Opinion
No. 14-07-00085-CV
Opinion filed August 21, 2007.
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 06-CV-150120.
Panel consists of Chief Justice HEDGES and Justices HUDSON and EDELMAN.
MEMORANDUM OPINION
This is a health care liability lawsuit governed by chapter 74 of the Texas Civil Practice Remedies Code. TEX. CIV. PRAC. REM. CODE ANN. § 74.001-.507 (Vernon 2005 Supp. 2006). Methodist Health Center d/b/a Methodist Hospital Sugar Land, appellant and a defendant below, brings this interlocutory appeal from the trial court's denial of its motion to dismiss, which was based on the alleged inadequacy of the preliminary expert report filed by appellees/plaintiffs, Gene Thomas and Carolyn Thomas. See id. § 51.014 (Vernon Supp. 2006) (authorizing interlocutory appeal). Methodist contends that the trial court erred in (1) determining that either the original expert report or the amended report was adequate and (2) considering the amended report. Methodist additionally asserts that the proper remedy is dismissal of the Thomases' case. We reverse and render judgment dismissing the Thomases' claims.
Background
In their lawsuit, the Thomases contend that Methodist was negligent when it failed to communicate the results of a CT Scan performed on Gene Thomas to either Gene himself or the referring physician, Jeffrey Alford. The scan was performed at Methodist on March 28, 2002, and the results were subsequently reviewed by an independent radiologist, Robert Malone. In his report, Malone noted, among other things, that the results showed an increase in the size of an abnormality, when viewed against the results of a scan from the prior year. He concluded that this change "makes neoplasm more likely and further evaluation is suggested." Thomas sought no further testing until almost four years later, when he underwent another CT Scan and other diagnostic testing and received a diagnosis of an advanced form of cancer.
The Thomases sued Methodist, Malone, Alford, and Alford's medical practice group, Sweetwater Medical Associates. They allege essentially that the negligence of these defendants caused Gene's cancer to go untreated until it had spread throughout his body. As required under chapter 74, the Thomases filed expert reports in relation to the alleged conduct of each defendant. The trial court subsequently granted motions to dismiss favoring Malone, Alford, and Sweetwater.
In addition to allegations relating to the conveyance or nonconveyance of the 2002 CT Scan result, the Thomases alleged failure to diagnose, misdiagnosis, failure to order diagnostic testing, and failure to order treatment.
The allegations against these other defendants were severed into a separate lawsuit, which was the subject of a separate appeal in this court. See Thomas v. Alford, No. 14-06-00796-CV, 2007 WL 2050327 (Tex.App.-Houston [14th Dist.] July 19, 2007, no pet. h.) (affirming the dismissal of claims against Malone and reversing and remanding the dismissal of claims against Alford and Sweetwater).
In relation to Methodist, the Thomases offered the expert report of Samuel Steinberg, who, according to his report and curriculum vitae, is an experienced and well-trained hospital administrator but not a medical doctor. In his original report, Steinberg makes the following conclusions regarding the standard of care, breach, and causation of Gene Thomas's injuries:
I am familiar with the standard of care for a Joint Commission on Accreditation of Healthcare Organizations (JCAHO) accredited hospital in providing healthcare services to a patient such as Mr. Thomas. The standards of care for a patient such as Mr. Thomas by an accredited hospital such as Methodist Hospital Sugar Land include the following:
1. The JCAHO standards require that a Critical Value Reporting Policy be in place, which defines critical test results, i.e., those test results that are sufficiently serious or abnormal and require immediate attention by a physician. Further, the result is one that indicates potential significant consequence to the patient.
2. This policy must also define how this information is communicated to the ordering and/or attending physician and the means by which the communication is documented. Typically, the receiving party is asked to read back the test result to the person providing the result and the 'read back' is documented in the appropriate record.
3. The Hospital must ensure that the policy for reporting critical values and abnormal test results is followed by its employees, agents, personnel and staff and that the communication actually took place.
4. The Hospital must ensure that the communication of the critical values and abnormal test results is documented.
5. The Hospital must ensure that the receipt of the communication of the critical values and abnormal test results by the receiving party is documented.
Methodist Hospital Sugar Land fell below the standard of care in the treatment of Mr. Thomas as follows:
1. Methodist Hospital Sugar Land did not directly communicate with Dr. Alford, the referring physician, or Mr. Thomas, the patient, regarding the results of the abnormal CT scan findings of 3/28/2002.
2. Methodist Hospital Sugar Land did not ensure that any communication actually occurred, from its employees, agents, personnel or staff, to Dr. Alford or Mr. Thomas regarding the critical and abnormal results of his 3/28/2002 CT scan.
3. Methodist Hospital Sugar Land did not ensure that any communication of the critical value and abnormal results of Mr. Thomas' CT scan of 3/28/2002 was actually sent or received by any party.
It is my expert opinion that by not following the JCAHO required actions of directly communicating the critical and abnormal CT scan results of 3/28/2002 to the referring physician and/or to the patient, and not ensuring that any communication regarding the CT scan findings was received, Methodist Hospital Sugar Land caused Mr. Thomas' cancer to be undiagnosed for a period of almost four years, allowing it to spread and worsen from a stage I cancer to a stage IV cancer.
In a second version of the report submitted to the trial court, Steinberg added the following paragraph at the end of the report:
Please note that Methodist Sugar Land Hospital (sic) did voluntarily request accreditation by the JCAHO, however, this accreditation is REQUIRED if Methodist Sugar Land Hospital takes care of Medicare patients. JCAHO specifically terms its requirements STANDARDS, not guidelines, and clearly requires that all STANDARDS must be met by an accredited hospital at all times. Methodist Sugar Land Hospital MUST comply with all JCAHO standards.
During the hearing on the motion to dismiss, over Methodist's objections, the trial court appeared to consider both reports. The trial court denied the motion to dismiss.
Standards of Review
We utilize an abuse of discretion standard in reviewing a trial court's decision on a motion to dismiss challenging a preliminary expert report in a health care liability case. Group v. Vicento, 164 S.W.3d 724, 727 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001), decided under prior law); see also TEX. CIV. PRAC. REM. CODE ANN. § 74.351. Under section 74.351(l), a trial court must grant a motion challenging the adequacy of an expert report if the report does not represent an objective good faith effort to comply with the definition of an expert report in subsection (r)(6). TEX. CIV. PRAC. REM. CODE ANN. § 74.351(l). Subsection (r)(6) defines "expert report" as a written report providing a fair summary of the expert's opinions regarding the standard of care, the manner in which the care rendered by the health care provider failed to meet the standard of care, and the causal relationship between that failure and the harm claimed. Id. § 74.351(r)(6). Additionally, in order to provide an acceptable report, the expert must establish that he or she is qualified to do so. Id. § 74.351(r)(5)(B).
Ultimately, to constitute a good faith effort, an expert's medical liability report must establish the expert's qualifications, the applicable standard of care, how that standard was breached by the particular actions of the defendant, and how that breach caused the damages claimed by the plaintiff. See, e.g., Palacios, 46 S.W.3d at 878-79. The report must do more than merely state the expert's conclusions; it must be sufficiently explicit to: (1) inform the defendant of the specific conduct that is being called into question, and (2) provide a basis for the trial court to conclude that the plaintiff's claims have merit. Id. at 879.
Substantive Analysis
Among other arguments regarding Steinberg's qualifications and the sufficiency of his report, Methodist contends that he is not qualified to opine on medical causation as required for an expert report under chapter 74. In his report, Steinberg concludes that Methodist's actions "caused Mr. Thomas' cancer to be undiagnosed for a period of almost four years, allowing it to spread and worsen from a stage I cancer to a stage IV cancer." However, while Steinberg's report and attached curriculum vitae reveal substantial training and experience in hospital administration, they reveal no training or experience in any medical field. Chapter 74 expressly provides that in order to qualify as an expert on medical causation, regardless of whether the suit is against a physician or some other healthcare provider, the purported expert must be a physician. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(5)(C), 74.403(a). Section 74.351(r)(5)(C) defines "expert" for purposes of the act as:
The Thomases' claims constitute health care liability claims governed by chapter 74 because the complained of acts or omissions are inseparable parts of the rendition of health care services. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004); Torres v. Mem'l Hermann Hosp. Sys., 186 S.W.3d 43, 47 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Thus, under section 74.351(a), the Thomas's were required to submit a preliminary expert report. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a).
with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence. . . .
Id. § 74.351(r)(5)(C) (emphasis added). Section 74.403(a) provides as follows:
[I]n a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.
Id. § 74.403(a) (emphasis added). Because Steinberg's report and curriculum vitae do not establish that he is a physician, he has not been shown to be qualified to address medical causation. Accordingly, the trial court erred in overruling Methodist's objections to Steinberg's opinions regarding causation.
Disposition
We next consider whether the appropriate remedy in this case is to reverse and remand in order for the trial court to determine whether to give the Thomases an opportunity to file a new report pursuant to section 74.351(c), or reverse and render judgment for failure to timely file an adequate expert report. Id. § 74.351(c) (providing for a thirty-day extension to cure a deficiency in an expert report). Compare Leland v. Brandal, 217 S.W.3d 60, 64-65 (Tex.App.-San Antonio 2006, pet. granted) (remanding for trial court to determine whether to grant thirty-day extension), with id. at 65-66 (Duncan, J., concurring) (suggesting that an ambiguity exists in section 74.351(c) as to whether a trial court can grant an extension after an appellate court finds an expert report to be deficient and calling upon the legislature to address the matter).
Recently, the First Court of Appeals held that when a medical liability claimant who initially filed a timely but inadequate expert report is given an additional thirty days to file an adequate expert report under section 74.351(c), the claimant may not file a new report from a different expert but may only attempt to cure deficiencies by amending the initial report. Danos v. Rittger, No. 01-06-00350-CV, 2007 WL 625816, at *3 (Tex.App.-Houston [1st Dist.] Mar. 1, 2007, pet. filed); see also De La Vergne v. Turner, No. 04-06-00722-CV, 2007 WL 1608872, at *1 (Tex.App.-San Antonio June 6, 2007 no pet. h.) (mem. op.) (citing and following Danos). The court in Danos based its analysis on a change in the statutory language between the former medical liability statute and the present medical liability statute. The former statute required a thirty-day extension to allow a claimant to "comply with the subsection," under certain circumstances, even if no timely report had been filed, but the current statute permits a thirty-day extension only to "cure the deficiency" in a previous timely-filed report. From this change in verbiage, the Danos court concluded that in amending the statute, the legislature intended to restrict a claimant to making changes to an existing expert's report during the extension period and not permit the filing of a wholly new report from a different expert. 2007 WL 625816, at *3-4.
The former statute provided that:
[I]f a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.
Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87 (adding expert report requirement, at former TEX. REV. CIV. STAT. ANN. art., § 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898-99 (H.B. 4) (adopting chapter 74 of the Texas Civil Practice and Remedies Code).
The current statute states: "If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency." TEX. CIV. PRAC. REM. CODE ANN. § 74.351(c).
See supra n. 4.
Additionally, we and other courts of appeals have previously held that section 74.351(c) does not extend the deadline for filing an expert report but applies only when an initial expert report is timely filed. See, e.g., Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2006, no pet.) ("Although section 74.351(c) gives a court discretion to grant 30 days to amend a deficient expert report, this section applies only when an initial report is timely filed; it is not available to extend the deadline for first filing a report.") (emphasis added); Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex.App.-Corpus Christi 2006, no pet.) (holding that "[a]n extension under section 74.351(c) is not available if the expert report is not served by the deadline") (emphasis added); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460 (Tex.App.-Austin, 2006, no pet.) (noting that section 74.351(c) did not apply to plaintiff's late-filed expert report because that section "permits extensions for expert reports that the court finds deficient in substance, not for reports that are filed untimely"); Thoyakulathu v. Brennan, 192 S.W.3d 849, 852-53 (Tex.App.-Texarkana 2006, no pet.) (same). By analogy, this principle lends some degree of support for the Danos court's conclusion that a claimant cannot file a wholly new report during an extension period because the new report would be untimely under the section.
Applying the reasoning of Danos to the present case, remanding to the trial court for a determination of whether to grant the Thomases a thirty-day extension to cure deficiencies in their expert's report would be unavailing. Steinberg is not a physician, and under Danos, the Thomases may not file a wholly new report by a different expert. Consequently, they cannot fulfill the causation requirement of expert reports under section 74.351. Accordingly, we must reverse and render judgment dismissing the Thomases' claims.
We reverse the trial court's January 4, 2007 order denying Methodist's motion to dismiss and render judgment dismissing with prejudice the Thomases' claims against Methodist.