MEDICAL MALPRACTICE | HCLC | EXPERT REPORT | | Law suits against
San Jacinto Methodist Hospital v. Carr (Tex.App. - Houston [1st Dist.] May 22, 2008)(Bland)
(HCLC, med-mal, medical malpractice suit, expert report sufficient, motion to dismiss HCLC properly denied)
AFFIRM TC JUDGMENT: Opinion by Justice Jane Nenninger Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00655-CV San Jacinto Methodist Hospital v. Guy Patrick Carr and Terri Carr
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. John Thomas Wooldridge
Attorneys: Iain Gordon Simpson, Oscar Luis De La Rosa | Attorney Craig Lewis
We conclude that Dr. Tulloch’s report provides a fair summary of his opinion that a causal relationship exists
between San Jacinto Methodist’s failure to meet the pertinent standard of care and the Carrs’ damages.
Accordingly, we hold that the trial court did not abuse its discretion in denying Methodist’s motion to dismiss the
Carrs’ health care liability claims.[1]
MEMORANDUM OPINION
This appeal arises from a medical malpractice claim brought by Appellees, Guy and Terri Carr, against
Appellant, San Jacinto Methodist Hospital (Methodist). The trial court denied Methodist’s motion to dismiss,
which asserted that the Carrs failed to satisfy the requirements set forth in section 74.351 of the Texas Civil
Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code. Ann. § 74.351 (Vernon Supp. 2007). In its
sole issue, Methodist contends that the trial court abused its discretion in ruling that the Carrs’ expert report
complies with the statute. We affirm.
Background
On January 2, 2005, Guy Carr arrived at Methodist, complaining of abdominal pain and nausea. While
receiving treatment in the emergency room, the doctors diagnosed Carr, a diabetic, with pancreatitis, and
admitted him to the hospital under the care of Dr. Talosig. On January 3, Carr requested a transfer to St.
Joseph Hospital. Upon arriving at St. Joseph, the medical staff evaluated Carr and found that he was seriously
dehydrated and his blood glucose levels were dangerously high. Following the efforts at St. Joseph to bring
Carr’s glucose levels under control and to provide adequate hydration, Carr suffered cerebral edema, which
caused permanent brain damage.
The Carrs sued Dr. Talosig and Methodist in December 2006, alleging negligence in the rendition of
healthcare services. The Carrs alleged that Dr. Talosig and the nursing staff failed to adequately monitor,
assess, care for, treat and recognize Carr’s deteriorating condition, which ultimately caused his injuries.
Carr filed expert reports from Dr. David Hyman and Dr. Brian Tulloch as required by section 74.351 of the
Texas Practice and Remedies Code. See id. Dr. Tulloch’s report reads in pertinent part:
It is difficult to point to a single issue that caused this poor man’s adverse outcome with long-standing brain
damage . . .
The events that resulted in such a poor outcome hence could with reasonable probability have occurred as a
result of him being allowed to become dehydrated by a period of inadequate insulin administration resulted in
rising blood sugar followed by inadequate intravenous rehydration since he was NPO and hence unable to
slake his developing thirst. . . .
How did this happen? When the kidney is faced with a sugar greater than the renal threshold it becomes
unable to automatically regulate urine output to the state of hydration of the body. For most subjects the renal
threshold for glucose is in the 180-200 mg/dl range, hence if the sugar is above that level for any length of time
fluid is continually lost thru the kidney by osmotic diuresis and unless it is replaced by thirst being quenched
the body becomes dehydrated. A thirsty man would then need to drink more to make up for fluid lost, but as
Mr. Carr was being kept NPO to rest his inflamed pancreas, he was unable to drink extra fluid to replace the
excess body fluid lost thru uncontrolled diureses. Hence it was of especial importance for the nursing &
medical staff covering San Jacinto hospital room 330 to maintain adequate fluid balance, with careful
replacement to match urine lost to avoid dehydration.
A review of the San Jacinto records does not show either careful replacement of lost fluid, since it seems not to
have been carefully measured or recorded, nor is there a record of careful administration of insulin to keep
sugar below the renal threshold.
A watchful physician caring for a case of pancreatitis should be watching the laboratory values for changes in
sugar and for creatinine and electrolytes. . .
One must therefore consider the basis for Mr. Carr’s deterioration to have arrived when in the San Jacinto
Methodist he was allowed to progress on to develop high blood sugars by not receiving adequate insulin, and
to become hyperosmolar by his losing fluid thru the kidney that was not replaced by adequate iv repletion
during the hours while he was in bed 330.
Dr. Tulloch later supplemented his report by stating:
To clarify my comments . . . it would seem to me that [Carr’s] deterioration was not followed due to lack of
adequate monitoring and possibly also to lack of response to what developed as a period of rapid deterioration
[into] dehydration and diabetic ketoacidosis following his admission for pancreatitis.
The responsibility for the gathering of that data would in my opinion be that of the shift nurses monitoring him
at the times involved, and the medical decisions would be that of the physician charged with his care, namely
Dr. Pedro Talosig.
In his supplemental report, Dr. Hyman stated:
The breaches in the standard of care set forth by Nurse Brannan in her report were also, in reasonable
medical probability, a major cause of Mr. Carr’s injuries and resulting permanent brain damage for the same
reasons that are set forth in my February 19 report and the letter/report of Dr. Brain R. Tulloch.
Based on my medical education, experience, and training; based on Mr. Carr’s medical chart at San Jacinto
Medical Hospital, based on Mr. Carr’s medical chart at St. Joseph’s hospital, and based upon the detailed
explanation provided by Dr. Brian R. Tulloch concerning what caused Mr. Carr’s injuries and permanent brain
damage, in reasonable medical probability, the breaches of the standard of care by Dr. Talosig’s [sic] (as set
forth in my February 19, 2007 report) and the breaches of the standard of care by the San Jacinto Methodist
Hospital nursing staff (as set forth in Nurse Sandra Brannon’s report) medically caused Mr. Carr’s injuries and
resulting permanent brain damage.
Carr also filed the expert report of Sandra Brannan, a registered nurse. It reads in pertinent part:
I do not see that the nursing staff requested a nasogastric tube, reported changes in vital signs to the
physician, did not monitor fingerstick blood sugar and provide insulin coverage as ordered, and I see no
recording of ECG strip or oxygen saturation, no notification of abnormal laboratory findings, or accurate I&O.
I am familiar with standards of care for a patient such as Mr. Guy Carr. The items listed below are breaches in
the standard of care provided to Mr. Carr. Those breaches would include, but are not limited to:
Lack of frequent assessment, vital signs regularly recorded, and changes in vital signs reported to the
physician;
Record not reflecting adequate notification of the physician concerning changes in patient status;
Changes in condition/laboratory findings not reported in a timely manner to the physician;
Pain not assessed regularly and interventions not provided and recorded;
Blood sugars not monitored and insulin not provided as ordered (0800 blood 415-no insulin recorded as given,
1630 FBS 412 no recorded coverage);
Oxygen saturation not monitored and recorded;
Nasogastric tube not placed and output not recorded;
Intake and output not monitored accurately and not recorded; and
Education not provided and recorded.
With reasonable medical probability, it is my opinion that the nursing staff at San Jacinto Methodist Hospital and
their actions caused or contributed to his negative outcome.
After receiving the supplemented reports, Methodist objected to their sufficiency. Methodist then moved to
dismiss the Carrs’ suit, contending that the expert reports failed to comply with the requirements of section
74.351. See id. Dr. Talosig moved to dismiss the suit against him as well, which the trial court denied. Dr.
Talosig does not appeal the trial court’s ruling against him. The trial court denied Methodist’s motion to
dismiss, and Methodist appealed.
Discussion
In its sole issue, Methodist contends that the trial court erred in its determination that the Carrs’ expert reports
complied with section 74.351 of the Civil Practice and Remedies Code. Specifically, Methodist asserts that the
expert reports fail to identify adequately the standard of care or to describe the causal relationship between
Methodist’s alleged negligence and Carr’s injuries. The Carrs respond that Methodist waived any objection to
their expert reports and that the trial court did not abuse its discretion in concluding that the suit against
Methodist may proceed.
Preservation of Error
The Carrs first contend that Methodist waived any objection to their expert reports by failing to object within
twenty-one days after receiving the reports. Methodist did not object to the reports until it received Dr. Hyman’
s and Dr. Tulloch’s supplement to their reports. Although Methodist did not object to the initial expert reports,
Methodist can object to the reports on appeal because the Carrs did not raise the issue of waiver in their
response to Methodist’s motion to dismiss. As such, the issue was not before the trial court when it made its
decision, and we may not consider it on appeal. Hansen v. Starr, 123 S.W.3d 13, 18 (Tex. App.—Dallas 2003,
pet. denied) (citing Thompson v. Haberman, 739 S.W.2d 71, 72 (Tex. App.—San Antonio 1987, orig.
proceeding).
Standard of Review
We review section 74.351 rulings under an abuse of discretion standard. Am. Transitional Care Ctrs. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001) (predecessor statute); Gray v. CHCA Bayshore L.P., 189 S.W.3d
855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988
S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial court’s discretion, we may not
substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently
than an appellate court would in a similar circumstance. Gray, 189 S.W.3d at 858. However, “a trial court has
no ‘discretion’ in determining what the law is or in applying the law to the facts.” Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992).
Section 73.541 of the Texas Practice and Remedies Code
Pursuant to section 74.351, medical malpractice plaintiffs must provide each defendant physician and health
care provider with an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An expert report
means a “written report by an expert that provides a fair summary of the expert’s opinions as of the date of the
report regarding applicable standards of care, the manner in which the care rendered by the physician or
health care provider failed to meet the standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.” Id. § 74.351(r)(6). A claimant may satisfy the requirements of an expert
report by serving reports of separate experts as to each issue. See id. § 74.351(i). A defendant may file an
objection to the sufficiency of the report not later than the 21st day after the date it was served. Id. § 74.351
(a). A trial court shall grant a motion challenging the adequacy of the expert report only if it appears to the
court, 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).
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. See Palacios, 46 S.W.3d at 878–79. In detailing
these elements, the report must provide enough information to fulfill two purposes if it is to construe a good
faith effort. Id. at 879. First, the report must inform the defendant of the specific conduct that the plaintiff has
called into question. Id. Second, the report must provide a basis for the trial court to conclude that the claims
have merit. Id. 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. The expert must explain the basis for his statements and
must link his conclusions to the facts. Bowie Mem’l Hosp., 79 S.W.3d at 52. Furthermore, in assessing the
report’s sufficiency, the trial court may not draw any inferences and must instead rely exclusively on the
information contained within the report’s four corners. See Palacios, 46 S.W.3d at 878. A report that omits any
of the statutory requirements is not a good faith effort to comply with the Act. Id. at 879. A trial court must
dismiss a cause if it determines that the report does not represent a good faith effort to comply with the statute’
s requirements. See Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003).
Nurse Brannan’s Report
Methodist contends that Nurse Brannan’s report inadequately describes the standard of care and cannot be
used to prove causation. The Texas Civil Practice and Remedies Code states that “a person may qualify as an
expert witness on the issue of the causal relationship between the alleged departure from accepted standards
of care and the injury, harm, or damages claimed only if the person is a physician.” Tex. Civ. Prac. & Rem.
Code Ann. § 74.403(a). A registered nurse is not a physician. See id. § 74.001 (23). Consequently, Brannan’
s report can be used to explain the standard of care and any breach of the standard of care by a nurse but
cannot be used as proof of causation. See id. §74.402(b).
Brannan lists several ways in which she opines that Methodist breached the standard of care, including the
failure to monitor Carr’s blood sugar, to provide insulin as ordered by the physician, to report findings to the
physician, and to adequately monitor fluid intake and output for a known diabetic who was not allowed to drink
in order to rest his inflamed pancreas. Rather than merely stating that Methodist did not adequately monitor
Carr, Brannan sets out the specific duties that the nursing staff had and the way in which Methodist failed to
complete them. Cf. Gray, 189 S.W.3d at 859 (holding report insufficient on standard of care because it
contains only a general statement that appellees failed to monitor appellant’s knee properly). The trial court
did not abuse its discretion in ruling that the report adequately described the standard of care and its breach
because the report sets out a fair summary of “what care was expected but not given.” See Palacios, 46 S.W.
3d at 880.
Dr. Tulloch’s Report
Methodist further contends that Dr. Tulloch’s report does not satisfy the statutory requirements on the issue of
causation. Dr. Tulloch’s report states that it was “of especial importance for the nursing and medical staff
covering San Jacinto room 330 to maintain adequate fluid balance, with careful replacement to match urine lost
to avoid dehydration. A review of the San Jacinto records does not show either careful replacement of lost
fluid, since it seems not to have been carefully measured or recorded, nor is there a record of careful
administration of insulin to keep sugar below the renal threshold.” It further states that the events that resulted
in such a poor outcome “could with reasonable medical probability have occurred as a result of him being
allowed to become dehydrated by a period of inadequate insulin administration [sic] resulted in rising blood
sugar followed by inadequate intravenous rehydration since he was NPO and hence unable to slake his
developing thirst.”
Tulloch followed his initial report up by writing a supplemental letter, in which he stated that Carr’s condition
was a result of his care at Methodist, and his deterioration “was not followed due to lack of adequate monitoring
and possibly also to lack of response to what developed as a period of rapid deterioration [into] dehydration
and diabetic ketoacidosis.” The letter continues by stating that “the responsibility for the gathering of that data
would in my opinion be that of the shift nurses monitoring him at the times involved, and the medical decisions
would be that of the physician charged with his care.”
Methodist contends that the report contains gaps that prevent it from being a “fair summary” because it fails to
explain how any act or omission by Methodist caused any injury to Carr. We disagree. According to Nurse
Brannan’s report, the nursing staff had the responsibility to monitor Carr’s blood sugar and provide insulin, to
monitor his intake and output, and to report timely any changes in his condition to the physician but failed to do
so. According to Tulloch’s report, this failure led to Carr’s deterioration. When read together, Carr’s experts
delineate how Methodist’s actions or omissions, apart from the physician’s, caused Carr’s injuries. Unlike in
Bowie, upon which Methodist relies, Tulloch’s report does not merely state that if Carr had been properly
monitored, Carr would have had the possibility of a better outcome. See Bowie, 79 S.W.3d at 52–53. The
report specifically addresses Tulloch’s opinion that Methodist’s failure to adequately monitor Carr’s fluid intake
and glucose levels and to provide insulin as ordered led to his dehydration and high blood sugar levels and
that those failures led to brain swelling as a complication from efforts to reverse his dehydrated condition. It
thus adequately puts Methodist on notice of the specific conduct called into question. See Palacios, 46 S.W.3d
at 879.
We conclude that Dr. Tulloch’s report provides a fair summary of his opinion that a causal relationship exists
between San Jacinto Methodist’s failure to meet the pertinent standard of care and the Carrs’ damages.
Accordingly, we hold that the trial court did not abuse its discretion in denying Methodist’s motion to dismiss the
Carrs’ health care liability claims.[1]
Conclusion
We hold the trial court did not abuse its discretion in concluding that the Carrs’ expert reports satisfied the
requirements of section 74.351. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
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[1] Because we hold that Nurse Brannan’s and Dr. Tulloch’s report adequately summarize the standard of care, breach,
and causation, we do not address Dr. Hyman’s report.