concluding that report directed solely to urologist’s care implicated defendant urologist although it did not mention him by name
How later courts described this case
- concluding that report directed solely to urologist’s care implicated defendant urologist although it did not mention him by name
- “If no report is served I would, therefore, grant the motion for rehearing. within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions.”
- current version at TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2004)
- noting that “one purpose of the expert- such, was not a fair summary of the evidence because it report requirement is to deter frivolous claims”
Written by the judges who cited it.
The opinion
ACCEPTED
03-14-00717-CV
3677007
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/7/2015 10:35:57 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00717-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 1/7/2015 10:35:57 AM
JEFFREY D. KYLE
Clerk
VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC
Appellants
v.
NANCY JO RODRIGUEZ
Appellee
ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
BRIEF FOR APPELLANTS
Chris Knudsen
Texas Bar No. 24041268
SERPE JONES ANDREWS
CALLENDER & BELL, PLLC
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
Email: cknudsen@serpejones.com
Counsel for Appellants Vivek Goswami,
M.D. and Austin Heart, PLLC
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,
Appellants provide the following complete list of all parties and counsel to the trial
court’s Order that forms the basis of this appeal.
Trial and Appellate Counsel for Appellants Vivek Goswami, M.D. and
Austin Heart, PLLC:
Chris Knudsen
Texas Bar No. 24041268
Nicole Andrews
Texas Bar No. 00792335
SERPE JONES ANDREWS
CALLENDER & BELL, PLLC
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
Emails: cknudsen@serpejones.com
nandrews@serpejones.com
Trial Counsel for Appellee Nancy Jo Rodriguez:
L. Todd Kelly
Texas Bar No. 24035049
The Carlson Law Firm
11606 N. IH-35
Austin, Texas 78753
Telephone: (512) 346-5688
Facsimile: (512) 719-4362
Email: TKelly@carlsonattorneys.com
ii
Trial Counsel for Defendants The Walgreen’s Co. and Sarah Elizabeth
McGuire (not parties to this appeal):
Cynthia Day Grimes
State Bar No. 11436600
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215-1157
Telephone: (210) 250-6000
Facsimile: (210) 250-6100
Email: Cynthia.Grimes@strasburger.com
Trial Counsel for Defendant St. David’s Health Care Partnership (not a
party to this appeal):
Missy Atwood
State Bar No. 01428020
GERMER BEAMAN & BROWN PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
Telephone: (512) 472-0288
Facsimile: (512) 472-0721
Email: matwood@germer-austin.com
iii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ..........................................................................................iv
TABLE OF AUTHORITIES ....................................................................................vi
STATEMENT OF THE CASE .................................................................................. 2
ISSUES PRESENTED............................................................................................... 2
STATEMENT OF FACTS ........................................................................................ 3
SUMMARY OF THE ARGUMENT ........................................................................ 6
ARGUMENT & AUTHORITY ................................................................................ 7
I. STANDARD OF REVIEW .......................................................................... 7
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
FINDING DR. BREALL’S REPORT SATISFIED THE
REQUIREMENTS OF CHAPTER 74 AND DENYING
APPELLANTS’ MOTION TO DISMISS. ....................................................... 8
A. Legislative Intent Of Chapter 74................................................. 8
B. Chapter 74’s Expert Report Requirements ................................. 9
C. Dr. Breall’s Report Does Not Constitute A
Good Faith Effort to Comply With Section 74.351 .................. 11
1. Dr. Breall’s report provides no facts to
support his conclusions and thus does not
constitute an expert report under Chapter 74 ................. 12
2. Dr. Breall fails to identify the standard of
care applicable to Appellants .......................................... 16
iv
3. Dr. Breall fails to explain how Dr. Goswami
and Austin Heart breached the applicable
standard of care ............................................................... 19
4. Dr. Breall’s report fails to explain how
an alleged breach in the standard of care
by Dr. Goswami or Austin Heart caused
Appellee’s injuries .......................................................... 22
D. By Serving A Report Like Dr. Breall’s, Appellee
Effectively Negates The Purpose Of Chapter 74’s
Expert Report Requirement ...................................................... 26
CONCLUSION & PRAYER ................................................................................... 26
CERTIFICATE OF COMPLIANCE ....................................................................... 28
CERTIFICATE OF SERVICE ................................................................................ 29
APPENDIX
Trial Court Orders........................................................................................... A
Cases ............................................................................................................... B
v
TABLE OF AUTHORITIES
Cases:
American Transitional Care Centers of Texas, Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001) ........................................................................... passim
Austin Heart, P.A. v. Webb,
228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ............................................10
Bogar v. Esparza,
257 S.W.3d 354 (Tex. App.—Austin 2008, no pet.) ..............................................8
Bowie Memorial Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002) ........................................................................ 10, 13, 17
CHCA Mainland, L.P. v. Burkhalter,
227 S.W.3d 221 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ........................18
Earle v. Ratliff,
998 S.W.2d 882 (Tex. 1999) .................................................................................10
Fung v. Fischer,
365 S.W.3d 507(Tex. App.—Austin 2012, no pet.), ............................................24
Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........................10
Harris County Hospital District. v. Garrett,
232 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ....................7, 16
Hebert v. Hopkins,
395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) .................................... passim
Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010) ......................................................................... passim
Jernigan v. Langley,
195 S.W.3d 91 (Tex. 2006) .....................................................................................9
Kocurek v. Colby,
No. 03-13-00057-CV, 2014 WL 4179454 –5
(Tex. App.—Austin Aug. 22, 2014, no pet.) ........................................................23
vi
Kuykendall v. Dragun,
No. 11-05-00230-CV, 2006 WL 728068
(Tex. App.—Eastland Mar. 23, 2006, pet. denied) ...............................................14
Regent Care Center of San Antonio II, Limited Partnership v. Hargrave,
300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................25
Shenoy v. Jean,
No. 01-10-01116-CV, 2011 WL 6938538
(Tex. App.—Houston [1st Dist.] Dec. 29, 2011, ..................................................13
Smith v. Wilson,
368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) .................................... passim
Strom v. Memorial Hermann Hospital System,
110 S.W.3d 216 .............................................................................................. 16, 18
Taylor v. Christus Spohn Health System Corp.,
169 S.W.3d 241 (Tex. App.—Corpus Christi 2004, no pet.) ........................ 18, 19
Taylor v. Fossett,
320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...................................... 13, 21
Tenet Hospitals Ltd. v. De La Riva,
351 S.W.3d 398 (Tex. App.—El Paso 2011, no pet.) ...........................................18
W.B.M. Management Co. v. Flores,
No. 07-14-00008-CV, 2014 WL 1691362 –6
(Tex. App.—Amarillo Apr. 25, 2014, no pet.) .............................................. 13, 21
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ...................................................................................7
Wood v. Tice,
988 S.W.2d 829 (Tex. App.—San Antonio 1999, pet. denied) ..............................8
Statutes:
TEX. CIV. PRAC. & REM. CODE § 74.351.......................................................... passim
TEX. CIV. PRAC. & REM. CODE § 74.351(a) .........................................................9, 19
vii
TEX. CIV. PRAC. & REM. CODE § 74.351(b) ...................................................... 1, 7, 9
TEX. CIV. PRAC. & REM. CODE § 74.351(l) ................................................................9
TEX. CIV. PRAC. & REM. CODE § 74.351(r)................................................................9
TEX. REV. CIV. STAT. ANN. art. 4590i ..................................................................8, 26
viii
NO. 03-14-00717-CV
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS
VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC
Appellants
v.
NANCY JO RODRIGUEZ
Appellee
ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
BRIEF FOR APPELLANTS
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant Vivek Goswami, M.D. and Austin Heart, PLLC (“Appellants”)
file this appeal from an order denying their motion to dismiss pursuant to section
74.351(b) of the Texas Civil Practices and Remedies Code in Cause No. D-1-GN-
14-000903; Nancy Jo Rodriguez v. The Walgreen Co., et al., in the 419th Judicial
District Court of Travis County, Texas, before the Honorable Visiting Judge Gus J.
Strauss.
STATEMENT OF THE CASE
Appellee Nancy Jo Rodriguez (“Appellee”) filed a health care liability claim
against several defendants, including Appellants, based on Appellee’s taking of a
medication known as Pradaxa. (CR 4–12). With her petition, Appellee served a
report authored by Jeffrey A. Breall, M.D., Ph.D. (“Dr. Breall”). (CR 43–44).
Appellants objected to Dr. Breall’s report shortly thereafter. (CR 119–52). Over
the next three months, Appellee did not serve any new or amended reports. After
the expiration of the statutory deadline to serve expert reports under Chapter 74,
Appellants moved to dismiss Appellee’s claim. (CR 189–95). However, the trial
court entered an order finding that Dr. Breall’s report was adequate and denying
Appellants’ motion to dismiss. (CR 344–45, 365–66). Appellants subsequently
filed this interlocutory appeal from that order. (CR 346–50).
ISSUES PRESENTED
1. Whether the trial court abused its discretion when holding Dr. Breall’s
report was adequate under Chapter 74 despite Dr. Breall only offering conclusory
opinions that did not link the facts to his conclusions.
2. Whether the trial court abused its discretion in denying Appellants’
motion to dismiss pursuant to section 74.351 of the Texas Civil Practices and
Remedies Code.
2
STATEMENT OF FACTS
In 2012, Appellee was a patient of Austin Heart, PLLC (“Austin Heart”)
where she received treatment for an abnormal sinus rhythm in her heart. (CR 6).
As a patient of Austin Heart, Appellee was treated by David Kessler, M.D. (“Dr.
Kessler”) and Vivek Goswami, M.D. (“Dr. Goswami”), both of whom are
cardiologists. (Id.). In her petition, Appellee states that, on March 27, 2012, Dr.
Kessler “orders that [Appellee] stop her use of the drug Pradaxa because she is
maintaining her sinus rhythm without it.” (Id.). However, Appellee alleges “this
order to stop the medication was not followed by Dr. Goswami.” (Id.). Appellee
nonetheless admits she continued to refill her prescription for Pradaxa despite Dr.
Kessler’s order to stop. (Id.). Appellee claims her continued use of Pradaxa caused
her hospitalization on July 2, 2012. (Id.).
On March 26, 2014, Appellee filed suit against The Walgreen Company,
Sara E. McGuire, St. David’s Health Care Partnership, Austin Heart, Dr. Kessler,
and Dr. Goswami (collectively “Defendants”). (CR 4–5). With her petition,
Appellee served Defendants with a curriculum vitae and report from Jeffrey Chad
Hardy, Pharm.D., M.S. dated February 21, 2014 (“Hardy’s report”) and a
curriculum vitae and report from Jeffrey A. Breall, M.D., Ph.D. dated March 18,
2014 (“Dr. Breall’s report”). (CR 13–44). There is no dispute that Hardy’s report
3
does not apply to Appellants. Rather, only Dr. Breall’s report references
Appellants.
As addressed more fully below, Dr. Breall’s report fails to provide any facts
surrounding the care and treatment provided by Dr. Goswami or Austin Heart. (CR
43–44). In fact, Dr. Breall’s report fails to even identify which medical records he
reviewed to support the opinions in his report. (Id.). If Dr. Breall provided the facts
from the relevant records, Dr. Breall’s report would have informed the trial court
that, prior to Dr. Kessler’s order to stop taking Pradaxa on March 27, 2012,
Appellee already had a prescription for Pradaxa allowing for five refills. (CR 330–
31). Specifically, Appellee was prescribed Pradaxa on February 10, 2012, and she
filled the prescription on February 14, 2012. (CR 330). On March 16, 2012,
Walgreen’s requested five refills of Pradaxa. (CR 331). On March 27, 2012, Dr.
Kessler ordered Appellee to stop taking the Pradaxa. (CR 6). Yet, on May 4, 2012,
Appellee refilled her prescription using the authority provided to Walgreen’s on
March 16, 2012. (CR 332).1 On June 16, 2012, Appellee again refilled her
prescription using the authority provided to Walgreen’s on March 16, 2012. (CR
333).
A review of these records would have also informed the trial court that
Appellee used this prescription that pre-dated Dr. Kessler’s order to obtain refills
1
This Audit / Board of Pharmacy Inspection Report shows the “Original Date” for the
prescription was 3/16/2012 16:04. (Id.).
4
after Dr. Kessler’s March 27, 2012 order without any communication with Dr.
Goswami or Austin Heart. (CR 332–33). Rather than provide these facts from the
records, Dr. Breall chose not to provide any facts.
On May 12, 2014, Appellants objected to Dr. Breall’s report. (CR 119–27).
In their objections, Appellants specified that Dr. Breall failed to identify the
standard of care applicable to each Appellant, failed to identify the alleged acts or
omissions by each Appellant that amounted to a breach in the standard of care, and
failed to explain the causal relationship between each alleged breach and the
injuries alleged. (Id.). Despite having knowledge of these objections since May 12,
2014, Appellee failed to amend or supplement Dr. Breall’s report over the next
three months.
After the deadline for serving expert reports expired on August 19, 2014,
Appellants filed their motion to dismiss. (CR 189–99).2 On October 20, 2014,
Appellee filed her response to Appellants’ motion to dismiss arguing that Dr.
Breall’s report was sufficient and even moved for sanctions. (CR 297–306). On
October 29, 2014, the trial court held a hearing on Appellants’ motion to dismiss.
(RR 1–48).
2
Since Dr. Breall’s report offered no criticisms of Dr. Kessler, Dr. Kessler also filed a motion to
dismiss. (CR 171–80). Rather than face a hearing on Dr. Kessler’s motion to dismiss and motion
for attorneys’ fees, Appellee non-suited Dr. Kessler. (CR 200–02).
5
On October 30, 2014, the Honorable Visiting Judge Gus J. Strauss issued a
letter opinion finding “that the report of Dr. Breall pertaining to Dr. Goswami and
Austin Heart is adequate under [Chapter] 74 and the plaintiff’s claims will proceed.
No sanctions [or] attorney’s fees will be ordered.” (Appx. A; CR 344–45). In this
same order, the trial court granted Walgreen’s and Sarah E. McGuire’s motion to
dismiss. (Id.). On December 4, 2014, the trial court signed a more formal order
denying Appellants’ motion to dismiss under section 74.351 of the Texas Civil
Practices and Remedies Code. (Appx. A; CR 365–66). On November 17, 2014,
Appellants timed filed their notice of appeal and this interlocutory appeal ensued.
(CR 346–52).
SUMMARY OF THE ARGUMENT
The trial court abused its discretion in holding that Dr. Breall’s report was
adequate under Chapter 74 and in denying Appellants’ motion to dismiss under
Chapter 74. In his report, Dr. Breall fails to provide any of the facts surrounding
Appellee’s care and treatment in this case, and Dr. Breall makes no attempt to link
the facts to his conclusions on the elements of a Chapter 74 expert report. The
Texas Supreme Court holds that, when a report lacks any explanation linking the
expert’s conclusion to the relevant facts, a trial court abuses its discretion if it
denies the defendant’s motion to dismiss. Additionally, Dr. Breall failed to identify
the standard of care applicable to each Appellant, failed to explain how each
6
Appellant breached the standard of care, and failed to explain the causal link
between each Appellant’s alleged breach and the injuries alleged. Accordingly, Dr.
Breall’s report did not constitute a good faith effort to comply with the
requirements of section 74.351, and the trial court erred in denying Appellants’
motion to dismiss.
ARGUMENT & AUTHORITY
I. STANDARD OF REVIEW
A trial court’s ruling on a motion to dismiss for failure to comply with
section 74.351(b) of the Texas Civil Practice and Remedies Code is subject to
review for abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001). However, if an expert report contains
only conclusions about the statutory elements in section 74.351, the trial court has
“no discretion but to conclude ... that the report does not represent a good-faith
effort” to satisfy the statute. Smith v. Wilson, 368 S.W.3d 574, 577 (Tex. App.—
Austin 2012, no pet.) (citing Palacios, 46 S.W.3d at 877, 880). Also, an incorrect
construction of the law or a misapplication of the law to undisputed facts is an
abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992);
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston
[1st Dist.] 2007, no pet.).
7
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN FINDING DR.
BREALL’S REPORT SATISFIED THE REQUIREMENTS OF CHAPTER 74 AND
DENYING APPELLANTS’ MOTION TO DISMISS.
A. Legislative Intent Of Chapter 74.
The Legislature enacted Article 4590i (now codified in Chapter 74),
including its expert reporting requirement, for the purpose of deterring frivolous
lawsuits against health care providers. TEX. REV. CIV. STAT. ANN. art. 4590i;
Palacios, 46 S.W.3d at 879 (citing Wood v. Tice, 988 S.W.2d 829, 830 (Tex.
App.—San Antonio 1999, pet. denied)). “The Legislature has determined that
failing to timely file an expert report, or filing a report that does not evidence a
good-faith effort to comply with the definition of an expert report, means that the
claim is either frivolous, or at best has been brought prematurely. This is exactly
the type of conduct for which sanctions are appropriate.” Bogar v. Esparza, 257
S.W.3d 354, 371 (Tex. App.—Austin 2008, no pet.).
As evidenced by this case, the purpose of deterring frivolous lawsuits is
effectively negated when a claimant serves an expert report that conceals the facts
surrounding the care in question and only provides vague conclusions on certain
elements of a Chapter 74 expert report. Appellee should not be entitled to pursue a
frivolous (or at best premature) claim by serving such a report.
8
B. Chapter 74’s Expert Report Requirements.
Chapter 74 requires that, when a plaintiff asserts a health care liability claim,
she must serve each defendant physician and health care provider with an expert
report along with the expert’s curriculum vitae within 120 days of filing suit. See
TEX. CIV. PRAC. & REM. CODE § 74.351(a)-(c). Chapter 74 further provides that a
failure to serve a report within 120 days mandates that the trial court dismiss the
case and award attorneys’ fees and costs. Id at § 74.351(b).
In order to comply with Chapter 74, an expert report must represent an
objective good faith effort to comply with the definition of an expert report under
Chapter 74. TEX. CIV. PRAC. REM. CODE § 74.351(l). The good faith effort standard
requires the report to provide an adequate analysis for each of the following
elements of a health care liability claim: (1) the applicable standard of care; (2) the
manner in which the care rendered by the physician or health care provider failed
to meet the standard; and (3) the causal relationship between that failure and the
injury, harm or damages claimed. Id. at § 74.351(r)(6); Palacios, 46 S.W.3d at 879.
The Texas Supreme Court holds that a report will not constitute a good faith effort
if it omits any of these statutory requirements. Jernigan v. Langley, 195 S.W.3d 91,
94 (Tex. 2006). Further, in order to constitute a good faith effort, the report must,
at a minimum: (1) inform the defendant of the specific conduct called into
9
question; and (2) provide a basis for the trial court to conclude the claims have
merit. Palacios, 46 S.W.3d at 879.
The Texas Supreme Court also holds that, while a report need not marshal
all of the plaintiff’s proof, it must include the expert’s opinion on each of the
elements identified in section 74.351. Palacios, 46 S.W.3d at 878. A report cannot
merely state the expert’s conclusions about the statutory elements. Id. at 879.
“Rather, the expert must explain the basis of his statements to link his conclusions
to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). It is not enough that the expert
report provides “insight” about the plaintiff’s claims. Id. “A report that merely
states the expert’s conclusions about the standard or care, breach, and causation
does not fulfill the two purposes of a good-faith effort.” Hebert v. Hopkins, 395
S.W.3d 884, 890 (Tex. App.—Austin 2013, no pet.) (quoting Jelinek, 328 S.W.3d
at 539).
Importantly, the only information relevant to determining whether a report
complies with the statute is “within the four corners of the document.” Palacios, 46
S.W.3d at 878. “This requirement precludes a court from filling gaps in a report by
drawing inferences or guessing as to what the expert likely meant or intended.”
Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no
pet.) (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189
10
S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court
recognized, “neither the trial court nor this Court may infer additional opinions or
underlying facts to fill in gaps that the report itself leaves open.” Hebert, 395
S.W.3d at 890.
C. Dr. Breall’s Report Does Not Constitute A Good Faith Effort to
Comply With Section 74.351.
For ease of reference, Appellants provide below the paragraphs from Dr.
Breall’s report containing his opinions in this case. These paragraphs are the only
ones from Dr. Breall’s report addressing Appellants:
In my opinion the care and treatment provided to Nancy Jo Rodriguez
by Austin Heart fell below the accepted standards of care in the
following particulars:
Despite Dr. David Kessler, one of her cardiologists from Austin
Heart, requesting that the Pradaxa be discontinued (in this patient
who, at best, has bipolar disorder and at times was confused, this was
a reasonable request), Pradaxa therapy nevertheless was continued
after her acute hospitalization. This request to stop the medication was
not appreciated by her primary cardiologist, Dr. Vivek Goswami (who
was in the same group as Dr. Kessler). Furthermore, Ms. Rodriguez
appeared to be obtaining refills for this medication authorized by
nurses and staff of this same heart group who recommended
discontinuing this medication (Austin Heart). The standard of care
would have been to follow the orders of Dr. Kessler to stop the
administration of Pradaxa.
Failure to discontinue the use of Pradaxa was a direct cause of her
subsequent acute admission to the hospital with hypotension, acute
kidney injury and apparent gastrointestinal bleeding – known side
effects of the over-use of Pradaxa. Ms. Rodriquez’s entire
hospitalization was attributable to the failure to stop Pradaxa therapy
as ordered by Dr. Kessler. More likely than not, had the Pradaxa
11
medication been discontinued as requested, Ms. Rodriguez’s
hospitalization would never have needed to take place.
I hold these opinions to a reasonable degree of medical certainty.
They are based upon my education, training and experience as well as
the records which I have reviewed.
(CR 43–44). As explained herein, the report fails to satisfy any of the elements of a
Chapter 74 expert report as to Dr. Goswami or Austin Heart and does not
constitute an expert report under Chapter 74.
1. Dr. Breall’s report provides no facts to support his
conclusions and thus does not constitute an expert report
under Chapter 74.
Before addressing Dr. Breall’s specific failures to satisfy the statutory
elements of a Chapter 74 expert report, it is important to note that Dr. Breall’s
report provides absolutely no factual background regarding the care and treatment
in question. (CR 43–44). In fact, Dr. Breall’s report fails to even identify which
records he reviewed to support the opinions in his report. (Id.). It is well
established that an expert must link his conclusions to the facts in order satisfy
Chapter 74’s expert report requirement. Most recently, the Texas Supreme Court
held in Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010), when the report in question
lacked any explanation linking the expert’s conclusion to the relevant facts, the
trial court abused its discretion in denying the defendant’s motion to dismiss and
the court of appeals erred by affirming that ruling. Id. at 540 (citing Bowie Mem’l,
79 S.W.3d at 52).
12
Several Texas appellate courts have reached the same conclusion. The
appellate courts recognize that an expert’s failure to provide any facts to support
his or her conclusions on standard of care, breach, and causation prevents the trial
court from concluding the plaintiff’s claims have merit. See Taylor v. Fossett, 320
S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding trial court abused its
discretion in denying physician’s motion to dismiss since expert report provided
only conclusory opinions without supporting facts); W.B.M. Mgmt. Co. v. Flores,
No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—Amarillo Apr. 25,
2014, no pet.) (holding that expert report was not a good faith effort to provide a
fair summary of his opinions and warranted dismissal since expert failed to provide
facts to support his conclusion); Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL
6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (holding
that “an expert report that merely asserts that a defendant physician’s breach
caused the plaintiff’s injury without providing a factual basis does not provide the
trial court with the information necessary to evaluate the merits of the plaintiff’s
claim.”).
The failure to set forth facts supporting an expert’s opinions on the standard
of care, breach, and causation is not an argument based on “semantics.”
Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—
13
Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining
whether the plaintiff’s claims have merit. Id.
For instance, in Kuykendall v. Dragun, the expert’s report stated that the
plaintiff suffered peripheral nerve damage in a surgery performed by several
physicians and indicated that the literature provided this type of injury was
typically caused by failure to properly pad self-retaining retractors, improperly
positioning the patient, or leaning on the patient. Id. The expert then opined that
these were the most likely causes of the plaintiff’s injuries. However, the report
failed to identify any facts supporting the conclusion. The report did not state the
defendant physician used a self-retaining retractor during the procedure, and the
report did not even identify the types of procedures carried out by the defendant
physician. The court of appeals held that the expert’s failure to link these facts to
his conclusions justified the trial court’s dismissal under Chapter 74. Id. In
reaching this conclusion, the trial court found the need for this specific information
in the report is not mere “semantics.” Id. Rather, this information is “vital” when
assessing whether the defendant breached the standard of care. Id.
Similarly, Dr. Breall leaves out key facts supporting his conclusions. In fact,
Dr. Breall leaves out any facts concerning Appellee’s care and treatment.
Appellee’s malpractice action is based on her continued use of Pradaxa after her
treating cardiologist, Dr. Kessler, ordered her to stop taking this medication (CR
14
6). Yet, Dr. Breall’s report provides absolutely no facts about Dr. Kessler’s order
to stop Pradaxa; the date of the order; to whom the order was communicated;
whether Dr. Goswami or Austin Heart treated, or even had contact with, Appellee
after Dr. Kessler’s order; the prescription used by Appellee after Dr. Kessler’s
order to stop; the circumstances in which Appellee continued to refill her
prescription and continued to use Pradaxa; and many other relevant facts. Rather,
Dr. Breall simply offers conclusory opinions about the standard of care, breach,
and causation.
It is evident Dr. Breall chose not to include relevant facts since they
obviously did not support the opinions in his report. After all, the medical records
reflect there was no interaction between Appellants and Appellee after Dr.
Kessler’s order to stop taking Pradaxa, and Appellee continued to use a
prescription with five remaining refills that pre-dated Dr. Kessler’s order to stop
taking Pradaxa. Dr. Breall’s report is silent on these facts (or any facts for that
matter) because they do not support his conclusions.3 Since Dr. Breall failed to
provide any facts to support his conclusions, his report did not constitute a good
faith effort to comply with section 74.351 of the Texas Civil Practices and
Remedies Code. Given the lack of facts to support Dr. Breall’s conclusion, the trial
3
Appellants include these facts not for purposes of determining the sufficiency of Dr. Breall’s
report but to illustrate why an expert is required to provide factual support so the trial court may
assess whether the plaintiff’s claims have merit.
15
court abused its discretion in finding the report was sufficient. See Smith, 368
S.W.3d at 577.4 As a result, Appellants request that the Court reverse the trial
court’s order.
2. Dr. Breall fails to identify the standard of care applicable to
Appellants.
In addition to Dr. Breall’s general failure to provide any facts supporting his
conclusions, Dr. Breall also failed to make a good faith effort to comply with
section 74.351’s requirements. In his report, Dr. Breall fails to identify the standard
of care applicable to Appellants. The standard of care for a health care provider or
a physician is what an ordinarily prudent health care provider or physician would
do under the same or similar circumstances. See Strom v. Mem’l Hermann Hosp.
Sys., 110 S.W.3d 216, 222 (Tex. App—Houston [1st Dist.] 2003, pet. denied).
Identifying the standard of care is “critical” because “[w]hether a defendant
breached his or her duty to a patient cannot be determined absent specific
information about what the defendant should have done differently.” Palacios, 46
S.W.3d at 880. From Dr. Breall’s report, Appellants cannot determine what,
specifically, they should have done differently in their care and treatment of
Appellee.
4
Also, without the relevant facts, the trial court either misapplied the law regarding the
sufficiency of expert reports or inferred additional underlying facts to fill in gaps that the report
itself left open. This amounts to an abuse of discretion. See Garrett, 232 S.W.3d at 176; Hebert,
395 S.W.3d at 890.
16
As explained above, a good faith report must, at a very minimum: (1) inform
the defendant of the specific conduct called into question; and (2) provide a basis
for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. A
report cannot merely state the expert’s conclusions about the statutory elements. Id.
at 879. “Rather, the expert must explain the basis of his statements to link his
conclusions to the facts.” Bowie Mem’l, 79 S.W.3d at 52. As this Court recognizes,
“[a] report that merely states the expert’s conclusions about the standard or care,
breach, and causation does not fulfill the two purposes of a good-faith effort.”
Hebert, 395 S.W.3d at 890.
In his report, Dr. Breall’s provides only a single, conclusory statement
setting forth his opinion on the standard of care: “The standard of care would have
been to follow the orders of Dr. Kessler to stop the administration of Pradaxa.”
(CR 44). However, Dr. Breall fails to identify the standard of care applicable to
Appellants given the factual circumstances of this case. As provided above, Dr.
Breall fails to set forth any facts indicating that Dr. Kessler’s order was
communicated to anyone except Appellee. (Recall, Appellee admits that Dr.
Kessler “orders that Nancy stop her use of the drug Pradaxa”). (CR 6). In fact, Dr.
Breall’s own report suggests Dr. Kessler did not communicate his order to Dr.
Goswami by stating Dr. Goswami failed to appreciate the order. (CR 44). Dr.
17
Breall’s report fails to explain the standard of care when an order to stop a
medication is not communicated to other physicians and health care providers.
Moreover, since Dr. Breall failed to describe the factual circumstances
surrounding the prescription and administration of Pradaxa, he could not have
identified the applicable standard of care in this case. After all, the standard of care
for a health care provider or physician is what an ordinarily prudent health care
provider or physician “would have done under the same or similar circumstances.”
See Strom, 110 S.W.3d at 222. Since Dr. Breall did not contemplate the
circumstances surrounding this case, he could not have identified the standard of
care applicable to Dr. Goswami or Austin Heart.
Also, Dr. Breall’s report fails to attribute his standard of care opinion to any
particular defendant. “When a plaintiff sues more than one defendant, the expert
report must set forth the standard of care applicable to each defendant and explain
the causal relationship between each defendant’s individual acts and the injury.”
Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.—El Paso 2011,
no pet.); see also CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). An expert report may not assert that
multiple defendants are all negligent for failing to meet the standard of care
without providing an explanation of how each defendant breached the standard of
care and how that breach caused or contributed to the cause of injury. Taylor v.
18
Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus
Christi 2004, no pet.). “Collective assertions of negligence against various
defendants are inadequate.” Id.
In this case, Appellee filed suit against multiple defendants. Dr. Breall’s
report mentions three defendants, Dr. Kessler, Dr. Goswami, and Austin Heart.
However, Dr. Breall made no attempt to explain the standard of care applicable to
each defendant. Rather, Dr. Breall only provides one standard of care opinion and
fails to explain to whom it applies. Dr. Breall’s collective statement is prohibited
by Chapter 74 and Texas case law. See TEX. CIV. PRAC. & REM. CODE § 74.351(a);
Taylor, 169 S.W.3d at 244. Dr. Breall’s report effectively provides no standard of
care opinion with regard to Dr. Goswami or Austin Heart, and therefore, the trial
court abused its discretion in denying Appellants’ motion to dismiss.
3. Dr. Breall fails to explain how Dr. Goswami and Austin
Heart breached the applicable standard of care.
Dr. Breall’s report also fails to explain how Dr. Goswami and Austin Heart
allegedly breached their respective standards of care. Dr. Breall’s only stated
criticism against Dr. Goswami was that the order to stop Pradaxa “was not
appreciated by her primary cardiologist, Dr. Vivek Goswami (who was in the same
group as Dr. Kessler).” (CR 44). However, Dr. Breall does not define this alleged
“failure to appreciate” as a breach of the applicable standard of care. In fact, Dr.
Breall does not identify the standard of care for appreciating another physician’s
19
order. Hence, Dr. Breall effectively provides no opinion that Dr. Breall breached
the standard of care.
Also, Dr. Breall does not explain how Dr. Goswami could have
“appreciated” Dr. Kessler’s order. Once again, Dr. Breall leaves out necessary and
vital facts to support this opinion. At no point does Dr. Breall’s report state that Dr.
Kessler communicated his March 27, 2012 order to Dr. Goswami. Rather,
Appellee admits this order to stop taking Pradaxa was communicated to her. (CR
6). Dr. Breall’s report again fails to link his conclusions to the facts in the case.
Moreover, Dr. Breall fails to explain what Dr. Goswami should have done
differently had he been apprised of the order by another treating cardiologist.
Specifically, Dr. Breall fails to explain what else Dr. Goswami should have done
other than what Appellee admits Dr. Kessler did, which is to tell Appellee to stop
taking the Pradaxa. Dr. Breall’s report certainly does not state that Dr. Goswami
continued to prescribe Pradaxa after Dr. Kessler’s order.
Again, Dr. Breall’s decision not to include supporting facts is not surprising
given that the facts reveal that Appellee continued to refill a Pradaxa prescription
that predated Dr. Kessler’s March 27, 2012 order without any notice to Dr.
Goswami. The report certainly does not explain how the facts establish Dr.
Goswami breached the standard of care. As explained in Section II(C)(1) above,
Dr. Breall’s failure to provide facts to support his opinion mandates dismissal.
20
Jelinek, 328 S.W.3d at 540; Taylor, 320 S.W.3d at 578; Flores, 2014 WL 1691362,
*5–6. Dr. Breall’s report fails to provide any statement that Dr. Goswami breached
the applicable standard of care.
In regard to Austin Heart, Dr. Breall states Appellee “appeared to be
obtaining refills for this medication authorized by nurses and staff of this same
heart group who recommended discontinuing this medication (Austin Heart).” (CR
44). However, this conclusory statement is a careful and calculated attempt to
mischaracterize the facts by excluding vital information. In this statement, Dr.
Breall noticeably fails to indicate the date in which Pradaxa refills were
“authorized by nurses and staff” of Austin Heart. If Austin Heart’s nurses and staff
authorized the refills before Dr. Kessler ordered Appellee to stop taking the
medication, there could not have been a breach. Dr. Breall noticeably omits the
date in which Austin Heart employees allegedly authorized refills of Pradaxa.5
Without this vital information, the trial court could not have determined
whether Appellee’s claims have merit. Rather, in order to conclude the report was
sufficient as to Austin Heart, the trial court needed to draw an inference that Austin
Heart employees authorized refills of Pradaxa after Dr. Kessler’s March 27, 2012
5
Per Appellee’s Original Petition, Dr. Kessler ordered Appellee to stop taking Pradaxa on March
27, 2012. (CR 6). The pharmacy records show that Appellee’s refill request was completed on
March 16, 2012, eleven days before Dr. Kessler’s order. (CR 331). Appellee then used the
prescription and refill requests, which predated Dr. Kessler’s order, to refill her Pradaxa on two
separate occasions. (CR 332–33). Again, Appellants include this information not for purposes of
determining the sufficiency of the report but to illustrate why the underlying facts are important
when analyzing an expert’s opinions.
21
order. Yet, those facts are not provided in Dr. Breall’s report (most likely because
they are not the facts supported by the records or the witnesses in this case), and
the trial court abused its discretion in inferring these facts to find the report was
sufficient.
Also, Dr. Breall’s supposed breach opinion again does not match a
corresponding standard of care opinion. Nowhere in Dr. Breall’s report does he
provide the standard of care for nurses and staff members who receive a request to
authorize prescription refills. (CR 43–44). Therefore, Dr. Breall’s breach statement
is wholly insufficient to satisfy Chapter 74. In sum, Dr. Breall does not provide any
statement showing that Austin Heart’s nurses or staff breached the standard of
care, and the trial court abused its discretion in finding that Dr. Breall’s report was
sufficient as to Austin Heart.
4. Dr. Breall’s report fails to explain how an alleged breach in
the standard of care by Dr. Goswami or Austin Heart
caused Appellee’s injuries.
Dr. Breall’s report completely fails to explain how an alleged breach in the
standard of care by Dr. Goswami or Austin Heart caused Appellee’s injuries. As
the Supreme Court has recognized, “[a]n expert cannot simply opine that the
breach caused the injury. … Instead, the expert must go further and explain, to a
reasonable degree, how and why the breach caused the injury based on the facts
presented.” Jelinek, 328 S.W.3d at 539–40. Without this explanation, the trial court
22
cannot conclude the claims have merit. Id.; see also Smith, 368 S.W.3d at 578
(Austin Court reversing trial court’s denial of motion to dismiss after finding report
failed to provide facts explaining the causal link between alleged breach and the
occurrence or injury); Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454,
*4–5 (Tex. App.—Austin Aug. 22, 2014, no pet.). Here, Dr. Breall’s report fails to
establish a causal link between an alleged breach in the standard of care by
Appellants and Appellee’s alleged injuries.
In regard to Dr. Goswami, Dr. Breall’s report only complains that Dr.
Kessler’s order to stop the medication was not “appreciated” by Dr. Goswami.
However, as explained above, Dr. Breall fails to explain how Dr. Goswami’s lack
of knowledge of Dr. Kessler’s order to stop taking Pradaxa caused Appellee to
continue to take Pradaxa. Dr. Breall’s report does not provide any facts indicating
that Dr. Goswami knew of Dr. Kessler’s order or that, after Dr. Kessler ordered
Appellee to stop taking Pradaxa, Dr. Goswami had any further contact with
Appellee before her alleged injuries. Moreover, one would expect Appellee to
follow the order of her treating cardiologist (Dr. Kessler) without needing a second
cardiologist (Dr. Goswami) to repeat the order. In short, Dr. Breall fails to explain
how any act or omission by Dr. Goswami led Appellee to continue to take Pradaxa.
In regard to Austin Heart, Dr. Breall’s only breach statement was that
Appellee “appeared to be obtaining refills for this medication authorized by nurses
23
and staff of this same heart group who recommended discontinuing this medication
(Austin Heart).” But again, Dr. Breall fails to allege that Austin Heart’s employees
authorized refills of Pradaxa after Dr. Kessler’s order to stop. To make a causal
connection, Dr. Breall would need to establish that Austin Heart employees
authorized Appellee to obtain refills of Pradaxa after Dr. Kessler’s order on March
27, 2012. Without this information, the trial court could not have concluded from
Dr. Breall’s report that an act or omission by Austin Heart employees caused
Appellee to continue to take Pradaxa after March 27, 2012.6
As this Court recently noted in Smith v. Wilson, an expert must explain, with
supporting facts, how each defendant’s alleged breach in the standard of care
caused the injury in question. 368 S.W.3d at 577–78. A conclusory statement on
causation is wholly insufficient. Id. Dr. Breall’s report offers no explanation or
facts explaining the causal link between alleged breaches in the standard of care by
Appellants and Appellee’s continued use of Pradaxa. Hence, Dr. Breall’s report
fails to satisfy the requirements of section 74.351.
Furthermore, Dr. Breall fails to explain how Appellee’s ingestion of Pradaxa
between March 27, 2012 and her hospitalization in July of 2012 caused the injuries
6
Further, Dr. Breall cannot satisfy the causation element by offering mere possibilities. See Fung
v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012, no pet.), overruled on other grounds,
Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013). “Reports providing a ‘description of
only a possibility of causation do[ ] not constitute a good-faith effort to comply with the
statute.’” Id. Dr. Breall states Appellee “appeared to be obtaining refills for [Pradaxa] authorized
by” Austin Heart employees. (CR 44) (emphasis added). This language indicates Dr. Breall is
simply guessing that Austin Heart employees authorized refills for Appellee.
24
alleged in his report -- hypertension, acute kidney injury, and apparent
gastrointestinal bleeding. Rather, Dr. Breall simply states, without any explanation,
“[f]ailure to discontinue the use of Pradaxa was a direct cause of her subsequent
admission to the hospital with hypotension, acute kidney injury and apparent
gastrointestinal bleeding.” (CR 44). Dr. Breall provides no explanation or factual
support for this conclusion as to how Appellee’s ingestion of Pradaxa over a two
month period caused these physical injuries. Conclusory statements on causation
will not satisfy Chapter 74’s expert report requirements. See Palacios, 46 S.W.3d
at 875; Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave, 300 S.W.3d
343, 346 (Tex. App.—San Antonio 2009, pet. denied).
Since Dr. Breall only offered conclusions about the statutory elements of an
expert report, the trial court had “no discretion but to conclude ... that the report
does not represent a good-faith effort” to satisfy the statute. Smith, 368 S.W.3d at
577. Nonetheless, the trial court in this case found that Dr. Breall’s report was
“adequate under Chapter 74” and denied Appellants’ objections and motion to
dismiss. (CR 344, 365–66). The trial court’s ruling amounted to an abuse of
discretion. Smith, 368 S.W.3d at 577. Appellants request that this Court reverse
and the trial court’s ruling and remand with an order to grant Appellants’ motion to
dismiss.
25
D. By Serving A Report Like Dr. Breall’s, Appellee Effectively
Negates The Purpose Of Chapter 74’s Expert Report
Requirement.
As stated above, the purpose of section 74.351 is to prevent the filing of
frivolous lawsuits against physicians and health care providers in Texas. One of the
central purposes of the expert report is to provide a basis for the trial court to
conclude the claims have merit. Palacios, 46 S.W.3d at 879. Stated otherwise, the
report should let the trial court know the claims are not frivolous. When an expert
report conceals the relevant facts and provides only baseless conclusions on the
three elements of a health care liability claim, a plaintiff effectively negates the
purpose of the expert report requirement and circumvents section 74.351.
This is precisely what Appellee has done in this case. Dr. Breall’s report
conceals the relevant facts in hopes that his vague conclusions would hide the
frivolous nature of Appellee’s claims. If the trial court’s decision is upheld, the
purposes behind Chapter 74 will effectively be nullified and claimants would likely
use this Court’s decision to file frivolous claims against physicians and health care
providers by simply ignoring the facts. This is certainly not what the Legislature
intended when enacting Chapter 74 (formerly article 4590i).
CONCLUSION & PRAYER
In conclusion, Dr. Breall’s report suffers from a number of fatal flaws. Dr.
Breall provides absolutely no facts to support his conclusions on the applicable
26
standard of care, breach, and causation. Dr. Breall also fails to apprise Appellants
of the specific conduct called into question so as to notify the trial court of what
Appellants should have done differently in their care for Appellee. Moreover, Dr.
Breall’s report fails to identify the standard of care applicable to each Appellant,
fails to describe any act or omission by the Appellants that amounted to a breach in
that standard of care, and fails to show how any alleged breaches by Appellants
caused Appellee’s injuries. To the extent Dr. Breall does offer a limited opinion on
any of these elements, he only offers baseless conclusions that do not even connect
the applicable standard of care with an alleged breach of that standard of care
along with a causal link. Accordingly, the trial court abused its discretion when
holding that Dr. Breall’s report was “adequate” under Chapter 74 and denying
Appellants’ motion to dismiss.
WHEREFORE, PREMISES CONSIDERED, Appellants respectfully
request that this Court reverse the trial court’s order denying Appellants’ Chapter
74 Motion to Dismiss and remand to the trial court with an order that all claims
and causes of action asserted by Appellee against Appellants be dismissed with
prejudice and that Appellants be awarded their reasonably attorneys’ fees and costs
as allowed by Chapter 74 of the Texas Civil Practices and Remedies Code.
Appellants further pray for such other relief that they may be justly entitled.
27
Respectfully submitted,
SERPE, JONES, ANDREWS,
CALLENDER & BELL, PLLC
By: /s/ Chris Knudsen
Chris Knudsen
Texas Bar No. 24041268
cknudsen@serpejones.com
America Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
Telephone: (713) 452-4400
Facsimile: (713) 452-4499
Attorneys for Appellants Vivek Goswami,
M.D. and Austin Heart, PLLC
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Brief for Appellants is computer
generated, has been prepared in a conventional typeface no smaller than 14-point
for text and 12-point for footnotes, contains 6,322 words according to word count
function of the computer program used to prepare this Brief, excluding any parts
exempted by TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas Rule of
Appellate Procedure 9.4.
/s/ Chris Knudsen
Chris Knudsen
28
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all known counsel of record in accordance with
the Texas Rules of Appellate Procedure on this the 5th day of January, 2015.
L. Todd Kelly
THE CARLSON LAW FIRM, P.C.
11606 N IH-35
Austin, Texas 78753
Counsel for Plaintiff/Appellee
Cynthia Day Grimes
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215-1157
Counsel for Defendants Walgreen Co.
and Sara Elizabeth McGuire
Missy Atwood
GERMER BEAMAN & BROWN, PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
Counsel for Defendant St. David’s Health
Care Partnership
/s/ Chris Knudsen
Chris Knudsen
29
APPENDIX A
TRIAL COURT ORDERS
30
Filed in The District Coun
of Travis County, Texas
NOV 05 ZOl~ ~
OFFICE OF THE DISTRICT JUDGES
Travis County Court House
P.O. Box 1748
Austin, Texas 78767
(512) 854-9300
October 30, 2014
Mr. L. Todd Kelly Ms. Cynthia Day Grimes
The Carlson Law Firm, P.C. Strasburger & Price, LLP
n6o6 N. IH 35 2301 Broadway
Austin, Texas 78753 San Antonio, Texas 78215-1157
Via Facsimile: (512) 719-4362 Via Facsimile: (210) 250-6003
Mr. Christopher Knudsen Ms. Missy Atwood
Serpe, Jones, Andrews, Germer Beaman & Brown, PLLC
Callender & Bell, PLLC 301 Congress Avenue, Suite 1700
American Tower Austin, Texas 78701
2929 Allen Parkway, Suite 1600 Via Facsimile: (512) 472-0721
Houston, Texas 77019
Via Facsimile: (713) 452-4499
Re: Cause No. D-1-GN-14-000903; Nancy Jo Rodriguez vs. The
Walgreen Company, Sara Elizabeth McGuire, Austin Heart PLLC, St.
David's Health Care Partnership, David Kessler, MD, and Vivek
Goswami, MD; in the 419th Judicial District Court of Travis County,
Texas
Dear Counsel:
Having reviewed the above said matter the Court will find that purported expert
reports regarding alleged negligence against Walgreens and Sara Elizabeth McGuire are
inadequate to satisfy the requirements of Chapter 74, Tex.Civ. Prac. & Rem Code and
such claim should be dismissed.
The Court will find that expert report of Dr. Breall pertaining to Dr. Goswami and
Austin Heart is adequate under Chapt. 74 and the plaintiffs claim will proceed. No
sanctions on attorney's fee will be ordered.
344
Cause No. D-1-GN-14-000903 Filed in The District Court
of Travis County, Texas
October 30, 2014
Page 2 of2
NOV 0 5 2014 ctJ
At \ I~ 5't aiM.
Amalia Rodriguez-Mendoza, Clerk
I ask that Mr. Kelly and Ms. Grimes prepare appropriate orders reflecting the
Court's Rulings and forward the same to Lorraine Elzia, Office of the District Judges,
Rm, 327, P.O. Box 1748, Austin, Texas 78767.
Thank you.
Sincerely Yours,
Gus J. Strauss
Presiding Judge
cc: Travis County District Clerk
345
DC BK14342 PG666
~=~;~ in !he District Court
. . . ravJs County, Texas
,:~~£~~~2014 1
CAUSE NO. D~l~GN-14~000903
''maua Rodriguez-Mendoza, ~erk
NANCY JO RODRIGUEZ § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
vs. § TRAVIS COUNTY, TEXAS
§
THE WALGREEN COMPANY, §
SARA ELIZABETH MCGUIRE, §
AUSTIN HEART PLLC, ST. DAVID'S §
HEALTHCARE PARTNERSHIP, §
AND VIVEK GOSWAMI, M.D. §
§
Defendants. § 4191h JUDICIAL DISTRICT
ORDER DENYING DEFENDANTS VIVEK GOSWAMI, M.D. AND AUSTIN HEART,
PLLC'S CH. 74 MOTION TO DISMISS AND MOTION FOR A WARD OF
ATTORNEYS' FEES
Defendants, Vivek Goswami, M.D. and Austin Heart, PLLC's Motion to Dismiss
Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code and Motion for Award
of Attorneys' Fees came to be heard and considered in the above-entitled and numbered cause on
October 29, 2014. The Court, after hearing argument of counsel and considering the written
motion, objections to the report of Dr. Jeffrey A. Breall, response and reply, is of the opinion that
the Defendants' motion should be DENIED and that the report of Dr. Jeffiey A. Breall
adequately complies with §74.351 of the Texas Civil Practice and Remedies Code. Accordingly,
it is hereby,
ORDERED, ADJUDGED AND DECREED as follows:
I. Defendants, Vivek Goswami, M.D. and Austin Heart, PLLC's Motion to Dismiss
Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code and Motion
for Award of Attorneys' Fees are DENIED;
365
DC BK14342 PG667
2. Dr. Jeffrey A. Breal1's expert report complies with §74.351 of the Texas Civil
Practice and Remedies Code; and
3. Plaintiffs Counter-Motion for Sanctions is DENIED.
SIGNED this f
AGREED-AS-
-·
·'
icole Andrews
ChrisM. Knudsen
Margaret Garib
SERPE, JONES, ANDREWS,
CALLENDER & BELL, PLLC
2929 Allen Pkwy, Suite 1600
Houston, TX 77019
366
APPENDIX B
CASES
31
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720
medical-malpractice claims against American Transitional
Care Centers, Inc., d/b/a American Transitional Hospital,
46 S.W.3d 873
Supreme Court of Texas. because it determined that the Palacioses’ expert report
did not show a good-faith effort to provide a fair summary
AMERICAN TRANSITIONAL CARE CENTERS of the expert’s opinions about the standard of care,
OF TEXAS, INC. d/b/a American Transitional breach, and causation, as required by section 13.01. See
Hospital, Petitioner, id. § 13.01(d), (e), (l), (r)(6). The court of appeals, after
v. evaluating the trial court’s decision as it would a
Teofilo PALACIOS and Maria Palacios, summary-judgment decision, reversed, holding that the
individually and a/n/f of Gloria Janeth Palacios report did meet the statutory requirements. 4 S.W.3d 857,
and Rocio Daniela Palacios, minors, Maria 860.
Angelica Palacios, and Sentry Insurance, a mutual
company, Respondents. We hold that a trial court’s decision to dismiss a case
under section 13.01(e) is reviewed for abuse of discretion.
No. 99–1311. | Argued Dec. 6, 2000. | Decided May We further hold that to constitute a good-faith effort to
10, 2001. | Rehearing Overruled June 28, 2001. provide a fair summary of an expert’s opinions under
section 13.01(l ), an expert report must discuss the
Medical malpractice action was brought against hospital standard of care, breach, and causation with sufficient
to recover for injuries patient allegedly suffered in fall at specificity to inform the defendant of the conduct the
hospital. The 280th District Court, Harris County, Tony plaintiff has called into question and to provide a basis for
Lindsay, J., dismissed case for failure to file expert report, the trial court to conclude that the claims have merit. In
as required by Medical Liability and Insurance this case, the trial court did not abuse its discretion in
Improvement Act. Patient appealed. The Houston Court concluding that the challenged report does not meet the
of Appeals, First District, reversed and remanded, 4 statutory requirements and in dismissing with prejudice
S.W.3d 857. On petition for review, the Supreme Court, the claims against American Transitional. Accordingly,
Hankinson, J., held that: (1) trial court’s determination we reverse the court of appeals’ judgment and dismiss
about adequacy of expert report under Act is reviewed with prejudice the Palacioses’ claims.
under abuse-of-discretion standard, and (2) expert’s report
did not provide fair summary of standard of care and how Teofilo Palacios suffered brain damage and other severe
it was breached. injuries following a two-story fall at work. After almost a
year in an intensive rehabilitation program, he was
Court of Appeals’ judgment reversed. transferred to American Transitional Hospital for further
rehabilitation. Although Palacios at that time was able to
*876 communicate with others and respond to simple
Attorneys and Law Firms commands, he required assistance with most daily tasks.
In addition, due to the severity of his brain damage,
*875 Matthew T. McCracken, John C. Marshall, James C. Palacios’ physicians prescribed bed restraints for him.
Marrow, Dee L. Dawson, Marshall & McCraken, Nevertheless, while a patient at American Transitional,
Houston, for Petitioner. Palacios fell from his bed and required additional medical
care for his injuries. His family claims that this fall caused
D. John Leger, Leger & Coplen, Levon G. Hovnatanian,
him to sustain further brain injury, which impaired his
Martin Disiere & Jefferson, Houston, Mickey C. Shyrock,
ability to communicate with others and to assist them in
Law Office of Mickey C. Shyrock, Athens, for
his care.
Respondents.
Opinion Palacios and his family sued American Transitional and
the treating doctors, respectively, for negligently failing to
Justice HANKINSON delivered the opinion of the Court. prevent the fall and negligently treating him after the fall.
After ninety days passed from the date the Palacioses
filed suit, American Transitional, along with the other
In this medical-malpractice case we determine the defendants, moved to require the Palacioses to file a
standards for reviewing an expert report under section $7,500 cost bond, as required by section 13.01(b) of the
13.01 of the Medical Liability and Insurance Medical Liability and Insurance Improvement Act. See
Improvement Act. TEX.REV.CIV. STAT. ANN.. art. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(b)
4590i, § 13.01. The trial court dismissed the Palacioses’ (authorizing a trial court to order a plaintiff to file a
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720
$7,500 cost bond for each defendant physician or health- opinions early in the litigation an obvious place to start in
care provider if the plaintiff has not complied with the attempting to reduce frivolous lawsuits. See HOUSE
expert-report or $5,000 cost-bond requirement in section COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. H.B.
13.01(a)); id. § 13.01(a) (requiring the plaintiff to file 971, 74th Leg., R.S. (1995).
either an expert report or a $5,000 cost bond for each
defendant physician or health-care provider within ninety Accordingly, in section 13.01, the Legislature requires
days of filing suit). The trial court granted the motion, and medical-malpractice plaintiffs, within 180 days of filing
the Palacioses filed a cost bond for each defendant. suit, either to provide each defendant physician and
health-care provider with an expert report and the expert’s
After 180 days passed from the date the Palacioses filed curriculum vitae, or to nonsuit the claims. TEX.REV.CIV.
suit, American Transitional moved to dismiss the case STAT. ANN.. art. 4590i, § 13.01(d). If the plaintiff fails
against it because the Palacioses did not file an expert within the time allowed either to provide the expert
report and curriculum vitae, or nonsuit the claims against reports and curriculum vitae, or to nonsuit the case, the
American Transitional, as section 13.01(d) of the Act trial court must sanction the plaintiff by dismissing the
requires. Id. § 13.01(d), (e). The Palacioses moved for an case with prejudice, awarding costs and attorney’s fees to
extension of time to file the report, which the trial court the defendant, and ordering the forfeiture of any
granted. See id. § 13.01(f), (g). The Palacioses then filed a applicable cost bond necessary to pay that award. Id. §
report prepared by Dr. Catherine F. Bontke, who treated 13.01(e). If the plaintiff does timely file a report, the
Palacios at the first rehabilitation hospital. American defendant may move to challenge the adequacy of the
Transitional again moved to dismiss under section report, and the trial court must grant the motion if “it
13.01(e), claiming that the report did not satisfy the appears to the court ... that the report does not represent a
statutory requirements. See id. § 13.01(l), (r)(6). The trial good faith effort to comply with the definition of an
court granted the motion, dismissed with prejudice the expert report.” Id. § 13.01(l). The statute defines an expert
claims against American Transitional, and severed those report as “a written report by an expert that provides a fair
claims to make the judgment against American summary of the expert’s opinions ... regarding applicable
Transitional final. See id. § 13.01(e). standards of care, the manner in which the care rendered
... failed to meet the standards, and the causal relationship
The Palacioses appealed, and with one justice dissenting, between that failure and the injury, harm, or damages
the court of appeals reversed and remanded after using claimed.” Id. § 13.01(r)(6). If a trial court determines that
summary-judgment review standards to evaluate the an expert report does not meet these statutory
sufficiency of the expert report. 4 S.W.3d at 860. After requirements and the time for filing a report has passed, it
indulging every reasonable inference in the Palacioses’ must then dismiss with prejudice the claims against the
favor and eliminating any deference to the trial court’s defendant who has challenged the report. Id. § 13.01(e).
decision, the court of appeals concluded that the trial
court erred in dismissing the case because the Palacioses American Transitional contends that a trial court’s
made a good-faith effort to provide a report that met the determination about the adequacy of an expert report
requirements of section 13.01(r)(6). Id. at 862–63. should be reviewed under an abuse-of-discretion standard.
American Transitional petitioned for review challenging The Palacioses respond that whether a report meets the
both the standard of review applied by the court of requirements of subsections 13.01(l) and (r)(6) is a
appeals and the sufficiency of the Palacioses’ report. question of law. They suggest that a trial court’s decision
on the adequacy of a report should be reviewed as a court
[1]
Texas courts have long recognized the necessity of would review a summary-judgment decision: that is, by
expert testimony in medical-malpractice cases. E.g., Hart indulging every reasonable inference and resolving any
v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. doubts in the nonmovant’s favor, and eliminating any
Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). deference to the trial court’s decision. We agree with
“There can be no other guide [than expert testimony], and American Transitional.
where want of skill and attention is not thus shown by
[2] [3]
expert evidence applied to the facts, there is no evidence The plain language of section 13.01 leads to the
of it proper to be submitted to the jury.” Hart, 399 S.W.2d conclusion that abuse of discretion is the proper standard.
at 792. Because expert testimony is crucial to a medical- First, the statute directs the trial court to grant a motion
malpractice case, *877 knowing what specific conduct the challenging the adequacy of an expert report if it “appears
plaintiff’s experts have called into question is critical to to the court” that the plaintiffs did not make a good-faith
both the defendant’s ability to prepare for trial and the effort to meet the statutory requirements. Id. § 13.01(l).
trial court’s ability to evaluate the viability of the This language plainly vests the trial court with discretion.
plaintiff’s claims. This makes eliciting an expert’s See TEX. GOV’T CODE § 312.002. (“[W]ords shall be
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720
given their ordinary meaning.”). Second, the statute states then look outside the report at the plaintiff’s conduct to
that dismissal under section 13.01(e) is a sanction: If the determine whether the plaintiff made a good-faith effort
requirements of section 13.01(d) are not met, the court to meet the statutory requirements, id. § 13.01(l ). The
must “enter an order as sanctions” dismissing the case and Palacioses, on the other hand, argue that the statute
granting the defendant its costs and attorneys’ fees. requires only one inquiry—whether the report evidences a
TEX.REV.CIV. STAT. ANN .. art. 4590i, § 13.01(e). good-faith effort to provide a fair summary of the expert’s
Sanctions are generally reviewed under an abuse-of- opinions. According to the Palacioses, the trial court does
discretion standard. Koslow’s v. Mackie, 796 S.W.2d 700, not have to make any factual determinations because the
704 (Tex.1990). And we presume the Legislature was only relevant information is in the report itself. We agree
aware of the standard of review ordinarily applied in with the Palacioses that a trial court should look no
sanctions cases when it explicitly identified a court’s further than the report in conducting a section 13.01(l )
dismissal under section 13.01(e) as a sanction. *878 See inquiry.
McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128
(1943) ( “All statutes are presumed to be enacted by the The issue for the trial court is whether “the report”
legislature with full knowledge of the existing condition represents a good-faith effort to comply with the statutory
of the law and with reference to it.”). definition of an expert report. Id. § 13.01(l ). That
definition requires, as to each defendant, a fair summary
Nevertheless, the court of appeals concluded that the of the expert’s opinions about the applicable standard of
usual standard of review for sanctions should not apply care, the manner in which the care failed to meet that
here. The court reasoned that the provisions of article standard, and the causal relationship between that failure
4590i at issue here were intended to discourage frivolous and the claimed injury. Id. § 13.01(r)(6). Because the
lawsuits, while sanctions, in contrast, are a response to statute focuses on what the report discusses, the only
litigation misconduct. We disagree with this distinction. information relevant to the inquiry is within the four
corners of the document.
Filing a frivolous lawsuit can be litigation misconduct
[5] [6]
subject to sanction. See TEX.R. CIV. P. 13 (imposing Under subsections 13.01(l ) and (r)(6), the expert
sanctions for filing groundless motions, pleadings, or report must represent only a good-faith effort to provide a
other papers in bad faith or for the purposes of fair summary of the expert’s opinions. A report need not
harassment). And one purpose of the expert-report marshal all the plaintiff’s proof, but it must include the
requirement is to deter frivolous claims. HOUSE COMM. expert’s opinion on each of the elements identified in the
ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, 74th statute. See *879 Hart v. Wright, 16 S.W.3d 872, 877
Leg., R.S. (1995). The Legislature has determined that (Tex.App.—Fort Worth 2000, pet. denied). In setting out
failing to timely file an expert report, or filing a report the expert’s opinions on each of those elements, the report
that does not evidence a good-faith effort to comply with must provide enough information to fulfill two purposes if
the definition of an expert report, means that the claim is it is to constitute a good-faith effort. First, the report must
either frivolous, or at best has been brought prematurely. inform the defendant of the specific conduct the plaintiff
See id. This is exactly the type of conduct for which has called into question. Second, and equally important,
sanctions are appropriate. See TransAmerican Natural the report must provide a basis for the trial court to
Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) conclude that the claims have merit. See 4 S.W.3d at 865
(holding that “death-penalty” sanctions are appropriate (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d 829, 830
when a party’s discovery abuse justifies a presumption (Tex.App.—San Antonio 1999, pet. denied) (noting that
that its claims lack merit). For these reasons, we hold that one of the purposes of article 4590i is to deter frivolous
an abuse-of-discretion standard of review applies to a trial claims).
court’s decision to dismiss a case under section 13.01(e).
[7] [8] [9] [10]
A report that merely states the expert’s
[4]
We next consider whether the trial court abused its conclusions about the standard of care, breach, and
discretion in dismissing the Palacioses’ claims against causation does not fulfill these two purposes. Nor can a
American Transitional. The parties disagree about how to report meet these purposes and thus constitute a good-
determine a report’s adequacy under section 13.01(l ). faith effort if it omits any of the statutory requirements.
American Transitional argues that the trial court must See, e.g., Hart, 16 S.W.3d at 877 (holding that a report
engage in a two-step process: (1) the trial court must was inadequate because it stated that the patient had a
determine whether the report constitutes a fair summary heart attack and the doctor breached the standard of care,
of the expert’s opinions, TEX.REV.CIV. STAT. ANN.. without describing the standard of care); Wood, 988
art. 4590i, § 13.01(r)(6); and (2) if the trial court S.W.2d at 831–32 (holding that an expert report did not
concludes that the report is not a fair summary, it must meet the statutory requirements because it did not name
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720
the defendants, state how the defendants breached the minutes,” that Dr. Bontke believes American
standard of care, demonstrate causation and damages, or Transitional’s staff should have tied the restraints to the
include a curriculum vitae). However, to avoid dismissal, bed more securely.
a plaintiff need not present evidence in the report as if it
[12]
were actually litigating the merits. The report can be The standard of care for a hospital is what an
informal in that the information in the report does not ordinarily prudent hospital would do under the same or
have to meet the same requirements as the evidence similar circumstances. See Birchfield v. Texarkana Mem’l
offered in a summary-judgment proceeding or at trial. Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the
See, e.g., TEX.R. CIV. P. 166(f) (setting out the standard of care is critical: Whether a defendant breached
requirements for the form and content of affidavits his or her duty to a patient cannot be determined absent
offered as summary-judgment proof); TEX.R. EVID. 802 specific information about what the defendant should
(stating that most hearsay is inadmissible). have done differently. “While a ‘fair summary’ is
something less than a full statement of the applicable
[11]
American Transitional contends that Dr. Bontke’s standard of care and how it was breached, even a fair
report does not meet the statutory requirements because it summary must set out what care was expected, but not
does not represent a good-faith effort to provide a fair given.” 4 S.W.3d at 865 (Taft, J. dissenting). The
summary of her opinion on the standard of care and how statement the Palacioses rely upon—that precautions to
American Transitional breached that standard. The prevent Palacios’ fall were not properly used—is not a
Palacioses respond that the following parts of Dr. statement of a standard of care. Neither the trial court nor
Bontke’s report establish these elements: American Transitional would be able to determine from
this conclusory statement if Dr. Bontke believes that the
Based on the available documentation I was able to standard of care required American Transitional to have
conclude that: Mr. Palacios fell from his bed on 5/14/94 monitored Palacios more closely, restrained him more
while trying to get out of it on his own. The nursing securely, or done something else entirely. “It is not
notes document that he was observed by nursing on the sufficient for an expert to simply state that he or she
hour for two hours prior to the fall. In addition, ten knows the standard of care and concludes it was [or was
minutes before the fall, the nursing notes documents not] met.” See Chopra v. Hawryluk, 892 S.W.2d 229, 233
[sic] the his wrist/vest restraints were on. Yet, at the (Tex.App.—El Paso 1995, writ denied). Knowing only
time of his fall he was found on the floor with his that the expert believes that American Transitional did not
vest/wrist restraints on but not tied to the bed. It is take precautions to prevent the fall might be useful if
unclear how he could untie all four of the restraints American Transitional had an absolute duty to prevent
from the bedframe in under ten minutes. Obviously, falls from its hospital beds. But as a general rule, res ipsa
Mr. Palacios had a habit of trying to undo his restraints loquitur does not apply in medical-malpractice cases.
and precautions to prevent his fall were not properly TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting
utilized. res ipsa loquitur in medical malpractice to the limited
classes of cases to which it applied as of August 29,
.... 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951
(Tex.1990).
All in all, Mr. Palacios sustained a second brain injury
with a left subdural hematoma while he was an When the expert report’s conclusory statements do not put
inpatient at [the Hospital].... [I]n my opinion, the the defendant or the trial court on notice of the conduct
medical care rendered to Mr. Palacios at the time of his complained of, section 13.01(l ) affords the trial court no
second brain injury was below the accepted and discretion but to conclude, as the trial court did here, that
expected standard of care which he could expect to the report does not represent a good-faith effort to provide
receive. Moreover, this [sic] below the accepted a fair summary of the standard of care and how it was
standard of care extends to both the cause of the second breached, as section 13.01(r)(6) requires. And because the
injury as well as the subsequent treatment.... statutory 180 day time period had passed when the trial
court here made that determination, section 13.01(e)
The Palacioses rely mostly on one sentence in the report
required the court to dismiss with prejudice the
to establish the standard of care: “Mr. Palacios had a habit
Palacioses’ claims against American Transitional. See
of *880 trying to undo his restraints and precautions to
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e).
prevent his fall were not properly utilized.” They argue
Accordingly, we reverse the court of appeals’ judgment
that the inference can be made from that sentence, along
and dismiss with prejudice the Palacioses’ claims.
with the statement that “[i]t is unclear how he could untie
all four of the restraints from the bed frame in under ten
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720
Parallel Citations 44 Tex. Sup. Ct. J. 720
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
Before Justices PATTERSON, PEMBERTON and
228 S.W.3d 276 WALDROP.
Court of Appeals of Texas,
Austin.
AUSTIN HEART, P.A. and David J. Kessler, M.D.,
Appellants,
v. OPINION
Christian L. WEBB and Marilou Webb, Appellees.
G. ALAN WALDROP, Justice.
No. 03–06–00607–CV. | May 9, 2007.
Austin Heart, P.A. and David J. Kessler, M.D. appeal the
district court’s order denying their motion to dismiss
Synopsis Christian and Marilou Webb’s medical malpractice
Background: Patient brought medical malpractice action claims. Austin Heart and Dr. Kessler contend that the
against physician and physician’s professional association expert report served on them pursuant to civil practice and
alleging that physician failed to diagnose and treat the remedies code section 74.351 did not comply with the
medical condition which caused patient’s severe heart statute because it did not sufficiently identify either
palpitations and other health conditions. Physician and Austin Heart or Dr. Kessler as the parties responsible for
professional association moved to dismiss on the basis the alleged breach of the standard of care or the cause of
that patient’s expert report did not identify them as the the alleged injury to Mr. Webb. See Tex. Civ. Prac. &
parties responsible for breaching the standard of care or Rem.Code Ann. § 74.351 (West 2005 & Supp.2006). We
causing injury to patient. The District Court, 98th Judicial agree that the plaintiffs’ expert report was deficient and
District, Travis County, Paul Davis, P.J., initially granted that the district court erred in denying the motion to
the motion to dismiss, but, on patient’s motion for a dismiss. However, we are of the view that the cure
rehearing, reversed its ruling to deny the motion to provisions of section 74.351(c) are designed to allow the
dismiss. Physician and professional association appealed. plaintiffs an opportunity to address and correct the defect.
Consequently, we reverse the district court’s order
denying the motion to dismiss and remand this cause to
Holdings: The Court of Appeals, G. Alan Waldrop, J., the district court to consider whether a 30–day extension
held that: of the deadline for serving the report to allow the
plaintiffs to address the deficiency is appropriate.
[1]
patient’s expert report was deficient as it did not
specifically state that the defendant physician was the The Webbs sued Austin Heart and Dr. Kessler in January
physician that breached the relevant standard of care and of 2006 alleging that Dr. Kessler failed to “diagnose and
caused alleged injury to patient, but treat the medical condition which caused [Mr. Webb’s]
severe palpitations and resulting associated health
[2]
patient was entitled to a 30-day extension to cure such conditions.” The palpitations and other symptoms
deficiencies. described by the Webbs were related to Mr. Webb’s
pacemaker. On May 31, 2006, the Webbs filed and served
the expert report and curriculum vitae of Dr. Alan E.
Reversed and remanded. Cororve pursuant to the requirements of section 74.351 of
the civil practice and remedies code setting forth Dr.
Jan J. Patterson, J., filed a dissenting opinion. Cororve’s opinions regarding Mr. Webb’s treatment for
his problems with his pacemaker. Austin Heart and Dr.
Kessler filed a motion to dismiss on June 21, 2006,
Attorneys and Law Firms claiming that Dr. Cororve’s report did not identify either
Dr. Kessler or Austin Heart as the parties responsible for
*278 Robert L. Hargett, Emily J. Davenport, Davis & breaching the standard of care or causing Mr. Webb
Wilkerson, P.C., Austin, for appellant. injury and, therefore, the report was not a timely report as
to them. In response, the Webbs claimed that the report
James L. Wright, Watts Law Firm, L.L.P., Austin, for was sufficient as written and, in the alternative, filed a
appellee. motion for a 30–day *279 extension to cure in the event
the court found the report deficient.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
required information within its four corners.”); see also
The district court initially granted the motion to dismiss Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859
on August 22, 2006, and did not grant a 30–day extension (Tex.App.-Houston [1st Dist.] 2006, no pet.).
to allow the plaintiffs to attempt to cure the deficiency.
[4]
The Webbs filed a motion for rehearing and a motion for We review a district court’s ruling on a motion to
new trial on September 15, 2006, arguing that the court dismiss under section 74.351 for an abuse of discretion.
had misinterpreted case law relating to what constitutes a Palacios, 46 S.W.3d at 877–78. A trial court abuses its
sufficient report under section 74.351 and that Dr. discretion when it acts in an arbitrary or unreasonable
Cororve’s report was sufficient. They also re-urged their manner or without reference to any guiding rules or
request for a 30–day extension to cure in the event the principles. Downer v. Aquamarine Operators, Inc., 701
court denied their motion for rehearing. The district court S.W.2d 238, 241–42 (Tex.1985). A trial court does not
then reversed its original ruling, granted the motion for abuse its discretion simply because it may decide a matter
rehearing, and entered an order denying the motion to within its discretion differently than an appellate court. Id.
dismiss. This appeal followed. at 242. However, a trial court has no discretion in
determining *280 what the law is or applying the law to
[1]
Section 74.351 requires a claimant pursuing a health the facts. Walker v. Packer, 827 S.W.2d 833, 840
care liability claim to serve one or more expert reports on (Tex.1992). A clear failure by the trial court to analyze or
each party no later than the 120th day after the filing of apply the law correctly will constitute an abuse of
the original petition. Id. § 74.351(a). The expert report discretion. Id.
must provide “a fair summary of the expert’s opinions as
of the date of the report regarding applicable standards of In a single issue, Austin Heart and Dr. Kessler argue that
care, the manner in which the care rendered by the section 74.351(b) mandates dismissal of the Webbs’
physician or health care provider failed to meet the lawsuit. Their argument is straightforward: Read literally,
standards, and the causal relationship between that failure without any inferences or reliance on information outside
and the injury, harm, or damages claimed.” Id. § of its four corners, Dr. Cororve’s report does not identify
74.351(r)(6). A court shall grant a motion challenging the either Dr. Kessler or Austin Heart as having breached the
adequacy of a report only if the report “does not represent standard of care or having caused Mr. Webb injury. The
an objective good faith effort to comply” with the Webbs respond that, while the sections of Dr. Cororve’s
definition of “expert report” in the statute. Id. § 74.351(l ). report relating to the breach of the standard of care and
To constitute a good faith effort, the report must provide causation do not identify any specific physicians, the
enough information to fulfill two purposes: (1) it must meaning of the report read as a whole is apparent and
inform the defendant of the specific conduct the plaintiff reveals that Dr. Cororve is referring to Mr. Webb’s
has called into question, and (2) it must provide a basis treatment by Dr. Kessler.
for the trial court to conclude that the claims have merit.
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 Dr. Cororve’s two and one-half page report is divided into
(Tex.2002) (citing American Transitional Care Ctrs., Inc. five sections—“Qualifications,” “Materials Reviewed and
v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). Background,” “Standard of Care,” “Standard of care not
met,” and “Causation.” In the section titled Materials
[2] [3]
The Texas Supreme Court has also stated that a Reviewed and Background, Dr. Cororve lists the various
report need not marshal all of the plaintiff’s proof, but it medical records he reviewed. 1 He then sets out selected
must include the expert’s opinion on each of the elements portions of these records detailing the relevant aspects of
identified in section 74.351. Palacios, 46 S.W.3d at 878. Mr. Webb’s history of treatment for a trial fibrillation and
A report cannot merely state the expert’s conclusions palpitations over a period of nearly four years beginning
about the statutory elements. Id. at 879. “Rather, the with the placement of his pacemaker in November 2001.
expert must explain the basis of his statements to link his This review of Mr. Webb’s treatment history includes a
conclusions to the facts.” Bowie Memorial, 79 S.W.3d at number of references to Dr. Kessler’s office notes,
52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 comments by Dr. Kessler in those notes, complaints by
(Tex.1999)). In addition, since the statute focuses on what Mr. Webb contained in the notes, a reference to the office
is required in the report, the only information relevant to notes of a Dr. George Rodgers, an email from Mr. Webb
determining whether a report complies with the statute is to Dr. Kessler, a response email from Dr. Rodgers, 2 and a
“within the four corners of the document.” Palacios, 46 general statement that “[Mr. Webb] was seen by various
S.W.3d at 878. This requirement precludes a court from physicians, including several electrophysiological
filling gaps in a report by drawing inferences or guessing consultations.” The background section concludes with
as to what the expert likely meant or intended. See Bowie the observation that “[f]urther evaluation eventually
Memorial, 79 S.W.3d at 53 (“The report must include the documented diaphragmatic stimulation and a new right
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
ventricular lead was placed on September 7, 2005. The Cororve is identifying Dr. Kessler as the physician who
patient was subsequently discharged in excellent breached the standard of care and caused injury. Had Dr.
condition.”3 The background section of the report offers Cororve referenced only actions by Dr. Kessler in the
no opinions regarding the appropriateness of the treatment background section of his report, the link between Dr.
or the responses of the physicians to Mr. Webb’s Cororve’s opinions and the responsible physician might
complaints. It is strictly a recitation of historical material be more apparent. However, Dr. Cororve also refers to
contained in the medical records reviewed by Dr. actions taken by Dr. Rodgers and makes a vague
Cororve. reference to Mr. Webb having been “seen by various
physicians, including several electrophysiological
The report then concludes with the following three consultations” after he was treated by Dr. Kessler but
sections: before his condition improved.6 There is nothing in the
report that links Dr. Kessler to Dr. Cororve’s opinions
regarding the breach of the standard of care and causation
any more than Dr. Rodgers or the other “various
Standard of Care physicians” referenced.
The standard of care in a patient such as this requires The Webbs point out that (1) Dr. Kessler is the only
more intensive investigation as to the source of a defendant physician and (2) the essence of Dr. Cororve’s
patient’s symptoms and subsequent corrective actions opinions is that the breach of the standard of care was the
to ameliorate the problem. Attempts at adjusting the failure of the treating physicians, implicitly including Dr.
ventricular pacing outputs should routinely be Kessler, to properly adjust the ventricular pacing outputs.
attempted and would most likely have pinpointed the *282 However, that Dr. Kessler is the only defendant
problem much earlier. This standard of care was not physician is not relevant to an analysis of whether an
met. expert report complies with section 74.351. The fact that
he is the only defendant physician and, therefore, very
likely to be the subject of the report is outside the four
Standard of care not met corners of the report. See Palacios, 46 S.W.3d at 878. It
also does nothing to clarify to whom the opinions of the
The diagnostic and corrective action eventually taken,
expert supplying the report apply. The expert’s opinions
specifically the increase *281 in the ventricular pacing
are, of course, confined to the report and must tell the
output, should have been implemented much sooner.
reader not only what conduct breached the standard of
care, but whose conduct breached the standard of care.
Causation The plaintiffs’ allegation that a particular physician was at
fault does not substitute for the requirement that they
Had the corrective action described occurred, Mr. supply an expert report demonstrating that the expert is of
Webb would not have undergone the physical and the same opinion.
mental problem(s) he had and could have continued his
normal lifestyle much earlier than he did. We also do not agree that the substance of Dr. Cororve’s
[5]
Dr. Kessler and Austin Heart point to these sections opinions could only be associated with the conduct of Dr.
and argue that, while they may articulate an opinion on Kessler. The essence of Dr. Cororve’s opinion is that the
the breach of the standard of care and on causation, the physicians who treated Mr. Webb should have adjusted
sections do not identify Dr. Kessler as breaching the his ventricular pacing outputs sooner and the failure to do
standard of care or causing injury.4 The Webbs concede so was a breach of the standard of care. This opinion
that these sections do not expressly mention Dr. Kessler. could apply or not apply equally to Dr. Kessler, Dr.
They argue, however, that the background section of the Rodgers, or the various unnamed physicians. The report
report makes it clear Dr. Cororve’s opinions relate to Dr. must state, in some manner, who breached the standard of
Kessler because it is primarily Dr. Kessler’s actions that care and who caused the alleged injury, and whether that
are noted in the relevant history.5 Thus, they argue the includes Dr. Kessler. In the words of the supreme court in
report should be read to mean that the opinions in the Palacios, “the report must inform the defendant of the
standard of care and causation sections refer to the actions specific conduct the plaintiff has called into question.”
and conduct of Dr. Kessler set out in the background Palacios, 46 S.W.3d at 879. This includes informing the
section of the report. defendant of the specific conduct in question of that
defendant. See Palacios, 46 S.W.3d at 878 (The statute
The problem with this argument is that it requires the requires, as to each defendant, a fair summary of the
reader to infer or make an educated guess that Dr. expert’s opinions about the applicable standard of care,
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
the manner in which the care failed to meet that standard, Kessler, the court has no discretion but to dismiss the
and the causal relationship between the failure and the plaintiffs’ claims with prejudice. See Jernigan v. Langley,
claimed injury). 195 S.W.3d 91, 94 (Tex.2006); Marichalar, 185 S.W.3d
at 73–74. This overstates the holding in Garcia. The
We are mindful that a report’s adequacy under section physician in Garcia was not mentioned in the report at all.
74.351 does not depend on whether the expert uses any There was literally nothing in the report that related to the
particular magic words such as “the standard of care was physician in any way. Thus, the report was no report as to
breached by Dr. Kessler.” See Bowie Memorial, 79 him. The Garcia court then held that this was a situation
S.W.3d at 53. However, the report must communicate in where no expert report was timely filed with respect to the
some fashion—within its four corners—how the care physician in question, precluding the trial court from
rendered by the physician failed to meet the applicable considering an extension to cure because there was no
standard of care and the causal relationship between that timely report to cure. 185 S.W.3d at 74 (trial court had no
failure and the injury suffered by the claimant. Tex. Civ. authority to allow a cure period for a nonexistent report).
Prac. & Rem.Code Ann. § 74.351(r)(6). We recognize
that this information could be communicated in a number A closer case is Jernigan v. Langley, 195 S.W.3d 91
of ways and it could be communicated in sections of a (Tex.2006). In Jernigan, the supreme court noted that a
report other than sections titled “Standard of Care” or mere “passing reference” to a physician in a report,
“Causation.” The form of the report and the location of without explanation of how the physician breached the
the information in the report are not dispositive. However, standard of care or caused the injury, would not constitute
in this case, Dr. Cororve’s report is silent as to whether a a sufficient report. 195 S.W.3d at 94. The only reference
single physician, multiple physicians, or all physicians to Dr. Jernigan in the report was “[a]t 4:30 p.m. [John
mentioned in the report failed to meet the standard of care Langley’s] case was discussed with Dr. Jernigan and at
and caused injury to Mr. Webb. It simply does not state 4:50 p.m. a lactulose enema was ordered.” The expert’s
that the care rendered by Dr. Kessler failed to meet opinion on breach of the standard of care had to do with
applicable standards and caused injury. the failure to examine certain x-rays. The report did not
link Dr. Jernigan or the referenced discussion with Dr.
[6]
While we are of the view that Dr. Cororve’s report is Jernigan to a breach of the standard of care or to the
deficient under section 74.351 because it requires the failure to examine x-rays in any way. It made no other
reader to make an educated guess regarding an essential mention of him or what he did at all. The supreme court
element, we are also aware that the defect might well be noted that the single reference to Dr. Jernigan in the
curable. The tenor of Dr. Cororve’s report, coupled with report was so oblique that there was no connection at all
the fact that there is only one physician defendant, makes between the reference to him and the expert’s opinions
it quite likely that Dr. Cororve intended to opine that Dr. regarding the standard of care and causation. It affirmed
Kessler breached the standard of care and caused injury the trial court’s dismissal of the lawsuit based on the
even though the report did not contain that opinion. The insufficiency of the report, stating that “the trial court had
report’s failure on this point is the kind of defect that the no discretion but to conclude, as it did here, that
cure provisions of section 74.351(c) were designed *283 Langley’s claims against Dr. Jernigan must be
to address. Since the district court ultimately found the dismissed.” Id.
report to be sufficient, the court did not consider whether
a 30–day extension of the report deadline to allow the The report in Jernigan, as in Garcia, amounted to no
Webbs to attempt to cure a defect would be appropriate. report at all as to Dr. Jernigan and warranted dismissal for
In light of our ruling that the report does contain a defect, failure to serve a timely report. There was no discretion
we believe consideration by the trial court of the Webbs’ for the court to grant an extension to cure because there
request for an extension to attempt to cure the defect is was no timely report—with respect to Dr. Jernigan—to
warranted. cure.7 Any attempt by the plaintiffs *284 to “cure” the
reports in Jernigan and Garcia would, in effect, have
Austin Heart and Dr. Kessler argue that Garcia v. been to create and serve new reports—that did not exist at
Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, all within the time period for serving reports—with
no pet.), supports the proposition that an expert report that respect to the physicians in question in each case. This is
references multiple health care providers but fails to conceptually no different from the situation where a
delineate the standard of care, breach and causal plaintiff simply missed the deadline for serving a report.
connection as to specific, individual defendants is
tantamount to no report at all with respect to those Jernigan and Garcia differ from this case in crucial
defendants. They then posit that since Dr. Cororve’s respects. Here, a timely report plainly discusses the
report should be considered no report at all as to Dr. conduct of the physician in question and the report
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
discusses opinions on the standard of care and causation JAN P. PATTERSON, Justice, dissenting.
that could be linked to the conduct of the physician set out
in the report, but simply are not. The report is not While the expert report requirement in medical
deficient because it does not relate to Dr. Kessler at all. It malpractice cases is designed to weed out frivolous
is deficient because the link between Dr. Kessler’s claims, it is not meant to be an insurmountable hurdle.
conduct and the expert’s conclusions is not expressly The majority *286 raises the bar, however, by requiring a
stated. The report in this case is, therefore, some report as fastidious reading of the report. The expert report
to Dr. Kessler (among others), but it is not sufficient to proffered by the Webbs may not be a perfect report, but it
meet all of the requirements of section 74.531. It is an is clear when viewed as a whole whose conduct is at
example of what section 74.351(c) refers to as a report issue—Dr. Kessler’s. I therefore cannot agree that the trial
that “has not been served within the [120–day period for court abused its discretion in finding the report adequate. I
serving reports] because elements of the report are found would affirm the order of the trial court.
deficient.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).
In such a circumstance, section 74.351(c) grants the trial Even assuming the report is merely “some report as to Dr.
court discretion to allow a 30–day extension of the Kessler (among others),” the remand fashioned by the
deadline “in order to cure the deficiency.” Id. Jernigan majority is not appropriate in this case and alters the
and Garcia cannot be read to mean that any deficiency in statutory scheme crafted by the legislature. Austin Heart
a report requires dismissal without the possibility of an and Dr. Kessler moved to dismiss the Webbs’ lawsuit
extension to cure because that would mean section solely on the ground that the expert report was “no report”
74.351(c) has no possible application and is superfluous. and, thus, the trial court had no discretion to consider an
Section 74.351(c) contemplates that there are extension to cure deficiencies. Having found that the
circumstances where a timely report will be deficient, but report is indeed some report for which the trial court
the deficiency can be cured. To be consistent with the could have granted an extension, the majority has rejected
statute, Jernigan and Garcia must be read to allow for at Austin Heart’s and Dr. Kessler’s sole ground for
least some situations where a timely report is deficient, dismissal. The appropriate remedy would be a remand to
but the trial court should consider whether the deficiency the trial court for the cause to proceed without the need
is such that it warrants allowing a cure period.8 Id. for an extension. For these reasons, I respectfully dissent.
*285 We are of the opinion that the report in this case
falls into that category. It was served timely, it makes
more than a passing reference to Dr. Kessler, and it notes
conduct by Dr. Kessler that could be linked to the expert’s FACTUAL AND PROCEDURAL BACKGROUND
conclusions regarding the breach of the standard of care
and causation. It is deficient only because it does not On January 31, 2006, the Webbs filed suit against Austin
expressly make the link between the expert’s conclusions Heart and Dr. Kessler, alleging that Dr. Kessler,
and the referenced conduct by Dr. Kessler. If the expert is individually, and Austin Heart, through the actions of Dr.
of the opinion that Dr. Kessler’s conduct breached the Kessler, negligently failed to diagnose and treat Christian
standard of care and caused injury, he will not have to Webb for a medical condition related to his pacemaker
generate a new, previously nonexistent report. He will that caused him to experience “severe palpitations” and
simply have to add the link between his already stated other associated health conditions. On May 31, 2006, the
conclusions and the already referenced conduct of Dr. Webbs filed the expert report and curriculum vitae of Dr.
Kessler. Therefore, the circumstances here are not similar Alan Cororve pursuant to section 74.351 of the civil
to the situation where a plaintiff simply has missed the practice and remedies code. See Tex. Civ. Prac. &
deadline for serving a report with respect to the conduct Rem.Code Ann. § 74.351(a) (West Supp.2006). Austin
of a physician. Heart and Dr. Kessler filed a motion to dismiss under
section 74.351(b), asserting that the Webbs had failed to
We reverse the district court’s order denying the motion file an expert report specifically addressing the standard
to dismiss filed by Austin Heart, P.A. and Dr. Kessler and of care, breach of the standard of care, or causation as to
remand this cause for further proceedings. either Austin Heart or Dr. Kessler. See id. § 74.351(b).
The district court initially granted the motion to dismiss.
The Webbs filed a motion for rehearing and motion for
new trial, and the district court granted the motions. The
district court then denied Austin Heart’s and Dr. Kessler’s
Dissenting Opinion by Justice PATTERSON. motion to dismiss, and this interlocutory appeal followed.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
question and provide a basis for the trial court to
determine that the claims have merit. Id. at 879.
ANALYSIS The supreme court has stated that “to avoid dismissal, a
plaintiff need not present evidence in the report as if it
In their single issue on appeal, Austin Heart and Dr. were actually litigating the merits. The report can be
Kessler argue that dismissal was mandated by section informal in that the information in the report does not
74.351(b). have to meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.” Id.
Because the statute focuses on what the report should
discuss, the only information relevant to the inquiry is that
Abuse of discretion standard
which appears within the four corners of the document.
We review a trial court’s ruling on a motion to dismiss Id. at 878. When examined in its entirety, an expert report
under section 74.351(b) for an abuse of discretion. may be so deficient as to a particular defendant that it
American Transitional Care Ctrs. of Tex., Inc. v. constitutes no report as to that defendant. See, e.g., Garcia
Palacios, 46 S.W.3d 873, 877–78 (Tex.2001). A trial v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San
court abuses its discretion if it acts in an arbitrary or Antonio 2006, no pet.) (Garcia II); Garcia v. Marichalar,
unreasonable manner or without reference to any guiding 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.)
rules and principles. Downer v. Aquamarine Operators, (Garcia I ).
Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When
reviewing matters committed to the trial court’s
discretion, we may not substitute our own judgment for
Dr. Cororve’s report
that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56,
63 (Tex.2003). To satisfy the expert report requirement, the Webbs
served Austin Heart and Dr. Kessler with a two-and-one-
half-page report from Dr. Cororve. The report begins by
stating that “[a]ny reference in this report to Dr. David J.
The expert report requirement
Kessler, M.D. refers to Dr. Kessler individually, and his
In a health-care liability claim, the claimant must provide employer, Austin Heart, P.A.”1 In a section titled
each defendant with one or more expert reports, including “Materials Reviewed and Background,” the first
a curriculum vitae for each expert, within 120 days of paragraph begins, “My opinions are based upon my
filing the original petition. Tex. Civ. Prac. & Rem.Code review of ...,” then lists specific medical records and
Ann. § 74.351(a). An “expert report” is: office notes from four medical facilities and five doctors,
and states that “[i]n addition, my opinions are based upon
my experience, training, knowledge, and qualifications as
a written report by an expert that
a physician.” The report next discusses Mr. Webb’s
provides a fair summary of the
treatment history following the implantation of his
expert’s *287 opinions as of the
date of the report regarding pacemaker on November 30, 2001:
applicable standards of care, the
manner in which the care rendered
Subsequent to that procedure, Mr. Webb complained
by the physician or health care on various occasions concerning his sensing the
provider failed to meet the pacemaker pacing or being aware of forceful
standards, and the causal heartbeats. To that extent, Dr. Kessler noted on
relationship between the failure and
01/18/02 “possibly diaphragmatic stimulation
the injury, harm, or damages
intermittently.” With the office visit of 03/19/03, Dr.
claimed.
Kessler notes this was the second complaint of
abdominal twitching. The pacemaker was reduced to
Id. § 74.351(r)(6). Failure to serve an adequate expert
see if abdominal symptoms could be relieved with less
report mandates dismissal with prejudice. Id. § 74.351(b).
frequent pacing. On 04/25/03, Dr. Kessler states the
A report need not marshal all of the plaintiff’s proof, but
patient was aware of pacing intermittently and was
it must include the expert’s opinion on each of the
elements identified in the statute. Palacios, 46 S.W.3d at suspicious of diaphragmatic stimulation.
878. To constitute a good faith effort, the report must
inform the defendant of the specific conduct called into
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
*288 Dr. Kessler states he had previously assessed The diagnostic and corrective action eventually taken,
this and had not found it to be present. On that day, specifically the increase in the ventricular pacing
he tested the pacemaker with various outputs, the output, should have been implemented much sooner.
patient was aware of pacing at higher outputs, but the
doctor did not believe the patient had true
diaphragmatic stimulation. Causation
During a pacemaker check performed on 06/08/03, Had the corrective action described occurred, Mr.
the patient stated he still had “hiccup” feelings in his Webb would not have undergone the physical and
abdomen, and Dr. Rodgers’ office note of 05/06/04 mental problem(s) he had and could have continued his
stated the patient had some feelings of hiccup-like normal lifestyle much earlier than he did.
discomfort. Austin Heart and Dr. Kessler do not challenge the
adequacy of the report’s description of these three
On 12/16/04, Dr. Kessler references the patient’s elements; rather, they assert that it is not clear to which
ongoing anxiety, use of Xanax and his request for the doctor they apply because the report mentions five
PCP’s assistance managing the anxiety. Mr. Webb’s doctors and four health care institutions, but fails to
email to Dr. Kessler on 04/27/05 states how the reference any of the providers in the analysis of
patient’s “been suffering two years.” The patient’s standard of care, breach and causation. They urge, *289
email of 05/04/05 asks if the pacemaker lead might therefore, that Dr. Cororve’s report is essentially “no
be in the wrong place, and Dr. Rodgers responded report” as to Austin Heart and Dr. Kessler.
“no.”2 Dr. Kessler’s note of 05/27/05 states the Because Austin Heart and Dr. Kessler do not contest the
patient was complaining of palpitations but “I am adequacy of the report’s descriptions of the statutorily
reluctant to place a new lead at this time.” required elements, the only question before this Court is
whether the trial court abused its discretion in determining
Subsequent to these events, Mr. Webb continued to that the report sufficiently ties Dr. Kessler to the analysis
have palpitations and problems with diaphragmatic of the statutory elements. From the context and structure
stimulations. He was seen by various physicians, of the report, it is clear that Dr. Cororve’s listing of the
including several electrophysiological consultations. notes and records of the doctors and health care
The persistence of his symptoms significantly impaired institutions in the “Materials Reviewed” paragraph of the
his quality of life and ability to concentrate at work. report was not intended to make the doctors or health care
Because of this, he was presecribed an anti-depressant institutions themselves the focus of Dr. Cororve’s
and anti-anxiety medication. Further evaluation analysis. Thus, the focus is on the section of the report
eventually documented diaphragmatic stimulation and discussing Mr. Webb’s medical treatment and the sections
a new right ventricular lead was placed on September setting out the statutorily required elements. In the
7, 2005. The patient was subsequently discharged in medical-treatment discussion, only two doctors are
excellent condition. named—Dr. Kessler and Dr. Rodgers—and there is one
The report has three final sections setting out the three reference to unnamed “various physicians.” No doctor is
statutorily required elements: expressly mentioned in the sections addressing the
statutorily required elements.
Standard of Care Austin Heart and Dr. Kessler contend that Dr. Cororve’s
report did not adequately tie Dr. Kessler to the statutory
The standard of care in a patient such as this requires elements, citing this Court to Jernigan, 195 S.W.3d 91,
more intensive investigation as to the source of a Garcia II, 198 S.W.3d 250, Garcia I, 185 S.W.3d 70, and
patient’s symptoms and subsequent corrective actions Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d
to ameliorate the problem. Attempts at adjusting the 913 (Tex.App.-Texarkana 2006, no pet.). These cases are
ventricular pacing outputs should routinely be distinguishable.
attempted and would most likely have pinpointed the
problem much earlier. This standard of care was not In Jernigan, the plaintiff filed suit against a hospital and
met. several physicians including Dr. Jernigan. 195 S.W.3d at
92. The plaintiff served two expert reports; however, the
first failed to mention Dr. Jernigan at all, and the second
Standard of care not met
mentioned him in only one sentence: “At 4:30 p.m. [the
plaintiff’s] case was discussed with Dr. Jernigan....” Id. at
93. The supreme court concluded that the report was
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
inadequate as to Dr. Jernigan, stating that “[t]his passing concluded that Dr. Garcia had not been served with a
reference does not identify with specificity any action or report and, thus, the trial court did not have authority to
inaction by Dr. Jernigan that breached the applicable grant the extension. Id. at 74. In Garcia II, the appellate
standard of care. This perfunctory mention alleges no court addressed Dr. Garcia’s motion to dismiss. 198
misconduct whatsoever, much less discusses the required S.W.3d 250. The court concluded that “neither report
elements with ‘sufficient specificity’ to inform Dr. informed Dr. Garcia of the specific conduct he allegedly
Jernigan of ‘the conduct the plaintiff has called into performed that [the plaintiff] had called into question,”
question.’ ” Id. (quoting Palacios, 46 S.W.3d at 875). and, thus, the expert reports did not constitute a good-
faith effort to comply with the statutory requirements. Id.
In Longino, the plaintiffs sued two doctors and a hospital at 255. The court therefore held that the trial court abused
for failing to diagnose their child’s bacterial meningitis its discretion in denying Dr. Garcia’s motion to dismiss,
sooner. 183 S.W.3d at 915. The plaintiffs served a single and the cause was remanded with instructions to the trial
expert report that did not distinguish between the actions court to render judgment dismissing the claims against
of the two doctors. Id. at 917. The report stated that, “[i]n Dr. Garcia with prejudice and to award him his reasonable
consultation with Dr. James Longino,” Dr. Cameron attorney’s fees and costs of court. Id. at 256 (citing Tex.
ordered tests and admitted the plaintiffs’ child to the Civ. Prac. & Rem.Code Ann. § 74.351(b)).
hospital, and in the discussion of the standard of care, the
report stated that Unlike Jernigan, Longino, and Garcia, in this case, the
Webbs have filed a lawsuit complaining of the actions of
Dr. Cameron[’s] and Dr. Longino’s only one doctor, Dr. Kessler, and their expert report is not
care of [the plaintiffs’ child] fell one in which they mentioned him only in passing, in
below the standard of care.... Their connection only with another doctor, or not at all. Instead,
failure to either recognize or he is the subject of the majority of the report and is named
acknowledge the obvious eleven times.3 The first paragraph, which states that any
symptoms of fever, altered mental reference to Dr. Kessler refers to him individually and to
status, and neck pain; to perform a his employer, Austin Heart, may be fairly read as
timely diagnostic lumbar puncture; signaling that the report is about Dr. Kessler. In addition,
and to aggressively treat [the Dr. Cororve’s description of Mr. Webb’s medical history
child’s] bacterial meningitis with covers five visits with and one e-mail to Dr. Kessler
an appropriate combination of spanning two and one half years in which Dr. Kessler
antibiotics led to an unnecessary noted the following: “possibly diaphragmatic stimulation
exacerbation of his symptoms. intermittently,” a second complaint about abdominal
twitching, Mr. Webb’s awareness of pacing intermittently
Id. The court concluded that the report contained “no and suspicion of diaphragmatic stimulation, Mr. Webb’s
specific information concerning how Longino breached awareness of pacing at higher outputs, disbelief that the
the standard of care apart from Cameron’s conduct,” and patient had true diaphragmatic stimulation, Mr. Webb’s
therefore did not demonstrate a good-faith effort as to ongoing anxiety and request for assistance managing the
Longino. Id. anxiety, and Mr. Webb’s complaining of palpitations, but
“I am reluctant to place a new lead at this time.” The
In the Garcia cases, the plaintiff filed suit against three report’s two references to comments from Dr. Rodgers—a
doctors, two nurses, and a hospital. Garcia II, 198 S.W.3d notation that the patient had some feelings of hiccup-like
at 252. The plaintiff served two expert reports, but neither discomfort and a response of “no” to Mr. Webb’s e-mail
report mentioned Dr. Garcia at *290 all. Id. Dr. Garcia asking if the lead might be in the wrong place—as well as
filed a motion to dismiss the claims against him asserting the single reference to unnamed “various physicians,” do
that he had not been “served” with a report. Id. The trial not obscure the report’s focus on the actions of Dr.
court initially granted the motion, but later dissolved its Kessler. In addition, unlike Longino, the actions of the
order and granted the plaintiff a 30–day extension to cure two doctors named are distinguishable.
any deficiencies in the report. Id. In Garcia I, the
appellate court addressed the extension, distinguishing Dr. Cororve’s analysis of the statutory elements states that
situations in which a deficient report is filed from those in the standard of care required “more intensive
which no report is filed—a trial court has discretion to investigation,” “[a]ttempts at adjusting the ventricular
grant a 30–day extension in the former situation, but not pacing outputs should routinely be attempted,” and “[t]he
the latter. 185 S.W.3d at 73. Because the reports served diagnostic and corrective *291 action eventually taken,
by the plaintiff focused on the acts of other defendants specifically the increase in the ventricular pacing output,
and failed to mention Dr. Garcia at all, the court should have been implemented much sooner.” In the
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
discussion of Mr. Webb’s medical history earlier in the prejudice and has no discretion to grant a 30–day
report, it appears that both Dr. Kessler and Dr. Rodgers extension. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)-
investigated Mr. Webb’s symptoms; however, only Dr. (c); Garcia I, 185 S.W.3d at 73. Yet, if the report is
Kessler is named in connection with testing and making merely “deficient” (and timely filed, as here), the trial
adjustments to the pacemaker. In addition, Dr. Kessler’s court is not required to immediately dismiss and has
notations contradict what Dr. Cororve states is the discretion to grant a 30–day extension to cure the
standard of care. According to Dr. Cororve’s report, Dr. deficiencies. Tex. Civ. Prac. & Rem.Code Ann. §
Kessler “did not believe the patient had true 74.351(c).
diaphragmatic stimulation” however, “[f]urther evaluation
eventually documented diaphragmatic stimulation and a Austin Heart and Dr. Kessler elected to move for
new right ventricular lead was placed.” Under “Standard dismissal solely on the ground that the report was “no
of Care,” Dr. Cororve states that “[a]ttempts at adjusting report.”5 Having concluded that the report is “some report
the ventricular pacing outputs should routinely be as to Dr. Kessler (among others),” the majority has
attempted and would most likely have pinpointed the rejected the sole ground for dismissal. As such, the
problem much earlier.” After reviewing the report in its appropriate remedy would be a remand to the trial court
entirety, I cannot conclude that the trial court abused its for the cause to proceed without the need for an
discretion in determining that the report represents a extension.
good-faith effort to address the actions of Dr. Kessler.
The Remand CONCLUSION
The majority concludes that Dr. Cororve’s report is In summary, I disagree with the majority’s holding that
deficient and remands this cause to the district court to the trial court abused its *292 discretion in finding that
consider whether a 30–day extension is appropriate to the expert report proffered by the Webbs adequately links
address the deficiency. This remedy is inappropriate Dr. Kessler to the elements of standard of care, breach of
because it provides relief to Austin Heart and Dr. Kessler the standard, and causation. I would affirm the order of
on a ground not raised in the trial court or on appeal. See the trial court. I further disagree with the remedy
Tex.R.App. P. 33.1. fashioned by the majority because it grants relief to
Austin Heart and Dr. Kessler on a ground that they did
Austin Heart and Dr. Kessler challenged Dr. Cororve’s not raise in the trial court or on appeal. For these reasons,
report solely on the ground that it was “no report,” not I respectfully dissent.
that it was a “deficient report.”4 The difference between
the two is strategically significant. If the report is “no
report,” then the trial court must dismiss the case with
Footnotes
1 These included records of five physicians, three hospitals, and a clinic.
2 In their brief, the Webbs state that the email response was actually by Dr. Kessler rather than Dr. Rodgers and the reference in
the report is a typographical error. However, there is no evidence in the record on this point other than Dr. Cororve’s report.
3 The report does not mention who was responsible for the diagnosis of diaphragmatic stimulation or placing a new right
ventricular lead.
4 Austin Heart, P.A. is alleged to be vicariously liable for the conduct of Dr. Kessler. Dr. Cororve’s report notes at the outset that
“[a]ny reference in this report to David J. Kessler, M.D. refers to Dr. Kessler individually, and his employer, Austin Heart,
P.A.” Consequently, for the purposes of this appeal, the report must link Dr. Cororve’s opinions to the actions of Dr. Kessler.
5 The Webbs suggest that a tally of the number of times a physician is mentioned in a report is significant. They note that Dr.
Kessler’s name appears eleven times in Dr. Cororve’s report (as opposed to three times for Dr. Rodgers and once for “various
physicians”). They argue that this could lead to a reasonable conclusion that the report must be about Dr. Kessler and his
actions. However, we are not persuaded that such a tally is relevant to the analysis. A physician may be named in a report any
number of times simply because he was intimately involved in the treatment of a patient, yet the complaint may be with the
conduct of a physician who saw the patient only once and is mentioned in the report only once. The number of times a physician
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
is mentioned in a report, by itself, has little bearing on whether the opinions expressed in the report concern that physician.
What matters, of course, is how the physician is mentioned and what the report communicates about that physician.
6 It is not clear what the reference to “various physicians” and “electrophysiological consultations” in the report means or is
intended to communicate.
7 Jernigan interpreted a prior version of the statute that had a different standard for granting an extension to cure. Under the
previous iteration of the statute, the trial court could grant an extension only if it found that the failure to comply with the statute
was “not intentional or the result of conscious indifference but was the result of an accident or mistake.” See former
Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g) repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. The
Jernigan opinion does not discuss the application of this standard, the trial court’s failure to grant an extension under this
standard, or whether the trial court could have considered such an extension if it had made such findings. Thus, the Jernigan
opinion is distinguishable from this case on this basis alone. However, even if the trial court’s discretion to dismiss claims under
either version of the statute is viewed as the same, the expert report in Jernigan would still constitute “no report” for the
purposes of dismissal under either version of the statute.
8 The dissent argues that by remanding to allow the trial court to consider whether a section 74.351(c) extension is appropriate we
are granting Dr. Kessler and Austin Heart more relief than they requested or are entitled to. The dissent’s theory is that there is a
distinction under section 74.351 between (1) seeking dismissal on the basis that no report was served and (2) seeking dismissal
on the basis that a report was served, but it does not meet the requirements of the statute and is deficient. According to the
dissent, if a defendant seeks dismissal only on the basis that no report was served, then dismissal is not appropriate if the court
finds that a report, no matter how deficient, was served. There are two problems with this theory.
First, the dismissal mechanism of section 74.351 does not work the way the dissent suggests. Under section 74.351, a
claimant must serve an “expert report,” as defined in the statute, or be subject to dismissal. If a claimant does not serve a
report that complies with the statutory requirements, then the claimant has not served an “expert report” as defined in the
statute. Whether a claimant actually fails to serve a report at all or serves a deficient report the effect under section 74.351(b)
is the same—the claimant has failed to serve the required “expert report” and dismissal is the remedy. However, section
74.351(c) provides a potential cure period for situations where the claimant has served a report, but the report does not
constitute the required “expert report” because “elements of the report are found deficient.” The claimant then has an
opportunity to fix the defect in the report that was served. If there is a failure to cure the defect by the extended deadline, then
dismissal is mandatory because the claimant has failed to serve an “expert report” as defined in the statute.
While section 74.351(b) does not distinguish between a complete failure to serve a report and the failure to serve a complying
report, there is a distinction between the two for the purposes of 74.351(c). When a claimant fails to serve a report at all,
section 74.351(c) does not provide a basis for the trial court to grant any extension of the deadline for serving a report.
Consequently, dismissal is mandatory without any cure period. When a claimant serves a report, but it is deficient, section
74.351(c) gives the trial court the discretion to grant an extension to cure. Regardless of whether a claimant has failed to serve
a report at all or has served a deficient report, the statutory basis of the motion to dismiss by a defendant is the same—the
claimant has failed to serve an “expert report” as required by section 74.351(b). The fact that the claimant who files a
deficient report may request and receive an extension of time to cure the deficiencies does not alter the nature of the
defendant’s motion to dismiss. The motion to dismiss is on the ground that the plaintiff has failed to serve an “expert report.”
Second, the defendants in this case did request dismissal on the basis that, while the Webbs had served a report that
mentioned Dr. Kessler, the report “fails to address the standard of care applicable to Dr. Kessler, the breach of the standard or
any alleged causal link.” This is an allegation that the report served was deficient. The defendants acknowledge that a report
was served and that the report addresses conduct of Dr. Kessler, but they claim it is deficient in failing to address the
statutorily required elements. They are aware that section 74.351(c) grants the trial court some discretion in allowing an
extension to cure certain deficient reports. But, they argue that the report in this case is so deficient that it should be viewed as
“no report,” requiring dismissal rather than remand for consideration of an extension period. By alleging that the deficiency is
severe enough to constitute “no report” the defendants are trying to avoid the possibility of a cure period. They are not
altering their claim that the report they received is deficient and will require dismissal if not corrected.
We have concluded that the report is deficient, but not so deficient as to constitute “no report.” Therefore, our options are (1)
reverse the trial court order denying the motion to dismiss and render judgment of dismissal or (2) reverse the trial court order
and remand for consideration of whether an extension should be granted to give the plaintiffs an opportunity to attempt to
cure. Remanding for the case to proceed on its merits, even though we agree with the appellants that the report is deficient, is
not an option.
1 While Dr. Cororve’s report explicitly mentions Austin Heart, the Dallas court of appeals has held that when a defendant is only
alleged to be vicariously liable for the negligence of another defendant, the expert report need not specifically name or address
the negligence of the defendant to whom liability will be imputed. University of Tex. Southwestern Med. Ctr. v. Dale, 188
S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.). What is relevant is that the report specifically identify the person whose
conduct the plaintiff is calling into question and show how that person’s conduct constituted negligence. Id.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)
2 Earlier in the report, under the materials reviewed section, Dr. Cororve refers to an e-mail from Mr. Webb to Dr. Kessler dated
05/04/05. In their brief on appeal, the Webbs assert that the report erroneously attributes the response to that e-mail as being
from Dr. Rodgers when it was actually from Dr. Kessler. There is, however, no evidence in the record indicating who sent the e-
mail.
3 While it is true that the number of times a physician is named, by itself, does not indicate the report complains of that
physician’s conduct, it is more likely that a report discussing mainly the conduct of one physician is about the conduct of that
physician.
4 The motion to dismiss clearly distinguishes the two scenarios, stating:
This is not an occasion in which a report was served on Austin Heart, P.A. or David J. Kessler, M.D. wherein the expert
failed to address a requisite element, such as the standard of care, the alleged breach of the standard, or the alleged causal
link, thus making the report deficient. Here, the report constitutes no report at all.
Thus, Austin Heart and Dr. Kessler did not, as the majority contends, “argue that the report in this case is so deficient that it
should be viewed as ‘no report.’ ”
5 The remand fashioned by the majority grants Austin Heart and Dr. Kessler relief not requested because the majority treats their
motion to dismiss as if it were based on two grounds: (1) that the report was “no report” and (2) that even if the report was some
report that it was deficient. Austin Heart’s and Dr. Kessler’s motion, however, was based solely on the first ground. Without a
motion to dismiss based on deficiency, there is no basis for a finding of deficiency and no need for a 30–day extension “to cure
the deficiency.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11
Bogar v. Esparza, 257 S.W.3d 354 (2008)
Diane Henson, J., filed dissenting opinion on denial of
motion for en banc reconsideration.
257 S.W.3d 354
Court of Appeals of Texas,
Austin.
Attorneys and Law Firms
Mark D. BOGAR, M.D., Appellant
*357 Carla Garcia Connolly, Connolly & Castagna,
v.
L.L.P., Austin, for Appellant.
Dolores G. ESPARZA, Individually and as
Administrator of the Estate of Katherine G. Robert C. Alden, Don L. Davis, Byrd, Davis & Furman
Guerrero; Deceased; Fernando Guerrero; Sofia G. LLP, Austin, Stephen B. Pershing, Center for
Butschy; Gilberto Guerrero; Antonio Guerrero; Constitutional Litigation, P.C., Washington, DC, for
Rosie G. Garza; Benito Guerrero; Josey G. Selvera; Appellees.
and Frances G. Faz, Appellees.
Before Justices PATTERSON, PEMBERTON and
No. 03–07–00037–CV. | May 16, 2008. WALDROP.
Synopsis
Background: Survivors of deceased patient brought
medical malpractice action against patient’s physician and
hospital after patient died from post-surgery OPINION
pharmaceutical drug overdose. Physician and hospital
filed a joint motion for dismissal and attorney fees based BOB PEMBERTON, Justice.
on survivors’ alleged failure to file an expert report that
complied with statutory requirements. The Probate Court We withdraw our opinion, dissenting opinion and
No. 1, Travis County, Guy S. Herman, J., denied the judgment dated June 28, 2007 and substitute the
motion for dismissal. Physician appealed. following in its stead. We overrule the Appellees’ Motion
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