COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

I HS ACQUI SI TI ON NO. 131, I NC., D/B/A/ HO RI Z ON HEA L THCARE CENTER AT EL

PASO, Appellant, v. ARTHUR CROW SON, I NDI VI DUAL L Y AND AS PERSONAL REPR ESENTATI VE OF THE ESTATE OF O L GA SHI KOSKI , AND AL L WR ONGF UL

DEATH B ENEF I CI ARI ES, Appellee

. § § § § § § § No. 08-08-00105- CV

Appea l from the 120th J udicial District Court of El Paso County , Texas (TC# 2007-3300)

O P I N I O N I HS Acquisition No. 131, I nc. d/b/a Horizon Hea thcar e Center at El Paso (Horizon) appea ls the trial court’s denial of its motion to dismiss the medical malprac tice claim underly ing this appea l. Horizon bring s two issues for revie w, complaining that the medical expert repor t failed to satisfy the require ments of Section 74.351 of the Texas Civil Practice and Remedies Code b ec au se: (1) the repor t does not demonstrate the author was qualified to rende r an expert opinion on the fac ts of this

case ; and (2) the repor

t fails to adequa

tely addre ss the standard of car e and causa tion elements of the plaintiff’s ca

use of a ction. For

the re asons that follow, we aff irm. F ACTUAL SUMMA RY Olg a Shikoski was a patient at Horizon Hea lthcare Cen t er fo l l owing surg ery to repa ir a broken hip. Arthur Crowson, Shikoski ’s s o n , v i s i t ed his mother at the fac ility on J uly 6, 2005. During his visit, Crowson witnessed his mother coug h and then beg in to choke and g asp for brea th. Crowson called Horizon’s nurses to hi s m o t h er ’s aid. The responding nurse attempted to arouseShikoski with shouts and shaking , but to no avail. Shikoski continued to g asp for brea th ever y 15-20 seconds, and she had no palpable jugula r pulse. The nurse then asked Crowson whether his mother

wa s a “D NR” patient. Crowson replied that he did not know what the term meant, and the nurse beg an looking for the paper work. When the nurse was unable to locate a DNR order in Shikoski ’s char t, the s taff beg an C PR and called 911. Shikoski wa s t ra n s ferred by ambulance to Providence Memorial Hospital’s intensive car e unit. Following a neurolog ical consultation, she was diag nosed as bra in dead. The family consente d to withdraw life suppor t, and she died shor

tly there afte r. Crowson filed a medical malprac tice suit agai n s t Horiz on on J uly 17, 2007. The petition alleg ed that the nursing staff was neg lige nt in failing to timely initiate resusc itation eff orts to resolve Shikoski ’s respiratory d i s t re s s . Pursuant to Chapter 74 of t he Tex as C ivil Practice and R emedies Code, Crowson serve d Horizon with a medical expert repor t written b y Dr

. J ames P. Br adley on November 9, 2007. On November 30, 2007, Horizon f iled a motion to dismiss the case for failure to comply with Section 74.351, arg uing that Dr

. Br adley ’s repor t was not a g ood faith eff ort to

co m p l y with the statutory require ments. The trial court denied the motion and this interlocutor y appea l follows. I n two issues for revie w, Horizon challeng es the trial court’s ruling

. I n I ssue One, it complains that the trial court abused its discretion beca use Dr. Br adley ’s repor

t fails to establish his qualifica tions to serve as an expert. I n I ssue Two, Horizon arg ues the trial court abused its discretion beca use Dr. Br adley ’s repor

t fails to adequately addre ss the standard of car e and causa tion elements of the c ause of

action. F inding no a

buse of discr etion, we a ffirm. STANDARD OF REVIEW We revie w the trial court’s ruling for an abuse of discretion. Castil lo v. August , 248 S.W .3d

-2-874, 879 (Tex. App.--E l Paso 2008, no pet.). Our revie w is limit ed to whether the trial court acte d

arbitra rily and without ref

ere nce to any g uiding rules or principles of law. Id

. W e wi ll rar ely interfe re with a trial court’s exercise of discretion and will not substitut e our judgme nt for that of the trial court. Id. I n a heath car e liability claim, a claimant shall, not later than the 120th day afte r the date the claim was filed, t ender one or more ex pert reports wit h a curriculum vi tae of eac h expert listed in t h e re p ort for eac h phy sician or heath car e provider ag ainst whom a liability claim is assert ed

. T E X . C I V . P R A C . & R E M . C O D E . AN N . § 74.351(a) (Ve rnon Supp. 2009). T h e co u rt s h all g rant a motion challeng ing the adequa cy of an expert repo rt o n l y i f i t appea rs that the repor

t does not repr esent an objective g ood faith eff ort to comply with the definition of an expert repor t. T E X . C I V . P R A C . & R E M . C O D E . AN N . § 74.351( l ). An “expert repor t” is define d as a written repor t by an expert that provides a fair summary of the expert’s opinions as of the date of the repor t reg arding applicable

s t an d ards of car e, the manner in which the car e rende red by the phy sician or heath car e provider failed to meet the standards, and the causa l rela tionship betwee n the failure and the injury , harm, or damag es cla imed. T E X . C I V . P R A C . & R E M . C O D E . AN N . § 74.351(r) (6). To constitute a g ood-fa ith eff ort, an expert repor

t must provide enoug h information to fulfill two purposes: (1) the repor t m ust inform the defe ndant of the specific conduct the plaintiff has called into question; and (2) the report must provide a basis for the trial cour

t to conclude that the claims have merit. Bow ie Mem orial Hosp. v. W right , 79 S.W .3d 48, 52 (Tex. 2002), citing Am. Transit ional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W .3d 873, 879 (Tex. 2001). A report need not marshal all of t he plainti ff’ s proof, but it must in cl u d e t he ex pert’s opinion on the s tandar d of

car e, brea ch, and causa l rela tionship. See W right , 79 S.W .3d at 52. I n deter mining whether a repor

t

-3-constitutes a g ood-fa ith eff ort, the trial court should look no further that the repor t itself since all the information re levant to the inquiry is contained within the four corne rs of the doc ument. Id. IS DR. BRADLEY QUALIFIED? I n I ssue One, Horizon contends that Dr. Br adley ’s repor t does not establish his qualifica tions to opine on the circ umstances surrounding Shikoski ’s death. First, it arg ues that Dr. Br adley is not qualified beca

use he has no experience prac ticing in a nursing home environment such as Horizon Hea lthcare Center. Second, it c omplains tha t his repor t fails to ide ntify any alterna tive experience or training which would qualify him to render a

n opinion. Section 74.402(b) provides the require ments for an expert in a suit aga i n s t a h ealth car e provider: (b) I n a suit involving a health car e liability claim ag ainst a health car e provider, a person may qualify as an expert witness on the issue of whether the health car e provide r depa

rted fr om acc epted standa rds of c are only

if the per son: (1) is prac ticing health car e in a field of prac tice that involves the same ty pe of car e or trea tment as that delivere d by the defe ndant health car e provider, if the defen dant health car e provider is an individual, at the time the testimony is g iven or was prac t icing that ty

pe of health car e at the time the claim arose ; (2) h as knowledg e of acc epted standards of car e for health ca re providers for the diag nosis, car e, or trea tment o f t he illness, injury , or condition involved in the claim; and (3) is qualified on the basis of t raining or ex perie nce to offer an expert opinion reg arding those ac cepte d standards of car e. T E X . C I V . P R A C . & R E M . C O D E AN N . § 74.402(b)( Ver non 2005); see also T E X . C I V . P R A C . & R E M . C O D E AN N . § 74.351(r) (5)( B) (Ve rnon Supp 2 0 0 9 )(de fining “expert” for the purposes of establishing the standard of car e applicable to a n o n -phy sician health car e provider in a medical expert repor t acc ording to sec. 74.402).

-4-Section 74.402 continues:

(c) I n d et ermining whether a witness is qualified on the basis of training o r experience , the court shall consider whether , at the time the claim arose or at the time the testimony

is give n, the witness: (1) is cer

tified by a licensing ag ency of one or more states of the United States or a national profe ssional cer tify ing ag ency , or has other substanti al training or experience , in the are a of health ca re r eleva nt to the claim; and (2) is actively prac ticing health car e in rende ring health care service s releva

nt to the claim. T E X . C I V . P R A C . & R E M . C O D E AN N . § 74.402(c)

. On the issue of causa tion, a perso n is qualified to provide an opinion in a medical expert repor t if that person is a p h y sician who is otherwise qualified to rende r opinions on such causa l relationship under the Texas Rules of Evidence

. See T E X . C I V . P R A C . & R E M . C O D E A N N . § 74.351(r) (5)( C). The fac t tha t a n expert is not a specialist in the particula r are a at issue does not

nece ssarily

disqualify

him from providing an expert opinion. August , 248 S.W .3d at 881. Dr. Br adley ’s re port indicates he is board ce rtified in inter nal, pulmonary , and critica l c ase medicine, and that he was prac ticing in those are as at all times rele vant to this case . He specifie s that this case “conc erns nursing car e in the context of trea ting a patient with respira tory arr est, calling a code, and efforts t o resusc itate the patient.” He c ontinues by explaining that the standa rds of car e for tre at i n g a patient i n these ty pes of circ umstances are “essentially the s ame whether the patient is on a hospital floor or in a skilled nursing fac ility .” Acc ording to the repor t, Dr. Br adley ’s hospital prac tice require s him to trea t patients in respira tory distress and patients in need of resusc itation on a daily basis. Dr. B radle y has also super

vised nurses, a

nd has instructed nur ses on t he procedure s involved in a resusc itation e ffor t. Dr. B radle y

also repr esents that he has serve d as the Direc tor of

-5-the Respiratory Care Depa rtment at the Dona Ana Communi ty College in L as Cruces, New Mexi co, and that he has taug ht nurses the techniques for airwa y manag ement and treat m en t

. Although Dr. Br adley ’s repor

t does not indicate that he has experience prac ticing specific ally in a nursing home or skilled nursing fac ility like Horizon Hea lthcare Center, his phy sician’s ex p er i en ce with respira tory distress and trea tment combined with his knowledg e of nursing prac tices establishes his qua li f ic ations under the statutory standards. Ba sed on these standards as provided by the L eg islature,

we conclude that the trial court did not abuse its discretion by concluding Dr. Br adley was qualified in this i nstance . We overrule I ssue One.

IS DR. BRADLEY’S REPORT SUF F ICIENT? I n I ssue Two, Horizon asser ts that Dr. Br adley ’s repo rt i s insufficient beca use it fails to identify the applicable standard of car e, and it does not establish the causa l connec tion betwee n the alleg ed neg lige nce a

nd Shikoski ’s dea th. An expert must addre ss the element s o f t h e standard of car e, brea ch, and causa tion in the repor t. W right , 79 S.W .3d at 52. Although the repor t need not marshal all the plaintiff’s proof, the expert may not state conclusions about elements. W right , 79 S.W .3d at 52. Rather, an expert must explain the basis of his opinions and link his conclusions to the fac ts. Earle v. Ratliff , 998 S.W .2d 882, 890 (Tex. 1999). Horizon arg ues that Dr. Br adley ’s repor t failed to identify the applicable standard of car e for

nurses in a nursing home fac ility

. This arg ument focuse s on the following passag e in Dr. Br adley ’s repor t: The nursing standards of car e for trea ting a patient with respira tory arr est, calling a code, and eff orts to resusc itate a patient like Olg a Shikoski are essentially the same whether the patient is on a hospital floor or in a skilled nursing fac ility

. -6-Horizon’s arg ument is focuse d on the doctor’s use of the word “esse ntially ” to compar e the standards

of car e for nurses in hospitals and nurses in nursing homes. Ba sed on this term, Horizon conclude s that Dr. Br adley ’s repor

t differ entiates betwee n two differ ent standards of car e, and that beca use he only discusses the “hospital” standard, and g ives no insight to the “nursing home” s t an d ar d , the repor t is defic ient on this element. We disag ree with this interpre tation. Rather than distinguishing betwee n two differ ent standards of car e, the repor t indicates that the same trea tments and proce dures

are expected of nur ses re g ardle ss of wher e the pa tient is located. Horizon also arg

ues that beca

use the repor

t does not provide a definition for the word “promptly ,” Dr. Br ad l ey ’s criticisms of the nursing staff for failure to “promptly instit ute CPR proce dures, c alling c ode and initiating a 911 for EMS support upon deter mination that the patient is in car dio-pulmonary arr est” do not provide an ad eq u at e statement of the alleg ed brea ch. The statute require s an ex pert report t o set forth the “applica ble s tandar ds of care, [ and] the m anner in which the car e rende red by the phy sician or health car e provider failed to meet the standards

. . . .” T E X . C I V . P R A C . & R E M . C O D E AN N . § 74.351(r) (6). Ba re conclusions as to the require d trea tments, methods, or proce dures will not suffice

. See Baylor Univ. Med. Cntr. v. Rosa , 240 S.W .3d 565, 570 (Tex. App--D allas 2007, pet. denied). “Whether a defe ndant breache d his or her du ty to a patient cannot be deter

mined absent spec i fi c information about what the defe ndant should have done differ ently .” See Am. Transit ional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W .3d 873, 880 (Tex. 2001)(c onstruing f

ormer A rt. 4590i). Horizon asser

ts that without a definition of “promptly ” there is no way to deter mine what a

rea sonable, and non-neg lige nt, response time would have been. Ag ain, it rea ds Dr. Br adley ’s repor t too narr owly

. Two para g raphs below the statement ref ere nced in Horizon’s brief, Dr. Bradley

-7-explains that acc ording to the medical rec ords there was an approximately eig ht-minute delay befor e

the nursing staff beg an resusc itation proce dures. He continues by stating, “[s] tandar d response time to a code within the instit ution is approximately [ t h re e] m inutes. I can see no justification for the ap p ro x i m ate [five] minute delay .” This statement, combined with Dr. Br adley ’s criticism of Horizon’s nurses for waiting to locate the patient’s DNR paper work provides both a statement of what the standard of car e was and how it was breach ed

. T h er efor e, the repor t meets t he st atutory standard on the standard of car e ele ment. I n the second part of I ssue Two, Horizon complains that Dr. Br adley ’s repor t fails to establish the causa l rela tionship betwee n the alleg ed neg lige nce and Shikoski ’s death. A causa l rela tionship is established by proof that the neg lige nt a ct or omission was a substantial fac tor in bring ing about the harm and that absent said act or omission the harm would not have occur red. Palafox v. Silvey , 247 S.W .3d 310, 317 (Tex. App--E l Paso 2007, no pet.). An expert repor t must provide information linking the defe ndant’s purported brea ch to the plaintiff’s injury

. Id. The expert must also explain the basis of his state ments to link his c onclusions to the fac ts. Id. Finally , the repor t must provide enoug h information to inform the defe nd ant of the conduct at issue and allow the trial court to conclude that the suit has merit. Id. Acc ording to Dr. Br adley ’s repor t, the nurses’ failure to respond t o S h i koski’s respira tory distress by clea

ring the airway and beginning resusc itation within app ro x imately three minutes of her choking resulted in a “prolong ed airwa y o b s tr u c ti o n w h ic h c a

used hy pox ia causing car diac arr est, which, in turn, led to fa tal anoxic injury to the brain.” The re port continues: Wit hin rea sonable medical probability had the nur ses ac ted promptly to assess and clea r the airwa

y and initiate CPR proce dures, followed by calling Code Blue and 911 for EMS support, I believe Olg a Shikoski would have survived her aspiration event

-8-without suffe ring irreve rsible brain d am age. I rre versible brain damag e is assure d

afte r [t en] minutes of no perf usion of the brain tiss ue. Ba sed on information from [Mr. Crowson], and from some corr oborating documentation from the nursing char t the nurses appea

r to have wasted at least [ t en ] m inutes befor e proper ly instit uting CPR proce dures a

nd clea ring the airw ay . The repor t thus links the alleg ed brea ch, failing to timely respond to Ms. Shikoski ’s choking , to her prolong ed lack of air, b ra i n d amage , and death. Dr. Br adley identifies the bases for his opinions as Crowson’s memory of the event and the patient’s medical rec ords; including the nurses’ notes. This report c ontains sufficient infor mation from which Horizon could conclude t hat i t was being acc used of failing to timely respond to Shikoski ’s distress via its employ ee nurses. The repor t provides Dr. Br adley ’s medical opinion as to how that specific omission lead direc tly to the patient’s death, and it identifies how those events could have been preve nted. There fore , the trial court was within its disc r etion to deter mine this repor

t satisfied the require ments of Section 74.351, and to deny Horizon Hea lthcare ’s motion to dismiss

. We overr ule I ssue Two and aff

irm the trial court’s ruling below.

Fe bruar y 24, 2010 ANN CRAWFORD McCL URE, J ustice Be fore McClure, J., R ivera , J ., and B ara jas, C.J . (Ret.) Ba raja s, C.J . (Ret.)(Sitting by Assignme nt)

-9-