Ronald R. Eikenhorst, M.D. and Trinity Community Medical Center v. Leonard M. Wellbrock and Mary Wellbrock

Opinion Issued June 5, 2008

Opinion Issued June 5, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00459-CV

RONALD R. EIKENHORST, M.D. AND TRINITY COMMUNITY

MEDICAL CENTER,

Appellants

V.

LEONARD M. WELLBROCK AND MARY WELLBROCK, Appellees

On Appeal from the 335th District Court

Washington

County , Texas

Trial Court Cause No. 33639

MEMORANDUM OPINION

This appeal arises from a medical

malpractice claim brought by Appellees, Leonard and Mary Wellbrock, against

Appellants, Trinity

Community Medical

Center

(Trinity) and Ronald Eikenhorst, M.D.

The trial court denied Appellants’ motions to dismiss which asserted

that the Wellbrocks failed to satisfy the requirements set forth in section

74.351 of the Texas Civil Practice and Remedies Code. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2007). The Wellbrocks move to dismiss the appeal for

want of jurisdiction, alleging that Appellants are appealing an interlocutory

order which denied relief under section 74.351(l). See id.

§ 74.351( l ). As to the merits, in their sole issues, both

Trinity and Eikenhorst contend that the trial court abused its discretion in

ruling that the Wellbrocks’ expert report complies with the statute. We conclude that we have jurisdiction over

the appeal and affirm the trial court’s decision.

Background

On August 27, 2004, an ambulance

transported Leonard Wellbrock to Trinity after he was seriously injured in a

motor vehicle accident. Leonard arrived

at Trinity immobilized on a backboard and wearing a cervical collar, with head

blocks on either side of his head. The

emergency physician ordered radiographic studies of Leonard’s spine, which

Trinity performed. The Wellbrocks allege

that Trinity’s radiology technicians removed Leonard from the backboard, took

off his cervical collar, and placed him upright in a sitting position in order

to take the x-rays.

Dr. Eikenhorst is the radiologist who interpreted

Leonard’s x-rays. In his report, he

noted that Leonard had a spinal dislocation injury at the C 7 -T 1

level, but Eikenhorst diagnosed the dislocation as being “consistent with a

history of prior fracture and prior surgery.”

The Wellbrocks claim that Eikenhorst did not communicate his findings on

the nature or extent of Leonard’s injuries to the emergency department

physician, and as a result, Trinity discharged Wellbrock “without the required

orthopedic or neurological expedited evaluation and treatment.”

On August

29, after Leonard’s condition had deteriorated, Mary took Leonard to St. Luke’s

Medical Center. There, the orthopedic surgeon who had

previously operated on Leonard’s spine surgically repaired his cervical spine

fracture. Leonard now suffers permanent

impairment, which the Wellbrocks attribute to the willful and wanton negligence

by Trinity and Eikenhorst. Specifically, the Wellbrocks allege that Trinity and

Eikenhorst exacerbated Leonard’s injuries when (1) Eikenhorst failed to

diagnose a serious injury to Leonard’s back, causing a delay in his treatment,

and (2) Trinity removed Leonard’s neck collar and backboard during the x-ray

process, instead of keeping him immobilized.

The Wellbrocks brought suit under both Chapter 74 and the Emergency

Medical Treatment and Active Labor Act (EMTALA).

In support of their claims, the

Wellbrocks filed the expert report of Dr. John Harris. The report first classifies Leonard’s injury

as a bilateral interfacetal dislocation (BID) which occurred at the C 7 -T 1

vertebra. According to Harris, the

dislocation is clearly shown on the imaging studies reviewed by

Eikenhorst. Harris states that “BID is a

completely unstable injury which requires prompt recognition and appropriate

expedited management to spare or prevent, as much as possible, further injury

to the spinal cord.” Harris continues by

stating that “any injury to the spine requires immediate attention, especially

when there is pressure on the spinal cord, and the delay in treatment will

unnecessarily aggravate such injuries.”

In regard to the standard of care

required by Eikenhorst, the report states that the standard of care required

Eikenhorst to: (1) communicate his report of

Wellbrock’s cervical spine CT examination directly to the emergency

physician as soon as Dr. Eikenhorst completed his interpretation of the CT

scan; (2) make the correct diagnosis of BID, a relatively common and

radiographically obvious injury; (3) immediately transmit the diagnosis of BID

to the attending physician personally by direct communication; and (4)

document, in his written report, that he has communicated the findings of BID

to the attending physician, so as to ensure that the patient remains

immobilized and receives the proper and immediate orthopedic or neurological

evaluation of the serious spinal injury.

The report then

outlines the ways by which Eikenhorst deviated from the standard of care

including failing to communicate his findings, failing to recognize BID and

rendering an erroneous diagnosis, and failing to document in his report that he

communicated the C 7 -T 1 findings to the emergency

physician.

In describing how Eikenhorst’s breach

of the standard of care caused Leonard’s injuries, the report reads in

pertinent part:

(1) Dr.

Eikenhorst’s egregious, willful and wanton failure to immediately communicate his

finding of the CT scan to the Emergency physician . . . resulted in Mr.

Wellbrock’s being discharged from the Trinity Medical Center, and in turn, led

to further aggravation of Mr. Wellbrock’s cervical spinal cord injury due to

prolonged compression of the cord and unwarranted delay in treatment.

(2) . . . It is my opinion that the failure of

Dr. Eikenhorst to render a correct interpretation of Mr. Wellbrock’s serious

BID injury, which necessarily involves serious injury to the spinal cord with

potential paralysis . . . directly led to the improper discharge of Mr.

Wellbrock without the required orthopedic or neurological immediate evaluation

and treatment. It is my expert opinion

that Dr. Eikenhorst’s failure to properly interpret Mr. Wellbrock’s serious BID

caused the delay in evaluation and treatment that then resulted in his

permanent impairments which, within reasonable medical probability, would not

have resulted if Dr. Eikenhorst had properly diagnosed the serious BID.

(3) . . . It is my opinion that due to the

serious nature of Mr. Wellbrock’s injury, the failure of Dr. Eikenhorst to

personally communicate and discuss the imaging studies with the Emergency

Department physician led to Mr. Wellbrock’s discharge without the required

orthopedic or neurological expedited evaluation and treatment, which, in

reasonable medical probability, would have led to greatly recovered health

status by Mr. Wellbrock, instead of his current permanent impairment. . . .

During the time of his discharge from the Trinity

Medical

Center

until his admission at St. Luke’s Episcopal Hospital, Mr. Wellbrock’s spinal

cord injury progressed, and became clinically obvious with his deteriorated

health.

Had Dr. Eikenhorst made the correct diagnosis and

relayed the information to the Emergency physician, it [sic] my expert opinion

and is within reasonable medical probability, that Mr. Wellbrock would have

been emergently transferred to St. Luke’s Episcopal Hospital and treated

appropriately and promptly, with a much better prognosis than he had when

admitted . . . on 8/29/04, a delay of

two days without the proper stabilization of the spinal column and immediate

attention to the pressure on the spinal cord due to the BID injury.

Dr.

Harris’s report also outlines the standard of care for Trinity and the

Department of Radiology. According to

Harris, the standard of care for a patient admitted to the hospital emergency

department complaining of severe neck pain and with a cervical collar in place

“requires that the cervical immobilization never be removed until the cervical

spine has been ‘cleared’ (allowing the removal of the immobilizing apparatus)

by the radiologist.” The report also

states that the standard of care requires that the radiology department

“develop and maintain Policies and Procedures regarding the management of

patients suspected of cervical spine injury” and that the hospital “instruct

and document educational programs for employee management of patients suspected

of having cervical spine injuries (as Mr. Wellbrock) to ensure that all the

Hospital staff handling such injured patients. . . will perform all the

required procedures in the required manner to prevent further cervical spine

injuries.”

The report proceeds by outlining how,

in Dr. Harris’s opinion, Trinity deviated from the standard of care. It states that there is no record that Leonard’s

cervical spine had been cleared, but there is no image of the cervical collar

being in place on any of the CT scans. The

report concludes that this means that the cervical collar had been removed

before placing Leonard on the CT scan.

In addition, the erect chest x-ray of Leonard shows that Leonard was

placed in a sitting position for the chest x-ray, without a cervical collar,

which reasonably means the x-ray technician removed the spine immobilization support. Dr. Harris opines that removing the cervical

collar and placing a patient in a sitting position, when the patient is

suspected of having a spine injury, is a breach of the standard of care. His report also states that Trinity deviated

from the standard of care by failing to document the time Eikenhorst

interpreted the x-ray so as to ensure the prompt transcription and printing of

the report for the patient’s chart.

Dr. Harris’s report concludes by

describing the way in which Trinity’s breach of the standard of care caused

Leonard’s injuries. It reads in

pertinent part:

(1) . . . The failure of the radiology department staff to

continuously maintain Mr. Wellbrock’s spine immobilized during the imaging

procedures, within reasonable medical probability, exacerbated and aggravated

his serious BID injury, which ultimately resulted in permanent impairments.

(2) . . . [R]emoval

of the cervical collar and placing a patient into an erect (sitting) position,

when the patient is suspected of an acute cervical spine injury . . . in

reasonable medical probability leads to further damage to the already injured

spine. The fact that further damage and

injury to the spine cord occurred is clearly evident by the major progression

of Mr. Wellbrock’s neurologic findings from the time he was discharged from Trinity Medical Center

until his admission to St. Luke’s Episcopal Hospital. Therefore, it is my expert opinion that the

further injury and aggravation of Mr. Wellbrock’s BID, within reasonable

medical probability, was caused by the willful and wanton removal of his spinal

immobilization apparatus and movement of the patient without such

immobilization during the studies performed by the Trinity Medical Center

Radiology Department and resulted in his permanent impairments.

(3) . . . [T]he failure of the Hospital to ensure that this

imaging report was promptly included in Mr. Wellbrock’s chart, to ensure its

review by the Emergency Department physician, caused a delay in the treatment

of Mr. Wellbrock, thereby aggravating his spinal cord injury, which resulted in

permanent impairments to Mr. Wellbrock because of the prolonged compression of

the spinal cord until his treatment at St. Luke’s three days later.

After receiving Harris’s report, both

Trinity and Eikenhorst objected to its sufficiency and moved to dismiss the

Wellbrocks’ suit, contending that the expert report failed to comply with the

requirements of section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. §74.351 . The trial court denied Trinity’s and

Eikenhorst’s motions to dismiss, and they appealed.

Appellate Jurisdiction

As an initial matter, the Wellbrocks

contest our jurisdiction over the appeal.

Specifically, the Wellbrocks contend that Trinity and Eikenhorst cannot

appeal under section 74.351(b) because they filed an expert report and that

section applies only when no report has been filed. See id. § 74.351(b). Rather, the Wellbrocks contend, Trinity and

Eikenhorst challenge the sufficiency of the expert report which is a challenge

under section 74.351( l ) and not

appealable. Id. We disagree.

Section 74.351(b) states that if

“an expert

report has not been served within the period specified by Subsection (a), the

court, on the motion of the affected physician or health care provider, shall,

subject to Subsection (c), enter an order that: (1) awards to the affected physician or health

care provider reasonable attorney's fees and costs of court incurred by the

physician or health care provider; and (2) dismisses the claim with respect to the physician

or health care provider, with prejudice to the refiling of the claim.”

Id. Section 74.351( l ) states that “a court shall grant a motion challenging the

adequacy of an expert report only if it appears to the court, after hearing,

that the report does not represent an objective good faith effort to comply

with the definition of an expert report in Subsection (r)(6).” Id. §

74.351( l). Section 51.014 allows an interlocutory

appeal from a court order that “denies all or part of the relief sought by a

motion under section 74.351(b), except that an appeal may not be taken from an

order granting an extension under section 74.351” or from an order that “grants

relief sought by a motion under section 74.351( l ).” Id. § 51.014(a)(9) & (10).

Here, both Trinity and Eikenhorst

moved to dismiss the suit under 74.351(b), as only subpart (b) provides for dismissal

and fees, [1] and the

trial court denied relief. “As subpart

(c) defines a timely but deficient report as one that ‘has not been served,’

the same meaning must be given the same phrase in subpart (b).” Lewis

v. Funderburk , No. 06-0518, 2008 WL 1147188, at *5 (Tex. April 11, 2008); see also Tex. Civ. Prac.

& Rem. Code Ann. § 74.351 (b) & (c) (Vernon Supp. 2007). An expert report has

thus not been served for purposes of 74.351(b) if only an inadequate report has

been served. Lewis , 2008 WL 1147188, at *1 .

Parties are entitled to bring an interlocutory appeal for denial of

relief under 74.351(b). Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(9). We therefore hold that we

have jurisdiction over this appeal.

Expert Report

In their sole issues, both Eikenhorst

and Trinity contend that the trial court erred in its determination that the

Wellbrocks’ expert report complied with section 74.351 of the Civil Practice

and Remedies Code. Both Eikenhorst and

Trinity contend that (1) Harris is not qualified to offer any opinions in this

case under section 74.401 or 74.402 respectively; (2) Harris is not qualified

to offer opinions on causation because his specialty is in radiology, not

neurology; and (3) the report is conclusory on causation and does not

distinguish Leonard’s pre-existing condition and injuries. See id.

§§ 74.401 & 74.402. In response, the

Wellbrocks assert that Trinity and Eikenhorst waived their obections to the

expert report by failing to timely object as required by section 74.351. See id.

§ 74.351(a). Trinity responds that

it preserved its right to request dismissal by timely objecting.

Standard of Review

We

review section 74.351 rulings under an abuse of discretion standard. See Am. Transitional Care Ctrs. v. Palacios ,

46 S.W.3d 873, 875, 877 (Tex. 2001) (reviewing ruling under predecessor statute);

Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston

[1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in

an arbitrary or unreasonable manner without reference to guiding rules or

principles. See Garcia v. Martinez, 988

S.W.2d 219, 222 (Tex. 1999). When reviewing

matters committed to the trial court’s discretion, we may not substitute our

own judgment for that of the trial court. Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

A trial court does not abuse its discretion merely because

it decides a discretionary matter differently than an appellate court would in

a similar circumstance. Gray, 189

S.W.3d at 858 . However, a trial court has no

discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

Section 74.351 of the Texas

Practice and Remedies Code

Pursuant

to section 74.351, medical malpractice plaintiffs must provide each defendant

physician and health care provider with an expert report. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2007). An expert report means a “written report by

an expert that provides a fair summary of the expert’s opinions as of the date

of the report regarding applicable standards of care, the manner in which the

care rendered by the physician or health care provider failed to meet the

standards, and the causal relationship between that failure and the injury,

harm, or damages claimed.” Id.

§ 74.351(r)(6). A defendant may file an

objection to the sufficiency of the report not later than the 21st day after

the date it was served. Id.

§ 74.351(a). A trial court shall grant a

motion challenging the adequacy of the expert report only if it appears to the

court, after hearing, that the report does not represent an objective good

faith effort to comply with the statutory definition of an expert report. Id. § 74.351( l ).

Although the

report need not marshal all the plaintiff’s proof, it must include the expert’s

opinions on the three statutory elements—standard of care, breach, and

causation. See Palacios , 46

S.W.3d at 878–79. In detailing these

elements, the report must provide enough information to fulfill two purposes if

it is to be considered a good faith effort.

Id. at 879. First, the report must inform the defendant

of the specific conduct that the plaintiff has called into question. Id. at

879. Second, the report must provide a

basis for the trial court to conclude that the claims have merit. Id. A report that merely states the expert’s

conclusions as to the standard of care, breach, and causation does not fulfill

these two purposes. Id. The expert must explain the basis for his

statements and must link his conclusions to the facts. Bowie Mem’l Hosp. ,

79 S.W.3d at 52 . Furthermore, in

assessing the report’s sufficiency, the trial court may not draw any

inferences, and must instead rely exclusively on the information contained

within the report’s four corners. See

Palacios , 46 S.W.3d at 879 . A report

that omits any of the statutory requirements is not a good faith effort to

comply with the Act. Id. A trial court must dismiss a cause if it

determines that the report does not represent a good faith effort to comply

with the statute’s requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351( l ); see

Jernigan v. Langley ,

111 S.W.3d 153, 156 (Tex. 2003).

Waiver

The

Wellbrocks contend that both Eikenhorst and Trinity waived any objection to

Harris’s expert report by failing to timely object. Under section 74.351, a defendant may file an

objection to the sufficiency of the report not later than the 21st day after

the date it was served. Tex. Civ. Prac. & Rem. Code Ann. §

74.351(a). The Wellbrocks served Harris’s

report on November 22, 2006; therefore, the statute required any objections to the

report be filed by December 13, 2006. See id.

Trinity mailed its objection by certified mail on December 13, and the

trial court clerk file stamped it on December 15. Rule 21a of the Texas Rules of Civil

Procedure authorizes certified mail as a method of service and states that

“service by mail shall be complete upon deposit of the paper . . . in a post

office.” Tex. R. Civ. P. 21a. Rule

21a further states that “whenever a party has the right or is required to do

some act within a prescribed period after the service of a notice or other

paper upon him and the notice or paper is served upon by mail . . . three days

shall be added to the prescribed period.”

Id. Rule 21a applies to the statutory

requirements contained in the Texas Civil Practice and Remedies Code for

medical malpractice cases. See Herrera v. Seton NW. Hosp ., 212

S.W.3d 452, 459 (Tex. App.—Austin 2006, no pet.); Univ. of Tex. Health Sci. Ctr. v. Gutierrez , 237 S.W.3d 869, 872

(Tex. App.—Houston

[1st Dist.] 2007, pet. denied) (applying rule 21a to section 74.351). Trinity’s objections therefore were timely

filed under rule 21a because they were mailed by certified mail on December 13,

within the twenty-one day window.

The

Wellbrocks assert that Trinity’s motion to dismiss, filed on January 11, 2007,

was also untimely. Contrary to this

assertion, however, a motion to dismiss is not subject to the twenty-one day

deadline, and in fact, cannot be filed until after the 120-day window in

section 74.351(b) has expired. Lewis , 2008 WL 1147188 at *1 (“some

challenges—specifically those filed within the first 120 days— cannot seek dismissal or fees until the

120-day window has closed”). Trinity’s

motion to dismiss was therefore timely filed.

The

Wellbrocks also contend that Eikenhorst’s objections were untimely filed and

thus waived. Eikenhorst filed his

objections to Harris’s report on December 18, 2006. Eikenhorst asserts that his objections were

timely filed under rule 21a because he received Harris’s report by certified

mail and was thus entitled to an additional three days to respond. See Tex. R. Civ. P. 21a. The certificate of service attached to

Harris’s report does not indicate the method of service, but includes both

regular mail and certified mail as possible methods. Applying rule 21a, Eikenhorst’s objections to

the Wellbrocks’ report were due on December 16.

Because December 16, 2006 was a Saturday, the deadline to file was

extended to December 18, the date Eikenhorst served his objections. See Tex. R. Civ. P. 4. We hold that Eikenhorst’s objection to

Harris’s report was timely filed and address the case on the merits.

Harris’s qualifications under sections 74.401 and 74.402

Both

Eikenhorst and Trinity assert that Harris was not “practicing health care” as

defined by section 74.401 or 74.402 (respectively), and therefore was not

qualified to give an expert opinion in this case. Section 74.401 defines the qualifications of

an expert witness in a suit against a physician, and section 74.402 defines the

qualifications of an expert witness in a suit against a health care

provider. See Tex. Civ. Prac. &

Rem. Code Ann. §§ 74.401 & 74.402 (Vernon 2005).

Under section 74.401, “a person may

qualify as an expert witness on the issue of whether the physician departed

from accepted standards of medical care only if the person is a physician who: (1) is practicing medicine at the time

such testimony is given or was practicing medicine at the time the claim arose;

(2) has knowledge of accepted standards of medical care for the diagnosis,

care, or treatment of the illness, injury, or condition involved in the claim;

and (3) is qualified on the basis of training or experience to offer an expert

opinion regarding those accepted standards of medical care.” Id. § 74.401(a). “Practicing medicine” or “medical practice” includes

“training residents or students at an accredited school of medicine or

osteopathy or serving as a consulting physician to other physicians who provide

direct patient care, upon the request of such other physicians.” Id.

§ 74.401(b). Section 74.402 is similar

and requires that an expert in a healthcare liability case be “actively

practicing health care.” Id.

§ 74.401(c)(2). It defines “practicing

health care” as “(1) training health care providers in the same field as the

defendant health care provider at an accredited educational institution; or (2)

serving as a consulting health care provider and being licensed, certified, or

registered in the same field as the defendant health care provider.” Id. § 74.402(a).

Dr. Harris’s curriculum vitae (CV) and

his expert report indicate that he is licensed in Pennsylvania, Michigan, and Texas,

but has not been in full-time clinical practice since 2001. His report, however, states that he is active

in preparing Board-Review sessions for radiology residents at The University of

Texas-Houston Medical School, Baylor College of Medicine, and the United States

Naval

Hospital

in San Diego. He also writes articles for publication in

peer-reviewed journals and for radiologic textbooks. In addition, his CV states that his present

title is professor emeritus of radiology at The University of Texas-Houston

Medical School, as well as adjunct professor in the department of radiology at

Baylor College of Medicine. It further

states that Harris is on the active radiology staff at Hermann Hospital. Taking into consideration that Harris’s CV

and report indicate that he teaches medical students at an accredited school,

as well as remains on the active staff at Hermann Hospital,

we hold that the report sufficiently sets forth that Harris is qualified to

give his expert opinion in this case under both sections 74.401 and 74.402.

Harris’s qualifications as to causation

Eikenhorst

and Trinity further contend that Harris is not qualified to give an opinion on

causation because he is a radiologist, not a neurologist, and Leonard’s

injuries were neurological. To offer an expert

opinion “about the causal relationship between the injury, harm, or damages

claimed and the alleged departure from the applicable standard of care in any

health care liability claim, the expert must be a physician who is otherwise

qualified to render opinions on such causal relationship under the Texas Rules

of Evidence.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C)

(Vernon Supp. 2007). Under the Texas

Rules of Evidence, a witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify if it will assist the trier of

fact to understand the evidence or to determine a fact issue. Tex.

R. Evid . 702.

“Given the increasingly specialized

and technical nature of medicine, there is no validity, if there ever was, to

the notion that every licensed medical doctor should be automatically qualified

to testify as an expert on every medical question. Such a rule would ignore the

modern realities of medical specialization.”

Broders v. Heise , 924 S.W.2d

148, 152 (Tex.

1996). Many cases have thus excluded an

expert’s report when the report did not prove the expert was qualified to

address causation in the specified field.

See, e.g., id. (emergency room

physician not qualified to testify about brain injury because his opinions were

speculative); Forrest v. Danielson ,

77 S.W.3d 842, 848 (Tex. App.—Tyler 2002, no pet.) (case dismissed when

orthopedic surgeon did not indicate that he was familiar with procedures used

by surgeons in that case). These cases,

however, are distinguishable. Unlike in Broders , in which the expert never

testified that he knew from either experience or study the effectiveness of the

treatments in general, Harris states, in his report, that his “experience,

background, and continuing experience in the very area that is at issue in this

case—the acutely injured cervical spine—supports [sic] the opinions” that he

stated therein. He also states that “it

is my experience, having interpreted such imaging and thereafter discussing the

findings with orthopedic surgeons and neurosurgeons that surgical intervention

would have immediately followed.”

Harris, therefore, clarifies that he has experience in this type of

injury, unlike the experts in the above-cited cases. In addition, Harris’s CV indicates that he

has published numerous articles concerning this type of injury, including Acute Cervical Spine Trauma , Acute Injuries of the Spine , and A Practical Classification of Acute Cervical

Spine Injuries . Given Harris’s

training and experience with the type of injury at issue, the trial court did

not abuse its discretion in ruling that Harris is qualified to give an opinion

on causation.

Causation

Eikenhorst

and Trinity contend that the Wellbrocks’ expert report is deficient as a matter

of law on the issue of causation because it (1) fails to distinguish Leonard’s

pre-existing condition and injuries, and (2) fails to describe the causal

relationship between Eikenhorst’s and Trinity’s alleged negligence and

Leonard’s alleged damages.

Pre-existing Injuries

Both

Eikenhorst and Trinity contend that the report is deficient as to causation

because it fails to consider Leonard’s pre-existing injuries. Both appellants cite to Ballan and Barko for

support. Ballan v. Gibson , 151 S.W.3d 281 (Tex. App.—Dallas 2004, no pet.); Barko v. Genzel , 123 S.W.3d 457 (Tex.

App.—Eastland 2003, no pet.).

In

Ballan , a patient died in the

emergency room as a result of arteriosclerotic cardiovascular disease, and the

plaintiffs brought suit alleging his doctor was negligent by his failure to

treat five cardiac risk factors. The

expert’s report did not state how the doctor’s alleged failure to act regarding three of the risks

caused Ballan’s death, nor did it rule out the factors beyond the doctor’s

control as the cause of death. Ballan , 151 S.W.3d at 284 . The court held that

the expert report was conclusory and affirmed the motion to dismiss. Id.

In

Barko , the plaintiff alleged that her

emergency room physician negligently failed to diagnose and treat her disc

re-herniation, which she asserted led to permanent neurological damage and a

miscarriage. Barko , 123 S.W.3d at 458 .

The court held that the report was insufficient to satisfy the statutory

requirements because it: (1) did not indicate that the plaintiff would have

recovered from the back injury but for the doctor’s negligence; (2) did not

state that the back surgery would have been avoided but for the doctor’s

negligence; and (3) did not make any attempt to eliminate either the back

injury itself or the attempt to surgically repair it as a potential cause of

the permanent neurological damage. Id. at 460–61.

Unlike

the reports in Barko and Ballan , Dr. Harris’s report does address

Leonard’s pre-existing injuries. In his

report, he states that the injuries were aggravated and exacerbated by

Eikenhorst’s and Trinity’s negligence and that this aggravation resulted in his

permanent impairments. He further states

that the failures by Eikenhorst and Trinity to follow the standard of care

“directly caused the aggravation of his serious spinal injury . . . and thereby

resulted in delayed treatment with permanent disability.” He also opines that the proper evaluation and

treatment would have “led to greatly recovered health status by Mr. Wellbrock,

instead of his current permanent impairment.”

Harris therefore considered Leonard’s existing injuries and concluded

that it was the aggravation of these injuries that caused his permanent

impairment, not the pre-existing injuries themselves.

Causation as to Eikenhorst

In

regard to Eikenhorst’s causation, Harris opined that Eikenhorst’s failure to

communicate his CT scan findings and his failure to properly diagnose Leonard’s

injury caused a delay in treatment and aggravation of Leonard’s injuries. Harris states that had Eikenhorst properly

diagnosed Leonard with BID, surgery would have immediately followed, relieving

the pressure on the spinal cord and stabilizing the spine, which would have led

to greatly recovered health status by Leonard, instead of his current permanent

impairment. Eikenhorst contends that the

report contains gaps that prevent it from being a “fair summary.” He contends that Harris fails to explain how

failing to identify Leonard’s condition aggravated his injury. We disagree.

Harris opined that in reasonable medical probability, Leonard would have

received immediate surgery and had a greatly recovered health status had he

obtained an early diagnosis. Thus, the

failure of Eikenhorst to properly diagnose Leonard or communicate his CT

results to the emergency physician prevented the early diagnosis which would

have avoided Leonard’s permanent impairments.

In support of his causation argument,

Eikenhorst relies on Bowie ,

where the plaintiff alleged that a hospital’s physician’s assistant misread or

misplaced an x-ray and, therefore, did not discover that the plaintiff had

fractured her foot. Bowie ,

79 S.W.3d at 50 . Approximately one month later, the plaintiff’s orthopedic

surgeon discovered the fractured foot. Id. The plaintiff filed an

expert report, which stated that had the x-ray been properly read, she “would

have had the possibility of a better outcome.” Id.

at 51 . The Supreme Court, after recognizing that a report need not use any

particular magical words, held that the trial court could have reasonably

determined that the report did not represent a good-faith effort to summarize

the causal relationship. Id. at 53 . The court

noted that the report simply opined that the plaintiff had a “possibility of a

better outcome,” and did not sufficiently “[link] the expert’s conclusion (that

[the plaintiff] might have had a better outcome) to [the hospital’s] alleged

breach (that it did not correctly read and act upon the x-rays).” Id.

Eikenhorst also relies on Longino , in which the plaintiffs alleged

that the doctor failed to perform the tests necessary to diagnose their child’s

meningitis earlier and the delay caused the child’s neurological injuries. Longino

v. Crosswhite , 183 S.W.3d 913, 915 (Tex. App.—Texarkana 2006,

no pet.). The plaintiffs filed an expert

report that stated only “that the delay in diagnosis caused significant and

permanent neurological injuries.” Id. at 918 . The appellate court reversed the trial court

and determined that the report was insufficient on causation because it failed

to “inform the defendant of the specific conduct the plaintiff has called into

question” and did not contain specific information concerning Longino’s

conduct. Id.

In contrast to these cases, Harris

opined in his expert report that Eikenhorst’s breach of his standard of care

permitted exacerbation of Leonard’s spinal injury by prolonged pressure on the

spinal cord that would have been relieved with proper care. Harris states in his report that “surgical

intervention would have immediately followed the diagnosis, thereby relieving

the pressure on the spinal cord, and stabilizing the spine.” See Harris County Hosp. Dist. v. Garrett , 232

S.W.3d 170, 181 (Tex.

App.—Houston

[1st Dist.] 2007, no pet.) (holding report sufficient that stated that delay in

diagnosis of cancer led to poor forecast when delay caused advancement of

disease and limited availability of treatment options); Simonson v. Keppard , 225 S.W.3d 868 , 875–77 (Tex. App.—Dallas

2007, no pet.) (holding report not conclusory which stated that had deceased

received proper diagnosis, deceased would have been admitted to hospital and

deterioration would have been prevented or lessened); Linan v. Rosales , 155 S.W.3d 298 , 305–06 (Tex. App.—El Paso 2004,

pet. denied) (affirming verdict in favor of plaintiff for doctor’s failure to

timely diagnose cancer based on evidence that during two-month period cancer “involved

the lymph vessels” and caused edema and that advancement of cancer eliminated

option of breast conserving therapy); In

re Barker , 110 S.W.3d 486, 491 (Tex. App.—Amarillo 2003, no pet.) (finding

expert report stating that negligent failure to recognize medical condition and

delay in treatment increased severity of plaintiff’s injuries to be sufficient).

The report did not only state that a

delay in diagnosis caused permanent injuries; it linked Eikenhorst’s specific

conduct to a delay in diagnosis, leading to increased and prolonged spinal

pressure, resulting in Leonard’s permanent impairment.

We conclude that Dr. Harris, in his

report, provided a fair summary of the causal relationship between Eikenhorst’s

failure to meet the pertinent standard of care and the Wellbrocks’ damages, and

adequately informed Eikenhorst of the specific conduct the Wellbrocks called

into question. Accordingly, we hold that

the trial court did not abuse its discretion in denying Eikenhorst’s motion to

dismiss the Wellbrocks’ health care liability claims.

Causation as to Trinity

In regard to Trinity’s causation,

Harris opined that the radiology department’s failure to keep Leonard’s spine

immobilized during the x-ray procedures led to further damage to his already

injured spine, resulting in permanent impairments. He further states that the radiology

department’s failure to include the imaging report in Leonard’s chart, to

ensure its review by the emergency department, “caused a delay in the treatment

of Mr. Wellbrock, thereby aggravating his spinal cord injury, which resulted in

permanent impairments to Mr. Wellbrock because of the prolonged compression of

the spinal cord until his treatment at St. Luke’s three days later.” Like Eikenhorst, Trinity contends that

Harris’s report is conclusory because it does not describe how Trinity’s

alleged negligence caused Leonard’s injuries.

Trinity also relies on Bowie and Longino to support its contention.

However, unlike the reports in Bowie

and Longino , Harris outlined

Trinity’s specific conduct, which led to the aggravation of Leonard’s injuries

and resulted in his permanent impairment.

In addition, Harris states that Trinity’s failure to include the imaging

report in Leonard’s chart led to a delay in his treatment, which caused

prolonged compression of his spinal cord and also attributed to his permanent

impairment. The report thus does not

merely state that a delay in treatment caused permanent impairment, but explains

why the delay caused that result. The

report therefore provided a fair summary of the conduct in question. Accordingly, we hold that the trial court did

not abuse its discretion in denying Trinity’s motion to dismiss the Wellbrocks’

health care liability claims.

Conclusion

We

conclude that we have jurisdiction over this appeal and therefore deny the

Wellbrocks’ motions to dismiss for lack of jurisdiction. We further conclude that the trial court did

not abuse its discretion in denying Eikenhorst’s and Trinity’s motions to

dismiss. We therefore affirm the

judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Jennings and Bland.

[1] Lewis v. Funderburk , No. 06-0518, 2008 WL 1147188, at *1 (Tex. Apr. 11, 2008)