Opinion

Opinion issued

May 17, 2012.

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-11-00708-CV

———————————

Robert Hillery,

M.D., and Southwest Surgical

Associates, P.A. , Appellants

V.

Suzette Kyle,

Patrice Ward, ViCki, Kyle, and Jamessee Kesee, individually and on behalf of

the Estate of Melinda Kyle, deceased , Appellees

On Appeal from the 240th

District Court

Fort Bend County, Texas

Trial Court Case No. 10-DCV-186324

O P

I N I O N

Robert

Hillery, M.D. and Southwest Surgical Associates, P.A. bring this interlocutory

appeal challenging the trial court’s denial of their motion to dismiss a health

care liability claim. See Tex.

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

(West Supp. 2011). Suzette Kyle, Patrice

Ward, Vicki, Kyle, and Jamessee Kesee, individually and on behalf of the Estate

of Melinda Kyle, deceased (collectively, “the Kyles ”),

brought a health care liability claim against Hillery and Southwest, among

other defendants, asserting that negligence in their care and treatment of

Melinda Kyle caused her death. After the

Kyles served an expert report as required by section 74.351 of the Texas Civil

Practice and Remedies Code, Hillery and Southwest (collectively, “Hillery”)

moved to dismiss under section 74.351, contending the report is inadequate. See

Tex. Civ. Prac. & Rem. Code § 74.351(a) (West 2011). The trial court denied the motion to dismiss,

and, on appeal, Hillery contends the trial court

erred because Dr. Goldman, the Kyles’ expert, is not qualified and because the

report is inadequate concerning causation.

We affirm.

Background

On

September 15, 2008, Melinda Kyle was admitted to Oak Bend Medical Center with a

gangrenous right toe. Melinda was

sixty-nine years old with a history of diabetes, hypertension, coronary artery

disease, and peripheral vascular disease.

She also took blood-thinning medication to prevent clotting.

Melinda’s

attending doctor was Dr. Mark Murray. Shortly

after being admitted, Melinda had a stent placed in her leg to try to restore

blood flow to her foot. She also saw a

cardiologist, Dr. James McClamroch, on September 17. The procedure did not restore blood flow to

Melinda’s foot, and, on September 22, 2008, Dr. Uttam

Tripathy ,

a vascular surgeon performed a bypass graft.

Although it is unclear when, at some point, Melinda was placed on a

Heparin drip to prevent clotting. Dr. Tripathy ordered that the Heparin drip be discontinued one

hour before surgery and resumed four hours after surgery.

The bypass

graft was not successful. Accordingly,

Hillery, a general surgeon, was consulted.

He performed a below knee amputation on Melinda’s right leg on September

24, 2008. Hillery ordered the Heparin

drip discontinued before surgery. After

the surgery was completed, the Heparin drip was not resumed.

Melinda

was monitored in the intensive care unit after the amputation. On September 25, while Melinda was still in

the ICU, testing by Dr. McClamroch and Dr. Tripathy showed inadequate

anti-coagulation. On September 26,

Melinda was extubated. A test performed

that day again showed inadequate anti-coagulation. On September 29, 2008, despite a still

inadequate level of anti-coagulation, Dr. McClamroch approved Melinda’s

transfer out of ICU. Dr. Tripathy also

examined Melinda and ordered her transfer.

Dr. Murray also ordered Melinda’s transfer. Approximately one hour after her transfer, a

nurse found Melinda lethargic and unresponsive. Melinda was resuscitated and reintubated. However, she had suffered an oxic encephalopathy—brain

damage caused by lack of oxygen.

Melinda was transferred back to the

ICU. At that time, she was placed back

on the Heparin drip. Dr. McClamroch

ordered a test that showed myocardial infarction was not the cause of Melinda’s

respiratory arrest. Further testing

indicated that there was no significant blood flow to the brain. Melinda was declared brain dead. She was extubated on October 6, 2008. Melinda was transferred for hospice care

where she remained until she died on October 12, 2008.

The Kyles

brought this health care liability claim against Dr. Tripathy, Dr. Murray, Dr.

McClamroch, Hillery, and the professional associations with which each doctor

was associated. As required by statute,

the Kyles filed an expert report by Dr. Stephen Goldman. Hillery moved to dismiss the Kyles’ suit

against him, objecting to the report on the ground that Dr. Goldman, who is a

cardiologist, is not qualified to opine on the standard of care applicable to

Hillery, a general surgeon. Hillery also

objected that Dr. Goldman’s opinion is conclusory because it does not link the

facts of the case to his conclusion that Hillery’s breach of the standard of

care caused Melinda’s death. The trial

court denied the motion to dismiss and Hillery appealed.

Standard of Review

We review a trial court’s ruling on a

motion to dismiss a health care liability lawsuit pursuant to Chapter 74 of the

Texas Civil Practice and Remedies Code under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios , 46 S.W.3d 873, 875 (Tex. 2001) (reviewing dismissal under

predecessor statute, section 13(e) of article 4590i); Runcie v. Foley , 274 S.W.3d 232, 233 (Tex. App.—Houston [1st Dist.]

2008, no pet.). A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner without reference

to guiding rules or principles, or if it clearly fails to analyze or apply the

law correctly. Runcie , 274 S.W.3d at 232 .

In reviewing whether an expert report complies with Chapter 74, we

evaluate whether the report “represents a good-faith effort” to comply with the

statute. Strom v. Mem’l Hermann Hosp.

Sys ., 110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied). In making this evaluation, we

must look only at the information contained within the four corners of the

report. Bowie Mem’l Hosp. v. Wright ,

79 S.W.3d 48, 53 (Tex. 2002).

Qualifications

In

his first issue, Hillery contends that the trial court abused its discretion in

not dismissing the Kyles’ claim because Dr. Goldman is not qualified to offer

an opinion concerning the standard of care in this claim.

Section

74.351(r)(5)(A) requires that an expert opining on “w hether a physician departed from accepted standards of

medical care” meet the qualifications set forth in section 74.401. Tex.

Civ. Prac. & Rem. Code Ann . § 74.351(r)(5)(A) (West 2011). Section 74.401(a) provides:

(a) 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.

Tex. Civ.

Prac. & Rem. Code Ann . § 74.401(a) (West 2011). Section 74.401 continues:

(c) In determining whether a witness is

qualified on the basis of training or experience, the court shall consider

whether, at the time the claim arose or at the time the testimony is given, the

witness:

(1) is

board certified or has other substantial training or experience in an area of

medical practice relevant to the claim; and

(2) is

actively practicing medicine in rendering medical care services relevant to the

claim.

Tex. Civ.

Prac. & Rem. Code Ann . § 74.401(c).

The first

requirement set forth in section 74.401(a) is that Dr. Goldman “ is

practicing medicine at the time such testimony is given or was practicing

medicine at the time the claim arose.” Tex. Civ. Prac. & Rem. Code Ann .

§ 74.401(a)(1) . Hillery does

not challenge this requirement.

The second

and third requirements of section 74.401(a) are that Dr. Goldman have “knowledge

of accepted standards of medical care for the diagnosis, care, or treatment of

the illness, injury, or condition involved in the claim” and be “qualified on

the basis of training or experience to offer an expert opinion regarding those

accepted standards of medical care.” Id. § 74.401(a)(2), (3). These are the requirements Hillery contends

Dr. Goldman fails to meet.

Specifically, Hillery argues that Dr. Goldman is not qualified because he

is a cardiologist who is board certified in cardiovascular disease and internal

medicine, but nothing in his report or curriculum vitae shows that he is

qualified to opine on the area of general surgery or below-knee amputation, the

medical care provided by Hillery in this case.

An expert need not be practicing in the same field as a defendant

in a health care liability claim in order to qualify as an expert. Rittger

v. Danos , 332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no

pet.); Blan v. Ali , 7 S.W.3d 741, 745

(Tex. App.—Houston [14th Dist.] 1999, no pet.).

Rather the statute requires that the expert have knowledge of the

condition involved in the claim. Tex. Civ. Prac. & Rem. Code Ann .

§ 74.401(a )( 2); Rittger , 332 S.W.3d at 558 (noting focus is not on defendant

doctor’s area of expertise, but on the condition involved in the claim). The mere fact that Dr. Goldman is not a general surgeon,

therefore, does not necessarily render him unqualified.

In his report,

Dr. Goldman states that he is familiar with the standards of care relevant to

the condition involved in this claim. Specifically,

Dr. Goldman states that, as part of his practice, he treats, and has diagnosed

and treated, “patients with conditions similar to those experienced by Melinda

Kyle including coronary artery disease, hypertension, hyperlipidemia, diabetes,

and peripheral vascular disease.” He

also states that

[T]here is considerable overlap in my specialty and that

of physicians caring for patients in a critical care setting including

pulmonology, vascular disease and internal medicine. My area of specialties overlaps the

physicians involved in the care of Melinda Kyle in the diagnosis, treatment and

management of patients with stents. . . . By virtue of my education, training

and experience, I am well familiar with the standards of care applicable to the

diagnosis and treatment of patients like Melinda Kyle with a history of

coronary artery disease, hypertension, hyperlipidemia, diabetes and peripheral

vascular disease who have undergone surgery.

Dr.

Goldman also explains the basics of the cardiovascular system and how blood

clots in the legs may develop. The risk

of clots is “significantly increased in patients who have suffered a trauma in

the lower extremities such as would occur during a surgical procedure.” He further elaborates,

The risk of pulmonary embolism and thrombotic

complications following surgery or immobilization has been well-known for

decades. It is well established that

patients who are unable to move well, who are obese or bedridden, and therefore

have markedly decreased movement in their legs and bodies, should be given some

type of thrombo-embolism prophylaxis. . . . . It has been well established that

administration of anticoagulant medications like Heparin can prevent clots from

forming thereby preventing the development of pulmonary emboli.

Within

the section of his report dealing with Hillery’s alleged breach of the standard

of care, Dr. Goldman also states,

The standard of care required Robert Hillery, M.D., the

general surgeon attending to Ms. Kyle, to ensure that proper anticoagulation

occurred following surgery. The standard

of care required Dr. Hillery to order administration of Heparin for Mrs. Kyle

to prevent the formation of pulmonary embolism and thrombotic

complications. This standard applies to

all of the healthcare providers involved in the care of Mrs. Kyle as the need

for administration [of] Heparin to anti-coagulate a patient following surgery

involving the hip, leg or lower extremities is well known among physicians

practicing surgery, cardiology and internal medicine.

Furthermore,

as stated above, the statute setting forth the qualifications required of an

expert does not focus on the defendant’s specialty but on the condition

involved in the claim. See Tex. Civ. Prac. & Rem. Code Ann . § 74.401(a)(2);

Rittger , 332 S.W.3d at 558 . Hillery asserts that he was “consulted solely

regarding amputation” and not to provide any other care. However, in this case, Hillery’s

conduct related to the amputation or general surgery is not the basis of the Kyles ’ claim. Rather,

the basis of the claim and the focus of Dr. Goldman’s report is the failure to

properly anti-coagulate Melinda following the surgery. The Kyles alleged

that Hillery and the other defendants were negligent

by failing to “properly diagnose and prescribe necessary medications to Melinda

Kyle,” “ anticoagulate Melinda Kyle,” “properly

recognize and diagnose the condition of Melinda Kyle, deceased, including, but

not limited to hypercoaguable state,” and “properly

and timely treat Melinda Kyle.” Hillery does not assert that Dr. Goldman, who is

board-certified in cardiovascular diseases and internal medicine, is not

qualified to offer an opinion on the standard of care relating to the need to

administer anti-coagulation medication following surgery.

Because

Dr. Goldman’s report and curriculum vitae demonstrate his knowledge and

experience treating patients in circumstances similar to those that form the

basis of the allegations in this claim, the trial court did not abuse its

discretion in finding Dr. Goldman qualified.

See Tex. Civ. Prac. & Rem. Code Ann . § 74.401(a )( 2); Rittger , 332

S.W.3d at 558 (neurologist qualified to provide expert opinion on standard of

care or breach thereof by emergency room physician where prospective medical

expert had practical knowledge of what is usually and customarily done by

practitioners under similar circumstances); see

also B arber v. Mercer , 303

S.W.3d 786, 795 (Tex. App.—Fort Worth 2009, no pet.) (holding anesthesiologist

qualified to opine on conduct of surgeon in health care liability claim because

anesthesiologist’s report tied his education, training, and experience to the

specific alleged breach—the positioning and padding of a patient during

surgery, not the conduct of the actual operating techniques); Blan , 7 S.W.3d at 746 (condition involved in claim was stroke,

therefore, neurologist qualified as expert although defendants were emergency

room physician and cardiologist) .

Adequacy of Report

In his

second issue, Hillery contends that Dr. Goldman “fails to adequately set forth

the standard of care, breach of the standard of care, and the causal

relationship between the breach and injury” as required by section 74.351 of

the Texas Civil Practice and Remedies Code.

See Tex.

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

A.

Chapter 74 expert report requirements

Pursuant to section 74.351,

medical-malpractice plaintiffs must provide each defendant physician and health

care provider with an expert report. Tex. Civ. Prac. & Rem. Code §

74.351(a). If a claimant timely

furnishes an expert report, a defendant may file a motion challenging the

report’s adequacy. Id. The trial court shall grant the motion only if

it appears, after hearing, that the report does not represent an objective good

faith effort to comply with the statutory definition of an expert report. See id. § 74.351( l ). The statute defines an

expert report as a written report by an expert that provides, as to each

defendant, a fair summary of the expert’s opinions, as of the date of the

report, regarding: (1) the applicable standards of care; (2) the manner in

which the care rendered failed to meet the standards; and (3) the causal

relationship between that failure and the injury, harm, or damages

claimed. See id. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P. , 189 S.W.3d

855 , 858 - 59 (Tex. App.—Houston [1st

Dist.] 2006, no pet.).

Although the report need not marshal

all the plaintiff’s proof, it must include the expert’s opinions on the three

statutory elements—standard of care, breach, and causation. See Palacios , 46 S.W.3d at 878 ; Gray ,

189 S.W.3d at 859 . In detailing these

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

first, it must inform the defendant of the specific conduct the plaintiff has

called into question, and, second, it must provide a basis for the trial court

to conclude that the claims have merit. Scoresby v. Santillan , 346 S.W.3d 546,

556 (Tex. 2011) (citing Palacios , 46 S.W.3d at 879 ). A report that merely states the expert’s

conclusions as to the standard of care, breach, and causation does not fulfill

these two purposes. Id .

“‘[T]he expert must explain the basis of his 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)). Furthermore, in assessing the

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

must rely exclusively on the information contained within the report’s four

corners. See Scoresby , 346 S.W.3d at 556 (citing Palacios ,

46 S.W.3d at 878 ); Wright , 79 S.W.3d at 53 .

B. Hillery’s objection

Hillery’s objection to Dr. Goldman’s report in the trial

court stated, in its entirety:

Dr. Goldman’s report is inadequate because it is

conclusory and fails to provide any factual support for the opinion expressed

within. Dr. Goldman states that

myocardial infarction was ruled out as the cause of Mrs. Kyle’s arrest. However, Dr. Goldman fails to provide any

factual support for his conclusion that Mrs. Kyle developed blood clots and

pulmonary emboli that were the cause of her respiratory arrest as a result of

failure [t]o provide appropriate post operative drugs.

Because Hillery objected only on

the grounds that the report was conclusory concerning the element of causation,

and did not mention the elements of standard of care or breach, we do not

address that portion of Hillery’s issue concerning standard of care and

breach. See Tex. R. App . P.

33.1(a); Hawkins v. Herrera , 296 S.W.3d 366, 370 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) ( refusing to address

objections by defendant physician who did not raise objections in trial court);

see also Plemons v. Harris , No. 02-08-00326-CV, 2009 WL 51290 ,

*3 (Tex. App.—Fort Worth Jan.8, 2009, no pet.) (mem. op.) ( holding

objection to expert report made in trial court must comport with complaint

asserted on appeal);

Williams v. Mora , 264

S.W.3d 888, 891 (Tex. App.—Waco 2008, no pet.) ( holding

that when defendant’s only timely filed objections to expert report were that

two statements were speculative, defendant waived all other objections).

C. Adequacy of report concerning causation

As set forth above, Hillery’s

objection to the adequacy of Dr. Goldman’s report is that “ Dr. Goldman

fails to provide any factual support for his conclusion that Mrs. Kyle

developed blood clots and pulmonary emboli that were the cause of her

respiratory arrest as a result of failure [t]o provide appropriate post operative drugs.”

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 . In

explaining causation, the report must explain how the physician’s conduct

caused the plaintiff’s injuries. Id. at 53 .

Dr. Goldman’s

report concerning causation is not conclusory.

As discussed above, Dr. Goldman explains the functioning of the

cardiovascular system, including how decreased physical movement causes a

patient to be more prone to clotting, and how formation of clots causes

inadequate oxygenation, respiratory arrest, and brain injury. He also describes and explains the risk

factors for developing clots and pulmonary emboli, many of which existed in

Melinda’s case, predisposing her to their development:

Melinda Kyle had multiple risk factors that predisposed

her to the development of blood clots and pulmonary emboli. Ms. Kyle was obese, had heart disease,

peripheral vascular disease and was immobile.

Ms. Kyle had also just undergone a below knee amputation, a procedure

that is in itself a risk factor for development of pulmonary emboli. Ms. Kyle should have been placed back upon

Heparin following this surgery. In

reasonable medical probability, had the Heparin drop been resumed for Ms. Kyle

following her amputation surgery, she would not have developed the blood clots

and pulmonary emboli that were, in all probability, the cause of her

respiratory arrest on September 29, 2008. Ms. Kyle would not have suffered the

respiratory arrest on September 29, 2008 if Heparin had been reinstituted and

would not have sustained the anoxic brain injury caused by her arrest.

Concerning

Hillery’s conduct, Dr. Goldman states:

The standard of care required Robert Hillery, M.D., the

general surgeon attending to Ms. Kyle, to ensure that proper anticoagulation

occurred following surgery. The standard

of care required Dr. Hillery to order administration of Heparin for Ms. Kyle to

prevent the formation of pulmonary embolism and thrombotic complications. This standard applies to all of the health

care providers involved in the care of Ms. Kyle as the need for administration

Heparin to anti-coagulate a patient following surgery involving the hip, leg or

lower extremities is well known among physicians practicing surgery, cardiology

and internal medicine. Ms. Kyle was a

patient with multiple risk factors for the development of pulmonary emboli

notably including surgery on the leg which is itself a risk factor sufficient

to warrant administration of Heparin prophylactically following surgery. For Ms. Kyle, a patient with multiple risk

factors that placed her at an even greater risk for the development of

pulmonary emboli, administration of Heparin was essential to prevent formation

of blood clots. By failing to order the

Heparin resumed and failing to ensure that Ms. Kyle was receiving Heparin

following her surgery, Dr. Hillery breached and violated the standard of care.

In reasonable medical probability, if Dr. Hillery had met the standard of care

and ordered Heparin following surgery, Heparin would have been resumed in Ms.

Kyle and she would not have developed the pulmonary emboli that caused her

respiratory arrest and anoxic brain injury and she would have survived her hospitalization.

In the

“Conclusion” section of the report, Dr. Goldman summarizes:

Ms. Kyle had several strong and obvious risk factors for

pulmonary emboli yet she was not placed back on Heparin following her below

knee amputation. This was below the standard

of care for all of the physicians attending to Ms. Kyle. The failure to resume Heparin

following her surgery, in reasonable medical probability, caused the formation

of blood clots that blocked the flow of oxygen and caused her to suffer a

respiratory arrest on September 29, 2008.

Dr. Goldman

does more than just state his conclusions or provide insight regarding the Kyle’s

claims. See Wright , 79 S.W.3d at 52 . He

explains the medical causes of the formation of clots, including conditions

that increase the risk, and that these risks are well-known. He identifies Melinda as having several of

these risk factors, including a trauma in the form of a surgical amputation of

her leg below the knee. He explains that

treatment using a drug such as Heparin is well-established to help prevent

clots from forming and that the standard of care required the defendants,

including Hillery, to administer Heparin following surgery. He explains that the test ordered by other

defendants ruled out a myocardial infarction.

And, finally, he opines that the likely cause of Melinda’s death was the

development of blood clots and pulmonary emboli and that she would not have

developed the clots and pulmonary emboli had the Heparin been resumed following

the amputation surgery. We conclude that

this is a fair summary of the causal relationship between Hillery’s failure to

meet the appropriate standard of care and the injury, harm, or damages claimed. See Manor

Care Health Servs., Inc. v. Ragan , 187 S.W.3d 556, 564 (Tex. App.—Houston

[14th Dist.] 2006, pet. granted, judgment vacated w.r.m.) (concluding report

adequate concerning causation where report stated that administration of

anticoagulant medication was necessary to prevent pulmonary emboli and that as

result of failure to administer drugs patient probably suffered pulmonary

emboli and consequently died) ; cf. Shenoy v. Jean , No. 01-10-01116-CV, 2011 WL 6938538 , at *7 (Tex.

App.—Houston [1st Dist.] Dec. 29, 2011, no pet. h.) (mem op.) (holding report

inadequate concerning causation because it failed to link decedent’s pre-existing

conditions to an increased risk for the injury involved in that claim).

In his

appellate brief, Hillery also argues that Dr. Goldman’s opinion is speculative

because he “fails to offer any factual data, clinical, radiological and the

like[,] to support his assumption that blood clots and pulmonary emboli formed

which caused Ms. Kyle’s respiratory arrest.

There are a multitude of causes for respiratory arrest for a 5-day

postoperative patient.” To the extent

this is an argument, distinct from the one discussed above, that Dr. Goldman

did not rule out all possible causes of death, we overrule it. See

Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace , 278

S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.) (“Nothing in section 74.351

suggests the preliminary report is required to rule out every possible cause of

the injury, harm, or damages claimed, especially given that section 74.351(s)

limits discovery before a medical expert’s report is filed.”); see also Methodist

Hosp. v. Shepherd-Sherman , 296 S.W.3d 193 , 199 n.2 (Tex. App.—Houston [14th Dist.]

2009, no pet.) (whether expert’s opinion is correct or not is issue for summary

judgment, not Chapter 74 motion to dismiss); Manor Care Health Servs ., Inc. , 187 S.W.3d at 564 (report stating failure

to administer anticoagulant drugs probably caused pulmonary emboli that caused

death sufficient statement of causation).

Conclusion

We affirm the order of the trial

court.

Rebeca

Huddle

Justice

Panel consists of Chief Justice Radack and Justices

Jennings and Huddle.