Opinion

Opinion issued February 28, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00360-CV

JOI M. FINDLEY-SMITH, M.D. AND PEGGY TAYLOR, M.D., P.A.,

Appellants

V.

HOLLY SMITH AND HUSBAND, CHRISTOPHER SMITH,

INDIVIDUALLY AND A/N/F OF CAMERON SMITH, A MINOR, Appellees

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2006-62615

MEMORANDUM OPINION

In this interlocutory appeal, appellants, Joi M. Findley-Smith, M.D. and Peggy

Taylor, M.D., P.A., challenge the trial court’s order that denied their motion to

dismiss a health care liability claim of appellees, Holly Smith and Husband,

Christopher Smith, Individually and a/n/f of Cameron Smith, A Minor. In two issues

on appeal, appellants argues that (1) the trial court erred in failing to dismiss the

healthcare liability claim because the expert reports were deficient and (2) the trial

court erred in denying objections to the expert reports.

We affirm.

Background

Appellees have pled a healthcare liability claim related to the medical care and

treatment appellee Holly Smith received from appellants. Appellees filed a medical

malpractice suit against appellants

on September 29, 2006. Appellees alleged that

on July 19, 2004, prior to the conception of Cameron Smith, Holly Smith “sought

medical advice and counseling regarding her ability and/or advisability of becoming

pregnant and whether she should seek genetic testing prior to doing so” due to a

family history of cerebral palsy and hydrocephalus. Appellees alleged in their

petition that Dr. Findley-Smith informed them that “[h]ydrocephalus was not genetic

and she should not worry about the information regarding her family history.

Defendants failed to fully advise Holly Smith of the potential ramifications of

becoming pregnant and that her family history concerns were unwarranted and

genetic testing was not indicated.” Appellees further pled that “Holly Smith was

further informed by Defendant that getting a genetic consult would be insignificant

due to the limited information she had available from her family history.”

Appellants responded that Dr. Findley-Smith referred appellees for genetic

counseling and testing. According to Dr. Findley-Smith, appellees informed her that

they had chosen not to undergo genetic counseling. After the July 2004 office visit

with Dr. Findley-Smith, Holly Smith saw Dr. Beth Files for her first prenatal visit.

Dr. Files ordered an ultrasound which showed that the fetus was normal. Holly Smith

then returned to see Dr. Findley-Smith for prenatal care. Dr. Findley-Smith referred

Holly Smith to see maternal fetal medicine specialists, Dr. Linda Goodrum and Dr.

Thomas Rowe. They recommended an ultrasound, which also showed that the fetus

was normal. On March 17, 2005, Dr. Findley-Smith performed an ultrasound on

appellees that revealed a hydrocephalus head. Appellees’ baby was delivered via

Caesarean section, performed by Dr. Bart Putterman, who is affiliated with Partners

in OB/GYN Care, P.A. Appellees’ baby was born with hydrocephalus alleged to be

the result of appellants’ negligent action or inaction.

Attached to the original petition were two timely-filed expert reports. The first

expert report was from Jon Gogola, M.D., who opined about the standard of care with

respect to Dr. Findley-Smith. Dr. Gogola stated that he reviewed a multitude of

records, including records “dated 7/19/2004, 11/1/2004, 3/31/2004/, 3/31/2003, the

prenatal record . . . of 11/1/2004, ultrasounds of the index pregnancy, the patients

family background history . . . and the lab result of the patient from UTMB showing

her carrier status for X-linked hydrocephalus.” Dr. Gogola opined on the standard

of care with respect to the history and physical examination, assessment, diagnosis

and treatment of conditions relevant to appellees and concluded that the standard of

care was breached.

Dr. Gary D.V. Hankins also provided a timely-filed expert report. Dr. Hankins

stated that he had reviewed medical records from Partners in OB/GYN Care, PA.,

including appellees’ family history records and genetic testing records. Dr. Hankins

also opined on the standard of care with respect to Dr. Findley-Smith and concluded

that the standard was breached.

Dr. Findley-Smith filed objections to the appellees’ expert reports and a motion

to dismiss, arguing that appellees did not provide the complete medical records from

Dr. Findley-Smith to the experts. Specifically, she contends that Holly Smith’s

medical records included office notes from July 19, 2004, telephone record notes, and

a precertification information form. Dr. Findley-Smith contends that because this

evidence refutes the facts upon which appellees’ expert reports were based, the expert

reports did not represent a good faith attempt to comply with the statutory

requirements of Chapter 74. Appellees responded that the expert reports represented

a good faith effort to comply with Chapter 74; and they requested a 30-day extension

to correct any deficiencies in the reports, if the court found that they did not.

Appellees stated that Dr. Findley-Smith did not advise them that hydrocephalus

was hereditary, and that she stated, to the contrary, that it “was not genetic, and that

genetic testing would not accomplish anything vis-a-vis hydrocephalus.” Appellees

also stated in their response that they had filed amended expert reports that addressed

some of the deficiencies cited by Dr. Findley-Smith.

Appellees also filed an amended petition alleging negligence by: (1) failing to

recognize the seriousness of the information presented by Ms. Smith and the genetic

problems the information contained; (2) failure to recognize hydrocephalus as a

genetic condition; (3) failure to exercise ordinary care by either researching genetic

forms of hydrocephalus or consulting a specialist; (4) negligent management of a

patient’s care; (5) failure to refer to genetic testing; (6) failure to provide appellees

with options to avoid the birth of a male child with a high risk of X-linked

hydrocephalus; and (7) failure to recognize and/or diagnose hydrocephalus or the

risks thereof prior to the 28th/29th week of pregnancy.

Dr. Findley-Smith replied, continuing to maintain that neither the original

expert reports nor the amended expert reports constituted a good faith effort to

comply with Chapter 74. After a hearing, the trial court denied Dr. Findley-Smith’s

motion to dismiss.

Dr. Findley-Smith appeals from this order.

Standard of Review

We review a trial court’s decision on a motion to dismiss under section 74.351

for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios ,

46 S.W.3d 873, 875 (Tex. 2001) (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 .

Expert Report

A plaintiff bringing a healthcare liability claim must provide each defendant

health care provider with an expert report or voluntarily non-suit the action. See T ex.

Civ. Prac. & Rem. Code Ann . § 74.351 (Vernon Supp. 2007); Gray , 189 S.W.3d at

858 . The expert report is defined as a fair summary of the expert’s opinions as of the

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

care rendered by the health care provider failed to meet the standards, and the causal

relationship between that failure and the injury, harm, or damages claimed. See T ex.

Civ. Prac. & Rem. Code Ann . § 74.351(r)(6) (Vernon Supp. 2007). If a plaintiff

timely files an expert report, a defendant may then file an objection challenging the

sufficiency of the report. Id . § 74.351(a). The trial court shall grant a motion to

dismiss 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. Id .

§ 74.351(l).

The only information relevant to the inquiry is within the four corners of the

document. Palacios , 46 S.W.3d at 878 . Although the report need not marshal all the

plaintiff’s proof, it must include the expert’s opinion on each of the elements

identified in the statute. See id . at 878–79; Gray , 189 S.W.3d at 859 . In setting out

the expert’s opinions, the report must provide enough information to fulfill two

purposes if it is to constitute a good-faith effort. Palacios , 46 S.W.3d at 879 . First,

the report must inform the defendant of the specific conduct the plaintiff has called

into question. Id . 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 does not fulfill these two purposes. Id . Rather, the expert must explain

the basis of his statements to link his conclusions to the facts. Bowie , 79 S.W.3d at

52 . However, a plaintiff need not present evidence in the report as if she were

actually litigating the merits. Palacios , 46 S.W.3d at 879 . Furthermore, the report

can be informal in that the information in the report does not have to meet the same

requirements as the evidence offered in a summary judgment proceeding or at trial.

Id .

On appeal, Dr. Findley-Smith argues that appellees must give their experts the

complete medical records pertaining to appellees’ care and that failure to do so shows

that they did not make a good faith effort to produce an expert report. In support of

her argument, Dr. Findley-Smith relies on Palacios , DeLeon v. Vela , and In re Raja .

See 46 S.W.3d 873 , 875 (Tex. 2001), 70 S.W.3d 194, 199 (Tex. App.—San Antonio

2001, pet. denied), and 216 S.W.3d 404, 409 (Tex. App.—Eastland 2006, orig.

proceeding, pet. filed). Dr. Findley-Smith argues that the trial court should look

beyond the appellees’ expert reports and focus on Holly Smith’s medical records. Dr.

Findley-Smith’s arguments are not supported by the cases cited, and her arguments

contradict the Texas Supreme Court’s holding in Palacios .

In Palacios , the Texas Supreme Court stated that the trial court “should look

no further than the report . . .” 46 S.W.3d at 878 . In construing former section

13.01(l), the court stated that the “issue for the trial court is whether ‘the report’

represents a good-faith effort to comply with the statutory definition of an expert

report.” Id . Thus, as to each defendant, the report must contain “a fair summary of

the expert’s opinions about the applicable standard of care, the manner in which the

care failed to meet that standard, and the causal relationship between that failure and

the claimed injury.” Id . Moreover, Palacios specifically states that “[b]ecause the

statute focuses on what the report discusses, the only information relevant to the

inquiry is within the four corners of the document.” Id .

Dr. Findley-Smith attempts to interpret the statement in Palacios that “the

report must provide a basis for the trial court to conclude that the claims have merit”

as a requirement that if the expert does not have or has not reviewed all of the medical

records, then appellees have not made a good-faith effort in producing an expert

report. We disagree with Dr. Findley-Smith’s interpretation of Palacios . It is only

necessary that the trial court conclude that the claims have merit by looking at the

expert report itself. See id . Otherwise, the trial court would be put in a position of

deciding the merits of the case in summary judgment fashion, which Palacios

prohibits. See id . at 879 (stating that “plaintiff need not present evidence in the report

as if it were actually litigating the merits. The report can be informal in that the

information in the report does not have to meet the same requirements as the evidence

offered in a summary-judgment proceeding or at trial.”).

In In re Raja , the Eastland Court of Appeals addressed whether section 74.351

allowed a plaintiff to take a Rule 202 deposition before filing an expert report. 216

S.W.3d at 409 . In dicta, the court stated that section 74.351(l) “allows trial courts to

consider the quality of the defendant’s records when determining whether a good

faith effort has been made.” Id . The Eastland Court of Appeals cited no authority in

support of this proposition and we note that Palacios contradicts this proposition.

See Palacios , 46 S.W.3d at 878 (“Because the statute focuses on what the report

discussed, the only information relevant to the inquiry is within the four corners of

the document.”). Regardless of the accuracy of Raja’s dicta, we recognize that the

trial court has discretion in reviewing expert reports. To this end, the trial court could

have considered the records reviewed by the experts and concluded that appellees

made a good faith effort in complying with the statute. Thus, we cannot conclude that

In re Raja shows that the trial court abused its discretion because complete records

may or may not have been given to an expert.

Finally, in De Leon , the San Antonio Court of Appeals held that the expert

report did not satisfy the statute because the report “neither state[d] his opinion on the

applicable standard of care, nor [stated] whether there was a breach of that standard.

[The expert] merely state[d] that ‘so many surgeries were not indicated’ and

‘unnecessary,’ but fail[ed] to indicate what the acceptable standard of care was for a

patient in De Leon’s position.” 70 S.W.3d at 199 .

The insufficient expert report in De Leon is distinguishable from the expert

reports

submitted by appellees. Here, the amended expert report of Dr. Hankins

states,

D. Medical records reviewed :

I have reviewed medical records pertaining to Holly Smith from partners

in OB/GYN Care, PA., her family history records and genetic testing

records.

E. Applicable standard of care with respect to the history and

physical examination, assessment, diagnosis and treatment of

conditions relevant to this patient and specific actions that are taken

in order to meet the standard of care : Standard of care in this

particular case would require the obstetrician, upon knowledge that this

particular patient had two uncles that were deceased at ages 5 and 6

years of hydrocephalus, to recognize that there are hereditary forms of

hydrocephaly. Specifically, there is an x-linked form of hydrocephaly

and a history of two males having been affected in the family would put

this woman as being at risk for carriage of the defect. This is a defect

that can be diagnosed by analysis of the maternal chromosomal

compliment. Additionally, prenatal diagnosis could be performed early

in pregnancy via amniocentesis for definitive diagnosis in the fetus. An

obstetrician confronted with this information has the option of either

knowing the information and doing the counseling themselves, or

referring the patient to a subspecialist in medical genetics or maternal

fetal medicine. The obligation is to make the patient aware that there is

a condition that could potentially have great impact upon the pregnancy

and that this can be diagnosed as regards both the woman’s carrier status

as well as whether or not the fetus would be effected. Failure to do so

is a clear breach in standard of care.

G. The standards that were not followed by Dr. Joi M. Findley-Smith : Counseling, testing or referral to a genetic specialist to

investigate the history of hydrocephalus in the family did not occur

when . . . Ms. Smith presented for preconception visits.

H. The specific conduct of acts/omissions evidencing that the care

provided to the patient failed to meet the standard by Dr. Joi M.

Findley-Smith : Did not advise the patient of the possible hereditary

nature of hydrocephalus. Further, Dr. Findley-Smith breached the

standard of care by not conducting genetic testing on the patient to

determine if the patient carried the deleterious gene, or referring the

patient to a specialist for such testing.

I. Dr. Joi M. Findley-Smith should have taken the following specific

actions to be within the standard of care : Should have advised Ms.

Smith of the possible hereditary nature of hydrocephalus and offered

either testing for such condition or referred her to a genetic specialist for

evaluation.

J. Causal relationship between the Failure and the claimed injury :

Dr. Joi M. Findley-Smith’s negligent failure to advise the patient of the

possible transmission of hydrocephalus to her baby and negligent failure

to perform genetic testing to rule out the risk deprived the patient of the

opportunity to utilize alternative paths to motherhood, such as adoption

or in-vitro fertilization with pre-implant genetic testing. Had Dr.

Findley-Smith complied with the standard of care, Holly Smith asserts

that she would have availed herself of these options. If she had, this

would have prevented the transmission of the deleterious gene to her

child. Because of Dr. Findley-Smith’s negligence, therefore, the gene

was transmitted and the child was born with hydrocephalus. This

disease will require extensive medical and life care that would not be

required if the child did not suffer from hydrocephalus. Accordingly,

Dr. Findley-Smith’s negligence was a proximate cause of the medical

expenses that will necessarily be incurred in treating the child’s

hydrocephalus.

Dr. Gogola’s expert report states

D. Medical records reviewed

In preparing this opinion, I have reviewed Dr. Findley-Smith’s record

of Holly Smith dated 7/19/2004, 11/1/2004, 3/31/2004, 3/31/2003, the

prenatal record first visit of which is 11/1/2004, ultrasounds of the index

pregnancy, the patients family background history (exhibit 1), and the

lab result of the patient from UTMB showing her carrier status for X-linked hydrocephalus.

E. Applicable standard of care with respect to the history and

physical examination, assessment, diagnosis and treatment of

conditions relevant to this patient and specific actions that are taken

in order to meet the standard of care :

The standard of care when a patient presents seeking prenatal counseling

is to obtain a through [sic] and complete medical and family history.

The patient should be encouraged to obtain as much information as

possible about her personal and family history in order to provide such

counseling. In those instances that a history of conditions which may

have a heritable etiology, the doctor is obliged to discuss available

testing for such an etiology or refer the patient to a specialist (genetic

counselor or maternal fetal medicine physician) who can better provide

testing, counseling and care. Since hydrocephalus is caused by many

different etiologies including chromosomal abnormalities, most notably

X-linked hydrocephalus, a family history of such in a first degree

relative who is a male (or second degree maternal relative) suggests the

need for genetic testing or referral. In addition, the presence of a family

history of 2 first degree relatives with the same disorder is highly

suggestive of an x-linked disorder, again requiring testing or referral.

The standard is carried out by the following specific actions: Genetic

testing or referral to a genetic specialist and/or maternal fetal medicine

specialist when a history compatible with x-linked hydrocephalus is

presented in a pre-conceptual setting.

. . .

G. The standards that were not followed by Dr. Joi M. Findley-Smith :

Discussion of testing, actual testing or referral to a genetic specialist to

further discuss the availability of testing did not occur.

H. The specific conduct of acts/omissions evidencing that the care

provided to the patient failed to meet the standard by Dr. Joi M.

Findley-Smith .

. . . Dr. Joi M. Findley-Smith did not advise the patient of the possible

hereditary nature of hydrocephalus, and did not offer testing or referral

to a specialist to evaluate such possibility. Dr. Findley-Smith thus

breached the standard of care by not conducting genetic testing on Ms.

Smith (the patient) to determine if the patient carried the deleterious

gene, or referring the patient to a specialist for such testing.

I. Dr. Joi M. Findley-Smith should have taken the following specific

actions to be within the standard of care:

. . . Dr. Joi M. Findley-Smith should have advised the patient of the

possible hereditary nature of hydrocephalus, and either offered the

patient testing for such condition or referred the patient to a genetic

specialist to evaluate such a possibility.

J. Causal relationship between the Failure and the claimed injury :

The failure of . . . Dr. Joi M. Findley-Smith to provide appropriate

counseling, testing and/or referral, deprived the patient of the right to

make a fully informed decision regarding conceiving despite seeking

care for just such advice. Dr. Findley-Smith’s negligent failure to advise

the patient of the possible transmission of hydrocephalus to her baby

and negligent failure to perform (or arrange for) genetic testing to rule

out that risk deprived the patient of the opportunity to utilize alternative

paths to motherhood, such as adoption or in-vitro fertilization with pre-implantation genetic testing. Had Dr. Findley-Smith complied with the

standard of care, and Ms. Smith availed herself of these options as she

asserts she would have, this would have prevented the transmission of

the deleterious gene to the child who was born with hydrocephalus.

This disease will require extensive medical and life care that would not

be required if the child did not suffer from hydrocephalus. Accordingly,

Dr. Findley-Smith’s negligence was a proximate cause of the medical

expenses that will necessarily be incurred in treating the child’s

hydrocephalus.

Both amended expert reports satisfy the requirements provided in Palacios by

informing the defendant of the specific conduct called into question and giving the

trial court a basis to conclude whether or not the claims have merit. See Palacios , 46

S.W.3d at 878–79. The reports comply with section 74.351 by detailing the standard

of care to which Dr. Findley-Smith was required to conform, the breach of that

standard, causation, and damages. See T ex. Civ. Prac. & Rem. Code Ann . § 74.351;

Palacios , 46 S.W.3d at 878 . Based on the standards articulated in Palacios , we

conclude that appellees made a good faith effort to comply with the statute and that

the trial court did not err in overruling Dr. Findley-Smith’s objections to the expert

reports. Accordingly, the trial court did not abuse its discretion in denying Dr.

Findley-Smith’s motion to dismiss.

We overrule Dr. Findley-Smith’s two issues on appeal.

Conclusion

We affirm the order that denied Dr. Findley-Smith’s motion to dismiss.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.