Opinion
NO. 01-17-00943-CV
07-12-2018
THOMAS KEVIN COOK, M.D., CRANIOFACIAL AND PLASTIC SURGERY CENTER - HOUSTON, AND QIJUN SONG, CSA, Appellants v. KATHLEEN BROUSSARD, Appellee
On Appeal from the 164th District Court Harris County, Texas
Trial Court Case No. 2013-32676
MEMORANDUM OPINION
In this interlocutory appeal, appellants Thomas Kevin Cook, M.D.; Craniofacial and Plastic Surgery Center - Houston; and Qijun Song, CSA, challenge the trial court's conclusion that appellee's expert report was sufficient to allow her medical-malpractice lawsuit to proceed. We agree with appellants. The expert report and related curriculum vitae (CV) fail to show that the expert, an ophthalmologist, is qualified to opine on the standard of care for a plastic surgeon and plastic surgeon's assistant performing surgery on a fractured facial bone. The expert report is thus deficient. We reverse the trial court's order denying the motions to dismiss and remand for further proceedings consistent with this opinion.
Cook and the Craniofacial and Plastic Surgery Center - Houston filed one brief, and Song filed another. The arguments in the two briefs are substantively identical. We address the arguments together.
Background
After Broussard fell and suffered a complex fracture to a facial bone, specifically, a bone in her eye socket, she underwent surgery. Dr. Cook, a craniofacial plastic surgeon, performed the procedure, and he was assisted by Song, a certified surgical assistant. During the surgery, Broussard sustained a tear to her lower eyelid.
Specifically, she had an open reduction and internal fixation of a right zygomatic complex fracture.
Broussard sued Dr. Cook, his practice group, the Craniofacial and Plastic Surgery Center - Houston, and Song, as well as other defendants not included in this appeal, alleging medical malpractice. Broussard served an expert report by Dr. Peter Kastl, an ophthalmologist, on the defendants. The report stated in relevant part:
I am in receipt of various medical records . . . concerning the above legal matter. I am a board-certified ophthalmologist and a full-time professor of ophthalmology at the Tulane University School of Medicine in New Orleans. My job is to perform and teach ophthalmic surgical techniques to residents and fellows, and I have done so at Tulane University Hospital, 2 VA hospitals, and currently at Rapides Regional Medical Center in Alexandria, Louisiana. I have published over 100 articles in ophthalmology. I am well acquainted with the type of surgery of this legal case and currently get involved with surgical cases like this one.
The standard of care for Dr. Thomas Kevin Cook and Quijun [sic] Song, CSA for a blowout fracture of the orbit is to repair the fracture without causing further injury to the patient.
In this case the lower lid was torn by a retractor. There is no circumstance of this surgery where a torn eyelid is a known complication. This injury was a breach in the standard of care by Dr. Thomas Kevin Cook and/or Quijun [sic] Song, CSA when one of them, or both of them, made an inappropriate movement during their procedure on Mrs. Kathleen Broussard. The report of the procedure is unclear as to whether Dr. Cook and/or CSA Song made the inappropriate movement causing the injury to Mrs. Broussard.
Because of this breach in the standard of care by Dr. Cook and Quijun [sic] Song, CSA, the patient had to undergo further surgery by Dr. Marc N. Longo who performed lid reconstructions and tubes right eye.
Appellants filed motions to dismiss Broussard's claims, challenging the adequacy of the expert report as to standard of care, breach, causation, and Dr. Kastl's qualifications. The trial court granted Broussard a 30-day extension to cure the report as to the standard of care.
Broussard served a supplemental expert report from Dr. Kastl. The supplemental report stated in relevant part:
As I pointed out in my original report[,] the injury to Mrs. Broussard's lower eyelid involved a tear by a retractor. From the operative report, it appears that Dr. Kevin Cook was holding an instrument and CSA Song was holding the retractor. The operative report, itself, describes the movements which constituted a breach of the standard of care, as I described in my first report, and to quote from the operative report:
The inferior orbital rim on the medial side was displaced inferiorly and posteriorly. It was grasped with an instrument to gently work it out and into position. At this time, the instrument slipped and a Desmarres retractor, which was retracted in the medial aspect of the lid, placed excessive tension placed [sic] on it. There was a subsequent tear in the lid at the level just lateral to the medial canthus. Due to the location and nature of the injury, it was confirmed by examining the puncta and intubating it with a metal intubator. Both the medial and lateral aspects of the lacrimal duct system were identified. . . . The patient will be admitted this afternoon for observation. I will discuss with her the complication that occurred in the O.R. I have already been in contact with an oculoplastic surgeon for the purposes of having her seen, evaluated, and that appropriate repair done to her damage to right lower lid and lacrimal system. [(Emphasis omitted)]
As evidence from this quote from the operative report, at the time of the injury, Dr. Cook was holding an instrument that "slipped," and that a Desmarres retractor, which was held by CSA Song, placed excessive tension on the medial aspect of the eyelid. These are the breaches of the standard of care to which I referred in my original report. As can be seen by the operative report, there is no question about the injury that was caused by the inappropriate movement(s) by Dr. Cook and/or CSA Song. When the depositions of Dr. Cook and CSA Song are taken, we may learn more about these inappropriate movements by Dr. Cook and CSA Song, in which case I respectfully reserve the right to supplement my reports based on their sworn testimony.
Appellants subsequently filed motions to dismiss, again challenging the adequacy of the expert report and its supplement as to Dr. Kastl's qualifications, as well as standard of care, breach, and causation. With respect to qualifications, the appellants challenged whether Dr. Kastl had shown that he was qualified to opine on the performance by a plastic surgeon and plastic surgeon's surgical assistant of the plastic-surgery procedure at issue. The trial court denied the motions to dismiss, and appellants appealed.
Discussion
Appellants contend that the trial court abused its discretion in denying their motions because Dr. Kastl was not qualified to offer an opinion regarding their performance of the surgical procedure at issue. Following our precedent, we conclude that the report (and related CV) failed to show that Dr. Kastl was qualified to offer an opinion on the standard of care for a plastic surgeon and his assistant when performing surgery on a fractured bone. We therefore reverse the trial court's decision.
A. Standard of Review
We review a trial court's ruling on a motion to dismiss pursuant to Civil Practice & Remedies Code § 74.351 for an abuse of discretion. Mangin v. Wendt, 480 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2015, no pet.). In exercising its discretion, a trial court should review the reports, resolve any inconsistencies, and determine whether the reports demonstrate a good-faith effort to show that the plaintiff's claims have merit. Id. A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. Poland v. Ott, 278 S.W.3d 39, 45 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
B. Applicable Law
Chapter 74 of the Civil Practice and Remedies Code requires a plaintiff asserting a health care liability claim to serve each defendant physician or health care provider with one or more expert reports and a curriculum vitae of each expert whose opinion is offered to substantiate the merits of the claim. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (i). The expert report must provide a fair summary of the expert's opinions regarding: (1) the applicable standards of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6).
The expert report need not marshal all of the plaintiff's proof, but it must demonstrate an objective good faith effort to comply with the statutory requirements. See TEX. CIV. PRAC. & REM. CODE § 74.351(l); Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). To constitute a good-faith effort to comply with the statute, the report must provide enough information to fulfill two purposes: it must (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 claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. In making this determination, the trial court is to review the information contained within the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). When the question of adequacy hinges on the expert's qualifications, the court also considers what is within the four corners of the expert's curriculum vitae. See Palacios, 46 S.W.3d at 877 (noting that the inclusion of a curriculum vitae is also required by statute); Woodard v. Fortress Ins. Co., No. 01-14-00792-CV, 2015 WL 1020193, at *1 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, pet. denied) (mem. op.).
In order to be qualified as an expert witness on the question of whether the defendant departed from an accepted standard of medical care causing the alleged damages, the expert must (1) be practicing medicine at the time he testifies or when the claim arose; (2) have "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) be "qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care." TEX. CIV. PRAC. & REM. CODE § 74.401(a)(1)-(3). To determine whether a witness is qualified based on his training and experience, a trial court considers whether the witness is "board certified or has other substantial training or experience 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." Id. § 74.401(c)(1)-(2).
Not every licensed physician is qualified to testify about every medical question. Mangin, 480 S.W.3d at 707 (citing Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)). A physician may be qualified to provide an expert report even when his specialty differs from that of the defendant "if he has practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those confronting the malpractice defendant," or "if the subject matter is common to and equally recognized and developed in all fields of practice." Id. (emphasis in original) (quoting Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). The critical inquiry is "whether the expert's expertise goes to the very matter on which he or she is to give an opinion." Id. (quoting Broders, 924 S.W.2d at 153).
C. Analysis
Dr. Kastl's report is deficient because it does not show that he—an ophthalmologist—is qualified to testify as an expert witness on the question of whether the defendants departed from the applicable accepted standard of medical care for a plastic surgeon and his assistant performing surgery on a fractured facial bone. That the bone was near the eye and part of the eye socket does not change the fact that this case concerns bone surgery, not eye surgery. And Dr. Kastl's report and curriculum vitae do not show the required expertise.
Chapter 74 requires a standard of care expert to have "knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim," and be "qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care." TEX. CIV. PRAC. & REM. CODE § 74.401(a)(2)-(3). The central question before us is whether Dr. Kastl's expertise "goes to the very matter on which he . . . is to give an opinion." Mangin, 480 S.W.3d at 707. It does not.
Mangin is instructive. In that case, Dr. Mangin, a cardiologist, performed an angioplasty and implanted a stent in Wendt. Id. at 704. During the procedure, Mangin perforated one of Wendt's arteries. Id. An anesthesia provider who responded to the call for assistance attempted to establish ventilation by intubating Wendt, but mistakenly first inserted the tube in Wendt's esophagus. Id. Wendt's oxygen levels dropped and he experienced cardiac arrest. Id. Unfortunately, the loss of oxygen caused irreparable brain damage, and Wendt died two days later. Id.
Wendt's estate and his two daughters sued Dr. Mangin, the hospital, and other involved doctors. Id. With respect to Dr. Mangin, the plaintiffs served an expert report from an anesthesiologist, Dr. Memon, regarding whether Dr. Mangin departed from an accepted standard of medical care when performing the heart surgery causing the alleged damages to Wendt. Id. at 707-08. Dr. Mangin moved to dismiss the claim against him on the grounds that Dr. Memon was not qualified to render an expert opinion about Mangin's performance of heart surgery. Id. at 707-10. Our court agreed.
We explained that Dr. Memon's opinions as to Dr. Mangin (as opposed to an anesthesiologist) "implicate[d] the qualifications required for, and the adequacy of performance of, heart surgery relating to inserting a stent and managing complications of that procedure." Id. at 708. This required us to "determine whether Dr. Memon's report and curriculum vitae demonstrate that he is qualified to offer specific expert opinions despite the fact that he is neither board certified in nor actively practicing cardiology." Id. We noted that Dr. Memon was a board-certified anesthesiologist with extensive education and experience in anesthesiology and pain management. Id. We also noted that Dr. Memon stated that he was experienced in the administration of anesthesia and intubation of patients during surgical procedures (like the surgery at issue), and "familiar with the possible complications that can arise during treatment of an acute myocardial infarction and the remedial measures necessary if such complications arise." Id. at 708-09. And Dr. Memon stated that he had "substantial knowledge of the causal relationship between an anesthesiologist's and general and traumatic surgeon's failures to meet the reasonable, prudent, and accepted standards of medical care and supervision in the diagnosis, care and treatment of patients requiring ventilation and/or undergoing general anesthesia for cardiac surgical procedures under both planned and emergent conditions." Id. at 709.
But this Court concluded that although Dr. Memon asserted familiarity with the standards of care for "general and traumatic surgeons," he did not make any assertions of expertise pertaining to a cardiologist's duties when providing cardiac care. Id. Dr. Memon's report also did not explain whether and how his knowledge applied to the specific breaches that he attributed to Dr. Mangin. Id. Notably, this Court concluded that Dr. Memon's statement that he was "familiar" with the complications that can arise during treatments for acute myocardial infarction and the treatments for such complications was "vague and non-specific." Id. Dr. Memon's expert report did not "demonstrate how Dr. Memon's knowledge, skill, experience, training, or education qualified him to render an opinion about the particular breaches of the standard of care applicable to a cardiologist when the coronary artery was perforated during the catheterization procedure and during subsequent complications that occurred." Id. Knowledge about when and whether a cardiologist should seek help from a cardiac surgeon was not something common to all fields of medicine, and to the extent that Dr. Memon possessed such knowledge, the basis for this knowledge was not clearly articulated in his report and CV. Id. at 709-10.
That reasoning governs here. Dr. Kastl's opinion that Dr. Cook and Song violated the relevant standard of care implicates the qualifications required for, and adequacy of performance of, plastic surgery relating to the repair of broken facial bones. But Dr. Kastl's report makes no suggestion that he is board certified or has substantial training or experience in plastic surgery or other bone surgery, whether or not the bone is near the eye. Nor do his report or curriculum vitae suggest that he is actively practicing plastic or bone surgery. Cf. TEX. CIV. PRAC. & REM. CODE § 74.401(c)(1)-(2). We must thus "determine whether Dr. [Kastl's] report and curriculum vitae demonstrate that he is qualified to offer specific expert opinions despite the fact that he is neither board certified in nor actively practicing [plastic or other bone surgery]." Mangin, 480 S.W.3d at 708. They do not.
Dr. Kastl's curriculum vitae shows extensive education and experience in ophthalmology and ophthalmic surgical techniques. Ophthalmology is defined as the scientific study of the eyes and their diseases. Ophthalmology, CAMBRIDGE ENGLISH DICTIONARY, available at https://dictionary.cambridge.org/us/dictionary/english/ophthalmology (last visited July 3, 2018). Dr. Kastl is a board-certified ophthalmologist, has published over 100 articles in ophthalmology and is a full-time professor of ophthalmology at Tulane University School of Medicine. His resume details his extensive knowledge of cataracts, contacts, and eye disease. In fact, his curriculum vitae contains 106 publications, 103 presentations, and numerous symposia participation and courses—which demonstrate expertise in ophthalmology. Apart from his knowledge of ophthalmology, he asserts generally that he is "well acquainted with the type of surgery of this legal case and currently get[s] involved with surgical cases like this one."
Much like in Mangin, Dr. Kastl makes no assertion of expertise pertaining to a plastic or bone surgeon's, or surgeon's assistant's, duties when providing surgical care to repair fractured facial bones, including bones in the eye socket. See Mangin, 480 S.W.3d at 709. An eye-socket bone is distinct from the eye itself. Moreover, Dr. Kastl's statement that he is "well acquainted" with the type of surgery at issue and "currently get[s] involved" with surgical cases like this one is "vague and non-specific." See id. It does not demonstrate his qualifications to opine in this case. And his curriculum vitae and report do not otherwise show the required expertise.
At its core, Dr. Kastl's contention is that the relevant standard of care required the defendants to "repair the fracture without causing further injury to the patient," and that one or both of the defendants made an inappropriate movement during the surgical procedure at issue, causing the injury and breach of the standard of care. All of this turns on what a surgeon repairing a fractured bone should do when performing that surgery. The relevant question for our purposes is not where the patient may have ultimately suffered an injury, and if the expert has expertise as to that part of the body, but instead what the standard of care was for the practitioner providing the care at issue.
Dr. Kastl's report "d[id] not demonstrate how [his] knowledge, skill, experience, training, or education qualified him to render an opinion about" the performance of a plastic or bone surgeon (or his surgical assistant) during the surgical bone-repair procedure at issue here. Id. Moreover, what a plastic surgeon should do in performing surgery on a fractured facial bone is not something common to all fields of medicine. If Dr. Kastl possessed such knowledge, the basis for this knowledge was not clearly articulated in his report and CV. Id.
Under the specific facts presented here, Dr. Kastl's report fails to adequately link his training, knowledge, skill, education, and experience (as described in his curriculum vitae and expert report) with his specific opinions about how Dr. Cook's and Song's alleged conduct fell below the standard of care applicable to a plastic surgeon and surgeon's assistant performing surgery to repair a fractured facial bone. The logical gaps cannot be filled by inference. See id. at 710 (citing Scoresby, 346 S.W.3d at 556 (omissions from expert report may not be supplied by inference)).
Broussard argues that Dr. Kastl cannot be disqualified simply because his area of specialization differs from Dr. Cook's and Song's. Of course, Dr. Kastl's different area of specialization would not disqualify him if he had nevertheless demonstrated his qualifications. But he did not do so. As we have explained, he did not show that his "expertise goes to the very matter on which he or she is to give an opinion." Id. (quoting Broders, 924 S.W.2d at 153).
We sustain appellants' issue pertaining to Dr. Kastl's qualifications, and we reverse the trial court's order denying appellants' motions to dismiss. See id; Tawa v. Gentry, No. 01-12-00407-CV, 2013 WL 1694869, at *14 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) (doctor was not qualified to opine on nurse practitioner's standard of care when "[h]e [did] not claim to have experience training or supervising nurse practitioners or provide any other basis for the trial court to conclude that he was familiar with such standard"); Christus Spohn Health Sys. Corp. v. Castro, No. 13-13-00302-CV, 2013 WL 6576041, at *4 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.) (mem. op.) (experts were not qualified to opine regarding prevention and treatment of medical issues in the context of trauma/ICU).
* * *
Chapter 74 affords the trial court the ability to grant one 30-day extension for a claimant to cure deficiencies in his expert report. See TEX. CIV. PRAC. & REM. CODE § 74.351(c); cf. id. § 74.351(l). The Texas Supreme Court has instructed that "trial courts should be lenient in granting thirty-day extensions and must do so if deficiencies in an expert report can be cured within the thirty-day period." Scoresby, 346 S.W.3d at 554. The Texas Supreme Court has also concluded that "[a]n individual's lack of relevant qualifications and an opinion's inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so." Id. at 549.
Here, the trial court already afforded Broussard one 30-day extension to cure a deficiency in the report. See TEX. CIV. PRAC. & REM. CODE § 74.351(c). But the trial court did not identify Dr. Kastl's qualifications as a deficiency, and Broussard has not had an opportunity to cure on that basis. See Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 624-25 (Tex. App.—Fort Worth 2012, no pet.) ("[W]e may allow the trial court to grant another thirty-day extension on remand if we hold that the report is deficient in a different manner than found by the trial court when granting the original thirty-day extension.").
Under our precedent, "'when the court of appeals finds deficient a report that the trial court considered adequate,' the plaintiff should be afforded one 30-day extension to cure the deficiency, if possible." Mangin, 480 S.W.3d at 706 (quoting Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008)). We therefore remand to the trial court. See Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017); Scoresby, 346 S.W.3d at 554-57; Mangin, 480 S.W.3d at 706; Alvarez, 382 S.W.3d at 624-25.
Conclusion
We reverse the trial court's denial of appellants' motions to dismiss, and we remand to the trial court for further proceedings consistent with this opinion.
Jennifer Caughey
Justice Panel consists of Justices Higley, Brown, and Caughey.