Opinion
No. 05-08-01156-CV
Opinion issued April 2, 2009.
On Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-12924.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Dr. Shaad B. Bidiwala appeals the trial court's interlocutory order denying his motion to dismiss Susan Cockerell's medical malpractice lawsuit against him for failing to provide an adequate expert report. In his sole issue, Dr. Bidiwala complains the expert report was insufficient to allow the trial court to determine that the claims asserted against him have merit. For reasons set out below, we overrule Dr. Bidiwala's sole issue and affirm the trial court's order.
On December 26, 2005, appellee's daughter, Melanie, fell from a second-story balcony and injured her left wrist, left ankle, and back. Melanie was transported to the Baylor University Medical Center, where drug testing showed alcohol and cocaine in her system. Melanie was admitted to the intensive care unit for observation with plans to undergo a lumbar fusion in "about a week." Over the next two and one-half days, Melanie suffered undiagnosed pulmonary edema that ultimately led to a drop in blood pressure and cardiac arrest and death.
Appellee, individually and as representative of the estate of her daughter, sued the hospital and various doctors and nurses alleging negligence in the care of her daughter. This appeal involves only Dr. Bidiwala, a neurosurgeon who consulted on Melanie's injuries and planned to perform the lumbar fusion in "about a week." Pursuant to section 74.351(a) of the Texas Civil Practice and Remedies Code, appellee timely served Dr. Bidiwala with the expert report of Dr. Mary Mancini. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Dr. Bidiwala objected to the report and filed a motion to dismiss. The trial court denied the motion, and this appeal ensued.
We review a trial court's decision on a motion to dismiss a health care liability claim under the expert report provisions of chapter 74 for an abuse of discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) (discussing former article 4590i); Am. Transitional Care Ctrs. of Tex. v. Palacios, Inc., 46 S.W.3d 873, 875 (Tex. 2001) (same). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex.App. 2007, no pet.).
When a party files a health care liability claim, she must file an expert report within 120 days of filing the petition. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). The expert report need not marshal every bit of the plaintiff's evidence, but it must provide "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm or damages claimed." See id. § 74.351(r)(6); Jernigan, 195 S.W.3d at 93; Palacios, 46 S.W.3d at 878. If a defendant moves to dismiss the plaintiff's case based upon the report's inadequacy, the trial court must grant the motion "only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Tex. Civ. Prac. Rem. Code Ann. § 74.351( l). To constitute a good-faith effort, the report must (1) inform the defendant of the specific conduct the plaintiff has called into question and (2) provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. The only information relevant to the inquiry is contained within the document's four corners. Id. at 878. A plaintiff need not present evidence in the report as if it were actually litigating the merits. Id. 879. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary judgment proceeding or at trial. Id.
Dr. Bidiwala first argues the trial court abused its discretion in failing to dismiss the lawsuit against him because appellee's petition did not specifically allege the breach of the standard of care described by Dr. Mancini in her report and therefore the expert report does not show that the claims in the petition have merit. Dr. Bidiwala did not raise this objection below. Accordingly, we conclude it is waived. See Tex. R. App. P. 33.1(a).
Next, Dr. Bidiwala argues the trial court abused its discretion in "finding that a speculative, contingent and inadequate report was sufficient on the issues of standard of care, breach, and causation." In her report, Dr. Mancini included, among other things, the following standard of care: "Statements made by the patient regarding difficulty breathing should be reported and or charted and brought to the attention of the appropriate physician." With respect to Dr. Bidiwala, Dr. Mancini opined the following breach of that standard of care:
If Dr. Bidiwala was present when the patient stated that she could not breathe or was having difficultly breathing, as set out in the affidavit of Susan Cockerell, then Dr. Bidiwala breached the standard of care by not reporting those statements to the attending physicians and by not taking actions to assure that appropriate interventions were begun. Further, there is no evidence in the records that Dr. Bidiwala ever charted those statements of the patient or otherwise reported those statements. Nor is there any evidence that Dr. Bidiwala took any steps to make sure that any interventions including diagnostic tests or other therapeutic measures.
Dr. Bidiwala argues that the "only relevant inquiry" is whether Dr. Bidiwala "heard" any statement from Melanie; that the report, on its face, does not indicate that Dr. Bidiwala did hear the statement; and the contingent nature of the opinion on the breach of the standard of care "renders the causation opinions conclusory and insufficient, as there can be no causal chain without a connection between a breach and the injury." He argues the trial court filled "in the gaps with prohibited inferences" i.e, "whether a statement was made by [Melanie] that Dr. Bidiwala actually heard."
Initially, we note appellee's motion to dismiss also did not contain this precise argument, nor was this precise argument made at the hearing on the motion. Nevertheless, liberally construing the arguments made, we address the complaint.
While we agree the trial court makes its determination from the four corners of the expert report, we do not agree with Dr. Bidiwala that the report in this case required the trial court to make improper inferences. Dr. Mancini, who was not present when the statement was made and therefore could not state as a fact that Dr. Bidiwala was present or heard the statement, conditioned her opinion on the breach of the standard of care based on facts contained in an affidavit by appellee. The only inference made was by the expert, who necessarily inferred that if Dr. Bidiwala was present, he heard the statement. Whether Dr. Bidiwala was actually present and actually heard the statements by Melanie is a fact that will have to be litigated later. Here, the report informs the defendant of the specific conduct called into question — failing to report Melanie's statement that she could not breathe — and links that breach of the standard of care to causation.
To the extent Dr. Bidiwala suggests that appellee's failure to attach her affidavit to the expert report rendered the report insufficient, we disagree. Dr. Bidiwala has not cited to a single case in which a report was rendered insufficient because the underlying historical assumptions used by the expert, that were contained in the affidavit of a fact witness, were not attached to the report. The only case cited, Jones v. King, 255 S.W.3d 156, 160 (Tex.App. 2008, pet. denied), is distinguishable in that the expert was relying heavily on the opinions and apparent documentation of another doctor to reach an opinion on causation. The court there concluded, among other things, that reliance on the other doctor's "alleged, but absent, documentation, cannot cure the deficiencies" in the report. We conclude the trial court did not abuse its discretion in denying Dr. Bidiwala's motion to dismiss and overrule the sole issue.
We affirm the trial court's order denying the motion to dismiss.