TTHR, L.P., D/B/A Presbyterian Hospital of Denton v. Normell W. Guyden, Individually and as Heir to the Estate of Natalie J. Guyden

Opinion to: SR TJ EVK ERA GCH LCH JB JS MM TGT

Opinion issued

August 31, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00523-CV

TTHR, L.P. d/b/a Presbyterian Hospital of Denton , Appellant

V.

NORMELL W. GUYDEN,

INDIVIDUALLY AND AS HEIR TO THE ESTATE OF NATALIE J. GUYDEN, DECEASED, Appellee

On Appeal from 113th District Court

Harris County, Texas

Trial Court Cause No. 2008-34015

o p i n i o n

In its sole

issue in this interlocutory appeal, appellant, TTHR, L.P. d/b/a Presbyterian

Hospital of Denton, contends that the trial court abused its discretion when it

denied appellant’s motion to dismiss appellee Normell W. Guyden’s [1]

medical malpractice suit because Guyden did not file a sufficient expert

report. [2] We affirm.

Background

After she

nearly drowned, Natalie Guyden was taken to Presbyterian Hospital in Denton,

Texas, and treated at the hospital for acute respiratory and renal failure,

pneumonia, diabetes mellitus, and anoxic encephalopathy. After almost two months in the hospital, Natalie

developed a urinary tract infection (UTI) which was treated with the antibiotic

Levaquin. Despite laboratory tests

indicating that Natalie’s UTI was caused by a strain of E. coli bacteria resistant to Levaquin, no other antibiotic was

substituted.

Notwithstanding

her infection, on June 15, 2006, Natalie was transferred by ambulance to

Courtyard Convalescent Center, a long-term-care facility in Houston. Although Presbyterian Hospital was required to prepare a

memorandum of transfer informing Courtyard of all relevant diagnoses and

treatments, Natalie’s memorandum of transfer was silent as to both her UTI and

her laboratory results. Notes from

Courtyard documenting information that it received from a Presbyterian Hospital nurse also

make no mention of Natalie’s UTI. As a

result, Natalie’s infection continued unchecked and she died within a day of

arriving at Courtyard. The cause of

death was listed as urosepsis.

Guyden

filed suit against Presbyterian

Hospital , Courtyard, and doctors Christopher

Lockhart and Jamal Mubarak. On September

25, 2008, Guyden timely served all four defendants with the required expert report and curriculum

vitae of his expert, George M. Matuschak, M.D.

Defendant Presbyterian Hospital filed objections to the sufficiency of

Dr. Matuschak’s expert report on October 21, 2008. [3] Six months later, on March 31, 2009, Presbyterian

Hospital filed a motion to dismiss pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code . See

T ex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009). After

a hearing, the trial court overruled Presbyterian Hospital ’s objections and denied the motion

to dismiss. This interlocutory appeal

ensued.

Discussion

Presbyterian Hospital asserts that the trial

court abused its discretion when it determined that Dr. Matuschak’s expert

report satisfied the statutory requirements of Chapter 74 of the Texas Civil

Practice and Remedies Code.

I.

Applicable Law

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. See Am. Transitional Care Centers v.

Palacios , 46 S.W.3d 873, 877 (Tex. 2001); T ex. Civ. Prac. & Rem. Code Ann. § 74.351(Vernon

Supp. 2009) . Although we defer to

the trial court’s factual determinations, we review questions of law de

novo. Rittmer v.

Garza , 65 S.W.3d 718, 722 (Tex. App.—Houston [14th Dist.] 2001, no pet.). To the extent that resolution of the issue

before the trial court requires interpretation of the statute itself, we apply

a de novo standard. Buck v. Blum ,

130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

B.

Chapter 74 Expert Report Requirements

Section

74.351 ostensibly serves as a ‘gate-keeper’ through which no medical negligence

causes of action may proceed until the claimant has

made a good-faith effort to demonstrate that at least one expert believes that a breach of the applicable standard

of care caused the claimed injury. See T ex. Civ. Prac. &

Rem. Code Ann. § 74.351; Murphy v.

Russell, 167 S.W.3d 835, 838 (Tex. 2005). A report need not marshal all of

the plaintiff’s proof but 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, 880 ;

Spitzer v. Berry , 247 S.W.3d 747, 750 (Tex. App.—Tyler 2008, pet. denied)

(quoting Palacios , 46 S.W.3d at 880 ) (stating “fair summary” is

“something less than a full statement” of applicable standard of care, how it was breached, and how that breach

caused injury).

To constitute a good faith effort,

the report must provide enough information to fulfill two purposes: (1) inform

the defendant of the specific conduct that the plaintiff has called into

question; and (2) provide a basis for the trial court to conclude that the

claims have merit. Palacios , 46 S.W.3d at 879 . 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 link his

conclusions to the facts. Bowie Mem’l Hosp. v. Wright , 79

S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff , 998 S.W.2d 882, 890

(Tex. 1999)). The trial court may not

draw any inferences, but must rely exclusively on the information contained

within the report’s four corners. See

Palacios , 46 S.W.3 d at 878 . In addition to setting forth the requisite

criteria, a Chapter 74 report must also be authored by a qualified “expert.” Tex.

Civ. Prac. & Rem. Code Ann.

§ 74.351(r )( 6).

II.

Adequacy

of Expert Report

Presbyterian Hospital argues that the expert

report submitted by Guyden does not satisfy the requirements of section 74.351

because Dr. Matuschak, Guyden’s expert, is not qualified to opine on causation

and, even if he is qualified, his “conclusory statements” are not a “fair

summary” of the standard of care, breach, or causation as to Presbyterian

Hospital.

A. Qualifications

of Experts

Presbyterian Hospital contends

that Dr. Matuschak is unqualified to opine on causation because he is not

licensed to practice medicine in Texas. [4] Section 74.351, entitled “Expert Report,”

defines an “Expert,” “with respect to a person giving opinion testimony 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” in a Chapter 74 report as “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). Under the Texas Rules of Evidence, “[i]f

scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education

may testify thereto in the form of an opinion or otherwise.” Tex.

R. Evid. 702; see also Broders

v. Heise, 924 S.W.2d 148,

153 (Tex. 1996).

Although neither section 74.351(r )( 5)(C) nor the Texas Rules of Evidence explicitly require a

physician to be licensed in Texas, Presbyterian Hospital argues that we must nonetheless

find Dr. Matuschak disqualified on this basis.

According to Presbyterian

Hospital , because the term “physician” is not defined in section 74.351(r)(5)(C)

or anywhere else in the same subchapter, we must apply the general definition

of “physician” as set forth in Subchapter A of Chapter 74 ( sections 74.001–.004) . Subchapter A defines “physician” to mean, inter

alia , “ an individual licensed

to practice medicine in this state .”

Tex. Civ. Prac. & Rem. Code Ann . § 74.001(a )( 23)(A) (Vernon 2005) (emphasis added) .

Section 74.001(a)(23) of

Subchapter A, however, was not intended to define who would or would not be

qualified to author an expert report under section 754.351, but rather which type of defendants were entitled to the

protections and benefits of Chapter 74 as a whole. [5] Such an interpretation comports with the legislature’s

intended purpose for enacting Chapter 74—to protect Texas physicians and other health care providers from the state’s “ medical

malpractice insurance crisis.” See Tex. Civ. Prac. & Rem. Code Ann .

§ 74.001 historical and

statutory notes [Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11,

2003 Tex. Gen. Laws 847 , 884].

Moreover, the cases that Presbyterian Hospital

cites in support of its argument that the general definition of “physician” set

forth in section 74.001(a )( 23) applies to section

74.351 are neither dispositive nor are they persuasive with regard to this

issue. The courts in these cases either

(1) were never presented with the question of whether a physician who was not

licensed to practice medicine in Texas, but was licensed in another state, was

qualified to opine as to causation in a Chapter 74 expert report [6]

or (2) never reached the question because the purported expert was either

licensed in Texas or not licensed at all. [7] In fact, some of these cases actually support

the proposition that section 74.001(a )( 23) was

intended to define the type of claims subject to Chapter 74 and the scope of defendants entitled to

the protections of the chapter. See generally

Pro Path Servs., L.L.P. v. Koch , 192 S.W.3d 667, 672 (Tex. App.—Dallas

2006, pet. denied) (stating that laboratory entitled to benefits and protection

of Chapter 74 because it met definition of “physician” set forth in

section 74.001(a)(23)); Hunsucker v. Fustok , 238 S.W.3d 421, 429

(Tex. App.—Houston [1st Dist.] 2007, no pet.) ( determining

that appellant’s common-law fraud, breach of warranty, and tort claims were

“health care liability claim[s],” and therefore, subject to requirements of

section 74.351’s predecessor statute).

After considering Presbyterian Hospital’s arguments

and authorities, we decline to read a Texas licensure requirement into section 74.351(r )( 5)(C) by way of section

74.001(a)(23). [8] This result comports with the holdings of

three of our sister courts that determined—albeit for other reasons—that a

physician need not be licensed in Texas in order to author a Chapter 74 expert

report. See Kelly v. Rendon , 255

S.W.3d 665, 675 (Tex. App.—Houston [14th Dist.] 2008, no pet. ); Springer

v. Johnson , 280 S.W.3d 322 , 327–30

(Tex. App.—Amarillo 2008, no pet.) ; Tenet

Hosps. Ltd. v. Boada , 304 S.W.3d 528 , 538–39 (Tex. App.—El Paso 2009, pet. denied).

Although we do not adopt the analysis of our sister courts, we

nonetheless agree with their ultimate conclusions.

When no applicable statutory definition is provided ,

such as here, we accept the ordinary meaning of words used unless a contrary

intention is apparent from the context, or unless such a construction

leads to absurd results. City of Rockwall v. Hughes , 246 S.W.3d 621 , 625–26 (Tex.

2008). The term “physician,” as

it is ordinarily used, refers to a person who is licensed to practice

medicine. See Compact Oxford English Dictionary 1332 (2d ed.

1993). It does not impose any

geographical limits. This interpretation is in accord with section 74.401,

entitled “Qualifications of Expert Witness in Suit Against

a Physician,” that is set out in Subchapter I, entitled “Expert

Witnesses.” In regard to “expert witnesses,” section 74.401 defines

“physician” as a person who is “licensed to practice medicine in one or more

states in the United States” or a “graduate of a medical school . . . .” Tex.

Civ. Prac. & Rem. Code Ann . § 74.401(g) (Vernon 2005).

Here, Dr. Matuschak’s report and

curriculum vitae reflect that he is a licensed physician in good standing in

the States of Pennsylvania and Missouri who has been practicing medicine since

1977. He is a board certified internist

with subspecialty board certifications in Critical Care Medicine and Pulmonary

Disease. Dr. Matuschak has also provided

medical evaluation, care, and treatment to acute and chronically ill patients

such as Natalie with urinary tract infections and urosepsis, and he has

“managed and/or directed the management of hundreds of patients with medical

conditions similar to the circumstances seen in Natalie Guyden’s case.” Dr. Matuschak’s report and curriculum vitae

also state that Dr. Matuschak has experience assisting in and supervising the

transfer of such patients to long-term-care facilities, and has knowledge

regarding the documentation required for such transfers.

Thus, we conclude that Dr. Matuschak’s qualifications,

as set forth in his report and his curriculum vitae, sufficiently qualify him

to opine on the proper treatment and care of acute and chronically ill patients

such as Natalie who develop urinary tract infections and the complications that

flow from the failure to properly manage or treat such infections. Accordingly, we conclude that the trial court

did not abuse its discretion in finding Dr. Matuschak qualified by knowledge,

skill, experience, training, or education to opine as to causation, and that

such testimony would assist the trier of fact to understand the evidence or to

determine a fact in issue .

Because Dr. Matuschak is licensed to practice medicine and he is otherwise

qualified to render opinions on causation under Texas Rule of Evidence 702, the

trial court did not abuse its discretion in finding him qualified to opine as

to causation in an expert report under section 74.351(r)(5)(C).

We overrule Presbyterian Hospital ’s

first argument.

B. Standard

of Care, Breach, and Causation

After devoting the lion’s share

of its appellate brief to challenging Dr. Matuschak’s qualifications, Presbyterian Hospital perfunctorily

argues that Dr. Matuschak’s report is deficient because it does not provide a

“fair summary” of his opinions as to standard of care, breach, and

causation. Specifically, Presbyterian Hospital

argues that the report merely states that the hospital “should have

communicated ‘all relevant diagnoses and treatments,’” without identifying what

Presbyterian Hospital

should have done differently or “what makes one diagnoses or treatment

‘relevant,’ and another not ‘relevant.’”

See Palacios , 46 S.W.3d

at 880 (“Identifying the standard of care is critical: Whether a defendant

breached his or her duty to a patient cannot be determined absent specific

information about what the defendant should have done differently.”) With regard to breach and causation, Presbyterian Hospital

also argues that Dr. Matuschak’s statement that the hospital failed to

“effectively communicate relevant diagnoses and treatments” and that “but for

the negligence of the Hospital. . . Natalie Guyden would not have suffered from

and died from urosepsis” is “completely conclusory” because it is not supported

by any facts.

Presbyterian Hospital , however, has taken Dr.

Matuschak’s statements out of context and attempted to analyze these statements

in a vacuum, rather than looking to the report as a whole. In his report, Dr. Matuschak states that a

urine specimen was collected from Natalie on June 12, 2006 and sent to Presbyterian Hospital ’s

laboratory for testing, including culture and sensitivity (C&S)

studies. The C&S report prepared by

the laboratory indicated that Natalie’s UTI was caused by a Levaquin-resistant

pathogen. This information was available

to the Presbyterian

Hospital prior to Natalie’s discharge and transfer to Courtyard on June

15, 2006. Despite the laboratory results

and the availability of other antibiotics, Natalie continued to be treated with

Levaquin. Dr. Matuschak states that in

his professional opinion, had Natalie been taken off Levaquin and treated with

“an effective antibiotic based upon the urine C&S as detailed above,

Natalie would not have suffered and died from urosepsis.”

With respect to the standard of care

applicable to Presbyterian

Hospital , Dr. Matuschak states in pertinent part:

The standards of

healthcare/nursing care dictate that an [sic] Presbyterian Hospital of Denton

via its employees or agents, administrators and/or nurses should have thoroughly communicated with the accepting long-term

care facility about Natalie Guyden’s UTI under treatment and pending laboratory

results if any. The standards of

healthcare/nursing care dictate that Presbyterian Hospital of Denton via its

employees or agents, administrators and/or nurses should have notified the Center of Natalie’s UTI under treatment

and pending laboratory results if any via the Memorandum of Transfer. The standards of healthcare/nursing care

dictate that Presbyterian Hospital of Denton via its employees or agents,

administrators and/or nurses should have

notified the Center of Natalie’s UTI under treatment and pending laboratory

results if any via the verbal transfer communications between Nurse Hanning

that occurred on June 15, 2006.

(Emphasis added.)

Having set forth the applicable

standard of care, Dr. Matuschak goes on to state that:

In contrast, the Memorandum

of Transfer for the Hospital does not contain any information about Natalie’s

UTI nor any information about any pending diagnostic studies, if any were

pending, concerning the UTI. Moreover, the notes from Courtyard documenting the

information received from the Hospital via Nurse Hanning on June 15, 2006 does

not contain any information about Natalie’s UTI nor any information about any

pending diagnostic studies, if any, concerning the UTI. Thus, it is my medical professional opinion

that the Hospital’s healthcare/nursing care with respect to their failure to

communicate relevant information about Natalie’s evaluation and treatment for a

UTI represents healthcare/nursing care negligence.

With regard to causation, Dr. Matuschak states:

Furthermore, based upon my

qualifications discussed above and in my CV, the medical science discussed in the

“general section” above, the medical facts summarized above, that but for the

negligence of the Hospital as set forth in this section, Natalie Guyden would

not have suffered from and died from urosepsis.

That is, more likely than not had the relevant medical information been

communicated to the Center by the Hospital the Center would have timely and

appropriately responded to the acute change in Natalie’s condition on June 15th

and 16th 2006 so that timely and appropriate treatment of her urosepsis

could have ensued. Thus, it is my

professional opinion to a reasonable degree of medical probability that

Presbyterian Hospital of Denton’s negligent care was a proximate cause of

Natalie Guyden’s injuries from a urinary tract infection and her death from urosepsis.

Dr. Matuschak’s report identifies

three specific actions that the applicable standard of care required, but

Presbyterian failed to do, and sets forth sufficient facts linking Presbyterian Hospital ’s

purported breaches to the alleged injury.

See Bowie Mem’l Hosp ., 79 S.W.3d at 52 (requiring expert to explain basis of his statements regarding causation and link his conclusions to facts). Dr. Matuschak’s statements also make it clear

that he has informed Presbyterian

Hospital of the specific conduct that Guyden called into question—the

hospital’s failure to inform Courtyard of Natalie’s UTI diagnosis and treatment,

and pending laboratory results, if any—and he has provided sufficient

information for the trial court to conclude that Guyden’s claims have merit

with respect to Presbyterian. See Palacios , 46 S.W.3d at 879

(stating expert report must inform defendant of specific conduct that plaintiff

has called into question and provide basis for trial court to conclude that

claims have merit).

Therefore, keeping in mind that section

74.351 expert reports are a preliminary method to show that

a plaintiff has a viable cause of action that is not frivolous or without

expert support, we hold that the trial court acted within its discretion in

concluding that Dr. Matuschak’s report represents an objective good faith

effort to identify and set forth how Presbyterian Hospital breached the

applicable standards of care and the causal relationship between those failures

and the injuries claimed.

We overrule Presbyterian Hospital’s second,

third, and fourth arguments.

CONCLUSION

We affirm

the trial court’s order denying Presbyterian Hospital ’s motion to dismiss.

Jim

Sharp

Justice

Panel

consists of Justices Jennings, Higley, and Sharp.

[1] Guyden

is suing individually and as heir to the Estate of Natalie J. Guyden, deceased.

[2] If a health care liability claimant

fails to serve an expert report within 120 days of filing suit, a defendant

physician or health care provider may file a motion with the trial court

requesting attorney’s fees and dismissal of the claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a )( 9) (Vernon 2008) (allowing appeal

from interlocutory order that

denies all or part of relief sought by motion pursuant to section 74.351(b)).

[3] Neither

Dr. Mubarak nor Courtyard objected to the

sufficiency of Guyden’s initial Chapter 74 expert report. Neither defendant is a party to this appeal.

Dr.

Lockhart also filed objections to Dr. Matuschak’s expert report on October 16,

2008. After a non-evidentiary hearing on

November 10, 2008, the trial court denied Dr. Lockhart’s motion to dismiss and

overruled his objections to Dr. Matuschak’s report. On December 1, 2008, Dr. Lockhart filed an

interlocutory appeal with this Court challenging the ruling. This Court heard arguments and on July 16,

2009 issued a memorandum opinion reversing the ruling and remanding the case

for further proceedings. Lockhart v. Guyden , No. 01-08-00983-CV , 2009 WL 2050983 , at * 4 (Tex. App.—Houston [ 1st Dist .] July 16,

2009) (mem. op.). The trial court

subsequently granted Guyden a 30-day extension of time to cure the report’s

deficiencies. On September 15, 2009,

during the pendency of this appeal, Dr. Matuschak prepared and served an

amended expert report. The amended

report, however, is not part of this appeal.

[4] Presbyterian

does not argue that Dr. Matuschak is not qualified to opine as to the

applicable standard of care or any breaches thereof.

[5] See generally Tex. Civ. Prac. & Rem. Code Ann .

§ 74.001(a )( 10)

(Vernon 2005) (defining “health care”); id. at § 74.001(a)(13) (defining “health care liability claim” as “a

cause of action against a health care provider or physician…”); id. at § 74.001(a)(12)(A)(vii) (defining “health care

provider” as “a health care institution”); id. at § 74.001(a)(11)(G),(H) (defining “health care institution” as a hospital

or hospital system); id. at § 74.001(a)(16),(17)

(defining “hospital” and “hospital system”); id. at § 74.001(a)(23)(A) (defining

“physician” as “an individual licensed to practice medicine in this state”).

[6] See Pro Path Servs., L.L.P. v. Koch ,

192 S.W.3d 667, 672 (Tex. App.—Dallas 2006, pet. denied) (stating that

laboratory entitled to benefits and protection of Chapter 74 because it met

definition of “physician” set forth in section 74.001(a)(23)); Hunsucker

v. Fustok , 238 S.W.3d 421, 429 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) ( determining that appellant’s common-law fraud, breach

of warranty, and tort claims were “health care liability claim[s]” and

affirming dismissal of claims for failure to submit expert report; court was

not presented with, and did not address, question of whether expert was

qualified to opine as to causation in a Chapter 74 expert report).

[7] See

Foster v. Zavala , 214

S.W.3d 106, 112 (Tex. App.—Eastland 2006, pet. denied) (purported expert

licensed to practice medicine in Texas); Li v. Billingsley , No.

05-08-00436-CV, 2009 WL 242523 , at *2 (Tex.

App.—Dallas Feb. 3, 2009, no pet.) ( mem . op.) ( purported expert—a chiropractor—was not licensed to practice

medicine anywhere in United States); Azle Manor, Inc. v. Vaden , No.

02-08-00115-CV, 2008 WL 4831408 , at *9 (Tex.

App.—Fort Worth Nov. 6, 2008, no pet.) ( mem . op.) ( purported expert licensed to practice medicine in Texas).

[8] Section

74.401(g )( 1) also defines the term “physician.” This definition, however, only applies to

Subchapter I, and is likewise inapplicable to Subchapter H’s section 74.351(r )( 5)(C). See Tex.

Civ. Prac. & Rem. Code Ann .

§ 74 .401(g )( 1) (defining “physician” for purposes of “this subchapter”).