If the standard of care as outlined above and in the report of Kimberly Kelly, RN, had been followed by Avalon Residential Care Homes, Ruth Jones would not have remained in an assisted living facility where her wounds deteriorated and she experienced much increased pain and suffering. In Romero v. Lieberman, 232 S.W.3d 385, 391-92 (Tex. App.—Dallas 2007, no pet.), three physicians participated in treating a patient for septic shock. The expert named each physician, detailed the patient's symptoms, and discussed the standard of care and how the conduct of each physician fell below that standard and caused the patient's injuries.
e.g., Mendez–Martinez, ––– S.W.3d at ––––, 2016 WL 1613422, at *6 (the level of detail required in an expert report will depend, in part, on the complexity of the case, with more complex cases requiring more detail).Numerous courts have found expert reports to be adequate when the report merely states that a physician's failure to treat a patient suffering from an otherwise treatable infection with antibiotics was a substantial cause of the patient's injuries, without imposing any requirement that the report specify the exact type of antibiotic therapy the treating physician should have used. See, e.g., Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex.2015) (report was adequate where it referred only to the need to treat the patient's illness with “antibiotics”); Nexion Health at Terrell Manor v. Taylor , 294 S.W.3d 787, 796 (Tex.App.–Dallas 2009, no pet.) (expert report was adequate where it simply indicated that patient's condition was treatable with proper antibiotics); Romero v. Lieberman, 232 S.W.3d 385, 391 (Tex.App.–Dallas 2007, no pet.) (expert report was adequate where it stated that the patient should have been given antibiotic treatment for his infection); Spitzer v. Berry, 247 S.W.3d 747, 752 (Tex.App.–Tyler 2008, pet. denied) (expert report was adequate where it stated that the defendant doctor was required to “maintain antibiotic therapy” in a post-surgical patient); see also Lakshmikanth v. Leal, No. 13–08–00389–CV, 2009 WL 140741, at *3 (Tex.App.–Corpus Christi Jan. 22, 2009, pet. denied) (mem. op.) (expressly rejecting the doctor's argument that expert report was required to identify the type of antibiotics that should have been prescribed to prevent infection).There may be unique or unusual situations in which it would be necessary for an expert report to identify the type of antibiotic that would have been effective to treat a certain type of infection, such as when the report indicates that the infection is known to be resistant to antibiotics, or situations in which a report is claiming that an antibioti
The Taylor court did not hold that the same standard of care could not apply to more than one defendant; it essentially explained that when a health care liability claim is brought against different categories of health care providers, an expert report must identify the particular standard of care that applies to each category. More analogous to this case is Romero v. Lieberman, 232 S.W.3d 385 (Tex.App.-Dallas 2007, no pet.). In Romero the patient whose treatment was at issue died of sepsis and the defendant health care providers were his three treating doctors — two psychiatrists and a general practitioner with training in general surgery.
A. Standard of review We review a trial court's ruling on a motion to dismiss under the expert report provisions of Chapter 74 for abuse of discretion. Romero v. Lieberman, 232 S.W.3d 385, 389 (Tex.App.-Dallas 2007, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Id.
4th: Fox v. Hinderliter, 222 S.W.3d 154, 156 (Tex.App.-San Antonio 2006, no pet.); Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 326 (Tex.App.-San Antonio 2006, pet. denied). 5th: Romero v. Lieberman, 232 S.W.3d 385, 388 (Tex.App.-Dallas 2007, no pet.); Cayton v. Moore, 224 S.W.3d 440, 443-44 (Tex.App.-Dallas 2007, no pet.); HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 908 (Tex.App.-Dallas 2007, no pet.). 6th: Thoyakulathu v. Brennan, 192 S.W.3d 849, 851 n. 2 (Tex.App.-Texarkana 2006, no pet.); Longino v. Crosswhite, 183 S.W.3d 913, 916-18 (Tex.App.-Texarkana 2006, no pet. h.).
Cf. Shah, 2011 WL 1434676, at *3; In re Stacy K. Boone, P.A., 223 S.W.3d at 405-06 (holding single standard of care applicable to physician and physician's assistant was sufficient because all participated in administering treatment to patient); see also Livingston v. Montgomery, 279 S.W.3d 868, 872-73 (Tex. App.-Dallas 2009, no pet.) (holding expert report that provided one standard of care for two physicians who attended to patient's labor and delivery not deficient); Romero v. Lieberman, 232 S.W.3d 385, 391-92 (Tex. App.-Dallas 2007, no pet.) (concluding expert report alleging "one size fits all" standard of care was sufficient as to defendant general practitioner and defendant psychiatrists because all three physicians participated in treating patient's condition (internal quotations omitted)). Whether Dr. Groysman's opinions that the same or similar standard of care applies to Drs. Keepers and Chan and that Drs. Keepers and Chan breached the standard of care in the same manner are correct is not the question at this stage in the litigation.
We conclude the amended expert report includes a fair summary of the expert's opinion as of the date of the report concerning the applicable standard of care Ashford owed to Mr. Jones and the manner in which Ashford failed to meet the standard. See id. (expert report should include "specific information about what the defendant should have done differently"); Puempel v. Lopez, No. 05-07-00371, 2007 WL 3173405, at *3-4 (Tex. App.—Dallas Oct. 31, 2007, no pet.) (mem. op.) (concluding expert reports complied with chapter 74 requirements by opining that prescribing excessive dosages of prescription drug Phentermine over excessive period of time was breach of standard of care and patient's sudden death from arrhythmia was, in reasonable medical probability, the result of effects of Phentermine); Romero v. Lieberman, 232 S.W.3d 385, 392-93 (Tex. App.—Dallas 2007, no pet.) (trial court did not abuse its discretion when it concluded export reports represented good faith effort to comply with chapter 74 requirements because reports identified conduct at issue and stated what standard of care applied, which was the same for all three physicians). Causation
We note that in one line of cases, the courts have generally concluded that expert reports are sufficient when the expert simply opines that the cause of the plaintiff's injuries resulted from the doctor's failure to provide appropriate antibiotic therapy, without any additional description of that therapy. See, e.g., Van Ness, 461 S.W.3d at 144 (report represented a good faith effort to comply with the requirements of the TMLA where it stated that the patient's illness was treatable with antibiotics, and that the continued treatment with antibiotics probably would have prevented the patient's death); Nexion Health at Terrell Manor v. Taylor , 294 S.W.3d 787, 796 (Tex.App.–Dallas 2009, no pet.) (expert report indicating that patient's condition was treatable with proper antibiotics and that the doctor's lack of appropriate treatment resulted in his death was sufficient to link the doctor's breach to the patient's death); Romero v. Lieberman, 232 S.W.3d 385, 391 (Tex.App.–Dallas 2007, no pet.) (holding sufficient an expert report stating that patient would have survived infection if given antibiotic treatment, and that the failure to start such treatment resulted in the patient's death); Spitzer v. Berry, 247 S.W.3d 747, 752 (Tex.App.–Tyler 2008, pet. denied) (expert report was adequate where it stated the doctor's breach caused the patient's injuries due to his failure to “maintain antibiotic therapy”).On the other hand, in some instances, it is simply not clear from the expert report that antibiotic treatment would have been effective to treat the patient.
However, if multiple defendants owe the same duty to the patient, then the plaintiff is not required to specifically state the same standard of care for each individual defendant. SeeRittger v. Danos, 332 S.W.3d 550, 556–57 (Tex.App.—Houston [1st Dist.] 2009, no pet.) ; Romero v. Lieberman, 232 S.W.3d 385, 391–92 (Tex.App.—Dallas 2007, no pet.) ; In re Boone, 223 S.W.3d 398, 405–06 (Tex.App.—Amarillo 2006, orig. proceeding).Appellees assert that Dr. Patel, a hospital-based pharmacist, set out the standard of care for dispensing Lovenox with a "STAT" instruction (i.e. within one hour of receiving the order) and that "the pharmacy" breached that standard of care when it dispensed the prescription almost two hours after it received the "STAT" order.
Both of these physicians participated in treating this condition. See Romero v. Lieberman, 232 S.W.3d 385, 391-92 (Tex. App.—Dallas 2007, no pet.) (discussing standard of care applicable to all physicians participating with treatment). Likewise, Coney's report names the individual physicians and states how the conduct of each fell below the standard of care. Coney's report details the breaches as follows: