Opinion
NO. 01-17-00409-CV
05-15-2018
DANIEL L. ALBO, M.D., PH.D. AND BAYLOR COLLEGE OF MEDICINE A/K/A PARK PLAZA CLINIC, Appellants v. JASON M. BAHN, INDIVIDUALLY AND AS NEXT FRIEND FOR A.J.B., A MINOR, Appellee
On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2016-24596
MEMORANDUM OPINION
This is an interlocutory appeal from the trial court's denial of appellants Daniel L. Albo, M.D., Ph.D. and Baylor College of Medicine a/k/a Park Plaza Clinic's motion to dismiss the healthcare liability claims filed against them by appellees Jason M. Bahn, individually and as next friend for A.J.B., a minor. In their first two issues, appellants argue that the trial court abused its discretion by denying their motion to dismiss because: (1) Bahn's expert report failed to link Bahn's damages to a specific breach of an applicable standard of care by Dr. Albo, and (2) Bahn's expert (a) is not qualified to opine as to Baylor's corporate status, or Dr. Albo's relationship with Baylor, and (b) applied the wrong standard of care to Baylor. In their third issue, appellants argue that because the trial court abused its discretion by denying their motion, we should reverse the trial court's order, render judgment dismissing Bahn's healthcare liability claims with prejudice, and remand to the trial court for a determination of appellants' reasonable attorney's fees and costs. Because Bahn's expert report meets the statutory requirements, we affirm the trial court's order denying appellants' motion to dismiss.
We affirm the trial court's order.
Background
The medical records are not before us, and we accept the factual statements in Bahn's expert report, prepared by Dr. Charles Goldman, for the limited purpose of this appeal.
See Marino v. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.)).
After experiencing pain in his right shoulder for several years, Bahn consulted a physician in early 2014 complaining of persistent and increasing right arm pain. Bahn underwent several tests and procedures, including an EMG which showed mild to moderate right brachial plexopathy and mild deviation in his posterior core muscle on the right. An MRI performed on Bahn's right shoulder and brachial plexus on February 10, 2014 showed a "fairly large heterogeneous mass present within the high right axilla, abutting and intercalating with the brachial plexus." Bahn also underwent a CT scan on February 28, 2014, and a percutaneous core biopsy which showed a "benign spindle cell lesion."
Bahn was referred to Dr. Albo, a general surgeon and surgeon oncologist. On March 24, 2014, Bahn underwent "a right axillary radical lymph node dissection and excision of right axillary mass" that was performed by Dr. Albo. Dr. Albo was assisted by a vascular surgeon and a physician assistant. During surgery, Dr. Albo took a sample of one of Bahn's lymph nodes, excised the axillary mass, and sent the specimens to the pathology department. Dr. Albo's operative findings indicate that because Bahn's February 28, 2014 biopsy showed "benign spindle cell lesion," the potential for cancer had to be considered and "[c]onsequently, Level III lymph node dissection was completed due to the possibility of this being a metastatic melanoma . . . ." According to Dr. Goldman's report, "Bahn had persistent motor deficit preexisting prior to the operation with inability to elevate the right arm past the shoulder level and proximal shoulder muscle weakness." Upon waking from surgery, "[t]here were no new muscle deficits, no new motor sensory deficits in the upper extremity, and Mr. Bahn flexed and extended his right arm and used all of his fingers unencumbered."
On August 5, 2014, an MRI performed on Bahn's chest "showed an enhancing mass . . . corresponding to the apical axillary mass seen on the preoperative imaging."
On September 2, 2014, Bahn went to M.D. Anderson Cancer Center where he underwent a series of tests, including an additional core needle biopsy of the mass in his right lymph node area to determine its pathology. This core biopsy showed that the right axillary mass was aggressive fibromatosis, or a desmoid tumor. On October 10, 2014, Bahn's doctors at M.D. Anderson determined that radiation was the best treatment course for Bahn's tumor.
Bahn filed medical negligence suits against Dr. Albo and Baylor, as well as other defendants who are not parties to this appeal, alleging that the surgery was unnecessary and caused injury to Bahn. After Bahn timely served appellants with a supplemental expert report prepared by Dr. Charles Goldman, appellants served objections to this expert report and filed a motion to dismiss Bahn's healthcare liability claims against them.
After appellants objected to Bahn's first timely expert report, the trial court sustained the objections and allowed Bahn an opportunity to cure the alleged defects. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West 2017).
After a hearing, the trial court denied appellants' motion to dismiss and this interlocutory appeal followed.
Chapter 74 Expert Reports
Section 74.351 of the Civil Practice and Remedies Code serves as a gatekeeper. No medical negligence cause of action may proceed until the plaintiff has made a good faith effort to demonstrate that a qualified medical expert believes that a defendant's conduct breached the applicable standard of care and caused the claimed injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6) (West 2017). To constitute a good faith effort, the report must provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claim has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). A report that merely states the expert's conclusions about standard of care, breach, and causation does not fulfill these two purposes. Id. at 879. The expert must explain the basis for his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). In determining whether the report meets those requirements, the court should look no further than the report itself, because all of the information relevant to the inquiry must be contained within the report's four corners. Id. The expert report is not required to marshal all the plaintiff's proof necessary to establish causation at trial. Id. Furthermore, the court's role is not to determine the truth or falsity of the expert's opinion, or the facts upon which the expert bases such opinions, but to act as a gatekeeper in evaluating the sufficiency of the report itself. See Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
When a healthcare liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that adequately implicates the actions of that party's agents or employees is sufficient to implicate the party under the vicarious theory. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). If the expert report satisfies Chapter 74's requirements as to any theory applicable to a healthcare provider then the entire case may proceed with respect to that defendant. See id.
Standard of Review
We review a trial court's ruling on a motion to dismiss for an abuse of discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). As a reviewing court on matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court merely because we would have ruled differently. See Wright, 79 S.W.3d at 52. When reviewing decisions that fall within the trial court's discretion, "[c]lose calls must go to the trial court." Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
Dr. Albo
In their first issue, appellants argue that Dr. Goldman's supplemental report is insufficient with respect to Dr. Albo because the report does not demonstrate that Dr. Albo's conduct proximately caused Bahn any injury. Specifically, appellants argue that Dr. Goldman's report contains contradictory factual assertions and does not identify any conduct by Dr. Albo that caused harm to Bahn or distinguish between Bahn's preexisting injuries and any injuries he allegedly sustained as a result of surgery. Appellants also argue that Dr. Goldman's opinion on causation is conclusory because he opined that Dr. Albo breached the standard of care by misdiagnosing and mistreating Bahn's tumor for several months, but he does not say how any delay in diagnosis and treatment injured Bahn. Appellants further contend that Dr. Goldman's descriptions of Bahn's personal injury damages, e.g., physical pain and mental anguish, loss of earning capacity or wages, are speculative because Goldman did not review Bahn's petition which alleged such damages.
In his report, Dr. Goldman states that Dr. Albo breached the applicable standard of care in this case by "failing to perform additional immunohistochemical characterization of the tumor after the core biopsy led to an undetermined diagnosis for Mr. Bahn's condition." According to Dr. Goldman, Dr. Albo should have taken an additional core biopsy prior to surgery and stained the cells looking for specific proteins, which would have ruled out melanoma as a cause of Bahn's tumor. Dr. Goldman further opines that if Dr. Albo had ruled out melanoma prior to surgery he would not have performed a full axillary dissection, which consists of the removal of all three levels of Bahn's axillary lymph nodes. According to Dr. Goldman, "[a]xillary lymph node dissection is often associated with permanent arm side effects including pain, numbness, limitation of arm range of motion, and arm swelling." Dr. Goldman further states that Dr. Albo's removal of all three levels of Bahn's axillary lymph nodes "resulted in neurological and motor injuries, thus worsening Mr. Bahn's condition, including an increase in the loss of range of motion in Mr. Bahn's right arm, and an inability to lift his arm off of his chest wall to 90 degrees," and "[i]t was reasonably foreseeable to a reasonably prudent surgical oncologist . . . in a procedure like or similar to Jason Bahn's that such failures to meet the standards of medical care would or could have resulted in the neurological and motor injuries to Mr. Bahn's right arm, as well as presence of the mass months later." Dr. Goldman concludes that "[b]ut for Dr. Albo['s] failure to meet the above described standards of medical care relating to Mr. Bahn, Mr. Bahn would not have sustained the above described specific injuries and damages he is claiming in this cause."
Dr. Goldman has identified a specific breach of the applicable standard of care—Dr. Albo's failure to order additional preoperative testing which would have excluded melanoma as the cause of the tumor, and therefore eliminated the need for the full axillary dissection. Dr. Goldman also linked that breach with a new injury to Bahn—his worsened condition, including an increased loss in the range of motion in his right arm. Having done so, Dr. Goldman's report sufficiently linked this alleged breach to an alleged injury to Bahn.
We further note that Dr. Goldman also opines that Dr. Albo breached the applicable standard of care by failing to remove the tumor during Bahn's March 2014 surgery, and that Bahn's "enhancing mass remained misdiagnosed and mistreated by Dr. Albo . . . for months until Mr. Bahn received proper treatment with radiation at M.D. Anderson." Dr. Goldman also identifies other injuries or damages that Bahn sustained as a result of Dr. Albo's alleged breaches, including physical pain and mental anguish, loss of earning capacity or earnings, and disfigurement and physical impairment. However, having determined that Dr. Goldman's report sufficiently links one alleged breach to one of Bahn's alleged injuries, we do not need to discuss whether the report is also sufficient with respect to these other breaches or injuries because, if the report is adequate as to any liability theory asserted against a defendant, the entire case against that defendant may proceed. See Potts, 392 S.W.3d at 632.
Appellants argue that Dr. Goldman's report is internally inconsistent and contradictory because Dr. Goldman's statement that the three-level lymph node dissection "led to a reduced range of motion in Mr. Bahn's right arm, [and] an inability to lift his arm off his chest wall to 90 degrees," is inconsistent with Dr. Goldman's prior statement in his recitation of the facts, as derived from Bahn's medical records, that Bahn had "persistent motor deficit preexisting prior to the operation," and that there "were no new muscle deficits" following surgery.
An expert report that contains inconsistent or contradictory statements, however, may still constitute a good-faith effort to comply with Chapter 74's expert report requirements. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015). In Van Ness, the court of appeals held that the trial court abused its discretion by denying the healthcare provider's motion to dismiss because the expert report contained conflicting statements, some of which, the court held, failed to link the expert's conclusions to the underlying facts. The Supreme Court reversed the lower appellate court's opinion, stating:
[T]he trial court had discretion—indeed it was incumbent on the trial court—to review the report, sort out its contents, resolve any
inconsistencies in it, and decide whether the report demonstrated a good faith effort to show that the Van Nesses' claims had merit. Considering both the report's explication of how Dr. Ault's alleged negligence was causally related to Nicholas's death and the conflicting statements as to that causal relationship, we conclude that the trial court did not abuse its discretion by determining that the report was not conclusory, but was a good faith effort to comply with the TMLA's requirements.Id. (emphasis added). To the extent that Dr. Goldman's report is internally inconsistent or contradictory, the trial court was within its discretion to resolve any such inconsistencies. Id.
Appellants also argue that Dr. Goldman's report, which indicates that "Bahn's medical condition was exactly the same after surgery as before surgery," is insufficient with regard to causation because the report fails to identify any new injury, as opposed to a preexisting injury. Relying on THN Physicians Ass'n v. Tiscareno, 495 S.W.3d 914, 924 (Tex. App.—El Paso 2016, no pet.), appellants argue that because Bahn had a preexisting injury, Dr. Goldman's report was required to provide additional information explaining how Dr. Albo's conduct was a substantial factor in causing Bahn a new injury. Id. In Tiscareno, the plaintiff, who developed a post-operative wound infection, alleged that her doctor breached the standard of care by not recognizing the signs of her infection during an office visit five days after her surgery, and that had he provided her with the appropriate antibiotic therapy at that time, her wound would not have ruptured the next day. See id. at 918. The court held that under the specific facts of that case, the expert report needed to provide "a more detailed medical explanation" of how the short delay in providing the appropriate treatment caused the wound to rupture. Id. at 922, 924. As previously discussed, Dr. Goldman identified a new injury caused by Dr. Albo's unnecessary removal of all three levels of Bahn's axillary lymph nodes—neurological and motor injuries which worsened Bahn's condition and further diminished the range of motion in Bahn's right arm. See e.g., Wright, 79 S.W.3d at 52 (stating expert report need not marshal all plaintiff's proof necessary to establish causation at trial). To the extent that Tiscareno may be applicable with regard to Dr. Goldman's opinion that Dr. Albo breached the applicable standard of care by misdiagnosing and mistreating Bahn's tumor for several months, we do not need to reach this issue because we have already determined that the report is sufficient with regard to a different liability theory. See Potts, 392 S.W.3d at 632.
Section 74.351 expert reports are a preliminary method to show a plaintiff has a cause of action that is not frivolous or without some expert support. We hold the trial court acted within its discretion in concluding that Dr. Goldman's report met these standards as to Dr. Albo.
We overrule appellant's first issue.
Baylor
In their second issue, appellants argue that Dr. Goldman is not qualified to opine as to Baylor's corporate status, or Dr. Albo's relationship with Baylor, and that Dr. Goldman applied the wrong standard of care to Baylor with respect to Bahn's direct liability claims against Baylor.
In his pleadings, Bahn asserted a direct liability claim against Baylor and a vicarious liability claim against Baylor based on Dr. Albo's conduct. During the hearing on appellants' objections to Dr. Goldman's supplemental expert report, Bahn's counsel also informed the trial court that Baylor was in the case "for purposes of vicarious liability under the doctrine of respondeat superior."
When a healthcare liability claim involves a vicarious liability theory, an expert report that adequately implicates the actions of that party's alleged agents or employees is sufficient to implicate the party, even when that party is not named or identified in the report. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam). Further, if the report was adequate as to any liability theory asserted against a defendant, the entire case against that defendant may proceed. See Potts, 392 S.W.3d at 632.
Bahn pleaded that Baylor was vicariously liable for Dr. Albo's conduct and Dr. Goldman's report satisfies Chapter 74's requirements with respect to Bahn's claims against Dr. Albo. Therefore, the trial court did not abuse its discretion by implicitly finding the report adequate was to Bahn's claim that Baylor is vicariously liable for Dr. Albo's actions. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013); Gardner, 274 S.W.3d at 671-72. Because the trial court did not abuse its discretion by finding the report adequate as to Bahn's vicarious liability claim against Baylor, Bahn's suit against Baylor can continue in its entirety and we do not need to consider whether the report is also sufficient with respect to Bahn's direct liability claim against Baylor. See Potts, 392 S.W.3d at 632.
Having determined that Dr. Goldman's report constitutes a good-faith effort to comply with Chapter 74's expert report requirements with regard to Dr. Albo and Baylor, we do not need to address their third issue.
Conclusion
We affirm the trial court's order.
Russell Lloyd
Justice Panel consists of Justices Massengale, Lloyd, and Caughey.