Abilene Reg'l Med. Ctr. v. Allen

Decision Date29 November 2012
Docket NumberNo. 11–11–00097–CV.,11–11–00097–CV.
Citation387 S.W.3d 914
PartiesABILENE REGIONAL MEDICAL CENTER, Debbie Marsh, April Nichols, and Tarena Sisk, Appellants v. Adanelica ALLEN and David Allen, Individually and as Next Friends of Madison Allen, Appellees.
CourtTexas Court of Appeals


Jeffrey F. Wood, Christopher W. Carr, Jill Masso Blanton, Jones Carr McGoldrick, L.L.P., Dallas, for appellants.

Frederick Dunbar, Jefferey B. Galbreath, Galbreath Law Firm, Abilene, Philip G. Bernal, R. Scott Westlund, Douglas D. Ketterman, Ketterman Rowland & Westlund, San Antonio, for appellees.

Panel consists of: WRIGHT, C.J., McCALL, J., and GRAY, C.J., 10th Court of Appeals.*


TERRY McCALL, Justice.

This interlocutory appeal involves a health care liability claim brought by appellees, Adanelica and David Allen, individually and as next friends of Madison Allen, their two-year-old daughter, against appellants, Abilene Regional Medical Center and nurses Debbie Marsh, April Nichols, and Tarena Sisk. Appellants appeal the trial court's order denying their motion to dismiss. SeeTex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). We affirm in part and reverse and remand in part.

Background Facts

Appellees' health care liability claim arises from the events occurring prior to the birth of Madison with respect to Adanelica's course of labor at Abilene Regional. Appellees allege in their pleadings that Marsh, Nichols, and Sisk were labor and delivery nurses at Abilene Regional who cared for Adanelica when she presented to the hospital for induction of labor on August 18, 2008. Appellees' brought suit against Marsh, Nichols, and Sisk, alleging that they were negligent in their care and treatment of Adanelica. Appellees contend that the nurses failed to recognize signs and symptoms indicating that Madison was in respiratory distress. They allege that Madison suffered permanent brain damage as a result because the attending physician, Dr. Stanley, was not timely advised of her diminishing condition so that he could implement appropriate intervention.1 Appellees also sued Abilene Regional, asserting that it is vicariously liable for the alleged negligence of Marsh, Nichols, and Sisk. Appellees additionally asserted that Abilene Regional is directly liable to them “for not ensuring that it staffed the labor and delivery unit with nurses who [sic] sufficient experience for this highly specialized care.”

Appellees attached the expert reports of Dr. Ezell Autrey, M.D.; Joan Dauphinee, R.N.; and Dr. Robert A. Zimmerman, M.D. to their original petition in order to comply with the expert report requirements of Section 74.351(a). Appellants filed an objection to all three of the initial reports, which the trial court subsequently overruled in a written order. Appellees later filed a “Life Care Plan” prepared by Dr. Joe G. Gonzales, M.D., which appellants also challenged.2 Appellants subsequently filed a motion to dismiss the action based upon the sufficiency of the expert reports. This appeal arises from the trial court's denial of appellants' motion to dismiss.

Standard of Review

We review a trial court's decision to deny a motion to dismiss under Section 74.351(b) for an abuse of discretion. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Hendrick Med. Ctr. v. Conger, 298 S.W.3d 784, 787 (Tex.App.-Eastland 2009, no pet.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted in an unreasonable or arbitrary manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).

A trial court must “grant a motion challenging the adequacy of an 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 definition of an expert report.” Section 74.351( l ). The statutory definition requires that the expert report provide a fair summary of the expert's opinion regarding the applicable standard of care, the manner in which the care rendered failed to meet that standard, and the causalrelationship between the failure to meet the standard of care and the injury suffered. Id. § 74.351(r)(6). A report must be served as to each physician or health care provider against whom a liability claim is asserted. Id. § 74.351(a). However, a plaintiff may serve multiple reports by separate experts regarding different defendants, different claims, and different issues, as long as the reports, read together, provide a fair summary of the standard of care, breach, and causation. Id. § 74.351(i), (r)(6); see also Packard v. Guerra, 252 S.W.3d 511, 526 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) ([S]ection 74.351(i) does not require that a single expert address all liability and causation issues with respect to a defendant.”); Martin v. Abilene Reg'l Med. Ctr., No. 11–04–00303–CV, 2006 WL 241509, at *4 (Tex.App.-Eastland Feb. 2, 2006, no pet.) (mem. op.) (Section 74.351(i) expressly provides that a claimant may satisfy any requirement of the Act by providing reports of separate experts.”).

A “good faith effort” under Section 74.351( l ) “simply means a report that does not contain a material deficiency.” Samlowski v. Wooten, 332 S.W.3d 404, 409–10 (Tex.2011). If the report fulfills its two purposes, it represents a good faith effort. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001) (“In setting out the expert's opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort.”). The two purposes of the expert report are to inform the defendant of the specific conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex.2008) (citing Palacios, 46 S.W.3d at 879). “In contrast, a report that omits an element or states the expert's opinions in conclusory form is not a good faith effort.” Samlowski, 332 S.W.3d at 410 (citing Palacios, 46 S.W.3d at 879).


Appellants present three issues on appeal. In their first issue, they argue that the trial court abused its discretion when it determined that appellees filed sufficient expert reports based upon appellants' assertion that the reports did not satisfy the causal relationship requirement. SeeSection 74.351(r)(6). Appellants assert in their second issue that the expert reports failed to address appellees' direct liability claims against Abilene Regional. In their third issue, appellants contend that the expert reports are deficient because they failed to distinguish the alleged acts and omissions of each appellant separately.

Expert Reports
A. Dr. Autrey's Report

Appellees primarily rely upon the report of Dr. Autrey to satisfy the expert report requirement. Dr. Autrey stated in his report that he is a board-certified obstetrician/gynecologist that has been practicing in the field for the past twenty-six years. He stated that he has managed patients that have been given Cytotec for cervical ripening followed by Pitocin for induction of labor. He further stated that he has attended “hundreds of deliveries” and that he is “familiar with the biological mechanism by which a fetus suffers brain injury when deprived of oxygen.” Dr. Autrey also stated that he is aware of what a labor and delivery nurse should do when she has a patient with Cytotec for cervical ripening, Pitocin induction, and fetal distress.

Dr. Autrey initially detailed the treatment provided to Adanelica in the labor and delivery unit of Abilene Regional. She arrived at 10:10 p.m. on August 18, 2008, for the induction of labor. Dr. Stanley placed her initial administration of Cytotec at 10:48 p.m. Dr. Autrey stated that Sisk performed all subsequent Cytotec administrations. Dr. Autrey noted that Dr. Stanley ruptured Adanelica's membranes at 8:28 a.m. the next morning. Marsh started IV Pitocin at 8:40 a.m. and assumed care of Adanelica after Sisk. Marsh subsequently increased the administration of Pitocin. Dr. Autrey noted that Nichols decreased the administration of Pitocin at 12:23 p.m. due to signs of fetal distress. Marsh subsequently increased the administration of Pitocin until 2:38 p.m. when it was discontinued due to ‘loss of capture’ and variable decelerations.” Marsh restarted Pitocin at 3:23 p.m.

Adanelica progressed to complete dilation at 4:20 p.m., after which time Marsh increased the administration of Pitocin. At 5:13 p.m., Dr. Stanley discussed a Caesarean section with Adanelica due to fetal distress. Madison was delivered at 5:27 p.m. with a “nuchal cord times one.” 3 Dr. Autrey detailed that Madison took her first spontaneous breath at around seven minutes and that she had seizures and apneic periods soon after arrival.

Under a section of his report labeled TARENA SISK, R.N., DEBBIE MARSH, R.N. AND APRIL NICHOLS, R.N.,” Dr. Autrey opined that the applicable standard of care for labor and delivery nurses managing a patient receiving Cytotec for cervical ripening followed by IV Pitocin for induction of labor requires them to do as follows: (1) maintain a readable tracing of the fetal heart tones and contraction pattern; (2) not start, increase, or continue Pitocin on a patient with a non-reassuring fetal monitor tracing, no uterine contraction monitoring, or uterine hyperstimulation; (3) notify the physician if there is a non-reassuring fetal heart tones tracing; (4) discontinue Pitocin when there is a non-reassuring fetal heart tones tracing; and (5) initiate intrauterine resuscitation when a baby has non-reassuring fetal heart tones. Dr. Autrey further opined that the nurses breached each of the applicable standards of care that he listed.

Dr. Autrey then detailed instances when the various events he cited occurred. He noted that a readable tracing of uterine contractions was not...

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