Walgreen Co., Walgreen Boots Alliance, Inc. and Walgreens Boots Alliance Holdings, LLC v. Beth Hauser Boyer and John Hauser, Individually and as Representative of the Estate of Alexander Hauser ( 2020 )

Opinion issued April 16, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00093-CV
———————————
WALGREEN CO., WALGREEN BOOTS ALLIANCE, INC. AND
WALGREEN BOOTS ALLIANCE HOLDINGS, LLC, Appellants
V.
BETH HAUSER BOYER AND JOHN HAUSER, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF ALEXANDER HAUSER,
DECEASED, Appellees
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2016-55915
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, Walgreen Co., Walgreen Boots
Alliance, Inc., and Walgreen Boots Alliance Holdings, LLC. [collectively,
“Walgreen”], challenge the trial court’s order denying their motion to dismiss the
health care liability claim2 brought against them by Beth Hauser Boyer and John
Hauser, Individually and as Representative of the Estate of Alexander Hauser
[collectively, “the Hausers”]. In three related issues, Walgreen contends that the
trial court erred in denying their motion to dismiss the Hausers’ claims because
they failed to serve Walgreen with an adequate expert report.3 We reverse and
remand.
BACKGROUND
Factual Background
In July 2015, the Hausers’ son, Alexander Hauser [hereinafter, “Alex”],
presented a prescription for clonazepam to a Walgreen store in Houston, TX.
Clonazepam is a sedative typically prescribed for anxiety. It is a Schedule IV
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9).
2
See id. § 74.001(a)(13) (“Health care liability claim” means a “cause of action
against a health care provider or physician for treatment, lack of treatment, or
other claimed departure from accepted standards of medical care, or health care, or
safety or professional or administrative services directly related to health care,
which proximately results in injury to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.”).
3
See id. § 74.351(a), (b).
2
Controlled Substance, and all physicians who prescribe such controlled substances
and all pharmacies that dispense them are required to maintain current registration
with the Drug Enforcement Agency. See 21 U.S.C.§ 822.
The clonazepam prescription, which Walgreen first filled in July 2015, was
written by a doctor in Oregon,4 who had passed away approximately one week
before Alex presented the prescription to Walgreen in Houston. Walgreen did not
verify that the prescribing doctor had a valid and current DEA registration before
filling the prescription.
On October 5, 2015, Alex refilled the prescription at Walgreen, obtaining 60
clonazepam pills. Later that same day, Alex overdosed on the clonazepam by
taking all the pills that Walgreen had dispensed earlier in the day. Alex’s father,
John Hauser, took him to Memorial Hermann Katy Hospital Emergency Room.
While awaiting treatment, Alex fled the emergency room and was killed when he
ran into traffic on the nearby freeway.
The Lawsuit
The Hausers initially sued Memorial Hermann for failing to adequately
supervise Alex, but, they dismissed their claims against Memorial Hermann and
added Walgreen, alleging that it had negligently filled a prescription written by an
out-of-state-physician without first verifying that the prescribing doctor had a valid
4
According to the record, Alex had been living with his mother in Oregon before
returning to Houston to live with his father in July 2015.
3
DEA registration. The Hausers also added claims against 13 healthcare provides,
all of whom were physicians or medical professionals at Memorial Hermann.
They soon dismissed all their claims against the Memorial Hermann employees,
leaving Walgreen as the sole defendant.
On March 16, 2018, the Hausers served Walgreen an expert report by Terry
Seaton, a pharmacist. Seaton’s report addressed liability and causation as follows:
Manner in Which Standard of Care was Breached:
It does not appear that the Walgreens pharmacist who filled and
dispensed a prescription for clonazepam met the standard of care by
contacting the prescriber (who was deceased) on July 29, 2015. If
the prescriber’s (Dr. Rushing’s) office had been contacted, it would
likely [have] been communicated that Dr. Rushing had passed away
approximately one week prior to dispensing the prescription. At
that time, the prescription would have no longer been valid.
Because the prescription was from an out-of-state prescriber and
was for a controlled substance, the burden to verify the prescription
is higher.
Factual Basis for Causal Connection Between Breach of
Standard of Care and Injury:
Based on my review of the facts I’ve been presented to date, I
believe it is more likely than not that the prescription for Klonopin
(clonazepam) from Dr. James Rushing in Oregon (original date
May 2015), unlawfully filled by Walgreens pharmacy, significantly
contributed to his death. If Alex Hauser would not have had access
to the medication filled at that time, he would not have been able to
consume a massive overdose. Clonazepam, a benzodiazepine that
that enhances a principle inhibitory neurotransmitter in the brain,
causes clinically significant central nervous system depression.
Acute toxicity from clonazepam overdosage may lead to
drowsiness, confusion, and ataxia (impaired balance). I believe that
clonazepam overdose contributed to Alex Hauser eloping from
Memorial Hermann hospital and his eventual death from being hit
4
by an automobile. I reserve my right to change my opinion, should
I be presented with any additional information.
On April 2, 2018, Walgreen filed its Motion Challenging Adequacy of
Plaintiffs’ Expert Report from Terry Seaton, seeking dismissal pursuant to section
74.351 of the Code of Civil Procedure. In the motion, Walgreen asserted that
Seaton, a pharmacist, was statutorily prohibited from providing an expert opinion
on causation. Walgreen also asserted that Seaton’s opinions on both liability and
causation were conclusory.
The Hausers responded that no causation expert was needed because
medical causation was not an issue in the case. They also argue that Seaton’s
opinions on causation and liability were not conclusory. The Hausers did not rely
on, or even mention, any expert opinion other than Seaton’s in their response.
On February 4, 2019, the trial court denied Walgreen’s Motion to Dismiss.
This interlocutory appeal followed.
EXPERT REPORT
In three issues, Walgreen argues that the trial court erred in denying its
motion to dismiss the Hausers’ claims against them because their expert report is
inadequate. Specifically, Walgreen asserts that (1) the Hausers’ expert, a
pharmacist, is statutorily disqualified from providing an expert opinion on medical
causation; (2) the expert’s causation opinions are conclusory, and (3) the expert’s
liability opinions are conclusory.
5
Standard of Review and Legal Principles
We review a trial court’s decision on a motion to dismiss a health care
liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We apply the
same standard to a trial court’s determination that an expert is qualified. See
Broders v. Heise, 924 S.W.2d 148, 151–52 (Tex. 1996); San Jacinto Methodist
Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex. App.—Houston [14th Dist.] 2008, no
pet.). When reviewing matters committed to a trial court’s discretion, we may not
substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion
merely because it decides a discretionary matter differently than an appellate court
would in a similar circumstance. Harris Cty. Hosp. Dist. v. Garrett, 232 S.W.3d
170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.). However, a trial court has
no discretion in determining what the law is or in applying the law to the facts. See
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference to
guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).
6
A health-care-liability claimant must timely provide each defendant health
care provider5 with an expert report. TEX. CIV. PRAC. & REM. CODE § 74.351. An
expert report means 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.” Id. § 74.351(r)(6). In setting out
the expert’s opinions, the report must: (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). A report that merely states the expert’s conclusions as to the
standard of care, breach, and causation does not fulfill these purposes. Palacios, 46
S.W.3d at 879. Rather, the expert must explain the basis of her statements and
must link her conclusions to the facts. Wright, 79 S.W.3d at 52.
If a defendant files a motion to dismiss challenging the adequacy of a
claimant’s expert report, a trial court must grant the motion if it appears, after a
hearing, that the report does not represent an objective good faith effort to comply
with the definition of an expert report or that it is not sufficiently specific to
5
A “health care provider” means “any person, partnership, professional association,
corporation, facility, or institution duly licensed, certified, registered, or chartered
by the State of Texas to provide health care, including: . . . a pharmacist.” TEX.
CIV. PRAC. & REM. CODE § 74.001(12)(A)(iv).
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provide a basis for the trial court to conclude that the claims have merit. TEX. CIV.
PRAC. & REM. CODE § 74.351(l). The trial court, in assessing the sufficiency of the
report, may not draw inferences, but instead must rely exclusively on the
information contained within the four corners of the expert report or its
accompanying curriculum vitae. See In re McAllen Med. Ctr., Inc., 275 S.W.3d
458, 463 n. 14 (Tex. 2008).
Analysis
In issue one, Walgreen contends that “[t]he four corners of the report and
C.V. establish that Mr. Seaton is not a physician and is thus statutorily disqualified
from providing expert causation opinions in this alleged medical malpractice
case[.]” We agree. The Expert Report Statute provides:
“Expert” means:
***
with respect to a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the
alleged departure from the applicable standard of care in any
health care liability claim, a physician who is otherwise qualified
to render opinion on such causal relationship under the Texas
Rules of Evidence[.]
TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(C) (emphasis added).
Similarly, Section 74.403(a) provides in pertinent part:
[I]n a suit involving a health care liability claim against a physician or
health care provider, a person may qualify as an expert witness on the
issue of the causal relationship between the alleged departure for
accepted standards of care and the injury, harm, or damages claimed
8
only if the person is a physician and is otherwise qualified to render
opinions on that causal relationship under the Texas Rules of
Evidence.
TEX. CIV. PRAC. & REM. CODE § 74.403(a) (emphasis added).
Texas courts have uniformly interpreted these statutes as requiring a medical
doctor to opine on causation in health care liability claims. See Badhiwala v.
Favors, 340 S.W.3d 560, 564 (Tex. App.—Dallas 2011, no pet.) (holding that non-
physicians reports cannot be considered in determining statutory element of
causation); Davisson v. Nicholson, 310 S.W.3d 543, 558 (Tex. App.—Fort Worth
2010, no pet.) (“[B]ecause [physician’s] report is sufficient as to causation, it is of
no import that [psychologist] is not qualified to render an opinion on causation.”);
Petty v. Churner, 310 S.W.3d 131, 135 (Tex. App.—Dallas 2010, no pet.)
(“Because [a pharmacist] is not a physician, his report cannot be considered in
determining whether the reports submitted by [the plaintiffs] adequately show a
causal connection between the alleged negligence and injury.”); Davis v. Webb,
246 S.W.3d 768, 773 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“But, as
discussed above, [an optometrist] is not a physician. Thus, he is barred by statute
from offering an expert opinion regarding medical causation[.]”); Walgreen Co. v.
Hieger, 243 S.W.3d 183, 186 n.2 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (“[B]ecause [a registered pharmacist and clinical professor] is not a
physician, she is not qualified to give an expert opinion regarding causation.”)
9
Kelly v. Rendon, 255 S.W.3d 665, 675 (Tex. App.—Houston [14th Dist.] 2007, no
pet.) (“We agree with appellants that, under the statute, a nurse is not qualified to
render an opinion on medical causation.”); Randalls Food and Drugs, LP v.
Kocurek, No. 14-05-01184-CV, 2006 WL 2771872, at *2-3 (Tex. App.—Houston
[14th Dist.] Sept. 28, 2006, no pet.) (holding that toxicologist was not physician,
thus “is not qualified to render an expert opinion regarding causation.”).
Nevertheless, the Hausers respond that their expert report is not inadequate
because (1) no expert report is necessary because the cause of death was a
speeding car, and (2) Seaton’s report is sufficient when considered in conjunction
with a physician’s report filed in response to an earlier Motion to Dismiss filed by
Memorial Hermann before Walgreen was added to the suit. We address each
argument respectively.
First, the Hausers argue that “no expert report on causation is necessary
because the cause of death was a speeding car.” They contend that the cause of
Alex’s death is not a question of medical causation because he was struck by a car
traveling at highway speed in the middle of an eight-lane freeway. Instead, they
contend the issue is “whether there was a causal link between Alex’s presence in
the middle of the freeway and the Clonazepam dispensed by Walgreen.” We agree
with the Hauser’s assessment of the issue presented, but we disagree with their
conclusion that it does not present an issue of medical causation.
10
Whether Alex overdosed on clonazepam, the effect that such an overdose
would have on his mental state, and whether his resulting mental state caused him
to place himself in the middle of the freeway are, in fact, issues of medical
causation. As such, it was necessary for a physician to opine about whether
Walgreen’s dispensing of clonazepam (without first checking to see if the
prescribing physician was properly registered with the DEA) caused Alex to
overdose, flee the hospital, and place himself in the middle of a busy freeway.
Because medical causation evidence was necessary to connect Walgreen’s
alleged negligence with Alex’s presence in the freeway (which led to him being
struck), the cases relied on by the Hausers—Bradley v. Rogers, 879 S.W.2d 947,
954 (Tex. App.—Houston [14th Dist.] 1994, writ denied) and Traut v. Beaty, 75
S.W.3d 661, 668 (Tex. App.—Texarkana 2002, no pet.)—do not support their
argument that an expert report addressing medical causation is not necessary.
In Bradley, the court noted that plaintiffs may establish causation in medical
malpractice cases by either (1) providing expert testimony establishing a traceable
chain of causation from the injury to the alleged negligent event, or (2) without
expert testimony when general experience and common sense will enable a
layperson to fairly determine the causal connection. 879 S.W.2d at 954. However,
the court concluded that “the medical condition and treatment in question were
clearly beyond the general experience and common sense of laymen.” Id. The
11
court in Bradley did not hold that no expert testimony was required to show
causation. Id. Indeed, in that case, medical expert testimony was required, but was
found lacking. Id.
Similarly, in Traut, the court held that expert testimony was required to
establish the causal connection between the doctor’s negligence in leaving a piece
of wire in the plaintiff’s body and the plaintiff’s pain. Id. at 668. In so holding,
the court distinguished Manax v. Ballew, 797 S.W.2d 71, 73 (Tex. App.—Waco
1990, writ denied), a case in which no expert testimony was necessary to establish
a causal link between a doctor’s operating in the wrong location and the plaintiff’s
resulting injury.
This case is not like Manax, in which no expert testimony was necessary
because “any lay person could look at the plaintiff’s back and determine that the
surgery was performed in a different area than the doctor agreed to perform it.” Id.
(citing Manax, 797 S.W.2d at 73). Knowing the effect that taking an overdose of
clonazepam would have had on Alex and whether that would have caused him to
enter a busy freeway were issues beyond the general experience and common
sense of most laymen. Thus, we disagree with the Hausers’ assertion that no report
on medical causation was required.
Second, the Hausers argue that, if you consider the expert report of Dr.
George Glass—which was filed as a part of the initial suit against Memorial
12
Hermann, but before Walgreen was sued—in conjunction with Seaton’s report, all
the requirements of a medical report, including causation, have been met.
We agree with the Hausers that expert reports may be considered together in
determining whether the plaintiff has provided adequate expert opinion regarding
the standard of care, breach, and causation. See TEX. CIV. PRAC. & REM. CODE
§74.351(i); see also Hieger, 243 S.W.3d at 186 n.2 (noting that expert reports can
be considered together but considering only doctor’s report on issue of medical
causation). However, the expert report statute also provides in pertinent part that:
[i]n a health care liability claim, a claimant shall, not later than the
120th day after the date each defendant’s original answer is filed,
serve on that party or the party’s attorney one or more expert reports,
with a curriculum vitae of each expert listed in the report for each
physician or health care provider against whom a liability claim is
asserted.
TEX. CIV. PRAC. & REM. CODE § 74.351(a) (emphasis added).
The record in this case shows that Dr. Glass’s report is dated January 17,
2017 and was served on the Memorial Hermann defendants on January 20, 2017.
Walgreen was not added to the lawsuit until October 3, 2017 and the Hausers’
claims against Memorial Hermann were then dismissed leaving Walgreen as the
sole defendant.
Walgreen filed an answer on November 27, 2017, and, on March 16, 2018,
the Hausers served Walgreen with an expert report by a pharmacist, Terry Seaton.
The Hausers did not serve Dr. Glass’s report on Walgreen.
13
On April 2, 2018, Walgreen filed its Motion to Dismiss challenging Seaton’s
expert report. On May 31, 2018, the Hausers filed a reponse to Walgreen’s Motion
to Dismiss. Again, their response did not reference Dr. Glass’s expert report.
In fact, the only place that Dr. Glass’s expert report can be found in the
appellate record is attached to Memorial Hermann’s February 9, 2017 Motion to
Dismiss and the Hausers’ April 3, 2017 response to that motion, both of which
were filed well before Walgreen was sued on October 3, 2017.
The Hausers had until 120 days after Walgreen’s November 27, 2017
answer to serve Dr. Glass’s report on Walgreen, which it did not do. Having never
served, or even mentioned Dr. Glass’s report, in connection with Walgreen’s
Motion to Dismiss, the Hausers cannot rely on it now.
CONCLUSION
Because the Hausers’ expert cannot by statute opine on the medical
causation between Walgreen’s alleged negligence and Alex’s death, and because
we reject the Hausers’ arguments that (1) no expert report on causation was
required or that (2) Dr. Glass’s report supplied the necessary causation opinion, we
sustain Walgreen’s first issue on appeal. Considering our disposition of
Walgreen’s first issue, we need not address its second and third issues regarding
whether Seaton’s causation and liability opinions are conclusory.
14
We reverse the trial court’s interlocutory order denying Walgreen’s Motion
to Dismiss and remand for further proceedings.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
15