HMIH Cedar Crest, LLC v. Buentello

HMIH Cedar Crest, LLC d/b/a Cedar Crest Hospital & RTC, Appellant v. Christina Buentello, Individually and As Next Friend of D.B.J., a Minor, Appellee

No. 03-20-00377-CV

Court of Appeals of Texas, Third District, Austin

March 4, 2022

FROM THE 169TH DISTRICT COURT OF BELL COUNTY NO. 312, 473-C, THE HONORABLE GORDON G. ADAMS, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Baker and Kelly

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

Appellant HMIH Cedar Crest, LLC d/b/a Cedar Crest Hospital & RTC (Cedar Crest) appeals the denial of its motion to dismiss the suit by appellee Christina Buentello, Individually and As Next Friend of D.B.J., a Minor. Cedar Crest contends that the trial court abused its discretion by overruling its objections to Buentello's expert report because it is (1) deficient in its description of the standard of care and the manner in which Cedar Crest breached the standard of care and (2) conclusory and fails to satisfy the statutory requirements regarding causation. We conclude that Buentello's expert report is inadequate, reverse the trial court's order and remand for the trial court to consider whether to dismiss the cause or to grant Buentello's request for a thirty-day extension to cure deficiencies in the report, as well as for other proceedings consistent with this opinion.

BACKGROUND^[1]

Six-year-old D.B.J. was admitted into Cedar Crest for treatment of suicidal ideation and psychotic symptoms, including auditory hallucinations. As part of his intake process, D.B.J. was identified as a child with severe mental illness and as particularly vulnerable to psychological and medical harm. The next day, an eight-year-old patient was admitted into Cedar Crest and became D.B.J.'s roommate. That night, at approximately 9:30 p.m., Cedar Crest staff heard screaming and crying from D.B.J.'s room. The staff learned that the roommate had choked and sexually assaulted D.B.J. The staff took the older child to a different room for the night and noticed abrasions on D.B.J.'s throat as well as what Buentello's expert described as "psychological injuries."

After a staff shift change the next morning, the oncoming registered nurse assessed D.B.J. and noticed that he had swelling and petechiae around both eyes and bruising and scratches around his neck. Cedar Crest did not inform D.B.J.'s mother until they sent him to the emergency room about thirteen hours after the altercation. D.B.J.'s roommate disclosed performing oral sex on D.B.J. to a visiting child protective services caseworker, which D.B.J. confirmed. D.B.J. was discharged from Cedar Crest that day.

Buentello sued Cedar Crest, individually and on behalf of D.B.J alleging negligent hiring, retention, and supervision, and medical malpractice for failures to monitor, to protect D.B.J., to assess him, to examine D.B.J.'s injuries, and to treat him properly. Buentello submitted an expert report by Dr. Daniel Duhigg on the medical malpractice issues. Cedar Crest objected to the report and moved to dismiss this cause asserting that the report is (1) conclusory and inadequate regarding the standard of care and breach and (2) insufficient as to causation. The trial court overruled those objections, and Cedar Crest appealed.

APPLICABLE LAW

The plaintiff in a medical liability case must supply an expert report that is a good-faith effort to provide a fair summary of the expert's opinions. Tex. Civ. Prac. & Rem. Code § 74.351(1), (r)(6); American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). The report need not marshal all of a plaintiff's proof, but must include the expert's opinion on each of the statutory factors. Palacios, 46 S.W.3d at 878; Walgreen Co. v. Heiger, 243 S.W.3d 183, 185-86 (Tex. App.-Houston [14th Dist.] 2007, pet denied). The factors include the "applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). The trial court must dismiss the cause against the health-care provider if the plaintiff fails to file a report. Id. § 74.351(b).

To constitute a good-faith effort, the report must (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. A report is not a good-faith effort if it omits any of the statutory requirements or merely states the expert's conclusions about the standard of care, breach, and causation. Fortner v. Hospital of the Sw., LLP, 399 S.W.3d 373, 379 (Tex. App.-Dallas 2013, no pet.).

To adequately identify the standard of care, an expert report must set forth specific information about what the defendant should have done differently. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 226 (Tex. 2018). While the Act requires only a "fair summary" of the standard of care and how it was breached, even a fair summary must set out what care was expected, but not given. Palacios, 46 S.W.3d at 880. Mere reference to general concepts regarding assessment, monitoring, and interventions are insufficient as a matter of law. Id. at 873; Regent Health Care Ctr. of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex. App.-El Paso 2008, no pet.).

The expert must make a good-faith effort to explain, factually how proximate cause will be proven. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). Proximate cause has two components: (1) foreseeability and (2) cause-in-fact, though the report need not use those words. Id. To establish a causal relationship between the injury and the defendant's negligent act or omission, the expert report must show that the defendant's conduct was a substantial factor in bringing about the harm and, absent this act or omission, the harm would not have occurred. Id.; Mitchell v. Satyu, No. 05-14-00479-CV, 2015 WL 3765771, at *4 (Tex. App.-Dallas June 17, 2015, no pet.) (mem. op.). The report must explain to a reasonable degree of medical probability how and why the breach of the standard of care caused the injury. Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). An expert may show causation by explaining a chain of events that begins with a defendant healthcare provider's negligence and ends in injury to the plaintiff. Mitchell, 2015 WL 3765771, at *4.

The expert must explain the basis of his statements to link his conclusions to the facts. Zamarripa, 526 S.W.3d at 460. An expert's statement or opinion is conclusory when: (1) he asks the jury to take his word that his opinion is correct but offers no basis for his opinion; or (2) he offers only his word that the bases offered to support his opinion actually exist or support his opinion. Windrum v. Kareh, 581 S.W.3d 761, 769 (Tex. 2019) (discussing expert testimony) (citing Jelinek, 328 S.W.3d at 536 (discussing expert report)).

We review a trial court's ruling on an expert report's sufficiency for abuse of discretion. Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Jelinek, 328 S.W.3d at 539. This Court may not substitute its judgment for that of the trial court. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The trial court has no discretion in determining what the law is or applying the law to the facts. In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (orig. proceeding). In analyzing an expert report's sufficiency under this standard, we consider only the information contained within the four corners of the report. Abshire, 563 S.W.3d at 223. We must view the report in its entirety, rather than isolating specific portions or sections, to determine whether it includes the required information. Baty, 543 S.W.3d at 694.

DISCUSSION

Cedar Crest contends that the trial court abused its discretion by overruling Cedar Crest's objections to Duhigg's report and denying Cedar Crest's motion to dismiss because the report was deficient in (1) its description of the standard of care and the manner in which Cedar Crest breached it, and (2) its conclusory nature and failure to satisfy the requirements of Texas Civil Practice and Remedies Code Section 74.351.

A. The report inadequately describes the standards of care and their breach.

Buentello asserts that Duhigg's report supplied the necessary information regarding the standards of care and their breach with the following statements:

• Following a psychological trauma, the Standard of Care is to assist the individual in achieving a sense of safety and either prevent the onset or mitigate the results of acute stress disorder symptoms or post-traumatic stress disorder symptoms. Failing to do this increases the likelihood of the onset of acute stress disorder, and subsequently posttraumatic stress disorder.

• Following the strangulation of a child that causes tissue injury sever[e] enough to bruise the neck while in a psychiatric facility, in the context of ongoing pain, the Standard of Care is to have the child medically evaluated in the emergency department, where providers have more experience evaluating, diagnosing, and treating medical injuries.

• When the determination is made for a child in a psychiatric acute care hospital facility to be evaluated in the emergency department following strangulation violent enough to damage structures of the throat, the Standard of Care is to send that child to the emergency department in a timely fashion, since early identification of physical damage to the structures of the throat

...