In another case involving the adequacy of an expert report served under § 74.351, CPRC, the Tyler Court of Appeals has sent a case back to the trial court with instructions to permit the plaintiff to cure deficiencies in an expert report.
Tyler OPS Ltc., Inc. d/b/a Petal Hill Nursing & Rehabilitation v. Cornelius Butler, Individually and on Behalf of the Estate of Betty Butler (No. 12-22-00188-CV; filed January 31, 2023) arose from the death of a nursing facility resident with a history of falls, type 2 diabetes, dementia, and hypertension. In February 2019 plaintiff developed a bedsore. About a 18 months later, plaintiff was admitted to the hospital for a metabolic crisis, respiratory failure, and sepsis. She was also found to have pain of the right upper extremity as a consequence of ischemia and gangrene in her right hand. She was intubated and died about three weeks later. Her estate filed suit, alleging that the nursing facility’s negligence resulted in the decedent’s exposure to COVID-19, pneumonia, and gangrene in her hand. Plaintiff served an expert report, to which the facility objected on the basis that the report described claims that were not pleaded, the expert did not establish his qualifications to render a causation opinion regarding plaintiff’s hand, and the expert’s causation opinions were deficient. The trial court overruled the objections and denied the motion to dismiss. The facility appealed.
The court of appeals’ analysis focused on the expert report’s analysis of plaintiff’s hand wound, since although plaintiff pleaded theories of liability related to COVID-19, dehydration, and lung infection, the report addressed only the hand injury. The facility argued that the expert’s causation opinion was conclusory and failed to explain “how and why the breach caused the injury.” Proximate cause has two parts, foreseeability and cause-in-fact, the latter determined by a but-for substantial causation test. Plaintiff alleged, and her expert opined, that the facility staff should have noticed the necrotic wound on her hand when flushing her IV and reported the wound to her physician “in order for her to be sent to a higher level of care.” The facility countered that plaintiff’s expert failed to explain how failing to notice and report ischemia—the alleged breach—caused the hand injury and how the injury would have been prevented had the staff identified it sooner and transferred her to a higher level of care. It further argued that although the report blamed plaintiff’s ischemia on a vessel occlusion, the expert did not “specify when the occlusion and ischemia developed and when, if ever, a transfer to a higher level of care could have prevented further injury.” The court agreed, concluding that the “report provides no basis to conclude [the facility’s] breach caused the injury, rather than the natural course of [plaintiff’s] underlying medical condition.” The report also failed to “explain[] the treatments that were available if the issue were reported sooner and their potential effectiveness in [plaintiff].”
Additionally, the court found that plaintiff’s expert was not qualified to offer an opinion on “whether the nursing staff’s failure to notice and report ischemia and cyanosis in [plaintiff’s] hand caused the necrotic would and contributed to her death. Although he is familiar with the ‘interventions used in the prevention of skin breakdown and infection,’ he does not claim to have knowledge, skill, experience, training, or education regarding the effectiveness of treatment for ischemia such as that in this case.” The court remanded the case back to the trial court with instructions to consider giving the plaintiff an opportunity to cure the deficiency.
