The Texas Supreme Court has denied review in a Chapter 74 health care liability case that split the Corpus Christi Court of Appeals right down the middle.
Elizar Costilla, Individually and as the Representative of the Estate of Kristy Renee Costilla, Deceased, and as Next Friend of A.J.C. and C.K.C., Minors; Melinda Rodriguez Leal; and Camilo Trevino v. Octabio Aguilera; The Schumacher Group of Texas. Inc.; VHS Harlingen Hospital Company, LLC d/b/a Valley Baptist Medical Center-Harlingen; Adrian Alaniz; Kristen White; George Huddleston, IV, M.D.; and William Taw, M.D. (No. 23-0567; pet. denied March 8, 2024; No. 13-21-00135-CV; March 30, 2023) arose from the death of a 41-year-old woman while under treatment for a stroke in the ICU of VHS Harlingen Hospital. Plaintiffs filed a health care liability claim against multiple providers, including the hospital, two nurses, a nurse practitioner and his employer, a hospitalist, a radiologist, and three other doctors. Plaintiffs served three expert reports pursuant to § 74.351, two by physicians and one by a registered nurse. All defendants filed objections to Plaintiffs’ reports, challenging the experts’ qualifications and insufficiencies as to standard of care, breach, and causation. Following a hearing, the trial court denied Defendants’ motions to dismiss. Plaintiffs appealed.
In an opinion by Justice Tijerina, joined by Justice Peña, the court of appeals reversed. Here are the majority’s rulings as to each practitioneer:
- The nurse practitioner (Aguilera). The majority determined that the trial court abused its discretion in denying the motion to dismiss because the reports were so lacking as to constitute no report. None of the reports mentioned the nurse practitioner, described any of his actions or omissions, applied a standard of care, or otherwise gave any indication of how he was involved in decedent’s care. Because Plaintiffs failed to serve a report, dismissal is automatic under the statute.
- The nurse practitioner’s employer (SGT). Since there was no report as to SGT’s employee, the report cannot support a vicarious liability claim against the employer.
- The hospitalist (Dr. Huddleston). Dr. Huddleston challenged the reports’ statement of the standard of care as applied to him, how he breached the standard, and how his actions caused the injury. Once again, the majority determined that the reports do not establish a standard of care as to him or describe breach and causation. Only one report even mentions him, and that was to report a phone consult between two other doctors at which he was present (and the report misspelled his name). And even that report “does not criticize Dr. Huddleston, attribute any standard of care to Dr. Huddleston, or explain why Dr. Huddleston’s actions fell below the standard of care.” Consequently, the reports were so lacking as to constitute no report. Dismissal is automatic under the statute.
- The radiologist (Dr. Taw). The reports did not attribute a different standard of care to Dr. Taw than the other physicians. Plaintiffs argued that “one size fits all” and that each physician had an identical standard. The majority didn’t go along with this argument. The question than became whether Dr. Taw was required to diagnose, order images, and interpret CT scans. Plaintiffs’ expert stated that Dr. Taw interpreted tje CT and “incorrectly described the aneurysm as in the region of the anterior cerebral artery.” But the report did not establish that “Dr. Taw, a radiologist, is response for providing a diagnosis.” It also did not state that Dr. Taw was responsible for ordering another CT scan, as Plaintiffs argued. Without specific statements of the standard of care, consequently, the court “may not draw inferences to supply absent but necessary information.” Finally, the majority ruled that Plaintiffs’ expert’s “conclusory statement that Dr. Taw incorrectly described the aneurysm as in the region of the anterior cerebral artery is not a statement of a standard of care” (citations omitted). Had the expert stated what specific action Dr. Taw should have taken might have helped, but instead the court was “left to speculate whether Dr. Taw identified the aneurysm as being in the right region when there was no aneurysm in the right region, whether Dr. Taw was required to identify the aneurysm in both regions or should Dr. Taw have determined that the aneurysm was only located in the left region.” The majority, however, remanded to the trial court to consider whether Plaintiffs should get a 30-day extension of time to cure the deficiencies in the reports as to Dr. Taw.
- Nurse White. White argued that since a non-physician expert may not opine on causation, and that neither of Plaintiffs’ physician experts assert that the nurses caused decedent’s injuries, there is no report as to her. While the reports criticized the physicians for not ordering another CT scan when decedent’s condition deterioriated several hours after the initial scan, it didn’t say that the nurses were responsible for ordering it.
- Nurse Alaniz. Plaintiffs argued that Alaniz had a duty to execute the second CT order when it finally came, but the court concluded that the reports did not attribute the 90-minute delay between the order and completion of the scan to Alaniz. Plaintiffs further argued that Alaniz failed to balance decedent’s fluids, a substantial factor in her death. But again, the experts did not attribute decedent’s death of the fluid imbalance. The reports were thus insufficient, but the majority remanded to the trial court for consideration of a 30-day extension to cure the reports.
- The nurses’ employer (VBM). Since the reports were insufficient as to the employee nurses, they are likewise insufficient to support vicarious liability. The majority remanded this report for consideration of an extension as well.
Justice Benavides concurred as to the nurse practitioner, his employer, and Dr. Huddleston, but would have affirmed as to Dr. Taw, the two nurses, and their employer. She reached different conclusions as to whether the reports as to those defendants fulfilled the purpose of the statute to “inform the defendant of the specific conduct the plaintiff has called into question,” particularly with respect to ordering additional scans and maintaining decedent’s fluid balance. She contended that the reports did indeed state whether those defendants should have done differently and what happened when they did not. She reminded the majority that “this is not the appropriate stage of the proceedings to litigate the merits of the underlying health care liability claim” and that the “only question is whether the expert reports here constituted a ‘good faith effort’ to comply with the statutory definition of an expert report” under § 74.351(f). She would have held that the trial court did not clearly abuse its discretion in denying the motions to dismiss.
Plaintiffs moved for en banc reconsideration, which three of the six justices supported. The motion thus failed. Justice Benavides penned a second dissent, arguing that in the case of tie votes on motions for en banc review, a tiebreaker should be considered to prevent parties from being deprived of substantial rights. She further invited the Legislature to remedy the problem. In any event, the case now goes back to the trial court, which seems likely to grant Plaintiffs the necessary extensions. If Plaintiffs serve amended reports, we can expect another round of objections and motions to dismiss. And if that happens, one way or another the case will end up right back at the court of appeals. At that point, who is on the panel will make all the difference.
