Reversed and Remanded and Memorandum Opinion filed March 25, 2014.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00617

- CV

SJ MEDICAL CENTER, L LC, INDIVIDUALLY AND D/B/A ST. JOSEPH MEDICAL CENTER, HOSP ITAL PARTNERS OF AME RICA, INC., SJ MEDICAL CENTER MANAG EMENT, LLC, IASIS HE ALTHCARE CORPORATION, IASIS H EALTHCARE, LLC , Appellant s
V. REGINA WALKER, INDIV IDUALLY AND AS SURVI VING SPOUSE AND HEIR OF THADDAUS WAL KER, DECEASED AND TRACY WALKER, THADDEUS WALKER, LAR RY WALKER, REGINALD WALKER AND TIFFANY BRITTON AS C HILDREN AND HEIRS OF THADDAUS

WALKER, DECEASED , Appellee s
On Appeal from the 234th District Court

Harris County, Texas Trial Court Cause No. 2012

- 20429

M E M O R A N D U M O P I N I O N

In this health

- care liability case, the defendant hospital appeals the denial of its motion to dismiss the claims against it due to the inadequacy of the original and2

amended expert report s . We agree that the expert’s opinion of the standard of care applicable to the hospital lacks specificity and that his discussion of the hospital’s breach of that standard is conclusory. We therefore reverse and remand the case with instructions to the trial court to (a) sever the claims against the hospital from

t he remainder of the action, (b) assess and award to the hospital its reasonable attorney’s fees and costs incurred, and (c) dismiss the claims against it with prejudice.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND
After a motor

- vehicle accident on January 27, 2010, Thaddaus Walker was admitted to St. Joseph Medical Center, LLC d/b/a St. Joseph Medical Center (“SJMC”) . According to the reports of the claimants’ expert Dr. Brian Camazine, Walker’s injuries included an orbital

- floo r fracture, a broken toe, a large bruise on one thigh, and “pulmonary contusion vs pneumonia with hemoptysis.” Walker also had a history of coronary

- artery disease, hypertension, diabetes, and obesity. We will focus on Walker’s cardiac, pulmonary, and gl ycemic condition s because in the reports at issue, Dr. Camazine attempted to relate only those conditions or symptoms to the claims against SJMC.

 Cardiac condition

. At 3:45 a.m. on January 28, 2010, Walker experienced chest pain that was relieved with nit roglycerin. An EKG performed at 4:00 a.m. showed premature ventricular contractions, but cardiac

- enzyme tests performed at the same time did not suggest a myocardial infarction. Walker had a second episode of chest pain at 7:30 a.m., and again, it was re lieved with nitroglycerin. Dr. Camazine does not indicate that Walker had any further chest pain, although Walker did have an episode of tachycardia on January 29, 2010.

 Pulmonary condition

. Walker experienced sputum production, hemoptysis,3

and wheezing at unspecified times during his stay at SJMC. On January 28, 2010, he was reportedly short of breath upon exertion. At noon the next day, he had an oxygen saturation of 88% and was started on albuterol nebulizers for wheezing. When Walker was discharged later that day , he was not complaining of any shortness of breath.

 Glycemic condition

. During his two days at SJMC, Walker’s glucose level increased from 119 mg/dl upon his admission to a high of 421 mg/dl. At 11:30 a.m. on January 29, 2010, his gluco se level was 377 mg/dl, which Dr. Camazine described as being three times the normal level. Walker’s physicians started him on an aggressive insulin regimen at noon that day. Walker was discharged at around 5:00 p.m. on January 29, 2010 . D uring the ride home, he complained of shortness of breath , then stopped breathing

. Walker was transported to Memorial Hermann Hospital, where cardiac

- enzyme tests “showed an evolving myocardial infarct.” Walker died on January 31, 2010

. According to Dr. Camazine’s ex pert reports, the autopsy showed acute myocard ial infarction, severe coronary

- artery disease, and “an undiagnosed squamous cell carcinoma of the right upper lobe”; however, Dr. Camazine did not specifically identify Walker’s cause of death.
Walker’s wif

e and children sued SJMC and others , 1 then served the defendants with Dr. Camazine’s first expert report. SJMC moved to dismiss the claims against it on the grounds that the expert report was vague and conclusory , and thus, was not a good

- faith effort to fulfill the statutory requirements governing expert reports in health

- care

- liability claims

. 2 The trial court denied the motion

1 SJMC is the only defendant that is a party to this appeal.

2 SJMC also challenged Dr. Camazine’s qualifications, but does not reurge that objection on appeal.4

“for the time being” and gave Walker’s survivors a thirty

- day extension to amend the expert report to address SJMC’s objections

. After the amended expert report was served, SJMC again moved to dismiss. The trial court denied the motion.

II. S TANDARD OF R EVIEW When reviewing the trial court ’ s ruling on a challenge to an expert report , we apply the abuse

- of

- discretion standard

. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001). A trial court “‘ abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. ’” Jelinek v. Casas , 328 S.W.3d 526, 539 (Tex. 2010) (quoting Bowie Mem’l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002) (per curiam))

. When determining whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court. Wright , 79 S.W.3 d at 52.

I II

. A NALYSIS
A claimant under the Texas Medical Liability Act must serve each defendant health

- care provider with one or more expert reports and with the curriculum vitae of each expert listed in the report. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 74.351( a ) (West Supp. 2013 )

. The expert report must provide a fair summary of the expert’s opinions regarding the applicable standard of care , the manner in which the health

care provider failed to meet that standard , and the causal relationship between that failure and the injury or harm alleged. Id. § 74.351(r)(6); Wright , 79 S.W.3d at 52 ; Palacios , 46 S.W.3d at 878

– 79 . In setting forth the expert’s opinions on each of these three elements, the report must (a) inform the defendant of the specific cond uct the plaintiff has called into question , and (b) provide a basis for the trial court to conclude that the claims have merit. Palacios , 46 S.W.3d at 879

. A report does not fulfill these requirements if it merely states the expert’s conclusions about
th e standard of care, breach, and causation. Id. The expert instead “‘must explain5

the basis of his statements to link his conclusions to the facts.’” Jelinek , 328 S.W.3d at 539 (quoting Wright , 79 S.W.3d at 52).

A

. Dr. Camazine’s discussion of the standard of care lacks specificity. Dr. Camazine opine d that under the standard of care applicable to SJ MC , the hospital and its nursing staff were required to
[e] nsure that a patient is not discharged prematurely. The nursing staff, as a result of const ant contact with a patient, are in a unique position to know when a patient is stable for discharge. The nurses are usually acutely aware of a patient’s cardiac

- pulmonary status and a patient[’]s glycemic control. Although nursing staff are not in a posi tion to write the orders to discharge a patient, there are means by which the nursing staff can prevent the discharge of a patient if they feel that the patient is not ready for discharge. Such means may be as simple as contacting the attending surgeon an d voicing concerns. Other means to prevent a discharge involve contacting a nursing supervisor or even the Chief of Staff of the hospital. By no means are nurses at the mercy of following an order that would put the patient in danger. We agree with SJMC that Dr. Camazine fail ed to specify what care SJ MC was required to give. “While a ‘fair summary’ is something less than a full statement of the applicable standard of care and how it was breached, even a fair summary must set out what care was expected, but not given.” Palacios , 46 S.W.3d at 880 (quoting Palacios v. Am. Transitional Care Ctrs. of Tex., Inc. , 4 S.W.3d 857, 865 (Tex. App.

— Houston [1st Dist.] 1999) (Taft, J., dissenting)). Dr. Camazine acknowledge d that “nursing staff are not in a positio n to write the orders to discharge a patient,” but paradoxically, he opine d that SJ MC and its nursing staff nevertheless were required to “[e]nsure that a patient is not discharged prematurely.” This presupposes not only that the patient’s discharge was
p remature, but also that SJMC had some way of knowing that the discharge was6

premature, despite a physician’s orders to the contrary. Nevertheless, Dr.
Camazine does not identify any actions that SJ MC or its staff were required to take to determine whether Walker’s physicians’ discharge orders were premature , and he does not identify what “concerns” should have been voiced by SJ MC ’s staff in the absence of such a determination

. Walker’s survivors argue that this case is like San Jacinto Methodist Hospital v. McCoy , No. 14

- 12

- 00682

- CV, 2013 WL 3009318 (Tex. App.

— Houston [14th Dist.] June 13, 2013, no pet.) (mem. op.), in which this court found a standard of care sufficiently specific where the expert opined that the standard required “the operating room nur se to examine the specimen that was removed and verify that is [sic] the entire appendix. If it was not, the operating room nurse needs to bring it to the attention of the surgeon performing the operation.” 2013 WL 3009318, at *3. Thus, the expert in th at case opined that the nurse had a duty to make an independent determination based on his or her own examination of a specimen. That case is distinguishable because Dr. Camazine does not contend that SJ MC ’s staff had a similar duty to “examine,” to “veri fy,” or to perform any

act to independently determine whether discharge was appropriate.

The claimants also cite Bidiwala v. Cockerell , No. 05

- 08

- 01156

- CV, 2009 WL 866380 (Tex. App.

— Dallas Apr. 1, 2009, no pet.) (mem. op.), stating that the court in tha t case found the expert’s standard of care sufficiently specific where the expert opined that “ ‘ [s] tatements made by the patient regarding difficulty breathing should be reported and or charted and brought to the attention of the appropriate physician. ’ ” 2009 WL 866380, at *2. According to the expert in that case, if the defendant

— a consulting physician

— “‘ was present when the patient stated that she could not breathe or was having difficultly [sic] breathing, . . . then [the defendant] breached the sta ndard of care by not reporting those statements to the attending7

physicians and by not taking actions to assure that appropriate interventions were begun. ’ ” Id

. Contrary to the claimants’ characterization of the case, t he authoring court did not address the question of whether the stated standard of care was sufficiently specific; it addressed the question of whether the description of the breach was based on improper inferences. Id. Moreover, the case is factually distinguishable in that the expert in that case cited evidence that the defendant was present when the patient complained of difficulty breathing but failed to document the complaint or report it to the treating physician. Here, no one contends that
SJ MC failed to document anything or that it possessed any information that Walker’s physicians lacked

. 3

B

. Dr. Camazine’s discussion of the breach of the standard of care is conclusory. According to Dr. Camazine, SJ MC breached the standard of care by “[a]llowing Mr. Walker to be discharged prematurely despite known unresolved cardiac

- pulmonary issues and poor glycemic control.” We agree with SJMC that Dr. Camazine’s opinion that it breached the standard of care is conclusory. Dr. Camazine does not identify the “ cardiac

- pulmonary issues ” that were both “known” by SJ MC and “unresolved” at the time of Walker’s discharge. Although the only conditions he related to Walker’s death were myocardial infarction and pneumonia, he does not contend that t hese conditions were “known ”
to SJMC

. A s Dr. Camazine himself points out, even Walker’s physicians did not
detect these conditions. Dr. Camazine does not contend that SJ MC ’s staff had an independent duty to “know” or “resolve”

— that is, to diagnose and treat

— conditions t hat allegedly were not detected or sufficiently addressed by Walker’s

3 A second failure

- to

- document case cited by Walker’s survivors is factually distinguishable for the same reason

. See Gannon v. Wyche , 321 S.W.3d 881 (Tex. App.

— Houston [14th Dist.] 2010, pet. denied).8

physicians , who

—

unlike SJMC’s nursing staff

— were actually licensed to do so. Compare T EX

. O CC

. C ODE A NN . § 151.002(a)(13) (West Supp. 2013 ) (“‘ Practicing medicine ’ means the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method

. . . .”) with id. § 301.002 (“‘Professional nursing’ . . . does not include acts of medical diagnosis or the prescription of th erapeutic or corrective measures.”)
and id. § 301.004 (“[The Nursing Practice Act] does not authorize the practice of medicine

. . . . ”). Dr. Camazine’s statement about “poor glycemic control” suffers from the opposite problem: physicians did detect and treat this condition, initiating “an aggressive insulin regimen” five hours before Walker’s discharge

. Dr. Camazine does not contend that the treatment that was instituted at that time was in any way inappropriate , and he does not explain why it was premature to discharge Walker after instituting appropriate treatment

. 4
Finally, Dr. Camazine list ed some actions that SJ MC ’s staff could take “ if they feel that the patient is not ready for discharge,” but he does n ot contend that
SJ MC ’s staff knew or should have known that Walker’s discharge was premature.
In the absence of such actual or constructive knowledge, there were no “concerns” for SJ MC ’s staff to express

. Because we conclude that Dr. Camazine’s reports f all short of statutory standards on the interrelated issues of the standard of care and its breach, we sustain the sole issue presented without addressing SJMC’s arguments concerning
causation.

4 Moreover, Dr. Camazine ’s reference to “ poor glycemic control ” is a red herring, inasmuch as he d oes not relate that condition to Walker’s myocardial infarction, pneumonia, or death.9

C. SJMC is entitled to recover reasonable attorney’s fees and costs in an amount to be determined by the trial court. Because Walker’s survivors failed to produce an expert report that satisfies statutory requirements, SJ MC is entitled to recover its reasonable attorney’s fees
and costs incurred. See Lewis v. Funderburk , 253 S.W.3d 204, 207

– 08 (Tex. 2008) (citing T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 74.351 ); Hightower v. Baylor Univ. Med. Ctr. , 348 S.W.3d 512, 52 1

– 2 2 (Tex. App.

— Dallas 2011, pet. denied)

. SJ MC asked that if we determine d that the claimants f a iled to produce an expert report meeting statutory requirements, we either (1) reverse and render judgment assessing attorney’s fees and dismissing the claims against it with prejudice, or (2) reverse and remand the cause with instructions to the trial c ourt t o assess statutory attorney’s fees and dismiss the case with prejudice. Although this court can review an award of fees and costs, the initial determination of a reasonable amount falls in the first instance to the trial court. Cf. Awoniyi v. McWilliam s , 261 S.W.3d 162, 166 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) (addressing sufficiency of the evidence presented to the trial court in determining the amount of the award). W here the trial court fails to consider the matter, remand is appropriate t o allow the court to do so. See Rivenes

v. Holden , 257 S.W.3d 332, 341 (Tex. App.

— Houston [14th Dist.] 2008, pet. denied). We accordingly reverse and remand the case.

I V. C ONCLUSION Because the standard of care as stated in Dr. Camazine’s original and amended expert reports lacks specificity and his opinion that SJMC breached the standard of care is conclusory, we hold that the trial court abused its discretion in failing to assess at torney’s fees and costs and dismiss the claims against SJMC. We therefore reverse the judgment and remand the cause with instructions to the10

trial court to (a) sever the claims against SJ MC from the remainder of the action, (b) assess and award to SJ MC it s reasonable attorney’s fees and costs incurred, and (c) dismiss the c laims against SMJC with prejudice in accordance with this opinion.

/s/ Tracy Christopher Justice

Panel consists of Justices Boyce, Christopher, and Brown.