Opinion

Opinion issued April 1, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00711-CV

STEVEN PHILIP KLOERIS, M.D. AND RAJESWARI THISGARA

RAJAN, M.D., Appellants

V.

CHARLES AND JAMIE STOCKDALE, INDIVIDUALLY AND AS

REPRESENTATIVES OF THE ESTATE OF CHARLES WILLIAM STOCKDALE III, AND JAMES AND

TOREN DUKES, AS LEGAL GUARDIANS OF MINOR CHILDREN, ALLYSON LENORA STOCKDALE AND

CHARLES WILLIAM STOCKDALE, IV, Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2008-10581

MEMORANDUM OPINION

Charles

(Chuck) and Jamie Stockdale, individually and as representatives of the estate

of Charles Stockdale III, and James and Toren Dukes, as legal guardians of

Allyson and Charles Stockdale IV (collectively, the Stockdales), sued Dr.

Steven Kloeris and Dr. Rajeswari Rajan for medical malpractice arising out of

Charles’s death from a prescription drug overdose. The trial court overruled Dr. Kloeris and Dr.

Rajan’s objections to the sufficiency of the expert report and denied their

motions to dismiss the Stockdales’ claims.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351( l ) (Vernon Supp. 2009). In this interlocutory appeal, Dr. Kloeris and

Dr. Rajan contend that the trial court abused its discretion by denying their

motions to dismiss because the expert report served by the Stockdales does not represent

a good faith effort to comply with the statutory expert report requirements. See id.

§ 74.351(r )( 6).

We hold that the expert report provides a fair summary of the standard

of care applicable to Dr. Kloeris, how he breached that standard, and how his

breach caused Charles Stockdale’s death.

We also hold that the expert report does not present a fair summary of

the standard of care applicable to Dr. Rajan and how she breached the standard

of care, and we therefore remand the case to the trial court to determine

whether to grant the Stockdales one thirty-day extension to cure the

deficiencies of the report regarding Dr. Rajan’s conduct.

Background

Dr. Kloeris and Dr. Rajan both

practice as part of the Texas Gulf Coast Medical Group. On November 29, 2005, Charles Stockdale first

visited Dr. Kloeris, complaining of severe anxiety and panic attacks. Charles informed Dr. Kloeris that he was currently

taking 25 milligrams (mg) of atenolol once per day, vicoprofen, as needed, for

headaches, and 2 mg of alprazolam (Xanax) twice per day. Dr. Kloeris diagnosed Charles with

generalized anxiety disorder, panic disorder, and migraines, and prescribed ninety

tablets of alprazolam (2 mg) and twenty-eight tablets of hydrocodone (Vicodin,

7.5 mg). Charles returned to Dr. Kloeris

on December 15, 2005, sixteen days later, to receive prescription refills and

treatment for a staph infection. On this

occasion, Dr. Kloeris prescribed an additional ninety tablets of alprazolam and

sixty tablets of hydrocodone (10 mg).

Charles’ wife, Kristen, had been a

patient of the Gulf Coast Medical Group for at least the previous year and a

half. Her chart included a statement

that, on January 24, 2005, she “confided to the nurse

[at Clear Lake Regional Medical Center] that she regularly visits emergency

rooms complaining of different areas of pain in order to get Vicodin

[hydrocodone] prescriptions for her husband.”

Most of Kristen’s medical records refer to her by her maiden name,

Arsement; however, the records do occasionally contain references to her as

“Kristen Stockdale” and also mention her husband, Charles Stockdale. During December 2005, Kristen received

prescriptions from Dr. Kloeris and Dr. Rajan for hydrocodone, lorazepam, alprazolam,

and Soma. On December 16, 2005, one day

after Charles’s second visit to Dr. Kloeris, he died of a prescription drug

overdose. The Harris County Medical

Examiner listed Charles’s official cause of death as “the toxic effects of

Hydrocodone, Alprazolam, and Diazepam [Valium].”

Charles and Jamie Stockdale, Charles’s

parents, and James and Toren Dukes, the legal guardians of Charles’s children,

sued Dr. Kloeris and Dr. Rajan for negligence, gross negligence, and wrongful

death. Within 120 days of filing suit,

the Stockdales served an expert report by Dr. Hugh Poindexter pursuant to Section

74.351 of the Civil Practice and Remedies Code.

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

(Vernon Supp. 2009). Dr. Poindexter

stated that he is board certified by the American Board of Family Medicine, he

has been in private practice since 1977, first in Huntsville until 1989, and

then at the Kelsey-Sebold clinic in The Woodlands, where he has been the

managing physician since 1991, and he has treated “many patients with the same

or similar diagnosis as Mr. Stockdale[, and is] familiar with and [has]

prescribed the same medications prescribed to Mr. Stockdale by Dr. Kloeris, and

to his wife Kristen by Dr. Rajan.” Dr.

Poindexter reviewed Charles’s autopsy report, the Texas Gulf Coast Medical

Group’s medical records for both Charles and Kristen, pharmacy records from six

different pharmacies for both Charles and Kristen, a prescription summary report,

an affidavit from plaintiff Chuck Stockdale, and the plaintiffs’ original

petition.

Dr. Poindexter described Charles’s

two visits to Dr. Kloeris and stated that Dr. Kloeris prescribed a total of 180

tablets of alprazolam and eighty-eight tablets of hydrocodone in a sixteen-day

time period. Regarding Kristen, Dr.

Poindexter noted that her medical records included a statement from her that

she routinely visited emergency rooms to obtain hydrocodone for her husband,

and although both Dr. Kloeris and Dr. Rajan were aware or should have been

aware of this statement in their own records, they still prescribed excessive

amounts of medication to Kristen during November and December of 2005,

including hydrocodone and alprazolam. Dr.

Poindexter opined that, based on all the records he reviewed, “Mr. Stockdale

died as a result of the toxic effects of hydrocodone, alprazolam and diazepam

prescribed by Dr. Kloeris and Dr. Rajan.”

According to Dr. Poindexter, “[b]ased

on the frequent and excessive prescriptions for hydrocodone and alprazolam to

Kristen and Charles” and Kristen’s admission that she procures prescription

medication for her husband, Dr. Kloeris “knew or should have known that Charles

Stockdale was abusing prescription drugs.”

The standard of care “required Dr. Kloeris to recognize this addiction

and treat it” by either referring Charles to a substance abuse facility or

lowering the amounts of drugs prescribed.

Dr. Poindexter then generally described the characteristics and effects

of alprazolam and hydrocodone, mentioning that both medications were

potentially dangerous and that “[t]he quantity of pills prescribed in such a

short period of time shows that caution was not used.” Specifically, Dr. Kloeris prescribed more

than the recommended daily dose of alprazolam.

Charles only visited the practice twice; however, “he was prescribed an

excessive amount of medication over a very short time span.” Dr. Poindexter concluded by opining that

“[i]f Dr. Kloeris had not prescribed excessive quantities and dosages of these

drugs to Charles, or if he had referred him for drug abuse treatment, then, to

a reasonable degree of medical certainty, Mr. Stockdale would not have died.”

Regarding Dr. Rajan, Dr. Poindexter

stated that, based on the “frequent and excessive prescriptions for hydrocodone

and alprazolam” to Kristen by both doctors, and Kristen’s admission that she

obtained prescription drugs for her husband’s use, Dr. Rajan “knew or should

have known that Charles was abusing these drugs and that Kristen was attempting

to get them for her husband’s abuse.” Dr.

Rajan should have recognized Charles’s abuse and should not have prescribed

hydrocodone and alprazolam to Kristen.

According to Dr. Poindexter, “[h]ad Dr. Rajan not prescribed these drugs

to Kristen, then, to a reasonable degree of medical certainty, Mr. Stockdale

would not have died.”

Within twenty-one days of the filing

of the expert report, Dr. Kloeris and Dr. Rajan both objected to the

sufficiency of the report, arguing that Dr. Poindexter made conclusory

assumptions, failed to establish a causal link between the doctors’ conduct and

Charles’s death, and did not specify the standard of care applicable to Dr.

Rajan and how she breached that standard.

The doctors then moved to dismiss the case with prejudice due to the

insufficiency of the report. The trial

court overruled the doctors’ objections to the report and denied their motions

to dismiss. Dr. Kloeris and Dr. Rajan

then filed this interlocutory appeal. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a )( 9)

(Vernon 2008) (allowing interlocutory appeal when trial court “denies all or

part of the relief sought by a motion under Section 74.351(b)”).

Discussion

Standard of Review

We

review the trial court’s decision on a section 74.351 motion to dismiss for

abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios , 46 S.W.3d 873, 878 (Tex. 2001). The trial court abuses its discretion if it

acts in an arbitrary or unreasonable manner without reference to any guiding

rules or principles. Walker v. Gutierrez , 111 S.W.3d 56, 62

(Tex. 2003). When we review

matters within 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) (per curiam). The trial court does not abuse its discretion

merely because it decides a discretionary matter differently than we would in

similar circumstances. Downer v. Aquamarine

Operators, Inc. , 701 S.W.2d 238 , 241–42 (Tex. 1985).

Sufficiency of Expert Reports

Dr.

Kloeris and Dr. Rajan contend that the trial court abused its discretion by

denying their motions to dismiss because Dr. Poindexter’s report is vague,

conclusory, and does not represent a good faith effort to comply with the

expert report requirements of section 74.351(r )( 6). When a plaintiff brings a healthcare

liability claim, section 74.351 of the Civil Practice and Remedies Code requires

the plaintiff to serve each health care provider defendant with an expert

report within 120 days after the original petition is filed. See

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

§ 74.351(a) (Vernon Supp. 2009); Harris

County Hosp. Dist. v. Garrett , 232 S.W.3d 170, 176 (Tex. App.—Houston [1st

Dist.] 2007, no pet.). Section 74.351(r )( 6) defines an “expert report” as 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.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r )( 6). A defendant

must file and serve any objections to the sufficiency of the report not later

than the twenty-first day after the date the report was served, failing which

all objections are waived. Id. § 74.351(a). The trial court shall grant a defendant’s

motion to dismiss only if, after a hearing, it appears to the court that the

expert report does not represent an objective good-faith effort to comply with

the definition of an expert report. Id. § 74.351( l ).

In

determining whether the expert report represents an “objective good-faith

effort” to comply with the statute, we look only to the four corners of the report. Palacios ,

46 S.W.3d at 878 .

The expert report must fulfill two purposes to meet the “good-faith

effort” requirement: (1) The report must

inform the defendant of the specific conduct that the plaintiff calls into

question; and (2) The report must provide a basis for the trial court to

conclude that the claims have merit. See id.

The report does not fulfill these purposes if it merely states the

expert’s conclusions about the standard of care, breach, and causation. See id. Instead, the expert must give, for each

defendant, 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. The report must explain the basis of the

expert’s statements to link his conclusions to the facts. Wright ,

79 S.W.3d at 52 (quoting Earle v. Ratliff ,

998 S.W.2d 882, 890 (Tex. 1999)).

Although the report must include the expert’s opinion on each of the

elements enumerated in section 74.351(r )( 6), the

expert report does not have to marshal all of the plaintiff’s proof. Palacios ,

46 S.W.3d at 878 .

The plaintiff also does not have to present evidence in the report as if

he were actually litigating the merits of the claim, and thus the report can be

informal and the information does not have to meet the same requirements as

evidence offered in a summary judgment proceeding or a trial. Id. at 879 .

A.

Sufficiency of Report Regarding Dr.

Kloeris’s Conduct

Dr. Kloeris contends that Dr.

Poindexter’s report fails to articulate how Dr. Kloeris breached the standard

of care. The expert report must state

the applicable standard of care as well as the manner in which the health care

provider failed to meet that standard of care.

Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r )( 6). Whether a defendant breached the standard of

care cannot be determined “absent specific information about what the defendant

should have done differently.” Palacios , 46 S.W.3d at

880 . The expert is not required

to give a full statement of the standard of care and how it was breached, but

he must “set out what care was expected, but not given.” Id. With respect to Dr. Kloeris, Dr. Poindexter’s

report stated the following:

Based on the frequent and excessive prescriptions for

hydrocodone and alprazolam to Kristen and Charles by Dr. Kloeris and Dr. Rajan,

and the admission by Kristen that she frequented doctors to get hydrocodone for

her husband, Dr. Kloeris knew or should have known that Charles Stockdale was

abusing prescription drugs. The medical

standard of care required Dr. Kloeris to recognize this addiction and treat it,

either by referring Charles to an abuse facility, or prescribing smaller

quantities and doses of hydrocodone and alprazolam solely to prevent

complications from the sudden withdrawal of these

drugs. . . . The quantity of pills prescribed in such a

short period of time shows that caution was not used. The amount of alprazolam prescribed exceeds

the recommended daily dose. Mr. Stockdale

had only had two visits for medical care to their clinic. However, he was prescribed an excessive

amount of medication over a very short time span. . . . If

Dr. Kloeris had not prescribed excessive quantities and dosages of these drugs

to Charles, or if he had referred him for drug abuse treatment, then, to a

reasonable degree of medical certainty, Mr. Stockdale would not have died.

Dr. Poindexter specifically stated

that the standard of care required Dr. Kloeris to recognize Charles’ addiction

to prescription medication and treat it, by either referring him to a treatment

facility or lowering the quantities of drugs prescribed to avoid sudden

withdrawal. He also stated that Dr.

Kloeris prescribed an “excessive amount of medication over a very short time

span,” more than the recommended daily dose of alprazolam, and Dr. Kloeris did

not refer Charles to a substance abuse facility. “Magic words” are not necessary to provide a

fair summary of the standard of care, breach of that standard, and causation. See

Wright , 79 S.W.3d at 53 . In determining whether the expert complied

with the statute, we consider the “substance of the opinions, not the technical

words used.” Moore v. Sutherland , 107 S.W.3d 786, 790 (Tex. App.—Texarkana 2003,

pet. denied). Dr. Poindexter’s report

gives fair notice to Dr. Kloeris that he breached the standard of care by prescribing

excessive amounts of hydrocodone and alprazolam in a short period of time and

by failing to refer Charles to a substance abuse facility.

Dr.

Kloeris further contends that Dr. Poindexter’s report makes conclusory

assumptions and fails to establish a causal link between his conduct and

Charles’s death. An expert report must

include a fair summary of the causal relationship between the defendant’s

failure to meet the appropriate standard of care and the injury, harm, or

damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r )( 6). An expert

cannot merely state his conclusions or “provide insight” about the plaintiffs’

claims, but must instead “explain the basis of his statements to link his

conclusions to the facts.” Wright , 79 S.W.3d at

52 . Dr. Kloeris relies on Wright for the contention that Dr.

Poindexter’s conclusion is based on speculation and conjecture. After Wright was in a car accident, a

physician’s assistant at the hospital x-rayed Wright’s foot and knee and

diagnosed her with a fractured knee, but did not discover that Wright also

fractured her foot. Id. at 50 . Another physician discovered this injury

approximately one month later, after surgeons already operated on Wright’s knee. Id. Wright needed two additional surgeries to

correct her foot injury. Id.

The expert report stated only that “if the x-rays would have been

correctly read and the appropriate medical personnel acted upon those findings

then Wright would have had the possibility of a better outcome.” Id.

at 52–53. The Texas Supreme Court upheld

the trial court’s dismissal of Wright’s claim, holding that the “report simply

opines that [Wright] might have had ‘the possibility of a better outcome’

without explaining how [the hospital’s] conduct caused injury to

[Wright].” Id. at 54 . The expert report lacked information that linked

the conclusion—that Wright might have had a better outcome—to the breach—the

hospital’s failure to correctly read and act on the x-rays. Id.

Here,

Dr. Poindexter specifically stated that the standard of care required Dr.

Kloeris to recognize and treat Charles’s prescription drug addiction, and that

Dr. Kloeris breached the standard of care by not referring Charles to a

substance abuse facility and by prescribing excessive amounts of hydrocodone

and alprazolam in a very short period of time.

Specifically, Dr. Kloeris prescribed a total of 180 tablets of

alprazolam and eighty-eight tablets of hydrocodone in a sixteen-day

period. Dr. Poindexter concluded by

stating that, “[i]f Dr. Kloeris had not prescribed excessive quantities and

dosages of these drugs to Charles, or if he had referred him for drug abuse

treatment, then, to a reasonable degree of medical certainty, Mr. Stockdale

would not have died.” In contrast to

Wright’s expert, who did not explain how the hospital’s failure to meet the

standard of care caused Wright’s injury, Dr. Poindexter sufficiently links his

conclusion, that Charles would not have died from a prescription drug overdose,

to Dr. Kloeris’s alleged breach, his failure to refer Charles to a substance

abuse facility and his excessive prescription of hydrocodone and alprazolam. See

Wright , 79 S.W.3d at 53 . Dr. Poindexter’s statement of causation “is

not a conclusion or a statement of mere possibility, as in the Wright case, but is a positive statement

of fact.” Moore , 107 S.W.3d at 791 . We hold that the trial court could have

reasonably determined that Dr. Poindexter’s report gave a fair summary of how

Dr. Kloeris caused Charles’s death and thus the trial court did not abuse its

discretion in denying Dr. Kloeris’s motion to dismiss.

According to Dr. Kloeris, although

Dr. Poindexter stated that he reviewed medical and pharmacy records, he

“clearly ignores” the records’ indication that numerous other doctors

prescribed similar medication to Charles and Kristen during the same time

period. In determining whether an expert

report constitutes a “good-faith effort” to comply with the requirements of

section 74.351(r )( 6), we look only to the four corners

of the report. Palacios , 46 S.W.3d at 878 . Dr. Kloeris cites the Beaumont Court of

Appeals’ unpublished decision in Reddy v.

Seale for the proposition that we may look beyond the four corners of the

expert report when the health care provider can show that the expert’s opinion

is based on an inaccurate or incomplete reading of medical records. See

No. 09-07-00372-CV, 2008 Tex. App. LEXIS 2000 , at *9 n.1 (Tex. App.—Beaumont Mar.

20, 2008, no pet.) ( mem . op.) (“Both Dr. Lutz and Dr.

Korn state in their respective reports that they reviewed Melody’s medical

records; thus, in determining whether their records represent a fair summary,

the records that they referred to are within our purview.”). In deciding that a review of the medical

records is permissible, the Beaumont Court observed that although courts cannot

look outside an expert’s report to supply statutorily required information, the

challenge to the report in Reddy

addressed “whether the opinions in the expert reports are supported by the

medical records that the experts represented they reviewed.” Id. The Beaumont Court affirmed the trial court’s

denial of the doctors’ motion to dismiss, stating that even when it considered

the medical records, it could not “conclude that the

medical records necessarily preclude the opinions that were reached by Dr. Lutz

and Dr. Korn.” Id. Similarly, the medical

and pharmacy records relied upon by Dr. Poindexter do not preclude the opinions

that he reached.

Dr. Kloeris notes that Dr.

Poindexter’s report does not mention prescriptions written by other doctors or

the effects of these drugs on Charles, nor does Dr. Poindexter indicate how he

arrived at the conclusion that only Dr. Kloeris and Dr. Rajan’s prescriptions

caused Charles’s death. A review of

Charles and Kristen’s pharmacy records demonstrates that from the beginning of

October 2005 to Charles’s death on December 16, 2005, the Stockdales filled

prescriptions for fifteen different prescription drugs from twenty-one

different doctors. In the month

preceding Charles’s death, Charles received a total of 118 tablets of Hydrocodone: 30 (5 mg) from a Dr. Mougouris on December 14,

28 (5 mg) from Dr. Kloeris on November 29, and 60 (10 mg) from Dr. Kloeris on

December 15. During this same time

period, Kristen received a total of 125 tablets of Hydrocodone: 23 total from Doctors Totz, Kung, and Le on

November 19, 27, and 28, respectively; 21 from Dr. Rajan on December 2; 21 from

Dr. Rajan on December 8; and 60 from Dr. Kloeris on December 12. Dr. Kloeris also prescribed 90 tablets of

Alprazolam to Charles on November 29, 60 tablets to Kristen on December 12, and

90 more to Charles on December 15.

Charles died on December 16 from the “toxic effects of hydrocodone, alprazolam

and diazepam.” Even though the medical

and pharmacy records reflect that Charles and Kristen received large quantities

of prescription drugs from multiple doctors, the records also reflect that Dr.

Kloeris prescribed the majority of the hydrocodone and alprazolam that Charles

received in the month prior to his death.

Specifically, in the sixteen days leading up to Charles’s death, Dr.

Kloeris prescribed eighty-eight tablets of hydrocodone and 180 tablets of alprazolam

to Charles. We conclude that the

pharmacy records of Charles and Kristen do not preclude Dr. Poindexter’s

opinion that Dr. Kloeris’s excessive prescription of hydrocodone and alprazolam

caused Charles’s death.

Dr. Kloeris further contends that Dr.

Poindexter’s expert report is speculative, conclusory, and insufficient as a

matter of law because he states that Charles died due to the “toxic effects of

hydrocodone, alprazolam, and diazepam prescribed by Dr. Kloeris and Dr. Rajan,”

but neither of these doctors prescribed diazepam to Charles or Kristen. Whether an expert’s opinions are correct is

an issue for summary judgment, not a Chapter 74 motion to dismiss. Methodist Hosp. v. Shepherd-Sherman , 296 S.W.3d 193 , 199 n.2 (Tex.

App.—Houston [14th Dist.] 2009, no pet.). As the San Antonio Court of Appeals noted,

“[a] motion to dismiss seeks to demonstrate that a plaintiff has not satisfied

the procedural requirements of

Chapter 74, while a motion for summary judgment seeks to demonstrate that the substance of the claim lacks

merit.” Wissa v. Voosen , 243 S.W.3d 165, 169

(Tex. App.—San Antonio 2007, no pet.).

An issue such as the fact that neither Dr. Kloeris nor Dr. Rajan

prescribed diazepam to Charles or Kristen but the Harris County Medical

Examiner found that diazepam contributed to Charles’s death is a substantive

issue affecting the merits of the Stockdales’ claim. Our focus at this stage of the proceedings is

whether Dr. Poindexter’s expert report provided a fair summary of the standard

of care applicable to Dr. Kloeris, how Dr. Kloeris breached that standard, and how

Dr. Kloeris’s breach caused Charles’ death, not whether Dr. Poindexter is

ultimately correct in his opinions and assertions. See id.

at 169–70; see

also Apodaca v. Russo , 228 S.W.3d 252, 255 (Tex. App.—Austin 2007, no pet.)

(“The expert report is not required to prove the defendant’s liability, but

rather to provide notice of what conduct forms the basis for the plaintiff’s

complaints.”).

Even though Dr. Poindexter did not

address the prescriptions written by other doctors or the fact that Dr. Kloeris

did not prescribe diazepam, in the “History” section of his report, he detailed

the amount of hydrocodone and alprazolam prescribed to Charles by Dr. Kloeris,

as well as the short time period in which Dr. Kloeris prescribed that

medication. Thus, this report linked Dr.

Poindexter’s conclusions on causation to the specific facts of this case. See

Wright , 79 S.W.3d at 52 . This report fulfilled the twin purposes that Palacios requires to constitute an

“objective good-faith effort” to comply with Chapter 74: (1) it informed Dr. Kloeris of the specific

conduct the Stockdales called into question; and (2) it provided a basis for

the trial court to conclude that the claim has merit. Palacios ,

46 S.W.3d at 879 .

The trial judge could have reasonably determined that this report gave a

fair summary of each of the statutory requirements, and therefore did not abuse

its discretion by denying Dr. Kloeris’s motion to dismiss.

B.

Sufficiency of Report Regarding Dr. Rajan’s

Conduct

Dr. Rajan contends that Dr.

Poindexter’s report does not articulate a specific standard of care applicable

to her and contains a speculative conclusion regarding causation without any

supporting evidence. Dr. Poindexter’s

report states the following relating to Dr. Rajan:

Based on the frequent and excessive prescriptions for

hydrocodone and alprazolam to Kristen by Dr. Kloeris and Dr. Rajan, and the

admission by Kristen that she frequented doctors to get hydrocodone for her

husband, Dr. Rajan knew or should have known that Charles was abusing these

drugs and that Kristen was attempting to get them for her husband’s abuse. Dr. Rajan should have recognized this abuse

and not prescribed Kristen hydrocodone and alprazolam. Had Dr. Rajan not prescribed these drugs to

Kristen, then, to a reasonable degree of medical certainty, Mr. Stockdale would

not have died.

The standard of care for a physician

is what a physician of ordinary prudence would do in the same or similar

circumstance. Moore , 107 S.W.3d at 789 . We cannot determine whether a defendant

breached her duty to a patient “absent specific information about what the

defendant should have done differently.”

Palacios , 46

S.W.3d at 880 . We do not require

a full statement of the standard of care and how the defendant breached that

standard, but the “fair summary” must state what “care was expected, but not

given.” Id.

Dr. Poindexter opines that Dr. Rajan

“knew or should have known” that Charles was abusing prescription drugs and that

Kristen was obtaining these drugs for her husband’s use, and therefore Dr. Rajan

should not have prescribed hydrocodone and alprazolam to Kristen. Dr. Poindexter does not, however, state what

the standard of care specifically required Dr. Rajan to do to determine that

Charles Stockdale, who was not her patient, was currently abusing prescription

medication, and that she should not prescribe these drugs to Kristen, who went

by a different last name in most of her medical records and who first presented

to Dr. Rajan as an assault victim. The

report does not, for example, specify what Dr. Rajan should have done to learn

of Charles’s prescription drug abuse, what she should have done to learn of

Kristen’s drug-seeking behavior, what she should have done to learn that

Charles and Kristen were currently married, or how she should have treated

Kristen, her patient, for her complaints in these circumstances. Without specific information of this nature,

Dr. Poindexter’s report does not provide a fair summary of the applicable standard

of care and how she breached that standard sufficient to give Dr. Rajan notice

of the specific conduct complained of by the Stockdales. See

Gray v. CHCA Bayshore L.P. , 189 S.W.3d 855 , 859–60 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). In this case, the

trial court had no discretion but to conclude that the expert report does not

represent an “objective good-faith effort” to provide a fair summary of the

standard of care applicable to Dr. Rajan and how she breached that standard as

required by section 74.351(r)(6). See Palacios , 46

S.W.3d at 880 .

Dr.

Rajan requests that we reverse and render judgment that the trial court dismiss the Stockdales’ claims against her with

prejudice. The Civil Practice and

Remedies Code provides, however, that “[i]f an expert report has not been

served within [120 days of the plaintiff filing suit] 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(c). According

to the Texas Supreme Court, the plain language of this section “permits one

thirty-day extension when the court of appeals finds deficient a report that

the trial court considered adequate.” Leland v. Brandal , 257

S.W.3d 204, 207 (Tex. 2008). We

have discretion to remand consideration of the extension issue to the trial court. See id.

at 208 . We

therefore remand the case to the trial court to determine whether to grant the

Stockdales one thirty-day extension to cure the deficiencies of the report

regarding Dr. Rajan’s conduct.

Sanctions for Frivolous Appeal

The

Stockdales request that we sanction Dr. Kloeris for filing a frivolous appeal

pursuant to Rule 45 of the Texas Rules of Appellate Procedure. See

Tex. R. App. P. 45 (“If the court

of appeals determines that an appeal is frivolous, it may . . . award

each prevailing party just damages.”).

The Stockdales contend that Dr. Kloeris’s appeal is “patently

frivolous,” since Dr. Kloeris agreed to be sanctioned by the Texas Medical

Board (TMB) for, among other things, his treatment of Charles Stockdale. An agreed order from the TMB is considered a

settlement agreement under Rule 408 of the Texas Rules of Evidence. Tex. Occ. Code Ann.

§ 164.002(d) (Vernon Supp. 2009). Settlement agreements are not admissible to

prove liability or invalidity of the claim or amount, but may be admissible

when “offered for another purpose.” Tex. R. Evid. 408. Determining whether an appeal regarding the

sufficiency of an expert report is frivolous when the doctor has agreed to be

sanctioned for the conduct at issue does not relate to liability or validity of

the claim or amount, and is therefore a permissible purpose for which a

settlement agreement can be considered.

When

determining whether an appeal is frivolous, we “look at the record from the

viewpoint of the advocate and decide whether he had reasonable grounds to

believe the case could be reversed.” Smith v. Brown, P.C. , 51 S.W.3d 376, 381

(Tex. App.—Houston [1st Dist.] 2001, pet. denied); see

also Goss v. Houston Cmty. Newspapers , 252 S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

(“If an appellant’s argument on appeal fails to convince us but has a

reasonable basis in law and constitutes an informed, good-faith challenge to

the trial court’s judgment, sanctions are not appropriate.”). Dr. Kloeris’s contention that Dr.

Poindexter’s report is insufficient centers around the fact that the report

does not address records upon which Dr. Poindexter stated he relied but undermine

his conclusion regarding causation.

Although we hold that the medical and pharmacy records from other

doctors, relied upon but not mentioned by Dr. Poindexter in his report, do not

preclude his conclusions on causation, Dr. Kloeris asserted reasonable grounds for

an appeal. See Reddy , 2008 Tex. App. LEXIS 2000 , at *9 n.1 (stating that

appellate courts can consider additional records to determine whether the

expert’s opinions are supported by the records he reviewed). We decline to conclude that Dr. Kloeris’s

appeal is frivolous.

Conclusion

We hold that Dr. Poindexter’s expert

report provides a fair summary of the standard of care applicable to Dr.

Kloeris, how Dr. Kloeris breached that standard, and how Dr. Kloeris’s breach

caused Charles Stockdale’s death. We

therefore affirm the order of the trial court denying Dr. Kloeris’s motion to

dismiss. We further hold that Dr.

Poindexter’s report does not provide a fair summary of the standard of care

applicable to Dr. Rajan and how her conduct breached that standard with respect

to Charles Stockdale, who was not her patient.

We therefore remand the case to the trial court to determine whether to

grant the Stockdales a thirty-day extension to cure the deficiencies in the

expert report regarding Dr. Rajan’s conduct .

Jane

Bland

Justice

Panel consists of Justices Jennings,

Hanks, and Bland.