abilene-regional-medical-center-debbie-marsh-april-nichols-and-tarena ( 2012 )

Opinion filed November 29, 2012
In The
Eleventh Court of Appeals
__________
No. 11-11-00097-CV
__________
ABILENE REGIONAL MEDICAL CENTER, DEBBIE MARSH,
APRIL NICHOLS, AND TARENA SISK, Appellants
V.
ADANELICA ALLEN AND DAVID ALLEN, INDIVIDUALLY
AND AS NEXT FRIENDS OF MADISON ALLEN, Appellees
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 022317
OPINION
This interlocutory appeal involves a health care liability claim brought by appellees,
Adanelica and David Allen, individually and as next friends of Madison Allen, their two-year-
old daughter, against appellants, Abilene Regional Medical Center and nurses Debbie Marsh,
April Nichols, and Tarena Sisk. Appellants appeal the trial court’s order denying their motion to
dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011). We affirm in part and
reverse and remand in part.
Background Facts
Appellees’ health care liability claim arises from the events occurring prior to the birth of
Madison with respect to Adanelica’s course of labor at Abilene Regional. Appellees allege in
their pleadings that Marsh, Nichols, and Sisk were labor and delivery nurses at Abilene Regional
who cared for Adanelica when she presented to the hospital for induction of labor on August 18,
2008. Appellees’ brought suit against Marsh, Nichols, and Sisk, alleging that they were
negligent in their care and treatment of Adanelica. Appellees contend that the nurses failed to
recognize signs and symptoms indicating that Madison was in respiratory distress. They allege
that Madison suffered permanent brain damage as a result because the attending physician,
Dr. Stanley, was not timely advised of her diminishing condition so that he could implement
appropriate intervention.1 Appellees also sued Abilene Regional, asserting that it is vicariously
liable for the alleged negligence of Marsh, Nichols, and Sisk. Appellees additionally asserted
that Abilene Regional is directly liable to them “for not ensuring that it staffed the labor and
delivery unit with nurses who [sic] sufficient experience for this highly specialized care.”
Appellees attached the expert reports of Dr. Ezell Autrey, M.D.; Joan Dauphinee, R.N.;
and Dr. Robert A. Zimmerman, M.D. to their original petition in order to comply with the expert
report requirements of Section 74.351(a). Appellants filed an objection to all three of the initial
reports, which the trial court subsequently overruled in a written order. Appellees later filed a
“Life Care Plan” prepared by Dr. Joe G. Gonzales, M.D., which appellants also challenged.2
Appellants subsequently filed a motion to dismiss the action based upon the sufficiency of the
expert reports. This appeal arises from the trial court’s denial of appellants’ motion to dismiss.
Standard of Review
We review a trial court’s decision to deny a motion to dismiss under Section 74.351(b)
for an abuse of discretion. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);
Hendrick Med. Ctr. v. Conger, 298 S.W.3d 784, 787 (Tex. App.—Eastland 2009, no pet.). To
determine whether a trial court abused its discretion, we must decide whether the trial court acted
in an unreasonable or arbitrary manner without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
1
Appellees did not file suit against Dr. Stanley.
2
In light of appellees’ assertion that they are not relying on Dr. Gonzales’s life care plan to satisfy the expert report
requirements, we do not address it in depth in this opinion.
2
A trial court must “grant a motion challenging the adequacy of an expert report 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.” Section 74.351(l). The statutory definition
requires that the expert report provide a fair summary of the expert’s opinion regarding the
applicable standard of care, the manner in which the care rendered failed to meet that standard,
and the causal relationship between the failure to meet the standard of care and the injury
suffered. Id. § 74.351(r)(6). A report must be served as to each physician or health care provider
against whom a liability claim is asserted. Id. § 74.351(a). However, a plaintiff may serve
multiple reports by separate experts regarding different defendants, different claims, and
different issues, as long as the reports, read together, provide a fair summary of the standard of
care, breach, and causation. Id. § 74.351(i), (r)(6); see also Packard v. Guerra, 252 S.W.3d 511,
526 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (“[S]ection 74.351(i) does not require
that a single expert address all liability and causation issues with respect to a defendant.”);
Martin v. Abilene Reg’l Med. Ctr., No. 11-04-00303-CV, 2006 WL 241509, at *4 (Tex. App.—
Eastland Feb. 2, 2006, no pet.) (mem. op.) (“Section 74.351(i) expressly provides that a claimant
may satisfy any requirement of the Act by providing reports of separate experts.”).
A “good faith effort” under Section 74.351(l) “simply means a report that does not
contain a material deficiency.” Samlowski v. Wooten, 332 S.W.3d 404, 409–10 (Tex. 2011). If
the report fulfills its two purposes, it represents a good faith effort. See Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (“In setting out the expert’s
opinions on each of those elements, the report must provide enough information to fulfill two
purposes if it is to constitute a good-faith effort.”). The two purposes of the expert report are to
inform the defendant of the specific conduct the plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit. Leland v. Brandal, 257 S.W.3d
204, 206–07 (Tex. 2008) (citing Palacios, 46 S.W.3d at 879). “In contrast, a report that omits an
element or states the expert’s opinions in conclusory form is not a good faith effort.” Samlowski,
332 S.W.3d at 410 (citing Palacios, 46 S.W.3d at 879).
Issues
Appellants present three issues on appeal. In their first issue, they argue that the trial
court abused its discretion when it determined that appellees filed sufficient expert reports based
upon appellants’ assertion that the reports did not satisfy the causal relationship requirement.
3
See Section 74.351(r)(6). Appellants assert in their second issue that the expert reports failed to
address appellees’ direct liability claims against Abilene Regional. In their third issue,
appellants contend that the expert reports are deficient because they failed to distinguish the
alleged acts and omissions of each appellant separately.
Expert Reports
A. Dr. Autrey’s Report
Appellees primarily rely upon the report of Dr. Autrey to satisfy the expert report
requirement. Dr. Autrey stated in his report that he is a board-certified obstetrician/gynecologist
that has been practicing in the field for the past twenty-six years. He stated that he has managed
patients that have been given Cytotec for cervical ripening followed by Pitocin for induction of
labor. He further stated that he has attended “hundreds of deliveries” and that he is “familiar
with the biological mechanism by which a fetus suffers brain injury when deprived of oxygen.”
Dr. Autrey also stated that he is aware of what a labor and delivery nurse should do when she has
a patient with Cytotec for cervical ripening, Pitocin induction, and fetal distress.
Dr. Autrey initially detailed the treatment provided to Adanelica in the labor and delivery
unit of Abilene Regional. She arrived at 10:10 p.m. on August 18, 2008, for the induction of
labor. Dr. Stanley placed her initial administration of Cytotec at 10:48 p.m. Dr. Autrey stated
that Sisk performed all subsequent Cytotec administrations. Dr. Autrey noted that Dr. Stanley
ruptured Adanelica’s membranes at 8:28 a.m. the next morning. Marsh started IV Pitocin at
8:40 a.m. and assumed care of Adanelica after Sisk. Marsh subsequently increased the
administration of Pitocin. Dr. Autrey noted that Nichols decreased the administration of Pitocin
at 12:23 p.m. due to signs of fetal distress. Marsh subsequently increased the administration of
Pitocin until 2:38 p.m. when it was discontinued due to “‘loss of capture’ and variable
decelerations.” Marsh restarted Pitocin at 3:23 p.m.
Adanelica progressed to complete dilation at 4:20 p.m., after which time Marsh increased
the administration of Pitocin. At 5:13 p.m., Dr. Stanley discussed a Caesarean section with
Adanelica due to fetal distress. Madison was delivered at 5:27 p.m. with a “nuchal cord times
one.”3 Dr. Autrey detailed that Madison took her first spontaneous breath at around seven
minutes and that she had seizures and apneic periods soon after arrival.
3
Dauphinee noted in her expert report that a “nuchal cord” describes a situation when the umbilical cord is wrapped
around the baby’s neck.
4
Under a section of his report labeled “TARENA SISK, R.N., DEBBIE MARSH, R.N.
AND APRIL NICHOLS, R.N.,” Dr. Autrey opined that the applicable standard of care for labor
and delivery nurses managing a patient receiving Cytotec for cervical ripening followed by IV
Pitocin for induction of labor requires them to do as follows: (1) maintain a readable tracing of
the fetal heart tones and contraction pattern; (2) not start, increase, or continue Pitocin on a
patient with a non-reassuring fetal monitor tracing, no uterine contraction monitoring, or uterine
hyperstimulation; (3) notify the physician if there is a non-reassuring fetal heart tones tracing;
(4) discontinue Pitocin when there is a non-reassuring fetal heart tones tracing; and (5) initiate
intrauterine resuscitation when a baby has non-reassuring fetal heart tones. Dr. Autrey further
opined that the nurses breached each of the applicable standards of care that he listed.
Dr. Autrey then detailed instances when the various events he cited occurred. He noted
that a readable tracing of uterine contractions was not present from 10:51 p.m. until 2:39 a.m.
He opined that a reasonable labor and delivery nurse should be on heightened vigilance to ensure
the fetus is receiving adequate oxygen if a fetal monitor is not properly working. He identified
9:45 a.m. to 10:03 a.m. as another period when the fetal heart rate was not being properly traced.
Dr. Autrey also noted that Marsh increased Pitocin at 11:04 a.m. and 11:49 a.m. even though
there were non-reassuring fetal heart tones. Dr. Autrey stated that, “[a]t no time was Dr. Stanley
notified of these non-reassuring fetal heart tones or of the poor non-readable fetal heart tones and
contraction pattern.” He further stated that the nurses’ deviations from the applicable standard of
care “were the direct and proximate cause” of the injuries to Madison, including metabolic
acidosis, seizure, severe hypoxic ischemia, and permanent brain damage.
Dr. Autrey’s report then contained a section labeled “ABILENE REGIONAL MEDICAL
CENTER.” He opined that the standard of care for a reasonable prudent hospital is to ensure that
its labor and delivery nurses abide by the applicable standards of care when managing a patient
receiving Cytotec for cervical ripening and then IV Pitocin for induction. He then essentially
repeated the standards of care that he had previously identified for the nurses and their alleged
breaches of the applicable standards of care.
Near the end of his report, Dr. Autrey stated as follows:
Had the nurses apprised Dr. Stanley of the non-reassuring tracings earlier,
this would have alerted a reasonable and prudent OB/GYN to institute a
Caesarean section earlier than he did. The multiple decelerations that baby
Madison experienced, combined with the lack of proper uterine contraction
tracing the night before, would have convinced a reasonable and prudent
5
OB/GYN to perform a Caesarean section before oxygen deprivation reached a
brain-damaging level.
Oxygen is necessary for our cells to survive and function. Without
oxygen, cells die. Continued oxygen deprivation causes brain damage in fetuses
as well as adults.
Upon review of the fetal monitoring strips, the hypoxic ischemic
encephalopathy (brain damage to due to oxygen deprivation) this child suffered
was a culmination of multiple decelerations but the vast majority of the damage
began at or around [5:01 p.m.] through [5:27 p.m.] on 8/19/08. This is based on
the drop of the baby’s heart rate to around 60-70 beats per minute at or around
[5:01 p.m.]. This is caused by umbilical cord compression denying oxygen to the
fetus, much as a situation in which a hardhat diver submerged in a body of water
had a prankster clamp his hand on the hose feeding him air. Without oxygen
brain cells die, in a fetus or in a person outside the womb. My opinion, based on
a reasonable degree of medical probability, is that the permanent brain damage to
this child began at or around [5:01 p.m.]. Obviously, had the child been taken
from the womb by Caesarean section before [5:01 p.m.] this injury would not
have occurred.
The decelerations that had been occurring, had the doctor been informed
of them, would have alerted the physician that umbilical cord was obstructed in
such a position that it was not letting this oxygenated blood get to the fetus well.
This obstruction is likened to a kink in a hose. When the cord shifted such that
the obstruction got a little worse, the crash occurred at [5:01 p.m.]. Had Dr.
Stanley been armed with the knowledge of the prior decelerations by the nurses,
the standard of care dictates he would have performed a Caesarean section several
hours before the [5:01 p.m.] crash occurred.
B. Dauphinee’s Report
Dauphinee began her report by stating that she is a registered nurse in Florida and that
she has been a nurse for forty years. She stated that she has worked in labor and delivery units,
published journal articles and textbooks in this area of nursing, and lectured nationally on
obstetrical topics. Dauphinee further stated that she is familiar with the standards of care for
obstetrical nurses.
Dauphinee noted that Adanelica was admitted to the labor and delivery unit by Sisk for
the induction of labor. Dauphinee also described the roles of Cytotec and Pitocin in inducing
labor. She stated that Pitocin is usually controlled by the nurse. Pitocin is increased to increase
contractions and decreased or stopped if the contractions get too strong, long, or close together,
which might decrease oxygen to the baby. Dauphinee stated that the manner in which Pitocin is
6
adjusted is based on whether or not “the tracing is reassuring or non-reassuring.” She further
stated that Pitocin should only be continued or increased if the tracing is reassuring and that it
should be discontinued with non-reassuring fetal monitoring tracing.
Dauphinee’s report continues with a review of the medical records. She noted that,
“[d]uring the night while under the care of Sisk the fetal monitor was not tracing contractions
well.” Dauphinee noted that the tocotransducer that identifies the beginning and the end of
contractions was not working from 10:51 p.m. to 1:43 a.m. She stated that it is very important
for this instrument to be working to record contractions during the administration of a labor
induction agent so that the nurse can be certain that there is not too much uterine activity.
Dauphinee indicated that non-reassuring tracings occurred between 1:44 a.m. and 2:19 a.m.,
from 2:39 a.m. to 4:29 a.m., from 5:20 a.m. to 6:18 a.m., and from 6:27 a.m. to 8:11 a.m.
Dauphinee noted that Marsh took over care of Adanelica at 8:40 a.m. until delivery.
Marsh started Pitocin at that time. Dauphinee indicated that Marsh increased the dosage of
Pitocin at 9:17 a.m. even though there were “late decelerations with decreased variability.”
Dauphinee noted that Pitocin was later increased at 11:04 a.m. and 11:49 a.m. “even though the
tracing was non-reassuring.” She then noted that the dosage of Pitocin was decreased at
12:23 p.m. by Nichols as a result of the fetal monitor tracing. Dauphinee further noted that this
was the only entry in the medical records made by Nichols. Pitocin was discontinued at
2:38 p.m. due to “‘loss of capture’ and variable decelerations.” Pitocin was restarted at
2:46 p.m., increased at 4:01 p.m., and never stopped, “even with an ominous tracing.”
Dauphinee concluded her report by listing the following alleged breaches of the
applicable standard of care for labor and delivery nurses:
Not maintaining a readable tracing (Nurse Sisk and Nurse Marsh)
Not maintaining a readable tracing with a non-reassuring fetal monitoring tracing
(Nurse Sisk and Nurse Marsh)
Not maintaining a readable contraction pattern, especially with administration of
pitocin and/or cytotec (Nurse Sisk and Nurse Marsh)
Not decreasing pitocin with a non-reassuring fetal monitoring tracing (Nurse
Marsh)
Not discontinuing pitocin with a non-reassuring fetal monitoring tracing (Nurse
Marsh and Nurse Nichols)
Increasing pitocin with a non-reassuring fetal monitoring tracing (Nurse Marsh)
Not notifying the physician of non-reassuring fetal monitoring tracings [(]Nurse
Sisk and Nurse Marsh)
7
Not notifying the physician of inability to maintain a continuous tracing (Nurse
Sisk, Nurse Nichols and Nurse Marsh)
Not placing this newborn on monitors after resuscitation at delivery.
C. Dr. Zimmerman’s Report
Dr. Zimmerman notes in his report that he is the chief of pediatric neuroradiology at The
Children’s Hospital of Philadelphia. Compared to Dr. Autrey’s report and Dauphinee’s report,
Dr. Zimmerman’s report is quite brief. He briefly commented on his findings from two
ultrasound examinations and an MRI. He then summarized his findings as follows: “The MRI is
the most important study, showing the characteristic findings of profound asphyxia, which are
consistent with bradycardic events occurring in the pre-delivery period. These are not a
manifestation of a strep infection, unless the strep infection were to cause an acute
cardiovascular collapse in the infant.”
Causal Relationship
Appellants present three sub-issues in support of their contention that the expert reports
do not sufficiently address the causal relationship requirement. Specifically, appellants contend:
(1) the reports of Dr. Zimmerman, Dr. Gonzales, and Dauphinee do not address the required
element of causal relationship; (2) Dr. Autrey is unqualified to opine as to causal relationship in
this case; and (3) Dr. Autrey’s opinions regarding causal relationship are conclusory, hinge upon
unsubstantiated assumptions, and conflict with the other expert reports.
We first examine the sub-issue concerning Dr. Autrey’s qualifications to offer an opinion
concerning causal relationship. Appellants contend that he is not qualified to offer an opinion on
causal relationship because he is not a neurologist or a pediatric neuroradiologist. They further
assert that “[n]either the report nor curriculum vitae of Dr. Autrey demonstrate his competence
or qualifications to testify on the cause or timing of neurological injuries allegedly suffered by
Madison Allen during labor and delivery.” We disagree.
In Livingston v. Montgomery, 279 S.W.3d 868, 869 (Tex. App.—Dallas, 2009, no pet.),
an obstetrician/gynecologist provided an expert report pertaining to neurological injuries that a
baby allegedly suffered during labor and delivery. In addressing a challenge to the
obstetrician/gynecologist’s qualifications to offer an opinion on causation, the court of appeals
focused on the question of whether he, as a non-neurologist, was qualified under the statute to
provide an expert report on the cause of neurological injuries. 279 S.W.3d at 876. The court
concluded that the obstetrician/gynecologist’s expertise in managing labor and delivery qualified
8
him to opine on the causal relationship between labor and delivery and the complications that
stem from labor and delivery, including a newborn’s neurological injuries. Id. at 877. In
reaching this holding, the court noted that the causation issue in the case related to the duty of
health care providers to recognize potential harm and take appropriate actions. Id.
The alleged acts of negligence in Livingston are quite similar to those alleged in this
appeal. Furthermore, this appeal also involves a causation issue pertaining to complications
arising from labor and delivery. Appellants assert that Livingston is distinguishable because the
obstetrician/gynecologist included the following statement in his expert report pertaining to his
qualifications:
Although I am not a neurologist, as an obstetrician I have knowledge and
expertise to recognize the perinatal progression of hypoxia due to inadequate
oxygenation through a compromised uteroplacental unit—either because of
uteroplacental insufficiency or inadequate refractory periods between contractions
or both; I have knowledge and expertise on the subject of hypoxia as it relates to
the associated build up of carbon dioxide (hypercapnia) that complicates ischemia
and which makes the unborn infant at risk for a rebound brain perfusion that
results in perinatal neurological brain injury.
Id. at 874. We disagree. While Dr. Autrey did not include as detailed of a description of his
qualifications on causation, he stated that he is “familiar with the biological mechanism by which
a fetus suffers brain injury when deprived of oxygen.” He supported this statement by noting
that he had attended “hundreds of deliveries.” As was the case in Livingston, the trial court did
not abuse its discretion in determining that Dr. Autrey’s report contained a sufficient statement
of his qualifications to offer his opinion on the causal relationship between labor and delivery
and the complications that stem from labor and delivery, including a newborn’s neurological
injuries.
Appellants also argue that Dr. Autrey’s opinion on causation is insufficient. Among
other things, they contend that his opinion is conclusory and speculative. Autrey opines that, had
the nurses reported negative findings to Dr. Stanley earlier, he would have performed a
Caesarean section sooner thereby avoiding the severe crash that began at 5:01 p.m. Appellants
contend that Dr. Autrey’s opinion to the effect that Dr. Stanley would have performed a
Caesarean section earlier is pure speculation and thereby conclusory. We disagree. We
addressed a similar situation in Martin. The claimant in Martin alleged that a hospital nurse was
negligent in failing to inform the treating physician of his failure to prescribe a necessary
9
medication to a heart patient at discharge. 2006 WL 241509, at *4–5. We held that the expert
reports in Martin were sufficient because they identified what the treating physician should have
done if he had been armed with the correct information. The reasoning in Martin is applicable
to Dr. Autrey’s report. His report constitutes a good faith effort to provide a fair summary of
causation because he identifies what a reasonable and prudent obstetrician would have done if he
had been provided the correct information.
Appellants additionally contend that Dr. Autrey’s opinion on causation is insufficient
because it refers to the nurses’ conduct collectively rather than separately identifying their acts
and omissions. Appellants also present this contention in their third issue when addressing the
expert reports’ allegations of the negligent acts of the nurses and Abilene Regional. We will
address the contention in our consideration of appellants’ third issue.
Appellants additionally contend that Dr. Autrey’s opinion on causation is insufficient
because it conflicts with matters contained in other expert reports and the facts in the case. The
inquiry at the report stage focuses on whether the information within the four corners of the
report meets the good faith requirement of the statute. Palacios, 46 S.W.3d at 878–79;
Schrapps v. Lam Pham, No. 09-12-00080-CV, 2012 WL 4017768, at *3 (Tex. App.—Beaumont
Sept. 13, 2012, no pet. h.) (mem. op.). If the facts do not support a plaintiff’s claim, summary
judgment procedures provide a remedy. See TEX. R. CIV. P. 166a; Shcrapps, 2012 WL 4017768,
at *3.
Having found Dr. Autrey’s opinion on causation sufficient, we need not address
appellants’ contentions pertaining to the other expert reports on the matter of causation.
Appellants’ first issue is overruled.
Direct Liability vs. Vicarious Liability
In their second issue, appellants contend that the expert reports do not adequately address
appellees’ direct liability claim against Abilene Regional. We begin our analysis by addressing
appellees’ counterargument. Citing Certified EMS, Inc. v. Potts, 355 S.W.3d 683 (Tex. App.—
Houston [1st Dist.] 2011, pet. granted), appellees contend that their expert reports are not
required to support every theory of liability asserted as long as at least one theory is adequately
supported. We recently addressed this issue in Hendrick Medical Center v. Miller, No. 11-11-
00141-CV, 2012 WL 314062 (Tex. App.—Eastland Jan. 26, 2012, no pet.) (mem. op.). In
Miller, we expressly declined to follow the holding in Potts. Id. at *3. For the reasons
10
expressed in Miller, we reaffirm our holding that direct liability and vicarious liability claims
must be separately evaluated to determine whether each claim is supported by a sufficient expert
report.
Appellees’ petition included a direct liability claim against Abilene Regional that reads in
its entirety as follows:
DIRECT LIABILITY OF DEFENDANT
ABILENE REGIONAL MEDICAL CENTER
Additionally, Abilene Regional Medical Center is liable for not ensuring
that it staffed the labor and delivery unit with nurses who [sic] sufficient
experience for this highly specialized care. Abilene Regional placed Debbie
Marsh on the labor and delivery unit even though she lacked the requisite skill
and experience to care for Adanelica and Madison, which proximately resulted in
the injuries to Adanelica and Madison. For this negligence, Abilene Regional
Medical Center is liable.
Appellees’ direct liability claim appears to include elements of negligent hiring, negligent
training, and negligent supervision claims as they pertain to Marsh. Dr. Autrey references these
claims to some extent by opining that Abilene Regional did not ensure that its labor and delivery
nurses abided by the applicable standards of care when managing a patient receiving Cytotec for
cervical ripening and then IV Pitocin for induction. However, the expert reports do not contain
any reference to Marsh’s educational background and do not provide any insight on Abilene
Regional’s staff training, policies, or procedures. See TTHR Ltd. P’ship v. Moreno, No. 02-10-
00334-CV, 2011 WL 2651813, at *3 (Tex. App.—Fort Worth July 7, 2011, pet. granted) (mem.
op.). Thus, the reports are deficient with regard to Abilene Regional’s direct liability.
Appellants’ second issue is sustained in part.
Section 74.351(c) provides that, if a report is considered not to have been served because
elements of the report are found deficient, the court may grant one thirty-day extension to the
claimant in order to cure the deficiency. In light of the trial court’s determination that the reports
were not deficient, it has not considered whether appellees should be granted an extension to
cure their reports’ deficiencies regarding the direct liability claim against Abilene Regional or
whether it should dismiss the claim. See Moreno, 2011 WL 2651813, at *5. Accordingly, we
remand the case so that the trial court has the opportunity to determine whether appellees should
be granted a thirty-day extension to cure what we have held to be deficient. See Leland, 257
S.W.3d at 207 (noting that every court of appeals that has addressed a deficient report has
11
remanded the case to the trial court for the trial court to determine whether to grant an
extension); Moreno, 2011 WL 2651813, at *5.
Specificity of Reports as to Each Nurse
Appellants assert in their third issue that the expert reports do not sufficiently specify the
particular alleged acts of negligence with respect to each of the nurses. Dr. Autrey references
each of the nurses by name in his report, primarily from a chronological perspective in their
treatment of Adanelica during her labor and delivery. He devoted the bulk of his report to the
actions of Marsh. As we noted in Martin, Section 74.351(i) expressly provides that a claimant
may satisfy any requirement of Section 74.351 by providing reports of separate experts. 2006
WL 241509, at *4. Dauphinee went into greater detail in her report in addressing the care and
treatment of Adanelica by the nurses. As quoted above, Dauphinee alleged approximately ten
negligent acts or omissions that she attributed to one or more of the nurses by parenthetical
reference. We conclude that, when read together, the reports of Dr. Autrey and Dauphinee
constitute a good faith effort to differentiate the alleged negligent acts of the nurses. Appellants’
third issue is overruled.
This Court’s Ruling
We affirm the trial court’s order denying appellants’ motion to dismiss with respect to
appellees’ claims against the nurses individually and their vicarious liability claims against
Abilene Regional. We reverse the trial court’s order denying appellants’ motion to dismiss as to
the direct liability claim against Abilene Regional, and we remand this case to the trial court for
further proceedings consistent with this opinion, including a determination of whether appellees
should be granted a thirty-day extension to cure what we have held to be deficient with regard to
their direct liability claim against Abilene Regional.
TERRY McCALL
JUSTICE
November 29, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Gray, C.J., 10th Court of Appeals.4
4
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment to the 11th Court of
Appeals.
12