splint, immobilizer, or cast that has been applied to treat your injury."
On June 23, 2009, six days after she was placed in a splint, a nurse at the nursing home noticed that Taylor's toes on her left foot were blue and purple. Taylor was taken to Conroe Regional Hospital. Taylor was found to have "a large necrotic decubitus (pressure) ulcer on her left heel and a necrotic area on the left side of her foot." An order was given to create a new splint that would not put pressure on the heel and foot, and Taylor remained in the hospital. The following day, an orthopedic consult was performed in which it was determined that Taylor's "fracture would be best served by a surgical open reduction and internal fixation[;]" however, surgery was not an option due to the condition of the skin on her foot. The pressure ulcers did not heal. Taylor was placed on hospice care for comfort measures and died on July 18, 2009.
Taylor's sons filed the underlying suit asserting wrongful death and survival claims against the nursing home in April 2010. Dr. Valle was added as a defendant in October of 2010. Prior to adding Dr. Valle to the suit, plaintiffs served an expert report from Lige Rushing, M.D., which initially addressed primarily the actions of the nursing home. After being added as a defendant, Dr. Valle filed objections to Dr. Rushing's expert report. Thereafter, plaintiffs served a supplemental report from Dr. Rushing addressing Dr. Valle's conduct in greater detail. Dr. Valle filed further objections to Rushing's report and a motion to dismiss pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. Dr. Valle argued that Dr. Rushing was not qualified to render an opinion regarding the applicable standard of care, Rushing's opinion was conclusory as to causation, and Rushing's opinion was impermissibly vague as to the applicable standard of care. The trial court denied the motion to dismiss and this appeal followed. Appellant raises the same arguments on appeal that he asserted in the trial court with regard to the sufficiency of the expert report.
APPLICABLE LAW AND STANDARD OF REVIEW
A plaintiff who asserts a health care liability claim must provide each defendant physician and health care provider with an expert report no later than the 120th day after filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011). The statute defines an "expert report" as
a written report by an expert 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.Id. § 74.351(r)(6). The statute provides that the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.35 (l) To constitute a good faith effort, the 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." Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).
We review a trial court's denial of a motion to dismiss under section 74.351 for an abuse of discretion. See Palacios, 46 S.W.3d 873 at 878. "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). When reviewing matters committed to the discretion of the trial court, we may not substitute our own judgment for the judgment of the trial court. Wright, 79 S.W.3d at 52.
QUALIFICATION TO RENDER EXPERT OPINION
Pursuant to Chapter 74, an expert report must be authored by a qualified expert. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5). The statute sets forth the standard by which a physician may qualify as an expert in a suit against a physician. Id. § 74.401. Section 74.401(a) provides that:
a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:Id. § 74.401(a)(1)-(3). In determining whether a physician is qualified on the basis of training or experience, courts must consider whether the physician who completed the report (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c).(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
Appellant argues that Dr. Rushing is not qualified to render an opinion regarding "the standard of care of an emergency medicine physician treating an emergency room patient that has suffered an orthopedic injury[.]" Appellant asserts that Dr. Rushing is not board certified in emergency medicine, has not demonstrated substantial training or experience in emergency medicine, and is not actively practicing emergency medicine. Appellees argue that Dr. Rushing is qualified as an expert to render an opinion with regard to the issues before the court.
In determining whether an expert is qualified, the focus is not on the defendant physician's area of expertise, but on the condition involved in the claim. McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Whether a physician is qualified to render an expert opinion is determined by comparing the area in which the physician has knowledge, skill, experience, or training with the subject matter of his proposed testimony. Hayes v. Carroll, 314 S.W.3d 494, 504 (Tex. App.— Austin 2010, no pet.). Therefore, we consider the subject matter at issue and the physician's knowledge of that particular subject matter. Id. In their petition, plaintiffs allege that Dr. Valle failed to make adequate discharge orders specific to Taylor's condition and placed an inappropriate splint on Taylor.
In his report, Dr. Rushing stated that he is "a board certified internal medicine physician, geriatrician and rheumatologist[.]" Dr. Rushing stated that in the regular course of his practice he has cared for many patients with hip fractures, knee fractures, ankle fractures, and leg fractures, "in both an acute hospital care setting and in nursing home settings." Dr. Rushing also stated that he has experience as an emergency room physician. For approximately fifteen years, Dr. Rushing was on general medical call for an emergency room and functioned as an emergency room physician. He explained that in this role, he provided emergency treatment for patients with fracture injuries similar or identical to the injury Taylor sustained in this case. Regarding his relevant knowledge and experience, Dr. Rushing further stated:
I have treated many elderly persons at risk for skin breakdown in their extremities over the course of my practice. This includes treatment of many persons like Mrs. Taylor who have had a recent fracture, have been stabilized with the placement of a splint, and who are at risk for skin breakdown from the pressure of the splint. I have experience in pressure ulcer prevention by ensuring that persons in splints are adequately checked for pressure areas so that the pressure areas are discovered before skin breakdown occurs. This has been a regular part of my practice for many years. I have many years of experience in giving orders to nurses and other personnel to examine splints applied to fractures in order to prevent the development of pressure sores. . . .
Additionally, as a rheumatologist I am familiar with the diseases of bones, fractures, and the complications from fractures, especially the development of pressure ulcers. I have followed many patients in the hospital and nursing home settings after they have had fractures. Based on my education, training, and experience, I know that one of the duties of the treaters is to ensure that the residents who have sustained injuries such as fractures do not develop pressure ulcers following their fractures. My experience includes making orders to prevent pressure ulcers in the care of persons such as Mrs. Taylor who are elderly, mostly bed-bound, and suffer from diabetes and/or peripheral vascular disease.
Dr. Rushing opined that "a physician caring for a patient with peripheral vascular disease and diabetes should order the unwrapping and inspection of the leg/foot on a daily basis to check for pressure areas." According to Dr. Rushing, Dr. Valle's failure to provide such orders constituted a breach of the standard of care. Dr. Rushing explained that because of Taylor's diabetes and peripheral vascular disease, "Dr. Valle should have written orders requiring the unwrapping of the bandage on the splints and the inspection of the foot, ankle and heel." Dr. Rushing further stated that Dr. Valle's generic discharge instructions were insufficient to address pressure ulcer prevention in a person such as Taylor. Dr. Rushing opined that in light of Taylor's pre-existing conditions, it was a breach of the standard of care for Dr. Valle to rely on the generic discharge instructions rather than writing specific orders addressing pressure ulcer prevention on Taylor's leg and foot.
Appellant cites Ehrlich v. Miles, 144 S.W.3d 620 (Tex. App.—Fort Worth 2004, pet. denied), in support of his contention that Dr. Rushing failed to demonstrate he is qualified to testify regarding the applicable standard of care. Citing Ehrlich, appellant contends that a physician qualified to testify regarding post-treatment complications is not necessarily qualified to testify regarding the treatment at the heart of the litigation. In Ehrlich, the plaintiff underwent surgical procedures including a face lift and cheek implants, performed by a plastic surgeon. Id. at 623. After the surgery, the cheek implants became infected and were ultimately removed. Id. Plaintiff filed suit after another doctor told her that the surgery and treatment of the infection had caused permanent nerve damage in her face. Id. Defendant's expert was board certified in neurology and forensic medicine but not in plastic surgery or surgery of any kind. Id. at 625. The court concluded that a physician who specializes in neurology "should be familiar with procedures, symptoms, and infections that affect the nerves." Id. The court held that defendant's expert was qualified to testify regarding the treatment of the infection that led to the nerve damage, as well as the consultation with the plaintiff regarding the risks and benefits of surgery. Id. However, the court held defendant's expert was not qualified to give an expert opinion regarding the surgical procedures performed. Id. at 626; see also Ly v. Austin, No. 03-05-00516-CV, 2007 WL 2010757, at *5 (Tex. App.—Austin July 13, 2007, no pet.) (mem. op.) (When the specific issue before the court was "the standard of care applicable to neurologists providing emergency care immediately following a stroke," an expert's report that only referenced the physician's experience caring for stroke patients in a rehabilitative setting was insufficient to establish she was qualified.)
Dr. Rushing does not render an opinion in his report regarding Dr. Valle's initial treatment and stabilization of the fracture or whether the splint/cast used by Dr. Valle was appropriate. Rather, Dr. Rushing's opinion involves the post-treatment orders and monitoring of Taylor's condition. Ehrlich supports the conclusion that Dr. Rushing is qualified to testify as an expert in this case. When a plaintiff's claim involves post-operative or post-treatment management of a patient's condition, a physician may be qualified to render an expert opinion regarding breach of the standard of care applicable to those claims, regardless of whether he is qualified to render an opinion regarding the performance of the initial procedure or treatment. See Ehrlich, 144 S.W.3d at 625-26; see also Hayes, 314 S.W.3d at 504-05 (holding that the physician was qualified to render an opinion regarding a bandage placed by emergency responders and left unadjusted for twenty-eight hours, which allegedly caused unnecessary leg amputation, even if he was not qualified to render an opinion on the emergency care); Lewis v. Funderburk, No. 10-05-00197-CV, 2008 WL 5473043 (Tex. App.—Waco Dec. 31, 2008, pets. denied) (mem. op.) (concluding that the physician was qualified to render an opinion regarding whether malunited left distal radius fracture was caused by defendant physician's failure to properly monitor patient's recovery though expert report did not indicate any specialized knowledge regarding the particular procedure employed to treat the wrist fracture); McKowen v. Ragston, 263 S.W.3d 157, 165-68 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding the physician was qualified to render an opinion regarding treatment of post-operative infection though not qualified to render an opinion regarding the initial surgical procedure performed). Additionally, a physician who is not from the same school of practice as the defendant physician may qualify as an expert, if he has practical knowledge of what is customarily done by other practitioners under similar circumstances. Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Dr. Rushing does not purport to offer an expert opinion regarding Dr. Valle's initial stabilization or treatment of Taylor's fracture. Therefore, appellant's argument that Dr. Rushing is not qualified to testify regarding the standard of care because he has not established that he is qualified in emergency medicine is without merit. See Hayes, 314 S.W.3d at 504-05.
Appellant further argues that Dr. Rushing's report is insufficient because it fails to provide a detailed explanation regarding Dr. Rushing's training or experience. Appellant cites Ibrahim v. Gilbride, No. 14-09-00938-CV, 2010 WL 5064430 (Tex. App.— Houston [14th Dist.] Dec. 9, 2010, no pet.) (mem. op.), in support of his contention that Dr. Rushing's statement regarding his training and experience is general and conclusory. In Ibrahim, defendant's expert, did not state that he was board certified in any area of medical practice. Ibrahim, 2010 WL 5064430, at *6. The court noted that in the paragraph summarizing his education and background, the doctor stated that "he completed an internship and a residency more than [40] years ago" but did not mention any specialty that was the subject of this training. Id. Further, the doctor stated that he had been in private practice since 1973, but again failed to describe any particular specialty. Id. The court concluded, "in short, we lack any information regarding the area of medicine he has practiced for the last [37] years." Id. The court further noted that the only mention of any "particular areas of medical practice during his career" was the doctor's reference to service in the army as a surgeon and Chief of Hospital Clinics in Japan. Id. However, he failed to provide any details regarding how this training and experience was relevant to the asserted claims. Id.
In addition to the details Dr. Rushing provided regarding relevant training and experience gained through his private practice, Dr. Rushing also provided details regarding his education and background. Dr. Rushing stated that he received his M.D. Degree from Baylor University College of Medicine in Houston and interned at Harris Hospital in Forth Worth, Texas. Rushing stated that he received specialty training in internal medicine and rheumatology. Dr. Rushing further stated that he was actively engaged in the practice of internal medicine, rheumatology, and geriatrics, and was on the attending staff of the Presbyterian Hospital of Dallas.
We find Ibrahim inapposite to the present case. Dr. Rushing's report establishes that he is board certified in areas relevant to the plaintiff's claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c). In addition, his report establishes that at the time he wrote the report he was actively participating in rendering medical care relevant to plaintiff's claim. See id.; see e.g. Mem'l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 759-62 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (upholding trial court's ruling that expert was qualified to opine that hospital's substandard care caused patient's decubitus ulcers where expert linked his specialties to the subject at issue by explaining, over the course of his career in internal medicine, occupational medicine, and infectious disease, he has treated many patients with decubitus ulcers and trained nurses to prevent this condition). We hold that the trial court did not abuse its discretion in determining that Dr. Rushing is qualified on the basis of his training and experience to render an opinion as an expert in this case. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a).
EXPERT OPINION ON CAUSATION
In his second issue, appellant contends that Dr. Rushing's opinion on causation is conclusory. Appellees, on the other hand, argue that Dr. Rushing's supplemental report sufficiently sets forth the causal relationship between the pressure sores and Taylor's death. Dr. Rushing's report provides the following as to causation:
If Mrs. Taylor's leg had been properly inspected on a daily basis the pressure areas would have been detected early on and offloading (relieving the pressure to an area) and appropriate pressure relief measures could have been ordered by a physician and instituted to prevent skin breakdown. It is noteworthy that, after the pressure sores were discovered and Mrs. Taylor was returned to the hospital, Dr. Westmoreland ordered the preparation of a new splint and off-loading to keep pressure off the wounds. If Dr. Valle had given proper orders for daily inspection for pressure areas, then Mrs. Taylor would not have developed the pressure ulcer on her heel nor would she have developed the ulcers on the dorsum of her foot and the sole of her foot. Pressure ulcers are much easier to prevent than they are to cure. In this case, once the pressure ulcers developed and were permitted to progress to an advanced stage, given her peripheral vascular disease, these ulcers were, based on reasonable medical probability, not going to heal. As shown in the hospital records, the wounds did not heal. As stated in the hospital records, Mrs. Taylor was not a candidate for the ORIF to repair the fracture while the wounds were present. Because the wounds would not heal and the surgical repair of the fracture could not be done, Mrs. Taylor was placed on hospice for comfort care only and died on July 18, less than a month after the fall. It is my opinion that the failures outlined here proximately caused Mrs. Taylor's pressure ulcers and ultimate death.
The care and treatment by [Dr. Valle] fell below the accepted standard of care when he failed to write appropriate orders to inspect Mrs. Taylor's foot on at least a daily basis. If he had done so, the pressure areas would have been discovered and Mrs. Taylor would not have developed necrotic ulcers
which went undetected for 5-6 days. . . . Had it not been for these failures, more likely than not, based on reasonable medical probability, Mrs. Taylor would have not developed the pressure ulcers that she did and would not have died when she did.
To constitute a good faith effort, the report must discuss causation with sufficient specificity to inform the defendant of the conduct 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 also Wright, 79 S.W.3d at 52. An expert cannot merely state his conclusions, rather he must explain the basis of the statements, and link his conclusions to the facts. Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.—Dallas 2010, no pet.) (citing Wright, 79 S.W.3d at 52).
Appellees cite Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787 (Tex. App.—Dallas 2009, no pet.), in support of their contention that Dr. Rushing's report provides a fair summary of the causal relationship between the breach of the standard of care and the resulting harm. Appellees point out that in Nexion, as in the present case, the expert report did not specifically state the cause of death. In Nexion, plaintiff sued two doctors, two nurses and the nursing home where the patient was a resident, for negligent care. Nexion, 294 S.W.3d at 790. The patient was admitted to the hospital with pneumonia and died there approximately 15 days later, at the age of 57. Id. The expert report stated that the patient was diagnosed with pneumonia on arrival in the emergency room and assessed as being in "acute respiratory failure requiring emergent intubation, septic shock, and disseminated intravascular coagulation and bibasilar aspiration pneumonia, 'among other things.'" Id. at 792. The patient was taken to intensive care. Id.
The expert's report detailed the care provided by the nursing home the month before the patient was hospitalized, including an initial diagnosis of bronchitis, a later diagnosis of pneumonia, and treatment provided in response to the patient's deteriorating condition. Id. The expert report stated, the patient's health condition "was deteriorated to a point beyond treatment and reversal and given his prior health complications, proved to be too much to recover from and he subsequently died." According to the report, "[g]iven proper treatment, [the patient] suffered from a treatable condition; however, without proper treatment, such condition can lead to further complications and death, which was the end result for [the patient] in this case." Id. According to the report, the nurses and doctors in question "failed to order the necessary testing, x-rays, follow-up x-rays, oxygenation monitoring, and a proper course of antibiotic therapy," by which "[the patient] could have been afforded a better chance of recovery." Id. at 792-93. Though the cause of death is not specifically stated, the "treatable condition" described in the report is the patient's respiratory condition which the report explains ultimately progressed to pneumonia. See id. The report detailed the nurses' purported deviations from the applicable standards of care and stated that if these standards had been followed, the patient's death would not have occurred. Id. at 793. The court held the report adequately articulated a causal relationship between defendants' breaches of the standards of care and the patient's death. Id. at 800.
As set forth above, Dr. Rushing addresses the element of causation in his report. However, unlike the report in Nexion, Dr. Rushing's report does not address whether the condition at issue here (pressure ulcers) can lead to death, under what circumstances such condition can lead to death, or how the ankle fracture or pressure ulcers caused or contributed to Taylor's death in this case. Appellee's reliance on Tovar v. Methodist Healthcare Sys. of San Antonio Ltd., L.L.P., 185 S.W.3d 65 (Tex. App.—San Antonio 2005, pet. denied) is likewise misplaced. In Tovar, the expert report explained that the alleged breaches in the applicable standards of care "caused a substantial delay in the appropriate diagnosis and initiation of treatment for the cerebral hemorrhage sustained," a condition the report stated, required "prompt cessation of the Coumadin, and immediate brain CT scan, immediate institution of fresh frozen plasma . . . on a stat basis." Tovar, 185 S.W.3d at 69. According to the report,
[h]ad the appropriate diagnosis been made expeditiously . . . the hemorrhage would have been detected at a much earlier stage with the possibility of only medical treatment required as opposed to the desperate and unsuccessful surgery which transpired at 3:45 a.m. . . . [and] the dramatic neurological deterioration and death of Ms. Rodriguez would have been averted."Id. Following this surgery, the patient remained on life-support until her death. Id. at 67. In Nexion and Tovar, the expert reports adequately linked the defendants' acts and omissions to the patient's deaths.
We conclude Dr. Rushing adequately links the breach of the standard of care to the occurrence of Taylor's pressure ulcers. However, Dr. Rushing fails to explain how the pressure ulcers, or the inability to perform orthopedic surgery, allegedly caused or contributed to Taylor's death. Because Dr. Rushing's report fails to connect the occurrence of Taylor's pressure ulcers to her death, his report is insufficient on causation with regard to plaintiff's wrongful death claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). We sustain issue two as to plaintiff's wrongful death claim.
EXPERT OPINION ON STANDARD OF CARE
In issue three, appellant argues that Dr. Rushing's opinion regarding the standard of care is vague and inherently contradictory. Specifically, appellant argues that inspection of Taylor's heel and ankle as described by Dr. Rushing "seemed impossible." Appellant contends that "in addition to the posterior splint, there was also a stirrup splint, which was not addressed by Dr. Rushing at all other than to confirm that he was aware that it had been placed on the patient." According to appellant, both splints "are applied over padding applied to the entire leg, ankle, and foot, i.e., with no exposed skin." Appellant asserts that the report is vague because it fails to "explain how to remove the bandage or to address the location, size, and permanence of the posterior splint that was covering the area" identified as needing daily inspection.
In determining whether the expert report adequately addresses the standard of care the trial court is limited to the four corners of the report. Wright, 79 S.W.3d at 53.
Therefore, appellant's explanation of the placement of the splints is of no consequence. In his report, Dr. Rushing sets forth the applicable standard of care as follows:
After providing emergency care consisting of stabilizing a fracture with splints, a physician caring for a patient with peripheral vascular disease and diabetes should order the unwrapping and inspection of the leg/foot on a daily basis to check for pressure areas. This is the standard of care. Dr. Valle should have ordered this for Mrs. Taylor. Not giving such orders was a breach of the standard of care. . . .Dr. Rushing further stated:
Dr. Valle should have written orders requiring the unwrapping of the bandage on the splints and the inspection of the foot, ankle and heel. This could easily have been done without any substantial risk of displacement of her fracture. This is what should have been done.
Pressure areas can be detected by examination of the skin in the area where the splint is applied. This requires the removal of the bandage or other material covering the splints so that the skin can be seen. If pressure is being exerted on the skin by the splints, this can be seen, so that pressure relief measures can be taken. If Dr. Valle had given orders for inspection of Mrs. Taylor's skin in the area of the splints on a daily basis, the pressure areas would have been seen. The nursing home staff caring for Mrs. Taylor could have then informed a physician of the pressure areas so that orders would have been given to provide pressure relief while protecting the fracture.
. . . After stabilizing the patient with the placement of splints, Dr. Valle should have written orders for daily inspection of the skin condition of the foot that would ensure that Mrs. Taylor, who suffered from peripheral vascular disease, would not have pressure areas that would go undetected and develop into pressure sores. This is the standard of care . . . .
If Mrs. Taylor's leg had been properly inspected on a daily basis the pressure areas would have been detected early on and offloading (relieving the pressure to an area) and appropriate pressure relief measures could have been ordered by a physician and instituted to prevent skin breakdown.
The statute merely requires a "fair summary of the expert's opinion . . . regarding applicable standards of care . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). An expert report need not marshal all the plaintiff's proof, but must inform the defendant of the specific conduct on which plaintiff's claims are based with enough specificity to allow the trial court to determine that the claims are not frivolous. See Palacios, 46 S.W.3d at 878-79. We conclude that Dr. Rushing's summary regarding the standard of care meets the standard set forth in Palacios. See id. We overrule appellant's third issue.
We overrule issues one and three. We sustain issue two, in part. Having determined that the trial court abused its discretion in finding the expert report sufficient as to causation with respect to the wrongful death claim, we remand the cause to the trial court to consider whether to grant a thirty-day extension to cure the report's deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); see also HealthSouth of Houston, Inc. v. Parks, 329 S.W.3d 885, 890-91 (Tex. App.—Beaumont 2010, pet. denied).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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CHARLES KREGER
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.