Nexion Health at Beechnut, Inc. D/B/A Beechnut Manor v. Estate of Shauna Thompson Kent, and Matthew Gerald Bray, as Temporary Admistrator of the Estate of Shauna Thompson Kent

Opinion issued June 14, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-01100-CV ——————————— Nexion Health at Beechnut, Inc. d/b/a Beechnut Manor, Appellant V. Estate of Shauna Thompson Kent, deceased, and Matthew Gerald Bray, as temporary administrator of the Estate of ShaunA Thompson Kent, Deceased, Appellees On Appeal from the Probate Court Number 1 Harris County, Texas Trial Court Case No. 404,607-401 MEMORANDUM OPINION Nexion Health at Beechnut, Inc. brings this interlocutory appeal challenging the trial court’s denial of its motion to dismiss a health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2011). Matthew Bray, as temporary administrator of the estate of Shauna Thompson Kent, deceased, brought a health care liability claim against Beechnut, a long-term care facility, for injuries Kent suffered while a patient there. Bray alleged multiple acts of negligence and gross negligence in his petition and, as required by statute, served expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011). Asserting the reports were deficient for failing to address each specific act of alleged negligence, Beechnut sought dismissal of the alleged acts of negligence that were not addressed in the expert reports. The trial court denied the motion to dismiss and Beechnut appealed. Because a prior opinion from this court rejected the argument Beechnut makes in this appeal, we affirm. Background On April 29, 2009, Kent was admitted to Beechnut for long-term care relating to her deteriorating health, which included diagnoses of progressive dementia, diabetes, coronary artery disease, cerebral vascular disease, and altered mental status. She also suffered from chronic depression, anxiety, paranoia, and agitation. Because of her dementia, Kent was unable to follow or understand instructions or commands or to recall or relate recent events. In addition, Kent had a gait/balance disorder, muscle weakness, neuropathy, and poor vision. Because of her conditions, Kent was on multiple medications, including psychotropic medications, blood thinners, insulin, pain medication, and antihypertensives. As a result of her medical conditions and medications, Kent was unable to safely move or walk on her own: she required a wheelchair or a walker and assistance in transferring to or from the wheelchair, bed, and the toilet. She presented a very high risk for falling on a “fall risk assessment.” On May 26, Kent fell in her room. She broke her hip and required surgery as well as a lengthy hospitalization. After Kent’s death, Bray, as the administrator of her estate, sued Beechnut for negligence and gross negligence. As required by statute, Bray filed an expert report by Dr. Eric Orzeck, M.D., and a report by Ruthanne Parton, R.N. Beechnut moved to dismiss the suit, in part. The trial court denied the motion to dismiss and Beechnut appealed. Analysis A. Standard of Review We review a trial court’s ruling on a motion to dismiss a health care liability lawsuit pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (reviewing dismissal under predecessor statute, section 13(e) of article 4590i); Runcie v. Foley, 274 S.W.3d 232, 233 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles, or if it clearly fails to analyze or apply the law correctly. Runcie, 274 S.W.3d at 233. In reviewing whether an expert report complies with Chapter 74, we evaluate whether the report “represents a good-faith effort” to comply with the statute. Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). In making this evaluation, we must look only at the information contained within the four corners of the report. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). B. Chapter 74 Expert Report Requirements Pursuant to section 74.351, medical-malpractice plaintiffs must provide each defendant physician and health care provider with an expert report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If a claimant timely furnishes an expert report, a defendant may file a motion challenging the report’s adequacy. Id. The trial court shall grant the motion only if it appears, after hearing, that the report does not represent an objective good faith effort to comply with the statutory definition of an expert report. Id. § 74.351(l). The statute defines an expert report as a written report by an expert that provides, as to each defendant, a fair summary of the expert’s opinions, as of the date of the report, regarding: (1) the applicable standards of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Although the report need not marshal all the plaintiff’s proof, it must include the expert’s opinions on the three statutory elements—standard of care, breach, and causation. Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859. In detailing these elements, the report must provide enough information to fulfill two purposes: first, it must inform the defendant of the specific conduct the plaintiff has called into question, and, second, it must provide a basis for the trial court to conclude that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios, 46 S.W.3d at 879). A report that merely states the expert’s conclusions as to the standard of care, breach, and causation does not fulfill these two purposes. Id. “‘[T]he expert must explain the basis of his statements to link his conclusions to the facts.’” Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). Furthermore, in assessing the report’s sufficiency, the trial court may not draw any inferences, and instead must rely exclusively on the information contained within the report’s four corners. See Scoresby, 346 S.W.3d at 556 (citing Wright, 79 S.W.3d at 53). C. Beechnut’s Objection Beechnut’s sole objection to the reports is that Dr. Orzeck and Ms. Parton did not address each of the thirty-eight specific acts of negligence or gross negligence alleged in Bray’s petition. According to Beechnut, the trial court abused its discretion when it failed to dismiss Bray’s negligence claims with respect to the acts of negligence or gross negligence that were not addressed in the expert reports. Chapter 74 defines a “claim” as “a health care liability claim.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(2). A “health care liability claim” is defined as: a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract. Id. § 74.001(13) (West Supp. 2010) (emphasis added). Chapter 74 does not define a “cause of action” but the Texas Supreme Court describes a cause of action as: “a fact or facts entitling one to institute and maintain an action, which must be proved in order to obtain relief” and as a “group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 691 (Tex. App.—Houston [1st Dist.] 2011, pet. granted) (quoting In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (orig. proceeding)). In Certified EMS, this court concluded that under the plain language of Chapter 74, a “claim” or “health care liability claim” was a “cause of action,” and not each particular liability theory that had been alleged in support of a cause of action. Id. This court stated, By focusing on a cause of action rather than particular liability theories that may be contained within a cause of action, the plain language does not require an expert report to set out each and every liability theory that might be pursued by the claimant as long as at least one liability theory within a cause of action is shown by the expert report. . . . . [I]f at least one liability theory within a cause of action is shown by the expert report, then the claimant may proceed with the entire cause of action against the defendant, including particular liability theories that were not originally part of the expert report, as long as those liability theories are contained within the same cause of action. Id. at 691­–92. Thus, in Certified EMS, this court held that an expert report that addressed only a vicarious liability theory did not require the dismissal of the direct liability theory against the health care provider. Id. at 700. In other words, although there were two theories of liability—direct and vicarious—there were not two “claims” or “causes of action.” Rather, there was a single cause of action for negligence, which could be supported by either theory. Id. Similarly, in this case, Bray brought a claim for negligence and a claim for gross negligence. Bray alleged a number of different theories—specific acts of alleged negligence or gross negligence—to support each claim. Beechnut does not contend that the expert reports are deficient in any way except that they fail to address each specific act of alleged negligence or gross negligence. Because each specific allegedly wrongful act that could support liability is not a separate claim for negligence or gross negligence, the trial court did not abuse its discretion by failing to dismiss Bray’s claims. See id. The Fourteenth Court of Appeals has reached the same conclusion in slightly different circumstances than those presented in Certified EMS. In University of Texas Medical Branch at Galveston v. Kai Hui Qi, the claimant alleged multiple acts of negligence, including a deviation from the standard of care in treating the patient’s condition and failing to refer the patient to a specialist. No. 14-11-00704-CV, 2012 WL 1406466, at *7 (Tex. App.—Houston [14th Dist.] Apr. 24, 2012, no pet. h.). The expert report did not address these two allegedly negligent acts, but it did address other alleged acts and omissions. Id. The Fourteenth Court rejected the argument that the failure to address two of multiple acts or omissions alleged required the dismissal of the claimant’s healthcare liability claim: “An expert is not required to address each and every act or omission mentioned in the pleadings, so long as at least one liability theory within each cause of action is sufficiently addressed.” Id. Beechnut attempts to distinguish Certified EMS by asserting, “This Court’s holding in [Certified EMS] applies to future, not-yet-pled liability theories against health care defendants.” It appears the following is the language upon which Beechnut relies: “. . . [T]he plain language does not require an expert report to set out each and every liability theory that might be pursued by the claimant as long as at least one liability theory within a cause of action is shown by the expert report.” Certified EMS, Inc., 355 S.W.3d at 691 (emphasis added). But nothing in the quoted language limits the court’s holding to “not-yet-pled liability theories.” Indeed, the court’s holding actually addressed two pleaded liability theories—direct liability and vicarious liability. Id. at 686 (“[Potts] eventually brought suit against Certified EMS asserting that it was vicariously liable for Hardin’s conduct under a respondeat superior theory and directly liable for its own negligence in training and supervising Hardin.”). Beechnut’s attempt to distinguish Certified EMS is not persuasive. Beechnut does not challenge the qualifications of the experts or the adequacy of the reports concerning the specific acts of negligence and gross negligence addressed in the reports. Rather, Beechnut only challenges the failure of the expert reports to address each act or omission alleged in Bray’s petition. For the reason discussed above, we conclude that the trial court did not abuse its discretion in refusing to dismiss Bray’s healthcare liability claim. See Certified EMS, Inc., 355 S.W.3d at 700. We overrule Beechnut’s first issue. Attorney’s Fees Beechnut complains that the trial court abused its discretion by failing to award its attorney’s fees on the basis the trial court’s underlying decision on the motion to dismiss was erroneous. Because we have upheld the trial court’s ruling, and Beechnut does not advance any other ground for imposing an attorney’s fee award, we conclude that the trial court did not abuse its discretion in determining Beechnut was not entitled to attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1) (West Supp. 2011) (mandating dismissal of the claim and award of attorney’s fees when “an expert report has not been [timely] served”). We overrule Beechnut’s second issue. Conclusion We affirm the order of the trial court. Rebeca Huddle Justice Panel consists of Justices Higley, Sharp, and Huddle.