In an opinion turning on the sufficiency of the plaintiff’s expert report, the Dallas Court of Appeals has returned a Chapter 74, CPRC, wrongful death lawsuit back to the trial court. Donna Vickers, Individually, As the Representative for All Wrongful Death Beneficiaries, and As Heir At Law and Representative of the Estate of Jerry Vickers, Deceased v. Epic Health Services, Inc., AOC Senior Home Health Corp., d/b/a Angels of Care and/or Angels of Care Pediatric Home Health and Amerigroup Corporation (No. 05-20-0054) arose from the death of a patient suffering from amyotrophic lateral sclerosis (ALS).

Jerry Vickers was diagnosed with ALS in 2010. By 2013, he was depending on a ventilator and feeding tube, requiring “complete support for all activities of daily living.” By 2014, he was “completely paralyzed.” Epic provided home health nursing services to Jerry in early 2014 but “unilaterally” terminated services in July 2015. Donna, Jerry’s wife, contracted with AOC for 60 hours a week of skilled nursing care starting three days after Epic terminated services but could not send nurses with sufficient experience to care for Jerry. Amerigroup, the Medicaid managed care organization that handled Jerry’s care, did not approve a different home health provider because it was out-of-network. About two weeks after Epic terminated care, Jerry suffered cardiac arrest and died a few days later. Donna sued Epic, AOC, and Amerigroup for negligence.

Pursuant to Chapter 74, Donna served expert reports from two registered nurses on standard of care and breach, a physician on causation. Epic and AOC objected to the physician’s qualifications and because his report was insufficient on causation. They did not object to the nurses’ standard of care and breach opinions. Donna also timely served Amerigroup with expert reports from one of the nurses and a different physician. Amerigroup objected to both experts’ qualifications and the physician’s report on causation. At a hearing, the trial court stated that she was “going to allow [Donna] a 30-day extension to correct any deficiencies in the reports” but did not sign a written order. Almost three months after the hearing, Donna filed another report by a different physician (Dr. Todd). Epic and AOC objected based on timeliness, which the trial court initially granted but then vacated to give Donna an additional 30-day extension. When she timely served a supplemental report by Dr. Todd, Epic and AOC objected. In the event, the trial court granted Amerigroup’s motion to dismiss, followed by EPIC’s and AOC’s a few months later. Donna appealed.

The court of appeals first considered the timeliness of Dr. Todd’s report. Epic and AOC argued that the trial court orally granted the extension after the hearing on September 16, so Dr. Todd’s report, served in December, was not timely. The court disagreed, holding that the trial court’s statement that she was “going to allow” the extension did not indicate a present decision to grant the extension since the trial court asked Donna to circulate a motion to that effect to the parties (upon which they never agreed). Citing authority from the Houston [14th] Court of Appeals, the court seems to have determined that an order granting an extension must be in writing, “rather than a trial court’s mere oral pronouncement from the bench” (citing Lopez v. Brown, 356 S.W.3d 599-602-03 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

We should point out that § 74.351(c), CPRC, which authorizes the trial court to grant the extension, doesn’t say anything about a written order. It does say that court may grant an additional 30-day extension, but only if “the claimant does not receive notice of the court’s ruling granting the extension until after the applicable deadline as passed.” The court of appeals thus relied on the future tense of the trial court’s statement, coupled with the fact that no agreed order was ever signed, to effectively give the plaintiff an indefinite amount of time to produce a complying report. In our view, this result seems to contradict the plain language and the purpose of the statute.

Having gotten over the timeliness issue, the court of appeals proceeded to find that Dr. Todd’s report complied with the statute. His qualifications as a neurologist who treated ALS patients in the same condition as Jerry were deemed sufficient, as was his opinion that Epic’s termination of care and AOC’s inability to provide qualified care was a substantial factor in Jerry’s death. Offering a detailed analysis of Dr. Todd’s reports, the court opined that “they provide a straightforward link between the breaches of the standard of care and the injury. Jerry Vickers could not survive without pulmonary hygiene services both Epic and AOC contracted to provide to him. Jerry Vickers did not receive the necessary pulmonary hygiene during the two weeks leading to his death because Epic stopped providing it and AOC did not provide qualified nurses to perform it.” Dr. Tood’s opinion that a build-up in Jerry’s lungs and a mucus plug caused his oxygen level reaching the heart to drop too far, “leading to a cardiac event and eventually to brain death.” Dr. Todd’s reports “represent a good faith effort to explain factually how proximate cuase will be proven as to Epic and AOC” (citation omitted).

The court of appeals affirmed the trial court’s dismissal of Donna’s claims against Amerigroup. Chapter 88, CPRC, subjects a suit against a managed care provider to the same expert report requirement as Chapter 74. Here Dr. Todd was not qualified to render an opinion as to “the standards applicable to a Medicaid managed care organization under the same or similar circumstances.” Interestingly, after the trial court dismissed Donna’s claims against Amerigroup and rendered judgment, Donna filed a second amended petition alleging that Amerigroup violated federal law and seeking to certify a class action. She argued further that the Chapter 74 claim she first asserted was preempted by federal law. The court of appeals did not consider this argument because “a trial court cannot grant leave to amend pleadings after it has rendered judgment” (citations omitted).

While all appellate decisions interpreting Chapter 74 get our attention, this one merits a close look on the part of current or potential Chapter 74 defendants. In this case the plaintiff filed suit fewer than four months after her husband died, in December 2015. She timely filed her initial round of expert reports on August 31 of the following year, the defendants objected, and the court expeditiously held a hearing a couple of weeks later. This is where things went off the rails. It seems unlikely that when the trial court granted a 30-day extension, she really intended 30 days to become four months. When the defendants objected based on timeliness, she agreed with them and dismissed the claims. But six weeks later she vacated that motion and gave the plaintiff another 30-day extension, which does not appear to have been statutorily authorized. The court of appeals found a way to dance around these irregularities, but we are not all sure that they got it right or that the decision does not open up a possible end-run around the § 74.351 deadlines.

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