Christus Spohn Health System Corporation v. Jose Castro ( 2013 )

NUMBER 13-13-00302-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION, Appellant,
v.
JOSE CASTRO, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Christus Spohn Health System Corporation (Spohn) challenges the trial
court's denial of its motion to dismiss appellee Jose Castro's health care liability claim.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West 2011). By two issues, Spohn
argues that: (1) Castro's experts were not qualified to opine on the specific area of
health care involved in this suit; and (2) Castro's reports were contradictory and
conclusory and were therefore "no reports" under the law. See id. § 74.351(l), (r)(6).
We reverse and remand.
I. Background
Castro alleged the following facts in his petition:
On or about October 24, 2011, 50-year-old Jose Castro was in a
serious car accident. He was a belted passenger in a Ford F-150 crew
cab. The truck rolled and the roof crushed, causing severe injuries to Mr.
Castro. Mr. Castro was transported via helicopter to the emergency room
at Christus Spohn Hospital in critical condition. Mr. Castro sustained
severe injuries including, but not limited to, fracture and dislocation of his
cervical spine at C5-C6, multiple rib fractures, a collapsed lung, and
damage to his right phrenic nerve. He remained in intensive care through
most of December 2011. Mr. Castro had no sensation or movement below
the nipple line, putting him at high risk of skin breakdown.
In November 2011, Mr. Castro developed a pressure ulcer on his tail
bone. The cause was the use of the tangible property, the hospital bed.
By the time Mr. Castro was discharged from Christus Spohn Hospital in
February 2012, the pressure ulcer had progressed to a grade III decubitus
ulcer. . . .
At all relevant times hereto, Mr. Castro was a patient of Christus
Spohn Hospital.
Complaining of the pressure ulcer, in particular, Castro brought a health care
liability claim against Spohn.1 In that claim, Castro alleged that Spohn was negligent in:
its use of the hospital bed; its failure to develop and employ policies to oversee patients
like Castro; its failure to train and supervise personnel to carry out such policies; its failure
1
In this same lawsuit, Castro has also alleged causes of action against the driver of the truck for
negligence and against Ford Motor Company for products liability. Neither of those causes of action are
before us in this accelerated, interlocutory appeal.
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to render appropriate medical and nursing intervention to Castro; its failure to provide
adequate nutritional support to Castro; its failure to plan for and protect Castro from
bedsores and ulcers; its failure to follow Castro's doctors' orders; and its failure to
maintain the highest practical level of care for Castro. Castro alleged that this
negligence proximately caused the injuries he suffered at Spohn.
In support of his health care liability claim, Castro timely filed two expert
reports—one authored by Donna du Bois, MPH, RN and another authored by Perry
Starer, M.D. Both du Bois and Dr. Starer are geriatric specialists with extensive
experience in caring for pressure ulcers in hospital and nursing home settings. Spohn
objected to both expert reports, arguing that neither du Bois nor Dr. Starer was qualified to
offer opinions as to the conditions under which Castro suffered his injuries, i.e., the
development of a pressure ulcer in trauma care conditions while Castro was
simultaneously suffering from quadriplegia, diabetes, bacterial infections, and respiratory
distress. Spohn also filed motions to dismiss Castro's health care liability claim, arguing
that Castro's reports are "no reports" and the claim should therefore be dismissed
because neither du Bois nor Dr. Starer is qualified and the reports are contradictory and
conclusory. After a hearing, the trial court denied Spohn's objections and motions to
dismiss. This accelerated, interlocutory appeal followed. See id. § 51.014(a)(9) (West
Supp. 2011).
II. Standard of Review
We review a trial court's decision with respect to expert reports and the
qualifications of experts for an abuse of discretion. Larson v. Downing, 197 S.W.3d 303,
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304–05 (Tex. 2006); Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001). The
trial court abuses its discretion if it acts unreasonably or arbitrarily or without reference to
any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
III. Applicable Law
Under Chapter 74, an expert report is defined as:
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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). When a document purporting to be an
expert report is timely served and is properly challenged, as is the case here, the trial
court "shall grant [the] motion challenging the adequacy of [the] 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 in Subsection (r)(6)." Id. § 74.351(l); see
Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). To qualify as an objective good
faith effort, the report must (1) inform the defendant of the specific conduct the plaintiff
complains of, and (2) provide a basis for the trial court to conclude that the plaintiff's
claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing
Palacios, 46 S.W.3d at 879). The report and/or its accompanying curriculum vitae (CV)
must also establish that the report's author is qualified to opine as an expert on the
subject matter of the report. Leland v. Brandal, 217 S.W.3d 60, 62 (Tex. App.—San
Antonio 2006), aff'd on other grounds, 257 S.W.3d 204 (Tex. 2008). Those qualifications
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must appear within the four corners of the expert report and cannot be inferred. Id.; see
also Palacios, 46 S.W.3d at 878; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117
(Tex. App.—Houston [14th Dist.] 2009, no pet.). To meet the "good faith effort"
requirement, "[n]o particular words or formality are required, but bare conclusions will not
suffice. The report must address all the elements, and omissions may not be supplied by
inference." Scoresby, 346 S.W.3d at 556 (citations omitted). "The purpose of the
expert report requirement is to deter frivolous claims, not to dispose of claims regardless
of their merits." Id. at 554 (citation omitted).
A report meets the minimum qualifications for an expert report under the statute "if
it contains the opinion of an individual with expertise that the claim has merit, and if the
defendant's conduct is implicated." Id. at 557. If a report meets these qualifications but
is deficient, the claimant is entitled to one thirty-day extension to cure the deficiencies.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). "All deficiencies, whether in the expert's
opinions or qualifications, are subject to being cured before an appeal may be taken from
the trial court's refusal to dismiss the case." Scoresby, 346 S.W.3d at 557; see also
Leland, 257 S.W.3d at 207–08 (holding that when elements of a timely filed expert report
are found deficient, either by the trial court or on appeal, one thirty-day extension to cure
the report may be granted).
IV. Qualifications of Experts
By its first issue, Spohn contends that because the care provided to Castro by the
hospital was under intensive care unit (ICU) or trauma conditions, his development of
pressure ulcers must be addressed in the context of those conditions. And because
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neither du Bois nor Dr. Starer practice in the field of ICU/trauma care, Spohn argues that
they are not qualified to author expert reports in this case.
To be qualified to provide opinion testimony on whether a health care provider
departed from the accepted standard of care, an expert must satisfy section 74.402.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B). Section 74.402 lists three
specific qualifications an expert witness must possess to provide opinion testimony on
how a health care provider departed from accepted standards of health care—the expert
must:
(1) [be] practicing health care in a field of practice that involves the same
type of care or treatment as that delivered by the defendant health
care provider, if the defendant health care provider is an individual,
at the time the testimony is given or was practicing that type of health
care at the time the claim arose;
(2) [have] knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness, injury, or
condition involved in the claim; and
(3) [be] qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of health care.
Id. § 74.402(b) (West 2011).
A plaintiff offering expert medical testimony must establish that the report's author
has expertise regarding "the 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 148, 153
(Tex. 1996). Our analysis of the proffered expert's qualifications focuses on "the very
matter" on which the expert is to give an opinion. Id.
Here, du Bois's CV shows that she has over thirty years' experience as a nurse,
primarily in the field of nursing home care and other long-term facility care. In her report,
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du Bois stated that she is familiar with the standard of care for the "prevention of pressure
ulcers . . . expected by ordinary prudent nurses in Texas." In his report, Dr. Starer states
that he is "a practicing physician licensed by the State of New York." Dr. Starer states
that he has been "board certified in Internal Medicine and Geriatrics" since 1985. Dr.
Starer states that he teaches in the field of geriatrics at Mount Sinai School of Medicine
and has given lectures on the prevention and treatment of pressure ulcers to both
physicians and nurses. Finally, Dr. Starer states:
In the regular course of my medical practice, I have occasion to diagnose
and treat patients with conditions substantially similar to or identical with
those of Jose Castro, including mobility limitations. I have also served as a
primary care physician for hospital and nursing home patients since 1985.
Over the course of my career, I have been the primary care physician for
more than 5,000 patients in hospitals and nursing homes. Many of those
patients have struggled with disabilities similar to those Jose Castro
experienced. Accordingly, I have cared for and treated numerous patients
who, like Jose Castro, were at risk for development of pressure ulcers.
In their reports and CVs, neither du Bois nor Dr. Starer states that they have experience
preventing and treating bedsores in the context of ICU or trauma care or explains how
their fields of practice involve the same type of ICU/trauma care Spohn provided to
Castro.
Spohn does not dispute that du Bois is an expert in the field of nursing home care
and Dr. Starer is an expert in the field of geriatrics and nursing home care, or that these
fields regularly involve the prevention and treatment of pressure ulcers. Rather, Spohn
argues that neither expert is practicing or has otherwise relevant experience in
ICU/trauma care, which is the relevant field of practice in this case. We agree. In his
petition, Castro alleges that he remained in Spohn's trauma unit and ICU from October
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24, 2011 through most of December 2011 as a result of the severe injuries he sustained in
the car accident, including a collapsed lung, multiple broken ribs, and a fractured and
dislocated spine. In their descriptions of Castro's conditions, both du Bois and Dr. Starer
acknowledge these serious injuries and that Castro was being cared for under intensive
care or trauma conditions. Castro then alleges that his pressure ulcer developed in
November 2011, which is while he was in the ICU. In short, under the facts alleged in his
own petition, it is clear that the care provided to Castro by Spohn was trauma and ICU
care. Castro's pressure ulcer developed in this context, and his experts must be
qualified to opine on his injury in the context of these conditions. Examining only what is
within the four-corners of the experts' reports and CVs, see Palacios, 46 S.W.3d at 878;
Pokluda, 283 S.W.3d at 117, we find nothing in either du Bois or Dr. Starer's reports that
meets this requirement.
Castro argues that Spohn's characterization of the relevant field of practice in this
case sets the bar too high, that Spohn is essentially requiring Castro to find a specialist in
the treatment of "a 50-year-old quadriplegic with diabetes, PEG tube feeding, with a
tracheostomy [sic] and neurologic deficits, with prior cardiac arrest and suffering from
bacterial infections." This characterization overstates what is required in this case.
Although it is true that an expert need not be a practitioner in the same specialty as the
defendant to qualify as an expert, see Broders, 924 S.W.2d at 153, he or she is only
competent if he or she has practical knowledge of what is usually and customarily done by
a practitioner under circumstances similar to those confronting the defendant. See
Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex. App.—Fort Worth 2004, pet. denied). In
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other words, the proper inquiry in assessing an expert's qualifications to submit a report is
not his or her area of expertise but his or her familiarity with the specific issues involved in
the claim before the court. See Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston
[14th Dist.] 1999, no pet.); see also Broders, 924 S.W.2d at 153. Here, as discussed
above, Castro's petition includes facts showing that the circumstances under which he
developed his pressure ulcer involved trauma and ICU treatment of his severe injuries
following the accident. His expert must be qualified to render an opinion on the
applicable standard of care in those circumstances—i.e., the prevention and/or treatment
of pressure ulcers in the context of ICU/trauma care.2 We are not persuaded by Castro's
argument to the contrary.
While "[t]he qualification of a witness as an expert is [a matter] within the trial
court's discretion," Larson, 197 S.W.3d at 304 (citing Broders, 924 S.W.2d at 151), such
discretion is not without limits. See Walker, 111 S.W.3d at 62 (holding that a court
abuses its discretion if it acts without reference to guiding rules and principles). Castro
was required to submit reports authored by experts who are "practicing health care in a
field of practice that involves the same type of care or treatment as that delivered by the
defendant health care provider," have "knowledge of accepted standards of care . . . for
the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim,"
and are "qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of health care." See TEX. CIV. PRAC. & REM. CODE
2
We note that neither du Bois nor Dr. Starer's reports foreclose the possibility that they are
qualified in this case and may need only to connect the experience they have gained in their thirty-plus year
careers to the conditions in this case. See infra sections V, VI (remanding for entry of an order granting
Castro a thirty-day extension to amend his reports). During his thirty-day extension, see id., Castro is also
entitled to serve the reports of additional experts. See In re Buster, 275 S.W.3d 475, 477 (Tex. 2008).
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ANN. § 74.402(b). Focusing on the specific issue before the trial court as alleged in
Castro's petition, see Broders, 924 S.W.2d at 153, we cannot conclude that the
information provided in du Bois and Dr. Starer's reports show them to be practicing in the
relevant field of practice or show them to have any other relevant experience giving them
knowledge of the standard of care for the specific conditions in this case. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.402(b); Blan, 7 S.W.3d at 746. As such, the trial court did
not follow guiding rules and principles in denying Spohn's objections to the expert's
qualifications and motion to dismiss on this basis. Spohn's first issue is sustained.
IV. Sufficiency of Report
By its second issue, Spohn argues that Castro's reports were contradictory and
conclusory and are therefore "no report" under the statute. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6); Scoresby, 346 S.W.3d at 551–52.
First, Spohn argues that because du Bois and Dr. Starer identified different
conduct as breaches of the standard of care, their reports, taken together, are inherently
inconsistent. See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012),
overruled on other grounds, Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013)
("Reliable expert opinion should . . . be free from internal inconsistencies."). Spohn
contends that du Bois identified only two breaches in her report: that the nurses caring
for Castro failed to make accurate records and failed to create an appropriate treatment
plan for the prevention of pressure ulcers. Spohn contends that Dr. Starer likewise
identified only two breaches of care in his report: the nurses' failure to correctly use
Castro's bed and failure to turn Castro more frequently. In our review of du Bois's report,
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we found that she also identified as breaches of the standard of care that the nurses
caring for Castro failed to reposition Castro as needed, failed to assess his skin after each
turn, and failed to properly assess and provide for Castro's nutritional needs. And again,
in our review of Dr. Starer's report, we found that he also identified as breaches of the
standard of care that the Spohn staff caring for Castro "failed to properly develop a care
plan for ulcer prevention" and "failed to maintain an accurate and complete clinical
record." In light of the full range of conduct identified by du Bois and Dr. Starer, we
disagree with Spohn that the breaches identified in the separate reports are contradictory;
for that matter, having examined the reports in their entirety, we note that du Bois and Dr.
Starer identified largely the same breaches.
But assuming for the sake of argument that the breaches in the reports are limited
to those identified by Spohn, we believe that Dr. Starer's report identified additional
instances of conduct that breached the standard of care. Read together in the manner in
which they are characterized by Spohn, the reports are not contradictory, but provide a
more complete picture of the instances of conduct giving rise to Castro's claim. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(i) ("Nothing in this section shall be construed to
mean that a single expert must address all liability and causation issues with respect to all
physicians or health care providers or with respect to both liability and causation issues
for a physician or health care provider."). Thus, we are not persuaded by Spohn's
argument in this regard, and the trial court did not abuse its discretion in denying Spohn's
motion to dismiss on this basis. Spohn's second issue is overruled in so far as it
depends on this argument.
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Spohn next argues that du Bois's report, in particular, did no more than "state that
nurses failed to keep accurate records or to implement appropriate plans of care."
Spohn argues that du Bois was required to "state what documentation was inaccurate,
what documentation was lacking, on what dates it was wrong or missing and who was
responsible for that charting." But du Bois's report includes the exact elements that
Spohn claims are required. Du Bois refers to specific medical record dates and page
numbers throughout her report and specifically identifies what she characterizes as the
deficiencies in those records. Where du Bois points out that certain details are missing
from the records, she does not specify page numbers, but as she is pointing to the
absence of something, we cannot fault her for failing to specify where that missing detail
is not located. In short, we are not persuaded by Spohn's generalized assertions in this
regard. Again, Spohn's second issue is overruled in so far as it depends on this
argument.
Finally, Spohn argues that the reports do not adequately establish causation
because they do not "explain how taking any particular action would have prevented the
development of a pressure ulcer given the complex medical issues involved in [Castro]'s
care." Spohn argues that "[w]ithout addressing [these] critical issues, it is impossible to
know if [Castro]'s pressure ulcer could have been prevented." On this account, we agree
with Spohn. Although du Bois and Dr. Starer's reports go into great detail about the
procedures necessary to prevent pressure ulcers in standard conditions, they do not
address the specific conditions present in Castro's care. As discussed in detail above,
Castro's claim involves his development of a pressure ulcer while he was being treated in
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Spohn's ICU over the course of several months for severe injuries he suffered in an
automobile accident. Neither du Bois nor Dr. Starer discusses Castro's injuries in the
context of these conditions. And the omission of this context renders any conclusion on
the cause of Castro's injuries incomplete. Because Castro's reports do not adequately
address the causation element, they did not provide a basis for the trial court to conclude
that Castro's claims have merit. See Palacios, 46 S.W.3d at 879. The reports therefore
do not amount to a good faith effort to comply with the statute and are deficient. See
Scoresby, 346 S.W.3d at 556 (requiring that the report adequately address all the
elements to qualify as a good-faith effort). The trial court abused its discretion in denying
Spohn's objections and motions to dismiss on this basis. See Walker, 111 S.W.3d at 62.
Spohn's second issue is sustained as to its causation argument.
V. Thirty-Day Extension
Although Castro's expert reports are deficient in that they do not establish the
authors' qualifications and do not adequately address causation, we do not believe the
reports are fatally deficient, or "no report" under the statute. Both meet the minimum
qualifications set out in Scoresby—both du Bois and Dr. Starer are individuals with
expertise who opine about Castro's injuries in great detail and implicate the conduct of
Spohn's staff. See 346 S.W.3d at 557. Because Castro met these minimum
qualifications, he is entitled to one thirty-day extension to cure the deficiencies in his
reports. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see also Scoresby, 346
S.W.3d at 557 (holding that all deficiencies, whether in an expert's opinion or
qualifications, are subject to being cured). This disposition is consistent with the goal of
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the statute, which is to deter frivolous claims but not dispose of claims regardless of their
merits. See Scoresby, 346 S.W.3d at 554.
VI. Conclusion
We reverse the order of the trial court denying Spohn's motion to dismiss and
remand for entry of an order granting Castro a thirty-day extension to amend his expert
reports. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 12th
day of December, 2013.
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