Opinion
No. 09-06-136 CV
Submitted on September 7, 2006.
Opinion Delivered October 26, 2006.
On Appeal from the 58th District Court, Jefferson County, Texas, Trial Cause No. a-175,506.
Reversed and Remanded.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Appellee Mary Garcia sued appellant Manuel Hababag, M.D. and other defendants for alleged medical malpractice. Hababag filed a motion to dismiss that challenged appellee's expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351( l) (Vernon Supp. 2006). The trial court denied Hababag's motion to dismiss. We reverse and remand.
Garcia sued individually and as personal representative of the estate of decedent Melany Avila.
Background
Garcia alleged that the negligence of Hababag and other defendants resulted in the death of Melany Avila, Garcia's twenty-year-old mentally retarded daughter, who resided at a long-term care facility. Garcia asserted that Avila was prescribed Zyprexa (olanzapine), which is an antipsychotic drug, and lithium, which is a drug used to treat bipolar and manic-depression disorder. According to Garcia, Melany died of Olanzapine toxicity on September 2, 2003. Garcia maintains that Hababag and the other defendants were negligent in their care of Avila, and that their negligence proximately caused her death.
The report by Garcia's expert, toxicologist Dr. Thomas L. Kurt, states that the autopsy report revealed that Melany Avila died of Olanzapine toxicity, and a toxicology report appended to the autopsy report stated Avila's blood olanzapine level was 1.1 mg/L. According to Dr. Kurt, 1.1 mg/L of olanzapine is a fatal level.
The report states that despite an increase in Avila's dosage of lithium, and the fact that "lithium is known as a medication with a narrow therapeutic to toxic ratio where frequent therapeutic blood monitoring is required[,]" follow-up therapeutic blood monitoring was not ordered. Kurt's report also stated that on July 11, 2003, Avila's dosage of Zyprexa was increased to twenty milligrams per day. Furthermore, Kurt opines that "lithium drug interaction is known with neuroleptics (olanzapine, Zyprexa) at high doses of the neuroleptic drug[.]" Kurt states that "it is not diagnostically clear why Melany Avila was being prescribed and dispensed Lithium, which is a medication strictly for bipolar or manic-depression disorder, because no such diagnosis existed in her records. Nor is it clear why she was being prescribed and dispensed the antipsychotic, neuroleptic, olanzapine (Zyprexa), which is for psychotic disorders, without a psychotic diagnosis." At the conclusion of the report, Kurt opined as follows:
[d]eficient care at Golden Triangle Living Centers, Inc., contributed to the demise of Melany Avila. . . . This was caused by medications which were administered to Melany Avila by Golden Triangle Living Centers, Inc. which were found . . . to be the cause of her death. Namely, fatal levels were found of olanzapine (Zyprexa), . . . and this level was found to be markedly high and well above therapeutic levels even when rechecked several months later after deterioration with time had occurred.
In an addendum to his report, Kurt noted that after Avila's dosage of lithium was increased, her blood level of lithium tripled or quadrupled, and he opined that this fact "strongly indicates that drug interaction was going on that was missed by not ordering therapeutic drug monitoring of . . . her olanzeprine [sic] (Zyprexa) and lithium blood levels two weeks after the physician drug orders increasing these doses." The addendum also stated that Kurt agreed with the paragraphs of Garcia's petition entitled "Facts" and "General Negligence and Other Causes of Action." In the section of the addendum entitled "Conclusions," Kurt stated that "physician orders for increases in both olanzepreine [sic] (Zyprexa) and lithium occurred, . . . without indications for such increases in her records." In a second addendum to his report, Kurt noted that Hababag was among "[t]hose providing [Avila] physician care, as in her diagnoses, prescriptive physician orders for medications and laboratory test ordering or the lack thereof for therapeutic drug monitoring[.]"
After Kurt provided the expert report, Hababag filed a motion to dismiss, in which he asserted that the report failed to implicate any aspect of Hababag's care and treatment of Avila; Kurt was not qualified to give an expert opinion regarding the standard of care for a family medicine physician; and Kurt's report did not provide a basis for the trial court to conclude that Garcia's claims against Hababag have any merit. In her response to the motion to dismiss, Garcia requested a thirty-day extension of time in the event the trial court found the report deficient. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(c) (Vernon Supp. 2006). The trial court entered an order denying the motion to dismiss, and Hababag then filed this interlocutory appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2006).
Hababag's Issue
In his sole issue, Hababag contends the trial court abused its discretion by denying his motion to dismiss. As sub-issues, Hababag asserts that Kurt is not qualified to give an expert opinion as to the standard of care for a family practice physician; that Kurt's report does not sufficiently describe the standard of care for a family practice physician or explain how Hababag breached a standard of care; and Kurt's report did not provide a basis for the trial court to conclude that Garcia's claims against Hababag have merit.
We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
A plaintiff asserting a health care liability claim must provide each defendant physician and health care provider with an expert report no later than the 120th day after filing suit. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351(a), 2003 Tex. Gen. Laws 847, 875 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006)). The statute defines "expert report" as
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.
Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2006). If a plaintiff furnishes the required report within the time permitted, the defendant may file a motion challenging the report. Tex. Civ. Prac. Rem. Code Ann. § 74.351( l).
The statute provides that the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. When determining whether the report represents a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 878. To constitute a good-faith effort, the report "must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 875. When a plaintiff sues more than one defendant, the expert report must set forth the standard of care for each defendant and explain the causal relationship between each defendant's individual acts and the injury. See Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Tex. Civ. Prac. Rem. Code Ann. § 74.351(a), (r)(6) (A claimant must provide each defendant with an expert report that sets forth the manner in which the care rendered failed to meet the standards of care and the causal relationship between that failure and the injuries claimed.). A report that omits any of the statutory elements is not a good-faith effort. Palacios, 46 S.W.3d at 879.
Kurt's report states that Hababag was among "[t]hose providing [Avila] physician care, as in her diagnoses, prescriptive physician orders for medications and laboratory test ordering or the lack thereof for therapeutic drug monitoring[,]" and asserts that the lack of such monitoring after Avila's dosages of lithium and Zyprexa were increased caused the interaction between the two drugs to be "missed." The report also states that Avila was prescribed lithium and Zyprexa despite the lack of a diagnosis supporting the administration of such medications. However, the report does not set forth the applicable standards of care for Hababag. In addition, the report fails to explain the causal relationship between Hababag's treatment of Avila and the damages alleged. Because of these inadequacies, the report does not meet the requirements of the statute, and it does not provide a basis for the trial court to determine that Garcia's claims have merit. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875, 879. Therefore, the trial court abused its discretion in failing to dismiss Garcia's claims. We sustain Hababag's issue. We reverse the trial court's order denying Hababag's motion to dismiss and remand this cause for the trial court to address Garcia's request for a thirty-day extension of time. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(c).
We use the term "report" to refer collectively to Kurt's original report and the addenda thereto.
In his brief, Hababag seeks an award of costs. Because we are remanding the case to the trial court to address Garcia's request for an extension of time to provide an adequate report, a determination of entitlement to costs would be premature.
Because we have determined that Kurt's report failed to state the standard of care, did not explain how Hababag's conduct resulted in the injuries alleged, and did not provide a basis for the trial court to determine that Garcia's claims have merit, we need not decide whether the report includes sufficient information demonstrating that Kurt was qualified to give an expert opinion regarding the standard of care for a family physician.