the University of Texas Medical Branch at Galveston v. Kai Hui Qi , 370 S.W.3d 406 ( 2012 )

Reversed and Remanded and Opinion filed April 24, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-11-00704-CV
___________________
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
Appellant
V.
KAI HUI QI, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 11-CV-0043
OPINION
This case involves a Medical Liability Act claim for damages arising from allegedly
negligent health care treatment. Appellant, The University of Texas Medical Branch at
Galveston (―UTMBG‖), brings an interlocutory appeal from the trial court’s order denying
appellant’s motion to dismiss based on the asserted inadequacy of appellee Kai Hui Qi’s
expert report. We conclude that appellee’s expert report is not adequate because
appellee’s expert failed to specify whether the standards of care apply to the doctor or the
nurse; alternatively, appellee’s expert failed to specify whether there are general standards
of care that apply to both doctors and nurses. We have also identified additional
deficiencies which are described below. Accordingly, we reverse and remand to the trial
court for further proceedings to include determination of whether to grant a 30-day
extension to cure the deficiencies.
BACKGROUND
Kai Hui Qi sued UTMBG, contending certain employees were negligent in
providing medical care, and their negligence resulted in the death of Qi’s unborn child.
Specifically, Qi alleges that Virginia Rauth, M.D., and Julie Griffice, R.N., were negligent
in providing medical care to Qi when they failed to diagnose preeclampsia and failed to
admit Qi to the hospital for treatment and observation. Because the suit concerns a health
care liability claim, Qi filed an expert report and curriculum vitae of Dr. Aaron Caughey,
M.D., Ph.D. See Tex. Civ. Prac. & Rem. Code § 74.351. UTMBG filed its objections to
Qi’s expert report along with a motion to dismiss with prejudice. Qi filed a response to
UTMBG’s objections and motion to dismiss. After a hearing, the court denied UTMBG’s
motion to dismiss. UTMBG timely filed notice regarding this interlocutory appeal.
ANALYSIS
On appeal, UTMBG argues that Qi’s expert report is inadequate because the author:
(1) failed to identify a standard of care violated by UTMBG directly, or, alternatively,
failed to identify standards of care violated by Dr. Rauth and Nurse Griffice that would
give rise to vicarious liability; (2) failed to address Qi’s cause of action alleging negligent
use of ―blood pressure cuffs/testing equipment and urine testing strips‖; (3) failed to
identify a standard of care violated by UTMBG regarding Qi’s claim that UTMBG did not
counsel Qi on the possibility of preeclampsia and the symptoms to watch for; (4) failed to
identify a standard of care violated by UTMBG, Rauth, or Griffice, with respect to the
failure to diagnose preeclampsia and the failure to admit Qi for elevated blood pressure;
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and (5) failed to address Qi’s ―catchall‖ claims of negligence in deviating from the
standard of care for the treatment of high blood pressure and preeclampsia, and failing to
refer Qi to a specialist or consult with a specialist concerning Qi’s condition.
Section 74.351 of the Texas Civil Practice and Remedies Code requires a healthcare
liability claimant to serve each party with one or more expert reports along with the
curriculum vitae of each expert making the report. Tex. Civ. Prac. & Rem. Code §
74.351(a). The expert report must provide a ―fair summary of the expert’s opinions . . .
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).
Under section 74.351(l), a trial court shall grant a motion challenging the adequacy of an
expert report only if the report does not represent an objective, good-faith effort to comply
with the definition of an expert report provided in section 74.351(r)(6). Id. § 74.351(l),
(r)(6). If an expert report has not been served within the period specified by section
74.351(a) because elements of the report are found deficient, the trial court may grant one
30-day extension to the claimant in order to cure the deficiency. Id. § 74.351(c).
We review the trial court’s determination of the adequacy of an expert report for an
abuse of discretion. Walgreen Co. v. Hieger, 243 S.W.3d 183, 185 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied). In making its determination on whether the report
represents a good-faith effort to comply with the statute, the trial court is limited to the
information found within the four corners of the report. Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). To constitute a good-faith effort,
the report must provide enough information to: (1) inform the defendant of the specific
conduct the plaintiff has called into question and (2) provide a basis for the trial court to
conclude that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.
2011) (citing Palacios, 46 S.W.3d at 879). No particular words or formality are required,
but bare conclusions will not suffice. Id. A plaintiff need not marshal all the plaintiff’s
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proof or present evidence in the report as if it were actually litigating the merits. Palacios,
46 S.W.3d at 878–79. However, the report must include the expert’s opinions on the three
statutory elements—standard of care, breach, and causation. Scoresby, 346 S.W.3d at
555–56; Walgreen, 243 S.W.3d at 185–86. A report that merely states the expert’s
conclusions about those three elements does not constitute a good-faith effort. Palacios,
46 S.W.3d at 879.
Identifying the standard of care is critical. Whether the standard was violated
cannot be determined absent specific information about what the defendant should have
done differently. Id. at 880. Though the ―fair summary‖ of the expert’s opinions
required by the expert report is something less than a full statement of the applicable
standard of care and how that standard was breached, the report must still set out what care
was expected, but not given. Id.; see also Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
UTMBG does not challenge Dr. Caughey’s qualifications. Instead, in five issues
UTMBG contends Dr. Caughey failed to address certain of Qi’s claims and failed to
describe a standard of care that was violated for certain claims. The relevant portion of
Dr. Caughey’s six-page report is reproduced here:
Case Summary
Kai Hui Qi was a 33 year old . . . woman at least 26 weeks gestation
who presented with severe preeclampsia, vaginal bleeding, and an
intrauterine fetal demise on January 19, 2009 to the [UTMBG] labor and
delivery unit. . . .
Prior to January 12th, 2009, Ms. Qi had several prenatal visits.
Notably, her blood pressure ranged from 94/60 to 118/70 and she was always
protein negative on the urine dipstick test. On January 12th, 2009, Ms. Qi
presented with a blood pressure of 146/83, an interval 8 pound weight gain,
and a urine dipstick test which returned trace. The note that day signed by
Dr. Virginia Rauth and Julie Griffice, RN makes no comment about the
elevated blood pressure, no comment about having asked Ms. Qi about the
symptoms of preeclampsia, or having rechecked the blood pressure.
4
On January 18, 2009, Ms. Qi or her husband called into the labor and
delivery triage at 11:19 AM to complain of painless bright red vaginal
bleeding. In the note signed by Nancy Jahn, RN, it is noted that the patient
had a blood pressure of 140/90 the day prior and that she was currently
feeling fetal movement. The patient was advised by Nurse Jahn to drive
into labor and delivery. Of note, per patient report, she had checked the
blood pressure the day before on a machine in a store not in a health care
setting.
On January 19, 2009, Ms. Qi presented in the afternoon with the
complaint of vaginal bleeding, headache, and an elevated blood pressure of
149/90. In triage, she had a blood pressure of 148/101 and was noted to
have an intrauterine fetal demise and oligo/anhydramnios. A plan was
made . . . to admit the patient for induction of labor. Laboratory tests on
admission included an hematocrit of 22.4 . . . [and] urine dipstick of trace . . .
. Her induction progressed reasonably and she delivered a stillborn infant
on January 20, 2009.
....
Standard of Care
In this case, I believe there are three potential care interactions to
discuss: 1) the visit on January 12, 2009; 2) the triage call on January 18,
2009; and 3) the care of Ms. Qi during her admission beginning on January
19, 2009.
1) With regards to her clinic visit on January 12, 2009, I believe the
standard of care was violated by the clinicians who saw her that day.
Firstly, it is unclear how well the clinicians communicated the issue of an
elevated blood pressure to Ms. Qi or whether interpretive services were
utilized. In a woman who has previously been entirely normotensive and
aproteinuric, a blood pressure with a systolic blood pressure of 140 or greater
or a diastolic blood pressure of 90 or greater deserves further work-up. A
standard work-up in that setting would have been serial blood pressures, a
24-hour urine collection, and laboratory tests, and if any of these were
persistently positive, a fetal ultrasound to screen for intrauterine growth
restriction. It is difficult to determine exactly what any of these tests would
have returned because they weren’t sent that day, but given that Ms. Qi
continued to have elevated blood pressures when she checked them herself
and when she presented a week later, it does seem more likely than not that
her serial blood pressures would have been elevated.
5
Further, when counseling a woman who might be developing
preeclampsia, three symptoms, headache, abdominal pain, and visual
changes are always discussed with the patient and they are told to return to
the hospital with any of those symptoms. Given that Ms. Qi developed such
symptoms on January 18, 2009, I believe it is more likely than not that she
would have known to return on that date when those symptoms occurred.
Given the significant language barrier that would have been recognized by
Dr. Rauth and Nurse Girffice [sic], it would have been imperative to ensure
that these risks/symptoms were appropriately communicated and understood
by Ms. Qi. However, given that the majority of her labs were normal on
January 19, 2009, I believe that these same labs would have been normal on
January 12, 2009. The two exceptions are her hematocrit and urine protein.
The hematocrit was quite low when she presented on January 19, 2009. I
think the severity of this fall in hematocrit was due, at least in part, to her
placental abruption, so I believe that the hematocrit would have been higher
on January 12, 2009. Finally, given that the urine was trace positive, it is
more likely than not that a 24 hour urine collection would have been 300
mgs. or greater.
Given that it is more likely than not she would have been diagnosed
with preeclampsia and almost certainly with gestational hypertension, a fetal
ultrasound would have been ordered. I believe that such an ultrasound
would have likely demonstrated the oligohydramnios and more likely than
not would have demonstrated intrauterine growth restriction. Given these
findings, I believe this would have prompted a hospital admission for Ms. Qi
and a course of betamethasone. Given the fact that she eventually
experienced a stillbirth due to placental abruption, it is likely that at some
point during this hospitalization, the fetal heart tracing would have become
nonreassuring prompting delivery. If such a delivery occurred it would
have been of a 25-26 week gestational age fetus whose mortality rate would
have been less than 50%, meaning that the fetus would have survived more
likely than not.
2) When Ms. Qi or her husband called in to UTMB triage on January
18, 2009 with vaginal bleeding, a recent[ly] elevated blood pressure, and
potentially complaining of a headache, the triage nurse should have told her
to come to labor and delivery. In the note signed the same day by Nurse
Jahn, it clearly states that she communicated that Ms. Qi should come to
labor and delivery immediately. I believe that due to the . . . significant
language barrier, unfortunately, there was a failure to understand this advice
by . . . Mr. and Mrs. Qi that led to a delay [of] 24 hours of her presentation to
labor and delivery.
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3) When Ms. Qi presented to labor and delivery on January 19, 2009,
it appears that she was evaluated promptly, a clear differential diagnosis was
made, and a plan well within the standard of care was created. The care
provided by Dr. Harirah and the team of residents and nurses appears
exemplary.
Causality
In this case, there are competing pathways in causality – the
pathophysiology that led to the placental abruption and stillbirth and the
disruption of standard of care that increased the probability of this occurring.
In terms of the natural history: 1) Ms. Qi developed preeclampsia; 2) the
preeclampsia likely caused the placental abruption; and 3) the placental
abruption caused the intrauterine fetal demise. However, there was at least
one opportunity to disrupt that causal pathway.
If Ms. Qi had been diagnosed appropriately with gestational
hypertension and preeclampsia on January 12, 2009, then as delineated
above, the intrauterine fetal demise could have been prevented by earlier
delivery and, if delivered, the infant would have survived, more likely than
not. Further, if Ms. Qi had been diagnosed, she would have been treated
with bedrest and with antihypertensive agents if her blood pressures were
severely elevated. There is evidence to suggest that bedrest in the setting of
preeclampsia is associated with a prolongation of the pregnancy. The same
is true with controlling blood pressures in the setting of preeclampsia.
Conclusion
Thus, the clinicians who saw Ms. Qi on January 12, 2009 violated the
standard of care by not further evaluating her for gestational hypertension /
preeclampsia [or] communicating the importance of preeclampsia signs and
symptoms to a woman with elevated blood pressure. Because of this, Ms.
Qi lost an opportunity to prevent the subsequent intrauterine fetal demise.
I. Alleged failure to address liability
In its first issue, UTMBG argues that Dr. Caughey identifies UTMBG by name only
twice, does not state a hospital standard of care that was applicable to UTMBG, and does
not state facts sufficient to demonstrate that UTMBG would be vicariously liable for
violations of the standards of care by Dr. Rauth or Nurse Griffice. UTMBG further
contends that, even presuming that UTMBG’s liability is based upon vicarious liability for
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the conduct of Dr. Rauth or Nurse Griffice, the report still fails to identify a physician’s
standard of care violated by Dr. Rauth or a nurse’s standard of care violated by Nurse
Griffice.
A. Vicarious liability alleged against UTMBG
Dr. Caughey’s expert report was not required to name UTMBG specifically or
identify a hospital standard of care breached by UTMBG, so long as UTMBG’s liability is
based entirely upon the actions of its resident physicians and nurses.1 See Univ. of Tex.
Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.) (holding
that expert report did not need to name UT Southwestern because the claims against UT
Southwestern were based entirely upon the actions of its physicians, and there was no
allegation that UT Southwestern was directly negligent); Gardner v. U.S. Imaging, Inc.,
274 S.W.3d 669, 671–72 (Tex. 2008) (―When a party’s alleged health care liability is
purely vicarious, a report that adequately implicates the actions of that party’s agents or
employees is sufficient.‖). Because Qi is not alleging that UTMBG is directly liable, Dr.
Caughey’s expert report was not required to mention UTMBG by name. See Dale, 188
S.W.3d at 879.
B. Standard of care for each defendant
UTMBG argues that Dr. Caughey was required to either affirmatively state that the
same standard of care applied to both Dr. Rauth and Nurse Griffice, or was required to
describe the respective standards of care for a nurse and a doctor in the same situation.2
1
Plaintiff’s Original Petition states that both individual defendants were employees of UTMBG.
2
See Hayes v. Carroll, 314 S.W.3d 494, 506 (Tex. App.—Austin 2010, no pet.) (―Because the
report affirmatively states that a uniform standard of care applies to each physician and nurse, and identifies
what the standard of care is, [the] report is sufficient to provide a fair summary to each physician and nurse
of his opinion regarding the standard of care applicable to each.‖); Polone v. Shearer, 287 S.W.3d 229, 235
(Tex. App.—Fort Worth 2009, no pet.) (―Because the report does not delineate between the standard of care
applicable to a physician’s assistant and the standard of care applicable to a physician, the report sets forth
but one standard of care . . . [and] [b]ecause the report does not articulate that the standards of care are the
same, the report required the trial court to impermissibly infer that [the physician’s assistant and doctor]
shared identical standards of care . . . which may or may not be correct . . . .‖); Rittger v. Danos, 332 S.W.3d
8
Dr. Caughey’s expert report stated that ―[Caughey] believe[d] the standard of care was
violated by the clinicians who saw [Qi] that day.‖ (Emphasis added). We hold Dr.
Caughey did not sufficiently describe the standard of care applicable to, and breached by,
each defendant.3 Nor did Dr. Caughey explicitly state that the same standard of care
applies to both Dr. Rauth and Nurse Griffice. Accordingly, we sustain UTMBG’s first
issue.
II. Alleged failure to identify standard of care as to specific criticisms
In its third and fourth issues, UTMBG argues that Dr. Caughey’s expert report
failed to identify a standard of care that was violated with regard to specific theories of
liability, including allegedly failing to communicate with and diagnose Qi.
Specifically, in its third issue, UTMBG argues that Dr. Caughey’s expert report
failed to identify a standard of care that was violated by Dr. Rauth and Nurse Griffice in
failing to communicate to Qi the ―possibility of developing preeclampsia and the
symptoms to watch for.‖ Dr. Caughey’s expert report states that:
[I]t is unclear how well the clinicians communicated the issue of an elevated
blood pressure to Ms. Qi or whether interpretive services were utilized. . . .
[W]hen counseling a woman who might be developing preeclampsia, three
symptoms[—]headache, abdominal pain, and visual changes[—]are always
discussed with the patient and they are told to return to the hospital with any
of those symptoms. . . . Given the significant language barrier that would
have been recognized by Dr. Rauth and Nurse Girffice [sic], it would have
been imperative to ensure that these risks/symptoms were appropriately
communicated and understood by Ms. Qi.
Dr. Caughey’s report further reveals that ―[t]he note . . . signed by Dr. Virginia
Rauth and Julie Griffice, RN makes . . . no comment about having asked Ms. Qi about the
550, 556 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (―Appellees are not required to specifically state
the same standard of care for each individual physician practicing on the same patient when each physician
owes the same duties to the patient.‖).
3
See Polone, 287 S.W.3d at 234 (―Just as an expert report must provide an explanation of how
each defendant specifically breached the standard of care, the expert report must set forth the applicable
standard of care for each defendant.‖).
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symptoms of preeclampsia . . . .‖ The report notes that the standard of care was to ensure
that the risks and symptoms of preeclampsia were communicated to Qi, especially where
there was a significant language barrier. The report states that the medical records fail to
note such counseling.
In his report, Dr. Caughey describes a standard of care for communication of the
risks and symptoms to the patient.4 However, Dr. Caughey failed to specify whether the
standard of care applied to Dr. Rauth, Nurse Griffice, or both. Accordingly, we sustain
UTMBG’s third issue.
In its fourth issue, UTMBG argues that Dr. Caughey failed to identify a standard of
care that was violated with regard to the theories of liability that Dr. Rauth and Nurse
Griffice were negligent in failing to diagnose preeclampsia and failing to admit Qi to the
hospital for elevated blood pressure. We again conclude that Dr. Caughey did not
sufficiently identify whether the standard of care applies to Dr. Rauth or Nurse Griffice, or
whether it was a general standard that applied to both.
In addition, UTMBG argues that the relevant statements and opinions in Dr.
Caughey’s report were ―all speculation and unsubstantiated conclusions.‖ In his report, Dr.
Caughey notes that when Qi visited the hospital on January 12, 2009, her blood pressure
was 146/83, she had an 8 pound weight gain since her previous visit, and a urine dipstick
test ―returned trace.‖ Over the course of previous prenatal visits, Qi’s blood pressure
ranged from 94/60 to 118/70. As noted previously, Dr. Caughey stated that either a
systolic blood pressure of 140 or greater or a diastolic blood pressure of 90 or greater
―deserves further work-up.‖ Dr. Caughey described what a further work-up would entail,
and opined: ―given that Ms. Qi continued to have elevated blood pressures when she
checked them herself and when she presented a week later, it does seem more likely than
4
Though not clearly challenged by UTMBG, the causation element of this claim is not specifically
addressed under the ―Causality‖ section of Dr. Caughey’s report. It is not clear that Qi developed any of
the symptoms—a headache, abdominal pain, or visual changes—and failed to return to the hospital once
those symptoms manifested.
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not that her serial blood pressures would have been elevated.‖ Dr. Caughey further notes
that ―[g]iven that it is more likely than not [Qi] would have been diagnosed with
preeclampsia and almost certainly with gestational hypertension, a fetal ultrasound would
have been ordered.‖ Dr. Caughey also opines that the ultrasound would have
demonstrated intrauterine growth restriction, which would have ―prompted a hospital
admission for Ms. Qi.‖ Dr. Caughey concludes this portion of the report by stating that if
Qi had been diagnosed with preeclampsia and hospitalized, it is likely that delivery would
have been induced and the ―fetus would have survived more likely than not.‖ We
conclude that the relevant statements and opinions in Dr. Caughey’s report are not all
speculation and unsubstantiated conclusions.
Accordingly, we sustain UTMBG’s fourth issue only as to Dr. Caughey’s failure to
describe the standard of care respectively for doctors and nurses and overrule the
remainder of this issue.
III. Alleged failure to address specific acts of negligence raised in pleadings
UTMBG’s second and fifth issues concern the alleged failure of Dr. Caughey’s
expert report to address certain claims raised in Qi’s pleadings.
In its second issue, UTMBG argues that Dr. Caughey’s expert report wholly fails to
identify the standard of care, breach, and causality related to Qi’s claim that Dr. Rauth and
Nurse Griffice negligently used ―blood pressure cuffs/testing equipment and urine testing
strips.‖ In its fifth issue, UTMBG argues that Dr. Caughey’s expert report wholly fails to
address the claims raised in Qi’s pleadings that Dr. Rauth and Nurse Griffice were
negligent and proximately caused Qi’s injuries by: (1) deviating from the standard of care
for the treatment of high blood pressure and preeclampsia, and (2) failing to refer Qi to a
specialist or a physician qualified to confirm diagnosis and treat Qi, or failing to consult
with such a specialist regarding Qi’s condition.
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We agree with UTMBG, and conclude that Dr. Caughey failed to address the
applicable standards of care, breach, and causality related to these claims. However, we
note that all of the claims asserted by Qi fall within the same cause of action. See Certified
EMS, Inc. v. Potts, 355 S.W.3d 683, 691–92 (Tex. App.—Houston [1st Dist.] 2011, pet.
granted) (noting that the expert report is required to address each ―cause of action,‖ which
refers not to a specific claim, but rather a ―group of operative facts giving rise to one or
more bases for suing.‖). An expert is not required to address each and every act or
omission mentioned in the pleadings, so long as at least one liability theory within each
cause of action is sufficiently addressed. Lopez v. Brown, 356 S.W.3d 599, 604–05 (Tex.
App.—Houston [14th Dist.] 2011, no pet.); Potts, 355 S.W.3d at 691–94, 700. Therefore,
Dr. Caughey’s failure to address all the acts or omissions alleged in the petition is not by
itself a failure to comply with section 74.351 that would justify a dismissal of Qi’s health
care liability claim. See Lopez, 356 S.W.3d at 604–05. Accordingly, we overrule
UTMBG’s second and fifth issues.
CONCLUSION
Because Dr. Caughey did not sufficiently describe or specify whether the standards
of care breached by the ―clinicians‖ applied to Dr. Rauth, Nurse Griffice, or both, and
because we may not infer an answer, we hold Dr. Caughey’s report is inadequate. We
remand to the trial court for further proceedings, including determination of whether to
grant Qi a thirty-day extension to cure the deficiencies in the expert report. See Tex. Civ.
Prac. & Rem. Code § 74.351(c).
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
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