Oswald & Pamela Lookshin v. Bernard H. Feldman, MD

Opinion issued October 9, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00105-CV

____________

OSWALD LOOKSHIN AND PAMELA LOOKSHIN , Appellant s

V.

BERNARD FELDMAN, M.D. , Appellee

On Appeal from the 157th Judicial District Court

Harris County, Texas

Trial Court Cause No. 2002-07665

O P I N I O N

Appellants, Oswald and Pamela Lookshin, challenge the trial court’s order

dismissing their medical malpractice lawsuit against appellee, Dr. Bernard H.

Feldman, because of their failure to provide an expert report, as required by the

former Texas Medical Liability and Insurance Improvement Act (the Act).

In their

sole issue, appellants contend that, because their action was based solely on Dr.

Feldman’s alleged failure to disclose the risks and hazards involved in a surgical

procedure, they were not required to file an expert report pursuant to subsection

13.01(d) of the Act.

We affirm and award Dr. Feldman his appellate attorneys’ fees as just damages. Facts and Procedural Background

In December 1999, Dr. Feldman performed a transurethral resection of Oswald

Lookshin’s prostrate. In their original petition, appellants alleged that Dr. Feldman

was negligent in failing to properly (1) inform Mr. Lookshin of the “possible adverse

consequences” of the surgery, (2) perform the surgery, and (3) treat Lookshin

following the surgery. As a result of Dr. Feldman’s alleged acts and omissions, Mr.

Lookshin asserted that he subsequently experienced pain when passing urine and was

unable to engage in sexual activity with his wife. Appellants sought recovery of

compensatory and exemplary damages totaling more than $2 million. Dr. Feldman

answered the lawsuit and generally denied appellants’ claims.

Dr. Feldman subsequently filed a motion to dismiss appellants’ lawsuit because

of their failure to file an expert report by the 180th day after they filed suit, as

required by subsection 13.01(d). Appellants then filed an amended petition, alleging

only a single cause of action against Dr. Feldman for his failure to personally disclose

the risks and hazards of the surgery to Mr. Lookshin. Appellants also filed a response

to Dr. Feldman’s motion, arguing that, because they were no longer alleging that Dr.

Feldman negligently operated on or treated Looksin, and because Dr. Feldman did not

personally inform Lookshin of the possible risks and side effects of the surgery,

appellants were not required to file an expert report.

Following a hearing,

the trial court granted Dr. Feldman’s motion and

dismissed appellants’ claims, in their entirety, with prejudice.

Expert Report

In their sole issue, appellants argue that the trial court erred in dismissing their

claims because an expert report is not required in a medical malpractice case based

solely on a cause of action for a physician’s alleged failure to disclose the risks and

hazards of a surgical procedure.

Standard of Review

We review a trial court’s dismissal of a healthcare liability claim under section

13.01 of the Act using an abuse of discretion standard. Powers v. Mem’l Hermann

Hosp. Sys. , 81 S.W.3d 463, 465 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

A trial court abuses its discretion if it acts arbitrarily or unreasonably or without

reference to guiding rules or principles. Id .

Expert Report Requirement

In his motion to dismiss appellants’ claims, Dr. Feldman relied chiefly on

subsection 13.01(d) of the Act, which read, in relevant part, as follows:

Not later than the later of the 180th day after the date on which a health

care liability claim is filed . . . the claimant shall , for each physician or

health care provider against whom a claim is asserted:

(1)furnish to counsel for each physician or health care provider one

or more expert reports, with a curriculum vitae of each expert

listed in the report; or

(2)voluntarily nonsuit the action against the physician or health care

provider.

As penalties for a claimant’s non-compliance with this subsection, subsection

13.01(e) of the Act provided as follows:

If a claimant has failed to, for any defendant physician or healthcare

provider, to comply with Subsection (d) of this section within the time

required, the court shall, on the motion of the affected physician or

health care provider, enter an order awarding as sanctions against the

claimant or the claimant’s attorney:

(1)the reasonable attorney’s fees and costs of court incurred by that

defendant;

(2)the forfeiture of any cost bond respecting the claimant’s claim

against that defendant to the extent necessary to pay the award;

and

(3)the dismissal of the action of the claimant against that defendant

with prejudice to the claim’s refiling.

It is undisputed that appellants filed no expert report within 180 days of filing their

lawsuit. Thus, their claims were subject to dismissal with prejudice.

Appellants direct our attention to subsection 13.01(j) of the Act, which

provided that the filing of an expert report was not required “regarding any issue

other than an issue relating to liability or causation.”

They argue that, in an action

based on a physician’s failure to disclose the risks and hazards of a surgical

procedure, “the appropriate standard of care, as a matter of law, has already been

predetermined by the Texas Medical Disclosure Panel” (the Panel),

and thus, “no

expert’s report is required of a plaintiff pursuing such a case.” In support of their

argument, they quote obiter dictum from the Texas Supreme Court that the Panel

“will eliminate the need for expert testimony regarding the materiality of the risk in

most cases.” Peterson v. Shields , 652 S.W.2d 929, 931 (Tex. 1983).

They note that,

in a failure to disclose suit, “the only theory on which recovery may be obtained is

that of negligence in failing to disclose the risks or hazards that could have influenced

a reasonable person in making a decision to give or withhold consent.”

Appellants

also note that “[b]efore a patient . . . gives consent to any medical care or surgical

procedure . . . the physician or health care provider shall disclose to the patient . . . the

risks and hazards involved in that kind of care or procedure.”

Finally, appellants

direct our attention to subsection 6.07(a)(2) of the Act, which provided that, in such

a case, the

failure to disclose the risks and hazards involved in any medical care or

surgical procedure required to be disclosed . . . shall be admissible in

evidence and shall create a rebuttable presumption of a negligent failure

to conform to the duty of disclosure . . . and this presumption shall be

included in the charge to the jury . . . .

Appellants argue that, because Dr. Feldman did not personally provide a

written disclosure to them, listing the risks and hazards of the surgical procedure, as

identified by the Panel, they would have been entitled to the rebuttable presumption

of subsection 6.07(a)(2) “without the necessity of any expert testimony.” Appellants

conclude that the requirement of an expert report under these circumstances would

result in “the complete destruction and vaporization” of the work of the Panel and the

“defacto destruction of all of the informed consent provisions of [the Act].”

Appellants’ arguments are without merit. First, appellants do not contend that

no disclosures of the risks or hazards of the procedure were made to them before the

surgery. Rather, they assert only that Dr. Feldman did not personally make such

disclosures. In an affidavit filed with the trial court, Mr. Lookshin states that, on the

morning of his surgery, “I did not have any conversations with Dr. Feldman. He was

no where [sic] around when I hurriedly filled out and signed the many pages of

paperwork required for me to be admitted into the hospital as a patient.” Dr. Feldman

does not concede that no disclosures were made to appellants before the surgery at

issue. In their briefing to this Court, appellants acknowledge that “a written

disclosure document” was presented to Mr. Lookshin by an employee of the hospital

where Dr. Feldman performed the surgery.

Section 6.05 of the Act did not require

a physician to personally present such disclosures to a patient, and section 6.06

specifically provided that consent to medical care “shall be considered effective” if

given in writing and signed by the patient.

Thus, contrary to appellants’ assertions,

the record presented here does not support a conclusion that a rebuttable presumption

of negligence arose in this case.

Second, the Texas Supreme Court has held that an action alleging a physician’s

failure to fully inform a patient of the risks of surgery is a negligence claim governed

by the procedural requirements of the Act. McKinley v. Stripling , 763 S.W.2d 407,

409-10 (Tex. 1989). It is evident that expert testimony is necessary, even in a failure

to disclose action, because, as the Texas Supreme Court has explained, proximate

cause remains an issue that must be proven by a plaintiff:

Traditional notions of liability in negligence actions require a finding of

a duty, a breach of that duty, the breach was the proximate cause of

injuries, and that damages occurred. . . . A medical procedure informed

consent case does not differ merely because a statute imposes the duty

of disclosure. An issue of proximate causation must be submitted as in

ordinary negligence cases so the jury may determine whether any breach

of duty caused the injuries suffered. To hold otherwise would amount

to an imposition of strict liability wherein a failure to warn and an

undesirable surgical result would automatically create liability on the

doctor.

Id. at 409 ; see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d

873, 876 (Tex. 2001) (“Texas courts have long recognized the necessity of expert

testimony in medical-malpractice cases.”). Because claimants are generally required

to present expert testimony to prevail in a medical malpractice claim, it is not

unreasonable to compel claimants to comply with the procedural requirements of the

Act by timely providing an expert report. See Gill v. Russo , 39 S.W.3d 717, 719

(Tex. App.—Houston [1st Dist.] 2001, pet. denied).

Finally, the term “healthcare liability claim” was defined by the Act as “a cause

of action against a health care provider or physician for treatment, lack of treatment,

or other claimed departure from accepted standards of medical care or health care or

safety which proximately results in injury to or death of the patient, whether the

patient’s claim or cause of action sounds in tort or contract.”

Appellant’s action

against Dr. Feldman falls within this definition, and appellants were, quite simply,

required to comply with subsection 13.01(d). Because causation was an issue to be

determined in appellants’ cause of action, subsection 13.01(j) did not relieve them of

timely filing the required expert report.

We hold that appellants’ failure to file an expert report within 180 days of

filing their lawsuit left the trial court with no discretion but to dismiss their suit with

prejudice.

See Palacios , 46 S.W.3d at 880 . Accordingly, we further hold that the

trial court did not abuse its discretion in dismissing appellants’ lawsuit.

We overrule appellants’ sole issue.

Motion for Sanctions

Dr. Feldman has filed a motion for sanctions against appellants for filing a

frivolous appeal, and he seeks recovery of attorneys’ fees totaling $4,400 incurred in

the preparation of the briefing filed on his behalf in this appeal. In his motion, Dr.

Feldman argues that, in refusing to file an expert report, appellants have ignored the

clear procedural requirements of the Act, “have made no arguments that the existing

law should be changed, and have only given a distorted recitation of the law as it

applies to health care liability claims.”

We agree.

Under Rule 45, we may award a prevailing party just damages if we objectively

determine that an appeal is frivolous after considering the record, briefs, or other

papers filed in this Court. Tex. R. App. P. 45 ; Smith v. Brown , 51 S.W.3d 376, 381

(Tex. App.—Houston [1st Dist.] 2001, pet. denied). A finding that a party filed its

appeal in bad faith is neither dispositive nor material to deciding whether an appeal

is objectively frivolous and sanctionable pursuant to Rule 45. Smith , 51 S.W.3d at

381 . The presence of bad faith may be relevant, however, to determine the amount

of the sanction. Id .

In applying Rule 45, we exercise prudence and caution and use careful

deliberation. See Bradt v. West , 892 S.W.2d 56,78 (Tex. App.—Houston [1st Dist.]

1994, writ denied). Additionally, to objectively determine whether an appeal is

frivolous, we look at the record from the viewpoint of the advocate and decide

whether he had reasonable grounds to believe the case could be reversed. See id .

In response to Dr. Feldman’s motion for sanctions, appellants, in their reply

brief, assert that Mr. Lookshin’s injury is not frivolous, and they restate their

argument that section 6.07 creates a rebuttable presumption “without the necessity of

any expert testimony.” After being given a second opportunity to respond to the

motion, appellants again restate their “rebuttable presumption” argument.

Additionally, they contend that Dr. Feldman “completely failed to follow Texas law

with respect to providing informed consent,” trial judges “are reversed on a regular

basis,” and Mr. Lookshin’s injury is not “frivolous.”

Appellants conclude their second response with a political attack on the

medical profession in Texas. They assert that “The relief sought by [Dr. Feldman]

and his counsel is part of a concerted effort by the Texas Medical Association, the

Texas Medical Liability Trust, and other entities to intimidate and harass deserving

parties such as the Appellants.” From this, appellants conclude that their appeal “is

most certainly not frivolous.”

Such a vitriolic political attack has no place in a Texas court. As we have

stated before, “‘The right to appeal is a most sacred and valuable one . . . .’” Bradt ,

892 S.W.2d at 78 (citations omitted). However,

[w]e will not permit spurious appeals, which unnecessarily burden

parties and our already crowded docket, to go unpunished. Such appeals

take the court’s attention from appeals filed in good faith, wasting court

time that could and should be devoted to those appeals. No litigant has

the right to put a party to needless burden and expense or to waste a

court’s time that would otherwise be spent on the sacred task of

adjudicating the valid disputes of Texas citizens.

Id. at 79 (citations omitted).

Here, appellants have argued that, in a case in which a physician is required to

obtain informed consent from a patient, but fails to personally inform a patient of the

risks and hazards involved in a surgical procedure, it is unnecessary to present expert

testimony concerning whether the physician deviated from the accepted standard of

care. Although written disclosures were made to appellants in writing by a hospital

employee, they do not acknowledge that the Act specifically provided that such

consent is effective if signed by the patient, and that a physician is considered to have

complied with the informed consent requirements of the statute if consent is obtained

in this manner.

More importantly, expert testimony was still necessary in

appellants’ failure to disclose action because causation remained an element to be

proven. The procedural requirements of the Act apply to all “healthcare liability

claims,” and subsection 13.01(j) did not relieve appellants from timely filing the

required expert report.

Accordingly, we can only conclude that appellants’ attorney had no reasonable

grounds to believe that the trial court’s order of dismissal would be reversed. See

Smith , 51 S.W.3d at 380 . Moreover, this Court will not allow the appeals process to

be used by a litigant to make ad hominem attacks on an opposing party and subject

that party to “needless burden and expense.” See Bradt , 892 S.W.2d at 79 . After

reviewing the record and the arguments presented by the parties to the trial court and

in their briefs to this Court, we hold that appellants’ appeal is objectively frivolous

and that Dr. Feldman is entitled to the recovery of “just damages” in the amount of

$4,400, his reasonable appellate attorneys’ fees as indicated by the affidavit filed by

his counsel. Conclusion

We affirm the order of the trial court . We further order that counsel for

appellants, William V. Wade, individually, pay Dr. Feldman $4,400 in attorneys’ fees

as a sanction for filing a frivolous appeal. Tex. R. App. P. 45 .

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Taft and Jennings.