Case Information

*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 11/9/2015 2:58:15 PM PAM ESTES Clerk

*1 ACCEPTED 12-15-00189-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 11/9/2015 2:58:15 PM Pam Estes CLERK CAUSE No. 12-1 5-001 89-CV IN TT{E COURT OF APPEALS OF TEXAS FOR THE TWELFTH CIRCUIT TYLER, TEXAS GARNSON NURSING HOME AND REHABILITATION CENTER AND GARNSON NURSING HOME, INC., Appellant V LEGATHA DEMINGS, Appellee On Appeal From Cause No. In the 745th Judicial District Court of Nacogdoches County, Texas APPELLEE'S BRIEF Law OTTIcB oF STEPHEN SHIRES, PLLC Attorney & Counselor at Law

W. Stephen Shires State Bar No. 50511894 123 San Augustine Street P.O. Box 2224 Center, Texas 75935 (936) s98-30s2 (Phone) (936) s98-303 1 (Facsimile) stephen @s hire s I aw firm. c o m ATTORNEY FOR LEGATHA DEMINGS

ORAL ARGUMENT REQUESTED IF GRANTED TO APPELLANT *2 IDENTITY OF PARTIES AND COUNSEL

In accordance with TBx. R. App. P.38.1(a), the following is a list of the parties to this action, their respective counsel, and the presiding judge at trial: Garrison Nursing Home and Appellants

Rehabilitation Center and Garrison Nursing Home, Inc. (ooGNHoo)

Trial and Appellate Counsel: David'W. Frost Kent, Anderson, Bush, Frost, and Metcalf, P.C. 1121 E.S.E Loop 323, Suite 200 Tyler, Texas 7570t (903) s79-7s00 (phone) (903) 58 1-3701 (facsimile) dfrost@tyler.net Legatha Demings ("Demings")

Appellee Trial and Appellate Counsel: Stephen Shires

Law Office of Stephen Shires, PLLC 123 San Augustine Street P.O. Box 2224 Center, Texas 75935 (936) s98-30s2 (phone) (936) 598-303 1 (facsimile) stephen@shireslawfirm. com Honorable Campbell Cox II

Trial Judge 145th Judicial Court, Nacogdoches, Texas 1t

*3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COTINSEL l1 TABLE OF CONTENTS ^[111] TABLE OF AUTHORITIES ..... iv

STATEMENT REGARDING ORAL

ARGUME,NT ^[1] STATEMENT OF ISSUES ^[1] STATEMENT OF'TITE CASE ^[1] STANDARD OF REVIEIT I STATEMENT OF FACTS 2

a STTMMARY OF THE ARGITME,NT

J

ARGUMENT 4 A. GNH improperly seeks a technical dismissal of claims that clearly have merit. B. Dr. Miller is qualified to address causation in this case. 7 C. The reports do not simply provide conclusory statements on causation. 11 D. Alternatively, this is a matter of r¿s ipsa loquilut

I7

CONCLUSION AND PRAYER 18 I9 CERTIFICATE OF SERVICE .......... t9 CERTIF'ICATE OF' COMPLIANCE INDEX OF APPENDIX 20

lll *4 TABLE OF AUTHORITIES

CASES

Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios,46 S.V/.3d 873 (Tex. 2001)

...2,4

Bowie Mem'l Hosp. v. Wright,79 S.W.3d 48, 52 (Tex. 2002) 6 Broders v. Heise,924 S.W.2d I48 (Tex. 1996) 7 Collini v. Pustejovsky,2S0 S.W.3d 456 (Tex. App. Fort Worth 2009, no pet)

11 Daubert v. Merrill Dow Pharmaceuticals, [nc.,509 U.S. 579 (1993) ........ 10 Downer v. Aquamarine Operators, Inc.,70l S.W.2d 238 (Tex. 1985) .........2 Gammill v.Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) ..... 10 Haddockv. Arnspiger,793 S.W.2d 948,950 (Tex. 1990) 17, 18 Hall v. Huff 957 S.W.zd90 (Tex. App. - Texarkana 1997, pet. denied) ......7 HEB Grocery Co. v. Galloway,2014 WL 2152128 (Tex. App. - Beaumont 2014, not pet)

11 Kunho Tire Co. v. Carmichael,526 U.S. 137 (1999) 10 Mack Trucks, Inc. v. Tøme2,206 S.W.3d 572 (Tex. 2006) 10 Nenno v. State,970 S.W.2d 549 (Tex. Crim. App. 1998) 10 ,Ross v. St. Luke's Episcopal Hospital,462 S.W.3d 496 (Tex.2015)............. 5 Samlowski v. Wooten,332 S.W.3d 404,410 (Tex.20ll)

6

Scoresby v. Santillan,346 S.W.3d 546 (Tex. 2011) 5 Van Ness v. ETMC First Physicians,46l S.W.3d 140 (Tex. 2015) 1,4,5,6,16, 17 STATUTES AND RULES a J Tsx. Cry. Pnacr. & Rpvr. Cooe Ann. $74.001 TEx. Cru. Pnacr. & Rpvt. Cons Ann. ç74.201(Jones McClure 2015) ........17 TEx. Ctv. Pnacr. & RsN4. Conp Ann. $74.351 (Jones McClure 2015)...... l, 5 TBx. Ctv. Pnacr. & RBH¿. Conr Ann. ç74.403 (Jones McClure 2015) ..........7

lv

STATEMENT REGARDING ORAL ARGUMENT

*5 GNH requested oral argument in this case. In the event that the Court grants GNH's request, then Demings also requests oral argument in this matter. STATEMENT OF ISSUES GNH has raised the following two issues: 1. Whether the trial court abused its discretion in overruling GNH's objections to Demings' supplemental expert report from Dr. Keith E. Miller for the failure to show he was qualified to provide opinions regarding the element of causation and denying GNH's motion to dismiss pursuant to TEx. CIv. Pnacr. & REII¿. ConBAnn. 574.351 (Jones McClure 2015).

2. Whether the trial court abused its discretion in overruling GNH's objections to Demings' supplemental expert report from Dr. Keith E,. Miller for failure to adequately address the element of causation and denying GNH's motion to dismiss pursuant to TBx. Ctv. Pnecr. & REM. Conp Ann. ç74.351 (Jones McClure 2015).

STATEMENT OF THE CASE GNH accurately stated the Statement of the Case in this matter. Demings would only add that the Supplemental Miller Report filed by Demings in this matter (CR 50) was expressly incorporated by reference into the previous Kaper Report (CR 25), and vice-versa. In other words, the two reports are to be construed together, as if one report, along with all the information contained in both reports.

STANDARD OF REVIEW Demings agrees that the Standard of Review in this matter is abuse of discretion. See Van Ness v. ETMC First Physicians,46l S.W.3d 140,742 (Tex. *6 2015); Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873,877 (Tex. 2001). Demings further agrees that a trial court abuses its discretion only when it acts in an arbitrary or unreasonable manner without regard to any guiding rules or principals. Downer v. Aquamarine Operators, Inc.,70l S.!V.2d 238,24I- 42 (Tex. 1985).

STATEMENT OF FACTS This case arises out of, among various breaches of duty, the complete failure of GNH to administer the medication Xarelto to Demings despite a prescription from her treating physician for that medication. (CR 25, 50). Demings had been diagnosed with atrial fibrillation and previously suffered a mild ischemic cardiovascular accident. (CR 55). As a result, her physician, Dr. Dennis Calhoun, had prescribed Xarelto, to be taken by Demings as a measure to prevent her from suffering another and possibly greater and much more severe stroke. (CR 55). To be clear - the purpose for Demings taking the Xarelto in this case was solely to prevent her from suffering another stroke resulting from her atrial fibrillation. (CR 25, 50). GNH's own report admits that GNH failed to provide the Xarelto to Demings due to an 'oerror in the transcription of [the] order." (CR 64). Demings then actually suffered a severe stroke, and, prior to transferring Demings to the hospital, the charge nurse at GNH, after talking to a doctor, that the medication had effoneously been omitted from the MAR. (CR 55, 57, 64). As a *7 result, Demings has sued GNH for negligence, alleging that GNH, among other things breached their duty to provide her with necessary supervision;

o breached their duty to use reasonable care in treating her with the degree of

a

skill and learning ordinarily possessed and used by nursing home facilities East Texas; breached their duty to assist her in attaining and maintaining the highest

o practicable level of physical, mental, and psychosocial well-being; breached their duty to make sure that she received all of her medications

o timely and in the appropriate doses - namely the prescribed Xarelto; breached their duty to make sure that her' prescription(s) and/or orders were a accurately transcribed by the nursing home staff onto her charts/records/orders and to properly send her prescription to be filled by the pharmacy - namely failing to include Xarelto as one of the medications for the pharmacy to fill; and

a breached their duty to have a system in place that insures the accuracy of the transcription of her prescription order. SUMMARY OF THE ARGUMENT The trial court did not abuse its discretion in this case. The reports submitted by Demings meet the requirements of TBx. Cry. Pnacr. & RsNl. CopB Ann. $74.001 et. seq. (Jones McClure 2015) (hereinafter the "Medical Liability Act"). The reports provide more than adequate information to: (i.) inform GNH of the specific conduct that Demings has called into question, and (ii.) provide a basis for the trial court to conclude that her claims have sufficient merit for the case to proceed in the litigation. GNH seems to interpret the Medical Liability Act to

-1 *8 require Demings to provide a level of proof that is more attributable to what is expected at the final trial of this matter. Such is improper. Given the nature of this case, Dr. Miller's credentials are more than sufficient to demonstrate that he is qualified to render an opinion on causation in this matter. Further, the information provided in the reports on causation makes them not merely "conclusory." The reports provide reasoned analysis on the matter that provides a basis for causation. Should this Court disturb the trial court's decision in this case, such would be effoneous. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex. 2015). Finally, Demings argues in the alternative that the doctrine of res ipsa loquitor excuses the requirement of demonstrating causation in this case.

ARGUMENT

GNH argues that the reports proffered by Demings are deficient under the standards set forth by the Medical Liability Act, as interpretedby Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3 d 873 (Tex. 2001). Originally, GNH argued that there was a problem with the causation portion of the report proffered by Pauline Kaper, R.N. ("Kaper") because she is not a physician. Demings remedied that issue by supplementing that report with the report of Keith Miller, M.D., who is clearly a physician. The report of Dr. Miller, which was supplemental to the Kaper report, addresses and reinforces the standards of care, breaches of the standard, and the causation in this case, as originally set forth in the *9 Kaper report. Read together, the original report of Kaper and the supplemental report of Miller fulfill the obligations required by the Medical Liability Act. For this reason, this Court should affirm the order of the trial court in this matter

I dismissal of claims that clearlv A. GNH imnronerlv seeks a techn have merit. The purpose of the Medical Liability Act's expert report requirement is not to have claims dismissed regardless of their merits, but rather it is to identiff and deter frivolous claims while not unduly restricting a claimant's rights. Ross v. Sr. Luke's Episcopal Hospital, 462 S.W.3d 496, 502 (Tex. 2015); Scoresby v. Santillan, 346 S.W.3d 546,554 (Tex. 20Il). A plaintiff asserting a health care liability claim must serve each defendant with an expert report that includes a fair summary of the expert's opinions 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 damage claimed." Van Ness v. ETMC First Physicians, 467 S.V/.3d 140, 141(Tex. 2015) (quoting Tex. Cry. Pnacr. & RsN4. CooB Ann. ç74.351(r)(6) (Jones McClure 2015)). A challenge to the sufficiency of a report will only be sustained if "the report does not represent an objective good faith effort to comply with the fstatutory requirements]." 1d The report constitutes a good faith effort if it provides adequate information to inform the defendant of the specific conduct the plaintiff has called into question, provide[s] a basis for the *10 trial court to conclude that the claims have merit, and does not contain a material deficiency. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Samlowski v. Wooten, 332 S.W.3d 404,410 (Tex.20ll). The reports proffered by Demings clearly meet these standards. As stated above, the purpose of the expert report requirement is not to have claims dismissed regardless of their merit, but rather to identifi'and deter frivolous claims. In the very least the proffered reports demonstrate that Demings claims rise above the level of frivolous. The purpose of the report is not to fully and finally litigate the merits of the case, but rather to provide a mechanism to make sure the case is not being brought to harass the defendant.

As such, GNH was attempting to abuse a process, designed to merely insure that a claim being brought is bonafide, in order to cause a claim with clear merit to be summarily dismissed. Such was wholly improper.

In this case, the trial court found that Demings fulfilled the requirements of the Medical Liability Act. The trial court acted within its discretion in overruling GNH's objections and denying its motion to dismiss the case. To upset the trial court's decision in this matter would be improper, just as it was in Van Ness v. ETMC First Physicíans,461 S.W.3d 140 (Tex. 2015). (Appendix C). In that case, the Texas Supreme Court reversed this Court's decision reversing the trial court's *11 decision to deny ETMC's motion to dismiss case on virtually the same grounds and for the same reasons proffered by GNH in this matter.

B. Dr. Miller is qualified to address causation in this case. In order to provide testimony on causation, the expert must (i.) be a

physician, and (ii) be qualified to give an opinion under the Texas Rules of evidence. TBx. Clv. Pnacr. &, Rru. CooB Ann. ç74.403 (a)-(c) (Jones McClure 2015). The expert simply must demonstrate that he has knowledge about the specific issue that he is testi$ring about and that he meets the requirements of Texas Rule of Evidence 702 regarding the issue. Broders v. Heise, 924 S.W.2d 148, 152-153 (Tex. 1996). Put another way, the expert only has to demonstrate that the subject is common to and developed in his or her field or practice. Id.; Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App. - Texarkana 1997, pet. denied). In this case, Dr. Miller unequivocally states that he has familiarity with the standard of care (and the related assessment of causation) for the treatment of patients with strokes, hypertension, and related illnesses, and with conditions similar to those experienced by Demings

At the time of the care and treatment of Ms. Legatha Demings by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, form May 2012 through June 2012,I was familiar with the minimum medical standards of care applicable to the assessment, diagnosis and treatment of patients with strokes, hypertension, and related illnesses, as well as their complications and other medical conditions similar to those experienced by Ms. Legatha Demings and described in the referenced medical records. *12 I am familiar with the medical and nursing standards of care for the above referenced conditions applicable to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The minimum standards of care for treatment of patients with similar signs, symptoms and conditions as Ms. Legatha Demings that are the basis of this report, are national standards of care and do not differ from community to community. From the time of the medical treatment of Ms. LegathaDemings from ll4ay 2012 through June 2012, and through the present, I have had an active clinical practice as a family practitioner in Center, Texas that includes providing care to adult patients in nursing homes and rehabilitation centers, such as Ms. Legatha Demings. During my career as a family practitioner, I have worked with and or supervised medical office stafï, hospital staff, cursing home staff, and rehabilitation center staff, inducing medical technologists and nurses, in the care of my patients. I have also participated in the development and use of protocols, policies and procedures for the care of patients with strokes, hypertension and related illnesses, as well as their causes and complications, including adults such as Ms. Legatha Demings. In addition, based on my education, training knowledge and direct experience, I am familiar with the accepted and expected standards of cate, as listed below, for nursing home and rehabilitation center facilities who take care of patients with conditions such as strokes, hypertension, related illnesses, and their complications, and can offer opinions on the standards of care, the breaches of the standards of care and the causation of the injuries from these breaches. In my medical practice, I routinely rely on medical records, nursing records, lab reports, diagnostic tests and images, consulting physician reports and other patient data. I consider materials of this type to be generally reliable, unless evidenced otherwise, and they are the type of materials routinely relied upon by physicians and clinical staff in providing care to patients.

,See Report of Dr. Miller, pp 5-6 (CR 50) (Appendix B). Without a doubt, the prescription of a regime of blood thinner is clearly with the scope of Dr. Miller's *13 practice as a physician that deals with patients that are stroke victims and patients that reside in nursing homes. It is clearly within the scope of his expertise, then, to testiSr about the effect of failing to take the prescribed regime of the blood thinner. Moreover, Dr. Miller goes on to state additional information concerning his "case specific expertise," that further demonstrates his expertise in treating patients in nursing homes, expressly including patients that suffer from the "same or similar" conditions Demings, including illnesses related to strokes, hypertension, and related illnesses, gained through: 1) His attending, and successfully completing, medical school classes, and

residency, that teach the evaluation, diagnosis, cafe and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications.

2) Practical experience of diagnosing and treating patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

3) Discussions with colleagues atyearly conferences, seminars and meetings; 4) Study of technical works routinely published in textbooks, journals and

literature conceming the evaluations, diagnosis, care and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

5) My routine discussions and consultations with other physicians who also treat patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

*14 6) His routine and regular contact with nursing home nurses, staff and residents who take care of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

7) His knowledge and experience giving lectures and in-service conferences to the nurses and staff; 8) His experience service on numerous hospital and nursing home committees; and 9) His observation of nurses and nurse conduct, supervising residents and instructing nurses and residents in the evaluation, diagnosis ) eare and treatment of patients the same as, or similar to Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications.

Id. at pp. 6-7. Without a doubt, Dr. Miller provides sufficient information to meet the requirements for reliability under the applicable standards for Texas Rules of Evidence 702 and 703. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kunho Tire Co. v. Carmíchael, 526 U.S. 137 (1999); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006); Gammill v. Jack Williams Chevrolet, lnc.,972 S.W.2d 713 (Tex. 1998); Nenno v. State,970 S.W.2d 549 (Tex. Crim. App. 1998). As a practical matter, it would be virtually impossible to locate and retain a practicing physician who could truthfully state that he has specifically studied the specific effects of or had specific training concerning the specific drug Xarelto, as GNH asserts is required in this case. That is not required by the Medical Liability Act. Instead, Dr. Miller has provided more than sufficient

l0 *15 information that would qualiS him to testiff under Texas Rules of Evidence 702 and 703 on this issue, which is what is required. In this case, Dr. Miller provided sufficient information that he has experience in treating patients in nursing homesl and treating patients that have suffered strokes, which would necessarily include the medications associated with the treatment of the condition. Dr. Miller's report contains a long recitation of his experience and qualifications in dealing with stroke victims and nursing home patients. For this reason, the cases cited by GNH on this issue are inapposite,2 and GNH's argument on this point is simply not persuasive.

C. The reports do not simplv provide conclusory statements on causation. Dr. Miller provides a seventeen (17) page, single spaced report. He devotes four (4) pages of the report to addressing causation. See Dr. Miller Report pp. 11- 15 (Appendix B) (CR 50). Dr. Miller ultimately concludes that:

As a direct cause, this facility and its staff failed to comply with those standards set forth in paragraph numbers: 1 , 2, 3, 4, 5, 6, 7 , 8, 9, 10, ^[1] l, 12, 13, 14, 15, 16, 17, 18, 19, and 20.It is my opinion, based upon my experience, knowledge, qualifications and review of these records that these standards were not followed and the result was that Ms.

I Interestingly, GNH chooses to focus simply on its failure to provide Demings with the medication. However, it should be noted that Demings has asserted a number of breaches of duty in this matter, including the duty to provide the proper medication, that led to the demise of Ms. Demings. See Facts Section, supro, Page 3. These items are clearly addressed by the Miller and Kaper reports. 2 Colliri v. Pustejovslry,280 S.V/.3d 456 (Tex. App. Fort V/orth 2009, no pet) and HEB Grocery Co. v. Galloway,2014WL2l52I28 (Tex. App. - Beaumont 2014, not pet).

*16 Legatha Demings was harmed and injured. The failure to comply with these standards caused, within a reasonable degree of medical and nursing, probability and certainty, Ms. Demings to suffer a stroke, extensive hospitalization, rehabilitation, and related complications, which compromised her overall health and well-being, and resulted in an overall worsening of her condition, unnecessary and preventable pain, suffering, mental anguish, and loss of dignity. These injuries and illnesses could have, within a reasonable degree of medical and nursing, probability and certainty, been prevented or detected/addressed earlier if these standards had been followed.

See id. atp. 14 (Appendix B) (CR 50). Dr. Miller did not simply state this opinion in a conclusory matter. Instead, he devotes pages 11-L4 on providing the basis for his opinion, which includes, but is not limited to, the following matters: o In the hospital, Ms. Demings was diagnosed as having had a cerebrovascular

accident (CVA) or stroke. Ms. Demings was discharged from the hospital on May 25,2012.In his discharge summary, Ms. Demings' physician documented that this patient's stroke was of ". ..ischemic origin, most likely caused by her atrial fibrillation. In order to treat Ms. Demings' condition and prevent further strokes, her

a physician discharged her from the hospital on a blood-thinning medication, Xarelto. This physician stated in his discharge summary that Ms. Demings would be "...started (on) Xarelto for her anticoagulation to avoid further strokes.

a On May 25,2012, Ms. Demings was discharged from the hospital and admitted to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas for further recovery and rehabilitation. According to Ms. Demings' physician, this resident had begun to make some improvement as evidenced by improvement in her speech and increased movement of her left side. After being in the care of Garrison Nursing Home and Rehabilitation Center for

o less than two weeks, Ms. Demings became "confused, combative, and unable to communicate". On June 8,2012, she was taken by emergency medical services back to Nacogdoches Medical Center for emergency evaluation. There a

l2 *17 computerized tomography (CT) scan of her head revealed an ischemic infarction of her brain consistent with a stroke. One of Ms. Demings' consulting physicians, a neurological specialist,

a documented in the medical record that Ms. Demings had suffered a "Cerebrovascular accident extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis". Ms. Demings remained in the hospital for 12 days, and was discharged on June

a 20, 2012. At the time of her discharge from the hospital, Ms. Demings' physician noted in his discharge summary that this patient's overall medical condition had deteriorated as a result of her stroke she suffered at Garrison Nursing home and Rehabilitation Center, to the point that Ms. Demings was made a do-not-resuscitate status such that if she experienced a cardiovascular or respiratory failure, she would not be intubated or placed on a ventilator or breathing machine. A "Medication Error Report" made by the nursing staff of Garrison Nursing

a Home and Rehabilitation Center on June 8, 2012, documented that from the time Ms. Demings was first admitted to this facility on May 25,2012 until the time of her stroke and transfer on June 8,2012, Ms. Demings was not given her blood-thinning medication, Xarelto as ordered by her physician. This medication had been ordered to be given in a dose of 20 milligrams (mgs) at bedtime daily. This same report stated that "res. (resident) arrived after 5:00 pm on a Friday.

a This medication (Xarelto) was ordered along (with) all other meds from nursing home pharmacy - nurse transcribing orders had to have all meds written on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be delivered that night". The Medication Error Report went on to document that a nurse at this nursing

o home "failed to transcribe this med (medication) to MAR (Medication Administration Record)"... "an oversight". A question on this same form asked "Could the error have endangered the life or welfare of the patient?" The responsible nurse completing the form answered the question with "Makes her a higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

t3 *18 On a subsequent hospitalization on August 5, 2012, in his pre-operative history a and physical, one of Ms. Demings' physicians documented what had happened to her during her stay at Garrison Nursing Home and Rehabilitation Center from May 25,2012 through June 8, 2012. This physician stated that prior to her first admission to this nursing home, Ms. Demings "was found in atrial fibrillation. She was started (on) Xarelto. Apparently... did not follow-through in the nursing home, and she had.. strokes, disabling, with severe She was rendered substantially disabled." This physician also documented in his discharge summary of this August 5,

a 2012 hospital stay, the importance of a patient such as Ms. Demings who suffered with atrial fibrillation, to always remain on a blood-thinning medication such as Xarelto. He stated that "She is to continue with Xarelto. Instructions were given to the family to make sure that this medication is never stopped." The staff of Garrison Nursing Home and Rehabilitation Center in Garrison,

o Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for the development of future strokes due to her past medical history which included hypertension, atrial fTbrillation, a previous TIA and aprevious stroke.

See id. at pp. tI-14 (Appendix B) (CR 50). What is more, Dr. Miller reviewed the report of Kaper, to which his report is supplementary. In Kaper's report, there is also a discussion concerning causation:

Causal Relationship Between the Fail ure and the Iniurvl}{arm Xarelto is a blood thinner, the precise purpose of which is to reduce the risk of stroke in patients who suffer from atrial fibrillation. Defendant(s) failed to provide Ms. Demings, with the Xarelto for fourteen (14) days . She then had a severe stroke, which would have in all reasonable medical probability been avoided had Ms. Demings been administered the Xarelto, the purpose of which was to prevent a stroke. Further, the Medication Error Report generated by Defendant(s) clearly recognizes the problem of not administering the Xarelto to Ms. Demings Checking rr\Esrr to the question of whether the "error"

t4 *19 (failure to administer the Xarelto to Ms. Demings), "could have endangered the life or welfare of the patient," the Director of Nursing stated:

Makes her a higher risk for stroke in view of her diag. of atrial fibrillation (not taking it) Taking the medication makes res. higher risk for a bleed.

Atrial fibrillation causes the heart to pump irregularly, and the concern is that pooling blood can clot in the upper chambers of the heart. These clots may then sometimes travel through the body to the brain, with a stroke being the result. As a result, many patients diagnosed with atrial fibrillation are prescribed a blood thinner, one of which is Xarelto, Xarelto is designed to block the enzyme called Factor Xa. Factor Xa is the activated form of the coagulation factor thrombokinase, known eponymously as Stuart-Prower factor. Factor X is an eîzymq a serine endopeptidase, which plays a key role at several stages of the coagulation system. Inhibition of Factor Xa interrupts the intrinsic and extrinsic pathway of the blood coagulation cascade, inhibiting both thrombin formation and development of thrombi, Factor Xa is inactivated by proteinZ-dependent protease inhibitor (ZPl"), a serine protease inhibitor (serpin). By inhibiting Factor Xa in this way, Xarelto is able to inhibit the dangerous blood clotting that can be a result of a patient suffering from atrial fibrillation:. Xarelto is well absorbed from the gut, and maximum inhibition of the Factor Xa occurs four hours after a dose. The intended effect lasts approximately 8-12 hours, but Factor Xa activity does not return to normal within 24 hours. Given that Ms. Demings had previously suffered a mild CVA, likely as a result of clotting caused by atrial fibrillation, it was extremely important that she be placed on (and maintain) a regime of medication to reduce blood clotting. That is why Ms. Demings' treating physician prescribed the Xarelto. Ms. Demings entered Defendant(s) facility to rehabilitate herself. The family reports that she was doing very well, that she could communicate well, and that she was fully cognizant. According to the family, Ms. Demings was needing to gain strength in her hand. It was only after she stopped taking the medication that she suffered another, this time much more sever CVA that, according to *20 the family totally and completely incapacitated her. The medical records on June 8, 2012, indicate that any blood thinner that Defendant(s)had huniedly administered to Ms. Demings had not taken effect in time to stave off the CVA. Since June of 2012, while taking the Xarelto, Ms. Demings' medical records demonstratethat she has not suffered another CVA.

See Kaper Report 3-a (Appendix A) (CR 25). The information contained in these two reports provides adequate information to inform GNH of (i.) the specific standards of care at issue, (ii.) the specific conduct of GNH that Demings has called into question, and (iii.) how GNH's conduct caused injrrry to her. Further, the information provided a basis for the trial court to conclude that the claims have merit, and are they are not frivolous. For these reasons, then, the statements on causation as provided by Kaper and Dr. Miller are more than sufficient to meet the requirements of the Medical Liability Act. GNH seems to interpret the Medical Liability Act to require Demings to provide a level of proof that is more attributable to what is expected at the final trial of this matter. Such is improper. The reports provide reasoned analysis on the matter that provides a basis for causation in this case. The trial court found the reports to be sufficient and denied GNH's objections and motion to dismiss. Should this Court disturb the trial court's decision in this case, such would be erroneous. See Van Ness v. ETMC First Physicians,46l S.W.3d 140 (Tex. 2015).

t6 *21 D. Alternativelv. this is a ma tter of res ínsa loouitur. For the reasons stated above, the expert reports that were furnished were

sufficient to meet the requirements of the Medical Liability Act. To upset the trial court's ruling would be erroneous. See Van Ness v. ETMC First Physicians,46l S.\M.3d 140 (Tex. 2015). Alternately, however, Demings also respectfully asserted in the trial court that an expert opinion in this case on causation is not required in this matter because the doctrine of res ipsa loquitur applies. Res ipsa loquitur \s applicable when the following two circumstances are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. See Haddock v. Arnspiger,793 S.W.2d 948,950 (Tex. 1990). Res ipsa loquitur is a rule of evidence by which negligence many be inferred, it is not a separate cause of action from negligence. Id. With regard to medical malpractice cases, res ipsa loquitur applies to those cases to which it had been applied as of August 29, 1977, the effective date of the Medical Liability Act. Tpx. Crv. Pnacr. & Rrv. ConB Ann. ç74.20I (Jones McClure 2015). Res ipsa loquitur remains applicable to medical malpractice cases where the nature of the alleged malpractice and injuries are within the common knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at 951. The Haddock case describes examples of areas where res ipsa loquitur has

T7

*22 been held to apply to medical malpractice claims: negligence in the use of mechanical instruments, operating on the wrong portion of the body, and leaving surgical instruments or sponges within the body. Id. This is the sort of case in which res ipsa loquítur applies. GNH clearly asserted in its own report that the failure to administer the Xarelto to Demings "makes her a higher risk for stroke in view of her diag. of atrial defibrillation." No expert is needed - causation is shown directly from GNH's own mouth. Put another wây, GNH, by failing to provide the Xarelto to Demings caused her to suffer from the exact malady as what the medicine is intended to prevent - a stroke. That is by definition res ipsa loquitur As such, Demings would alternatively argue that expert testimony on causation is not even necessary in this case.

CONCLUSION AND PRAYER

WHEREFORE PREMISES CONSIDERED, Appellee Legatha Demings respectfully requests that the Court deny Appellants Garrison Nursing Home and Rehabilitation Center's and Garrison Nursing Home, Inc.'s appeal in this matter, affirm the order of the trial court in this matter, remand this matter to the trial court, and grant to her any and all further relief to which she may be justly entitled.

*23 Respectfully Submitted, L¡.w Onnrcn on SrrpHnN SHrnns, PLLC Attorney and Counselor atLaw 123 San Augustine Street Center, Texas 75935 Tel. (936) s98-30s2 Fax. (936) 598-3031 stephen@shireslawfi rm. com By: /s/ Stephen Shires \il. Stephen Shires Texas Bar No.50511894 Attorney for Legatha Demings

CERTIFICATE OF SERVICE This is to certi$ that on the 9th day of November,2015, atrue and correct copy of the above and foregoing document was served on the following in accordance with the Texas Rules of Appellate Procedure: Mr. David W. Frost 1121 ESE Loop 323, Suite 200 Tyler, Texas 75701 Facsimile (903) 58 ^[1] -3701

/s/ Stephen Shires Stephen Shires

CERTIFICATE OF' WORD COUNT COMPLIANCE I certifu that the word count of this Appellee's Brief is 5801 words. I relied on the word count function of my word processor to determine this count. I certiSr that this brief compliance with the typed-volume limitations of Texas Rule of Appellate Procedure Number 9. It has been prepared in proportionately spaced typeface in 14 pt. Times New Roman font.

Dated: November 9,2015 By: /s/ Stephen Shires Stephen Shires

I9

*24 INDEX OF APPENDIX A. Expert Report of Pauline Kaper B. Expert Report of Dr. Keith Miller C. Van Ness v. ETMC First Physicians,46I S.W.3d 140 (Tex. 2015) D. Tpx. Ctv. Pnacr. & Rstvt. Coop Ann. ç74.201(Jones McClure 2015)

Tsx. Ctv. Pnecr. & RBIr,l. Coos Ann. 574.351 (Jones McClure 2015) Tpx. Cw. Pnacr. & Rsivt. Coop Ann. ç74.403 (Jones McClure 2015) *25 o

Append 1X *26 DISAßTLTTY NHHDS

116

Tenaha Street Center, Texas 15935 Pauline Kaper, R.N. Phone: (936) 59i-8900 Facsimile: (936) 598-2300

JanuarY 10,2014 Mr, Stephen Sirires '\ Law Office of Stephen Shires PLLC 403 Nacogdoches Street, Suite ^[1] Center, Texas 75935

RE: Legatha Denmùngs v. Garrison Nursing Home and Relmbilitation Center, et. al,, Cause Number CÍ+¡O¡ 19; in the District Court of Nacogdoches County, Texas Dear Mr. Shires, In response to your request for me to review the above-matter, the foliowing is my report, It is my r:lcle¡siandin[ ttrut yóu hnvc" instituted suit against Defendants Ganison Nursing Home an¿ Ránabilitatior¡. Ceirter and Ganison Nur:sing Home, Inc., alleging that they, through their directors, officers, employees, and/or agents, committed negligence (and potentially gross neglige.rroe) against you]: ciient, Ms. Legalhtr Ðerrlnings, by fai.liilg Tr¡ adnünister tnedisnlio¡:l to hei tliat had been prescribcd 1o her by her treating physician. \iou allege thal sl,le {.lien suff'ered a severe stroke that the said medication was intendecl to prevert. It i.s rriy furthe¡: unrlc.lslnnclin¡¡ that you are assertí¡g tJrat ìJeft¡clant(s) also conlu,i{ßcl negligencc by failÍng to itave a ¡:ltlcetlttre in piacc to insure tliat rrrrors ir: î:.anscription of ¡:eço¡:tls (as was ilte ca,se in thj.s maller) do nnl

ardlor are iclentified ancl coueclecl in n timely rnârJticï. Thu fbllorl'irrg consti{irtes m.y 'sáor o1:inion as to the relev¿ult standard of care govcrrrirrg nuruitrg honre concluct, how Def'end¿rrts violate,cl their duties/stanrJarcl crf care to Ms. Dcmmings, and how those violations proximately caused Ms. Demmings' injurY. A nnlicablc Stantlard ol' (-*arc

In general, nursing facilities have the following duties, among others, as a part of their applicable standard of care: 1. to provide lcsidenls tliith rinrely ¿urd accr.uate care ¿Ì:ìsesËil1eüts ¿utcl necessal¡' srqlcrvision; 2. to use ïeasonable c¿ire in trealing resiclc¡rts rvith the cie'gree ol, sk"ilJ ancl learuing orrlinarily

possessed and used by nursing home facilitics in the salrc ür sirnilar locality; nrrcl

I

*27 3. to assist residents in attainiirg and rnaintaining the higirest practicable level of physical' mental, and psychosocial well-being' Included within these general duties are the following parlicular duties that are

particularly relevant in this case: o the duty to make sure that residents receive all of their medications timely and in the approPriate doses; o the rluty to make sure that the rcsirienl,rs ¡:rescliption(s) arrcì/Or: Úl'clers are acculalely transcribed by the rur::sing home stalf ontr¡ ilìe residctrt's cha.rl,n^/reoortis and properly sent to be f,riled bY the PharmacY; and

" the duty to have a system in place that insures the accu¡acy of said tLanscriptions' to N{.tet til. d M ch Slatrdnl'tls ol'Care

.L

In this matter, Ms. Demrnings was a resident at Garrison Nursing Home and r{e}nbilitati*n center for the purpose of seeking rerrabiritatior:. she rrad bee' rliagnosed with arrjar fibriJ,ration and p."uio"Ëry suffered a milã iscrrcnric carciiovascnlar ¿ccident ("cvA" or ,*stroke,,), and as a result, her ph.yrician had prcscriboel xarelto (20nrg) to be Hkcn to reduce the rislc that she would suffer atrr:ther (and possibly greltcr a¡rd much mole scvei:e) CVA' The n:cclicalicxr *u, prup*,ìf oraerert by Dr. Ilen.Dis ir*llrnun. I-}Orryer¡¡,r. i1** tr¡ ail err:(.r: in the h:anscri¡:tir:n of the ,oa*í Uy a nulfÌe ín the cnrploy of De'f'errdar:f(s)' thc Xarclto was nilt included in the list of medications that Defendant(s) wås tó provide for Ms' Demmings' According to the Medication Error Report generated by Defendant(s):

Error in transcription of order [(written doctor's order from hospital)] - Ies' arrived ater l,oolp.m. on a Friday. This medication was ordered along [with] ali other meds nnr,, riu,:si,rg home ¡rl ur,'.,,nry - nur.se lrarlscrillìng cUrlers had to have

"uitt*n ", 1rh*ärruoy oirJer sheets and faxcti itt 1o 1r¡nrruacy by 6 p'm' so all meds ¿*v-"ãrrá te deliverea thai night. Nurse transcribing faiied to transcribe this med. to MAR' Al oversight.

At that time, Defendant did not appeã to have a system in place to. insure orders are -that i"ranscrihecl proirerly, Å.s a result, ihe pharL,racy did not frll a prescriptiol.for Xarelto for Ms' llennri:rgs, ar:cì from N,l;ry 25, ZOiZ, through iune,S, 2-012,Defendant(s) did not administer any Xarelto tä lr¿s. Demmings, as her doctor had prescribed'

' Further, it appears from that same Medication Error Report tha! al some p-oint on June 8' 2012, after O"f"oa^tttqs) realized that they made a mistake in not giving Ms. Demmings the Xarelto, fufr. n"*-ioËr',h"r, was adminisiered th¡ee doses of the medication (60 mg) in a very ,frot pétioa of time. This creates a veïy dangerous situation for Ms' Demmings'

onJune8,20!2,Ms.Demmingssufferedasubsequent,verySevefeCVA' For reasorrs that sh6¡.lcl be iqr¡rarent on ll:ßir face, it is irn¡:crntive thtt' nnrsing holnes

administer the prr:per rneiiioation i,:r'the proper nmount to its vesidsr¡'ts' cle::tninly, this i's an *28 important issue for all medical personnel, including pharmacists, because even to a healtliy p"rron, ingestion of the wt'ong mådication (or the wÏ91g dose) rnay be extremely harmful, toxic and in some cases even lethal. This concern is magnified exponentially for residents in nursing hornes, many of whom are already in a weakened physical condition' Further, the failure to continue a rágime of medication that has already been introduced into the body can complicate the pliysical l::oblems that the patient suffers from, and may cause problems with any other medications that he or she is taking.

Therefore, it is crucial that when a new resident is admitted to the facility that his or her information be properly transcribed, especially when it comes.to prescriptions and medications' For exampl., ,ho.,íd information about an allergy to a medication be omitted, such could lead to a very dangerous situation. The exact same thing is true here where the enor in the transcription of thå order/records caused Defendants to fail to administer a medication to Ms. Demmings, the purpose of which was to prevent any further (or more severe) strokes' As such, it is extremely irnportant that ilie facility tav" u proô"rr in piace io verify that the transcription is correct, or that any mistake be caught aå quickly as possible and fixed. No such process existed in this case, and as a result of Ms. Demmings .toi tuking the Xarelto, she suffered a severe stroke while in the care of Defendant(s).

¿rnd th

C

Xarelto is a blood thinner, the precise pulpose of which is to reduce the risk of stroke in patients who su1'¡sr l1:::r nlrjal fib¡:illaiion. Def'erxiuurt(s) f'ai.led ln providc Ms. Dentnìngs rvith the Xar.eito for f:i:uïtcen (14) clays. She thsn lt¿lci a severe sir<lke, rvi¡ich would liavc' in all reasonable medical probabiliiy been avoided had \4s. Denrmîngs bee¡: ¡.c1minjsfi:led tltc Xarelio, the pu¡pose of which was to plevent a stroke'

Further, the Medication Error Report generated by Defendant(s) clearly recognizes the r(111{)' to the questior: <lf' ro¡lenr of not -adr¡inis1elirlg the Xarclto tr: Ms. Demnrin¡1s. Checl*"ing rvhelher the ,fcrro¡'', ({hÍlure to atlmi:ri.ster ti]s X.ar'{,!lto To il4s. Deni:Ïings), "could havt: ' endangered the iife or welfare of the patient," thc Directal'of Nutsing $ta1'ed:

Makes her a higher risk for stroke in view of her diag. of atrial fibrillation (not taking it) Taking the medication makes res, higher risk for a bleed' Atrial fibrillation causes the heart to pump irregularly, and the concern is that pooling

biood can clot in the upper chambers of the heart. These clots may then sometimes travel ti:uo¡gh the body to fliô b::ain, with a stroke being lJ:e result. As a result, rn¿ìny patients clingnTrsed with a;id fi.]:rillation are prescribed a blood thinne"r, one of r'r'hich is Xa::elto.

Xarelto is designed to block the enzyme called Factor Xa. Factor Xa is the activated form of the coagulatión factor thrombokinase, known eponymously as Stuart-Prower factor. Facto¡ X is an erTzyme, a serine endopeptidase, which plays a key role at several stages of the coagulation systcm. Tnhibition r¡l Faclor Xa intcr:rupts the ilrtr:insic ancl exü"iÛsic pzrthrvay of tlie i:to|d coagulation cascerde, inhilritir:.g both tirrornbin forrnation atrd developnent of thlomhi' Factor Xa=is inactivated by protein Z-dependent protease ir:ldllitor ("ZpI"). a serine protea$e irllibitor (scrpi6). ey infriúiririg Factor Xa in this way, Xarelto is abler to inllibit the detnge.rous blood ctoit¡rg that can be a result of a patient suffering from ¿rt¡:ial fibrillarion. Xare"lto is well *29 absorbed from the gut, and maximum inhibition of the Factor Xa occurs four hours after a dose. The inte¡ded effect lasts approxirnateiy 8-12 hours, but Factor Xa activþ does not return to normal within 24 hours.

Given that Ms- Demmings had previously suffered a mild CVA, likely as a result of clotting caused by atrial fibrillation, it was extremely irnportant that she be placed on (and maintaìn) a regimã of medication to reduce blood clotting. That is why Ms. Demrnings' treating plrvsiciaá pr:escr.ibccl the Xarelto. Ms. l)cimnings entareel De'ftnclcnt(s)' facility.ttl rchnbilit¿rte Treiself. Tire fan:ily reports that she was doirr,g verlr çsll, thnt she cnuJçl ocunnlunic¿tl.e r,r'ell, ancl that she was ful1y cognizant. According to the farniJy, M.s. J)en:ntings was r:ecclittg ft: gitin

- It was only after she stopped taking the rnedication that she suffered strength in her hãnd. unoth-"r, this time much more sever CVA that, according to the family totally and completely incapacitated her. The medical records on June 8,2012, indicate that any blood thinner that t)efcncta¡t(s) had huniedly administered to Ms. Demmings had not taken effect in time to stave r:ff the CVA".r

Since June of 20!2, while taking the Xarelto, Ms. Demmings' medical records demonstrate that she has not suffered another CVA.' $UUttlt.r,¡ f.llxtt"l.{.()Hi¡li'ol\

Defendant failed to meet its applicable standard of care in this case. Defendant breached the general and specific duties that it owed to Ms, Demmings. Namely, Defendant: . breached. its duty to provide Ms. Demmings with necessary supervision; . breached its duty to use reasonable care in treating Ms. Demmings with the degree of

skili and leaming ordinarily possessed and used by nursing home facilities East Texas; ¡ breached its duty to assist Ms. Demmings in attaining and rnaintaining the highest practicable level of physical, mental, and psychosocial well-being; . breached its duty to make swe that Ms. Demmings received all of their medications timely and in the appropriate doses - nameiy the prescribed Xarelto; r breached its duty to make sure that Ms. Demmings' prescription(s) and/or orders were accurately transcribed by the nursing home staff onio her charts/records/orders and to properly send her prescription to be frlled by the pharmacy - namely failing to include Xalelto as one of the medications for the pharmacy to fill; and

, breached its duty to have a system in place that insures the accuracy of the transcription of Ms. Demmings' prescription order. Defendant's breach of its duties (as described above) in this case directly and proximately

caused the injuries suffered by Ms. Demmings -namely the stroke she suffered on June 8,2QI2. What makes matters even worse is that the family members state that they repeatedly informed t ln fact, administering such a large arnount of Xarelto in such a short period of time after uot giving it to Ms. Demmings for two weeks was likely defrimental to Ms. Demmings, and it likely also contributed to causing the severe CÍA. If this was done without the express direction of the treating physician, then this wouid constitute another violation of the standard of care by Defendants.

*30 the nursing home staff that Ms. Dernmings was supposed to be receiving the Xarelto' and ufparently"no one in Defendant's organization decided to check the records to see if a mistake had been made. It was only whãr Ms. Demmings was being taken to the hospital that Defendant(s) realized their mistake. According to the the Medication Error Report generated by Defendant(s):

How was the error discovered? Prior to transfer to Hosp. Chg. Nurse_When talking [with] Dr. coffman realized medication not on MAR & reported to c'

'When? 9:00 AM 618112. Hughes. i have developed the foregoing opinions after reviewing:

n Various medical records of Ms. Demings, specifically including, b{ ryt limited to, records from Nacogdoches Medical Center foi admission on May 22,2012, and June 8, 2012;

. The .,Medication Enor Report" generated by Defendant(s); and r Other information provirled by Ms' Demmings' family'

Date: JanuarY I0,20I4 Pauline Kaper, ¡ Although, it appears that Ms. Demmings may have suffe¡ed a mild Transient Ischemic Attack ('TIA") on March 3, Z-Of ¿, ulîrórt t*o CZ) years later. The farnily reports that all symptoms of the TiA had resolved themselves by the time Ms. Demmings reached the emergency room'

*31 Medication Error Report Date of Report ûu'.rx,^ S Patient P hysicia n st Room No Date of Error Time of Error .l\

M(

Medicat ion Give Do tven Rte. of Adm

Ê

What was Ph What was your source of information regarding the medicat¡o iven ? f] Kardex E cr'urt

f-l Verbal order 0 . Reason for making YeÞ, a PA 1

/,

'n{,( n Cou the l¡ or welfare of the pat Yes f] ruo Explain 'r What is the actual effect of the error made on the patient? ã

scovere

'¿>

d2

When Who notif ied the physician? When? Hes he seen the patient since the error was made7 úr",

n¡ro

What precautions can you take to prevent a similar error re¡ Nurse mð ettot nð o gnature o urslng S¡9n¡t Ph ysic lan U D ate f orm 3117 BRtcGS, oes Mo¡nes, towa ^[50306] PRINTEO IN U.S.A MEDICATION FRRNR RtrÞñT¡T *32 Curriculum Vitae of LOIS PAULINE I{APER, R.N. B7B County Road |oaquin, Texas 7 5954-33L8 Phone 936'248-45t4 JltilSLo_NAt; Married.

Marital status August 3,1939. Date of Birth:

ED"lJç,ÁTION,I Alvin funior Colìege August t97Z - Associate inApplied Science Degree San Iacinto Junior College May I979 Nursing Home Administrator #4392

LICENSE:

Registered Nurse #2'28t64 Nursing Home Administration

T'liAclTI,l\1ft. August - November lg}4lnstructor Alvin communify college Meãication Administration course to certify Medication Aides

UXJIIil};W A-¡¡eust lq72 - Itt Registered Nurse at U.T.M.B. in Gaiveston, Texas ¡:ø - ¡¡* Iulv ll974":.Mav 1979 bii".tot of Nursing at Manor Care - Texas City, Managed 40 nursing facility employees and staffing for a 110 bed nursing home. Ma¡' 197? - Itlcvenrbel:l Administrator at Manor Care - Texas City. Managed 100 empioyees. Operated the facilÍty within budget. impìemented a safefy prog{am which réduced lost time accidents. One year with no accidents. Reduced the aged accounts to a minimum. Developed an incentive plan and reduced sick time to almost zero, Developed policies and procedure manuals, During my admÍnistration, the facility maintained a Superior Rating with the Texas Department of Health. Increased the private pay census to 50% and had a waiting list for admissions.

*33 S s p t c¡1i¡elå-1 9!3 ;- Xe!:çt g¡lil!-q ¡-r-ll y' I h e S l- a tc Il r¡ a-r-dlf'NUr¡iug$ul e,: Manor Care Nursing H;r; received a direct hit by Hurricane Alicia' My staff of twenty-two ãmployees and I cared for over ninety residents' State Board of Nursing necognized my facility for the job that we did during the hurricane. D elcem h f¡*'!. t8 3 --D ecq ÌlrJ:E: !lj¿84 R%irt.;d Ñu.r. Coordinator of Home Health ServÍces at Memorial Hospital of Galveston County. Employed to start up a new department of Home Health Service, Coårdinating services in the home for NursÍng, Physical Therapy, Occupational Therapy and Speech. Coordinated a staff of I and *orkud wit thã doctors and S-ocial Services to receive referrals. Developed forms, policies and procedures manual to develop the Home Health Department. I_u¡sjggå:U.a rshlåB-6* 'itot"

of Texas v Autumn Hills Convalescent Center, Inc' Requeited by the Assistant Attorney General of Texas, David Marks to work witir the prosecution of the staff and management of Autumn Hill Nursing Home. ihe care concerned the multiple deaths of nursing home patients but specifically Elnora Breed, As reported, "ln November L978, Mrs' Kaper, R.N. a nursing consultant was hired by Autumn Hills NursÍng Home after the state health ãepartment found problems at the home. Mrs' I{aper was to create and put.in place a plan of correction for the problerns' Mrs' Kaper consulted with the staff and patients for three weeks and the state came back and the problems *"ru ,eroÍved at that time." Mrs. I(aper worked with the special prosecutor during the six month trial where she testified multiple times cbncerning the murder case. The .State of Texas v Autum Hílls Convalescent Center, Inc. revolved around the widespread care and deprivation and harm caused by a corporation's financial decision to cut esiential services and supplies in order to maximize profits. J¿rntl¡rr.v 1.9tF - L9B6 Mu.,o. Healthcare, lnc,: Asked to trouble shoot for a nursing home that was in trouble as Administrator for Clear Lal<e Care Center in Webster, Texas' This nursing home was in serious trouble with multiple deficiencies and placed on vJndor hold by the state of Texas, Brought facility out of vendor hold in forfy-six daYs' Agssåt-l-9$ú:l.u-us,l-995 M".,o. Healthcare, Inc. Began as a trouble shooter for the twenty nursing homes in Texas, Arkansas, Oklahoma, and New Mexico. At this same time was NursÍng Home Administrator for Pine Grove Nursing Home in center, Texas. Managed 80 employees. Operated the facility within budget' 1-10 Bed skilled facilitY,

*34 tuucl-9tì{l- Received Nursing Home Administrator 0f The Year Award frorn the Texas Board Of Nursing Home Administrators' lru$-f9 i.ü-:Awust ? 0-il 5 ;,1"*î"g H"-" e¿*inîritttor of Green Acres Nursing Home Center, Texas' f"frn"gãa gO emplo;;s. Operated the facility within budget' L09 Bed skilled facilitY. Ian\rary ?Û06 - Il'qstl¡rf fWii*ì,*¿ Nut:se em¡-rlr:yed by Disability Needs' Inc" Wo'rl< rlirectly wifli iUfutt*yt anil Pamela Cunningham non'attorney dis ability rePresentative. Maintain aìl medical records received on the B0 to 100 disability clients that are represented at anY given time'

the ciictll and his or her physical and mental status' prepar.e an outline "f"¡rit witilin the outline read and write about all medical records on each and every visit. From the medical records state in the outline the reason for the visit, the diagnosis, the current vital signs and description, and the plan of action for that client' Meet with every client and prepare all documentation required by the Texa¡ Disability Determination Serviies in Austin, Texas. Discuss by phone with physicians and meáical personal who are making thtl clcr:isions concerning ifrå mectical conditior, ãf th. client to make sure they have all current documentation.

*35 Appendix B

NO.

*36 C-14-30319

LEGATHA

DEMINGS IN THE DISTRICT COURT $ Plaintifl, $ $

v 145th JUDICIAL DISTRICT $ $

GARRISON NURSING

HOME AND $ REHABILITATION CENTER AND $ GARRTSON NURSING HOME, INC. $ oF N.A.COGDOCHES COUNTY, TEXAS Ðefendants. $ PI,AINTIFF' S SUPPLEMEIÍ.TIA.LITXPERT REPORT COMES NOW Legatha Demings ("Demings" or "Plaintiff') and files this her Supplemental Expert Report in this matter, and in support thereof respectfully shows the Court as follows:

l. On April 6,2075, the Court heard Defendants' Motion to Dismiss, wherein Defendants assefted that the expert report proffered by Demings in this matter was deficient. 2. On April 6,2A15, the Court signed zurd entered an Order (filed on April 7,2015) that denied Defendants' Motion to Dismiss, but found that the expert report was deficient in that "it was not created by a physician as required by Section 74.351(r) (5) (c)."

3, The Court granted Demings a thirty (30) day extension to cure the deficiency pursuant to Section 74.351. 4. Demings now supplements the expert report that she previously filed in this matter with the attached expef report of Keith E. Miller, M.D., which, among other things, addresses causation in this matter. Dr. Miller's report addlesses all the issues of the case, cures the deficiency iclentified by the Courl, and is supplemerfal to the expert report previously filed by Plaintiff in this matter.

5. Dr. Miller's expert report and curriculum vilae are attached hereto and incorporated by *37 reference herein (and in the previous expert report from Pauline Kaper) for all pulposes as if recited verbatim.

Respectfully Submitted, Lnw Ornce oF STEPHEN SHnes, PLLC Attorney and Counselor at Law 123 San Augustine Street Center, Texas 75935 Tel. (936) 598-3052 Fax. (936) 598-3031 stephen@shireslawfi rm. corn By: /s/ $iephçn Sllires W. Stephen Shires Texas Bar No. 505f 1894 Attorney for Legatha Demings

CERTIFICATE,qI SS.ßVICE This is to certiS that on the 5l' day of May, 20!5, a true and correct copy of the above and foregoing document was served on the following in accordance with the Texas Rules of Civil Procedure: Mr. David W. Frost 1121 ESE Loop323, Suite 200 Tyler, Texas 75701 Facsimile (903) 581 -3701

lsl Steplren shtuei Stephen Shires

*38 Ku) 8, l4¿/J")r, /î4,5,, 4,r4,,,.4,P, ø¿O'/atalt" &l¿eá' ' &nle¿, '/e'z<t¿ 759.?.5 (rsø¡ srs-zz/6 . 4"" (rsø) s98-5059

May 4, 2015 Mr. W. Stephen Shires, Attorney at Law The Law Offices of Stephen Shires, P.L.L.C" 123 San Augustine Street Center, Texas 75935

Re: Ms. Legatha Demings Dear Mr. Shires: Thank you for allowing me to review this case on behalf of Ms. Legatha Demings. My opinions in this report are based on the information I have reviewed to date and my education, training, and direct experience in the diagnosis and treatment of patients with conditions similar to those of Ms. Legatha Demings as described in the materials I have reviewed and discussed in thið report. Èach opinion is based on reasonable medical and nursing, probability and certainty.

BACKGROUND

My name is Keith E. Miller, M,D., and I give this report for the purpose of complying with any applicable provisions or codes. As my attached curriculum vitae demonstrates and which is incorporated into this report by reference, I am a Medical Doctor currently licensed to practice in the State of Texas and formerly licensed in the States of Louisiana and Arkansas. I currently practice in nursing homes similar to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, I have had numerous patients similar to Ms. Legatha Demings. I am board-certified in Family Medicine and I have been in practice for more than 25 years. By virtue of my education, training, and direct experience, I am qualified io render opinions regarding the standards of care as they apply to this particular case.

i *39 I am over the age of 18, of sound mind, and capable of preparing this expert medical report. My opinions in this report are based on the information I have reviewed to date, as well as my education, training, knowledge, and direct experience in the diagnosis and treatment of patients with conditions similar to those of Ms. Legatha Demings, as described in the materials I have reviewed and discussed in this report. My opinions are based on reasonable medical and nursing, probability and certainty. My opinions concern the care and treatment received by Ms. Legatha Demings, or lack thereof, in regard to the applicable standards of care and the manner, in which the care rendered to Ms. Legatha Demings by the healthcare facility in this case, fell below the standards of care and caused the illnesses of Ms. Legatha Demings,

It is impossible in an expert medical report to marshal all of the proof regarding the standard of care, breach, and causation and include it within my expert opinions in this case. My report represents a good faith effort to inform the health-care facility of the specific conduct that I am calling into question and to provide a basis for anyone to conclude that the claims in this matter have merit. Obviously, âñv defendant in a medical malpractice case has medical knowledge of medical terms which, when read in context with my opinions, will be clear to any competent healthcare facility,

This report will provide a summary of my opinions, as of this date, regarding: 1) the applicable standards of care at issue in this case; 2) how the apþticanie siandards of care were violated and breached; 3¡ how the violations and breaches of the applicable standards of care resulted in the illnesses of Ms. Legatha Demings; and 4) what the health-caie facility in this case should have done differently to prevent the illnesses of Ms. Demings. I reserve the right to amend, or add to, my opinions upon review of new records, testimony, or facts, as they become available, or upon further review of existing materials.

MY EXPERTISE

I am a medical doctor currently licensed to practice in the State of Texas and formerly licensed in the States of Louisiana and Arkansas. I have been a licensed medical doctor since 1985, have been practicing medicine continuously since then, including during the time of this claim, and as part of my practice, have been, and am currently, involved in the diagnosis, care, and treatment of many patients similar to Ms. Legatha Demings. I am familiar with the diagnosis and treatment of patients with cerebral vascu[ar accidents (strokes), hypertension, related illnesses and their complications, along with any other conditions experienced by Ms, Legatha Demings. I am familiar with the standards of care applicable to physicians, nurses, hospitals, nursing homes, rehabilitation centers and their statfs that treat patients such as Ms, Demings. Page2 Report of Keith E. Miller, M.D *40 My training is similar to the training of the physician, healthcare providers, nurses, and facility staff in this case,

After graduating from medical school in 1985 at the University of Arkansas, I received additional training and experience in a family practice residency program which lsuccessfully completed in 1988. I have over 25 years' experience practicing medicine in office settings, hospitals, nursing homes, rehabilitation centers and emergency departme.nts. I am board-certified in Family Medicine by the American Board of Family Medicine, and have been in practice for more than 25 years. By virtue of my education, training, knowledge and direct experience, I am qualified to render opinions regarding the standards of care as they apply to this particular case, including the standards of care applicable to physicians, nurses, hospitals, nursing homes, rehabilitation centers and their staffs treating patients for strokes, hypertension, related illnesses and their complications, along with any other conditions exhibited by Ms. Legatha Demings, because I have treated many patients with these conditions.

A COPY OF MY CYl9 AI:ÏA9HED My attached curriculum vitae is incorporated herein as part of my repoft, MATERIALS REVIEWED The specific records and documents concerning Ms. Legatha Demings which I have reviewed include the following: 1) Medical Records of Ms. Legatha Demings from Nacogdoches Medical Center in Nacogdoches, Texas; 2) Garrison Nursing Home and Rehabilitation Center in Garrison, Texas; 3) Plaintiff's Original Petition; and 4) Expert Nursing Report of Pauline Kaper, R.N.

slgNltlcANï tacrq Ms. Legatha Demings is an adult female whose date of birth is April 28, 1945. ln May 2012, Ms. Demings was 67 years-old. She had a past medical history of hypertension, atrial fibrillation, congestive heart failure, emphysema, and a previous transient ischemic attack (TlA).

on May 22, 2012, Ms. Demings was living at home. she suddenly developed slurred speech, weakness in her extremities, and she fell out of bed. ital in Carthage, Texas, She was taken to a and then subsequently Page 3 Report of KeÍth E. Miller, M.D. *41 transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further evaluation and treatment.

ln the hospital, Ms. Demings was diagnosed as having had a cerebrovascular accident (CVA) or stroke, Ms. Demings was discharged from the hospital on May 25, 2A12. ln his discharge summary, Ms, Demings' physician documented that this patient's stroke was of ".,.ischemic origin, most likely caused by her atrialfibrillation."

ln order to treat Ms. Demings' condition and prevent further strokes, her physician discharged her from the hospital on a blood-thinning medication, Xarelto. This physician stated in his discharge summary that Ms. Demings would be "...started (on) Xarelto for her anticoagulation to avoid further strokes..."

On May 25,2012, Ms. Demings was discharged from the hospital and admitted to Garrison Nursing Home and Rehabilitation Center in Garrison,'Texas for further recovery and rehabilitation. According to Ms. Demings' physician, this resideñt had begun to make some improvement as evidenced by improvement in her speech and increased movement of her left side.

After being in the care of Garrison Nursing Home and Rehabilitation Center for less than two weeks, Ms. Demings became "confused, combative, and unablè to communicate". On June 8, 2012, she was taken by emergency medical seruices back to Nacogdoches Medical Center for emergency evaluation. There a computerized tomography (CT) scan of her head revealed an ischemic infarction of her brain consistent with a stroke.

One of Ms. Demings' consulting physicians, a neurological specialist, documented in the medical record that Ms. Demings had suffered a "Cerebrovascular accident extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis".

Ms. Demings remained in the hospital for 12 days, and was discharged on June 20, 2012. At the time of her discharge from the hospital, Ms. Demings' physician noted in his discharge summary that this patient's overall medical condition had deteriorated as a result of her stroke she suffered at Garrison Nursing home and Rehabilitation Center, to the point that Ms. Demings was made a do-not-resuscitate status such that if she experienced a cardiovascular or respiratory failure, she would not be intubated or placed on a ventilator or breathing machine.

A "Medication Error Report" made by th e nursing statf of Garrison Nursing 2012, documented that from the Home and Rehabilitation Center on June 8, Report of Keith E. Miller, M.D" Page *42 time Ms. Demings was first admitted to this facility on May 25,2012 until the time of her stroke and transfer on June 8, 2012, Ms. Demings was not given her blood-thinning medication, Xarelto as ordered by her physician. This medication had been ordered to be given in a dose of 20 milligrams (mgs) at bedtime daily.

This same report stated that "res. (resident) arrived after 5:00 pm on a Friday. This medication (Xarelto) was ordered along (with) all other meds from nursing home pharmacy - nurse transcribing orders had to have all meds written on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be delivered that night'

The Medication Error Report went on to document that a nurse at this nursing home "failed to transcribe this med (medication) to MAR (Medication Administration Record)"..."an oversight". A question on this same form asked "Could the error have endangered the life or welfare of the patient?" The responsible nurse completing the form answered the question with "Makes her a higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

On a subsequent hospitalization on August 5,2012, in his pre-operative history and physical, one of Ms. Demings' physicians documented what had happened to her during her stay at Garrison Nursing Home and Rehabilitation Center from May 25,2012 through June 8, 2012. This physician stated that prior to her first admission to this nursing home, Ms. Demings "was found in atrial fibrillation. She was started (on) Xarelto, Apparently,.. did not follow-through in the nursing home, and she had.,,strokes, disabling, with severe-. She was rendered substantially disabled."

This physician also documented in his discharge summary of this Au$ust 5, 2012 hospital stay, the importance of a patient such as Ms. Demings who sutfered with atrial fibrillation, to always remain on a bloodthinning medication such as Xarelto. He stated that "She is to continue with Xarelto...lnstructions were given to the family to make sure that this medication is never stopped."

,F"AMTUARTTY W|TH THE STANDAFp OE çARE At the time of the care and treatment of Ms. Legatha Demings by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, from May 2012 through June 2012, I was familiar with the minimum medical standards of care applicable to the assessment, diagnosis and treatment of patients with strokes, hypertension, and related illnesses, as well as their complications and other medical conditions similar to those experienced by Ms. Legatha Demings and described in the referenced medical records, I am familiar with the medical and nursing standards of care for the above referenced conditions applicable to Report of Keith E. Miller, M.D,

Page *43 Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The minimum standards of care for treatment of patients with similar signs, symptoms, and conditions as Ms, Legatha Demings that are the basis of this report, are national standards of care and do not differ from community to community.

From the time of the medical treatment of Ms. Legatha Demings from May 2012 through June 2012, and through the present, I have had an active clinical practice as a family practitioner in Center, Texas that includes providing care to adult patients in nursing homes and rehabilitation centers, such as Ms. Legatha Demings. During my career as a family practitioner, I have worked with and or supervised medical office statf, hospital staff, nursing home statf, and rehabilitation center staff, including medical technologists and nurses, in the care of my patients. I have also participated in the development and use of protocols, policies and procedures for the care of patients with strokes, hypertension, and related illnesses, as well as their causes and complications, including adults such as Ms. Legatha Demings. ln addition, based on my education, training, knowledge, and direct experience, I am familiar with the accepted and expected, standards of care, as listed below, for nursing home and rehabilitation center facilities, who take care of patients with conditions such as strokes, hypertension, related illnesses, and their complications, and can offer opinions on the standards of care, the breaches of the standards of care and the causation of the injuries from these breaches.

ln my medical practice, I routinely rely on medical records, nursing records, lab reports, diagnostic tests and images, consulting physician reports and other patient data, I consider materials of this type to be generally reliable, unless evidenced othen¡rise, and they are the type of materials routinely relied upon by physicians and clinical staff in providing care to patients.

C"AqF SIPECIFIC EXPERTISE At the time of the medical treatment of Ms, Legatha Demings, from May 2012 through June 2012, I was treating patients with symptoms similar to those experienced by Ms, Demings. I am familiar with the accepted medical and nursing standards of care applicable to the assessment, diagnosis, and treatment of patients with strokes, hypertension, and related illnesses, as well as any other medical conditions similar to those experienced by Ms. Legatha Demings during that time as described in the referenced medical records, I am familiar with the standards of care for physicians, nurses, and nursing home and rehabilitation center staff treating patients such as Ms, Demings. I am familiar with the medical and nursing standards of care for the above referenced medical conditions, including strokes, hypertension, related illnesses, and their Report of Keith E. Miller, M,D. Page *44 complications, as they apply to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The accepted and applicable standards of care for the treatment of patients with similar signs, symptoms, and conditions as Ms. Legatha Demings, that are the basis of this report, are national standards of care and do not differ from community to community, and also apply to the specific medical care provided to Ms. Demings in this case. The accepted medical and nursing standards of care for the assessment, diagnosis, and treatment of medical conditions similar to those of Ms. Legatha Demings apply to all nursing home and rehabilitation center facilities. I know the accepted standards of care, the breaches and violations of the standards of care, and the causation link between the breaches and violations of the standards of care and the illnesses, of Ms. Legatha Demings, as they apply to Gamison Nursing Home and Rehabilitation Center in Garrison, Texas, on the basis of my education, knowledge, training, and direct experience.

I acquired this education, knowledge, training and experience through: 1) My attending, and successfully completing, medical school classes,

and residency, that teach the evaluation, diagnosis, care and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

2) Practical experience of diagnosing and treating patients with the same or similar conditions as Ms, Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

3) Discussions with colleagues at yearly conferences, seminars and meetings; 4) Study of technical works routinely published in textbooks, journals and literature concerning the evaluation, diagnosis, care and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

5) My routine discussions and consultations with other physicians who also treat patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

6) My routine and regular contact with nursing hofne nurses, staff and residents who take care of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications; PageT Report of KeÍth E. Miller, M.D.

*45 7) My knowledge and experience giving lectures and in-service conferences to the nurses and staff; 8) My experience serving on numerous hospital and nursing home committees; and 9) My observation of nurses and nurse conduct, supervising residents, and instructing nurses and residents in the evaluation, diagnosis, care and treatment of patients the same as, or similar to Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications.

FAC|L|TY - PATIENT RELATIONSHIP Based upon the above facts, there was a facility-patient relationship established between Ms. Legatha Demings and Garrison Nursing Home and Rehabilitation Center in Garrison, Texas.

DUTY

There was a duty owed to Ms. Legatha Demings by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, to do what a reasonable nursing home or rehabilitation center would have done under the same or similar circumstances, or not to do what a reasonable nursing home or rehabilitation center would not have done under the same or similar circumstances.

RFLHVANT STANDARU$ pt Ê_&RE lN lssl,F This section addresses some of the principal applicable standards of care that Garrison Nursing Home and Rehabilitation Center in Garrison, Texas and its staff should have met for Ms. Legatha Demings, specifically how Garrison Nursing Home and Rehabilitation Center and its staff breached the standards of oare and the causal relationship of the breach to Ms. Demings' illnesses and related complications. These standards are based on my education, training, and direct experience, and are reflected in the state and federal regulations that govern nursing homes, rehabilitation centers, and skilled nursing facilities.

The following standards, among others, are consistent with the standards of care that were required to be fòllowed by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, and its staff as it concerns Ms. Legatha Demings:

217 Rule S217.11 Standards of Nursing Practice (1) Stan- 1. TAC Ch apter istered nurses and ll vocational nurses, to All Nurses, A dards cable

ti Report of Keith E. Miller, M.D. Page *46 istered nurses with advanced practice authorization shall: (A) Know and conform to the Texas Nursing Practice Act and the Board's rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse's cur- rent area of nursing practice; 2, TAC Chapter 217 Rule $2f7,11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shatl: (B) lmplement measures to promote a safe environment for clients and others; 3. TAC Chapter 217 Rule S2f7.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (C) Know the ratio- nale for and the etlects of medications and treatments and shall correctly admin- ister the same; 4. TAC Subchapter H Rule 519.701. A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. (5) Accommodation of needs. A resident has the right to: (A) reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered; 5. TAC Subchapter B Rule S{9.101 Neglect - A deprivation of life's necessities of food, water, or shelter, or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to the resident. 6. TAC Ghapter 217 Rule 5217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (D) Accurately and completely report and document: (iii) physician, dentist, or podiatrist orders; (iv) administration of medications and treatments; (v) client responses(s); and (vi) contacts with other health care team members concerning significant events regarding client's status; (G) Obtain ínstruction and supervision as necessary when implementing nursing procedures or practices; (N) Clarify any order or treatrnent regimen that the nurse has reason to believe is inaccurate, non- efficacious or contraindicated by consulting with the appropriate licensed practitioner and notifying the ordering practitioner when the nurse makes the decision not to administer the medication or treatment. 7. TAC Chapter 217 Rule S217.fl Shndards of Nursing Practice (1) åtil,çFI9:nPåHnInn#$, î Report of Keith E, Miller, M.D.

Page *47 registered nurses with advanced practice authorization shall: (F) Promote and participate in education and counseling to a client(s) and, where applicable, the family/significant other(s) based on health needs; 8, TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses, All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (G) Obtain instruction and supervision as necessary when implementing nursing procedures or practices; 9. TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses, All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (M) lnstitute appropriate nursing interventions that might be required to stabilize a client's condition and/or prevent complications; 10. TAC Ghapter 217 Rule S2f7.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (T) Accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse's educational preparation, experience, knowledge, and physical and emotional ability; 11. TAC Chapter 217 Rule $217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (U) Supervise nursing care provided by others for whom the nurse is professionally responsible; 12. TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (3) Standards Specific to Registered Nurses. The registered nurse shall assist in the determination of healthcare needs of clients and shall: (A) Utilize a systematic approach to provide individualized, goal-directed, nursing care by: (i) performing comprehensive nursing assessments regarding the health status of the client; (ii) making nursing diagnoses that serve as the basis for the strategy of care; (iii) developing a plan of care based on the assessment and nursing diagnosis; (iv) implementing nursing care; and (v) evaluating the client's responses to nursing interventions; 13. TAC Chapter 217 Rule 5217.12 Unprofessional Conduct (1) Unsafe Practice - actions or conduct including, but not limited to: (A) Carelessly failing, repeatedly failing, or exhibiting an inability to perform vocational, registered, or advanced practice nursing in conformity with the standards of minimum Report of Keith E. Miller, M.D.

Page L0 *48 acceptable level of nursing practice set out in Rule 217 .11, 14. TAC Ghapter 217 Rule $217.12 Unprofessional Conduct (1) Unsafe Practice - actions or conduct including, but not limited to: (B) Carelessly or repeatedly failing to conform to generally accepted nursing standards in applicable practice settings; 15. TAC Chapter 217 Rule 5217.12 Unprofessional Conduct (4) Careless or repetitive conduct that may endanger a client's life, health, or safety. Actual injury to a client need not be established. 16. 42 CFR 483,20, 483.25.The facility must conduct initially a comprehensive, accurate assessment of each resident's functional capacity, a plan of care, based on a resident assessment, which will be used to provide care and services to attain the highest practical physical, mental, and psychosocial well- being; 17. 42 CFR 483.15- A facility must care for its residents in a manner that promotes quality of life and dignity; 18. 42 CFR 483.30- The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care; 19, 42 CFR 483.13, F 224- "Neglect" means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness, 20.42 CFR 483.20 (k) (3) (l) - The services provided or arranged by the facility must meet professional standards of quality;

lllnesses Caused by Failing to Properly Administer Medications Ms. Legatha Demings is an adult female whose date of birth is April 28, 1945. ln May 2012, Ms, Demings was 67 years-old. She had a past medical history of hypertension, atrial fibrillation, congestive heart failure, emphysema, and a previous transient ischemic attack (TlA). Report of Keith E. Miller, M.D, Page L1

*49 On May 22, 2012, Ms. Demings was living at home. She suddenly developed slurred speech, weakness in her extremities, and she fell out of bed, She was taken to a hospital in Carthage, Texas, and then subsequently transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further evaluation and treatment.

ln the hospital, Ms, Demings was diagnosed as having had a cerebrovascular accident (CVA) or stroke. Ms. Demings was discharged from the hospital on May 25, 2012, ln his discharge summâry, Ms. Demings' physician documented that this patient's stroke was of "...ischemic origin, most likely caused by her atrialfibrillation."

ln order to treat Ms. Demings' condition and prevent further strokes, her physician discharged her from the hospital on a blood-thinning medication, Xarelto. This physician stated in his discharge summary that Ms. Demings would be "...started (on) Xarelto for her anticoagulation to avoid further strokes..."

On May 25,2012, Ms. Demings was discharged from the hospital and admitted to Garrison Nursing Home and Rehabilitation Center'in Garrison, Texas for further recovery and rehàbilitation. According to Ms. Demings' physician, this resident had begun to make some improvement as evidenced by improvement in her speech and increased movement of her left side.

After being in the care of Garrison Nursing Home and Rehabilitation Center for less than two weeks, Ms, Demings became "confused, combative, and unable to communicate". On June 8, 2012, she was taken by emergency medical services back to Nacogdoches Medical Center for emergency evaluation. There a computerized tomography (CT) scan of her head revealed an ischemic infarction of her brain consistent with a stroke.

One of Ms. Demings' consulting physicians, a neurological specialist, documented in the medical record that Ms. Demings had. s.uffered a "Cerebrovascular accident extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis".

Ms. Demings remained in the hospital for 12 days, and was discharged on June 20,2012, At the time of her discharge from the hospital, Ms, Demings' physician noted in his discharge summary that this patient's overall medical condition had deteriorated as a result of her stroke she suffered at Garrison Nursing home and Rehabilitation Center, to the point that Ms. Demings was made a do-not-resuscitate status such that if she experienced a cardiovascular or respiratory failure, she would not be intubated or placed on a ventilator or breathing machine. Report of Keith E. Miller, M.D. Page L2

*50 A "Medication Error Report" made by the nursing staff of Garrison Nursing Home and Rehabilitation Center on June 8, 2012, documented that from the time Ms. Demings was first admitted to this facility on May 25,2012 until the time of her stroke and transfer on June 8, 2012, Ms, Demings was not given her blood{hinning medication, Xarelto as ordered by her physician, This medication had been ordered to be given in a dose o'f 20 milligrams (mgs) at bedtime daily.

This same report stated that "res. (resident) arrived after 5:00 pm on a Friday. This medication (Xarelto) was ordered along (with) all other meds from nursing home pharmacy - nurse transcribing orders had to have all meds written on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be delivered that night".

The Medication Error Report went on to document that a nurse at this nursing home "failed to transcribe this med (medication) to MAR (Medication Administration Record)'..."an oversight". A question on this same form asked "Could the error have endangered the life or welfare of the patient?" The responsible nurse completing the form answered the question with "Makes her a higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

On a subsequent hospitalization on August 5, 2012, in his pre-operative history and physical, one of Ms. Demings' physicians documented what had happened to her during her stay at Garrison Nursing Home and Rehabilitation Center from May 25,2012 through June 8,2012. This physician stated that prior to her first admission to this nursing home, Ms. Demings "was found in atrial fibrillation. She was started (on) Xarelto. Apparently... did not follow-through in the nursing home, and she had...sttokes, disabling, with severe She was rendered substantially disabled."

-. This physician also documented in his discharge summary of this August 5, 2012 hospital stay, the importance of a patient such as Ms. Demings who suffered with atrial fibrillation, to always remain on a blood-thinning medication such as Xarelto. He stated that "she is to continue with Xarelto...lnstructions were given to the family to make sure that this medication is never stopped."

The statf of Garrison Nursing Home and Rehabilitation Center in Garrison, Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for the development of future strokes due to her past medical history which included hypertension, atrial fibrillation, a previous TlA, and a previous stroke.

The nursing staff of Garrison Nursing Home and Rehabilitation Center ob- viously needed better training in safe and systematic methods to properly trans- fer medication orders to their MAR. Ms. Demings arrived at this nursing home in Report of Keith E. MÍller, M.D. Page L3 *51 the late evening on a Friday. The Medication Error Report indicated that the staff of this nursing home was under a short deadline to get Ms. Demings' medi- cation orders to the pharmacy in order to obtain her medications by that evening otherwise they would not receive her medications until at least the following day or perhaps even longer since the following day,fell on a weekend. lt is certain that the nurse transcribing these pharmacy orders felt pressured to get this process done quickly. Unfortunately there was no procedure in place at the time of this incident to ensure that medication orders would always be accurately and precisely transcribed by the nursing staff of this facility, even under stressful situ- ations.

After it was recognized by this nursing home staff that Ms. Demings had failed to properly receive her medications, the nursing staff of this facility recog- nized the need to improve their procedures for medication ordering from the pharmacy. ln lhe Medication Error Report, the nursing staff responded to a question which asked, 'What precautions can you take to prevent a similar error?" The nurse completing this report answered by stating "always have two nurses check orders on new admissions to make sure (orders are) transcribed correctly".

The specific steps of an appropriate procedure for Ms, Demings would have been tailored to her and would have been determined by an extensive as- sessment by the nursing staff. These measures would have included such things as having in place an appropriate plan to ensure this resident's medication çrdérs were properly transcribed to her MAR, ensure that her medications were properly ordered and received from the pharmacy, and comparing her physi' cian's orders with her MAR to ensure her original medication orders were always being properly carried out.

As a direct cause, this facility and its staff failed to comply with those standards set forth in paragraph numbãrs: 1,2,3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,18, 19, and 20. lt is my opinion, based upon my experience, knowledge, qualifications and review of these records that these standards were not followed and the result was that Ms. Legatha Demings was harmed and injured. The failure to comply with these standards caused, within a reasonable degree of medical and nursing, probability and certainty, Ms. Demings to sutfer a stroke, extensive hospitalization, rehabilitation, and related complications, which compromised her overall health and well-being, and resulted in an overall worsening of her condition, unnecessary and preventable pain, suffering, mental anguish, and loss of dignity. These injuries and illnesses could have, within a reásonable degree of medical and nursing, probability and certainty, been prevented or detected/addressed earlier if these standards had been followed. Report of Keith E. Miller, M.D Page L4

*52 To meet the standards, Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, and its statf were required to do among other things the fol- lowing when caring for Ms. Legatha Demings:

A. Recognize and act on the fact that Ms. Legatha Demings was at high risk for illnesses due to a stroke and its related complications, by pre- paring and following a Care Plan based on an accurate assessment;

B. Specifically implement an etfective and accurate Care Plan by ensuring: 1. That the Care Plan which included the method for safely and accu- rately administering Ms. Demings' medications was implemented and used at alltimes;

2. That Ms. Demings had sufficient and knowledgeable personnel for p roperly ad min isterin g her. med ications safely; C. Ensure that a safe and appropriate system was in place to make sure that Ms. Demings' physician orders for medications were properly and accurately transcribed and transmitted to the pharmacy;

D. Put in place a method to recheck Ms. Demings' physician mediation or- ders from time to time to ensure she was receiving all her necessary, prescribed medications; and

E. lnform and Educate Ms. Demings'family and/or caretakers to the risk of suffering illnesses including strokes if she did not properly receive her medications.

SU-U!.MARY

I have been advised that "Neg/þence" means: Negllgence, when used with respect to the conduct of a medical facility means failure fo use ordinary care, that is, failing to do that which a medical facility of ordinary prudence would have done under the 'same or similar circumstances or doing that which a medical facility of ordinary prudence would not have done under the same or similar circumstances. Report of Keith E. Miller, M.D Page

*53 I have been advised "proximate cause" means: That cause which, in a natural and continuous seguence, produces an event, and without cause such event would not have occurred. ln order to be a proximate cause, the act or omission complained of must be such that a health care facility, using ordinary care, would have foreseen that the event or some similar event míght reasonably result there from. There may be more than one proximate cause of an event.

More likely than not, this failure on the part of Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, to practice in an acceptable manner directly resulted in Ms. Legatha Demings' illnesses due to a stroke and its complications, as well as overall worsening of her condition, unnecessary and preventable pain, suffering, extensive hospitalization, mental anguish, and loss of dignity. As more specifically set forth above, the actions and inactions of this facility caused the conditions and complications described above.

ln summary, Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, did not meet the standard of care in their treatment of Ms. Legatha Demings. lt is my opinion, based on my medical education, experience, and training and based upon a reasonable degree of medical and nursing, probability ãnd certainty, that these negligent acts and omissions as stated above proximately caused Ms, Demings' illnesses due to a stroke, and their complications, along with overall worsening of condition, as well as caused her unnecessary and preventable pain, extensive hospitalization, suffering, mental anguish, and loss of dignity. lt is my opinion that Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, knew or should have known that their failure to meet the standards of care would put Ms. Demings at extreme risk of harm and knew or should have known that this failure to meet these standards would likely cause complications or illnesses to Ms, Demings. Nevertheless, Garrison Nursing Home and Rehabilitation Center still failed to follow the above standards. Had the standards of care been followed by Garrison Nursing Home and Rehabilitation Center, more likely than not and based upon a reasonable degree of medical and nursing, probability and certainty, Ms. Demings would not have suffered the illnesses due to a stroke, along with their complications, as well as overall worsening of her condition, unnecessary and preventable pain, sutfering, extensive hospitalization, mental anguish, and loss of dignity. Page 16 Report of Keith E. Miller, M.D,

*54 0 Center, Texas 75935 PageLT Report of Keïth E. Miller, M.D.

CURRICULUM VITAE

*55 KEITH E. MILLER, M.D. 620 Tenaha Street Center, Texas 75935 (e36) 5e8-2716 *56 KEITH E. MILLER, M.D. . EDUCATION - Chief Resident, 7/87 to 6/88 University of Arkansas Medical Sciences Campus Area Health Education Center, South Arkansas El Dorado, Arkansas Family Practice Residency, T lS6 to 6/88 University of Arkansas Medical Sciences Campus Area Health Education Center, South Arkansas

El Dorado, Arkansas Family Practice lnternship ,7185 to 6/86 University Hospital Little Rock, Arkansas Doctor of Medicine Degree, 8/81 to 5/85 University of Arkansas College of Medicine Little Rock, Arkansas Attended, 8/80 to 5/81

University of Arkansas at Little Rock, School of Law Little Rock, Arkansas Bachelor of Arts, 8/76 to 5/79 German and Chemistry Baylor of University Waco, Texas Attended, 8175 to 5176 Biology and Chemistry

East Texas Baptist College Marshall, Texas Shelbyville High School, Bl71to 5i75 Shelbyville, Texas *57 KEITH E. MILLER, M.D.

-PRACT¡CE ACTIVITIES-

Full Time Family Medicine Practice, July 19BB to Present Commissioner, 9/03 to 9/07 Texas State Board of Medical Examiners / Texas Medical Board State Medical Licensing Board of Texas Physician Consultant for Physician Peer Review, 8/90 to 9/03 Texas State Board of Medical Examiners State Medical Licensing Board of Texas

Member, Texas Statewide Medical Advisory Committee, 8/95 to Present Blue Cross/Blue Shield of Texas Performs Physician Peer Review for All Blue CrossiBlue Shield Patients in Texas President, 1990 to Present Shelby County Medical Society Advisory Committee Member and Clinical Faculty, 8/90 to Present School of Licensed Vocational Nursing Panola College Center, Texas

Member, Board of Directors, and Medical Director, 8/90 to Present Shelby County Child Advocacy Center Center, Texas 2014 to Present

Family Medicine Service Privileges Memorial Hospital San Augustine

San Augustine, Texas 2014 to Present Family Medicine Service Privileges Nacogdoches Medical Center Nacogdoches, Texas Former Physician Reviewer, Texas Medical Foundation, B/90 to 8/03 Pedorms Physician Peer Review/Quality Assurance for All Medicare and Champus Patients in Texas a *58 KEITH E. MILLER, M.D. -PRACTTCE ACTTVTTTES (CONTINUED)- Former Clinical Faculty, Preceptor, B/90 to 8/03

University of Texas Health Sciences Center Family Practice Residency Program Tyler, Texas Former Director of Emergency Services, 8/90 to 8/11 Shelby Regional Medical Center Center, Texas Former Chief of Staff Shelby Regional Medical Center Center, Texas . July 1988 to 2013 Full Time Active Family Practice Privileges Shelby Regional Medical Center Center, Texas September 2010 to Present Medical Director Legacy Hospice of Center Center, Texas March 2011 lo Present Assistant Medical Director The Hospice of East Texas

Tyler, Texas July 1988 to Present Full Time Active Family Practice Privileges Holiday Nursing Home Center, Texas July 1988 to Present Full Time Active Family Practice Privileges Pine Grove Nursing Home Center, Texas *59 KEITH E. MILLER, II'I.D.

-PRACTTCE

ACTIV¡T¡ES (CONT¡NUED)- July 1988 to Present Full Time Active Family Practice Privileges Green Acres Nursing Home Center, Texas July 1988 to Present Full Time Active Family Practice Privileges Twin Lakes Nursing Home San Augustine, Texas July 1988 to Present

Full Time Active Family Practice Privileges Colonial Pines Nursing Home San Augustine, Texas July 1988 to Present

Full Time Active Family Practice Privileges Trinity Nursing and Rehabilitation Center

San Augustine, Texas July 1988 to Present

Full Time Active Family Practice Privileges El Camino House Nursing Home San Augustine, Texas December 2013 to Present Full Time Active Family Practice Privileges Lakeside Village Assisted Living Center, Texas March 2012 to Present Medical Director Bethany Home Health Care AgencY Carthage, Texas January 2014 to MaY 2015 Medical Director, Jennings Place Day Care for Mentally Challenged Adults Center, Texas *60 KEITH E. MILLER, M.D. - BOARD CERTIFICATIONS . American Board of Family Medicine, lD 53861 Certification Date July 8, 1988 Re-Certification Date July 14, 1995 Re-Certification Date July ^[1] 2, 2AA2 Re-Certification Date July 15, 2010

. PROFESSIONAL CERTIFICATIONS - Hospice Medical Director Certified (HMDC) Hospice Medical Director Certification Board July 8, 2014 to Present Certified Medical Review Otficer Medical Review Officer Certification Council United States Department of Transportation

United States Department of Health and Human Services Certified February 21, 2006 Re-certified March 24, 2012 Certified Medical Examiner

Federal Motor Carrier Safety Administration United States Department of Transportation

United States Department of Health and Human Services Certified February 1 1, 2414 Fellow (AAFP), 1990 to Present American Academy of Family Physicians American Heart Association CPR lnstructor Advanced Cardiac Life Support Instructor Pediatric Advanced Life Support Provider

*61 KEITH E. MILLER, M.D, . PROFESSIONAL AFF¡LIAT¡ONS . American Med ical Association Southern Medical Association

American Academy of Family Physicians Texas Medical Association Shelby County Medical SocietY . VOLUNTEER ACTIVITIES - Texas State Legislature Physician of the Day, 1989 to Present Coordinator, Free Physicals Programs, 1988 to Present Department of Athletics Center lndependent School District, Center, Texas Team Physician, 1988 to Present Department of Athletics Center lndependent School District Vice-President, Board of Trustees, '1990 to 1999 Center lndependent School District, Center, Texas

Preceptor, 1990 to Present Texas Statewide Medical Student Preceptorship Program Member, Development Council Baylor University Former Member, Committee on Rural Health Concerns Texas Medical Association Former Member, Committee on Rural Health Texas Academy of Family Physicians *62 KE¡TH E. MILLER, M.D.

.LICENSURE.

State of Texas (H-2155), 8/87 to Present Formerly Licensed in Arkansas and Louisiana - AWARDS . Texas Academy of Physician Assistants Supervising Physician of the Year - 2004

American Medical Association Physician's Recognition Award

American Academy of Family Physicians Award for Clinical lnstruction of Medical Students Center lndependent School District Community Service Award for Contributions to Student Academics and Athletics Anderson County Educational Cooperative Service Award for Organizing Programs for

Special Services Students Texas State Legislature Award of Appreciation for Serving as Physician to Legislators While in Session - PUBLICATIONS. "Use of Digoxin in the Family Practice Setting" Journal of the Arkansas Medical Society February 1988 *63 KEITH E. IIJIILLER, M.D. - ARTICLES - "More Doctors in Texas After Malpractice Caps" New York Times October 5,2007

Story of Texas Medical Board Responding to lncreased Licensing Demands During My Tenure as Chairman of the Licensing Committee "Dangerous Doctors" Reader's Dþesf June 2004 Background Story of Texas Medical Board Prior to My Appointment as a Commissioner "Dangerous Doctors - Follow-Up"

Reader's Digest March 2005 Follow-up Story of Texas Medical Board After My Appointment as a Commissioner lncluding Motion Made by Myself for the Largest Fine Levied Against a Doctor by any State in History "No Medicinal Jet Fuel" Iexas Medicine August 2009

Story of My Filing of Complaint Against a Physician for Non-Therapeutic Prescribing - PERSONAL . Married to Linda Gee Miller since 1975 lnterests Are Health-Care Reform and Finance lssues, in America and Abroad Speaks Fluent German and Passable Spanish I nstrument-Rated Private Aircraft Pilot Umpire, High School Baseball *64 Appendix C *65 Van Ness v. ETMC First Physicians,46l S,W.3d 140 (2015) 2015 WL 1870051, 58 Tex. Sup. Ct. J. 746

provides adequate information to inform the defendant of the specific conduct the plaintiff 46r S.W.3d t4o has called into question, provides a basis for the Supreme Court of Texas. trial court to conclude that the claims have merit, and does not contain a material

Melissa Van Ness, Individually and as Next Friend, an Heir at Law, and a Suryiving Parent of defrciency. Tex. Civ. Prac, & Rem. Code Ann. Nicholas Van Ness, Ronald Van Ness, Individually

$$ 7a.3s1(l), (rX6). and as Next Friend, an Heil at Law, and a Surviving Parent of Nicholas Van Ness, and Estate 2 Cases that cite this headnote of Nicholas Van Ness, Petitioners, v. ETMC First Physicians & Kristin Ault, D.O., Respondents No. r4-o353 | Opinion delivered:April24, zor5 l2l Appeal and Error q.'*Rulings on adrnissibility of evidence in general

Synopsis A trial court's ruling on the sufficiency of an Bacl<ground: Parents of minor child who died of

expeft's report in a health care liability case is pertussis (whooping cough) brought a health care liability reviewed for abuse of discretion. Tex. Civ. Prac. action against physician and physician's employer. The & Rem. Code Ann. $$ 74.351(l), (rX6). 2nd Judicial District Cour1, Cherokee County, denied physician and employer's motion to dismiss based on parents' alleged failure to cornply with requirements for

Cases that cite this headnote an expeft report. Physician and employer appealed. The Tyler Court of Appeals, 2014 WL 1308624, reversed, rendered, and remanded, Parents petitioned for review.

Appeal and Error f3l ,;'-Cases Triable in Appellate Court [Holding:l The Suprerne Court held that the trial court Appeal and Error acted within its discretion in determining that expert's q"*SuffTciency of Evidence in Support report was a good-faith effort to comply with the statutory requirernents for expert reports in health care liability When reviewing for abuse of discretion, cases. appellate coufts defer to the trial court's factual

determinations if they are supported by evidence but review its legal determinations de novo.

Petition for review granted; judgrnent of Couft of Appeals reversed and case remanded. ^[1] Cases that cite this headnote West Headnotes (6) Appeal and Error l4l ç*Abuse of discretion lll Health A trial court abuses its discretion if it rules ù'-"Affidavits of merit or meritorious defense; expert affidavits without reference to guiding rules or principles. A report is a good-faith effort to comply with the statutory requirements for expeft reports in ^[1] Cases that cite this headnote health care liability cases, so as to survive a _ challenge to the sufficiency of the report, if it

_*

1.'irp'.1{,1¡,¡;f{py.l O 2015 fhomson Reuters. No claim to original U.S. Government Works. *66 Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015) 2015 WL 187005'1 , 58 Tex. Sup. Ct. J. 746

Heidi O. Vicknair, Jason Charles Webster, Houston, Tina Brumbelow, Tyler, Vincent L. Marable III, Paul Webb, P,C., Wharton, for Petitioners Estate of Nicholas Van

lst Health n^Affidavits of merit or meritorious defense; Ness, Melissa Van Ness, Ronald Van Ness, individually

and as next friend, heirs at law, and surviving parents of expert affìdavits Nicholas Van Ness. For an expert's repofi in a health care liability Russell G. Thornton, Thiebaud Remington Thornton case to be sufficient, the expert must explain, Bailey LLP, Dallas, for Respondents Kristin Ault, D,O., based on facts set out in the report, how and why ETMC First Physicians, the breach caused the injury; a bare opinion that the breach caused the injuLy will not suffice.

Opinion Tex, Civ. Prac. & Rem. Code Ann, $$ 74.351(l),

(Ð(6).

PER CURIAM 2 Cases that cite this headnote **1 This case, which is subject to the Texas Medical Liability Act (TMLA), TEX. CIV. PRAC, & REM, CODE ch. 74, involves the adequacy of an expert report, The issue is whether the trial court abused its discretion by denying the defendants' motion to disrniss in light of

I6l Health conflicting statements in the plaintiffs' expeft report, 'f*Affidavits of merit or meritorious defense; some of which the defendants alleged, and the court of expert affidavits appeals held, failed to link the expert's conclusions to the Trial court acted within its discretion in underlying facts, determining that expert's report was not Nicholas Van Ness died from pertussis (whooping cough) conclusory but, instead, was a good-faith effort when he was two months old. His parents, Melissa and to comply with the statutory requirements for

Ronald Van Ness, sued Kristin Ault, D,O,, and her expert reports in health care liability cases, such employer, ETMC First Physicians, alleging that Dr. that parents' action against physician and Ault's negligence caused Nicholas's death and that physician's employer after minor child died of ETMC was vicariously liable for her negligence. The Van pertussis (whooping cough) survived a motion to dismiss for failure to comply with the Nesses timely served Dr. Ault and ETMC with an experl

report by Alvin Jaffee, M.D., then served an amended requirements, even though the report contained repoft after the trial court sustained the defendants' conflicting statements regarding antibiotics and objections to the original. The defendants again moved to causation; the reporl also set out that child's dismiss the suit, contending that Dr, Jaffee's opinions as illness was treatable when physician saw him and that starting antibiotics at that time and to causation were conclusory because the amended report (the report) failed to link his opinions to the underlying continuing them as indicated by diagnostic

facts, The trial court denied the motion, On interlocutory testing probably would have prevented child's appeal, seeTEX. CIV. PRAC. &. REM. CODE $ death. Tex, Civ, Prac. & Rem, Code Ann. $$ 51,01a(a)(10), the court of appeals reversed and ordered 74,351(l), GX6). the suit dismissed. ETMC First Physiciqns v. Van Ness, 461 S.W,3d 152 (Tex.App.-Tyler 2014). We reverse the

I Cases that cite this headnote judgment ofthe court ofappeals. ttlA plaintiff asserting a health care liability claim must serve each defendant with an expeft repoft that includes "a fair summary of the expert's opinions ... regarding

*I4I ON PETITION FOR REVIEW FROM THE applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to COURT OF APPEALS FOR THE TWELFTH meet the standards, and the causal relationship between DISTRICT OF TEXAS that failure and the injury, harm, or damage claitned." TEX, CrV. PRAC. & REM. CODE $ 74.351GX6). A

Attorneys and Law Firms challenge to the sufficiency of a report must be sustained ti',r¡¡1,i!.,,t.,:;f{*rt' @2015 Thomson Reuters. No claim to original U.S. Government Works. *67 Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015) 2015 WL '1870051 , 58 ïex. Sup. Ct. J. 746 The defendants objected to Dr. Jaffee's report on the if "the report does not represent an objective good faith

ground that it failed to explain how Dr. Ault's alleged effoñ to cornply with the fstatutory requirements]." 1d. $ 74.351(l). A repoft is a good faith effort if it provides negligence caused Nicholas's death, specifÏcally adequate infonnation to "inform the defendant of the contending that Dr. Jaffee's rnedical conclusion was not linked to the facts of the case and was conclusory. The specific conduct the plaintiff has called into question, .., defendants moved for dismissal of the suit. The trial court providefs] a basis for the trial court to conclude that the clairns have merit,"Bowie Mem'l Hosp. v. Wright, 79 denied the motion. The couft of appeals reversed and rendered judgment dismissing the Van Nesses' suit with S.W.3d 48, 52 (Tex.2002) (per curiam), and "does not corrtain ^[*] 142 a material deficiency,"Samlowski v. Iïooten, prejudice, agreeing with the defendants that Dr. Jaffee's

report was deficient as to the causation element. 461 332 S,W.3d 404,410 (Tex.2011), S.W.3d at ^[143] l2l l3l l4l ltlA trial court's ruling on the sufficiency of an IolDr. Jaffee's nine-page repoft generally discusses expert's report is reviewed for abuse of discretion. pertussis, including its diagnosis and treatment. His reporl Rosentond v. Al-Lahiq, ^[33] 1 S.W.3d 764, 766 (Tex.201 1); also contains separate sections addressing the applicable Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,877 (Tex.2001). Under that standard, standard ofcare, breach ofthe standard, and causation. In appellate coults defer to the trial court's factual

the standard ofcare section, he opined, in part, that detenninations if they are supported by evidence, but [t]he applicable standard of care as to Kristin Ault, DO review its legal determinations de novo. See Stockton v. is upon evaluation of a one month old child who Offenbach,336 S.W.3d 610, 615 (Tex.2011). A trial court abuses its discretion if it rules without reference to pl'esents with symptoms such as a history of fever,

cough and nasal congestion, compounded by sick guiding rules or principles. Samlowski, 332 S,W.3d at contacts at home, is to perform laboratory tests, 410. An expert must explain, based on facts set out in the administer antibiotics prophylactically while the tests repoft, how and why the breach caused the injury, See are pending and/or to admit the infant to a medical Jelinekv, Casas,328 S,W,3d 526,53940 (Tex,20l0). A facility..., bare expert opinion that the breach caused the injury will not suffice. Id **2 Dr. Jaffee set out the following facts in his report as

.., [H]ad Dr. Ault, performed any of these tests, it those on which he based his opinions, Nicholas was born would have shown Bordetella pertussis at a treatable orr November 13, 2009. He was seen by Dr. Ault on stage and but for the failure to treat Nicholas Van *143 Novernber 19 and November 30 for regular checkups, and Ness as outlined above he would have had a 51% or Dr. Ault noted no concerns at either visit. However, the more chance of survival. records from his four-week checkup on December ^[11] reflected that Nicholas had a fever with a temperature of

In the breach section, Dr. Jaffee states again that Dr. Ault 100.2 degrees, was coughing and suffering from nasal breached the standard of care in several ways on both congestion, and was exposed to "sick contacts at home." December 11 and December 15, including failing to have According to an affidavit submitted by Nicholas's mother, various laboratory diagnostic tests performed on Nicholas she reported to Dr. Ault on December 11 that Nicholas and failing to administer antibiotics prophylactically had been coughing to the point that he could not breathe while the tests were perforrned. Finally, in the causation and was exhibiting facial discoloration. Nothing indicated section of his report, Dr. Jaffee repeats his opinion that that Dr. Ault performed any laboratory or diagnostic tests Dr, Ault should have taken specifìed actions including on Nicholas. running diagnostic tests on Nicholas and administering antibiotics prophylactically. He also states, "It is within a

The Van Nesses returned to see Dr. Ault on December ^[15] reasonable degree of medical cerlainty and/or with 51% and explained that Nicholas's symptoms had worsened. certainty that had Dr. Ault appropriately evaluated and Dr. Ault physically examined Nicholas, but again did not diagnosed him, Nicholas Van Ness would have received perform or order any tests. On December 20, the Van the appropriate dosage and treatment of antibiotics in a Nesses took Nicholas to East Texas Medical Center timely manner, and he would not have expired on January Hospital in Jacksonville, where he was treated for acute 20,2010." pneurnonia, wheezing, and tachycardia. The following day he was transfened to the Children's Medical Center

As supporl for its conclusion that the report was deficient Hospitalin Dallas, where he died on January 20,2010. as to causation, the appeals court focused on several statements from the report, including the following:

''1ir¡:¡..i¡;,i'.r¡þjsy"t. @2015 Thomson Rer"rters. No claim io original U.S. Government Works *68 Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015) 2015 WL 1870051 , 58 Tex, Sup. Ct. J, 746

. "prevention of pertussis via vaccination is of would not have prevented Nicholas's death; thus, the report did not *144 demonstrate a causal relationship

primary impoftance because treatment is of little between Dr. Ault's alleged negligence and Nicholas's benefit to the person infected"; death.461 S.W,3d 152. **3 . ((s¡v¿ccinated or incompletely vaccinated infants younger than 12 months of age have the In its analysis however, the appeals court did not fully highest risk for severe and life-threatening

credit all of Dr. Jaffee's factual statements and opinions. In particular, the court did not credit statements and

complications and death"; opinions from Dr. Jaffee's report to the effect that (1) a . "A reasonable guideline is to treat .,. infants aged stage existed at which pertussis could be treated with less than [one] year within six weeks of cough antibiotics; (2) if Dr, Ault had given Nicholas antibiotics onset"; and prophylactically and ordered testing, the tests would have shown his pertussis was at a treatable stage; and (3) . "antibiotics may 'shoften the duration of Nicholas would have had a 5|Yo chance of recovery if Dr. infectiousness and are thus recotntnended.' " Ault had started Nicholas on prophylactic antibiotics and continued antibiotics as indicated by results ofthe tests.

461 S.W.3d 152. Dr. Jaffee's statetnent about antibiotics having little effect In reaching its conclusion as to Dr, Jaffee's repoft, the on pertussis other than reducing the potential for couft of appeals noted that Nicholas began receiving spreading the disease is in tension with his statements that treatment on December 20 in the Jacksonville hospital. It Nicholas was treatable with antibiotics and would have fufiher identified December 20 as being approximately had a 51o/o chance of survival if Dr, Ault had adrninistered three weeks after Nicholas's visit with Dr, Ault on them. The first-referenced statement, by itself, indicates November 30, at which time he was not yet feverish, that whatever Dr. Ault did on December l1 or December coughing, or presenting other symptoms, Given the 15 would have had little effect on the course of Nicholas's temporal sequence of events, the appeals court reasoned illness and would not have prevented his death. that treatment beginning on December 20 "was well Accordingly, as the couft of appeals explained, that within the reasonable guideline of treating the disease statement standing alone would not demonstrate that within six weeks of cough onset" specified by Dr. Jaffee under the facts as set out in the report Dr. Ault's alleged and negligence was causally related to Nicholas's death, and his causation opinion would be conclusory.

Dr. Jaffee's conclusion that Nicholas would not have died had Dr. Ault began treatment on December ll,

**4 However, Dr. Jaffee's report also set out that 2010, or December 15, 2010, does not follow from the Nicholas's illness was treatable when Dr. Ault saw him in aforementioned discussion of the facts in his repoft. December, and starting antibiotics at that time and continuing them as indicated by diagnostic testing

Rather, because treatment is of little benefit to the probably would have prevented Nicholas's death. Given person affected, the facts lead to the conclusion that these parts of the repotl, the trial court could have had Dr. Ault provided antibiotics to Nicholas on either determined that Dr. Jaffee's opinions were linked to the of those dates, at most Nicholas's symptoms may have underlying facts and explained why and how Dr. Ault's lessened and his ability to spread the disease to others timely treatment of Nicholas with antibiotics would have may have diminished. The facts discussed in the repoÍ prevented his death, do not show that treatment would have altered the course of the disease, but lead to the conclusion that

Under the circumstances, the trial couft had Nicholas was unfortunately one of those infants who discretion-indeed it was incumbent on the trial court-to did not survive despite timely treatment. review the report, sort out its contents, resolve any inconsistencies in it, and decide whether the report

461 S.W.3d at 144 demonstrated a good faith effort to show that the Van Nesses' claims had merit, Considering both the repoft's The couft of appeals focused on Dr. Jaffee's statements explication of how Dr. Ault's alleged negligence was that treatment with antibiotics is of little benefìt and only causally related to Nicholas's death and the conflicting would have lessened Nicholas's symptoms and reduced the contagiousness of his pertussis. 461 S.W.3d 152. statements as to that causal relationship, we conclude that

the trial court did not abuse its discretion by determining Based on those statements, the court concluded that the that the report was not conclusory, but was a good faith repoft showed that treatment earlier than December 20 ',ïi.',.Íi;,rrrl{Êxf O 2015 Thomson Reuters. No claim to original U.S. Government Works *69 Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015) 2015 Wt 1870051 , 58 Tex. Sup. Ct, J, 746 efforl to cornply with the TMLA's requirements. Thus the trial court did not abuse its discretion by denying Dr. Ault's motion to dismiss, see Samlowski, 332 S,W.3d at

All Citations 410, and the court of appeals erred by reversing the trial court's judgment.

461 S.W,3d 140,2015 WL 1870051, 58 Tex. Sup. Ct. J 746

We grant the petition for review, 'Without hearing oral argument, s¿eTEX, R. APP. P. 59.1, we reverse the court of appeals' judgrnent and remand the case to the trial couft for further proceedings. End of Document O 2015 Thomson Reuters, No claim to original U.S. Government Works. '#*Ett,r;vfrlnxt. O 2015 Thomson Reuters. No claim to original U.S. Government Works

*70 pendix

D

*71 CIV¡L PRACTIgE & REMEÞIES CODE

CHAPTER 74. MEDICI\L LIABILITY

5574.r54-74.2s1 * /B S.W.3d SS2, ^[556] /cì that is related t0 an emergency caused in SUBCHAPTER F. STATUTE OF

LIMITATIONS

I ne pnrases ,stan. , -\i'., in part by the negligence of the defendant. t are not Syn0nv.

tt'io,ro t rio, g74 ì54: Acts 2003, 78th Leg' ch 204, GPRC ç74.25I. STATUTE OF 0l, cff sept' l, "sl0

LIMITATIONS

ON HEALTH llpractice actions. CARE LIABILITY CLAIMS co'n' "uedicar Negrigcnce under the ,vredicar l expert's medical ',iirflli?rtru;tffias (a) Notwithstanding any other law and subject to le applicable stan: Secilons 74'155'74'200 reserued for expansion Subsection (b), no health care liability claim may be ; not constituts E. REs lPsA LoQUITUR commenced unless the action is filed within two years ¿ 5Z+.SSr1¿10¡. ¡n. from the occurrence of the breach 0r tort 0r from the "u""toPTER ¿pRC 574,201. APPLIGATION OF rndard of proof ¡s. RES IPSA LOQUITUR date the medical or health care treatment that is the cases. In the ¿¡. The common law doctrine of res ipsa loquitur shall subject of the claim or the hospitalization for which the any expert rep¡¡¡ nnlv apply t0 health care liability claims against health claim is made is completed; provided that, minors un- r or health s¿¡s .oé provi¿ers or physicians in those cases t0 which it der the age of ^[12] years shall have until their 14th birth- md wanton could f'ur nr.n applied by the appellate courts of this state as day in which to file, or have filed on their behalf, the ne dixit because claim.r Except as herein provided this section applies to ofAugust29,1977' n expert report is Hjstory of CPRC .s74 20l: Acls 2003, 78th Leg, ch. 204, $ I0 0I' eff Sept l' all persons regardless of minority or other legal disabil- 2003. Source: TRCS art 4590i' N7 0l ity. See also |'Connot's Tems C1A, "Res ipsa loquitur," ch. 20-4, $9 3' (b) A claimant must bring a health care liability P 66S TRUCTIONS

MERGENCY

claim not later than l0 years after the date of the act or

ANNorarroNs

E

omission that gives rise to the claim. This subsection is Kinguood Pines Hosp, LLC a, Gomez, ^[362] S.W.3d Lt involves a claim '' intended as a statute of repose so that all claims must 740,751 (Tex.App.-Houston Il4th Dist'] 2011, no iion of emergency be brought within l0 years 0r they are time barred. pet,). "Res ipsa loquitur is not a cause of action sepa- i' department or ob- l. Ilditor's notei A minor is not lcgally capable 0fbringing suit until she rate from negligence; rather, it is a rule of evidence by reaches the agc of 18. Weinet u. l/as.son, ^[900] S.W2d 316, ^[318] (Tex,1995). rmediately follow. l Thus,aminorhasuntilher20thbirthdaytofilesrrit./¿/. at32l;seeolsoAdams which the jury may infer negligence. It applies to situa- ratient in a hospi- n, GottØal(t,179 S.W.3d l0l, ^[103] ('Iex.App.-San Antonio 2005, pet, denied) tions in which two factors are present: (l) the charac- (applying open-courts provisi0n 0fTexas Constitut¡on to $74,251). shall instruct the ter of the accident is such that it would not ordinarily Historyof CPRC $74,251: Acts 2003, 78th Leg., ch. 204, $10.01, eff. Sept. l, her relevant mat- 2003. Source: TRCS art.4590i, $10,01. occur in the absence of negligence, and (2) the instru- See also }'Connor's Texas C0A,"LimiTations," ch. 20-4, $5, p. 637. mentality causing the injury is shown to have been un- rg care did or did der the management and control ofthe defendant, Fur- or was able or un- ,. ther, the doctrine applies only when the nature of the Generally ry including the ';. alleged malpractice and injuries are plainly within the Methodíst Heulthcare Sys, a. Ranhin, 307 S.W.3d .ditions, allergies, common knowledge of laypersons, requiring no expert 283, 290 (Tex.20l0). "To hold that a statute of repose testimony. .., The three recognized areas in which res [ike $74.251(b)] must yield to IP's] inability to dis- ipsa loquitur applies to health care claims are negli- risting physician' cover her injury would treat a stâtute of repose like a gence in the use of mechanical instruments, operating ovider-patient re' statute of limitations, and would effectively repeal this 0n the wrong body part, and leaving surgical instru- and all other statutes 0f repose. At 292: Section menß 0r sponges inside the body," Jee also Haddocþ a, 74.25 I (b)'s grant of absolute protection against indefi- rg the emergencY; ArnspÍger, ?93 S.Wzd 948, 951 (Tex.1g90); Broxter- nite potential liability does not violate the Texas Consti- man u. Corson, 309 S.W3d 154, 158-59 (Tex.App,- tution.",See also Walters a, Cleaeland Reg'l Med, Ctr,, ng the delivery of Dallas 2010, pet. denied). 307 S.W3d 292,298 (Tex,20l0). Traut a. Beaty, zs S,W.Bd 661, 662 (Tex.App.- ^ Shah u. Moss,67 S.W.3d 836, 841 (Tex.200l). TRCS (a) do not aPPIY rexarkana 2002, no pet.). " lRles ipsa loquitur cannot art. 4590i, $10.01, now CPRC $74.251(a), "measures ue aPplied in every case in which an object is left in a the limitations period for medical negligence claims Patie.nt's boOy." HetO: Although p used the theory of res i stabilized and is from one of three dates: (l) the occurrence of the tÞsa loquiturjexpert testimony was needed to eitablish nt as a noneflof' breach or tort, (2) the last date ofthe relevant course of a^causal ,onn.ótion between D's negligence and P's treatment, or (3) the last date ofthe relevant hospital- Þai¡. ization. A plaintiff may not choose the most favorable al medical efler' Sections 74.202-f4.250 reserued for exponsion date that falls within $10.01's three categories. Rather, O'CoNNoR's TExa,s cPRC *72 CIVIL PRACTICE & REMEDIES CODE

CHAPTER 74. MEDICAL LIABILITY

ss74.3o3 - 74.351 *- time at which damages subject to such limits are ity claim is asserted, The date for serving the reÞ'rt (k) awarded by finaljudgment or settlement. may be extended by written agreement of the affei¡g¿ (c) Subsection (a) does not apply to the amount of parties. Each defendant physician or health care served Þr0. (1) damages awarded on a health care liability claim for vider whose conduct is implicated^in a report musifile (2) the expenses of necessary medical, hospital, and custo- and serve any objection to.the sufficie¡6y of the repo¡¡ dial care received before judgment or required in the not later than the later of the 2 I st day after the date the pr0cee( future for treatment of the injury. (3)

report is serued or the 2 I st day after the date the defen_ (d) The liability of any insurer under the common dant's answer is filed, failing which all objections c0urse ¿¡q (t) law theory of recovery commonly known in Texas as the waived. "Stowers Doctrine" shall not exceed the liability of the (b) If, as to a defendant physician or health ç¿¡g

equacy after ht insured. provider, an expert report has not been served within (e) In any action on a health care liability claim jective I the period specified by Subsection (a), the court, 0n the an exp( that is tried by ajury in any court in this state, the fol- motion of the affected physician or health care pr'. (ml lowing shall be included in the court's written instruc- vider, shall, subject to Subsection (c), enter an oider (r) tions to the jurors: that: (l) "Do not consider, discuss, nor speculate (l) (l) awards to the affected physician or health care , physici whether or not liability, if any, on the part of any party is provider reasonable attorney's fees and costs of court in. fected t or is not subject to any limit under applicable law." curred by the physician or health care provider; and (2) "A finding of negligence may not be based this sec (2) dismisses the claim with respect to the physi_ tion wh solely on evidence of a bad result to the claimant in cian 0r health care provider, with prejudice to the refil. 0r agrel question, but a bad result may be considered by you, ing of the claim. (2) along with other evidence, in determining the issue of (c) If an expert report has not been serued within . (3) negligence, You are the sole judges of the weight, if the period specified by Subsection (a) because ele. (4) any, to be given to this kind of evidence." ments of the report are found deficient, the court may provide History of CPRC $74.303: Acts 2003, 78rh Leg., ch. 204, g 10.01, eff. Sepr. l, grant one 30-day extension to the claimant in order to 2003, Source: 1'llCS art. 4590i, gl 1.04. asserte cure the deficiency. If the claimant does not receive no- See also 0'Co¿¡¡¿or's Texqs COA, "Stoøers Doctrine," ch. l3-8, p. 367; cross-dr "Medical Negligence Under. the Merlical Liability Act," ch. 20-A, p. S99. tice of the court's ruling granting the extension until (5) ANNOTATIONS after the 120-day deadline has passed, then the 30-day

(A)

extension shall run from the date the plaintiff first re- Phíllips u, Bromlett,2BB S,W.3d 8Z6, 880 n.5 (Tex. m0ny r( ceived the notice. 2009). "The IMLIIA], ITRCSI arr. 4590i ..., was re- cepted r (d) to (h) [Reserved.] peâIed.... The cap in [TRCS art. 4590i,] gll.02 was, testify r (i) Notwithstanding any other provision of this . however, carried forward in ICPRC] $?4.303(a).... The

(B)

Stowers exception in S11.02(c) was not carried for- section, a claimant may satisff any requirement of this m0ny r ward, but rather replaced by 974.303(d) which ex- parted ; section for serving an expert report by serving reports pressly provides that the insurer can now use the cap to of separate experts regarding different physicians or pert qui limit its liabilily.. .." tion 74. health care providers or regarding different issues aris' (c) ing from the conduct of a physician or health care pro'

Sections 74.304-74.350 reserued for expansion vider, such as issues ofliability and causation. Nothing mony al SUBqHAPTER H. PRoqEÞURAL in this section shatl be construed to mean that a single harm, t pRovtstoNs from th expert must address all liability and causation issues CPRC 574.35f . EXPERT REPORT liabitity with respect to all physicians or health care províders (a) In a health care liability claim, a claimant shall, render , or with respect to both liability and causation issues for Texas R a physician or health care provider.

not later than the 120th day after the date each defen- (i) Nothing in this section shall be construed t0 (D) dant's original answer is filed, serve 0n that party or the

rnony al party's attorney one 0r more expert reports, with a cur- require the serving of an expert report regardin9 harm, ( riculum vitae of each expert listed in the report for each issue other than an issue relating to liability or from thr physician or health care provider against whom a liabil- tion. 27O O'CoNNoR's TExas CpRC *73 CIVIL PRAcT¡qE & REMEDIES CoÞE CHAPTER 74. MEDICAL LIABf LITY 574.35 t * , fk) Subject to Subsection (t), an expert report tist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas ^.*ii under this section: r care Rules of Evidence; or '"' rtl ir not admissible in evidence by any party; t must (E) with respect to a person giving opinion testi-

iZi stralt not be used in a deposition, trial, or other mony about the causal relationship between the injury n,oùáding; und re date harm, or damages claimed and the alleged departure l- 13; shall not.be referred to by any party during the the from the applicable standard of care for a podiatrist, a rourse of the actl0n 10r any purpOse' podiatrist or physician who is otherwise qualified to lD A court shall grant a motion challenging the ad- render opinions on such causal relationship under the ,ouàóy of an expert report only if it appears to the court, :alth care Texas Rules of Evidence. ,tier t''euting, that the report does not represent an ob- (6) "Expert report" means a written report by an ed within Lctive good faith effort to comply with the definition of expert that provides a fair summary of the expert's rrt, on the än expert report in SubsecLion (r)(6)' opinions as of the date of the report regarding appli- care pro. (m) to (q) [Reserved.] cable standards of care, the manner in which the care an order, (Ð In this section: rendered by the physician or health care provider failed (1) "Affected partíes" means the claimant and the to meet the standards, and the causal relationship be- lalth care physician or health care provider who are directly af- tween that failure and the injury harm, or damages f court in: fected by an act or agreement required or permitted by claimed. r; and (s) Until a claimant has served the expert report this section and does not include other parties to an ac- he physi. tion who are not directly affected by that particular act and curriculum vitae as required by Subsection (a), all the refil. discovery in a health care liability claim is stayed ex- or agreement. (2) "Claim" rneans a health care liability claim. cept for the acquisition by the claimant of information, :d within (3) [Reserued.] including medical or hospital records or other docu- ruse ele. ments 0r tangible things, related to the patient's health

(4) "Defendant" means a physician or health care ourt may care through: provider against whom a health care liability claim is (l) written discovery as defined in Rule 192.7, order to asserted, The term includes a third-party defendant, :eive no. Texas Rules of Civil Procedure; cross-defendant, or counterdefendant. (2) rlepositions on written questions under Rule ion until (5) "Expert" means: e 30-day 200, Texas Rules of Civil Procedure; and (A) wiih respect to a person giving opinion testi- ' first re- (3) discovery from nonparties under Rule 205, mony regarding whether a physician departed from ac- Texas Rules of Civil Procedure. cepted standards of medical care, an expert qualified to (t) If an expert report is used by the claimant in testi$' under the requirements of Section 74.401; the course of the action for any purpose other than to (B) with respect to a person giving opinion testi- meet the service requirement ofSubsection (a), the re- mony regarding whether a health care provider de- rt of this strictions imposed by Subsection (k) on use of the ex, parted from accepted standards of health care, an ex- reports pert report by any party are waived. pert qualified to testify under the requirements of Sec- :ians ot (u) Notwithstanding any other provision of this tion 74.402; tes aris' section, after a claim is filed all claimants, collectively, are pr0' _ (C) with respect to a person giving opinion testi- may take not more than two depositions before the ex- Vothing mony about the causal relationship between the injury pert report is served as required by Subsection (a), I single, damages claimed and the alleged depariure 1.1'*:.0, History of CPRC S74.351: Acts 2003, 78th Leg,, ch. 204, $10.01, efi Sept. l, issues llT,lh- applicable standard of care in any heaith care 2003. Amended byActs 2005,79th Leg., ch.635, gl, eff. Sept. 1,2005; Acts 2013, ttabili$ claim, a physician who is otherwisã qualified to

oviders 83rd Leg., ch.870, $2, eff. Sept. l,2013. Source: TRCS art.4590i, $13.01. render opinions on such causal relationshipunder the See also O'Co¡¡¡¡orb Tems C0A,"ExperL report," ch.20,4, $7.2, p. 652. iues for

texas Rules of Evidence: rued t9 .^{D) with respect to a person giving opinion testi- 574.351 (a) 'uOny ab0ut the causal retátionship between the injury ng any Zanchi a, Lane,408 S.W3d 373,375 (Tex.2013). causa' ,,iiiifJ.iii:f';: "Today we determine whether a claimant asserting Ian :li iHå îï : JåïJ i å:i ff il: :: HCLCI complies with tCPRCI $74.351(a)'s mandate to O'CoNNoR's TEXAs CPRC 2-71 *74 CIVTL PRAGTIGE & REMEDIES CODE

CHAPTER 74. MEDICAL LII\BILITY

^[58] 74.402 - 74.405 * from 0ne sp ecialty may be qualified to testi ry if and the injury harm, or damages claimed if the person is a dentist or physician and is otherwise qualified to pracli cal kn owledge of what ls cu stomari ly done

I but render opinions on that causal relationship under the d ifferent spe ct alty unde clrcum" nef t of imilar to thos e at ssue ln the case Indeed, if Texas Rules of Evidence. rto (c) In a suit involving a health care liability claim matter IS c0mm0n to and equally recognized e in all fields of practice, any physician fa- against a podiatrist, a person may qualiff as an expert ny if with the subj ect may testify as to the standard ^[0] witness on the issue of the causal relationship between the proffered medi cal expert ts expertise the alleged departure from accepted standards of care evl dent from the four corners of his report and and the injury harm, or damages claimed if the person )e vilae." See also Methodíst Hosp, a. Shep- is a podiatrist or physiciaú and is otherwise qualified to n , 296 S.W.3d 193, l98 (Tex.App,- render opinions on that causal relationship under the 0ns I l4th Dist. ] 2009, no Pet.). Texas Rules of Evidence. tter t). Gueffa,252 S.W.3d 511, 531-32 (Tex. (d) A pretrial objection to the qualifications of a rbj uston [4th Dist.] 2008, pet, denied). Corpo- witness under this section must be made not later than lm attOrney's expert "report explaining the'contrac- the later of the 2lst day after the date the objecting and corporate inter-relationships of the various party receives a copy of the witness's curriculum vitae ich h 'along with their duties to each other Iis admis- or the 21st day after the date of the witness's deposi- Dsl een because CPRCI 5$74.401(d) and 74.402(d) are tion. If circumstances arise after the date on which the and for use at the expert report phase of [an objection must be made that could not have been rea- for s sonably anticipated by a party before that date and that Group u, Vicento,l64 S.W.3d 724,731 (Tex.App'- the party believes in good faith provide a basis for an loes [14th Dist.] 2005, pet. denied). "IS]ection objection to a witness's qualifications, and if an objec' s00n (a)'s two definitions of 'practicing health care' tion was not made previously, this subsection does not rut 'are not exclus ive. H I Reading 574.402 subsections (a) prevent the party from making an objection as s00n as tness (b)(1) together, subsection (a) expands upon the f practicable under the circumstances. The court shall an

definition of'practicing health care' to include quali- conduct a hearing to determine whether the witness is teachers and consulting health care providers who qualified as s00n as practicable after the filing of an ob- rg t0 not otherwise be qualified under subsection jection and, if possible, before trial. If the objecting le (b)(l) because they are not practicing health care and party is unable to object in time for the hearing to be sectioll instead teach or consult." See also Foster a, Zaaala, conducted before the trial, the hearing shall be con- .?14

S,W3d 106, 113 (Tex.App.-Eastland 2006, pet. de- ducted outside the presence of the jury. This subsection ali ried) does not prevent a party from examining 0r cross'ex- a amining a witness at trial about the witness's qualifica-

ff. ,,CPRC s 74 403. a U l\ L F CAT o N s o F EX P E R T W T N ES s o N c l\ U SA T o N tions. i8, p. N H E A LT H c A R E L A B L T Y c L A M Historyof CPRC $74.403:Acts 2003, 78th Leg., ch 204, $10.01, eff. Sept. I, I (a) Except as provided by Subsections (b) and (c), 2003. ¡i See also 0'Co¡¡¡¡orb Texas C0A,"F'xperlTestimony," ch.20"4, $8, p.661' suit involving a health care liabi lity claim against a

ANNOTAT¡ONS

or health care provider, a person may qualify an an expert witness on the issue of the causal relation TTHR, L,P, a. Coffman,338 S.W.3d 103, 111 (Tex, between the alle ge d departure from accep ted stan App.-Fort Worth 2011, no pet.), "IP] argues that an 'ery of care and the lnJ ury harm 0r damage claimed expert report Ion a claim for the wrongful release of ify if the pers0n IS a p hysician and IS oth e rwlse qu ali medical information prohibited by Occ. Code $ 159.002 l rq render 0p lnl0n s on that causal relationship u n would require the expert to render a legal opinion and, Texas Rules of Evidence because the statute requires a physician to render the er expert opinion, it cannot be created. At I I4: Because In a suit involving a health care liability claim ß a denti st, d pers0n may qual ifv as an expert wit- the standard of care regarding confidentiality is a stan- 0n the issue of the causal relati onsh lp betwee n t.ue dard that applies to all health care providers and be- alleged departure from accepted standards of care cause health care providers are expected to know the o,coNNoR's TExas cPRC