Regent Care Center of Laredo, et al v. Maria D. Abrego, et al.--Appeal from 406th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-07-00320-CV
REGENT CARE CENTER OF LAREDO, LIMITED PARTNERSHIP

d/b/a Regent Care Center Laredo and Pamela Humphrey,

Appellants
v.

Maria D. ABREGO, Berta Villarreal, Beatriz Hernandez, Raul Hernandez, Jr., Homero Perez, and David Perez, Individually and as Representatives and Legal Heirs of the

Estate of Magdalena Perez, Deceased,

Appellees
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2005-CVQ-001818-D4
Honorable Oscar Hale, Jr., Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: October 24, 2007

 

AFFIRMED

This is an interlocutory appeal in a health care liability case. A nursing home facility, Regent Care Center of Laredo, and its administrator, Pamela Humphrey, (collectively "RCCL"), challenge the trial court's denial of their motion to dismiss under section 74.351 of the Texas Civil Practice and Remedies Code. RCCL asserts the trial court abused its discretion in denying their motion to dismiss because the expert reports offered by appellees Maria Abrego, Berta Villarreal, Beatriz Hernandez, Raul Hernandez, Jr., Homero Perez, and David Perez, Individually and as Representatives and Legal Heirs of the Estate of Magdalena Perez, Deceased (collectively "the Abregos") fail to establish a causal relationship between RCCL's alleged breaches of the applicable standards of care and the death of Magdalena Perez. Because the Abregos' expert reports are sufficient as to the issue of causation, we affirm.

Background

Magdalena Perez was 74 years old when she was admitted to Regent Care Center of Laredo on April 15, 2003. At the time of Perez's admission, she suffered from a multitude of medical conditions, including coronary artery disease, congestive heart failure, chronic renal insufficiency, hypertension, osteoarthritis, depression, and dementia. (1)

Between her admittance date and the date of her death, February 17, 2004, Perez fell down on multiple occasions while in RCCL's care. Perez is believed to have sustained falls on the following dates: May 31, 2003, June 8, 2003, November 6, 2003, January 29, 2004, and February 11, 2004. The day after Perez's last fall, she was admitted to the hospital for congestive heart failure. On February 17, 2004, Perez went into cardiopulmonary arrest and died.

The Abregos filed wrongful death and survival claims against RCCL, alleging RCCL "committed serious acts and/or omissions in the care and monitoring of" Perez. The Abregos subsequently filed the expert reports and curriculum vitaes of three experts: Frances Lovett, a nurse with expertise in nursing home management; Sid Gerber, an expert nursing facility administrator; and Dr. Audrey Jones, a physician board certified by the American Board of Family medicine. (2) RCCL then filed a motion to dismiss with prejudice, asserting that none of the expert reports were timely served. RCCL also filed an objection to the report filed by the Abregos' causation expert, Dr. Jones, claiming Jones's report was "inadequate as to causation." (3)

The trial court denied RCCL's motion to dismiss based on the Abregos' purported failure to timely serve their reports. RCCL responded by filing an interlocutory appeal challenging the trial court's denial of its motion to dismiss. This court concluded the Abregos timely served their expert reports and affirmed the trial court's order. See Regent Care Ctr. of Laredo v. Abrego, No.04-06-00518-CV, 2006 WL 3613190 (Tex. App.--San Antonio 2006, pet. denied). The Texas Supreme Court denied RCCL's petition for discretionary review relating to our decision.

While RCCL's first interlocutory appeal was pending, RCCL filed a motion to dismiss in the trial court based on its objection that Dr. Jones's report failed to adequately address the issue of causation. The basis of RCCL's motion was that Dr. Jones's report:

does not adequately address the causal connection between the alleged breaches and the death of Ms. Perez. While the report might be considered adequate with regard to the injuries from falls Ms. Perez allegedly suffered before her death, Jones has failed to provide anything other than impermissible conclusory statements as to the causal relationship between the alleged breaches and the death of Ms. Perez, which is critical given that in this case plaintiffs have alleged not only a survival action, but a wrongful death action as well.

 

The motion specifically criticized Dr. Jones for failing to link how Perez's falls were a substantial factor in her death and failing to state Perez would have survived or recovered "but for the alleged negligence that resulted in the falls."

The Abregos filed a response to RCCL's motion to dismiss, explaining why Dr. Jones's expert report satisfied the requirements of section 74.351 of the Texas Civil Practice and Remedies Code. In light of RCCL's criticisms of Dr. Jones's report, the Abregos also requested the court grant them a 30-day extension to file a supplemental report of Dr. Jones to cure the alleged deficiencies regarding her opinions as to causation. The trial court granted the Abregos' extension request, and Dr. Jones timely filed her supplemental report.

Dr. Jones's supplemental report is substantially more detailed than her initial report. The report begins with a discussion of Dr. Jones's qualifications and experience and discusses how falls generally affect the elderly.

Falls in the elderly with multiple medical conditions cause numerous complications that threaten their psychosocial and physical well-being, resulting in a decline in health. Psychosocial injuries often include increased pain, anxiety, depression, isolation and anxiousness. Physical injuries include soft tissue injury, fatigue, discomfort, difficulties in moving and mobility, internal bleeding resulting in hematomas, fractures and dislocations. To an elderly person with multiple medical conditions, a fall can lead to diminished capacity to deal with complications from medical conditions, and lead to an inability to recover from normal downturns and medical complications associated with medical conditions. When an elderly person with multiple medical conditions falls, the body's physical reserves necessary to respond to and handle the normal complications of those medical conditions is diverted away from necessary functions to respond to and resolve the acute injuries associated with the fall. This is especially true when the fall causes internal bleeding demonstrated in the form of hematomas and bruising, and more so when the falls cause more traumatic injuries such as fractures and broken bones.

 

Dr. Jones's supplemental report then discusses the last three falls Perez had before her death. Dr. Jones explains how medical records indicate that: (1) the November 6, 2003 fall "caused internal soft tissue injuries"; (2) the January 29, 2004 fall caused not only "bruising to the right side of neck, right eye, arm with swelling and bruising to both knuckles on hands" and "bruises to the right side of her chest," but also significantly impacted her physical abilities; and (3) the February 11, 2004 fall caused multiple soft tissue injuries such as "extensive bruising to her upper body, including bruising to her neck, upper chest, and under her right breast."

Dr. Jones's supplemental report concludes by providing an explanation of her opinions linking how the falls sustained by Perez were a cause of her death. Dr. Jones provides:

I specifically incorporate my prior opinion, and the opinions of Frances Lovett, R.N. and Sidney Gerber regarding the standard of care and the failure of [RCCL] to comply with the applicable standard of care and treatment with regard to the care and treatment of Ms. Perez. Ms. Perez's propensity to fall was well known to [RCCL], and they failed to properly intervene on her behalf to prevent the falls. As referenced in the reports of Ms. Lovett and Mr. Gerber, had [RCCL] appropriately assessed, evaluated and implemented fall prevention measures and safety measures for Ms. Perez, she would not have experienced the November 6, January 29 or February 11 falls. As discussed below, the falls were a proximate cause of the injuries suffered by Ms. Perez and contributed to and caused her death.

As stated in my prior report, based on my education, training, and experience, the falls and injuries from the falls experienced by Ms. Perez caused a decline in her health and well-being which contributed to and caused her death. The effects of a fall, as referenced above, on an elderly patient such as Ms. Perez are well known not only to nurses as part of their training, but also to physicians caring for the elderly. Falls are one of the leading causes of death in persons over the age of 65. It is foreseeable that the failure to comply with the standard of care as referenced in Ms. Lovett's and Mr. Gerber's reports, and in my prior report, will lead to a fall such as those experienced by Ms. Perez. It is also foreseeable and predictable that a fall in an elderly person such as Ms. Perez will cause debilitation, worsening of physical condition and is likely to result in worsening of medical conditions that causes or contributes to death.

Ms. Perez suffered three falls in a short period of time. As demonstrated by the medical records, each fall resulted in a decline in her health and physical state. The 2nd and 3rd falls were within a two-week period, during which time her congestive heart failure worsened. After the January 29th fall, Ms. Perez was incoherent and she had difficulty talking. It is my opinion, based on a reasonable degree of medical probability, that the cumulative effect of these two falls in such a short period of time caused repetitive injuries and significantly impacted Ms. Perez's physical abilities, and depleted her reserves and ability to respond to acute congestive heart failure. The documented injuries and the diminished abilities of Ms. Perez demonstrate a significant impact on her physical condition, and a depletion of her physical reserves. While congestive heart failure can cause death, Ms. Perez, with appropriate treatment had previously overcome acute symptoms. Ms. Perez's congestive heart failure had become complicated on prior occasions, resulting in hospitalizations on June 8, 2003. That same day, Ms. Perez had been found on the floor, indicating a fall. During that admission, Ms. Perez received appropriate treatment and was able to overcome the complications of congestive heart failure. On January 29th, a serious fall, Ms. Perez was again admitted to the hospital with complications from the fall and congestive heart failure. Ms. Perez remained in the hospital two days where she received appropriate treatment for congestive heart failure, regained strength and overcame the effects of the [congestive heart failure], resulting in discharge back to [RCCL]. However, by February 12th, Ms. Perez had suffered two significant falls in a two-week period, leaving her weak and debilitated. The bruising about the head, neck and upper body as a result of both the January 29th and February 11th falls were severe and indicated significant soft tissue injury. The injuries and physical debilitation incurred as a result of the two severe falls within a two-week period were a contributing factor and proximate cause of her worsening congestive heart failure and death on February 17, 2004.

It is my opinion, that without having experienced two falls in the two weeks prior to her hospital admission of February 14, and without having had the traumatic and stressful experience of the injuries incurred in those falls, that Ms. Perez would have survived the complication of her congestive heart failure in February 2004. As stated above, I base my opinion on the following: Ms. Perez had experienced prior incidents of acute congestive heart failure signs and symptoms, some of which resulted in hospitalizations; she had recovered from those instances, some of which required hospitalization, she experienced a decline in health after each of the three (3) falls in the months preceding her death; the falls documented on January 29 and February 11 resulted in serious injuries and extensive bruising; the injuries documented, along with my knowledge of and experience with treating similar patients, caused a decline in health and well-being of Ms. Perez and depleted her reserves and ability to respond to acute congestive heart failure.

 

The trial court denied RCCL's motion to dismiss, and this interlocutory appeal followed.

Standard of Review & Applicable Law We review a trial court's decision on a motion to dismiss a case under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. Evans v. Arambula, No. 04-06-00546-CV, 2007 WL 835432, *2 (Tex. App.--San Antonio 2007, no pet.) (mem. op.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. Petrus-Bradshaw v. Dulemba, 158 S.W.3d 630, 632-633 (Tex. App.--Fort Worth 2005, pet. denied). "Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Id. at 633.

Section 74.351(l) of the Texas Civil Practice & Remedies Code provides that a trial court should grant a motion challenging the adequacy of an expert report if the report does not represent an objective good faith effort to comply with the definition of an expert report in subsection (r)(6). Tex. Civ. Prac. & Rem.Code Ann. 74.351(l) (Vernon Supp. 2007); Evans, 2007 WL 835432 at *2. Subsection (r)(6) defines an "expert report" as a written report providing a fair summary of the expert's opinions regarding the standard of care, the manner in which the care rendered by the health care provider failed to meet the standard of care, and the causal relationship between that failure and the harm claimed. Tex. Civ. Prac. & Rem.Code Ann. 74.351(r)(6); Evans, 2007 WL 835432 at *2.

When determining whether a report represents a good faith effort to comply with the statute, the trial court's inquiry is limited to the four corners of the report. Longino v. Crosswhite, 183 S.W.3d 913, 916 (Tex. App.--Texarkana 2006, no pet.). "A 'good faith' effort requires that the report 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." Id. The expert report is not required to prove the defendant's liability, but rather only to provide notice of what conduct forms the basis of the plaintiff's complaints. Id. The omission of any of the statutory elements prevents the report from being a good faith effort. Id. at 917. Further, a report that merely states the expert's conclusions about the standard of care, breach, and causation does not meet the statutory requirements. Id.

Discussion

The Abregos' petition alleges wrongful death and survival claims. RCCL, however, does not challenge on appeal the adequacy of the Abregos' expert reports regarding the underlying survival claims. Consequently, we need not determine whether the Abregos' expert reports provide a fair summary of the applicable standards of care, the manner in which the standards were breached, and the causal relationship between the breach and the injuries Perez sustained in her falls before her death. See Tex. Civ. Prac. & Rem.Code Ann. 74.351(r)(6). The only issue on appeal is whether Dr. Jones's expert reports (separately or together) establish the causal relationship between any breach of the standard of care and the death of Perez for purposes of the Abregos' wrongful death claims. See id.

An expert report cannot merely state the expert's conclusions about causation. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). "'[R]ather, the expert must explain the basis of h[er] statements to link h[er] conclusions to the facts.'" Id. (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). Reading within the four corners of Dr. Jones's supplemental report, we conclude that it contains more than mere conclusory statements concerning causation as to the death of Perez. Dr. Jones explains in her supplemental report how falls cause complications for elderly individuals who have multiple medical conditions. She explains how injuries sustained during a fall divert the body's physical reserves away from handling the normal complications of the individual's particular medical conditions to respond to the acute injuries associated with the fall. Dr. Jones indicates that this is especially true when the fall causes hematomas and bruising. She details the specific injuries Perez sustained in her last three falls, which included swelling and extensive bruising, and explains how Perez's falls, particularly the last two falls which occurred within a two-week period, debilitated Perez's ability to overcome her ongoing problem of congestive heart failure. Dr. Jones further explains that the injuries Perez sustained during her falls were a proximate cause of Perez's death because if Perez had not incurred such injuries she would have had the physical reserves to overcome her congestive heart failure. Because Dr. Jones's supplemental report explains the basis of her statements and links her conclusions to the facts, we conclude that Dr. Jones's report is sufficient to satisfy the statutory requirement as to causation for the Abregos' wrongful death claims. The trial court thus acted within its discretion to find that Dr. Jones's supplemental report constitutes a good faith effort to comply with section 74.351(r)(6). (4)

 

RCCL argues that Dr. Jones's reports are deficient because Dr. Jones assumes Perez fell while in RCCL's care without any factual basis for this conclusion. Dr. Jones, however, did have a factual basis to support her conclusion that Perez fell while under RCCL's care. Not only was Dr. Jones aware from Perez's records that Perez had been discovered on the floor by RCCL's nurses, Dr. Jones recognized that the soft tissue injuries Perez sustained during her time at the nursing home were consistent with her falling. Because Dr. Jones had a sufficient factual basis for her conclusion, we reject RCCL's contention.

RCCL also argues that the Abregos' reports are deficient regarding causation on the part of the administrator of the nursing home facility (Humphrey) because Dr. Jones, the Abregos' only expert qualified to address causation, addressed only Regent Care Center's negligence and how its acts and omissions caused Perez's death. A similar argument was raised in Martin v. Abilene Regional Medical Center, No. 11-04-00303-CV, 2006 WL 241509, *4 (Tex. App.--Eastland 2006, no pet.) (mem. op.), where a hospital argued that the appellant's reports were deficient regarding causation on the part of the hospital's nurse because the nursing expert provided a report that addressed only the nurse's standard of care and failure to meet that standard and the physician expert provided a report that addressed only the negligence of the defendant physician and how that negligence was a proximate cause of the plaintiff's injuries. The court of appeals rejected the hospital's argument and read the reports of the nursing expert and the physician expert together to meet the requirements of section 74.351(r)(6) since the issue of causation in that case, i.e., how the failure to prescribe medicine caused the appellant's injuries, was the same for the conduct of the hospital's nurse and the physician who were both allegedly at fault for the failure to prescribe the medicine. Id. at *4-5. The court held "to the extent that the trial court may have reviewed [the physician expert's] report in isolation, the trial court abused its discretion because Section 74.351(i) expressly provides that a claimant may satisfy any requirement of the Act by providing expert reports of separate experts." Id. at *4.

As in Martin, the submission of the report of Sid Gerber, the Abregos' expert with regard to the standards of care for nursing home administrators and breaches by nursing home administrators, together with Dr. Jones's report, fulfilled section 74.351's causation requirement. When the reports of Gerber and Dr. Jones are read together, as was done in Martin, they allege that if Humphrey had appropriately assessed, evaluated, and implemented fall prevention and safety measures for Perez, Perez would have survived since she would not have sustained the injuries that depleted her physical reserves and diminished her ability to respond to the congestive heart failure. This allegation constitutes a good-faith effort to provide a fair summary of the casual relationship between Humphrey's action and Perez's death. See id. at *5.

Next, RCCL argues the trial court should have concluded that Dr. Jones's supplemental report is deficient because it is internally inconsistent. RCCL failed to provide this court with any authority within its argument demonstrating that the alleged internal inconsistency is a basis for declaring Dr. Jones's report deficient. Accordingly, RCCL has failed to properly present this issue and we decline to address it on appeal. See Tex. R. App. P. 38.1(h); Paradigm Oil, Inc. v. Retamco Operating, Inc., No. 04-06-00108-CV, 2007 WL 2427993, *4 (Tex. App.--San Antonio Aug. 29, 2007, no pet. h.) (mem.op).

RCCL further asserts that Dr. Jones's reports are deficient because she failed to explain and define "depletion of reserves," "specific homeostasis and metabolic control of reserves, metabolic cause of depletion, type of depletion, level of depletion, requisites to sustain reserves, the impact of each of Ms. Perez['s] pre-existing conditions on the reserves, the impact of Ms. Perez['s] pacemaker on the reserves, and the impact of the reserves on the pacemaker." This issue is presented for the first time on appeal, and thus is waived. See Tex. R. App. P. 33.1(a).

Lastly, RCCL argues that Dr. Jones's reports are deficient because Dr. Jones made no effort to take into consideration Perez's pre-existing conditions when she rendered her opinion on causation. See Pisasale v. The Ensign Group, Inc., No. 11-05-00196-CV, 2006 WL 2567400 (Tex. App.--Eastland 2006, pet. denied) (mem. op.) (holding expert report did not constitute a good-faith effort to comply with statute where, among other things, expert "made no effort to eliminate [the deceased's] preexisting conditions as the cause for the injuries described in his report."). We are unpersuaded by RCCL's argument because it is evident from Dr. Jones's report that she made an effort to address Perez's preexisting condition of congestive heart failure. (5) Not only does her report specifically address this condition, she explains why she believes Perez would have survived her congestive heart failure in February 2004 but for the injuries she sustained in her last two falls. Therefore, the trial court was within its discretion when it denied RCCL's motion to dismiss the Abregos' wrongful death claims. (6)

Conclusion

Based on the foregoing, the order of the trial court is affirmed.

Catherine Stone, Justice

 

1. She was later diagnosed with ischemic cardiomyopathy, gastroesophageal reflux disease, and Alzheimer's disease.

2. Lovett's report explained the standards of care for a nursing home related to safety and falls and opined that RCCL breached these standards of care, which resulted in Perez's falls. Gerber's report explained the standards of care for nursing facilities and their administrators related to the assessment, care, and supervision of residents with risks of falling and opined RCCL breached these standards of care, which resulted in Perez's falls. Jones's expert report provided the opinion that Perez's falls were the result of inadequate supervision and the failure to implement a plan to care for Perez and that the falls Perez experienced "contributed to her illness and death."

3. Dr. Jones's initial report provided:

 

As a result of inadequate supervision and nursing care harm was cause[d] to Ms. Magd[a]lena Perez. The lack of proper assessment resulted in the use of inadequate and inappropriate restraints that increased her fall risk. She had bruises to her upper body from inappropriate restraints. Multiple falls resulted in physical harm in the form of bruises and contusions that caused pain and discomfort. She was humiliated by bowel and bladder incontinence due to inappropriate restraints. Her quality of life was impacted due to pain, loss of self respect, and humiliation.

Ms. Magd[a]lena Perez suffered from coronary artery disease and eventually passed away on February 17, 2004. The frequent falls she experienced contributed to her illness and death. Falling is not a benign occurrence. The injuries from a fall cause a decline in health and well-being due to the actual physical injury as well as the stress that accompanies the event. Each fall caused a great deal of stress and physical injury.

The records given were not complete. If further documentation becomes available I reserve the right to alter this opinion.

4. RCCL contends this case is governed by Northeast Medical Center v. Crooks, No. 06-05-00149-CV, 2006 WL 1358361 (Tex. App.--Texarkana 2006, no pet.) (mem. op.). In Crooks, Mr. Crooks fell out of his bed, was injured, and eventually died. 2006 WL 1358361 at * 5. The expert report provided in the case stated that a breach of 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." Id. The court determined that the expert report failed to adequately causally link Mr. Crook's death to the breach of the standard of care. Id. at *5-6. The court stated:

 

[The expert's] statement that the broken hip, proximately caused by [Northeast Medical Center's] breaches of the standard of care, started Mr. Crooks'[s] "slow deterioration," which eventually resulted in his death, is conclusory. Absent some specific information connecting Mr. Crooks'[s] 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.

 

Id. at *6. Unlike the expert report in Crooks, however, Dr. Jones's report provides specific information linking the deceased's falls and injuries to Perez's death. As a result of Dr. Jones's report providing the necessary causal link, we do not believe Crooks controls the disposition of this appeal.

5. Perez's death certificate lists congestive heart failure as the cause of death.

6. We note that RCCL alleges the underlying case concerns the loss of chance of survival, which Texas law does not recognize in medical malpractice cases. See Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 404-07 (Tex. 1993). It is evident from the record, however, that the Abregos have not asserted claims for the loss of chance of survival as alleged by RCCL.