Peter Lotze, M.D. v. Amanda Howton and John Howton

Opinion issued March 17, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00143-CV

———————————

Peter Lotze, M.D. , Appellant

V.

Amanda

Howton and John Howton , Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2009-47341

MEMORANDUM OPINION

The

issue in this interlocutory appeal is whether the trial court abused its

discretion by denying a motion to dismiss health-care-liability claims. Appellant Peter Lotze, M.D. moved to dismiss

appellees Amanda Howton and John Howton’s medical-malpractice claims on the

ground that the Howtons filed a deficient expert report. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(a), ( l ) (West Supp.

2010). The trial court denied the motion

to dismiss. We affirm.

I.

Background

For

the purposes of reviewing the sufficiency of the challenged expert report, the

relevant facts as stated in the report are that Amanda suffered from

long-standing pelvic and urinary problems, including endometriosis that first

occurred when she was a teenager, causing pelvic pain. After her third child was born, Amanda began

suffering from urinary incontinence. Her

gynecologist implanted a prosthetic urethral sling, which relieved her stress

incontinence. Unfortunately, the sling

caused multiple urinary‑tract infections that increased urinary frequency

and caused new bladder‑related pelvic pain. Amanda was referred to urogynecologist

Dr. Peter Lotze to determine the cause of her new pain and urinary‑tract

infections. Surgery resolved her pelvic

pain related to endometriosis. But she

still suffered from recurring urinary‑tract infections and bladder pain. Dr. Lotze recommended to Amanda

implanting a spinal neurostimulator, the Medtronic InterStim, to treat her

bladder‑related pain. Although a

unilateral device was initially discussed with Amanda, Dr. Lotze implanted

bilateral Medtronic InterStim neurostimulator devices.

Afterwards, Dr. Lotze

conducted at least seven adjustments to the left InterStim device for various

reasons: it was not working; it shocked Amanda; it needed repositioning; and it

needed generator replacement. The

urethral sling was eventually removed, which resolved Amanda’s recurring

urinary‑tract infections and bladder and pelvic pain. Later, the left InterStim device was removed because

it was not working and was no longer necessary.

Amanda developed severe and constant back pain on her left side

radiating from her spine, causing “foot drop” and sensory‑deficit

numbness in her left lower extremity.

The Howtons

filed suit against Dr. Lotze, Medtronic, Inc., and Stuart Ison, a

Medtronic representative, for fraud, negligence, and the unauthorized practice

of medicine. The day after the Howtons

filed the original petition, they filed the original expert report and

curriculum vitae from Dr. J. Antonio Aldrete. In the expert report submitted in support of

the Howtons’ claims, Dr. Aldrete opined that when the bilateral Medtronic

InterStim neurostimulator devices were implanted, “Dr. Lotze did not make

the association between the urethral sling and these recurrent infections at

this time, but instead focused on ‘interstitial cystitis’ or some other form of

noninfectious bladder hyperactivity.” Dr. Aldrete

stated that his review indicated that the devices “seem to have been placed to

manage her recurrent bladder pain (which ultimately was found to be due to her

recurrent urinary tract infections from the sling).” According to Dr. Aldrete, Dr. Lotze

failed to discuss with Amanda the possible side effect of nerve damage as a

risk of implanting the devices. Dr. Aldrete

also stated that bilateral InterStim placement was not approved by the Food and

Drug Administration at the time of the surgery.

He attributes Amanda’s back pain to damage to the sacral nerve roots,

which prevents her from walking significant distances, climbing stairs,

driving, and sitting for extended periods of time. Dr. Aldrete concluded that Amanda

developed chronic inflammation in the spinal cord and arachnoiditis due to

“repeated instrumentation and manipulation of the InterStim devices” around her

nerve roots.

Dr. Lotze

filed an objection to the expert report, challenging Dr. Aldrete’s

qualifications to render an expert report regarding urology, gynecology,

treatment of urine frequency problems, or treatment with the InterStim

device. Dr. Lotze’s objection also

disagreed with the suggestion that it was improper to continue using the left

InterStim device. Attached to Dr. Lotze’s

objection were exhibits, including portions of Amanda’s medical records. Dr. Aldrete supplied a supplemental

report responding to the objection. This

was followed by another objection from Dr. Lotze, which disagreed with Dr. Aldrete’s

report, in part based on the underlying medical records. Dr. Aldrete prepared yet another supplemental

report in response, and Dr. Lotze again objected.

Ultimately

Dr. Lotze filed a motion to dismiss the claims against him, contending Dr.

Aldrete’s expert report was based on factual mistakes in examining Amanda’s

medical records. The motion to dismiss was

accompanied by 36 exhibits, which for the most part are Amanda’s medical

records. The Howtons responded and

objected that the motion was “an attempt to cross‑examine Plaintiffs’

expert witness, rather than to properly challenge a preliminary witness

report.” Dr. Lotze filed a reply in

which he reinterated his factual disagreement with the expert report by stating,

“Plaintiffs ignore the fact that Dr. Lotze’s argument is that Dr. Aldrete did

not understand the records he already had reviewed.”

The

trial court denied the motion to dismiss, and this interlocutory appeal ensued.

II.

Analysis

In two issues, Dr. Lotze argues

that the trial court erred in denying his motion to dismiss the Howtons’ health‑care‑liability

claims. First, he contends that the expert

report failed to establish that as an anesthesiologist, Dr. Aldrete “is

familiar with the standards of a urogynecologist in the diagnosis or treatment

of complex urological conditions or is qualified to render such opinions.” Dr. Lotze also complains that the expert

report is contradicted by Amanda’s medical records.

a. Standard of review

Ordinarily, we review a trial court’s

decision on a section 74.351 motion to dismiss for abuse of discretion. Am.

Transitional Care Ctrs., Inc. v. Palacios , 46 S.W.3d 873, 878 (Tex. 2001); Stroud v. Grubb , 328 S.W.3d 561, 563 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied).

The trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles. Walker

v. Gutierrez , 111 S.W.3d 56, 62 (Tex. 2003); Stroud , 328 S.W.3d at 563 . When

reviewing matters committed to the trial court’s discretion, we may not

substitute our own judgment for that of the trial court. Bowie

Mem’l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion

merely because it decides a discretionary matter differently than an appellate

court would in a similar circumstance. Gray v. CHCA Bayshore L.P. , 189 S.W.3d

855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Harris Cnty. Hosp. Dist. v. Garrett , 232 S.W.3d 170, 176 (Tex. App.—Houston

[1st Dist.] 2007, no pet.).

b. Expert qualifications

With regard to the required qualifications

of an expert witness on causation in a health‑care‑liability claim

against a physician, the witness must be a physician and must be “otherwise

qualified to render opinions on [causation] under the Texas Rules of

Evidence.” Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a) (West Supp.

2010). On the issue of whether a

physician departed from accepted standards of medical care, a person may qualify

as an expert witness 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.

Id . § 74.401(a). If a witness is to be 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 . . . is board

certified . . . and . . . is actively practicing medicine in rendering medical

care services relevant to the claim. Id . § 74.401(c).

Dr. Lotze

argues that because Dr. Aldrete is an anesthesiologist, he has not satisfied the

requirement that he have knowledge of the accepted standards of care applicable

to urogynecologists. In this argument, however,

Lotze focuses on Amanda’s underlying urological problems, i.e., urinary‑tract

infections, rather than the main allegation that Amanda suffered nerve damage

as a result of the negligent insertion of the InterStim devices and their

subsequent manipulation.

The expert

report sets out Dr. Aldrete’s basis for knowledge of the accepted standard of

care for the selection and implantation of the neurostimulator devices at issue

in this case:

The

implantation of a neurostimulator device and the proper selection of patients

for such implantation are performed within the medical community in commonality by anesthesiologists,

“urogynecologists” (an unrecognized speciality), orthopedic surgeons, neurosurgeons,

and other physicians who allegedly have specialized training in such

implantations. The selection and

implementation of neurostimulators such as the Medtronic InterStim may involve

an anesthesiologist and/or a pain management specialist within anesthesiology

such as myself, but it oftentimes does not (it is performed by other medical

specialties if the individual physician

has proper training ), and thus the selection and implementation of

neurostimulator[] devices within the medical community has an accepted standard

of care in commonality amongst the

physicians who perform such procedures.

I have intimate and personal knowledge and experience with these

standards as I was performing spinal instrumentation, supervising the proper

selection of patient candidates for such procedures, supervising and preventing

perioperative complications, and participating as an attending physician in

spinal instrumentation at the time of the incidents at hand and beyond.

In his

supplemental expert report, Dr. Aldrete clarified his opinion that the permanent nerve damage

suffered by Amanda was the result of “repeated instrumentation and manipulation

of the InterStim devices around the nerve roots.”

An expert

witness need not be a specialist in the particular branch of the medical

profession for which the testimony is offered.

Keo v. Vu , 76 S.W.3d 725, 732

(Tex. App.—Houston [1st Dist.] 2002, pet. denied). The fact that Dr. Aldrete does not practice urogynecology

does not disqualify him from offering expert testimony regarding the alleged

negligent insertion of the InterStim devices and their subsequent

manipulation. Accordingly,

we hold that the trial court acted within its discretion by accepting Dr. Aldrete as a qualified expert on

the issue of the standard of care.

c. Sufficiency of expert report

A medical malpractice lawsuit such as the Howtons’ must be supported at the

early stages of litigation by an expert report served in accordance with the

Texas Medical Liability Act. Because “traditional rules of

litigation are creating an ongoing crisis in the cost and availability of

medical care,” the Legislature has provided that “plaintiffs must support

health care claims with expert reports shortly after filing.” In re

McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 461 (Tex. 2008); see Act of June 2, 2003, 78th Leg.,

R.S., ch. 204, § 10.11(b), 2003

Tex. Gen. Laws 847 , 884 . This requirement ensures “that only

meritorious lawsuits proceed by verifying, at the outset, that the plaintiff’s

allegations are medically well-founded.” Spectrum

Healthcare Res., Inc. v. McDaniel , 306 S.W.3d 249, 250 (Tex. 2010) (citing Tex. Civ. Prac. & Rem. Code §

74.351(a); Palacios , 46 S.W.3d at 876–77). The role of the trial court in this regard

has been described as a “gatekeeping” function akin to the admission of expert

opinion testimony. Mettauer v. Noble , 326 S.W.3d 685, 691 (Tex. App.—Houston [1st

Dist.] 2010, no pet.); see also Daubert

v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589 , 113 S. Ct. 2786, 2795

(1993) (“under the [Federal] Rules [of Evidence] the trial judge must ensure

that any and all scientific testimony or evidence admitted is not only

relevant, but reliable”).

A plaintiff

bringing a health‑care‑liability claim must provide each defendant physician

or health care provider with an expert report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The substance of the required expert

report must 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.” Id. § 74.351(r)(6).

The

preliminary expert report fails to serve its purpose “only if it appears to the

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

faith effort to comply with the definition of an expert report in

Subsection (r)(6).” Id . § 74.351( l ). As

elaborated by the Texas Supreme Court in American Transitional Care

Centers., Inc. v. Palacios , in order to constitute a “good faith effort to

comply,” the expert report must provide enough information to fulfill two

purposes: “First, the report must inform the defendant of the specific conduct

the plaintiff has called into question.

Second, and equally important, the report must provide a basis for the

trial court to conclude that the claims have merit.” 46 S.W.3d 873 , 879 (Tex. 2001). The only information relevant to this inquiry

is that found within the four corners of the report. Id .

at 878. The report need not marshal all

of the plaintiff’s proof, but it must include the expert’s opinion on each of

the elements identified in the statute. Id.

Dr. Lotze

argues that because Dr. Aldrete’s report is “counterfactual” and “fact free,”

the trial court should have, in determining the sufficiency of Dr. Aldrete’s

expert report, considered the medical records Dr. Aldrete reviewed. Dr. Lotze asks this Court to hold that “[w]hen

checking the specific medical facts cited by the expert . . . [a trial court

should be allowed to] look in the medical records cited by the expert” rather

than restrict its review to the four corners of the expert report and

curriculum vitae in determining the sufficiency of the expert report. This legal contention was recently considered

and rejected by this Court. See Mettauer , 326 S.W.3d at 691 . As applied in this case, the trial court’s

review was restricted to determsining whether Dr. Aldrete’s expert report

“represent[ed] a good-faith effort to comply with the definition of an expert

report,” that is, whether it informed Dr. Lotze of the specific conduct called

into question, provided a basis for the trial court to conclude that the Howtons’

claims have merit, and explained the basis of Dr. Aldrete’s statements to link

his conclusions to the facts. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(b), ( l ); Bowie , 79 S.W.3d at

52 ; Palacios , 46 S.W.3d at 878 . The report served both of those required

functions. Accordingly, we hold that the

trial court did not err in declining to review Dr. Aldrete’s source

material in its review of the expert report.

Conclusion

The trial

court did not abuse its discretion by accepting Dr. Aldrete as a qualified expert on the issue

of the standard of care or by concluding that his report was sufficient to

permit the Howtons’ health-care-liability claims to proceed. We therefore overrule Dr. Lotze’s two

issues and affirm the trial

court’s order.

Michael

Massengale

Justice

Panel consists of Chief Justice Radack and

Justices Massengale and Cox. *

*

The

Honorable Lonnie Cox, judge of the 56th District Court of Galveston County,

Texas, participating by assignment. See

Tex. Gov’t Code Ann.

§ 74.003(h) (West 2005).