Howard H. Hood, M.D. v. John Kutcher

Opinion issued September 27, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-12-00363-CV

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HOWARD H. HOOD, M.D., Appellant

V.

JOHN KUTCHER, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2011-05581

MEMORANDUM OPINION

In this interlocutory appeal, appellee, John Kutcher, sued appellant, Howard

H. Hood, M.D., for medical malpractice. Hood moved to dismiss Kutcher’s claims

on the ground that Kutcher’s expert report did not constitute a good faith effort to

comply with the statutory requirements for expert reports and was therefore

insufficient. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6) (Vernon

Supp. 2012). The trial court denied Hood’s motion. In one issue, Hood contends

that the trial court erred in denying his motion to dismiss because Kutcher’s expert

report did not adequately set out the causal connection between the alleged breach

of the standard of care and the alleged harm and, therefore, did not comply with the

requirements of section 74.351.

We affirm.

Background

On August 4, 2010, Kutcher fell on broken glass and suffered a laceration to

his right thigh. Dr. Hood began treating his injury at the Memorial Medical Center

in Livingston. Dr. Hood applied a pressure dressing to the wound and sent

Kutcher to the radiology department for radiographs of his right femur and upper

leg. When Kutcher returned from the radiology department, Dr. Hood

administered antibiotics and intravenous fluids and applied another pressure

dressing to the wound. Dr. Hood provided Kutcher with “Wound Care—

Laceration” instructions and discharged him from the hospital.

Less than a month later, on August 30, 2010, Kutcher underwent a CT

examination at St. Joseph Medical Center, which revealed the presence of multiple

foreign bodies—pieces of glass—in the wound. At St. Joseph, physicians opened

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up the wound, washed the wound, and removed the remaining pieces of glass.

Kutcher’s post-operative course of care was “lengthy,” and he “required multiple

wound care follow up evaluations.”

Kutcher then sued Dr. Hood for medical malpractice in January 2011.

Kutcher alleged, “Dr. Hood’s failure to document the wound care, and failure to

properly clean the wound proximately caused the injuries sustained by [Kutcher]

for which he now brings suit.” Kutcher served Dr. Hood with the expert report and

the curriculum vitae of Dr. Kenneth Direkly, a physician who is board certified in

emergency medicine.

Dr. Hood timely objected to Dr. Direkly’s expert report, arguing that the

report did not constitute a good faith effort to comply with the statutory

requirements of section 74.351. Dr. Hood objected, among other grounds, on the

basis that Dr. Direkly’s causation opinion was “conclusory, speculative, and

contain[ed] analytical gaps in its causal links.” In response, Kutcher moved for a

thirty-day extension of time to file and serve an amended expert report. The trial

court granted this motion in October 2011.

On November 2, 2011, Kutcher served Dr. Direkly’s amended expert report.

In setting out the applicable standard of care, Dr. Direkly cited several “medical

reference sources” that “discuss appropriate wound care management.” One

source provides that “[m]eticulous preparation of the skin surrounding the wound

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and the actual wound, irrigation, and wound debridement are tantamount to good

wound healing.” Each of the cited sources states that physicians should visually

inspect the wound, are responsible for detecting and identifying foreign bodies

within the wound, and should inform the patient if the physician decides not to

remove any foreign bodies. Dr. Direkly opined that the standard of care for an

emergency-room physician treating an open laceration with the possibility of

wound contamination requires the physician to:

(1) Ensure that the wound is properly explored, prepared, and

cleaned—including irrigation and debridement, if necessary—

to detect foreign bodies and reduce the likelihood of wound

contamination and subsequent infection and to promote proper

healing.

(2) Discuss with the patient the potential for retained foreign bodies

in the wound and the need for alertness to this possibility and

seeking additional and follow-up treatment.

(3) Document that the appropriate exploration and cleaning of the

wound has been accomplished and that the patient has been

informed of the possible need for additional treatment and the

potential for foreign body retention.

Concerning breach of the standard of care, Dr. Direkly noted that the records

of Dr. Hood’s treatment of Kutcher contained “a significant paucity of

documentation [in] the ‘Procedures’ note section.” He stated,

The documentation lists wound repair by eight staples. No other

documentation is recorded; neither by hand written entry or circled

pre-printed findings. No wound preparation or cleaning is

documented. No wound exploration is documented. In addition to

the physician’s charting, no wound cleaning orders were documented

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by the nurse, nor is there documentation of any wound cleaning or

preparation by the nursing staff.

Dr. Direkly opined that Dr. Hood breached the applicable standard of care in

“several fundamental areas”:

(1) Dr. Hood failed to appropriately document proper wound care

and failed to document any discussion with the patient about

potential retained foreign bodies.

(2) Dr. Hood’s lack of documentation fails to demonstrate that

appropriate wound care procedures were followed. Based on

the available medical records, including medical records from

St. Joseph Medical Center, I believe that thorough wound

exploration and cleaning was not performed by Dr. Hood

during Mr. Kutcher’s initial medical treatment. This failure to

explore and clean Mr. Kutcher’s wound was a breach of the

standard of care.

(3) Dr. Hood’s failed documentation is, itself, a breach of the

standard of care. While it did not, in itself, cause Mr. Kutcher

harm, it is indicative and evidentiary of the substandard

treatment he received.

Dr. Direkly concluded that “[s]ignficant subsequent medical treatments

including surgery were necessary as a result of Mr. Kutcher’s retained foreign

bodies within his laceration.” Dr. Direkly detailed Kutcher’s subsequent treatment

at St. Joseph: Kutcher had a CT examination, which revealed “multiple

subcentimeter retained foreign bodies.” He then underwent an “incision and

drainage procedure,” and, several weeks after that procedure, his medical records

noted that his wound was reopened and washed out, and physicians “removed

some glass that was still in the wound.” Dr. Direkly opined that, had Dr. Hood

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initially treated Kutcher “appropriately within the standard of care by following the

appropriate wound care procedures, in reasonable probability, those foreign bodies

would not have been present to cause infection.” “At the very least,” if Dr. Hood

had informed Kutcher that pieces of glass likely remained in his wound, Kutcher

“would have known to be alert to the possibility and seek additional follow-up

treatment that would, in reasonable probability have prevented infection from

setting in.” Dr. Direkly concluded,

In reasonable probability, Mr. Kutcher’s extensive additional

procedures and post-operative course would not have occurred but for

Dr. Hood’s failure to treat his laceration appropriately upon

presentation to the emergency room at Memorial Medical Center or,

at the very least, had Mr. Kutcher been warned of the possibility and

potential of foreign body retention and subsequent infection requiring

additional treatment.

Dr. Direkly ultimately concluded that Dr. Hood failed to document that he

followed proper wound care procedures in treating Kutcher, and, based on

Kutcher’s medical records and ensuing infection, he “in reasonable probability,

failed to perform appropriate medical treatment” for Kutcher’s injuries. This

deficient care “subsequently led to extensive medical evaluations, surgeries, and

treatments.”

Dr. Hood objected to Dr. Direkly’s amended expert report and moved to

dismiss Kutcher’s suit pursuant to section 74.351. Dr. Hood again argued that the

expert report was “conclusory, speculative, and fail[ed] to sufficiently address the

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elements required by Chapter 74.” Dr. Hood argued that the expert report failed

“to adequately link the alleged breaches of the standard of care to the harm

suffered by Mr. Kutcher.” He argued that Dr. Direkly never explained the

“appropriate wound care procedures” that Dr. Hood failed to follow, and he “only

criticize[d] Dr. Hood’s alleged failure to document that appropriate wound care

procedures were followed.” Dr. Direkly’s “causal connection [was], therefore, not

linked to the facts.” Dr. Hood also argued that Dr. Direkly: (1) did not explain

how or why following appropriate wound care procedures would have prevented

the harm to Kutcher; (2) did not explain how a foreign body could cause infection

or that it did cause Kutcher’s infection; and (3) did not specify the acts or

omissions that actually caused the harm or what Dr. Hood could have done to

prevent the harm. Dr. Direkly thus failed to explain how and why Dr. Hood’s

breach of the standard of care caused Kutcher’s injury.

The trial court denied Dr. Hood’s motion to dismiss. This interlocutory

appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (Vernon

Supp. 2012) (providing for interlocutory appeal of trial court order denying motion

to dismiss pursuant to section 74.351).

Sufficiency of Expert Report

In his sole issue on appeal, Dr. Hood contends that the trial court

erroneously denied his motion to dismiss because Dr. Direkly’s expert report did

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not constitute a good faith effort to comply with the requirements of section

74.351(r)(6). Specifically, Dr. Hood argues that the expert report “fails to describe

the causal connection between the alleged breaches of the standard of care by Dr.

Hood and the harm suffered by Mr. Kutcher.”

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, 875 (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

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, 241–42 (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. See 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. See id.; Hillery v. Kyle, 371 S.W.3d 482,

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

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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,

46 S.W.3d at 879; 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 878–79; Gray, 189 S.W.3d at 859.

To constitute a “good faith effort” to comply with the statute, the expert report

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

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

question; and (2) the report must 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

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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

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

report. Wright, 79 S.W.3d at 52; Gray, 189 S.W.3d at 859.

Whether an expert’s factual inferences made in the expert report are accurate

is a question for the fact finder and should not be considered when ruling on a

section 74.351 motion to dismiss. See Gannon v. Wyche, 321 S.W.3d 881, 892

(Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also Granbury Minor

Emergency Clinic v. Thiel, 296 S.W.3d 261, 265 (Tex. App.—Fort Worth 2009, no

pet.) (“[The ‘four corners’] requirement precludes a court from filling gaps in a

report by drawing inferences or guessing as to what the expert likely meant or

intended. However, section 74.351 does not prohibit experts, as opposed to courts,

from making inferences based on medical history.”) (emphasis in original). The

question of whether an expert is correct in his assertions is an issue for summary

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judgment, not a Chapter 74 motion to dismiss. See Methodist Hosp. v. Shepherd-

Sherman, 296 S.W.3d 193, 199 n.2 (Tex. App.—Houston [14th Dist.] 2009, no

pet.).

C. Dr. Direkly’s Expert Report

In his expert report, Dr. Direkly cited several medical reference sources that

“discuss appropriate wound care management.” According to these sources,

“[m]eticulous preparation of the skin surrounding the wound and the actual wound,

irrigation, and wound debridement are tantamount to good wound healing”;

“[e]very effort should be made to identify foreign bodies [in the wound], even if

they are not likely to be removed”; the patient should be informed if the physician

is not going to remove foreign bodies; “[v]isual wound inspection, down to the full

depth and along the full course of the wound, is the most important method of

detecting foreign bodies”; “[t]he most important step in prevention of a wound

infection is adequate irrigation and debridement,” which is “the removal of foreign

matter and devitalized tissue from the wound”; and “[t]he key is to document all

efforts and explain to the patient the possibility of a foreign body.” Dr. Direkly

opined that the standard of care thus required Dr. Hood to:

(1) Ensure that the wound is properly explored, prepared, and

cleaned—including irrigation and debridement, if necessary—

to detect foreign bodies and reduce the likelihood of wound

contamination and subsequent infection and to promote proper

healing.

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(2) Discuss with the patient the potential for retained foreign bodies

in the wound and the need for alertness to this possibility and

seeking additional and follow-up treatment.

(3) Document that the appropriate exploration and cleaning of the

wound has been accomplished and that the patient has been

informed of the possible need for additional treatment and the

potential for foreign body retention.

In the section of the expert report addressing alleged breach of the standard

of care, Dr. Direkly discussed several “documentation deficiencies.” Dr. Direkly

acknowledged that, although Dr. Hood’s “failed documentation is, itself, a breach

of the standard of care,” this failure did not “in itself” cause Kutcher any harm. Dr.

Direkly did, however, note that Kutcher’s medical records contained “a significant

paucity of documentation [in] the ‘Procedures’ note section.” Dr. Direkly

observed that Kutcher’s records indicated that he received eight staples to close the

wound, but the records contained no other documentation concerning wound

repair. Dr. Direkly stated, “No wound preparation or cleaning is documented. No

wound exploration is documented. In addition to the physician’s charting, no

wound cleaning orders were documented by the nurse, nor is there documentation

of any wound cleaning or preparation by the nursing staff.” He concluded that Dr.

Hood “failed to appropriately document proper wound care and failed to document

any discussion with the patient about potential retained foreign bodies.” He also

inferred, from Dr. Hood’s lack of documentation concerning wound care

procedures, that “thorough wound exploration and cleaning was not performed”

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during Kutcher’s initial treatment. Dr. Direkly opined that “[t]his failure to

explore and clean Mr. Kutcher’s wound” breached the standard of care.

On appeal, Dr. Hood contends that the expert report is insufficient because it

“fails to describe the causal connection between the alleged breaches of the

standard of care by Dr. Hood and the harm suffered by Mr. Kutcher” and “does not

provide a factual basis for [the] causal theory that Dr. Hood’s alleged breach

caused the harm to Mr. Kutcher.”

In the causation section of the expert report, Dr. Direkly noted that

“[s]ignificant subsequent medical treatments including surgery were necessary as a

result of Mr. Kutcher’s retained foreign bodies within his laceration.” Specifically,

nearly one month after Dr. Hood treated Kutcher, Kutcher underwent a CT

examination at St. Joseph, which revealed “multiple subcentimeter retained foreign

bodies.” Kutcher then had an “incision and drainage procedure” and another

procedure in which physicians reopened Kutcher’s wound, washed the wound, and

removed pieces of glass that were still in the wound. Dr. Direkly concluded that,

in reasonable probability, “Mr. Kutcher’s extensive additional procedures and post-

operative course would not have occurred but for Dr. Hood’s failure to treat his

laceration appropriately upon presentation to the emergency room at Memorial

Medical Center . . . .” Dr. Direkly also opined that, had Dr. Hood followed the

standard of care and properly treated Kutcher by “following the appropriate wound

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care procedures,” in reasonable probability, glass would not have remained in

Kutcher’s wound and therefore would not have been present to cause Kutcher’s

subsequent infection.

Dr. Direkly’s expert report thus set out the applicable standard of care,

which required Dr. Hood to visualize and inspect the wound to detect the presence

of foreign bodies in the wound, such as stray pieces of glass, and to perform

irrigation and debridement procedures to remove any foreign bodies located in the

wound. Dr. Direkly inferred, based upon the medical records from Kutcher’s

subsequent procedures at St. Joseph—which revealed that, over one month after

his injury, glass fragments remained in the wound—and Dr. Hood’s failure to

document the procedures that he used to clean Kutcher’s wound, which is in itself

a breach of the standard of care, that “thorough wound exploration and cleaning”

did not occur, which breached the standard of care. See Thiel, 296 S.W.3d at 265

(noting that section 74.351 does not prohibit experts from making inferences based

upon patient’s medical history); see also Gannon, 321 S.W.3d at 892 (noting that

accuracy of expert’s inferences is issue for summary judgment, not for section

74.351 motion to dismiss); Shepherd-Sherman, 296 S.W.3d at 199 n.2 (noting

same). Dr. Direkly then concluded that, due to Dr. Hood’s failure to appropriately

clean and care for Kutcher’s wound upon initial presentment, pieces of glass

remained in Kutcher’s wound, which subsequently caused an infection and

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necessitated additional surgical procedures to clean the wound and remove the

glass fragments.1 In Dr. Direkly’s opinion, if Dr. Hood had used appropriate

wound care procedures, such as irrigation and debridement, at the time that he

initially saw Kutcher, foreign bodies would not have remained in the wound to

cause infection and Kutcher would not have needed the “extensive additional

procedures and post-operative course” to remove the glass fragments at a later

date. Dr. Direkly’s expert report thus links his conclusions to the particular facts

of the case. Wright, 79 S.W.3d at 52.

Dr. Hood contends, quoting the Texas Supreme Court’s decision in Jelinek

v. Casas, 328 S.W.3d 526, 539–40 (Tex. 2010), that the expert report must

“explain, to a reasonable degree, how and why the breach caused the injury based

on the facts presented” and that Dr. Direkly’s expert report did not meet this

requirement. As stated above, however, Dr. Direkly’s expert report satisfied this

requirement by stating the alleged breach—failure to thoroughly explore and clean

1

Dr. Hood criticizes Dr. Direkly’s failure to “explain how this follow up care

[received at St. Joseph] and the other follow up care provided to Mr. Kutcher was

insufficient.” Dr. Hood misunderstands why Kutcher’s need for follow-up care is

significant. Kutcher raises no complaint about the quality of his follow-up care

and does not allege that the follow up care contributed to his injuries. Instead, he

contends that the follow up care is part of his injury, as he argues that the follow

up care would not have been necessary had Dr. Hood appropriately treated his

wound on initial presentation. Dr. Direkly’s expert report reflects this contention,

stating, “In reasonable probability, Mr. Kutcher’s extensive additional procedures

and post-operative course would not have occurred but for Dr. Hood’s failure to

treat his laceration appropriately upon presentation to the emergency room at

Memorial Medical Center . . . .”

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Kutcher’s wound—and how the breach caused the injury—as a result of Dr.

Hood’s failure, glass fragments remained in Kutcher’s wound which led to an

infection and required Kutcher to undergo several subsequent procedures to clean

and remove all remaining glass fragments from the wound. Contra id. at 540

(“[The expert report] offers no more than a bare assertion that Dr. Jelinek’s breach

resulted in increased pain and suffering and a prolonged hospital stay. Beyond that

statement, the report offers no explanation of how the breach caused the injury.”);

Gray, 189 S.W.3d at 860 (“[T]he report provides only the conclusory statement

that the failure to monitor caused Gray’s injury. By not fleshing out how

appellees’ failure to monitor Gray’s extremities caused her injury, the report does

not convincingly tie the alleged departure from the standard of care to the specific

facts of the case.”).

We conclude that Dr. Direkly’s expert report provides a “fair summary” of

his opinions concerning the applicable standard of care, the manner in which Dr.

Hood allegedly breached that standard, and the causal connection between Dr.

Hood’s breach and the harm suffered by Kutcher. We also conclude that Dr.

Direkly’s expert report informs Dr. Hood of the specific conduct called into

question and provides a basis for the trial court to conclude that the claims have

merit. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Because Dr.

Direkly’s expert report constitutes a “good faith effort” to comply with the

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requirements of section 74.351, we hold that the trial court did not abuse its

discretion in denying Dr. Hood’s motion to dismiss Kutcher’s claims.

We overrule Dr. Hood’s sole issue.

Conclusion

We affirm the order of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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