## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00312-CV SCC PARTNERS, INC. D/B/A SENIOR CARE HEALTH AND REHABILITATION CENTER - BRIDGEPORT; AND FOURSQUARE HEALTHCARE, LTD. F/K/A SCC HEALTHCARE GROUP APPELLANTS

V. BILLY ROBERT INCE, INDIVIDUALLY AND AS A REPRESENTATIVE OF THE ESTATE OF NORECCA “JOY” INCE, DECEASED APPELLEE

---------- FROM THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CV14-04-225

---------- 

### OPINION

---------- Appellants––SCC Partners, Inc. d/b/a Senior Care Health and Rehabilitation Center - Bridgeport and Foursquare Healthca re, Ltd. f/k/a SCC2 Healthcare Group (Providers)––bring a singl e issue in this interlocutory appeal from an order denying th eir motion to dismiss 1 in a healthcare li ability case: that the trial court erred by denying their motion after overruling thei r objections to the expert report filed by appellee Billy Robert Ince. We affirm. Ince’s wife Joy resided at Senior Ca re Bridgeport’s nu rsing facility for almost a year before her death on April 27, 2012. Joy died six days after being admitted to a different hospital and re ceiving a diagnosis of gram negative septicemia, gram negative sepsis, and ac ute myeloid leukemia. After Joy died, Ince filed a wrongful death and survival suit alleging that Providers had been negligent in caring for her and that their negligence caused her predeath injuries, including pain and suffering, a nd eventually her dea th. Ince timely filed an expert report by Dr. E. Rawson Gri ffin, III, to which Providers objected, contending that Dr. Griffin was not qualified to render an opinion “regarding cancer or oncology” and that his opinion regarding causat ion was ambiguous and conclusory. Providers state in their objecti ons, “While [Dr. Griffin’s opinion as to causation of pain and suffering from Joy’ s injuries] may be suffici ent to address [Ince’s] survival claim, it does not address causation as to t he wrongful death claim.” After a hearing, the trial court denied Providers’ motion to dismiss.

1 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a )(9) (West Supp. 2015).3 Health Care Liability Claims A health care liability claimant is required to serve a defendant with an expert report and curriculum vi tae of the report’s author within 120 days of filing the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (W est Supp. 2015). The report must be written by an expert competent to give an opinion on the matters in the report, must inform the defendant of the specific conduct called into question, and must prov ide a basis for the trial court to determine that the claim has merit. Id. §§ 74.351(r)(5)(B), (r)(6), 74 .402 (West Supp. 2015); Bowie Mem’l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002) . If the defendant files a motion challenging the ade quacy of the expert repor t, the court shall grant the motion only if it appears to the court th at the report does not represent a good faith effort to comply with the statutor y requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351( l ). We review a trial court’s d enial of a motion to dismiss for an abuse of discretion. Jernigan v. Langley , 195 S.W.3d 91, 93 (Tex. 2006); Columbia N. Hills Hosp. S ubsidiary, L.P. v. Alvarez , 382 S.W.3d 61 9, 623–24 (Tex. App.––Fort Worth 2012, no pet.). Certified EMS, Inc. v. Potts Although Providers argue th at even if Dr. Griffin’s report is sufficient as to Ince’s survival claim it is not sufficient as to his wrongful de ath claim, at oral argument they clarif ied that they had not conceded that the report was sufficient as to the survival claim. Ince responds that because Providers’ objections should be overruled, at least as to the survival claim, under Certified EMS, Inc. v. Potts ,4 he need not show that the report is independently suffi cient as to the wrongful death claim, and none of the claims are su bject to dismissal. 392 S.W.3d 625, 626 (Tex. 2013).
In Certified EMS , a patient sued a hospital ra ising direct and vicarious liability theories of negligence after a nurse employed by a staffing service allegedly assaulted her. Id. Potts timely served exper t reports from a doctor and a nurse, but Certified EMS objected to the reports on the ground that neither referenced its potential direct liability as alleged by Potts. Id. at 627. Citing a split in the courts of ap peals, the supreme court he ld that the Texas Medical Liability Act does not require an expert report to addr ess each alleged theory of liability and that a report that satisfies th e Act’s requirements “even if as to one theory only, entitles the claima nt to proceed with a suit against the physician or health care provider.” Id. at 630. Providers contend th at the holding in Certified EMS is limited to direct and vicarious liability theories of negligence against a party and no t different causes of actions with separate injuries. We do not construe the holding in Certified EMS so narrowly. The El Paso Court of Appeals has agreed. See Tenet Hosps. Ltd. v. Bernal , 482 S.W.3d 165, 171–72 (Tex. App.––El Paso 2015, no pet.) (holding, after concluding that report was insufficient as to causation on survival claim, that “[t]his do es not necessarily me an that plaintiffs’ su rvival claims fail” and, citing Certified EMS , addressing adequacy of re port provided for wrongful5 death claims). 2 In Certified EMS , the supreme court rejected the lower court’s reasoning that the statute’s use of the phra se “cause of action” is dispositive and, thus, that the focus of a dismissal motion is the operative set of facts leading to various theories of liability within a cause of action. 392 S.W. 3d at 630 (citing 355 S.W.3d 683, 690–92 (Tex . App.––Houston [1st Dis t.] 2011) (op. on reh’g) (“By focusing on a cause of ac tion rather than particula r liability theories that may be contained within a cause of action, the plain langua ge establishes that the entire cause of action is dismissed with respect to the de fendant when the claimant has failed to file an expert report that sets out at least one liability theory within a cause of action.”)). Instead, the supreme cour t held that a report that satisfies the statutory elements, “even if as to one theory only,” is sufficient to avoid dismissal of an entire case. Id. at 630–31 (“If the tr ial court decides that a liability theory is supp orted, then the claim is not frivolous, and the suit may proceed.” (emphasis added)). This is consistent with the goal of avoiding frivolous suits: if at least one alleged claim, theory, or cause of action in a health care liability suit has expert support, then the legislative intent of deterring frivolous suits has been satisfied. See id. at 631. Carving ou t causes of action,

2 As Providers point out, the court of appeals reversed in Bernal and remanded for the trial court to consider a thirty-day extension, but not, as Providers urge, because the plaintiff was required to produce an expert opinion on both the wrongful de ath and survival claims but be cause the plaintiff failed to provide an adequate expert opinion as to causatio n under either theory. Tenet Hosps. Ltd. v. Bernal , 482 S.W.3d 165, 171, 175 (Tex. App.—El Paso 2015, no pet.).6 i.e., alternative “theories of liability,” at the beginning of the su it before discovery has occurred would be akin to requiring a plaintiff to meet th e summary judgment standard of proof. See id. (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 879 (Tex. 2001)). Accordingly, we conclude and hold that if the expert report served by Ince satisfies the statutory requirements as to either his alleged wrongful death or survival claims, then the trial court did not abuse its discretion by denying Providers’ motion to dismiss. See id. at 630–31. Qualifications 3 An expert report concerning standards of care for health care providers must be authored by one who qualifies as an expert. Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(B), 74.402; Davisson v. Nicholson , 310 S.W.3d 543, 550 (Tex. App.––Fort Worth 2010, no pet.) (op. on reh’g). A person may qualify as an expert on the issue of whether a health care provider departed from accepted standards of care only if the person (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 defend ant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at th e time the claim arose;

3 Although Providers do not discuss their challenge to Dr. Griffin’s qualifications in the argument of their issue, they do repeat their trial court objections to his qualifications elsewhere in their brief; thus, we will address that complaint in an abund ance of caution.7 (2) has knowledge of accepted st andards 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 trai ning or experience to offer an expert opinion regarding those acce pted standards of health care. Tex. Civ. Prac. & Rem. Code Ann. § 74.402 (b). Persons practicing health care include those serving as consultants while being licensed, certified, or registered in the same field as the health care provider. Id. § 74.402(a)(2). A person is qualified on the basis of training or experi ence if he is cert ified by a state or national professional certifying agency or has substantial experi ence in the field and is actively practicing health care services relevant to the claim. Id. § 74.402(c). To determine whether the aut hor of a report is qualified, we may look only at the four corners of the re port and the author’s curriculum vitae. Barber v. Mercer , 303 S.W.3d 786, 794 (Tex. App. ––Fort Worth 2009, no pet.) (citing Palacios , 46 S.W.3d at 878). Providers argued in their motion to dism iss that Dr. Griffin is not qualified to render an opinion excluding leukemia as an alternative cause of Joy’s death because his report does not establish that he has specialized knowledge or training in oncology. Ince responded that Dr. Griffin’ s curriculum vitae shows that he is qualified because he “regularly tr eats patients with conditions almost identical to [Joy’s]” and he opined solely that Providers’ negligence, which led to the development of Joy’s pressure sore, wa s a contributing fact or in her death, not that their negligence caused her leukemia.8 Pertinent to his qualific ations, Dr. Griffin stated in his expert report, I am a practicing physician licen sed by the States of Florida, Georgia and Virginia. I received my M.D. Degree from Medical University of South Carolina, Charleston, South Carolina, and interned at Tripler Army Medical Ce nter, Honolulu, HI. I completed my residency at Martin Army Hosp ital, Ft. Benning, Georgia. I currently hold a certificate of added qualification in geriatrics and I was a certified director of long-ter m care facilities for 6 years in the past. I am also board certified in family medicine. I served as Director of Geriatric Services, Tandem Skilled Nursing Facility in Orange Park, Florida in 1998 and from 1999–2001. I was Attending Staff in Family Practi ce and Geriatrics at Orange Park Medical Center in Orange Park, Florida from 1985–2015. I was Director of Rehabilitation Services at Cedar H ills SNF in Jacksonville, Florida from 2005–2012. I served as a Consultant in Geriatric Neuropsychiatry at Holly Point Manor Skilled Nursing Home in Orange Park, Florida in 1998. I se rved as Associate Medical Director at Consultec SNF in Orange Park, Fl orida from 2006–2012. I was Medical Director at Health Ex Rehabilitation in Orange Park, Florida from 2004–2006. I was also the Medical Consultant for Long Term Care at Community Hospic e in Jacksonville, Florida from 2006–2012. I was credentialed as an expert witness in Family Practice and Geriatrics with the Florida Board of Medicine, Tallahassee, Florida from 1991–2015. At the time of the occurrence of this case, I was acti vely engaged in the practice of geriatrics. I continue to practice actively in this specialty as of th is date. I have attached a copy of my current CV , which is incorp orated in this report by this reference. In the regular course of my medical practice I have had occasion to diagnose and treat patien ts with conditions similar to or identical to those affecting [Joy]. Specifically, during the course of my career I’ve provided medical care to thousands of patients in hospitals, nursing homes and as sisted living fac ilities. I have provided care to patien ts who, like [Joy], were suffering from type II Diabetes, congestive heart failu re, coronary artery disease, hypertension, hyperlipidemia, gast roesophageal reflux disease, arthritis, COPD, cellulitis, depressi on, atherosclerosis, abnormal liver study, impetigo, spondylosis and My ocardial Infarction, and Vitamin D Deficiency. I have written orders for the care and treatment of those patients and have supervised the execution of these orders by RN[’]s[,] LVN’s[,] and CNA’s who were assi gned to provide the9 hands-on care to my patients. Th ese orders included orders for the prevention and treatment of pressure ulcers. As my CV shows I am a published author on pressure ul cers. I am therefore intimately familiar with the standard s of care for the facilities involved in this claim as well as the RN[’]s, LVN’s and CNA’s who provid[ed] care to [Joy].

. . . . It is my opinion that the failures set forth above were the proximate cause of [Joy’s] injuries . It is my opini on that to a reasonable degree of medical probability, had Defendants, and each of them, provided a safe environm ent for [Joy], prevented her from developing pressure ulcers, [Joy’s ] life would not ha ve been subject to pain and suffering leading up to her death from said pressure ulcer. In addition had proper wo und care protocols been in place which provided for arterial and vasc ular studies to identify vascular lesions that could have been repair ed she more likely than not would not have been subject to pain and suffering from her lower extremity wound resulting in an improved qualit y of life as a result of requiring lower doses of pain medication. Specifically, when prolonged pr essure, i.e. longer than two hours is present only [sic] body part and this pressure exceeds approximately 32 mmHg, the cap illaries are compressed and the blood flow to the affected part is shut off. Capillaries are the smallest vessels that co nnect the arteries and th e veins. Capillaries have very thin walls and it is th rough the walls of these tiny blood vessels that oxygen and nutrients pass into the surrounding tissue to be utilized. All living tissue in the body requires oxygen and nutrients to stay alive and to function. When the tissues are deprived of blood flow, oxygen an d nutrients, then the death of tissue occurs, the medical term for th is is necrosis, and in layman’s terms, the tissue simply dies and decays. This is precisely what happened in this case. Unrelieved pressure on a capillary is just like placing one’s foot on a garden hose, compressing it, and shutting off the flow. This is what happened in [Joy’s] case: her capillaries were compressed; the blood flow was shut off from t he tissues; the tissues died and became necrotic or decayed. This is one process by which pressure ulcers become larger and this is what happened in this case.10 The conduct called into question is the failure by [Providers] to prevent [Joy] from developing pre ssure ulcers, maintain clinical records and provide [her] with a sa fe environment. Defendants, and each of them, breached the standard of care by allowing [Joy to] develop[] a stage III pr essure ulcer on her coccyx that became necrotic. It is abundantly clear th at Defendants fa iled to maintain clinical records, because there is no mention of [Joy] ever having a pressure ulcer on her coccyx until it was found during her hospitalization. Had Defendants, and each of them, not breached the standards of care as defined he rein, it is my opinion that to a reasonable degree of medical ce rtainty, [Joy] would not have been subjected to pain and sufferin g leading up to her death. Ince alleged in his original petition that Providers breached their duty of care in the following ways: a. Failing to observe, inte rvene, and care for [Joy]; b. Neglecting [Joy] to such a degree that she suffered multiple illnesses, pressure ulcers and death; c. Failing to provide the medical and nursi ng care reasonably required for [Joy’s] kn own conditions[; and] d. Failing to provide th e appropriate supervisi on and training to its staff and personnel that were pr oviding care to [Joy] including appropriate care related to [her ] wound treatment needs at all relevant times. He further alleged that Joy “would have been entitled to bring a suit for damages had she lived” and sought damages for past physical pain, mental anguish, disfigurement, and ph ysical impairment. Dr. Griffin’s statements th at he has treated thousands of patients with conditions similar to Joy’s before her death , that he is familiar with the standard of care involved in treating those pati ents, that he has given orders for the treatment of patients in simila r situations and supervised nurses in that treatment,11 and that he is a published author regardi ng pressure ulcers are sufficient to show his qualifications to opine regarding Ince ’s claim that Providers were allegedly negligent in their treatment of Joy as it relates to the development of the pressure ulcer. See Mem’l Hermann Healthcare Sys. v. Burrell , 230 S.W.3d 755, 759 (Tex. App.––Houston [14th Di st.] 2007, no pet). Accord ingly, we conclude and hold that the trial court did not abuse its discretion by denying Providers’ motion to dismiss as to their complaint re garding Dr. Griffin’s qualifications. Causation Providers also complained that Dr. Gr iffin’s report was inadequate on the issue of causation. Their sp ecific arguments in the trial court were that Dr. Griffin did not rule out leukemia as the cause of Joy’s death and that any statement that the pressure sore caused her death as opposed to her other injuries is ambiguous and conclusory. However, in their brief Providers argue that Dr. Griffin did not adequately explain how Jo y’s pressure ulcer was not inevitable considering that she show ed signs of skin deteriorat ion on admittance to the Senior Care Bridgeport facility or how Pr oviders’ alleged brea ch of the standard of care caused the pressu re ulcer to develop. Be cause Providers raised the report’s alleged failure to address Joy’s existing skin deterioration in their objections even though they did not articu late the complaint in the same way as they do on appeal, we will nevertheless review it. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Tex. R. App. P. 33.1(a); G.T. Leach Builders, LLC v. Sapphire V.P., L.P. , 458 S.W.3d 502, 517 n.12 (Tex. 2015).12 An expert is required to link his or her conclusions to the facts, but no “magical words” are required. Bowie Mem’l Hosp. , 79 S.W.3d at 53. Dr. Griffin’s report (1) explains how pressure ulcers form, (2) notes that Providers’ medical records do not show that they followe d any pressure ulcer prevention program while Joy was a resident and that, immedi ately upon her arrival at the hospital from Providers’ fac ility, the pressure sore was fo und by the hospital staff, and (3) states that the failure to monitor and id entify “fixable” lesions results in greater pain and suffering to patients and that Providers’ failure to provide such identification and monitoring “more likely than not” subjected Joy to greater pain and suffering, necessitatin g higher doses of pain medication. We conclude and hold that Dr. Griffin’s report is therefor e sufficient on the issu e of causation of Joy’s alleged injuries relat ed to the pressure ulcer. See, e.g. , Select Specialty Hosp.-Houston Ltd. P’ship v. Simmons , No. 01-12-00658-CV, 2013 WL 3877696, at *11 (Tex. App.––Houston [1st Dist.] July 25, 2013, no pet.) (mem. op.); Alexander v. Terrell , No. 09-07-198-CV, 2007 WL 26 83536, at *3–4 (Tex. App.–– Beaumont Sept. 13, 2007, no pet.) (mem. op.); Gallardo v. Ugarte , 145 S.W.3d 272, 280 (Tex. App.––El Pa so 2004, pet. denied).13 Accordingly, we overrule Providers’ sole issue and affirm the trial court’s order denying Providers’ motion to dismiss.
/s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J .; WALKER and MEIER, JJ. DELIVERED: June 2, 2016