Opinion
02-22-00341-CV
03-09-2023
Ridgmar Medical Lodge, Wise Health Services, Priority Management Group, LLC and CTR Partnership, LP, Appellants v. Concepcion Torres, Individually and on Behalf of the Estate of Dolores Guadalupe Martinez and Behalf of All Wrongful Death Beneficiaries of Dolores Guadalupe Martinez, Appellee
On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-325679-21
Before Sudderth, C.J.; Wallach and Walker, JJ.
MEMORANDUM OPINION
Brian Walker Justice
In this interlocutory appeal, Appellants Ridgmar Medical Lodge, Wise Health Services, Priority Management Group, LLC, and CTR Partnership, L.P., appeal the trial court's refusal to dismiss the negligence and wrongful death suit brought against them by Appellee Concepcion Torres, Individually and on Behalf of the Estate of Dolores Guadalupe Martinez and Behalf of All Wrongful Death Beneficiaries of Dolores Guadalupe Martinez. Substantively, Appellants argue that the trial court abused its discretion by (1) considering the expert opinion of an unqualified nurse at the motion to dismiss hearing and (2) denying their motion to dismiss because the expert doctor's opinions regarding breach and causation were conclusory. We will affirm.
In her brief, Torres argues that we do not have jurisdiction over this appeal because Appellants' notice of appeal did not state that it was accelerated as required by Texas Rule of Appellate Procedure 25.1(d)(6). See Tex.R.App.P. 25.1(d)(6). We overrule this argument because Appellants timely filed their notice of appeal and it constituted a bona-fide attempt at invoking our jurisdiction. See id. 25.1(b) ("The filing of a notice of appeal by any party invokes the appellate court's jurisdiction" and "[a]ny party's failure to take any other step required by these rules . . . does not deprive the appellate court of jurisdiction ...."); In re B.G., 104 S.W.3d 565, 568 (Tex. App.-Waco 2002, no. pet.) (holding timely-filed notice of appeal properly invoked appellate court jurisdiction even though it did not state that it was accelerated).
The facts recited are drawn from those alleged in the petition and Dr. Rushing's expert report. See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 221 n.1 (Tex. 2018).
Dolores Martinez was a 76-year-old woman suffering from dementia who resided at Appellants' Ridgmar Medical Lodge long-term-care facility (Ridgmar). Martinez had been ordered by a physician to observe a soft mechanical diet of pureed and ground foods. On June 6, 2019, Martinez was "delivered a food tray consisting of a regular diet," and she was left alone while she ate it. Soon after, Ridgmar nursing staff noticed that Martinez was choking, and they attempted to perform the Heimlich maneuver with no success. EMS arrived and performed a mouth sweep on Martinez by which they removed pieces of broccoli from her airway. They then administered CPR but were unable to revive her. The medical examiner's findings were summarized as
Martinez had also been diagnosed with osteoporosis, bone fracture, heart failure, hypertension, cardiac arrythmias, diabetes mellitus, hypercholesterolemia, and cerebral vascular disease.
choking: partially chewed broccoli in biohazard bag received with body, poor dentition with Edentelous upper teeth. [N]o identifiable food in the oral cavity, history of EMS [r]emoving broccoli from airway. The cause of death[:]choking (food), manner of death: accident.[]
Torres sued Appellants for negligence and wrongful death and then filed a timely Chapter 74 medical-expert report from nurse Susan Lofton who opined on the standard of nursing care and alleged breaches that occurred in relation to Martinez's death. See Tex. Civ. Prac. &Rem. Code Ann. § 74.351(a). Appellants objected to Lofton's report and moved to dismiss the lawsuit, arguing that she was not a qualified expert and that her report was insufficient. See id. § 74.351(b) (requiring trial court to dismiss healthcare-liability claim if timely expert report has not been served on defendants). The trial court sustained Appellants' objections but granted Torres thirty days to cure the deficiencies. See id. § 74.351(c) (allowing trial court to grant one 30-day extension if elements of plaintiff's expert report are found deficient).
Torres then filed the expert report of Dr. Lige Rushing. In the report, Rushing stated that his opinions were made after viewing relevant medical records, Lofton's report, law enforcement records, and the medical examiner's report. He summarized the facts of the case and then continued:
The standard of care for [Ridgmar] and its staff requires that they provide that level of care that a reasonable prudent similar facility and staff would provide under the same or similar circumstances.[] Ridgmar and its staff knew or should have known that Dolores Martinez was at increased risk for aspiration and swallowing difficulties because of her dementia and the fact that she had no upper teeth and had a denture. She had already been prescribed a[] mechanical soft diet as a precaution for her feeding/eating.
The standard of care for Ridgmar and its staff also requires that they must neither accept nor retain a resident whose needs they cannot meet.
The standard of care also requires that the facility must provide a safe and secure environment as free from hazard and risk as possible.
Ridgmar and its staff knew or should have known that Mrs. Martinez was at risk when eating for aspiration or obstruction of the oropharyngeal area or the laryngeal tracheal area. This was obvious
because of her order for a mechanical diet. Patients with dementia are at high risk for feeding accidents.
In this case Ridgmar should[ have] had a special "feeder table." For residents who have feeding/eating problems[,] feeder tables are required by the standard of care. A feeder table consists of several residents who have feeding problems such as Mrs. Martinez. Several patients who have feeding problems are generally seated at one table and there is an attendant at the table at all times while they are eating. The attendant's job is to be sure that there are no eating problems and if eating problems arise that the attendant is knowledgeable in recognizing and in treating these problems. Aspiration of course is the number one problem, the lodging [of] the food in the oropharyngeal or tracheal laryngeal[ ]area[,] the treatment for which is the Heimlich maneuver.
Whenever there is a question of respiratory distress and the question of aspirated food [the] first thing that is done is a "mouth sweep[.]"[] A mouth sweep consists of the insertion, usually of two or three fingers[,] into the oropharyngeal area to feel for any food or obstruction such as dislodged dentures and with the removal of same if found. In the records provided to me there is no documentation that a mouth sweep was performed. When the EMS arrived they did perform a mouth sweep and as a result removed the partially chewed broccoli stalk. And relieved the obstruction.
Although Dolores Martinez had a number of co-morbidities, none of these were life-threatening or acute. Had it not been for the broccoli, Ms. Martinez would not have died when and how she did.
The care and treatment rendered to Dolores Martinez [by Ridgmar] and its staff fell below the accepted standards of care in the following ways:
1. Failed to follow the physician's orders and provide the correctly prescribed diet.
2. Failed to provide a safe environment.
3. Failed to perform a "mouth sweep."
4. Accepted and retained a resident whose needs they failed to meet.
Appellants objected to Rushing's report and moved to dismiss the case a second time, arguing that, though Rushing was a qualified expert, his report was deficient as to the standard of care and conclusory as to breach and causation. See id. § 74.351(b). The trial court denied the objections and second motion to dismiss. Appellants' interlocutory appeal challenges that order.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (permitting appeal from interlocutory order that "denies all or part of the relief sought by a motion under Section 74.351(b)").
II. STANDARD OF REVIEW AND RELEVANT LAW
We review a trial court's decision on a motion to dismiss a healthcare-liability claim based on the adequacy of an expert report for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); CHCA Clear Lake, L.P. v. Stewart, No. 01-19-00874-CV, 2021 WL 3412461, at *8 (Tex. App.-Houston [1st Dist.] Aug. 5, 2021, no pet.) (mem. op.). "In analyzing a report's sufficiency under this standard, we consider only the information contained within the four corners of the report." Abshire, 563 S.W.3d at 223.
Chapter 74 of the Civil Practice and Remedies Code requires healthcare-liability claimants to serve an expert report upon each defendant within 120 days after the defendant answers. Tex. Civ. Prac. &Rem. Code Ann. § 74.351(a). Ultimately, if the claimant fails to provide a sufficient report, the trial court must dismiss the suit. Id. § 74.351(b).
In determining the sufficiency of a report, "the trial court need only find that the report constitutes a 'good faith effort' to comply with the statutory requirements." Abshire, 563 S.W.3d at 223 (citing Tex. Civ. Prac. &Rem. Code Ann. § 74.351(l)). A good-faith effort exists when a report "(1) inform[s] the defendant of the specific conduct called into question and (2) provid[es] a basis for the trial court to conclude the claims have merit." Id. A valid report must fairly summarize the applicable standard of care, explain how the defendant failed to meet that standard, and establish the causal relationship between the failure and the alleged harm. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). "A report that satisfies these requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the [defendant]." Id.
While an expert report "need not marshal all the claimant's proof," it must do more than merely state the expert's conclusions about the standard of care, breach, and causation to be sufficient. Abshire, 563 S.W.3d at 226 (internal quotations omitted). But it is not required that a report meet the standards of summaryjudgment evidence, Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 517 (Tex. 2017), or that it convince the reader that its conclusions are reasonable, Abshire, 563 S.W.3d at 226.
III. DISCUSSION
A. Loftin'S Report
In a barebones first issue, Appellants argue that "the trial court impermissibly considered [Loftin's] report at the hearing on Appellants' Second Motion to Dismiss." Their argument seems to be that, because Loftin's expert report was invalid under Chapter 74, the trial court erred by allegedly considering it when ruling on Appellants' objections to Rushing's report.
We overrule this issue because Appellants do not point us to any evidence in the record supporting this allegation-and we see none on our own review-nor to any legal authority to guide our analysis on the issue. See Tex.R.App.P. 38.1(g), (i) (providing that an appellant's brief must contain "the facts pertinent to the issues" and "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Velasquez v. Waste Connections, Inc., 169 S.W.3d 432, 436 (Tex. App.-El Paso 2005, no pet.) ("Because Velasquez's argument does not contain a single reference to a relevant case or legal principle, the issues are not adequately briefed and are considered waived."). Further, Appellants did not preserve this issue for our review because they did not raise it with the trial court or obtain a related ruling therefrom. See Tex.R.App.P. 33.1(a); Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (stating that preservation generally "requires (1) a timely objection 'stating the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context,' and (2) a ruling"). We overrule Appellants' first issue.
B. Sufficiency of Rushing'S Report
Appellants' second and chief issue is that Rushing's report was deficient because it was conclusory as to breach and causation.
1. Breach
Appellants assert that Rushing's report was conclusory as to breach because it failed to provide any facts or analysis to establish the alleged breaches. We disagree.
For breach, the expert report must identify the standard of care and explain what the defendant should have done differently. Palacios, 46 S.W.3d 873 at 877-78. The generally accepted standard of care in healthcare-liability cases is "what an ordinary prudent [medical facility] would do under the same or similar circumstances." Id. at 880.
Rushing's report asserted at least three standards of care that required Appellants to:
• Provide the level of care that a reasonable, prudent similar facility and staff would have provided under the same or similar circumstances;
• Not accept or retain a resident whose needs they could not meet; and
• Provide a safe and secure environment as free from hazard and risk as possible. Rushing then explained three things that Appellants should have done differently:
• They should have had a special feeder table at which they could have appropriately monitored Martinez as she ate;
• They should have performed a mouth sweep to remove any lodged food; and
• They should have followed the physician's orders and provided Martinez with the correctly prescribed diet.
We hold that these statements taken together are not conclusory but instead articulate specific breaches of the standard of care sufficient to show a good-faith effort at complying with the Chapter 74 requirements. See Abshire, 563 S.W.3d at 223.
As a sub-issue, Appellants contend that the "medical records Dr. Rushing relied upon in writing his report clearly provide a mouth sweep was performed by Ridgmar staff prior to EMS arrival, [thus] Dr. Rushing's opinion is inconsistent with the facts, conclusory, and just plain wrong." This argument fails for two reasons. First, Appellants waived this argument by inadequate briefing. See Tex.R.App.P. 38.1(g), (i). They do not point us to any facts in the record nor cite to any legal authority to support this argument. See id.; Velasquez, 169 S.W.3d at 436.
Second, this argument points to extrinsic evidence to dispute the credibility and weight to be given the facts underlying Rushing's report; such an argument raises a trial issue and is inappropriate at this early stage in the litigation. See Gannon v. Wyche, 321 S.W.3d 881, 892 (Tex. App.-Houston [14th Dist.] 2010, pet. denied); see also Baylor All Saints Med. Ctr. v. Dexter, No. 02-18-00238-CV, 2019 WL 310827, at *6 n.10 (Tex. App.-Fort Worth Jan. 24, 2019, pet. denied) (mem. op.) ("Moreover, in reviewing a report under section 74.351, we do not decide whether the expert is credible or assess the weight of the expert's opinions."); Lotze v. Howton, No. 01-10-00143-CV, 2011 WL 941268, at *5 (Tex. App.-Houston [1st Dist.] Mar. 17, 2011, pet. denied) (mem. op.) (rejecting contentions that expert report was "counterfactual" and "fact free" and that trial court should have considered information extrinsic to four corners of report-i.e., medical records that expert reviewed-in determining sufficiency of expert report).
2. Causation
Appellants also contend that Rushing's report was deficient as to causation because the report contains impermissible analytical gaps between the alleged breaches and Martinez's death. We disagree because at least one of the negligence theories raised in Rushing's report-related to Appellants' failure to follow Martinez's prescribed diet-presented a sufficient explanation to bridge the causation gap. See Certified EMS, 392 S.W.3d at 630.
On the issue of causation, the report must "explain 'how and why' the alleged negligence caused the injury in question." Abshire, 563 S.W.3d at 224. Conclusory descriptions of causation are not adequate; "the expert must explain the basis of his statements and link conclusions to specific facts." Id. But "[i]n satisfying th[e] 'how and why' requirement, the expert need not prove the entire case or account for every known fact; the report is sufficient if it makes 'a good-faith effort to explain, factually, how proximate cause is going to be proven.'" Id. (quoting Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)). Further, "[t]he sufficiency of the expert report's causation statement should be viewed in the context of the entire report." Columbia Med. Ctr. of Arlington Subsidiary L.P. v. L.M., No. 02-17-00147-CV, 2018 WL 1095746, at *7 (Tex. App.-Fort Worth Mar. 1, 2018, no pet.) (mem. op.). Finally, "the detail needed to establish a causal link generally is proportional to the complexity of the negligent act giving rise to the claim." Id. In other words, a "causation opinion is not conclusory simply because it is not complex." Id.
Rushing's report first summarized the facts leading to Martinez's death, including the medical examiner's finding that she had died from choking on the broccoli. He then explained that Martinez had been prescribed to follow a "mechanical soft diet as a precaution" due to her dementia diagnosis and "the fact that she had no upper teeth and had a denture." According to Rushing, dementia patients "are at a high risk for feeding accidents." Based on these facts, Rushing opined that Appellants knew or should have known that Martinez "was at increased risk for aspiration[,] swallowing difficulties[,]" and "obstruction of the oropharyngeal area or the laryngeal tracheal area." But, says Rushing, Appellants breached the applicable standard of care when they "[f]ailed to follow the physician's orders and provide the correctly prescribed diet." While Martinez had a number of comorbidities, Rushing stated that none were life threatening. He concluded that, "[h]ad it not been for the broccoli, Ms. Martinez would not have died when and how she did."
Taking Rushing's entire report together, we hold that it shows a good-faith effort to comply with Chapter 74 and provides a fair summary of Rushing's opinion as to causation. See Certified EMS at 630. He presented an uncomplicated theory that needed little technical explanation: that Martinez, despite being prescribed a soft mechanical diet, was given food by Appellants-the broccoli-in violation of this diet, which was a breach of the applicable standard of care, and that the broccoli caused her death. See Columbia Med. Ctr., 2018 WL 1095746 at *7.
For these reasons, we overrule Appellant's second issue and hold that the trial court did not abuse its discretion in denying Appellants' objections to Rushing's report and their second motion to dismiss.
IV. CONCLUSION
Having overruled Appellants' issues, we affirm the trial court's order denying Appellants' objections to Rushing's report and second motion to dismiss.