HERITAGE GARDENS HEALTHCARE CENTER AND LYRIC HEALTH CARE, L.L.C., Appellants v. JEANETTA PEARSON, Appellee

AFFIRM and Opinion Filed August 29, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00772-CV
............................
HERITAGE GARDENS HEALTHCARE CENTER AND LYRIC HEALTH CARE,
L.L.C., Appellants
V.
JEANETTA PEARSON, Appellee
.............................................................
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-06-16280-D
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice FitzGerald
        This is a health care liability case governed by Chapter 74 of the Texas Civil Practice and Remedies Code. Defendants filed a motion to dismiss based on plaintiff's alleged failure to serve a sufficient expert report, and the trial court denied the motion. Defendants perfected this interlocutory appeal. We affirm.
I. Background and Issues Presented
A.
 
Facts
 
        We draw this statement of facts from the allegations in appellee Jeanetta Pearson's live pleading and statements found in her expert's report. Pearson suffers from multiple sclerosis and paralysis. At age 47 she became a patient under the care of appellant Heritage Gardens Healthcare Center, which the parties agree is a nursing home. Her care consisted of total medical care and assistance with all activities of daily living. Heritage cared for her from September 2002 until November 2004. In November 2004, Pearson was admitted to Trinity Medical Center Hospital with a severe flare-up of a chronic urinary tract infection, and she alleges that this episode and its attendant medical expenses, pain, and suffering were caused by Heritage's negligent failure to provide proper care in monitoring and treating her urinary catheter. She makes no allegations specifically against Lyric Health Care, L.L.C., except that it is the “name [sic] insured company” for Heritage. Most of her factual allegations complain of Heritage or “Defendant,” but a few of them complain of “Defendants.”
B.
 
Procedural history
 
        Less than 120 days after Pearson filed suit, she filed and served the report and curriculum vitae of Dr. W.H. McCrae, M.D. Appellants timely filed a combined objection to the sufficiency of the report and motion to dismiss. They contended that McCrae's report was not a sufficient expert report under Chapter 74 because the report and CV failed to show that McCrae was qualified as an expert under the statute. Pearson responded, and the trial court conducted a nonevidentiary hearing on appellants' objection and motion. The court took the matter under advisement and eventually signed an order overruling the objection and denying the motion. Heritage and Lyric timely appealed.
C.
 
Issue presented
 
        In a single issue, appellants argue that the trial court abused its discretion by denying their motion to dismiss. Specifically, they argue that McCrae's report and CV do not show that he is qualified as an “expert” with respect to his opinions about the standard of care and appellants' alleged breaches of that standard.
II. Appellate Jurisdiction
        Pearson contests our appellate jurisdiction in this matter, relying on two cases from other courts of appeals. After she filed her appellate brief, the supreme court reversed the two cases that Pearson relies on. See Hill Reg'l Hosp. v. Runnels, 253 S.W.3d 213 (Tex. 2008) (per curiam); Moore v. Gatica, 253 S.W.3d 219 (Tex. 2008) (per curiam). Contrary to Pearson's argument, we have interlocutory appellate jurisdiction over a trial court's order denying a section 74.351 motion to dismiss when the motion is based on the theory that the claimant's timely served report is deficient under the statute. Lewis v. Funderburk, 253 S.W.3d 204, 205-06 (Tex. 2008). Accordingly, we overrule Pearson's objection to our jurisdiction.
III. Analysis
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.
B.
 
Expert report requirements of Chapter 74
 
        Within 120 days after filing a lawsuit asserting a health care liability claim, a plaintiff must serve an expert report, with the expert's curriculum vitae, on each defendant against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). “Expert report” means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the defendant failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). If the plaintiff does not timely serve an expert report, the court must, on motion by the affected defendant, dismiss the case with prejudice and award the defendant its attorneys' fees and costs. Id. § 74.351(b). If the defendant's motion is based on the inadequacy of the plaintiff's report, the court shall grant the motion only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the statutory definition of an expert report. Id. § 74.351(l).
        This case turns on whether McCrae qualifies as an “expert” under section 74.351. Specifically, appellants contend that McCrae is not qualified to render standard of care opinions because he does not meet the criteria found in section 74.402. See id. § 74.351(r)(5)(B) (to qualify as an “expert” on standard of care issues relating to a health care provider, a person must be “qualified to testify under the requirements of Section 74.402”) Under section 74.402, McCrae is qualified to render standard of care opinions if he:
 
. . .
 
 
 
(2)
 
has knowledge of acceptable standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
 
 
 
(3)
 
is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
 
Id. § 74.402(b)(2), (3) (Vernon 2005). In determining whether a witness is “qualified” as required by subsection (b)(3), the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
 
(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.
 
Id. § 74.402(c)(1), (2). For purposes of section 74.402,
 
“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 consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.
 
Id. § 74.402(a)(1), (2).
        Thus, to summarize, McCrae must satisfy two elements to be qualified as a standard of care expert: (1) he must have knowledge of accepted standards of care for health care providers for the care of conditions like Pearson's, and (2) he must be qualified based on training or experience to offer expert opinions about those standards. See id. § 74.402(b)(2), (3). When evaluating the second element, the trial court was required to consider the two factors listed in section 74.402(c): (1) whether McCrae is certified in the relevant area of health care by a state licensing agency or national professional certifying agency or has other substantial training or experience in the relevant field, and (2) whether McCrae is actively practicing health care in rendering health care services relevant to the claim. See id. § 74.402(c). “Practicing health care” includes (1) training health care providers in the same field as the defendant at an accredited educational institution or (2) serving as a consulting healthcare provider and being licensed, certified, or registered in the defendant's field. See id. § 74.402(a).
C.
 
Application of the law to the facts
 
        Appellants contend that McCrae's report and CV do not demonstrate that he is “qualified on the basis of training or experience to offer an expert opinion” regarding the relevant standards of health care, as is required by section 74.402(b)(3). It is apparent from the petition and report that the relevant standard of care is what a reasonable nursing home and nursing staff would have done to monitor and care for a person in Pearson's condition with regard to her suprapubic catheter. A suprapubic catheter is a flexible tubular device that is inserted through the abdominal wall into the bladder and used to pass fluids to and from the urinary tract. Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 898 n.1 (Tenn. Ct. App. 2006).
         1.
 
Evaluation of McCrae's qualifications
 
        We review McCrae's report and CV to see what relevant “training or experience” he has. He obtained his medical degree from the University of Toronto in Canada in 1955. He was a chief resident in urology at St. Michael's Hospital in Toronto. He was a fellow at the Royal Canadian College of Surgeons of Canada as a urological specialist by examination in 1961. From 1961-1978, he was chief of urology at three hospitals. From 1973-1978, he was an assistant clinical professor in urology at a medical school and a consultant in urology at a rehabilitation center. At the rehabilitation center, he cared for chronically ill patients suffering from neurological diseases. According to his report, “[t]he preponderance of those patients had severe urinary drainage problems and very many of these also had chronic catheter use as part of their care.” From 1978-1997, he had a private practice in Dallas, Texas, specializing in urology. He was a member of the South Central Section of the American Urological Association from 1978-2005. His surgical career ended in 1999. He practiced rehabilitation medicine in 2000, and since 2005 he has been a “designated doctor” trained by the division of workers' compensation in the reviewing of cases of injured workers.
        McCrae also states as follows in his report:
 
Based upon my experience, training, and over 37 years of experience, I am familiar with the standard of care applicable to health care providers providing care and treatment to patients such as Ms. Pearson. Specifically, I am familiar with the standards of care applicable to the nurses providing care and treatment to patients such as Jeanetta Pearson who required [sic] suprapubic catheters and have related chronic urology problems. I have knowledge of the acceptable standards of medical care in both acute care and in chronic care settings. I am familiar with the nurse's standard of care in this regard since I have worked with nurses my entire professional career. I am well aware of the standard of care applicable to nurses when caring for patients with suprapubic catheters and related chronic urology problems and the standards of care applicable to said nurses when caring for these types of patients and the information they should report to their superiors and the attending physician. I have provided care and treatment to hundreds of patients like Ms. Pearson in nursing home facilities who have catheter care problems and I am qualified to render opinions regarding the care and treatment provided by Heritage Healthcare Gardens and the nursing staff at Heritage Healthcare Gardens to Ms. Pearson, whether that care and treatment violated the standard of care and whether said violations caused damages to Ms. Pearson.
 
The gist of McCrae's standard of care opinions is that Heritage's nurses breached the standard of care by failing to promptly report problems that Pearson was having with her catheter to her attending physician and perhaps by failing to check her catheter every eight hours. If they had acted properly, McCrae opines, Pearson probably would not have suffered unnecessary pain, discomfort, and hospitalization.
        Every expert qualification case hinges on the particular facts and allegations in the case. In this case, McCrae trained as a urologist and has 37 years' experience in urology. He states that he knows the standard of care applicable to nurses from his long experience in working with nurses, and that he has treated hundreds of patients with catheter care problems like Pearson's in nursing home facilities. His training and experience are comparable to those of experts that courts have held sufficiently qualified. See, e.g., San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 813-14 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (infectious disease specialist could offer standard of care opinions against defendant nurses); IHS Acquisition No. 140, Inc. v. Travis, No. 13-07-481- CV, 2008 WL 1822780, at *4-5 (Tex. App.-Corpus Christi April 24, 2008, pet. filed) (mem. op.) (doctor specializing in geriatrics could offer standard of care opinions against defendant nursing home); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App.-Dallas 2007, pet. denied) (practicing registered nurse with 24 years' experience could offer standard of care opinions about defendant nurse); Mem'l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758-62 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (infectious disease specialist could offer standard of care opinions against hospital); Ne. Med. Ctr., L.P. v. Crooks, No. 06-05-00149-CV, 2006 WL 1358361, at *3-4 (Tex. App.-Texarkana May 19, 2006, no pet.) (mem. op.) (family practitioner with over 26 years' experience could offer standard of care opinions about defendant hospital and staff). Thus, McCrae appears to be “qualified on the basis of training or experience to offer an expert opinion regarding . . . accepted standards of health care” relevant to Pearson's claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(3).
         2.
 
Appellants' objections
 
        Despite McCrae's credentials and long experience in the field of urology, appellants argue that the trial court abused its discretion in accepting him as an “expert” for three reasons. First, they argue that McCrae is not qualified because he is not “actively practicing health care” in a nursing home pursuant to section 74.402(c)(2). At the outset, we note that appellants misstate the import of section 74.402(c). Section 74.402(c) provides that the court “shall consider” two particular factors in weighing the witness's qualifications, so it is true that the trial court and we must consider those factors in assessing McCrae's status as an expert. See Tex. Gov't Code Ann. § 311.016(2) (Vernon 2005) (“'Shall' imposes a duty.”). But section 74.402(c) does not provide that its factors are mandatory elements that must be proved before a witness can be qualified as an expert. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(c). We agree with appellants that McCrae has not shown that he is currently and actively “practicing health care,” as that phrase is defined in section 74.402(a), so the factor listed in section 74.402(c)(2) does not weigh in favor of McCrae's being a qualified expert witness. But this is only one factor to be considered in assessing whether McCrae is qualified “on the basis of training or experience” to offer the opinions contained in his report, and its absence is not necessarily outcome determinative.
        Second, appellants argue that McCrae does not satisfy the factor found in section 74.402(c)(1) because he does not have “substantial training or experience” in the relevant area of health care. Specifically, they argue that he does not show that he has any experience with nursing homes or nursing home patients. The question presented, however, is not whether he has worked in nursing homes, but whether he has experience that would give him expertise in how a reasonable nursing home cares for a patient in Pearson's condition. See IHS Acquisition No. 140, Inc., 2008 WL 1822780, at *5 (stating that question was not whether expert had worked in a nursing home but whether he was “knowledgeable about the standard of care applicable to elderly and infirm persons”). In any event, McCrae's report shows that in fact he has treated patients like Pearson in nursing home facilities. McCrae's report demonstrates that he has 37 years of urology experience, that he has treated hundreds of catheterized patients in nursing home facilities, and that he is familiar with the standards of care applicable to nurses when they are caring for patients like Pearson who have suprapubic catheters and chronic urinary problems. We reject appellants' contention that McCrae's averments in this regard are too conclusory. See Mem'l Hermann Healthcare Sys., 230 S.W.3d at 760-61 (doctor of occupational medicine who stated that he had treated patients with decubitus ulcers and trained others to treat them over his 25 years of practice adequately demonstrated “substantial training or experience” under section 74.402(c)(1)); Baylor Univ. Med. Ctr., 240 S.W.3d at 570 (nurse was qualified to opine about the proper application of an ice pack because she had experience with that type of care); Simonson v. Keppard, 225 S.W.3d 868, 874-75 (Tex. App.-Dallas 2007, no pet.) (neurosurgeon was qualified to opine about care rendered by emergency room physicians because he had worked in emergency departments his whole career and frequently consulted with emergency room doctors). We conclude that the trial court could reasonably decide that McCrae demonstrated familiarity with the standards of care applicable to nursing homes and their nursing staffs when treating patients like Pearson.
        Also under their second objection, appellants point out that McCrae stopped practicing as a urologist in 1997, and they argue that the passage of time renders him unqualified to provide expert testimony about the treatment rendered to Pearson in 2004. But the statute directs the courts to consider simply whether the proffered expert “has other substantial training or experience” in the relevant area of health care; it does not focus on the recency or remoteness of that experience. Although a witness's retirement from the particular area of health care and the length of that retirement may be relevant to his or her qualifications, we reject any contention that the seven-year gap between the end of McCrae's private urology practice and the time Pearson suffered her injuries automatically disqualifies McCrae as an expert. A reasonable trial court could conclude that McCrae still possesses “substantial training or experience” in the area of health care relevant to Pearson's claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(c)(1).
        Third, appellants argue that McCrae does not demonstrate experience that would qualify him to opine about the standard of care for nurses (as opposed to nursing homes, as appellants argue in their second objection). We disagree. McCrae states not only that he has worked with nurses throughout his career but also that he knows “the standard of care applicable to nurses when caring for patients with suprapubic catheters and related chronic urinary problems and . . . the information they should report to their superiors and the attending physician.” We conclude that this statement, taken in conjunction with his many years of urology experience, is demonstrative of experience that would qualify McCrae to opine about nurses' standard of care; it is not conclusory.
 
         3.
 
Summary
 
        There are factors weighing both for and against the trial court's decision. The case concerns allegedly negligent care and monitoring of a patient with chronic urinary problems and a urological device that can become blocked and cause serious health consequences. McCrae has substantial training and experience in the field of urology. He has treated hundreds of nursing home patients with catheter care problems like Pearson. He has worked with nurses throughout his entire professional career, and he knows the standard of care applicable to them when caring for patients like Pearson. On the other hand, he stopped practicing urology about seven years before the events made the basis of this suit, and he is not “actively practicing health care in rendering health care services relevant to the claim.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(c)(2).
        We may not reverse a trial court's discretionary ruling simply because we might have decided it differently. Baylor Univ. Med. Ctr., 240 S.W.3d at 569. We reverse only if the trial court acted arbitrarily or unreasonably. Id. Under the circumstances of this case, we conclude that the trial court reasonably could have concluded that McCrae was qualified under section 74.402(b)(3), and thus also under section 74.351(r)(5)(B). Thus, the trial court did not abuse its discretion. We overrule appellants' sole point of error.
IV. Conclusion
        The trial court did not abuse its discretion by overruling appellants' objections to McCrae's report and denying their motion to dismiss. We affirm the trial judge's order.
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
070772F.P05