Sam Lo, M.D. and Southwest Radiology Association v. Rita Gonzales

Opinion issued April 18, 2013

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00987-CV

———————————

SAM LO, M.D. AND SOUTHWEST RADIOLOGY ASSOCIATION,

Appellants

V.

RITA GONZALES, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2011-64104

MEMORANDUM OPINION

In this interlocutory appeal, Rita Gonzales sued Sam Lo, M.D., and

Southwest Radiology Association (collectively, “Lo”) for medical malpractice. Lo

moved to dismiss Gonzales’s claims, but the trial court denied Lo’s motion. In two

issues, Lo contends that the trial court erred in denying the motion to dismiss

because (1) Gonzales’s expert report did not adequately set out the causal

connection between Lo’s alleged breach of the standard of care and the alleged

injuries to Gonzales and (2) Gonzales’s expert was not qualified to opine on

causation.

We reverse and remand.

Background

On July 16, 2008, Gonzales was diagnosed with lumbar spondylosis with

spondylolisthesis. She underwent a lumbar fusion surgery performed by Dr.

Jeremy Wang, who is not a party to the underlying case. Over a year later, on July

30, 2009, Gonzales returned to Dr. Wang, complaining of lumbar pain. Dr. Wang

ordered several radiological tests, including x-rays, a bone scan, MRI scans of

Gonzales’s hips and lumbar spine, and a CT scan of Gonzales’s lumbar area.

On August 7, 2009, Gonzales had an x-ray of the lumbar spine performed at

Clear Lake Regional Medical Center, and Lo interpreted the results. Lo’s report

stated, “Stable changes from patient’s previous L3-L4 through L5-S1

laminectomies, posterior discectomies and spinal fusion as described. No evidence

of instability. Stable ossific density in the posterior L3-L4 disc space and L4-L5

posterior marginal osteophyte formation possibly causing osteophytic

neuroforaminal encroachment.” On August 8, 2009, a CT scan of Gonzales’s

2

lumbar spine was performed, and Lo interpreted those results as demonstrating that

Gonzales has “disc osteophyte complex L3-S1 with neuroforaminal

encroachment.” Gonzales underwent a lumbar MRI on August 10, 2009, and Lo

interpreted those results as demonstrating “disc osteophyte complex with

neuroforaminal stenosis.” Gonzales alleged that, in interpreting these test results,

Lo did not specifically identify the absence of bony bridging at any of the levels of

Gonzales’s spine that had been fused in her previous surgery.

Gonzales returned to Dr. Wang, who explained to her that the test results

showed no instability in her spine, and he recommended that she return for a

follow-up appointment in a month. 1 On August 29, 2009, Gonzales was evaluated

by Dr. Richard Francis, who “noted that the x-rays showed no convincing evidence

of bony bridging from [Gonzales’s] original back surgery.” Dr. Francis ordered a

myleogram and an additional CT scan, performed on September 2, 2009, which

“showed no continuous osseous fusions from L3-S1.” Dr. Francis diagnosed

Gonzales with a “failure of fusion,” and he performed a revision back surgery on

September 23, 2009. Gonzales alleged that, during the surgery, Dr. Francis “found

1

There is a discrepancy concerning when this appointment with Dr. Wang

occurred. In her original petition, Gonzales alleged that this appointment occurred

on August 8, 2009, the day of her CT scan, and the day before her lumbar MRI.

The medical records from Dr. Wang’s office, however, reflect that Gonzales did

not meet with Dr. Wang until August 24, 2009.

3

[that] the lumbar spine had not fused, causing movement which was impinging on

the spinal cord causing pain to [Gonzales].”

Gonzales subsequently filed suit against Lo and Southwest Radiology

Association for medical malpractice. Gonzales alleged that Lo was negligent in

(1) failing to timely diagnose Gonzales’s failed fusion as the cause of her lower

back pain; (2) failing to correctly read and interpret the radiographs of Gonzales’s

spine; and (3) failing to diagnose instability from the absence of bony bridging at

the fusion site as the cause of Gonzales’s low back pain. Gonzales alleged that

Southwest Radiology was negligent in (1) failing to timely diagnose Gonzales’s

failed fusion as the cause of her back pain; and (2) failing to correctly read and

interpret the spinal radiographs. Gonzales also alleged that Southwest Radiology

was vicariously liable for Lo’s negligence under the doctrine of respondeat

superior. Gonzales sought damages for, among other things, past and future

physical pain and past and future medical expenses.

Gonzales timely filed and served the expert report of Dr. Randall Patten, a

board-certified radiologist. Lo objected to Dr. Patten’s expert report and moved to

dismiss the case pursuant to Civil Practice and Remedies Code section 74.351(b).

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (Vernon 2011). Lo objected

on the grounds that Dr. Patten’s expert report failed to set out the applicable

standard of care, failed to appropriately address causation, and failed to

4

demonstrate that Dr. Patten was qualified to render an opinion on causation. Lo

requested that the trial court dismiss Gonzales’s claims and award reasonable

attorney’s fees pursuant to section 74.351(b). 2

Gonzales requested, and the trial court granted, a thirty-day extension of

time pursuant to section 74.351(c) to cure any deficiencies in Dr. Patten’s expert

report. See id. § 74.351(c) (providing that if expert report is considered to be

untimely because elements of report are found deficient, court may grant one

thirty-day extension for claimant to cure deficiencies). Gonzales subsequently

filed an amended expert report by Dr. Patten.

In this report, Dr. Patten stated that all of his opinions were based on

reasonable medical probability and “the information I have reviewed to date, as

well as my education, training, knowledge, and direct experience, in the

examination, reading and review of radiographic studies, including ultrasounds of

the abdomen, in patients the same as, or similar to, Ms. Gonzales.” After

describing Gonzales’s medical history, including her visits to Dr. Wang and Dr.

2

Section 74.351(b) provides that if an expert report has not been served within the

120-day time period, on the motion of the affected physician or health care

provider, the court shall enter an order awarding reasonable attorney’s fees and

court costs and dismissing the claim with prejudice. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(b) (Vernon 2011); Key v. Muse, 352 S.W.3d 857, 864 (Tex.

App.—Dallas 2011, no pet.) (remanding case to trial court for purpose of

determining reasonable attorney’s fees and court costs and entering order

dismissing plaintiff’s claim with prejudice).

5

Francis and Lo’s interpretations of her radiological test results, Dr. Patten stated

the following standard of care with respect to Lo and Southwest Radiology:

1. The standard of care required that Dr. Lo correctly interpret the

lumbar x-ray and CT scan done on Ms. Gonzales in August

2009 as being diagnostic of a failed fusion. The radiologist

interpreting a CT scan on a patient who has undergone a fusion

should evaluate the presence of new bone formation which is

necessary to achieve a successful fusion. This requires cuts

thinner than the standard 3 mm slices. By 12 months post-op,

in a successful fusion, there should be evidence of obvious

bony bridging between the vertebral bodies. The absence of

bony bridging by this time interval indicates a failed fusion.

2. The standard of care required Southwest Radiology Association

to provide its patients with competent radiologists who could

properly and correctly interpret and report radiographic findings

seen on x-rays and CT scans of the lumbar spine.

Dr. Patten then stated the following with respect to Lo’s alleged breach of the

standard of care and the causal relationship between the alleged breach and

Gonzales’s injuries:

Dr. Lo breached and violated the standard of care when he failed to

correctly interpret the lumbar x-ray and CT performed on Rita

Gonzales in August 2009. Although the x-rays and CT showed a lack

of bony bridging, osseous integration and failure of fusion, these

findings were not properly reported to the surgeon. Dr. Lo, in

reasonable medical probability, should also have had slices thinner

than the standard 3 mm slice obtained in order to best evaluate the

integrity of Ms. Gonzales’ spinal fusion. In failing to obtain slices

smaller than 3 mm, Dr. Lo breached and violated the standard of care.

More than twelve months after surgery, radiographs should

demonstrate evidence of obvious bony bridging between the vertebral

bodies. Ms. Gonzales[’s] radiographs did not[,] but these findings

were not reported. Instead, the findings that were reported to the

surgeon were that the fusion was stable. If Dr. Lo had correctly

6

interpreted the films and reported the absence of bony bridging, in

reasonable medical probability, Ms. Gonzales’ spinal instability

would have been diagnosed and treated by Dr. Wang, the initial

surgeon. Ms. Gonzales would have been treated without having to

obtain a second opinion which required another work-up before

surgery was recommended. Ms. Gonzales would have avoided the

pain she described to Dr. Francis as including weakness in both legs,

difficulty walking and bending, and an inability to sit or stand for

prolonged periods of time. Because Dr. Lo breached and violated the

standard of care and did not correctly interpret and report the absence

of bony bridging on the lumbar x-ray and CT scan, Dr. Lo caused Ms.

Gonzales to suffer worsening and debilitating pain.

Dr. Patten also opined that Southwest Radiology breached the standard of care

when it

failed to provide its patients with competent radiologists, who should

realize that absence of osseous bridging was diagnostic of a failure of

the fusion, who could properly and correctly interpret and report

lumbar x-rays and CT scans. If Southwest Radiology Association had

provided Ms. Gonzales with a competent radiologist to accurately

interpret the imaging and report abnormalities seen in the lumbar x-

ray and CT, Ms. Gonzales’ failed fusion and spinal instability would

have been diagnosed sooner. In reasonable medical probability, as

described above, she would have avoided the worsening pain and

weakness she was experiencing in August and September 2009 before

her diagnosis and surgery by Dr. Francis.

Lo again objected to Dr. Patten’s amended expert report and moved to

dismiss Gonzales’s claims. Specifically, Lo argued that the amended expert report

still failed to state the applicable standard of care and still failed to establish a

causal relationship between Lo’s alleged breach of the standard of care and

Gonzales’s injuries. Lo also argued that Dr. Patten was not qualified to render an

opinion on causation. Lo again requested that the trial court award him reasonable

7

attorney’s fees. After a hearing, the trial court overruled Lo’s objections and

denied his motion to dismiss. The trial court granted Southwest Radiology’s

motion to dismiss any direct liability claims asserted against it by Gonzales, but it

denied the motion to dismiss with respect to the vicarious liability claims. This

interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(9) (Vernon Supp. 2012) (allowing interlocutory appeal from trial

court’s order denying section 74.351(b) motion to dismiss).

Sufficiency of Expert Report

In his first issue, Lo contends that the trial court erroneously denied his

motion to dismiss because Dr. Patten’s expert report did not constitute a good faith

effort to comply with the requirements of section 74.351(r)(6). Specifically, Lo

argues that the expert report fails to establish a causal relationship between Lo’s

alleged breach of the standard of care and Gonzales’s injuries.

A. Standard of Review

We review a trial court’s ruling on a section 74.351 motion to dismiss for an

abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 877 (Tex. 2001). The trial court abuses its discretion if it acts

arbitrarily or unreasonably or without reference to any guiding rules or principles.

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). In

reviewing a trial court’s ruling, we may not substitute our judgment for that of the

8

trial court. Id. Mere disagreement with the trial court’s decision is insufficient to

constitute an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 242 (Tex. 1985).

B. Requirements of Section 74.351(r)(6)

A plaintiff in a medical malpractice action must serve each defendant with

an expert report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). If the plaintiff

timely serves an expert report, the defendant-physician may file a motion objecting

to the sufficiency of the report. Id.; Hillery v. Kyle, 371 S.W.3d 482, 489 (Tex.

App.—Houston [1st Dist.] 2012, no pet.). The trial court shall grant a motion

challenging the adequacy of an expert report only if it appears to the court that the

report “does not represent an objective good faith effort to comply with the

definition of an expert report in Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(l); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied). Subsection 74.351(r)(6) defines

“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 . . . 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); Palacios,

9

46 S.W.3d at 878; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858–59 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

The expert report need not marshal all of the plaintiff’s proof, but it must

include the expert’s opinion on the three statutory elements: standard of care,

breach, and causation. Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859; see

also Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (stating that expert report is not required to prove defendant’s

liability). To constitute a “good faith effort” to comply with the statute, the expert

report must provide enough information to fulfill two purposes: the report must

(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; Gray, 189 S.W.3d at 859. An expert report

that merely states the expert’s conclusions regarding the three statutory elements

does not fulfill these two purposes. Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d

at 859; see also Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (“No

particular words or formality are required [in the expert report], but bare

conclusions will not suffice.”). In the report, the expert must explain the basis for

his statements and must link his ultimate conclusions to the facts of the particular

case. Wright, 79 S.W.3d at 52; Gray, 189 S.W.3d at 859. In assessing the

sufficiency of the report, the trial court may not draw any inferences; instead, it

10

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

report. Wright, 79 S.W.3d at 52.

C. Sufficiency of Dr. Patten’s Expert Report

Dr. Patten’s expert report set out relevant facts, including Gonzales’s prior

surgery, her initial visit to Dr. Wang in July 2009, Lo’s interpretations of the

radiological test results, and Gonzales’s subsequent treatment by Dr. Francis. Dr.

Patten then opined that Lo breached the standard of care when he failed to interpret

Gonzales’s x-ray and CT results as demonstrating a lack of bony bridging. He

further opined:

If Dr. Lo had correctly interpreted the films and reported the absence

of bony bridging, in reasonable medical probability, Ms. Gonzales’

spinal instability would have been diagnosed and treated by Dr.

Wang, the initial surgeon. Ms. Gonzales would have been treated

without having to obtain a second opinion which required another

work-up before surgery was recommended. Ms. Gonzales would

have avoided the pain she described to Dr. Francis as including

weakness in both legs, difficulty walking and bending, and an

inability to sit or stand for prolonged periods of time.

Dr. Patten ultimately concluded that “[b]ecause Dr. Lo breached and violated the

standard of care and did not correctly interpret and report the absence of bony

bridging on the lumbar x-ray and CT scan, Dr. Lo caused Ms. Gonzales to suffer

worsening and debilitating pain.”

Dr. Patten opined that Lo’s breach of the standard of care caused Gonzales

“to suffer worsening and debilitating pain,” and he opined that had Lo correctly

11

interpreted the radiological tests, Gonzales “would have avoided the pain she

described to Dr. Francis as including weakness in both legs, difficulty walking and

bending, and an inability to sit or stand for prolonged periods of time.” 3 It is

undisputed that Gonzales was already suffering from back and hip pain when she

visited Dr. Wang in July 2009, before Dr. Wang ordered the radiological tests at

issue. Dr. Patten’s expert report gives no indication of when Gonzales’s

symptoms—weakness in her legs, her difficulty in walking and bending, and her

inability to sit and stand for prolonged periods—began. It is unclear whether

Gonzales started suffering from these particular ailments before she visited Dr.

Wang in July 2009; after she visited Dr. Wang but before Lo conducted and

interpreted the radiological tests on August 7 and 8; after the tests but before she

saw Dr. Wang on August 24; after she saw Dr. Wang on August 24 but before she

saw Dr. Francis on August 29; or after Dr. Francis determined that further tests

needed to be conducted but before her surgery on September 23, 2009.

Because Gonzales contends that her pain worsened due to the delay in

treatment allegedly caused by Lo, for the trial court to conclude that her claim has

merit, the expert report must state facts supporting a conclusion that her pain

became more severe or she developed new ailments, as opposed to her pain

continuing at the level that it was at before Lo’s involvement, during the delay.

3

We note that, in his expert report, Dr. Patten specifically opined that Gonzales

suffered “worsening” pain as a result of Lo’s conduct.

12

See Palacios, 46 S.W.3d at 879 (stating that one purpose of expert report

requirement is to provide basis for trial court to conclude that plaintiff’s claim has

merit); see also Estorque v. Schafer, 302 S.W.3d 19, 29 (Tex. App.—Fort Worth

2009, no pet.) (noting, in holding expert report insufficient in delay-of-treatment

case, that “[the expert] did not explain how the alleged breaches led to a

deterioration of kidney function and triggered needless pain and suffering . . . .”).

Here, Dr. Patten opined that Gonzales’s pain worsened as a result of her

delay in treatment, but he provided no factual basis to support what her pain level

was and what her specific ailments were before Lo became involved compared to

what her pain level was and what her specific ailments were after Lo allegedly

incorrectly interpreted the radiological tests and Dr. Wang decided not to treat

Gonzales immediately. Dr. Patten’s conclusion that Gonzales’s pain worsened

thus appears to be based solely on the fact that time passed between Lo’s

interpretation of the radiological tests and her surgery by Dr. Francis. The expert

report contains no factual support for the contention that the delay itself actually

caused any additional symptoms or additional pain beyond what Gonzales was

already suffering when she first consulted Dr. Wang. Although “it may be facially

appealing to infer [that] additional pain and suffering resulted from the alleged

delay in diagnosis, the trial court is not permitted to rely on such speculation in

determining the adequacy of the report.” See Jones v. King, 255 S.W.3d 156, 160

13

(Tex. App.—San Antonio 2008, pet. denied) (noting, in case in which plaintiff

alleged that delay in diagnosing meningitis caused disease to worsen and resulted

in additional pain and suffering, that expert report failed “to provide any baseline

from which the trial court could conclude that the delay caused the results”); see

also Wright, 79 S.W.3d at 52 (“[R]ather, the expert must explain the basis of his

statements to link his conclusions to the facts.”).

Here, Dr. Patten’s expert report stated, in a conclusory fashion, that the

delay in treatment as a result of Lo’s alleged errors caused Gonzales’s pain to

worsen, but he provided no factual basis to support this conclusion. Hutchinson v.

Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.)

(“[L]iability in a medical malpractice suit cannot be made to turn upon speculation

or conjecture. ‘The proof must establish causal connection beyond the point of

conjecture. It must show more than a possibility.’”) (quoting Lenger v. Physician’s

Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)).

Furthermore, Dr. Patten’s conclusion that, had Lo correctly interpreted

radiological tests and reported the absence of bony bridging, Dr. Wang would have

diagnosed Gonzales’s spinal instability and immediately treated it himself, requires

us to infer that Dr. Wang relied solely on the fact that Lo, who did report that the

radiological tests reflected that Gonzales had “osteophytic neuroforaminal

encroachment,” did not specifically report an absence of bony bridging when he

14

evaluated Gonzales’s test results and determined that she did not need immediate

revision surgery. This we may not do. See Murphy v. Mendoza, 234 S.W.3d 23,

28 (Tex. App.—El Paso 2007, no pet.) (“Nor can we infer that the surgeon relied

upon the [allegedly erroneous] ambiguous report in deciding the surgical

options.”).

We therefore conclude that Dr. Patten’s expert report fails to establish a

causal connection between Lo’s alleged breach of the standard of care and

Gonzales’s injuries.4 We hold that the trial court erroneously denied Lo’s motion

to dismiss Gonzales’s claims.

We sustain Lo’s first issue. 5

4

Because we conclude that Gonzales’s claims against Lo should be dismissed, we

likewise conclude that her remaining claims against Southwest Radiology, based

solely on vicarious liability, should also be dismissed. Cf. Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam) (“When a party’s

alleged health care liability is purely vicarious, a report that adequately implicates

the actions of that party’s agents or employees is sufficient.”); RGV Healthcare

Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus Christi 2009,

pet. denied) (holding that if expert report adequately addresses statutory elements

with respect to employee-physician, expert report is adequate to satisfy report

requirement for vicarious liability claims against health care provider).

5

Because we hold that Dr. Patten’s expert report fails to establish a causal

connection between Lo’s alleged breach and Gonzales’s injuries and the trial court

has already granted Gonzales a thirty-day extension to cure any deficiencies in her

expert report, we need not address Lo’s second issue: whether Dr. Patten was

qualified to render an opinion on causation. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(c) (“If an expert report has not been served within the period

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

court may grant one 30-day extension to the claimant in order to cure the

deficiency.”) (emphasis added); Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.

15

Conclusion

Because we conclude that the trial court erred in denying Lo’s motion to

dismiss, we reverse the order of the trial court. Pursuant to Civil Practice and

Remedies Code section 74.351(b), we remand the case to the trial court for the

limited purpose of determining Lo’s reasonable attorney’s fees and court costs and

for entry of an order dismissing Gonzales’s claims against Lo and Southwest

Radiology with prejudice.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

2007) (noting that Legislature authorized “a single” thirty-day extension for

deficient reports).

16