MEDICAL MALPRACTICE | HCLC | EXPERT REPORT | | Law suits against

San Jacinto Methodist Hospital v. Carr (Tex.App. - Houston [1st Dist.] May 22, 2008)
(Bland)
(
HCLC, med-mal, medical malpractice suit, expert report sufficient, motion to dismiss HCLC properly
denied)
AFFIRM TC JUDGMENT: Opinion by
Justice Jane Nenninger Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00655-CV San Jacinto Methodist Hospital v. Guy Patrick Carr and Terri Carr
Appeal from 269th District Court of Harris County
Trial Court
Judge: Hon. John Thomas Wooldridge  
Attorneys:  Iain Gordon Simpson, Oscar Luis De La Rosa | Attorney Craig Lewis

We conclude that Dr. Tulloch’s report provides a fair summary of his opinion that a causal relationship
exists between San Jacinto Methodist’s failure to meet the pertinent standard of care and the Carrs’
damages.

Accordingly, we hold that the trial court did not abuse its discretion in denying Methodist’s motion to
dismiss the Carrs’ health care liability claims.[1]

MEMORANDUM OPINION

This appeal arises from a medical malpractice claim brought by Appellees, Guy and Terri Carr,
against Appellant, San Jacinto Methodist Hospital (Methodist).  The trial court denied Methodist’s
motion to dismiss, which asserted that the Carrs failed to satisfy the requirements set forth in section
74.351 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code. Ann. §
74.351 (Vernon Supp. 2007).  In its sole issue, Methodist contends that the trial court abused its
discretion in ruling that the Carrs’ expert report complies with the statute.  We affirm.

Background

On January 2, 2005, Guy Carr arrived at Methodist, complaining of abdominal pain and nausea.  
While receiving treatment in the emergency room, the doctors diagnosed Carr, a diabetic, with
pancreatitis, and admitted him to the hospital under the care of Dr. Talosig.  On January 3, Carr
requested a transfer to St. Joseph Hospital.  Upon arriving at St. Joseph, the medical staff evaluated
Carr and found that he was seriously dehydrated and his blood glucose levels were dangerously
high.  Following the efforts at St. Joseph to bring Carr’s glucose levels under control and to provide
adequate hydration, Carr suffered cerebral edema, which caused permanent brain damage.

The Carrs sued Dr. Talosig and Methodist in December 2006, alleging negligence in the rendition of
healthcare services.  The Carrs alleged that Dr. Talosig and the nursing staff failed to adequately
monitor, assess, care for, treat and recognize Carr’s deteriorating condition, which ultimately caused
his injuries.

Carr filed expert reports from Dr. David Hyman and Dr. Brian Tulloch as required by section 74.351 of
the Texas Practice and Remedies Code.  See id.  Dr. Tulloch’s report reads in pertinent part:

It is difficult to point to a single issue that caused this poor man’s adverse outcome with long-standing
brain damage . . .

The events that resulted in such a poor outcome hence could with reasonable probability have
occurred as a result of him being allowed to become dehydrated by a period of inadequate insulin
administration resulted in rising blood sugar followed by inadequate intravenous rehydration since he
was NPO and hence unable to slake his developing thirst. . . .

How did this happen?  When the kidney is faced with a sugar greater than the renal threshold it
becomes unable to automatically regulate urine output to the state of hydration of the body.  For most
subjects the renal threshold for glucose is in the 180-200 mg/dl range, hence if the sugar is above
that level for any length of time fluid is continually lost thru the kidney by osmotic diuresis and unless it
is replaced by thirst being quenched the body becomes dehydrated.  A thirsty man would then need
to drink more to make up for fluid lost, but as Mr. Carr was being kept NPO to rest his inflamed
pancreas, he was unable to drink extra fluid to replace the excess body fluid lost thru uncontrolled
diureses.  Hence it was of especial importance for the nursing & medical staff covering San Jacinto
hospital room 330 to maintain adequate fluid balance, with careful replacement to match urine lost to
avoid dehydration.

A review of the San Jacinto records does not show either careful replacement of lost fluid, since it
seems not to have been carefully measured or recorded, nor is there a record of careful
administration of insulin to keep sugar below the renal threshold.

A watchful physician caring for a case of pancreatitis should be watching the laboratory values for
changes in sugar and for creatinine and electrolytes. . .

One must therefore consider the basis for Mr. Carr’s deterioration to have arrived when in the San
Jacinto Methodist he was allowed to progress on to develop high blood sugars by not receiving
adequate insulin, and to become hyperosmolar by his losing fluid thru the kidney that was not
replaced by adequate iv repletion during the hours while he was in bed 330.

Dr. Tulloch later supplemented his report by stating:

To clarify my comments . . . it would seem to me that [Carr’s] deterioration was not followed due to
lack of adequate monitoring and possibly also to lack of response to what developed as a period of
rapid deterioration [into] dehydration and diabetic ketoacidosis following his admission for pancreatitis.

The responsibility for the gathering of that data would in my opinion be that of the shift nurses
monitoring him at the times involved, and the medical decisions would be that of the physician
charged with his care, namely Dr. Pedro Talosig.

In his supplemental report, Dr. Hyman stated:

The breaches in the standard of care set forth by Nurse Brannan in her report were also, in
reasonable medical probability, a major cause of Mr. Carr’s injuries and resulting permanent brain
damage for the same reasons that are set forth in my February 19 report and the letter/report of Dr.
Brain R. Tulloch.

Based on my medical education, experience, and training; based on Mr. Carr’s medical chart at San
Jacinto Medical Hospital, based on Mr. Carr’s medical chart at St. Joseph’s hospital, and based upon
the detailed explanation provided by Dr. Brian R. Tulloch concerning what caused Mr. Carr’s injuries
and permanent brain damage, in reasonable medical probability, the breaches of the standard of care
by Dr. Talosig’s [sic] (as set forth in my February 19, 2007 report) and the breaches of the standard
of care by the San Jacinto Methodist Hospital nursing staff (as set forth in Nurse Sandra Brannon’s
report) medically caused Mr. Carr’s injuries and resulting permanent brain damage.

Carr also filed the expert report of Sandra Brannan, a registered nurse.  It reads in pertinent part:

I do not see that the nursing staff requested a nasogastric tube, reported changes in vital signs to the
physician, did not monitor fingerstick blood sugar and provide insulin coverage as ordered, and I see
no recording of ECG strip or oxygen saturation, no notification of abnormal laboratory findings, or
accurate I&O.

I am familiar with standards of care for a patient such as Mr. Guy Carr.  The items listed below are
breaches in the standard of care provided to Mr. Carr.  Those breaches would include, but are not
limited to:

Lack of frequent assessment, vital signs regularly recorded, and changes in vital signs reported to the
physician;

Record not reflecting adequate notification of the physician concerning changes in patient status;

Changes in condition/laboratory findings not reported in a timely manner to the physician;

Pain not assessed regularly and interventions not provided and recorded;

Blood sugars not monitored and insulin not provided as ordered (0800 blood 415-no insulin recorded
as given, 1630 FBS 412 no recorded coverage);

Oxygen saturation not monitored and recorded;

Nasogastric tube not placed and output not recorded;

Intake and output not monitored accurately and not recorded; and

Education not provided and recorded.

With reasonable medical probability, it is my opinion that the nursing staff at San Jacinto Methodist
Hospital and their actions caused or contributed to his negative outcome.

After receiving the supplemented reports, Methodist objected to their sufficiency.  Methodist then
moved to dismiss the Carrs’ suit, contending that the expert reports failed to comply with the
requirements of section 74.351.  See id.  Dr. Talosig moved to dismiss the suit against him as well,
which the trial court denied.  Dr. Talosig does not appeal the trial court’s ruling against him.  The trial
court denied Methodist’s motion to dismiss, and Methodist appealed.

Discussion

In its sole issue, Methodist contends that the trial court erred in its determination that the Carrs’ expert
reports complied with section 74.351 of the Civil Practice and Remedies Code.  Specifically, Methodist
asserts that the expert reports fail to identify adequately the standard of care or to describe the
causal relationship between Methodist’s alleged negligence and Carr’s injuries.  The Carrs respond
that Methodist waived any objection to their expert reports and that the trial court did not abuse its
discretion in concluding that the suit against Methodist may proceed.

Preservation of Error

The Carrs first contend that Methodist waived any objection to their expert reports by failing to object
within twenty-one days after receiving the reports.  Methodist did not object to the reports until it
received Dr. Hyman’s and Dr. Tulloch’s supplement to their reports.  Although Methodist did not object
to the initial expert reports, Methodist can object to the reports on appeal because the Carrs did not
raise the issue of waiver in their response to Methodist’s motion to dismiss.  As such, the issue was
not before the trial court when it made its decision, and we may not consider it on appeal.  Hansen v.
Starr, 123 S.W.3d 13, 18 (Tex. App.—Dallas 2003, pet. denied) (citing Thompson v. Haberman, 739 S.
W.2d 71, 72 (Tex. App.—San Antonio 1987, orig. proceeding).

Standard of Review

We review section 74.351 rulings under an abuse of discretion standard.  Am. Transitional Care Ctrs.
v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001)  (predecessor statute); Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion
if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.  See
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the 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.  Gray, 189 S.W.3d at 858.  However, “a trial court has no ‘discretion’ in determining
what the law is or in applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992).  

Section 73.541 of the Texas Practice and Remedies Code

Pursuant to section 74.351, medical malpractice plaintiffs must provide each defendant physician and
health care provider with an expert report.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).  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).  A
claimant may satisfy the requirements of an expert report by serving reports of separate experts as to
each issue.  See id. § 74.351(i).  A defendant may file an objection to the sufficiency of the report not
later than the 21st day after the date it was served.  Id. § 74.351(a).  A trial court shall grant a motion
challenging the adequacy of the expert report only if it appears to the court, after hearing, that the
report does not represent an objective good faith effort to comply with the statutory definition of an
expert report.  Id. § 74.351(l).

Although the report need not marshal all the plaintiff’s proof, it must include the expert’s opinions on
the three statutory elements—standard of care, breach, and causation.  See Palacios, 46 S.W.3d at
878–79.  In detailing these elements, the report must provide enough information to fulfill two
purposes if it is to construe a good faith effort.  Id. at 879.  First, the report must inform the defendant
of the specific conduct that the plaintiff has called into question.  Id. Second, the report must provide a
basis for the trial court to conclude that the claims have merit.  Id.  A report that merely states the
expert’s conclusions as to the standard of care, breach, and causation does not fulfill these two
purposes.  Id.  The expert must explain the basis for his statements and must link his conclusions to
the facts.  Bowie Mem’l Hosp., 79 S.W.3d at 52.  Furthermore, in assessing the report’s sufficiency,
the trial court may not draw any inferences and must instead rely exclusively on the information
contained within the report’s four corners.  See Palacios, 46 S.W.3d at 878.  A report that omits any of
the statutory requirements is not a good faith effort to comply with the Act.  Id. at 879.  A trial court
must dismiss a cause if it determines that the report does not represent a good faith effort to comply
with the statute’s requirements.  See Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003).

Nurse Brannan’s Report

Methodist contends that Nurse Brannan’s report inadequately describes the standard of care and
cannot be used to prove causation.  The Texas Civil Practice and Remedies Code states that “a
person may qualify as an expert witness on the issue of the causal relationship between the alleged
departure from accepted standards of care and the injury, harm, or damages claimed only if the
person is a physician.”  Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a).  A registered nurse is not a
physician.  See id. § 74.001 (23).  Consequently, Brannan’s report can be used to explain the
standard of care and any breach of the standard of care by a nurse but cannot be used as proof of
causation.  See id. §74.402(b).  

Brannan lists several ways in which she opines that Methodist breached the standard of care,
including the failure to monitor Carr’s blood sugar, to provide insulin as ordered by the physician, to
report findings to the physician, and to adequately monitor fluid intake and output for a known diabetic
who was not allowed to drink in order to rest his inflamed pancreas.  Rather than merely stating that
Methodist did not adequately monitor Carr, Brannan sets out the specific duties that the nursing staff
had and the way in which Methodist failed to complete them.  Cf. Gray, 189 S.W.3d at 859 (holding
report insufficient on standard of care because it contains only a general statement that appellees
failed to monitor appellant’s knee properly).  The trial court did not abuse its discretion in ruling that
the report adequately described the standard of care and its breach because the report sets out a
fair summary of “what care was expected but not given.”  See Palacios, 46 S.W.3d at 880.

Dr. Tulloch’s Report

Methodist further contends that Dr. Tulloch’s report does not satisfy the statutory requirements on the
issue of causation.  Dr. Tulloch’s report states that it was “of especial importance for the nursing and
medical staff covering San Jacinto room 330 to maintain adequate fluid balance, with careful
replacement to match urine lost to avoid dehydration.  A review of the San Jacinto records does not
show either careful replacement of lost fluid, since it seems not to have been carefully measured or
recorded, nor is there a record of careful administration of insulin to keep sugar below the renal
threshold.”  It further states that the events that resulted in such a poor outcome “could with
reasonable medical probability have occurred as a result of him being allowed to become dehydrated
by a period of inadequate insulin administration [sic] resulted in rising blood sugar followed by
inadequate intravenous rehydration since he was NPO and hence unable to slake his developing
thirst.”

Tulloch followed his initial report up by writing a supplemental letter, in which he stated that Carr’s
condition was a result of his care at Methodist, and his deterioration “was not followed due to lack of
adequate monitoring and possibly also to lack of response to what developed as a period of rapid
deterioration [into] dehydration and diabetic ketoacidosis.”  The letter continues by stating that “the
responsibility for the gathering of that data would in my opinion be that of the shift nurses monitoring
him at the times involved, and the medical decisions would be that of the physician charged with his
care.”  

Methodist contends that the report contains gaps that prevent it from being a “fair summary” because
it fails to explain how any act or omission by Methodist caused any injury to Carr.  We disagree.  
According to Nurse Brannan’s report, the nursing staff had the responsibility to monitor Carr’s blood
sugar and provide insulin, to monitor his intake and output, and to report timely any changes in his
condition to the physician but failed to do so.  According to Tulloch’s report, this failure led to Carr’s
deterioration.  When read together, Carr’s experts delineate how Methodist’s actions or omissions,
apart from the physician’s, caused Carr’s injuries.  Unlike in Bowie, upon which Methodist relies,
Tulloch’s report does not merely state that if Carr had been properly monitored, Carr would have had
the possibility of a better outcome.  See Bowie, 79 S.W.3d at 52–53.  The report specifically
addresses Tulloch’s opinion that Methodist’s failure to adequately monitor Carr’s fluid intake and
glucose levels and to provide insulin as ordered led to his dehydration and high blood sugar levels
and that those failures led to brain swelling as a complication from efforts to reverse his dehydrated
condition.  It thus adequately puts Methodist on notice of the specific conduct called into question.  
See Palacios, 46 S.W.3d at 879.  

We conclude that Dr. Tulloch’s report provides a fair summary of his opinion that a causal relationship
exists between San Jacinto Methodist’s failure to meet the pertinent standard of care and the Carrs’
damages.  Accordingly, we hold that the trial court did not abuse its discretion in denying Methodist’s
motion to dismiss the Carrs’ health care liability claims.[1]

Conclusion

We hold the trial court did not abuse its discretion in concluding that the Carrs’ expert reports satisfied
the requirements of section 74.351.  We therefore affirm the judgment of the trial court.

                                                   Jane Bland

                                                   Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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[1]           Because we hold that Nurse Brannan’s and Dr. Tulloch’s report adequately summarize the standard of care,
breach, and causation, we do not address Dr. Hyman’s report.