Janelle Thompson, CRNA v. Genesis Fong ( 2021 )

ACCEPTED
08-20-00059-CV
EIGHTH COURT OF APPEALS
EL PASO, TEXAS
08-20-00059-CV 10/29/2021 10:39 AM
ELIZABETH G. FLORES
CLERK
NO. 08-20-00059-CV
IN THE EIGHTH COURT OF APPEALS FILED IN
8th COURT OF APPEALS
EL PASO, TEXAS EL PASO, TEXAS
_______________________________________________
10/29/2021 10:39:17 AM
ELIZABETH G. FLORES
JANELLE THOMPSON, CRNA Clerk
APPELLANT
v.
GENESIS FONG
APPELLEE
_______________________________________________
On Appeal from the 41st Judicial District Court
El Paso County, Texas
Cause No. 2019DCV1550
APPELLANT JANELLE THOMPSON’S MOTION FOR
REHEARING
__________________________________________________________________
Sean Higgins
State Bar No. 24001220
LEWIS BRISBOIS BISGAARD
& SMITH
24 Greenway Plaza, Ste. 1400
Houston, Texas 77046
(832) 460-4630 (Telephone)
(713) 759-6830 (Facsimile)
ATTORNEY FOR APPELLANT
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………..iii
ISSUE PRESENTED FOR REHEARING................................................. 1
STATEMENT OF FACTS .......................................................................... 2
ARGUMENT ............................................................................................... 5
REQUEST FOR RELIEF ........................................................................... 8
CERTIFICATE OF COMPLIANCE .......................................................... 9
CERTIFICATE OF SERVICE.................................................................... 9
APPENDIX
Panel Opinion………….…………………………………………..APP. A
4874-5104-3584.1 ii
TABLE OF AUTHORITIES
State Cases
Am. Transitional Care Ctrs. Of Tex., Inc. v, Palacios,
46 S.W.3d 873 (Tex. 2001) ..................................................... 6, 9, 10, 11
First United Pentecostal Church of Beaumont v. Parker,
514 S.W.3d 214 (Tex. 2017) ................................................................... 8
Greene v. Farmers Ins. Exch.,
446 S.W.3d 761 (Tex. 2014) ................................................................... 8
Li v. Pemberton Park Community Assoc'n,
65 Tex. Sup. J. 9, 2021 Tex. LEXIS 931, 2021 WL 4483503(Tex. October 1, 2021) ........................................................................ 8, 9
Nath v. Tex. Children's Hosp.,
446 S.W.3d 355 (Tex. 2014) ................................................................... 8
Scoresby v. Santillan,
346 S.W.3d 546 (2011) ......................................................................... 11
St John Missionary Baptist Church v. Flakes,
595 S.W.3d 211 (Tex. 2020) ................................................................... 9
Statutes
Tex. Civ. Prac. & Rem. Code § 74.351(b) ................................................... 7
Texas Civil Practice & Remedies Code Chapter 74 .......................... 4, 6, 9
Court Rules
TEX. R. APP. P. 9.4, I ................................................................................. 12
4874-5104-3584.1 iii
ISSUE PRESENTED FOR REHEARING
Janelle Thompson, CRNA, moved to dismiss Genesis Fong's claims
for failure to make a good faith effort to satisfy the requirements of
Chapter 74 of the Texas Civil Practice & Remedies Code because the
letters she submitted as Chapter 74 expert reports failed to (i) set forth the
standard of care, (ii) state how Nurse Thompson breached the standard of
care, or (iii) explain how Nurse Thompson's alleged breach of the standard
of care caused Fong's injuries—the letters did not even name Nurse
Thompson. The trial court refused to dismiss Fong's claim. Nurse
Thompson appealed and urged this Court to correct the error and render
judgment in her favor. The panel found Nurse Thompson somehow waived
this issue in the trial court.
The panel's finding of waiver is error. Nurse Thompson did all that
was required to preserve error in the trial court. At the very least, Nurse
Thompson argued the substance of the issue in the trial court, made her
objection known to the trial court and requested relief from the trial court
in the form of an order dismissing Fong's claims. The panel should correct
its error by deciding the merits of Nurse Thompson's appeal.
1
STATEMENT OF FACTS
Fong sued Janelle Thompson, CRNA, and Jose Robledo, CRNA, for
injuries allegedly resulting from placement or removal of an epidural
catheter while she was giving birth. CR 8-13. Fong alleges Nurse
Thompson and Nurse Robledo were unable to remove the catheter and
that she ultimately required surgery to have the catheter removed. Id. at
9-10.
Fong served Thompson with letters from two physicians, Dr. Cecil
Arredondo, M.D. and Sabri Malek, M.D. CR 35, 43-46 & CR 65, 72-73.
Each letter is two pages long. Id. The letters are largely identical in
substance. Id. Neither letter so much as names Nurse Thompson. CR 72-
73, 92-93. Neither letter states the standard of care applicable to Nurse
Thompson. Id. Neither letter states how Nurse Thompson departed from
the standard of care. Id. And neither letter links any departure from the
standard of care to Fong's alleged injury. Id. Indeed, both letters state in
identical fashion that "Without the benefit of additional information from
the hospital chart . . . it is difficult to ascertain whether the catheter was
placed correctly or removed correctly." Id.
4874-5104-3584.1 2
Nurse Thompson timely objected to both letters and moved to
dismiss Fong's claim under Chapter 74. CR 64-70, 75-83. In each motion,
Nurse Thompson pointed out that "an expert report that omits any of
[section 74.351's] requirements does not represent a good faith effort" to
comply with the statute. CR 66 (citing Am. Transitional Care Ctrs. Of Tex.,
Inc. v, Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). Nurse Thompson
asserted that "Plaintiffs failed to file an expert report in compliance with
Chapter 74 of the Civil Practice and Remedies Code" because each letter
"fails to explain the applicable standard of care for" Nurse Thompson, fails
to state how Nurse Thompson "breached said standard of care," and "fails
to adequately explain how [Nurse Thompson's] alleged breach of the
applicable standard of care caused Plaintiff's injuries." CR 40 & 70.
At the hearing on her motions, Nurse Thompson's attorney reiterated
that the reports do not represent a good faith effort to comply with
Chapter 74 and urged the Court to dismiss Fong's claim. 1 RR 15/17-25 &
16/5-7. Nurse Thompson's attorney also pointed out that the reports
contain no reference to the two defendants. 1 RR 17/10-12.
4874-5104-3584.1 3
The trial court found the letters were deficient but did not dismiss
the case as requested by Nurse Thompson. CR 106-07. Instead, the trial
court granted Fong 30 days in which amend or file new reports. Id.Nurse Thompson appealed to this Court. In her sole issue, Nurse
Thompson asserts that "Because the trial court correctly found Dr.
Arredondo and Dr. Malek's expert reports substantially deficient, the
[trial] court abused its discretion by failing to dismiss the lawsuit and
award Nurse Thompson reasonable attorney's fees and court costs as
required by Tex. Civ. Prac. & Rem. Code §74.351(b)."
This case was submitted without oral argument to a panel of Chief
Justice Rodriguez, Justice Palafox, and Justice Alley. On September 29,
2021, the panel affirmed the trial court's judgment in an opinion by Chief
Justice Rodriguez. App. A.
The panel acknowledged that Nurse Thompson objected that the
reports failed "to identify Appellant, state the standard of care, Appellant's
breach of that standard, and the causal relationship between the breach
and Appellee's harm." Op. at 5. Despite this, and despite Nurse
Thompson's clear and repeated request to dismiss Fong's claims because
each letter "fails to state the applicable standard of care" or how she
4874-5104-3584.1 4
"breached said standard of care," the panel found Nurse Thompson waived
her issue in the trial court because she "did not raise an objection that the
expert reports failed to opine on whether Appellees' case has merit or
implicated Appellant's conduct." Id. at 4-5.
ARGUMENT
"Appellate courts should 'hesitate to turn away claims based on
waiver or failure to preserve the issue.'" Li v. Pemberton Park Community
Assoc'n, 65 Tex. Sup. J. 9, 2021 Tex. LEXIS 931 *6, 2021 WL 4483503(Tex. October 1, 2021) (quoting First United Pentecostal Church of
Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex. 2017)). "This is especially
so 'where the party has clearly and timely registered its objection' to the
ruling challenged on appeal." Id. (quoting Nath v. Tex. Children's Hosp.,
446 S.W.3d 355, 365 (Tex. 2014)). "And while appellate courts 'do not
consider issues that were not raised . . . below,' parties may 'construct new
arguments in support of issues' that were raised." Id. (quoting Greene v.
Farmers Ins. Exch., 446 S.W.3d 761, 764 n. 4 (Tex. 2014)) (alterations by
the Court). Thus, "a party sufficiently preserves an issue for review by
arguing the issue's substance, even if the party does not call that issue by
4874-5104-3584.1 5
name." Id. (quoting St John Missionary Baptist Church v. Flakes, 595
S.W.3d 211, 214 (Tex. 2020)).
At a minimum, Nurse Thompson argued the substance of her issue
that dismissal is required because the letters do not represent a good faith
effort to comply with the Chapter 74 expert report requirement. Nurse
Thompson asserted that Fong "failed to file an expert report in compliance
with Chapter 74" because each letter failed to explain the standard of care
applicable to Nurse Thompson, failed to state how Nurse Thompson
breached that standard, and failed to adequately explain how the alleged
breach caused Fong's injuries. CR 40 & 70. Nurse Thompson pointed out
that the report did not mention her or any other CRNA Defendant. CR 69.
Nurse Thompson cited the Texas Supreme Court's opinion in Palacios. CR
66. Nurse Thompson requested the trial court to dismiss Fong's lawsuit
because of these shortcomings. CR 40 & 70. At the hearing, Nurse
Thompson's attorney reiterated her position that the letters were not a
good faith effort to comply with Chapter 74 and urged the Court to dismiss
Fong's claim. 1 RR 15/17-25 & 16/5-7.
The panel acknowledged as much, writing that Nurse Thompson
moved to dismiss Fong's claim because the letters did not "identify
4874-5104-3584.1 6
Appellant, state the standard of care, Appellant's breach of that standard,
and the causal relationship between the breach and Appellee's harm." Op.
at 5.
Yet the panel found that Nurse Thompson waived her issue because
her motions did not contain the precise words used in her Brief—"that the
expert reports failed to opine whether the case has merit or implicated
Appellant's conduct." Op. 5-6. The panel is mistaken because these words
represent the substance of the issue raised by Nurse Thompson in the trial
court.
In Palacios, the Supreme Court used the same words to describe the
inquiry into whether an expert report sets forth "a fair summary of the
expert's opinions about the standard of care," breach of the standard of
care and causation: "In setting out the expert's opinions on these elements,
the report must provide enough information to fulfill two purposes if it is
to constitute a good faith effort. First, the report must inform the
defendant of the specific conduct the plaintiff has called into question.
Second, and equally important, the report must provide a basis for the
trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at
4874-5104-3584.1 7
878. Id.; see also, Scoresby v. Santillan, 346 S.W.3d 546, 556 (2011)
(quoting Palacios).
Nurse Thompson presented the substance of her issue to the trial
court. The panel's finding of waiver is error and the panel should correct
its error by setting aside its opinion, deciding this appeal on the merits,
and reversing and rendering judgment for Nurse Thompson.
REQUEST FOR RELIEF
Nurse Thompson requests the Court to grant her motion for
rehearing, set aside its opinion, and decide the merits of her appeal by
reversing and rendering judgment in her favor.
Respectfully submitted,
LEWIS BRISBOIS BISGAARD &
SMITH LLP
/s/ Sean Higgins
SEAN HIGGINS
SBOT: 24001220
sean.higgins@lewisbrisbois.com
24 Greenway Plaza, Suite1400
Houston, Texas 77046
(713) 659-6767 (telephone)
(713) 759-6830 (facsimile)
ATTORNEY FOR APPELLANT
4874-5104-3584.1 8
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, I certify that this motion contains
1,482 words. This is a computer-generated document created in Microsoft
Word, using 14-point typeface for all text, except for footnotes which are in
12-point typeface. In making this certificate of compliance, I am relying on
the word count provided by the software used to prepare the document.
/s/ Sean M. Higgins
Sean M. Higgins
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document
has been served on all counsel of record via electronic filing on this the 29th
day of October 2021.
Walter I. Boyaki
Boyaki Law Firm
4621 Pershing Drive
El Paso, Texas 79903
(915) 566-8688 (Telephone)
(915) 566-5906 (Facsimile)
Email: wboyaki@boyakilawfirm.com
ATTORNEY FOR APPELLEE
/s/ Sean Higgins
Sean Higgins
4874-5104-3584.1 9
APP. A
§
JANELLE THOMPSON, CRNA, No. 08-20-00059-CV
§
Appellant, Appeal from the
§
v. 41st District Court
§
GENESIS FONG, of El Paso County, Texas
§
Appellee. (TC#2019DCV1550)
OPINION
Janelle Thompson, Appellant, brings an interlocutory appeal of the trial court’s denial of
her motion to dismiss the health care liability claim of Genesis Fong, Appellee. Appellant’s sole
issue is her allegation that Appellee’s expert reports were so deficient as to not qualify as expert
reports, meaning that Appellee failed to serve Appellant with an expert report within 120 days,
therefore, the trial court erred by failing to dismiss Appellee’s claims. TEX.CIV.PRAC.& REM.CODE
ANN. § 74.351. We find Appellant’s argument on appeal does not comport with her objections
raised with the trial court. Accordingly, Appellant has waived her sole issue on appeal.
TEX.R.APP.P. 33.1. We affirm the trial court’s decision.
BACKGROUND
Appellee gave birth at the Hospitals of Providence - East Campus on October 20, 2017.
Appellee alleges that during her labor Appellant, a certified registered nurse anesthetist (CRNA)
and another CRNA, Jose Robledo, placed an epidural catheter to alleviate her pain. Postpartum,
Appellee claimed neither Appellant nor Robledo were able to remove the catheter. A CT scan
showed the distal end of the catheter lodged in her spine and surgery was required to remove the
catheter. Two partial laminectomies were performed to remove the portion of the catheter lodged
in Appellee’s spine. The surgery was unsuccessful and a portion of the catheter remained. Appellee
sued Appellant and Robledo alleging they negligently failed to properly place and remove the
epidural catheter.
The Texas Medical Liability Act requires an individual alleging a health care liability claim
to timely present an expert report to the healthcare provider against whom the claim is asserted.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). Appellee timely served an expert report together
with an attached curriculum vitae from Dr. Cecil-Arredondo, a board-certified orthopedic surgeon,
with experience performing laminectomies and epidural analgesia for pain management. Appellee
later served a second report and curriculum vitae from Dr. Sabri Malek, a board-certified
anesthesiologist, with substantial experience in labor epidural catheter placement. Both reports
were substantively the same. In their respective reports, both physicians stated that not properly
placing or removing the catheter was a breach of the standard of care, the improper placement or
removal of the catheter caused Appellee to need laminectomy surgery, and she is at risk for future
health complications as a result of the portion of catheter remaining in her spine. Both physicians
stated without additional information, neither would be able to determine whether the catheter was
placed or removed correctly.
In response, Appellant filed objections and motions to dismiss for each report claiming
they were deficient for failing to establish the standard of care, how Appellant breached the
standard of care, and how that breach led to Appellee’s injuries. Following a hearing in which
Appellant reurged her objections, the trial court issued an order granting Appellant’s objections to
2
Appellee’s experts’ reports. Specifically, the trial court found Dr. Arredondo’s report failed to: (1)
establish his qualifications to opine on the standard of care applicable to a CRNA placing and
removing an epidural catheter; (2) adequately identify the standard of care for each defendant; and
(3) differentiate between the two defendants regarding breach and causation. The trial court further
found Dr. Malek’s report failed to: (1) adequately identify the standard of care for each defendant;
and (2) differentiate between the two defendants regarding breach and causation. Accordingly, the
trial court granted Appellee thirty days to cure the deficiencies in her experts’ reports and file new
or amended reports. Appellant now brings an interlocutory appeal of the trial court’s order alleging
the expert reports provided by Appellee were so deficient as to not qualify as expert reports,
meaning Appellee failed to serve Appellant with an expert report and therefore the trial court erred
by failing to dismiss Appellee’s claims.
DISCUSSION
Appellant argues the trial court abused its discretion by failing to dismiss Appellee’s
lawsuit and award attorney’s fees and court costs, because the reports provided by Drs. Arredondo
and Malek were so substantially deficient as to not qualify as expert reports. Appellant asserts Drs.
Arredondo and Malek’s reports are substantially deficient in two ways. First, the reports do not
contain opinions that there is a meritorious claim against Appellant. Second, the reports do not
implicate Appellant’s conduct.
Standard of Review and Applicable Law
We review the trial court’s ruling on a motion to dismiss for an inadequate expert report
under an abuse of discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 875 (Tex. 2001); Gonzalez v. Padilla, 485 S.W.3d 236, 242 (Tex.App.—El Paso
3
2016, no pet.). We defer to the factual determinations of the trial court and review the trial court’s
legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009).
The Texas Medical Liability Act requires an individual alleging a health care liability claim
to present one or more expert reports to the healthcare provider against whom the claim is asserted
within 120 days of filing the original petition. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). A
valid expert report will provide a summary of the expert’s opinions regarding: (1) the applicable
standards of care; (2) the manner in which the care rendered by the health care provider failed to
meet the standards; and (3) the causal relationship between that failure and the injury, harm, or
damages claimed. Palacios, 46 S.W.3d at 877-78; TEX.CIV.PRAC.&REM.CODE ANN.
§ 74.351(r)(6). The Texas Supreme Court has determined, at a minimum, an expert report must
contain the opinion of an individual with expertise that the claim has merit, and if the defendant’s
conduct is implicated. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012)(citing Scoresby v.
Santillan, 346 S.W.3d 546, 557 (Tex. 2011)). If a report does not meet this standard, then the trial
court must dismiss the claim if the defendant has moved for dismissal. Loaisiga, 379 S.W.3d at
260; TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(b).
Analysis
As a preliminary matter, we must address whether Appellant has preserved her error for
review. Appellant contends the trial court erred when it failed to dismiss Appellee’s claim.
Appellant argues the reports filed by Appellee are so substantially deficient they are not expert
reports because the reports do not opine whether there is a meritorious claim against Appellant and
do not implicate Appellant’s conduct.
In the underlying proceedings, Appellant filed separate objections and motions to dismiss
in response to Drs. Arredondo and Malek’s reports. In each objection, Appellant argued the report
4
failed to identify Appellant by name, failed to establish the standard of care, how Appellant
breached the standard of care, and how that breach led to Appellee’s injury. Each objection
concluded with a motion to dismiss. During the dismissal hearing, Appellant’s counsel reiterated
the same objections, stating “I don’t feel like it’s being done in good faith because if I go through
both reports . . . . They don’t even address the standard of care at all. There’s not a mention of
what Ms. Thompson, certified nurse anesthetist, should have done.” At no point during the
underlying proceedings, either by motion or in the hearing did Appellant raise the issue of whether
the reports fail to constitute expert reports.
“To preserve a complaint for appellate review, a party must make a timely request,
objection, or motion with sufficient specificity to apprise the trial court of the complaint and obtain
an adverse ruling thereon.” In re N.T., 335 S.W.3d 660, 669 (Tex.App.—El Paso 2011, no pet.)
(citing TEX.R.APP.P. 33.1(a)). Further, a “complaint on appeal that does not comport with the
party’s objection at trial is not preserved for review.” Martinez Jardon v. Pfister, 593 S.W.3d 810,
831 (Tex.App.—El Paso 2019, no pet.).
Our review of the record reveals Appellant fails to raise the issue of whether the reports
provided by Drs. Arredondo and Malek were so substantially deficient as to not qualify as expert
reports. Appellant did contend the reports were inadequate but did not apprise the trial court the
proffered reports were legally equivalent to no report. Appellant’s only objections were that the
reports were deficient for failing to identify Appellant by name, state the standard of care,
Appellant’s breach of that standard, and the causal relationship between the breach and Appellee’s
harm. Appellant did not raise an objection that the expert reports failed to opine whether Appellee’s
case has merit or implicated Appellant’s conduct. Appellant’s argument that the trial court erred
5
in failing to dismiss the case because the report did not implicate Appellant or directly opine on
the merits is not preserved.
Given Appellant failed to raise the issue the expert reports did not constitute “expert
reports” in the trial court, her sole issue on appeal does not comport with the objections she made
in the trial court. As a result, the trial court was not aware of or afforded an opportunity to rule on
Appellant’s argument. Appellant has failed to preserve her issue for our review. TEX.R.APP.P.
33.1. Consequently, we hold Appellant has waived her sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
September 29, 2021
YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.
6
Automated Certificate of eService
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Deborah Husband on behalf of Sean Higgins
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Status as of 10/29/2021 2:37 PM MST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Josh KDavis Josh.Davis@lewisbrisbois.com 10/29/2021 10:39:17 AM SENT
Emily F.Thompson Emily.Thompson@lewisbrisbois.com 10/29/2021 10:39:17 AM SENT
Walter Louis Boyaki 2759500 wboyaki@boyakilawfirm.com 10/29/2021 10:39:17 AM SENT
Paul M. Bracken 2809900 pbracken@rbch.net 10/29/2021 10:39:17 AM SENT
Sean Higgins sean.higgins@lewisbrisbois.com 10/29/2021 10:39:17 AM SENT
Deborah Husband Deborah.Husband@lewisbrisbois.com 10/29/2021 10:39:17 AM SENT
Lettie Chavez lleal@boyakilawfirm.com 10/29/2021 10:39:17 AM SENT
Diane PriceDawley Diane.Dawley@lewisbrisbois.com 10/29/2021 10:39:17 AM SENT
Associated Case Party: Genesis Fong
Name BarNumber Email TimestampSubmitted Status
John Mundie mun6012@aol.com 10/29/2021 10:39:17 AM SENT