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concluding that the expert report properly articulated the standard of care for hospital staff which required that they observe, monitor, and recognize symptoms or conditions
Summary of this case from Baker v. ChapaOpinion
NO. 02-15-00275-CV
05-05-2016
COLUMBIA PLAZA MEDICAL CENTER OF FORT WORTH, SUBSIDIARY, L.P. A/K/A PLAZA MEDICAL CENTER OF FORT WORTH APPELLANT v. JESSICA JIMENEZ, JENNIFER GALO, CATHERINE FRANK, IN THEIR INDIVIDUAL CAPACITIES, AND WILLIAM TYLER II, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF PAMELA J. KNIGHT, DECEASED APPELLEES
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 352-275721-14 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Columbia Plaza Medical Center of Fort Worth, Subsidiary, L.P. a/k/a Plaza Medical Center of Fort Worth appeals the trial court's order overruling its objections to Appellees' proffered civil practice and remedies code section 74.351(a) expert report and denying its motion to dismiss Appellees' health care liability claim.See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9), 74.351(a), (b) (West Supp. 2015). In a single issue, Plaza argues that the report is deficient as to both the breach and causation requirements. We will affirm.
Appellees are Jessica Jimenez, Jennifer Galo, and Catherine Frank, in their individual capacities, and William Tyler II, as independent administrator of the estate of Pamela J. Knight, deceased.
II. BACKGROUND
Appellees sued Plaza in November 2014 to recover damages for the death of Knight. According to the original petition, Knight underwent laparoscopic gastric band surgery in May 2011 to combat her obesity. Knight later developed "profound esophageal spasms," so in August 2012, she had the gastric lap band removed. Knight then developed "nutcracker esophagus," a dysfunction of the esophagus that adversely affects the delivery of food from the mouth to the stomach. Dr. Yurvati evaluated Knight, and on December 11, 2012, he performed a left thoracotomy with extensive esophageal myotomy.
Appellees also sued Albert H. Olivencia-Yurvati, D.O., an osteopathic physician, and his employer, The University of North Texas Health Science Center. Appellees later agreed to dismiss Dr. Yurvati from the suit.
In the days following the surgery, Knight's condition "began to markedly deteriorate." She developed hypoxemia and had to be placed on bi-level positive airway pressure to keep her airway open and to allow her to breathe. On December 17, 2012, Dr. Yurvati performed a "left tube thoracostomy (placement of a chest tube in the left lung)" after a "loculated pneumothorax" was observed in a CT scan. Knight's condition continued to worsen, however, and on December 19, 2012—eight days after the December 11, 2012 thoracotomy procedure—an esophagram revealed that Knight had a leak in her esophagus, which had been perforated during the December 11 thoracotomy. The next day, Dr. Yurvati attempted to repair the esophageal perforation by performing "an additional left thoracotomy using a 'modified T-tube repair.'"
By December 26, 2012, Knight's condition had become worse; a "massive infection" had developed at the thoracotomy incision, an infection developed in her mediastinum, and Dr. Yurvati noted that there was "complete necrosis of the adipose tissue." Dr. Yurvati performed wound irrigation debridement of the infected tissue and attached a suction device so that "wound VAC therapy could be performed." But his efforts "did not succeed in correcting the problem initially caused by the perforation of [Knight's] esophagus and the subsequent development of infection." On January 18, 2013, Knight had a tracheostomy performed and an open gastric tube placed because of the "overwhelming infection" that had developed and because of her inability to receive nutrition by mouth.
Knight was discharged from Plaza on February 1, 2013, but readmitted the next day and diagnosed with a broken moss tube, ventilator dependent respiratory failure, an open left thoracotomy wound, and an esophageal leak. Knight underwent a number of procedures before being discharged from Plaza to a rehabilitation hospital on March 25, 2013, but she died on May 12, 2013, "from conditions and complications directly related to" the December 11 and 20, 2012 surgeries performed by Dr. Yurvati, according to Appellees.
Among other things, Appellees alleged that Dr. Yurvati was negligent (i) by failing to perform an esophagram three or four days after the December 11, 2012 thoracotomy (because Knight's deteriorating condition and symptoms were suggestive of an esophageal puncture) and (ii) by failing to perform the necessary and proper procedure on December 20, 2012, to address Knight's perforated esophagus. Regarding Plaza, Appellees averred, among other things, that its nursing or hospital staff was negligent by failing to properly monitor Knight in the days following the December 11, 2012 thoracotomy procedure and observe that her symptoms and deteriorating condition during that period of time, which included respiratory distress and fever, were indicative of a perforated esophagus.
On February 9, 2015, Appellees served Plaza with the expert report and curriculum vitae of Mary C. Mancini, M.D., Ph.D. Plaza filed its objections to the report on February 27, 2015, and its motion to dismiss Appellees' claim on
June 1, 2015. After a hearing, the trial court overruled Plaza's objections and denied its motion to dismiss.
III. ADEQUACY OF DR. MANCINI'S REPORT
Plaza argues in part of its sole issue that the trial court abused its discretion by overruling its objections to Dr. Mancini's report and by denying its motion to dismiss because the report does not sufficiently describe the manner in which Plaza breached the standard of care and because Dr. Mancini's causation opinion is deficient. Appellees respond that Dr. Mancini's report adequately addresses both the breach and causation requirements as to Plaza.
A. Expert Report Requirements
A plaintiff must serve an expert report for each physician or health care provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An expert report is a written report by an expert that provides a fair summary of the expert's opinions regarding the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may file objections challenging its adequacy and move to dismiss the underlying health care liability claim. See id. § 74.351(a), (b). A trial court must grant a motion to dismiss based on the alleged inadequacy of an expert report only if it finds, after a hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in the statute. Id. § 74.351(l).
The information in the report does not have to meet the same requirements as evidence offered in a summary judgment proceeding or at trial, and the report need not marshal all the plaintiff's proof, but it must include the expert's opinions on each of the elements identified in the statute—standard of care, breach, and causation. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001); Polone v. Shearer, 287 S.W.3d 229, 233 (Tex. App.—Fort Worth 2009, no pet.). In detailing these elements, the report must provide enough information to fulfill two purposes if it is to constitute a good faith effort: (1) the report must inform the defendant of the specific conduct the plaintiff has called into question and (2) the report must provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879.
We review a trial court's denial of a motion to dismiss for an abuse of discretion. Polone, 287 S.W.3d at 232. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
B. Timeliness of Plaza's Objections
We first consider Appellees' counter-argument that Plaza "failed to timely object to Dr. Mancini's report" because Plaza raised the arguments that support its objections to the report after the deadline to assert objections had passed.
A defendant whose conduct is implicated in a report must file and serve any objections to the sufficiency of the report not later than the twenty-first day after the report is served or the twenty-first day after the date the defendant's answer is filed, whichever is later. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Objections filed after the deadline are waived. Id.
Appellees served Plaza with Dr. Mancini's report on or about February 9, 2015, and Plaza filed its objections to the report eighteen days later, on or about February 27, 2015. Plaza objected as follows:
Defendant objects to the expert report of Dr. Mancini on the basis that it fails to identify the manner in which Defendant breached the standard of care and fails to adequately establish a causal link between Defendant's alleged misconduct and the injuries and death of Ms. Knight.Plaza did not provide substantive argument in support of its objections until it filed its June 2015 motion to dismiss. Appellees argue that Plaza's objections were untimely and therefore waived because, although Plaza filed its objections to Dr. Mancini's report within the twenty-one-day period prescribed by section 74.351(a), it did not assert the arguments in support of the objections until June 2015—well after the twenty-one-day deadline had passed.
Appellees' argument is inconsistent with section 74.351(a)'s clear and unambiguous language. Certainly, any objections raised after the twenty-one day period are waived, see Ogletree v. Matthews, 262 S.W.3d 316, 321-22 (Tex. 2007), but Plaza did not raise any objection in its motion to dismiss that it did not include in the objections that it filed on February 27, 2015. Plaza merely provided the court with argument to support its previously raised, timely filed objections regarding breach of the standard of care and causation. Section 74.351(a) requires the timely filing and serving of "any objection to the sufficiency of the report"; it does not require the timely filing and serving of "any objection [and supporting argument] to the sufficiency of the report." See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). "A court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute." Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988). Thus, contrary to Appellees' argument, post-objection deadline arguments do not retroactively render timely filed corresponding objections untimely.
Appellees direct us to Lucas v. Clearlake Senior Living Ltd. Partnership, 349 S.W.3d 657 (Tex. App.—Houston [14th Dist.] 2011, no pet.), but that case actually supports Plaza's position because the health care provider there asserted an objection to an amended expert report that it did not include in its objections to the original expert report. Id. at 659, 662-63. Here, as explained, Plaza did not include any objection in its motion to dismiss that it did not include in its earlier-filed objections. Plaza timely objected to Dr. Mancini's report.
C. Breach and Causation Opinions
Dr. Mancini opined that the applicable standard of care required Plaza (i) to "observe, monitor, and recognize any unusual or abnormal symptoms or conditions in Ms. Knight following the surgery, specifically including the duty to observe her for development of symptoms consistent with perforation of the esophagus," and (ii) "[o]nce symptoms consistent with esophageal perforation, such as respiratory distress and fever, are observed," to "notify the physician in charge of the patient so that appropriate measures can be taken to address the perforation issue before the infection spreads." Regarding both the manner in which Plaza failed to meet the standard of care and how the alleged breach caused Knight's injuries or death, Dr. Mancini opined,
Similar to (i), Dr. Mancini opined in a different part of her report that "the standard of care following a thoracotomy procedure such as what was performed by Dr. Yurvati on December 11th requires that the patient be carefully monitored for an esophageal leak in the days following such a procedure." --------
A reasonabl[y] prudent physician, along with attending hospital staff, would have recognized the deterioration in Ms. Knight's condition in the days following the December 11th procedure, and tested for such a leak. By waiting until December 19, 2012 - eight days following the original procedure - the ability to successfully address the respiratory and infection problems caused by the perforation was greatly diminished. The standard of care applicable in a case such as this one would require that an esophagram be performed as soon as alarming symptoms began to be observed; in this case, that would have been within three or four days of the December 11th thoracotomy procedure. [Emphasis added.]In another part of her report, she opined,
It is further my opinion that, within a reasonable medical probability, had Dr. Yurvati, and the nursing staff of Plaza Medical Center of Fort Worth properly evaluated Ms. Knight in the days following the December 11, 201[2] thoracotomy procedure, and, as they should have, recognized that her deteriorating condition was likely due to a perforated esophagus, and had Dr. Yurvati then performed the proper procedure for addressing Ms. Knight's perforated esophagus . . . , Ms. Knight would not have developed the progressive infection, pneumonia, and deep vein thrombosis that led to her death, and she would be alive today. [Emphasis added.]
Thus, Dr. Mancini opined that Plaza did not comply with the applicable standard of care because its staff failed to properly evaluate and recognize within three or four days following the December 11, 2012 thoracotomy that Knight's deteriorating condition was consistent with a perforated esophagus. She also opined that Plaza's failure to properly evaluate Knight and recognize that her condition was likely due to a perforated esophagus contributed to the development of—and greatly diminished the ability to successfully treat—the progressive infection that led in part to her death.
Plaza argues that Dr. Mancini's report insufficiently describes how Plaza allegedly breached the standard of care because it does not identify "how the nurses should have observed, monitored, and/or recognized any unusual or abnormal symptoms consistent with the perforation of the esophagus," nor does it "provide any detail regarding the specific protocols for observation, monitoring, and recognition of unusual or abnormal symptoms in patients that have undergone a left thoracotomy." [Emphasis added.] Plaza demands a level of detail that the law simply does not require.
In opining how Plaza breached the applicable standard of care, Dr. Mancini had to identify how Plaza failed to comply with the standard of care; the obligation did not require her to additionally detail how Plaza's staff should have complied with the standard of care or otherwise properly performed their responsibilities. See Otero v. Richardson, 326 S.W.3d 363, 369 (Tex. App.—Fort Worth 2010, no pet.) (reasoning that an expert report's statements concerning breach of the standard of care must identify how care was not given). Further, Dr. Mancini had no obligation to identify and detail with exacting precision the acts or omissions by which Plaza's staff failed to properly monitor Knight and to recognize that her deteriorating condition was consistent with a perforated esophagus. See Palacios, 46 S.W.3d at 879 (explaining that "a plaintiff need not present evidence in the report as if it were actually litigating the merits"); Kelly v. Rendon, 255 S.W.3d 665, 677 n.6 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (referring, among other things, to the "failure to specify which antibiotics appellants should have ordered" and "the timing for the administration of those antibiotics" and reasoning that "[a]ppellants do not cite any authority in support of their position that a section 74.351 report requires the type of extreme detail listed above to give defendants notice of the basis of the claims against them" and that "we are not persuaded the statute dictates such a level of detail"). Rather, for purposes of the expert report requirement, it suffices that Dr. Mancini opined that Plaza's staff breached the applicable standard of care by failing to properly monitor Knight and to recognize that her deteriorating condition was consistent with a perforated esophagus. This level of detail fulfills Palacios's twofold requirement that the report provide enough information to inform Plaza of the specific conduct that Appellees have called into question and to allow the trial court to conclude that the claim has merit. See 46 S.W.3d at 879.
Plaza also argues that Dr. Mancini's report is conclusory and inadequate because she failed to sufficiently link Ms. Knight's injuries or death to any alleged breach in notifying the physician in charge of her symptoms and failed to specifically identify why Plaza's alleged delay exacerbated Knight's problems or contributed to her death. According to Plaza,
Dr. Mancini opines that if Dr. Yurvati and Plaza had recognized Ms. Knight's deteriorating condition sooner, Ms. Knight would not have developed the progressive infection, pneumonia, and deep vein thrombosis that led to her death. But Dr. Mancini does not explain why, if Plaza had monitored and caught the perforation sooner, the result would have been different. After Dr. Yurvati discovered the perforation, he performed, according to Dr. Mancini, an inappropriate procedure to address the problem. Even if the perforation had been discovered sooner, Dr. Mancini gives no indication that Dr. Yurvati would have performed a different procedure than the one he did.Plaza ignores Dr. Mancini's opinion regarding the effect of performing an esophagram three or four days after Knight's thoracotomy instead of nine days after the procedure. Dr. Mancini opined that Plaza's failure to properly monitor Knight and recognize that her condition was consistent with a perforated esophagus in the three or four days following the December 11, 2012 thoracotomy greatly diminished the ability to successfully treat the infection that progressed during that period and that contributed to her death. Regarding Dr. Yurvati, Dr. Mancini distinctly reasoned that "when there is the kind of extensive infection and contamination in the region of the thoracotomy that is present after nine days has elapsed from the date of the original procedure, the problem should be addressed by stapling off the distal portion of the esophagus at the gastroesophageal junction, and then performing a cervical esophagostomy." Dr. Mancini clearly linked Plaza's alleged breach of the applicable standard of care to Knight's death, notwithstanding her separate opinion regarding Dr. Yurvati's alleged breach of a discrete standard of care that was applicable to him. See Tenet Hosps., Ltd. v. Barnes, 329 S.W.3d 537, 543-44 (Tex. App.—El Paso 2010, no pet.) (holding that expert report sufficiently linked hospital's alleged negligence through nurse to death of patient). The trial court acted within its discretion by determining that Dr. Mancini's report provided a fair summary of the causal relationship between Plaza's alleged negligence and Knight's death. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
If Dr. Yurvati presumably would have performed the same procedure he did, what difference would that have made in Ms. Knight's outcome, and how did Plaza's alleged breaches cause injury? [record references removed]
We conclude and hold that Dr. Mancini's report represents an objective good faith effort to comply with the definition of an expert report and, therefore, that the trial court did not abuse its discretion by denying Plaza's objections and motion to dismiss. See id. § 74.351(l); Palacios, 46 S.W.3d at 879. We overrule these parts of Plaza's sole issue and do not reach the remainder of its issue arguing about whether Appellees are entitled to an extension to cure. See Tex. R. App. P. 47.1.
IV. CONCLUSION
Having overruled the dispositive parts of Plaza's sole issue, we affirm the trial court's order denying Plaza's objections to Dr. Mancini's report and its motion to dismiss Appellees' health care liability claim.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ. DELIVERED: May 5, 2016