Opinion
No. 09-15-00466-CV
07-28-2016
COYE Q. MCMILLAN, Appellant v. JOE HARRIS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF RANDI HARRIS, Appellee
On Appeal from the 1st District Court Jasper County, Texas
Trial Cause No. 34610
MEMORANDUM OPINION
This is an accelerated appeal from the trial court's order overruling the defendant's objections to plaintiff's expert reports and denying a motion to dismiss filed pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2015); see also id. § 51.014(a)(9) (West Supp. 2015). In four issues, Appellant Coye Q. McMillan (Dr. McMillan or Appellant) argues that the trial court erred in denying his motion to dismiss. In his first issue, Appellant argues that Appellee Joe Harris's (Harris or Appellee) expert is not qualified to render opinions as to emergency room care and treatment provided to Randi Harris, or to render opinions as to the alleged causation of the formation of a pseudoaneurysm, cellulitis, bacterial endocarditis or complications of bacterial endocarditis[]" or cause of Randi Harris's death, which occurred many months after the Appellant's emergency room treatment of Randi Harris. According to Appellant, the fact that Dr. Haines, Harris's expert, stated in his reports that the patient should have been "cared for by a vascular surgeon makes it apparent that it is his belief that this specialty is required to opine on vascular injuries such as existed in this case[,]" which Appellant argues
. . . negates his ability to discuss the long term sequelae of treatment for a pseudoaneurysm as well as the propensity of such a vascular injury to cause cellulitis. There is virtually no evidence of his qualifications to address the propensity of cellulitis to seed a patient's heart without any evidence of such infection from July 5th to July 8th. Patients with mechanical heart valves and bacterial endocarditis are treated by specialists including infectious disease and vascular/cardiovascular surgeons.
In his second and third issues, Appellant argues that Dr. Haines's reports and opinions on causation have not been made in good faith because of what Appellant describes as inconsistencies in the first and second report, analytical gaps, and an unreliable foundation. And, in his fourth issue, Appellant argues the two reports amount to "no report" and that Appellee should not be given a thirty-day extension to file a supplemental report. We reverse and remand.
BACKGROUND
Original Petition
Appellee Joe Harris (Harris or Appellee), individually and as the representative of the Estate of Randi Harris, filed an Original Petition on April 28, 2015, wherein Harris asserted wrongful death and survival claims against Appellant Coye Q. McMillan, M.D. (Dr. McMillan or Appellant) for medical malpractice that Harris alleged caused injuries to and the death of Harris's adult son, Randi Harris (Randi).
In Dr. McMillan's Answer, his name is followed by the designation "MD[.]" In Dr. McMillan's Objections to the Expert Report of Joe D. Haines, McMillan's name is followed by the designation "DO." A doctor of osteopathic medicine (D.O.) attends an osteopathic medical school, whereas a doctor of medicine (M.D.) attends an allopathic medical school, and both are physicians. See Cmty. Hosp. v. Sullivan, 986 F.2d 357, 362 n.2 (10th Cir. 1993) ("While allopathic medicine is practiced by doctors of medicine, osteopathic medicine is practiced by doctors of osteopathy."); Stern v. Tarrant Cty. Hosp. Dist., 755 F.2d 430, 432 (5th Cir. 1985) (allopathic schools award the M.D. degree, and osteopathic schools award the D.O. degree).
In his Original Petition, Harris alleged that on June 6, 2014, Randi suffered a "penetrating injury to the right radial artery[,]" and sought treatment at the emergency room in Jasper, Texas. Harris further alleged that on June 6, 2014, and again on June 8, 2014, Randi was treated by Dr. McMillan, a physician in the emergency room. Harris alleged that on June 6, 2014, Dr. McMillan "superficially stitch[ed] the wound[]" and discharged Randi. Randi returned to the Jasper emergency room on June 8, 2014, complaining of vomiting and increased swelling in his right arm, and Dr. McMillan discharged Randi with instructions. According to Harris, Randi returned to the hospital on July 1, 2014, "with a non-healing wound on his arm[,]" was treated by another physician, and referred to a vascular surgeon. Randi returned to the hospital on July 2, 2014, and he was transferred to Christus St. Elizabeth Hospital in Beaumont (St. Elizabeth) for "extensive vascular surgery." Harris alleged that at St. Elizabeth, Randi's artery was ligated, and later Randi developed "respiratory distress and wheezing[,]" and was diagnosed with "infective endocarditis caused by MRSA colonization in his prosthetic heart valve[.]" According to Harris, Randi then had a further stay at St. Elizabeth and became "functionally [a] quadriplegic," but was then released and returned home "until Christmas Eve[,]" when Randi went back to St. Elizabeth, where he went into cardiopulmonary arrest and died. Appellant alleged in his Original Petition that the care provided by Dr. McMillan fell below the standard of care for an emergency room physician and directly resulted in Randi's "immediate physical and mental decline and his tragic suffering and death."
Answer
Dr. McMillan filed an Answer to the suit on May 22, 2015. Dr. McMillan denied the allegation in the Original Petition, asserted a general denial as well as other defenses, and he specifically invoked the requirements of sections 74.153, 74.301, 74.302, 74.303, 74.402, and 74.403 of the Texas Civil Practice and Remedies Code.
June Report
On or about June 2, 2015, Harris produced a report (the June Report) from Joe D. Haines, Jr., M.D., MPH, FAAFP. In the June Report, Dr. Haines stated that he received his B.S. in Premedical Science from Oklahoma State University in 1977, he graduated from the University of Oklahoma College of Medicine in 1981, and he completed an internship in family medicine in 1982 and a residency in family medicine in 1988. According to the June Report and Curriculum Vitae (CV) attached thereto, Dr. Haines is Board Certified in Family Medicine. Dr. Haines stated therein that, at the time of the report, he was employed at the Marine Corps Mountain Warfare Training Center in Bridgeport, California, as the Senior Medical Officer. Dr. Haines also stated in the June Report that he is a Fellow of the American College of Sports Medicine and a former flight surgeon for the United States Navy, and that he has treated "hundreds of patients like Randi Harris who have suffered penetrating trauma to their extremities." Dr. Haines further stated that he is "qualified to testify regarding the standard of care" and he is "familiar with the standard of care for patients such as Randi Harris[.]" According to his CV, Dr. Haines worked as an emergency room physician in Tulsa, Oklahoma from 1991 to 1996.
Dr. Haines "concluded that the proper standard of care for evaluating and treating penetrating wounds to the upper extremities in Mr. Randi Harris was not met by Dr. McMillan." According to Dr. Haines, Dr. McMillan failed to "perform a thorough and proper examination of the penetrating wound to the patient's right forearm on 06/06/2014[,]" and Dr. McMillan "failed to properly rule out a neurovascular injury to the forearm." Dr. Haines stated that the "initial negligence was then compounded two days later" in failing to understand or appreciate the "continued hemorrhage due to a lacerated artery[,]" and that
. . . [d]espite strong evidence that an arterial injury had taken place, these findings were either not recognized, were ignored or overlooked by Dr. McMillan while caring for [Randi] Harris. Dr. McMillan failed to perform an adequate exam to rule out arterial injury[] . . . [and] allowed [Randi] Harris to be discharged twice without establishing the diagnosis.Dr. Haines further stated that Dr. McMillan "discharged the patient home with no further treatment or referral to a specialist[]" and Randi was
. . . released without any treatment for an obvious arterial injury which resulted in a significant delay in the diagnosis and treatment of the problem, and further led to the formation of a pseudoaneurysm, surgical repair and ultimately a wound infection which resulted in significant morbidity and ultimately [Randi's] death from complications of the infection.
Objections to the June Report
On June 23, 2015, Dr. McMillan filed his "Chapter 74 Objections to the Expert Report of Joe D. Haines, MD, MPH, FAAFP[.]" Dr. McMillan argued that Dr. Haines was unqualified, the report was insufficient as a matter of law, and the report contained analytic gaps and conclusory opinions that lacked the statutorily required elements under Chapter 74. Appellant objected that Haines's June Report failed to specify how Dr. McMillan's examination of Randi was "insufficient" and thereby led to any subsequent injury to Randi, and that Dr. Haines's report could only have been "based on speculation and conjecture[]" because it did not refer to any charting made by Dr. McMillan. Appellant further objected that Dr. Haines did not address Randi's "fail[ure] to follow Dr. McMillan's orders[]" regarding seeking further medical care and whether such failure on Randi's part (or some other event unrelated to Dr. McMillan's treatment) might have been an intervening cause of Randi's later injuries. And, Appellant argued that Dr. Haines's conclusion that Randi's "bleeding was uncontrolled [] for almost four weeks" and resulted in various complications was a "simply illogical and nonsensical theory" that was not based in the facts, did not explain "the linking factors between the beginning and the end[,]" and could only have been based on speculation and conjecture. Appellant argued that Dr. Haines's "conclusory and fact free opinions" failed to satisfy the requirements of Chapter 74, and that when there is such an analytic gap between the data and the opinion offered, the expert's opinion should be excluded. Appellant also argued that Dr. Haines was not qualified to render an expert opinion regarding Dr. McMillan's care because Dr. Haines lacks any specialized education, training, or experience in vascular surgery and there is no indication in the report or CV that he had ever participated in a vascular surgical procedure.
Supplement to Report and Supplemental Objections
According to Appellant, on August 12, 2015, Appellee served Appellant with what Appellant and Appellee reference as a "supplemental report" from Dr. Haines dated August 11, 2015 (the August Letter). The document to which Appellant references in the appellate record appears to be a written communication between Dr. Haines and plaintiff's counsel. On September 2, 2015, Dr. McMillan filed Supplemental Chapter 74 Objections to the Supplemental Expert Report of Joe D. Haines (hereinafter Supplemental Objections), and a copy of the August Letter is attached to the Supplemental Objections.
On appeal, Appellee argues for the first time that Appellant failed to serve objections to the alleged "supplemental report" within the twenty-one day time period required by the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2015). In Defendant's Supplemental Chapter 74 Objections to the Supplemental Expert Report of Joe D. Haines, Appellant stated that he received the August 11, 2015 Supplemental Report on August 12, 2015. According to the file-stamped document that appears in the clerk's record, McMillan's Supplemental Objections were e-filed with the trial court on September 2, 2015, which would be within the twenty-one day time period allowed by the statute. According to the certificate of service attached to the e-filed document, the Supplemental Objections were served on opposing counsel "Via E-filing and Facsimile" on September 2, 2015. A certificate by a party or an attorney of record is prima facie evidence of the fact of service. Miller v. Prosperity Bank, N.A., 239 S.W.3d 440, 442 (Tex. App.—Dallas 2007, no pet.). As noted by the Texas Supreme Court, "notice properly sent pursuant to Rule 21a raises a presumption that notice was received." Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (citing Tex. R. Civ. P. 21a). The other party may offer proof to rebut receipt and overcome the presumption. Tex. R. Civ. P. 21a(e) ("Nothing [in Rule 21a] shall preclude any party from offering proof that the document was not received . . . ."). The appellate record does not contain any evidence of non-receipt of the e-filed or faxed copy of the objections. See Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex. App.—Dallas 2009, no pet.) (when a party fails to offer of proof as to non-receipt proper service pursuant to certificate of service was presumed).
In the August Letter, Dr. Haines stated that he was writing Harris's attorney in response "to the additional ER records that recently became available [.]" Dr. Haines states that "[t]hese records do not change" Dr. Haines's opinion "in any way regarding" his original findings, however Dr. Haines also included what he called "[p]ertinent new findings," including in relevant part as follows:
The additional medical records referenced in the August Letter and also discussed in the appellate briefs are not part of the appellate record. --------
1) An "arterial repair" is mentioned in the ER records; however, no documentation of how this was accomplished is present. Was the artery ligated or was a reanastomosis attempted? Certainly an ER physician is not qualified to perform an "arterial repair" in an emergency department setting.
2) . . . arterial injuries are not repaired in the ED. The patients are tak[en] to the operating room and a vascular surgeon performs the repair, usually with an operating microscope.
3) . . . the formation of a pseudoaneurysm is in no way normal. However a pseudoaneurysm can be an expected complication in cases where an arterial repair is not performed or is performed incorrectly.
. . . .
6) The referrals . . . for evaluation of an arterial injury were non-emergent, self-referrals, which is below the standard of care.
Appellant's Supplemental Objections to the August Letter incorporated the prior objections to the June Report as well as offered some additional complaints. Appellant argued that the August Letter did not include any new information that would qualify Dr. Haines to render opinions on either infectious disease or vascular surgery. Appellant asserted that it was not clear whether the August Letter was a report under Chapter 74 or was merely a communication with counsel inasmuch as the August Letter referred to "opposing counsel[]" and appeared to be "nothing other than an expert advocating[.]" Appellant argued that Dr. Haines stated in the August Letter that his opinions had not changed, but that the August Letter in fact directly contradicted the June Report. In the June Report, Dr. Haines stated that Dr. McMillan failed to perform an examination and rule out a neurovascular injury, but in the August Letter, Dr. Haines admitted that Dr. McMillan had actually noted an arterial injury and then performed an arterial repair. Appellant also argued that the August Letter stated in one sentence that the arterial repair could not have been done and stated in another it should not have been done because emergency room doctors would not be qualified to do such repairs. Further, Dr. McMillan complained that the August Letter failed to state how an arterial repair "should have been done, if it was done incorrectly, how it was done incorrectly or [provide] the link between the arterial repair" and Randi's subsequent injury and death. Appellant also argued that, while the June Report indicated that Dr. McMillan failed to properly refer Randi to a vascular surgeon, the August Letter noted that Randi was referred for further evaluation of an arterial injury. Finally, Appellant argued that Dr. Haines's opinion that an infection at the site of Randi's arm wound led to Randi's death was a "conclusory and fact free opinion[]" that provided no analysis of the medical evidence and, therefore, was insufficient under Chapter 74. According to Appellant, the August Letter also "outright contradicts" the June Report and thereby rendered the original June Report unreliable.
Dr. McMillan also filed a Motion to Dismiss in connection with his Objections and Supplemental Objections to the Expert Report and Qualifications of Joe D. Haines "pursuant to Texas Civil Practice and Remedies Code §§ 74.351(r)(5)(A) and (C), 74.401, and 74.403." Dr. McMillan requested that the case be dismissed with prejudice.
Amended Petition and Response to Motion to Dismiss
On September 30, 2015, Harris filed Plaintiff's First Amended Original Petition, and therein alleged that the Amended Petition was necessary due to the production of medical records in Dr. McMillan's possession that Harris alleged had been withheld. Harris also filed Plaintiff's Response to Defendant's Objections to Plaintiff's Expert Reports and Alternative Motion for Sanctions (Response to Objections). Harris argued the reports from Dr. Haines were adequate as to the standard of care, breach, and causation and that Dr. Haines was qualified to render opinions in this case because Dr. Harris was an "emergency room physician."
The trial court held a hearing on the Motion to Dismiss and entered an Order denying the Motion to Dismiss. In the Order, the trial court stated that "[a]fter reviewing the Motion, the pleadings, the evidence on file herein and hearing the arguments of counsel, the Court is of the opinion that the Motion is not meritorious[,]" and the trial court overruled the Objections to the Plaintiff's Expert Reports and denied the Motion to Dismiss. Dr. McMillan filed a Notice of Appeal on November 17, 2015.
STANDARD OF REVIEW
We review the trial court's decision regarding the adequacy of a Chapter 74 expert report under an abuse of discretion standard. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (citing Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) and Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). In reviewing the trial court's decision, we may not substitute our judgment for that of the trial court in reviewing factual matters or matters committed solely to the trial court's discretion. See In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). "Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.—Fort Worth 2005, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Wright, 79 S.W.3d at 52. A trial court also abuses its discretion if it fails to analyze or apply the law correctly. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (citing Walker, 827 S.W.2d at 840).
EXPERT REPORT REQUIREMENTS UNDER CHAPTER 74
A health care liability claimant must provide each defendant physician and health care provider with an expert report within a specified time. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The report serves a two-fold purpose: (1) to inform the defendant of the specific conduct the plaintiff has called into question; and (2) to provide a basis for the trial court to conclude the plaintiff's claims have merit. See In re Buster, 275 S.W.3d 475, 476-77 (Tex. 2008) (citing Palacios, 46 S.W.3d at 879); see also Wright, 79 S.W.3d at 52; HEB Grocery Co., L.L.P. v. Farenik, 243 S.W.3d 171, 173 (Tex. App.—San Antonio 2007, no pet.). The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merit. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). "The expert report requirement is a threshold mechanism to dispose of claims lacking merit[.]" Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).
The statute defines "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.Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The defendant may file challenges to the adequacy of the report. Id. § 74.351(l).
According to the express wording of the statute, 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 an objective good-faith effort to comply with the statute, the trial court's inquiry is limited to the four corners of the report. See Wright, 79 S.W.3d at 53 ("[T]he report must include the required information within its four corners."); Palacios, 46 S.W.3d at 878 ("a trial court should look no further than the report" to determine whether it meets the statutory requirements). 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." Id. at 875; see also Wright, 79 S.W.3d at 52.
While the report "need not marshal all the plaintiff's proof," it must provide a fair summary of the expert's opinions as to the 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. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 875, 878; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). In determining the adequacy of an expert report, the trial court reviews the pleadings to determine the claims alleged and whether the report addresses those claims. See Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.—Fort Worth 2003, pet. denied). The report must "explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented." Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010).
An expert report concerning the breach of the standard of care of a health care provider or causation of an injury that is "authored by a person who is not qualified to testify . . . cannot constitute an adequate report." In re Windisch, 138 S.W.3d 507, 511 (Tex. App.—Amarillo 2004, orig. proceeding); see Ehrlich v. Miles, 144 S.W.3d 620, 624-26 (Tex. App.—Fort Worth 2004, pet. denied) (applying former version of section 74.351(a)). A physician is qualified to submit an expert report on the causal relationship between a departure from the standard of care and an injury when he would otherwise be qualified to address causation under the Texas Rules of Evidence. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C). A person may qualify as an "expert" on the question of whether the health care provider departed from the accepted standard of care if the person (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider; (2) has knowledge of accepted standards of care for health care providers 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 of health care. Id. § 74.402(b) (West 2011). To be qualified on the basis of training or experience, the person must be certified by a state or national professional certifying agency or have other substantial training or experience in an area of the health care practice relevant to the claim and must be actively practicing health care or rendering health care services relevant to the claim. Id. § 74.402(c).
Every licensed medical doctor is not automatically qualified to testify as an expert on every medical question, and the proponent of the testimony must show that the expert possesses special knowledge regarding the matter on which he proposes to give an opinion. Ehrlich, 144 S.W.3d at 625 (citing Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex. 1996)). Accordingly, the offered report must demonstrate that the expert has "'knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.'" Id. (quoting Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003)).
The expert report must establish that the expert is qualified to render opinions about the standard of care and causation, and the reviewing court cannot fill in gaps in a report by drawing inferences. Rosemond v. Al-Lahiq, 362 S.W.3d 830, 834 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) ("The qualifications of the expert necessary to fulfill the criteria for an expert under section 74.351 must be found within the four corners of the expert report itself and the expert's curriculum vitae."); See, e.g., Collini v. Pustejovsky, 280 S.W.3d 456, 465-67 (Tex. App.—Fort Worth 2009, no pet.) (Trial court erred in denying the physician's motion to dismiss because the report did not demonstrate that the expert was qualified to testify with regard to causation.).
It is unnecessary for the expert in his report to rule out all other possible causes or meet summary judgment or trial standards of proof. Palacios, 46 S.W.3d at 879; Baylor Med. Ctr. v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). "If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous." Potts, 392 S.W.3d at 631. "[T]o constitute a good-faith effort to establish the causal-relationship element, the expert report must fulfill Palacios's two-part test." Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). The expert report must explain the basis of the expert's opinions and link them to the facts. Id.; Windsor, 121 S.W.3d at 47 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
When determining whether a report adequately explains how the defendant health care provider caused an injury to a patient, we evaluate whether the report demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53 (a conclusory report does not meet the statutory requirements); Rosemond, 362 S.W.3d at 836 (same); see also HEB Grocery Co., LP v. Galloway, No. 09-13-00486-CV, 2014 Tex. App. LEXIS 5506, at *16 (Tex. App.—Beaumont May 22, 2014, no pet.) (mem. op.) (expert report must do more than merely make conclusory statements and should address causation and the link between the negligence and the injury alleged). A causal relationship is established "by proof that the negligent act or omission was a substantial factor in bringing about the harm and without which the harm would not have occurred." Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.).
"The expert report must provide a fair summary of the causal relationship between the failure of the health care provider to meet the standards of care and the injury, harm, or damages claimed." Estorque v. Schafer, 302 S.W.3d 19, 28 (Tex. App.—Fort Worth 2009, no pet.). And, the expert must explain, within the report, the basis of his conclusions regarding causation linking such to the facts. Id. at 29 (an expert report that leaves gaps by not explaining how or why a provider's failure to consult or refer worsened the progression of the listed conditions is insufficient); cf. Children's Med. Ctr. of Dallas v. Durham, 402 S.W.3d 391, 402-03 (Tex. App.—Dallas 2013, no pet.) (expert report adequately explained the basis of the opinions and linked the purported breaches to the child's injury).
ANALYSIS
In his first issue, Appellant argues that Dr. Haines is not "qualified to render causation opinions regarding Appellant's treatment of [Randi] in the emergency department for an arterial injury to [Randi's] arm which allegedly caused [Randi's] subsequent demise from bacterial endocarditis to a pre-existing mechanical heart valve more than six months later." Appellant argues that Dr. Haines opined that the cause of death was due to complications from bacterial endocarditis that seeded the patient's heart valve but he is unqualified to render such opinions, and he lacks the qualifications to render opinions regarding "the formation of a pseudoaneurysm, cellulitis, bacterial endocarditis or complications of bacterial endocarditis."
Appellee argues that Dr. Haines is qualified to render opinions in this case because he is an "emergency room physician[]" and qualified to opine pertaining to the standard of care and the consequences of leaving an artery unrepaired and of staph infection seeding through an open wound. Dr. Haines's report and his CV do not indicate that he holds any certification in emergency room medicine, vascular surgery, cardiology, or infectious disease, nor does the report indicate that he currently practices in any of these areas of medicine. Dr. Haines stated in his June Report that he practiced family medicine and emergency medicine in Oklahoma from 1982 until 2005, he has treated hundreds of patients with penetrating trauma to their extremities, he has practiced medicine at several military installations, and he is Board Certified in Family Medicine and a Fellow of the American College of Sports Medicine, and that he has "practiced medicine continuously on a full-time basis from 1982, when [he] was first licensed in Oklahoma, to the present date." His CV, which is attached to the June Report, indicates that from 1991 to 1996, he practiced as an emergency room staff physician in Oklahoma, and that he acted as a Wing Surgeon and a Senior Medical Officer for different military installations in the past.
Neither report nor the CV establishes that Dr. Haines is actively practicing health care or rendering health care services relevant to Harris's claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(c)(2). Dr. Haines's reports and CV fail to establish that he would have sufficient knowledge, skill, experience, training, or education to express an opinion regarding the necessity for an emergent referral to a vascular surgeon, the development of the pseudoaneurysm, MRSA, endocarditis, or the cause of the injury and death of Randi Harris. See Methodist Hosps. v. Winn, No. 05-15-00806-CV, 2016 Tex. App. LEXIS 6087, at **5-8 (Tex. App.—Dallas June 8, 2016, no pet. h.); Galloway, 2014 Tex. App. LEXIS 5506, at **17-18. We sustain issue one.
In issues two and three, Appellant argues that the August Letter is inconsistent with the June Report because the primary premise upon which the June Report was based—that Dr. McMillan failed to diagnose or recognize that Randi had an arterial injury—was inconsistent with the medical records. Appellant argues the only opinion on causation that Dr. Haines offered did not "link any specific violations of the standard of care to the damages or injury." Appellant also argues that the only causation opinion that Dr. Haines provided is in the June Report, which was "based on false assumptions of the medical care rendered and the second report did not evaluate the actual medical care rendered or provide a causation opinion."
In assessing the sufficiency of an expert report, we are limited to the four corners of the report. See Palacios, 46 S.W.3d at 878-79; Lo v. Gonzales, No. 01-12-00987-CV, 2013 Tex. App. LEXIS 4820, at **13, 18-19 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) ("In assessing the sufficiency of the report, the trial court may not draw any inferences[.]") (citing Wright, 79 S.W.3d at 52). Accordingly, it is the expert report—and not the plaintiff's pleadings—that must state with specificity how a defendant's departure from a stated standard of care caused plaintiff's injury.
In this case, Dr. Haines's June Report stated that Dr. McMillan's care fell below the standard of care for, among other things, failing to properly assess and diagnose that Randi had an "arterial injury" and failing to make a referral to a specialist or vascular surgeon for treatment. In the June Report Dr. Harris stated that Dr. McMillan's failure to follow the standard of care "in reasonable medical probability[]" resulted in the worsening of Randi's condition. In his August Letter, Dr. Haines then stated that "[c]ertainly an ER physician is not qualified to perform an ' arterial repair' in an emergency department setting[]" and that non-emergent referrals for evaluation of an arterial injury were below the applicable standard of care. And, in the August Letter he stated that the development of the pseudoaneurysm was "in no way normal[]" and that "a pseudoaneurysm can be an expected complication in cases where an arterial repair is not performed or is performed incorrectly." Nevertheless, Dr. Haines does not state that in his opinion Dr. McMillan was unqualified or what type of qualifications an emergency room physician should have before attempting to repair an arterial injury, in what respects the repair performed by Dr. McMillan fell below the standard of care, how the repair should have been performed, or how the alleged lack of qualifications, deficient repair, and alleged failure to make an "emergent referral" to a vascular surgeon caused the injury to or death of Randi Harris.
Although a report is not required to address every alleged liability theory to make the defendant aware of the conduct at issue, it must contain "at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements . . . ." Potts, 392 S.W.3d at 631. The expert report must also link the expert's conclusions to the facts and causation regarding the alleged injury or damages. Wright, 79 S.W.3d at 52 (emphasis added); Palacios, 46 S.W.3d at 878-79. While no "magical words" are required, and a report does not have to "rule out" all possible causes of the injury or harm claimed, the expert must link the alleged failure of the defendant to the injury with something more than a conclusory statement that the failure to refer or render proper care caused the injury. See Scoresby, 346 S.W.3d at 556 ("No particular words or formality are required, but bare conclusions will not suffice."); Jelinek, 328 S.W.3d at 539-40 ("[T]he expert must . . . explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented."); Galloway, 2014 Tex. App. LEXIS 5506, at *14 (an expert report need not rule out all other possible cause of the injury, harm, or damages claimed). Based on the nature of the complaints at issue in this case, Dr. Haines's reports fail to adequately explain a "causal relationship between" Dr. McMillan's negligence and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see, e.g., Galloway, 2014 Tex. App. LEXIS 5506, at **1-20 (expert report failed to explain how the misfilled prescription would have contributed to any of plaintiff's symptoms or injuries, and the report failed to provide the basis for the expert's conclusion.); see also Clapp v. Perez, 394 S.W.3d 254, 262 (Tex. App.—El Paso 2012, no pet.) (expert report was not sufficient where, among other deficiencies, the report failed to demonstrate a causal link between the doctors' conduct and the patient's death); Ngo v. Lewis, No. 09-10-00140-CV, 2010 Tex. App. LEXIS 7432, at **8, 14-15 (Tex. App.—Beaumont Sept. 9, 2010, no pet.) (mem. op.) (expert report that "merely asserts that causation exists is not enough[]" and was insufficient for not explaining the basis of the expert's opinions and for not identifying anything defendant physicians could have done to change the outcome). We sustain issues two and three.
In his fourth issue, Appellant argues that Dr. Haines's reports constitute "no report" and are not eligible for a thirty-day extension to cure deficiencies. We cannot say on the record currently before us, especially in light of the production of the additional medical records, that the reports constitute "no report." Although the reports are deficient as outlined above, that does not mandate the dismissal of the suit. Instead, a trial court is authorized to determine whether a thirty-day extension to cure any and all deficiencies within the report is warranted. Scoresby, 346 S.W.3d at 556; Galloway, 2014 Tex. App. LEXIS 5506, at **21-22 (permitting remand for such a purpose). We overrule issue four.
The order of the trial court denying the motion to dismiss is reversed, and the cause is remanded to the trial court to determine whether Harris should be afforded a thirty-day extension to cure the deficiencies.
REVERSED AND REMANDED.
/s/_________
LEANNE JOHNSON
Justice Submitted on February 10, 2016
Opinion Delivered July 28, 2016 Before Kreger, Horton and Johnson, JJ.