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dismissing Llamas's challenge to pre-trial expert opinion attributing blindness in baby born at 23 weeks to Llamas's failure to apply laser treatment to affected portion of the eyes where Llamas urged such opinion was “conclusory” and suggested outcome was attributable to other physicians' delay in diagnosing and sending patient for surgery
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No. 05-09-00102-CV
Opinion filed October 21, 2009.
On Appeal from the 192nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-15136-K.
Before Justices O'NEILL, FRANCIS, and FILLMORE.
MEMORANDUM OPINION
In this medical malpractice case, appellee Erika Jimenez, individually and as next friend of Dominic Comer, sued appellants Jorge Fabio Llamas-Soforo, M.D. and Jorge Fabio Llamas-Soforo M.D., P.A. d/b/a El Paso Eye Care Center (Llamas) asserting Llamas's negligence caused her son, Dominic Comer's, blindness. Llamas filed a motion to dismiss asserting the expert report Jimenez filed under section 74.351(r)(6) of the Texas Civil Practice and Remedies Code did not comply with the terms of that statute. The trial court denied the motion. In a single issue, Llamas asserts the trial court abused its discretion in concluding the expert report was adequate. For the following reasons, we affirm the trial court's judgment. Baby Dominic was born very prematurely, at a gestational age of 23 weeks, at Las Palmas Medical Center. Doctor Luis Ayo was the medical director of the Neonatal Intensive Care Unit at Las Palmas at the time of Dominic's birth and hospitalization. Appellant Llamas was the ophthalmologist in charge of the screening and treatment of "Retinopathy of Prematurity," (ROP) a condition that can cause blindness in premature infants.
ROP typically presents some time after birth. Because early diagnosis is critical for treatment to be successful, premature infants should be screened early and regularly for ROP. Optimally, an infant should be screened before he reaches treatment criteria, and then intermittently, so that treatment is administered at the "first possible moment" an infant is eligible.
Ayo and Las Palmas did not refer Dominic to Llamas for ROP screening until he was 10 1/2 weeks old, at a gestational age of 33 1/2 weeks. By the time he was examined, Dominic had already developed an advanced stage of ROP. Dr. Llamas treated Dominic's ROP by performing laser surgery, but Dominic nevertheless later became blind in both eyes. Jimenez sued Las Palmas, Ayo, and Llamas. She asserted Ayo and Palmas were negligent in not screening Dominic sooner. Jiminez also complained that Llamas was negligent in diagnosing and treating the ROP. She timely filed a single expert report concerning all defendants. Llamas filed a motion objecting to the expert report asserting it was insufficient to satisfy the requirements of section 74.351(r)(6) of the civil practice and remedies code. The trial court concluded the report was inadequate as to Llamas, but gave Jimenez thirty days to cure the deficiencies. Jimenez filed an amended report. Dr. Llamas again objected to the report and filed a motion to dismiss. The trial court concluded the amended report was sufficient and denied Llamas's motion to dismiss. This interlocutory appeal followed. See Tex. Civ. Prac. Rem. Code Ann. §§ 51.014(a)(9) (Vernon 2008).
We review the trial court's determination regarding the adequacy of an expert report for an abuse of discretion. Nexion Health at Terrell Manor v. Taylor, 2009 WL 2569450, *2 (Tex. App.-Dallas August 21, 2009, no pet.); see also Standefer v. Brewer, 256 S.W.3d 889, 891 (Tex. App.-Dallas 2008, no pet.). An expert report must provide a fair summary of the expert's opinion as to each of the statutory elements of standard of care, breach, and causation. Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2009). A trial court must grant a motion challenging the expert report if it determines the report does not represent an objective good faith effort to comply with the definition of an expert report. Id. § 74.351( l). An expert report must provide enough information to fulfill two purposes. Am. Transitional Care Ctrs. of Texas., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. App.-Dallas 2009, no pet.). The report must inform the defendant of the specific conduct the plaintiff has called into question, and the report must provide a basis for the trial judge to conclude the claims have merit. Id.
Whether the report complies with the requirements of section 74.351(r)(6) is determined by examining the four corners of the report. Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Nexion, 2009 WL 2569450 at * 2. The report need not marshal all the plaintiff's proof, but it must include a fair summary of the expert's opinions on each of the three elements required by the statute, including the causal relationship between the breach of the standard of care and the injury claimed. Wright, 79 S.W.3d at 52. The report cannot merely state the expert's conclusions, but must explain the basis of his statement to link his conclusions to the facts. Id.
In her petition, Jimenez asserted Ayo and Las Palmas were negligent in failing to ensure Dominic was timely screened for ROP. She asserted Llamas was then negligent in diagnosing and treating Dominic. Specifically, Jimenez asserted Llamas was negligent in (1) failing to appropriately examine and evaluate Dominic's eyes, (2) failing to properly diagnose Dominic, (3) failing to recognize the severity of Dominic's condition, (4) failing to recognize the physical findings and true condition of Dominic's eyes when they were examined, and (5) failing to appropriately intervene to prevent advancement of Dominic's condition.
To support her claims, she relied on the expert report of Doctor Sandra Brown. According to Brown, Ayo and Las Palmas were negligent for failing to timely refer Dominic to Llamas for screening. She stated that at the time of Dominic's birth, it was well-established that premature infants should be screened no later than 31 weeks gestational age. Dominic was not screened until his gestational age was 33 1/2 weeks. She stated the delay in screening Dominic allowed his ROP to progress far beyond the point a prudent ophthalmologist would have applied treatment. Dominic was thus denied the chance for treatment to be applied at the "maximally effective" moment. She stated that by the time Dominic was first screened for ROP, his eyes were already in a "severe state" of ROP, well beyond the threshold level for treatment. The delay in screening was a proximate cause of Dominic's blindness.
Brown also asserted that once Dominic was referred to Llamas for screening, Llamas was negligent in the manner in which he treated the ROP. She stated Llamas violated the standard of care by failing to accurately examine Dominic and thus failing to accurately diagnose aggressive posterior ROP. Llamas then failed to apply adequate laser treatment in such a manner to maximize the likelihood of successful regression of ROP. He failed to apply laser burns to some active temporal ROP. According to Brown, failing to do so can lead to a dense temporal retinal fold "as occurred in Baby Dominic's right eye" or complete retinal detachment "as occurred in Baby Dominic's left eye." She opined that if Baby Dominic had been examined in a "timely and accurate" fashion and treatment correctly applied, more likely than not, he would have had a favorable outcome in each eye and retained functionally useful sight. In a single issue, Llamas contends the trial court abused its discretion in failing to dismiss Jimenez's claim against him because the expert report did not comply with section 74.351(r)(6). He asserts Brown's report was conclusory and did not explain how Llamas's negligent acts caused Dominic to be blind. Instead, he asserts the report shows that Dominic's blindness was caused by Ayo's and Las Palmas's failure to timely refer Dominic to Llamas for treatment.
After reviewing the four corners of the report, we cannot conclude the trial court abused its discretion in concluding the report was adequate. Initially, we note that Llamas makes one misstatement concerning Brown's opinions. Specifically, according to Llamas, Brown stated that once a patient reaches "threshold" the damage is irreversible. This statement is not in Brown's report and the only record citation they direct us to support this statement is Brown's statement that Dominic was "beyond threshold" when he was finally examined. It is our understanding from Brown's report that "threshold" means the time in which a patient meets treatment criteria, not the time in which damage is "irreversible."
We agree with Llamas that some of Brown's statements are conclusory and conflate the "timely" treatment and the "accurate" treatment issues. Brown however did state that Llamas failed to apply adequate laser treatment in such a fashion as to maximize the likelihood for successful regression. She specifically stated that he failed to apply laser burns to certain areas and that "leaving active temporal ROP untreated causes severe localized retinal traction, ultimately causing a dense temporal retinal fold (as occurred in Baby Dominic's right eye) or complete retinal detachment (as occurred in his left eye)." Reading the entire report, we conclude it is sufficient to inform the defendant of the specific conduct the plaintiff has called into question, and to provide a basis for the trial judge to conclude the claims have merit. We resolve the sole issue against Llamas and affirm the trial court's judgment.