05-11-01687-CV ACCEPTED 225EFJ016746958 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 26 P12:53 Lisa Matz CLERK In the Court of Appeals For the Fifth District of Texas at Dallas NEXION HEALTH AT DUNCANVILLE, INC. d/b/a DUNCANVILLE HEALTH CARE AND REHABILITATION CENTER, Appellant, v. FRANKIE ROSS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CONNIE D. HORSLEY, DECEASED, Appellee. On Interlocutory Appeal from the 68th Judicial District Court of Dallas County, Texas Cause Number: DC-11-07592 The Honorable Martin Hoffman, Presiding Judge APPELLANT S BRIEF Bryan Rutherford Texas Bar No. 24025628 BRutherford@MacdonaldDevin.com Gregory N. Ziegler Texas Bar No. 00791985 GZiegler@MacdonaldDevin.com Jacob D. Thomas Texas Bar No. 24042028 JThomas@MacdonaldDevin.com MACDONALD DEVIN, PC 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 214.744.3300 telephone 214.747.0942 facsimile Attorneys for Appellant Appellant requests oral argument i 526284.1 2014/61
IDENTITY OF PARTIES AND COUNSEL In accordance with Texas Rule of Appellate Procedure 38.1, and to assist the members of this Court in determining whether disqualification and recusal under Texas Rule of Appellate Procedure 16 is necessary, Appellant certifies that the following is a complete list of the parties, attorneys, and other persons who have an interest in the outcome of this appeal: Defendant/Appellant Nexion Health at Duncanville, Inc. d/b/a Duncanville Health Care and Rehabilitation Center Counsel for Defendant/Appellant Bryan Rutherford Texas Bar No. 24025628 Gregory N. Ziegler Texas Bar No. 00791985 Jacob D. Thomas Texas Bar No. 24042028 MACDONALD DEVIN, PC 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 214.744.3300 telephone 214.747.0942 facsimile Plaintiff/Appellee Frankie Ross, Individually and as Personal Representative of the Estate of Connie D. Horsley, Deceased ii 526284.1 2014/61
Counsel for Plaintiff/Appellee Cornelius D. Kasey Texas Bar No. 11104200 3615N. Hall Street Dallas, Texas 75219 214.520.9099 telephone 214.219.1003 facsimile Trial Court Judge The Honorable Martin Hoffman 68th Judicial District Court George L. Allen, Sr. Courts Bldg. 600 Commerce St., Box 540 Dallas, Texas 75202 214.653.6510 telephone iii 526284.1 2014/61
TABLE OF CONTENTS Identity of Parties and Counsel... ii Table of Contents... iv Index of Authorities... vi Statement of the Case... 1 Statement on Oral Argument... 3 Issues Presented... 3 Statement of Facts... 4 Summary of the Argument... 4 Argument... 5 I. Standard of Review... 5 II. First Issue: the trial court abused its discretion when it failed to dismiss Ross s specific claims that were not supported by a Chapter 74 expert report... 6 A. The plain language of Chapter 74 requires an expert to link each alleged failure to meet the standard of care to the injury alleged... 6 B. Ross s pleadings alleged ten specific negligent failures by Duncanville, but her expert reports failed to inform Duncanville of these alleged failures and failed to causally link them to her claimed injury... 6 C. Because Ross s expert report failed to meet Chapter 74 s standards for actual negligence, dismissal of her gross negligence claims is appropriate... 8 iv 526284.1 2014/61
III. Second Issue: the trial court abused its discretion when it failed to award Duncanville its attorney s fees and costs incurred in seeking dismissal of Ross s claims... 9 Prayer... 10 Certificate of Service... 11 Appendix Contents... 12 v 526284.1 2014/61
INDEX OF AUTHORITIES Cases Am. Transitional Care Ctr. of Texas, Inc., v. Palacios, 46 S.W.3d 873 (Tex. 2001)... 5, 6 Baker v. Gomez, 276 S.W.3d 1 (Tex. App. El Paso 2008, pet. denied)... 5 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)... 5 Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App. Houston [14th Dist.] 2004, no pet.)... 5 Emeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App. San Antonio, May 31, 2006, pet. denied)... 5 Nowzaradan v. Ryans, 347 S.W.3d 734 (Tex. App. Houston [14th Dist.] 2011, no pet.)... 9 Patel v. Williams, 237 S.W.3d 901 (Tex. App. Houston [14th Dist.] 2007, no pet.)... 6 Rittmer v. Garza, 65 S.W.3d 718, 721-22 (Tex. App. Houston [14th Dist.] 2001, no pet.)... 5 Windsor v. Maxwell, 121 S.W.3d 42 (Tex. App. Fort Worth 2003, pet. denied)... 6 Statutes TEX. CIV. PRAC. & REM. CODE 51.014(b) (Vernon 2007)... 3 TEX. CIV. PRAC. & REM. CODE 74.351(a) (Vernon 2009)... 4 TEX. CIV. PRAC. & REM. CODE 74.351(b) (Vernon 2009)... 4, 9 TEX. CIV. PRAC. & REM. CODE 74.351(r)(5)(C) (Vernon 2009)... 4, 8 vi 526284.1 2014/61
TEX. CIV. PRAC. & REM. CODE 74.351(r)(6) (Vernon 2009)... 6, 8 TEX. CIV. PRAC. & REM. CODE 74.403(a) (Vernon 2009)... 4 Rules TEX. R. APP. P. 9.5(e)... 10 TEX. R. APP. P. 16... ii TEX. R. APP. P. 38.1... ii TEX. R. APP. P. 39.1... 3 TEX. R. APP. P. 39.8... 3 vii 526284.1 2014/61
05-11-01687-CV In the Court of Appeals For the Fifth District of Texas at Dallas NEXION HEALTH AT DUNCANVILLE, INC. d/b/a DUNCANVILLE HEALTH CARE AND REHABILITATION CENTER, Appellant, v. FRANKIE ROSS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CONNIE D. HORSLEY, DECEASED, Appellee. On Interlocutory Appeal from the 68th Judicial District Court of Dallas County, Texas Cause Number: DC-11-07592 The Honorable Martin Hoffman, Presiding Judge TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Appellant Nexion Health at Duncanville, Inc. d/b/a Duncanville Health Care and Rehabilitation Center ( Duncanville ) complains of the trial court s Order denying Duncanville s motion to dismiss Appellee s lawsuit for failure to serve an expert report that complied with Texas Civil Practice and Remedies Code Chapter 74, and shows: STATEMENT OF THE CASE This is an interlocutory appeal from a health care liability claim. Appellee Frankie Ross alleges that her father, decedent Connie D. Horsley, sustained a fall and head injury that later caused his death, while a full-time nursing home resident of Duncanville. CR: 1 526284.1 2014/61
6. Chapter 74 1 required Appellee to serve Duncanville with an expert report issued by qualified experts no later than 120 days after filing suit. Ross served reports from Mark Levine and Lige B. Rushing, Jr., M.D., M.S., P.A. SCR. 2 Duncanville moved to dismiss, arguing that the two reports failed to address each of the factual allegations of negligence identified in Ross s Original Petition, and failed to address Ross s gross negligence claim at all. CR: 25; RR: 6-8. The trial court granted Duncanville s motion in part, dismissing two of Ross s negligence claims with prejudice. CR: 35. Duncanville brings this accelerated appeal asserting that the trial court abused its discretion in denying the remainder of Duncanville s Section 74.351(b) dismissal motion. Duncanville asks this Court to reverse the portion of the trial court s November 28, 2011 Order denying Duncanville s dismissal motion, and to remand for the trial court to grant Duncanville the relief it seeks under Section 74.351(b). Ross has not sought review of the portion of the Order dismissing two of Ross s negligence claims. There is currently no trial setting in this case, although the commencement of any trial is 1 2 All references to Chapter 74 are to Texas Civil Practice and Remedies Code Chapter 74, unless otherwise noted. Both parties failed to file copies of the two expert reports in the trial court prior to the hearing. The parties have executed a Rule 11 Agreement attaching the actual expert reports considered by the trial court during the Chapter 74 hearing, and Appellant has requested a Supplemental Clerk s Record which contains the Agreement and the two reports. For the convenience of the Court and the parties, the two reports are attached as Appendices B and C, and are identical to the copies that have been made part of the soon-to-be-filed Supplemental Clerk s Record. Duncanville will refer to the SCR as App. B and App. C using the pages numbers on each report. 2 526284.1 2014/61
automatically stayed pending resolution of this appeal. See TEX. CIV. PRAC. & REM. CODE 51.014(b) (Vernon 2007). STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 39.1, Duncanville requests oral argument in this case. This case presents an issue regarding the expert report requirement of Civil Practice and Remedies Code Chapter 74, which is a developing area of the law. For this reason, Duncanville respectfully submits that argument would significantly aid the Court in determining the legal and factual issues presented in this appeal. See TEX. R. APP. P. 39.8. FIRST ISSUE Did the trial court abuse its discretion when it failed to dismiss Appellee s specific claims that were not supported by a Chapter 74 expert report? SECOND ISSUE Did the trial court abuse its discretion when it failed to award Duncanville its attorney s fees and costs incurred in seeking dismissal of Appellee s claims that were not supported by a Chapter 74 expert report? 3 526284.1 2014/61
STATEMENT OF FACTS This is a healthcare liability claim against a nursing home, and is governed Chapter 74. Mr. Horsley was a full-time nursing home resident of Duncanville for nine months prior to his death. CR: 8; SCR App. B: 2. Mr. Horsley fell from his bed while being dressed, and was transported to the emergency room of a local hospital. SCR App. B: 3. At the hospital, Mr. Horsley was diagnosed with a head injury, and he later died. SCR App. B: 3. SUMMARY OF THE ARGUMENT Chapter 74 requires that in all cases against a healthcare provider, including nursing homes, the claimant shall furnish an expert report and curriculum vitae from qualified experts within 120 days of the date suit was filed. TEX. CIV. PRAC. & REM. CODE 74.351(a); 74.351(r)(5)(C); and 74.403(a) (Vernon 2009). When a trial court finds that a plaintiff has failed to comply with the statutory requirements for the expert report, it has a ministerial duty to dismiss the lawsuit with prejudice. See TEX. CIV. PRAC. & REM. CODE. 74.351(b) (Vernon 2009). The statute does not grant the trial court discretion to do otherwise. Ross sued Duncanville for Mr. Horsley s injuries, claiming Duncanville committed ten specific acts of negligence, and was thereby grossly negligent. CR: 9-12. Duncanville moved to dismiss as to all of Ross s gross negligence claims and as to each of the ten specified negligence claims because such claims were not adequately addressed by either of Ross s expert reports. The trial court correctly dismissed two of Ross s negligence 4 526284.1 2014/61
claims as not being supported by Ross s expert reports. But, the trial court abused its discretion in failing to grant Duncanville s dismissal motion as to the gross negligence and remaining eight negligence claims identified. ARGUMENT I. Standard of Review An abuse of discretion standard of review is applicable to this case. See Am. Transitional Care Ctr. of Texas, Inc., v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (applying standard of review to Article 4590i, the statutory predecessor to Chapter 74); see also Emeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App. San Antonio, May 31, 2006, pet. denied). An abuse of discretion occurs when a trial court acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Rittmer v. Garza, 65 S.W.3d 718, 721-22 (Tex. App. Houston [14th Dist.] 2001, no pet.). To the extent resolution of the issue before the trial court requires interpretation of a statute, a de novo standard is applicable. Id. at 722; Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App. Houston [14th Dist.] 2004, no pet.). When reviewing the sufficiency of an expert report in a health care liability case, this Court is confined to the four corners of the expert s report. See Palacios, 46 S.W.3d at 878 (applying standard to Article 4590i, Chapter 74 s statutory predecessor); Baker v. Gomez, 276 S.W.3d 1, 8 (Tex. App. El Paso 2008, pet. denied) (applying Chapter 74). This Court may not draw inferences to supply necessary information missing from the expert s report, nor construe a report in Ross s favor. Bowie Memorial Hosp. v. Wright, 79 5 526284.1 2014/61
S.W.3d 48, 53 (Tex. 2002); Windsor v. Maxwell, 121 S.W.3d 42, 50 (Tex. App. Fort Worth 2003, pet. denied). II. First Issue: the trial court abused its discretion when it failed to dismiss Ross s specific claims that were not supported by a Chapter 74 expert report A. The plain language of Chapter 74 requires an expert to link each alleged failure to meet the standard of care to the injury alleged Chapter 74 defines expert 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. TEX. CIV. PRAC. & REM. CODE 74.351(r)(6) (Vernon 2009) (emphasis added). For an expert report to be considered a good-faith effort to comply: (1) the report must inform the defendant of the specific conduct that the plaintiff calls into question; and (2) the report must provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 878; Patel v. Williams, 237 S.W.3d 901, 906 (Tex. App. Houston [14th Dist.] 2007, no pet.). Ross failed to meet these standards as to her pled claims. B. Ross s pleadings alleged ten specific negligent failures by Duncanville, but her expert reports failed to inform Duncanville of these alleged failures and failed to causally link them to her claimed injury Appellees alleged ten distinct failures by Duncanville with respect to its care of Mr. Horsley. CR: 7-9; RR: 6. The trial court acted within its discretion when it dismissed Ross s claims that Duncanville was negligent: 6 526284.1 2014/61
1. By failing to recognize and/or acknowledge its recognition of the Plaintiff s symptoms that resulted from its treatment of the Plaintiff; 2. By failing to inform the Plaintiff or family of Mr. Horsley s true physical state after treatment and/or after the injury, constituting fraudulent concealment by Defendant, of Defendant s negligence resulting in additional harm and injury to the Plaintiff; CR: 35-36. Neither of these specific acts of negligence was addressed by Ross s expert reports, so dismissal was required and the trial court acted within its discretion in dismissing those two negligence claims. Ross also identified eight other specific acts of negligence by Duncanville: 3. By failing to fully and completely disclose the risks and/or hazards of not having injured patient immediately examined by health care professionals who [sic] better able and equipped to treat such injury than the Defendant; 4. By failing to consult a specialist in the field of head injuries and/or neurology or neurosurgery, when the Defendant knew or should have known that its skills, knowledge or facilities were inadequate to properly treat the Plaintiff under the circumstances as they then existed; 5. Failing to adhere to the acceptable standards for care of patients in the medical and/or nursing home profession by failing to properly observe significant changes in the patient s condition and alert a physician; 6. By failing to properly assess the patient s needs and evaluate the medical condition of the patient; 7. By failing to document a significant change in the patient s symptoms on the medical chart; 8. By failing to recognize the adverse effects of a medication administered by the staff; 9. By failing to competently carry out the orders of the physician in charge of the patient s care on the occasion in question; and 7 526284.1 2014/61
10. Failing to adhere to the acceptable standards for care of patients by failing to timely consult a specialist in the field. CR: 7-9. During the dismissal hearing, the trial court explicitly relied on the Levine report in holding that the above eight factual allegations were supported as required by Chapter 74. RR: 15-19. As cited above, a Chapter 74 expert report must provide the causal link between the failure alleged against the defendant and the injury, harm, or damages claimed in the lawsuit. TEX. CIV. PRAC. & REM. CODE 74.351(r)(6) (Vernon 2009). Only a physician may offer an opinion regarding causation. See TEX. CIV. PRAC. & REM. CODE 74.351(r)(5)(C) (Vernon 2009). Here, the trial court explicitly relied on Mr. Levine s report to supply the factual allegation regarding the standard of care and to provide the causal link to the damages claimed. RR: 15-19. However, it is undisputed that Mr. Levine is not a licensed physician. SCR App. C: 1-11. Accordingly, the trial court abused its discretion when it relied on Mr. Levine s expert report to supply the causal link as to the remaining eight identified acts of negligence. See TEX. CIV. PRAC. & REM. CODE 74.351(r)(5)(C) (Vernon 2009). Alternatively, the trial court abused its discretion in holding that either expert report provided the factual basis for the specific allegations of negligence in Ross s petition. TEX. CIV. PRAC. & REM. CODE 74.351(r)(6) (Vernon 2009) For these reasons, this Court should hold the trial court abused its discretion when it failed to dismiss Ross s eight remaining negligence claims, and should remand for dismissal with prejudice. 8 526284.1 2014/61
C. Because Ross s expert report failed to meet Chapter 74 s standards for actual negligence, dismissal of her gross negligence claims is appropriate Ross also alleged that Duncanville was grossly negligent, based on the ten acts of actual negligence identified in her pleading. CR: 10-11. The allegation of gross negligence is dependent on having a supportable claim for actual negligence. See Nowzaradan v. Ryans, 347 S.W.3d 734, 742 (Tex. App. Houston [14th Dist.] 2011, no pet.). Because dismissal is required as to Ross s ordinary negligence claims, dismissal was required as to her gross negligence claims. For this additional reason, this Court should hold the trial court abused its discretion when it failed to dismiss Ross s gross negligence claims, and remand for dismissal with prejudice. III. Second Issue: the trial court abused its discretion when it failed to award Duncanville its attorney s fees and costs incurred in seeking dismissal of Ross s claims Where a health care liability claimant has failed to comply with Chapter 74 s expert report requirement, dismissal with prejudice is mandatory, as is an award of attorney s fees and costs. TEX. CIV. PRAC. & REM. CODE 74.351(b)(1) (Vernon 2009). Because Ross failed to furnish an expert report that complied with Chapter 74 as to any of their gross negligence claims and as to eight of her negligence claims, the trial court abused its discretion in denying Duncanville s dismissal motion, and in failing to award Duncanville its attorney s fees and costs, both in the trial court and on appeal. 9 526284.1 2014/61
PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant Duncanville, Inc. d/b/a Duncanville Health Care and Rehabilitation Center prays: that this Court reverse the trial court s November 28, 2011, Order denying in part Appellant s dismissal motion; that this Court render judgment holding Appellant is entitled to dismissal with prejudice of Appellees gross negligence claims and the eight negligence claims not supported by a Chapter 74 expert report, and that this Court remand to the trial court to award Appellant its attorney s fees and costs in the trial court and in this Court; and for general relief. Respectfully submitted, Bryan Rutherford Texas Bar No. 24025628 BRutherford@MacdonaldDevin.com Gregory N. Ziegler Texas Bar No. 00791985 GZiegler@MacdonaldDevin.com Jacob D. Thomas Texas Bar No. 24042028 JThomas@MacdonaldDevin.com MACDONALD DEVIN, PC 3800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 214.744.3300 telephone 214.747.0942 facsimile Attorneys for Appellant 10 526284.1 2014/61
CERTIFICATE OF SERVICE Pursuant to TEX. R. APP. P. 9.5(e), the undersigned hereby certifies that a true and correct copy of the foregoing Appellant s Brief and attached Appendix was served on the following parties in accordance with the Texas Rules of Appellate Procedure in the manner indicated, on February 26, 2012: Via efiling or fax: 214.219.1003 Cornelius D. Kasey 3615N. Hall Street Dallas, Texas 75219 Attorney for Appellee Bryan Rutherford 11 526284.1 2014/61
APPENDIX CONTENTS A. CR: 35, Order Granting in Part Defendant s Motion to Dismiss for Failure to Comply with Chapter 74 Expert Report Requirements, signed November 28, 2011 B. SCR October 11, 2011 expert report of Lige B. Rushing, Jr., M.D., M.S., P.A. C. SCR October 6, 2011 expert report of Mark Levine 12 526284.1 2014/61
App. A 35
36
App. B
App. C