NO. 07-05-0033-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D JULY 7, 2005

______________________________ IN RE COVENANT MEDICAL CENTER AND JOHN EATON, L.V.N., RELATORS

_________________________________ FROM THE 99 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 03-522-597; HON. MACKEY K. HANCOCK, PRES IDING

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
DISSENT ING OPINIO N
In my judgment, Cord’s mistaken belief that Dr. Antognoli’s report complied wit h section 13.01(r)(6) is not a mistake of law that entitle d him to a section 13.01(g) grace period, a nd the tri al court abused i ts discre tion in g ranting t he grace period.
The principle discussed in the Schneider , 118 S .W.3d 886, and Traut , 75 S.W.3d 661, cases , that expert testimony is not required to establish the causa l relationship between a breach of the standard of care and the injuries claimed when that relationship fairly may be evaluated by the factfind er’s general experience and common sense, does not seem to me to apply to this case. According to Antognoli’ s report, this c ase is not1 As discu ssed bel ow, Antog noli’s r eport doe s not say

Cord sto pped bre athing.
2 Relatorscontende d before the trial court tha t the exp ertreport was inadequate for the additional reason th at its statement concerni ng causa tion wasa mere co nclusio n. See Bowie Mem’l Hosp. v. Wright , 79 S.W.3d 48, 53 (Tex. 2002). Relators’ mandamuspetition here doe s not makethat contention. 2 simplyabout a failure to monitor a patient whostopped br eathing. 1 The report provides three pages of detail, criticizing the nurs ing care provided Cord in several particulars, including the incorrect administration of morphine; the failure to accurately and completely documentnursing interventions and physician orders and the patien t’s respon se to the interventions and orders; the failure t o record vi tal signs, pulse oximetry readings and physical assessments; failures in communication between professional and LVN nursing staff; and the failure to determi ne and re cord the amount of morphine administered to Cord. The r eport then concludes with a statement concerning causation, by which Antognoli opines that the breaches of the nursi ng standards “directly contributed to Andrew Cord’s post-surgical complication of respiratory depression and subsequent anoxic encephal opathy.” 2
General experience and common sense manifestly would n ot enabl e a factfi nder to evaluatefairlythe relationship between Cord’s neurological damage and the breaches the report say

s “directl y contrib uted” to h is injuri es.
Cord’s contenti on that h is couns el mistakenly bel ieved An tognoli was qual ified to ad dress causatio n also ca nnot supp ort a find ing of ac cident o r mistake under Walke r because the asserted mistaken belief do es n ot match th e report. Cord’s r esponse to relators’ petition cites his counsel’s testimony that he believed a nurse isqualifi ed to state3 The complete stat ement quoted in Cord’s response, from counsel’s testimony a t th e

hearing at which the trial court granted the grace period, was: “In good faith, we didn’t need [a brain injury expert]. Obviously, in proof at the trial of the case, we have to show the extentof his injuries. And we are using his treating physicians. But, as far as showing that harm’s done if you don’ t breathe , we certa inly fel t that a n urse was qualifi ed to state that.” 3 that “harm’s d one if yo u don’t b reathe.” 3 But Antognoli ’s report does not

say that Cord stopped breathing. It does say that, according to medi cal records and deposition testimony, he was foun d with “d eep, shal low, noi sy slow r espirati ons of 16 per minu te.” It als o says he was unco nscious and unre sponsive , and tha t he was exhibi ting sei zure activity. And the report does not just say that he suffered “harm.” It says h e suffere d anoxic encephalopathy. By its definition in se ction 13.01(r)(6), an expert report is one that addresses the standard of care, the manner in which the care rendered failed to meet the standard, and “the c ausal relationship between that failure and the injury, harm, or damages

claimed .” (emphas is mine). Wh ether we read Cord’s pleadings (which al lege Cord was dia gnosed w ith “hypoxi c enceph olopathy”) or the s ection 1 3.01 exp ert report , the injury, harm or damages claimed is brain damage. Cou nsel’s stated belief that Antognoli is qualified to opine “that harm’s done if you don’t breathe” does not equate to a mistaken belief th at she is

qualifi ed to ren der the o pinionscontain ed in he r report.
In view of the injury claimed and the settled requi rements for section 13.01(d) reports, see Chisholm , 63 S.W.3d at 906; Windisch , 138 S.W.3d at 511, I cannot agree that
a belief no expert testimony on causation was required, or that counsel’s stated belief that Antognoli was qualified, constitutes the kind of mistake of law that entitled Cord to a section 13.01(g) grace per iod. Walker , 111 S.W. 3d at 64.4

I would h old th at the report omitted a required expert opinion on the issue of causation, see §13.01(r )(6); Chisholm, 63 S.W.3d at 907, and that Cord’s mistaken belief that the report complied with the statute is not a mistake of law that entitled him to a section 13.01(g) grace period. See Walker , 111 S.W. 3d at 64- 65; In re Brown , No. 07-04-0455-CV, 2005 Tex.App . LEXIS 6 84, at *6- *7 (Tex.A pp.–Amari llo Janu ary 7, 200 5, no pet . h.). Accordingly, I would grant relators their requested relief, and respectfully di ssent from the Court’s d ispositi on of the ir petiti on.

James T. Campbell Justice