Opinion
14-20-00795-CV
02-15-2022
CHARLISE GUNDERSON, M.D. AND COASTAL EYE ASSOCIATES, P.L.L.C., Appellants v. MAURACE WADE, INDIVIDUALLY AND ON BEHALF OF J.W., A MINOR, AND LATOYIA WALKER, Appellees
On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2020-05129
Panel consists of Justices Wise, Spain, and Hassan (Wise, J., concurring in judgment only).
MEMORANDUM OPINION
Meagan Hassan Justice.
Appellees Maurace Wade, individually and on behalf of J.W., a minor, and Latoyia Walker ("Appellees") sued appellants Charlise Gunderson, M.D. and Coastal Eye Associates, P.L.L.C. ("Appellants"), asserting health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13). Appellees served an expert report and Appellants responded with objections and a motion to dismiss. The trial court overruled Appellants' objections and denied their motion to dismiss.
For the reasons below, we affirm.
Background
When Jackson was seven years old, his pediatrician noticed that his left eye looked outward. The pediatrician referred Jackson to Dr. Gunderson, an ophthalmologist. Jackson visited Dr. Gunderson twice and, at his second appointment, Jackson was scheduled for strabismus surgery on both of his eyes. The surgery was completed in February 2017.
We use a pseudonym to refer to J.W., the minor in this case.
In October 2017, Jackson visited his pediatrician twice complaining of headaches and vomiting. Jackson was taken to the emergency room on October 15, 2017, and a CT scan showed a left occipital tumor in his brain. The tumor was surgically removed and pathology testing showed that it was a ganglioglioma, a slow-growing tumor. Post-surgery, Jackson lost approximately one-quarter of his visual field in each eye.
Appellees sued Jackson's pediatrician, Texas Gulf Coast Medical System, and Appellants, asserting the defendants negligently failed to diagnose and treat Jackson's condition. Appellees served the defendants with Dr. Todd Allen Lefkowitz's expert report and curriculum vitae pursuant to section 74.351 of the Texas Medical Liability Act. See id. § 74.351.
Prior to this appeal, Appellees dismissed Jackson's pediatrician and Texas Gulf Coast Medical System from the lawsuit. Jackson's pediatrician and Texas Gulf Coast Medical System are not parties to this appeal.
Dr. Lefkowitz currently practices as an ophthalmologist and has experience performing eye surgeries, including strabismus surgery. In his expert report, Dr. Lefkowitz opined that Dr. Gunderson violated the applicable standard of care by failing to perform a complete examination of Jackson's eyes, which would have included dilation of both pupils and a complete fundal exam. According to Dr. Lefkowitz, if Dr. Gunderson had performed these examinations the tumor would have been discovered sooner and removed while it was small enough to avoid damaging Jackson's vision.
Appellants objected to Dr. Lefkowitz's report, arguing that Dr. Lefkowitz was not qualified and that his opinion on causation was speculative and conclusory. Based on these objections, Appellants requested that the trial court dismiss Appellees' claims. In an order signed November 5, 2020, the trial court overruled Appellants' objections to Dr. Lefkowitz's report and denied their motion to dismiss. Appellants filed this interlocutory appeal. See id. § 51.014(9).
Analysis
Asserting the trial court abused its discretion by denying their motion to dismiss, Appellants contend that (1) Dr. Lefkowitz is not qualified to opine on causation, and (2) Dr. Lefkowitz's opinion on causation is speculative and conclusory. We address these issues below.
I. Overview of the Applicable Law and Standard of Review
The Texas Medical Liability Act requires that plaintiffs alleging a health care liability claim serve each defendant with an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 511 (Tex. 2017) (per curiam). An adequate expert report provides 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 those standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Naderi v. Ratnarajah, 572 S.W.3d 773, 778 (Tex. App.-Houston [14th Dist] 2019, no pet.).
"The purpose of the expert report requirement is to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims." Tex. Children's Hosp. v. Knight, 604 S.W.3d 162, 169 (Tex. App.-Houston [14th Dist] 2020, pet. denied). Therefore, it is not necessary that the expert report marshal all the plaintiffs proof; rather, an expert report is adequate if it constitutes a "good faith effort" to comply with the statutory requirements. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam); Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). This requires that the report "(1) inform[] the defendant of the specific conduct called into question and (2) provid[e] a basis for the trial court to conclude the claims have merit." Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018).
We review a trial court's decision to grant or deny a motion to dismiss based on the adequacy of an expert report for an abuse of discretion. Abshire, 563 S.W.3d at 223; Naderi, 572 S.W.3d at 778. The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Bowie Mem l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). In analyzing a report's sufficiency under this standard, we consider only the information contained within the four corners of the report. Abshire, 563 S.W.3d at 223.
II. Dr. Lefkowitz's Qualifications
Appellants argue that, because Dr. Lefkowitz does not have any training or experience in the treatment of gangliogliomas, he is not qualified to opine on causation in this case.
To be qualified to opine on the causal relationship between a defendant physician's alleged failure to meet an applicable standard of care and the plaintiffs claimed injury, harm, or damages, the author of an expert report must be a physician qualified to render opinions on such causal relationships under the Texas Rules of Evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a); see also Mem'l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 762 (Tex. App.- Houston [14th Dist] 2007, no pet.).
Under the Texas Rules of Evidence, an expert witness may be qualified on the basis of knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would "assist the trier of fact" in understanding the evidence or determining a fact issue. Tex. R. Evid. 702; see also Mem l Hermann Healthcare Sys., 230 S.W.3d at 762. Thus, a plaintiff must show that the expert has "knowledge, skill, experience, training, or education" about the specific issue before the court that would qualify the expert to give an opinion on that subject. Kuhn v. Sam, No. 01-20-00260-CV, 2021 WL 3359171, at *16 (Tex. App.-Houston [1st Dist.] Aug. 3, 2021, no pet.) (mem. op.) (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)).
Not every licensed physician is qualified to testify on every medical question. See Broders, 924 S.W.2d at 152-53. But a physician need not practice in the particular medical field about which they are testifying so long as they can demonstrate that they have knowledge, skill, experience, training, or education about the specific issue before the court that would qualify them to give an opinion on that subject. Cornejo v. Hilgers, 446 S.W.3d 113, 121 (Tex. App.-Houston [1st Dist.] 2014, pet. denied). "Simply put, what is required is that the physician demonstrate that he is qualified to opine on the specific issue before the court." Kuhn, 2021 WL3359171, at *16.
Here, the trial court did not abuse its discretion by concluding that Dr. Lefkowitz is qualified to opine regarding the causal relationship at issue in this case.
While there is not a precise formula for qualifying a doctor as a medical expert, we begin with a review of Dr. Lefkowitz's curriculum vitae. See, e.g., Benge v. Williams, 548 S.W.3d 466, 471 (Tex. 2018); Ogunlana v. Cunningham, No. 14-18-00704-CV, 2020 WL 3467268, at *3 (Tex. App.-Houston [14th Dist.] June 25, 2020, pet. denied) (mem. op.). Dr. Lefkowitz graduated from the New York University School of Medicine and completed his ophthalmology residency at Georgetown University. Dr. Lefkowitz was certified by the American Board of Ophthalmology in 1982 and went on to practice ophthalmology in the United States for over 40 years. Dr. Lefkowitz currently practices as a physician and surgeon performing LASIK, cataract, strabismus, and other types of eye surgery. Dr. Lefkowitz also serves as a medical expert witness in ophthalmology and has worked in many different jurisdictions throughout the United States.
Further describing his qualifications in his expert report, Dr. Lefkowitz states:
I am familiar with the standard of care for medical practice that currently relates to issues of care and treatment of patients such as [Jackson]. I am familiar with the standard of care in this case by virtue of my training, education and experience of 40 years in the same field or related healthcare fields as the physicians who treated [Jackson]. I can fairly evaluate the quality of care that was provided to [Jackson].
* * *
As a practicing Ophthalmologist, I often treat patients such as [Jackson] who are in need of Ophthalmology care. As such, I am familiar with the standard of care of a reasonable and prudent Ophthalmologist for treating patients with conditions such as [Jackson's]. I am familiar with the standard of care for any similar
healthcare provider in Texas or any other similar medical community under the same circumstances. I have seen similar patients in my clinical career, and I am familiar with the standard of care in such cases.
Based on Dr. Lefkowitz's education and experience in the field of ophthalmology, the trial court reasonably could have determined that he was qualified to opine on the specific issue before the court, i.e., the causal link between Dr. Gunderson's alleged failure to perform certain eye examinations and the delayed discovery of Jackson's ganglioglioma. The central allegations underlying Appellees' suit relate to whether an ophthalmologist departed from the standards of care applicable to eye examinations and a subsequent eye surgery; the record shows that Dr. Lefkowitz has significant education and experience in both areas. Moreover, Dr. Lefkowitz has treated patients like Jackson that presented with the same conditions. Therefore, the trial court did not abuse its discretion in concluding that Dr. Lefkowitz is qualified to opine on the causal relationship between the alleged negligence and Jackson's subsequent injuries and harm. See Tex. R. Evid. 702; Mem'l Hermann Healthcare Sys., 230 S.W.3d at 762.
The thrust of Appellants' challenge on this point emphasizes that Dr. Lefkowitz lacks "any training, education, or experience in the actual treatment of gangliogliomas," including "the specific growth rate of the tumor, treatment options, and, most importantly, the success/failure of surgery at various stages of the tumor." Therefore, Appellants argue, Dr. Lefkowitz lacks the qualifications necessary to opine about causation in this case.
But similar arguments challenging an expert's qualifications with respect to the specific condition stemming from the alleged negligence have been rejected in other cases. See, e.g., Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *10-12 (Tex. App.-Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); Mosely v. Mundine, 249 S.W.3d 775, 779-80 (Tex. App.-Dallas 2008, no pet.).
The plaintiffs in Mosely alleged that the defendant-physician negligently failed to detect a mass on a chest X-ray. 249 S.W.3d at 777. When the mass was found approximately two years later, it was diagnosed as lung cancer and required surgery and extensive chemotherapy. Id. The plaintiffs served an expert report from Dr. Thompson, an emergency physician and internist. Id. at 779.
Challenging Dr. Thompson's expert report, the defendants argued that he was not qualified to opine on causation because the injuries at issue "involved the treatment and prognosis for cancer, which is typically provided by an oncologist." Id. Rejecting this argument, the court focused on the negligent conduct at issue and held:
The conduct causing the [plaintiffs'] injuries related to the ability of an emergency room physician to interpret a routine chest x-ray and identify an abnormality, not the diagnosis and treatment for cancer. The record shows the trial court could have concluded the [plaintiffs] met their burden to prove Thompson had the knowledge, skill, experience, training, or education regarding that specific emergency room physician's scope of practice.Id. at 779-80.
In Whitmire, the plaintiff sued four medical defendants and asserted claims stemming from her twins' premature birth. 2020 WL 4983321, at *2-3. The defendants challenged the qualifications of the plaintiffs medical expert, an obstetrician-gynecologist, and alleged that he could not opine as to the cause of the twins' neurological injuries because he did not have expertise with those specific injuries. Id. at *10-11. Rejecting this argument, the court held that the expert's "knowledge, skill, experience, training, and education qualify him to opine on the causal relationship between [the plaintiffs] undiagnosed and untreated preterm labor and the resulting complications, including the twins' neurological injuries." Id. . at * 12.
Likewise, we reject Appellants' contention that Dr. Lefkowitz is not qualified to testify on causation because he does not have specific training, education, or experience with respect to gangliogliomas. See Mosely, 249 S.W.3d at 779-80; see also Whitmire, 2020 WL 4983321, at *10-12. Here, the conduct underlying Appellees' claims focuses on an ophthalmologist's failure to perform certain eye examinations - not from the treatment of gangliogliomas. As detailed above, the record shows the trial court reasonably could have concluded Dr. Lefkowitz was qualified to testify regarding the injuries or harm caused by the failure to adhere to certain standards of care in ophthalmology. This provides a basis sufficient to qualify Dr. Lefkowitz to opine on causation in this case.
We overrule Appellants' challenge to Dr. Lefkowitz's qualifications.
III. Causation
Challenging the substance of Dr. Lefkowitz's opinion on causation, Appellants argue the opinion is based on mere speculation and is conclusory.
To provide a fair summary of causation, the expert must explain, to a reasonable degree of medical probability, "how and why" the physician's breach caused the plaintiffs injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459-60 (Tex. 2017); Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 23 (Tex. App.-Houston [14th Dist] 2017, pet. denied). A conclusory statement of causation is inadequate; rather, the expert must explain the basis of his statements and link his conclusions to specific facts. Abshire, 563 S.W.3d at 224. An expert's simple ipse dixit - an assertion without proof - is insufficient to establish a matter. Humble Surgical Hosp., LLC, 542 S.W.3d at 23. But the expert need not prove the entire case or account for every known fact; the report is sufficient if it makes "a good-faith effort to explain, factually, how proximate cause is going to be proven." Abshire, 563 S.W.3d at 224.
In Naderi, we examined the sufficiency of an expert report in a similar case in which the plaintiff alleged negligent evaluation and treatment of an abscessed tooth. 572 S.W.3d at 775-78. The Naderi plaintiff visited the dentist several times with a clearly visible abscess on one of his teeth, but the dentist failed to diagnose or treat the abscess. Id. at 775-76. The plaintiff later saw a different medical provider who extracted the abscessed tooth and treated the resulting infection. Id. The plaintiff developed other infections and eventually required a resection of his mandible. Id.
In his medical report, the plaintiffs expert opined that, if the defendant had promptly diagnosed the plaintiffs infection, the infection "could have been treated before the infection spread." Id. at 781. The expert also stated that, "if the infection had been discovered and treated before it got out of control, within all medical/dental probability, [the plaintiff] would have been able to avoid losing a portion of his mandible." Id. Concluding the expert's report met the standards necessary to establish causation, the court held that the report "sufficiently explains the basis of [the expert's] statements and links his conclusions to facts." Id. at 782.
In Memorial Hermann Health System v. Heinzen, the plaintiff sued the defendants alleging they failed to timely recognize and treat her angle closure glaucoma. 584 S.W.3d 902, 906 (Tex. App.-Houston [14th Dist] 2019, no pet.). The plaintiff alleged that this delay in treatment caused permanent damage to her retina and loss of her visual field. Id.
To support her claims, the plaintiff served an expert report from Dr. Tasker, an ophthalmologist. Id. at 906-07. Dr. Tasker opined that, when the plaintiff went to the hospital with severe eye pain, the attending physician should have performed certain examinations to rule out angle closure glaucoma. Id. at 918-19. Continuing on, Dr. Tasker stated that "earlier intervention (proper diagnosis and treatment) in all of these areas would have in medical probability saved [the plaintiffs] peripheral vision, optic nerve, [and] nerve fiber layer." Id. at 922. Concluding that this report was sufficient with respect to causation, we held that the report "draws a line directly from [the defendant's] breach of the standard of care, to the delay in diagnosis and treatment, and thence to the ultimate injury." Id.
Here too, Dr. Lefkowitz's report sufficiently links his conclusions to the facts of Appellees' case. With respect to causation, Dr. Lefkowitz's report states:
The harm to this patient was failure to diagnose and obtain treatment, resulting in a large intracranial mass that caused headache and visual field deficits. Earlier diagnosis of the tumor, within reasonable medical probability, would have prevented the mass from growing to its perioperative size. The larger the tumor, the more effects there can be on vision. By the time the tumor was diagnosed during October of 2017, it had grown to 6.3 cm x 5.7 cm x 4.2 cm in size causing a mass effect on the cerebral sulcus and the ventricular system. Because the tumor had been allowed to grow, it was so large in the occipital area that removal of the tumor surgically on 10/15/17 caused damage to the adjacent structures, including the optic nerve of both eyes, causing loss of 1/4th of the visual fields. Within reasonable medical probability, if Dr. Gunderson had performed a complete eye exam with pupil dilation on March 21, 2016 or January 19, 2017 or February 6, 2017, she would have seen the ganglioglioma and referred [Jackson] for surgical removal by a neuro-ophthalmologist while the tumor was still small enough to be removed without causing damage to the adjoining structures. This delay in diagnosis by Dr. Gunderson caused [Jackson] to sustain significant loss of visual fields in both eyes, such that he will be visually handicapped for the remainder of his life.As in Naderi and Heinzen, Dr. Lefkowitz drew a line directly from the breach of the standard of care (Dr. Gunderson's alleged failure to perform a complete eye examination), to the delay in diagnosis and treatment of the ganglioglioma, and thence to the ultimate injury (the removal of the ganglioglioma at a stage at which it caused damage to Jackson's visual fields). Dr. Lefkowitz's report constitutes a good-faith effort to explain, factually, how proximate cause is going to be proven in this case. See Abshire, 563 S.W.3d at 224.
Challenging the report, Appellants argue that Dr. Lefkowitz did not explain when the tumor developed, its rate of growth, what structures it encroached on at different stages of its growth, or how the surgery would have been performed at an earlier date so as to avoid damaging Jackson's visual fields. We rejected similar contentions in Naderi.
There, the defendant argued that the medical expert's report was deficient with respect to causation because it did not specify when the plaintiffs tooth infection spread, when the complained-of damage actually occurred, what antibiotics should have been used to treat the infection, and the timing of those antibiotics' usage. Naderi, 572 S.W.3d at 781. Overruling these arguments, we held that "an expert report is not required to contain that level of detail at this early stage of litigation." Id. at 782; see also Puppala v. Perry, 564 S.W.3d 190, 201 (Tex. App.-Houston [1st Dist] 2018, no pet.) ("But the absence of an opinion stating with specificity at what point in the continuum of disease progression an intervention would have proven timely does not cause these experts' causation opinion to be conclusory at this early stage of litigation.").
Likewise, we reject Appellants' contention that Dr. Lefkowitz's report required more detail about Jackson's ganglioglioma or the efficacy of treatment at its various stages of growth. Dr. Lefkowitz opined that Dr. Gunderson should have performed certain eye examinations and, if she had, Jackson's slow-growing ganglioglioma could have been diagnosed and removed without causing damage to Jackson's vision. Providing a fair summary of causation, Dr. Lefkowitz adequately explained "how and why" Dr. Gunderson's alleged breach caused Jackson's injuries. See Columbia Valley Healthcare Sys., L.P., 526 S.W.3d at 459-60.
Finally, Appellants argue Dr. Lefkowitz's report is similar to that analyzed in Hall v. Davies, 598 S.W.3d 803 (Tex. App.-Houston [14th Dist.] 2020, no pet.), which we concluded was inadequate.
Hall v. Davies is a companion case to Baylor College of Medicine v. Davies, 599 S.W.3d 323 (Tex. App.-Houston [14th Dist.] 2020, no pet.).
The plaintiff in Hall visited her gynecologist, who collected tissue samples from the plaintiff's cervix for a biopsy. Id. at 805. Summarizing the biopsy, the pathology report stated that "[t]he papillary epithelium may represent a papillary serous tumor within the abdomen." Id. Despite this report, the gynecologist mistakenly told the plaintiff her biopsy was normal; seven months later, the gynecologist told the plaintiff that the lab results "may be indicative of papillary serous tumor." Id. at 806. Shortly thereafter the plaintiff had surgery and it was found that she had stage IIIB ovarian serous borderline tumor of low-malignant potential. Id.
The plaintiff sued the gynecologist, alleging that breaches of the applicable standard of care delayed her treatment and permitted her tumor to advance from a stage I to a stage IIIB tumor. Id. at 806. In her expert's medical report, the expert relied on the above-quoted language from the pathology report and opined that the plaintiff "had at most a stage I tumor" when the tissue samples were collected. Id. at 808. Concluding that the expert's opinion was conclusory, we stated:
What is needed to make [the expert's] opinion non-conclusory is a factual explanation why the quoted language from the pathology
report means what [the expert] says it means. It is the expert's explanation that supplies the necessary link between the expert's conclusion and the underlying facts.
* * *
The March 2016 report states that [the plaintiff] has a stage IIIB ovarian serous borderline tumor, but the August 2015 report states only that [the plaintiff] may have a tumor, and it does not state the tumor's state. Absent an explanation why the first pathology report means that [the plaintiff] had a stage I tumor, [the expert's] causation opinion is conclusory, and as a matter of law, a conclusory expert opinion does not afford a reasonable basis to conclude that a claim has merit.Id. at 808-09 (emphasis in original).
Hall is distinguishable from the facts presented here. In his expert report, Dr. Lefkowitz states that he reviewed Jackson's medical records, including those from Dr. Gunderson, Jackson's pediatrician, and the hospital at which Jackson's surgery was performed. Discussing the records pertaining to Jackson's surgery, Dr. Lefkowitz's report states:
On 10/15/17, surgery is performed by Dr. William Whitehead at Texas Children's Hospital for removal of the brain mass, which was found to be a WHO Grade 1 ganglioglioma. Pre and post-operative diagnosis is left occipital tumor with surgery performed of left occipital craniotomy for resection of the tumor. The tumor is 6.3 cm x 5.7 cm x 4.2 cm and it is located in the left parieto-occipital region of the brain (supratentorial) with mass effect on the cerebral sulcus and the ventricular system. Pathology testing confirms a ganglioglioma.
A ganglioglioma is a slow growing tumor that starts from groups of nerve cells and grow in the brain. They are usually small and noncancerous. Gangliogliomas are slow growing. Symptoms typically develop slowly. The symptoms depend upon the location, and may include headache, vomiting, fatigue, seizures, and weakness on one side of the body. Gangliogliomas are typically treated with surgical resection.
In a separate section of his report titled "Discussion of Ganglioglioma," Dr. Lefkowitz states that "it can take months" to develop a tumor the size of that removed from Jackson. Continuing on, Dr. Lefkowitz concludes:
Within Reasonable Medical Probability, the early stage of the tumor was present in February of [2017]. Exam of the optic nerve by Dr. Gunderson on 3/21/16, 1/19/17, and/or 2/6/17 under dilated conditions would have revealed the presence of a tumor impacting [Jackson's] optic nerve.Unlike the expert in Hall, Dr. Lefkowitz does not advance an unsubstantiated conclusion unsupported by the relevant medical records. Rather, Dr. Lefkowitz cites medical records that state the substantial size of the tumor when it was removed. Noting that these tumors are "slow growing" and that their accompanying symptoms "typically develop slowly", Dr. Lefkowitz opines that the tumor was present and discoverable when Jackson visited Dr. Gunderson and before he underwent strabismus surgery. Accordingly, Dr. Lefkowitz's report supplied the necessary link between his conclusion and the underlying facts of Jackson's case.
We overrule Appellants' challenge to Dr. Lefkowitz's opinion on causation.
Conclusion We affirm the trial court's November 5, 2020 order denying Appellants' motion to dismiss.