Opinion
No. 09-07-634 CV
Submitted on March 14, 2008.
Opinion Delivered April 10, 2008.
On Appeal from the 136th District Court Jefferson County, Texas, Trial Cause No. D-179, 083.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
In this health care liability claim, CHCA Mainland, L.P. d/b/a Mainland Medical Center ("Mainland") appeals an order denying its motion to dismiss a claim brought by appellees Cathy R. Wheeler and Tommy Wheeler. Mainland contends the trial court abused its discretion in denying the motion because the expert reports the Wheelers served on Mainland did not comply with the statutory requirements of section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2007). We affirm.
Background
According to the Wheelers' petition, a doctor evaluated Cathy in his office on February 14, 2005, based on her complaints of abdominal pain. He referred her to Renaissance Hospital the same day for an abdominal ultrasound. A radiologist at Renaissance read the ultrasound films and reported to Cathy that she had a "Negative Appendicteal Ultrasound." On February 17, 2005, Cathy presented at the emergency department at Mainland in Texas City. After the staff at Mainland informed her that she would probably not see a physician that day, Cathy went home. Complaining of right quadrant pain, Cathy went to Dr. John Stafford's office in Santa Fe, Texas, on February 18, 2005. Dr. Stafford ordered a blood count and allowed her to return home with pain medicine. Feeling worse, Cathy went back to Mainland on February 19, 2005, and left after waiting ten and one-half hours without seeing a physician. She returned by ambulance to Mainland on February 20, 2005, and waited more than twelve hours before being admitted. Diagnosed with a ruptured appendix, she was taken to surgery.
The Wheelers sued Mainland and other health care providers for malpractice. The Wheelers claimed that one of Mainland's nurses improperly "triaged" Cathy and that the unreasonable delay in her medical treatment at Mainland caused her to suffer a ruptured appendix before surgery. The Wheelers served the health care providers with the expert reports of A. Robert Tantleff, M.D. and Harold V. Gaskill III, M.D., P.A. Dr. Tantleff's report addressed the allegations against the other defendants, and Dr. Gaskill's expert report discussed Mainland's care and treatment of Cathy.
Arguing that Dr. Gaskill's report did not comply with the statute and that Dr. Tantleff's report did not mention Mainland, Mainland filed a motion to dismiss the case pursuant to section 74.351(b). See id. § 74.351(b). After a hearing, the trial court granted the Wheelers a thirty day extension of time to cure any deficiencies. See id. § 74.351(c). The Wheelers timely served Mainland with a supplemental report by Dr. Gaskill.
On appeal, the Wheelers concede that Dr. Gaskill's reports are the only reports addressing their claims against Mainland.
Dr. Gaskill's original report included the following opinions as to Mainland:
It is also my professional opinion, to a reasonable degree of medical certainty, that it was below the standard of care for Ms. Wheeler to be triaged as "Non-urgent" on 2/17/2005. It is also my professional opinion, to a reasonable degree of medical certainty, that had Ms. Wheeler had laboratory studies drawn and been evaluated by a physician on 2/17/2005 that her appendicitis would have been diagnosed and treated at least four days earlier thereby reducing, or even avoiding altogether, her intraperitoneal sepsis and associated adverse outcomes.
In his supplemental report, Dr. Gaskill stated that the standard of care requires that an adult patient presenting with these symptoms be triaged to at least an urgent or even emergent level. Cathy presented to Mainland's emergency room on February 17, 2005, with a body temperature of 102.5 degrees Fahrenheit, a heart rate of 115 beats per minute, and abdominal pain. Dr. Gaskill stated that, in his professional opinion, had Cathy been triaged to at least an urgent level, she would have been evaluated by a qualified medical provider expeditiously and her appendicitis would have been timely diagnosed and treated. He opined that had she been diagnosed and treated on February 17, 2005, four days earlier, her intraperitoneal sepsis and associated adverse outcomes would have been reduced or even avoided altogether.
In Dr. Gaskill's supplemental report he sets out the American Hospital Association's guidelines for classification of emergency patients:
Emergent — Requires immediate medical attention. Delay is harmful to patient. Disorder is acute and potentially threatens life or function.
Urgent — Requires medical attention within a few hours. In danger if not attended. Disorder is acute but not necessarily severe.
Non-urgent — Does not require the resources of an emergency service. Disorder is minor or non-acute.
Mainland filed a second motion to dismiss arguing that Dr. Gaskill failed to provide a factual basis for his causation opinions and he was not qualified to provide opinions on the standard of care. Mainland also asserted that Dr. Gaskill's reports require the court to make unsupported inferences and assumptions in order to conclude the Wheelers' claims have merit. After a hearing, the trial court entered an order denying Mainland's motion to dismiss. Mainland then filed this interlocutory appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2007).
Issues and Standards of Review
On appeal, Mainland presents three issues: (1) whether the Wheelers served expert reports on Mainland that complied with section 74.351's requirements; (2) whether the Wheelers showed that Dr. Gaskill was qualified to submit an expert report in this case under section 74.402; and (3) whether Dr. Gaskill's opinions on causation were conclusory, and therefore, not a good faith effort under section 74.351. Mainland's first issue — that Dr. Gaskill's expert reports fail to comply with section 74.351's requirements — is based on Mainland's contentions in issues two and three. Therefore, by addressing issues two and three, we address all of Mainland's issues on appeal.
We review a trial court's decision regarding the adequacy of a health care liability expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). A trial court 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 claim must timely provide each defendant health care provider with an expert report. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). The statute defines an "expert report" as follows:
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). If a plaintiff timely furnishes the required report, the defendants may file a motion challenging the report's adequacy. See id. § 74.351( l).
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. § 74.351( l). The trial court's inquiry into whether the report represents a good faith effort is limited to the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Palacios, 46 S.W.3d at 878). To be a good faith effort at complying with the expert report statute, 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.
A sufficient expert report does not need to marshal all of the claimant's proof. Wright, 79 S.W.3d at 52. The report, however, cannot merely state the expert's conclusions regarding the required elements, but must explain the basis of the expert's statements to link the expert's conclusions to the facts. Id. The information in the report does not have to meet the same requirements as evidence in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879.
To qualify as an expert on whether a defendant physician departed from the standard of medical care, the expert's report with attached curriculum vitae must demonstrate that the expert (1) is a physician who was practicing medicine at the time the claim arose, or who is practicing medicine at the time the testimony is given; (2) has 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) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards. Tex. Civ. Prac. Rem. Code Ann. §§ 74.351(r)(5)(A) (Vernon Supp. 2007), 74.401(a) (Vernon 2005). In determining whether a physician witness is qualified on the basis of training or experience, the court shall consider whether the physician is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c). Under the Texas Rules of Evidence, an expert must have knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. Tex. R. Evid. 702; Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996).
Dr. Gaskill's Qualifications to Offer Opinions in this Case
Mainland first contends that the trial court abused its discretion when it denied Mainland's motion to dismiss because the Wheelers did not show that Dr. Gaskill was qualified to offer opinions as an expert in this case. Mainland argues that Dr. Gaskill's position as general surgeon and his position as "co-director of trauma and emergence services" for two medical facilities are not enough to qualify him as an expert in emergency room triage procedures or training of nurses. Mainland maintains that Dr. Gaskill's curriculum vitae does not support his declaration that he was "co-director of trauma and emergent services," as stated in his first report.
Not every physician automatically qualifies as an expert in every area of medicine. See Broders, 924 S.W.2d at 152-53. However, a physician need not be a practitioner in the same specialty as the defendant to be a qualified expert in a particular case. See id. at 153-54; see also Blan v. Ali, 7 S.W.3d 741, 745 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Under the Texas Rules of Evidence, the test is whether the offering party has established that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court. Tex. R. Evid. 702; see also Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). The issue before us is whether Dr. Gaskill's report reflects that he has those necessary qualifications to provide an opinion as to whether Mainland's failure to perform a proper triage assessment of Cathy led to her injuries.
Dr. Gaskill stated in his first report that he is licensed to practice medicine and surgery in Texas and engaged in the active practice of general surgery in San Antonio, Texas. He has been continuously certified by the American Board of Surgery since 1983 and recertified through 2013. He stated he has served as "co-director of trauma and emergence services for the Department of Surgery at the University of Texas Health Science Center and the University Hospital district as listed on [his] curriculum vita [sic]." In his original report, Dr. Gaskill prefaced his opinions with the following:
Based on my experience I declare that I have knowledge of the acceptable standards of medical and nursing care that are applicable to this patient. This experience includes triage and management in the emergency department as well as surgical management of abdominal pain, including appendicitis, and expected outcomes. I am qualified on the basis of my education, training, and experience to provide an expert opinion regarding the care provided to Cathy Wheeler.
In his supplemental report, he stated he based his opinions on his "education, training, and experience as well as the accepted principles of triage and evaluation of patients presenting to the emergency department[.]"
Dr. Gaskill's first report establishes he has experience in triage and emergency department management, as well as surgical management of abdominal pain, including appendicitis. His curriculum vitae evidences he has, among many other things listed, been certified in Advanced Trauma Life Support, served on the Trauma Clinical Management Team at University Hospital and authored publications on both trauma and diagnosing appendicitis. Dr. Gaskill based his opinions on his review of Cathy's medical records. Under the facts presented, we cannot conclude the trial court abused its discretion in accepting Dr. Gaskill's qualifications to render an opinion regarding the standard of care that Mainland was required to meet in evaluating and classifying Cathy during triage. We overrule Mainland's second issue.
Dr. Gaskill's Opinions as to Causation
Mainland argues Dr. Gaskill's opinions on causation are conclusory and include several "analytical gaps" between the facts in the report and his opinion on proximate cause. Mainland contends the report forces the court to make inferences and assumptions on the element of causation. Specifically, Mainland states that Dr. Gaskill's opinions on causation are conclusory because they are based on the assumptions and inferences that (1) a triage classification of "urgent" would have resulted in a doctor's seeing Cathy before she decided to leave the emergency room without treatment; (2) seeing a doctor on February 17, 2005, would have probably resulted in the diagnosis and treatment of appendicitis; (3) there is a particular treatment that would have probably cured her of appendicitis, prevented her appendix from rupturing, and prevented her abdominal infection; and (4) her appendix had not ruptured prior to her visit to Mainland on February 17, 2005.
Dr. Gaskill's reports address how Mainland's conduct has been called into question, as well as the causal relationship between Mainland's alleged failure to properly assess Cathy during triage and Cathy's injuries. Gaskill's reports recite that on February 20, 2007, Cathy was found to have a perforated appendix resulting in intra-abdominal sepsis and associated complications. She required extensive surgery and an extended hospitalization. It was his expressed opinion that if not for Mainland's breach of the standard of care, with the symptoms that Cathy presented at the emergency room, Cathy would have been seen and evaluated by qualified medical personnel, and "would have been spared the generalized intraperitoneal sepsis that necessitated more extensive surgery and an extended hospitalization." His reports presented sufficient information to "provide a basis for the trial court to conclude that the claims have merit." Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). We conclude Dr. Gaskill's reports represent a good faith effort to comply with the definition of an expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6). Mainland's third issue is overruled.
Conclusion
We conclude that the trial court did not abuse its discretion in ruling that Dr. Gaskill's reports meet the requirements of expert reports under Texas law. See id. § 74.351. As a result, the trial court did not abuse its discretion in denying Mainland's motion to dismiss. We overrule appellant's issues on appeal and affirm the trial court's order.
AFFIRMED.