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concluding medical expert report addressing surgeon's conduct is adequate
Summary of this case from Hollingsworth v. SpringsOpinion
No. 05-08-00791-CV
Opinion issued August 5, 2009.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-00671-A.
Before Justices BRIDGES, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
In this healthcare liability suit, appellants David Godat, M.D. and David Godat, M.D., P.A. ("Godat") appeal the trial court's decision denying Godat's motion to dismiss. In two issues, Godat argues (1) the trial court misapplied the law when it determined it did not have to review the merits of the expert report in order to determine if the claims against Godat have legal merit and (2) the trial court abused its discretion in denying Godat's motion to dismiss. We affirm the judgment of the trial court.
Background
Appellees Adriane Springs, individually and as next friend of Ron Springs (collectively referred to as "Springs"), filed the underlying lawsuit and asserted health care liability claims against Dr. Joyce Abraham, Texas Anesthesia Group, P.A., and Godat for negligence in the care and treatment of Mr. Springs. When Mr. Springs sought the care of Godat, he suffered from multiple medical problems, including diabetes, nephrogenic systemic fibrosis, end-stage renal disease following kidney transplant, hypertension, vasculopathy, retinopathy, below-knee amputation, and neuropathy.
Dr. Abraham and Texas Anesthesia Group are not parties to this appeal.
On two occasions in early October of 2007, Godat attempted to treat Mr. Springs for a lesion on his forearm using local anesthesia but the treatments were ineffective. Godat then requested Texas Anesthesia Group to provide an anesthesiologist to place Mr. Springs under general anesthesia for surgery to remove the lesion. On October 12, 2007, Mr. Springs was admitted to Medical City Hospital for the removal of the lesion on his forearm. Prior to the scheduled surgery, Dr. Joyce Abraham of Texas Anesthesia Group induced general anesthesia. Godat was then summoned to the operating room. Upon Godat's arrival, however, Mr. Springs became hypotensive, developed pulseless electrical activity, and was resuscitated. The expert reports allege that after Mr. Springs exhibited breathing difficulty, Dr. Abraham pharmaceutically induced a paralyzed state in order to intubate Mr. Springs. Springs contends that Dr. Abraham failed to timely intubate Mr. Springs which led to an anoxic brain injury. According to one of the expert reports submitted by Springs, Mr. Springs is now in a "persistent vegetative state with little or no chance for improvement as a result of a failed intubation which resulted in cardiac arrest and anoxic/ischemic brain damage."
On January 22, 2008, Springs filed a petition against Dr. Abraham, Texas Anesthesia Group, P.A., and Godat. Springs served the required expert reports upon Godat. Specifically, Springs submitted the reports of Dr. Scott Groudine (anesthesiologist) and Dr. Arnold Seid (general surgeon). Godat objected to the sufficiency of the reports. Springs then filed the supplemental expert reports of Dr. Groudine and Dr. Seid and submitted an expert report from Dr. Herbert Leiman (neurologist). Godat again objected to the sufficiency of the reports and later sought a motion to dismiss. The trial court denied Godat's motion to dismiss and this interlocutory appeal ensued.
Analysis
In his first issue, Godat contends the trial court erred in interpreting section 74.351 of the civil practice and remedies code and the Texas Supreme Court's opinion in American Transitional Care Centers v. Palacios when "the trial court held it did not have to review the merits of the report in order to determine that the claims against Dr. Godat have legal merit." In his second issue, Godat argues the trial court abused its discretion in denying his motion to dismiss under section 74.351(b) of the civil practice and remedies code in (1) finding that the reports set forth a clear standard of care that was breached in such a manner to cause harm to Mr. Springs and (2) finding that the reports establish any causation proximately caused by Godat.
We first turn to Godat's second issue regarding the sufficiency of the expert reports. An appellate court reviews a trial judge's decision on a motion to dismiss a claim under section 74.351 of the civil practice and remedies code 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., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (discussing former article 4590i); Baylor University Medical Ctr. v. Rosa, 240 S.W.3d 565, 569-70 (Tex.App.-Dallas 2007, pet. denied); Simpson v. Keppard, 225 S.W.3d 868, 871 (Tex.App.-Dallas 2007, no pet.). A trial judge abuses his discretion if he acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] 2006, no pet). When reviewing matters committed to the trial judge's discretion, an appellate court may not substitute its judgment for that of the trial judge. See id. A trial judge does not abuse his discretion merely because he decides a discretionary matter differently than an appellate court would under similar circumstances. See id.
The trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). An expert report under section 74.351(r) of the civil practice and remedies code must provide enough information to fulfill two purposes if it is to constitute an objective good faith effort. The report must inform the defendant of the specific conduct the plaintiff has called into question and must provide a basis for the trial judge to conclude the claims have merit. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859.
An expert report must provide a fair summary of the expert's opinions as of the date of the report regarding the applicable standard of care, the manner in which the care rendered by the physician failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2008). The statute does not require that a single expert address all liability and causation issues with respect to a health care provider. Tex. Civ. Prac. Rem. Code Ann. § 74.351(i) (Vernon Supp. 2008).
A report cannot merely state the expert's conclusions as to the standard of care, breach, and causation. See Palacios, 46 S.W.3d at 879; Hansen v. Starr, 123 S.W.3d 13, 20 (Tex.App.-Dallas 2003, pet. denied); Garcia v. Marichalar, 198 S.W.3d 250, 254 (Tex.App.-San Antonio 2006, no pet.); Gray, 189 S.W.3d at 859. The expert must explain the basis for his statements and must link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Garcia, 198 S.W.3d at 254; Gray, 189 S.W.3d at 859. A trial judge may not draw any inferences. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Instead, the trial judge must rely exclusively on the information contained within the four corners of the report. See Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. The expert report does not need to marshal all of the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. See Ehrlich v. Miles, 144 S.W.3d 620, 626 (Tex.App.-Fort Worth 2004, pet denied). The expert report may be informal and the information presented need not meet the same requirements as evidence offered in summary judgment proceedings or in a trial. See Ehrlich, 144 S.W.3d at 626. Also, it is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. See Ehrlich, 144 S.W.3d at 626-27.
In his second issue, Godat challenges the sufficiency of the expert reports submitted by Springs. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(l) (Vernon Supp. 2008). First, Godat argues the reports did not "set forth a clear standard of care that was breached in such a manner to cause harm to Mr. Springs." We disagree.
Dr. Seid, in his expert report, addresses the care provided to Mr. Springs by Godat. The report of Dr. Seid states, in pertinent part, as follows:
The expert report of Dr. Groudine addresses the care provided to Mr. Springs by Dr. Abraham, the anesthesiologist. The expert report of Dr. Leiman generally describes Mr. Springs's condition following Mr. Springs's injury.
I am familiar with the standard of care applicable to this case through my personal experience in performing surgeries and treating patients similar to those present in this case. The standard of care dictates that a patient with Mr. Springs' multiple medical problems and recent history of difficult intubation should not be placed under general anesthesia for the removal of a 2 cm forearm lesion. Instead, the standard of care dictates that local anesthesia, monitored anesthesia care, or regional anesthesia should have been employed to anesthetize Mr. Springs for surgery. Further, the standard of care dictates that a surgeon would have a patient such as Mr. Springs seen by, or at the very least, discuss the pending operation with his treating physicians prior to undergoing general anesthesia. I agree with Dr. Groudine that Mr. Springs overall condition made him a poor candidate for a general anesthetic. As Mr. Springs' surgeon, Dr. Godat could have chosen one of the lower risk alternatives to general anesthesia, such as local anesthesia, monitored anesthesia care, or regional anesthesia. According to the standard of care that I have described, Dr. Godat should have chosen one of these lower risk alternatives to general anesthesia. Each of these anesthesia options would have enabled Mr. Springs to continue to breathe on his own during the procedure, preventing the oxygen deprivation that resulted when Dr. Abraham failed to secure his airway in time. Had Dr. Godat chosen a lower risk alternative to general anesthesia, such as those described above, Mr. Springs would not have suffered oxygen deprivation and the resulting hypoxic brain injury. . . .
(emphasis added). For the purpose of a statutory expert report, statements concerning the standard of care and breach need only identify what care was expected and was not given with such specificity that inferences need not be indulged to discern them. Benish v. Grottie, 281 S.W.3d 184, 198 (Tex.App.-Fort Worth 2009, pet. filed) (citing Palacios, 46 S.W.3d at 880; Thomas v. Alford, 230 S.W.3d 853, 858 (Tex.App.-Houston 2007, no pet.)). We conclude Dr. Seid's report adequately addresses the standard of care and the manner in which that standard was breached by Godat. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2008).
We next consider Godat's argument that the trial court erred in finding that the reports establish any causation proximately caused by Godat. Godat argues there is a causation problem because "[a]ll three of the experts and the pleadings stated that the harm was proximately caused by the failed intubation and Dr. Abraham's loss of airway . . . not Dr. Godat's. . . ." Again, we turn to the content of Dr. Seid's report, as follows:
I agree with Dr. Groudine that Mr. Springs overall condition made him a poor candidate for a general anesthetic. Nonetheless once the decision was made to proceed with general anesthesia the risk could have been mitigated by a more thorough pre-operative workup. Additionally his other treating physicians including Dr. Lerman should have been consulted. This was not done. Furthermore there are safe alternatives to general anesthesia for the excision of a 2 cm. forearm lesion which still afford the patient the benefit of total absence of pain during the operation. Local anesthesia, monitored anesthesia care, or regional anesthesia would have been just as effective as general anesthesia without subjecting Mr. Springs to the significant risk of a general anesthetic. Dr. Godat's decision to employ general anesthesia was negligent and proximately caused Mr. Springs' hypoxic brain. injury.
I believe that Dr. Godat's decision to use a general anesthetic for this operation considering the total clinical picture was negligent and was the proximate cause of the severe anoxic brain injury that Mr. Springs sustained. Furthermore the standard of care requires that Dr. Godat would have Mr. Springs seen by, or at the very least, discuss the impending operation with his treating physicians prior to undergoing general anesthesia. A patient as ill as Mr. Springs should have been cleared by Dr. Lerman or another physician familiar with his multiple complex medication conditions and recent history of difficult intubation before subjecting him to general anesthesia. Having worked with physicians in Dr. Lerman's position, it is my opinion to a reasonable degree of medical probability that a physician in Dr. Lerman's position would have cautioned against employing general anesthesia for this procedure. Had Dr. Godat consulted with Dr. Lerman prior to the surgery, it is reasonably medically probable that a lower risk alternative to general anesthesia, such as local anesthesia, monitored anesthesia care, or regional anesthesia, would have been chosen. Dr. Godat clearly should have realized that a general anesthetic exposed Mr. Springs to significant risk of complications. Mr. Springs required excision of his forearm lesion, however, he did not require a general anesthetic to safely and painlessly remove a 2 cm forearm lesion. Therefore I believe that Dr. Godat breached the standard of care in his preoperative evaluation of Mr. Springs and in his decision to use a general anesthesia. This deviation from the standard of care by Dr. Godat was the proximate cause of the resulting anoxic brain injury that Mr. Springs sustained and continues to suffer from at this time.
(emphasis added). Although we agree that the expert reports discuss Dr. Abraham's loss of airway as a cause of Mr. Spring's brain damage, it is not the only cause discussed. Rather, Dr. Seid explains that Godat's breach of the standard of care and decision to utilize general anesthesia during the surgery was the proximate cause of Mr. Springs's resulting anoxic brain injury.
Through the four corners of Dr. Seid's report, Springs has called into question Godat's conduct and provides the causal relationship between the alleged error and Mr. Springs's brain injury. See Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Dr. Seid's report provides a sufficient basis for the trial judge to conclude that Springs's claims against Godat have merit. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. We conclude Springs's report as to Godat represents an objective good faith effort to comply with the definition of an expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2008). Therefore, we conclude the trial judge did not abuse her discretion in denying Godat's motion to dismiss. See Baylor, 240 S.W.3d at 569-70. We overrule Godat's second issue. Because we have determined the expert report submitted by Springs as to Godat is sufficient under the statute, we need not address Godat's first issue. We, therefore, affirm the judgment of the trial court.
In the section of his brief discussing the adequacy of the expert reports, Godat inserts a complaint that the trial court erred in not dismissing Springs's claim that Godat failed to ensure the attendance of an appropriately experienced anesthesiologist. However, Godat raises this argument for the first time on appeal and we need not address it here. See Tex. R. App. P. 33.1.
We do note, however, that the trial court properly acknowledged that she was to determine "whether the expert reports meet the standards set out in the statute . . .