Opinion
No. 04-05-00336-CV
Delivered and Filed: June 28, 2006.
Appeal from the 83rd Judicial District Court, Val Verde County, Texas, Trial Court No. 23261, Honorable Carl Pendergrass, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice (concurring in judgment only).
MEMORANDUM OPINION
Marcus Martinez and Mary Koog, individually and on behalf of their minor child Kaelyn, appeal the trial court's dismissal of their medical malpractice claims, arguing that their expert report complied with article 4590i of the Texas Civil Practice and Remedies Code. We disagree and affirm the trial court's judgment.
Article 4590i was repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884, and has been re-codified at Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2005) (effective Sept. 1, 2003). Because the underlying lawsuit was filed on June 8, 2000, all references in this opinion will be to former article 4590i.
Background
On March 27, 1998, Kaelyn, three years of age, was scheduled for a tonsillectomy/adenoidectomy. According to Martinez and Koog's petition, the night before the procedure, Kaelyn's mother, Mary Koog, called the Val Verde Regional Medical Center and explained to the head nurse that Kaelyn had a temperature and was congested. Because Koog had been told not to give Kaelyn any fluids the night before the surgery, she asked the nurse what she should do. The nurse told Koog to give Kaelyn liquid Tylenol and apple juice. The next morning, Kaelyn was admitted to the hospital for the procedure. When Koog was asked if Kaelyn had been given any liquids, Koog told the nurse that she had followed the head nurse's instructions and had given Kaelyn liquid Tylenol and apple juice. Koog also told the nurse that Kaelyn was still congested. The nurse gave Kaelyn another dose of liquid Tylenol. The surgeon then proceeded with the tonsillectomy/adenoidectomy. According to Martinez and Koog's petition, after the surgery, Kaelyn experienced "pulmonary complications" and was transferred to the intensive care unit of another hospital.
On June 8, 2000, Martinez and Koog, individually and on behalf of Kaelyn, brought this malpractice lawsuit against Val Verde Regional Medical Center, the surgeon, Allen Anderson, M.D., and the nurse anesthetist, Duane Riegel, C.R.N.A. On September 7, 2000, Martinez and Koog filed the expert report and curriculum vitae of Dr. G. Paul Laursen. In response, on January 17, 2001, Riegel moved to dismiss the case, arguing that the report was insufficient. Although the trial court denied the motion to dismiss, it granted Martinez and Koog an extension to file another expert report. On March 22, 2001, Martinez and Koog filed a second report from Dr. Laursen. In June 2001, in a letter to the trial court, Riegel moved for reconsideration of his motion to dismiss, relying on the Texas Supreme Court's opinion in American Transitional Care Centers v. Palacios, 46 S.W.3d 873 (Tex. 2001). On June 25, 2001, the trial court entered an order denying Riegel's motion to dismiss.
Later that year, on October 25, 2001, Val Verde filed a plea to the jurisdiction, arguing that Martinez and Koog had failed to comply with the Texas Tort Claims Act's six-month notice requirement. The trial court agreed and dismissed Martinez and Koog's claims against Val Verde. The trial court then severed those claims from the underlying cause, and Martinez and Koog appealed the trial court's order. On appeal, the trial court's order was affirmed in part by this court, and our judgment was affirmed by the supreme court. See Martinez v. Val Verde County Hosp. Dist., 110 S.W.3d 480 (Tex.App.-San Antonio 2003), aff'd, 140 S.W.3d 370 (Tex. 2004).
During the appeal, the trial court stayed proceedings. Once the appeal was final, the trial court reinstated proceedings and issued a new docket control order. Three months after the trial court reinstated proceedings, on January 25, 2005, Riegel filed a motion to reconsider the sufficiency of Martinez and Koog's expert report. On March 9, 2005, Anderson filed, for the first time, a motion to dismiss, arguing that Martinez and Koog's expert report was insufficient. After a hearing, the trial court granted Riegel's motion to reconsider and Anderson's motion to dismiss. It also denied Martinez and Koog's request for an additional thirty days to amend their expert report. Martinez and Koog brought this appeal.
The trial court granted Riegel's motion to stay the proceedings pending the outcome of the appeal.
Expert Report
In his motion to reconsider, Riegel argued that Dr. Laursen was unqualified to render his expert opinion because his report does not demonstrate an expertise in anesthesia. Similarly, in his motion to dismiss, Anderson argued that Dr. Laursen was not qualified to render an opinion on the "causation of lung pulmonary problems induced by anesthesia" and that with respect to causation, his report was conclusory. On appeal, Martinez and Koog argue that Dr. Laursen's expert report met article 4590i's requirements. We review a trial court's decision to dismiss a case for failure to provide an adequate expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
Riegel also argued that the report was conclusory with respect to causation in his original motion to dismiss.
According to article 4590i, an expert must be a physician who:
(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
Act of May 26, 1989, 71st Leg., R.S., ch. 1027, § 27, 1989 Tex. Gen. Laws 4128, 4145, amended by Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, 1995 Tex. Gen. Laws 985, 988 (former Tex. Rev. Civ. Stat. art. 4590i, § 14.01(a)), amended by Act of May 13, 1999, 76th Leg., R.S., ch. 242, § 1, 1999 Tex. Gen. Laws 1104, 1104-05, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Concerning the third requirement, the court must consider whether the witness "is board certified or has other substantial training in an area of medical practice relevant to the claim," and whether the witness "is actively practicing medicine in rendering medical care services relevant to the claim." See id. (former Tex. Rev. Civ. Stat. art. 4590i, § 14.01(c)).
Further, a claimant must provide a report, with curriculum vitae, by such an expert to each party within 180 days after filing a health care liability claim. See id. (former Tex. Rev. Civ. Stat. art. 4590i, § 13.01(d)(1)). An expert report is defined as "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. (former Tex. Rev. Civ. Stat. art. 4590i, § 13.01(r)(6)).
A trial court shall grant a motion challenging the adequacy of an expert report "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report." Id. (former Tex. Rev. Civ. Stat. art. 4590i, § 13.01(l)). In considering whether the report is a good faith effort, "the only information relevant to the inquiry is within the four corners of the document." Palacios, 46 S.W.3d at 878. Although a report need not marshal all the plaintiff's proof, it must include the expert's opinion on each of the elements identified in the statute. Id. And, in setting out the expert's opinions on those elements, in order to constitute a good faith effort, the report must provide enough information to fulfill two purposes. Id. at 879. First, the report must inform the defendant of the specific conduct the plaintiff has called into question, and second, the report must provide a basis for the trial court to conclude that the claims have merit. Id. A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Id.
In his expert report, Dr. G. Paul Laursen, Martinez and Koog's expert, states that he is an expert in Otolaryngology, he routinely performs tonsillectomies, and he has worked with CRNA anesthesia personnel since 1970. According to Dr. Laursen, he does "not feel there is any difference in the standards of care for a CRNA versus an anesthesiologist." Thus, Dr. Laursen's report states that the standard of care for the nursing staff "would require taking an adequate history and relay[ing] that information to Dr. Anderson and the nurse anesthetist." Similarly, according to Dr. Laursen, the standard of care for the nurse anesthetist would require him "to take an adequate history, perform an examination of the patient, and discuss abnormalities with the treating physician." Likewise, Dr. Laursen's report states that the standard of care for the treating physician would require him "to take an adequate history, perform a physical exam, and discuss abnormalities with the nurse anesthetist."
Martinez and Koog argue that Dr. Laursen was qualified to testify about this standard of care. In response, Riegel argues that only someone with expertise in anesthesia could testify about the standard of care. Indeed, the supreme court has stated that "given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert witness on every medical question." Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). According to the court, "[s]uch a rule would ignore the modern realities of medical specialization." Id. However, with regard to the standard of care at issue, that a nurse anesthetist and a treating physician should take a history, perform an examination of the patient, and discuss abnormalities before surgery begins, is a standard of care about which any surgeon can render an opinion. Such a standard of care is not specific to anesthesia. Thus, Dr. Laursen was qualified to render an opinion about the standard of care.
Dr. Laursen was not, however, qualified to render an opinion about causation. In his report, Dr. Laursen states that Riegel's failure to take a history, his failure to relay the information to Dr. Anderson, and his decision to proceed with anesthesia "resulted in the post-operative complications suffered by this child by allowing the anesthetic agents to irritate the already inflamed lung tissue." The report also states that Riegel's failure "resulted in respiratory arrest and subsequent sequelae." Similarly, the report states that Dr. Anderson failed to take an adequate history, examine the patient before surgery, and discuss the findings of the nurses and nurse anesthetist with them and that "[t]hese failures were a direct cause of respiratory arrest and subsequent sequelae by allowing the anesthetic agents to irritate the already inflamed lung tissue."
As such, the only explanation given in Dr. Laursen's report is that "the anesthetic agents" irritated "the already inflamed lung tissue." We agree with Anderson and hold that, with respect to causation, this report is conclusory. See Palacios, 46 S.W.3d at 879. It does not adequately explain the causal relationship between Anderson and Riegel performing the surgery and the injuries suffered by the patient.
Additionally, we also agree with Anderson and Riegel that Dr. Laursen's report does not indicate that he is qualified to render an opinion about causation. In his report, Dr. Laursen states that he has worked with anesthesia personnel and has acted "as the operative supervisor for nurses and CRNA's in the daily care of [his] patients." His report, however, gives no indication that he is qualified to render an opinion on how allowing anesthetic agents to irritate already inflamed lung tissue would directly cause respiratory arrest and "subsequent sequelae."
Therefore, the trial court did not abuse its discretion in granting the motions to dismiss.
Other Issues
Martinez and Koog bring two other issues. First, they argue that the trial court erred "in permitting Nurse Riegel to proceed on a second motion to dismiss this action after the trial court denied his first motion to dismiss." Second, they argue that the trial court erred by denying them "equal protection of the law by allowing Nurse Riegel a second opportunity to dismiss [their] case as being frivolous without affording [them] an equal opportunity to present medical proof that [their] case was not frivolous."
With regard to their first issue, Martinez and Koog argue that article 4590i does not authorize "a defendant multiple attempts to discredit an expert report previously approved by the trial court." Thus, they conclude that because the legislature did not include such a provision, we must "strictly construe the statute so as not to provide an additional remedy where the legislature intended none."
The legislature, however, did not need to include such a provision in article 4590i. A trial court has plenary jurisdiction to reconsider interlocutory rulings until a final judgment or order is entered and that decree becomes final. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); White v. Baptist St. Anthony's Hosp., 188 S.W.3d 373, 374-75 (Tex.App.-Amarillo 2006, pet. filed); Orion Enter., nc. v. Pope, 927 S.W.2d 654, 658 (Tex.App.-San Antonio 1996, orig. proceeding). Thus, the trial court did not need authority under article 4590i to reconsider its decision; it already had the authority to reconsider any decision until it lost plenary power over the case.
In their framing of the issue, Martinez and Koog emphasize that Riegel did not file his second motion until "1309 days" after the trial court denied his first motion. In their brief, however, Martinez and Koog do not argue that Riegel waived his ability to file a second motion as a result of this delay. See Tex.R.App.P. 38.1(h).
With regard to their second issue, Martinez and Koog argue that article 4590i violates their right to equal protection under the law by allowing Riegel a "second bite at the apple" while only giving them "one opportunity to present an adequate medical report." First, we note that Martinez and Koog were given a second opportunity to present an expert report in this case. After the trial court denied Riegel's first motion to dismiss, Martinez and Koog were allowed to file a second expert report.
Martinez and Koog claim that their equal protection rights were violated under both the Fourteenth Amendment to the United States Constitution and Article I, section 3 of the Texas Constitution. They do not, however, claim that their rights under the Texas Constitution are greater than those under the United States Constitution. Thus, to the extent that the Texas Constitution provides more protection than the federal one, Martinez and Koog have waived the issue. See Tex.R.App.P. 38.1(h).
Second, in considering whether Martinez and Koog's equal protection rights were violated, we apply a rational-basis standard: to be permissible, the disparate treatment must merely further a "legitimate state interest." Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); Garcia v. Dretke, 388 F.3d 496, 499 (5th Cir. 2004). That is, the disparate treatment must only be rationally related to the State's objective. Murgia, 427 U.S. at 315.
Martinez and Koog do not argue that they represent a suspect class. Indeed, they merely argue that article 4590i is not related to any legitimate state interest.
In enacting article 4590i, the Texas Legislature found that the increasing number of health care liability claims had "caused a serious public problem in availability of and affordability of adequate medical professional liability insurance." Act of May 26, 1989, 71st Leg., R.S., ch. 1027, § 27, 1989 Tex. Gen. Laws 4128, 4145, amended by Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, 1995 Tex. Gen. Laws 985, 988 (former Tex. Rev. Civ. Stat. art. 4590i, § 1.02(a)), amended by Act of May 13, 1999, 76th Leg., R.S., ch. 242, § 1, 1999 Tex. Gen. Laws 1104, 1104-05, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. According to the Legislature's findings, the situation had "created a medical malpractice insurance crisis in the State of Texas." Id. Because of the crisis, the Legislature enacted article 4590i to reach the following goals:
(1) reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems;
(2) decrease the costs of those claims and assure that awards are rationally related to actual damages;
(3) do so in a manner that will not unduly restrict a claimant's right any more than necessary to deal with the crisis;
(4) make available to physicians, hospitals, and other health care providers protection against potential liability through the insurance mechanism at reasonably affordable rates;
(5) make affordable medical and health care more accessible and available to the citizens of Texas;
(6) make certain modifications in the medical, insurance, and legal systems in order to determine whether or not there will be an effect on rates charged by insurers for medical professional liability insurance; and
(7) make certain modifications to the liability laws as they relate to health care liability claims only and with an intention of the legislature to not extend or apply such modifications of liability laws to any other area of the Texas legal system or tort law.
Id. (former Tex. Rev. Civ. Stat. art. 4590i, § 1.02(b)). All of the above are legitimate state interests. And, requiring a trial court to dismiss a plaintiff's health care liability claim upon the plaintiff's failure to file an adequate expert report is rationally related to these legitimate state interests. We, therefore, hold that Martinez and Koog's equal protection rights were not violated.
Conclusion
For the reasons stated above, we affirm the judgment of the trial court.