Northeast Medical Center, L.P. and Community GP Corp. v. Harriette Crooks and Paula Bateman, Individually and on Behalf of the Estate of Clifford Crooks--Appeal from 6th District Court of Fannin County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00149-CV

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NORTHEAST MEDICAL CENTER, L.P.

AND COMMUNITY GP CORP., Appellants

V.

HARRIETTE CROOKS AND PAULA BATEMAN,

INDIVIDUALLY AND ON BEHALF OF

THE ESTATE OF CLIFFORD CROOKS, Appellees

On Appeal from the 6th Judicial District Court

Fannin County, Texas

Trial Court No. 036888

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

This is an interlocutory appeal from the trial court's denial of a motion to dismiss a health care liability suit. Harriette Crooks and Paula Bateman (collectively, Crooks) sued Northeast Medical Center, L.P. (NEMC) (a limited partnership operating a hospital in Fannin County, Texas) and Community GP Corp. (Community) (a corporation that is a general partner of NEMC), on behalf of the estate of Clifford Crooks. Mr. Crooks, Harriette's late husband, suffered from Alzheimer's and was hospitalized at NEMC. On the night of May 1, 2003, Mr. Crooks fell in his hospital room at least two times, // suffering a fractured hip. He died in November 2003, and the petition alleged his death was the result of complications from the broken hip and subsequent surgery. NEMC filed a motion with the trial court to dismiss the suit, alleging Crooks failed to comply with the requirements of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 74.351 (Vernon Supp. 2005).

Crooks filed suit against NEMC and Community, two health care providers, alleging that negligence on the part of NEMC and Community led to Mr. Crooks' falling on the night of May 1, 2003. In one fall, Mr. Crooks' hip was broken, and he was transferred to another hospital. He died six months later. A report from Richard Baldwin, D.O., stated that NEMC's conduct when Mr. Crooks was their patient fell below the applicable standard of care and caused his resulting injuries, including two facial lacerations and a fractured left hip. Baldwin's report also stated that such fall "proximately caused the left hip fracture that started the slow deterioration of this 78 year old patient with multiple medical problems, who could not survive the challenges of a hip fracture, surgery, and significant recovery period."

We review a trial court's decision on a motion to dismiss, filed pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code, for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (addressing Section 74.351's predecessor, former Article 4590i, Section 13.01(e)).

EXPERTS WERE QUALIFIED TO DISCUSS STANDARD OF CARE

Dr. Baldwin's Report

Appellants claim the trial court was required to grant their motion to dismiss because the Crooks did not timely file an adequate expert report. See Tex. Civ. Prac. & Rem. Code Ann. 74.351. Appellants base this contention on perceived inadequacies in the qualifications of Crooks' two proffered experts, Dr. Baldwin and Frances Foster, a registered nurse. According to the appellants, Baldwin and Foster were not qualified to offer expert opinions on the applicable standard of care Mr. Crooks should have been afforded. Appellants claim that, in the cases of both Foster and Baldwin, the respective curriculum vitaes (CV) and reports of both affiants fail to establish either was qualified to render an opinion concerning the standard of care applicable to either a hospital or its employees.

A plaintiff, after filing a health care liability claim, is required to serve on each party an expert report. The contents of the report must comply with statutory requirements. Tex. Civ. Prac. & Rem. Code Ann. 74.351. To qualify as an expert to render an opinion regarding whether a health care provider departed from the standard of care, one must meet the requirements set out in Section 74.351(r)(5)(B), which mandates that an expert must qualify under Section 74.402. Section 74.402(b)(1) requires that the expert witness must practice health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual. Tex. Civ. Prac. & Rem. Code Ann. 74.402(b)(1) (Vernon 2005). However, as to health care providers other than individuals, the requirement is that the expert must have knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved and must be qualified on the basis of training or experience to offer an expert opinion regarding accepted standards of health care. Tex. Civ. Prac. & Rem. Code Ann. 74.402(b)(2)(3) (Vernon 2005). In other words, unless the defendant is an individual, there is no requirement that the reporting expert must practice in the health care field involving the same type of care as that delivered by the defendant.

In support of their argument, the appellants cite In re Samonte // and In re Windisch. // Both of these cases involved health care providers who were individuals, as opposed to other legal entities. In the instant case, Crooks sued NEMC and Community. From the record before us, these two defendants are plainly not individuals. Appellants' arguments about the qualifications of Baldwin and Foster contend that nothing in either expert's report or CV states whether they were working in the nursing field at the time of Mr. Crooks' falls or, when her report was written, in Ms. Foster's case, or, in Dr. Baldwin's case, had admitting privileges at any hospital at the pertinent times. Appellants also point out there is nothing to indicate Dr. Baldwin was teaching medical students at the time of Mr. Crooks' falls or when Dr. Baldwin wrote his report.

Since the named defendants were not individuals, // the requirement in Section 74.402(b)(1) does not apply. The requirement that the expert offering his or her opinion practice in the same field of care or treatment as the defendant only applies when the "defendant health care provider is an individual." Tex. Civ. Prac. & Rem. Code Ann. 74.402(b)(1). Therefore, Crooks' experts were required to comply with subsection (b)(2) and (3), and demonstrate knowledge of the accepted standards of care of the injury or condition involved in the claim and that they were qualified on the basis of training or experience to offer expert opinions regarding said accepted standards of care. Tex. Civ. Prac. & Rem. Code Ann. 74.402(b)(1) (3).

In determining whether an expert is qualified "on the basis of training or experience," a trial court is to consider whether, at the time the claim arose, or at the time the purported expert gave his or her opinion or testimony, that person

(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and

(2) is actively practicing health care in rendering health care services relevant to the claim.

Tex. Civ. Prac. & Rem. Code Ann. 74.402(c)(1), (2) (Vernon 2005).

"Practicing health care" includes:

(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or

(2) serving as a consultant health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.

Tex. Civ. Prac. & Rem. Code Ann. 74.402(a)(1), (2) (Vernon 2005).

The proffered expert report in Samonte was found lacking because it did "not contain any information . . . that describes [the purported expert's] qualifications, [did not] inform[]" that the purported expert had ever worked in the field (anesthesiology) pertinent to that case's alleged injury or was currently working in that field; the report was not on letterhead, not dated, or signed; did not discuss the purported expert's training, experience, or how he was qualified to render his opinion on the appropriate standards of care and alleged breach. Samonte, 163 S.W.3d at 237.

The opining expert in Windisch was a radiologist, as was the defendant. The expert was a teacher and had served a fellowship in neuroradiology. However, his report was inadequate for the statutory purposes because nowhere did it indicate he had experiences which could "reasonably be said to demonstrate that he has knowledge of the accepted standard of care for the procedure" at issue. Windisch, 138 S.W.3d at 514. And while the report asserted the expert had been practicing medicine for many years, it lacked any explanation of how the expert's experience and credentials made him familiar with embolization of brain tumors, the matter on which the plaintiff offered the opinion. Id. (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)).

Here, the standard of care applicable to the defendant health care providers is what an ordinarily prudent hospital would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880. The circumstances of this case involve the supervision of an elderly hospital patient who was admitted to the hospital "for aggressive behavior and severe psychosis." NEMC's emergency record stated Mr. Crooks was "very confused and listed his diagnosis for admission as ileus [obstruction of the intestines] and dehydration." The core of Crooks' allegations was that negligence of the hospital and its nursing staff in failing to adequately supervise Mr. Crooks led to his broken hip, and the broken hip in turn led to his declining health and, ultimately, his death. Dr. Baldwin's report claims he is familiar with the applicable standard of care for a "primary care, family practice specialist in the State of Texas." He states he is "knowledgeable regarding the standard of care for family physicians in writing basic hospital admission orders that direct the hospital nursing staff regarding activities such as bedrest absolute and with vs. without restraints, ambulation with vs. without assistance, bathroom privileges, etc.," as well as the "standard of care for nurses and the medical facilities they work for . . . ." The report continues with Baldwin's familiarity with these standards of care related to "following basic hospital admission orders that direct the hospital and its nursing staff regarding activities such as bedrest" with and without restraints and ambulation with and without assistance.

The report stated that Dr. Baldwin was licensed to practice medicine in the State of Texas, and listed his license number. He detailed his experience, education, and training. He worked twenty-six years in the Department of General and Family Practice at the University of North Texas Health Science Center Texas College of Osteopathic Medicine, Fort Worth, Texas. Dr. Baldwin was "retired from UNTHSC-Fort Worth [in] January 2002" and "continued to practice as a private family physician"; the report lists the name of the clinic where Dr. Baldwin worked. The training and experience needed for a physician to offer an opinion regarding the standard of care for routine hospital admission orders and staff activities needed to prevent a patient from falling out of bed are certainly not as extensive as that needed to express an opinion regarding the standard of care for the "performance of embolization of brain tumors" as was present in Windisch. See Windisch, 138 S.W.3d at 514. In light of the previously quoted language expressing Baldwin's familiarity with primary care facilities, we hold Baldwin was qualified under the requirements of Section 74.402(b) and (c). Based on our review of the allegations in Crooks' petition, it is clear that Dr. Baldwin's report addressed the specific subject matter at issue in the case. See id. at 513. We hold the trial court did not abuse its discretion in overruling the objections to Baldwin's qualifications to opine on the standard of care.

Frances Foster's Report

NEMC and Community make the same complaint about the qualifications of Foster. Again, because NEMC and Community were both legal entities, as opposed to individuals, Section 74.402(b)(1) does not apply. It was not necessary for Foster's report to state that she practiced in a field offering the same kind of care or treatment as the defendant health care providers.

Foster is certified as a gerontological nurse practitioner and a registered nurse. Foster's report lists her credentials, education, and experience, and claimed she was "familiar with the following standards for providing reasonable and prudent nursing care. . . ." The report then lists state and federal statutory nursing requirements, as well as other requirements. She had "[o]ver 35 years['] [experience] of clinically caring for elder persons," and "[b]asic, advanced, and continuing nursing education regarding elder care including fall prevention." The report details specific standards of nursing care and points out specific discrepancies between those standards and the nursing practices followed by NEMC's and Community's employees. In her report, she discusses medications administered to Mr. Crooks and "well-known adverse reactions" to such medications. She discusses how those possible side effects would have impacted the standard of care due Mr. Crooks by the nursing staff.

Regarding whether Foster was "qualified on the basis of training or experience" to offer her expert opinion, her report demonstrated she was certified by an appropriate licensing agency and had substantial training and experience in the relevant health care area. See Tex. Civ. Prac. & Rem. Code Ann. 747.402(c)(1). Foster listed as qualifications her status as a Geriatric Nurse Consultant to the United States Department of Justice, Civil Rights Division; and consultant to a Multi-Level Geriatric Health Care Center in Dallas, Texas. We have noted earlier her certification as a registered nurse. See Tex .Civ. Prac. & Rem. Code Ann. 74.402(c)(2). The trial court did not abuse its discretion finding Foster to be qualified to offer an expert opinion on the applicable standards of care.

Causal Link

Appellants' third point of error contends Dr. Baldwin's report failed to adequately describe any causal relation between NEMC's alleged breach of standard of care and the ultimate death of Mr. Crooks.

An expert report, for purposes of Section 74.351, 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. Palacios, 46 S.W.3d at 875. "However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits." Id. at 879. And a trial court is obligated to grant a challenge to the sufficiency of an expert report only if the report "does not represent an objective good faith effort to comply" with the requisites of the statute. Tex. Civ. Prac. & Rem. Code Ann. 74.351(l). While the expert report does not need to marshal all the evidence necessary to establish causation at trial, it must contain sufficiently specific information to demonstrate causation beyond mere conjecture. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Mr. Crooks died approximately six months after sustaining the fall and the resulting injuries. Dr. Baldwin's report states that the nursing staff failed to adequately monitor Mr. Crooks, and this breach of the standard of care led to his falling and sustaining a broken hip. The report states Dr. Baldwin's opinion as to what the hospital should have done differently, such as keeping a "vigilant watch" over him and seeking physician's orders to physically restrain him to his bed. Following his discussion of the standards of care applicable to Mr. Crooks' treatment, Dr. Baldwin makes the following statement regarding these alleged breaches of standard of care and Mr. Crooks' injury and death: "The acts and omission of the facility and the hospital staff of Northeast Medical Center that fell below the standard of care proximately caused the left hip fracture that started the slow deterioration of this 78 year old patient with multiple medical problems, who could not survive the challenges of a hip fracture, surgery, and significant recovery period." Immediately before this statement, Dr. Baldwin discusses the events from about midnight to 3:15 a.m., when Mr. Crooks was found out of bed on the floor of his room at least twice; Dr. Baldwin states, "the standard of care required . . . is to restrain a confused patient," and the hospital and its staff "fell below the standard of care" by failing to restrain Mr. Crooks or to request orders for physical restraints after his first time to be found out of bed.

Crooks' petition alleged wrongful death and survivor claims. As stated earlier, Mr. Crooks died six months after the broken hip sustained at NEMC. Although we find that Baldwin was qualified to discuss the standard of care due, we find the report does not draw a causal connection from the hip injury to Mr. Crooks' subsequent death. Baldwin's report progresses from identifying the breaches of the standard of care to asserting that such breaches "started the slow deterioration" and that Mr. Crooks "could not survive the challenges of a hip fracture, surgery, and significant recovery period."

NEMC complains that Dr. Baldwin's opinion regarding causation is conclusory. The breaches of the standards of care, according to the expert report, were the proximate cause of Mr. Crooks' injuries and "started [his] slow deterioration." In Wright, the Texas Supreme Court held that, where the expert's report lacked information linking the expert's conclusion (that the patient might have come to a better outcome) to the hospital's alleged breach (not correctly reading and acting on x-rays), the trial court was within its discretion to find the report conclusory and, therefore, inadequate. Wright, 79 S.W.3d at 53. // The expert "must explain the bases of the statements [made regarding causation] and link his or her conclusions to the facts." Longino v. Crosswhite, 183 S.W.3d 913, 917 18 (Tex. App. Texarkana 2006, no pet.) (citing Wright, 79 S.W.3d at 52). Although the report ably links breaches in care to the injuries sustained by Mr. Crooks, no such links are provided to his death. Dr. Baldwin's statement that the broken hip, proximately caused by NEMC's breaches of the standard of care, started Mr. Crooks' "slow deterioration," which eventually resulted in his death, is conclusory. Absent some specific information connecting Mr. Crooks' fall and broken hip to his death, we find the trial court abused its discretion in finding the report adequate for Section 74.351 purposes concerning the wrongful death claim. //

NEMC and Community admit "Mr. Crooks fell and broke his hip while in the hospital. This fact is not in dispute." The report explains that the "failure of the facility and its nursing staff to take the steps set out above proximately caused Mr. Crooks to fall out of bed the second time and his resulting injuries, including two facial lacerations and a fractured left hip." The survival cause of action is based on those injuries. There is no contention that the expert report does not assert a causal connection as to these injuries. Consequently, the survival action is viable.

Accordingly, we reverse the trial court's decision as to the wrongful death cause of action, and remand the case for trial on the survival action and for further proceedings consistent with this opinion.

Jack Carter

Justice

Date Submitted: March 21, 2006

Date Decided: May 19, 2006