Opinion
No. 02-22-00319-CV
04-20-2023
COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY, L.P. d/b/a Medical City Arlington and HCA Inc., Appellants v. Jared BUSH, Jr., Individually and as Representative of the Estate of Ireille Williams-Bush, Deceased, and Next Friend of J.B. and L.B., Minors, Appellee
ATTORNEYS FOR APPELLANTS: MICHELLE E. ROBBERSON, DIANA L. FAUST, COOPER & SCULLY, P.C., DALLAS, TEXAS, JON W. STEPHENSON, C. TIMOTHY, REYNOLDS, JAMES M. MURRELL, STEED DUNNILL REYNOLDS BAILEY, STEPHENSON LLP, DALLAS, TEXAS, GEORGE A. SHANNON, JR., CARLOS A. MATTIOLI, MEGAN D. RICHARDSON, SHANNON, MARTIN, FINKELSTEIN, ALVARADO & DUNNE, P.C., HOUSTON, TEXAS. ATTORNEYS FOR APPELLEE: KAY L. VAN WEY, BRADY D. WILLIAMS, VAN WEY, METZLER & WILLIAMS, PLLC, DALLAS, TEXAS, MATTHEW J. KITA, DALLAS, TEXAS.
On Appeal from the 17th District Court, Tarrant County, Texas, Trial Court No. 017-312807-19, HON. MELODY WILKINSON, Judge
ATTORNEYS FOR APPELLANTS: MICHELLE E. ROBBERSON, DIANA L. FAUST, COOPER & SCULLY, P.C., DALLAS, TEXAS, JON W. STEPHENSON, C. TIMOTHY, REYNOLDS, JAMES M. MURRELL, STEED DUNNILL REYNOLDS BAILEY, STEPHENSON LLP, DALLAS, TEXAS, GEORGE A. SHANNON, JR., CARLOS A. MATTIOLI, MEGAN D. RICHARDSON, SHANNON, MARTIN, FINKELSTEIN, ALVARADO & DUNNE, P.C., HOUSTON, TEXAS.
ATTORNEYS FOR APPELLEE: KAY L. VAN WEY, BRADY D. WILLIAMS, VAN WEY, METZLER & WILLIAMS, PLLC, DALLAS, TEXAS, MATTHEW J. KITA, DALLAS, TEXAS.
Before Sudderth, C.J.; Womack and Wallach, JJ.
MEMORANDUM OPINION
Memorandum Opinion by Justice Wallach
This is the second interlocutory appeal between these parties—Appellants Columbia Medical Center of Arlington Subsidiary, L.P. d/b/a Medical City Arlington and HCA Inc. and Appellee Jared Bush, Jr., Individually and as Representative of The Estate of Ireille Williams-Bush, Deceased, and Next Friend of J.B. and L.B., Minors (Appellees)—in this health care liability claim. In the first appeal, we addressed the adequacy of Dr. Cam Patterson’s first report regarding (a) his qualifications to render opinions on the Appellants’ standards of care and causation, (b) what their standard of care was, (c) breach of that standard of care, and (d) causation. We found that the first report was deficient in all elements because it was conclusory, and we remanded the case to the trial court to determine if a thirty-day extension was warranted to allow Appellees an opportunity to cure the deficiencies. Columbia Med. Ctr. of Arlington Subsidiary, L.P. v. J.B. (JB 1), No. 02-20-00190-CV, 2021 WL 5132535, at *1, *10 (Tex. App.—Fort Worth Nov. 4, 2021, no pet.). The trial court granted a thirty-day extension to cure. Appellees then served an amended report from Dr. Patterson. Appellants filed their objections to the amended report (including a request to dismiss), which the trial court overruled. This interlocutory appeal ensued. Because Dr. Patterson’s amended report failed to cure the deficiencies we outlined in JB 1 regarding causation, we will hold that the trial court abused its discretion in overruling the Appellants’ objections to the amended report regarding causation, reverse the trial court order overruling the objections, and remand the case to the trial court with instructions to dismiss the Appellees’ claims against Appellants with prejudice and to rule on Appellants’ request for attorney’s fees. See Columbia Valley Healthcare Sys. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017); Pacheco-Serrant v. Munoz, 555 S.W.3d 782, 792 (Tex. App.—El Paso 2018, no pet.) (holding that if deficiencies found by a court in an expert report are not cured after one thirty-day extension, the plaintiff's claim must be dismissed with prejudice); Barber v. Mercer, 303 S.W.3d 786, 793 n.3 (Tex. App.—Fort Worth 2009, no pet.) (recognizing that plaintiff has only one opportunity to amend a deficient expert report); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (providing that the court may grant just one 30-day extension to the claimant to cure a deficient expert report).
Appellant Columbia filed its objections. HCA joined in those objections without admitting that it owned or operated the hospital; that it employed, controlled, or otherwise held out any health care provider as its agent; or that it was involved in the decedent’s care. Because Appellants' allegations against HCA were identical to the allegations against Columbia, HCA joined in the objections to the report. The report never mentions HCA.
I. Standard of Review
[1–6] We review a trial court’s ruling on the sufficiency of a Chapter 74 expert report for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Jackson v. Kindred Hosps. Ltd. P’ship, 565 S.W.3d 75, 80 (Tex. App.—Fort Worth 2018, pet. denied). Under this standard, we defer to the trial court’s factual determinations but review questions of law de novo. Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 12 (Tex. App.—Tyler 2002, pet. denied); Knie v. Piskun, 23 S.W.3d 455, 461 (Tex. App.—Amarillo 2000, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles, or if it renders an arbitrary and unreasonable decision lacking support in the facts or circumstances of the case. Jackson, 565 S.W.3d at 80–81. Whether an expert witness’s testimony is conclusory, however, is a question of law. Qui Phuoc Ho v. MacArthur Ranch, LLC, 395 S.W.3d 325, 332 (Tex. App.—Dallas 2013, pet. denied). A trial court has no discretion in determining what the law is or in applying the law to the facts. In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008) (orig. proceeding). A trial court’s failure to analyze or apply the law correctly to the facts and circumstances constitutes an abuse of discretion. See Baty v. Futrell, 543 S.W.3d 689, 698 (Tex. 2018).
We will not restate the law governing the sufficiency of expert reports in health care liability claims because it was well summarized in our first opinion. JB 1, 2021 WL 5132535, at *3.
II. Analysis
a. Preservation of Error
[7] Citing no authority other than a passing reference to Rule of Appellate Procedure 33.1(a)(1)(A), Appellees contend that Appellants waived all objections that they did not specifically present to the trial court. See Tex. R. App. P. 33.1. They identify the following contentions raised in Appellants’ brief about Dr. Patterson’s report that they contend were not preserved for our review: that Dr. Patterson
• did not add any explanation of what the nursing staff or other hospital staff could have done within the scope of their practice (as opposed to the practice of medicine) to implement the appropriate policies and protocols;
• never discussed chain of command as a method by which the nurses and staff could have, or should have, enforced the appropriate policies and procedures that he states should have been in place;
• never explained why or when the nurses or other hospital staff would go about activating or effectuating the Triple Rule Out protocol or how their failure to do those specific actions was a proximate cause of the patient’s death;
See JB 1, 2021 WL 5132535, at *2.
• did not opine or explain that, if acting under a hospital’s administrative policy or procedure, a hospital nurse or staff member may have ordered particular imaging or lab work and may prevent the discharge of patients without engaging in the practice of medicine;
• did not opine that ordering particular imaging or lab work or preventing the discharge of patients are not medical functions if not performed by a nurse or staff member while acting under or enforcing a Triple Rule Out protocol or similar policy or procedure;
• did not add any explanation or opinions identifying who at the hospital could have overridden or second-guessed the medical decisions of the patient’s treating physicians or how any hospital employee or administrator could have done so without improperly engaging in the corporate practice of medicine;
• never explained how under systems-based policies and procedures, nurses or hospital staff lawfully can perform acts outside the scope of their practices, such as ordering lab work or imaging;
• did not specify who had the obligation to make the order sets for imaging and lab work;
• did not explain how nurses and hospital staff are permitted to order lab work and imaging without committing the unlawful corporate practice of medicine;
• did not explain how the nurses and hospital staff could have overridden or second-guessed that medical decision;
• did not state "when you have systems-based protocols these don’t have to be initiated by physicians";
• did not establish who had the obligation or ability (within their scope of practice) to order tests or imaging studies;
• did not add any explanations of how nurses or hospital staff can take actions under a systems-based policy that they could not otherwise take within the scope of their license/practice;
• does not explain the role that the hospital or the nurses have in the process of activating the Triple Rule Out protocol;
• did not add any factual explanation of how nurses or hospital staff can order tests or imaging studies, or analyze those, or make diagnoses from those, within the scope of their licenses and without engaging in the practice of medicine;
• did not identify any other particular provision of what "appropriate" systems-based policies, protocols, and procedures for acute cardiac patients should include, as far as nurse or hospital staff actions;
• did not explain what an "appropriate" policy or clinical pathway should contain, what actions should be included, or who should take the actions;
• did not explain a "clinical pathway";
• never identified what communications or other actions the policy or pathway would have required of the nurses or other staff to attempt to persuade a physician to "rule out" pulmonary embolism as a cause of the patient’s condition before discharging her;
• did not explain how nurses or other hospital staff would know or be expected to know whether a certain set of symptoms indicated a risk for the patient;
• did not explain how or why nurses or hospital staff would be lawfully permitted to take those actions under "appropriate" policies or clinical pathways;
• did not explain what steps or actions the "discharge planning guidelines and protocols" should have required of the hospital, nurses, or other staff, as far as preventing a patient’s discharge; and
• did not explain whether or how the hospital or nurses had any say in the discharge decision, or whether or how the hospital or nurses had any right or means to persuade the physician not to order discharge or to override that decision.
Because these specific positions were allegedly not addressed to the trial court, Appellees contend that Appellants waived their right to have us consider them in this appeal. Assuming that a mere reference to Rule 33.1(a)(1)(A) is sufficient to comply with the briefing requirements of Rule of Appellate Procedure 38.1(i) (which requires that all briefs must contain "appropriate citations to authorities"), which is questionable, we disagree that the contentions in question were waived.
[8] In JB 1, we held Dr. Patterson’s first report to be deficient on the issues of standard of care, breach, and causation, giving detailed explanations for each element. JB 1, 2021 WL 5132535, at *8–10. In Appellants’ objections to Dr. Patterson’s amended expert report, Appellants objected because "Dr. Patterson’s amended report … still does not state an adequate opinion on standard of care/breach." Appellants then made several arguments in support of this objection. Appellants also objected because "Dr. Patterson’s amended report is also insufficient on the causation element and fails to cure the defects found by the Court of Appeals." Appellants then made several arguments in support of this objection. These objections were sufficient to preserve the issue of whether Dr. Patterson’s amended report cured the defects found by this court in JB 1. Giron v. Baylor Univ. Med. Ctr., No. 05-09-00825-CV, 2011 WL 149981, at *2 (Tex. App.—Dallas Jan. 19, 2011, pet. denied) (mem. op.); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex. App.—Dallas 2007, pet. denied).
We reject Appellees’ argument that Appellants’ objections identified above were not preserved, assuming they were not specifically addressed to the trial court, because they are and simply were additional arguments in support of the actual issue on appeal that was preserved, i.e., whether the amended report was sufficient in each respect to cure the defects identified by this court in JB 1. Additional argu- merits that support issues properly preserved in the trial court are permissible. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513, n.5 (Tex. 2017); Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014).
b. Inadequacy of Amended Report
[9–11] The background giving rise to this appeal is described in JB 1, in which we held that Dr. Patterson’s first report was conclusory, and therefor deficient, in several respects. JB 1, 2021 WL 5132535, at *8–10. Our holdings that Dr. Patterson’s report was conclusory in these respects were legal questions. See Qui Phuoc Ho, 395 S.W.3d at 332. Legal questions determined in a first appeal of a motion to dismiss in a health care liability claim are the law of the case on those questions in a subsequent appeal and should not be revisited in the second appeal. Shiloh Treatment Ctr., Inc. v. Ward, 608 S.W.3d 337, 341 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). Hence, we need only review Dr. Patterson’s first report, compare our holdings in JB 1 to his second report, and determine if the trial court abused its discretion in holding that the deficiencies we determined to exist had been cured. In doing so, we appropriately take judicial notice of Dr. Patterson’s first report, which was part of the clerk’s record in JB 1. See In re Smith, No. 05-19-00426-CV, 2019 WL 2150919, at *2 (Tex. App.—Dallas May 17, 2019, orig. proceeding) (mem. op.); Pollitt v. Comput. Comforts, Inc., No. 01-17-00067-CV, 2018 WL 4780800, at *1 (Tex. App.—Houston [1st Dist.] Oct. 4, 2018, no pet.) (mem. op.); Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.—Beaumont 2004, pet. denied).
Appellants -do not challenge the amended report regarding qualifications. They do challenge the amended report because it did not cure the deficiencies regarding standards of care, breach, and causation. Because we hold that the amended report did not cure the deficiencies from the first report regarding causation, we sustain Appellants’ second point regarding causation and hold that the trial court abused its discretion in overruling Appellants’ objection as to causation, and motion to dismiss. Because this holding is dispositive of the appeal, we need not reach Appellants’ other points.
In JB 1, we outlined Dr. Patterson’s complaints about the Appellants’ care of the decedent, and we now reference that opinion for the details. In summary, Dr. Patterson’s complaints involved the lack of hospital policies, procedures, and protocols, referred to as a Triple Rule Out protocol, for diagnostic tests, proper diagnoses, and conditions for discharge for patients like the decedent. JB 1, 2021 WL 5132535, at *2. The essence of his opinions was that if the hospital had enacted proper policies and protocols, and the staff been properly trained on them, the decedent would have been timely diagnosed and treated for pulmonary embolism, and she would not have died. Id. at *2, *9. We held that Dr. Patterson’s first report was conclusory on causation because it "d[id] not explain how and why Hospital policies, procedures, and protocols—which can be implemented only through its nurses and staff—could have changed what the physician did in ordering tests, making his diagnosis, and discharging [the decedent] when she was in stable cardiac condition." Id. at *9. Particularly, we cited to the Zamarripa case for the proposition that an expert’s failure to explain how a hospital could have countermanded a doctor’s transfer orders rendered the expert’s opinion mere ipse dixit and insufficient. Id.; Zamarripa, 526 S.W.3d at 461. We noted that a hospital cannot practice medicine and cannot be held liable for acts or omissions that are medical functions. JB 1, 2021 WL 5132535, at *8. Particularly, we held that
[i]f such things as establishing administrative polices on ordering particular tests and discharging patients aren’t medical functions, an expert purporting to pin direct rather than vicarious blame on a hospital for a policy or protocol failure should reasonably be expected to explain how his opinions do not implicate the practice of medicine, even at this preliminary stage.
Id.
Dr. Patterson’s amended report regarding causation is essentially his first report restated with more conclusions added. He again complains of lack of hospital policies, procedures, and protocols for patients with presentations like the decedent’s, which policies, procedures, and protocols would have required compliance by not only nursing and other hospital staff but also by the medical staff, a new addition. Dr. Patterson concluded that in the decedent’s case, "appropriate hospital policies, protocols[,] and procedures would have required specific steps be undertaken, such as order sets for imaging and lab work, to ensure that a massive pulmonary embolism was ruled out as a life-threatening etiology of her symptoms." According to Dr. Patterson, had these policies, procedures, and protocols been in effect, the decedent would have received the appropriate diagnostic tests for pulmonary embolism, which would have resulted in a proper diagnosis of pulmonary embolism, proper treatment, and prevention of her death.
However, the amended report fails to cure the previously identified defects. The facts identified in Dr. Patterson’s report establish that the decedent had physicians caring for her at all times during her hospitalization. These physicians decided what tests to order, what diagnoses to make, what treatment to render, and when she should be discharged from the hospital and followed up. Dr. Patterson’s report still fails to explain how the mere presence of standard order sets, policies, procedures, or protocols would have overridden the actual medical decisions, diagnoses, and treatment orders of the doctors who were present and deciding how she should be managed. Zamarripa, 526 S.W.3d at 461. First, Dr. Patterson’s report is conclusory that the policies, procedures, or protocols would be binding on the medical staff. Clearly, he is still concluding that the hospital should have policies, procedures, or protocols that dictate medical treatment. Yet, he does not describe how the hospital could enact and enforce such rules on medical decision making. This renders his amended report insufficient. Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 23 (Tex. App.—Houston [14th Dist.] 2017, pet denied) ("An expert report prepared pursuant to the Act may not have an ‘analytical gap’ or a ‘missing link’ between the expert’s allegation that the healthcare provider defendant breached the standard of care and the plaintiff's injuries."); see also Kelly v. Ford, 543 S.W.3d 383, 390 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
Dr. Patterson’s report suffers from other analytical gaps in causation. By way of example, if a doctor evaluates a patient and does not implement the hospital’s protocol, what happens? Does a nurse or other hospital employee then have the authority to order the tests? If not, how does the protocol get implemented? Does it require invoking a chain of command within the hospital administration, medical staff, or otherwise? If so, who all is involved and how long does it take? While the decisionmaking is being reviewed, who handles the patient’s medical care? Although Dr. Patterson’s opinion is simplistic on its face, it fails to adequately explain the connection between the alleged breach of the standard of care, i.e., lack of policies, procedures, and protocols and how those poli- cies, procedures, or protocols would have changed the patient’s outcome had they been in place. Zamarripa, 526 S.W.3d at 461; Hickory Trail Hosp., L.P. v. Webb, No. 05-16-00663-CV, 2017 WL 677828, at *7 (Tex. App.—Dallas Feb. 21, 2017, no pet.) (mem. op.); Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 750 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
[12] Our review is limited to the four corners of the expert report. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex. App.—Fort Worth 2009, no pet.) (op. on remand). We may not fill in gaps in an expert report by drawing inferences or speculating what the expert likely meant or intended. Hollingsworth v. Springs, 353 S.W.3d 506, 513 (Tex. App.—Dallas 2011, no pet.); Collini, 280 S.W.3d at 462. We hold that Dr. Patterson’s conclusory amended report leaves too many analytical gaps in explaining how the allegedly proper policies, procedures, and protocols would have been implemented, in a timely fashion, to save the decedent’s life. Tenet Hosps. v. Love, 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.). We sustain Appellants’ second point on causation.
Appellees cite United Regional Health Care System v. Hardy, No. 02-11-00395-CV, 2012 WL 1624153, at *5 (Tex. App.—Fort Worth May 10, 2012, no pet.) (mem. op.) for the proposition that Dr. Patterson, as opposed to this court, could infer that if proper policies had been in place, they would have been followed and the proper diagnosis and treatment would have been undertaken and the result changed. Appellees also cite Hancock v. Rosse, No. 02-19-00126-CV, 2020 WL 479589, at *6 (Tex. App.—Fort Worth Jan. 30, 2020, pet. denied) (mem. op.) for the proposition that causation may be shown by an expert’s explaining a chain of events that starts with a doctor’s negligence and ends with a patient's injury. While we do not disagree with these propositions generally, we also have noted that an expert report is insufficient when it contains only a series of repetitious, conclusory statements regarding causation. Collini, 280 S.W.3d at 467. See also Christus Spohn Health Sys. Corp. v. Trammell, No. 13-09-199-CV, 2009 WL 2462899, at * 3 (Tex. App.—Corpus Christi-Edinburgh Aug. 13, 2009, no pet.) (mem. op.). Further, causation opinions by experts that are inferences stacked upon inferences are legally insufficient for purposes of establishing causation in an expert report. Id. at *3. In light of our holding in JB 1 regarding the conclusory nature of Dr. Patterson's causation opinions, and the applicability of the law of the case to that holding, we believe that the principles set forth in Collini and Trammell are more applicable to this factual presentation.
III. Conclusion
Having sustained Appellants’ second point, we reverse the order of the trial court and remand the case with instructions to dismiss Appellees' claims against Appellants with prejudice and to rule on Appellants’ request for attorney’s fees under Texas Civil Practice and Remedies Code Section 74.351(b)(1) and (2). Kelly, 543 S.W.3d at 397.