Though it may seem repetitive to report on appellate decisions interpreting Chapter 74’s expert report requirement (§ 74.351, CPRC), we continue to do so in order to illustrate the importance of a highly qualified judiciary that will apply the law as the Legislature wrote it. As we have said many times before, statutory civil justice reforms, such as Chapter 74, were too hard to get just to have courts interpret them out of existence. The latest example comes from the Amarillo Court of Appeals in a case transferred from the Austin Court of Appeals under the docket equalization authority of SCOTX.
Kenmar Residential HCS Services, Inc. v. Jesse Uriegas, As Guardian of Brandon Uriegas, an Incapacitated Person(No. 07-21-00233-CV) arose from injuries suffered by a resident in a group home for individuals with intellectual and developmental disabilities. The resident, a nonverbal adult with developmental disabilities, required assistance for personal care, including bathing and going to the bathroom. On one occasion, the resident attempted to bathe without assistance, fell, and sustained a head laceration. On another occasion, the resident fell when trying to go to the bathroom without assistance, breaking a hip and requiring surgery. The resident sued the home, alleging negligent treatment, failure to provide adequate supervision, failure to provide reasonable and adequate care, failing to timely seek medical treatment, and other claims. Pursuant to § 74.351, the resident served an expert report by a nurse, and later supplemented it by serving the report of an orthopedic surgeon. The home moved for dismissal on the basis of the failure of the reports to provide a fair summary of the standard of care and how it was breached and to provide a fair summary of the causal relationship between the breach and the injuries. The trial court denied the motion, and the defendant filed an interlocutory appeal.
Over a dissent, the Amarillo Court of Appeals reversed. The court found that read together, the nurse’s report and the surgeon’s supplementary report were deficient in that they did not identify what the defendant should have done differently to avert the plaintiff’s injury. While the reports refer to failures to intervene and make changes in the plaintiff’s care plan, they do not state what those changes or interventions should have been. Additionally, the reports allege that the defendant should have provided appropriate monitoring and assistance to the plaintiff but fall short of identifying the additional steps the defendant should have taken. With respect to the failure to adequately train claim, the reports likewise do not indicate what additional training would have changed the outcome. In essence, according to the majority, the reports simply opine that the injury itself indicates a breach of the standard of care. But in health care liability claims, res ipsa loquitor does not provide the defendant with a fair summary of the standard of care challenged, the nature of the breach, or the causal connection between the breach and the injury. The court remanded to the trial court with instructions to award the defendant reasonable attorney’s fees and court costs.
The dissent concurred that the nurse’s report was inadequate but would have allowed the case to proceed on the basis of the surgeon’s supplement. Emphasizing the “leniency” of the § 74.351 “fair summary” standard, the dissent stated that the surgeon’s report sufficiently identified the standard of care pertaining to the supervision and assistance of a resident who was a fall risk, the breach of the standard in allowing him twice to fall, and the causal connection between that breach and the injuries.
This case illustrates just how close some of these calls are and the pressures on the judiciary to make the right decisions under the statute. It’s not an easy job, and we deeply appreciate the dedicated jurists who take that calling very seriously.