File: 070639F - From documents
Opinion issued December 7, 2007
Court of Appeals
District of Texas at Dallas
BAYLOR UNIVERSITY MEDICAL CENTER
AND SARA THOMAS, R.N., Appellants
On Appeal from the County Court at Law No.
Trial Court Cause No.
Whittington, Bridges, and Francis
In this interlocutory
appeal, Baylor University Medical Center (BUMC) and Sara Thomas, R.N. appeal the trial judge's order denying their objections
to Dianna Rosa's expert reports and denying their motion to dismiss. BUMC and
Nurse Thomas raise two issues: (i) error by the trial judge in finding a
sufficient expert report and denying their motion to dismiss, and (ii) whether a
deposition satisfies statutory expert report requirements. We affirm the trial
Rosa underwent orbital
decompression right eye surgery at BUMC. Dr. Harrington performed the surgery to address a condition that causes the
eye to swell in the eye orbit resulting in pressure on the eye. Dr. Harrington
noted postoperatively in the recovery room that Rosa's vision in the right eye
was intact. To control postoperative swelling, Dr. Harrington ordered an ice
pack placed on Rosa's right eye until the patient went to sleep. Nurse Thomas
placed an ice pack (a surgical glove containing ice) on Rosa's eye and
secured the ice pack in place with a velcro strap. Dr. Harrington was later
called to examine Rosa regarding swelling. When he arrived, he found the ice
pack had been secured with the velcro strap and removed the strap. Upon testing
Rosa's right eye, he found blindness (no light perception) .
Rosa filed this medical
malpractice action against BUMC See Footnote 1
and Nurse Thomas alleging the loss of sight in her right eye was due to Nurse
Thomas postoperatively securing the ice pack with a velcro strap. Rosa alleges
pressure from the velcro strap impeded blood flow and caused damage resulting in
loss of sight in her right eye.
Rosa served experts'
reports from Nurse Cynthia Manning and Dr. Alan M. Berg, and excerpts of the deposition of Dr. John N. Harrington to comply
with the statutory requirements for maintaining a medical malpractice action.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2007).
BUMC and Nurse Thomas challenged Rosa's expert reports and the deposition
excerpts of Dr. Harrington. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a). The trial judge denied BUMC and Nurse Thomas's motion to dismiss.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). BUMC and Nurse
Thomas filed this appeal.
As an initial matter, we
address Rosa's contention that the Court lacks jurisdiction over this interlocutory appeal. We have previously concluded
we have jurisdiction under similar facts and circumstances as are presented
here. See Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.-Dallas 2007, no
pet.) (court has jurisdiction when trial judge's order denies in part request
for dismissal challenging adequacy of expert report under Texas Civil Practices
and Remedies Code section 74.351(l) (Vernon Supp. 2007)). See also
HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 908 (Tex. App.-Dallas 2007, no
pet.); Harris v. Jones, 2007 WL 1866879, *1 (Tex. App.-Dallas June 29,
2007, no pet.); Bidner v. Hill, 231 S.W.3d 471, 472 (Tex. App.-Dallas
2007, pet. denied); Romero v. Lieberman, 232 S.W.3d 385, 388 (Tex.
App.-Dallas 2007, no pet.).
Rosa asserts that BUMC
and Nurse Thomas waived objections to Rosa's tendered experts' reports by making inadequate objections. Rosa claims
that the alleged failure of BUMC and Nurse Thomas to set out in detail the bases
for their objections constitutes waiver of those objections. We
Chapter 74 of the Texas
Civil Practice and Remedies Code sets out the deadlines for objecting to the sufficiency of served experts' reports and
for objecting to the qualifications of experts on standard of care and
causation. Under “Procedural Provisions,” with regard to challenging the
sufficiency of an expert report, section 74.351(a) provides:
Each defendant physician
or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the
report not later than the 21st day after the date it was served, failing which
all objections are waived.
With respect to challenging qualifications of an expert
witness in a suit against a health care provider
and the qualifications of an expert witness on causation in a health care
liability claim, the statutes provide in pertinent part:
A pretrial objection to
the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the
objecting party receives a copy of the witness's curriculum vitae or the 21st
day after the date of the witness's deposition.
See Tex. Civ. Prac. &
Rem. Code Ann. §§ 74.402(f), 74.403(d) (Vernon 2005). As to a person giving
opinion testimony on whether a health care provider departed from accepted
standards of health care, expert means an “expert qualified to testify under the
requirements of Section 74.402.” Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(5)(B). With respect to a person giving opinion testimony about the
causal relationship between the injury, harm, or damages claimed and the alleged
departure from the standard of care in any health care liability claim, expert
means “a physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence.” Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(5)(C). “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 physician or health care provider failed to
meet the standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.
Tex. Civ. Prac. & Rem. Code Ann.
The record shows that
within the 21-day deadline imposed by statute, BUMC and Nurse Thomas objected to the experts' reports (with curriculum
vitaes) of Nurse Manning and Dr. Berg, as well as the deposition excerpts of Dr.
Harrington (accompanied by the curriculum vitae information obtained from Dr.
Harrington's internet website). See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a). With regard to Nurse Manning and Dr. Berg, BUMC and Nurse Thomas
raised the objections to the tendered expert reports “that the qualifications
and the expert report[s] do not meet the required elements of an expert report
under 74.351,” citing sections 74.351(r)(5) and (6). BUMC and Nurse Thomas
further filed objections to the sufficiency of the reports under § 74.351(a),
stating they are not valid reports under the statute. As to Dr. Harrington, BUMC
and Nurse Thomas filed objection to the qualifications of Dr. Harrington and
objected that the deposition excerpts do not constitute an expert report under
section 74.351(r)(6), therefore objecting “to the sufficiency of the report
under § 74.351(a).”
Thus, BUMC and Nurse
Thomas timely raised objections to the qualifications of Nurse Manning, Dr. Berg, and Dr. Harrington. BUMC and Nurse Thomas
further timely objected to the sufficiency of the experts' reports and
deposition excerpts served by Rosa. In their later filed motion to dismiss, BUMC
and Nurse Thomas elaborated on the specific arguments concerning the statutory
objections raised. Therefore we do not agree that BUMC and Nurse Thomas failed
to preserve the timely objections by not including specific details with the
statutory objections raised.
Medical Liability Expert
An appellate court
reviews a trial judge's decision on a motion to dismiss a claim under section 74.351 of the Texas Civil Practice and
Remedies Code for an abuse of discretion. See Jernigan v. Langley, 195
S.W.3d 91, 93 (Tex. 2006) (per curiam) (discussing former article 4590i); Am.
Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)
(discussing former article 4590i); Simonson v. Keppard, 225 S.W.3d 868,
871 (Tex. App.-Dallas 2007, no pet.).
A trial judge abuses his
discretion if he acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Gray v.
CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006,
no pet.) (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)).
When reviewing matters committed to the trial judge's discretion, an appellate
court may not substitute its judgment for that of the trial judge. See
Gray, 189 S.W.3d at 858 (citing Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding)). A trial judge does not abuse his discretion
merely because he decides a discretionary matter differently than an appellate
court would under similar circumstances. See Gray, 189 S.W.3d at 858
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985)). However, a trial judge has no discretion in determining what the
law is or in applying the law to the facts. See Walker, 827 S.W.2d at
840. A clear failure by the trial judge to analyze or apply the law correctly
will constitute an abuse of discretion. Walker, 827 S.W.2d at
An expert report under
section 74.351(r) of the Texas Civil Practices and Remedies Code must provide enough information to fulfill two purposes if
it is to constitute an objective good faith effort. The report must inform the
defendant of the specific conduct the plaintiff has called into question and
must provide a basis for the trial judge to conclude the claims have merit.
See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at
An expert report must
provide a fair summary of the expert's opinions as of the date of the report regarding the applicable standard of care,
the manner in which the care rendered by the physician failed to meet the
standards, and the causal relationship between that failure and the injury,
harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(6). The statute does not require that a single expert address all
liability and causation issues with respect to a health care provider. Section
Notwithstanding any other provision of this section, a
claimant may satisfy any requirement of this
section for serving an expert report by serving reports of separate experts
regarding different physicians or health care providers or regarding different
issues arising from the conduct of a physician or health care provider, such as
issues of liability and causation. Nothing in this section shall be construed to
mean that a single expert must address all liability and causation issues with
respect to all physicians or health care providers or with respect to both
liability and causation issues for a physician or health care
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). See HealthSouth
Corp., 228 S.W.3d at 907 (that expert report
fails to address causation does not render it otherwise incompetent or
A report cannot merely
state the expert's conclusions as to the standard of care, breach, and causation. See Palacios, 46 S.W.3d at 879;
Hansen v. Starr, 123 S.W.3d 13, 20 (Tex. App.-Dallas 2003, pet. denied);
Garcia v. Marichalar, 198 S.W.3d 250, 254 (Tex. App.-San Antonio 2006, no
pet.); Gray, 189 S.W.3d at 859. The expert must explain the basis for his
statements and must link his conclusions to the facts. Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002); Garcia, 198 S.W.3d at 254;
Gray, 189 S.W.3d at 859. A trial judge may not draw any inferences.
See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Instead,
the trial judge must rely exclusively on the information contained within the
four corners of the report. See Palacios, 46 S.W.3d at 879; Gray,
189 S.W.3d at 859. The expert report does not need to marshal all of the
plaintiff's proof, but it must include the expert's opinion on each of the
elements identified in the statute. See Ehrlich v. Miles, 144 S.W.3d 620,
626 (Tex. App.-Fort Worth 2004, pet denied). The expert report may be informal
and the information presented need not meet the same requirements as evidence
offered in summary judgment proceedings or in a trial. See Ehrlich, 144
S.W.3d at 626. Also, it is the substance of the opinions, not the technical
words used, that constitutes compliance with the statute. See Ehrlich,
144 S.W.3d at 626-27.
BUMC and Nurse Thomas
challenge the sufficiency of the expert reports of Nurse Manning and Dr. Berg. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(l). They also challenge the qualifications of Nurse Thomas
to render opinions on standard of care and Dr. Berg to render opinions on
causation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.402(f),
74.403(d). After reviewing the record, we cannot agree.
Manning, a certified critical care nurse, holds a master of science degree
in nursing. In addition to teaching nursing
students, she has practiced as a registered nurse since 1983, with experience in
caring for post-operative patients who have doctors' orders for cold therapy for
a part of the body. Through her experience, education and training, she is
familiar with the nursing standards of care applicable in this matter and to
render opinions regarding the manner in which the nursing standard of care was
allegedly breached by Nurse Thomas.
Dr. Berg, with
twenty-five years practice in ophthalmology and board certifications in ophthalmology and eye surgery, states:
. . . I have been
involved with treating eye conditions concerning the effects of surgery on
or around the eyes, involving reasons and means
for controlling swelling in or around the eyes pre and postoperatively, and
their effects on vision. I have performed or been involved in treating over
40,000 surgical cases, and of those, over 500 involve similar issues concerning
eye pressure(s) after surgery. I have been directly involved with these cases
where pressure on the eye or about the eye, if not treated properly, can lead to
loss of vision as it did in this case.
We conclude that Nurse
Manning's qualifications as set forth sufficiently qualify her to opine on the nursing standard of care and the alleged
breach of the standard of care, and Dr. Berg's qualifications as set forth
sufficiently qualify him to opine on causation.
Nurse Manning's report
includes the following with regard to the standard of care and her opinion that Nurse Thomas breached the nursing standard of
There was not an order in the chart which indicates to secure the ice
pack in any manner. . . . Promoting and
maintaining a safe environment involves ensuring that all equipment and
treatments are appropriately applied. . . . The registered nurse has an
obligation to ensure that the application of an ice pack is as the physician has
ordered. Applying an ice pack or any other treatment or equipment
inappropriately could cause harm to the client. . . .
The physician is responsible for directing medical treatment
such as the application of an ice pack to a body
part. Before a deviation from the physician order occurs, such as securing the
ice pack with a strap, the nurse must contact the physician to ensure this is
appropriate method of application. . . .
nursing staff at Baylor University Medical Center including Nurse Thomas, RN,
should not have placed a strap without an order
or should have called to clarify that a strap could be used to secure the ice
pack over Ms. Rosa's eye before placing the strap on the ice pack. . . . Nurse
Thomas should not have applied the strap without an order or she should have
called to clarify the need for a method to secure the ice pack prior to placing
the strap on the ice pack.
report contains the following regarding causation opinions:
In this case, an ice pack
was ordered to be applied on the eye and on the orbital tissue surrounding the eye to control postoperative swelling. This
is the usual and customary protocol in cases of this nature. This is important,
because if swelling is not controlled, it can lead to pressure upon the eye and
damage to the inner structures of the eye, the retina, and optic nerve. . . .
The issue in this case, is the excessive pressure placed onto the eye, which was
caused by the Velcro strap that pushed the ice pack tightly against the
globe-eye, after Diana Rosa's orbital decompression surgery . . ., therefore,
transmitting pressure throughout the eye. This increase in eye pressure caused
decreased blood flow to both the retina and optic nerve of the eye, to the point
that any tissue relying on blood supply would be permanently damaged. . . .
[D]r. Harrington found the ice pack had been strapped onto Mrs. Rosa with a
Velcro strap and [Dr. Harrington] immediately removed the strap and found no
light perception, which established a direct case [sic] and effect in the Velcro
strap and the ice pack leading to the loss of sight. Dr. Harrington noted in the
Baylor records that it appeared Mrs. Rosa's loss of vision was due to pressure
on the eye due to the ice pack being strapped on the eye with a Velcro strap
without any order from him to use the Velcro strap. I believe that Dr.
Harrington followed the usual protocol to control postoperative swelling with an
ice pack. Unfortunately for Mrs. Rosa, the Velcro was applied over the ice pack,
leading to complete loss of sight in her right eye.
. . . I believe that the causative agent in the loss of vision of Mrs.
Rosa's right eye was due to the Velcro strap
attached to the ice pack that was placed over her right eye after surgery. This
led to excessive pressure, which deprived the retina and the optic nerve of
oxygen, leading to permanent loss of sight. I could find no other plausible
cause other than the pressure that the Velcro strap transmitted through the ice
pack to the eye that would lead to her loss of vision.
Through these reports,
the experts have addressed how Nurse Thomas's conduct has been called into question, as well as the causal relationship
between Nurse Thomas's alleged error and Rosa's loss of sight. The reports
provide a sufficient basis for the trial judge to conclude that Rosa's claims
against Nurse Thomas have merit. We conclude that Nurse Manning's and Dr. Berg's
reports represent objective good faith efforts to comply with the definition of
an expert report. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(6). Therefore, we conclude the trial judge did not abuse his
discretion in overruling BUMC's and Nurse Thomas's objections to Rosa's reports
of Nurse Manning and Dr. Berg or in denying BUMC and Nurse Thomas's motion to
dismiss. We overrule BUMC and Nurse Thomas's first issue.
In light of
our disposition of the first issue, we need not address whether the deposition excerpts of Dr. Harrington satisfy the
requirements of a statutory expert report. See Tex. R. App. P.
We affirm the trial
judge's order overruling BUMC and Nurse Thomas's objections toRosa's experts' reports and denying BUMC and Nurse Thomas's
motion to dismiss.
Allegations against BUMC are limited to vicarious liability.