Darnell Pettway, M.D. v. Maria Olvera ( 2018 )

Affirmed and Memorandum Opinion filed August 23, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00532-CV
DARNELL PETTWAY, M.D., Appellant
V.
MARIA OLVERA, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2016-33632
MEMORANDUM OPINION
Appellee Maria Olvera brings a health care liability claim against appellant
Darnell Pettway, M.D. The trial court denied Pettway’s Chapter 74 motion to
dismiss based on alleged deficiencies of Olvera’s expert report. See Tex. Civ. Prac.
& Rem. Code 74.351. We affirm.
I. BACKGROUND
Olvera sprained her ankle and went to a hospital. Olvera’s ankle was splinted,
and she was ordered to remain non-weight bearing on the sprained ankle. Her
treating physician at the hospital, Pettway, ordered crutches be given to her. Pettway
did not inform Olvera how to use the crutches.
Olvera was provided the crutches and left unsupervised. She attempted to
walk with the crutches although she did not know how to use them. She fell on the
concrete floor and injured her head, shoulder, and neck. She suffered a concussion,
underwent surgery on her shoulder, and has been recommended surgery on her neck.
Olvera sued Pettway, among others. Pursuant to Chapter 74 of the Civil
Practice and Remedies Code, Olvera filed an expert report by Charles Xeller, M.D.,
P.A. In the report, Xeller describes the standard of care:
. . . Dr. Pettway ordered for crutches be given to Ms. Olvera to facilitate
in being non-weight bearing. As is customary with such a
recommendation, the standard of care when providing a patient with
crutches, is for the patient to be instructed in the appropriate use of the
ambulatory assistive device, such as crutches, prior to allowing the
patient to ambulate alone with the crutches. Specifically, the standard
of care is for the doctor to tell the patient what the crutches are for,
explain to the patient the proper positioning of the body when standing
straight and holding the crutches, how to hold the crutches, how to
walk, sit, and move around with the crutches, where to put the crutches,
and to explain the importance of walking safely to avoid additional
injuries. The standard of care also includes the supervision and help of
the patient in ambulating with the crutches. The patient should not be
given the crutches and allowed to move alone and unsupervised. This
instruction and supervision on the proper and safe use of crutches must
be done primarily by the physician, who has a higher obligation to
ensure the patient understands the use of crutches in order to prevent a
fall and further injury to the patient. Additional instructions and
demonstration on how to use the crutches should be provided by the
nurse, under direct supervision of the ordering physician, in this case
2
Dr. Pettway. Furthermore, as part of the standard of care when training
an individual such as Ms. Olvera on the use of crutches, is for the doctor
to ensure that appropriate precautions to prevent a fall are in place, such
as training the patient to walk on rugs, having an area with hand rails
or grab bars nearby, ensuring the patient has proper foot wear and there
is proper lighting.
Xeller opines that Pettway breached this standard of care by failing to provide
any instructions to Olvera on how to use the crutches, failing to ensure that fall
precautions were used, and failing to supervise Olvera’s use of the crutches.
Xeller states that Olvera was left unsupervised by the nurse and walked with
the crutches without knowing how to use them. Xeller states, “Due to the failure of
Dr. Pettway to properly provide adequate instructions to the nurse and Ms. Olvera
on the use of crutches and failing to order and ensure there were appropriate fall
precautions in place, Ms. Olvera did not know how to use the crutches and fell and
hit her head and body on the concrete floor.”
Xeller describes the injuries to Olvera’s head, neck, and shoulder. She
suffered a concussion, headaches, and neck pain. She also suffered a rotator cuff
injury requiring surgery for “debridement and a tenodesis of the long head of the
biceps tendon that was found to be partially ruptured from the superior labrum due
to the fall while using the crutches.” An orthopedic surgeon recommended a cervical
spine operation for the injury to Olvera’s neck.
Finally, Xeller describes his qualifications as a board certified orthopaedic
surgeon who has been practicing medicine since 1980. He explains, “As an
Orthopaedic surgeon I not only order crutches for my patients with injuries similar
to Ms. Olvera and train them on the proper use in a safe environment ensuring the
surface they walk on is safe, but also that they have handrails to hold onto in case of
a fall.” Further, he describes his experience during residency training: “our duties
3
included fitting and adjusting the crutches, instructing on the proper manner and way
in which to walk and use the crutches, supervising and ensuring that proper fall
prevention precautions were in place, as well as in the observation of the individual
using the crutches, which includes staying in close proximity to the patient to prevent
a fall.”
In the motion to dismiss, Pettway argued that the report was deficient because
(1) Xeller is not qualified to opine on the standard of care and breach applicable to
an emergency medicine physician; (2) Xeller does not provide the standard of care
applicable to an emergency medicine physician; and (3) Xeller’s opinion on
causation is conclusory.
The trial court denied the motion, and Pettway brings this interlocutory
appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9).
II. ANALYSIS
In two issues, Pettway contends that the trial court abused its discretion by
denying the motion to dismiss. In his first issue, Pettway contends that the expert
report fails to provide a sufficient opinion on the applicable standard of care and
breach of that standard for two reasons: (1) Xeller is not qualified to provide an
opinion on standard of care; and (2) Xeller fails to establish an appropriate standard
of care with any specificity. In his second issue, Pettway contends that the report
fails to link the damages sustained by Olvera to any specific breach of an applicable
standard of care.
A. General Principles and Standard of Review
In a health care liability claim, a claimant must serve an expert report on each
defendant. See id. § 74.351(a). An expert report is defined as:
4
. . . a written report by an expert that provides a fair summary of the
expert’s opinions as of the date of the report regarding applicable
standards of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standards, and the
causal relationship between that failure and the injury, harm, or
damages claimed.
Id. § 74.351(r)(6).
When, as here, a defendant challenges the adequacy of the expert report, the
trial court must grant the motion “only if it appears to the court, after hearing, that
the report does not represent an objective good faith effort to comply with the
definition of an expert report.” Id. § 74.351(l); Baty v. Futrell, 543 S.W.3d 689, 693
(Tex. 2018). An expert report satisfies this “good-faith effort” requirement if the
report discusses the standard of care, breach, and causation with sufficient specificity
to (1) inform the defendant of the specific conduct called into question and (2)
provide a basis for the trial court to conclude that the claims have merit. See Baty,
543 S.W.3d at 693–94; Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). Although
a report need not marshal the plaintiff’s proof, it must provide more than conclusory
statements concerning the applicable standard of care, breach, and causation. See
Baty, 543 S.W.3d at 693; Jelinek, 328 S.W.3d at 539, 540 n.9. Regarding causation,
a report must explain “how and why the breach caused the injury based on the facts
presented.” Jelinek, 328 S.W.3d at 540.
A person who gives an opinion regarding whether a physician departed from
accepted standards of medical care, as in this case, is considered an expert only if
the person is qualified to testify as an expert. See Tex. Civ. Prac. & Rem.
Code § 74.351(r)(5)(A). Thus, a report may be deficient if the person who provided
the report is not qualified. See Henry v. Kelly, 375 S.W.3d 531, 536 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied). For purposes of this case, a person may
qualify to testify as an expert if the person is a physician who:
5
(1) is practicing medicine at the time such testimony is given or was
practicing medicine 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.
Tex. Civ. Prac. & Rem. Code § 74.401(a); see also Bailey v. Amaya Clinic, Inc., 402
S.W.3d 355, 362 (Tex. App.—Houston [14th Dist.] 2013, no pet.). To be qualified,
the expert must have knowledge, skill, experience, training, or education regarding
the specific issue before the court. Bailey, 402 S.W.3d at 363.
To determine the adequacy of an expert report, courts look only to the four
corners of the report. Jelinek, 328 S.W.3d at 539. Similarly, to determine if a person
is qualified as an expert, courts look only to the report and curriculum vitae. Mem’l
Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston
[14th Dist.] 2007, no pet.).
The purpose of the expert-report requirement is to deter frivolous claims, not
to dispose of claims regardless of their merit. Scoresby v. Santillan, 346 S.W.3d 546,
554 (Tex. 2011). Accordingly, the Texas Supreme Court “has encouraged trial courts
to liberally construe expert reports in favor of plaintiffs.” Henry, 375 S.W.3d at 535;
see also Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J., concurring
and dissenting) (“An expert report, as we have interpreted it, is a low threshold a
person claiming against a health care provider must cross merely to show that his
claim is not frivolous.”).
We review a trial court’s denial of a motion to dismiss under Section 74.351
for an abuse of discretion. Bailey, 402 S.W.3d at 361; see also Baty, 543 S.W.3d at
693. A trial court abuses it discretion if it acts in an unreasonable or arbitrary manner
6
or without reference to any guiding rules or principles. Bailey, 402 S.W.3d at 361.
We do not substitute our judgment for the trial court’s. Henry, 375 S.W.3d at 535.
B. Qualifications
In his first issue, Pettway contends Xeller is not qualified to provide an
opinion on the standard of care applicable to Pettway. The crux of Pettway’s
argument is that Xeller is not qualified to provide an opinion “as to an emergency
medicine physician” because Xeller does not have knowledge, training, or
experience specifically related to emergency medicine.
A physician serving as an expert need not be a specialist in the particular
branch of the profession for which the testimony is offered. Blan v. Ali, 7 S.W.3d
741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The plaintiff must present
an expert “with knowledge of the specific issue which would qualify him or her to
give an opinion on that subject.” Id. (citing Broders v. Heise, 924 S.W.2d 148, 152
(Tex. 1996)). The plain language of the statute focuses not on the doctor’s area of
expertise, but on the condition involved in the claim. Id. at 746; see Tex. Civ. Prac.
& Rem. Code § 74.401(a)(2).
For example, in Blan this court held that a neurologist could testify about
standards of care applicable to a cardiologist and an emergency medicine physician
because the neurologist’s testimony was about matters clearly within his knowledge
and not about matters that were peculiar to the fields of cardiology or emergency
medicine. See 7 S.W.3d at 746–47. In Bailey, this court held that an orthopedic
surgeon was “eminently qualified” to opine about the standard of care applicable to
a dermatologist who was treating the claimant for weight loss with liposuction. See
402 S.W.3d at 359, 363–64. The plaintiff’s claim in Bailey was based on the
allegation that she, a person with ambulation problems, injured her ankles because
the doctor directed her to use an exercise machine after a weight-loss procedure. Id.
7
at 364. Specifically, the plaintiff slipped from the platform of the exercise machine
and fell. See id. at 369–70. The expert stated in his report that he worked with
patients using exercise equipment and supervises health care professionals who do
the same. Id. at 364. This court held that the expert did not need to show expertise
in the field of dermatology or in the treatment of patients for weight loss, or expertise
regarding the particular exercise machine involved in the case. See id. at 363.
In this case, Olvera allegedly fell while using crutches because Pettway did
not instruct her about how to use the crutches and did not supervise her training with
the crutches. Thus, the condition involved in this case is a patient’s fall while using
crutches after inadequate instruction and supervision. Xeller states in his report that
he orders crutches for patients with injuries similar to Olvera’s and trains them on
the proper use in a safe environment. He identifies his specific training for
instructing patients on the proper manner and way in which to walk and use crutches,
supervising and ensuring that proper fall prevention precautions were in place, and
observing patients with crutches, which included staying in close proximity to
patients to prevent falls.
Pettway frames the specific issue in this case too narrowly by contending that
Xeller must be qualified in emergency medicine. See id. Rather, Xeller’s report
demonstrates his knowledge, skill, experience, and training regarding the specific
issue before the court—the standard of care owed to a patient who is using crutches.
The trial court acted within its discretion to conclude that Xeller is qualified. See id.
C. Standard of Care and Breach
Also within his first issue, Pettway contends that Xeller’s report does not
provide the applicable standard of care nor explain what Pettway did to breach that
standard. Similar to Pettway’s attack on Xeller’s qualifications, Pettway complains:
“While the report attempts to explain what the standard of care would be as to the
8
use of crutches, it never explains how any of that is applicable to an emergency
department physician.” Pettway interprets the report to require a physician to
“maintain a 24 hour vigil over all patients in the emergency department” and
indicates that the proposed standard is impractical and impossible. Pettway refers to
Xeller’s proposed standard as speculative and conclusory.
Pettway’s attack appears to be on the “believability” of the articulated
standard of care, but “[a]t 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.” Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510,
516–17 (Tex. 2017). Rather, we look at the report to determine if it contains specific
information about what, in the expert’s opinion, the applicable standard of care
required Pettway to do differently. See id.
As recited in greater detail above, Xeller provides specific information about
what the applicable standard of care required Pettway to do: “Specifically, the
standard of care is for the doctor to tell the patient what the crutches are for, explain
to the patient the proper positioning of the body when standing straight and holding
the crutches, how to hold the crutches, how to walk, sit, and move around with the
crutches, where to put the crutches, and to explain the importance of walking safely
to avoid additional injuries.” Xeller opines that Pettway was required to supervise
and help Olvera use the crutches. And, Xeller states that Pettway breached these
standards, among others, by failing to instruct Olvera in the use of crutches and
failing to supervise her training on the use of crutches. Xeller’s report provides many
more details than a bare assertion that Pettway did not use precautions to prevent a
fall. Cf. Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880
(Tex. 2001) (holding that the statement in the report—“that precautions to prevent
[the patient’s] fall were not properly used”—was conclusory as to the standard of
9
care because the defendant could not determine from the report whether the
defendant was required to monitor the patient more closely, restrain the patient more
securely, or do something else entirely).
The trial court did not abuse its discretion by concluding that Xeller’s report
satisfied the “good-faith effort” requirement because the report informs Pettway of
the specific conduct called into question. See Baty, 543 S.W.3d at 693–94; Miller,
536 S.W.3d at 516–17; see also Bailey, 402 S.W.3d at 368 (holding that the expert
reports adequately articulated relevant standards of care despite the defendant–
dermatologist’s claim that the articulated standards of care were not equally
applicable among practice areas; surgeon–experts opined that the dermatologist
should not have ordered or allowed the patient to use an exercise machine).
Pettway’s first issue is overruled.
D. Causation
In his second issue, Pettway contends that Xeller’s report is deficient because
it fails to “adequately describe the causal connection between the alleged breaches
of the standard of care to the harm allegedly suffered by the Appellee.” Specifically,
Pettway claims “there is no clear explanation of how we get from patient education
to injury,” and there is “absolutely no explanation as to how the fall actually caused
the downstream injuries.” Pettway also faults Xeller’s report for failing to exclude
other possible causes.
Pettway contends that the Texas Supreme Court’s decision in Columbia
Valley Healthcare System, L.P. v. Zamarripa is analogous. See 526 S.W.3d 453
(Tex. 2017). In that case, the plaintiff sued a hospital based on the hospital’s nurses’
failures to prevent a patient from being transferred by ambulance to another location
when the patient was not suitable for discharge. See id. at 457. The experts’ reports
10
acknowledged that it was a doctor, and not the hospital’s employees, who ordered
the patient’s transfer. Id. at 461. And, the reports did not explain how the hospital
permitted or facilitated the transfer, or even whether the hospital had any say in the
matter. Id. The experts did not explain how the hospital had the right or means to
persuade the doctor to not order the transfer or to stop the transfer. Id. Thus, the
Texas Supreme Court held that the reports were deficient because they did not
adequately show a causal relationship. See id. at 460–61.
Zamarripa is inapposite. Xeller identifies as part of the standard of care that
Pettway had an obligation to ensure that Olvera understood how to use the crutches
to prevent a fall. According to Xeller, this obligation included instructing Olvera
about how to use the crutches and supervising and helping Olvera ambulate with the
crutches. Xeller states that Olvera was left unsupervised and walked with the
crutches without knowing how to use them “and as a result suffered a slip and fall
and hit her head, twisted her neck and wrenched her shoulder (right) when she fell
and landed on the concrete floor.” Xeller states that as a result of Pettway’s failure
to instruct Olvera on how to use the crutches, “Olvera did not know how to use the
crutches and fell and hit her head and body on the concrete floor.” Xeller also states
that the fall caused Olvera’s concussion, headaches, neck pain (which allegedly
resulted in a recommendation for a cervical spine operation), and shoulder injury
(which allegedly resulted in surgery for a ruptured biceps tendon).
Xeller, therefore, links the standard of care (failure to instruct and supervise)
with Olvera’s lack of knowledge on how to use the crutches and her falling, which
resulted in her hitting her head on the concrete floor, twisting her neck, and
wrenching her shoulder. Bailey is analogous. The experts in that case opined that the
patient suffered an ankle fracture after falling from an exercise machine, which the
defendant told her to use. See 402 S.W.3d at 369–70. A report sufficiently addressed
11
the element of causation by linking the breach of the standard of care (directing the
patient to use the machine) with the ankle injury. See id. at 370. Xeller does the same
by linking Pettway’s alleged failure to instruct and supervise Olvera with the fall and
resulting injuries. Accordingly, Xeller’s report is sufficient to give the trial court
discretion to conclude that Olvera’s claims have merit. See id. at 369–70; see also
Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 199–200 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (no abuse of discretion to deny motion to dismiss
when the standard of care was for the hospital to contact the patient’s doctor as the
patient requested, and the failure to contact the doctor resulted in injuries from a
procedure that “no reasonable doctor” would have performed; holding that the report
did not need to be based on specific evidence of what the uncalled doctor would
have done).
Finally, Xeller was not required to exclude other possible causes for Olvera’s
fall. See Bailey, 402 S.W.3d at 369 (“Nothing in section 74.351 suggests the
preliminary report is required to rule out every possible cause of the injury, harm, or
damages claimed, especially given that section 74.351(s) limits discovery before a
medical expert’s report is filed.”). Even if further litigation might show that Pettway
is not liable because Xeller’s causation opinion is wrong, the only question presented
at this stage in the case is whether the report provides enough information for the
trial court to conclude that the report was a good-faith effort. See Miller, 536 S.W.3d
at 517; see also Shepherd-Sherman, 296 S.W.3d at 200. We conclude that the report
contained sufficient information, so the trial court acted within its discretion.
Pettway’s second issue is overruled.
III. CONCLUSION
In sum, the trial court did not abuse its discretion by concluding that Xeller’s
report amounted to a good-faith effort to describe the standard of care, breach, and
12
causation with sufficient specificity to (1) inform Pettway of the specific conduct
called into question and (2) provide a basis for the trial court to conclude that the
claims have merit.
Having overruled both of Pettway’s issues, we affirm the trial court’s order
denying the motion to dismiss.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Frost and Justices Busby and Wise.
13