Texas Health Harris Methodist Hospital Fort Worth v. Greg Frausto
05-14-00895-CV
| Tex. App. | Apr 30, 2015Background
- Diane Rimert, age 67, died in Texas Health Harris Methodist Hospital Fort Worth on Feb 16, 2012; she had a 2009 DNR and a 2010 Medical Power of Attorney (MPOA) naming Doris Jernigan.
- Rimert’s children sued the Hospital alleging it withheld lifesaving treatment after they contested Rimert’s competency to execute the DNR/MPOA and asked the Hospital to investigate before complying.
- Appellees served an expert report by Dr. Lige Rushing (board‑certified internist/geriatrician) asserting the Hospital: failed to validate the DNR/MPOA, failed to address the dispute properly, and failed to provide life‑support (intubation/ventilation).
- Dr. Rushing’s original report did not expressly explain causation between the Hospital’s conduct and Rimert’s death; appellees later served an amended page stating the failures "more likely than not proximately caused" the death.
- The Hospital moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 for an inadequate expert report; the trial court denied the motion. The Court of Appeals reversed and remanded to allow the trial court to decide whether to grant a 30‑day cure period under § 74.351(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of expert report re: standard of care and breach | Rushing identified a medical/ethical standard: hospital must ensure validity of DNR/MPOA and provide life‑support while disputes are resolved | Hospital says Rushing improperly offers legal conclusions and imposes procedures beyond Texas Advanced Directives Act | Court: Report adequately states a medical/ethical standard and specific alleged breaches; disagreement with law is for merits (not dismissal) |
| Expert qualifications to opine on hospital policies/procedures | Rushing’s experience (geriatrics, ethics committee, hospital leadership) qualifies him to opine on institutional practices and patient care | Hospital says Rushing lacks specific institutional policy expertise; cites cases finding lack of qualification | Court: Rushing’s CV and ethics committee service make him qualified to opine on the care/policies at issue |
| Causation—did report link breaches to Rimert’s death | Appellees later added a sentence asserting failures "more likely than not" caused death; report otherwise ties failure to withhold ventilation to death timing | Hospital argues report fails to explain medically how withheld ventilation would have changed outcome given Rimert’s severe multi‑morbid condition | Court: Report fails to adequately explain causal link; this deficiency may be curable—remand to trial court to consider 30‑day extension to cure |
| Attorney’s fees sanction under § 74.351(b) | N/A (Hospital sought fees) | Hospital sought fees because appellees initially served an insufficient report | Court: Did not decide fees because remand on cure issue under § 74.351(c) may affect entitlement to sanctions |
Key Cases Cited
- Whitfield v. Henson, 385 S.W.3d 708 (Tex. App.—Dallas 2012) (standard of review: abuse of discretion on expert‑report dismissal)
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (expert report is low‑threshold good‑faith effort; must inform defendant of specific conduct questioned)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (trial courts should grant 30‑day extensions to cure report deficiencies when cure possible)
- Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 46 S.W.3d 873 (Tex. 2001) (expert report must address standard, breach, and causation)
- Biggs v. Baylor Univ. Med. Ctr., 336 S.W.3d 854 (Tex. App.—Dallas 2011) (remand for trial court to consider 30‑day cure; courts should err on side of granting extensions)
- Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008) (trial court may consider voluntary supplements to expert reports; supplementing does not forfeit right to cure)