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 40 thDistrict 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

CLERKIDENTITY OF P ARTIES AND COUNSEL

PLAI NTIF F /APPEL LANT: CRI STI NA MARENTE individually and as representative of the ESTATE OF CHRI STIAN MARENTE, Deceased DEF ENDANTS/APPEL L EES: EUNI CE ASHA, and EPI C HEAL TH SERVI CES, I NC. COUNSELF OR PLAI

NTIF F /APPEL LANT: Doug las T. F loyd 3336 Therondunn Dr. Plano, Tex as 75023 214-704-7081 469-519-9488 F AX T.B .N. 07181700 lawyerfloyd@aol.com COUNSELF OR EUNI CE ASAH/APPEL L EE David M. W a lsh, IV Peter Anderson, Chamblee, Ry an, Kershaw and Anderson, P.C. 2777 N. Stemmons F reeway, Suite 1157 Dallas, Tex as 75207 214-905-2003 214-905-1213 F AX dmwalsh@chambleery

a n .com COUNSELF OR EPI C HEAL TH SERVI CES, I NC./APPEL L EE W inston L . B orum B O RUM & HANCOCK, L .L .P. 2485 B urnett Plaz a 801 Cherry

Street, Unit 414 F ort W orth, TX 76102 817-336-4100 817-336-41412 F AX borum@borumhancock.com PRESI DI NG J UDGE AT TRIAL : Hon. Robert Carroll 40 t h District Court Ellis County , Tex as 201 Caroline, 11th F loor Houston, Tex as 77002 101 South Main Street W ax ahachie, Tx75165 972-825-5060 972-825-5061 F AX
iTABLE OF CONTENTS

I DENTI TY OF THE PARTI ES AND COUNSEL
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TAB L E OF CONTENTS.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I NDEX OF AUTHORI TI ES.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT OF THE CASE.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I SSUES PRESENTED.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF F A CTS.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF THE ARGUMENT.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Dr. Marabel’s report was sufficient to satisfy the requirements of TEX. CI V. PRAC. & REM. 74.351..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a. Dr. Marabel is fully qualified under TEX. CI V. PRAC. & REM. 74.401 to offer opinions in this case..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 b. Dr. Marabel’s report complies with the requirements of TEX. CI V . PRAC. & REM. §74.351(r)(6).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B
. Nurse B ing hams’ report was sufficient to satisfy the requirements of TEX. CI V. PRAC. & REM. 74.351..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a. Nurse B ing ham is fully qualified under TEX. CI

V. PRAC. & REM. 74.401 to offer opinions in this case..
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 b. Nurse B ing ham’s report complies with the requirements of TEX. CI V. PRAC. & REM. §74.351(r)(6).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. No expert report was necessary with respect to Appellants’ claims for vicarious liability ag ainst Epic Health Services, I nc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iiPRAYER.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTI F I CATE OF SERVI CE.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTI F I CATE OF COMPL IANCE.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iiiINDEX OF AUTHORITIES

CASES Adeyemi v.Guerrero , 329 S.W
. 3 d 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 14 t hDist] 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 ivTex . 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

ivSTATEMENT OF THE CASE

This is a health case liability claim involving nursingneg lig ence ag ainst Eunice Asah, R.N. (hereinafter referred to as “Nurse Asah”), and her employ er, Epic Health Services, I nc., which was orig inally filed on March 4, 2013, in Ellis County , Tex a s, (CR 7) and subsequently amended on March 27, 2013. (CR 16). Patti B ing ham, R.N. and Dr. Charles Marable, M.D. prepared initial ex pert reports which were subsequently amended and served on Defendants on Aug ust 29, 2013. (CR 197). On September 17, 2013, Epic Health Services filed Defendant Epic Health Service, I nc.’s Objection to Plaintiff’s Amended Chapter 74 Ex pert 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 J une 23, 2015, the District Court granted Defendants’ motions to dismiss on all Plaintiffs’ issues and sig ned an Order on Defendant Eunice Asah & Epic Health Services, I

nc.’s Objections to Plaintiff’s amended chapter 74 Ex p ert Reports & Motions to Dismiss. (CR 379 ).

1ISSUES P RESENTED

1. W e re the expert amended reports provided to the Appellees in compliance with Tex . Civ. Prac. & Rem. 74.351(a)? 2. Did the amended exp ert 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 dismissingthe claims of vicarious liability ag ainst an employer of a health care provider on the basis of the ex pert reports?

2STATEMENT OF F A C TS

On September 10, 2012, CHRI STIAN MARENTE, hereinafter Christian, was a seventeen-y

ear-old male with a history of J eune sy

ndrome and restrictive lung disease. J eune sy ndrome (asphy

x iating thoracic dystrophy , ATD) is a rare autosomal recessive skeletal dy splasia [ dy splasia is an abnormality within the cells of tissue that affects g rowth, development and function] characteriz ed 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 J uly

2007. On September 10, 2012 CHRI STIAN was on ox yg en 2 liters at all times. At night, he was on the ventilator; thus requiring24 hour sittingprovided by a home health service. At approx imately

5:00 p.m. on September 10, 2012, EUNI CE ASAH, hereinafter Nurse Asah, a home health nurse provided by EPI C Health Services was bathing Christian in his home at 313 E. F reeman, Ennis, Tex a s. They were alone and while putting him " b ack to bed" the

" tracheostomy " c ame 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 B ag -Valve-Mask [ B VM] 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, Tex as for ong oingcare. Christian had been pulseless approx imately 10-15 minutes. Nurse Asah initially stated she was " chang ingout his trach and the patient was moving around ... and it came out." Nurse Asah says she " made multiple attempts to place the trachea
3tube back into place" but could not. According to the Discharg e 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 beg an bag -valve masking[ B VM] Christian throug h his trachea in which she had told the 911 dispatcher the trach was " h alfway in." Nurse Asah spoke with the 911 dispatcher for a total of 6 minutes. During this time, she did not identify

herself as a Reg istered Nurse. The 911 dispatcher wasted valuable time
exp lainingto 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 insertinga " 6.0mm ET tube through his trachea." They then transferred Christian to the airport where air-team emerg ency flight, Air Evac 74, met them and transferred Christian to Children' s Medical Center in Dallas, Tex a s. 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. I

n response to interrog atories, 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
. W hat is important is that Cristina Marente was the only person that ever chang ed the tract and never changed the trach on Nurse Asah’s shift. Nurse Asah try to ig nore the fact that the replacing of the trach was not her responsibility

and she should have never have undertaken the procedure of removing the
4trach 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 followingshift with another nurse present when Cristina Marente chang ed the trach. As set forth in Appellants’ F irst Amended Petition:(CR 18-19). NEGL I GENCE - B REACH OF STANDARD OF CARE:
a. Amongthe Sig nificant B reaches in Standard of Care by EPI C Health Services, Inc., and through its employ ee, EUNI CE 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 emerg ency medical assistance when the patient showed initial sig ns of distress. iii. ASAH' s conduct fell below nursing Standard of Care when she failed to g ive the 911 dispatcher the correct street address of 311 East F reeman 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

5remain 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 Tex as, " 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 g o al is makingsure that he/she only accepts those assignments for which the nurse has the education, training , and skill competency . Phy sical 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 CHRI STIA N MARENTE by EPI C HOME SERVI CES, I

NC., and EUNI CE ASAH did not meet nursingStandard of Care. ASAH should have: i. Properly

maintained Christian' s tracheostomy while transferring

or chang ing the trach site. ii. Immediately

called Emerg ency

personnel for additional help. iii. I dentify

Reg istered Nurse qualifications to appropriate authorities to avoid unnecessary

delay in additional assistance. iv. Maintain a composed, professional conduct while under an emerg ency situation.
6v. F ollow the American Heart Association' s guidelines for Cardio-pulmonary resuscitation. vi. Instituted appropriate nursing interventions that required stabiliz ation in a patient' s condition. vii. B een properly

trained in the care of a tracheostomy patient and in how to properly act in an emerg ency

situation.

7SUMMARY OFTHE ARG UMENT

Nurse B ing ham’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 ex pert report fulfills the requirements of TEX. CI V. 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. F urthermore, 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 ag ainst Epic Health Services. The court erred by d ismissingthose claims on the basis of Epic Health Services’s objections to the ex pert report.

8A RGUMENT

The issue in this Appeal is whether or not Nurse B ing ham’s amended expert report and Dr. Marable’s amended ex pert report fulfills the requirement of Tex . Civ. Prac. & Rem. §74. The Courts have said, “I

n determiningwhether 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 arg

ument around the medical condition of Christian to avoid addressing the specific neg lig ent acts of Nurse Asah that essentially h ave nothingto 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 reg arding 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 damag es claimed. Tex . Civ. Prac. & Rem. Code Ann. §74.351(r)(6). I f a defendant health care provider files a motion to dismiss, challeng ingthe adequacy o f a claimant' s ex pert report, a trial court must g rant 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); S c oresby v. Santillan , 346 S.W .3d 546, 555–56 (Tex . 2011). In setting out the ex pert' s opinions, the report must provide enough information to fulfill two
9purposes: (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. W e will address the qualifications and sufficiency of Dr. Marable’s ex

pert report first because essentially

the same arg

ument applies to the qualifications and sufficiency of Nurse B ingham’s expert report. A S CONCERNS DR. MARAB L E As stated above, Defendants attempt to frame the arg ument around the medical condition of Christian to avoid addressing the specific neg lig e nt acts of Nurse Asah that essentially have nothingto do with his medical condition, when Nurse Asah states:

“B ut the issue is not whether Nurse Asah is qualified to treat Christian in this setting , but whether Dr. Marableis 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 J eune sy ndrome/restrictive lung

disease; (2) with a tracheostomy requiringthe administration of continuous ox yg en therapy and nighttime ventilation with a mechanical ventilator; (3) in the home health care setting ; and — most importantly -- (4) requiring

tracheostomy

tube chang es, such as was performed by Nurse Asah in this case, or (5) responding to an emerg ency

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 emerg ency situation she created made the basis of this suit. Dr. Marable’s report was sufficient to satisfy the requirements of Tex . Civ. Prac. & Rem.
1074.351. Additionally , Dr. Marable is fully qualified under Tex . Civ. Prac. & Rem. 74.401 to

offer opinions in this case. Nurse Asah alleg es 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 testifyingin 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 ex pertise, but on the condition involved in the claim.” R ittger 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 arg uments on the medical condition of Christian and not on the ex tensive 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 ex pert report, both in the introduction (CR 253) and the section titled “QUALIF I CATI ONS” 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 ex actly

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 g ave no reasoning

for grantingthe 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 rega rdingapplicable standards of care, the manner in which the care rendered by the phy sician or health care provider failed to meet the stan dards, and the causal relationship between that failure and the injury , harm, or damag e s claimed.” A motion to dismiss should only

be granted if “the report does not represent an objective g ood 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 summariz es 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 damag es claimed. (CR 254-263) In a lengthy

paragraph in the standard of care section of his report, Dr. Marable ex plains, in detail, the causal link between Nurse Asah’s actions and Christian’s injury. (CR 256) He reiterates and elaborates upon several points in parag raphs 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. B ased 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 EPI C HEAL TH SERVI CES Dr. Marable’s report addresses Appellants’ direct liability claims ag ainst Epic Health Services. As he did with conduct of Nurse Asah, he ex p lained, 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 emerg e ncy

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 hy pertension. The failure to have in place and abide by

such protocols was a breech in the standard of care that was a prox imate cause of Christian’s death. (CR 262-263) The foreg oingparagraphs 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 B I NGHAM Nurse B ing ham’s report was sufficient to satisfy the requirements of Tex
. Civ. Prac. & Rem. 74.351. The same arg ument for Dr. Marable applies to Nurse B ing ham.

13Nurse B ing ham is fully qualified under Tex . Civ. Prac. & Rem. 74.401 to offer opinions in this case. Nurse Asah’s objection to Nurse B ing ham’s report because “Nurse B ing h am’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 neg lig ently 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 chang ed or removed the trach before the date in question. Nurse Asah attempts to beg uile the issues by

concentrating

on the medical condition of Christian and implyingthat only someone that has treated a patient with J eune sy ndrome/restrictive lung

disease in a home health care environment can g ive an opinion on the neg lig ence of a nurse that neglig ently removes a trach and then panics when she cannot re-insert the trach. That is not a requirement to qualify as an exp ert under CPRC §74.402. Nurse B ing ham 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 stay ed with Christian and observed him. Her duties included washingand feeding Christian; monitoring the breathing e quipment and periodically suctioningmucus out of his tracheostomy . Nurse B ing ham has more qualifications and
exp erience as a registered nurse than Nurse Asah and Nurse B ingham’s qualifications and
exp erience 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 B ing ham addressed the proper standard of care for a home health care nurse in her report. (CR 243)
141. Monitor the vital sig n s of Christian per the Skilled NursingF lowsheet daily ;

2. To annotate the Skilled NursingF lowsheet 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 sig ns of stress or difficulty breathing ; 7. B ath Christian as required. Nurse B ing ham 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 emerg ency medical assistance when the patient showed initial sig ns 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 F reeman 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 B ing ham clearly shows that she is a person qualified as an
15exp ert witness to opine as to the standard of care against Nurse Asah, a health care provider in a

health care liability

lawsuit, because Nurse B ing h am: (1) is practicing health care in a field of practice that involves the same ty pe 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 g iven or was practicing that ty pe of health care at the time the claim arose; (2) has knowledg e 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 trainingor experience to offer an ex pert opinion reg ardingthose accepted standards of health care. (CR 240) Tex .Civ.Prac. & Rem. Code §74.402(b) The expert report of Nurse B ing ham clearly provides a " fair summary " of the expert' s opinions as of the date of the report rega rding : (1) the applicable standards of care, (2) the manner in which the care rendered by the phy sician or health care provider failed to meet the standards, and (3) the causal relationship between that failure and the injury , harm, or damag es 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 B ing ham is that she does not qualify as an
exp ert under CPRC § 74.402 because the only person that can qualify is an expert is a reg istered nurse sittingat the home of a juvenile patient with J eune sy ndrome 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 “reg istered nurse sittingat the home of a juvenile patient with J eune

16sy

ndrome and restrictive lung disease that has a tracheostomy on September 10, 2012" and only a “reg istered nurse sitting at the home of a juvenile patient with J eune sy ndrome and restrictive lungdisease 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 Tex as for which Nurse B ing ham 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 14 t hDist] 2005). Group involves the issue of a chiropractic standard of care. Group argued beg inning 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 ty pe 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 g iven or was practicing that ty pe of health care at the time the claim arose. " T EX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1). Group arg

ues the term " p racticing

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 reg istered as a chiropractor. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(a)(1), (2) (" F or purposes of [ section 74.402] , ' p racticing

health care' includes: (1) traininghealth care providers in the same field as the defendant health care provider at an accredited educational institution; or (2) servingas a consultinghealth 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 " p racticing

health care." In response, Vicento arg

ues Dr. Saqer' s report demonstrates he has P age 731 adequate knowledg e, skill, ex perience, training , and education reg arding 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." Althoug h 17Chapter 74 does not define the term " includes," the Code Construction Act defines

" includes" as a term " of enlarg ement and not of limitation or ex clusive enumeration, and use of [ includes] does not create a presumption that components not ex pressed are ex c luded." 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.-Ty ler 2000, pet. denied). Thus, section 74.402(a)' s two definitions of " practicing health care" are not ex c lusive. In addition, under the literal lang uag e of section 74.402(b)(1), an ex pert 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." SeeTEX. CIV . PRAC. & REM.CODE ANN. § 74.402(b)(1) (emphasis added). Subsection (b)(1) does not require an ex

p ert to be practicing

health care in the same field as the defendant health care provider, here, the field of chiropractic. I nstead, under subsection (b)(1), the ex pert only must practice health care in a field of practice involving the same type of care or treatment. [ 5] Readingsection 74.402 subsections (a) and (b)(1) tog e ther, subsection (a) ex pands upon the definition of " practicing health care" to includequalified 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 reg istered 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 ty pe 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 P age 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 langu ag e of the statute. Having considered the lang

uag e 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 ex clusive.” As in Group , Plaintiff argues that CPRC § 74.402 is not to be interpreted so overly restrictive as to disqualify Nurse B ing ham simply because as Defendant Asah claims, she is not a “reg istered nurse sitting at the home of a juvenile patient with J eune sy ndrome and restrictive lungdisease that has a tracheostomy on September 10, 2012." Group c learly stands for the proposition that CPRC § 74.402 is not to be interpreted so overly restrictive as requested by
18Defendants. F urther more, Group, at 731 “ (section 74.402(b)(1) does not require ex pert 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 B ingham (and Dr. Marable) relied on the statement of Cristina Marente that she was the only person that ever chang ed 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 languag e of the Medical Liability Act does not limit the two sections to trial. To start narrowly , the heading s of sections 74.401 and 74.402 are entitled, " Qualifications of an Expert W itness in Suit Ag ainst a [ Phy sician/Health Care Provider] " ; they do not limit the sections to ex perts testifyingat trial. Even more obviously , sections 74.401 (f) and 74.402 (f) discuss pre-trial objections to the qualifications of an ex pert witness, makingit appear that the sections cover the whole spectrum of ex pert witnesses in a health care liability

suit from pre-trial to trial. Another section in the Act also sugg ests a broader interpretation. Subsection 74.351(r)-which contains the definitions for section 74.351 , entitled " E x pert Reports" -defines an ex pert who is qualified to g ive 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 phy sicians and health care providers. I t includes all of sections 74.401 and 74.402 , includingthe ex ceptions contained in 74.401(d) and 74.402(d). Thus, an ex pert report, which is filed only 120 day s after suit and will before trial, includes the report of an exp ert described in the " g ood cause" ex c eption of sections 74.401 (d) and 74.402 (d). This plain languag e also does not seem to support a presumption that the g ood cause ex c eptions contained in sections 74.401 (d) and 74.402 (d) apply only at trial. And in Packard

at p. 532 the Court clearly stated, “F or 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 ex act 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 determiningwhether an expert is qualified to offer ex pert testimony

on the issue of 19whether the defendant health care provider departed from accepted standards of health

care but m ay depart from those criteria if, under the circum stances, the court determ ines that there is good reason to adm it the expert's testim ony. The court shall state on the record the reason for adm itting the testim ony if the court departs from the criteria. Defendant Asah continues to assert that the only nurse that qualified to testify as an
exp ert is one that has committed neg lig ence by removinga trach without authority , authoriz ation or reason and then failed in an attempt to inset the trach. Clearly , this is not what was intended by Medical L iability Act.

NO EXPERT REPORT NECESSARY F O R VI CARI OUS L IAB I L I TY

AGAI NST EPI C HEAL TH SERVI CES In addition to the direct liability claims Appellants asserted ag ainst Epic Health Services, Appellant also alleg ed that “Epic Health Services is vicariously liable for neg lig ence of its nurses, technicians, servants and or agents who are its actual ag ents, apparent ag e nts, ostensible ag ents, and ag ents by

estoppel acts and/or omissions.” W ith respect to Appellants’ claims ag ainst Epic Health Services for vicarious liability for the conduct of Nurse Asah, Nurse B ingham and Dr. Marable’s report was not required to address them. I n fact, no expert report is needed at all for claims of vicarious liability based upon ostensible ag ency . Obstetrical & Gynecological Assocs., P.A. v. McCoy , 283 S.W .3d 96, 107 (Tex . App.-Houston [ 14th Dist.] 2009, pet. denied). P RAYER F or the foreg o ingreasons, Appellants respectfully requests this honorable court to reverse the judg ment and remand this case to the district court for trial on the merits. Respectfully submitted, /S/ Doug las T. F loyd COUNSELF OR PLAI

NTIF F S/APPEL LANTS 20Doug las T. F loyd

3336 Therondunn Dr. Plano, Tex as 75023 214-704-7081 469-519-9488 F AX T.B .N. 07181700 lawyerfloyd@aol.com

CERTIF ICATE OF SERVICE Icertify that a copy

of this B rief for Appellant has been served upon the opposing counsel either by hand delivery , U.S. mail, or facsimile. /S/ Doug las T. F loyd DOUG LAS T. F LOYD

CERTIF ICATE OF COMP LIANCE This document complies with the ty peface requirements of Tex . R. App. P. 9.4(e) because it has been prepared in a conventional ty peface no smaller than 14-point for tex t 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/ Doug las T. F loyd DOUG LAS T. F LOYD

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