Gracy Woods I Nursing Home v. Mahan

• Decision Date: 04 May 2017
• Docket Number: NO. 03–15–00596–CV,03–15–00596–CV
• Citation: 520 S.W.3d 171
• Parties: GRACY WOODS I NURSING HOME, Appellant v. Martha MAHAN, as the Representative of the Estate of Mary Rivera, Appellee
• Court: Texas Court of Appeals

520 S.W.3d 171

GRACY WOODS I NURSING HOME, Appellant

v.Martha MAHAN, as the Representative of the Estate of Mary Rivera, Appellee

NO. 03–15–00596–CV

Court of Appeals of Texas, Austin.

Filed: May 4, 2017

Rehearing Overruled May 31, 2017

Emily J. Davenport, Reed, Claymon, Meeker & Hargett, P.C., Austin, TX, for Appellant.

John H. Modesett III, Modesett Williams PLLC, Austin, TX, for Appellee.

Before Chief Justice Rose, Justices Pemberton and Bourland

OPINION

Bob Pemberton, Justice

This is an appeal taken by a health care provider, a nursing home, to challenge the district court's denial of its motion to dismiss a "health care liability claim" based on the claimant's asserted noncompliance with the Medical Liability Act's expert-report requirement. The pivotal issue in the appeal is whether the claimant, who alleges that her late mother was sexually assaulted in the nursing home due to the facility's negligence, was required to present an expert report that would establish the alleged assault in fact occurred, through an expert qualified to diagnose the occurrence of rape or sexual assault, or merely a causal linkage between the facility's asserted breach of the duty of care in regard to patient safety and the type of harm and injury the claimant alleges. Concluding the latter, and that the nursing home has not otherwise demonstrated any abuse of discretion in the district court's ruling, we will affirm.

BACKGROUND

The claimant, Martha Mahan, is the daughter of the late Mary Rivera, who in her waning years had severe dementia and resided in a nursing home operated by the appellant, Gracy Woods I Nursing Home. Mahan alleges that during a visit to her mother at Gracy Woods one morning, Mahan "noticed signs of a struggle in her mother's room and found bloody tissue in the bathroom trashcan," leading to a "rape examination" at a local emergency room that, according to Mahan, confirmed that her mother had been sexually assaulted. Mahan attributes this alleged assault to Gracy Woods's negligence in failing to adequately protect her mother, especially vulnerable given her cognitive state, from being victimized in this way. Mahan further claims that she had actually warned Gracy Woods staff previously "that her mother was receiving inappropriate advances from other much younger residents." Gracy Woods denies these allegations, or even that the sexual assault ever occurred.

The parties do not dispute that Mahan's claim is a "health care liability claim" (HCLC) under the Medical Liability Act (MLA).¹ Thus, in an attempt to comply with the MLA's expert-report requirement,² Mahan served Gracy Woods with a report from Loren G. Lipson, M.D., as well as a copy of Dr. Lipson's curriculum vitae (CV). In his report, Dr. Lipson opined that Gracy Woods breached the applicable standard of care by not providing twenty-four-hour-a-day skilled nursing care and by not preventing access to Rivera's room by unsupervised males. Dr. Lipson further opined that Gracy Woods's breach resulted in the sexual assault of Rivera, and there was "no evidence" that Rivera's injuries were self-inflicted or inflicted by someone outside Gracy Woods.

Gracy Woods objected to Dr. Lipson's qualifications and to the sufficiency of his report. Subsequently, after the MLA's expert-report deadline had run, Gracy Woods moved to dismiss Mahan's suit with prejudice and for attorney's fees.³ It argued that Dr. Lipson was not qualified to offer expert opinions regarding causation or liability, and his report lacked the factual bases required by the MLA. Following a hearing at which the parties presented argument, the district court denied the motion to dismiss. This interlocutory appeal followed.⁴

ANALYSIS

We review a trial court's determination regarding the sufficiency of an expert report under an overarching abuse-of-discretion standard.⁵ We "defer to the trial court's factual determinations if they are supported by evidence, but review its legal determinations de novo."⁶ A trial court abuses its discretion if it acts "without reference to guiding rules or principles."⁷

The MLA defines an "[e]xpert 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.⁸

"A court shall grant a motion challenging the adequacy of an expert report only if it appears ... that the report does not represent an objective good faith effort to comply with the definition of an expert report."⁹ To constitute a " ‘good-faith effort,’ " the report must "provide[ ] information sufficient to (1) ‘inform the defendant of the specific conduct the plaintiff has called into question,’ and (2) ‘provide a basis for the trial court to conclude that the claims have merit.’ "¹⁰ We are limited to "the four corners of the expert report, which need not ‘marshal all the plaintiff's proof’ but must include the expert's opinion on each of the three main elements: standard of care, breach, and causation."¹¹ In sum, "[n]o particular words or formality are required, but bare conclusions will not suffice. The report must address all the elements, and omissions may not be supplied by inference."¹²

Qualifications

Gracy Woods contends that Mahan failed to meet the statutory requirements of an "expert report" because Dr. Lipson's report does not show he is an "expert" qualified to testify with respect to the opinions in his report regarding causation and the applicable standards of care.¹³ An expert's qualifications must appear in his report and CV and "cannot be inferred."¹⁴ Our analysis is limited to the four corners of the report and the CV.¹⁵

Dr. Lipson's report and CV

Dr. Lipson's qualifications are set forth in his report and in his 44–page CV, which is attached to the report.¹⁶ These documents indicate that Dr. Lipson is a physician trained in geriatric medicine¹⁷ and licensed by the State of California. He is board certified in internal medicine¹⁸ and in "quality assurance and utilization review."¹⁹ He was previously board certified in geriatric medicine (though this certification has apparently lapsed), and he holds a "Certificate of Experience" in geriatric medicine.²⁰ Dr. Lipson has served for many years on the faculty of the USC School of Medicine, including as an Associate Professor of Medicine (Division of Geriatric Medicine, 1984–2006), as the Chief of the Division of Geriatric Medicine (1984–2005), and more recently, as a Professor Emeritus of Medicine (2006–present).²¹ He was the Senior Staff Physician in charge of geriatric programs at the Los Angeles County/USC Medical Center (1985–2004), and the Chief of Geriatric Medicine at the USC University Hospital (1991–2004). He also served as the Physician Advisor to USC University Hospital in "utilization management and quality assurance."²² Moreover, he has received academic appointments from other universities and hospitals, including from the University of Alaska, where he has served since 2006 as an Affiliate Professor,²³ a Faculty Consultant in Geriatrics, and a Co–Director in Geriatric Education, and since 2005 as the Medical Director of the Alaska Geriatric Education Center.

Dr. Lipson is a consultant on long-term care, geriatric medicine and elder abuse to the United States Department of Justice (2006–present), the United States Department of Health and Human Services (2006–present), Office of the Inspector General, and to the states of California (2000–present)²⁴ and New Mexico (2003–present).²⁵ His CV lists nearly 200 lectures (selected from over 3,500 lectures given), including lectures related to geriatrics, long-term care, and elder abuse.²⁶ His CV also lists his "[r]esearch [i]nterests" as including "[s]tudies in elder abuse" and his "[r]esearch in [p]rogress" as including "[s]tudies on the prevention and early detection of elder abuse."²⁷

Dr. Lipson's qualifications relating to "causation"

Dr. Lipson's report opines that Rivera was sexually assaulted, and that there is "no evidence" that her injuries were self-inflicted or inflicted by someone outside Gracy Woods. Gracy Woods contends that Dr. Lipson is not qualified to offer these "[c]ausation [o]pinions, [p]articularly [t]hat a [s]exual [a]ssault [o]ccurred,"²⁸ because he has no experience regarding the diagnosis or treatment of sexual assault, nor the diagnosis or treatment of the female genitalia. Mahan counters that no such expert testimony is required here (though Dr. Lipson endeavored to cover these issues in his report), citing UHS of Timberlawn, Inc. v. S.B. ex rel. A.B.²⁹

The plaintiff in Timberlawn alleged that, while a patient in a psychiatric treatment facility (Timberlawn), she was raped by a fellow patient.³⁰ The plaintiff claimed that Timberlawn's negligence proximately caused her injuries.³¹ Timberlawn argued that the report of the plaintiff's expert was deficient because "[he] did not opine, nor did he show he was qualified to opine, as to whether [the plaintiff] had been raped."³² "[T]he premise of Timberlawn's arguments" was that "the report of a qualified expert opining that [the plaintiff] was actually raped" was necessary to satisfy the statutory requirement that an expert report "identify the alleged causal relationship" between Timeberlawn's alleged breach and the plaintiff's alleged injuries.³³ Our sister court of appeals rejected this premise.³⁴

The court in Timberlawn observed that the alleged "injury" in some healthcare liability claims "flow[s] from the existence of a medical condition that itself resulted from" (or was exacerbated by) the defendant's negligence.³⁵ "In such cases, identifying the causal relationship" may require expert testimony as to how the breach of the applicable standard of care gave rise to (or exacerbated) the medical condition.³⁶ In contrast, "[r...