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TEXAS COURT OF APPEALS, THIRD
DISTRICT, AT AUSTIN

NO. 03-06-00119-CV

McKenna Memorial Hospital,
Inc.; and Robert Donovan Butter, D.O., Appellants

v.

Sandra Quinney,
Appellee

FROM THE DISTRICT
COURT OF COMAL COUNTY, 207TH JUDICIAL
DISTRICT

NO. C2005-1102B, HONORABLE CHARLES R. RAMSAY, JUDGE
PRESIDING

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

This accelerated interlocutory appeal arises out of a health-care
liability claim. Appellants McKenna Memorial Hospital, Inc., and Robert
Donovan Butter, D.O., appeal the trial court's denial of their motions to
dismiss appellee Sandra Quinney's lawsuit. They urge that she failed to
provide a sufficient expert report as required by section 74.351 of the
civil practice and remedies code. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351 (West Supp. 2006). Because we conclude that the trial
court abused its discretion by finding that the expert report was
sufficient, we reverse the trial court's orders and remand for proceedings
consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On February 23, 2003, two weeks after giving birth, appellee Quinney
visited McKenna's emergency room. The intake form filled out by the triage
nurse noted that Quinney complained of a two-day history of hip pain
radiating down both legs. The report filled out by Dr. Butter, the
emergency room treating physician, noted the chief complaint as "LBP" (low
back pain), and "radiation" was circled under the report's musculoskeletal
section. Dr. Butter diagnosed Quinney with radiculopathy, a disease of the
spinal nerve roots, gave her prescriptions for Motrin and a muscle
relaxer, and discharged her the same day.

On February 28, 2003, Quinney returned to McKenna's emergency room,
where she was diagnosed with a methicillin-resistant Staphylococcus
aureus (MRSA) infection. She was admitted to the intensive care unit
that day and discharged from the hospital on March 11, 2003.

Quinney filed suit on February 14, 2005, alleging that McKenna and Dr.
Butter were negligent in failing to diagnose and treat her MRSA infection
during her first visit to McKenna's emergency room.
(1) She alleges that as a result of the defendants' negligence
she has suffered damages, including "mitral valve problems." In support of
her claims and in order to comply with section 74.351 of the civil
practice and remedies code, see id., Quinney proffered a report
by Robert J. Lowry, M.D., which included Dr. Lowry's curriculum vitae.
McKenna and Dr. Butter objected to the report and moved to dismiss
Quinney's lawsuit pursuant to section 74.351. See id.
Specifically, McKenna and Dr. Butter argued that the report failed to
state the standard of care and the causal relationship between the alleged
breach of the standard of care and Quinney's damages. McKenna also
contended that Dr. Lowry, as a physician, was not qualified to render an
expert opinion as to nursing care. The trial court determined that the
report was sufficient and denied McKenna's and Dr. Butter's motions to
dismiss. This accelerated interlocutory appeal followed.

ANALYSIS

On appeal, McKenna and Dr. Butter urge that the trial court erred in
determining the report was sufficient because the report does not discuss
the standard of care and the causal relationship between the alleged
breach of the standard and Quinney's damages. McKenna also argues that the
trial court erred in accepting the report because Dr. Lowry is not
qualified to give an expert opinion on nursing care.

Requirements for expert reports

In a health-care liability claim, the claimant must provide each
defendant with one or more expert reports and include a curriculum vitae
for each expert. Id. § 74.351(a). An "expert report" is defined
as:

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 the failure and the injury, harm, or damages
claimed.

Id. § 74.351(r)(6). A court must grant a motion challenging
the adequacy of the 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 definition of an expert report." Id. §
74.351(l).

Because the statute focuses on what the report should discuss, the only
information relevant to the inquiry is within the four corners of the
document. American Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A report need not marshal
all of the plaintiff's proof, but it must include the expert's opinion on
each of the elements identified in the statute. Id. To constitute
a good faith effort, the report must inform the defendant of the specific
conduct called into question and provide a basis for the trial court to
determine that the claims have merit. Id. at 879. A report does
not fulfill these two purposes if it fails to address the standard of
care, breach of the standard, and causation, or if it only states the
expert's conclusions regarding these elements. Id.

Failure to serve an adequate expert report mandates dismissal with
prejudice. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). However,
if an expert report cannot be considered served because elements of the
report are found to be deficient, the trial court has discretion to grant
one thirty-day extension to the claimant to cure the deficiency.
Id. § 74.351(c).

Standard of review

We review a trial court's ruling on a motion to dismiss under section
74.351(l) for an abuse of discretion. Jernigan v.
Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) (citing
Palacios, 46 S.W.3d at 877-78). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner or without
reference to any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing
matters committed to the trial court's discretion, we may not substitute
our own judgment for that of the trial court. Walker v.
Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003).

Report of Dr. Lowry

In Dr. Lowry's three-and-one-half-page report, he opines that the
problems in the health care Quinney received began with the nursing care
during Quinney's first emergency room visit. In discussing how the triage
nurse filled out the intake form, he states:

The interesting concern about how this page was filled out, is that
despite the fact that this patient was two-weeks post-partum, and she was
having pain anywhere near the pelvis, with a mild fever to boot, the GU,
the GYN, and the Abdomen sections of the form were checked-off as "N/A"
(not applicable). These areas should have been at the top of the concern
here. It appears to me that the triage nurse got stuck on the idea that
this was a musculoskeletal issue and did not even consider that there was
a potential post-partum medical issue at hand, despite the prompting via
the pre-printed form.

. . . .

The exam by the triage nurse totally dismisses an OB/Gyn possibility
here, which becomes one of the early mistakes in my opinion.

After discussing the performance of the triage nurse, Dr. Lowry reviews
Dr. Butter's examination of Quinney:

Here I see a few problems and the following bullet points will
set-through my thinking here:

1. The patient presents and thus is known to have pain around the low
back, hip, and down into the lower extremities;

2. She gave a history of being 2-weeks post partum;

3. a mild fever was noted at triage time, and her pulse is 123bpm;

With just that information above, most doctors I know would
automatically be thinking a Gyn/Ob issue is possibly going on here and the
"hip" or low-back pain may be being caused by this. There is also the
chance that she truly has a direct low-back pain issue from a
musculoskeletal standpoint given she has recently delivered a child. Both
possibilities needed to be evaluated.

. . . .

[W]hen the physician (Dr. Don Butler?) performs his history, he does
not inquire about the noted (and already given) history of the 2-weeks
post-partum issue, or of fevers, or anything else down that pathway, but
just writes a brief note of the LBP. It appears he had already made his
diagnoses before even seeing the patient. Worse yet, his exam was not one
which was inclusive enough to actually have been examining for the cause
of the LBP (essentially no orthopedic tests were listed as being
performed). So although he came up with a diagnoses of "radiculopathy",
his exam notes do not reflect such findings (no SLR test even being done,
no neuro deficits found in the lower extremities, etc.) sufficient enough
to lead anyone to come up with that diagnoses. Also, the intake form
listed "hip" pain, he listed LBP (low back pain) as the chief complaint.
Although these two areas (hip and low back) [sic], the situation is such
that the pain was apparently not specific enough to pinpoint one small
spot and should have further lead the doctor to investigate the nature of
the pain further. There is no listed characterization, or investigation of
the nature of the pain listed in the history. So he did not take a
thorough enough history, and failed to perform a thorough enough exam to
even justify the "radiculopathy" diagnoses, let alone an ER visit for
(any) pain, in a woman who also has a fever, and rapid pulse and being
2-weeks post partum. Furthermore, with what little he did do for an exam,
his findings actually go away from a true radiculopathy - which again
should have led him to investigate things further. The worst thing is that
he neglected to do a thorough history (and thus missed the OB issue
completely), and then did not examine the patient to the extent that the
history (at least the one written down by the triage nurse) should have
had him delve into the possibility of an OB etiology - and most of those
options on the differential would be extremely life-threatening. He didn't
even take any labs (from a person complaining of pain anywhere close to
the pelvis, and two weeks out from a delivery!) - any one of several would
have likely pointed towards the presence of a significant problem.

Dr. Lowry then discusses Quinney's second visit to the McKenna
emergency room, identifying as a mistake that Quinney was released even
though "she was noted to have a fever just a few hours before release." He
states that "she should not have been released unless she was afebrile for
at least a whole uninterrupted 24 hours immediately prior to release."

In summarizing his comments, Dr. Lowry states, in part:

[I]t appears to me that the Triage nurse for the ER visit of 2/23 was
provided [sic] sub-par treatment/care (for not at least recognizing the
possibility of a Ob/gyn problem existing and evaluating and recording
such), and certainly for the ER doc that day who clearly didn't recognize
the significant potential of an OB/gyn issue being at the root of the
visit, and also for performing a sub-standard evaluation for the history
presented by the patient to the ER, and even for a radiculopathy for that
matter. Likely, had the source of the problem actually been looked for
(simple labs and a minimally complete physical exam) at this visit, the
answers would have been staring them right in the eye and she would have
been admitted that day, and undergone a much less exhaustive course the
next couple months.

Standard of care

In health-care liability claims, the standard of care is defined by
what an ordinarily prudent health-care provider or physician would have
done under the same or similar circumstances. Palacios, 46 S.W.3d
at 880; Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 222
(Tex. App.--Houston [1st Dist.] 2003, pet. denied). "Identifying the
standard of care is critical: Whether a defendant breached his or her duty
to a patient cannot be determined absent specific information about what
the defendant should have done differently." Palacios, 46 S.W.3d
at 880. The required statutory elements must be present within the four
corners of the report and, thus, the courts will not make inferences to
supply omitted elements. See, e.g., Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curiam) (stating that court
could not infer causation where expert report stated that plaintiff might
have had "the possibility of a better outcome," but did not explain how
the defendant's conduct caused the injury); Russ v. Titus Hosp.
Dist., 128 S.W.3d 332, 343 (Tex. App.--Texarkana 2004, pet. denied)
(stating that it was not an abuse of discretion for the trial court to
dismiss a suit against some parties where ascertaining the standard of
care as to them required an inference; expert report detailed omissions of
two nurses but did not address what conduct was necessary or
required).

In Palacios, a case involving a patient's fall from a bed, the
plaintiffs relied mainly on one statement in the expert report to
establish the standard of care: "Mr. Palacios had a habit of trying to
undo his restraints and precautions to prevent his fall were not properly
utilized." 46 S.W.3d at 879-80. Holding that this statement was not a
statement of a standard of care, the supreme court reasoned that neither
the trial court nor the defendant would be able to tell from this
conclusory statement whether the expert believed that the standard of care
required the defendant "to have monitored Palacios more closely,
restrained him more securely, or done something else entirely."
Id. at 880.

Dr. Lowry's report includes conclusory statements similar to the
statement in Palacios. He states that on the intake form the
triage nurse checked off as "N/A (not applicable)" three areas that
"should have been at the top of the concern here," but he does not state
what the triage nurse should have done differently in filling out the
form. Dr. Lowry's report criticizes Dr. Butter for not conducting a
"thorough enough history," for failing to perform a "thorough enough exam
to even justify the 'radiculopathy' diagnoses," for not "delv[ing] into
the possibility of an OB etiology," and for not taking any labs or x-rays.
While in hindsight it may be possible to point out additional steps that
could have been taken to diagnose Quinney's MRSA infection, Dr. Lowry's
report does not explain what steps an ordinarily prudent physician would
have been required to take. Dr. Lowry does reference other doctors in his
report when he states that "most doctors I know would automatically be
thinking a Gyn/Ob issue is possibly going on here and the 'hip' or
low-back pain may be being caused by this." This comment falls short of
invoking an appropriate standard of care, which inquires as to what an
ordinarily prudent doctor would have done under the same
or similar circumstances. See Palacios, 46 S.W.3d at 880.

Dr. Lowry's assessment of Quinney's second visit when, according to his
report, she was released just a few hours after showing a fever is also
deficient. While Dr. Lowry states that Quinney "should not have been
released unless she was afebrile for at least a whole uninterrupted 24
hours prior to release," it is not clear that the standard of care
required McKenna's staff to wait 24 hours. To the extent that the report
states what an ordinarily prudent health-care provider or physician would
not have done, it is addressing a breach of the standard of care
rather than the applicable standard of care itself. Strom, 110
S.W.3d at 223.

CONCLUSION

Because Dr. Lowry's report does not provide enough information to
inform McKenna or Dr. Butter of the specific conduct Quinney has called
into question or to allow the trial court to determine that Quinney's
claims have merit, see Palacios, 46 S.W.3d at 878, it was an
abuse of discretion for the trial court to find that Dr. Lowry's report
was sufficient under the statute. We therefore reverse the trial court's
orders denying the defendants' motions to dismiss and remand for further
proceedings consistent with this opinion.
(2)

Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Reversed and Remanded

Filed: November 10, 2006

1. Quinney also brought suit against her obstetrician
and the hospital where she delivered her baby, but she non-suited claims
against both of those parties.

2. Because the expert report, although deficient, was
timely filed, the trial court has discretion to grant Quinney an extension
of time to cure the deficiency. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(c) (West Supp. 2006); Wells v. Ashmore,
No. 07-06-0232-CV, 2006 Tex. App. LEXIS 8182, at *8 n.1 (Tex.
App.--Amarillo Sept. 15, 2006, no pet. h.); Longino v. Crosswhite ex
rel. Crosswhite, 183 S.W.3d 913, 917 n.2 (Tex. App.--Texarkana 2006,
no pet.).