E.D., a Minor, by and Through Her Parents, B.O. and D.D., as Next Friends v. Texas Health Care, P.L.L.C. and Timothy J. Jones, D.O. ( 2022 )

Supreme Court of Texas
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No. 20-0657
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E.D., a minor, by and through her parents,
B.O. and D.D., as next friends,
Petitioners,
v.
Texas Health Care, P.L.L.C. and Timothy J. Jones, D.O.,
Respondents
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On Petition for Review from the
Court of Appeals for the Second District of Texas
═══════════════════════════════════════
PER CURIAM
The Texas Medical Liability Act requires health-care-liability
claimants to timely serve each defendant physician with an adequate
expert report. A report is adequate if it represents “an objective good
faith effort” to provide “a fair summary of the expert’s opinion” regarding
the applicable standard of care, the physician’s breach of that standard,
and the causal relationship between the breach and the harm alleged.
TEX. CIV. PRAC. & REM. CODE § 74.351(l), (r)(6). In this
medical-malpractice case, the trial court held that a timely served expert
report was adequate as to breach and causation in a suit alleging that
negligent perinatal care during labor and delivery caused an infant’s
brain damage and other serious health conditions. The court of appeals
reversed and dismissed the suit against the treating physician, but we
hold that the trial court did not abuse its discretion in concluding that
the expert report satisfies the “fair summary” standard. Accordingly,
we reverse the court of appeals’ judgment and remand to the trial court
for further proceedings.
After a healthy full-term pregnancy, B.O. was admitted to Texas
Health Harris Methodist Hospital Southwest Fort Worth (the Hospital)
for induction of labor. At approximately 19:00 hours on February 6,
2014, 1 Dr. Timothy J. Jones, D.O., ordered the administration of several
drugs to facilitate cervical ripening and delivery. To assess the baby’s
stress during uterine contractions, nurses contemporaneously
commenced fetal heart-rate monitoring. 2
The next day, on February 7, 2014, at 20:33, Dr. Jones appeared
bedside and performed a sterile vaginal exam. At this point, fetal heart
tracing showed the baby’s heart rate had been “generally reactive,” but
occasional periods of no accelerations and diminished variability had
occurred.
During the ninety-minute period following Dr. Jones’s physical
examination of B.O.—from 20:33 to 22:00—fetal heart tracing showed
The factual recitation is derived from the expert report. The report
1
uses a 24-hour clock, commonly called “military time,” and for consistency, we
do the same.
Fetal heart rate is monitored as a means of assessing the baby’s
2
oxygenation. See Morrell v. Finke, 184 S.W.3d 257, 262 (Tex. App.—Fort
Worth 2005, pet. denied).
2
the baby’s heart rate had become “non-reassuring” due to “absent
accelerations” and minimal or absent variability. 3 The labor and
delivery nurse, Lan Tran, R.N., charted this change. At 22:29, Nurse
Tran telephoned Dr. Jones and notified him about “the patient’s
condition and new orders were given.” At 22:50, Nurse Tran began
administering oxygen to B.O. From 22:50 to 23:40, Nurse Tran
continued to chart minimal variability of the fetal heart rate.
From 23:40 to 23:48, three “clear deep variable decelerations”
occurred. 4 Despite what was “a further serious negative change in
events,” Nurse Tran erroneously charted that the fetal heart rate had
actually improved to show moderate variability. From 23:50 to 23:57,
three more serious deep decelerations occurred. Nurse Tran paged
Dr. Jones and charted that she had “reviewed” the fetal heart tones
“with physician” and “interventions done.” However, she did “not chart[]
the serious decelerations that [had] been going on and instead [charted]
this as moderate variability.” A minute or two later, Nurse Tran charted
further variable and late decelerations. She did not call Dr. Jones to
come bedside and, instead, continued to chart moderate variability.
3 A fetal heart-monitor strip is read at regular intervals to determine
whether the baby’s heart rate is “reassuring” or “nonreassuring.” See id.“Reassuring patterns correlate well with a good fetal outcome, while
nonreassuring patterns do not.” Amir Sweha, M.D. et al., Interpretation of
Electronic Fetal Heart Rate During Labor, AM. FAM. PHYSICIAN (May 1999),
http://aafp.org/afp/1999/0501/p2487.html. Nonreassuring patterns—including
fetal tachycardia, bradycardia, and late decelerations—can indicate fetal
acidosis. See id.4Persistent late or variable deceleration patterns are considered
nonreassuring. See Sweha, supra n.3.
3
At 00:00 on February 8, the fetal heart rate dropped from a
baseline of about 150 beats per minute to below 50 beats per minute, a
condition called fetal bradycardia. At 00:04, Nurse Tran initiated
additional interventions. At 00:06, she notified the charge nurse of “the
very concerning situation,” and the charge nurse asked Dr. Jones to
come to bedside. He arrived at 00:11.
Either when notified at 00:06 or on his arrival at 00:11, Dr. Jones
ordered an emergency (STAT) cesarean section. B.O. was not
transferred to the operating room until 00:13. Seven minutes later, at
00:20, baby E.D. was delivered in grave condition and was later
diagnosed with hypoxic ischemic encephalopathy, 5 cerebral palsy, and
quadriplegia.
On E.D.’s behalf, her parents sued Dr. Jones, Texas Health Care,
P.L.L.C., Nurse Tran, the Hospital, and others for negligence in causing
or contributing to causing E.D.’s injuries. The plaintiffs timely served
expert reports on the defendants, including a report by Dr. James
Balducci, an obstetrician/gynecologist. After receiving a thirty-day
extension to cure deficiencies in the report, plaintiffs timely served
Dr. Balducci’s amended report. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(c) (authorizing a limited extension to cure deficiencies).
Texas Health and Dr. Jones (collectively, Dr. Jones) objected to
the amended report, asserting it fails to show a demonstrable breach of
the standard of care and is “conclusory, speculative, and disconnected
from the underlying facts.” Dr. Jones filed a motion to dismiss the
5As defined in the expert report, “[h]ypoxic/ischemic encephalopathy
means that the brain has shown signs of being injured by the lack of oxygen.”
4
claims with prejudice and requested his attorney’s fees and costs, as
authorized by statute. See id. § 74.351(b). After a hearing, the trial
court denied the motion.
On interlocutory appeal, the court of appeals reversed, dismissed
the claims against Dr. Jones with prejudice, and remanded to the trial
court to award his reasonable attorney’s fees and court costs. 6 ___
S.W.3d ___, 2020 WL 1057332, at *12 (Tex. App.—Fort Worth March 5,
2020). The court held that dismissal was required because
Dr. Balducci’s amended report is conclusory, speculative and, therefore,
“legally insufficient to support the Parents’ health care liability claims.”
Id. at *10-11.
A sharply divided en banc court denied the plaintiffs’ motion for
rehearing. In a dissent to the denial, an original panel member wrote
that (1) “the original memorandum opinion, which [she had] joined, was
flawed”; (2) Dr. Balducci’s report “provide[s] a fair summary of what he
purport[s] to be the applicable standard of care, how Dr. Jones failed to
meet that standard, and the causal relationship between the failure and
the harm alleged”; and (3) under the correct standard of appellate
review, the court was not permitted to assess the credibility of the
expert’s opinion or substitute its judgment for that of the trial court. We
agree and hold that the trial court did not abuse its discretion in
determining that Dr. Balducci’s report reflects a good-faith effort to
provide a fair summary. See Baty v. Futrell, 543 S.W.3d 689, 693 (Tex.
2018) (describing the applicable standard of review).
The parents’ claims against the other defendants, including Nurse
6
Tran and the Hospital, are not before us on appeal.
5
The Texas Medical Liability Act requires health-care-liability
claimants to serve each defendant physician or health-care provider
with an adequate expert report early in the litigation. TEX. CIV. PRAC.
& REM. CODE § 74.351(a). If the claimant fails to clear this substantive
hurdle, the trial court must dismiss the suit with prejudice and award
reasonable attorney’s fees and costs to the affected defendant. See id.
§ 74.351(b). By expeditiously weeding out unmeritorious claims “before
litigation gets underway,” the threshold requirement of an adequate
expert report strikes “a careful balance between eradicating frivolous
claims and preserving meritorious ones.” Leland v. Brandal, 257 S.W.3d
204, 208 (Tex. 2008); Spectrum Healthcare Res., Inc. v. McDaniel, 306
S.W.3d 249, 253 (Tex. 2010).
An expert report is adequate if it “represent[s] an objective good
faith effort” to provide a “fair summary of the expert’s opinions
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
§ 74.351(l), (r)(6). An expert report demonstrates a “good faith effort,”
and is sufficient under the statute, when it “(1) inform[s] the defendant
of the specific conduct called into question and (2) provid[es] a basis for
the trial court to conclude the claims have merit.” Baty, 543 S.W.3d at
693-94. This adequacy inquiry is confined to the four corners of the
report, taken as a whole, id., and under an abuse-of-discretion standard,
“[c]lose calls must go to the trial court.” Larson v. Downing, 197 S.W.3d
303, 304 (Tex. 2006).
6
Here, Dr. Balducci’s opinions concerning breach and causation
are at issue. In articulating the standard of care and breach, an expert
report “must set forth specific information about what the defendant
should have done differently”; that is, “what care was expected, but not
given.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 226 (Tex.
2018) (internal quotations omitted). A report adequately addresses
causation when the expert explains “how and why” breach of the
standard caused the injury in question by “explain[ing] the basis of his
statements and link[ing] conclusions to specific facts.” Id. at 224. The
report need only make “a good-faith effort to explain, factually, how
proximate cause is going to be proven.” Id. At this preliminary stage of
the litigation, whether the expert’s explanations are “believable” is not
relevant to the analysis of whether the expert’s opinion constitutes a
good-faith effort” to comply with the Act. Id. at 226 (emphasis added)
(internal quotation omitted).
Dr. Balducci’s report, construed as a whole, adequately
(1) describes the standard of care as effective communication and close
monitoring of the fetal heart rate; (2) identifies Dr. Jones’s breach as
failure to timely and accurately evaluate the fetal heart-tracing
markers, either personally or by making appropriate inquiries of the
attending nurse; and (3) explains that the failure to do so resulted in
Dr. Jones ordering a STAT delivery too late to avoid injury.
The report notes that when Dr. Jones physically examined B.O.
at 20:33 on February 7, the fetal heart rate had “periods of diminished
variability and absent accelerations.” Dr. Balducci opines that, under
these circumstances, “the standard of care required . . . Dr. Jones to
watch this tracing particularly closely,” including “get[ting] accurate
7
information from Nurse Tran or evaluat[ing] the fetal heart tracing
personally.”
The report observes that by 22:00, approximately ninety minutes
after Dr. Jones’s physical examination of B.O., the fetal heart rate had
become “clear[ly] non-reassuring” with “minimal/absent variability and
absent accelerations.” In Dr. Balducci’s opinion, by that time, the fetal
heart tracings had become “extremely concerning,” and if Nurse Tran
had “notified Dr. Jones, more likely than not, Dr. Jones would have
delivered the baby by approximately 22:30, which would have prevented
the asphyxia and acidosis that the baby suffered.”
Nurse Tran did “notif[y] Dr. Jones by phone at 22:29 of the
patient’s condition,” and “new orders were given” at that time.
Dr. Balducci states that the standard of care required Nurse Tran and
Dr. Jones to “communicate accurately about the fetal heart rate” and
required Dr. Jones to obtain information about fetal heart-rate
variability and absent accelerations from Nurse Tran. After six deep
variable decelerations had occurred between 23:40 and 23:57, the report
notes that Nurse Tran paged Dr. Jones and charted that she had
“reviewed” the fetal heart tones “with physician” and “interventions
done.” According to the report, Nurse Tran did “not chart[] the serious
decelerations that ha[d] been going on and instead [charted] this as
moderate variability.” Nonetheless, in Dr. Balducci’s opinion, Dr. Jones
“had an obligation under the standard of care to ask questions [of Nurse
Tran] to obtain a full and accurate picture of his patient’s status . . . in
the hours prior to [the] STAT delivery.”
The report states that Dr. Jones had a duty to personally evaluate
the fetal heart tracings or, in his interactions with Nurse Tran, make
8
inquiries to elicit the data from which he could accurately evaluate the
patient’s status. The report gives examples of questions Dr. Jones
should have asked Nurse Tran. 7 Even so, the court of appeals was
unpersuaded that the exemplar questions would have made any
difference because several inquire about decelerations, which the report
indicates occurred after the 22:29 phone call between doctor and nurse.
2020 WL 1057332, at *10-11. Focusing only on the pre-22:29 fetal
heart-rate tracings, the court explained that the expert report rests
Dr. Jones’s culpability on the “conclusory and speculative” assumption
that Nurse Tran would have provided an accurate interpretation “had
Dr. Jones adhered to the standard of communication articulated by
Dr. Balducci.” Id. at *10.
The court’s analysis misses the mark. First, the report does not
limit the standard of care regarding communications to the 22:29 phone
call and instead describes the standard of care applicable to all
communications between doctor and nurse “in the hours prior to [the]
STAT delivery,” which includes those that occurred after Nurse Tran
paged Dr. Jones at 23:57. Second, even considering only the pre-22:29
data, the report observes that queries like the exemplars would have
7 The questions noted in the report include:
1. What is the variability of the fetal heart tracings? Has the
variability changed?
2. Are there any accelerations or decelerations in the fetal heart
tracings?
3. How many decelerations?
4. How frequent are the decelerations?
5. How deep are the decelerations?
6. What is the baseline of the fetal heart rate?
9
allowed Dr. Jones to recognize, based on the “non-reassuring” fetal
heart-rate tracing, the need to personally examine the patient. Had he
done so, “more likely than not, he should and would have delivered the
baby . . . by cesarean section” at a time when permanent injury could
have been avoided. Dr. Balducci’s report meets the fair-summary
standard by setting forth “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).
In the expert’s opinion:
Had . . . Dr. Jones complied with the standard of care, [he]
should have determined that the variability had changed
and was minimal and that there were no accelerations.
Based on the fetal heart rate tracing at 22:30, he should
have gone to see the patient and, based upon the fetal heart
rate tracing, should have decided to do a c-section delivery
by 23:50 which would have prevented the asphyxia,
acidosis and injury.
The report states that Dr. Jones should have responded
differently at 22:30 and sets forth how he should have responded, but it
does not isolate his communication failures to that point in time. And
although it is true that the report repeatedly attributes fault to Nurse
Tran for failing to accurately interpret and chart the fetal heart-rate
data, it also articulates the standard of care and breach attributable to
Dr. Jones and specifically identifies what he was expected, but failed, to
do. “[T]he court’s job at this stage is not to weigh the report’s credibility;
that is, the court’s disagreement with the expert’s opinion does not
render the expert report conclusory.” Abshire, 563 S.W.3d at 226.
10
Dr. Balducci’s report also draws a direct line from the breach to
E.D.’s injuries. According to the report, “Nurse Tran, the Hospital, and
Dr. Jones share the responsibility for their failed communication[,] and
their failures to adhere to their respective standards of care combined
to cause this avoidable injury.” Per the report, (1) “delivery by 23:50 []
would have prevented the asphyxia, acidosis and injury,” and
(2) “[d]elivery at any time before 00:10 would have prevented the
asphyxia, acidosis, hypoxic ischemic encephalopathy and permanent
brain injury” E.D. suffered. The report further explains that the failure
to timely and accurately evaluate the fetal heart-rate tracings “allowed
the urgent situation to develop into [an emergency] need for delivery,”
and once a baby begins to experience “complete cord occlusion with
bradycardia, the severity of the ultimate damage depends on how many
minutes it takes for the baby to be delivered.” 8 For these reasons, Dr.
Balducci observes in his report that every single minute of delay in
delivery “caused and contributed to [E.D.’s] ultimate injury.”
These portions of the report fairly summarize Dr. Balducci’s
opinion as to how and why Dr. Jones’s alleged failure to secure accurate
information regarding E.D.’s heart rate foreseeably led to the delay in
recognizing the need to deliver E.D. much earlier than 00:20 on
February 8. See Columbia Valley Healthcare Sys., LP v. Zamarripa, 526
S.W.3d 453, 460 (Tex. 2017) (explaining that the components of
proximate cause are foreseeability and cause-in-fact, but a report need
not use these specific words).
8 Emphasis added.
11
In holding otherwise, the court of appeals posited that the report
establishes a time frame of fifteen minutes as the standard of care for
delivering a baby by emergency cesarean or vacuum extraction after
notification of fetal bradycardia. 2020 WL 1057332, at *12. Based on
that view of the report, the court deduced that the report negates
causation because Dr. Jones delivered E.D. within fourteen minutes
after being first notified of a bradycardic event at 00:06 on February 8.
Id. For these reasons, the court concluded that Dr. Balducci’s report is
contradictory and “excludes the possibility that Dr. Jones was
responsible for [the] two-minute delay in delivery” that resulted from
the failure to transport B.O. to the operating room until Dr. Jones
arrived bedside at 00:11. In the court’s estimation, this discrepancy
makes the report “unreasonable, speculative, and conclusory” in
asserting that any delay attributable to Dr. Jones breached the
standard of care. Id. at *11-12.
The court of appeals analysis is faulty because it does not consider
the report as a whole. See Van Ness v. ETMC First Physicians, 461
S.W.3d 140, 144 (Tex. 2015). Viewing the report in its entirety, as we
must, the report attributes breach to Dr. Jones for his inadequate
monitoring of and communications about the fetal heart rate in the
hours before the STAT delivery and states that these failures delayed
Dr. Jones’s decision to deliver E.D, which should have occurred in a
much earlier time frame.
Because Dr. Balducci’s report explains “how and why” Dr. Jones’s
breach led to the injury, the report adequately articulates his opinions
regarding causation. Abshire, 563 S.W.3d at 224. In concluding
differently, the court of appeals’ analysis exceeds the scope of the
12
fair-summary standard by impermissibly weighing the credibility of the
expert’s opinions. Id. at 226; Miller v. JSC Lake Highlands Operations,
LP, 536 S.W.3d 510, 516-17 (Tex. 2017). While an expert’s report must
not be conclusory, the court’s skepticism about the expert’s opinion does
not render it so. See Abshire, 563 S.W.3d at 226. The “fair summary”
benchmark is not an evidentiary standard, and at this early stage of the
litigation, “we do not require a claimant to present evidence in the report
as if it were actually litigating the merits.” Id. (internal quote marks
omitted). Rather, “[t]he ultimate evidentiary value of the opinions
proffered”—that is, whether there actually is a breach and causal
connection—“is a matter to be determined at summary judgment and
beyond.” Id.
Because Dr. Balducci’s expert report demonstrates a good faith
effort to comply with the requirements of the Texas Medical Liability
Act, the trial court did not abuse its discretion in denying Dr. Jones and
Texas Health’s motion to dismiss. Accordingly, without hearing oral
argument, we reverse the court of appeals’ judgment and remand the
cause to the trial court for further proceedings. See TEX. R. APP. P. 59.1.
OPINION DELIVERED: May 6, 2022
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