File: 051260F - From documents transmitted: 08/27/2007
AFFIRM in part, REVERSE and REMAND in part and Opinion Filed August 27, 2007
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01260-CV
............................
PATRICIA KETTLE, Individually and as Executrix of the
Estate of RAYMOND KETTLE, Deceased,
LINDA HILL, DIANNE FRANKHOUSER,
MARGARET SULLIVAN, THOMAS KETTLE,
and SANDY ROACHE, Appellants
V.
BAYLOR MEDICAL CENTER AT GARLAND,
ABDUL KADER EZELDIN, M.D.,
CARDIOLOGY CONSULTANTS OF NORTH DALLAS, P.A.,
KANTI LAL AGRAWAL, M.D., and MICHAEL MOTTA, M.D., Appellees
.............................................................
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-09627 [Severed from No. 03-09664]
.............................................................
OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice O'Neill
After Raymond Kettle (Kettle) died, his survivors (the Kettles) brought this
wrongful death and survival action alleging medical negligence by Baylor Medical Center at
Garland (Baylor), Cardiology Consultants of North Dallas, P.A. (Cardiology), Abdul Kader
Ezeldin, M.D. (Ezeldin), Kanti Lal Agrawal, M.D. (Agrawal), and Michael Motta, D.O.
(Motta). The trial court dismissed the Kettles' claims with prejudice under the Medical
Liability and Insurance Improvement Act of Texas (MLIIA) (former Tex. Rev. Civ. Stat. art.
4590i, § 13.01) for failure of the Kettles' pre-trial expert reports to satisfy its requirements. In
two groups of eight issues addressing each defendant, the Kettles argue the court abused its
discretion in (i) dismissing the claims and (ii) refusing to grant an extension under MLIIA §
13.01(g) to file amended reports meeting the statutory requirements. We affirm in part and
reverse in part and remand.
Background
Kettle had chronic obstructive pulmonary disease (COPD). The Kettles allege
that two days after he was implanted with a cardiac pacemaker he suffered “cardiac
tamponade” and died. They generally allege (i) inadequate and non-timely assessment and
reporting by Baylor nurses of his condition and symptoms to physicians for prompt treatment
and (ii) inadequate and non-timely diagnosis and treatment by Drs. Ezeldin, Agrawal, and
Motta. They allege Cardiology and Baylor are liable through actual or ostensible agents or
employees in the course and scope of employment. They filed curricula vitae and expert
reports from cardiologist/internist Dr. Marc Cohen (Cohen) and registered nurse Debra L.
Pugh (Pugh); both experts stated they reviewed the medical records.
Expert Report Requirements
The parties agree that the Texas Medical Liability and Insurance Improvement
Act at former Tex. Rev. Civ. Stat. art. 4590i (MLIIA) (current version at Tex. Civ. Prac. &
Rem. Code ch. 74) applies and governs the Kettles' health care liability claims, because they
filed suit before it was repealed. MLIIA § 13.01(d)(1) requires health care liability claimants to
furnish an expert report with the expert's curriculum vitae within 180 days of filing suit “for
each physician or health care provider” sued. “Expert report” is defined as a written
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.
MLIIA § 13.01(r)(6).
The supreme court has outlined the standard governing sufficiency of MLIIA
expert reports. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
878 (Tex.2001) (Palacios). A report must be a “good-faith effort” at a “fair summary” of
the expert's opinions. Id. To do that it must discuss (1) standard of care (2) breach and (3)
causation with “sufficient specificity” to (i) inform the defendant of the conduct the plaintiff
calls into question and (ii) provide a basis for the trial court to determine whether the claims
have merit. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); see Palacios,
46 S.W.3d at 875, 879. A report omitting any statutory requirement cannot be a good faith
effort. Palacios at 879. A “fair summary” is “something less than a full statement” but it
must “set out what care was expected, but not given,” id. at 880, and must describe the
standard and state how it was breached. Id. at 879 (citations omitted).
Conclusory reports do not satisfy MLIIA. Bowie Memorial Hosp. v.
Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curiam) (citing Palacios, 46 S.W.3d at 879).
Reports must explain their bases to link conclusions to facts. Bowie, 79 S.W.3d at 52 (citing
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). Reports failing to explain how a breach
caused injury are reasonably found conclusory. See Bowie at 53.
Under MLIIA §§ 13.01(e)(3), (l), on motion a trial court shall dismiss a suit
with prejudice either where a report is untimely or where a timely report, after a hearing,
appears to the court to not adequately represent a good faith effort to comply with the expert
report definition at MLIIA § 13.01(r)(6). MLIIA § 13.01(g) mandates granting one 30-day
grace period to meet its expert report deadline if after a hearing the trial court finds that failure to
do so was not intentional or consciously indifferent but accidental or mistaken. The grace period
is available to cure inadequate but timely filed reports. Walker v. Gutierrez, 111 S.W.3d 56,
61 (Tex. 2003).
Standard of Review
We review both a dismissal under MLIIA and refusal to grant a grace period
to cure expert report deficiencies for abuse of discretion. Jernigan v. Langley, 195 S.W.3d
91, 93 (Tex. 2006) (per curiam). We may find abuse of discretion where a trial court acts
arbitrarily or unreasonably or without reference to any guiding rules or principles, or fails to
correctly determine, analyze, or apply the law, but we may not substitute our judgment in
deciding discretionary matters. Cayton v. Moore, 224 S.W.3d 440, 444-45 (Tex.
App.-Dallas 2007, no pet.). Mere error in judgment is not abuse of discretion, but a decision
with no basis in reason or law is. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,
917-18 (Tex. 1985). A trial court has “no discretion” to find adequate conclusory reports
that do not notice the conduct complained of. Palacios, 46 S.W.3d at 880.
In evaluating a report's sufficiency, we are confined to its four corners.
Palacios, 46 S.W.3d at 878. That bars us from drawing inferences to supply absent
necessary information. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002)
(per curiam). Reports are not construed in favor of the plaintiff. Windsor v. Maxwell, 121
S.W.3d 42, 50 (Tex. App.-Fort Worth 2003, pet. denied).
Discussion
Drs. Ezeldin and Agrawal
For liability of Drs. Ezeldin, Agrawal, and Motta (and vicarious liability of
Cardiology), the Kettles rely on Dr. Cohen's report. Motta is discussed separately below as he
abandoned any standard of care, breach, and causation challenges to Cohen's report in the trial
court and in his brief to this Court and argues only that Cohen did not demonstrate he was
qualified to opine. Ezeldin and Agrawal do not object to Cohen's qualifications. Though the
Kettle's petition alleges Dr. Rolando Solis (Solis) negligently implanted a pacemaker in Kettle
when there was “no indication for one,” and though Cohen includes Solis with the other
physician-defendants in discussing their conduct, Solis's conduct is not at issue as he is not a
party to this appeal.
Dr. Cohen's report. See Footnote 1 The report's “case
summary” states Kettle's COPD was advanced but far from end stage; notes a CAT scan and
echocardiogram showed a new pericardial effusion; and notes progressive hypotension for
about a seven hour period before he arrested. The substance of his opinion on standard of
care, breach, and causation on the two courses of conduct alleged to be negligent may be
summarized in pertinent part:
* Documenting indication for a pacemaker implant. Cohen opines that Drs. Solis,
Ezeldin, See Footnote 2 and Agrawal, and Cardiology, all collectively owed a
duty to “fully document” a “clear cut” indication for implanting a pacemaker. He states
Kettle “[was] referred for” a pacemaker and opines that Solis, Ezeldin, Agrawal,
and Cardiology all collectively breached the standard of care because a pacemaker
“was implanted” without “adequate” indication. He opines that the implantation “resulted
in pericardial tamponade and death.”
* Treating pericardial tamponade. Cohen opines that Drs. Solis, Ezeldin, Agrawal, and
Motta, and Cardiology and Baylor, See Footnote 3 all collectively owed a duty to
“promptly consider, diagnose, and then treat,” with “pericardiocentesis,” Kettle's
“pericardial tamponade” that was causing his “progressive hypotension.” He states all
defendants collectively breached the standard of care because “[m]ore than six hours
passed before any intervention related to the diagnosis of effusion . . . was entertained.” He
states Kettle was “not in imminent danger of dying from his COPD,” opines that failing to
“promptly” perform pericardiocentesis caused Kettle's death, and opines that “earlier”
pericardiocentesis would have “stabilized [his] blood pressure and saved his life.”
A standard of care that only requires physicians to “fully document”
indications for implanting a pacemaker is at best ambiguous. For example, the report does not
explain how documenting relates to recommending or ordering; i.e., it does not link documenting
to implanting. It is silent on who recommended or ordered the implant, stating only that Kettle
“[was] referred for” it. It is silent on the implanting physician. It does not state what must be
documented, what is sufficient, to whom it must be directed, explain how its insufficiency led to
wrongful implantation, or describe its intended purpose or effect. Moreover, it does not state the
indications for pacemaker implants and is silent on the standard for assessing them. It does not
opine that the implantation itself was negligently performed or explain how this implant caused
the complications alleged. We conclude this portion of the opinion identifies no discernible
standard of care satisfying Palacios and does not explain causation as the supreme court
required in Bowie, 79 S.W.3d at 53.
Cohen's opinion that all the physician-defendants collectively shared the same
duty to diagnose and treat Kettle's condition “promptly” or “earlier” is also too vague and
general to satisfy Palacios. It could be stated that every physician has a general duty to
diagnose or treat medical conditions timely but that truism does not inform the
physician-defendants what the standard specifically required them to do. It is conclusory. Cf.
Whitworth v. Blumenthal, 59 S.W.3d 393, 396-97 (Tex. App.-Dallas 2001, no pet.)
(en banc) (expert opining, inter alia, complications “should have been anticipated” and
“appropriate therapy provided” conclusory). Without “specific information about what the
defendant should have done differently” one cannot determine whether a duty was breached.
Palacios, 46 S.W.3d at 880 (emphasis added) (holding opinion that “restraints and
precautions to prevent [patient's] fall were not properly utilized” was conclusory and “not a
statement of a standard of care.”).
This report states: “More than six hours passed before any intervention related
to the diagnosis of effusion . . . was entertained.” This is just a statement of an occurrence that
does not specify who had a duty to do what and when. The report does not specify the steps
that should have been taken to diagnose Kettle's condition for timely intervention and does not
specify a standard for determining what intervention is timely. In other words, there is no breach
alleged that relates to a defined standard of care. Merely stating a particular condition should be
timely treated with a particular procedure is insufficient to meet Palacios. Cf. Eichelberger v.
St. Paul Med. Ctr., 99 S.W.3d 636, 639 (Tex. App.-Dallas 2003, pet. denied)
(report simply opining standard requires providing certain treatment not given is conclusory and
deficient for not “summariz[ing] the ways in which any of the[m] . . . breached the standard”).
“A trial court does not abuse its discretion in dismissing a suit in which one is required to infer
the standard of care from the allegations in the expert report.” Russ v. Titus Hosp. Dist.,
128 S.W.3d 332, 343 (Tex. App.-Texarkana 2004, pet. denied) (merely detailing
omissions “does not state what conduct was necessary or required”).
Reports Lumping Defendants Inadequate
Cohen's report is independently deficient in lumping all the
physician-defendants together, without describing their individual roles in Kettle's care. The
report identifies no practice specialty of any defendant. The report does not opine but requires
us to infer that the same standard applies to each of them and that they all breached it in the
same way.
MLIIA expressly requires submitting a report “for each physician or health
care provider” sued. MLIIA § 13.01(d)(1). Reports must “notify[] each defendant of the
specific conduct called into question . . . .” See Whitworth v. Blumenthal, 59 S.W.3d 393,
396-97 (Tex. App.-Dallas 2001, no pet.) (en banc) (finding inadequate opinion globally
opining group of providers breached standard without specifying which defendant standard
applies to and who was responsible for the care). Each provider's individual treatment must
also be causally linked to the damages claimed. Rittmer v. Garza, 65 S.W.3d 718, 723
(Tex. App.-Houston [14th Dist.] 2001, no pet.).
Plainly,
different specialists may be involved in a given patient's care. While
it is certainly possible an identical standard of care governs different providers, a generalized
statement without explanation that a uniform standard applies “can reasonably be deemed
conclusory” and deficient. Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 859-60
(Tex. App.-Houston [1st Dist.] 2006, no pet.)(report failed to notice “who had what
responsibility and how that person or persons departed from the standard . . . in failing to do
some specific act required by a person in that position”).
Dr. Motta
Motta's only objection to cardiologist Cohen's report is that it does not show
he is qualified to testify on Motta's conduct as a pulmonologist. A report may be challenged for
failing to sufficiently detail why the expert is qualified. See Hansen v. Starr, 123 S.W.3d 13,
20 (Tex. App.- Dallas 2003, pet. denied). The qualifications must appear within the report's
“four corners” or curriculum vitae. See Hansen, 123 S.W.3d at 19-20 (citing Palacios,
46 S.W.3d at 878).
Cohen
states he is a licensed, practicing physician, board certified in
internal medicine, cardiovascular diseases, and interventional cardiology. He states he has “knowledge
of the accepted standards of medical care for the diagnosis, care and treatment of pacemaker
insertion and pericardial tamponade” and is qualified based on his “training, education, and
experience regarding” those standards. His curriculum vitae recites extensive cardiological
expertise, which Motta does not challenge. But his report describes no pulmonology-related
expertise and the Kettles point to nothing in his curriculum vitae reflecting any
pulmonology-related expertise. The Kettles counter that the report is sufficient because it
adequately shows qualification to opine on the standard governing diagnosis/treatment of the
“condition involved in the[ir] claim,” Kettle's cardiac condition. See MLIIA § 14.01(a)(2).
MLIIA section 14.01(a)(1)-(3) provides that in suits against physicians an
expert may qualify to opine on breach of the applicable standard of care if the expert
(1)
“practic[es] medicine”;
(2)
has knowledge of accepted “medical care” standards “for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim”; and
(3)
is qualified based on “training or experience” to opine on those standards.
When a “subject is substantially developed in more than one field, testimony
can come from a qualified expert in any of those fields,” provided the offering party can
establish expertise “regarding the specific issue before the court . . . .” Broders v. Heise,
924 S.W.2d 148, 153-54 (Tex. 1996) (emphasis added). Thus, under MLIIA § 14.01(a)(2),
courts hold that a physician- expert outside a physician-defendant's practice specialty is not
categorically disqualified, provided the expert has sufficient training, practical experience,
or knowledge of the standard of medical care “for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim . . . .” See Blan v. Ali, 7 S.W.3d 741,
745-47 (Tex. App.- Houston [14th Dist.] 1999, no pet.) (emphasis original).
We above held Cohen's report deficient in lumping all the physician-defendants
together without specifying what responsibility each undertook, what role each played in
Kettle's care, and what standard of care applied to each. For the same reason it is deficient in
demonstrating Cohen's qualification to opine on Motta's conduct. See Olveda v. Sepulveda,
141 S.W.3d 679, 682-83 (Tex. App.-San Antonio 2004), pet. denied, 189 S.W.3d 740
(Tex. 2006).
Cohen may very well be qualified to opine on the services Motta performed.
Motta may very well have undertaken to diagnose and treat Kettle's specific cardiac condition
within Cohen's competence to opine. Or Motta may simply have been called in as a specialist to
monitor or treat Kettle's COPD. But we cannot tell from the report what role Motta played in
Kettle's care. We thus cannot conclude the trial court abused its discretion in finding Cohen's
report inadequate as to Motta. See Hansen v. Starr, 123 S.W.3d 13, 16, 19-20 (Tex. App.-
Dallas 2003, pet. denied).
Baylor Hospital
For Baylor's liability from conduct of its nurses, the Kettles rely on Nurse
Pugh's report in conjunction with Dr. Cohen's. See Footnote 4 Baylor only challenges
the sufficiency of the causation element, conceding sufficiency of the nursing standard and breach
elements.
Nurse Pugh's report. Pugh first opines that negligent patient monitoring and
assessment and delay in reporting to physicians caused delayed treatment. She then medically
opines on cause of death. The substance of her report may be summarized:
* Negligent monitoring, assessment, and reporting delayed treatment. Baylor
nurses breached a duty to recognize symptoms of uncontrolled blood loss and to
consider complications of Kettle's pacemaker implant; breached a duty to report possible
pacemaker complications and to “timely” report his unimproved vital signs,
persistent symptoms, and deteriorating condition to physicians; failed to follow through to
obtain results of an echocardiogram, which would have yielded “valuable insight” into the
cause of Kettle's condition; and despite monitoring decreasing blood pressure, waited five
hours to call a doctor, two hours before he arrested, See Footnote 5
“caus[ing] delay in treatment . . . .”
* Medical causation. Delayed treatment “directly affected” Kettle's
“negative outcome” and “contributed” to his death and “earlier” physician treatment
“could” have prevented it.
We
first note that as a registered nurse and not a physician licensed to
practice medicine, Pugh is not qualified to testify on medical causation. Because she may not render
medical diagnoses See Footnote 6 she is not qualified to opine that any particular
treatment at any particular time would have prevented Kettle's death. See Costello v. Christus
Santa Rosa Health Corp., 141 S.W.3d 245, 248, n.3 (Tex. App.-San Antonio 2004, no
pet.). However, we may consider Pugh's report in conjunction with Cohen's medical causation
opinion. See MLIIA § 13.01(i) (authorizing separate expert reports addressing liability and
causation); see, e.g., Hillcrest Baptist Med. Ctr. v. Wade, 172 S.W.3d 55, 57-58, 60-61
(Tex. App.-Waco 2005, pet. granted, cause dism'd by agr.) (nurse report opining that nursing
standard breached by delays in recognizing symptoms, assessing condition, and calling
physicians, considered with physician reports opining that delays in medical treatment caused
injuries).
Pugh opines that delayed reporting to physicians of Kettle's condition in turn
delayed treatment by them. Cohen's report explicitly opines that Kettle's COPD was not
otherwise terminal and that earlier treatment “would have . . . saved his life.” Baylor argues
Cohen's report is insufficient because it does not opine that a five hour reporting delay
“prevented” earlier pericardiocentesis. Baylor also argues the report does not state the
physicians would in fact have performed pericardiocentesis timely, or at all, but for the delay in
conveying the specific information withheld. We do not find these arguments persuasive.
Cohen specifically opined that Kettle's death was not imminent but preventable by earlier
pericardiocentesis. “[A] delay is a delay.” Hillcrest, 172 S.W.3d at 60. If not informed
of his symptoms they obviously would not be in a position to intervene at all.
Reports
need not marshal all the plaintiff's proof or meet the formal
evidentiary requirements of a trial or summary judgment proceeding; they need only notice the conduct
called into question and give the trial court a basis to determine whether a claim has merit.
Palacios, 46 S.W.3d at 878-79. We conclude Pugh and Cohen's reports collectively state
causation sufficiently to meet Palacios and satisfy MLIIA on the conduct of the Baylor nurses.
Cardiology Consultants
The Kettles argue the MLIIA expert report requirement does not apply to
Cardiology at all because they allege no direct negligence against it and seek only to hold it
vicariously liable for Agrawal's conduct as agent or employee in the course and scope of
employment. See Footnote 7
The parties agree that Cardiology is a physicians' professional association.
The supreme court has expressly held MLIIA's protections apply to these entities. MacGregor
v. Med. Ass'n v. Campbell, 985 S.W.2d 38, 39 (Tex. 1998) (per curiam) (citing legislative
intent). MLIIA expressly requires the Kettles to submit an expert report “for each physician or
health care provider against whom a claim is asserted . . . .” MLIIA §13.01(d)(1) (emphasis
added). Thus, arguing no expert report is required is without merit.
The
Kettles next rely on Cardiology's position in its motion to dismiss in
the trial court that the Texas Medical Practice Act See Footnote 8 does not provide a vehicle
for a professional association to become licensed to “practice medicine.” We do not find this
relevant. First, as stated MLIIA specifically requires an expert report for each “health care
provider” sued, which encompasses physician professional associations. Second, the Texas
Professional Association Act makes physician professional associations “jointly and severally
liable with the officer or employee furnishing professional services” in the “course of his
employment for the association” for professional negligence. See Tex. Rev. Civ. Stat. Ann. art.
1528f, § 24 (Vernon Supp. 2006). This creates “direct liability” of the professional
association for the actions of a physician-principal in the course of employment because the
former acts through the latter and the latter's conduct is imputed to it. Battaglia v. Alexander,
177 S.W.3d 893, 902 (Tex. 2005).
Whether
Cardiology's liability is considered direct or vicarious, that
liability still depends on conduct of Agrawal, to which MLIIA indisputably applies. See Whitworth v.
Presbyterian Healthcare Ctr., 2001 WL 1264238, *5 (Tex. App.-Dallas 2001, no pet.)
(unreported decision) (“While an expert is not required to opine on the vicarious liability issue,
an expert is required to identify how Presbyterian [hospital] failed to meet a standard of care
relating to it or its employees or agents.”). We conclude the trial court did not abuse its
discretion in dismissing the Kettles' suit against Cardiology for the deficiencies in Cohen's report
on Agrawal. See Footnote 9
Extension of Time to Cure Deficiencies
In the alternative to arguing Cohen's report on the physicians and Cardiology
was sufficient, the Kettles assert that if the report is insufficient the trial court abused its
discretion by failing to grant a 30-day grace period under MLIIA section 13.01(g) to amend or
supplement it to cure any deficiencies. That section mandates an extension where failure to
comply with MLIIA's expert report requirements was not intentional or consciously indifferent
but accidental or mistaken. The sole basis for the Kettles' argued right to an extension is a
good faith, if mistaken, belief by their counsel that the report was sufficient to satisfy MLLIA.
The Kettles thus argue mistake of law.
The
supreme court has rejected the Kettles' position. It holds that some
but not all mistakes of law are sufficient to negate intentional conduct or conscious indifference to excuse
statutory non-compliance, entitling a claimant to a section 13.01(g) grace period. See Walker v.
Gutierrez, 111 S.W.3d 56, 63-64 (Tex.2003). We review claimants' acts and knowledge and
charge them with knowledge of MLIIA and its requirements. Walker, 111 S.W.3d at 64.
Walker specifically holds that counsel's mistaken belief that a report satisfied MLIIA, though it
omits one of the statutorily required elements, is not a mistake of law sufficient to negate
intentional or conscious indifference. Walker, 111 S.W.3d at 59, 64-65.
The burden of showing entitlement to a section 13.01(g) grace period is on the
health care liability claimant. Yaquinto v. Britt, 188 S.W.3d 819, 827 (Tex. App.-Fort Worth
2006, pet. denied). The Kettles argue that their counsel's testimony on mistaken belief was
uncontroverted so extension was mandated. But Walker holds that even if testimony is
uncontroverted, the claimant does not satisfy its burden unless the testimony sets forth facts that,
if true, negate intentional or conscious indifference; and that testimony of a mistaken belief that
the report complies does not meet this burden if the report omits a required element. See
Walker, 111 S.W.3d at 64-65.
The Kettles argue Walker is inapposite because the reports if conclusory or
otherwise deficient nonetheless did not “omit” any of the required elements of duty, breach,
causation, or expert qualification. They cite In re Zimmerman, 148 S.W.3d 214, 217 (Tex.
App.-Texarkana 2004, orig. proceeding), mand. filed (No. 05-0826, Tex. October 4, 2005).
But other courts hold that the substance of a report controls and that merely mentioning an
element “without setting out or describing” what the element encompasses, such as specifying
what acts a standard of care requires, is equivalent to omitting it, such that Walker may be
applied. In re Brown, 190 S.W.3d 4, 7 (Tex. App.-Amarillo 2005, orig. proceeding), mand.
denied (May 13, 2005); accord, Gereb v. Sedillo, 2006 WL 397909, *2 (Tex. App.-San
Antonio 2006, no pet.) (mem. op.); Pisasale v. The Ensign Group, Inc., 2006 WL
2567400, *5 (Tex. App.-Eastland 2006, pet. denied) (mem op.).
We note Walker found no distinction between filing an inadequate report and
filing no report in assessing compliance with MLIIA's filing deadline. 111 S.W.3d at 61. We
also note the longstanding general rule that conclusory opinion testimony is no evidence.
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)
(reviewing cases). We further note we have applied Walker to reject mistaken-belief arguments
for an extension to cure conclusory or insufficiently specific reports. See, e.g., Hansen v. Starr,
123 S.W.3d 13, 20-21 (Tex. App.- Dallas 2003, pet. denied).
Zimmerman contains no analysis and only held that the trial court was “not
required, as a matter of law, to find that no accident or mistake occurred” and thus did not
abuse its discretion in that case to allow an extension to amend and correct deficiencies. 148
S.W.3d at 217. Based on the record before us and the substance of Cohen's report, we cannot
conclude it was an abuse of discretion for the trial court to find the report, containing analytical
gaps on key elements, bare conclusions, and insufficient specificity to satisfy the Palacios
standard, equivalent to omitting statutorily required elements such that Walker applies. We thus
cannot find abuse of discretion in denying an extension to amend. See Footnote 10
Conclusion
In
light of the foregoing, we conclude the trial court did not abuse its
discretion in sustaining objections by Ezeldin, Agrawal, Motta, and Cardiology to Cohen's report and
dismissing the Kettles' suit against them and in failing to grant them an extension to cure the
report's deficiencies. We also conclude the trial court abused its discretion in sustaining
Baylor's objection to Cohen and Pugh's report and dismissing the Kettles suit against it. We
thus reverse the trial court's order dismissing the Kettles' suit against Baylor and remand for
further proceedings. We affirm the orders dismissing the Kettles' suit against Ezeldin, Agrawal,
Motta, and Cardiology and denying the Kettles' requested extension of time to amend Cohen's
report on these defendants.
-----------------------
MICHAEL J. O'NEILL
JUSTICE
051260F.P05
Footnote 1 Dr. Cohen's report is unsigned.
Footnote 2 The Kettles do not appear to assert any claim against Ezeldin related to the
pacemaker implantation or rely on that portion of Cohen's report for any liability attributed to him
but appear to limit their pacemaker implantation claim to Agrawal and Cardiology. This does not
affect our underlying analysis of the sufficiency of the report.
Footnote 3 While Cohen's report opines Baylor was collectively negligent with the physicians
in diagnosing and treating a medical condition, the Kettles do not allege this and we disregard
it. This portion of the report is also immaterial because medical diagnosis or treatment is
practicing medicine, which hospitals are not licensed to do. See Reed v. Granbury Hosp.
Corp., 117 S.W.3d 404, 415 (Tex. App.- Fort Worth 2003, no pet.).
Footnote 4 Nurse Pugh states she is a licensed, practicing registered nurse (RN), is board
certified in operating room nursing (CNOR), has been certified in Advanced Cardiac Life
Support (ACLS), has “extensive experience working as a nurse in the surgical, medical and
cardiac intensive care units,” has “knowledge of the accepted standards of nursing care”
of patients with COPD, cardiac arrhythmias, and pacemaker implants, and is qualified based
on her “training, education and experience regarding” those standards.
Footnote 5 Dr. Cohen's report states the time of Kettle's arrest.
Footnote 6 Medical diagnosis and treatment is practicing medicine, Tex. Occ. Code
§ 151.002(a)(13), which requires a medical license. Id. §§ 151.002(a)(12), 155.001. The
Nursing Practice Act defines “nursing” as “professional or vocational nursing” and states it
“does not include acts of medical diagnosis . . . .” Tex. Occ. Code Ann. § 301.002(2), (4)-(5)
(Vernon Supp. 2006).
Footnote 7 Cardiology has not challenged the course and scope of employment allegation.
Footnote 8 Tex. Occ. Code. Ann. chs. 151-165 (Vernon 2004 & Supp. 2006).
Footnote 9 Cardiology also argues it is entitled to a dismissal of any vicarious-liability claims
for conduct of agents or employees other than Agrawal. We need not address this contention
because we need only address dismissal of “health care liability claims,” which require an
expert report, and the Kettles submitted no report on conduct of any such other agent or
employee.
Footnote 10 In light of our disposition on the merits, we do not reach Baylor's procedural
arguments that the Kettles' waived their motion for extension because it was heard after the
court granted Baylor's motion to dismiss.
File Date[08/27/2007]
File Name[051260F]
File Locator[08/27/2007-051260F]