Charles Ly v. Sara Austin, M.D., and Kent Ellington, M.D.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00516-CV

Charles Ly, Appellant

v.

Sara Austin, M.D., and Kent Ellington, M.D., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. GN501313, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION

Charles Ly appeals from the district court’s dismissal of his health care liability

claims against Drs. Sara Austin and Kent Ellington (Defendants) for failure to furnish an expert

report that complied with the requirements of section 13.01 of the Medical Liability and Insurance

Improvement Act (the Act). See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01.1 Ly asserts that the

district court erred in holding that the reports he had furnished failed to comply with section 13.01

and refusing to grant him an additional 30-day grace period to cure any defects. We affirm.

1

Because Ly’s claim was filed before September 1, 2003, it is governed by former article

4590i. See Act of May 5, 1995, 74th Leg., R.S., ch. 140 § 1, 1995 Tex. Gen. Laws 985, 985-87

(adding expert report requirement, at former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d)),

repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01,

10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898-99 (“House Bill 4”) (adopting chapter

74 of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after

September 1, 2003, and continuing prior law in effect for actions filed before that date) (current

version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006)).

BACKGROUND

On June 1, 2001, Ly sued Dr. Austin, Dr. Ellington, Seton Medical Center, and three

other individual physicians alleging negligence “during the course of medical treatment provided by

the above named Defendants . . . beginning on or about March 8, 1999 through March 14, 1999.”

Defendants are both board-certified neurologists who provided care to Ly during or immediately

after he “fell just outside a restaurant” and was taken by ambulance to the Seton emergency room

for treatment. Ly alleges that he came under the care of Dr. Austin and other physicians, “who

treated him for a diagnosis of stroke.” A “CT-Scan was taken and interpreted” by one of the other

physicians. Ly “was given the drug Heparin, which was ordered by” Dr. Austin and another

physician. Finally, Ly alleged that he was “eventually moved to the hospital floor,” where he was

treated “for stroke and various other ailments” by Dr. Ellington and another physician. During the

course of this treatment, Ly “fell from his hospital bed and severely injured his left arm.”

On August 20, 2001, Ly served on the defendants an expert report prepared by

Dr. Suzanne E. Page, M.D., with her curriculum vitae attached. See id. art. 4590i, § 13.01(d)(1)

(“Not later than the later of the 180th day after the date on which a health care liability claim is filed

. . . the claimant shall . . . furnish to counsel for each physician or health care provider one or more

expert reports, with a curriculum vitae of each expert listed in the report.”). Various of the

defendants, including Defendants, filed motions to dismiss Ly’s claim for failure to furnish a proper

expert report. See id. art. 4590i, § 13.01(e). The procedural history of the case thereafter was

complicated by delays related to the withdrawal of Ly’s counsel and his difficulties in obtaining

replacement counsel. Of relevance here, after granting Ly a 30-day extension, id. art. 4590i,

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§ 13.01(g), the district court granted Defendants’ first amended motions to dismiss and denied Ly

a second 30-day extension.2 The court later severed out Ly’s claims against Defendants, making its

dismissal order regarding Defendants final. Ly appeals from this order.

DISCUSSION

On appeal, Ly contends that the district court erred in holding that Dr. Page’s report

failed to comply with section 13.01 of article 4590i and in refusing to grant him a second 30-day

extension.3

2

The district court’s order stated:

True and correct copies of the motions were served on all parties to this lawsuit;

This suit is being prosecuted under TEX. REV. CIV. STAT. ANN. art. 4590i . . . and

was commenced after September 1, 1995, thus bringing this lawsuit under § 13.01

of that article;

More than 180 days have elapsed since the date this action was commenced;

Plaintiff failed to furnish counsel for Defendants a proper expert report pursuant to

TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(r)(5) and (6);

A previous extension was granted by the Court pursuant to art. 4590i, § 13.01(g) . . .

at least 30 days before the hearing;

Plaintiff’s second Motion for Extension filed pursuant to art. 4590i, § 13.01(g) . . .

should be denied;

Thus, Defendants’ motions should in all things be GRANTED.

3

Although Ly succeeded in obtaining new counsel who vigorously opposed dismissal in

district court, Ly is acting pro se on appeal. Perhaps for this reason, his issues on appeal are not

explicitly or clearly defined, although we can discern that he principally intends to challenge the two

grounds on which the district court held Dr. Page’s report inadequate and its refusal to grant him a

second 30-day extension. To the extent that Ly is attempting to raise other issues, we hold that they

were inadequately briefed and thus waived. See Fredonia State Bank v. General Am. Life Ins. Co.,

3

In holding that Dr. Page’s reports failed to comply with article 4590i, section 13.01,

the district court relied on the two grounds raised in Defendants’ dismissal motions: Dr. Page’s

report (1) failed to establish that she was an “expert” qualified to testify concerning the matters stated

in her report; and (2) lacked a fair summary of her opinions regarding the applicable standard of care,

its alleged breach by Defendants, or the causal relationship between the alleged breach and the

claimed harm. Id. art. 4590i, § 13.01(r)(5), (6).

To comply with the requirements of section 13.01(d), an “expert report” first must

be a “written report by an expert.” Id. art. 4590i, § 13.01(r)(6) (emphasis added). Section 13.01(r)(5)

defines “expert” to require that a person giving opinion testimony regarding whether a physician

departed from accepted standards of medical care be qualified under section 14.01(a). See id. art.

4590i, § 13.01(r)(5)(A). Section 14.01(a) requires:

In a suit involving a health care liability claim against a physician for injury to or

death of a patient, 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:

(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.

881 S.W.2d 279, 284 (Tex. 1994); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005)

(pro se litigants not exempt from rules of procedure).

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Id. art. 4590i, § 14.01(a). In determining whether the expert is qualified on the basis of training or

experience, the court is to consider whether, at the time the claim arose or the testimony is given,

the witness is board-certified or has other substantial training or experience in an area of practice

relevant to the claim and is actively practicing medicine in rendering medical care services relevant

to the claim. Id. art. 4590i, § 14.01(c). Furthermore, “the report itself must establish the expert’s

qualifications on the basis of training and experience.” In re Samonte, 163 S.W.3d 229, 234

(Tex. App.—El Paso 2005, orig. proceeding). In other words, “the only information relevant to the

inquiry is within the four corners of the document.” American Transitional Care Ctrs. of Tex., Inc.

v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert’s curriculum vitae is considered part of

the report. In re Windisch, 138 S.W.3d 507, 511 (Tex. App.—Amarillo 2004, orig. proceeding).

An “expert report” must also “provide[] 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. Rev. Civ. Stat.

Ann. art. 4590i, § 13.01(r)(6). A court must grant a motion challenging the adequacy of an expert

report under subsection (r)(6) only if the report “does not represent an objective good faith effort to

comply” with this definition of “expert report.” Id. art. 4590i, § 13.01(l). To constitute a “good faith

effort,” the report must provide enough information to fulfill two purposes: (1) it must inform the

defendant of the specific conduct that the plaintiff has called into question; and (2) it must provide

a basis for the trial court to conclude that the claims have merit. Bowie Mem’l Hosp. v. Wright,

79 S.W.3d 48, 52 (Tex. 2002); Palacios, 46 S.W.3d at 879 (Tex. 2001). Although a report need not

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marshal all of a claimant’s proof, it must include the expert’s opinion on each of the elements

identified in the statute. Palacios, 46 S.W.3d at 878. It is not enough for the report merely to state

the expert’s conclusions about the statutory elements. Id. at 879. “Rather, the expert must explain

the basis of his statements to link his conclusions to the facts.” Bowie Mem’l Hosp., 79 S.W.3d at

52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Again, because the statute dictates what is required in the report, the only information

relevant to determining whether a report complies with the statute is that within “the four corners”

of the report. Palacios, 46 S.W.3d at 878. This requirement precludes a court from filling gaps in

a report by drawing inferences or guessing as to what the expert likely meant or intended. Bowie

Mem’l Hosp., 79 S.W.3d at 53.

We review a trial court’s ruling to dismiss a suit under article 4590i, section 13.01

for an abuse of discretion. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when

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

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear

failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

In her first amended report, Dr. Page described her qualifications as follows:

I am a duly licensed and practicing Board Certified Physician. I have been actively

practicing Physical Medicine and Rehabilitation approximately twelve years. . . .

I have examined the medical records pertaining to Charles Ly with a view toward

determining whether or not the medical care on the part of any of the physicians

departed from the accepted standards of medical care and whether any such departure

had a causal relationship between the injury and damage resulting from care by

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Dr. Sara Austin, Dr. Kent Ellington, Dr. Albert Horn, Dr. Rodney Schmidt, and

Seton Hospital. . . .

....

I have knowledge of the accepted standards of care that are applicable to the

physicians in this matter for the diagnosis, care, and treatment of the illness, injury,

or condition involved in this case, as reflected by the above listed records that I

examined. Care of patients with strokes comprises approximately 20% of my

practice.

Dr. Page then proceeded to opine “that the medical care provided by the above doctors and hospitals

failed to meet the applicable standard of care” in the following regards:

....

2) There is research indicating no benefit in giving ASA vs Heparin in stroke

patients and complications of bleeding are higher with heparin in the case of

hemorrhage. In regard to Mr. Ly’s case, the standard of care should have

been to not give Heparin in view of Mr. Ly’s “improving” status in the

Emergency Room and CT scan of the brain with bleeding. Dr. Sara Austin

should have ordered an MRI of the brain as recommended by the radiologist

in his report and/or get results of the CT scan of the brain done on 2/1999 to

compare before deciding whether or not to give Heparin. Furthermore, Dr.

Austin should have explained the risks vs. the benefits of Heparin to Mr. Ly.

3) Dr. Kent Ellington’s failure to manage antihypertensive medication

appropriately. This caused Mr. Ly’s blood pressure to fluctuate. This is

critical for the stroke patient to prevent complications. The standard of care

for someone with hypertension and stroke is to maintain the blood pressure

high enough to allow adequate cerebral perfusion. There should have been

a parameter to hold the antihypertensive medication if the systolic blood

pressure dropped below a certain value. Dr. Ellington did not order this,

causing Mr. Ly’s blood pressure to drop and therefore impeding the blood

flow to his already injured brain.

....

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5) Failure to recognize the risk of fall in this patient. The doctors, nurses and

therapists should all have recognized Mr. Ly’s high risk for a fall. Doctors

are trained to know that a patient with a stroke in Mr. Ly’s location, would

have left neglect, and significant impulsivity. Both of these medical

problems significantly increase the risk for falls. . . . The fall caused a

fracture in his clavical. This caused significant pain. Mr. Ly was unable to

participate in therapy for a time secondary to the pain.

It is further my opinion that had the above-mentioned doctors met the

applicable standard of care, Charles Ly would have had less residual neurologic

deficits from his stroke, better function, and less pain. It is my opinion that the

failure of the above-mentioned doctors and hospital to meet the applicable standard

of care was a cause of increased pain, lower cognitive ability, and worsened function.

Dr. Page’s attached curriculum vitae indicates that she is board-certified in physical

medicine and rehabilitation, or physiatry, and independent medical examination, and has what

appears to be considerable experience and training in these practice areas. The district court also had

before it a supplement or addendum to Dr. Page’s report in which she stated the following:

RE: Questions about my training to read CT scans of the brain.

To Whom It May Concern.

Two of the three most common rehabilitation diagnoses that a physiatrist manages

are stroke and brain injury. Reviewing basic CT scans of the brain was part of my

training as a medical student. Reviewing many CT scans of the brain with detailed

evaluations with attendings in both rehabilitation and radiology was part of my

training as a resident. Continued work reading CT scans of the brain is a very

important part of my work as an attending now. Many rehabilitation units are

separate from acute care hospitals, and there is no radiologist available to read CTs

immediately. Therefore, when CT scans of the brain or MRIs of the brain are done

on a more emergent basis, copies of the images are brought to me at the rehabilitation

unit for my reading.

8

We conclude that the district court did not abuse its discretion in concluding that

Dr. Page failed to establish her qualifications to give opinion testimony regarding the standard of

care applicable to Drs. Austin and Ellington and their alleged breaches of it. Every licensed doctor

is not automatically qualified to testify as an expert on every medical question. Broders v. Heise,

924 S.W.2d 148, 152 (Tex. 1996). On the other hand, the fact that an expert is not a specialist in the

particular branch of the profession for which the testimony is offered will not automatically

disqualify her as an expert. Hagedorn v. Tisdale, 73 S.W.3d 341, 349 (Tex. App.—Amarillo 2002,

no pet.); Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.). “What

is required is that the offering party establish that the expert has ‘knowledge, skill, experience,

training, or education’ regarding the specific issue before the court which would qualify the expert

to give an opinion on that particular subject.” Broders, 924 S.W.2d at 153.

Dr. Page’s reports do not satisfy this requirement. Her first amended report

establishes that, at most, Dr. Page has experience caring for patients who have suffered strokes,

likely in a rehabilitation setting. Her addendum addresses only her qualifications regarding the

reading of CT scans, and apparently responded to the dismissal motion of another physician whom

Ly had alleged negligently misinterpreted his CT scan and failed to diagnose a cerebral hemorrhage.

This training and experience does not relate to the specific issues concerning Drs. Austin and

Ellington—the duties of care applicable to neurologists in providing emergency care services to a

patient who had just suffered a stroke. Ly alleges that Dr. Austin rendered emergency room care to

Ly and that Dr. Ellington attended to Ly’s needs immediately following his transfer from the

emergency room. There is no allegation that either doctor provided Ly treatment beyond that initial

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period of emergency and post-emergency care. The fact that, during “approximately 20%” of her

rehabilitation practice, Dr. Page cares for patients who have suffered strokes does not automatically

qualify her to give an expert opinion on the standard of care for doctors treating an emergent or post-

emergent stroke patient in an acute care hospital setting. See Hagedorn, 73 S.W.3d at 350 (in suit

against emergency room physician, absence of any experience in emergency medical care precluded

finding that expert was qualified).

Additionally, the report provides no information about the type of care that Dr. Page

provides to her stroke patients. From the statement in Dr. Page’s report that she practices “Physical

Medicine and Rehabilitation,” the district court could reasonably infer that the care involves some

sort of rehabilitation, but beyond that, the report is silent. An expert cannot rely on generalized,

conclusory statements to establish her qualifications; she must provide specific details of her training

and experience. See, e.g., Forrest v. Danielson, 77 S.W.3d 842, 848 (Tex. App.—Tyler 2002,

no pet.) (report must establish that expert is familiar with specific medical procedure that was subject

of lawsuit); Tomasi v. Liao, 63 S.W.3d 62, 66 (Tex. App.—San Antonio 2001, no pet.) (report must

“provide detailed information regarding the extent of this experience and whether this experience

was relevant to . . . the specific issue before the court.”).

Furthermore, although it is readily apparent from Dr. Page’s curriculum vitae that she

is a specialist in rehabilitative care, there is no indication in her resume that she has any experience

in providing emergency care to her patients, other than a vague reference in her supplement to her

interpretation of CT scans on an “emergent basis.” The specific issue before the district court was

the standard of care applicable to neurologists providing emergency care immediately following a

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stroke, and the report failed to establish Dr. Page’s qualifications in that regard. Therefore, we hold

that the district court did not abuse its discretion in dismissing Ly’s claim for failure to comply with

section 13.01(r)(5).

We likewise conclude that the district court did not abuse its discretion in finding that

Dr. Page’s report failed to comply with section 13.01(r)(6). Among other things, Dr. Page does not

explain the causal link between Dr. Austin’s prescription of Heparin and Ly’s increased pain, loss

of cognitive ability, and worsened function, nor does it explain when Dr. Ellington should have

ordered withholding of antihypertensive medication or whether, in fact, Ly’s blood pressure dropped

below the point where adequate cerebral perfusion was not possible.

Finally, we conclude that the district court did not abuse its discretion in granting

Defendants’ motion to dismiss and refusing to grant Ly a 30-day grace period. See Tex. Rev. Civ.

Stat. Ann. art. 4590i, § 13.01(g). “[A] section 13.01(g) grace period determination is reviewed under

an abuse of discretion standard.” Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003). “Section

13.01(g) requires a trial court to grant a grace period if, after hearing, ‘the court finds that the failure

of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference

but was the result of an accident or mistake.’” Id. (quoting Tex. Rev. Civ. Stat. Ann. art. 4590i,

§ 13.01(g)). Although some mistakes of law may negate a finding of intentional conduct or

conscious indifference, entitling the claimant to a grace period under section 13.01(g), not every act

of a defendant that could be characterized as a mistake of law is a sufficient excuse. Id. at 64. “In

determining whether the failure to file adequate reports was due not to intentional disregard

11

or conscious indifference but to accident or mistake, we must look to the knowledge and acts of

the claimant.” Id.

“[A] party who files suit on claims subject to article 4590i is charged with knowledge

of the statute and its requirements.”4 Id. In an affidavit filed with the district court in response to

one of the motions to dismiss, Ly’s former attorney stated that, “[a]t the time of filing of the expert

reports and now,” he believed that their content complied with “the applicable law regarding art.

4590i expert reports.” The attorney further believed that Dr. Suzanne Page was qualified. However,

the supreme court has held that a mere “belief” that a report complies with the statutory requirements

does not establish a “sufficient excuse” necessary to support a finding that a party made a mistake

of law, nor does it negate a finding of “intentional or conscious indifference.” Id. at 64-65.

We note that by the time the district court heard Defendants’ amended dismissal

motion, it had previously granted Ly one extension under section 13.01(g), and had earlier delayed

adjudicating other dispositive matters in the case due to Ly’s difficulties in obtaining replacement

counsel. Even before the district court granted him a 30-day extension, Ly had filed one amended

report plus a supplement, but had not availed himself of the opportunity to further amend or

supplement Dr. Page’s reports to address Defendants’ challenges to their adequacy.5 We cannot

4

The supreme court noted that “even a pro se litigant would be charged with knowledge of

the statute and compliance with its requirements.” Walker v. Gutierrez, 111 S.W.3d 56, 65 n.2

(Tex. 2003). We note this only because it appears from the record that Ly’s first counsel withdrew

at some point after the original expert report was filed, and that Ly was not represented by counsel

when he filed his amended expert report. However, by the time the district court granted Ly a 30-day

grace period, and throughout the remainder of the proceedings until this appeal, Ly was again

represented by counsel.

5

The extension appears to have served primarily to cure a timeliness problem with

Dr. Page’s supplement, which was not served until after the expiration of the 210th day after suit was

filed.

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conclude that the district court abused its discretion in finding that Ly’s failure to comply with

section 13.01 was intentional or the result of conscious indifference and in denying an additional

grace period under section 13.01(g).

We overrule Ly’s issues on appeal.

CONCLUSION

We affirm the judgment of the district court.

_____________________________________________

Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: July 13, 2007

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