LETTY ROBINSON D/B/A CELLULAR SOLUTIONS v. CBL/SUNRISE MALL, L. P.--Appeal from 103rd District Court of Cameron County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2008 » LETTY ROBINSON D/B/A CELLULAR SOLUTIONS v. CBL/SUNRISE MALL, L. P.--Appeal from 103rd District Court of Cameron County

State: Texas

Court: Criminal Court of Appeals

Docket No: 13-08-00446-CV

Case Date: 11/06/2008

Plaintiff: LETTY ROBINSON D/B/A CELLULAR SOLUTIONS

Defendant: CBL/SUNRISE MALL, L. P.--Appeal from 103rd District Court of Cameron County

Preview:Alicia Costello, Individually and on behalf of the Estate
of Delia Lozano, Deceased v. Christus Santa Rosa
Health Care Corporation--Appeal from 288th Judicial
District Court of Bexar County
OPINION
No. 04-03-00597-CV
Alicia COSTELLO, Individually and on Behalf of the Estate of Delia Lozano,
Appellant
v.
CHRISTUS SANTA ROSA HEALTH CARE CORPORATION,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-03404
Honorable Martha Tanner, Judge Presiding (1)
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Justice
Sarah B. Duncan, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: June 23, 2004
AFFIRMED
This case involves the adequacy of expert reports under the Texas Medical Liability and Insurance Improvement Act
("the Act"). The trial court dismissed the plaintiff's medical malpractice suit after it determined the expert reports did
not satisfy the Act's requirements with respect to causation. We affirm the trial court's judgment.
Background
Delia Lozano ("Lozano") was admitted to the emergency department of Christus Santa Rosa Hospital ("Christus") with
the chief complaint of chest pain. She was initially "triaged" by the nursing staff and then asked to return to the waiting
room. Forty minutes later, while in the waiting room, she suffered a cardiac arrest and was unable to be resuscitated.
Mrs. Lozano's daughter, Alicia Costello ("Costello"), sued the hospital for medical malpractice. Costello filed two
expert reports under the Act. The report of Pamela Zanes, R.N. ("Nurse Zanes") sets forth the applicable standard of
nursing care. The second report by Dr. Steven Schilling ("Dr. Schilling") states in relevant part:
Patients that present to emergency departments with the chief complaint of chest pain, especially in this age group,
require immediate triage to an examination room, placement on a telemetry monitor, and a "stat" EKG followed by
prompt physician evaluation. . . . If this patient would have been appropriately triaged and evaluated, then in all
reasonable medical probability she would have survived.
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The hospital ultimately moved to dismiss the lawsuit claiming the reports did not meet the statutory requirements.
After a hearing, the trial court dismissed the lawsuit with prejudice. This appeal resulted.
Analysis
In her sole issue on appeal, Costello contends that the trial court abused its discretion in determining the expert reports
did not constitute a good-faith effort to meet the requirements of the Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i,
13.01(l) (Vernon 2003). (2) In order to meet the requirements of the Act, an expert report "must provide enough
information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into
question, and (2) it must provide a basis for the trial court to conclude that the claims have merit." Bowie Memorial
Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing the two-part test set forth in American Transitional Care Ctrs.
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). We review a trial court's dismissal of a suit for failure to
comply with the Act under an abuse of discretion standard. Palacios, 46 S.W.3d at 878.
A. Pamela Zanes, R.N.
In its order of dismissal, the trial court found that the report of Nurse Zanes did not establish her qualifications to
express an expert opinion on causation. We agree. Although it is generally true that a licensed registered nurse has
more education and training on medical issues than a lay person, a nursing license does not automatically qualify the
registered nurse as an expert on every medical subject. Cf. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996) (a
licensed medical doctor is not automatically qualified to testify as an expert on every medical question). The trial court
instead must ensure that "those who purport to be experts truly have expertise concerning the actual subject about
which they are offering an opinion." Id.; see also Tex. R. Evid. 702. Here, the relevant inquiry is whether Nurse Zanes
has the necessary expertise to express an opinion about what caused Lozano's death.
In her report, Nurse Zanes establishes that she is a registered nurse licensed in the State of Texas. As such, she is
governed by the Texas Nursing Practice Act, which defines the privileges and limitations of her right to practice
professional nursing in this State. See Tex. Occ. Code Ann. 301.001-.607 (Vernon 2004). Her license specifically
allows her to be compensated for such acts as observing, assessing, evaluating, and caring for a person who is ill or
injured, but precludes her from "acts of medical diagnosis." Tex. Occ. Code Ann. 301.002(2) (definition of
"professional nursing"). (3) A licensed registered nurse who is expressly prohibited by law from rendering a medical
diagnosis would also lack the expertise to testify on subjects that require making a medical diagnosis. See Pace v.
Sadler, 966 S.W.2d 685, 690 (Tex. App.--San Antonio 1998, no pet.) (although qualified to render expert opinion on
nursing standard of care, nurse was not qualified to medically diagnose heart condition); Arlington Mem'l Hosp.
Found., Inc. v. Baird, 991 S.W.2d 918, 921 (Tex. App.--Forth Worth 1999, pet. denied) (nurse was not qualified to
medically diagnose causation of thermal burns). To give a medical opinion on the cause of someone's death necessarily
demands the ability to make a medical diagnosis. Nurse Zanes is expressly prohibited by law from doing that.
Accordingly, the trial court properly refused to consider Nurse Zanes' affidavit on the issue of causation.
B. Dr. Schilling
The trial court also determined that Dr. Schilling's report was conclusory on the issue of causation. Again, we agree.
The Act requires that an "expert report" provide a fair summary of the manner in which the care at issue failed to meet
the applicable standards of care and the causal relationship between that failure and the harm or damages claimed. See
Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(r)(6). As is true in other types of negligence cases, causation is established
by proof that the negligent act or omission was a substantial factor in bringing about the harm and without which the
harm would not have occurred. Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex. 1993). In reviewing the
report's adequacy, our inquiry is restricted to the four corners of the report. Palacios, 46 S.W.3d at 878. Inferences are
not permitted. Id.
Dr. Schilling's report states, "If this patient would have been appropriately triaged and evaluated, then in all reasonable
medical probability she would have survived." Costello maintains this statement of causation "clearly links" Christus
to Lozano's death, and therefore meets the causation requirement of the Act. Christus responds that the report's one
statement about causation fails to explain how the hospital's purported failure to act in a more timely manner caused
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the patient's death.
Although the Act only requires a "fair summary" of his opinions, Dr. Schilling's mere assertion that the patient would
have survived is conclusory and is not sufficient. Nowhere in Dr. Schilling's report does he explain the causal
connection between Christus' claimed omissions (failure to appropriately triage and evaluate) and Lozano's death. See
Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(r)(6); Wright, 79 S.W.3d at 53. Dr. Schilling offers no explanation of what
medical information a more timely triage and evaluation would have revealed, nor does he state what would have been
done had Christus not failed to act, what treatment would have or could have been available, that the patient was a
candidate for the unknown treatment, or that the unknown treatment could have or would have been effective. Dr.
Schilling's report fails to state how Christus' failure to act was a substantial factor in bringing about Lozano's death and
without which her death would not have occurred. See Kramer, 858 S.W.2d at 400. A report is insufficient if, as in the
instant case, it merely states the expert's conclusions. Palacios, 46 S.W.3d at 879; see also Earle v. Ratliff, 998 S.W.2d
882, 890 (Tex.1999).
In addition, nowhere in his report does Dr. Schilling explain the medical basis or reasoning for his conclusion that
Lozano "in all reasonable medical probability" would have survived. While no particular term or phrase is required for
an expert to establish causation, the converse is also true. See Wright, 79 S.W.3d at 53. Without more, the magic words
of "reasonable medical probability" provide no evidence of causation. Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706, 711-12 (Tex.1997).
Once the trial court determined that the two expert reports did not comply with the statutory requirements of the Act,
the court had no discretion and was required to dismiss the suit against Christus with prejudice. See Tex. Rev. Civ.
Stat. Ann. art. 4590i, 13.01(e)(3). We affirm the judgment of the trial court.
Phylis J. Speedlin, Justice
1. The Honorable Frank Montalvo was the presiding judge of the 288th Judicial District Court, Bexar County, Texas in
2002. The Honorable Martha Tanner, presiding judge of the 166th Judicial District Court, signed the order granting
Christus Santa Rosa's amended motion to dismiss.
2. Repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.01, 2003 Tex Gen. Laws 847, 884. See Tex. Civ. Prac.
& Rem. Code Ann. 74.351(1) (Vernon Supp. 2004) (effective Sept. 1, 2003).
3. The Texas Nursing Practice Act does not define what is meant by "acts of medical diagnosis." See Tex. Occ. Code
Ann. 301.002. Taber's Cyclopedia Medical Dictionary defines "diagnosis" as the use of scientific or clinical methods
to establish the cause and nature of a person's illness; it defines "medical diagnosis" as the identification of the cause
of the patient's illness or discomfort. See Taber's Cyclopedic Medical Dictionary(19th ed. 2001).
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