Summary
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.
Summary of this case from Valdez v. CisnerosOpinion
04-22-00176-CV
08-24-2022
Adonis Zuniga GOLDWATER, M.D., Appellant v. Sylvia G. VALDEZ, Individually and as Administrator of the Estate of Josefina Leonor Trevino Gonzalez, Appellee
From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2020CVB001938D3 Honorable Sandee Bryan Marion, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
Appellant Adonis Zuniga Goldwater, M.D. appeals the trial court's order denying his motion to dismiss the underlying health care liability claim filed by appellee Sylvia G. Valdez, individually and as administrator of the estate of Josefina Leonor Trevino Gonzalez. In this interlocutory appeal, Goldwater argues the trial court abused its discretion in failing to dismiss the lawsuit because the claimant's expert report on causation was conclusory and speculative. We affirm the trial court's order.
Background
Josefina Leonor Trevino Gonzalez was a patient at Laredo Nursing & Rehabilitation Center ("the Center"). On September 28, 2018, Gonzalez was readmitted to the Center following hospitalization for acute aspiration pneumonia, and on November 5, 2018, Gonzalez fell on her head at the Center. On November 8, 2019, Gonzalez's treating physician, Adonis Zuniga Goldwater, M.D., gave orders to send Gonzalez to Laredo Medical Center Emergency Department for further evaluation because Gonzalez was experiencing a nosebleed. Gonzalez subsequently returned to the Center and on November 17, 2019, Gonzalez was found unresponsive and pronounced dead.
There is conflicting evidence as to how Gonzalez's fall occurred.
In November 2020, Sylvia Valdez, individually and as administrator of the estate of Gonzalez, sued Goldwater, two directors of nursing, and Touchstone Communities for alleged medical malpractice for care and treatment rendered to Gonzalez in November 2019 at the Center.Valdez alleged that Goldwater failed to properly care for Gonzalez and failed to send her to the emergency room to evaluate her head injury in a timely manner, causing Gonzalez's death. Valdez served Goldwater with an expert report supporting her allegations authored by Timothy Robert Klein, M.D. and Leanne Powell, R.N. Goldwater filed objections alleging that Klein's expert report was inadequate because it failed to adequately explain the standard of care and the causal link between the specific care rendered by Goldwater and Gonzalez's death. Goldwater also filed a motion to dismiss Valdez's lawsuit.
The directors of nursing and Touchstone Communities are not parties to this appeal.
The trial court sustained Goldwater's objections to Klein's expert report and granted Valdez an extension of time to file an amended report. Valdez served Goldwater with an amended expert report authored by Klein. Goldwater again objected to the amended expert report, and moved for dismissal on the grounds that the report failed to explain a causal link between any alleged breach of the standard of care and Gonzalez's death. After a hearing, the trial court denied Goldwater's motion to dismiss and this appeal ensued.
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. EMTC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam).
Within 120 days of filing suit, 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. § 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. § 74.351(l).
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. Sometimes, when read in isolation, the causation section of an expert report may appear to be conclusory. Benavides v. Garcia, 278 S.W.3d 794, 799 (Tex. App.-San Antonio 2009, pet. denied). But courts are entitled to read the causation section of an expert report in the context of the entire report. Philipp v. McCreedy, No. 04-08-00922-CV, 2009 WL 2342919, at *7 (Tex. App.-San Antonio July 29, 2009, no pet.).
Analysis
In both the trial court and this court, Goldwater argues the amended expert report prepared by Klein is inadequate because it fails to provide how proximate cause is going to be proved against Goldwater, provides no factual explanation to support the belief that Gonzalez would have lived had she been sent to the hospital after her fall, and contains speculative and conclusory opinions as to Gonzalez's cause of death.
After setting out his qualifications, Klein identifies which of Goldwater's actions he believes caused Gonzalez's fall, which he later links to her death. First, Klein contends that the lack of intervention by Goldwater and the nurses for fall prevention caused Gonzalez to fall and suffer a severe head trauma and internal bleeding. Klein supports this conclusion by referring to the following actions/inactions on Goldwater's part that caused Gonzalez to fall:
• When Gonzalez was readmitted to the Center on September 28, 2018, "following acute hospitalization for aspiration pneumonia[,]" her underlying medical problems, including "chronic anticoagulation" were noted and Gonzalez was "on long-term anticoagulants (Xarelto)."
• Gonzalez's "care plan indicated that she needed excessive assistance requiring two people and physical assist for bed mobility, transfer and toileting. For transfers, she required a mechanical lift with two person assist." Klein relies on the expert report by Valdez's other expert, Powell, and provides the "fall protections and preventative measures and post fall interventions that were owed to [Gonzalez] from the onset of her readmission, and they included: fall risk assessment completion, within 24 hours of admission, quarterly, with any significant change in condition."
• On November 4, 2018, Gonzalez "had purple discoloration to her left hand on the knuckles of the first digit, and mild swelling." It was "noted that [Gonzalez] was on blood thinners (Xarelto) and tended to make a fist." Klein contends that Goldwater was notified of this, but failed to give any orders.
Klein then discusses the fall that Gonzalez suffered on November 5, 2018 and makes the following conclusion:
It is my opinion that in all likely medical probability, had the director of nurses, . . . and Dr. Goldwater implemented the fall interventions described in Nurse Powell's report, and followed their own guidelines for caring for [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 [and others] . . . failed to develop and implement an initial baseline plan of care to adequately address [Gonzalez]'s risk of falls and prevent [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 CNA Evelyn. Any plan for fall prevention should also have incorporated a consideration of the fact that [Gonzalez] was taking blood thinners, which vastly increases the risk of serious damage and possible death to an elderly fall victim.
In sum, [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 risks of suffering uncontrolled bleeding afterward caused by blood thinners. As a result of . . . Dr. Goldwater[ and others'] failures to create and adhere to a plan for fall protection and adequate staff members to care for [Gonzalez], set out in Nurse Powell's report, [Gonzalez] did in fact fall and suffer a severe head injury. This led to the heightened risk of further injury and death due to the inactions of . . . Dr. Goldwater [and others] . . . subsequent to her fall.
After specifying which of Goldwater's actions/inactions he believed caused Gonzalez to fall, Klein then argues why he believes Goldwater's failure to take action subsequent to Gonzalez's fall caused her death. Klein argues that Dr. Goldwater's "failure to adequately respond by immediately diagnosing an anti-coagulant bleeding event and treating Gonzalez's severe head trauma caused her death." Klein contends that the following actions/inactions by Goldwater after Gonzalez's fall caused her death:
• "After the fall it was immediately noted that [Gonzalez] had a hematoma to the left side of her forehead and on the left side of the occipital area of her head. Dr. Goldwater was informed but gave no orders. This violated the applicable standard of care; he should have immediately ordered for [Gonzalez] to be sent to the emergency room for evaluation. During treatment with Xarelto, patients are likely to bruise more easily, are at a higher risk of bleeding, and it takes longer for bleeding to stop."
• "After [Gonzalez] was found to have fallen, . . . Dr. Goldwater [and others] should have immediately stopped the Xarelto prescription and should have immediately sent her to the hospital for an x-ray, CT scan and/or MRI to determine the extent of the injuries and the obvious internal bleeding as indicated by the hematomas, and for treatment of her injuries. Instead, they did nothing."
• "The following day, November 6, 2018, Dr. Zuniga Goldwater was notified that [Gonzalez] had purple discoloration to the left forehead that was expanding to her left eye with redness and swollen eyelids, and that the hematoma to the left occipital area of her head was still present. He still made no orders at this time, with the records noting his reasoning that there was 'no change in mental status,' thus he concluded no x-ray or CT scan was required or ordered at that time. This was a continuing breach of the applicable standards of care because he ignored completely the significant risk that [Gonzalez] was experiencing an [Adverse Drug Event] secondary to the fall of excessive internal bleeding."
• Klein then provided how Goldwater gave orders to send Gonzalez to Laredo Medical Emergency Department for a nosebleed she suffered on November 8, 2019. "After being transported there[, Gonzalez] was noted to be 'stuporous' and the CT [scan] completed at the hospital noted 'an acute subdural hematoma over the left convexity measuring up to 2.1 cm in thickness.' A second CT [scan] noted 'acute intracranial hemorrhage seen.'" Klein described what an "acute subdural hematoma" was and provided that acute subdural hematomas "generally require rapid surgical treatment." However, Klein stated that "[n]onetheless, after [Gonzalez] was returned to [the Center at] about 6:30 p.m. and Dr. Goldwater was made aware of the CT scan results and the fact that her [acute subdural hematoma] was 2.1 centimeters thick, he did nothing but discontinue her Xarelto prescription. This was a continuing breach of the applicable standards of care because Dr. Goldwater waited for three days after her fall until she was bleeding from her nose to send her to the hospital, and he waited until her [acute subdural hematoma] diagnosis to stop the Xarelto prescription. If he had sent her to the hospital and stopped Xarelto the day she fell, [Gonzalez] would [have] in all reasonable medical probability survived the fall."
• "On November 10, 2018, [Gonzalez] was noted to continue to be in a stuporous condition, and . . . continued to be unresponsive to verbal stimuli." Klein noted how "Goldwater . . . took no action to remedy the traumatic acute [subdural hematoma] or place her in the care of a medical provider who could treat it, despite the dire circumstances in which [Gonzalez] was existing." Klein provided that these same notes describing Gonzalez as "stuporous, in a chronic vegetative state, and unresponsive to verbal stimuli were made every following day until November 17, 2018 when . . . [Gonzalez] was found unresponsive and pronounced dead at 12:10."
Klein then makes the following conclusion:
[Gonzalez]'s death was also caused by Dr. Goldwater's and Touchstone's multiple violations of the applicable standards of care for an elderly and compromised patient on anticoagulants at the risk of an [Adverse Drug Event] who had fallen on her head and suffered large hematomas. They failed to immediately send her to the
hospital for evaluation of the head injuries until three days later when blood was coming from her nose, and failed to immediately halt the Xarelto prescription. They again breached the applicable standard of care after they learned of the results of the CT scan showing that her blood clots were very large requiring a craniotomy and removal of the clots to keep her from dying. Instead, they did nothing, but readmitted her to [the Center] and merely halted the Xarelto treatment. It was essential that they should have promptly consulted with a neurosurgeon regarding the status for assistance. This, they failed to do. All of these failures on Dr. Goldwater's and Touchstone's part, in all reasonable medical probability caused her untimely and tragic death.
We hold that the trial court did not abuse its discretion by denying Goldwater's motion to dismiss the suit because Klein's expert report represents a good faith effort to comply with the requirements in Section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6); Thomas v. Desrochers, No. 04-09-00487-CV, 2009 WL 4981323, at *3 (Tex. App.-San Antonio Dec. 23, 2009, pet. denied) (mem. op.). Klein explained how, in his opinion, Goldwater's care fell below the standard of care because Goldwater failed to intervene and implement fall prevention for Gonzalez when she was readmitted to the Center, and then failed to refer her to a neurosurgeon after her fall and after Goldwater received the results of her CT scan. As shown above, Klein supports his opinions with details and references to the underlying facts. See Chhina v. Rodriguez, No. 04-18-00497-CV, 2018 WL 6793681, at *3 (Tex. App.-San Antonio Dec. 27, 2018, no pet.) (mem. op.) (expert's causation opinion in report was sufficient because expert "adequately link[ed] his conclusion with the underlying facts" by specifically stating what treatment the doctor should have performed and what injury the patient sustained because the doctor failed to do so). Klein's report put Goldwater on notice of the complained-of conduct and provided a sufficient basis for the trial court to conclude that Valdez's claims against Goldwater have merit. See Benavides, 278 S.W.3d at 799.
Goldwater points to specific statements by Klein, contending that they are conclusory and that Klein fails to explain how Valdez will prove these statements. When read in isolation, specific statements by Klein may appear to be conclusory; however, the trial court was permitted to read the causation section in the context of the entire report. See Cooper v. Arizpe, No. 04-07-00734-CV, 2008 WL 940490, at *2-3 (Tex. App.-San Antonio Apr. 9, 2008, pet. denied) (mem. op.). Further, at this stage, Valdez is not required to "present evidence in the report as if [she was] actually litigating the merits." Chhina, 2018 WL 6793681, at *3 (quoting Palacios, 46 S.W.3d at 879).
We hold the trial court did not abuse its discretion in finding the expert report sufficiently provided a fair summary of Klein's opinion regarding causation, and therefore, the trial court did not err in denying Goldwater's motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b), (r)(6); Palacios, 46 S.W.3d at 877. We overrule Goldwater's sole issue on appeal.
Conclusion
We affirm the trial court's judgment.