Anna M. Beckwith v. Stephen White, M. D.

Opinion issued February 5, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00680-CV

ANNA MARIA BECKWITH, Appellant

V.

STEPHEN WHITE, M.D., Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 07-DCV-159259

O P I N I O N

This is a healthcare liability suit governed by Chapter 74 of the Texas Civil

Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 74.001–.507 (Vernon 2005 & Supp. 2008). Appellant, Anna Maria Beckwith,

appeals from the trial court’s order dismissing her suit against appellee, Stephen

White, M.D.

In two issues, Beckwith contends that the trial court erred by dismissing her

suit because (1) Dr. White waived his objections to the qualifications of her expert,

Dr. John Fisher, by failing to timely object and (2) Dr. Fisher “was competent to

render a standard of care opinion as to Dr. White.”

We reverse and remand.

Background

In May 2006, Dr. White removed a tattoo from Beckwith’s ankle using an

“infrared coagulator device.” Dr. White informed Beckwith that “spots of second

degree burn w[ould] be created in order to break up the tattoo ink.”

After the procedure, Beckwith experienced discoloration of the skin,

disfigurement, and severe pain. Beckwith sought treatment from Dr. Glen Garner,

who determined that Beckwith had suffered third-degree burns, “full thickness skin

necrosis,” and infection in her ankle. Dr. Garner’s treatment of the ankle included

performing a skin graft from Beckwith’s thigh.

Beckwith sued Dr. White for negligence. In her original petition, filed on

September 14, 2007, Beckwith alleged that “Dr. White’s use of an infrared coagulator

was below the standard of care for physicians in the same or similar circumstances

as him because the extremely crude nature of the device exposes the patient to an

increased risk of injury”; that “Dr. White failed to use an ultra-short pulsed Nd:YAG

laser, which delivers a pulse duration so short that almost no heat is transferred to the

skin”; and that Dr. White’s use of the infrared coagulator caused “full thickness skin

necrosis,” the treatment of which required a skin graft.

On October 30, 2007, Beckwith served Dr. White with the original petition and

the expert reports and curricula vitae of Glen Garner, M.D., and John C. Fisher, Sc.D.

According to his report and curriculum vitae, Dr. Garner is a graduate of the

University of Oklahoma medical school, has been licensed to practice medicine in

Texas since 1998, has been actively engaged in the practice of surgery since 2002,

and is certified by the American Board of Surgery. With regard to this case, Dr.

Garner attested as follows:

[T]he standard of care for tattoo removal and use of lasers and other

devices is well-documented and supported in the medical literature . . .

[but] is however beyond the scope of my practice and I therefore cannot

render an opinion on its proper use, indications for use, or associated

complications and their incidence.

In very brief summary, I have reviewed the single page handwritten

notes by Dr. White . . . . It describes the tattoo evaluation, treatment

with infrared coagulator tattoo removal device, and subsequent follow-up evaluation respectively. My only concern is noted on the informed

consent page, line 2 describing spots of “second degree burn” are to be

created by the coagulator device to disrupt the tattoo ink. As

documented in my initial evaluation of Mrs. Beckwith, her wound in the

area of the previously treated tattoo exhibited full thickness (i.e. 3rd

degree burn) skin loss, necrosis and early wound infection . . . .

[Discussion of the standard of care as it seems to relate to Dr. Garner’s

own treatment of Beckwith’s wound.]

It is my opinion that the resulting full thickness skin necrosis and tissue

loss following tattoo removal is not an expected or acceptable outcome

in any patient. This opinion is based on my knowledge and experience

in wound management and the management of burn patients.

According to the report and curriculum vitae of Dr. Fisher, Dr. Fisher has a

master’s degree in electrical engineering and a doctorate in applied physics from

Harvard University and is a “Consultant in Laser Medicine and Surgery.” Dr. Fisher

has taken approximately 160 medical education courses focusing on laser surgery and

treatment. Among the numerous affiliations he lists, Dr. Fisher is a founding member

and the president of the American Board of Laser Surgery (the sole medical testing

board in the United States for laser surgery); a founding fellow of the American

Society for Laser Medicine and Surgery; a member of the surgical staff at St.

Barnabas Medical Center, Livingston, New Jersey; a former member of the consulting

staff of St. Luke’s Medical Center, Milwaukee, Wisconsin; and a former fellow of

laser medicine and surgery at the University of Cincinnati Medical College. Dr.

Fisher lists 37 publications that he has authored in the area of laser medicine and

surgery, and lists some 250 courses and seminars on laser medicine and surgery that

he has presented at hospitals and university medical programs worldwide, including

Mt. Sinai Medical Center, New York City, and Boston University Medical Center.

Dr. Fisher states that he has served as an expert witness in several legal actions

brought against physicians for various allegations of malpractice involving the use

of lasers and electrosurgery, including thermal injuries and dermal scarring from

resurfacing.

In his report, Dr. Fisher opined, in relevant part, that “[i]t was dangerous and

inappropriate to use an infra-red coagulator to remove the tattoo from the leg of the

plaintiff, Anna Beckwith” and that it was “not the proper treatment for tattoo removal

without patient injury.” Dr. Fisher states that “The correct procedure for removal of

a tattoo without injury to the patient is to use an ultra-short pulsed Nd:YAG laser”

because “the pulse duration is so short that almost no heat is transferred to the

adjacent skin.” According to Dr. Fisher, “Dr. White evidently did not have sufficient

laser experience to know the proper technique for removal of tattoos without serious

injury to the patient. His technique in my opinion was crude in the extreme.”

On November 28, 2007, Dr. White objected to the sufficiency of the expert

reports. Specifically, Dr. White contended that the reports of Drs. Garner and Fisher,

“taken together,” (1) did not delineate the standard of care; (2) did not explain how

that standard of care was breached by [Dr. White]; (3) gave only conclusory opinions

regarding causation; and (4) did not hold opinions to a reasonable degree of medical

probability.” Dr. White moved to dismiss Beckwith’s suit on the basis that she had

failed to timely file an expert report that complied with Civil Practice and Remedies

Code section 74.351. After a hearing, the trial court denied the motion.

On April 22, 2008, Dr. White filed a second motion to dismiss on the basis that

Dr. Fisher failed to state in his report that he is familiar with the infrared coagulator

used in this case and on the basis that Dr. Fisher is not a physician, as required under

section 74.401 of the Civil Practice and Remedies Code, and is therefore not qualified

to render an expert report.

On May 5, 2008, the trial court held a hearing on Dr. White’s second motion

to dismiss, but did not make a ruling. At a hearing on June 16, 2008, the trial court

announced its finding that Dr. White had “waived the objection by failing to object

timely” and that, even though Fisher is not an M.D., . . . the report constitutes a report

as contemplated by the statute.” The court stated that its reason for admitting Fisher’s

testimony was “Fisher’s unique knowledge of lasers and his experience teaching

physicians, and the case involves, the way I understand it, [Dr. White’s] choice of the

laser machine used, rather than his medical decision on how to use the machine.” At

the hearing, Dr. White asked the court to reconsider its holding on the basis that the

infrared coagulator was not actually a laser. At the close of the hearing, the trial court

granted Beckwith 30 days to amend Dr. Fisher’s report to demonstrate Dr. Fisher’s

familiarity with the infrared coagulator.

Subsequently, Beckwith submitted an amended report of Dr. Fisher, in which

he attested as follows, in relevant part:

Yes[,] I am familiar with an infrared coagulator. It is a thermal emitter

of radiation . . . used to coagulate bleeding by the heat produced on the

target tissue. . . . [discussion of mechanics]. It is used primarily for

treating hemorrhoids. When used far less frequently for cosmetic

purposes such as tattoo removal, the device induces burns to the skin

around the area of the tattoo, seeking to remove the pigment by burning

away the skin. . . . The i.r. coagulator used in this case with Anna

Beckwith was in my opinion not the proper choice for tattoo removal.

The proper device would have been a short pulsed Nd:YAG laser . . .

[discussion of rationale]. What Dr. White did by using the i.r.

coagulator was to cause thermal death of the skin of Mrs. Beckwith by

heat . . . . In my opinion, any competent laser dermatologist physician

would know the proper equipment and technique to use.

On July 15, 2008, Dr. White moved to dismiss the suit on the basis that Dr.

Fisher’s statements in the amended report were conclusory and that the report did not

rectify that Dr. Fisher is not a physician. Beckwith maintained that these objections

were not timely raised and therefore had been waived.

On July 28, 2008, after a hearing, the trial court dismissed with prejudice

Beckwith’s suit against Dr. White. This appeal ensued.

Timeliness of Objections

In her first issue, Beckwith contends that the trial court erred by dismissing her

suit because Dr. White waived his objections to the qualifications of her expert, Dr.

John Fisher, by failing to timely object.

A. Standard of Review

We review a trial court’s decision on a motion to dismiss a case for failure to

comply with section 74.351 for an abuse of discretion. Am. Transitional Care Ctrs.

of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of

discretion standard in review of trial court’s decision to dismiss under predecessor

statute, section 13.01(e) of article 4590i); Torres v. Mem’l Hermann Hosp. Sys. , 186

S.W.3d 43, 45 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A trial court abuses

its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules

or principles when it dismisses a claim. Torres , 186 S.W.3d at 45 . However, to the

extent that resolution of the issue requires us to construe statutory language, we

review under a de novo standard. Id.

B. Applicable Law

Section 74.351 of the Civil Practice and Remedies Code provides as follows,

in relevant part:

(a) In a health care liability claim, a claimant shall, not later than

the 120th day after the date the original petition was filed, serve

on each party or the party’s attorney one or more expert reports,

with a curriculum vitae of each expert listed in the report for

each physician . . . against whom a liability claim is asserted.

. . . Each defendant physician . . . whose conduct is implicated

in a report must file and serve any objection to the sufficiency

of the report not later than the 21st day after the date it was

served, failing which all objections are waived.

(b) If, as to a defendant physician . . . , an expert report has not been

served within the period specified by Subsection (a), the court,

on the motion of the affected physician . . . , shall, subject to

Subsection (c), enter an order that: (1) awards to the affected

physician . . . reasonable attorney’s fees and costs . . . ; and (2)

dismisses the claim with respect to the physician . . . , with

prejudice to the refiling of the claim.

(c) If an expert report has not been served within the period

specified by Subsection (a) because elements of the report are

found deficient, the court may grant one 30-day extension to the

claimant in order to cure the deficiency. . . .

Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2008).

The expert report requirement may be satisfied by serving multiple reports, as

follows:

Notwithstanding any other provision of this section, a claimant may

satisfy any requirement of this section for serving an expert report by

serving reports of separate experts . . . regarding different issues arising

from the conduct of a physician . . . , such as issues of liability and

causation. Nothing in this section shall be construed to mean that a

single expert must address all liability and causation issues . . . with

respect to both liability and causation issues for a physician . . . .

Id. 74 .351(i).

An “expert report” is 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 . . . failed

to meet the standards, and the causal relationship between that failure

and the injury, harm, or damages claimed.

Id. 74 .351(r)(6) (emphasis added). Section 74.351 defines an “expert,” with respect

to a person giving testimony regarding whether a physician departed from accepted

standards of medical care, as someone qualified to testify under the requirements of

section 74.401. Id. § 74.351(r)(5)(A).

Pursuant to 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 [additional enumerated qualifications].” Tex. Civ.

Prac. & Rem. Code Ann. § 74.401(a) (emphasis added). A trial court may depart

from this criteria “if, under the circumstances, the court determines that there is a

good reason to admit the expert’s testimony” and the court states on the record the

reason for admitting the testimony. Id. 74 .401(d). Section 74.401 provides, in

relevant part, that “[a] pretrial objection to the qualifications of a witness under this

section must be made not later than . . . the 21st day after the date the objecting party

receives a copy of the witness’s curriculum vitae . . . .” Id. § 74.401(e).

C. Analysis

Here, Beckwith’s burden as a health-care-liability claimant was to timely serve

Dr. White with “one or more expert reports, with a curriculum vitae of each expert.”

See Tex. Civ. Prac. & Rem. Code Ann . § 74.351(a). The parties do not dispute that

Beckwith timely served Dr. White with the reports of Drs. Warner and Fisher.

Dr. White contends that because Dr. Fisher is not a physician, he is not an

expert under section 74.401, and thus his report is the legal equivalent of “no report”

under section 74.351. Dr. White contends that Beckwith never met her initial burden

to serve an expert report, and therefore he had no duty to object. Conversely,

Beckwith contends that Dr. White’s objection to Dr. Fisher’s qualifications go to the

sufficiency of the report and that Dr. White had a duty to timely raise such objection,

which he failed to do.

Applying section 74.351(a), once Dr. White’s “conduct [was] implicated in a

report,” Dr. White’s burden arose to “file and serve any objection to the sufficiency

of the report not later than the 21st day after the date it was served.” See id.

The term “implicated” is not defined in Chapter 74. Section 74.001 provides

that, “[a]ny legal term or word of art used in this chapter, not otherwise defined in this

chapter, shall have such meaning as consistent with the common law.” Tex. Civ.

Prac. & Rem. Code Ann. § 74.001(b) (Vernon 2005). The term “implicate” is

defined in common usage as “[t]o show (a person) to be involved in.” Black’s Law

Dictionary 757 (7th ed. 1999). Although somewhat loosely defined at common

law, a defendant’s conduct is implicated when an expert report is “directed primarily”

to care provided by the defendant, Ogletree v. Matthews , 262 S.W.3d 316, 318 (Tex.

2007), and the report informs the defendant of specific conduct called into question

and provides a basis for the trial court to determine that the claim has merit. Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873 , 876–80 (Tex. 2001).

If an allegedly deficient report implicates the defendant, the twenty-one day deadline

to object to the sufficiency of the report is triggered. Maris v. Hendricks , 262 S.W.3d

379, 386 (Tex. App.—Fort Worth 2008, pet. denied).

Here, Dr. Fisher states in his report that

[t]he i.r. coagulator used in this case with Anna Beckwith was in my

opinion not the proper choice for tattoo removal. . . . What Dr. White did

by using the i.r. coagulator was to cause thermal death of the skin of

Mrs. Beckwith by heat. . . . In my opinion, any competent laser

dermatologist physician would know the proper equipment and

technique to use.

In Ogletree , nurses’ reports that were “directed primarily to the care provided” and

that “outlined various alleged failures” implicated the defendants’ conduct therein.

262 S.W.3d at 318, 322. Here, because Dr. Fisher’s report is primarily directed to Dr.

White’s choice of the infrared coagulator to remove a tattoo from Beckwith’s leg, Dr.

White’s conduct is implicated.

Hence, Dr. White’s burden to timely assert any

objections to the sufficiency of the report was triggered.

Dr. White contends that his objection to Dr. Fisher’s qualifications does not go

to the sufficiency of the report; rather, that Dr. Fisher’s status as a non-physician is

per se fatal to whether Beckwith satisfied her initial burden to serve an expert report.

Generally, section 74.401(a) requires that “an expert witness on the issue of

whether the physician departed from accepted standards of medical care” be a

physician. Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a). However, pursuant to

section 74.401(d), a trial court may depart from the criteria at section 74.401(a), “if,

under the circumstances, the court determines that there is a good reason to admit the

expert’s testimony” and the court states on the record the reason for admitting the

testimony. Id. § 74.401(d). Section 74.401(e) clearly provides that “[a] pretrial

objection to the qualifications of a witness under this section ” is subject to a 21-day

deadline. See id. § 74.401(e) (emphasis added). Here, Dr. White was required to

assert any objection to Dr. Fisher’s qualifications as a non-physician within 21 days

of receiving Dr. Fisher’s curriculum vitae. See id. § 74.401(a), (e); see also Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(a); Ogletree , 262 S.W.3d at 322 (concluding that

objection that nurses, as non-physicians, were not qualified to render opinion as to

causation under statute “are directed to the report’s sufficiency” and “could have been

urged within the statutory twenty-one day period, as the statute clearly requires”).

It is undisputed that Dr. White was served with the expert report and

curriculum vitae of Dr. Fisher on October 30, 2007 and that Dr. White did not raise

any objection to Dr. Fisher’s qualifications until seven months later, on April 22,

2008. We conclude that Dr. White’s objections were untimely and therefore are

waived. See Tex. Civ. Prac. & Rem. Code Ann . § 74.351(a).

We hold that the trial court erred by dismissing Beckwith’s suit on the basis of

the sufficiency of her expert reports.

Conclusion

We reverse the judgment of the trial court and remand for proceedings

consistent with this opinion.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Keyes, and Higley.