NO. 13

- 14

- 00696

- CV IN THE COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS

______________________________________________________

COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. D/B/A VALLEY REGIONAL MEDICAL CENTER, Appellant vs. REYNALDO RAMIREZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF YOLAND A IRIS FLORES AND AS

REPRESENTATIVE OF ALL WRONGFUL DEATH BENEFICIARIES AND AS NEXT FRIEND O F R.R.R. AND R.J.R., MINORS , Appellee

___________________________________________________ 

# APPELLANT’ S RESPONSE TO APPELLEE’S SUR
- REPLY BRIEF

_________________________________________________________

Thomas F. Nye State Bar No. 15154025 Robert W. Clore State Bar No. 24012436 Gault, Nye & Quintana, LLP 717 Everhart Rd., Suite A Corpus Christi, TX 78411 361-654-7008 361-654-7001 Fax
ATTORNEYS FOR APPELLANT 

## Appellant Request for Oral Argument ACCEPTED 13-14-00696-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 6/15/2015 4:15:33 PM CECILE FOY GSANGER

CLERKii TABLE OF CONTENTS Table of Contents

................................ ................................ ................................ ...... ii Table of Authorities

................................ ................................ ................................ . iii
I. Section 74.402(b)(1) Applies and Nurse Spears is Unqualified

................ 1
II. Plaintiff Cannot Explain How Nurse Spear s Has Experience in the Relevant Context

................................ ................................ .............. 5
III. Nurse Spears’ Vague Discussion of the Standard of Care is Inadequate

................................ ................................ ................................ ... 6
IV. Plaintiff’s Sur

- Reply Further Illustrates the Disconnect between Nurse Spears’ and Dr. Harlass’ Reports

................................ ..................... 9
V. The Fact that the Nurses Do Not Have the Authority to Permit or Not Permit Transfer Renders D r . Harlass’ Opinion on Causation Inadequate

................................ ................................ ................ 11 CONCLUSION AND PRAYER

................................ ................................ ............. 12 Rule 9.4(i) Certification

................................ ................................ ........................... 13 CERTIFICATE OF SERVICE

................................ ................................ ................ 13iii Table of Authorities Cases American Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873 (Tex. 2001)

................................ ................................ ............. 7 Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)

................................ ...... 10 Broders v. Heise, 924 S.W.2d 148 (Tex. 1996)

................................ ......................... 5 C

hristus Health Southeast Tex. v. Broussard, 267 S.W.3 531 (Tex. App.

— Beaumont 2008, no pet.)

................................ ................................ ...... 5 Christus Spohn Health Sys. Corp. v. Castro, No. 13

- 13

- 00302

- CV, 2013 WL 6576041 (Tex. App.

— Corpus Christi 2013, no pet.) (mem. op.)

................................ ................................ ................................ 2 , 4, 6 Christus Spohn Health Sys. Corp. v. Johnston, 13

- 12

- 00778

- CV, 2013 WL 2298471 (Tex. App.

— Corpus Christi, May 23, 2013, no pet.)

................................ ................................ ................................ .................. 5 Co lumbia North Hills Hosp. Subsidiary, L.P. v. Alvarez, No. 02

- 10

- 00342

- CV, 2011 WL 3211239 (Tex. App.

— Fort Worth, July 28, 2011, no pet.)

................................ ................................ ............................. 2 Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006)

................................ ......... 3 Garza v. DeLeon, No. 13

- 13

- 00342

- CV, 2013 WL 6730177 (Tex. App.

— Corpus Christi, Dec. 19, 2013, no pet.)

................................ ............... 3 Grynberg v. M

- I L.L.C., 398 S.W.3d 864 (Tex. App.

— Corpus Christi 2012, no pet.)

................................ ................................ ................................ ... 3 Haddad v. Marroquin , No. 13

- 07

- 014

- CV, 2007 WL 2429183 (Tex. App.

— Corpus Christi, Aug. 29, 2007, pet. denied )

................................ ........ 3 Health Care Un limited, Inc. v. Villarreal, No. 13

- 09

- 00456

- CV, 2010 WL 468061 (Tex. App.

— Corpus Christi, Feb. 11, 2012, no pet.)

................................ ................................ ................................ .................. 2iv Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex. Ap p.

— San Antonio 2004, no pet.)

................................ ................................ ................... 11 Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740 (Tex. App.

— Houston [14th Dist.] 2011, no pet.)

................................ ................................ . 8 Murphy v. Mendoza, 234 S.W.3d 23 (Tex. App.

— El Paso 2007, no pet.)

................................ ................................ ................................ ................ 11 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (Tex. App.

— Beaumont 2011, no pet. )

................................ .......................... 4, 5, 8, 9 Sa linas v. Kristensen, No. 13

- 08

- 00110

- CV, 2009 WL 4263107 (Tex. App.

— Corpus Christi, Nov. 25, 2009, pet. denied)

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

................................ ................ 12 T

wist v. Flores , 13

- 03

- 171

- CV, WL 1919505 (Tex. App.

— Corpus Christi, May 13, 2010, no pet.)

................................ ................................ ........ 2 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (Tex. App.

— Fort Worth, 2011, no pet.)

................................ ................................ ................................ ... 4 Wilcox v. Montalvo, No. 13

- 10

- 611

- CV, 2011 WL 1443689 (Tex. App.

— Corpus Christi, Apr. 14, 2011, no pet.)

................................ ............... 8

S TATUTES AND R ULES T EX
. H EALTH & S AFETY C ODE § 241. 027(b)

................................ .......................... 6, 9 25 T EX
. A DMIN
. C ODE § 133.44

................................ ................................ ............. 6, 9 T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.402(b)

................................ ............................... 5 T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.402(b)(1)

................................ .......... 1, 2, 3, 4, 5 T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.402(b)(2)(3)

................................ ...................... 5NO. 13

- 14

- 00696

- CV IN THE COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS

___________________________________________________ ___ COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. D/B/A VALLEY REGIONAL MEDICAL CENTER, Appellant vs. REYNALDO RAMIREZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF YOLAND A IRIS FLORES AND AS

REPRESENTATIVE OF ALL WRONGFUL DEATH BENEFICIARIES AND AS NEXT FRIEND OF R.R.R. AND R.J.R., MINORS , Appellee

___________________________________________________ 

# APPELLANT’ S RESPONSE TO APPELLEE’S SUR
- REPLY BRIEF

_________________________________________________________ TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
I. Section 74. 402(b)(1) Applies and Nurse Spears is Unqualified . Plaintiff , in the Sur

- Reply Brief, does not even attempt to argue that Nurse Spears was “practicing health care in a field of practice that involves the sa me type of care or treatment ” as the nurses in this case at the time Plaintiff’s claim arose or at the time she prepared her report. T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.402(b)(1). Indeed, since Nurse Spears was practicing in hematology and oncology, as2 opposed to labor and delivery , no argument can be made that Nurse Spears satisfies this requirement

. Instead, Plaintiff maintains that S ection 74. 402(b)(1) does not apply because the hospital is not an individual. This would be a compelling a rgument if Plaintiff’s suit were based solely on t he direct acts of the hospital, and not, as it is, on the vicarious acts of the individual nurses at the hospital. As this Court has implicitly recogni zed, a vicarious liability action against a hospital based on the acts of individual nurses implicates Section 74.402(b )(1)

. See Christus Spohn Health Sys. Corp. v. Castro , No . 13

– 13

– 00302

– CV, 2013 WL 6576041 , at *4

- 5 (Tex. App.

— Corpus Christi Dec. 12, 2013, no pet.) (mem. op.); Health Care Unlimited, Inc. v. Villarreal , No. 13

- 09

- 00456

- CV, 2010 WL 468061, at *3

- 5 (Tex. App.

— Co rpus Christi Feb. 21, 2010, no pet.); see also Columbia North Hills Hosp. Subsidiary, L.P. v. Alvarez , No. 02

– 10

– 00342

– CV, 2011 WL 3211239, at *3

- 5 (Tex. App.

— Fort Worth July 28, 2011, no pet.) (mem. op.) (applying Section 74.402(b)(1) in case involving, among other claims, a vicarious claim against hospital nurses)

. Plaintiff suggests, without referencing any authority, that since this Court did not explain why it was applying Section 74.402(b)(1) , its authority should be disregarded in favor of opinions from oth er courts of ap peals. In fact, this Court is bound by its own precede nt, and not opinions from sister courts of appeals. Twist3 v. Flores , No. 13

- 03

- 171

- CV, 2010 WL 1919505, at *4 (Tex. App.

— Corpus Christi May 13, 2010, no pet.) (noting “we are bound by our own precedent ” ) ; Sal inas v. Kristensen , No. 13

- 08

- 00110

- CV, 2009 WL 4263107, at *4 (Tex. App.

— Corpus Christi Nov. 25, 2009, pet. denied) (“ We, thus, are bound by our precedent ”); Haddad v. Marroquin , No. 13

- 07

- 014

- CV, 2007 WL 2429183, at *6 (T ex. App.

— Corpus Christi Aug. 29, 2007 , pet. denied ) (“ we are compel led to follow our own precedent”); s ee also Fiess v. State Farm Lloyds , 202 S.W.3d 744, 749

– 50 (Tex. 2006) (holding that courts are “bound to consider the principles of stare decisis” and that “stare decisis has its greatest force in cases c onstruing statutes....”); Garza v. Deleon , No. 13

- 13

- 00342

- CV, 2013 WL 6730177, at *5 (Tex. App.

— Corpus Christi Dec. 19, 2013 , no pet. ) (“as a decision of one of our sister court s it is not binding authority”); Grynberg v. M

- I L.L.C ., 398 S.W.3d 864,
871

- 72 (Tex. App.

— Corpus Christi 2012 , no pet.) (“ Chaves is from the Houston First District Court of Appeals and Norwood is from the Amarillo Court of Appeals, both sister courts, and we are not bound to follow a decision of another court of appeals.”). T here is no reason to think, and Plaintiff advances none, that this Court was unaware of the language of Section 74.402(b)(1) when it applied it
to vicarious liability cases against hospitals invol vi ng the conduct of individual

nurses .4 Further, t his Co urt ’s application of Section 74.402(b)(1) in Castro and Villa r real is a reasonable construction of the statute . When a plaintiff’s claims concern the conduct of individual nurses, as opposed to direct conduct of the hospital, it logically follows that the expert should be practicing in a field that involves the same type of care or treatment as the individual nur ses. A case relied on by Plaintiff, TTHR, L.P. v. Coffman , 338 S.W.3d 103, 112 (Tex. App.

— Fort Worth 2011, no pet.), demonstrates the distinction between a direct claim against a hospital and a vicarious claim based on the conduct of individual nurses. In Coffman , the court of appeals declined to apply Sectio n 74.402(b) (1) when a patient brought a direct claim against a hospital for improperly releasing her medical records

. Unlike Coffman , Plaintiff’s claim in this case is based on the care administered by individual nurses, and not a general hospital standard of care involving the release of medical records, and as such triggers application of Section 74.402(b)(1). Further, the language i n Re naissance Healthcare Systems, Inc. v. Swan , 343 S.W.3d 571 (Tex. App.

— Beaumont 2011, no pet.) , stati n g that Section 74.402(b)(1) does not apply to a hospital should not , as Plaintiff urges, be applied “globally” to both vicari ous and direct liability c laims

. Swan found Section 74.402(b)(1) inapplicable to the hospital in the specific context of the direct negligent credentialing claim against the hospital, and not the vicarious claim.5 Swan , 343 S.W.3d at 588

- 89 ( rejecting the a ssertion that an expert was un qualified because he was not involved with a hospital quality assurance committee, which would pertain to the negligent credentialing claim) ; see also Christus Spohn Health Sys. Corp. v. Johnston , No. 13

- 12

- 00778

- CV, 2013 WL 2298471, at *1 (Tex. App.

— Corpus Christi May 23, 2013 , no pet. ) (noting a negligent credentialing claim is a direct liability claim)

. 1 Because Section 74.402(b)(1) applies to the vicarious liability claims against the Hospital based on the conduct of its individual nurses, Nurse Spears was required , at the time the Plaintiff’s claim arose or at the time she prepared her report, to be practicing in a field of practice involving the same type of care as the labor an d delivery nurs es. She was not, and Plaintiff do es not suggest that she was. Accordingly, she is unqualified to opine on the standard of care in this case.
II. Plaintiff Cannot Explain How Nurse Spears Has Expe rience in the Relevant Context. Nurse Spears is also unqualified because her CV and report fail to explain how , in the specific context of R.N.s working in labor and delivery, she has the specific knowledge, skill, experience, traini ng, or education to opine in this case.
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.402(b)(2),(3); Broders v. Heise , 924 S.W.2d 148, 153 (Tex. 1996 ). Plaintiff states without explanation that “ Nurse Spears

1 Plaintiff’s reference to Christus Health Southeast Tex. v. Broussard , 267 S.W.3d 531, 535 (Tex. App.

— Beaumont 2008, no pet.) should be disregarded because the court did not address the q ualifications of an expert; thus, the language discussing Section 74.402(b) is dicta

.6 connects her training, experience, and certifications, to the relevant context (emergent care and Labor and Delivery).” Yet, the record reveals otherwise. Nurse Spears has no R.N. experience in labor and delivery , yet her opinions are direct ed at R.N. s in labor and delivery . Her only experience in labor and delivery was nine years ago as an L.V.N., where she acted under the direction of an
R.N. (CR 124) . Nurse Spears does not explain how being under the direction of R.N.s in labor and delivery nine years ago now qualifies her to opine conc erning their standard of care. Thus, Plaintiff’s attempt to distinguish Christus Spohn Health Sys. Corp. v.
Castro misses the mark. As in Castro , Nurse Spears does not have “relevant experience in . . . the relevant field of practice” in the same context as the care provided by the nurses. Id . at *4. Accordingly , Nurse Spears’ report, the only report offered on the standard of care or breach of the standard of care, does not satisfy the criteria of the TMLA and Plaintiff’s health care liability claim must be dismissed.
III. Nurse Spears’ Vague Discussion of the Standard of Care is Inadequate. Plaintiff’s Sur

- Reply Brief does not dispute that Texas law precludes the nurses from ordering patient transfers. Tex. Health & Saf ety Code § 241.027(b) ; see also 25 Tex. Admin. Code § 133.44

. Seemingly recognizing this fact , the Sur

-7 Reply Brief drops di scussion of the standard of care as the nurses refusing to permit transfer, which obviously is not the standard under Texas law. Plaintiff now focuses on Nurse Spears ’ statement that “the VRMC nurses should have advocated for her to remain at VRMC ” (CR 1 78). T his bare conclusion does not give sufficient factual detail to satisfy the requirements of the
TMLA. The Texas Supreme Court instructs that “[w] hether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.” American Transitional Care Ctrs. of Tex., Inc. v. Palacios , 4 6 S.W.3d 873, 880 (Tex. 2001). There is no specific information here. Plaintiff’s Sur

- Reply does not identify where Nurse S pears explain s what the nurses were required to do to advocate ag ainst the transfer

. In fact, Nurse Spears does not explain to whom the nurses were required to advocate, whether they were to follow a chain of command in doing so, nor w hat factors were the y were required to advocate. To the extent Nurse Spears’ report can be read as stating that the standard of

care required the nurses to avoid facilitat ing or permittin g the transfer, and even ignoring the fact that the nurses could not, as a matter of la w, permit the transfer, there is likewise no fact ual explanation as to what the n u rses were specifically8 required to do. There is no discussion of how the nurses were to avoid facilitating the transfer, whether they were required to refuse the doctor’s orders, nor whether they were required to follow a chain of command

. Nurse Spears ’ report does not address any of these issues , and neither does Plaintiff’ s Sur

- Reply Brief

. Plain tiff does not distinguish the Kingwood and Wilcox opinions, where , as here, the expert articulated a conclusory standard of care without explaining how it should have been accomp lished

. Kingwood Pines Hosp., LLC v. Gomez , 362 S.W.3d 740, 748 (Tex. App.

– Houston [14 Dist.] 2011, no pet.) (plaintiff’s expert reports were inadequate when they only stated a “conclusion that appellants did not provide a safe and secure environment for V.G., but [did] not specify how this should have been accomplished.”); Wilcox v. Montalv o , No. 13

- 10

- 611

- CV, 2011 WL 1443689, at *1, *4 (Tex. App.

— Corpus Christi Apr. 14, 2011, no pet.) (expert report conclusory and inadequate in describing the standard of care in making sure to take proper precautions in transferring patients from wheelchair s to beds, because “the report [did] not mention what precautions should be taken to properly transfer a patient”). Meanwhile, t he Swan opinion relied upon by P laintiff illustrates the type of factual specificity missing in this case

. In Swan , the expert explained the factu al details of the nurses advocating for different treatment : A qualified PACU nurse also has the obligation to act as the patient's advocate. In the presence of a clinically unstable patient[,][a] PACU9 nurse should have insisted that either Dr. Baker or Dr. McHargue come to and remain at the bedside. In addition, should the anesthesiologist or neurosurgeon fail to institute the right treatment[,] ... the nurse has not only the right but the obligation to rapidly institute the cha in of command. This requires the involvement of a qualified supervisor and involves the summoning of another qualified anesthesiologist and surgeon to provide the appropriate care of the patient. Swan , 343 S.W.3d at 576. This is the type of factual spec ificity missing from Nurse Spears’ report.
Because Nurse Spears’ conclusions on the standard of care do not satisfy the TMLA’s most basic requirements , Plaintiff’s health care liability claim must be dismissed with prejudice

. IV. Plaintiff’s Sur
- Reply Further Illustrates the Disconnect between Nurse Spears’ and Dr. Harlass’ Reports. As discussed in Appellant’s Briefing, Dr. Harlass’ only opinion on the causal link as to Valley Regional is that its personnel’s “permitting and fac ilitating the transfer” caused Mrs. Flores’ death ( CR 114)

. In the Sur

- Reply Brief, Plaintiff does not dispute that Texas law does not allow nurses to transfer patients between hospitals. T EX
. H EALTH & S AFETY C O DE § 241.027(b) ; see also 25 Tex. Admin. Code § 133.44. As such, Nurse Spears’ statement that the nurses breached the standard of care by permitting the transfer cannot, as a matter of law, satisfy the requirements of the statute.10 What is left from Dr. Harlass’ report on causation is facilitat ing the transfer. Again, Nurse Spears’ report does not actually assert that the standard of care is for the nurses to refuse to facilitate transfer, and this Court cannot infer that that is what she meant to say. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 , 52 (Tex.2002). Even if Nurse Spears’ report could be read as requiring the nurses to refuse to facilitate transfer, as described above, any such statement is impermissibly conclusory. Dr. Harlass never opined that the nurses’ failure to advocate against the transfer was the cause of Mrs. Flores’s death. Rather, the only standard of care common to both Nurse Spears’ and Dr. Harlass’ report is that the nu rses permitted or facilitated the transfer. Nurse Spears’ statements on standard of care and breach simply do not correspond to Dr. Harlass’ opinions on causation. Compare (CR 171) ( Dr. Harlass opines that Valley Regional personnel caused Mrs. Flores’ death by “permitting and facilitating the tr ansfer ” ) with (CR 120) ( Nurse Spears opines that “[t]he
VRM C nurses should have advocated for her to remain at VRMC rather than permitting and facilitating h er transfer. . . . .”). The result is that Dr. Harlass does not opine that any of Nurse Spears’ articulated breaches of the standard of care caused Mrs. Flor es’ death. Accordingly, Dr. Harlass’ report fails to satisfy the11 TMLA’s causal link requirement, and the trial court abused its discretion in denying Valley Regional’s motion to dismiss.
V. The Fact that the Nurses Do Not Have the Authority to Permit or N ot Permit Transfer Renders Dr. Harlass’ Opinion on Causation Inadequate. As noted in Appellant’s Briefing , the care rendered by the Hospital’s nurses could not be a cause as a matter of law because it wa s the physician s’ decision alone to order the transfer. While Plaintiff responds to this argument as to Nurse Spears’ opinions on the standard of care, Plaintiff offers no response that this fact renders Dr. Harlass’ causation opinion inadequate. Plaintiff’s reports are impermissibly speculative because the nurses are legally incapable of transferring a patient and therefore could not have caused the death by permitting or facilitating the transfer , or in failing to advocate against the transfer

. Murphy v. Mendoza , 234 S .W.3d 23, 28 (Tex. App.

— El Paso 2007, no pet.) (holding that expert’s opinion was speculative and conclusory where it was not supported by the facts and the expert relied upon an assumption); Hutchinson v. Montemayor , 144 S.W.3d 614, 618 (Tex. App.

— San Ant onio 2004, no pet.) (liability in a medical malpractice suit cannot be made to turn upon speculation or conjecture). That is, even if the nurses had not permitted or facilitated the transfer, and had advocated against it, it was still the physician’s dec i sion to transfer the patient. Given this fact, Dr. Harlass’ opinion on causation does not “provide a12 basis for the trial court to conclude that the plaintiff’s claims have merit.” Scoresby v. Santillan , 346 S.W.3d 546, 556 (Tex. 2011). Plaintiff’s expert reports fail individually and collectively to satisfy the basic requirements of the Texas Medical Liability Act. Accordingly, this Court should reverse the trial court’s denial of Valley Regional’s motion to dismiss. WHEREFORE, PREMIS ES CONSIDERED, Defendant Valley Regional Medical Center finds nothing in the Appellee’s Brief that diminishes its right to relief, and reiterates the prayer in Appellant’s Brief with even greater confidence.

Respectfully submitted,

__ /s/Thomas F. Nye

____________ Thomas F. Nye State Bar No. 15154025 Robert W. Clore State Bar No. 24012436 Gault, Nye & Quintana, L.L.P. 717 Everhart Road, Suite A Corpus Christi, Texas 78411 (361) 654

- 7008 (361) 654

- 7001 Telecopier
ATTORNEYS FOR APPELLANT, VALLEY REGIONAL MEDICAL CENTER13 Rule 9.4(i) Certification In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is 2,563

.

__ /s/Thomas F. Nye

____________ Thomas F. Nye

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to counsel, as listed below, on this the 15th of June , 2015 , in accordance with the Texas Rules of Civil Procedure.

Walter L. Boyaki

- wboyaki@aol.com Gaines West

– gaines.west@westwebblaw.com

VIA E
- FILING

__ /s/Thomas F. Nye

____________ Thomas F. Nye