Opinion By Justice FITZGERALD.
Appellee Adriane Springs sued these twelve appellants alleging that each was negligent and caused injury to her husband, Ron Springs ("Springs"), during his hospitalization at Medical City Dallas. Pursuant to Chapter 74 of the Texas Civil Practices and Remedies Code, appellee served three expert reports addressing her claims against appellants. Appellants objected to the reports on a number of grounds and filed motions to dismiss the claims against all appellants. In the end, the trial court denied all motions to dismiss. For the reasons discussed below, we affirm the trial court's rulings in part and reverse and remand in part.
Our factual recitation is based upon appellant's live pleading. Springs was admitted to Columbia Hospital at Medical City Dallas Subsidiary, L.P. ("Medical City") for minor surgery, i.e., to have a small cyst removed from his left forearm. No pre-operative laboratory studies were ordered. He was first seen by an anesthesiologist at
Appellee initially filed suit against a number of physician and hospital defendants. She amended her petition to add these appellants as defendants. Appellee's pleadings identify appellants, as of the time of Springs's hospitalization, in this manner:
Appellee filed and served expert reports and curriculum vitae ("CVs") from three experts: Scott Groudine, M.D., an anesthesiologist; Charles M. Brosseau, Jr., FACHE, a consultant on health care administration; and Yvette Rosenthal, R.N., a perioperative nurse. Appellants filed objections to all reports and motions to dismiss from all defendants. The trial court heard the motions to dismiss and denied all motions except the joint motion filed on behalf of Hollingsworth, Bertaut, and Stuart (collectively, the "Administrative Nurses"). The trial court found that Brosseau's report failed to establish his qualifications to opine concerning the standard of care and breach with respect to the Administrative Nurses, but the court granted appellee thirty days to cure the deficiency. These rulings are contained in the court's June 28, 2010 order. Appellee filed a supplemental report from Brosseau, and the Administrative Nurses filed objections and another motion to dismiss. This time the trial court denied the motion to dismiss in an order dated September 9, 2010. Appellants have challenged both orders in this interlocutory appeal.
We review a trial court's rulings on the adequacy of an expert report under an abuse-of-discretion standard. Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial judge abuses his discretion if he acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Downer v. Aquamarine Operators,
A Chapter 74 expert report need not "marshal all the plaintiff's proof," but it must provide:
TEX. Civ. PRAC. & REM.CODE ANN. § 74.351(r)(6) (West 2011). A court shall grant a motion challenging the adequacy of a report only if the report does not represent an objective good faith effort to comply with the above-quoted definition of "expert report" in the statute. Id. § 74.351(l). To constitute a good faith effort, the report must provide enough information to meet two requirements: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A plaintiff need not present evidence in the report as if she were actually litigating the merits, and the information in the report does not have to meet the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879. But a report does not fulfill the statute's requirement if it merely states the expert's conclusions or if it omits any of the statutory requirements. Id. at 879. We may not "fill gaps" in an expert report by drawing inferences or guessing what the expert likely meant or intended. See Wright, 79 S.W.3d at 53. Instead, the expert must explain the basis for his statements and must link his conclusions to the facts. Id. at 52. Finally, it is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex.App.-Dallas 2007, pet. denied).
Appellee has pleaded her claims against these appellants in groups of those who had the same or similar duties as health care providers. She makes the same specific charges of negligence against all members of each group. For example, she pleads claims against four administrative employees, and her theories of liability are the same for the four members of that group. Not surprisingly, the expert reports also group individuals as appellee has. Indeed, to a significant extent, appellants responded to the expert reports as groups and make their appellate complaints by groups. However, appellants repeatedly—below and in this Court— charge the expert reports are deficient because they fail to set forth the necessary elements of a Chapter 74 report applicable to each defendant. We disagree. The reports of Rosenthal and Brosseau carefully name and address all defendants and the standards of care (and breach thereof) applicable to them. The Groudine report addresses the standard of care (and breach thereof) applicable to the anesthesia technicians, and names them. And as to Groudine's causation opinions, he incorporates the reports of Rosenthal and Brosseau and, reading the reports together, it is apparent which group of actors is being discussed throughout the report. This is not a case in which the expert offers theoretical opinions without identifying any person who allegedly committed the violation
Appellee pleaded negligence claims against Berrett and the Administrative Nurses based on alleged errors in performing their administrative functions of the hospital to ensure the provision of safe patient care. Specifically, appellee contended these four appellants were negligent by:
Appellee also pleaded that Nurses Bertaut and Stuart were negligent in their administrative capacities by:
In their objections to Brosseau's supplemental report of July 23, 2010, the Administrative Nurses continued to assert that
Appellants argue Brosseau does not meet the statutory requirements for offering opinion testimony that the Administrative Nurses departed from acceptable standards of care. Chapter 74 states an expert is qualified to give such opinions if he:
TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b). An expert's qualifications must appear within the report itself or the expert's CV. Kettle v. Baylor Med. Ctr. at Garland, 232 S.W.3d 832, 840 (Tex.App.-Dallas 2007, pet. denied).
Appellants assert that Brosseau is not, and has never been, a health care provider. They are incorrect. The definition of "health care provider" includes a manager or employee of a health care institution. TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(12)(A)(vii), (B)(ii). Appellants likewise assert that Brosseau has never practiced health care. Again, they are incorrect. Chapter 74 defines "health care" to include any act performed by a health care provider if it is related to a patient's medical care, treatment, or confinement. Id. § 74.001(a)(10). Moreover, Chapter 74 expressly includes departures from accepted standards of administrative services within its definition of a "health care liability claim." Id. § 74.001(a)(13). Finally, in terms of qualifying as an expert witness, the definition of "practicing health care" is expanded to include those who teach or consult in the field. Id. § 74.402(a).
We likewise conclude Brosseau satisfies section 74.402(b)(2). Brosseau's report states he is familiar with the standard of care for hospital administrators and leadership personnel, including these Administrative Nurses. He asserts that throughout his career he has been responsible for this type of leadership position in hospital organizations and that the administrative and managerial functions at issue are well within his area of expertise.
And as to section 74.402(b)(3), Brosseau's graduate training is as a hospital administrator. His report and CV establish that he has had significant experience since at least 1980 as a hospital administrator in a supervisory capacity. Moreover, Brosseau continues to be involved in hospital administration through his consulting work. He is a fellow of the American College of Healthcare Executives. We conclude Brosseau's training and experience establish that he is qualified to offer expert opinions concerning accepted standards of care for health care providers providing administrative services that affect the treatment of patients like Springs. Again, Brosseau meets the requirements of the statute.
Appellants challenge Brosseau's qualifications by declaring that medical expert testimony is necessary when underlying issues involve the performance of medical procedures, and they cite Reed v. Granbury Hospital Corp., 117 S.W.3d 404 (Tex.App.-Fort Worth 2003 no pet.). But Reed does not support a challenge to Brosseau's qualifications in this case. It states explicitly that "the standard of administrative care at a hospital may be established by lay testimony." Id. at 409. It goes on to make the unremarkable statement that medical expert testimony is required to address the underlying medical procedures. Id. This medical expert testimony is precisely what appellee has offered, through Groudine and Rosenthal, as to the underlying treatment of Springs by those individuals the administrators managed.
A number of appellants' concerns regarding appellee's expert reports appear to be based on confusion caused by the two layers of claims urges by appellee. Her pleading alleges departures from accepted standards of health care against staff nurses and technicians who had, or should have had, direct contact with the treatment and care of Springs. These claims require expert medical support to survive Chapter 74's demands. Appellee's pleading also alleges that one reason those staff members failed in their health care responsibilities was because the staff's supervisors failed in their administrative responsibilities. These claims require a standard of care and breach of that standard to be supported
We discern no abuse of discretion in the trial court's determination that Brosseau is qualified to give the opinions he gives in his supplemental report.
Appellants contend that, qualifications aside, Brosseau's opinions concerning standard of care and breach are conclusory and, therefore, deficient. Appellants really make two specific complaints under this heading: (1) Brosseau does not explain why the four administrators are subject to the same standard of care, and (2) Brosseau does not identify "any specific conduct that should have been done, but was not done" by the administrators. These contentions are without merit.
Brosseau explains in his supplemental report that he is addressing issues concerning whether Berrett and the Administrative Nurses "met the management, administrative and leadership responsibilities which are owed to patients." He then identifies the specific administrative responsibilities at issue in this case that all the administrators share:
What Brosseau has identified are core obligations of any administrator of an operation with a staff and a service to deliver. Certainly all management personnel must ensure the competency of their staff and must participate in developing, implementing, dispensing, and enforcing the policies and procedures that will govern members of the staff as they provide the service.
All four administrators objected below to Groudine's causation opinions as conclusory. Along with identifying conduct by the nursing staff that proximately caused Springs's injuries, Groudine sets forth the following opinions concerning the administrators:
Reading this report with Brosseau's and Rosenthal's, we know the purportedly negligent conduct at issue for the administrators and for the staff they manage. Groudine states that the conduct identified by these other experts as negligence— both nursing and administrative—was the proximate cause of Springs's injuries. He specifically addresses the management responsibilities to ensure competence, enforce policies and procedures, and ensure proper communication among staff and physicians, and he opines that if these responsibilities had been appropriately performed, then Springs's brain injury would have been avoided.
An expert report on causation must provide a fair summary of the expert's opinions regarding the causal relationship between the purported failure to meet the standard of care and the injury suffered. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). Thus, Groudine was required to link these failed management responsibilities to Springs's injuries; his report was required to explain how the
Appellee pleaded negligence claims against anesthesia techs Sindhu, Dada, and Iwuoha based on an alleged failure to assure the alarms in the anesthesia circuit were properly functioning. Specifically, appellee contended appellants were negligent in the following manners:
In their second issue, appellants contend (1) Groudine did not establish he was qualified to give expert opinions concerning Sindhu, Dada, and Iwuoha, and (2) Groudine's report was inadequate to address all three necessary elements of an expert report. Our review of these three appellants' objections (which the three urged in a joint filing) and motions to dismiss (filed separately by Sindhu and jointly by Dada and Iwuoha) indicates the appellants challenged Groudine's qualifications to deliver standard of care opinions against them and his causation opinion, but not the substance of his standard of care and breach opinions. We will limit our review to the issues presented to the trial court.
Appellants contend that Groudine's report and CV do not demonstrate he is qualified to opine concerning the maintenance and operation of anesthesia
Appellants complain that Groudine's causation opinion is conclusory. The report explains Groudine has been told the alarms were not sounding during the effort to secure an airway and the ensuing code. Groudine posits two possible reasons why the alarms might not have sounded, and he evaluates those reasons in terms of the techs' responsibilities:
If it is established that the techs failed properly to check the equipment after cleaning and setting it up and/or failed to check and assure the alarms were not turned off or disabled, then—according to Groudine—they were negligent, and that negligence proximately caused Springs's injuries.
The question is whether Groudine's opinions have adequately linked the conduct he has identified as necessary—properly checking the workings of the anesthesia
In their third and fifth issues, appellants challenge the denial of various motions to dismiss based on the substance of Groudine's report. They contend the report fails to establish a causal connection between a number of appellee's pleaded theories of negligence and her husband's injuries. We address these challenges in turn.
In her petition, appellee urges negligence claims based on errors in documentation against Laran, Isaac, Mandujano, Wilson, and Acedo. Specifically, appellee contended these appellants were negligent by:
In their third issue, appellants contend Groudine's report fails to address the element of causation concerning these documentation claims. Appellee responds that Groudine was not required to "replicate each allegation, fact, and opinion made by the other experts in their Chapter 74 reports." She asserts that Groudine "specifically references" the reports by Rosenthal and Brosseau, and she urges us to read the reports together.
We agree that one expert is not required to repeat material from other expert reports needlessly, and we agree that expert reports can be read together to satisfy the requirements of Chapter 74. See TEX.CODE CIV. PRAC. & REM.CODE ANN. § 74.351(i). But Groudine is appellee's causation expert. See id. § 74.403(a) (only physician may opine as to causation against health care provider). And an expert report on causation must provide a fair summary of the expert's opinions regarding the causal relationship between the purported failure to meet the standard of care and the injury suffered. Id. § 74.351(r)(6). Thus, Groudine was required to link whatever facts the other reports contained concerning documentation errors to Springs's injuries. See Wright, 79 S.W.3d at 53.
Our review of Groudine's report confirms appellants' contention that Groudine does not address the element of causation concerning alleged documentation errors.
Appellee pleaded negligence claims against nurses Laran and Acedo based on errors in obtaining informed consent from Springs before his surgery. Specifically, appellee contended these appellants were negligent by:
In their fifth issue, appellants contend, inter alia, that Groudine's report fails to address the element of causation concerning these informed consent claims. Appellee responds that expert reports are not required to address every action or omission mentioned in the pleading, and that no authority requires reports to "replicate point-by-point each and every factual allegation in a petition." We agree. However, an expert's report must address each theory of negligence raised by the plaintiff to avoid dismissal of that theory. See Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex.App.-Fort Worth 2003, pet. denied).
Groudine does not address the theory that these nurses failed to comply with their duties in obtaining informed consent. His report offers no opinion that the alleged errors proximately caused Springs's injuries, let alone how the errors might have caused those injuries. Because the report omitted any discussion of the element of causation, Groudine's report could not qualify as a good faith effort to meet Chapter 74's requirements as to the informed consent claims. See Jernigan, 195 S.W.3d at 94. The trial court had no discretion but to dismiss those claims against Laran and Acedo. See id. We sustain appellants' fifth issue's challenge to the informed consent claims against these appellants.
Appellee pleaded two additional theories of negligence against nurses Laran and Acedo related to their failure to obtain assistance outside the operating room when they observed problems with Springs's care. Specifically, appellee asserted the nurses were negligent by:
Appellants concede in this Court that Rosenthal's report adequately sets forth the standard or care and breach aspects of
In relevant part, Groudine opined:
Groudine does opine in these excerpts that the failure to solicit assistance when problems arose in the operating room was a proximate cause of Springs's injuries. And he does speak to what would have been the better outcome if help had been called: Springs could have been awakened and the brain injury would have been mitigated or avoided. However, Groudine does not explain what actions would have resulted from the call for help (or initiation of the chain of command) that would have resulted in awakening Springs. Again, we are not permitted to infer how the solicitation of assistance would have remedied the situation; the causation expert must tell us. See Wright, 79 S.W.3d at 53. We conclude the report is conclusory—and therefore deficient—as to these negligence theories.
Appellee has requested an opportunity to cure any deficiencies found in her expert reports. Chapter 74 provides that if elements of an expert report are found deficient, the court may grant one 30-day extension to the claimant to cure the deficiency. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c). In the trial court, appellee was given the opportunity to cure the deficiency in her original expert report from Brosseau. Because all other challenges to the expert reports were denied, the trial court did not grant any extensions as to the reports of Rosenthal or Groudine.
Appellants point to the language of section 74.351(c) that allows "one 30-day extension" and contend appellee has already had that one extension with respect to the Administrative Nurses, so she is not entitled to another as to those defendants. The statute does not connect the opportunity to cure deficient reports to the defendants addressed in the report. Instead, section 74.351(c) connects an opportunity to cure a deficiency to the report found deficient.
A court may not provide opportunities to cure, however, when an expert report is "absent" as opposed to deficient. If an expert report fails to address all required elements of a claim, the trial court may not consider an extension. See Samlowski v. Wooten, 332 S.W.3d 404, 417-18 (Tex.2011). Thus, there can be no amendment that will allow appellee's documentation or informed consent claims to proceed.
In accordance with these authorities, we will direct the trial court on remand to consider granting appellee a thirty-day extension in order to cure deficiencies in Groudine's report concerning the causation opinions we have determined are conclusory.
We dismiss appellee's claims relating to purported failures in documentation and obtaining informed consent. The March 4, 2010 Groudine report is conclusory in its causation opinions concerning claims against: Administrative Nurses Hollingsworth, Bertaut, and Stuart; anesthesia technicians Sindhu, Dada, and Iwuoha; and Laran and Acedo (only chain of command and call for help claims). Accordingly, we conclude the trial court abused its discretion in denying those parties' motions to dismiss on that ground. However, we remand this cause and direct the trial court to consider granting a thirty-day extension to cure deficiencies in Groudine's report. If the trial court decides not to grant the extension, then we order the trial court to dismiss the claims for which conclusory causation opinions were given. In all other respects, we affirm the orders of the trial court.
Id. at 839.
The trial court found no other deficiencies than the ones specified in this order, so no other opportunities to cure were granted.