Daniel Darmadi, M.D. v. Gene Harshman

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

Opinioned issued August 31, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00307-CV

daniel darmadi, m.d. , Appellant

V.

gene harshman , Appellee

On Appeal from the 133rd District Court

Harris County,

Texas

Trial Court Cause No. 2008-44005

MEMORANDUM opinion

The sole

issue of this interlocutory appeal is whether the trial court abused its

discretion by not dismissing the medical negligence case against appellant,

Daniel Darmadi, M.D., because the expert report submitted on behalf of appellee,

Gene Harshman, did not satisfy the requirements of Chapter 74 of the Texas

Civil Practice and Remedies Code. We

agree that the report was deficient and reverse and remand.

Background

Gene

Harshman’s uvula [1]

was lacerated during an endoscopic

retrograde cholangiopancreatography ( ERCP ) performed by Daniel Darmadi, M.D. The laceration, which bled profusely due to

blood-thinning medication that Harshman was taking at the time, required

subsequent reparative surgery. Harshman

asserts that the excessive bleeding created a life-threatening condition that

Dr. Darmadi improperly managed.

Following receipt

of the expert report and curriculum vitae of Harshman’s expert, Lige B.

Rushing, Jr., M.D., Dr. Darmadi objected to its sufficiency and subsequently filed

a motion to dismiss. [2] After a hearing, the trial court denied Dr.

Darmadi’s motion to dismiss. On appeal,

Dr. Darmadi argues that the trial court abused its discretion by finding that the

report satisfied the statutory requirements of Chapter 74.

Dr.

Rushing’s Expert Report

I.

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) . A trial

court abuses its discretion if it acts in an arbitrary or unreasonable manner

or without reference to any guiding rules or principles. See Walker v. Gutierrez , 111 S.W.3d 56, 63

(Tex. 2003). When reviewing matters

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

judgment for that of the trial court. Walker

v. Packer , 827 S.W.2d 833, 839 (Tex. 1992). 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.).

II.

Chapter 74 Expert Report Requirements

If, after hearing, it appears

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

statutory definition of an expert report the trial court shall grant the

motion. See T ex. Civ. Prac. & Rem. Code Ann. § 74.351(1); see also id.

at § 74.351(r)(6); Palacios , 46

S.W.3d at 877 . An “expert report” for

the purposes of section 74.351(r)(6) , must be

rendered by someone qualified to testify as an expert on the relevant medical

subject area. See Hansen v. Starr , 123 S.W.3d 13, 20 (Tex. App.—Dallas

2003, pet. denied).

Our evaluation requires a

determination of whether the report “represents a good-faith effort” to comply

with the statute. Strom v. Mem’l Hermann Hosp. Sys ., 110 S.W.3d

216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Although the report need not marshal all of

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, 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 the applicable standard of care, how

it was breached, and how that breach caused the injury).

In detailing these elements, 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 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)). Further, in assessing the

report’s sufficiency, the trial court may not draw any inferences, and instead

must rely exclusively on the information contained within the four corners of

the report. See Palacios , 46

S.W.3d at 878 .

III.

Adequacy of Dr. Rushing’s Expert Report

Dr. Darmadi argues that the proffered

expert report is insufficient because it does not provide a “fair summary” of Dr.

Rushing’s opinions regarding standard of care, breach and causation, and to the

extent that Dr. Rushing addresses these elements, those portions of the report

are conclusory. [3] The only conduct Dr. Rushing appears to take

issue with is Dr. Darmadi’s management of Harshman’s post-ERCP care. Specifically, in his report, Dr. Rushing

states in pertinent part:

In my opinion, Dr. Darmadi

should have returned to the hospital and examined [Harshman] to determine the

site of the bleeding. He should have

attended [Harshman] during this time and personally contacted the surgeon and

made sure that appropriate consultation and treatment was obtained. He has an obligation to follow-up when there

is a complication for a procedure, which he performed. Even though he was not qualified/able to do

[sic] to perform the reparative surgery, he should have been available and

facilitated this procedure and provide supportive care.

. . .

It is my opinion that Dr.

Daniel Darmadi did breach the standard of care when he failed to return to the

hospital to follow-up a post-procedure complication from the procedure that he

performed.

Having done so, the report provided

Dr. Darmadi with a fair summary of Dr. Rushing’s opinions concerning the

applicable standard of care and how Dr. Darmadi failed to meet that standard of

care. See Palacios, 46 S.W.3d at 880 . The report also informed Dr. Darmadi of the

specific conduct Harshman has called into question—Dr. Darmadi’s departure from

the hospital and his alleged failure to properly manage Harshman’s

post-procedure complications. See id.

at 879 . Thus, pursuant to Palacios and its progeny, Dr. Rushing’s report is sufficient with

regard to standard of care and breach.

Dr. Rushing’s report, however, is

insufficient with regard to the element of causation because he does not link

Dr. Darmadi’s alleged conduct with Harshman’s injuries. Although Harshman attempts to read such

causal links into Dr. Rushing’s report, we are neither allowed to draw such

inferences nor may we rely upon Harshman’s brief to supplement his expert’s

report on this issue. See id. at

878 (requiring that court rely exclusively on information contained within four

corners of expert report). Dr. Rushing’s

report, on its face, is completely devoid of any discussion of the required

element of causation. See id. at

879 (report that omits any required statutory element—standard of care, breach,

and causation—cannot represent “good-faith effort” to comply with statute). In light of this omission, it is apparent

that the trial court acted without reference to any guiding rules or principles

when it f ound that Dr.

Rushing’s report constituted a “good-faith effort” to comply with the statute. Accordingly, the trial court abused its

discretion when it found Dr. Rushing’s report satisfied the requirements of

Chapter 74 with regard to the element of causation.

IV.

Dr. Rushing’s Qualifications

In his second argument, Dr.

Darmadi contends that the proffered expert report is insufficient because it

fails to establish that Dr. Rushing is qualified to opine on the issue of

standard of care. [4] Specifically, Dr . Darmadi argues that Dr. Rushing, a specialist

in geriatrics and rheumatology, is unqualified to opine as to the applicable

standard of care for a gastroenterologist’s post-ERCP care of a patient who

sustained a laceration of his uvula.

A person opining as to whether a

physician departed from accepted standards of medical care is considered an

“expert” so long as he or she is qualified to give such testimony under section

74.401. Tex. Civ. Prac. & Rem. Code Ann . § 74.351(r)(5)(A); see also id.

at § 74.401 (Vernon 2005).

Section 74.401(a) provides that a person may qualify to opine on whether

a physician departed from accepted standards of medical care if that person (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. at § 74.401(a) ; see also McKowen v. Ragston , 263 S.W.3d 157, 161 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) .

To determine whether an expert’s

training or experience yields sufficient qualifications to offer an expert opinion

regarding those accepted standards of medical care, we consider whether the

expert is (1) board certified or has other substantial training or experience

in the area of medical practice relevant to the claim and (2) actively

practicing medicine in rendering medical care services relevant to the

claim. Tex.

Civ. Prac. & Rem. Code Ann . §

74.401(c) ; see Kelly v. Rendon , 255 S.W.3d 665, 674 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (recognizing that section 74.401 “does not require a medical

expert be practicing in the exact same field as the defendant physician, but

instead must only be actively practicing medicine in rendering medical care

services relevant to the

claim”) (emphasis added); see , e.g. , McKowen , 263 S.W.3d at 162, 167 (permitting infectious disease

physician to opine on defendant cardiothoracic surgeon’s standard of care with

respect to treatment of infection stemming from arteriovenus access graft).

Dr. Rushing, who is board certified in Internal Medicine,

Geriatrics, and Rheumatology and an attending physician at Presbyterian

Hospital in Dallas, does not profess to have any experience with regard to the

relevant medical claim—post-procedure care and treatment of ERCP-related

complications, including excessive bleeding.

Although he acknowledges in his report that “laceration[s] of the

oropharynx. . .and hemorrhage” are known complications associated with

endoscopic procedures, Dr. Rushing never states that he has experience treating

such complications. [5] Rather than addressing this omission on the

part of his expert, Harshman simply argues that the treatment of post-ERCP

complications, including excessive bleeding, is “clearly within the purview of

an Internist/Geriatrician such as Dr. Rushing.”

Although it might be reasonable

to infer

from the contents of his expert report and curriculum vitae that Dr. Rushing might

have acquired experience in the treatment and care of post-ERCP complications

including excessive bleeding, during his years of practice, or that he might

have knowledge of the standard of care applicable to the care or treatment of

such conditions, neither we nor the trial court are allowed to make any such inferences

regarding Dr. Rushing’s qualifications . See Wright, 79 S.W.3d at 53 ; Hansen,

123 S.W.3d at 20 (stating that expert must show qualifications

in report). In light of the fact

that Dr. Rushing never professed to have any knowledge of or experience in the

treatment of post-ERCP complications, such as excessive bleeding, we conclude

that the trial court acted without reference to guiding rules or principles

when determining that Dr. Rushing was qualified to opine on the issue of standard

of care, and so abused its discretion in finding the report to be

sufficient. See Moore v. Gatica , 269 S.W.3d 134, 140 (Tex. App.—Fort Worth 2008,

pet. denied) (stating that expert report authored by person not qualified to

testify regarding standard of care is “cannot constitute an adequate report”).

We sustain Dr. Darmadi’s sole issue.

V.

30-Day Extension

Having determined that the trial

court abused its discretion in finding the expert report to be sufficient, we

must now determine the proper disposition of this case. In his reply brief, Dr. Darmadi argues that

if we determine that the trial court abused its discretion in finding Dr.

Rushing’s report sufficient that we must either (1) reverse and remand for entry of judgment

dismissing the claims and awarding attorney’s fees and costs or (2) reverse and

render suit dismissed with prejudice because the report is actually “no report

at all” as to Dr. Darmadi and therefore remand for consideration of a 30-day

extension is inappropriate.

Two of the cases that Dr. Darmadi cites for this

proposition are distinguishable from the present case because those cases

involve reports that are not merely deficient, but rather non-existent, with

respect to particular defendants. See Jernigan v. Langley , 195 S.W.3d

91 , 93–94 (Tex. 2006) (stating that report that only mentioned defendant

physician in passing was no report as to that defendant); Garcia v.

Marichalar , 185 S.W.3d 70 , 73–74 (Tex. App.—San Antonio 2006, no pet.) (stating

that report that failed to mention defendant physician was no report as to that

defendant); see , e.g. , Olgetree v. Matthews ,

262 S.W.3d 316 , 320–21 (Tex. 2007) (“ Indeed, the Legislature recognized

that not all initial timely served reports would satisfy each of the statutory

criteria. As a result, the amendments

explicitly give trial courts discretion to grant a thirty-day extension so that

parties may, where possible, cure deficient reports. In

this important respect, a deficient report differs from an absent report .”)

(emphasis added) (internal citation omitted). The third case

Dr. Darmadi relies upon does not even support the proposition. See

Austin Heart, P.A. v. Webb ,

228 S.W.3d 276 , 283–84 (Tex. App.—Austin 2007, no pet.) (distinguishing Jernigan and Garcia and finding report that failed to expressly articulate link

between defendant physician’s conduct and expert’s conclusions deficient, but

potentially curable, and remanding to trial court for consideration of whether

30-day extension was warranted).

Contrary to Dr. Darmadi’s contention, when a report is

deficient—as opposed to absent—the proper disposition is to remand the

case to the trial court for consideration of whether a 30-day extension to cure

the deficiency is warranted. See Leland

v. Brandal , 257 S.W.3d 204, 208 (Tex. 2008) (holding court of

appeals has discretion to remand case for consideration of thirty-day extension

to cure deficient expert report); Gardner

v. U.S. Imaging, Inc ., 274

S.W.3d 669, 671 (Tex. 2008) (relying upon Leland ;

expressly rejecting defendants’ contention that expert report which was conclusory

as to causation was so deficient as to constitute no report at all and vacating

judgment and remanding for consideration of thirty-day extension); cf. Scoresby v. Santillan , 287 S.W.3d

319, 324 (Tex. App.—Fort Worth 2009, pet. granted) (stating

that n o Texas Supreme Court opinion has held that timely

served expert report which contains narrative that fails to include any expert

opinion on standard of care, breach, or causation is tantamount to no report at

all and thus ineligible for 30-day extension.)

Having determined that Dr. Rushing’s report was sufficient, the trial

court did not consider whether Harshman was entitled to a 30-day extension. Accordingly, we remand to the trial

court for it to determine whether such an extension is

warranted.

IV. Harshman’s Request for Sanctions

In his response to Dr. Darmadi’s

appellate brief, Harshman requested that this Court

impose sanctions against Dr. Darmadi, presumably for not acting in good

faith, in the amount of $1,000 in attorney’s

fees. See Tex. R. App. Proc.

52.11 (authorizing imposition of sanctions when party or attorney is not acting

in good faith as indicated by filing clearly

groundless petition, “bringing petition solely for delay of an underlying

proceeding,” “grossly misstating or omitting obviously important and material

fact in petition or response,” or “filing appendix or record that is clearly

misleading because of omission of obviously important and material evidence or

documents” ). It is not apparent

from the record before us that either Dr. Darmadi or his counsel has engaged in

any such conduct. Harshman’s request for

sanctions is denied.

CONCLUSION

We reverse

the trial court’s ruling denying Dr. Darmadi’s Motion to Dismiss and remand the

case for the trial court’s consideration of whether to grant a 30-day extension.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351( c). We also deny Harshman’s request for

sanctions.

Jim

Sharp

Justice

Panel

consists of Justices Jennings, Higley, and Sharp.

[1] The

uvula, which is part of the oropharynx, is the small fleshy lobe that hangs from the soft palate above the back of the tongue at

the entrance to the throat .

[2] S ection 74.351 of the Texas Civil

Practice and Remedies Code sets forth expert report requirements applicable to

medical malpractice cases. See Tex.

Civ. Prac. & Rem. Code Ann. §74.351 (Vernon Supp. 2009).

Pursuant to this section, all h ealth care liability claimants

must serve an expert report, accompanied by the expert’s curriculum vitae, on

each party within 120 days of filing suit.

Id. at §74.351(a). The

defendant must then file and serve any objections to the sufficiency of the

report not later than the 21st day after the date report was served, or else

its objections are waived. Id.

The defendant may also file a motion with the trial court requesting

attorney’s fees and dismissal of the claims.

See id. at § 74.351(b); 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] In his petition, Harshman alleges

multiples theories of negligence on the part of Dr. Darmadi. Specifically, Harshman appears to argue that

Dr. Darmadi was negligent in (1) his performance of the ERCP procedure, (2) his

decision to perform the procedure on a patient who was taking blood-thinning

medication and had been pain-free for sixteen hours, and (3) his management of

Harshman’s post-ERCP care, particularly with regard to the excessive

bleeding. Although he appears to argue

on appeal that Dr. Rushing’s report does not provide a “fair summary” of his

opinions regarding standard of care, breach and causation with respect to any

of any of these theories, Dr. Darmadi does not argue nor does he direct us to

any authority requiring us to evaluate the sufficiency of the report with

respect to each separate negligence theory.

Accordingly, we will limit our evaluation of the sufficiency of the

report to the only conduct that Dr. Rushing appears to take issue with—Dr.

Darmadi’s management of Harshman’s post-ERCP care. In doing so, we are mindful of the fact that

section 74.351 is a “gate-keeping” provision designed to prevent frivolous or

premature lawsuits from proceeding until a good-faith effort has been made to

demonstrate that at least one expert believes that a breach of the applicable

standard of care caused the claimed injury.

See Murphy v. Russell,

167 S.W.3d 835, 838 (Tex. 2005); T ex.

Civ. Prac. & Rem. Code Ann. § 74.351(k), (t) (section 74.351 expert

reports are inadmissible in evidence, except under very limited circumstances).

[4] In his

motion objecting to Dr. Rushing’s report and requesting dismissal pursuant to

section 74.351, Dr. Darmadi also challenged Dr. Rushing’s qualifications to opine

on the element of causation. Although he

employs language in his brief which suggests that he is attempting to appeal

the trial court’s finding on this issue, Dr. Darmadi does not present any

argument or cite any authority in his brief regarding an expert’s

qualifications to opine with respect to causation in a Chapter 74 report. See

Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(5)(c) (setting forth qualification for expert opining on

causation). Thus, to the extent that Dr.

Darmadi intended to appeal the trial court’s implicit finding that Dr. Rushing

is qualified to opine on causation, the issue was inadequately briefed, and

therefore waived. See Tex. R. App. P. 38.1(i) (requiring that

appellant’s brief contain “ a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”).

[5] The

oropharynx is the part of the throat at the back of the mouth behind the oral

cavity. It includes the back third of

the tongue, the soft palate, the side and back walls of the throat, and the

tonsils. The uvula is part of the soft

palate.