Baty v. Olga Futrell, Crna, & Complete Anesthesia Care, P.C.

• Decision Date: 02 February 2018
• Docket Number: No. 16-0164,16-0164
• Citation: 543 S.W.3d 689
• Parties: Barbara BATY, Petitioner, v. Olga FUTRELL, CRNA, and Complete Anesthesia Care, P.C., Respondents
• Court: Texas Supreme Court

543 S.W.3d 689

Barbara BATY, Petitioner,

v.Olga FUTRELL, CRNA, and Complete Anesthesia Care, P.C., Respondents

No. 16-0164

Supreme Court of Texas.

Argued October 11, 2017

OPINION DELIVERED: February 2, 2018

Rehearing Denied May 4, 2018

Grant D. Blaies, Wesley M. Hightower, Wesley Trevor Myers, Blaies & Hightower, L.L.P., Fort Worth, for Petitioner.

Michelle E. Robberson, Cooper & Scully, P.C., Dallas, Brett David Timmons, Law Offices of Brian J. Judis, Dallas, Winston L. Borum, Borum & Hancock, LLP, Fort Worth, for Respondents.

Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, Justice Boyd, and Justice Devine joined.

The issue in this case, which involves medical-malpractice claims against a certified registered nurse anesthetist and his employer relating to the nurse’s administration of anesthesia before cataract surgery, is the sufficiency of the plaintiff’s expert report under the Texas Medical Liability Act. The trial court and court of appeals concluded the report was deficient, resulting in the claims' dismissal. We disagree and reverse the court of appeals' judgment.

I. Background

Barbara Baty underwent cataract surgery on her left eye. Certified registered nurse anesthetist (CRNA) Olga Futrell administered the anesthesia for the procedure by means of a retrobulbar block, which involves using a needle to inject anesthetic into the space behind the globe of the eye. Baty alleges that, during this process, Futrell inserted the needle into Baty’s left optic nerve, causing permanent nerve damage and vision loss in that eye.

Baty sued Futrell and his employer, Complete Anesthesia Care, P.C., for negligence and vicarious liability, respectively. Baty served an expert report prepared by Dr. Steven Chalfin in support of her claims. The defendants filed objections to the report, and the trial court entered an agreed order finding the report deficient and granting Baty an extension of time to cure it. Baty then served Dr. Chalfin’s amended report, which states in relevant part:

Dr. [Richard] Kemp performed phacoemulsificationcataract extraction, left eye, with implantation of an intraocular lens.... The surgery was performed under retrobulbar anesthesia administered by Olga Futrell, CRNA. Of note, the initial block attempt produced inadequate akinesia and anesthesia, so a second retrobulbar block attempt was performed. This is significant because complications such as globe penetration and optic nerve injury are more common when blocks require augmentation (additional needle sticks). This is due to the fact that the initial injection volume can distort the anatomy of the orbital structures, and lead to injury by the needle on the subsequent attempt. For this reason, many Ophthalmic surgeons augment an inadequate block by using a blunt cannula inserted via a conjunctival incision, rather than a needle.

....

... [A] clinical exam and the imaging studies, done in the immediate postoperative period, showed a completely normal retina and optic nerve head. This absolutely rules out any of the other subsequently postulated causes of poor vision such as a cilioretinal artery occlusion [or] anterior ischemic optic neuropathy....

....

In summary, the history, clinical findings, and temporal course in Mrs. Baty’s case indicate that she suffered an injury to the left optic nerve during the retrobulbar block administered by Olga Futrell, CRNA. While several other tentative diagnoses were raised by physicians who saw the patient in consultation, these diagnoses were ruled out by the clinical examination or ancillary studies....

....

STANDARD OF CARE

In evaluating and providing medical care for a patient such as Mrs. Baty, the standard of care for an ordinarily prudent practitioner such as a [sic] MD or CRNA requires:

1. Adequate preoperative assessment of the patient;

2. Adequate communication with the patient and/or the patient’s family;

3. Performance of only procedures for which adequate training and level of competence has been achieved;

4. Performance of such procedures at the level of competence and skill required to minimize risk to the patient;

5. In the case of retrobulbar anesthetic blocks, administering the block in the proper manner to preclude injuring the delicate structures of the orbit, including the globe and optic nerve.

BREACH OF STANDARD OF CARE

In this case, Olga Futrell, CRNA breached the standard of care and was negligent in the following ways:

1. Failing to apply the required level of training and competence, based on sound anatomical principles, in the techniques of regional ophthalmic anesthesia including retrobulbar block ;

2. Failing to ensure that the retrobulbar blockanesthesia was performed on Mrs. Baty with sufficient competence and skill to avoid damaging her optic nerve;

3. Irreparably damaging Mrs. Baty’s left optic nerve during the administration of the retrobulbar block by sticking it with the retrobulbar needle.

It is my opinion that Olga Futrell, CRNA failed to meet the standard of care and that the above mentioned omissions and failures constitute substandard and negligent medical care.

CAUSATION

It is also my opinion that the negligent and substandard medical care mentioned above contributed to the injury, loss of vision, and requirement for additional follow up medical care for Mrs. Baty.

This negligence was a proximate cause of Mrs. Baty’s injuries as follows:

1. Injury to the left optic nerve during the retrobulbar block by sticking it with the retrobulbar needle;

2. Permanent loss of visual acuity in the left eye;3. Permanent central scotoma in the left eye;

4. Permanent loss of stereopsis (fine depth perception)[;]

5. Requirement for additional ophthalmic medical care, beyond the routine postoperative course of cataract surgery.

In my opinion, the patient’s prognosis is as follows: It is certain to a reasonable medical probability that Mrs. Baty will never achieve the potential visual and functional improvement offered by uncomplicated cataract extraction.

The outcome should have been different for the following reasons: (1) the patient underwent successful cataract surgery in the right eye, by the same surgeon, in 2009. (2) Had appropriate care and skill been used during the retrobulbar block, the patient would not have suffered injury to her optic nerve. Absent this injury, the surgery would have had a successful outcome.

(Internal citations omitted).

The defendants objected to this report as well and moved to dismiss Baty’s claims. The trial court granted both defendants' motions to dismiss, finding the report "deficient with respect to the elements of standards of care, breach of standards of care, and causation." A divided court of appeals affirmed, holding the report is inadequate as to the standard-of-care element because it is silent as to "what an ordinarily prudent CRNA should have done in this instance" and is therefore conclusory. 543 S.W.3d 269, 275, 2015 WL 7443677 (Tex. App.—Waco 2015) (mem. op.) (emphasis omitted). We granted Baty’s petition for review.

II. Discussion

A. Statutory Framework

In reviewing a medical expert report’s sufficiency, we begin with a discussion of the Texas Medical Liability Act’s pertinent provisions and our decision in American Transitional Care Centers of Texas, Inc. v. Palacios , 46 S.W.3d 873 (Tex. 2001). The Act requires a claimant to serve an expert report early in the proceedings on each party against whom a health care liability claim is asserted. TEX. CIV. PRAC. & REM. CODE § 74.351(a).¹ We have explained that "eliciting an expert’s opinions early in the litigation [is] an obvious place to start in attempting to reduce frivolous lawsuits." Palacios , 46 S.W.3d at 877 ; see also Certified EMS, Inc. v. Potts , 392 S.W.3d 625, 631 (Tex. 2013) ("[T]he purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits." (citation and internal quotation marks omitted)).

In line with that purpose, if the claimant fails to timely serve an expert report, then on the affected health care provider’s motion the trial court must dismiss the pertinent health care liability claim with prejudice and award attorney’s fees. TEX. CIV. PRAC. & REM. CODE § 74.351(b).² However, if the motion challenges the adequacy of an otherwise timely report, the court may grant the motion "only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the [Act’s] definition of an expert report." Id. § 74.351(l). In turn, the Act defines "expert report" as

a written report by an expert^{[3 ]} 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).

In Palacios , we elaborated on the standard governing whether a report qualifies as a good-faith effort to comply with the statutory requirements. 46 S.W.3d at 875. The claims against the hospital in that case arose after a patient, who had severe brain damage and had been prescribed bed restraints, fell from his hospital bed. Id. at 876. The expert report cited the nursing notes, which documented that the patient’s restraints were on ten minutes before the fall and that he was found on the floor with his restraints on but not tied to the bed. Id. at 879. The report stated that the patient "had a habit of trying to undo his restraints and precautions to prevent his fall were not properly utilized." Id. The trial court concluded that the report was insufficient and granted the hospital’s motion to dismiss. Id. at 876.

Addressing the proper standard of review, we concluded that a trial court’s decision to dismiss a case based on an inadequate expert report is reviewed under an abuse-of-discretion standard. Id...