A resident of a long-term care facility, who suffered from dementia and other medical conditions, choked on her food and died. A physician had ordered her food to be pureed or ground, but she was served a food trey with a regular diet. When facility staff noticed that she was choking, they performed the Heimlich maneuver to no avail. Shortly thereafter EMS arrived, performed a mouth sweep, and removed pieces of broccoli from her airway, but CPR failed to revive her. The cause of death, according to the medical examiner, was choking. The decedent’s family brought a wrongful death claim against the facility and filed a § 74.351 expert report by a nurse. Defendants moved to dismiss on the basis that the nurse was unqualified to render an opinion and that her report was deficient. The trial court agreed but gave plaintiff a 30-day extension to serve a compliant report, which the plaintiff produced, this time by a physician. Defendants once again moved to dismiss. The trial court denied the motion, and defendants appealed.
These are the facts of Ridgmar Medical Lodge, Wise Health Services, Priority Management Group, LLC and CTR Partnership, LP v. Concepcion Torres, Individually and on Behalf of the Estate of Dolores Guadalupe Martinez and Behalf of All Wrongful Death Beneficiaries of Dolores Guadalupe Martinez (No. 02-22-00341-CV; delivered March 9, 2023). The court of appeals affirmed, holding that the expert report sufficiently explained the standard of care and what defendants should have done differently. As to the standard of care, plaintiff’s expert opined that the facility failed to provide the level of care that a reasonable, prudent similar facility and staff would have provided under the same or similar purposes, that it should not have accepted or retained a resident whose needs they could not meet, and that it failed to provide a safe environment as free from hazard and risk as possible. As to what the facility should have done differently, the expert explained that it should have provided a special feeder table at which the staff could properly monitor the decedent as she ate, that they the staff should have performed a mouth sweep prior to the EMS’s arrival on the scene, and that the staff should have followed the physician’s orders with respect to the decedent’s diet.
Defendants likewise challenged the expert’s opinion regarding causation. Again, the court of appeals disagreed. In order to meet the sufficiency standard for causation, the report must “explain ‘how and why’ the alleged negligence caused the injury in question” (citation omitted). Further, the expert “must explain the basis of his statements and link conclusions to specific facts” and make “a good faith effort to explain, factually, how proximate cause is going to be proven” (citations omitted). Here the court found that the report both summarized the pertinent facts and, based on the medical records and coroner’s report, concluded that defendants breached the standard of care by failing to puree the decedent’s food as prescribed. The court thus held that the trial court did not abuse its discretion in denying defendants’ second motion to dismiss.
This case presents a straightforward application of § 74.351 on an uncomplicated fact pattern. So why bring it up? Partly because we like to keep the focus on the vast majority of the cases in which courts of appeals—all courts of appeals—do their job the way it’s supposed to be done, let the chips fall where they may.
