MSHC the Waterton st Cowhorn Creek, LLC v. Miller

• Decision Date: 14 December 2012
• Docket Number: No. 06–12–00056–CV.,06–12–00056–CV.
• Parties: MSHC THE WATERTON AT COWHORN CREEK, LLC, Appellant v. Donna MILLER, Individually And As Representative Of The Estate Of Nellie Mae Jackson, Appellee.
• Court: Texas Court of Appeals

391 S.W.3d 551

MSHC THE WATERTON AT COWHORN CREEK, LLC, Appellant

v.Donna MILLER, Individually And As Representative Of The Estate Of Nellie Mae Jackson, Appellee.

No. 06–12–00056–CV.

Court of Appeals of Texas,

Texarkana.

Submitted: Oct. 4, 2012.

Decided: Dec. 14, 2012.

David W. Frost, Kent, Anderson & Bush, PC, Tyler, TX, for Appellant.

J. T. Borah, Curtis E. Clinesmith, The ClinesmithFirm, Dallas, TX, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

After a five-day stay in a Texarkana nursing and rehabilitation facility named The Waterton, Nellie Mae Jackson was admitted to a local hospital ¹ where hospital personnel drained almost three liters of fluid from her bladder via catheter and where, the next day, she died.² As a result, Jackson's daughter, Donna Miller, filed a medical negligence lawsuit against MSHC the Waterton at Cowhorn Creek, L.L.C., which complaint set out two types of causes of action, (A) vicarious liability for the alleged acts or omissions of The Waterton's employees in the course of caring for Jackson and (B) direct liability for the company's alleged negligence in certain employment practices. The Waterton's motion to dismiss alleging fatal flaws in Miller's healthcare liability expert report was overruled by the trial court, and The Waterton appeals that denial. We affirm the denial as to the vicarious liability claims and reverse as to the direct liability claims because (1) Miller's expert report is sufficient to support her vicarious liability claims, but (2) Miller's expert report does not support her direct liability claims.

To support her lawsuit, Miller retained Milton D. Shaw, M.D., C.M.D.,³ to provide an expert opinion against The Waterton. The Waterton filed its initial motion to dismiss Shaw's timely-filed expert report. The trial court found the report to be deficient, but granted a thirty-day extension to amend the report. SeeTex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (West 2011). Miller timely filed a revised report, which was again challenged. At the hearing on the motion to dismiss, The Waterton argued the report failed to identify the standard of care, breach, and causation with respect to Miller's vicarious liability claims. The Waterton further claimed the report was deficient because it was silent with respect to the direct liability claims. The trial court denied the motion to dismiss.

Miller properly sought appeal of this interlocutory order denying the motion to dismiss. See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.2008); Longino v. Crosswhite, 183 S.W.3d 913, 915 (Tex.App.-Texarkana 2006, no pet.).

We review the trial court's decision regarding the adequacy of an expert report under an abuse-of-discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam); Goforth v. Bradshaw, 296 S.W.3d 849, 851 (Tex.App.-Texarkana 2009, no pet.). An abuse of discretion occurs if the ruling in the trial court is arbitrary or unreasonable or made without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). Nevertheless, “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion....” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

A trial court must grant a motion to dismiss under Section 74.351 if it appears that the report does not represent a good-faith effort to comply with subsection (r)(6) or is not sufficiently specific “to provide a basis for the trial court to conclude that the claims have merit.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); seeTex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (West 2011). A good-faith effort requires that the report discuss the standard of care and breach of that standard with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude the claims have merit. Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex.2006) (per curiam). A report that merely states an expert's conclusions about the standard of care, breach, and causation does not meet the statutory requirements. Wright, 79 S.W.3d at 52. The trial court's review is 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. Id.

(1) Miller's Expert Report Is Sufficient to Support Her Vicarious Liability Claims

Miller's vicarious liability claims allege The Waterton's agents, employees, and representatives were negligent in:

a. Failing to observe, assess, intervene, evaluate, and care for [Jackson];

b. Failing to notice that [Jackson] did not empty her bladder for three days despite being on IV therapy, resulting in the accumulation of nearly 3 liters of fluid;

c. Failing to intervene in a medical emergency on November 7, 2008;

d. Failing to monitor [Jackson]'s known medical conditions;

e. Failing to follow doctor's orders; and

f. Failing to keep accurate records that charted [Jackson]'s medical condition and treatment.⁴

The Waterton contends Shaw's report is deficient because it fails to adequately identify a standard of care applicable to the facility's staff, the manner in which the staff failed to meet the standard of care, and the causal relationship between that failure and the injury, harm, or damages claimed. The report contained the following opinions:

The standard of care for a long-term care facility and its staff such as The Waterton requires that they provide that level of care and treatment that a reasonable, prudent, similar facility would provide under the same or similar circumstances. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable, physical, mental, and psychosocial well being, as defined by and in accordance with the comprehensive assessment and plan of care.

Shaw states that the comprehensive assessment ⁵ must include:

identification and demographic information; customary routine; cognitive patterns; communication; vision; mood and behavior patterns; psychosocial well-being; physical functioning and structural problems; continence; disease diagnoses and health conditions; dental and nutritional status; skin condition; activity pursuit; medications; special treatments and procedures; and discharge potential.The report further indicates the initial assessment fell below this standard of care in that

it failed to assess [Jackson's] respiratory condition, nutritional status, the ability to take food and fluids, or continence. Further, ... Jackson's admission face sheet, dated November 3, 2008, failed to note the significant cardiac history and stage III renal disease listed on the Discharge Summary from St. Michael's Hospital on November 2.

Moreover, the facility must

maintain clinical records on each resident in accordance with the accepted professional standards and practices. A complete clinical record ... must contain enough information to show that the facility knows the status of the individual, has adequate plans of care, and provide sufficient evidence of the effects of care provided.... Documentation should provide a picture of the resident's progress including response to treatment, change in condition, and changes in treatment.... Jackson's clinical record does not reflect the deterioration in ... Jackson's condition that resulted in her being transferred to the hospital on November 8.

Further,

[i]n order to meet the standard of care, the nursing home and its staff must provide adequate fluid intake to prevent dehydration. This was not done. The harm/injury that resulted was severe dehydration, urosepsis, and acute renal failure, contributing to ... Jackson's death.

In addition, “[i]n order to properly monitor a patient for dehydration, one must have an accurate measurement of liquid intake and output. There is no record in ... Jackson's chart that permits the quantification of her urine output, and this should have been done.” Likewise, Shaw notes that

[t]he nursing home and its staff knew or should have known that ... Jackson was at high risk for dehydration due to her multiple risk factors.... Jackson's risk factors were advanced age, dementia, debility, renal insufficiency, and inability to obtain liquids on her own. She was dependent upon the nursing staff to provide her with adequate fluid intake. There is no documentation that the nurses tried to call the attending physician and inform him of ... Jackson's lack of intake of food and fluids, which is clearly below the standard of care.

The care and treatment rendered to ... Jackson by the nursing home fell below the standard of care when it failed to keep adequate clinical records as previously noted and described above. If clinical records and her accurate intake and output had been kept, it would have been readily apparent that this woman was developing dehydration and that had this been recognized earlier, it could have been successfully treated and she would, more likely than not, not have suffered dehydration, urosepsis, and acute renal failure....

Shaw continues,

[i]n my opinion, as noted above, the nursing staff of The Waterton failed to adequately assess ... Jackson, both initially and subsequently during her stay, and institute measures which could have prevented her deterioration to the point of needing hospitalization. What can be gleaned from the record is that ... Jackson was unable to take or was not offered sufficient fluids to assure adequate hydration reflected in the laboratory values. IV fluids were started but she developed a urinary tract infection, and subsequent sepsis. It is a well-known fact that adequate fluid intake and volume depletion are significant contributors to the development of urinary tract...