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Affirmed and Memorandum Opinion filed = May 22,=20 2008.

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-07-00895-CV

____________

 

ARBORETUM=20 NURSING AND REHABILITATION CENTER OF WINNIE, = INC., = Appellant

 

V.

 

MARY=20 ISAACKS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF = ROBERT=20 ISAACKS, SR., DECEASED, AND ROBERT ISAACKS, JR. AND DEBRA GERNERT, = INDIVIDUALLY, = Appellees

 

 

On Appeal from the = 253rd District Court

Chambers County, = Texas

Trial Court Cause = No. 23389

 

 

M E M O R=20 A N D U M   O P I N I O N

This is a=20 health care liability lawsuit governed by chapter 74 of the Texas = Civil=20 Practice and Remedies Code.  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 74.001B.507=20 (Vernon 2005).  Arboretum Nursing and Rehabilitation Center = of Winnie=20 brings this interlocutory appeal from the trial court=3Ds denial=20 of its motion to dismiss, which was based on the alleged = inadequacy of the=20 preliminary expert report prepared by Dr. Lige Rushing and filed = by Mary=20 Isaacks, Robert Isaacks=3D = widow,=20 along with her children, Robert Isaacks Jr. and Debra = Gernert.  On=20 appeal, Arboretum contends the report is inadequate because it = fails to=20 address (1) causation, (2) all of appellees=3D = claims,=20 and (3) Rushing=3Ds=20 qualifications to render an opinion.  We affirm.

I. =20 Factual Background

On April=20 15, 2005, Robert Isaacks, Sr. was admitted to the Arboretum for = long term=20 care.[1] =20 At the time of his admission, he had been diagnosed with=20 Alzheimer=3Ds disease,=20 left carotid artery stenosis, diet-controlled diabetes, renal=20 insufficiency, dyslipidemia, osteoarthritis, right knee arthritis, = and=20 left lung collapse.  Approximately one year later, on April = 24, 2006,=20 a nurse noted that pressure ulcers had developed on Mr.=20 Isaacks=3D = right=20 ankle and under his right foot.  Mr. Isaacks suffered a fall = on the=20 same day and was admitted to Bayside Hospital where he remained = until May=20 1, 2006.

The=20 attending physician at Bayside Hospital noted a plantar ulcer on=20 Isaacks=3D = foot and=20 a pressure ulcer on his right ankle.  The plantar ulcer on = the right=20 foot was noted to be healing at the time of discharge.  When = Isaacks=20 was re-admitted to the Arboretum, the admission nursing assessment = noted=20 the ankle ulcer was two centimeters in size with a six centimeter = reddened=20 area around it.  The plantar ulcer was one and one-half = centimeters=20 in diameter and one and one-half centimeters deep with no = drainage. =20 By June 2, 2006, the right ankle ulcer had increased in size and = was=20 diagnosed as a Stage III ulcer.  On the same day, due to the = advanced=20 stage of infection, Isaacks=3D = right leg=20 was amputated above the knee.  On June 27, 2006, Isaacks died = as a=20 result of aspiration pneumonia.  Aspiration pneumonia results = when=20 acidic gastric content or other foreign material is aspirated in = the=20 lining of the lungs.

On April=20 23, 2007, Isaacks=3D = widow and=20 children filed suit against Arboretum alleging survival and = wrongful death=20 causes of action.  As is required by Chapter 74 of the Civil = Practice=20 and Remedies Code, appellees submitted the report of Dr. Lige B.=20 Rushing.  See Tex.=20 Civ. Prac. & Rem. Code Ann. ' = 74.351=20 (Vernon 2006).  On June 7, 2007, Arboretum filed objections = to Dr.=20 Rushing=3Ds expert=20 report and moved to dismiss appellee=3Ds=20 petition.  On June 18, 2007, Rushing supplemented his = original=20 report.  On June 28, 2007, the trial court held a hearing and = denied=20 Arboretum=3Ds motion=20 to dismiss.  Pursuant to section 51.014 of the Texas Civil = Practice=20 and Remedies Code, the Arboretum filed this interlocutory=20 appeal.

II. =20 Jurisdiction

Appellees=20 argue that Arboretum cannot bring an interlocutory appeal from the = trial=20 court=3Ds denial=20 of its motion to dismiss.  A person may appeal from an = interlocutory=20 order issued pursuant to section 74.351 when the trial court: (1) = denies=20 the relief sought under section 74.351(b); or (2) grants the = relief sought=20 under section 74.351(l).  See Tex. Civ. Prac. & Rem. Code = Ann. ' 51.014(a)(9),=20 (10); Olgetree v. Matthews, 2007 WL 4216606, 51 Tex. Sup. = Ct. J.=20 165 (Tex. Nov. 30, 2007).  Appellees argue that = Arboretum=3Ds=20 interlocutory appeal would be proper only under section = 51.014(a)(10),=20 which applies when an expert report was filed and the trial court = granted=20 the motion to dismiss on the basis of an inadequate report.  = Since=20 appellees filed their brief, the supreme court held that a = challenge to=20 the sufficiency of an expert report is a challenge pursuant to = section=20 74.351(b) that no compliant report has been served.  Lewis = v.=20 Funderburk, No. 06-0518 2008 WL 1147188, 51 Tex. Sup. Ct. J. = 747 (Tex.=20 April 11, 2008).  Therefore, we have jurisdiction to consider = Arboretum=3Ds=20 interlocutory appeal.

III.=20 Standard of Review

A=20 plaintiff asserting a healthcare liability claim must submit an = expert=20 report to each healthcare provider and defendant physician.  = Tex. Civ. Prac. & Rem. = Code=20 Ann. ' 74.351(a). =20 A compliant expert report is defined as a written report providing = a fair=20 summary of the expert=3Ds opinions=20 regarding the standard of care, the manner in which the care = rendered by=20 the health care provider failed to meet the standard of care, and = the=20 causal relationship between that failure and the harm = claimed.  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' 74.351(r)(6). =20 The trial court shall grant a motion challenging the adequacy of = an expert=20 report only if it appears to the court, after hearing, that the = report=20 does not represent an objective good faith effort to comply with = the=20 definition of an expert report in subsection (r)(6).  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 74.351(l).  We review a trial court=3Ds decision=20 on a motion to dismiss under section 74.351 of the Civil Practice = and=20 Remedies Code for abuse of discretion.  Estate of Regis ex = rel.=20 McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 = (Tex.=20 App.CHouston=20 [14th Dist.] 2006, no pet.). 

To=20 constitute a good faith effort, an expert=3Ds medical=20 liability report must establish the expert=3Ds=20 qualifications, the applicable standard of care, how that standard = was=20 breached by the particular actions of the defendant, and how the = breach=20 caused the damages claimed by the plaintiff.  Am. = Transitional=20 Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, = 878B79 (Tex.=20 2001).  Although an expert report need not marshal and = present all of=20 the plaintiff=3Ds proof, a=20 report that omits any of the elements required by the statute does = not=20 constitute a good faith effort.  Id.

IV. =20 Adequacy of Expert Report

A. =20 Causation

In its=20 first issue, Arboretum contends that Dr. Rushing=3Ds report=20 is not sufficient to establish causation.  Arboretum first = argues=20 that Rushing=3Ds report=20 is inadequate because it is based on assumptions, not facts.  = Arboretum identified sources of information that Rushing = stated  were=20 unavailable or unclear from the medical records.  In his = report,=20 Rushing refers to ulcers that were present on Isaacks=3D = foot and=20 ankle at the time Isaacks was re-admitted to the Arboretum on May = 1,=20 2006:

The records at = Arboretum, E-Z=20 graph shows that the lateral malleolus [ankle] ulcer increased in = size=20 from 05/07/06 to 05/30/06.  The E-Z graph wound assessment = also=20 indicates there is a posterior right foot ulcer.  However, = this is=20 not marked on the manikins and I am unable to determine the = precise=20 location.  The records are simply insufficient to determine = if this=20 is a new ulcer or the original plantar = ulcer.

* * * *=20 *

There is a note on = 06/02/06=20 by a wound care nurse that the right lateral malleolus ulcer is = 4.5 cm x=20 4.5 cm in size.  A photograph was also made at this time and = there is=20 a black and white reproduction that is unclear and that I am = unable to=20 interpret.

* * * *=20 *

I am unable to find = a=20 surgical pathology report describing the amputated right leg in = the=20 records provided to me.

 

In his=20 supplemental report, Rushing states that the above statements did = not form=20 any basis of his opinion, but were included for the purposes of=20 completeness and thoroughness.

Arboretum=20 claims that in forming his opinion, Rushing inappropriately relied = on=20 Arboretum=3Ds=20 incomplete records.  Specifically, Arboretum claims that = Rushing=20 failed to rule out the possibility that a new ulcer could have = formed=20 while Isaacks was at Bayside Hospital.  We do not read=20 Rushing=3Ds report=20 as leading to such a conclusion.  Rushing=3Ds=20 statement about the possibility of a new ulcer was based on notes = that=20 were recorded May 30, 2006, one month after Isaacks was discharged = from=20 Bayside Hospital.  Any possibility of a new ulcer appears to = be=20 attributable to Arboretum, not Bayside.  Moreover, whether an = additional ulcer occurred at Bayside Hospital is irrelevant to the = issue=20 of whether the ulcers that were first discovered at Arboretum = contributed=20 to Isaacks=3D = injuries.=20

To=20 constitute an objective good-faith effort, an expert report must = provide=20 enough information to fulfill two purposes.  The report must = inform=20 the defendant of the specific conduct the plaintiff has called = into=20 question, and it must provide a basis for the trial judge to = conclude the=20 claims have merit.  Palacios, 46 S.W.3d at = 878B79. =20 In his supplemental report, Rushing reported that the standard of = care for=20 the nursing home and their nurses requires that they (1) inspect = and=20 assess the skin, head to toe, every day with particular attention = to=20 pressure points such as heels, toes, hip, and sacrum, (2) document = new=20 skin changes on the very day that they are noted, (3) perform a = regular=20 and detailed documented skin assessment once a week, and (4) treat = the=20 stage I and stage II pressure ulcers as soon as they are=20 discovered.

Dr.=20 Rushing reported that the standard of care required that once = stage I and=20 II pressure ulcers were discovered, they should be treated by = relieving=20 pressure on the affected area and ensuring that nothing touched = the=20 ulcer.  Dr. Rushing opined that by failing to perform regular = skin=20 assessments and properly treat the stage I and II ulcers, the = nursing=20 staff  at Arboretum breached the standard of care.  Dr. = Rushing=20 further opined that most stage I and II ulcers, when treated = properly,=20 heal well.  Had the ulcers been diagnosed and treated in the = earlier=20 stages, they would have healed and not progressed to stage III = ulcers and=20 osteomyelitis, ultimately resulting in amputation of the = leg.

Dr.=20 Rushing=3Ds report=20 addresses the pain and mental anguish suffered by Isaacks when his = leg was=20 amputated.  Dr. Rushing opined that the cutting of the skin = and=20 deeper tissue including the bone is associated with physical pain = due to=20 the severing of the sensory nerves.  Dr. Rushing opined that=20 amputation is associated with mental anguish because of the human=20 cerebral/emotional response to the loss of a body part.  With = regard=20 to Mr. Isaacks=3D = death,=20 Dr. Rushing opined that following the surgery, Mr. Isaacks was = further=20 debilitated and weakened Ato the=20 point where he could not protect the tracheobronchial tree from=20 inhalation/aspiration of fluid particles.@ =20 This inability to protect the tracheobronchial tree led to = aspiration=20 pneumonia, which caused Mr. Isaacks=3D = death.

Appellees=20 filed suit alleging causes of action for physical pain and mental = anguish=20 suffered prior to Isaacks=3D = death and=20 seeking medical expenses incurred prior to his death.  = Appellees also=20 alleged a cause of action for the wrongful death allegedly = attributable to=20 Arboretum=3Ds=20 negligence.  Rushing=3Ds report=20 sufficiently stated the standard of care and breach of that = care. =20

Arboretum=20 complains that Rushing speculates about the possibilities that = could=20 happen regarding Isaacks=3D = pressure=20 ulcers and ultimate death, but falls short of a good-faith effort = to=20 comply with the statute.  Specifically, Arboretum contends = that=20 Anon-detection@ = and=20 Anon-treatment@ = do not=20 show causation.  In his report, Rushing states that = inspection and=20 assessment of the skin is crucial to detect skin abnormalities = before they=20 become infected.  Rushing stated that the Astandard=20 of care requires that when a resident enters a long-term facility = without=20 pressure ulcers that they be provided the necessary care and = treatment to=20 prevent the development of pressure ulcers unless their clinical = condition=20 demonstrates that the ulcers are unavoidable.  There was = nothing in=20 Mr. Isaacks=3D = history=20 to indicate that this pressure ulcer was unavoidable or=20 inevitable.@  He=20 further states, AWith early=20 recognition and early aggressive treatment of stage I and stage II = ulcers,=20 a cure can be accomplished in almost every case.@ =20

Arboretum=20 cites several cases in support of its contention that = Rushing=3Ds report=20 is conclusory as to causation.  However, those cases are = factually=20 distinguishable in that the expert reports in those cases = contained an=20 analytical gap not found in Rushing=3Ds=20 report.  See e.g., Clark v. HCA, Inc., 210 = S.W.3d 1, 11=20 (Tex. App.CEl Paso=20 2005, no pet.) (missing link in report linking use of drug to = syndrome=20 suffered by plaintiff); Davis v. Spring Branch Med. Ctr., = Inc., 171=20 S.W.3d 400, 409B10 (Tex.=20 App.CHouston=20 [14th Dist.] 2005, no pet.) (statement that nursing home = Arobbed=20 [appellant] of quality of life, and hastened the loss of her=20 legs@ = considered conclusory because it did not link breach of standard = of care=20 with injury); Hillman v. Diagnostic Clinic of Houston, = P.A., No.=20 01-04-00580-CV, 2005 WL 995453, *4 (Tex. App.CHouston=20 [1st Dist.] April 28, 2005, no pet.) (memo. op.) = (expert=3Ds=20 conclusion not explained or linked to any facts demonstrating a = specific=20 departure from the standard of care); Davis v. Markey, No.=20 03-04-00455-CV, 2005 WL 670525, *4 (Tex. App.CAustin=20 March 24, 2005, pet. denied) (memo. op.) (report failed to link = failure to=20 be vigilant in the post-operative period to the conclusion that = the=20 alleged error increased the plaintiff=3Ds=20 disability); and Barko v. Genzel, 123 S.W.3d 457, 460 (Tex. = App.CEastland=20 2003, no pet.) (conclusion that A[t]hese=20 violations of the standards of emergency medical practice were a = proximate=20 cause of this patient=3Ds=20 injury@ = insufficient because it merely stated the expert=3Ds=20 conclusions about causation, but did not link alleged error to=20 patient=3Ds=20 injury).

Arboretum=20 further argues that Rushing merely speculated about the = possibilities that=20 could happen and that such speculation does not constitute a = good-faith=20 effort to comply with the statute.  For this proposition, = Arboretum=20 cites Estate of Allen v. Polly Ryon Hosp. Auth., No.=20 01-04-00151-CV, 2005 WL 497291 (Tex. App.CHouston=20 [1st Dist.] March 3, 2005, no pet.).  In that case, an = elderly male=20 patient suffered from pressure ulcers, and his family sued his = treating=20 doctors and hospital for negligent nursing care.  Id. = at=20 *1.  The expert report described the standard of care for = treatment=20 of pressure ulcers and alleged that the hospital and doctor had = not=20 followed the appropriate standard.  Id. at *5.  = The=20 report then stated that, A[a]s a=20 result these wounds were more likely to persist and/or = worsen,=20 increasing [the patient]=3Ds level of=20 pain and risk of wound infection.@ =20 Id.  The court found that a report that Arecites=20 mere possibilities of a better outcome, as here, without = explaining how=20 the defendant caused the injury alleged, is conclusory and = therefore does=20 not comply with the good-faith effort requirement of the=20 statute[.]@ =20 Id. 

Rushing=3Ds report=20 differs from those in the cited cases in that his statements link = the=20 breach of the standard of care to the cause of Isaacks=3D = injury=20 and death.  He explains that if Isaacks=3D = skin had=20 been properly monitored, he would not have developed pressure = ulcers, and=20 the ulcers would not have become infected.  Further, Rushing = goes=20 beyond reciting mere possibilities of a better outcome and opines = that if=20 the nursing home had followed the proper standard of skin = detection and=20 treatment at the early stages of the ulcers, more likely than not, = Isaacks=20 would have recovered.  Finally, Rushing=3Ds report=20 sufficiently describes how Isaacks=3D = pneumonia=20 could have been caused by the inability to protect the = tracheobroncihial=20 tree due to his weakened state as a result of the infection and=20 amputation.  Dr. Rushing=3Ds report=20 does not state conclusions without reference to the underlying = facts upon=20 which he premised his opinion.  See Patel v. Williams ex = rel.=20 Estate of Mitchell, 237 S.W.3d 901, 904 (Tex. App.CHouston=20 [14th Dist.] 2007, no pet.).  We find that = Rushing=3Ds report=20 discusses the standard of care, breach, and causation with = sufficient=20 specificity to inform Arboretum of the conduct appellees have = called into=20 question and to provide a basis for the trial court to conclude = that=20 appellees=3D = claims=20 have merit.  See Palacios, 46 S.W.3d at 875; see=20 also, Agana v. Terrell,No. 09-07-088-CV; 2007 WL = 1793786 at *6=20 (Tex. App.CBeaumont=20 June 21, 2007, no pet.) (memo. op.) (Because Abedsores=20 are observable by visual examination,@ = expert=20 report stating that failure to properly monitor = patient=3Ds skin=20 proximately caused bedsores was adequate under section = 74.351). =20 Arboretum=3Ds first=20 issue is overruled.

B.     =20 Elimination of Other Causes

In its=20 second issue, Arboretum claims Rushing=3Ds report=20 fails to eliminate pre-existing conditions as the cause of injury = and=20 death.  Arboretum contends that Rushing identified numerous=20 pre-existing conditions suffered by Isaacks, but failed to = eliminate those=20 conditions beyond Arboretum=3Ds control=20 as causes of his injury or death.  See Pisasale v. The = Ensign=20 Group, Inc., No. 11-05-00196-CV, 2006 WL 2567400, at *4 (Tex.=20 App.CEastland=20 September 7, 2006, pet. denied) (memo. op.) (holding expert report = did not=20 constitute a good‑faith effort to comply with statute where, = among other=20 things, expert Amade no=20 effort to eliminate [the deceased=3Ds]=20 preexisting conditions as the cause for the injuries described in = his=20 report@). =20

We have=20 previously held that such an opinion is not required.  = Chaupin v.=20 Schroeder, No. 14-06-01102-CV; 2007 WL 2127713 at *8 (Tex.=20 App.CHouston=20 [14th Dist.] July 26, 2007, no pet.) (memo. op.).  Further, = in his=20 report, Rushing addressed Isaacks=3D = pre-existing conditions when he stated, A[t]here is=20 nothing in Mr. Isaacks history to indicate that this pressure = ulcer was=20 unavoidable or inevitable.@ =20 Arboretum=3Ds second=20 issue is overruled.

C.     =20 Failure to Address All Claims

In its=20 third issue, Arboretum contends that Rushing=3Ds expert=20 report fails to address all of appellees=3D = claims.  To constitute a good-faith effort, the report must = inform=20 the defendant of the specific conduct the plaintiff has called = into=20 question.  Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.=20 App.CDallas=20 2007, no pet.) (citing Palacios, 46 S.W.3d at 879).  = In=20 addressing each element of the statute, the report qualifies as a=20 good-faith effort if, in describing the expert=3Ds opinion=20 on the statutory elements, it provides enough information to (1) = inform=20 the defendant of the specific conduct at issue, and (2) provide a = basis=20 for the trial court to conclude the plaintiff=3Ds claims=20 are meritorious.  Cayton, 224 S.W.3d at 445.  If = an=20 expert report omits any of the statutory elements, it cannot be a=20 good-faith effort.  Id.

Arboretum=20 first claims Rushing=3Ds report=20 did not address Isaacks=3D = physical=20 pain and mental anguish.  However, in his supplemental = report,=20 Rushing stated that Isaacks suffered amputation of his right leg = and that=20 such an amputation is associated with physical pain and mental = anguish due=20 to cutting sensory nerves and the emotional response to loss of a=20 limb.  We conclude that Rushing=3Ds report=20 is a fair summary of the harm suffered by Isaacks.  =

Next,=20 Arboretum claims that Rushing=3Ds report=20 failed to address several specific contentions in = appellees=3D = petition.  An expert report must provide a fair summary of = the=20 standard of care, the manner in which the care rendered failed to = meet the=20 standard, and the causal relationship between that failure and the = harm=20 claimed.  Tex. Civ. = Prac.=20 & Rem. Code Ann. ' = 74.351(r)(6).  The expert=3Ds report=20 need not identify all evidence necessary to litigate the merits of = the=20 plaintiff=3Ds case,=20 nor must it marshal all of the plaintiff=3Ds proof.=20 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. = 2002);=20 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex.=20 App.CHouston=20 [1st Dist.] 2006, no pet.).  Rushing=3Ds report=20 sufficiently addresses the statutory elements.  Although the = report=20 does not address each detail of the plaintiff=3Ds=20 petition, there is no requirement that the report meet the same=20 requirements as evidence offered in summary judgment proceedings = or in a=20 trial.  Cayton, 224 S.W.3d at 445.  = Arboretum=3Ds third=20 issue is overruled.

D. =20 Rushing=3Ds=20 Qualifications

In its=20 fourth issue, the Arboretum contends that the report fails to = establish=20 that Rushing is qualified to provide an expert medical = report. =20 Specifically, Arboretum contends that Dr. Rushing=3Ds report=20 and curriculum vitae do not provide sufficient details regarding = relevant=20 experience.  To provide a compliant report, the expert must = establish=20 that he or she is qualified to do so.  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 74.351(r)(5)(A).  An expert providing opinion testimony = regarding=20 whether a health care provider departed from the accepted = standards of=20 health care must satisfy the requirements set forth in section = 74.402.=20 Tex. Civ. Prac. & = Rem. Code=20 Ann. ' = 74.351(r)(5)(B). Section 74.402 provides:

(b) In a suit = involving a=20 health care liability claim against a health care provider, a = person may=20 qualify as an expert witness on the issue of whether the health = care=20 provider departed from accepted standards of care only if the=20 person:

 

(1) is practicing = health care=20 in a field of practice that involves the same type of care or = treatment as=20 that delivered by the defendant health care provider, if the = defendant=20 health care provider is an individual, at the time the testimony = is given=20 or was practicing that type of health care at the time the claim=20 arose;

 

(2) has knowledge = of accepted=20 standards of care for health care providers for the diagnosis, = care, or=20 treatment of the illness, injury, or condition involved in the = claim;=20 and

 

(3) is qualified on = the basis=20 of training or experience to offer an expert opinion regarding = those=20 accepted standards of health care.

 

Tex.=20 Civ. Prac. & Rem. Code Ann.=20 ' = 74.402(b). 

In=20 determining whether a witness is qualified Aon the=20 basis of training or experience,@ = the court=20 shall consider whether, at the time the claim arose or at the time = the=20 testimony is given, the witness:

(1) is certified by = a=20 licensing agency of one or more states of the United States or a = national=20 professional certifying agency, or has other substantial training = or=20 experience, in the area of health care relevant to the claim;=20 and

 

(2) is=20 actively practicing health care in rendering health care services = relevant=20 to the claim.

Tex.=20 Civ. Prac. & Rem. Code Ann.=20 ' = 74.402(c)(1)B(2).

Arboretum=20 claims that Rushing=3Ds report=20 and curriculum vitae contain only conclusory statements and do not = show=20 Rushing=3Ds=20 experience with (1) pressure ulcers in patients suffering from = medical=20 conditions identical to those of Isaacks, (2) MRSA B = streptococcus infections, or (3) aspiration pneumonia.  = Section=20 74.402 does not require that Dr. Rushing have experience with = patients=20 identical to Isaacks.  Rather, the focus of our inquiry is = whether=20 Dr. Rushing practices health care in a field of practice that = involves the=20 same type of care or treatment as that delivered by = Arboretum. =20 See Group v. Vicento, 164 S.W.3d 724, 732 (Tex. = App.CHouston=20 [14th Dist.] 2005, pet. denied).

Rushing=3Ds report=20 and curriculum vitae reveal that he is board certified in internal = medicine, rheumatology, and geriatric medicine.  He is = currently=20 engaged in the private practice of medicine and is on the = attending staff=20 of Presbyterian Hospital in Dallas, Texas.  Rushing further = stated=20 his opinions were based on his experience caring for patients both = in the=20 hospital and nursing home settings.  He also has worked = closely with=20 and supervised nurses who have been assigned to provide nursing = care and=20 treatment for his patients.  Finally, the report = states:

In the regular = course of my=20 medical practice, I have occasion to diagnose and treat patients = with=20 conditions substantially similar to or identical with Mr. = Isaacks.  I=20 have also served as a primary care physician for more than 10,000=20 hospitalized and nursing home patients.  Many of these = patients have=20 had the same types of condition as Mr. Isaacks.  Accordingly = I have=20 cared for and treated many patients who were at a risk for the = development=20 of pressure ulcers.  Likewise, I have treated patients who = have=20 pressure ulcers over the course of my career.

 

Rushing=3Ds report=20 and curriculum vitae adequately demonstrate that he is qualified = under=20 section 74.402 of the Civil Practice and Remedies Code. =20 Rushing=3Ds report=20 states that he was practicing medicine at the time his report was = given,=20 he has knowledge of the accepted standards of medical care for the = diagnosis, cure, or treatment of pressure ulcers and infections = related to=20 those ulcers, and he is qualified on the basis of training and = experience=20 to offer an expert opinion regarding those standards of = care.  The=20 report states specifically that Rushing has experience with = patients under=20 similar or identical conditions as Isaacks.  The trial court = did not=20 abuse its discretion in denying Arboretum=3Ds motion=20 to dismiss.  Arboretum=3Ds fourth=20 issue is overruled.

Accordingly,=20 we affirm the trial court=3Ds denial=20 of the motion to dismiss.

 

 

/s/     =20 Adele Hedges

Chief = Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion filed May 22, 2008.

Panel=20 consists of Chief Justice Hedges and Justices Brown and = Boyce.

 


[1]  Background facts are derived from = Dr.=20 Rushing=3Ds=20 report.

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