Opinion
NO. 14-19-00950-CV
01-12-2021
OMAR DURRANI, M.D., Appellant v. OSCAR AYALA & VELMA AYALA, Appellees
On Appeal from the 152nd District Court Harris County, Texas
Trial Court Cause No. 2019-05077
MEMORANDUM OPINION
Appellant, Omar Durrani, M.D., appeals the trial court's denial of his motion to dismiss under the Texas Medical Liability Act ("TMLA"). Dr. Durrani contends that the trial court was required to dismiss the lawsuit because appellees' expert report failed to articulate an applicable standard of care and failed to sufficiently explain breach and causation. We conclude, however, that the expert's assertions and conclusions regarding standard of care, breach, and causation are sufficient, and we affirm the trial court's ruling.
The TMLA is codified in chapter 74 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 74.001-.507.
Background
Appellees filed a healthcare liability lawsuit against Dr. Durrani. Appellees alleged that Dr. Durrani treated Oscar Ayala for a medical condition called phimosis, or tight foreskin. Dr. Durrani recommended that Ayala undergo a circumcision to treat his condition.
Appellees are Oscar and Velma Ayala. Velma seeks damages for loss of consortium. Our analysis of the expert-report issue applies equally to the claims of both appellees.
Merriam-Webster defines phimosis as "tightness or constriction of the orifice of the foreskin arising either congenitally or postnatally (as from balanoposthitis) and preventing retraction of the foreskin over the glans." See "Phimosis," Merriam-Webster Online, available at https://www.merriam-webster.com/medical/phimosis.
In June 2017, Dr. Durrani performed the recommended circumcision. Soon after the surgery, Ayala complained to Dr. Durrani of pain during the recovery process and expressed his belief that the doctor had removed too much foreskin.
In follow-up communications and visits during July and August, Ayala repeatedly complained that he was experiencing pain and that his penis looked abnormal and could no longer become fully erect. On August 25, 2017, Dr. Durrani performed a second circumcision. Shortly after surgery, Ayala once again contacted Dr. Durrani, complaining of severe and persistent pain. Ayala also complained about the amount of foreskin removed during the second circumcision, asserting that the surgery had left Ayala "with no 'shaft' to his penis." Ayala told Dr. Durrani that only the head of his penis was visible, and he could no longer obtain an erection because "there was nothing to erect."
At a follow-up appointment, Dr. Durrani advised Ayala that he would require a skin graft to rebuild the shaft of his penis due to removal of too much foreskin.
Appellees sued Dr. Durrani for negligence. They timely served an expert report from Dr. Kevin Nickell, a licensed physician who is board-certified in urology. Dr. Nickell opined that Dr. Durrani breached the standard of care, which required Dr. Durrani "to take pains to not remove too much of the penile shaft skin at the time of the circumcision." Dr. Nickell opined that "too much penile skin had been removed with the circumcisions, resulting in difficulty aiming the urinary stream, pain with erections, and inability to penetrate with intercourse." Further, in Dr. Nickell's opinion, Dr. Durrani's removal of the majority of Ayala's penile shaft skin severely limited the functional length of Ayala's penis, for which Ayala would need additional corrective surgery.
Dr. Durrani objected to Dr. Nickell's report as deficient. Specifically, Dr. Durrani contended that Dr. Nickell's report was impermissibly conclusory regarding the standard of care, breach, and causation. The trial court granted Ayala a thirty-day extension to cure any defects in Dr. Nickell's expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(c).
Appellees served a second report from Dr. Nickell. In this report, Dr. Nickell wrote:
Regarding the case of Oscar Ayala, DOB [redacted]
After review of the pertinent medical records, and seeing Mr. Ayala in my office, my conclusions are as follows.
Mr. Ayala had a circumcision performed for phimosis by Dr. Omar Durrani in his office under local anesthesia on 6/23/2017. This was initially planned under sedation, but secondary to the patient's morbid obesity, local anesthesia was used. Following the circumcision, at a
post-operative examination, on 7/26/2017, the foreskin was not completely retractable, and redo circumcision was recommended.
The redo circumcision was performed on 8/25/2017, again under local anesthesia. This was described by both Dr. Durrani and the patient as being difficult, a traction suture on the glans penis was necessary to allow exposure. Following the procedure, the patient complained of skin tightness with erections, local wound care was necessary for skin separation on the dorsal section of the incision, and wound care measures were necessary.
When I saw him in my office on 12/29/2017, Mr. Ayala complained of difficulty with aiming his urinary stream, painful erections from the pulling sensation of the skin, and inability to penetrate with sexual intercourse. On exam, even though his [sic] was morbidly obese with a BMI of 53.2 (370 pounds, 5ft, 10 inches), there was not an abundance of mons fatty tissue, or sagging or fallen pannus. The circumcision scar was well healed, but there was less than 2 cm of penile shaft skin anteriorly, dorsally there was slightly more skin, but this was clearly inadequate when the penis was placed on stretch. This lack of skin creates the problem of burying the shaft of the penis into the mons, effectively limiting the normal penile length. This makes aiming the urinary stream difficult. It also has the effect, by limiting the erect penis, of making erections unsatisfactory, shortening the effective length of the penis.
From my review of the records and my examination of [] Mr. Ayala, it was clear that too much penile skin had been removed with the circumcisions, resulting in difficulty aiming the urinary stream, pain with erections, and inability to penetrate with intercourse. My opinion was that he would require corrective surgery to manage this situation.
Phimosis, or scarring of the foreskin preventing retraction, is generally treated by circumcision. Mr. Ayala is morbidly obese, but on exam, he did not have an excess of mons pubis fat, and his fat did not "bury" the penis. His [sic] simply had too much skin removed with the two circumcision procedures, and the resultant removal of the majority of his penile shaft skin severely limits the functional length of his penis.
My opinions, based on reasonable medical probability, are as follows,
1. Phimosis in the morbid obese patient poses a large problem. Morbid obesity with its attendant suprapubic and mons pubis
fatty deposition can "fall over and cover the penis". Patients with morbid obesity are at high risk for failure after circumcision since the remaining skin and [sic] push over the glans penis, and re-phimose (re-scar), recreating the original problem. A second circumcision runs the risk of "short-sheeting", i.e. removing too much penile shaft skin, and further burying the penis. At the extreme, only the glans (head) penis can exit the skin and the corporal bodies of the penis are trapped beneath. On my exam, even given Mr. Ayala's morbid obesity, he did not have significant mons fat.
The penile foreskin has 2 layers, a mucosal side (inner) and the outer skin. My opinion is that at the initial circumcision, not enough mucosal skin was taken allowing skin to again cause phimosis. A revision should only attempt to remove the minimal amount (usually remaining mucosal skin) to allow exposure of the glans penis. Clearly too much penile shaft skin was removed in Mr. Ayala's case.
2. Circumcision is a surgical procedure which can be performed under local anesthesia. However, in the United States, the majority of adult circumcisions are performed under general anesthesia. The original circumcision was to be performed with sedation in the office. The sedation (other than oral) was cancelled secondary to his obesity. The first operation was described as "truly a difficult case", and in my opinion, Mr. Ayala would have been better served with general, rather than local anesthesia. The use of a traction suture for exposure points to the difficulty Dr. Durrani faced with the revision surgery, and better anesthesia would likely have allowed for a more careful revision, under less stressful conditions.
The 2 circumcisions have left the patient with a paucity of penile shaft skin. He will require corrective surgery to address this issue. Removing too much skin in an adult circumcision is avoidable and points to the negligence of the circumcisions performed.
Dr. Durrani again objected to Dr. Nickell's report as being impermissibly conclusory regarding standard of care, breach, and causation. Dr. Durrani also moved to dismiss Ayala's lawsuit under the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351(b). The trial court overruled Dr. Durrani's objections and denied his motion to dismiss.
Dr. Durrani timely challenged the ruling in this accelerated interlocutory appeal. Asserting that appellees are not entitled to an additional opportunity to cure the alleged defects in Dr. Nickell's expert report, Dr. Durrani seeks a rendition of judgment that the case be dismissed.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Tex. R. App. P. 28.1(a).
Analysis
In a single issue, Dr. Durrani argues that the trial court erred in denying his motion to dismiss because appellees served a deficient expert report that failed to explain in a non-conclusory manner the standard of care, the breach of the standard of care, or the causal connection between the alleged breach of the standard of care and the alleged injuries.
A. Applicable Law and Standard of Review
The TMLA requires a plaintiff asserting a health care liability claim to file an expert report and serve it on each party against whom the claim is asserted, not later than the 120th day after the petition is filed. See Tex. Civ. Prac. & Rem. Code § 74.351(a). An expert report means "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. § 74.351(r)(6).
The TMLA defines a "health care liability claim" as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). There is no dispute that appellees' claim against Dr. Durrani is a health care liability claim.
The expert report need not marshal all of the plaintiff's proof, but it must include the expert's opinion on the three statutory elements: standard of care, breach, and causation. See Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). To pass muster, a plaintiff's expert report must "represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Tex. Civ. Prac. & Rem. Code § 74.351(l). An expert report meeting the good faith standard must provide sufficient information to fulfill two statutory 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 claims have merit. See Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2010); Palacios, 46 S.W.3d at 879. The purpose of this requirement "is to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims." Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018).
To meet these minimum standards, "'the expert must explain the basis of his statements to link his conclusions to the facts.'" Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). The expert need not use "magical words," nor is the report held to the same standards as evidence offered on summary judgment or at trial. Jelinek v. Casas, 328 S.W.3d 526, 540 (Tex. 2010); see also Kelly, 255 S.W.3d at 672. But the expert must articulate more than bare conclusions or speculation. Rice v. McLaren, 554 S.W.3d 195, 200-01 (Tex. App.—Houston [14th Dist.] 2018, no pet.); see also Palacios, 46 S.W.3d at 879. A report that merely states the expert's conclusions as to the standard of care, breach, and causation does not fulfill the statutory purposes. Scoresby, 346 S.W.3d at 556 & n.61.
If the trial court concludes that the expert report does not constitute an objective good faith effort to comply with the statute, the court must, on the motion of the affected health care provider, dismiss the plaintiff's claim with prejudice. Tex. Civ. Prac. & Rem. Code § 74.351(b), (l); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam); Bowie Mem'l Hosp., 79 S.W.3d at 51-52; Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). If, on the other hand, the trial court concludes that the report represents an objective good faith effort to comply with the statute but is nevertheless deficient in some regard, the court may grant the plaintiff one thirty-day extension to attempt to cure the deficiency. See Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 556-57; Gannon, 321 S.W.3d at 885.
We review a trial court's ruling on a motion to dismiss challenging the adequacy of an expert report for an abuse of discretion. See Palacios, 46 S.W.3d at 875; Rice, 554 S.W.3d at 200. A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to any guiding rules or principles. Jelinek, 328 S.W.3d at 539; Rice, 554 S.W.3d at 200. When reviewing a matter committed to the discretion of the trial court, a court of appeals may not substitute its judgment for that of the trial court. See Bowie Mem'l Hosp., 79 S.W.3d at 52. Because the statute focuses on the report's contents, our review is constrained to the report's four corners. Palacios, 46 S.W.3d at 878. We view the report in its entirety, rather than isolating specific portions or sections, to determine whether it includes the required information. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015); see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282 (Tex. App.—Austin 2007, no pet.) ("The form of the report and the location of the information in the report are not dispositive.").
We pause to note which of Dr. Nickell's two reports we are considering. The parties dispute whether we must confine our review only to the latter report, or whether we may or must consider both. Generally, an amended expert report served after a thirty-day extension granted by the trial court supersedes any initial report filed by the claimant. See Clavijo v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, at *7 n.9 (Tex. App.—Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.); Otero v. Leon, 319 S.W.3d 195, 204-05 (Tex. App.—Corpus Christi 2010, pet. denied); HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 909 (Tex. App.—Dallas 2007, no pet.) (holding that amended expert report "supplants" previously filed report). However, when an expert report has been "supplemented," instead of amended, courts have considered both the original and supplemental reports in conducting an analysis of the adequacy of the reports. See Packard v. Guerra, 252 S.W.3d 511, 515-16, 534-35 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (considering previously filed reports that were refiled and "supplemented"); Clavijo, 2018 WL 2976116, at *7 n.9. For the reasons explained below, we conclude that Dr. Nickell's second report by itself is sufficient. As an analysis of his first report is not material to the outcome, we need not decide whether to look to that report in evaluating the trial court's ruling.
B. Standard of Care
To adequately identify the standard of care, an expert report must set forth "specific information about what the defendant should have done differently." Abshire, 563 S.W.3d at 226. While the Act requires only a "fair summary" of the standard of care and how it was breached, "even a fair summary must set out what care was expected, but not given." Id.
The substance of Ayala's medical malpractice claim is that Dr. Durrani's negligence in performing the circumcisions and removing too much foreskin caused Ayala injury. In evaluating the sufficiency of Dr. Nickell's expert report in support of this claim, particularly with respect to the standard-of-care element, the following statements are especially pertinent:
• A second circumcision runs the risk of "short-sheeting", i.e. removing too much penile shaft skin, and further burying the penis.
• The penile foreskin has 2 layers, a mucosal side (inner) and the outer skin. My opinion is that at the initial circumcision, not enough mucosal skin was taken allowing skin to again cause phimosis. A revision should only attempt to remove the minimal amount (usually remaining mucosal skin) to allow exposure of the glans penis. Clearly too much penile shaft skin was removed in Mr. Ayala's case.
• Circumcision is a surgical procedure which can be performed under local anesthesia. However, in the United States, the majority of adult circumcisions are performed under general anesthesia. The original circumcision was to be performed with sedation in the office. The sedation (other than oral) was cancelled secondary to [Ayala's] obesity. The first operation was described as "truly a difficult case", and in my opinion, Mr. Ayala would have been better served with general, rather than local anesthesia. The use of a traction suture for exposure points to the difficulty Dr. Durrani faced with the revision surgery, and better anesthesia would likely have allowed for a more careful revision, under less stressful conditions.
Dr. Durrani contends that Dr. Nickell's report failed to include any statement whatsoever describing any standard of care, juxtaposing Dr. Nickell's original report—which included the statement "The applicable standard of care is to take pains to not remove too much of the penile shaft skin at the time of the circumcision"—with the revised report, which did not include this language.
Because no magic words are required, the simple omission of the phrase "applicable standard of care" does not render Dr. Nickell's report deficient. See Patel v. Williams ex rel. Estate of Mitchell, 237 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ("[T]here is nothing in section 74.351 requiring standards of care to be described using any specific terms, phrases, or magic words."). Before considering whether Dr. Nickell's report adequately states an applicable standard of care, we briefly discuss the cases on which each side relies to support their respective positions.
Dr. Durrani likens Dr. Nickell's report to impermissibly conclusory reports that courts have determined are deficient. In Palacios, a patient asserted claims against a hospital after the patient, who had severe brain damage and had been prescribed bed restraints, fell from his hospital bed. Palacios, 46 S.W.3d at 876. The expert report stated that "precautions to prevent his fall were not properly utilized." Id. The supreme court concluded that the report contained conclusory statements that did not "put the defendant or the trial court on notice of the conduct complained of"—i.e., what "precautions" the hospital should have utilized, such as whether the hospital should have "monitored [the patient] more closely, restrained him more securely, or done something else entirely." Id. at 880. In light of the absence of information about what the hospital should have done differently, the court held the trial court did not abuse its discretion in concluding the report did not qualify as "a good-faith effort to provide a fair summary of the standard of care and how it was breached." Id.
In a similar case from the San Antonio Court of Appeals, the inadequate expert report stated that the standard of care applicable to a surgeon conducting an abdominoplasty required preservation of a sufficient blood supply to the abdominal wall, but the report failed to explain "how a surgeon goes about preserving a sufficient blood supply" or how the defendant physician failed to do so. Lawton v. Joaquin, No. 04-13-00613-CV, 2014 WL 783340, at *3 (Tex. App.—San Antonio Feb. 26, 2014, pet. denied) (mem. op.). Because the report did not provide the requisite, specific information about what the defendant should have done differently, the report was deficient under the TMLA. Id.
Ayala contends that Palacios and Lawton are distinguishable, and that Dr. Nickell's report here includes more detail than the unsupported, conclusory assertions found to be inadequate in those cases. Ayala directs us to Baty v. Futrell, 543 S.W.3d 689 (Tex. 2018) and Garza v. DeLeon, No. 13-13-00342-CV, 2013 WL 6730177 (Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (mem. op.), in which those courts found challenged expert reports to be sufficient. In Baty, a patient alleged that her doctor negligently administered an anesthetic block, causing permanent nerve damage and vision loss. Baty, 543 S.W.3d at 694. The expert report stated that the standard of care required "administering the block in the proper manner to preclude injuring the delicate structures of the orbit, including the globe and optic nerve." Id. The doctor argued that the report's articulation of the standard of care was conclusory, because it simply stated that the block must be administered "in the proper manner," with no explanation of what the "proper manner" entailed. Id. The supreme court disagreed, noting that the expert opined that the doctor breached the standard by "sticking [the optic nerve] with the retrobulbar needle" "during the administration of the retrobulbar block." Id. at 695. The court reasoned that if sticking the optic nerve with the retrobulbar needle was a breach of the standard of care—which required administering the block in the proper manner—"then the 'proper manner' necessarily encompasse[d] not sticking the optic nerve with the retrobulbar needle." Id.
The Baty court relied on an intermediate appellate court decision in Garza. There, a child's parents brought a health care liability claim against the doctor who performed an elective circumcision on their son. Garza, 2013 WL 6730177, at *1. The plaintiffs' expert report stated that the standard of care was "to perform the circumcision by removing an appropriate amount of foreskin without excessive bleeding and without injury to the urethra." Id. at *3. The report also stated that the doctor breached the standard of care by "removing too much skin, cutting into the urethra or crushing the urethra—or all three." Id. The doctor challenged the report, arguing it was "nothing but an extended conclusory statement" that did not specifically explain what actions were required to avoid injury while performing a circumcision, as it did not describe how much foreskin should have been removed or how electrocautery should have been used to avoid damaging the urethra. Id. The court of appeals ultimately held that the report was sufficient because it "state[d] the actions [the doctor] was supposed to avoid doing when conducting the surgery: cutting into the urethra with either a scalpel or an electrocautery tool, crushing the urethra with the circumcision clamp, or puncturing the urethra with a suture." Id. at *4.
We agree with Ayala that Dr. Nickell's report is more like the reports found adequate in Baty and Garza than the deficient reports in Palacios and Lawton. Dr. Nickell stated that during the initial circumcision, "not enough mucosal skin was taken allowing skin to again cause phimosis." After explaining that a revision circumcision "should only attempt to remove the minimal amount (usually remaining mucosal skin) to allow exposure of the glans penis," Dr. Nickell opined that Dr. Durrani removed "too much penile shaft skin" during Ayala's second circumcision. The report expressly references the specific conduct called into question, and the standard of care thus stated is to "remove the minimal amount [of skin] . . . to allow exposure of the glans penis." See Baty, 543 S.W.3d at 694-95; Garza, 2013 WL 6730177, at *3-4. This is a fair summary of what care was expected, but not given, sufficient to satisfy the expert report requirement's dual goals. See Abshire, 563 S.W.3d at 226. Dr. Nickell's report apprises Dr. Durrani of the conduct that is being called into question and provides enough information to provide a basis for the trial court to conclude that the claims are meritorious. See Garza, 2013 WL 6730177, at *3-4; cf. Palacios, 46 S.W.3d at 879-80; Lawton, 2014 WL 783340, at *3.
Furthermore, the report notes that "the majority of adult circumcisions are performed under general anesthesia," and that Ayala's circumcisions, performed under local anesthesia, were difficult, requiring the use of a traction suture for exposure. Dr. Nickell opined that Dr. Durrani may have been able to perform the revision circumcision more carefully had Ayala been placed under general anesthesia instead of given a local anesthetic. The report's reference to an alternative method—i.e., different anesthesia—provides some indication of what Dr. Durrani should have done differently to avoid breaching the standard of care, which was removing more skin than necessary to expose the glans. See Baty, 543 S.W.3d at 695 ("The report's express reference to an alternative method provides some indication of what Futrell should have done differently.").
Additional detail is not required at this stage of the proceedings. Dr. Nickell's report adequately states an applicable standard of care.
C. Breach and Causation
The expert report's sufficiency as to the breach element is tied to its sufficiency as to standard of care. See Baty, 543 S.W.3d at 697. For the reasons already discussed, Dr. Nickell's report adequately explains that Dr. Durrani breached the standard of care by removing too much foreskin or more skin than necessary to expose the glans. See id.
Dr. Durrani argues that Dr. Nickell's report is deficient because it fails to identify Dr. Durrani as the actor who performed the second circumcision. According to Dr. Durrani, the use of passive voice in Dr. Nickell's report—"The redo circumcision was performed on 8/25/2017, again under local anesthesia"—is insufficient to connect Dr. Durrani to the criticized conduct. Dr. Durrani does not cite any authority for the proposition that use of passive voice renders an expert report deficient, and so we are not persuaded to accept this proposition. Dr. Nickell's report identified Dr. Durrani as the doctor from whom Ayala sought medical care and attributed Dr. Durrani's description of the second circumcision as "difficult," and thus the report is sufficient to connect Dr. Durrani to the alleged breach of the standard of care for both the initial and corrective circumcisions.
Regarding causation, an expert report must explain, to a reasonable degree of medical probability, how and why the alleged negligence caused the complained-of injury. See Jelinek, 328 S.W.3d at 536. "An expert report prepared pursuant to the Act may not have an 'analytical gap' or a 'missing link' between the expert's allegation that the healthcare provider defendant breached the standard of care and the plaintiff's injuries." Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 23, 25 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (concluding that expert's "opinion on causation contains analytical gaps and missing links which render his opinion conclusory"). Courts cannot fill in missing gaps in a report by drawing inferences or resorting to guesswork. See Wright, 79 S.W.3d at 53.
The causal relationship required in a healthcare-liability claim is proximate cause. See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (defining "health care liability claim" as cause of action for physician's or healthcare provider's breach of standard of care "which proximately results in injury to or death of a claimant"). Although the report need not use "proximate cause," "foreseeability," or "cause in fact" as "magical words," to satisfy the Act's requirements and show how and why a breach of the standard of care caused injury, the expert report must make a good-faith effort to explain, factually, how proximate cause will be proven. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). Without factual explanations, reports amount to "nothing more than the ipse dixit of the experts," which the supreme court has said are "clearly insufficient." Id. at 461.
Proximate cause has two components: (1) foreseeability and (2) cause-in-fact. Id. Accordingly, an expert report under the Act must explain both foreseeability and cause-in-fact. See Miller, 536 S.W.3d at 515 (citing Zamarripa, 526 S.W.3d at 460). A healthcare provider's breach was a foreseeable cause of the plaintiff's injury if a healthcare provider of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. See Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)). For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission—i.e., but for the act or omission—the harm would not have occurred. Zamarripa, 526 S.W.3d at 460.
Concerning foreseeability, Dr. Nickell's report makes clear that removing too much foreskin could result in harm. He stated that removing too much skin in an adult circumcision is avoidable and that removing too much penile shaft skin could cause, at the extreme, a circumstance where only the glans can exit the skin and the corporal bodies of the penis are trapped beneath the skin. See Miller, 536 S.W.3d at 515. And as to cause-in-fact, Dr. Nickell opined that the two circumcisions left Ayala with a paucity of penile shaft skin, which will require corrective surgery. See id. We therefore conclude that Dr. Nickell's report sufficiently states the expert's opinion as to causation.
In sum, Dr. Nickell's report provides a sufficient summary of the applicable standard of care (to avoid removing more foreskin than is necessary to expose the glans), how Dr. Durrani breached that standard (removing too much foreskin or more foreskin than was necessary), and how that breach caused Ayala's injuries (leaving Ayala with insufficient skin on his penile shaft). Accordingly, we hold that the trial court did not abuse its discretion in concluding that Dr. Nickell's report constitutes an objective good faith effort to comply with the TMLA's definition of an expert report.
Conclusion
We overrule Dr. Durrani's sole issue, and we affirm the trial court's order.
/s/ Kevin Jewell
Justice Panel consists of Chief Justice Christopher and Justices Jewell and Zimmerer.