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concluding trial court did not abuse discretion in denying defendant's motion to dismiss survival claims regarding alleged negligence in failing to monitor skin condition, even though report was inadequate to support wrongful death claim
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No. 09-07-198 CV
Submitted on August 23, 2007.
Opinion Delivered September 13, 2007.
On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 06-09-08598 CV.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
This appeal involves the adequacy of an expert report in a healthcare liability claim. Billie L. Terrell, individually and on behalf of his deceased wife, Carolyn Terrell, sued Dr. Sunitha C. Alexander and others for alleged medical malpractice. In her motion to dismiss the suit, Alexander challenged the adequacy of Terrell's expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(l) (Vernon Supp. 2006). The trial court denied Alexander's dismissal motion, and Alexander filed this interlocutory appeal. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2006). We affirm in part and reverse in part.
Appellant does not challenge Terrell's right to represent the estate. Dr. Benjamin Agana and Healthsouth Rehabilitation Hospital were also defendants in the suit. In an interlocutory appeal filed with this Court, Dr. Agana challenged the trial court's order denying his motion to dismiss the claims against him. See Agana v. Terrell, No. 09-07-088 CV, 2007 WL 1793786 (Tex.App.-Beaumont June 21, 2007, no pet. h.). This Court issued an opinion finding the expert's report adequate as to Dr. Agana and affirmed the trial court's order. Id. at *1.
A plaintiff asserting a healthcare liability claim must submit an expert report to each healthcare provider and defendant physician. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006). The expert report must provide a fair summary of the expert's opinions, as of the date of the report, on the applicable standards of care, the manner in which the care rendered by the physician or healthcare 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) (Vernon Supp. 2006). The report must discuss the three elements with sufficient specificity in order to inform the defendant of the conduct the plaintiff has questioned and to provide a basis for the trial court to conclude the claims are meritorious. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). The report need not marshal all of the plaintiff's proof, but must include the expert's opinion on each of the statutory elements. Id. at 878. If a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant's individual acts and the injury. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(a), (r)(4), (6); Agana v. Terrell, No. 09-07-088 CV, 2007 WL 1793786, at *3 (Tex.App.-Beaumont June 21, 2007, no pet. h.); Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.). The trial court shall grant a motion challenging an expert report's adequacy "only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." § 74.351(l). The trial court limits its adequacy inquiry to the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002).
We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Palacios, 46 S.W.3d at 878. The 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., 79 S.W.3d at 52.
Plaintiff pled that the negligence of Dr. Alexander and the other defendants caused Carolyn Terrell's "multiple decubiti and ulcers" which were "significant contributing conditions to [her] death[.]" The plaintiff submitted an expert report through Dr. Aimee D. Garcia, a board-certified physician in geriatrics and internal medicine and a certified wound care specialist. The report makes no attempt to establish a causal relationship between the failure to monitor Carolyn's skin condition and nutritional status and her death. Dr. Alexander's motion to dismiss asserts the report contains no factual information linking her action or inaction to Carolyn's death. To the extent that plaintiff sues on a wrongful death claim and asserts that Alexander's negligence contributed to Carolyn's "overall decline" and death, the expert report is not adequate, and any wrongful death claim must be dismissed. In our companion opinion in this suit, this Court set out facts that Dr. Garcia stated in her report concerning the bedsores. See Agana, 2007 WL 1793786, at *1. The report describes Carolyn Terrell, a patient who was admitted to a rehabilitation hospital for the purpose of receiving "aggressive rehabilitation in an effort to make her stronger." The report names two physicians, Dr. Alexander and Dr. Agana, as being involved in Carolyn's care at the rehabilitation hospital. Her medical conditions included hypertension, diabetes mellitus, and small cell lung cancer with metastasis to her brain. She was admitted with a foley catheter and later described in the nurses' notes as being incontinent of bowel and bladder. The patient's skin was "noted to be intact" at the time of admission. Over the course of a few days, Carolyn developed stage 2, open, excoriated, and bleeding pressure sores on the buttocks, as well as pressure sores on the heels. The report notes that although excoriation of the buttocks was visible on April 2, no intervention was documented until April 6. The report further describes how the skin condition moved from `intact' upon admission to "redness on the buttocks and a shear wound and redness on the right heel" and "very red and skin broken — painful to touch" by April 6. At that point, Dr. Agana ordered a "low air loss mattress," a turning schedule, and topical medication. The skin deterioration continued. On April 17, 2006, the discharge date, the patient's buttocks were "noted to be `extremely excoriated due to yeast. Open, bleeding."' The nurses' notes describe Carolyn's pain as being on a scale of seven or eight out of ten, and ten out of ten.
Dr. Agana became aware of the breakdown on April 6, 2006. The report does not indicate when, if at all, Dr. Alexander observed the skin condition.
The report states that the applicable standard of care for Dr. Alexander and Dr. Agana was the proper monitoring of Carolyn's skin condition and her related nutritional status, and the failure to do so breached the care standard. See Agana, 2007 WL 1793786, at **5-6. The report not only explains the care standard, but also sets out the actions the physicians should have taken: both physicians should have performed and monitored Carolyn's skin as part of her daily care and should have ordered "appropriate laboratory analysis to address [her] nutritional state." Appropriate nutritional assessment would have included blood work to test levels of albumin and prealbumin. Although it appears blood was drawn on one occasion, the lab results were "never received, and never followed up on." Dr. Garcia stated, "Had [Carolyn's] attending physicians been monitoring her skin, they could have written orders to intervene sooner and prevented further breakdown of the patient's skin." The report also states the causation element: the failure to monitor Carolyn's skin condition and intervene sooner caused the skin deterioration, pressure ulcers, and accompanying pain and suffering that the nurses' notes describe as being on a scale of seven or eight out of ten and ten out of ten.
Alexander argues the report is not adequate because it does not set out separately the duties owed by each doctor or the standard of care applicable to that particular doctor. Instead, the report ascribes the same standard of care, breach, and causation to both physicians. Alexander contends the report assumes the standard of care is identical for both doctors and ignores the different roles played by attending physicians, consulting physicians, and the hospital nursing staff. She argues the report "fails to explain how [her] actions as an internal medicine physician, who was consulted to manage hypertension and diabetes, caused injury to Mrs. Terrell."
Alexander relies on Gray v. CHCH Bayshore, L, P., 189 S.W.3d 855 (Tex.App.-Houston [1st Dist.] 2006, no pet.). In Gray, the expert report stated, without further explanation, that a single standard of care applied to both the hospital and the anesthesiologist. Id. at 860. In Dr. Agana's appeal in this case, this Court discussed Gray and the alleged failure to set forth separate standards of care for Dr. Alexander and Doctor Agana. See Agana, 2007 WL 1793786, at *4. This Court stated, "Appellant cites no authorities that explicitly forbid an expert from applying the same standard of care to two physicians, when each is responsible for an overlapping aspect of a patient's care, and we are aware of none." Id. at *5.
Alexander also relies on our opinion in Talmore v. Baptist Hospitals of Southeast Texas, No. 09-06-024 CV, 2006 WL 2883124 (Tex.App.-Beaumont Oct. 12, 2006, no pet.). Talmore, a patient who had at least eight treating doctors, sued three of the specialist physicians and the hospital. Id. at 3. We noted that the expert report, which did not set out the standard of care for each specialty, should have included specific details about the responsibilities and alleged breaches of each physician treating Talmore. Id. This case is different. Dr. Garcia not only describes Dr. Alexander as the consulting internal medicine doctor on the case, but also as the physician "asked to manage the patient's overall medical conditions." The report states Dr. Alexander and Dr. Agana were both responsible for Carolyn's daily care, which included the duty to monitor her skin condition and nutritional status. Given Garcia's description of Alexander's role as overlapping that of Dr. Agana with respect to skin-condition monitoring as part of the daily management of Carolyn's overall medical condition, the trial court could reasonably conclude the report adequately set forth the standard of care, the breach, and the causation for Dr. Alexander.
With respect to the bedsores, performing daily skin examinations and monitoring the skin condition is stated to be the standard of care. The skin deterioration was noted in the patient's records; yet the physicians did not intervene with any treatment for several days. Garcia indicates this lack of skin monitoring and the failure to order appropriate lab tests to check nutritional status were breaches of the care standard. The report also sets out the causal relationship between the breach of the standard and Carolyn's injury. According to the report, failure to monitor the skin condition caused the bedsores and the accompanying pain and suffering.
Garcia's report adequately informs Dr. Alexander of the specific conduct Terrell has called into question, and provides a sufficient basis for the trial court to assess Terrell's claims regarding Alexander's failure to monitor and assess the skin condition. See Palacios, 46 S.W.3d at 879. The fact that the report does not set out a different standard of care for Dr. Alexander does not render the report inadequate under the circumstances. In this case, the doctors are both asserted to be "attending physicians" involved in the management of Carolyn Terrell's daily care.
The trial court did not abuse its discretion in denying Dr. Alexander's motion to dismiss Terrell's survival claims regarding the alleged negligence in failing to monitor skin condition. Because the report is inadequate to support a wrongful death cause of action, that claim is dismissed.
AFFIRMED IN PART, AND REVERSED AND DISMISSED IN PART.