by Eleanor Mason, Staff Attorney for Justice Hassan, Fourteenth Court of Appeals
Mem’l Hermann Health Sys. v. Heinzen, __ S.W.3d __, No. 14-18-00476-CV, 2019 WL 4071940 (Tex. App.—Houston [14th Dist.] Aug. 29, 2019, no pet. h.) (Christopher, J.).
A recent case from the Fourteenth Court of Appeals further refines the expert-report requirements under the Texas Medical Liability Act (the “TMLA”) and provides additional guidance with respect to experts’ qualifications and the content of their reports.
Appellee Donnie Heinzen sued Memorial Hermann Health System, an emergency-room physician, and an ophthalmologist (collectively, “appellants”), alleging they failed to timely recognize and treat her glaucoma. Pursuant to the TMLA’s requirements regarding health care liability claims, Heinzen served appellants with her expert’s report and curriculum vitae. Appellants objected to the expert report; the trial court held a hearing and Heinzen was permitted to supplement the report. After Heinzen supplemented her expert report and filed an additional report from a second expert, appellants moved to dismiss her suit. The trial court denied appellants’ motions and appellants filed an interlocutory appeal.
In their first issue, appellants argued the trial court abused its discretion by granting Heinzen multiple 30-day extensions to supplement her expert report, whereas the TMLA authorizes only a single extension. Appellants asserted the first extension was given during the hearing and pointed to two statements from the trial court to Heinzen’s counsel: (1) “I will give you the 30 days[;]” and (2) “So — so I’m going to go ahead and grant the objection and give you 30 days, and I’ll — I’ll sign the order.” Concluding these statements did not grant an extension, the court held that “the words the trial court used at the hearing expressed its intention to grant an extension in the future.” (emphasis added). Therefore, these statements did not commence the 30-day extension for Heinzen’s supplemental reports.
Appellants then pointed to the trial court’s three signed orders granting 30-day extensions. Rejecting appellants’ claim that these orders constituted consecutive extensions, the court emphasized that “the deadline to serve an expert report is specific to a given Provider.” That is because under the TMLA, a trial court properly could grant a single 30-day extension with respect to a specific provider. As each of the trial court’s three signed orders referenced a different appellant, the court concluded the trial court did not improperly grant multiple extensions.
Memorial Hermann also challenged the qualifications of Heinzen’s first expert as well as the adequacy of his report. Contending the expert’s relevant nursing experience “predate[d] Heinzen’s claim by several decades,” Memorial Hermann asserted the expert had no current training or experience as a nurse as necessary to render an expert opinion on the adequacy of the nursing staff’s care. The court agreed with the basis of Memorial Hermann’s challenge: under the TMLA, experts are required to be engaged in the relevant medical field at the time the claim arose or when their testimony is given. But, as the court pointed out, this requirement applies “only ‘if the defendant health care provider is an individual.’” Because Memorial Hermann is an entity, it could not rely on this standard to support its challenge.
Turning to the adequacy of the expert report, Memorial Hermann argued the report insufficiently addressed causation because it did “not explain how a nursing assessment caused the defendants to delay making the correct diagnosis” given that physicians make their own assessments and diagnoses. Rejecting Memorial Hermann’s challenge, the court emphasized the expert report opined that the nursing staff omitted relevant information and mischaracterized Heinzen’s complaints — faulty record-keeping that contributed to the delay in Heinzen’s diagnosis and treatment. Concluding the export report was adequate, the court held the report causally linked the nursing staff’s failure to properly document Heinzen’s primary complaint to the delay in her diagnosis and treatment and ultimately to her resulting vision loss.
The court affirmed the denial of appellants’ motions to dismiss.
Saenz-Guerrero v. Gardner, __ S.W.3d __, No. 14-18-00440-CV, 2019 WL 5172378 (Tex. App.—Houston [14th Dist.] Oct. 15, 2019, no pet. h.) (Hassan, J., majority and Poissant, J., dissenting).
While reiterating the standards for preservation of alleged charge error, the Fourteenth Court of Appeals in Saenz-Guerrero v. Gardner highlighted an issue not fully resolved by the Texas Pattern Jury Charge on negligence.
In Saenz-Guerrero, the plaintiff and defendant were involved in a vehicle collision and the plaintiff sued the defendant for negligence. The parties proceeded to a jury trial and the trial court submitted the following question with respect to the defendant’s liability:
Did the negligence, if any, of [the defendant] proximately cause the injuries in question?
Answer “Yes” or “No”
During deliberations, the jury sent out a question asking “[c]an you clarify the term ‘injuries’ in question? What specific injuries, if any, does this refer to?” The trial court instructed the jury to be guided by the instructions in the charge. The jury returned a verdict answering “No” to the question on the defendant’s liability.
On appeal, the plaintiff challenged the liability question’s wording and asserted (1) the plural form of “injuries” set up an improper predicate finding that necessitated proving that all of the plaintiff’s injuries were proximately caused by the defendant’s negligence, and (2) “injuries” should not have been used where there were no allegations of proportionate responsibility. The plaintiff supported his arguments with reference to the Texas Pattern Jury Charge on negligence, which states as follows:
Did the negligence, if any, of those named below proximately cause the [injury] [occurrence] in question?
Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence, Intentional Personal Torts & Workers’ Compensation PJC 4.1 at 53 (2016).
With respect to the plaintiff’s first issue, the court concluded error was not preserved where the plaintiff did not raise his specific objection — that the term “injuries” was either patently or latently ambiguous — in the trial court. Moreover, even after the jury sent out a note specifically questioning the use of “injuries,” the plaintiff did not raise this challenge but instead agreed with the trial court’s response.
Analyzing the plaintiff’s second issue, the court noted that a comment to the Texas Pattern Jury Charge on negligence stated that “injury” should be used instead of “occurrence” where the issue of proportionate responsibility is submitted to the jury. The plaintiff also relied on Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015), where the Supreme Court of Texas also drew a distinction between injury-causing and occurrence-causing negligence. But these authorities did not address the term challenged on appeal, namely, the plural term “injuries.” Therefore, these authorities did not show the trial court’s charge constituted an abuse of discretion.
The court affirmed the trial court’s final judgment.