ORAL ARGUMENT CONDITIONALLY REQUESTED. No CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS

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1 ORAL ARGUMENT CONDITIONALLY REQUESTED No CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS Susan Hollingsworth, R.N., Jennifer Bertaut, R.N., Debra Stuart, R.N., Britt Berrett, Ph.D., FACHE, Abnor Sindhu, R.N., Rachael Isaac, R.N., Gay Acedo, R.N., Jackie Laran, R.N., Isaac Dada, Emmanuel Iwuoha, Phenitha Wilson, R.N., and Nury Mandujano Appellants, v. Adriane Springs, Individually and as Next Friend of Ron Springs Appellee. Appeal from the 14th District Court Dallas County, Texas Hon. Eric Moyé, Presiding APPELLEE S BRIEF LES WEISBROD State Bar No MAX FREEMAN State Bar No LAWRENCE R. LASSITER State Bar No MILLER WEISBROD, LLP Forest Central Drive, Suite 300 Dallas, Texas (214) (214) FAX ATTORNEYS FOR APPELLEE

2 IDENTITY OF PARTIES AND COUNSEL Appellants: Appellant s Counsel on Appeal: Appellant s Counsel at Trial: Appellee: Appellee s Counsel at Trial and on Appeal: Susan Hollingsworth, R.N., Jennifer Bertaut, R.N., Debra Stuart, R.N., Britt Berrett, Ph.D., FACHE, Abnor Sindhu, R.N., Rachael Isaac, R.N., Gay Acedo, R.N., Jackie Laran, R.N., Isaac Dada, Emmanuel Iwuoha, Phenitha Wilson, R.N., Nury Mandujano Diana L. Faust R. Brent Cooper Michelle E. Robberson Richard C. Harrist Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas David E. Olesky Cory M. Sutker Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas Adriane Springs, Individually and as Next Friend of Ron Springs Les Weisbrod Max Freeman Lawrence R. Lassiter Miller Weisbrod, LLP Forest Central Drive, Suite 300 Dallas, Texas Trial Court Judge: Hon. Eric Moyé 14th District Court Dallas County, Texas i

3 STATEMENT ON ORAL ARGUMENT Appellee believes the matter is adequately presented in the Briefs and that the Court should simply affirm the trial court s decision denying the motion to dismiss and overruling the objections to the expert reports. Should the Court grant oral argument, Appellee respectfully requests that she be permitted to participate in the argument. ii

4 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i STATEMENT ON ORAL ARGUMENT... ii TABLE OF CONTENTS...iii TABLE OF AUTHORITIES... vi STATEMENT OF THE CASE... 1 ISSUES PRESENTED... 3 STATEMENT OF FACTS... 4 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 A. Standard of Review... 5 Point I The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because the Reports Sufficiently Establish the Qualifications of the Experts to Opine Regarding the Standard of Care Applicable to Defendants, Breaches of the Standard of Care, and Causation... 7 A. The Experts Demonstrate Their Qualifications Under Chapter 74 Standards Dr. Scott Groudine Mr. Charles Brosseau Nurse Yvette Rosenthal B. Mr. Brosseau is Qualified to Opine Regarding Administrative Issues Under Civil Practice & Remedies Code Section (d), and His Opinions are Sufficient Even Though he is not Practicing Health Care iii

5 C. Dr. Groudine is Qualified to Opine Regarding the Standard of Care and Breaches of the Standard Applicable to Anesthesia Techs Sindhu, Dada, and Iwuhoa Point II The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because the Brosseau, Rosenthal, and Groudine Reports, When Read Together, Adequately Set Forth the Applicable Standards of Care and How Those Standards Were Breached A. Mr. Brosseau Establishes the Applicable Standards of Care and How Appellants Hollingsworth, Bertaut, and Stuart Breached Those Standards B. Nurse Rosenthal Establishes the Applicable Standards of Care for the Members of the Nursing Staff and How They Breached Those Standards C. Nurse Rosenthal s Opinions Adequately Explain the Applicable Standards of Care and How the Nursing Staff Members Breached Those Standards D. Dr. Groudine Identifies the Standard of Care Applicable to the Anesthesia Techs and How They Breached That Standard Point III The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because Dr. Groudine Adequately Explains the Link Between Appellants Breaches of the Standard of Care and the Injuries Suffered by Ron Springs A. Dr. Groudine Explained the Link Between Appellants Actions and Omissions and Ron Springs Injuries B. Dr. Groudine s Causation Opinion Regarding the Anesthesia Techs is Neither Speculative nor Conclusory C. Dr. Groudine was not Required to Replicate Every Facet of the Other Reports in Opining Regarding Causation Point IV The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because There is no Requirement That the Reports Replicate and Address Each and Every Factual Allegation in the Live Pleading iv

6 Alternative Request for Thirty-Day Extension CONCLUSION AND PRAYER CERTIFICATE OF SERVICE...41 v

7 Cases TABLE OF AUTHORITIES Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001)...5, 6, 29 Baker v. Gomez, 276 S.W.3d 1 (Tex. App. El Paso 2008, no pet.)...38 Baylor University Med. Ctr. v. Rosa, 240 S.W.3d 565 (Tex. App. Dallas 2007, pet. denied)...5, 6, 21, 39 Christian Care Centers, Inc. v. Golenko, 2010 WL (Tex. App. Dallas 2010, n.p.h.)...6, 7 Clark v. HCA, Inc., 210 S.W.3d 1 (Tex. App. El Paso 2005, no pet.)...18 Concentra Health Serv., Inc. v. Everly, 2010 WL (Tex. App. Fort Worth 2010, no pet.)...8 Doctors Hosp. v. Hernandez, 2010 WL (Tex. App. Houston [1st Dist.] 2010, n.p.h.)...33 Fagadau v. Wenkstern, 311 S.W.3d 132 (Tex. App. Dallas 2010, n.p.h.)...31, 32, 33 Godat v. Springs, 2009 WL (Tex. App. Dallas 2009, no pet.)...1, 5, 34 Hayes v. Carroll, 314 S.W.3d 494 (Tex. App. Austin 2010, no pet.)...33 Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex. App. San Antonio 2004, no pet.)...34, 35 Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577 (Tex. App. Dallas 2008, no pet.)...5, 6, 21, 22 Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)...39 vi

8 Memorial Hermann Healthcare System v. Burrell, 230 S.W.3d 755 (Tex. App. Houston [14th Dist.] 2007, no pet.)...17 Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007)...39 Packard v. Guerra, 252 S.W.3d 511 (Tex. App. Houston [14th Dist.] 2008, pet. denied),...13, 20, 30, 37 Reed v. Granbury Hospital Corp., 117 S.W.3d 404 (Tex. App. Fort Worth 2003, no pet.)...15 Romero v. Lieberman, 232 S.W.3d 385 (Tex. App. Dallas 2007, no pet.)...20, 28, 29 San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806 (Tex. App. Houston [14th Dist.] 2008, no pet.)...8, 9,16, 17 Sanjar v. Turner, 252 S.W.3d 460 (Tex. App. Houston [14th Dist.] 2008, no pet.)...30 Simonson v. Keppard, 225 S.W.3d 868 (Tex. App. Dallas 2007, no pet.),...35 Springer v. Johnson, 2008 WL (Tex. App. Amarillo June 4, 2008, no pet.)...30 In Re Stacey K. Boone, 223 S.W.3d 398 (Tex. App. Amarillo 2006, no pet.)...20, 21, 29, 31 Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (Tex. App. Corpus Christi 2004, no pet...28, 29 Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003)...6 Walters v. Hudoba, 2009 WL (Tex. App. Fort Worth 2009, no pet.)...38 Windsor v. Maxwell, 121 S.W.3d 42 (Tex. App. Fort Worth 2003, pet. denied) vii

9 Statutes Tex. Civ. Prac. & Rem. Code passim Tex. Civ. Prac. & Rem. Code , 8, 13 Tex. Civ. Prac. & Rem. Code section (b)...12, 13, 16 viii

10 STATEMENT OF THE CASE Nature of the case: Appellee sued Appellants and others for medical malpractice and seek damages caused by their negligence. Course of proceedings and Trial court disposition: On January 22, 2008, Appellee filed her original petition in the 14th District Court of Dallas County, Texas against Joyce Abraham, M.D., Texas Anesthesia Group, P.A., David Godat, M.D., and David Godat, M.D., P.A., alleging that they were negligent in their treatment and care of Ron Springs. (1 CR ) In her First Amended Petition, filed on July 17, 2009, Appellee asserted vicarious liability claims against Defendants Hospital Corporation of America, HCA Health Services of Texas, Inc., Columbia North Texas Subsidiary G.P., L.L.C., and Columbia Hospital at Medical City Dallas Subsidiary, L.P. d/b/a Medical City Dallas Hospital. (1 CR ) In Godat v. Springs, 2009 WL (Tex. App. Dallas 2009, no pet.), this Court affirmed the trial court s order denying a Chapter 74 motion to dismiss with respect to the opinions of Dr. Groudine and another expert. On December 15, 2009, Appellee amended her petition to add negligence claims against Appellants. (1 CR ) Pursuant to Tex. Civ. Prac. & Rem. Code , Appellee timely served the expert reports of Scott Groudine, M.D., Charles M. Brosseau, Jr., FACHE, and Yvette Rosenthal, R.N. (1 CR ; App. Tabs A-C.) Appellants filed their objections to the reports and later moved to dismiss under section (b). (2 CR ; 3 CR ) Appellee filed a combined response to all the objections and dismissal motions. (3 CR ) 1

11 On June 28, 2010, the Honorable Eric Moyé held a hearing on Appellants motions to dismiss and Appellee s Motion for Hearing to Determine Sufficiency of Expert Reports. (1 RR 6-31.) The court overruled the objections and denied the motions to dismiss with respect to Appellants Berrett, Mandujano, Sindhu, Dada, Isaac, Wilson, Laran, and Acedo. (1 RR ) The court also ruled that the expert reports constituted a good-faith effort under the statute but were insufficient in identifying Mr. Brosseau s qualifications to opine regarding standard of care and breach with respect to [Appellants] Susan Hollingsworth, RN, Jennifer Bertaut, RN, and Debra Stuart, RN. (4 CR ; 1 RR 30.) The court granted Appellee 30 days to cure the deficiency pursuant to Civil Practice & Remedies Code section (c). (4 CR 957; 1 RR 30.) The court entered an order reflecting those rulings on July 14, (4 CR ) Appellants Berrett, Mandujano, Shindu, Dada, Isaac, Wilson, Laran, and Acedo timely filed their Notice of Accelerated Appeal. (4 CR ) Appellee complied with the court s order and timely served a supplemental report of Mr. Brosseau. (1 SCR 8-10; App. Tab D.) Appellants Hollingsworth, Bertaut, and Stuart filed objections to the supplemental report and moved to dismiss. (1 SCR ). Appellee filed her response to the motion and objections on September 3, (1 SCR ) The trial court conducted a hearing on the motion on September 9, 2010 and, following argument, overruled the objections and denied the motion to dismiss. (1 SCR 82-83; 1 SRR 6-31.) Appellants Hollingsworth, Bertaut, and Stuart timely filed their Notice of Accelerated Appeal, and this Court consolidated the two appeals on October 18, (1 SCR ) 2

12 ISSUES PRESENTED 1. Did the Trial Court Properly Exercise its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because the Reports Sufficiently Establish the Qualifications of the Experts to Opine Regarding the Standard of Care Applicable to Appellants, Breaches of the Standard of Care, and Causation? 2. Did the Trial Court Properly Exercise its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because the Brosseau, Rosenthal, and Groudine Reports, When Read Together, Adequately Set Forth the Applicable Standards of Care and How Those Standards Were Breached? 3. Did the Trial Court Properly Exercise its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because Dr. Groudine Adequately Explains the Link Between Appellants Breaches of the Standard of Care and the Injuries Suffered by Ron Springs? 4. Did the Trial Court Properly Exercise its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because There is no Requirement That the Reports Replicate and Address Each and Every Factual Allegation in the Live Pleading? 3

13 STATEMENT OF FACTS As set forth in the pleadings, on or about October 12, 2007, Ron Springs was admitted to Medical City Dallas for minor surgery to have a small cyst removed from his left forearm. (1 CR 14, 86-87, 109, 124, 145.) No pre-operative laboratory studies were ordered. (1 CR 14, 86-87, 109, 124, 145.) Springs, a former Dallas Cowboy, was first seen by an anesthesiologist at or around 4:23 p.m. (1 CR 14, 87, 109, 124, 145.) Anesthesia was started approximately five minutes later, at or around 4:28 p.m. by Defendant Joyce Abraham, M.D. (Id.) Dr. Abraham placed an external jugular intravenous line. (Id.) Thereafter, she administered Diprivan (a/k/a propofol) to induce general anesthesia. (Id.) A laryngeal mask airway (LMA) was inserted, but Springs began experiencing breathing difficulty. (Id.) Dr. Abraham removed the first LMA and inserted a second; however, the breathing difficulty continued. (Id.) Dr. Abraham pharmaceutically induced a paralyzed state in order to intubate Springs, but was unable to intubate. (Id.) Springs suffered a cardiopulmonary arrest and was resuscitated. (Id.) To this day, Ron Springs remains non-responsive to verbal commands. (Id.) SUMMARY OF ARGUMENT The trial court did not abuse its discretion by overruling Appellants objections and denying their motions to dismiss. The applicable case law makes it clear that the three expert reports tendered by Appellee meet the standards established under Chapter 74. At this stage of the proceedings, the expert reports are not to be measured by whether or not they are trial worthy. Instead, the Court must reject the challenges to the reports because they constitute an objective good-faith effort to comply with Civil Practice and 4

14 Remedies Code Section , collectively providing a fair summary of each expert s opinions regarding the applicable standards of care, how Appellants conduct failed to meet those standards, and causation. The three reports collectively link the facts to the applicable standards of care, link each expert s qualifications to their ability to opine about the case, and link everything together in their causation analysis and opinions. See Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App. Dallas 2007, pet. denied). The reports are very detailed and very specific. The individual Appellants are identified by name or collectively where appropriate, the experts are qualified by expertise, experience, education, and knowledge, each individual defendant is linked to the applicable standard of care, each individual defendant is identified in connection with how that standard was breached, and Dr. Groudine connects everything together for purposes of causation. In addition, in Godat v. Springs, 2009 WL (Tex. App. Dallas 2009, no pet.), this Court previously concluded that Dr. Groudine s causation opinions were sufficient. The reports therefore provide a sufficient basis for the Court to conclude that the claims have merit. In the alternative, should the Court conclude that the reports are insufficient under section , the Court should grant a thirty-day extension to cure any deficiencies. ARGUMENT A. Standard of Review Courts of appeals apply an abuse of discretion standard in reviewing a trial court s decision with respect to a motion to dismiss under Chapter 74. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Kelly 5

15 Ryan Cook, P.A. v. Spears, 275 S.W.3d 577, 579 (Tex. App. Dallas 2008, no pet.) A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules and principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). When reviewing matters committed to the trial judge s discretion, an appellate court may not substitute its judgment for that of the trial judge. Baylor University Med. Ctr. v. Rosa, 240 S.W.3d 565 (Tex. App. Dallas 2007, pet. denied). Under section : The reports cannot each be read in isolation, as Appellants suggest. They must be read together in determining whether the requirements of section have been met. See Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App. Dallas 2007, pet. denied) (expert reports are to be read together). The reports collectively must inform the defendants of the specific conduct called into question and provide a basis for the court to conclude the claims have merit. The reports are not to be judged by the standards of a summary judgment hearing and are not required, at this stage of the proceedings to meet the Daubert/Robinson test for admissibility at trial. Christian Care Centers, Inc. v. Golenko, 2010 WL (Tex. App. Dallas 2010, n.p.h.); American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). As this Court has recently reiterated, at this stage of the proceedings, the expert reports are not to be measured by whether or not they are trial worthy. Under Civil Practice & Remedies Code section : To constitute a good faith effort to comply with the statutory requirements, an expert report must inform the defendant of the specific conduct called into question and provide a basis for the trial court to determine that the 6

16 claims have merit. It does not need to marshal all of the plaintiff's proof, but it must include a fair summary of the expert's opinion on each of the elements identified in the statute: the applicable standard of care, the breach or deviation from the standard of care, and the causal relationship between the breach and the injury. Golenko, 2010 WL at *8. The trial court properly exercised its discretion in rejecting the challenges made to the reports because the reports constitute an objective good-faith effort to comply with section , providing a fair summary of each expert s opinions regarding the applicable standards of care, how Appellants conduct failed to meet those standards, and causation. Point I The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because the Reports Sufficiently Establish the Qualifications of the Experts to Opine Regarding the Standard of Care Applicable to Appellants, Breaches of the Standard of Care, and Causation. Appellants are incorrect in claiming that the experts are not qualified to give an opinion regarding the standard of care applicable to them. The experts proffered by Appellee meet the requirements established by Chapter 74. A. The Experts Demonstrate Their Qualifications Under Chapter 74 Standards. Under Section (a), a person may qualify as an expert with respect to medical standards of care when the person: (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and 7

17 (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Tex. Civ. Prac. & Rem. Code (a). A court may also consider whether the witness is board certified in an area relevant to the claim and whether the physician is actively practicing medicine in areas relevant to the claim. Tex. Civ. Prac. & Rem. Code (c). Courts have made it plain that experts need not even be of the same school as particular defendants, and the law does not require them to have the same board certifications as the defendants. On the contrary, the proper inquiry concerning whether a physician is qualified to testify is not the physician s area of practice but the stated familiarity with the issues involved in the claim before the court. Concentra Health Serv., Inc. v. Everly, 2010 WL , *4 (Tex. App. Fort Worth 2010, no pet.). A physician with practical knowledge of what is customarily and usually done under the circumstances confronting the defendant is competent to testify. Id. The reports here are by a physician, a nurse, and an administrator with such practical knowledge regarding what is customarily and usually done under the circumstances, and they therefore easily comply with this standard. In San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806 (Tex. App. Houston [14th Dist.] 2008, no pet.), the court concluded that doctors are allowed to opine on others standards of care, such as nurses, where, for example, the doctor is board certified in internal medicine and had been board certified in nephrology [during the relevant time and where he said] the two certifications directly address the subject matter 8

18 of this claim, as the claim relates to management of [the condition at issue]. In Bennett, the expert noted that he had either trained, served as a consultant to, or observed health care providers in the same fields as the [nursing] defendants [and had] knowledge of the accepted standards of medical care for the diagnosis, care, and treatment related to the prevention and management of [the condition]. The expert in Bennett further said that he was familiar with the standard of care for both nurses and physicians for the [care of the condition. Bennett, 256 S.W.3d at The experts in this case meet these standards and have properly articulated the applicable standards of care. 1. Dr. Scott Groudine. Dr. Scott Groudine, M.D. is eminently qualified to give opinions in this matter. As set forth in his March 3, 2008 (which has been supplemented by the reports objected to here): I have been practicing anesthesiology continuously since I received my medical degree at the State University of New York at Upstate Medical Center in I completed my anesthesiology residency in 1984 at Case Western Reserve University Hospitals in Cleveland, Ohio. I am board certified in anesthesiology by the American Board of Anesthesiology (1987) and have a special qualification in critical care (1989) granted by the same organization. After finishing my training, I went into private practice in the rural upstate New York community of Auburn where I was the Assistant Chairman of the Department of Anesthesia and the Assistant Medical Director of Respiratory Therapy. I practiced there for 8 years before moving to Albany Medical Center where I became the Section Head of Critical Care Medicine and of Clinical Research. I am jointly appointed in the Department of Anesthesiology and the Department of Surgery. I obtained the rank of Professor of Anesthesiology in 2004 and Professor of Surgery in I was nominated and accepted for membership in the Association of University Anesthesiologists in 2006; my CV details my activities in patient care, research and teaching. I have been asked to work on several 9

19 (3 CR 913.) projects for the New York State Health Department, most significantly their office-based surgery regulations. I worked on the American Society of Anesthesiologists report on office-based anesthesia and was consulted by lawyers and anesthesiologists from Texas about the Texas State Board of Medicine Office Based Anesthesiology standards. I lecture at national and international anesthesia meetings and am involved in several professional organizations at a leadership level. I served as president of the New York State Society of Anesthesiologists in 2005 and I have served as a reviewer for two widely circulated anesthesiology journals. 2. Mr. Charles Brosseau Charles M. Brosseau, Jr. FACHE, details his extensive hospital-administrative experience, training, and knowledge in his report: My professional background begins with an undergraduate degree in Zoology from Texas Tech University. After an externship at Presbyterian Hospital of Dallas, I attended graduate school at Trinity University in San Antonio. After completing an Administrative Residency at The Methodist Hospital of Houston, I received a Masters in Healthcare Administration from Trinity in I returned to Presbyterian Hospital of Dallas as an Administrative Assistant. In 1980, I joined Harris Hospital Methodist in Ft Worth, Texas as Assistant Vice-President where I was responsible for clinical, non-nursing departments as well as support departments. In 1984, I was promoted to Senior Vice-President/Administrator of Harris Methodist Ft Worth (628 beds). As the Administrator, I was responsible for the quality of care, financial performance and institutional planning for Harris Methodist Ft Worth. In 1992, I left the Harris System and joined the All Saints Health System as the Chief Operating Officer. In 1996, I left All Saints and established a management consulting practice. Almost immediately, I was engaged by D.C. General Hospital in Washington, DC and worked with them until the end of Concurrently, I consulted with MD Anderson-Moncrief Cancer Treatment Center in Ft Worth. Another institutional client was the Dallas-Ft Worth Hospital Council. In 2001, I became a Fellow in the American College of Healthcare Executives. In 2009, I served as Interim CEO for a small, general acute care hospital in New Mexico. (1 CR 220; Tab B.) 10

20 Mr. Brosseau also details how this experience included supervision of nurses and nursing programs at Harris Methodist Fort Worth, stating that through the Nursing Directors (Medical/Surgical Units, Special Care Units, Women s Services, Emergency Services, Surgery, etc.) and the Vice-President of Nursing, the nursing staff reported to me. (SCR 12; Tab D.) Referencing the roles of Hollingsworth (Vice President of Surgical Services), Bertaut (Nursing Director), and Stuart (Nurse Manager), Mr. Brosseau also states that throughout my career I have been responsible for these leadership positions in hospital organizations and their administrative functions. At each of these levels, there are administrative and managerial functions which are well within my area of expertise. These include ensuring competencies, having and enforcing policies and procedures and ensuring appropriate supervision in all departments. (SCR 13.) 3. Nurse Yvette Rosenthal Similarly, Yvette Rosenthal, R.N. is well qualified to opine regarding the standard of care and breaches of the standard of care with respect to the nursing staff. Nurse Rosenthal s extensive experience, training, and knowledge are particularly relevant to the circumstances of this case: I am a registered nurse licensed in the State of Texas. I graduated nursing school in 1981 and practiced in intensive care and emergency nursing until 1988, and have been practicing perioperative nursing full time since. I have experience in both the hospital and outpatient settings. As a perioperative nurse of over 20 years, I am familiar with how operative suites need to be supervised and staffed from a nursing standpoint. Moreover, I am well familiar with the risk and patient assessment needs of surgical patients. 11

21 (CR 226; Tab C.) Appellants attempt to challenge Nurse Rosenthal s qualifications by re-interpreting her CV and report to contend, incorrectly, that she is not qualified to opine regarding preoperative procedures. (Appellants Brief at ) In fact, her report is very clear that her experience and training cover perioperative nursing, the time period describing the duration of a patient s surgical procedure, which commonly includes admission, anesthesia, surgery, and recovery. Obviously, this includes the preoperative phase. Her CV also specifically explains that she has been doing perioperative work at surgery centers since (1 CR 234.) Appellants attempts to misconstrue Nurse Rosenthal s experience and qualifications should be rejected. B. Mr. Brosseau is Qualified to Opine Regarding Administrative Issues Under Civil Practice & Remedies Code Section (d), and His Opinions are Sufficient Even Though he is not Practicing Health Care. Appellants are incorrect in claiming that Mr. Brosseau is not qualified to opine regarding administrative standards of care with respect to Hollingsworth, Bertaut, or Stuart under Tex. Civ. Prac. & Rem. Code section (b) because he is not currently practicing health care. (Appellants Brief at 10.) This argument, of course, is inconsistent with earlier contentions in the trial court that, with respect to these nurses and their administrative responsibilities, an administrator was needed to opine regarding administrative standards. In any event, Appellants reliance on section (b) is misplaced and misleading. Section (d) provides an exception to the practicing health care requirement, allowing the Court to dispense with that requirement if, under the circumstances, the court determines that there is good reason to admit the expert s 12

22 testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria. Tex. Civ. Prac. & Rem. Code (d). Courts have applied this exception in cases where current health care providers may not have the necessary expertise to opine regarding the relevant issues. In Packard v. Guerra, 252 S.W.3d 511 (Tex. App. Houston [14th Dist.] 2008, pet. denied), the parents of a newborn child brought health care liability claims against physicians, as well as direct and vicarious claims against various business/corporate entities that had allegedly contracted to manage and staff the ER. Plaintiffs served an expert report of an attorney who opined regarding the interrelationships among the various entities. Defendants argued that because the expert was not a physician or health care provider, she was not qualified to tender an expert report, citing sections and as support for their challenge. Packard, 252 S.W.3d at 528. The Packard court rejected this argument, relying on the exception found in both provisions. The court concluded that the attorney s testimony was relevant and helpful and that few physicians would possess the knowledge and experience needed to form opinions regarding corporate structures. Id. at The court also recognized that rigid application of the practicing health care requirement could prevent plaintiffs from being able to present any expert testimony on certain issues involving health care defendants, something the court refused to do. Id. This Court should similarly reject a rigid interpretation of the statute and recognize that Mr. Brosseau is qualified to opine regarding administrative issues. 13

23 Despite Appellants attempts to mischaracterize his report, Mr. Brosseau is not addressing any clinical issue such that he would only be qualified if he were practicing health care. (Appellants Brief at 10.) Appellants also are wrong in claiming that to opine regarding administrative standards which is Mr. Brosseau s role here he must have served as a nurse or held a management position as a nurse. (Appellants Brief at 10.) Mr. Brosseau specifically identifies his experience and its relationship to the issues before the Court. As a hospital administrator, he has been responsible for the very leadership positions held by Hollingsworth, Bertaut, and Stuart. (SCR 12-13; Tab D.) At each of these levels, there are administrative and managerial functions which are well within my area of expertise. These include ensuring competencies, having and enforcing policies and procedures and ensuring appropriate supervision in all departments. (SCR 12; Tab D.) Mr. Brosseau is very careful to state that he is not addressing the clinical aspects of these Appellants responsibilities that is, the issues that would be consistent with imposing the practicing health care requirement: The issues I address are not whether Mr. Berrett, Ms. Hollingsworth, Ms. Bertaut and Ms. Stuart met the standard of care with respect to hands-on patient care. Instead, the issues I address are whether or not they met the management, administrative and leadership responsibilities which are owed to patients. (SCR 13; Tab D.) As an experienced hospital administrator and consultant, Mr. Brosseau is qualified to opine regarding the standard of care for hospital administration. Appellants repeatedly assert that expert medical testimony is needed with respect to claims regarding polices and procedures, apparently claiming that a hospital administrator, that is, a person who would establish hospital policies and procedures, is 14

24 not qualified to opine regarding such issues. (Appellants Brief at ) The cases cited by Appellants certainly do not stand for that proposition. Instead, courts addressing the issue have indicated that with respect to the underlying clinical issues, medical testimony is necessary, but physicians may not have the administrative experience necessary to opine regarding whether a hospital should have certain policies and procedures in place. For instance, Reed v. Granbury Hospital Corp., 117 S.W.3d 404 (Tex. App. Fort Worth 2003, no pet.), the court noted that lay testimony may establish the standard of administrative care at a hospital, but with respect to underlying clinical issues, medical expert testimony is needed. Reed, 117 S.W.3d at 409. In any event, Appellants are actually asking the Court to ignore the reports of the medical experts that were also submitted by Appellee. Both Dr. Groudine and Nurse Rosenthal opine regarding the underlying medical issues, and Mr. Brosseau, using his administrative experience, is able to opine regarding what a hospital of ordinary prudence would have done under the same or similar circumstances. Reed, 117 S.W.3d at 409. Appellants would apparently have the Court hold that to be qualified to give any opinions with respect to Hollingsworth, Bertaut, and Stuart, a single expert would need to have been a doctor and/or a nurse, a vice president of surgical services, a nursing director, a nurse manager, and a hospital administrator. (Appellants Brief at 10.) But that is not the law. For purposes of section , Mr. Brosseau s report cannot be read in a vacuum. As Mr. Brosseau noted in his report, as an administrator, he relies on medical personnel for underlying clinical standards and sets policies and procedures with that information in mind. In his role as an administrative expert here, his 15

25 qualifications and opinions are similar dependent on and related to the opinions given by medical experts. In many situations, it is not possible to find a single expert who has the necessary experience to opine on every single issue. Both the Legislature and the Texas Supreme Court have recognized this and made it clear a plaintiff may satisfy Chapter 74 s requirements using multiple experts and that the expert reports are to be read together. Collectively, the experts have the necessary qualifications to opine regarding the standards applicable to Hollingsworth, Bertaut, and Stuart. C. Dr. Groudine is Qualified to Opine Regarding the Standard of Care and Breaches of the Standard Applicable to Anesthesia Techs Sindhu, Dada, and Iwuhoa. The trial court correctly determined that Dr. Groudine, an anesthesiologist, was qualified to opine regarding the standard of care and breach with respect to anesthesia techs. Appellants assert that Dr. Groudine is not qualified to give opinions about the conduct of anesthesia techs, such as checking and operating anesthesia equipment. (Appellants Brief at ) Under section , doctors are allowed to opine on others standards of care, e.g. nurses and techs, when the doctor demonstrates the requisite experience and training in the relevant field. In San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806 (Tex. App. Houston [14th Dist.] 2008, no pet.), the court reached such a conclusion, noting that a physician is qualified to opine regarding the standards of others where, for example, the doctor is board certified in internal medicine and had been board certified in nephrology [during the relevant time and where he said] the two certifications directly address the subject matter of this claim, as the claim relates to management of [the condition at issue]. He further indicated, because he had either 16

26 trained, served as a consultant to, or observed health care providers in the same fields as the [nursing] defendants, he has knowledge of the accepted standards of medical care for the diagnosis, care, and treatment related to the prevention and management of [the condition]. He further said that he is familiar with the standard of care for both nurses and physicians for the [care] of the condition. Finally, he explained, I give direct care to patients with [the condition] and was doing so at all times relevant to this case. As such, I am also familiar with the consequences of improper management of [the condition] that is not within the standard of care. San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 813 (Tex. App. Houston [14th Dist.] 2008, no pet.) Similarly, in Memorial Hermann Healthcare System v. Burrell, 230 S.W.3d 755 (Tex. App. Houston [14th Dist.] 2007, no pet.), the doctor demonstrated his qualifications to render opinions on hospital care by saying, I am familiar with the standard of care as it pertains to prevention and treatment of decubitus ulcers. I have experience in instructing nurses and other personnel in the proper techniques to prevent decubitus ulcers and I have treated patients with decubitus ulcers over the course of my practice as an infectious disease internist and occupational doctor. Burrell, 230 S.W.3d at 759. The report further showed that the doctor has completed a fellowship and practiced for more than twenty-five years in the field of infectious disease. In his curriculum vitae, [the expert] indicates he has been board certified in occupational medicine since 1992 and board eligible in infectious disease since Id. The trial court did not abuse its discretion in determining that Dr. Groudine was qualified to opine with respect to the anesthesia techs. 17

27 As set forth in his CV, Dr. Groudine is a board certified Anesthesiologist with a specialty in critical care. (1 CR 199.) This broad knowledge regarding anesthesia encompasses the techs who work with an anesthesiologist. Indeed, as he notes in his report, an anesthesiologist and the anesthesia techs share responsibilities regarding the anesthesia equipment. (1 CR 198.) The cases cited by Appellants involve situations where a physician was not familiar with a particular medical condition at issue in the case. (Appellants Brief at 23.) See Clark v. HCA, Inc., 210 S.W.3d 1, 7 (Tex. App. El Paso 2005, no pet.) (doctor did not demonstrate familiarity with condition or medicine at issue). There is certainly no authority for the proposition advanced by Appellants that only an anesthesia tech is qualified to opine regarding the standard of care applicable to an anesthesia tech. Dr. Groudine s qualifications in the field of anesthesiology are explicitly demonstrated in his report and CV, and no extrapolation need be done. Point II The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because the Brosseau, Rosenthal, and Groudine Reports, When Read Together, Adequately Set Forth the Applicable Standards of Care and How Those Standards Were Breached. The three expert reports collectively establish both the applicable standards of care and how Appellants breached those standards. Mr. Brosseau identifies Appellants Hollingsworth, Bertaut, and Stuart individually, and explains how they breached the standard of care, and Nurse Rosenthal does the same for the nursing staff. 18

28 A. Mr. Brosseau Establishes the Applicable Standards of Care and How Appellants Hollingsworth, Bertaut, and Stuart Breached Those Standards. Mr. Brosseau identifies the administrators who are defendants in this case (Hollingsworth the Director of Nursing, Bertaut Nursing Director, and Stuart Nurse Manager, as well as Britt Berrett -- Administrator), identifies the standards of care applicable to them, and details how they each failed to meet those standards: I am familiar with the standard of care for hospital administration and for the leadership personnel, including Mr. Britt Berrett, Administrator, Susan Hollingsworth, R.N., Director of Nursing, Jennifer Bertaut, Nursing Director, and Debra Stuart, Nurse Manager. (emphasis added). The standard of care requires each of them to ensure that the clinical and administrative staff is competent, to have and enforce appropriate policies and procedures, and to make sure that they are operationalized. That is, the standard of care requires the Administrator, the Director of Nursing, the Nursing Director and the Nurse Manager to make sure that the clinical staff knows and understands the policies and procedures and follows them. (emphasis added) The standard of care requires the Administrator, Director of Nursing, Nursing Director and Nurse Manager to work together to define the required qualifications and competence of those staff who provide care, treatment and services. (emphasis added). The standard of care requires them develop and implement policies and procedures for care, treatment and services. (emphasis added). 19

29 The nursing executives establish nursing policies and procedures, nursing standard of patient care, treatment and services, and standards of nursing practice. (SCR 13.) These are not generic statements about the standard of care, nor does Mr. Brosseau s application of the standards to multiple appellants render his opinion conclusory. (Appellants Brief at ) In his report, Mr. Brosseau specifically identifies each appellant, their responsibilities, and the standard of care applicable to each. When the duty is uniform across specialties, and the reports state as much, plaintiffs may collectively assert the standard as it applies to all those who must meet that standard. See In Re Stacey K. Boone, P.A., 223 S.W.3d 398, (Tex. App. Amarillo 2006, no pet.) (holding expert report sufficient with same standard of care for multiple defendants when each defendant was performing the same duties on the same patient); Packard v. Guerra, 252 S.W.3d 511, 527 (Tex. App. Houston [14th Dist.] 2008, pet. denied (proper to assign same standard of care to defendants with similar duties under the circumstances); Romero v. Lieberman, 232 S.W.3d 385, (Tex. App. Dallas 2007, no pet.) (each physician owed the same duties and was held to the same standard). In this case, Mr. Brosseau identifies the duties and responsibilities applicable to each of the Appellants. Appellants may not agree that this is the proper standard of care, but that disagreement is irrelevant for purposes of a Chapter 74 proceeding. In Stacy K. Boone, the court explained that while a defendant may not agree with the standard of care identified by an expert, that does not render the opinion insufficient, and disagreement 20

30 does not create a deficiency. Stacy K. Boone, 223 S.W.3d at Accordingly, while Appellants may not agree with the standard of care, breach, and/or causation conclusions enunciated by Mr. Brosseau, such a disagreement is not a legitimate basis for dismissal under Chapter 74 when the reports otherwise meet the applicable standards. The Court should also reject Appellants contention that Mr. Brosseau s report is conclusory with respect to the standard of care. 1 (Appellants Brief at 17.) Appellants assert that Mr. Brosseau did not identify how Appellants should have acted to meet the applicable standards. (Appellants Brief at 17.) This boilerplate objection is, essentially, a claim that the report was not sufficiently detailed. In fact, there is no requirement that every single detail and fact involved in the situation be included, discussed, and analyzed in a Chapter 74 report. A report is not required to marshal all of a plaintiff s proof as if the plaintiff s claims were being litigated on the merits. Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App. Dallas 2007, pet. denied). It is also clear that in setting forth the standard and breach, the experts are also not required to opine regarding what specific actions should have been taken to meet the applicable standard of care. In Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577 (Tex. App. Dallas 2008, no pet.), this Court rejected the very requirement Appellants seek to impose here. Spears involved a malpractice claim arising out of arthroscopic surgery that was performed on the wrong knee. The experts opined that the standard of care required the defendants to ascertain which knee was the correct one and the failure to do so constituted a breach of 1 Black s Law Dictionary defines conclusory as expressing a factual inference without stating the underlying facts on which the inference is based. Black s Law Dictionary 308 (9th ed. 2004), cited in Arkoma Basin Exploration Co. v. FMF Assocs.1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008). 21

31 the standard. Spears, 275 S.W.3d at 586. The defendants in Spears argued, as the Appellants here contend, that the report was conclusory because it did not state what defendants were required to do to acquire the information and thereby comply with the standard of care. This Court disagreed, stating that an expert report is sufficient if it addresses how appellant s conduct has been called into question and provides a sufficient basis for the trial court to conclude appellees claims against appellant have merit. Id. Where the reports accomplish these two purposes and represent an objective good faith effort to comply with the definition of an expert report in Chapter 74, the reports are sufficient. Id. Given the decision in Spears, there is no authority for the proposition that every detail must be included, that any alternatives must be ruled out, or that an expert must describe in detail what a defendant should have done to meet the standard of care. Appellants contentions with respect to breaches of the standard of care are also without merit. (Appellants Brief at ) In his supplemental report, Mr. Brosseau goes into exhaustive detail, citing deposition testimony as well as Nurse Rosenthal s opinions, and discusses the specific failures of Hollingsworth, Bertaut, and Stuart to adhere to the standard of care. (SCR ) This belies Appellants contention that Mr. Brosseau s opinions lack factual support. (Appellants Brief at 19.) Appellants claim that Mr. Brosseau focuses on the competencies, actions, and omissions of the nursing staff. (Appellants Brief at ) Of course he does, in detailing the administrative failures of Hollingsworth, Bertaut, and Stuart. That is his role here, to identify the standard of care and breach with respect to these Appellants, their administrative responsibilities, and their failures to fulfill those responsibilities. 22

32 B. Nurse Rosenthal Establishes the Applicable Standards of Care for the Members of the Nursing Staff and How They Breached Those Standards. Nurse Rosenthal s report sets out in detail (and by name and/or function) the standard of care applicable to each member of the nursing staff: The standard of care for the charge nurse, Ms. Laran, R.N., includes appropriate supervision of the pre-operative and peri-operative assessment. The standard of care requires her to follow the policies and procedures in place and to make sure that those whom she is supervising know, understand and follow the policies and procedures. The standard of care requires her to ensure that appropriately competent nursing staff is available and attend to a high risk patient from an anesthesia standpoint. The standard of care further requires her to ensure that an appropriate risk assessment and patient assessment is done with a pre-surgical patient. The standard of care further requires her to ensure that relevant data is communicated among caregivers. The standard of care further requires her to ensure that appropriate documentation occurs with respect to all assessments and nursing interventions and that such information is appropriately communicated to other caregivers. (emphasis added) The standard of care with respect to the charge nurse, Ms. Laran, Ms. Acedo, Ms. Wilson and Ms. Mandujana requires them to follow the policies and procedures of the institution, to properly perform a risk assessment and clinical assessment of a pre-surgical patient. The standard of care further requires them to ensure the attendance of appropriately competent staff attending to a high risk anesthesia 23

33 patient with a history of difficult intubation and to communicate relevant data among caregivers. (emphasis added). Further, while the nursing staff does not obtain informed consent with respect to anesthesia and surgery, the standard of care requires them to make sure that that process has taken place, and if not, to institute the chain of command. The standard of care further requires them to initiate the chain of command when Dr. Abraham was about to commence anesthesia with only Ms. Acedo and Ms. Wilson present. The standard of care further requires them to immediately call for help when difficulties were encountered. The standard of care with respect to the charge nurse, Ms. Laran, Ms. Acedo, Ms. Isaac, Ms. Mandujana, Ms. Wilson, and Mr. Shindu, requires them to provide appropriate assistance with respect to resuscitation efforts, including specific realtime documentation of who was performing what specific interventions when. The standard of care requires them during resuscitation to document an acceptable timeline about the order, duration and efficacy of emergency ACLS protocol interventions. The standard of care further requires them to designate someone to keep real-time documentation of the specific intervals of cardiopulmonary resuscitation and the specific sequence of drugs given. (1 CR ) Nurse Rosenthal then identifies the failures to adhere to the standard of care, discussing each individual by name and/or collectively where appropriate: 24