Donna Vickers, Individually, as the Representative for All Wrongful Death Beneficiaries, and as an Heir at Law and Representative of the Estate of Jerry Vickers v. Epic Health Services, Inc., AOC Senior Home Health Corp., D/B/A Angels of Care and/or Angels of Care Pediatric Home Health and Amerigroup Corporation ( 2022 )

Reversed and Remanded in Part and Affirmed in Part; Opinion Filed April
29, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00054-CV
DONNA VICKERS, INDIVIDUALLY, AS THE REPRESENTATIVE FOR
ALL WRONGFUL DEATH BENEFICIARIES, AND AS AN HEIR AT LAW
AND REPRESENTATIVE OF THE ESTATE OF JERRY VICKERS,
DECEASED, Appellant
V.
EPIC HEALTH SERVICES, INC., AOC SENIOR HOME HEALTH CORP.,
D/B/A ANGELS OF CARE AND/OR ANGELS OF CARE PEDIATRIC
HOME HEALTH AND AMERIGROUP CORPORATION, Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-14547
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Nowell
This is an appeal from an order dismissing health care liability claims for
inadequate expert reports under Chapter 74 of the civil practice and remedies code.
Appellant argues she timely supplemented the expert reports after the trial court
granted an extension and that the reports are sufficient to meet the statutory
requirements. We agree that the reports were timely supplemented and conclude the
reports are sufficient as to Epic Health Services, Inc. (Epic) and AOC Senior Home
Health Corp. (AOC) but not as to Amerigroup Corporation (Amerigroup). We
reverse the trial court’s order as to Epic and AOC and remand the claims against
those parties to the trial court for further proceedings. We affirm the trial court’s
order dismissing appellant’s claims against Amerigroup.
Background
We take this background from appellant’s expert reports. Donna Vickers’s
husband, Jerry Vickers, was diagnosed with amyotrophic lateral sclerosis (ALS) in
2010. As the disease progressed, Jerry Vickers could not breathe on his own and
could not swallow. By 2013, he was dependent on a ventilator and feeding tube and
required complete support for all activities of daily living. He was completely
paralyzed by 2014.
Epic began providing home health nursing services to Jerry Vickers in early
2014. Despite his paralysis, Jerry could still blink and was able to communicate with
the aid of a computer. He was also able to take and complete online courses.
However, in July 2015, Epic unilaterally terminated its services and stopped sending
staff to the Vickers’s home on July 6, 2015. Donna attempted to obtain adequate
skilled home nursing after Epic’s termination but was unable to do so. Less than
three weeks after Epic’s termination, Jerry died.
After Epic terminated its services, Donna contracted with AOC to provide
sixty hours per week of skilled nursing care with a start date of July 9, 2015. AOC,
however, failed to provide adequate skilled nursing care for Jerry. Several nurses
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were selected but they lacked sufficient experience to care for a paralyzed ALS
patient.
Amerigroup administered Jerry’s Medicaid services. Amerigroup refused to
approve a different home health care service with the needed respiratory therapist
because that group was out of network. On July 22, 2015, Jerry suffered a cardiac
arrest and sustained brain damage. He was declared brain dead on July 28, 2015.
Vickers filed this suit against Epic, AOC, and Amerigroup on December 3,
2015. Vickers timely served Epic and AOC with expert reports and curricula vitae
from registered nurses Yvette C. Rodgers-Musial and Mary Beth Geise on the
standard of care and breach and from Dr. Peter Gailiunas, Jr on causation. Epic and
AOC objected to Gailiunas’s reports on the basis that he was not qualified and his
reports were insufficient on causation. They did not object to the standard of care
and breach of the standard of care reports from the two nurses. Vickers timely served
Amerigroup with expert reports and curricula vitae from Dr. Patrick Daly and nurse
Geise on August 31, 2016. Amerigroup objected to the qualifications of these experts
and to Daly’s report as to standard of care and causation.
Epic and AOC contend that the trial court orally granted Vickers a 30-day
extension to correct deficiencies in Gailiunas’s report at the September 16, 2016
hearing on their objections. At the hearing, the judge stated she was “going to allow
you 30 days to correct any deficiencies in the reports” but the judge did not sign a
written order at that time. Vickers did not serve a supplemental report within 30 days
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of that hearing but did serve a report and curriculum vitae from Dr. Robert Todd, a
neurologist, on December 21, 2016.
Epic and AOC objected to the timeliness of Todd’s report and moved to
dismiss Vickers’s claims against them. Epic also objected to Todd’s qualifications
and the sufficiency of his report. After a hearing on February 3, 2017, the trial court
signed an order granting Epic’s motions to dismiss. However, the court vacated this
order on March 21, 2018 and signed a written order granting Vickers 30 days to cure
any deficiencies in the reports.
Vickers served Epic, AOC, and Amerigroup with a supplemental report from
Todd on April 20, 2018. Each of the defendants filed objections to Todd’s
supplemental report. The trial court dismissed Vickers’s claims against Amerigroup
at a hearing on August 24, 2018. By an order signed October 26, 2018, the trial court
granted Epic’s objections to Todd’s supplemental report and its motion to dismiss.
On December 10, 2019, the trial court signed an order dismissing the claims against
AOC, resulting in a final judgment. Vickers then filed this appeal.
Standard of Review
We review a trial court’s order on a motion to dismiss a health care liability
claim based on the sufficiency of an expert’s report for an abuse of discretion.
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam).
A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
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without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526,
539 (Tex. 2010).
Applicable Law
Chapter 74 of the Texas Civil Practice and Remedies Code requires claimants
in health care liability cases to serve an expert report on each defendant within 120
days of their answer. TEX. CIV. PRAC. & REM. CODE § 74.351.1 The report must fairly
summarize “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.” Id. § 74.351(r)(6). The purpose
of this requirement “is to weed out frivolous malpractice claims in the early stages
of litigation, not to dispose of potentially meritorious claims.” Abshire, 563 S.W.3d
at 223.
“Importantly, the trial court need only find that the report constitutes a ‘good
faith effort’ to comply with the statutory requirements.” Id. (citing TEX. CIV. PRAC.
& REM. CODE § 74.351(l)). “[A]n expert report demonstrates a ‘good faith effort’
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.’” Id.
1
Section 74.351 was amended effective September 1, 2021, but those amendments apply only to
actions commenced after the effective date. See Act of April 19, 2021, 87th Leg., R.S., ch. 167, §§ 4–5,
2021 Tex. Sess. Law Serv. Ch. 167 (eff. Sept. 1, 2021). All references to section 74.351 in this opinion are
to the section as it existed at the time this action was commenced.
–5–
(quoting Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018)). A report “need not
marshal all the claimant’s proof,” but “a report that merely states the expert’s
conclusions about the standard of care, breach, and causation” is insufficient. Id. The
“court’s job at this stage of the litigation 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.” Id. at 226.
In addition, “the expert report must make a good-faith effort to explain,
factually, how proximate cause is going to be proven,” although the report need not
use the words “proximate cause,” “foreseeability,” or “cause in fact.” Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017).
“‘[T]he expert must explain the basis of his statements to link his conclusions to the
facts.’” Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). “[C]ourts
must view the report in its entirety, rather than isolating specific portions or sections,
to determine whether it includes” the required information. Baty, 543 S.W.3d at 694.
To establish a causal relationship between the injury and the defendant’s
negligent act or omission, the expert report must show the defendant’s conduct was
a substantial factor in bringing about the harm, and, absent this act or omission, the
harm would not have occurred. Mitchell v. Satyu, No. 05-14-00479-CV, 2015 WL
3765771, at *4 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.). Causation is
generally established through evidence of a “reasonable medical probability” that
the injury was caused by the negligence of the defendant, meaning that it is more
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likely than not that the ultimate harm or condition resulted from such negligence.
See id. “An expert may show causation by explaining a chain of events that begins
with a defendant doctor’s negligence and ends in injury to the plaintiff.” Id. The
report must explain “to a reasonable degree, how and why the breach [of the standard
of care] caused the injury based on the facts presented.” Jelinek, 328 S.W.3d at 539–
40; see also Quinones v. Pin, 298 S.W.3d 806, 814 (Tex. App.—Dallas 2009, no
pet.) (to satisfy Chapter 74’s causation requirement, expert report must include fair
summary of expert’s opinion regarding causal relationship between breach of
standard of care and injury, harm, or damages claimed). “We determine whether a
causation opinion is sufficient by considering it in the context of the entire report.”
Mitchell, 2015 WL 3765771, at *4 (internal quotation omitted).
Analysis
A. Epic and AOC
In her first issue, Vickers argues that the trial court abused its discretion by
granting Epic’s and AOC’s objections and motions to dismiss.
1. Timeliness
The first matter we must address is the timeliness of the expert reports. Epic
and AOC argue the trial court orally granted a 30-day extension at the September
16, 2016 hearing and Todd’s expert reports were not served within that time.
A claimant in a health care liability claim must serve an expert’s report and
curriculum vitae on each defendant within 120 days after the defendant answers the
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suit. TEX. CIV. PRAC. & REM. CODE § 74.351(a). The defendant must file and serve
any objections to the sufficiency of the report within 21 days after the date the report
is served or the date the defendant answered the suit, whichever is later. Id. If the
report is found deficient, the trial court may grant the claimant one 30-day extension
to cure the deficiencies. Id. § 74.351(c). “If the claimant does not receive notice of
the court’s ruling granting the extension until after the 120-day deadline has passed,
then the 30-day extension shall run from the date the plaintiff first received the
notice.” Id.
The trial court conducted a hearing on Epic’s and AOC’s objections on
September 16, 2016. After the attorneys completed their arguments, the court stated
the following:
THE COURT: Thank you. I’m going to allow you 30 days to correct
any deficiencies in these reports. I think you know from some of the
questions I’ve asked and some of the responses you’ve received pretty
much what those are. So, you know, get your 30 days, and we’ll see
where we are.
Vickers’s attorney asked, “Do you want us to give you anything? Do you want
us to give you copies of the order, or do you have that?” The judge responded, “Yes.
If you have an order, if you will please circulate it to counsel.” AOC’s counsel then
asked if “the 30 days is as to both defendants who have motions pending today?”
The court confirmed that it did.
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The parties were unable to agree on the form of a written order following the
hearing and submitted competing proposed orders to the court. The court, however,
did not sign an order at that time.
On December 21, 2016, Vickers served Epic and AOC with Todd’s expert
report on causation and his curriculum vitae. Epic objected to Todd’s report on
January 10, 2017, contending the report was not timely, Todd was not qualified, and
his report was insufficient on causation. On January 11, 2017, AOC moved to
dismiss on the basis that Todd’s report was not timely filed.
On February 3, 2017, the trial court signed an order granting Epic’s motions
to dismiss and dismissing Vickers’s claims against Epic. Vickers moved to vacate
that order on February 10, 2017. On March 21, 2018, the trial court signed a written
order vacating the February 3, 2017 order and granting Vickers 30 days to correct
any deficiencies in the reports.2 Vickers served supplemental reports from Todd on
each of the defendants on April 20, 2018.
Epic and AOC argue that the context of the trial court’s statement at the
September 16, 2016 hearing indicates a present decision to grant a 30-day extension
from the date of the hearing. We disagree. “A trial court renders judgment orally
when it announces rendition as a present act and not as an ‘intention to render
2
On October 26, 2018, the trial court signed an order clarifying that this order sustained Epic’s
objections to Todd’s December 2016 report, granted Vickers 30 days from March 21, 2018 to correct any
deficiencies in Todd’s report, and vacated the February 3, 2017 order dismissing Vickers’s claims with
prejudice.
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judgment in the future.’” State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting
S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per curiam)). The
words used by the trial court must clearly indicate the intent to render judgment at
the time the words are expressed. Leal, 892 S.W.2d at 858.
Here, the court stated she was “going to allow” Vickers 30 days, indicating a
future action. When specifically asked about an order, the court responded, “Yes. If
you have an order, will you please circulate it to counsel.” This indicates the court
expected to sign a written order circulated and approved by counsel. We conclude
the trial court did not grant an extension from the date of the hearing, but indicated
she was “going to allow” Vickers 30 days after a written order to correct any
deficiencies in the report. See Mem’l Hermann Health Sys. v. Heinzen, 584 S.W.3d
902, 908–09 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (holding oral
statements “I will give you 30 days” and “I’m going to go ahead and grant the
objections and give you 30 days, and I’ll—I’ll sign the order” expressed the court’s
intention to grant an extension in the future); Lopez v. Brown, 356 S.W.3d 599, 602–
03 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“[T]he notice [of the court’s
ruling] provided for in section 74.351(c) must be in the form of a written order, rather
than a trial court’s mere oral pronouncement from the bench.”). Vickers served
Todd’s December 2016 report in anticipation of a written order granting her a 30-
day extension and was timely when that order was later signed on March 21, 2018.
Vickers then served Todd’s supplemental report on April 20, 2018, within 30 days
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of the order granting the extension. We conclude that both of Todd’s reports were
timely.
2. Qualifications
Vickers argues the trial court abused its discretion by concluding that Todd
was not qualified to give an opinion on causation.
To qualify as an expert witness on the issue of cause of injury, harm, or
damages in a health care liability claim, an expert must be “a physician who is
otherwise qualified to render opinions on such causal relationship under the Texas
Rules of Evidence.” TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(C). Likewise,
under section 74.403(a), “a person may qualify as an expert witness on the issue of
the causal relationship between the alleged departure from accepted standards of
care and the injury, harm, or damages claimed only if the person is a physician and
is otherwise qualified to render opinions on that causal relationship under the Texas
Rules of Evidence.” Id. § 74.403(a). Texas Rule of Evidence 702 requires an expert
witness to be qualified on the basis of “knowledge, skill, experience, training, or
education.” TEX. R. EVID. 702. In determining whether an expert is qualified to give
a Chapter 74 report, we consider only the four corners of the expert report and the
curriculum vitae. See Abshire, 563 S.W.3d at 223; Heinzen, 584 S.W.3d at 916.
According to his report and curriculum vitae, Todd is board certified in
neurology and a diplomate of the American Board of Psychiatry and Neurology. He
is licensed in New York and has been practicing for nineteen years. He received one
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year of training in internal medicine and three years of training in neurology. He
states he was trained to care for ALS patients with pulmonary diseases and treats
ALS patients in his practice, all of whom have pulmonary diseases. He treats “ALS
patients with severe pulmonary problems such as respiratory dependent patients like
Jerry Vickers.”
Todd explained:
There is no such thing as an amytropic lateral sclerosologist. Patients
with ALS are treated symptomatically by specialists who are experts in
whatever organ system is most affected by their ALS. In Mr. Vickers’
case the life-threatening condition I was asked to report on involved his
pulmonary care. Patients who cannot breathe on their own and are on
full time ventilator support need around the clock minute by minute
pulmonary support to survive. Since I have been responsible for and
taken care of many patients who are completely ventilator dependent, I
am familiar with the standard of care both with hospitalized patients
and home healthcare patients who are completely ventilator dependent.
Epic and AOC contend this paragraph shows that Todd is not qualified
because he is not a pulmonologist. However, the proper inquiry concerning whether
a physician is qualified to testify is not the physician’s area of practice but the stated
familiarity with the issues involved in the claim before the court. Pediatrix Med.
Group, Inc. v. Robinson, 352 S.W.3d 879, 883–84 (Tex. App.—Dallas 2011, no
pet.). Todd’s report shows his familiarity with the pulmonary problems of ventilator-
dependent ALS patients and describes his specialized knowledge of the pulmonary
hygiene required to keep such patients healthy. Todd is a neurologist treating ALS
patients, like Jerry Vickers, who are completely ventilator dependent. He is familiar
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with the standard of care for both hospitalized and home health care patients who
are completely ventilator dependent. See Whisenant v. Arnett, 339 S.W.3d 920, 927–
28 (Tex. App.—Dallas 2011, no pet.) (anesthesiologist qualified on causation in
claim that defendant anesthesiologist failed to remove portion of broken needle after
discography procedure causing wound infection); Adeyemi v. Guerrero, 329 S.W.3d
241, 247 (Tex. App.—Dallas 2010, no pet.) (although not every physician is
qualified to testify on every medical question, “we must be careful not to draw expert
qualifications too narrowly”); Livingston v. Montgomery, 279 S.W.3d 868, 875–76
(Tex. App.—Dallas 2009, no pet.) (OB/GYN qualified to give opinion on standard
of care and causation in case alleging defendants’ negligence during labor and
delivery caused neurological injuries to child).
Epic and AOC next contend that Todd’s reports do not show he has
specialized knowledge on the pulmonary problems faced by ALS patients. We
cannot agree. Todd’s reports detail his specialized knowledge about the breathing
process and the pulmonary hygiene necessary to keep a ventilator-dependent person
alive and healthy. He explained:
The human lungs are not simply a bellows whereby air comes in and
air goes out. Much more happens during the breathing cycle. The air
passages (or bronchial tubes) are lined with tiny hair-like structures
called cilia. The mucosa lining these air passages secretes mucus. When
a breath is taken in, more than air enters the lungs. There are bacteria,
microscopic particles, and foreign debris which also enter the air
passages. The mucus traps these before they can enter the air sacks
(alveoli). They are then removed passively by gravity and as we change
positions, and actively by the cilia moving the debris up and out of the
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lungs. These processes, along with us coughing, occasionally deep
breathing, and clearing our throat, work together to keep our lungs
healthy. Mr. Vickers could not do any of the above actions on his own.
He had to rely on external sources to remain alive. This included a
ventilator which forced air into and out of his lungs 24 hours a day 7
days a week. However, it takes much more than that to keep a person
alive and healthy who is ventilator dependent. It requires around the
clock pulmonary hygiene (cleansing or toilet). Let me describe what
this entails.
1. Postural drainage and percussion. This means they frequently
repositioned the patient at least every 2 hours. They also beat on his
back and his chest to loosen his secretions. This prevents pooling of
debris in the lungs.
2. They put saline down the tracheostomy tube and into his lungs. They
used a cough assistance device and they suctioned the saline from his
lungs which loosened the secretions and brought them out. This
prevents obstruction of the bronchi which lead to atelectasis and
pneumonia.
3. They gave him IPPB treatments. This is done with a ventilator and is
intermittent positive pressure breathing treatments. It gives the patient
deep breaths and keeps the alveoli open.
4. They did tracheostomy care. This involves cleaning and sterilizing
around the tracheostomy opening to prevent infections which would
spread into his lungs.
5. Other treatments on a PRN basis as ordered by his pulmonary
doctors.
6. They got him out of bed and into a chair several times a day. They
also changed his position in the bed. This helped his circulation, and it
helped to keep his lungs clear.
The above treatments were done on a very regular basis at least two to
three times per shift and sometimes more often depending on his
condition at that time.
The central question in determining whether an expert is qualified is whether
the expert has “knowledge, skill, experience, training, or education regarding the
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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 142, 153 (Tex. 1996). Epic’s
and AOC’s alleged failure to provide skilled nurses to perform this pulmonary
hygiene for up to 60 hours a week is the crux of Vickers’s claim against them.
Reading Todd’s reports and curriculum vitae as a whole shows he has the necessary
knowledge, skill, experience, and training to render an opinion on causation in this
case. Accordingly, the trial court abused its discretion to the extent it sustained
Epic’s and AOC’s objections to Todd’s qualifications.
3. Causation
Vickers next argues the trial court abused its discretion by sustaining Epic’s
and AOC’s objections to Todd’s reports on causation. She contends that Todd’s
reports adequately explain how and why Epic’s and AOC’s breaches of the standard
of care proximately caused Jerry Vickers’s death.
Epic and AOC did not object to the sufficiency of the reports as to the standard
of care and breach of the standard. Thus, the only question is whether Todd’s reports
represent a good faith effort to provide a fair summary of his opinion regarding the
causal relationship between the breach of the standard of care and the alleged injury.
See Quinones, 298 S.W.3d at 814.
Nurse Rodgers-Musial explained the standard of care for Epic and AOC
regarding Jerry Vickers’s pulmonary care. His respiratory muscles were completely
paralyzed and he required ventilator support 24 hours a day for seven days a week.
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To prevent infections and mucous plugs, he was given pulmonary cleansing several
times a day. Epic nurses were trained to perform these skilled nursing functions and
performed them while they were on duty. AOC nurses were trained to perform these
services but did not perform them. According to Rodgers-Musial, Epic and AOC
nurses were required to perform these functions sixty hours a week. Donna Vickers
was responsible for these activities the rest of the time. Rodgers-Musial stated that
these activities are so difficult and time consuming that no one person can constantly
perform them no matter how hard they work or well-meaning they are.
Rodgers-Musial explained the breach of the standard of care as to Epic and
AOC. Both had a contractual duty to provide sixty hours of skilled nursing to Jerry
Vickers. If Epic could no longer perform and AOC was unable to perform “their
required duty, they were required to give Mrs. Vickers due notice in writing and an
ample opportunity to secure the presence of other medical attendees who were
qualified to provide Mr. Vickers essential care.” Her report also states, “Further, if
Epic terminated their services to this critically ill patient, they were required to
secure another in home nursing service capable of caring for a paralyzed ALS
patient.” Epic’s breaches included the unilateral termination of their services without
adequate notice as required by law and “failure to provide subsequent services to a
critically ill patient when there was a necessity for constant, continuing medical
attention.”
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Regarding AOC, Rodgers-Musial stated that Jerry Vickers did not receive the
care AOC contracted to provide. “Several nurses were selected who lacked sufficient
experience to care for a paralyzed ALS patient. By the time Angels of Care could
provide a possibly suitable candidate, Mr. Vickers suffered a cardiac arrest and
required emergency hospitalization.” AOC’s breaches included the unilateral
severance of their services without adequate notice or “provision of adequate care”
as required by law and “failure to provide satisfactory services to a critically ill
patient when there was a necessity for constant, continuing medical attention.”
Todd’s causation opinions begin with the breaches of the standard of care
described in the nurse reports. He stated that Epic stopped going to the Vickers’s
home on July 6, 2015 and did not inform the Vickers of their unilateral termination
of services as required by law. Further, they failed to obtain competent follow-up
care as also required by law. “Were it not for these acts Mr. Vickers would have
continued to receive his pulmonary hygiene and other vital services.” Further, Todd
stated that AOC did not provide competent home health care services. AOC sent
staff to the Vickers’s home “a couple of times” but they stayed only a few hours and
were unable to perform the “pulmonary hygiene necessary to keep Mr. Vickers’s
lungs clear.” “Were it not for [AOC’s] failure to provide competent staff Mr. Vickers
would have continued to receive his pulmonary hygiene and other vital services.”
Todd’s reports explained the results:
Therefore, over the next 2 to 3 weeks’ mucus, bacteria, and foreign
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debris began to build up in his lungs. This led to a cascade of
complications.
First, the bronchi (breathing tubes) will not allow enough air to pass in
and out of the alveoli. This leads to atelectasis which is a collapse of
the lung tissue distal to the obstruction. In the atelectatic part of the lung
pneumonitis forms because of bacteria within this closed space.
Eventually, the amount of air reaching Mr. Vickers’ alveoli and
diffusing into his bloodstream did not supply enough oxygen to keep
vital tissues alive. In Mr. Vickers’ case this progression took about 2
plus weeks. On the morning of Mr. Vickers cardiac event, based on
reasonable medical probability, a mucus plug had formed and the
oxygen level reaching his heart dropped too low and he suffered a fatal
arrhythmia or a cardiac arrest. It was not apparent to Mrs. Vickers from
his general condition that the cardiac arrest was imminent, but while
receiving a breathing treatment on the morning of July 22 he suddenly
became unresponsive. If Mrs. Vickers would have recognized Mr.
Vickers’ deterioration, she would have had him hospitalized before this
event. However, she was not a trained professional healthcare provider
and did not recognize the serious nature of his condition. After 2 plus
weeks of less than adequate pulmonary hygiene it only look a minimal
decrease in his PO2 (oxygen level in his blood) to cause his heart
muscle to cease functioning efficiently.
....
The cause of Mr. Vickers’ death was anoxic brain injury. He suffered
this during his cardiac arrhythmia and/or cardiac arrest which occurred
as a result of his pulmonary deterioration. The pulmonary deterioration
occurred because of the lack of effective professional pulmonary
hygiene over the 2 weeks prior to his arrest. It is my fervent opinion,
based on reasonable medical probability, that Mr. Vickers would have
lived considerably longer, and the family and he would be happy, and
he would be productive if Epic Home Healthcare had continued to care
for him 60 hours a week. It is unquestionably foreseeable that when
Epic abandoned Mr. Vickers and did not secure competent follow up
care his pulmonary condition would deteriorate, and this would and did
lead to his cardiac arrest and his brain death.
Todd expressed a similar opinion as to AOC:
It is my fervent opinion that, based on reasonable medical probability,
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that Mr. Vickers would have lived considerably longer, and the family
and he would be happy, and he would be productive if Angels of Care
had provided him with well trained, competent staff, who could have
done the required pulmonary and other services. It is unquestionably
foreseeable that when Angels of Care failed to provide the above
described competent care Mr. Vickers pulmonary condition would
deteriorate, and this would and did lead to his cardiac arrest and his
brain death.
Reading the reports together, they provide a straightforward link between the
breaches of the standard of care and the injury. Jerry Vickers could not survive
without the pulmonary hygiene services both Epic and AOC contracted to provide
to him. Jerry Vickers did not receive the necessary pulmonary hygiene during the
two weeks leading to his death because Epic stopped providing it and AOC did not
provide qualified nurses to perform it. Without adequate pulmonary hygiene, mucus,
bacteria, and foreign debris began to build up in Jerry Vickers’s lungs resulting in
insufficient oxygen to keep his vital tissues alive. In Todd’s opinion, a mucus plug
formed and the oxygen level reaching his heart dropped too low, leading to a cardiac
event and eventually to brain death.
Epic argues that it was not required to provide care to Jerry Vickers in
perpetuity and that it could have been released from its obligations by complying
with the Texas Administrative Code provisions. Epic also argues nothing in the
reports shows that it had knowledge of AOC’s alleged inability to provide competent
nursing services. But these arguments go to the standard of care and breach of that
standard, not causation. The causation question is whether Epic’s failure to properly
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terminate its services and obtain competent follow-up care caused Vickers’s injury.
Epic did not object to the reports on standard of care and breach of the standard,
therefore we accept that it failed to properly terminate its services and to secure a
competent home health service to provide adequate nursing care to Jerry Vickers.
Further, Vickers does not contend that Epic was required to provide services forever,
only that it was required to provide services until it properly terminated its services
and obtained competent follow-up care to keep Jerry Vickers alive.
Epic points to factual discrepancies between the reports as to when it stopped
providing services and when AOC began services. But it is improper at this early
stage of the litigation to consider the “quality of the evidence the experts used as the
basis for their factual assumptions.” Aramada v. Yates, No. 05-20-00960-CV, 2021
WL 5563763, at *9 (Tex. App.—Dallas Nov. 29, 2021, no pet.) (mem. op.) (quoting
Quinones, 298 S.W.3d at 813). In essence, Epic contends Todd’s opinion is not
credible because Epic’s conduct was too remote from Jerry Vickers’s death. But the
supreme court has made clear that the reasonableness, believability, credibility, or
weight of an expert’s report are not relevant at this preliminary stage of the litigation.
Abshire, 563 S.W.3d at 226 (“[T]he court’s job at this stage of the litigation 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.”); Miller v. JSC Lake
Highlands Operations, LP, 536 S.W.3d 510, 516–17 (Tex. 2017) (per curiam) (“At
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this preliminary stage, whether those standards appear reasonable is not relevant to
the analysis of whether the expert’s opinion constitutes a good-faith effort.”).
AOC argued in the trial court that Todd’s second report was conclusory
because it did not explain why Jerry Vickers’s death was not primarily caused by the
natural progression of his ALS and did not discuss the most reasonable alternative
cause of death. But a Chapter 74 expert report is not required to exclude all other
possible causes or anticipate and rebut all defensive theories. See Aramada, 2021
WL 5563763, at *9; Owens v. Handyside, 478 S.W.3d 172, 187 (Tex. App.—
Houston [1st Dist.] 2015, pet. denied). Nor must the report “rule out every possible
cause of the injury, harm, or damages claimed.” Baylor Med. Ctr. at Waxahachie v.
Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). The expert need
not prove the entire case or account for every known fact; the report is sufficient if
it makes “a good-faith effort to explain, factually, how proximate cause is going to
be proven.” Abshire, 563 S.W.3d at 224 (quoting Zamarripa, 526 S.W.3d at 460).
Todd’s reports satisfy this standard. Moreover, the reports show that when he was
receiving adequate services from Epic, Jerry Vickers did well and was essentially
stable.
We conclude Todd’s reports represent a good faith effort to explain factually
how proximate cause will be proven as to Epic and AOC. See Zamarripa, 526
S.W.3d at 460. The trial court abused its discretion by sustaining Epic’s and AOC’s
objections. We sustain Vickers’s first issue.
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B. Amerigroup
Vickers’s last three issues concern the dismissal of her claims against
Amerigroup.
Initially, Vickers argues she was not required to satisfy the Chapter 74 expert
report requirements because Chapter 74 does not apply to her claim against
Amerigroup. We disagree.
Vickers alleged in her petition that Jerry was enrolled in the Texas Medicaid
program administered by Amerigroup. She also alleged that Amerigroup “failed to
make timely and reasonable health-care treatment decisions of the treatment of Jerry
Vickers.” Chapter 88 of the civil practice and remedies code applies to claims against
managed care entities. See TEX. CIV. PRAC. & REM. CODE § 88.001(8). It provides:
“A . . . managed care entity for a health care plan has the duty to exercise ordinary
care when making health care treatment decisions and is liable for damages for harm
to an insured or enrollee proximately caused by its failure to exercise such ordinary
care.” Id. § 88.002(a). “Ordinary care” means, in the case of a managed care entity,
“that degree of care that a . . . managed care entity of ordinary prudence would use
under the same or similar circumstances.” Id. § 88.001(10). Chapter 88 provides that
an enrollee who files an action under that chapter must comply with the requirements
of section 74.351 as it relates to expert reports. Id. § 88.002(k). Because Vickers
asserted a claim under Chapter 88, she was required to comply with the expert report
requirements of section 74.351. Id.
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Next, Vickers contends that Todd’s supplemental report regarding
Amerigroup was sufficient to satisfy the section 74.351 requirements. She contends
Todd’s report shows he is qualified to opine on the standard of care for a Medicaid
managed care organization. Todd’s report states:
With particular regard to Amerigroup’s conduct, I have interacted with
insurance company and third-party administrators in complex cases like
Jerry Vickers. Many times, I have had the opportunity to correspond
with such persons as an advocate for my patients in persuading case
managers of the medical necessity of treatment. I have worked with
many case managers in developing care plans for complex cases, such
as the one presented by Jerry Vickers’ case. Through this substantial
interaction, I am familiar with the standards of care for case managers,
who are charged with sometimes conflicting duties to balance the need
for care with the expense of such treatment. Ultimately, case managers
are medical professionals, bound to the bottom-line duty of all
healthcare workers, to “do no harm.” Case management professionals
in a Medicare managed care organization also have specific duties of
care imposed upon them by statute and regulation, and I have
familiarized myself with such regulatory standards of care which are
set forth herein. Finally, I reviewed materials from Amerigroup itself,
to determine its self-imposed duties and standards of care for the
provision of case management services to patient/members. After
review of all of these materials, I can unequivocally state that I am able
to discern and opine about the standard of care for the case management
professionals in Jerry Vickers’ case.
Todd’s report indicates that he has interacted with insurance companies and
third-party administrators from the perspective of a physician advocating for his
patients but does not address Vickers’s claim from the standpoint of a Medicaid
managed care organization. He does not explain why his medical experience
qualifies him as an expert on the standards applicable to a Medicaid managed care
organization under the same or similar circumstances.
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Just as “[m]erely working at a hospital and serving on hospital committees
does not automatically qualify an expert to testify on matters of operating a hospital,”
Nacogdoches Cty. Hosp. Dist. v. Felmet, No. 12-12-00393-CV, 2013 WL 6207838,
at *4 (Tex. App.—Tyler Nov. 26, 2013, no pet.) (mem. op.), merely interacting with
insurance companies and third-party administrators does not qualify Todd to testify
as an expert on managed care entities. Todd does not indicate he has any experience,
training, or expertise working for a managed care organization or identifying and
applying standards of care for such organizations. See Tenet Hospitals Ltd. v. Love,
347 S.W.3d 743, 750–51 (Tex. App.—El Paso 2011, no pet.) (holding physician
expert failed to demonstrate qualifications to opine on hospital administration
procedures regarding staffing physician specialists and transferring patients).
Neither the report nor the curriculum vitae indicate Todd is qualified to opine on the
degree of care that a managed care entity of ordinary prudence would use under the
same or similar circumstances.
We conclude the trial court did not abuse its discretion in concluding that
Todd was not qualified as an expert as to a Medicaid managed care organization
such as Amerigroup. Accordingly, the trial court did not err by granting
Amerigroup’s motion to dismiss.
In the alternative, Vickers contends the trial court should have abated the case
pursuant to section 88.003(e), which provides that the court in its discretion may
order the parties to nonbinding dispute resolution and abate the action for no more
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than thirty days. TEX. CIV. PRAC. & REM. CODE § 88.003(e). Subsection (e) however,
is subject to subsection (f), which precludes abatement if the plaintiff has filed a
pleading alleging that “harm to the enrollee has already occurred because of the
conduct of the . . . managed care entity” and review “would not be beneficial to the
enrollee.” Id. § 88.003(f). Here, Vickers alleged that: “As to Defendant Amerigroup
Corporation, harm has already been caused by Defendant’s negligent conduct in the
form of Jerry Vicker’s [sic] death and a review would not be beneficial to Plaintiff.”
Accordingly, Vickers was not entitled to an abatement.
In her third and fourth issues, Vickers argues that Chapter 74 is preempted by
federal law because Amerigroup is a Medicaid payor and that the trial court erred by
denying her motion for class certification of her claims against Amerigroup.
After the trial court dismissed her claims against Amerigroup, Vickers filed a
second amended petition alleging Amerigroup failed to comply with its obligations
under federal law as a Medicaid managed care organization and seeking to certify a
class action against Amerigroup. She also raised the preemption argument in her
motion for rehearing of the court’s order dismissing Amerigroup. The trial court
denied the motion for rehearing and confirmed its August 24, 2018 ruling dismissing
Vickers’s claims against Amerigroup with prejudice.
According to her brief, “Appellant filed suit against Amerigroup asserting
Chapter 74 health care liability claims that led to the untimely death of her husband.”
She now argues this claim was preempted by federal law and that Amerigroup failed
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to comply with its obligations under federal law as set forth in her second amended
petition. She also argues the trial court erred by denying her request for class
certification that was raised in her second amended petition. However, Vickers did
not file the second amended petition until after the trial court dismissed her claims
against Amerigroup with prejudice. Because the second amended petition was not
filed until after the trial court dismissed Vickers’s claim against Amerigroup with
prejudice, the petition was not properly before the court.
A trial court cannot grant leave to amend pleadings after it has rendered
judgment. See Midwest Compressor Sys. LLC v. Highland Imperial, Inc., No. 05-
19-01115-CV, 2021 WL 2548712, at *5 (Tex. App.—Dallas June 22, 2021, pet.
denied) (mem. op.) (holding court did not abuse its discretion by denying motion to
amend pleading filed after court pronounced it granted directed verdict); Rodriguez
v. Crutchfield, 301 S.W.3d 772, 775 (Tex. App.—Dallas 2009, no pet.) (“[I]t is too
late to amend the pleadings after judgment has been rendered.”); Prater v. State
Farm Lloyds, 217 S.W.3d 739, 741 (Tex. App.—Dallas 2007, no pet.) (“A trial court
cannot grant a motion to amend the pleadings once the court renders judgment.”).
Thus, the trial court did not abuse its discretion by rejecting Vickers’s preemption
argument and her motion for class certification.
We overrule Vickers’s second, third, and fourth issues.
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Conclusion
We conclude the trial court abused its discretion by granting Epic’s and
AOC’s objections to Vickers’s expert reports. We also conclude the trial court did
not abuse its discretion by granting Amerigroup’s objections to the expert reports.
Accordingly, we reverse the trial court’s orders granting Epic’s and AOC’s
objections and motions to dismiss and remand the claims against those parties to the
trial court for further proceedings. We affirm the trial court’s order dismissing
Vickers’s claims against Amerigroup.
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
200054f.p05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DONNA VICKERS, On Appeal from the 298th Judicial
INDIVIDUALLY, AS THE District Court, Dallas County, Texas
REPRESENTATIVE FOR ALL Trial Court Cause No. DC-15-14547.
WRONGFUL DEATH Opinion delivered by Justice Nowell.
BENEFICIARIES, AND AS AN Justices Reichek and Carlyle
HEIR AT LAW AND participating.
REPRESENTATIVE OF THE
ESTATE OF JERRY VICKERS,
DECEASED, Appellant
No. 05-20-00054-CV V.
EPIC HEALTH SERVICES, INC.,
AOC SENIOR HOME HEALTH
CORP., D/B/A ANGELS OF CARE
AND/OR ANGELS OF CARE
PEDIATRIC HOME HEALTH AND
AMERIGROUP CORPORATION,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. The trial court’s October 26,
2018 order sustaining defendant Epic Health Services, Inc.’s objections to plaintiff’s
supplemental chapter 74 expert report and granting defendant’s motion to dismiss
and the December 10, 2019 order granting defendant Angels of Care/Angels of Care
Pediatric Home Health’s objections to Robert E. Todd’s Chapter 74 Report and
motion to dismiss are REVERSED. The August 24, 2018 and November 16, 2018
orders dismissing appellant’s claims against Amerigroup Texas, Inc. are
AFFIRMED. We REMAND this cause to the trial court for further proceedings
consistent with this opinion.
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It is ORDERED that appellant Donna Vickers, individually, as the
representative for all wrongful death beneficiaries, and as an heir at law and
representative of the estate of Jerry Vickers, deceased, recover her costs of this
appeal from appellees Epic Health Services, Inc. and AOC Senior Home Health
Corp., d/b/a Angels of Care and/or Angels of Care Pediatric Home Health. It is
further ORDERED that appellee Amerigroup Texas, Inc. recover its costs of this
appeal from appellant Donna Vickers individually, as the representative for all
wrongful death beneficiaries, and as an heir at law and representative of the estate
of Jerry Vickers, deceased.
Judgment entered this 29th day of April, 2022.
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