## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00230-CV

PINNACLE HEALTH FACILITIES OF TEXAS III, L.P. D/B/A KELLER OAKS HEALTHCARE CENTER AND KELLER OAKS HEALTHCARE CENTER APPELLANTS

V. CRYSTAL STEELE AND ROBERT STEELE APPELLEES

---------- FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 096-273539-14

---------- 

### MEMORANDUM OPINION 1

---------- Appellants Pinnacle Health Facilities of Texas III, L.P. d/b/a Keller Oaks Healthcare Center and Kelle r Oaks Healthcare Center (collectively, Keller Oaks)

1 See Tex. R. App. P. 47.4.2 bring this interlocutory appeal 2 challenging the trial co urt’s order denying their motion to dismiss under section 74.351 ofthe civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2015 ). In a single issue, Keller Oaks claims the trial court abused its discretion by denying their motion to dismiss because Appellees Crystal Steele and Robert Steele (collectively, the Steeles) failed to serve an adequate expert report that constituted a good faith effort to comply wi th the statutory repo rt requirements in section 74.351(r)(6). See id. § 74.351(r)(6). We affirm. Background On June 13, 2013, eighty-seven year old Crystal Steele was admitted to Keller Oaks for acute rehabilitation. On July 9, 2013, sh e suffered a severe laceration to her right leg 3 while being transferred from a wheelchair into her bed. The Steeles alleged that “one of the bed rails was missing its top cap, causing a sharp edge to the bed rail to be dangerously exposed” or, alternatively, that “the wheelchair had an unsa fe sharp edge.” 4 Crystal’s laceration was treated with

2 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2015).

3 The laceration was ten centimeters by five centimeters and bled “copiously.”

4 Keller Oaks staff informed Crystal’s family that the laceration was caused by a sharp edge on a bed rail that was th e result of a missing plastic cap. According to records from the Keller Fire De partment, which was called to Keller Oaks to attend to Crystal, the lacera tion was caused by a wheelchair.3 sutures at Baylor Regional Medical Center at Grapevine. She returned to Keller Oaks and resided there until mi d to late September 2013. As a result of the laceration, Crystal became essentially wh eelchair bound. On October 19, 2013, Crystal returned to Baylor Regional Medical Center at Grapevine and was diagnosed with and treated for deep vein thrombosis in her right leg. Crystal was hosp italized at Baylor Medical Center at Grapevine until October 28, 2013, and spent the rest of her life in and out of other nursing facilities and hospitals before pa ssing away on April 9, 2015. While Crystal was still liv ing, the Steeles filed suit against Keller Oaks alleging that Keller Oaks had been neglig ent in failing to properly inspect and ensure that its equipment was safe and in failing to use reasonable care in transferring Crystal and that Keller Oaks’s negligence caused the Steeles injury, including Crystal’s past and future pain , physical impairment, mental anguish, and medical expenses and Ro bert’s past and future lo ss of consortium. The Steeles timely served expert reports an d curricula vitae by Dr. Bernard A. McGowen, M.D. and Lea Ka yla Lee, R.N., to whic h Keller Oaks objected, contending that they failed to adequately set forth the applicable standard of care for transferring Crystal from her wheelchair to her bed and failed to establish a causal link between Crystal’s injury an d Keller Oaks’s failure to maintain the wheelchair or the bed rail. After a hearing, the trial court denied Keller Oaks’s motion to dismiss.4 Expert Report Requirements and Standard of Review A health care liability claimant is required to serve defendants with an expert report and curriculum vitae of the report’s author within 120 days of filing the claim. Id. § 74.351(a). The report must be written by an expert competent to give an opinion on the matte rs in the report, must in form the defendant of the specific conduct called into question, and must provide a basis for the trial court to determine that the claim has merit. Id. §§ 74.351(r)(5)(B), (r)(6), 74.402 (West 2011); Bowie Mem’l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002). If the defendant files a motion cha llenging the adequacyof the expert report, the court shall grant the motion only if it appears to the court that the report does not represent a good faith effort to comply with the statutory requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351( l ). While the expert report “need not marshal all the plaintiff’s proof,” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 878 (Tex. 2001), it must provide a fair summary of the expert’s opinions as to the “applicable standards of care, the manner in which the care rendered bythe physician or health care provider failed to meet the standards, and the ca usal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code Ann. § 74. 351(r)(6). To qualify as a good faith effort to comply with these statutory requirements, the report must “discuss the standard of care, breach, and causation with sufficient spec ificity to inform the defendant of the5 conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that th e claims have merit.” Palacios , 46 S.W.3d at 875. A report does not fulfill this requirement if it merely states the expert’s conclusions or if it omits any of th e statutory requirements. Id. at 879. The information in the report “does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Id. When reviewing the adequacy of a report, the only information releva nt to the inquiry is the information contained within the four corners of the document. Id. at 878; see Bowie Mem’l Hosp. , 79 S.W.3d at 52. “The report serves two functions. ‘First, the report must inform the defendant of the specific conduct the plai ntiff has called into question. Second, and equally important, the report must pr ovide a basis for t he trial court to conclude that the cl aims have merit.’” Certified EMS v. Potts , 392 S.W.3d 625, 630 (Tex. 2013) (quoting Palacios , 46 S.W.3d at 879). “Areport need not cover every alleged liability theory to make the defendant aw are of the conduct that is at issue.” Id. “The expert report requirementis a threshold mechanism to dispose of claims lacking me rit,” and “[i]f a health care liability claim contains at least one viable liability th eory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous.” Id. at 631. We review a trial court’s denial 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. Subsidiary , L.P. v. Alvarez, 382 S.W.3d 619, 623–24 (Tex. App.––6 Fort Worth 2012, no pet.). A trial court abuses its discretion if the court acts without reference to an y guiding rules or principles, thatis, if the act is arbitrary or unreasonable. Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings , 134 S.W.3d 835, 838–39 (Tex. 2004). Discussion In their sole issue, Keller Oaks argu es that the trial court abused its discretion by denying their motion to di smiss the Steeles’ negligence claims because neither Dr. McGowen’s nor Nurs e Lee’s report complied with section 74.351 because the reports (1) failed to adequately provide a fair summary of their opinions as to the appl icable standard of care fo r transferring Crystal from her wheelchair to her bed and (2) failed to provide a causal relationship between Keller Oaks’s purported breach of the standard of care with respect to Crystal’s claimed injury and Keller Oaks’s alleged fa ilure to maintain the bed rail or the wheelchair. 5 We address Keller Oaks’s argume nt regarding standard of care first. Pertinent to the applicable standard of care, Nurse Lee stated in her report: 

### the appropriate standard of care fo r Keller Oaks is to have staff perform transfers safely and reason ably. When a staff member of Keller Oaks assists Ms. Steele in her transfer into bed, the staff

5 The Steeles argue that Keller Oaks ha s failed to preserve any complaint regarding the Steeles’ “improper equipmentclaim” because Keller Oaks’s motion to dismiss did not address the Steeles’ claim that Keller Oaks was negligent in failing to properly maintain their equi pment. We have examined Keller Oaks’s motion, and we conclude that it addressed the Steeles’ claim that Keller Oaks’s equipment was not pr operly maintained.7 should do so safely and in a manner that does not cause a laceration. In this ca se, that would include avoiding any object (including bed rails an d or parts of the whee lchair) that can cause lacerations. The staff at Keller Oaks deviated from this appropriate standard of care by performing the transfer in such a way that it caused a serious laceration to Ms. St eele. This is true whether the laceration was caused by the wheelchair or by the bed. Dr. McGowen stated in his report: I have reviewed Ms. Lee’s nursi ng report and she opines that the appropriate standard of care is for Keller Oaks staff to perform transfers from a wheelchair to a be d safely and reasonably. I agree that this is an appropriate stan dard of care. This includes completing the transfer without causing a laceration. This would further include avoiding any s harp objects that can inflict a laceration. Keller Oaks deviated from this standa rd of care by causing Ms. Steele to suffer a si gnificant laceration during the transfer process. I agree with Ms. Lee, RN. I am al so of the same opinions as to the standard of care and breach of the standard of care. Relying on Palacios , Keller Oaks argues that neither Dr. McGowen nor Nurse Lee complained of any “specifi c conduct” or provided any “specific information about what the defendant should have done differently.” 46 S.W.3d at 879, 880. In Palacios , Palacios suffered brain damage from an on-the-job accident. Id. at 875. While hospitalized, he fell from his bed, and his family claimed that the fall caused him to sustain further brain injury. Id. at 875–76. To establish the applicable stan dard of care, the Palacios es relied on one sentence in their expert report stating that, “Mr. Palacios had a habit of trying to undo his restraints and precautions to prevent his fall were not properly utilized.” Id. at 879–80. The Palacios es argued that the inferenc e could be made from that sentence, along with the expert’s statement that “[i]t is unclear how [Mr. Palacios]8 could untie all four of the restraints from the bed frame in under ten minutes,” that their expert believed that hospital staff shou ld have tied the re straints to the bed more securely. Id. at 880. The supreme court held t hat the statement the Pa lacioses relied upon— that precautions to preventPalacios from falling were not properly used—was not a good faith effort to provide a fair su mmary of the applicable standard of care because neither the tr ial court nor the health care provider would be able to determine if the expert believed that the standard of care required the health care provider “to have monitored Palacios more closely, restrained him more securely, or done something else entirely.” Id. The supreme court stated that identifying the standard of care is cr itical because whether a defen dant breached his or her duty to a patient cannot be determined ab sent specific information about what the defendant should hav e done differently. Id. When an expert re port opines on the standard of care and ho w it was breached, it is no t sufficient to simply state that the expert knows the standard of care and conc ludes that it was not met. Id. While a “fair summary” is something less than a full statement of the applicable standard of care a nd how it was breached, even a fair summary must set out what care was expected, but not given. Id. In a case similar to this one, Azle Manor, Inc. v. Vaden , No. 2-08-115-CV, 2008 WL 4831408, at *6–7 (T ex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.), disapproved of on other gr ounds by Certified EMS , 392 S.W.3d at 628 n.5, 630–32, this court held that a nurse’s ex pert report was sufficient as to the9 standard of care. In Vaden , Harold Vaden alleged that his wife, Joyce Vaden, a nursing home resident, slipped from a sh ower chair and fell, breaking several bones. Id. at *1. Harold further alleged that nursing home personnel did not discover Joyce’s fractures until severa l days after the fall and that Joyce ultimately died from her injuries. Id

. Emergency room records indicated that Joyce fell from a bedside commode, but nursing home re cords indicated that she fe ll from a shower chair. Id. at *3. The nurse’s expert report stated that the use of restraints would have “greatly reduced” Joyce’s ch ances of falling from eit her a commode or a shower chair. Id. In holding that the report was not conclusory or speculative, this court concluded that the report satisfied “the tw o key requirements ofan expert report identified by the supreme court in Palacios by (1) informing the Appellants of the specific conduct Vaden has called into question—namely, the failure of Appellants’ staff to prevent Joyce’s fall from the shower chai r—and (2) providing a basis for the trial court to conclu de the claims are meritorious.” Id. at *7 (citing Palacios , 46 S.W.3d at 875). Unlike the expert report in Palacios , the expert reports in this case are not conclusory and do not require us to infe r what each expert believes to be the applicable standard of care. Like the expert report in Vaden , the reports in this case (1) contain sufficient information to inform Keller Oaks of the specific conduct the Steeles have called into ques tion with respect to their claim that Keller Oaks was negligent in not using reasonable care when transferring Crystal10 from her wheelchair to her bed, namely, Ke ller Oaks’s failure to safely transfer Crystal from a wheelchair to a bed with out laceration by avoiding any sharp objects that could cause a laceration and (2) provide a sufficient basis for the trial court to conclude that the claims are meritorious. See id. (citing Palacios , 46 S.W.3d at 875, 879). Therefore, the re ports constitute a good faith effort to comply with the statutory re quirements with respect to th is theory of liability. See Palacios , 46 S.W.3d at 875, 879. Accordingl y, we conclude and hold that the trial court did not abuse its discretion bydenying Keller Oaks’s motion to dismiss as to their complaint regarding Dr. McGowe n’s and Nurse Lee’s alleged failure to state the applicable standard of care wi th respect to Keller Oaks’s failure to use reasonable care when transferring Crystal from a wheelchair to a bed. Because we have determined th at the expert reports adequately addressed the standard of care with re spect to the Steeles’ claim that Keller Oaks was negligent by not using reasonable care when tr ansferring Crystal from her wheelchair to her bed, we need not decide whether the expert reports adequately addressed causati on as to the Steeles’ clai m that Keller Oaks was negligent in failing to insp ect and maintain the wheelchair or the bed rail. See Certified EMS , 392 S.W.3d at 630–31 (concluding that expert report that satisfies statutory requirements as to one theory of liability enti tles claimant to proceed with suit against physician or health care provider); Harlingen Med. Ctr., L.P. v. Andrade , Nos. 13-14-0700-CV, 13-15-0119-CV, 2016 WL 1613297, at *3–4 (Tex. App.—Corpus Christi Apr. 21, 2016, no pet. h.) (mem. op.) (applying Certified11 EMS and declining to addres s alternative negligence theory of liability after holding that report was adequate as to one); Mendez-Martinez v. Carmona , No. 08-15-00265-CV, 2016 WL 1613422, at *7 n.1 (Tex . App.—El Paso Apr. 22, 2016, no pet. h.) (same); Nexion Health at Garland, Inc. v. Townsend , No. 05-15- 00153-CV, 2015 WL 36 46773, at *8 (Tex. App.—D allas June 12, 2015, pet. denied) (mem. op.) (same); see also Tex. R. App. P. 47.1. Accordingly, we overrule Keller Oaks ’s sole issue and affirm the trial court’s order denying Keller Oaks’s motion to dismiss.

/s/ Anne Gardner ANNE GARDNER JUSTICE PANEL: GARDNER, WALK ER, and GABRIEL, JJ. DELIVERED: June 9, 2016