in Re Covenant Medical Center and John Eaton, L.V.N., Relators ( 2005 )

NO. 07-05-0033-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 7, 2005
______________________________
IN RE COVENANT MEDICAL CENTER
AND JOHN EATON, L.V.N., RELATORS
_________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 03-522-597; HON. MACKEY K. HANCOCK, PRESIDING
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
DISSENTING OPINION
In my judgment, Cord’s mistaken belief that Dr. Antognoli’s report complied with
section 13.01(r)(6) is not a mistake of law that entitled him to a section 13.01(g) grace
period, and the trial court abused its discretion in granting the grace period.
The principle discussed in the Schneider, 118 S.W.3d 886, and Traut, 75 S.W.3d
661, cases, that expert testimony is not required to establish the causal relationship
between a breach of the standard of care and the injuries claimed when that relationship
fairly may be evaluated by the factfinder’s general experience and common sense, does
not seem to me to apply to this case. According to Antognoli’s report, this case is not
simply about a failure to monitor a patient who stopped breathing.1 The report provides
three pages of detail, criticizing the nursing care provided Cord in several particulars,
including the incorrect administration of morphine; the failure to accurately and completely
document nursing interventions and physician orders and the patient’s response to the
interventions and orders; the failure to record vital signs, pulse oximetry readings and
physical assessments; failures in communication between professional and LVN nursing
staff; and the failure to determine and record the amount of morphine administered to Cord.
The report then concludes with a statement concerning causation, by which Antognoli
opines that the breaches of the nursing standards “directly contributed to Andrew Cord’s
post-surgical complication of respiratory depression and subsequent anoxic
encephalopathy.”2
General experience and common sense manifestly would not enable a factfinder to
evaluate fairly the relationship between Cord’s neurological damage and the breaches the
report says “directly contributed” to his injuries.
Cord’s contention that his counsel mistakenly believed Antognoli was qualified to
address causation also cannot support a finding of accident or mistake under Walker
because the asserted mistaken belief does not match the report. Cord’s response to
relators’ petition cites his counsel’s testimony that he believed a nurse is qualified to state
1
As discussed below, Antognoli’s report does not say Cord stopped breathing.
2
Relators contended before the trial court that the expert report was inadequate for
the additional reason that its statement concerning causation was a mere conclusion. See
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). Relators’ mandamus petition
here does not make that contention.
2
that “harm’s done if you don’t breathe.”3 But Antognoli’s report does not say that Cord
stopped breathing. It does say that, according to medical records and deposition
testimony, he was found with “deep, shallow, noisy slow respirations of 16 per minute.” It
also says he was unconscious and unresponsive, and that he was exhibiting seizure
activity. And the report does not just say that he suffered “harm.” It says he suffered
anoxic encephalopathy. By its definition in section 13.01(r)(6), an expert report is one that
addresses the standard of care, the manner in which the care rendered failed to meet the
standard, and “the causal relationship between that failure and the injury, harm, or
damages claimed.” (emphasis mine). Whether we read Cord’s pleadings (which allege
Cord was diagnosed with “hypoxic encepholopathy”) or the section 13.01 expert report, the
injury, harm or damages claimed is brain damage. Counsel’s stated belief that Antognoli
is qualified to opine “that harm’s done if you don’t breathe” does not equate to a mistaken
belief that she is qualified to render the opinions contained in her report.
In view of the injury claimed and the settled requirements for section 13.01(d)
reports, see Chisholm, 63 S.W.3d at 906; Windisch, 138 S.W.3d at 511, I cannot agree that
a belief no expert testimony on causation was required, or that counsel’s stated belief that
Antognoli was qualified, constitutes the kind of mistake of law that entitled Cord to a section
13.01(g) grace period. Walker, 111 S.W.3d at 64.
3
The complete statement quoted in Cord’s response, from counsel’s testimony at the
hearing at which the trial court granted the grace period, was: “In good faith, we didn’t
need [a brain injury expert]. Obviously, in proof at the trial of the case, we have to show the
extent of his injuries. And we are using his treating physicians. But, as far as showing that
harm’s done if you don’t breathe, we certainly felt that a nurse was qualified to state that.”
3
I would hold that the report omitted a required expert opinion on the issue of
causation, see §13.01(r)(6); Chisholm, 63 S.W.3d at 907, and that Cord’s mistaken belief
that the report complied with the statute is not a mistake of law that entitled him to a section
13.01(g) grace period. See Walker, 111 S.W.3d at 64-65; In re Brown, No. 07-04-0455-CV,
2005 Tex.App. LEXIS 684, at *6-*7 (Tex.App.–Amarillo January 7, 2005, no pet. h.).
Accordingly, I would grant relators their requested relief, and respectfully dissent from the
Court’s disposition of their petition.
James T. Campbell
Justice
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