Jacksboro Nursing Operations, LLC v. Norman

Decision Date15 April 2021
Docket NumberNo. 02-20-00262-CV,02-20-00262-CV
PartiesJACKSBORO NURSING OPERATIONS, LLC, Appellant v. NADINE NORMAN, INDIVIDUALLY; AS THE REPRESENTATIVE OF THE ESTATE OF ASHLEY NORMAN, DECEASED; AS NEXT FRIEND OF E.N. AND J.L., MINORS; AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES, Appellee
CourtTexas Court of Appeals

On Appeal from the 271st District Court Jack County, Texas

Trial Court No. 19-10-120

Before Birdwell, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction

This is an appeal from the trial court's denial of a motion to dismiss a health care liability claim brought by Appellee Nadine Norman, individually; as the representative of the estate of Ashley Norman, deceased; as next friend of E.N. and J.L., minors; and on behalf of all wrongful-death beneficiaries (collectively Plaintiff). Appellant Jacksboro Nursing Operations, LLC d/b/a Faith Community Nursing & Rehabilitation (FCNR) raises five issues—all based on the contention that Plaintiff's failure to file an expert report meeting the requirements of the Texas Medical Liability Act (MLA) requires dismissal of the claim. We reject FCNR's contention that the expert authoring the report was unqualified to do so. We also reject FCNR's contentions (1) that the claim should be dismissed because the expert failed to state that there was a causal link between the injury he claimed that FCNR caused and the patient's death and (2) that the report failed to support a theory that FCNR was vicariously liable for the actions of its employees. An expert report need not substantiate every theory of liability that underlies a health care claim, and at this point, it is premature to hold that deficiencies in the report might warrant dismissal of the claim. We do, however, hold that the expert's report is deficient in one regard: it fails to adequately state what actions FCNR should have taken that would have avoided a breach of the standard of care it owed directly to Ashley. The remedy for this deficiency is not dismissal of the claim. Instead, we reverse the trial court's orderdenying FCNR's motion to dismiss and remand this case to the trial court to determine whether a thirty-day extension should be granted to correct the deficiency.

II. Factual and Procedural Background

Plaintiff filed suit against two Doe Defendants and FCNR.1 Without distinguishing whether the reference to "Defendants" is to the Doe Defendants, FCNR, or both, the "Facts" alleged in the petition are as follows:

This lawsuit arises from the negligent care Ashley Norman received as a patient of Defendants. On or about October 15, 2018, Ashley Norman was admitted into Defendants' facility. It was Defendants' duty to provide Ashley with a level of reasonable care and to protect her by providing a safe environment. Instead, the care provided by Defendants fell far below any acceptable standard of care, and Ashley, a beloved mother and daughter, suffered severe personal injuries due to the lack of care provided by Defendants. Defendants' treatment of Ms. Norman was continuously tortious and resulted in her tragic and untimely death.

The petition continues that the Doe Defendants allegedly raped Ashley while she was a patient at FCNR. Based on this act, Plaintiff's petition alleged causes of action against all the Defendants for sexual assault, false imprisonment, assault and battery, offensive physical contact, intentional infliction of emotional distress, and gross negligence. Against FCNR, the petition alleged causes of action for negligence, negligent hiring, negligent training, negligent supervision, and negligent retention. The petition sought survival damages, which included Ashley's past physical pain and suffering and mental anguish. Plaintiff, on her own behalf and on behalf of theminors for whom she acted as next friend, sought various forms of wrongful-death damages, such as pecuniary loss, loss of consortium, and mental anguish.

The parties entered into a Rule 11 agreement extending the time for Plaintiff to provide an expert report pursuant to Texas Civil Practice and Remedies Code Section 74.351. Plaintiff timely served an expert report authored by Dr. David A. Smith and Dr. Smith's curriculum vitae (CV).

In the discussion that follows, we will detail the provisions of Dr. Smith's report and his purported qualifications to author an expert report. But, in summary, the report claims that Ashley was thirty years of age and suffered from Multiple Sclerosis. At the time she was a patient at FCNR, she provided a urine sample that tested negative for any sexually transmitted disease. A test administered approximately one month after Ashley's admission and after she had been transferred to another facility and then transferred back to FCNR stated that she had contracted trichomonas. Dr. Smith described trichomonas as a sexually transmitted disease. Dr. Smith reported that notations in Ashley's medical records that he reviewed indicated "that the trichomonas was thought to be due to sexual contact that [had] occurred at FCNR."

Dr. Smith's report asserted that both Ashley's medical records that he reviewed and Ashley's statement to her mother (Plaintiff) showed that Ashley had been sexually assaulted while she was a patient at FCNR. The report outlined the standard of care that Dr. Smith opined was due a patient such as Ashley. The report also generallyoutlined what Dr. Smith viewed as numerous breaches of the standard of care by the Doe Defendants who assaulted Ashley and breaches by FCNR's failure to investigate Ashley's outcries, to keep her safe, and to supervise its employees.

FCNR filed objections to Dr. Smith's report that challenged his qualifications to opine on the standard of care due Ashley and the alleged breaches of the standard of care by FCNR. FCNR also objected that the report failed to adequately address causation and injury and was conclusory in its description of how FCNR had breached the standard of care. The trial court overruled FCNR's objections. When FCNR filed a notice of appeal from the order denying its objections, we sent the parties a letter questioning whether an order denying objections made to an expert report but not overruling a motion to dismiss was an appealable interlocutory order.

FCNR then renewed the process of challenging Dr. Smith's report in the trial court by filing a new pleading titled "Defendant's Motion to Dismiss Under Section 74.351." This motion incorporated the prior pleadings that had been filed at the time that FCNR made its original objections. Plaintiff filed a response and an amended response to the motion to dismiss. The trial court denied the motion to dismiss.

III. Analysis

A. We set forth the expert-report requirement that applies to a health care liability claimant, the substance that an expert report must contain, and the standard and scope of review that we apply to determine an expert report's sufficiency.

"Chapter 74 of the Civil Practice and Remedies Code, also known as the [MLA], requires health care liability claimants to serve an expert report upon each defendant not later than 120 days after that defendant's answer is filed." Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)). The report requirement functions "to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims." Id.

The MLA requires an expert report to

provide[] 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 . . . health care provider failed to meet the standards[;] and the causal relationship between that failure and the injury, harm, or damages claimed.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).

The test applied by the trial court in determining the sufficiency of the report is one of objective good faith. Id. § 74.351(l) ("A court shall 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 in Subsection (r)(6)."). The Texas Supreme Court hasheld that a good-faith effort occurs when a report "(1) inform[s] the defendant of the specific conduct called into question and (2) provid[es] a basis for the trial court to conclude the claims have merit." Abshire 563 S.W.3d at 223 (quoting Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018)).

Various general principles guide the determination of whether an expert report is sufficient. "A report 'need not marshal all the claimant's proof,' but 'a report that merely states the expert's conclusions about the standard of care, breach, and causation' is insufficient." Id. (quoting Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001)). Nor does a report have to meet the standards of summary-judgment evidence. Miller v. JSC Lake Highlands Operations, 536 S.W.3d 510, 517 (Tex. 2017) ("We remain mindful that an 'adequate' expert report 'does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.'" (quoting Scoresby v. Santillan, 346 S.W.3d 546, 556 n.60 (Tex. 2011))). Also, an expert report need not convince the reader that its conclusions are believable and reasonable. See Abshire, 563 S.W.3d at 226 (stating that at the "preliminary [expert-report] stage, whether th[e] standards [referenced in the report] appear reasonable is not relevant to the analysis of whether the expert's opinion constitutes a good-faith effort" (quoting Miller, 536 S.W.3d at 516-17)).

The following statutory provisions guide the determination of whether the expert making the report is qualified and whether the report adequately describes the applicable standard of care and explains causation:

• The MLA
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