Ramarao Denduluri, M.D. and Houston Urology Parters v. Maria Nancy Bravo, Individually and as Representaive of the Estate of Jose Antonio Quintero A/K/A Hector Rodriguez

Opinion issued June 15, 2023

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-22-00230-CV

———————————

RAMARAO DENDULURI, M.D. AND HOUSTON UROLOGY PARTNERS,

Appellants

V.

MARIA NANCY BRAVO, INDIVIDUALLY AND AS REPRESENTATIVE

OF THE ESTATE OF JOSE ANTONIO QUINTERO A/K/A HECTOR

RODRIGUEZ, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2021-36624

MEMORANDUM OPINION

Appellee Maria Nancy Bravo, individually and as representative of the estate

of Jose Antonio Quintero, her deceased husband, asserts health care liability claims

against appellants Ramarao Denduluri, M.D. and Houston Urology Partners under

Chapter 74 of the Civil Practices and Remedies Code. Appellee alleges that

appellants failed to properly diagnose, treat, or refer Quintero for cancer treatment

and that he died because of the treatment delay. Appellants contend the trial court

erred by denying their motion to dismiss because appellee’s statutorily required

expert report was deficient. Because the report was not deficient, we affirm the trial

court’s ruling.

Background

In May 2019, Quintero went to West Calcasieu Hospital in Louisiana for

scrotal pain. Tests showed a right hydrocele (swelling of the testicle due to fluid

accumulation) and abnormalities of the right testicle and right spermatic cord of

uncertain cause. Scans also showed that both of Quintero’s lungs had pulmonary

nodules of unknown origin.

A month later, Quintero saw urologist Ramarao Denduluri. Dr. Denduluri’s

records note the history of the ultrasound and CT scans and the finding of a right

hydrocele. On June 19, Dr. Denduluri operated to remove the hydrocele. On June

24, Quintero developed a hematoma that Dr. Denduluri managed with antibiotics

and pain medications. Dr. Dendurluri continued to provide wound care in June, July,

and August 2019.

Dr. Denduluri obtained a scrotal ultrasound on September 3, 2019. The

ultrasound report described abnormal masses in both of Quintero’s testicles. On

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September 26, Dr. Denduluri recommended surgical evacuation of the right testicle

hematoma with a possible removal of the testicle. The hematoma and testicle

removals were done on October 1. The pathology report on the testicle described a

mixed germ cell tumor that was 35% embryonal carcinoma with components of yolk

sac tumor and choriocarcinoma. Lymphovascular invasion was present, meaning the

cancer had invaded the blood vessels and lymphatic system or both. The

combination of embryonal cancer and lymphovascular invasion were signs of an

aggressive testicular cancer at high risk for metastasis.

By mid-November 2019, Quintero had already had three rounds of

chemotherapy. In late November, he had surgery to remove his right spermatic cord

and a mass on his pubic bone. Dr. Denduluri noted that a recent CT scan after the

chemotherapy treatments had shown reduction in the size of the pulmonary and

retroperitoneal lymph nodes. Quintero died in August 2020, allegedly from

metastatic testicular cancer.

Appellee sued Dr. Denduluri and his practice, Houston Urology Partners,

alleging professional negligence in failing to properly treat, test, and diagnose

Quintero, ultimately leading to his death. Because the allegations against appellants

are health care liability claims, appellee had to provide a proper expert report. TEX.

CIV. PRAC. & REM. CODE §74.351(a). Appellee filed an initial report from urologist

Douglas Dow, M.D.

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Appellants objected to the sufficiency of Dr. Dow’s report, arguing that:

(1) his causation opinions were conclusory, based on speculation and assumptions

without a factual basis, (2) nothing in his report or curriculum vitae showed his

qualification to opine on whether an earlier diagnosis of Quintero’s cancer would

have probably changed the treatment or outcome of the cancer; and (3) the report

provided no basis for the trial court to find appellee’s claims meritorious. See id.

The trial court granted appellee a 30-day extension under Section 74.351(c) to

supplement the report with additional details and support for Dr. Dow’s opinions.

After appellee filed Dr. Dow’s supplemental report, appellants filed a second

motion to dismiss. They argued that the report was still insufficient because Dr. Dow

had not provided any factual basis or explanation for his causation opinions, which,

in appellants’ view, assumed that the testicular cancer that had metastasized to

Quintero’s lungs in May 2019 was at a lower stage and more easily treatable in June

than in October. Appellants also objected to the lack of any information in the

supplemental report showing that Dr. Dow was qualified to determine the stage of

the cancer in June 2019, or whether a diagnosis then would have resulted in different

and more successful treatment. The trial court denied the motion to dismiss.

Standard of Review

We review a trial court’s denial of a Chapter 74 motion to dismiss for an abuse

of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

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875 (Tex. 2001). A trial court abuses its discretion when it acts in an arbitrary or

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

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial court has

no discretion to determine the law or apply the law to the facts incorrectly. Walker

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In determining whether a trial court

abused its discretion, we may not substitute our own judgment for the trial court’s

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

Applicable Law

A trial court must grant a defendant’s motion to dismiss a health care liability

suit with prejudice unless the plaintiff serves a timely expert report within 120 days

of filing the original petition. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (b).

The report must represent a good faith effort to comply with the statutory

requirements for an expert report. See id. § 74.351(l).

An expert report is defined as a written report by an expert that provides a fair

summary of the expert’s opinions about (1) the applicable standard of care; (2) the

way the care provided failed to meet that standard; and (3) the causal relationship

between that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6);

see also Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. An expert report is a

low threshold that a person bringing a claim against a health care provider must cross

merely to show that her claim is not frivolous. See Loaisiga v. Cerda, 379 S.W.3d

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248, 264 (Tex. 2012) (Hecht, J., concurring). The report need not contain all the

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

in the statute. See Palacios, 46 S.W.3d at 878; Kelly v. Rendon, 255 S.W.3d 665,

672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The plaintiff need not present

evidence in the report as if she was litigating the merits at this preliminary stage of

the lawsuit. Palacios, 46 S.W.3d at 879. Instead, the report must provide only

enough information to: (1) inform the defendant of the specific conduct the plaintiff

has questioned; and (2) provide a basis for the trial court to conclude that the claims

have merit. Id.

Expert Report

Appellants contend the denial of their motion to dismiss was an abuse of

discretion because the trial court misapplied the facts in the expert reports and

incorrectly found that Dr. Dow was qualified to be an expert and that the reports

were sufficient.

A. Causation and Sufficiency

Appellants argue that Dr. Dow’s reports do not satisfy Section 74.351’s

requirements because they contain conclusory statements that fail to explain how

and why a breach of the standard of care caused the injury. Appellee responds that

Dr. Dow’s reports are sufficient because they make a good faith effort to comply

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with the statute. Because appellants’ first and third issues overlap, we address them

together.

Causation requires that the expert report explain how and why the alleged

breach caused the plaintiff’s injury. Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex.

2010). An expert report is sufficient if it “provides a fair summary of the expert’s

opinions . . . regarding applicable standards of care, the manner in which the care

rendered . . . failed to meet the standards, and the causal relationship between that

failure and the injury.” TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A trial court

only needs to find that the report constitutes a “good faith effort” to comply with the

statutory requirements. Id. § 74.351(l). An expert report shows a “good faith effort”

when it “(1) inform[s] the defendant of the specific conduct called into question and

(2) provid[es] a basis for the trial court to conclude the claims have merit.” Baty v.

Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018). “[A] report that merely states the

expert’s conclusions about the standard of care, breach, and causation,” without

stating the underlying facts on which the inference is based, is insufficient. See

Palacios, 46 S.W.3d at 879; see also Abshire v. Christus Health Se. Tex., 563 S.W.3d

219, 224 (Tex. 2018) (“the expert must explain the basis of his statements and link

conclusions to specific facts.”); Quintero v. Hous. Methodist Hosp., No.

01-14-00448-CV, 2015 WL 831955, at *3 (Tex. App.—Houston [1st Dist.] Feb. 26,

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205, pet. denied) (mem. op.). We consider both of Dr. Dow’s reports to determine

whether they represent a good faith effort to comply with these requirements.

In articulating the standard of care and breach, “an expert report must set forth

specific information about what the defendant should have done differently”; that is,

“what care was expected, but not given.” Abshire, 563 S.W.3d at 226 (internal

quotations omitted). Dr. Dow’s reports address the standard of care by remarking

that Dr. Denduluri made no notes of Quintero’s scrotal ultrasound or CT scan reports

and stating that the failure to assess the abnormal findings from these diagnostics

breached the standard of care. Dr. Dow highlights that Dr. Denduluri’s notes lacked

orders, comments, or review of Quintero’s continued complaints involving his

testicle and the testicular mass. Dr. Dow explains that this delay to properly review

and consider the diagnostic testing, combined with the failure to order additional

testing, delayed Quintero’s cancer diagnosis and treatment.

According to the reports, the standard of care required review of the diagnostic

testing, which revealed an abnormally appearing testicle and spermatic chord, and

further investigation, including a scrotal physical exam and additional imaging of

the scrotal area. See Abshire, 563 S.W.3d at 224 (the court’s role at this stage is not

to determine the report’s credibility); see also Miller v. JSC Lake Highlands

Operations, 536 S.W.3d 510, 515 (Tex. 2017) (per curiam) (at “this preliminary

stage, whether those standards appear reasonable is not relevant to the analysis of

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whether the expert’s opinion constitutes a good-faith effort.”). Dr. Dow observes

that Dr. Denduluri made few to no notes about Quintero’s initial testing in Louisiana.

No notes indicate that when Quintero underwent the testicular surgery recommended

by Dr. Denduluri, Dr. Denduluri evaluated the abnormal testicle or spermatic chord

while he was already removing the right hydrocele located inside the sac surrounding

the testicle. Quintero saw Dr. Denduluri five times after the surgery before additional

ultrasound imaging was ordered, revealing the testicular mass. Dr. Denduluri did not

mention the testicular mass when reviewing the ultrasound report, nor did he order

testing of the mass. Thus, the reports identify specific actions that should have been

taken but were not. See Palacios, 46 S.W.3d at 880.

The reports also discuss how the testing done in May 2019 did not note a

change in Quintero’s retroperitoneal lymph nodes, which are commonly affected by

testicular cancer. In September 2019, Quintero underwent surgery to remove his

right testicle. Testing revealed that there was lymphovascular invasion—a sign of a

more aggressive cancer. In November 2019, Dr. Denduluri noted that the

retroperitoneal lymph nodes had changed in size, reflecting a change in the stage of

Quintero’s cancer. The reports then connect how early diagnosis of testicular cancer

can result in a better chance of survival, and that once the cancer expands over the

local lymph nodes, a patient’s survival rate decreases significantly.

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Considering these aspects of the Dr. Dow’s reports, we conclude the reports

inform appellants of the specific conduct that appellee has called into question, the

standards of care that should have been followed, and what appellants should have

done. See Abshire, 563 S.W.3d at 225–26 (report adequately links conclusion with

underlying facts by asserting that failing to properly assess medical history and

physical conditions led to a delay in diagnosis, proper treatment, and to the alleged

injury); Harris Cnty. Hosp. Dist. v. Garrett, 232 S.W.3d 170, 179 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). Although the reports do not identify specific

testing that should have been done or notes that should have been made, such detail

“is simply not required at this stage of the proceedings.” Baty, 543 S.W.3d at 697.

For health care liability claims based on the progression of undiagnosed and

untreated cancer, an expert report must contain information about (1) the effect of

cancer development over time on the patient’s prognosis and (2) the potential

effectiveness of treatments for the patient’s type of cancer. Kapoor v. Estate of

Klovenski, No. 14-11-00118-CV, 2012 WL 8017139, at *7 (Tex. App.—Houston

[14th Dist.] Feb. 16, 2012, no pet.) (mem. op.) (Kapoor II); see also Garrett, 232

S.W.3d at 179–81. The report must explain how and why the physician’s breach of

the standard of care proximately caused the plaintiff’s injury. Columbia Valley

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).

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Causation consists of two components: (1) cause-in-fact and

(2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A physician’s

breach was a cause-in-fact of the plaintiff’s injury if the breach was a substantial

factor in bringing about the harm, and without the breach the harm would not have

occurred. Id. Even if the harm would not have occurred without the physician’s

breach, “the connection between the defendant and the plaintiff's injuries simply may

be too attenuated” for the breach to qualify as a substantial factor. Allways Auto Grp.,

Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (internal quotations omitted). A

breach is not a substantial factor if it “does no more than furnish the condition that

makes the plaintiff’s injury possible.” Id. A physician’s breach is a foreseeable cause

of the plaintiff’s injury if a physician of ordinary intelligence would have anticipated

the danger caused by the negligent act or omission. Puppala v. Perry, 564 S.W.3d

190, 197 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

Dr. Dow opines in his reports that Dr. Denduluri’s breach of the standard of

care allowed Quintero’s cancer to advance. See Abshire, 563 S.W.3d at 224–25

(expert report showed causal link between failure to properly assess medical history

and physical conditions, delay in diagnosis and proper treatment, and alleged injury);

see also Garrett, 232 S.W.3d at 181. Dr. Dow notes that Quintero continued to

complain to Dr. Denduluri, but Dr. Denduluri did not order further testing or

properly investigate the complaints as required by the standard of care. Dr. Dow

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states that testicular cancer doubles between 10 and 30 days and that lymph node

spread is an indicator of Stage III cancer with an “extremely” decreased survival

rate. Dr. Dow notes how further investigation into Quintero’s condition, at an earlier

time, is imperative with the type of testicular cancer Quintero had. He highlights that

testicular cancer tends to have a 95 to 96 percent survival rate before spreading to

the lymph nodes. And he explains that the failure to timely investigate and diagnosis

Quintero’s condition led to a failure to refer him to a specialized doctor, such as an

oncologist or pulmonologist, which led to a delay in the use of multimodal treatment

(therapy combining more than one method of treatment such as, surgery,

radiotherapy, and chemotherapy) at an earlier stage. Dr. Dow does not opine that

Quintero would have no risk of death from the cancer in the absence of Dr.

Denduluri’s breaches of the standard of care, only that the failure to meet the

standard of care increased that risk because the cancer progressed to Stage III. Cf.

Wright, 79 S.W.3d at 53 (reasoning that expert report was conclusory when it stated

that plaintiff might have had “the possibility of a better outcome” without explaining

how defendant’s conduct injured plaintiff).

Dr. Dow’s reports are like the expert report in Abshire. 563 S.W.3d at 221.

There, the patient complained of back and chest pain that ultimately resulted in the

patient becoming paraplegic. Id. at 221–22. The medical staff failed to (1) note that

the patient suffered from brittle bone disease, which was relevant medical

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information; (2) properly assess the patient based on her medical history, ignoring

her medical condition and complaints; and (3) order the proper imaging tests, such

as a CT or MRI, to investigate her complaints. Id. at 221–23. The report concluded

that the standard of care was breached by failing to properly assess medical history

and physical conditions leading to a delay in diagnosis and proper treatment that

resulted in the patient’s alleged injury. Id. at 224–25.

Miller is also analogous. 536 S.W.3d at 515. In that case, the patient

swallowed her dental bridge and died shortly after it was removed. Id. at 512.

Although x-rays showed the bridge’s presence in the patient’s trachea when she

began showing signs of chest congestion, the reviewing physician failed to notice or

identify the problem. Id. The expert reports concluded that the physician breached

the standard of care by failing to detect the dental bridge in the x-rays and that the

delay in removing the bridge caused a series of pulmonary issues resulting in the

patient’s death. Id. at 514. Both Abshire and Miller held that their respective reports

sufficiently addressed how the breach of the standard of care resulted in an injury to

the patient. Abshire, 563 S.W.3d at 227; Miller, 536 S.W.3d at 515.

We must remain mindful that expert-report challenges are made at an early,

pre-discovery stage in the litigation, not when the merits of the health care liability

claim are being presented to the fact finder to determine liability. Puppala, 564

S.W.3d at 198. To provide more than a conclusory statement on causation, an expert

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report must include an “explanation tying the conclusion to the facts” and showing

“how and why the breach caused the injury based on the facts presented.” Jelinek,

328 S.W.3d at 539–40; Abshire, 563 S.W.3d at 226 (“the court’s role is to determine

whether the expert has explained how the negligent conduct caused the injury.”).

The expert report need only provide some basis that the physician’s act or omission

proximately caused injury. Owens v. Handyside, 478 S.W.3d 172, 187–88 (Tex.

App.—Houston [1st Dist.] 2015, pet. denied). Dr. Dow’s reports assert that if further

investigation, testing, and diagnosis had been done earlier, Quintero’s cancer

treatment would have begun before his cancer advanced to Stage III, involved more

specialists, and used multimodal treatment at an earlier time to increase the chance

for success. An expert may show causation by explaining a chain of events that

begins with the defendant physician’s negligence and ends in injury to the plaintiff.

See Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *16 (Tex.

App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); Owens, 478 S.W.3d

at 189. Like Abshire and Miller, Dr. Dow has laid out a timeline of events of when

Quintero was under Dr. Denduluri’s care and how the breach of the standard of care

resulted in Quintero’s injury. The reports accordingly inform appellants of the

specific conduct that appellee has questioned and provide a basis for the trial court

to conclude that the claims have merit. See TEX. CIV. PRAC. & REM. CODE

§ 74.351(r)(6); Palacios, 46 S.W.3d at 879–880.

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Because the reports sufficiently identify the applicable standard of care and

link Dr. Denduluri’s alleged breaches with Quintero’s injury, we overrule

appellants’ claims that the expert reports were conclusory and insufficient.

B. Dr. Dow’s Qualifications

Appellants argue that Dr. Dow is not qualified because his reports do not show

any experience or training in treating testicular cancer, determining the stages of

testicular cancer, or determining whether an earlier diagnosis would have probably

changed the patient’s treatment and outcome. Appellee responds that while Dr. Dow

is not an oncologist, his experience as a urologist, like Dr. Denduluri, makes him

qualified here.

An expert must establish that she is qualified to provide a report addressing

accepted standards of care, causation, or both. See TEX. CIV. PRAC. & REM. CODE

§ 74.351(r)(5)(A), (C). Qualifications must appear in the expert report and cannot be

inferred. See Olveda v. Sepulveda, 141 S.W.3d 679, 683 (Tex. App.—San Antonio

2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App.—Dallas 2003,

pet. denied). Accordingly, analysis of an expert’s qualifications under Section

74.351 is limited to the four corners of the expert’s report and curriculum vitae.

Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—

Houston [14th Dist.] 2007, no pet.) (citing Palacios, 46 S.W.3d at 878).

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To qualify as an expert who can provide opinion testimony about the causal

relationship between the injury, harm, or damages claimed and the alleged departure

from the applicable standard of care in a health care liability case, the expert must

be (1) a physician and (2) “otherwise qualified to render opinions on that causal

relationship under the Texas Rules of Evidence.” See TEX. CIV. PRAC. & REM. CODE

§§ 74.351(r)(5)(C), 74.403(a); Thomas v. Alford, 230 S.W.3d 853, 857 (Tex. App.—

Houston [14th Dist.] 2007, no pet.).

When a physician’s failure to diagnose is alleged to have harmed a patient, an

expert testifying on causation must be qualified to opine on the effect of a timely

diagnosis and treatment on the outcome. See Broders v. Heise, 924 S.W.2d 148, 153

(Tex. 1996) (emergency physician was qualified to testify at trial that the standard

of care required diagnosis of head injury and referral of patient for neurological

treatment, but not as to potential effectiveness of proposed treatments for the

undiagnosed neurological condition); Thomas, 230 S.W.3d at 859–60 (radiologist

was not qualified to offer expert opinion addressing whether delayed cancer

diagnosis affected patient’s prognosis); cf. Mosely v. Mundine, 249 S.W.3d 775,

779–80 (Tex. App.—Dallas 2008, no pet.) (emergency room physician was

qualified to opine because proffered expert opinion “related to the ability of an

emergency room physician to interpret a routine chest x-ray . . . not the diagnosis

and treatment for cancer”). Under the Texas Rules of Evidence, an expert witness

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may be qualified based on knowledge, skill, experience, training, or education to

testify on scientific, technical, or other specialized subjects if the testimony would

“assist the trier of fact” in understanding the evidence or determining a fact issue.

TEX. R. EVID. 702; see also Burrell, 230 S.W.3d at 762. Thus, a plaintiff must show

that the expert has “knowledge, skill, experience, training, or education” about the

specific issue before the court that would qualify the expert to give an opinion on

that subject. Kuhn v. Sam, No. 01-20-00260-CV, 2021 WL 3359171, at *16 (Tex.

App.—Houston [1st Dist.] Aug. 3, 2021, no pet.) (mem. op.) (citing Broders, 924

S.W.2d at 153)).

Not every physician is qualified to testify on every medical question. See

Broders, 924 S.W.2d at 152–53. But a physician need not practice in the particular

medical field about which they are testifying if they can show that they have

knowledge, skill, experience, training, or education about the specific issue before

the court that would qualify them to give an opinion on that subject. Cornejo v.

Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

Appellants argue that because this case involves the field of oncology, and

nothing in Dr. Dow’s reports indicate that he is board certified in oncology or has

knowledge or experience in determining the stages of testicular cancer, treating

testicular cancer, or determining whether an earlier diagnosis would have changed a

patient’s treatment and prognosis, he is not qualified to submit an expert report.

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Appellants note that while Dr. Dow mentions in his supplemental report that during

his residency in the 1990s he spent one year treating patients with urologic cancers

and has treated 20 patients with testicular cancer, this does not indicate that he has

treated patients for cancer.

Appellants compare this case to Kapoor v. Estate of Klovenski, where the

appellate court found that the expert, a physician specializing in family and

emergency medicine, had identified no experience or credentials to qualify her to

testify on treatments that would have been available if the patient’s cancer was

diagnosed earlier; and, whether earlier treatment would have resulted in a more

favorable prognosis. No. 14-09-00963-CV, 2010 WL 3721866, at *2–3 (Tex.

App.—Houston [14th Dist.] Sep. 23, 2010, no pet.) (mem. op.) (Kapoor I).

Appellee argues that Gunderson v. Wade is more instructive. See No.

14-20-00795-CV, 2022 WL 456720 (Tex. App.—Houston [14th Dist.] Feb. 15,

2022, no pet.) (mem. op.). In Gunderson, the plaintiff’s expert was an

ophthalmologist who opined on the causal link between an alleged failure to perform

certain eye examinations and the delayed discovery of the patient’s cancer diagnosis

of ganglioglioma. Id. at *3. The Gunderson court held that based on the expert’s

“education and experience in the field of ophthalmology, the trial court reasonably

could have determined that he was qualified to opine on the specific issue before the

court. Id. at *6.

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There is not a precise formula for qualifying a doctor as a medical expert, so

we begin with a review of Dr. Dow’s curriculum vitae. See, e.g., Benge v. Williams,

548 S.W.3d 466, 471 (Tex. 2018). Dr. Dow is a urologic surgeon who graduated

from the University of Texas Medical Branch and completed his residency at the

University of South Florida Moffitt Cancer Center. He is a Diplomate of the

American Board of Urology and a Fellow of the American College of Surgery who

has been practicing for over 20 years. He is currently a urologist with the Memorial

Hermann Medical Group Urology Associates.

Further describing his qualifications in his supplemental expert report, Dr.

Dow states:

Included in my residency was spending one year at The H. Lee Moffitt

Cancer Center in Tampa, Florida, the only National Cancer

Institute-designated Comprehensive Cancer Center in Florida[.] During

my time at Moffitt, I spent the great majority of my time evaluating and

treating (both surgically and medically) exclusively urologic oncology

patients. I was involved in the care of hundreds of urologic oncology

patients while at Moffitt many of whom had testicular cancer.

Additionally, I have treated more than 20 patients with testicular cancer

in my practice and have performed over 2000 surgeries of the scrotum

and its contents. . . .

The standard of care for a Urologist requires that the physician gather

an appropriate history, perform a thorough of examination of the

patient’s genitalia, review the diagnostic studies; the images, reports

and the laboratory studies and order further testing as deemed

appropriate. . . .

The standard of care for a urologist requires that the physician

investigate and diagnose the condition of a patient’s genitals. This

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includes a scrotal physical exam and ordering and reviewing the

appropriate diagnostic tests as needed. . . .

As a Urologist [who] completed a six[-]year residency, four of which

were Urology specific, and . . . as a Urologist in surgical practice since

July 2000, the evaluation of the scrotal mass is extremely common

place, almost daily. A scrotal exam and appropriate interpretation of

studies related to scrotal complaints is of paramount importance to a

practicing urologist.

This supplemental report is more like Kapoor II than Kapoor I. In Kapoor I,

the doctor did not identify any experience or credential to show that she was

qualified to testify about what treatments would have been available for an earlier

cancer diagnosis and whether earlier treatments would have improved the patient’s

prognosis. 2010 WL 3721866, at *3. The amended report in Kapoor II stated that

the doctor had cared for and supervised over 500 patients diagnosed with and treated

for cancer, diagnosed cancer, and reviewed records kept on the diagnosis and

treatment of patients with cancer. 2012 WL 8017139, at *7.

In addition, as in Gunderson, where an ophthalmologist submitted an expert

report on the care and treatment of a patient by another ophthalmologist, Dr. Dow,

a urologist, has submitted expert reports on the care and treatment of a patient by

another urologist. While the expert in Gunderson did not have experience treating

the illness the patient suffered from, he did have experience with the standards of

care applicable to the examinations done by an ophthalmologist and had significant

experience and education in the field. 2022 WL 456720, at *3. Similarly, Dr. Dow

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did not indicate experience in the exact situation Quintero faced, but he did have

experience with the standards of care applicable to the examinations done by a

urologist based on his significant experience and education in the field.

Based on Dr. Dow’s education and experience in the field of urology, the trial

court reasonably could have determined that he was qualified to opine on the specific

issue before the court—the causal link between appellants’ alleged failure to perform

certain scrotal examinations and the delayed discovery of Quintero’s cancer. The

central allegations underlying appellee’s suit relate to whether a urologist departed

from the standards of care applicable to scrotal examinations and a subsequent

scrotal surgery; the record shows that Dr. Dow has significant education and

experience in both areas.

Appellants challenge Dr. Dow’s lack of training, education, or experience in

determining the stages of testicular cancer, treating testicular cancer, or determining

whether an earlier diagnosis would have changed a patient’s treatment and

prognosis. But similar arguments challenging an expert’s qualifications related to

the specific condition stemming from the alleged negligence have been rejected. See,

e.g., Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *10–12

(Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); Mosely, 249

S.W.3d at 779–80.

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Therefore, the trial court did not abuse its discretion in concluding that Dr.

Dow is qualified to opine on the causal relationship between the alleged negligence

and Quintero’s subsequent injuries and harm. See TEX. R. EVID. 702; Burrell, 230

S.W.3d at 762. We overrule appellants’ challenge to Dr. Dow’s qualifications.

Conclusion

We affirm the trial court’s order.

Sarah Beth Landau

Justice

Panel consists of Justices Landau, Countiss, and Guerra.

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