Chief Justice Bonnie Sudderth
The Fort Worth Court of Appeals has reversed a Denton County trial court’s dismissal of a health care liability claim based on the adequacy of plaintiff’s expert reports.
Lucia Nazarian, Individually, and as Proposed Administrator of the Estate of Kevork Nazarian v. Remarkable Healthcare of Carrollton, LLC, and Remarkable Healthcare, LLC (No. 02-22-00324-CV) arose from the death of a resident of a long-term care facility following a fall. The decedent suffered from dementia and had a documented history of falling when he entered the facility and subsequently suffered both witnessed and unwitnessed injuries. The last of these, witnessed by a nearby staff member, resulted in a head injury requiring hospitalization. Diagnosed with a subdural hematoma, the decedent’s health declined with the growth of the hematoma, leading to his death about 10 months after the fall.
Plaintiff asserted negligence claims against the facility and timely served expert reports by a nurse and a physician under § 74.351, CPRC. The facility objected to the adequacy of the reports. The trial court agreed and gave plaintiff an opportunity to cure. Plaintiff again filed reports by the same two experts, to which the facility objected. The trial court dismissed plaintiff’s claims.
In an opinion by Chief Justice Sudderth, the court of appeals reversed, holding that the reports gave a fair summary of the facility’s conduct that breached the applicable standard of care and causation. The issue was whether the experts’ opinion that the facility breached the standard of care for failing to provide a 1:1 staff attendant within arm’s reach and a soft helmet gave the facility “enough information to ‘inform the defendant of the specific conduct the plaintiff has called into question’ and ‘provide a basis for the trial court to conclude that the claims have merit’” (citing, among other cases, Baty v. Futrell, 543 S.W.3d 689 (Tex. 2018) and Abshire v. Christus Health Se. Texas, 563 S.W.3d 219 (Tex. 2018)). The facility argued that the reports failed to identify specific actions it could have taken to prevent plaintiff’s injury, likening the case to Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001). In Palacios, SCOTX held that a hospital had “no absolute duty” to prevent a patient from falling, in which event a plaintiff’s expert must “specify whether ‘the standard of care required [the hospital] to have monitored [the patient] more closely, restrained him more securely, or done something else entirely.’” The court, however, distinguished Palacios on the basis that in this case plaintiff’s experts did precisely what the experts in Palacios failed to do: “state[] that the relevant standard of care required [the facility] to implement two specific fall-prevention measures—providing a nearby attendant and a soft helmet—and that [the facility] failed to implement those measures.” Because plaintiff’s reports “identified two particular breaches of a specific standard of care, the reports put [the facility] on notice of the conduct complained of and constituted a ‘fair summary of the expert[s’] opinions… regarding applicable standards of care [and] the manner in which the care rendered by the [facility] failed to meet the standards.’”
Turning next to the causation question, the court likewise concluded that the reports provided a fair summary of causation. The facility argued that that the experts’ conclusions were speculative because they gave no explanation of how facility staff “could have somehow broken the falls” even if staff were constantly within arm’s reach. But, the court of appeals reasoned, although the reports did not so explain, they nevertheless “establish[ed] a logical, complete chain that begins with a negligent act and ends in injury to the plaintiff.” The court applied the same reasoning as to the soft helmet issue. The court further found that the reports were not speculative just because they contained the experts’ evidence-based inferences from the previous unwitnessed injuries (a broken arm, facial and head contusions), which they concluded were caused by falls. That evidence included the decedent’s history of falling, his unsteady gait, and other risk factors associated with his condition. “While [the facility] may have disagreed with the experts’ inferences,” the court concluded, “‘[w]hether an expert’s factual inferences in the report are accurate is an issue for summary judgment, not a Chapter 74 motion to dismiss’” (citations omitted). The trial court thus abused its discretion in dismissing the claim.
This case adds yet another opinion to the burgeoning jurisprudence around the adequacy of Chapter 74 expert reports. Appellate review frequently, if not always, involves an analysis of prior decisions cited by both plaintiffs and defendants as determining the issue in their favor. Justices have to make difficult judgment calls, knowing that their decision could either throw plaintiff’s case out of court or subject health care providers to a legal process that may ultimately exonerate them. Thank heaven there are people willing to run for these offices and make those decisions.
