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terri-m-norris-v-tenet-houston-health-system-aka-houston-northwest ( 2006 )


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  • Affirmed and Memorandum Opinion filed May 30, 2006

    Affirmed and Memorandum Opinion filed May 30, 2006.

     

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-04-01029-CV

    ____________

     

    TERRI M. NORRIS, Appellant

     

    V.

     

    TENET HOUSTON HEALTH SYSTEM

    A/K/A HOUSTON NORTHWEST MEDICAL CENTER

    D/B/A HOUSTON NORTHWEST PARTNERS, LTD.;

    JOHN WILLIAMS, D.O.; KAREN MORGAN, R.N.; NORMA WHEELER, L.V.N.; AND VIRGINIA DAVIS, L.V.N., Appellees

     

      

     

    On Appeal from the 133rd District Court

    Harris County, Texas

    Trial Court Cause No. 02-58071

     

      

     

    M E M O R A N D U M   O P I N I O N

    In this medical malpractice case, we review the trial court=s orders dismissing the plaintiff=s claims against four individual defendants for alleged deficiencies in the plaintiff=s expert report and the trial court=s grant of summary judgment in favor of the sole institutional defendant. Because the trial court could have reasonably determined that the plaintiff=s expert report did not represent a good‑faith effort to comply with statutory requirements, we affirm its orders of dismissal.  Further, because the plaintiff failed to comply with requirements governing her response to the institutional defendant=s motion for summary judgment, we affirm the trial court=s order granting summary judgment.

    I. Factual and Procedural Background

    Appellant Terri Norris alleges she was injured by a narcotic overdose following surgery.  She filed suit against physician John Williams, nurses Karen Morgan, Norma Wheeler, and Virginia Davis (collectively Athe Nurses@), and Tenet Houston Health System (ATenet@).[1]  On November 7, 2000, Norris entered Northwest Memorial Medical Center and underwent a laparoscope-assisted vaginal hysterectomy which was performed by Dr. Williams.   In order to manage Norris=s post-operative pain, Dr. Williams prescribed Oxycontin and certain other drugs. Norris contends the Nurses administered the Oxycontin without detecting its negative effects and, as a result, she suffered a severe reaction to the Oxycontin and had to be resuscitated.

    Pursuant to the former Medical Liability and Insurance Improvement Act (MLIIA),[2] Norris filed a report by her expert, Dr. Gerald L. Bullock, within 180 days of filing suit.  The expert report purported to show that each of the defendants had breached the standard of care owed to Norris, causing her to sustain damages. The Nurses moved to dismiss the claims against them on the grounds that Dr. Bullock=s report failed to comply with section 13.01 of the MLIIA because it did not identify any of the Nurses by name.  Norris filed a response to the motion at 3:23 a.m. on the motion=s submission date.  Later that day, the court granted

    the Nurses= motion to dismiss, reciting in its order that Norris had failed to respond.  Dr. Williams filed a separate motion to dismiss the claims against him on the grounds that the expert report failed to comply with sections 13.01 and 14.01 of the MLIIA.  The trial court dismissed these claims as well, again noting that Norris failed to respond.[3]  The trial court did not state in either of its dismissal orders whether it granted the motions on the merits or based upon Norris=s failure to timely respond.

    Tenet filed a no-evidence motion for summary judgment, and Norris responded with her own affidavit, affidavits from a companion and Dr. Bullock, as well as her medical records. Dr. Bullock=s affidavit was substantially similar to his expert report.  In its reply, Tenet objected to Dr. Bullock=s opinions on the ground that he was not qualified to offer an expert opinion on the administration of Oxycontin and moved to strike his affidavit.  Without ruling on Tenet=s motion to strike, the trial court granted summary judgment, disposing of Norris=s remaining claims.

    Norris moved for a new trial, arguing that the trial court was required by section 13.01(g) of the MLIIA to conduct a hearing before dismissing her claims against the Nurses and Dr. Williams.  Regarding her claims against Tenet, Norris argued in her motion for new trial that, to the extent that the motion was based on an attack on Dr. Bullock=s credentials, the trial court was required to conduct a hearing on Tenet=s motion for summary judgment.  The trial court denied the motion, and Norris appeals.

    II.  Issues Presented

    In four issues, Norris contends the trial court: (a) abused its discretion in granting the motions to dismiss of the Nurses and Dr. Williams for failure to file adequate expert witness reports, (b) erred in granting Tenet=s no-evidence motion for summary judgment, (c) abused its discretion in striking the evidence Norris submitted in response to Tenet=s motion for summary judgment, and (d) abused its discretion in denying Norris=s motion for new trial.

    III.  Analysis

    Because the issues concerning four of the five appellees turn on the adequacy of Norris=s expert report under the MLIIA, we begin by reviewing the Act=s requirements. 

    A claimant under the MLIIA must provide an expert report to the defendant health care provider within 180 days of filing suit.[4]  An Aexpert report@ means a written report by an expert that provides a fair summary of the expert=s opinions regarding applicable standards of care, the manner in which the care rendered failed to meet those standards, and the causal relationship between that failure and the damages claimed.[5]  If a claimant fails to timely provide the required report, the court must, on the motion of the affected health care provider, dismiss the claims against that provider with prejudice.[6]  If the claimant timely files a report, the defendant may challenge the report=s adequacy, and the trial court must dismiss the claims if the court determines that the report does not represent a good faith effort to comply with the statute.[7]   We review the trial court=s determination for an abuse of discretion.  Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

    A good faith effort to comply with the MLIIA Arequires, as to each defendant, a fair summary of the expert=s opinions about the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury.@ Palacios, 46 S.W.3d at 878 (emphasis added); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (same); see also Rittmer v. Garza, 65 S.W.3d 718, 722B23 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (finding expert report inadequate on the grounds that it referred to defendants collectively and did not explain the causal relationship between each defendant=s acts and the plaintiff=s injury).  In determining whether the report represents a good faith effort to comply with the MLIIA, the court does not look outside the report because Athe only information relevant to the inquiry is within the four corners of the document.@  Palacios, 46 S.W.3d at 878.

    A report need not marshal the plaintiff=s proof, but it must include the expert=s opinion on each of the elements identified in the statute.  Palacios, 46 S.W.3d at 878.  In setting out the expert=s opinions on each of those elements, the report must provide enough information to fulfill two purposes.  First, the report must inform the defendant of the specific conduct the plaintiff has called into question.  Id. at 879.  Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.   Id.  A report that omits any statutory requirement or that merely states the expert=s conclusions about the standard of care, breach, and causation does not fulfill these two purposes.  Id. While a Afair summary@ is something less than a full statement of the applicable standard of care and how it was breached, it must set out what care was expected, but not given.  Id. at 880.

    A.        Did the Trial Court Abuse Its Discretion in Dismissing Norris=s Claims Against Morgan, Wheeler, Davis, and Dr. Williams?

    On appeal, Norris argues the trial court abused its discretion by dismissing Norris=s claims against the Nurses and Dr. Wheeler because Dr. Bullock=s expert report met the requirements of the MLIIA.  In addition, Norris argues the trial court should have conducted a hearing before dismissing her claims.  In the alternative, Norris contends the trial court abused its discretion by failing to grant Norris an extension of time to file an amended expert report.

    1.         Dismissal of Claims Against Nurses Morgan, Wheeler, and Davis

    The Nurses filed a motion to dismiss Norris=s claims on the grounds that Dr. Bullock=s expert report failed to comply with the requirements of section 13.01 of the MLIIA. Specifically, the Nurses asserted that the report was inadequate because it did not refer to each nurse by name, instead referring generally to Apersonnel at Houston Northwest Medical Center,@ Anursing personnel,@ Ahospital nurses,@ and Anurses at Houston Northwest Memorial Medical Center.@  Norris argues the expert report need not identify Morgan, Wheeler, and Davis specifically because their identities can be determined from hospital records and because the nurses did not deny they were among the Anurses@ to whom the expert report referred.  We disagree.

    a.         Expert Report Requirements

    Section 13.01 expert report provisions apply to all health care liability claims and require the plaintiff to satisfy the expert report requirements for Aeach >health care provider= against whom such claim is being made.@ Horizon/CMS Healthcare Corp., 34 S.W.3d at 905 (emphasis added).  An expert report asserting that multiple defendants are negligent must explain how each defendant specifically breached the standard and how that breach caused or contributed to the plaintiff=s injury.  Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.CCorpus Christi 2004, no pet.); Wood v. Tice, 988 S.W.2d 829, 831 (Tex. App.CSan Antonio 1999, pet. denied) (stating, Athe report must specifically refer to the defendant and discuss how that defendant breached the applicable standard of care@). Collective assertions of negligence against various defendants are inadequate.  See, e.g., Doades v. Syed, 94 S.W.3d 664, 671B72 (Tex. App.CSan Antonio 2002, no pet.) (finding expert report inadequate because it failed to set forth the standard of care for each defendant individually and contained mere conclusions regarding breach and causation); Rittmer, 65 S.W.3d at 722B23  (finding expert report inadequate because it referred to the defendants collectively and did not explain the causal relationship between each defendant=s acts and the plaintiff=s injury); Whitworth v. Blumenthal, 59 S.W.3d 393, 396 (Tex. App.CDallas 2001, no pet.) (finding expert report inadequate where it Adoes not identify any particular defendant to which it applies and instead generally asserts >the health care providers= failed to meet the standard of medical care . . . .@); see also Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (stating, AA conclusory report does not meet the Act=s requirements . . . .@). The expert report must explain the basis of the expert=s statements to link his conclusions to the facts.  Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).  If the expert report, standing alone, is inadequate, then dismissal is appropriate.[8] 

    Norris=s expert report does not identify Morgan, Wheeler, and Davis or explain how any of Dr. Bullock=s statements applies to them.  As noted, Norris contends that because the identities of the Nurses are readily ascertainable from the medical records, they need not be specified in the expert report.  However, neither we nor the trial court may look outside the expert report to determine its adequacy.  See Palacios, 46 S.W.3d at 878 (ABecause the statute focuses on what the report discusses, the only information relevant to the inquiry is within the four corners of the document.@). Thus, we conclude the expert report is inadequate as to the Nurses as a matter of law.

    b.         Hearing on the Motion to Dismiss


    In a sub-issue, Norris argues the trial court erred by dismissing her claims against the Nurses without first holding a hearing on the Nurses= motion to dismiss.[9]  We disagree. Unless required by the express language or the context of the particular rule, the term Ahearing@ does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court.  Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Specifically, a motion to dismiss pursuant to section 13.01 of the MLIIA may be decided on written materials alone. See Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.CHouston [1st Dist.] 2000, no pet.) (stating, AArticle 4590i does not expressly require an oral hearing on a motion to dismiss. As a general rule, an adjudication based on written materials alone is sufficient.@); Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (holding a motion to dismiss pursuant to article 4590i may be properly Aheard@ by submission). 

    Moreover, Norris has cited no evidence showing that she requested an oral hearing on the motion to dismiss her claims against the Nurses.  See Harris (Tex.) Civ. Dist. Ct. Loc. R. 3.3.3 (AMotions may be heard by written submission.@); Harris (Tex.) Civ. Dist. Ct. Loc. R. 3.3.4 (ASettings for oral hearings should be requested from the court clerk.  The notice of oral hearing shall state the time and date.@). Where an oral hearing is neither required nor requested, the trial court does not abuse its discretion in deciding the motion on written submission.

    c.         Extension of Time to File an Adequate Expert Report 

     

    Norris next contends that section 13.01(g) of the MLIIA requires the court to conduct a hearing to determine whether she is entitled to an extension of time to amend her expert report before dismissing her claims.  Section 13.01(g) states:

    Notwithstanding any other provision of this section, if a claimant has failed to comply with [the expert report deadline] and after hearing the court finds that the failure of the claimant or the claimant=s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.  A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion [to dismiss for failure to timely provide an adequate expert report].[10]

    Norris filed a response opposing the Nurses= motion to dismiss at 3:23 a.m. on the day the motion was set for hearing. Although her response to the motion was untimely under the local rules, a motion for leave to amend her expert report would nevertheless have been timely had it been filed then.  Compare Harris (Tex.) Civ. Dist. Ct. Loc. R. 3.3.3  (AResponses shall be filed at least two working days before the date of submission, except on leave of court.@) with MLIIA section 13.01(g) (AA motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion [to dismiss].@). Norris, however, did not request an extension of time to amend her expert report.  To the contrary, she argued it was adequate as submitted.  Under these circumstances, we cannot say the trial court abused its discretion by failing to grant Norris, sua sponte, an extension of time to prevent a dismissal that she did not timely oppose.  Therefore, we hold the trial court did not abuse its discretion in dismissing Norris=s claims against Morgan, Wheeler, and Davis.

    2.         Dismissal of Claims Against Dr. Williams

    Following the dismissal of the Nurses, Dr. Williams moved to dismiss Norris=s claims against him on the grounds that her expert report failed to comply with sections 13.01 and 14.01 of the MLIIA.[11]  Dr. Williams filed his motion to dismiss on December 4, 2003, and notified Norris that the motion would be heard by submission on Monday, December 15, 2003, at 8:00 a.m.  On that day, the trial court granted Dr. Williams=s motion to dismiss, noting that Norris had not filed a response. 

    On appeal, Norris argues the trial court abused its discretion in dismissing her claims for failure to satisfy the MLIIA=s expert report requirements because Dr. Bullock=s report adequately stated Dr. Bullock=s qualifications, the standard of care applicable to Dr. Williams, Dr. Williams=s breach of the standard of care, and the causal link between the breach and Norris=s damages.  In addition, Norris argues the trial court abused its discretion by ignoring her opposition to Dr. Williams=s motion to dismiss; by refusing to consider Norris=s motion for an extension of time to correct any deficiencies in her expert report; and by failing to conduct an oral hearing on Norris=s motion for an extension of time.

    a.         Dr. Bullock=s Report

    The trial court did not specify the grounds on which it dismissed Norris=s claims against Dr. Williams.  However, after reviewing Dr. Bullock=s expert report, we conclude the report does not represent a good faith effort to comply with statutory requirements.  Specifically, the expert report fails to adequately state (a) Dr. Bullock=s qualifications, (b) the applicable standard of care, and (c) causation. Each of these defects constitutes an independent ground for dismissing Norris=s claims against Dr. Williams.

    i.          Qualifications

    To comply with the MLIIA, an expert providing opinion testimony regarding a physician=s departure from the standard of care must show that he or she is a physician who (1) is practicing medicine at the time such testimony is given or at the time the claim arose, (2) has knowledge of accepted standards of medical care 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 medical care.[12]  The offering party must establish that the expert has knowledge, skill, experience, training, or education Aregarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.@ Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (emphasis added).  If the expert is not qualified to testify under section 14.01(a) of the MLIIA, then the report is inadequate.  See In re Windisch, 138 S.W.3d 507, 511 (Tex. App.CAmarillo 2004, no pet.). AThat the person is so qualified must appear from the report, with its accompanying curriculum vitae.@ Id.

    Although Dr. Bullock is a board-certified obstetrician-gynecologist, his report fails to demonstrate his familiarity with the standard of care applicable to Norris=s illness, injury, or condition as required by section 14.01(a)(2) of the MLIIA. Dr. Bullock instead states, AI am familiar with the standard of care of an obstetrician-gynecologist in the care of women.@ (emphasis added).  But, Norris=s gender is neither the specific issue before the court, nor is it an illness, injury, or condition.  The expert report does not demonstrate that Dr. Bullock has knowledge of accepted standards of care for the administration of Oxycontin, which allegedly caused Norris=s injury, or the condition for which Oxycontin was prescribed, which was post-operative pain management following a laparoscope-assisted vaginal hysterectomy. Accordingly, we conclude the trial court did not abuse its discretion in dismissing Norris=s claims against Dr. Williams because Norris=s expert report fails to demonstrate Dr. Bullock=s familiarity with the applicable standard of care.

    ii.         Standard of Care

     

    We next examine whether Dr. Bullock=s report adequately explains the applicable  standard of care.  It is not sufficient for a medical expert to simply state that he knows the standard of care and then draw a conclusion.  McIntyre v. Smith, 24 S.W.3d 911, 914B15 (Tex. App.CTexarkana 2000, pet. denied). The expert report Amust set out what care was expected, but not given.@ Palacios, 46 S.W.3d at 880; see also McIntyre, 24 S.W.3d at 914B15 (the expert must explicitly state the standard of care and explain how the defendant=s acts met or failed to meet that standard).

    Dr. Bullock=s report does not explain the standard of care that Dr. Williams owed to Norris but failed to satisfy.  Dr. Bullock makes conclusory statements about what Aany physician@ is required to know, but he never explains what Dr. Williams was required to do.[13]  The report states:

    The standard of care of any physician, when prescribing powerful narcotics such as Oxycontin, requires a knowledge of the recommended dosage, contraindications, and precautions, at least to the extent that a life-threatening dosage is not given. This standard does not require that a physician know everything there is to know about a drug.  In cases in which a physician is not adequately aware of a drug=s dosage and potentials [sic] for dangerous complications, multiple resources are readily available for assistance, such as Physician=s Desk Reference and hospital Pharmacists [sic].  Here, the problems with Oxycontin which a prescribing physician must know include the following:

     

    1.       It is indicated only for pain which is expected to last more than a few days, i.e., chronic pain.

    2.       It is not recommended in the immediate post-operative period.

    3.       Its dose should be reduced to one third, or one half in the presence of other sedatives such as general anesthesia or other narcotics.

    4.       The normal initial dose (in a patient not receiving other CNS depressants) for a patient not opioid tolerant should be 10 mg every twelve hours.

    (emphasis added).  This general standard of care states only what Aany physician@ should know about Oxycontin.  It does not explain how Dr. Williams should have treated Norris. Norris asks us to infer the required standard of care from her expert=s statement of a general standard of knowledge for any physician; however, a trial court does not abuse its discretion in dismissing a suit in which one is required to infer the standard of care from the allegations in the expert report.  See Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 343 (Tex. App.CTexarkana 2004, pet. denied);  see also Strom v. Mem=l Hermann Hosp. Sys., 110 S.W.3d 216, 224 (Tex. App.CHouston [1st Dist.] 2003, pet. denied) (concluding a report that arguably addressed breach of the standard of care did not address the standard of care itself).  General conclusory statements about the standard of care applicable to any given case do not comply with section 13.01(r)(6).  See Palacios, 46 S.W.3d at 879.

    The expert report in this case illustrates why the standard of care applicable to a particular case cannot be inferred from generalizations. For example, the statement that Oxycontin is Anot recommended in the immediate post-operative period@ is facially neutral and does not identify the pain relief measures that a reasonable physician is required to take in a similar case.  Moreover, the statement that the dosage of Oxycontin should be reduced in the presence of general anesthesia supports an inference that Oxycontin can be appropriately administered post-operatively in some cases.  Although Dr. Bullock writes that Oxycontin is indicated only for pain Aexpected to last more than a few days, i.e., chronic pain,@ he does not address the expected duration of Norris=s pain or identify any medication that Dr. Williams should have prescribed instead of Oxycontin.


    Although the report states that any physician should know that the Anormal initial dose@ should be ten milligrams every twelve hours, the report does not support an inference that a reasonable obstetrician-gynecologist must prescribe the normal initial dose of Oxycontin following a laparoscope-assisted vaginal hysterectomy in a patient with Norris=s medical history.  In fact, the report addresses Norris=s history in a cursory fashion, and does address whether this was an initial dose for Norris, or whether she was previously treated with Oxycontin.  Although Dr. Bullock states that there is Ano recorded history of medication or narcotic abuse,@ he does not address whether Norris was opioid tolerant or if she had a history of medication narcotic use for legitimate health reasons that would have created a tolerance for a normal initial dose of pain medication.  Thus, the report fails to explain the standard of the care that Dr. Williams was required to render to Norris.

    Hence, we conclude Dr. Bullock=s report does not represent a good faith effort to comply with statutory requirements and therefore, the trial court did not abuse its discretion in dismissing Norris=s claims.

    iii.      Causation

    Dr. Bullock=s report addresses causation only in the following statement: AIf Dr. John Williams had prescribed a standard dosage of narcotics to Terri Norris, and had avoided prescribing multiple different narcotics, she would not have suffered respiratory arrest and none of the above damages would have occurred.@

    This statement is insufficient to link Norris=s claimed injuries to a breach of the applicable standard of care. Dr. Bullock does not claim that any particular drug, in any dosage or in any combination, is capable of causing respiratory arrest, progressive memory loss, or personality changes, all of which are included in the report=s AStatement of Damages.@  Mere conclusions as to causation are insufficient as a matter of law.  Palacios, 46 S.W.3d at 879. 

    In sum, Norris=s expert report does not identify (a) Dr. Bullock=s qualifications to offer the opinions in the report, (b) the applicable standard of care, or (c) a causal link between Dr. Williams=s alleged breach of the standard of care and the damages claimed.  Because each of these defects warrants dismissal, we affirm the trial court=s order dismissing Norris=s claims against Dr. Williams.

    b.       Norris=s Alleged Response to Dr. Williams=s Motion to Dismiss

    Although Norris argues on appeal that the trial court erred in disregarding her response opposing Dr. Williams=s motion to dismiss, she has not identified her response in the record or provided any argument or evidence of the contents of her response.[14]  See Tex. R. App. P. 38.1(h) (appellant=s argument must contain appropriate citations to the authorities and record).  Without argument or evidence as to the contents of Norris=s response, nothing is presented for our review.  Accordingly, this argument is waived. 

    c.       Extension of Time to Prepare an Adequate Expert Report

    Under the MLIIA, a claimant may request an extension of time to amend an inadequate expert report.[15]  If, after a hearing, the trial court finds that the claimant=s failure to timely serve an adequate expert was not intentional or the result of conscious indifference but was the result of an accident or mistake report, the trial court grants a thirty-day extension for the claimant to amend the expert report.[16] 


    Norris contends that she requested an extension of time to amend her expert report regarding Dr. Williams and claims the trial court erred by failing to grant a hearing on this motion.[17]  However, there is no indication in the record that Norris requested a hearing on her motion for an extension of time to amend her expert report.  Moreover, she does not argue on appeal that her failure to file an adequate expert report was the result of accident or mistake, was unintentional, or was not caused by conscious indifference.  Finally, there is no evidence that such arguments were presented to the trial court.  Therefore, this issue is waived.[18]            

    B.        Did the Trial Court Err In Granting Summary Judgment in Favor of Tenet?

    Norris contends the trial court erred in granting Tenet=s motion for summary judgment on Norris=s medical malpractice and gross negligence claims because her response to the motion raised genuine issues of material fact.  For the following reasons, we disagree.

    A party may move for summary judgment on the basis that there is no evidence of an essential element of the non‑movant=s cause of action.  Tex. R. Civ. P. 166a(i).  To defeat a no‑evidence summary judgment motion, a party must produce more than a scintilla of probative evidence raising a genuine issue of material fact on the challenged elements. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  We will sustain the trial court=s judgment if (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact.  Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.).


    To recover on a medical malpractice claim, a plaintiff must establish the following essential elements: (1) a legally cognizable duty requiring the health care provider to conform to a certain standard of care or conduct; (2) the applicable standard of care and a breach of that standard; (3) injury; and (4) a reasonably close causal connection between the breach of the standard and the injury suffered by the plaintiff.  See Wheeler v. Yettie Kersting Mem=l Hosp., 866 S.W.2d 32, 37 (Tex. App.CHouston [1st Dist.] 1993, no writ).  Tenet moved for summary judgment on the grounds that there was no evidence (a) of breach of the standard of care; (b) that any such breach proximately caused the injuries and damages claimed; and (c) of any element of gross negligence.  To defeat the motion, Norris was required to produce more than a scintilla of probative evidence raising a genuine issue of material fact on each of the challenged elements.  See Tex. R. Civ. P. 166a(i) cmt.

    Because the trial court granted Tenet=s no-evidence summary judgment motion without specifying the grounds upon which it relied, we must affirm if any ground is meritorious.  See Ins. Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App.CHouston [1st Dist.] 1990, no writ).  When a judgment rests upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the judgment will be affirmed on the ground to which no complaint is made.  Fields v. City of Tex. City, 864 S.W.2d 66, 68 (Tex. App.CHouston [14th Dist.] 1993, pet. denied).

    After reviewing the record, we hold that Norris failed to point out evidence raising a fact issue as to the challenged elements of her claims.  In her response to the motion for summary judgment, she argued only that the motion should be denied and did not contend there was a genuine issue of material fact as to any element of her causes of action. Norris globally stated facts, attaching approximately a hundred pages of evidence consisting of three affidavits and many pages of medical records.  Norris also attempted to incorporate by reference Aall admissions contained in the pleadings of the parties.@  Norris never explained how the evidence supported any of the challenged elements of her causes of action.


    Norris=s response  is inadequate to satisfy her burden of proof to defeat Tenet=s no-evidence summary judgment motion.  Norris was not required to marshal all her evidence, but she was required to Apoint out evidence that raise[d] a fact issue on the challenged elements.@ Tex. R. Civ. P. 166a(i) cmt.; see also Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 869 (Tex. App.CHouston [1st Dist.] 1999), aff=d on other grounds, 73 S.W.3d 193 (Tex. 2002) (stating, Aalthough it is true that appellant globally stated facts to support its conclusions as it sees them and cited to the record in support of those facts, it made no effort to connect any of the facts to the challenged elements of the causes of action.  We believe Rule 166a(i) requires the non-movant to make that connection.@). A trial court does not abuse its discretion when it does not consider summary judgment proof to which a movant does not specifically direct the trial court=s attention.  Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.CHouston [1st Dist.] 1996, no writ).[19]

    Accordingly, we affirm the trial court=s summary judgment in favor of Tenet.

    C.        Did the Trial Court Abuse its Discretion In Allegedly Striking Norris=s Summary Judgment Evidence?

    Norris next argues:

    Although the record does not indicate the Trial Court struck any of Norris=s summary judgment evidence. [sic]  If it did so, this was error.  Also[,] the Court was required to hold a Daubert hearing prior to issuing any order striking Bullock=s expert testimony.

    As Norris acknowledges, the record does not show that the trial court struck any of Norris=s summary judgment evidence or excluded Dr. Bullock=s testimony.  In order to preserve a complaint for appellate review, party must obtain a ruling on the complaint from the trial court or must object to the trial court=s refusal to rule.  Tex. R. App. P. 33.1(a)(B).  Therefore, we conclude this issue is waived.

    D.        Did the Trial Court Abuse Its Discretion in Denying Norris=s Motion for New Trial?

    A trial court=s decision on a motion for new trial is reviewed for an abuse of discretion.  Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987).  A trial court abuses its discretion if it acts without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985).  In order to find an abuse of discretion, the reviewing court must conclude that the facts and circumstances of the case extinguish any discretion in the matter.  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985).

    Norris argues the trial court abused its discretion by failing to conduct the hearings discussed above and by granting the defendants= motions for dismissal and summary judgment.  Because we have concluded the trial court=s challenged actions were not erroneous, we conclude the trial court did not abuse its discretion by denying the motion for new trial.  See County of Dallas v. Wiland, 124 S.W.3d 390, 401 (Tex. App.CDallas 2003, pet. granted) (holding that the trial court does not abuse its discretion by denying a motion for new trial when the actions of the trial court challenged in the motion were not erroneous).

    IV. Conclusion

    In sum, we hold the trial court did not abuse its discretion by dismissing Norris=s claims against Morgan, Wheeler, Davis, and Dr. Williams because Norris=s expert report did not represent a good faith effort to satisfy the statutory requirements of the Medical Liability and Insurance Improvement Act.[20]  We therefore affirm the trial court=s orders of dismissal of November 10 and December 15, 2003.  Finding no error in the trial=s court grant of summary judgment in Tenet=s favor, we affirm the trial court=s grant of summary judgment.  Finally, we affirm the trial court=s denial of Norris=s motion for new trial.

     

     

    /s/        Eva M. Guzman

    Justice

     

    Judgment rendered and Memorandum Opinion filed May 30, 2006.

    Panel consists of Justices Fowler, Edelman, and Guzman.


    [1]  Tenet is also known as AHouston Northwest Memorial Medical Center@ and does business as AHouston Northwest Partners, Ltd.@

    [2]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, '' 1.01B12.01, 1977 Tex. Gen. Laws 2039, 2039B64, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [3]  As discussed below, the record before us contains no response, and although Dr. Williams admits a response was filed, he contends that, like the response to the Nurses= motion to dismiss, it was untimely.

    [4]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [5]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 987, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [6]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(e)(3), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [7]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(l), 1995 Tex. Gen. Laws 985, 987, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.  See also  Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

    [8]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(e)(3), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [9]  Norris has consistently argued only that a Ahearing@ was required on the various motions, but she does not contend that the motions were not Aheard@ by written submission.  We therefore assume that when Norris contends that a Ahearing@ was required, she refers to an oral hearing.

    [10]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(g), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [11]  Section 13.01 addresses expert reports generally, while section 14.01 addresses the qualifications of expert witnesses in suits against physicians.

    [12]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, secs. 13.01(r)(6), 14.01(a) 1995 Tex. Gen. Laws 985, 988 (emphasis added), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [13]  To the extent that a report states what an ordinarily prudent physician would not have done, the report addresses a breach of the standard of care rather than the applicable standard of care.  See Strom v. Mem=l Herman Hosp. Sys., 110 S.W.3d 216, 223 (Tex. App.CHouston [1st Dist.] 2003, pet. denied).

    [14]  The order granting Dr. Williams=s motion to dismiss contains a handwritten notation by the trial court noting that there was no response to the motion to dismiss.  The record before us contains no response to Dr. Williams=s motion to dismiss and no motion for an extension of time to amend the expert report as to any of the appellees.

    [15]    See Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 13.01(g), 1995 Tex. Gen. Laws 985, 986 (a claimant is not entitled to an extension of time to amend an expert report unless she establishes that the failure to file an adequate report was not intentional or the result of conscious indifference but was the result of an accident or mistake), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

    [16]  Id.

    [17]  No such motion is in the record, but Dr. Williams agrees that it was filed.

    [18]  By granting the motion to dismiss, the trial court implicitly denied the motion seeking an extension of time.  Walker v. Gutierrez, 111 S.W.3d 56, 60 n.1 (Tex. 2003).  Although we do not rule out the possibility that the court did not consider Norris=s motion for an extension of time, a trial court does not abuse its discretion if it reaches the right result, even for the wrong reason.  Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 340 (Tex. App.CTexarkana 2004, pet. denied).  A[W]hen a claimant files a report that omits one or more of section 13.01(r)(6)=s required elements, a purportedly mistaken belief that the report complied with the statute does not negate a finding of >intentional or conscious indifference.=@  Walker, 111 S.W.3d at 65.  As previously discussed, Norris=s expert report failed to adequately address all the elements required in section 13.01(r)(6). Therefore, the trial court would not have abused its discretion in denying Norris=s motion for an extension of time on the grounds that her expert report did not demonstrate a good faith effort to comply with statutory requirements, but was instead the result of conscious indifference.

    [19]  Moreover, even if the trial court considered all of Norris=s evidence without regard to whether it was cited in the response, it was not required to supply the argument that the evidence raised a genuine issue of material fact regarding breach of the standard of care, causation, or gross negligence where Norris herself made no such argument.  Finally, even if the trial court supplied Norris=s argument and located her evidence, the evidence offered was insufficient to raise a genuine issue of material of fact as to any of the challenged elements, for it contained the same defects as those found in the expert report.

    [20]  Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sections 13.01 and 14.01, 1995 Tex. Gen. Laws 985, 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.