Baptist Health System d/b/a Baptist Medical Center and VHS San Antonio Partners, LP d/b/a Baptist Medical Center v. Amalia Pedraza and Frank Pedraza--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00404-CV
BAPTIST HEALTH SYSTEM d/b/a VHS San Antonio Partners, LP
d/b/a Baptist Health Center,
Appellant
v.
Amalia PEDRAZA and Frank Pedraza,
Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-19137
Honorable Martha B. Tanner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

 

Delivered and Filed: November 14, 2007

AFFIRMED

Amelia and Frank Pedraza sued Baptist Health System d/b/a VHS San Antonio Partners, LP d/b/a Baptist Medical Center after Mrs. Pedraza suffered a severe, third-degree burn to her left shoulder during physical therapy. Baptist appeals the trial court's order denying its motion to dismiss for insufficient expert report asserting: (1) the Pedrazas' expert was not qualified; (2) the expert report did not specify the manner in which the applicable standard of care was breached; and (3) the expert's opinion regarding causation was conclusory. We affirm the trial court's order.

Jurisdiction

The Pedrazas assert that this court lacks jurisdiction to consider this appeal because Baptist challenged the adequacy of the expert report under section 74.351(l) of the Texas Civil Practice and Remedies Code, as opposed to the absence of the expert report under section 74.351(b). Although we acknowledge that the courts of appeals are split on this jurisdictional issue, this court has rejected the substance of the arguments asserted by the Pedrazas in Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Martinez-Partido, No. 04-05-00868-CV, 2006 WL 1627844, at * 1-2 (Tex. App.--San Antonio June 14, 2006, pet. filed). Just as in Martinez-Partido, the trial court in this case "denied a motion that obviously sought a dismissal with prejudice due to deficient expert reports pursuant to section 74.351(b)." Id., at *2. Accordingly, we have jurisdiction to consider this appeal.

Qualifications

We review a trial court's determination that an expert is qualified under an abuse of discretion standard. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). In order for an expert to be qualified, the offering party must show that the expert has knowledge, skill, experience, training or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Id. at 153-54. "[W]hen a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields." Id. at 154.

Baptist asserts that the expert in this case, Rafael Parra, M.D., is not qualified because he is a neurosurgeon, not an orthopedic or plastic surgeon, and has limited experience with physical or occupational therapists. Dr. Parra's report, however, states:

I have employed physical therapists in my practice to provide physical and occupational therapies to my patients in the clinical setting. Therefore, I am familiar with the standard of care for a physical/occupational therapist. Through the years I have taught physical/occupational therapists clinically and in the hospital setting on how to care for those patients who undergo physical therapy for pain and rehabilitation including geriatric patients at risk for further injury and burns due to therapy modalities. Geriatric patients, especially those with diabetes mellitus, heart conditions, and circulatory problems are especially at high risk for burns with moist heat packs and/or heat modalities.

*******

My opinions expressed here are based on my education, training and clinical experience as a neurosurgeon, who has employed and trained physical therapists in the same or similar situation as Amalia Pedraza. As a neurosurgeon, I admit patients to the hospital for surgery and care or have physical therapists under my employ, provide physical, occupational or rehabilitative therapy to patients clinically. I have worked with therapists in either setting for 30 years.

 

This portion of Dr. Parra's report establishes that for thirty years, Dr. Parra has trained physical therapists in caring for patients undergoing physical therapy, including geriatric patients like Mrs. Pedraza who are at risk for burns due to therapy modalities. Accordingly, the trial court did not abuse its discretion in concluding that Dr. Parra had the "knowledge, skill, experience, training, or education" to testify regarding whether the physical therapists attending to Mrs. Pedraza breached the applicable standard of care thereby causing Mrs. Pedraza's injuries.

Breach of Standard of Care

Baptist next contends that Dr. Parra failed to "identify specifically what [Baptist] did, did not do, or should have done." We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

An expert report must provide a fair summary of the manner in which the care at issue failed to meet the applicable standards of care. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.--San Antonio 2004, no pet.). A fair summary is something less than a full statement of the applicable standard of care and how it was breached, but the fair summary must set out what care was expected, but not given. Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d 913, 917 (Tex. App.--Texarkana 2006, no pet.). The expert report must provide specific information about what the defendant should have done differently. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001).

Dr. Parra's report initially stated that the standard of care for a physical therapist taking care of a geriatric patient, especially a female patient with Mrs. Pedraza's medical history, would require the physical therapist to acquire knowledge of and take into consideration numerous factors listed in the report, including her history, pain status, endurance levels, etc. Dr. Parra also stated that the physical therapist would be required to design a plan of care based on numerous factors listed in the report, including the patient's pain and/or tolerance for activity, skin and vascular integrity, etc. Dr. Parra further stated that a physical therapist must be able to recognize and respond to changes in the patient's status and pain and to continue to modify or discontinue therapy as needed. With regard to complaints of pain during the appliance of moist heat therapy, Dr. Parra stated that a physical therapist would be required to: (1) inspect the area of pain; (2) assess any wound, edema, inflammation, or redness; and (3) report such information to the attending physician or nursing staff providing care to the patient. Finally, Dr. Parra stated that prior to including moist heat therapy in a therapy plan, the therapist must: (1) inspect the patient's vascular and skin integrity; (2) assess the patient's history and condition; and (3) recognize change or complaint as it relates to the patient's status.

Having set forth the applicable standard of care, Dr. Parra's report then summarized the care that was not given and what should have been done differently as follows:

It is my opinion that Baptist Hospital, by and through its physical/occupational therapy staff, fell below the standard of care and was therefore negligent in the care of Amalia Pedraza by:

 

1) Failing to assess Mrs. Pedraza's medical history of diabetes mellitus and skin and vascular integrity to tolerate moist heat on her skin as a therapy modality;

 

2) Failing to ensure the moist heat pack applied was at a safe temperature;

 

3) Failing to remove the moist heat pack when patient complained of the temperature being too hot;

 

4) Failing to timely and properly recognize, inspect and re-assess patient's condition in the area of the shoulder following complaints of being too hot;

 

5) Failing to advise, properly note or report to the attending physician or nurse of a potential burn to the left shoulder in order to advance proper treatment; and

 

6) Potentially reapplying heat the following day after report of pain to the area.

 

Although Baptist criticizes the report for failing to provide even more detail, a fair summary is something less than a full statement, and the report provided specific information about what the defendant should have done differently. See Palacios, 46 S.W.3d at 879-80. The trial court did not abuse its discretion in determining that Dr. Parra's report contained a fair summary of what care was expected, but not given. See id. at 879.

Causation

Baptist finally contends that Dr. Parra's report fails to link any facts supporting breach of the standard of care to Mrs. Pedraza's alleged damages. Again, we review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Bowie Memorial Hosp., 79 S.W.3d at 52.

Causation is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and without which the harm would not have occurred. Sloman-Moll v. Chavez, No. 04-06-00589-CV, 2007 WL 595134 (Tex. App.--San Antonio Feb. 28, 2007 pet. denied). In order to provide a fair summary with regard to causation, the expert must explain the bases for his statement and link his or her conclusions to the facts. Longino, 183 S.W.3d at 917-18.

Dr. Parra's report summarized his review of Mrs. Pedraza's medical records. Moist heat packs were applied during physical therapy on October 15, 2004, "on/off per pt tol." The following day, the notation "MHP on/off per pt tolerance" was scratched out but not initialed. The nursing notes stated that a bruise to Mrs. Pedraza's shoulder was noted and Mrs. Pedraza related that she had advised the therapist that the hot pack placed on her shoulder was too hot. When she was examined by a physician two days later, an unroofed blister had formed, and Mrs. Pedraza told the physician about the placement of the heat pack and her complaint of pain to the therapist. Ultimately, the burn developed eschar and plastic surgery was called to evaluate. A third-degree burn was diagnosed that required debridement and a skin graft.

After summarizing the facts and the means by which Baptist breached the applicable standard of care, Dr. Parra opined that the substandard medical care Mrs. Pedraza received from the therapy staff at Baptist proximately caused her injuries and damages consisting of a third degree burn necessitating excisions and skin grafts. Dr. Parra further opined, "This case has merit because increased prudence of precautions by the hospital, by and through its therapy staff, in those patients with risks of burn and infection, and skin integrity issues in reasonable medical probabilities, will prevent the trauma suffered by patients like Mrs. Pedraza." Having previously summarized six possible actions Baptist should have taken, Dr. Parra expressly links the substandard medical care to Mrs. Pedraza's burn. The trial court did not abuse its discretion in determining that Dr. Parra's report explained the bases for his statements and linked his conclusions to the facts.

Conclusion

The trial court's order is affirmed.

Alma L. L pez, Chief Justice