Nexion Health at Humble Inc v. Whitley (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(
HCLC denial of motion to dismiss affirmed, expert report adequate)
AFFIRMED: Per Curiam    
Before Chief Justice Hedges, Justices Seymore and Sullivan  
14-09-00052-CV  Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center v. Carolyn Whitley;
Clifton Kelly; Diddie Blanc; Billie Ray Kelly; and Judy Williams, Representative of the Estate of
Jeanette Blanc, Deceased   
Appeal from 11th District Court of Harris County
Trial Court Judge:
Mark Davidson

M E M O R A N D U M   O P I N I O N

This is an accelerated appeal by Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center
(hereinafter “HHC") from the denial of a motion to dismiss in a healthcare liability suit.  HHC raises
three issues concerning the denial of the motion and the failure to award attorney's fees and costs.  

We affirm.

This appeal arises from a suit for damages, based on allegations of negligence against two nursing
facilities.[1]  Jeanette Blanc was a non-ambulatory patient at a nursing home, when an employee
allegedly dropped her while giving her a bath.  This fall caused a fracture of Blanc's hip.  After
surgery for the broken hip, Blanc was moved to HHC's facility.  Soon thereafter, an employee at
HHC's facility loaded Blanc into a van for transport to a doctor's appointment.  Because Blanc was not
properly secured in the vehicle, she was thrown out of her wheelchair and hit the floor of the van,
resulting in facial contusions, swelling, nose lacerations and abrasions, as well as swelling to both
knees and shins.  After treatment for these injuries, Blanc returned to HHC's facility.  A short time
later, Blanc died.  According to the coroner, Blanc died from “[c]omplications of blunt force injury with
left hip fracture".

Because this is a healthcare liability claim, it is governed by Chapter 74 of the Texas Civil Practice
and Remedies Code, which requires the claimant to furnish an expert report within 120 days after suit
is filed.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008).  Appellees attached an
expert report to their original petition.  This report was prepared by David P. Wright, M.D.  The two
healthcare defendants objected to the expert report on a number of grounds.  The defendants moved
to dismiss for failure to comply with Chapter 74.  The parties reached a Rule 11 agreement that
plaintiff would provide an amended report.  After the amended expert report was filed, the defendants
filed a second motion to dismiss for failure to comply with Chapter 74.  The trial court denied this
motion and HHC filed this appeal.

Appellees, as proponents of the expert, had the burden to show Dr. Wright was qualified and that his
report satisfied the statutory requirements.  Memorial Hermann Healthcare Sys. v. Burrell, 230 S.W.3d
755, 757 (Tex. App.-Houston [14th Dist.] 2007, no pet.).  We review a trial court's decision concerning
the adequacy of an expert report under an abuse-of-discretion standard.  See Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (construing former statute).  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).  A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or principles.  Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002).  We may not reverse a trial court's discretionary ruling simply
because we might have decided it differently.  See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.
2003) (construing former statute).  The trial court, however, has no discretion in determining what the
law is or applying the law to the facts; therefore, a trial court's failure to apply or analyze the law
correctly is an abuse of discretion.  Sanjar v. Turner, 252 S.W.3d 460, 463-64 (Tex. App.-Houston
[14th Dist.] 2008, no pet.).

HHC claims the trial court abused its discretion in denying the motion to dismiss because Dr. Wright's
report does not establish his qualifications to render an opinion on standards of care in a nursing
home.  

The qualifications for an expert in a healthcare liability case are set out in section 74.402, which
defines what constitutes “practicing health care."  Tex. Civ. Prac. & Rem. Code Ann. § 74.402
(Vernon 2005).  According to this section, “practicing health care" includes:

(1) training health care providers in the same field as the defendant health care provider at an
accredited educational institution; or

(2) serving as a consulting health care provider and being licensed, certified, or registered in the
same field as the defendant health care provider.    

Id. at § 74.402(a)(1)-(2).  This section further provides that a person may qualify as an expert on the
issue of whether the healthcare provider departed from the accepted standard of care only if that
person:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as
that delivered by the defendant health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing that type of health care at the time the
claim arose;

(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those
accepted standards of health care.

Id. at 74.402(b)(1)-(3).  In deciding whether a witness is qualified on the basis of training or
experience, the court shall consider whether the witness is certified in the health care area relevant to
the claim and is actively rendering health care services relevant to the claim.  Id. at 74.402(c).

In support of its argument, HHC cites to two courts of appeals cases, Simonson v. Keppard, 225 S.W.
3d 868 (Tex. App.-Dallas 2007, no pet.) and Jones v. Ark-La_Tex Visiting Nurses, Inc., 128 S.W.3d
393 (Tex. App.-Texarkana 2004, no pet.), regarding the qualifications to testify on the standard of
care in a nursing home.  

In Simonson, the plaintiff came to the emergency room with symptoms of headache, nausea and
vomiting, and was seen by a nurse practitioner who diagnosed a migraine.  225 S.W.3d at 870.  The
next day, the plaintiff died from a massive intracranial hemorrhage.  Id.  The healthcare facility
objected to plaintiff's expert report, but the trial court denied the motion to dismiss.  Id. at 870-71.  
The appellate court found the expert did not satisfy the statutory qualifications statute because
nowhere in his affidavit did the doctor state he had knowledge of the standard of care applicable to
nurse practitioners or that he had worked with or supervised nurse practitioners.  Id. at 872.

In Jones, the plaintiff claimed a home healthcare worker was negligent in insertion and monitoring of
an IV needle, resulting in right arm nerve injury.  128 S.W.3d at 395.  The expert's report showed his
experience and education, but did not explain how this experience qualified him to give the standard
of care for nurses monitoring a patient in a home healthcare setting, or that he was an expert on
appropriate nursing care.  Id. at 397.

HHC complains that Dr. Wright did not show he was qualified to testify about the standard of nursing
care for transportation of patients by nursing homes.  Unlike the experts in Simonson and Jones, the
expert in this case did state he had experience with nursing home patients and was familiar with the
appropriate standard of care.  Appellee's expert, Dr. David Wright, stated in his report that he was
board certified in Family Medicine, he has a clinical practice, and is a full time faculty member of
several educational programs, including the University of Texas Medical Branch.  He stated he has
supervised, taught, and worked alongside nurses and certified nurse assistants.  Additionally, he
stated he has cared for hundreds of patients in nursing homes and is “well versed in the standard of
medical care that is to be provided to a nursing home patient."  Finally, Dr. Wright stated he had
assisted in drafting and implementing policies and procedures for healthcare facilities.

In his report, Dr. Wright described his professional education, training and experience relevant to a
nurse's standard of care while providing care for a nursing home patient.  Specifically, Dr. Wright
asserted that he supervised nurses and assistants, cared for hundreds of nursing home patients, is
well-versed in the standard of care to be provided to a nursing home patient, and procedures and
policies for nursing homes. The trial court could have found that Dr. Wright's experience in caring for
nursing home patients and his knowledge of the standard of medical care to be provide to nursing
home patients included the care to be provided when a nursing home patient is transported.  We find
no abuse of discretion by the trial court in denying the motion to dismiss on this basis.

HHC next argues that Dr. Wright is not qualified to render an expert report because his report failed
to show he is actively practicing nursing home health care during the relevant time period.  Dr.
Wright's report and curriculum vitae indicate that he practices and is board certified in family
medicine, that he has cared for hundreds of patients in nursing homes throughout his twenty-five
year career, that he has been appointed to the Board of Directors of Hospice of Austin, and acts as a
consultant to the Austin Hospice Program.  Caring for nursing home patients and consulting for a
nursing home facility is sufficient to constitute practicing nursing home health care.  There is no merit
to this complaint.

HHC also claims the trial court abused its discretion in denying the motion to dismiss because Dr.
Wright's report does not establish the causal relationship between the alleged negligence and Blanc's
death.  Section 74.351 defines an expert report as “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."  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2008).

In his report, Dr. Wright stated that HHC's staff failed to properly restrain or supervise Blanc, resulting
in her being thrown face first to the floor of the van, and that this blunt force trauma contributed with a
high degree of medical certainty to Blanc's neurological and cognitive function, contributing to her
overall health and demise.  HHC argues this does not show how the alleged blunt force trauma
impaired Blanc's neurological and cognitive functions or how this impairment caused her death.  In
support of this, HHC cites to Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex. 2002).

In Wright, the supreme court held that an expert report must express the causal relationship in terms
of reasonable medical probability and must summarize the causal relationship between the facility's
failure to meet the applicable standard of care and Blanc's injury.  Id. at 53.  In Wright, the court
found the expert report lacked information linking the expert's conclusion to the alleged breach.  Id.  
See also Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 410 (Tex. App.-Houston [14th Dist.]
2005, no pet.)(found no causal link between conclusory statements in expert report that failure to
follow doctor orders regarding tube feeding, weighing of patient, and check of gastric tube position
robbed plaintiff of quality of life and hastened loss of her legs).

Here, Dr. Wright did link the alleged breach (the failure to properly supervise and restrain Blanc in the
vehicle) to the injury (the lacerations, contusions, neurological and cognitive insult contributing to her
overall ill health and demise).  Thus, the trial court could have determined the report did establish a
causal relationship between the alleged breach of the applicable standard of care and the injury.  As
Dr. Wright's opinion explains, the fall from the wheelchair caused lacerations and contusions, but may
have also causes cognitive and neurological complications that hastened her death.  This is sufficient
to establish a causal link between the breach of the standard of care and the injury.

Finally, HHC asserts the trial court abused its discretion in failing to award HHC its attorney's fees and
costs.  Chapter 74 provides for recovery of attorney's fees and costs if the plaintiff fails to furnish an
expert report in compliance with Chapter 74.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1)
(Vernon Supp. 2008).  Because we have upheld the trial court's denial of the motion to dismiss, HHC
has not shown its entitlement to attorney's fees and costs.  

Accordingly, we affirm the judgment of the trial court.

PER CURIAM

Panel consists of Chief Justice Hedges, and Justices Seymore and Sullivan.

[1]  Only one healthcare facility has appealed the trial court's ruling.