NO. 06-15-00049-CV

IN THE COURT OF APPEALS

FOR THE SIXTH DISTRICT OF TEXAS

TEXARKANA, TEXAS

CRISTINA MARENTE individually

 and as representative of the 

ESTATE OF CHRISTIAN MARENTE, Deceased,

Appellants

v.

EUNICE ASHA, and EPIC HEALTH SERVICES, INC.

Appellees

On Appeal from Cause Number 86812

From the 40th District Court of Ellis County, Texas

BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED

Douglas T. Floyd

Attorney for Appellants

3336 Therondunn Dr.

Plano, Texas 75023

214-704-7081

469-519-9488 FAX

T.B.N. 07181700

lawyerfloyd@aol.com

ACCEPTED

06-15-00049-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

9/29/2015 3:52:22 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 9/30/2015 8:00:00 AM DEBBIE AUTREY Clerk
IDENTITY OF PARTIES AND COUNSEL

PLAINTIFF/APPELLANT: CRISTINA MARENTE individually and as representative of the

ESTATE OF CHRISTIAN MARENTE, Deceased

DEFENDANTS/APPELLEES: EUNICE ASHA, and EPIC HEALTH SERVICES, INC.

COUNSEL FOR PLAINTIFF/APPELLANT:

Douglas T. Floyd

3336 Therondunn Dr.

Plano, Texas 75023

214-704-7081

469-519-9488 FAX

T.B.N. 07181700

lawyerfloyd@aol.com

COUNSEL FOR EUNICE ASAH/APPELLEE

David M. Walsh, IV

Peter Anderson, Chamblee, Ryan, Kershaw and Anderson, P.C.

2777 N. Stemmons Freeway, Suite 1157

Dallas, Texas 75207

214-905-2003

214-905-1213 FAX

dmwalsh@chambleeryan.com

COUNSEL FOR EPIC HEALTH SERVICES, INC./APPELLEE

Winston L. Borum

BORUM & HANCOCK, L.L.P.

2485 Burnett Plaza

801 Cherry Street, Unit 414

Fort Worth, TX 76102 

817-336-4100

817-336-41412 FAX

borum@borumhancock.com

PRESIDING JUDGE AT TRIAL:

Hon. Robert Carroll

40th District Court

Ellis County, Texas

201 Caroline, 11th Floor

Houston, Texas 77002

101 South Main Street

Waxahachie, Tx 75165

972-825-5060

972-825-5061 FAX

i
TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Dr. Marabel’s report was sufficient to satisfy the requirements of TEX. CIV. PRAC. &

REM. 74.351... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

a. Dr. Marabel is fully qualified under TEX. CIV. PRAC. & REM. 74.401 to offer

opinions in this case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

b. Dr. Marabel’s report complies with the requirements of TEX. CIV. PRAC. &

REM. §74.351(r)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. Nurse Binghams’ report was sufficient to satisfy the requirements of TEX. CIV. PRAC.

& REM. 74.351... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

a. Nurse Bingham is fully qualified under TEX. CIV. PRAC. & REM. 74.401 to

offer opinions in this case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

b. Nurse Bingham’s report complies with the requirements of TEX. CIV. PRAC. &

REM. §74.351(r)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. No expert report was necessary with respect to Appellants’ claims for vicarious liability

against Epic Health Services, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii
INDEX OF AUTHORITIES

CASES

Adeyemi v.Guerrero, 329 S.W.3d 241 (Tex. App.-Dallas 2010, no pet.). . . . . . . . . . . . . . . . . . . . 9

Ballan v. Gibson, 151 S.W.3d 281 (Tex. App.—Dallas 2004, no pet.).. . . . . . . . . . . . . . . . . . . . 16

Blan v. Ali, 7 S.W.3d 741 (Tex. App.—Houston [14th Dist.] 1999, no pet.). . . . . . . . . . . . . . . . 11

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873

(Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15

(Tex.App.-Tyler 2000, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Larson v. Downing, 197 S.W.3d 303 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855

(Tex.App.-Houston [1st Dist.] 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Group v. Vicento , 164 S.W.3rd 724 (Tex.App.-[Houston 14th

 Dist] 2005). . . . . . . . . . . . . . 17, 18

Obstetrical & Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96

(Tex. App.-Houston [14th Dist.] 2009, pet. denied)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rittger v. Danos, 332 S.W.3d 550

(Tex. App.—Houston [1st Dist.] 2009, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Packard v. Guerra, 252 S.W.3d 511 (Tex.App.-Houston [14 Dist.] 2008) . . . . . . . . . . . . . . . . . 19

STATUTES

Tex. Civ. Prac. & Rem. §74.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tex. Civ. Prac. & Rem. Code Ann. § 74.351. . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 11, 12 13, 16, 19

Tex. Civ. Prac. & Rem. § 74.351 (r)(5)(A)-(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Civ. Prac. & Rem.. §74.351(r)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9, 11, 12, 13, 16, 19

Tex. Civ. Prac. & Rem. § 74.401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 19

Tex. Civ. Prac. & Rem. § 74.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16, 17, 18, 19

iv
Tex. Civ. Prac. & Rem. § 74.402(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

Tex. Civ. Prac. & Rem. § 74.402(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

TEX. GOV'T CODE ANN. § 311.005(13) (Vernon 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv
STATEMENT OF THE CASE

This is a health case liability claim involving nursing negligence against Eunice Asah, R.N.

(hereinafter referred to as “Nurse Asah”), and her employer, Epic Health Services, Inc., which

was originally filed on March 4, 2013, in Ellis County, Texas, (CR 7) and subsequently amended

on March 27, 2013. (CR 16). Patti Bingham, R.N. and Dr. Charles Marable, M.D. prepared

initial expert reports which were subsequently amended and served on Defendants on August 29,

2013. (CR 197). On September 17, 2013, Epic Health Services filed Defendant Epic Health

Service, Inc.’s Objection to Plaintiff’s Amended Chapter 74 Expert Reports & Motion to

Dismiss. (CR 199). On September 18, 2013, Asah filed Defendant Eunice Asah’s Objections to

Plaintiffs Amended Chapter 74 Expert Reports & Motion to Dismiss. (CR 219). On June 23,

2015, the District Court granted Defendants’ motions to dismiss on all Plaintiffs’ issues and

signed an Order on Defendant Eunice Asah & Epic Health Services, Inc.’s Objections to

Plaintiff’s amended chapter 74 Expert Reports & Motions to Dismiss. (CR 379 ).

1
ISSUES PRESENTED

1. Were the expert amended reports provided to the Appellees in compliance with Tex. Civ.

Prac. & Rem. 74.351(a)?

2. Did the amended expert reports comply with the requirements of Tex. Civ. Prac. & Rem.

74.351(r)(6) and put the Appellees on notice of the conduct called into question?

3. Did the district court err in dismissing the claims of vicarious liability against an

employer of a health care provider on the basis of the expert reports?

2
STATEMENT OF FACTS

On September 10, 2012, CHRISTIAN MARENTE, hereinafter Christian, was a

seventeen-year-old male with a history of Jeune syndrome and restrictive lung disease. Jeune

syndrome (asphyxiating thoracic dystrophy, ATD) is a rare autosomal recessive skeletal

dysplasia [dysplasia is an abnormality within the cells of tissue that affects growth, development

and function] characterized by a small, narrow chest and variable limb shortness. There is a

considerable neonatal mortality as a result of respiratory distress. Renal, hepatic, pancreatic, and

ocular complications may occur later in life. Christian had respiratory complications that had

left him with a tracheostomy and mechanical-ventilator dependent. He had asthma and chronic

kidney disease and had received a kidney transplant in July 2007. On September 10, 2012

CHRISTIAN was on oxygen 2 liters at all times. At night, he was on the ventilator; thus

requiring 24 hour sitting provided by a home health service.

At approximately 5:00 p.m. on September 10, 2012, EUNICE ASAH, hereinafter Nurse

Asah, a home health nurse provided by EPIC Health Services was bathing Christian in his home

at 313 E. Freeman, Ennis, Texas. They were alone and while putting him "back to bed" the

"tracheostomy" came out. As documented in the EMS Patient Care Report, Nurse Asah "made

multiple attempts to place the trachea tube back into place but has been unsuccessful." Christian 

received Bag-Valve-Mask [BVM] ventilation and became pulseless. Nurse Asah began chest

compressions. EMS was called and upon arrival continued Cardio- pulmonary resuscitation,

obtained a blood pressure and then transported Christian to Children's Medical Center, Dallas,

Texas for ongoing care. Christian had been pulseless approximately 10-15 minutes.

Nurse Asah initially stated she was "changing out his trach and the patient was moving

around ... and it came out." Nurse Asah says she "made multiple attempts to place the trachea 

3
tube back into place" but could not. According to the Discharge Summary from Children's

Medical Center, she then tried to replace the trachea with a 5.5 trach tube, but was not

successful. She then began bag-valve masking [BVM] Christian through his trachea in which

she had told the 911 dispatcher the trach was "halfway in."

Nurse Asah spoke with the 911 dispatcher for a total of 6 minutes. During this time, she

did not identify herself as a Registered Nurse. The 911 dispatcher wasted valuable time

explaining to Nurse Asah how to complete the Cardio-pulmonary resuscitation [CPR]

procedures.

EMS received the call at 17:23 and arrived at the home 17:28. Upon arrival, Christian

did not have a pulse, and CPR was continued. EMS documented "Pt's trachea opening is blocked

by the pt's neck." They noted inserting a "6.0mm ET tube through his trachea." They then

transferred Christian to the airport where air-team emergency flight, Air Evac 74, met them and

transferred Christian to Children's Medical Center in Dallas, Texas.

Christian was pronounced deceased on September 23, 2012.

Nurse Asah has reported at least two different reasons as to how the tracheostomy tube

came out. Nurse Asah first reported in her 911 call that while putting Christian back to bed the

tracheostomy came out. In response to interrogatories, Nurse Asah reported that she removed the

tracheostomy in preparation to replacing the trach.

The first statement by Nurse Asah implies that the trach came out accidently. The second

statement makes it clear that Nurse Asah removed the trach intentionally. What is important is

that Cristina Marente was the only person that ever changed the tract and never changed the trach

on Nurse Asah’s shift. Nurse Asah try to ignore the fact that the replacing of the trach was not

her responsibility and she should have never have undertaken the procedure of removing the

4
trach for the purpose of replacing the trach on the date in question. The removing and replacing

of the trach in the home was the sole responsibility of the mother, Cristina Marente. Second,

Nurse Asah ignores the fact that the removing and replacing of the trach was never done on her

shift. It was always done on the following shift with another nurse present when Cristina

Marente changed the trach.

As set forth in Appellants’ First Amended Petition:(CR 18-19).

NEGLIGENCE - BREACH OF STANDARD OF CARE:

a. Among the Significant Breaches in Standard of Care by EPIC Health Services, 

Inc., and through its employee, EUNICE ASAH, RN:

i. ASAH's conduct fell below nursing Standard of Care when she failed to 

properly care for the trach.

ii. ASAH's conduct fell below nursing Standard of Care when she failed to 

immediately call appropriate emergency medical assistance when the 

patient showed initial signs of distress.

iii. ASAH's conduct fell below nursing Standard of Care when she failed to 

give the 911 dispatcher the correct street address of 311 East Freeman 

Street.

iv. ASAH's conduct fell below nursing Standard of Care when she failed to 

immediately identify herself as a registered nurse resulting in unnecessary

delay.

v. ASAH's conduct fell below nursing Standard of Care when she failed to 

properly communicate with the 911 operator.

vi. ASAH's conduct fell below nursing Standard of Care when she failed to 

5
remain calm and collected in a professional manner.

vii. ASAH's conduct fell below nursing Standard of Care when she failed to 

have the proper training for home health care for tracheostomy patients.

b. To achieve positive outcomes in patients with trach tubes, every nurse needs to 

keep abreast of the best practices, develop, and maintain the necessary skills. A 

nurse who performs trach care needs to be familiar with their facility's policy and 

procedure. Per the Six-Step Decision-Making Model for Determining Nursing

Scope of Practice in Texas, "A nurse always has a duty to his/her clients/patients 

to assure that they are safe. One of the most important actions a nurse can take 

toward that goal is making sure that he/she only accepts those assignments for

which the nurse has the education, training, and skill competency. Physical and 

emotional ability can also impact a nurse's ability to maintain client safety when 

accepting an assignment."

c. Plaintiffs assert that the care rendered to CHRISTIAN MARENTE by EPIC

HOME SERVICES, INC., and EUNICE ASAH did not meet nursing Standard of 

Care. ASAH should have:

i. Properly maintained Christian's tracheostomy while transferring or 

changing the trach site.

ii. Immediately called Emergency personnel for additional help.

iii. Identify Registered Nurse qualifications to appropriate authorities to avoid 

unnecessary delay in additional assistance.

iv. Maintain a composed, professional conduct while under an emergency

situation.

6
v. Follow the American Heart Association's guidelines for Cardio-pulmonary

resuscitation.

vi. Instituted appropriate nursing interventions that required stabilization in a 

patient's condition.

vii. Been properly trained in the care of a tracheostomy patient and in how to 

properly act in an emergency situation.

7
SUMMARY OF THE ARGUMENT

Nurse Bingham’s amended expert report fulfills the requirement of Tex. Civ. Prac. &

Rem. §74.351(r)(6). She fully discusses the standard of care, how the standard was breached by

Nurse Asah, and how the breach led to Christian’s injuries. Furthermore, the report is more than

sufficient to inform the Nurse Asah of the conduct called into question and provides a basis for

the trial court to conclude that the claims have merit.

Dr. Marable’s amended expert report fulfills the requirements of TEX. CIV. PRAC. &

REM. §74.351(r)(6). He fully discusses the standard of care, how the standard was breached by

Nurse Asah, and how the breach led to Christian’s injuries with respect to Nurse Asah’s conduct.

Furthermore, the report is more than sufficient to inform Nurse Asah of the conduct called into

question and provides a basis for the trial court to conclude that the claims have merit.

No expert report was necessary with respect to Appellants’ claims for vicarious liability

against Epic Health Services. The court erred by dismissing those claims on the basis of Epic

Health Services’s objections to the expert report.

8
ARGUMENT

The issue in this Appeal is whether or not Nurse Bingham’s amended expert report and

Dr. Marable’s amended expert report fulfills the requirement of Tex. Civ. Prac. & Rem. §74. 

The Courts have said, “In determining whether an expert is qualified, we must be careful not to

draw expert qualifications "too narrowly." Larson v. Downing, 197 S.W.3d 303, 305 (Tex.

2006); Adeyemi v.Guerrero, 329 S.W.3d 241, 247 (Tex. App.-Dallas 2010, no pet.). Defendants

attempt to frame the argument around the medical condition of Christian to avoid addressing the

specific negligent acts of Nurse Asah that essentially have nothing to do with his medical

condition and therefore ask the court to narrowly define the expert qualifications necessary to

fulfill the requirements of Tex. Civ. Prac. & Rem. §74.

A health care liability claimant must timely provide each defendant healthcare provider

with an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351; Gray v. CHCA Bayshore,

L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] 2006, no pet.) The report must provide

a "fair summary" of the expert's opinions as of the date of the report regarding the applicable

standards of care, the manner in which the care rendered by the health care provider failed to

meet the standard, and the causal relationship between that failure and the injury, harm, or

damages claimed. Tex. Civ. Prac. & Rem. Code Ann. §74.351(r)(6).

If a defendant health care provider files a motion to dismiss, challenging the adequacy of

a claimant's expert report, a trial court must grant the motion if it appears, after a hearing, that the

report does not represent an objective good faith effort to comply with the definition of an expert

report or is not sufficiently specific to provide a basis for the trial court to conclude that the

claims have merit. Id. § 74.351(l); Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011).

In setting out the expert's opinions, the report must provide enough information to fulfill two

9
purposes: (1) it must inform the defendant of the specific conduct that the plaintiff has called into

question, and (2) it must provide a basis for the trial court to conclude that the claims have merit.

Scoresby, 346 S.W.3d at 556.

We will address the qualifications and sufficiency of Dr. Marable’s expert report first

because essentially the same argument applies to the qualifications and sufficiency of Nurse

Bingham’s expert report.

AS CONCERNS DR. MARABLE

As stated above, Defendants attempt to frame the argument around the medical condition

of Christian to avoid addressing the specific negligent acts of Nurse Asah that essentially have

nothing to do with his medical condition, when Nurse Asah states:

“But the issue is not whether Nurse Asah is qualified to treat Christian in this

setting, but whether Dr. Marable is qualified to offer opinions about a pediatric home

health care nurse treating a patient such as Christian under these circumstances. And that

is where Dr. Marable 's report fails. He does not state that he is familiar with the nursing

standard of care applicable to nurses (1) caring for a pediatric patient with Jeune

syndrome/restrictive lung disease; (2) with a tracheostomy requiring the administration of

continuous oxygen therapy and nighttime ventilation with a mechanical ventilator; (3) in

the home health care setting; and — most importantly -- (4) requiring tracheostomy tube

changes, such as was performed by Nurse Asah in this case, or (5) responding to an

emergency situation such as the one faced by Nurse Asah in this case.” (CR 232)

The only real issue concerns number (5) above as to the appropriate response by Nurse

Asah to the specific emergency situation she created made the basis of this suit.

Dr. Marable’s report was sufficient to satisfy the requirements of Tex. Civ. Prac. & Rem.

10
74.351. Additionally, Dr. Marable is fully qualified under Tex. Civ. Prac. & Rem. 74.401 to

offer opinions in this case. 

Nurse Asah alleges that Dr. Marable was not qualified under Tex. Civ. Prac. & Rem.

74.401 to render an opinion as to the standard of care applicable to Nurse Asah in this case. (CR

233)

“The expert testifying in a medical malpractice case need not be a specialist in the

particular branch of the profession for which testimony is offered; the statute setting out the

requisite qualifications focuses not on the defendant doctor's area of expertise, but on the

condition involved in the claim.” Rittger v. Danos, 332 S.W.3d 550, 558 (Tex. App.—Houston

[1st Dist.] 2009, no pet.) (citing Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th

Dist.] 1999, no pet.)).

Dr. Marable is more than qualified to testify about the standard of care for a nurse like

Nurse Asah performing the duties she was suppose to be performing at the time with Christian. 

Nurse Asah continues to focus her arguments on the medical condition of Christian and not on

the extensive medical history of Dr. Marable in working with nurses.

The medical condition of the patient in this case is not the proper inquiry under Tex. Civ.

Prac. & Rem. 74.401. Dr. Marable articulated very clearly in his expert report, both in the

introduction (CR 253) and the section titled “QUALIFICATIONS” as to his experience as to the

matters made the basis of this suit and with the Standard of Care” (CR 254-263) that he is

familiar with the standard of care for a nurse watching a patient under the circumstances in this

case and that Nurse Asah breached that standard of care.

Dr. Marable’s report complies with the requirements of Tex. Civ. Prac. & Rem.

§74.351(r)(6) with respect to all Appellees.

11
“An expert report must discuss the standard of care, breach, and causation with sufficient

specificity to inform the defendant of the conduct the plaintiff has called into question and to

provide a basis for the trial court to conclude that the claims have merit.” American Transitional

Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Dr. Marable’s report

did exactly what the Supreme Court ruled it must in Palacios. In his report, Dr. Marable

discussed, in detail, the standard of care, what specific conduct of each defendant breach said

standard of care, and how that breach proximately caused Christian’s injuries. The district court

gave no reasoning for granting the motions to dismiss, but a dismissal for failure to comply with

the requirements of Tex. Civ. Prac. & Rem. §74.351(r)(6) would constitute an abuse of discretion

and cannot be upheld.

Tex. Civ. Prac. & Rem. §74.351(r)(6) requires only “a fair summary of the expert's

opinions as of the date of the report regarding 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.” A motion to

dismiss should only be granted if “the report does not represent an objective good faith effort to

comply with [that] definition.” Tex. Civ. Prac. & Rem. §74.351(l).

Dr. Marable’s report fulfills all three requirements of Tex. Civ. Prac. & Rem.

§74.351(r)(6). He summarizes his opinions as to the applicable standards of care, the manner in

which the care rendered by Nurse Asah failed to meet those standards, and the causal relationship

between that failure and the injury, harm, or damages claimed. (CR 254-263)

In a lengthy paragraph in the standard of care section of his report, Dr. Marable explains,

in detail, the causal link between Nurse Asah’s actions and Christian’s injury. (CR 256) He

reiterates and elaborates upon several points in paragraphs in the breach of the standard of care

12
(CR 258-258) and causation (CR 262-263) sections of his report.

As required by Tex. Civ. Prac. & Rem. §74.351(r)(6) and Palacios, Dr. Marable’s report

informed Nurse Asah of the specific conduct called into question. Based on Christian’s as created

by Nurse Asah and the specific steps Nurse Asah should have taken specific identified actions set

forth in his report. (CR 261-262)

AS CONCERNS EPIC HEALTH SERVICES

Dr. Marable’s report addresses Appellants’ direct liability claims against Epic Health

Services. As he did with conduct of Nurse Asah, he explained, in detail, how Epic Health

Services caused Christian’s injuries. Epic Health Services should have had protocols for

evaluation, consultation, admission, and follow-up that resulted in adequate care of patients

should an emergency condition arise. The failure to have in place and abide by such protocols

was a breech in the standard of care.” (CR 261-262)

“Epic Health Services’ failed [sic] to have or implement adequate protocols for

evaluation consultation, admission, and follow-up that resulted in adequate care of this patient

with dural sinus thrombosis and idiopathic intracranial hypertension. The failure to have in place

and abide by such protocols was a breech in the standard of care that was a proximate cause of

Christian’s death. (CR 262-263) The foregoing paragraphs in Dr. Marable’s report are clearly

sufficient to “inform the defendant of the specific conduct the plaintiff has called into question”

and to “provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46

S.W.3d at 879.

AS CONCERNS NURSE BINGHAM

Nurse Bingham’s report was sufficient to satisfy the requirements of Tex. Civ. Prac. &

Rem. 74.351. The same argument for Dr. Marable applies to Nurse Bingham.

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Nurse Bingham is fully qualified under Tex. Civ. Prac. & Rem. 74.401 to offer opinions

in this case. 

Nurse Asah’s objection to Nurse Bingham’s report because “Nurse Bingham’s criticisms

of Nurse Asah solely relate to her handling of the September 10, 2012 tracheostomy incident.”

(CR 227). That is absolutely correct, because that is the only time Nurse Asah negligently caused

the trach to be removed and panicked when she could not put the trach back in. The care and

treatment provided by Nurse Asah up until the incident was adequate because Nurse Asah never

changed or removed the trach before the date in question.

Nurse Asah attempts to beguile the issues by concentrating on the medical condition of

Christian and implying that only someone that has treated a patient with Jeune

syndrome/restrictive lung disease in a home health care environment can give an opinion on the

negligence of a nurse that negligently removes a trach and then panics when she cannot re-insert

the trach. That is not a requirement to qualify as an expert under CPRC §74.402.

Nurse Bingham is certified and qualified as a registered nurse and is actively practicing

health care in rendering health care services relevant to the claim. Nurse Asah’s duties on the

date in question were as a “sitter” that stayed with Christian and observed him. Her duties

included washing and feeding Christian; monitoring the breathing equipment and periodically

suctioning mucus out of his tracheostomy. Nurse Bingham has more qualifications and

experience as a registered nurse than Nurse Asah and Nurse Bingham’s qualifications and

experience clearly show that she knows the standard of care in an emergency situation such as

that created by Nurse Asah on September 10, 2012.

Nurse Bingham addressed the proper standard of care for a home health care nurse in her

report. (CR 243)

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1. Monitor the vital signs of Christian per the Skilled Nursing Flowsheet daily;

2. To annotate the Skilled Nursing Flowsheet daily;

3. Monitor the ventilator equipment;

4. Monitor the mucus build up in the trach and suction the mucus out periodically;

5. Clean around the trach opening;

6. Observe Christian for any signs of stress or difficulty breathing;

7. Bath Christian as required.

Nurse Bingham stated in her report that Nurse Asah did breached the standard of care.

(CR 243-245)

“It is my opinion that on September 10, 2012, Nurse Asah breached the Standard of Care

applicable to Eunice Asah, RN, as follows:

1. Nurse Asah, RN breached the nursing Standard of Care when she removed the

trach from Christian; a procedure that was not her responsibility.

2. Nurse Asah, RN breached the nursing Standard of Care when she failed to

immediately call appropriate emergency medical assistance when the patient

showed initial signs of distress.

3. Nurse Asah, RN breached the nursing Standard of Care when she failed to give

the 911 dispatcher the correct street address of 311 East Freeman Street.

4. Nurse Asah, RN breached the nursing Standard of Care when she failed to

immediately identify herself as a registered nurse resulting in unnecessary delay.

5. Nurse Asah, RN breached the nursing Standard of Care when she failed to

properly communicate with the 911 operator.

6. Nurse Asah, RN breached the nursing Standard of Care when she failed to remain

calm and collected in a professional manner.

7. Nurse Asah, RN breached the nursing Standard of Care when she failed to have

the proper training for home health care for tracheostomy patients.

The expert report of Nurse Bingham clearly shows that she is a person qualified as an

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expert witness to opine as to the standard of care against Nurse Asah, a health care provider in a

health care liability lawsuit, because Nurse Bingham:

(1) is practicing health care in a field of practice that involves the same type of care or

treatment as that delivered by the defendant health care provider, if the defendant

health care provider is an individual, at the time of testimony is given or was

practicing that type of health care at the time the claim arose;

(2) has knowledge of accepted standards of care for health care providers for the

diagnosis, care, or treatment of the illness, injury or condition involved in the

claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion

regarding those accepted standards of health care. (CR 240)

Tex.Civ.Prac. & Rem. Code §74.402(b)

The expert report of Nurse Bingham clearly provides a "fair summary" of the expert's

opinions as of the date of the report regarding: (1) the applicable standards of care, (2) the

manner in which the care rendered by the physician or health care provider failed to meet the

standards, and (3) the causal relationship between that failure and the injury, harm, or damages

claimed. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); see also Ballan v. Gibson, 151 S.W.3d

281, 283 (Tex. App.—Dallas 2004, no pet.).

The heart of Nurse Asah’s objections to Nurse Bingham is that she does not qualify as an

expert under CPRC § 74.402 because the only person that can qualify is an expert is a registered

nurse sitting at the home of a juvenile patient with Jeune syndrome and restrictive lung disease

that has a tracheostomy on September 10, 2012. This is because Nurser Asah allege that the

“field of practice” is a “registered nurse sitting at the home of a juvenile patient with Jeune

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syndrome and restrictive lung disease that has a tracheostomy on September 10, 2012" and only

a “registered nurse sitting at the home of a juvenile patient with Jeune syndrome and restrictive

lung disease that has a tracheostomy on September 10, 2012" is the only field of practice that

involves the same type of care or treatment as that delivered by Defendant Asah.

Plaintiffs’ position is that the “field of practice” is that of a registered nurse in Texas for

which Nurse Bingham is more than qualified to opine on.

Nurse Asah’s position is an overly restrictive interpretation of CPRC § 74.402. The

issue of an overly restrictive interpretation of CPRC § 74.402 was addressed in Group v. Vicento

, 164 S.W.3rd 724 (Tex.App.-[Houston 14th Dist] 2005). Group involves the issue of a

chiropractic standard of care. Group argued beginning at p. 730,

 “... under section 74.402(b)(1), to qualify as an expert witness on the issue of whether

Group departed from accepted standards of care, Dr. Saqer must be "practicing health

care in a field of practice that involves the same type of care or treatment as that delivered

by the defendant health care provider, if the defendant health care provider is an

individual, at the time the testimony is given or was practicing that type of health care at

the time the claim arose. "TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1).

Group argues the term "practicing health care" as defined by subsection (a) requires a

qualified expert in a chiropractic malpractice case to either be a chiropractor, train

chiropractors at an accredited educational institution, or serve as a consulting health care

provider to chiropractors and be licensed, certified, or registered as a chiropractor. See

TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(a)(1), (2) ("For purposes of [section

74.402], 'practicing health care' includes: (1) training health care providers in the same

field as the defendant health care provider at an accredited educational institution; or (2)

serving as a consulting health care provider and being licensed, certified, or registered in

the same field as the defendant health care provider.") (emphasis added). Group contends

Dr. Saqer does not meet the statutory definition of "practicing health care." In response,

Vicento argues Dr. Saqer's report demonstrates he has

Page 731

adequate knowledge, skill, experience, training, and education regarding his treatment of

patients with conditions similar to Vicento's to qualify him as an expert under subsection

(b)(1).

Group's asserted construction of section 74.402, subsections (a)(1)-(2) and (b)(1),

improperly limits and confines the definition of the term "practicing health care."

Subsection (a) uses the term "includes" in defining "practicing health care." Although

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Chapter 74 does not define the term "includes," the Code Construction Act defines

"includes" as a term "of enlargement and not of limitation or exclusive enumeration, and

use of [includes] does not create a presumption that components not expressed are

excluded." TEX. GOV'T CODE ANN. § 311.005(13) (Vernon 2005); see Jackson Law

Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex.App.-Tyler 2000, pet. denied). Thus,

section 74.402(a)'s two definitions of "practicing health care" are not exclusive.

In addition, under the literal language of section 74.402(b)(1), an expert is only required

to be "practicing health care in a field of practice that involves the same type of care or

treatment as that delivered by the defendant health care provider." See TEX. CIV. PRAC.

& REM.CODE ANN. § 74.402(b)(1) (emphasis added). Subsection (b)(1) does not

require an expert to be practicing health care in the same field as the defendant health care

provider, here, the field of chiropractic. Instead, under subsection (b)(1), the expert only

must practice health care in a field of practice involving the same type of care or

treatment. [5]

Reading section 74.402 subsections (a) and (b)(1) together, subsection (a) expands upon

the definition of "practicing health care" to include qualified teachers and consulting

health care providers who may not otherwise be qualified under subsection (b)(1) because

they are not practicing health care and instead teach or consult. Group's proffered

construction of subsection (a) and (b)(1) results in a person being qualified as an expert

only if the person trains health care providers in the same field as the defendant health

care provider or if the person serves as a consulting health care provider and is licensed,

certified, or registered in the same field as the defendant health care provider. According

to Group, if a person practices health care in a field of practice that involves the same

type of care or treatment as that delivered by the defendant health care provider, but the

person is not certified in the same field of practice as the defendant

Page 732

health care provider, is not a teacher, or is not a qualified consultant, the person is

unqualified.

Group's asserted construction of section 74.402(a) is unnecessarily restrictive and is

contrary to the plain and common meaning of the language of the statute. Having

considered the language of section 74.402 in its entirety, we disagree with Group that the

two definitions of "practicing health care" under section 74.402(a) are exclusive.”

As in Group, Plaintiff argues that CPRC § 74.402 is not to be interpreted so overly

restrictive as to disqualify Nurse Bingham simply because as Defendant Asah claims, she is not a

“registered nurse sitting at the home of a juvenile patient with Jeune syndrome and restrictive

lung disease that has a tracheostomy on September 10, 2012." Group clearly stands for the

proposition that CPRC § 74.402 is not to be interpreted so overly restrictive as requested by

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Defendants. Further more, Group, at 731 “ (section 74.402(b)(1) does not require expert to be

practicing in same field, only in field of practice involving same kind of care).”

As concerns the claim by Defendant Asah that Nurse Bingham (and Dr. Marable) relied

on the statement of Cristina Marente that she was the only person that ever changed the trach of

Christian Marente, and that the statement is somehow unreliable and irrelevant and that such

statement under section 74.402(d) relates to the admission of testimony at trial, Plaintiff points to

Packard v. Guerra, 252 S.W. 3d 511 (Tex.App.-Houston [14 Dist.] 2008) where the court stated

at 530,

“... the plain language of the Medical Liability Act does not limit the two sections to trial.

To start narrowly, the headings of sections 74.401 and 74.402 are entitled, "Qualifications

of an Expert Witness in Suit Against a [Physician/Health Care Provider]" ; they do not

limit the sections to experts testifying at trial. Even more obviously, sections 74.401 (f)

and 74.402 (f) discuss pre-trial objections to the qualifications of an expert witness,

making it appear that the sections cover the whole spectrum of expert witnesses in a

health care liability suit from pre-trial to trial. Another section in the Act also suggests a

broader interpretation. Subsection 74.351(r)-which contains the definitions for section

74.351 , entitled "Expert Reports" -defines an expert who is qualified to give an expert

report (pre-trial) as one who is qualified to testify under sections 74.401 and 74.402 . See

TEX. CIV. PRAC. & REM. CODE § 74.351 (r)(5)(A)-(B).[15] It does not limit the

qualifications to 74.401(a)-(c) and 74.402(a)-(c)-those sections referring specifically to

physicians and health care providers. It includes all of sections 74.401 and 74.402 ,

including the exceptions contained in 74.401(d) and 74.402(d). Thus, an expert report,

which is filed only 120 days after suit and will before trial, includes the report of an

expert described in the "good cause" exception of sections 74.401 (d) and 74.402 (d).

This plain language also does not seem to support a presumption that the good cause

exceptions contained in sections 74.401 (d) and 74.402 (d) apply only at trial.

And in Packard at p. 532 the Court clearly stated,

“For these reasons, we hold that sections 74.401(d) and 74.402(d) are available for use at

the expert report phase of a health care liability claim.”

The exact meaning of Section 74.402(d) is a little more difficult to determine because

Appellants found no cases on point:

(d) The court shall apply the criteria specified in Subsections (a), (b), and © in

determining whether an expert is qualified to offer expert testimony on the issue of

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whether the defendant health care provider departed from accepted standards of health

care but may depart from those criteria if, under the circumstances, the court

determines that there is good reason to admit the expert's testimony. The court shall

state on the record the reason for admitting the testimony if the court departs from the

criteria.

Defendant Asah continues to assert that the only nurse that qualified to testify as an

expert is one that has committed negligence by removing a trach without authority, authorization

or reason and then failed in an attempt to inset the trach. Clearly, this is not what was intended

by Medical Liability Act.

NO EXPERT REPORT NECESSARY FOR VICARIOUS LIABILITY

AGAINST EPIC HEALTH SERVICES

In addition to the direct liability claims Appellants asserted against Epic Health Services,

Appellant also alleged that “Epic Health Services is vicariously liable for negligence of its

nurses, technicians, servants and or agents who are its actual agents, apparent agents, ostensible

agents, and agents by estoppel acts and/or omissions.” With respect to Appellants’ claims

against Epic Health Services for vicarious liability for the conduct of Nurse Asah, Nurse

Bingham and Dr. Marable’s report was not required to address them. In fact, no expert report is

needed at all for claims of vicarious liability based upon ostensible agency. Obstetrical &

Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 107 (Tex. App.-Houston [14th Dist.]

2009, pet. denied).

PRAYER

For the foregoing reasons, Appellants respectfully requests this honorable court to reverse

the judgment and remand this case to the district court for trial on the merits.

Respectfully submitted,

/S/ Douglas T. Floyd

COUNSEL FOR PLAINTIFFS/APPELLANTS

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Douglas T. Floyd

3336 Therondunn Dr.

Plano, Texas 75023

214-704-7081

469-519-9488 FAX

T.B.N. 07181700

lawyerfloyd@aol.com

CERTIFICATE OF SERVICE

I certify that a copy of this Brief for Appellant has been served upon the opposing counsel

either by hand delivery, U.S. mail, or facsimile.

/S/ Douglas T. Floyd

DOUGLAS T. FLOYD

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because

it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for

footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(I)

because it contains 3,587 words.

/S/ Douglas T. Floyd

DOUGLAS T. FLOYD

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