Opinion
No. 05-16-00453-CV
12-20-2016
HICKORY TRAIL HOSPITAL, L.P., Appellant v. MARVELLA LOYA, Appellee
On Appeal from the 95th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-02031
DISSENTING OPINION
Before Justices Lang, Myers, and Evans
Dissenting Opinion by Justice Lang
Because I disagree with the majority's conclusion that the trial court "could have reasonably determined" that the expert report in question "adequately explained the basis for the causation opinion, linking its conclusions to the facts and the alleged breach," I respectfully dissent.
APPLICABLE LAW
As stated by the majority, "[u]nder an abuse of discretion standard, 'close calls must go to the trial court.'" Hickory Trail Hosp., L.P. v. Loya, No. 05-16-00453-CV, slip op. at 4-5. "However, a trial court has no discretion in determining what the law is or applying the law to the facts." Id. at 5. Further, this Court recently described the law applicable to dismissal of a health care liability claim based on the sufficiency of an expert's report as follows:
A trial court must grant a motion challenging the adequacy of an expert report only if it appears, after hearing, that the report does not represent an objective good faith effort to comply with the definition of "expert report" in section 74.351(r)(6). In determining whether the expert report represents a good faith effort to comply with the statutory requirements, the court's inquiry is limited to the four corners of the report. A court may not "fill gaps" in an expert report by drawing inferences or guessing what the expert likely meant or intended. If a report omits any of the statutory elements of section 74.351(r)(6), it cannot be a good faith effort. As noted, one of the mandatory elements of a good faith report is an explanation of the causal relationship between a failure to meet the applicable standard of care and the injury, harm, or damages claimed.Nexion Health at Lancaster, Inc. v. Wells, No. 05-16-00018-CV, 2016 WL 4010834, at *2-3 (Tex. App.—Dallas July 25, 2016, no pet.) (mem. op.) (citations omitted). Additionally, this Court stated in Wells, "[w]e may not fill the gap and infer how evaluation and some potential treatment . . . would have remedied the situation or would have led to a better outcome." Id. at *5.
A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that, absent this act or omission, the harm would not have occurred. An expert report must explain "to a reasonable degree, how and why the breach [of the standard of care] caused the injury based on the facts presented." The report "must explain the basis of [the expert's] statements to link his conclusions to the facts." An expert's mere conclusion that "in medical probability" one event caused another differs little, without an explanation tying the conclusion to the facts, from an ipse dixit, which the supreme court has consistently criticized.
POSITIONS OF THE PARTIES
In explaining why the expert report in question is insufficient as to causation, I begin by summarizing the parties' arguments on appeal. In its appellate brief, Hickory Trail contends in part (1) "[a]ppellee seems to contend her cause of action shifts the requirements of the report to such that the harms claimed must be tied to the theory of liability; however, the law is clear and [a]ppellee is incorrect"; (2) "[t]he law requires that the harms claimed be linked to the breach of the standard of care identified by the expert in his report"; (3) "Dr. Dunn explains the standard of care calls for a physician, and not a licensed professional counselor intern, to perform a complete assessment before the involuntary hospitalization" and "[t]hat in and of itself is the standard of care according to Dr. Dunn"; (4) appellee "failed to articulate any legally based argument to support the idea that Dr. Dunn's report satisfies the causation element, or explain how it shows 'but for' the violation of the standard of care, Ms. Loya would have avoided her injury"; and (5) "Dr. Dunn's report fails to show how, or even state that, had Hickory Trail Hospital had a physician perform the complete assessment, Ms. Loya would not have been involuntarily committed or incurred her 'damages.'"
Loya contends on appeal (1) the trial court did not abuse its discretion by overruling Hickory Trail's objection to the expert's "causation and damages" analysis "when Hickory Trail argued that the [expert] failed to apply a negligent failure to diagnose causation analysis to a false imprisonment claim and DTPA claim"; (2) "in this case, the counterfactual causation analysis requires contemplation of whether Loya would have suffered harm if the wrongful act, i.e. the detention against her will and without her consent, had not occurred"; and (3) "Dr. Dunn concluded that Hickory Trail breached the standard of care when it detained Loya against her will." According to Loya,
The portions of Dr. Dunn's expert report relevant to this analysis are as follows:
3. This report is being furnished in compliance with Section 74.351 of the Texas Civil Practice and Remedies Code. I understand that Ms. Loya asserts two causes of action against Hickory Trail: false imprisonment and unconscionable conduct under the Texas Deceptive Trade Practices Act. This report addresses whether Hickory Trail: 1) acted without authority of law in detaining Ms. Loya without her consent between the dates of February 25, 2013 and February 28, 2013; and 2) took advantage of Ms. Loya to a grossly unfair degree by detaining her against her will. Both of those inquiries require an analysis of: 1) the standard of care applicable to a psychiatric hospital that seeks an order of protective custody for the involuntary commitment of a patient for the receipt of mental health services; 2) whether that standard of care has been breached or violated; and 3) whether the breach or violation of the standard of care has caused damage to the claimant. As set forth below, it is my expert opinion that Hickory Trail breached or violated the applicable standard(s) of care in its detention of Ms. Loya against her will and without her consent between February 25, 2013 and February 28, 2013, which caused damage to Ms. Loya.
4. Because involuntary commitment of a patient necessarily impinges on the patient's liberty interests, the decision to detain a patient against her will requires a thorough and unbiased mental health status evaluation by a qualified physician to determine that the legal requisites for involuntary commitment are satisfied. An evaluation performed by a person other than a qualified physician is not sufficient because such a person lacks the skill, training and qualifications to determine whether a patient should be detained against her will. When a qualified physician properly performs the required evaluation, the qualified physician would have the requisite skills, training, and experience to consider the patient's mental state at the time of evaluation, the risk to the patient and others, the patient's level of functioning, and any acute elements that prevent the patient from being able to safely function in the community. Such an assessment includes more than simply a review of a checklist of factors, but requires a professional and trained analysis that weighs both the benefits and risks of detaining someone against his or her will.
5. Hickory Trail breached the applicable standard(s) of care in the following manner:
Hickory Trail detained Ms. Loya without first ensuring that Ms. Loya received a thorough mental health status examination by a physician. Instead, Ms. Loya was interviewed by Angela Marquart, who was merely an LPC-Intern at the time she interviewed Ms. Loya. As an LPC-Intern, Ms Marquart did not have the requisite skill, training or experience to evaluate a patient for involuntary commitment. Given her lack of skill, training and experience, Ms. Marquart appears to have concluded that statements she attributed to Ms. Loya justified detaining Ms. Loya against her will. While the statements that Ms. Marquart attributed to Ms. Loya would raise some concern for Ms. Loya, Ms. Loya believes that her words were "twisted" by Ms. Marquart to present a stronger argument for hospitalization.
Rather than proceed to detain Ms. Loya on the basis of Ms. Marquart's report of a few statements attributed to Ms. Loya, more was required of Hickory Trail to to determine whether Ms. Loya should have been detained against her will. Before detaining Ms. Loya, Hickory Trail should have had a qualified physician assess whether potential less restrictive alternatives to hospitalization would have been more appropriate for Ms. Loya. In making that assessment, a qualified physician would have looked beyond the statements recorded by Ms. Marquart to determine whether Ms. Loya was in a state of acute crisis that made involuntary hospitalization necessary, or if she could be safely treated in the community with medication and therapy, or through a hospital-based outpatient program. . . . Ms. Marquart lacked the requisite skill, training and experience to recognize and evaluate the factors unique to Ms. Loya that ameliorated any risk that Ms. Marquart may have perceived based on her limited skill, training and experience. For instance, an appropriate assessment by a qualified physician as opposed to an assessment by an inexperienced LPC-Intern would have revealed that: 1) Ms. Loya had been experiencing chronic suicidal thinking for much of her life; 2) that she had never had a plan or desire to kill herself; and 3) her religious faith caused her to believe that suicide is a sin and that "there is no forgiveness on suicide."
On the basis of Ms. Marquart's incomplete and inadequate assessment of Ms. Loya, Hickory Trail acted to detain Ms. Loya against her will. . . . In an attempt to buttress her application, Ms. Marquart completed and submitted a Physician's Certificate of Medical Examination for Mental Illness even though she knew that the physician she asked to sign the certificate had not performed an examination of Ms. Loya. Thus, Hickory Trail knowingly and deliberately obtained and submitted a false Physician's Certificate of Medical Examination for Mental Illness to obscure the fact that Hickory Trail was detaining Ms. Loya against her will on the basis of Ms. Marquart's interview of Ms. Loya rather than on the basis of a thorough mental health evaluation by a licensed physician. Thus, Hickory Trail did not have an adequate basis to detain Ms. Loya against her will and misrepresented to the Dallas County court the basis for its decision to detain Ms. Loya against her will. The foregoing constitutes a breach of the standard of care applicable to Hickory Trail.
6. Hickory Trail's breach of the standard of care resulted in the damages claimed by Ms. Loya. Ms. Loya claims damages resulting from her involuntary commitment at Hickory Trail. . . .
. . . [I]t is clear that [Loya's] damages are directly tied to Hickory Trail's breach of the standard of care. But for the breaches described above, Ms. Loya would not have been detained against her will by Hickory Trail from February 25, 2013 through February 28, 2013. Naturally, she would not have incurred any medical bills for her involuntary commitment, missed work or had to hire an attorney to secure her release had Hickory Trail not detained her against her will in violation of the applicable standard(s) of care. Moreover, Ms. Loya would not have suffered the mental anguish, emotional distress or loss of her personal freedom had Hickory Trail not detained her against her will in violation of the applicable standard(s) of care.
Hickory Trail's causation objection has no merit because it fails to account for the nature of the causation analysis in an unlawful detention case. Dr. Dunn's causation analysis explains the harms that directly resulted from Hickory Trail's detention of Loya, which is the wrongful act for which Hickory Trail has been sued. Hickory Trail ignores that straightforward causation analysis and pretends that it is being sued not for an intentional detention, but for the lack of a physician's examination.Loya does not cite or describe any portion of Dunn's report that she contends addresses how or why Hickory Trail's alleged failure to ensure that Loya received a mental health status exam by a licensed physician before being detained caused Loya's alleged damages. Rather, Loya contends the "nature of the causation analysis in an unlawful detention case" requires merely that the expert report "explains the harms that directly resulted from Hickory Trail's detention of Loya, which is the wrongful act for which Hickory Trail has been sued."
ANALYSIS
The majority opinion does not address Loya's position respecting the "nature of the causation analysis" applicable to this case. Rather, the majority concludes "[t]he trial court could reasonably have determined that Dunn's report represented a good-faith effort to summarize the causal relationship between Hickory Trail's failure to meet the applicable standard of care and Loya's injuries and damages." Hickory Trail Hosp., L.P., No. 05-16-00453-CV, slip op. at 10. According to the majority, Dunn's report (1) states Hickory Trail breached the standard of care required because Loya's involuntary commitment was improperly based on an exam by an "LPC-Intern" and not a physician's examination; (2) "links the alleged breach to Loya's damages by stating that she would not have been detained against her will but for Hickory Trail's breach"; and (3) therefore "adequately explains the factual basis of Dunn's conclusion that Hickory Trail's failure to have a physician examine Loya before seeking her involuntary commitment caused Loya to sustain the injuries and damages she sustained as a result of the involuntary commitment." Id. at 8-9. Further, the majority rejects Hickory Trail's assertion that "to establish causation, Dunn was required to state explicitly that had a physician conducted a psychiatric assessment, Loya would have avoided involuntary hospitalization." Id. at 9. In support of that reasoning, the majority states (1) "[a] report's adequacy does not depend on whether the expert uses any particular 'magical words'" (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002)); and (2) "[c]ausation may be shown through explanation of a chain of events that begins with the health care provider's actions and ends in injury to the plaintiff" (citing Nexion Healthcare Mgmt., Inc. v. Sosa, No. 05-15-01083-CV, 2016 WL 1457069, at *4 (Tex. App.—Dallas Apr. 12, 2016, no pet.) (mem. op.)). Id. Finally, the majority states in part,
Reading Dunn's report in its entirety, it is clear that he concluded Loya's involuntary commitment and resulting damages were caused by Hickory Trail's failure to have Loya assessed by a physician prior to seeking her involuntary commitment and presenting a false certification of physician examination and
evaluation to the court in support of its application to have Loya involuntarily committed. Further, in Dunn's opinion, a physician would have looked beyond Loya's statements to determine whether she was in a state of acute crisis requiring involuntary hospitalization or if she could be safely treated in the community with medication and therapy, or through outpatient treatment. Dunn also noted that had a physician evaluated Loya, he or she would have discovered factors that ameliorated the risk perceived by Marquart such as: (1) Loya experienced chronic suicidal thinking for most of her life but never had a plan or desire to kill herself and (2) that her religious beliefs precluded suicide. Dunn further states that but for the breaches he described (Hickory Trail's failure to have Loya examined by a qualified physician and the presentation to the Dallas County court of a false certification that a physician had examined and evaluated Loya) Loya would not have been detained against her will. A necessary corollary to this statement is had a qualified physician examined Loya, she would not have been involuntarily committed. The trial court could have reasonably determined that Dunn's report represented a good-faith effort to summarize the causal relationship between Hickory Trail's failure to meet the applicable standard of care and Loya's injuries and damages.Id. at 9-10 (emphasis added).
The majority's reliance on this Court's statement in Sosa that "[c]ausation may be shown through explanation of a chain of events that begins with the health care provider's actions and ends in injury to the plaintiff" is misplaced. See Sosa, 2016 WL 1457069, at *4. Sosa involved an expert report that stated in part, "Had the nursing staff properly managed Mr. Sosa's feeding tube and ensured that he received proper food and water, it is medically probable that his kidneys would not have failed and he would not have died . . . ." Id. at *5. Thus, Sosa does not support a conclusion that an expert is not required to opine as to how the outcome would have differed in order to show causation.
Further, in the case before us, the record shows that if a proper assessment by a physician on the date in question would have resulted in involuntary commitment of Loya, the breach in question did not cause her alleged injury. Therefore, on this record, while "particular 'magical words'" are not required, any explanation of " how and why the breach [of the standard of care] caused the injury based on the facts presented" must address whether a proper assessment would have resulted in involuntary commitment. See Wells, 2016 WL 4010834, at *3 (emphasis added). Nowhere in Dunn's report does he address that. Rather, he merely describes information that would have been revealed and considered by a physician in a proper assessment and lists several examples of factors that "ameliorated any risk that Ms. Marquart may have perceived." He does not address whether such amelioration of risks would have eliminated the need for hospitalization. Consequently, even considering Dunn's report in its entirety, his statement in paragraph six that "[b]ut for the breaches described above, Ms. Loya would not have been detained against her will by Hickory Trail from February 25, 2013 through February 28, 2013" has no basis and is therefore conclusory. See id.
The majority attempts to resolve the critical absence of a "how and why" explanation linking the alleged breach and injury by concluding that a "necessary corollary" to Dunn's conclusory statement described above is "had a qualified physician examined Loya, she would not have been involuntarily committed." However, I have found no case in which causation in an expert report was established by a "necessary corollary" to a conclusory statement. Additionally, as this Court stated in Wells, "[w]e may not fill the gap and infer how evaluation and some potential treatment . . . would have remedied the situation or would have led to a better outcome." Id. at *5; see also Hollingsworth v. Springs, 353 S.W.3d 506, 513 (Tex. App.—Dallas 2011, no pet.) ("We may not 'fill gaps' in an expert report by drawing inferences or guessing what the expert likely meant or intended."). On this record, I would conclude Dunn's report did not qualify as "a good-faith effort to summarize the causal relationship between Hickory Trail's failure to meet the applicable standard of care and Loya's injuries and damages."
Next, in light of that conclusion, I would address Loya's additional argument described above, i.e., that based on the facts and the nature of her claims, the causation analysis in this particular case requires contemplation of only "whether Loya would have suffered harm if the wrongful act, i.e. the detention against her will and without her consent, had not occurred." As described above, (1) pursuant to section 74.351(r)(6), an expert report in a health care liability case must provide a summary of "the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed," TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); and (2) "[a] causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this act or omission, the harm would not have occurred," Wells, 2016 WL 4010834, at *3. Loya cites no authority, and I have found none, that describes a different causation standard for health care liability cases involving false imprisonment or DTPA claims.
Further, as described above, Loya contends the "breach of the standard of care" as to her claims is Hickory Trail's "wrongful act" of detaining her against her will and, therefore, within the factual context of this particular case, she satisfied any causation requirement by linking that "wrongful" detention to the harm she suffered. However, detention of a patient against her will is not necessarily "wrongful." Cf. Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 806 (Tex. App.—Dallas 2005, no pet.) (elements of false imprisonment claim in health care liability case included showing hospital acted "without authority of law" respecting court-ordered mental health services for patient's safety). The record shows the underlying factual basis for Loya's allegation that her detention against her will was "wrongful" is Hickory Trail's alleged failure to meet the specific requirement described by Dunn in paragraph four of his report, i.e., to perform a mental health status evaluation by a qualified physician prior to detention. In other words, the record shows (1) Loya's own characterization of the breach of the standard of care in this case includes the alleged "wrongful act" of detention against her will, and (2) the underlying factual basis for such wrongfulness is the alleged lack of a mental health status evaluation by a qualified physician, i.e., a failure to meet the standard of care described by Dunn in section four of his report. Consequently, to the extent Loya contends the factual context of this case and/or the nature of the particular claims asserted by her warrant an altered causation analysis that does not require establishing a causal relationship between breach of that standard of care described by Dunn and Loya's alleged harm, I cannot agree.
CONCLUSION
In summary, I would conclude section 74.351(r)(6) required the expert report in this case to establish a causal relationship, pursuant to the recognized causation standards for health care liability claims, between Hickory Trail's alleged failure to meet the standard of care respecting evaluation by a qualified physician and Loya's injury, harm, or damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Wells, 2016 WL 4010834, at *3 ("[a] causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this act or omission, the harm would not have occurred" and "[a]n expert report must explain 'to a reasonable degree, how and why the breach [of the standard of care] caused the injury based on the facts presented'"). On the record before us, that recognized standard required Dunn to opine that had the standard of care been met, i.e., had a qualified physician conducted the evaluation, Loya would not have been involuntarily detained. The expert report in this case did not meet that requirement. Therefore, I respectfully dissent. 160453DF.P05
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE