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holding expert reports were deficient as to three different defendants and remanding the cause to the trial court to consider granting a thirty-day extension of time to cure the deficiencies
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No. 09-09-00169-CV
Submitted on September 24, 2009.
Opinion Delivered December 17, 2009.
On Appeal from the 60th District Court, Jefferson County, Texas, Trial Cause No. B-182,642.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Ivalyn Anderson and Lee Anderson filed a healthcare liability suit against appellants Dr. Samuel Pangburn, Dr. Charles Day, Dr. Nestor Punay, and Baptist Hospitals of Southeast Texas d/b/a Memorial Hermann Baptist Beaumont Hospital and d/b/a Memorial Hermann Baptist Orange Hospital and other defendants. Appellants filed motions to dismiss that challenged appellees' expert reports. See Tex. Civ. Prac. Rem. Code Ann. § 74.351( l) (Vernon Supp. 2009). The trial court denied the motions. We affirm as to the report concerning the claim against Pangburn. Because the reports are inadequate for the claims against Day, Punay, and Baptist Hospital, we reverse and remand the case to the trial court for further proceedings consistent with this opinion.
The Statute
A plaintiff asserting a healthcare liability claim must provide each defendant physician and healthcare provider with an expert report no later than the 120th day after filing suit. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). 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.
Id. § 74.351(r)(6). If a plaintiff furnishes the required report within the time permitted, the defendant may file a motion challenging the report. Id. § 74.351( l).
A trial court must look at all the reports served by the plaintiff and determine whether, viewed together, the reports address each of the required elements. Id. § 74.351(i). 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. § 74.351( l). When determining whether a report represents a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). 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.); see also 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.
Under the statute, a witness may be qualified as an expert on the issue of whether a physician departed from standards of medical care if the person is a physician who: (1) is practicing medicine at the time of the testimony or at the time the claim arose; (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. 2009), § 74.401(a) (Vernon 2005). In deciding whether a witness is qualified on the basis of training or experience, a trial court must consider whether, at the time the claim arose or at the time the testimony is given, the witness: "(1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim." Tex. Civ. Prac. Rem. Code Ann. § 74.401(c) (Vernon 2005). To express expert opinion testimony on causation in healthcare liability cases against physicians, the expert must be a physician and "otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence[.]" Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(5)(C) (Vernon Supp. 2009). Under the Texas Rules of Evidence, a witness must have knowledge, skill, experience, training, or education regarding the specific issues before the court. Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996); see also Tex. R. Evid. 702.
We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 878). "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 abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Background
Plaintiffs submitted expert reports from Dr. Louis Silverman, Dr. Joel Meyer, and Melanie Paquette, a registered nurse. The reports describe Ivalyn Anderson's medical treatment and condition. Anderson suffered from breast cancer and underwent a right modified radical mastectomy. Post-operative chemotherapy was recommended, which required long-term venous access and port-a-cath placement. Dr. Pangburn surgically inserted the port-a-cath for Anderson's chemotherapy at Memorial Hermann Hospital in Orange, Texas. Dr. Day, a radiologist, dictated a report in which the port-a-cath was noted to be in place. In Pangburn's post-operative notes, he noted he had difficulty getting the catheter into the sheath as well as blood loss through the sheath, which he attributed to a manufacturing defect. He also noted elevated venous pressure.
Upon needle access of the port-a-cath, Dr. Gwendolyn Lavalais noted forceful immediate blood return, an abnormal response. Lavalais questioned the placement of the port-a-cath and an x-ray contrast study was completed. After radiologist Dr. Stephen Cherewaty interpreted the x-ray contrast study as normal, Lavalais proceeded to inject the chemotheraputic agent Pactitaxel into the port-a-cath.
Anderson complained of right-sided weakness, headache, and difficulty ambulating. Lavalais ceased administering the chemotherapy and admitted Anderson to Memorial Hermann Baptist Cancer Institute in Beaumont for evaluation of stroke. Dr. Punay, a neurologist, determined that an MRI of the brain was normal. Anderson was discharged from Memorial Hermann Baptist Hospital with instructions to followup with Punay and Lavalais.
Anderson was re-admitted to Memorial Hermann Baptist Hospital with altered mental status. Dr. Dan Karnicki read a chest x-ray as showing the catheter tip to be in the appropriate position.
At her family's request, Anderson was transferred to Methodist Hospital, Houston, for further care. Tests done at Methodist demonstrated that the port-a-cath had been misplaced, and had punctured the left subclavian vein and entered the adjacent left subclavian artery. A doctor at Methodist removed the misplaced port-a-cath.
In Lavalais's discharge notes dictated on October 13, 2006, she described the presence of new lesions in both cerebral hemispheres and the cerebellum. The lesions were initially thought to be metastatic breast cancer, but further studies showed that the tip on the port-a-cath was in the ascending aorta rather than the superior vena cava.
Anderson was transferred to rehabilitation and then discharged to home care. At the time she was discharged, she suffered from persistent disorientation and impaired speech, could only walk one-hundred-fifty feet with a rolling walker, and required twenty-four-hour supervision. Her final diagnosis was acute right thalamic and cerebellum cerebrovascular accident "possible embolic."
Plaintiffs' expert, Dr. Louis Silverman, is a board certified general and thoracic surgeon. Plaintiffs' expert, Dr. Joel Meyer, is a board-certified neuroradiologist. Melanie Paquette, a registered nurse, provided a report regarding Baptist's treatment of Anderson.
Adequacy of the Reports as to Pangburn
Pangburn, the surgeon who inserted Anderson's port-a-cath, argues Silverman and Meyer are not qualified to provide expert opinions on the cause of brain lesions. He contends Silverman's and Meyer's causation opinions failed to provide a fair summary of how Pangburn caused the injury.
Pangburn's motion to dismiss did not directly challenge Paquette's report because according to the motion "she did not offer any opinions regarding Dr. Pangburn's standard of care or that he caused Plaintiffs' damages."
Pangburn notes that Meyer's report did not mention Pangburn, but acknowledges Meyer's report states that "early recognition of the port-a-cath in the aorta would have prompted removal of the port-a-cath which would have prevented subsequent infarcations." Pangburn challenges Meyer's qualifications to render an opinion that the chemotherapy drug is toxic when delivered to an artery and argues that Meyer's curriculum vitae and report do not demonstrate that he has experience or training relating to the chemotherapy drug or in diagnosing brain lesions. Pangburn argues Meyer's report fails to explain (1) how administering the chemotherapy drug to an artery differs from administering it to a vein, (2) how the chemotherapy drug is toxic, and (3) why the drug causes brain lesions.
Meyer is a board-certified neuroradiologist with sub-specialties in neurology and radiology, and he states in his report that he has "read films in [his] practice such as those involved herein on many occasions[,] made proper diagnoses of misplaced porta caths[,] made correct neurologist diagnoses in [his] practice such as should have been made by the neurologist in this case, and made treatment recommendations based upon those correct diagnoses." The report indicates he is qualified to express an opinion on the cause of the injury.
Pangburn argues that while Silverman may be qualified to give an opinion as to the standard of care for a surgeon's insertion of a port-a-cath, Pangburn challenges Silverman's qualifications to render a causation opinion. Pangburn also contends that Silverman's curriculum vitae and report fail to show that Silverman has any training or experience (1) with the chemotherapy drug administered here, (2) in diagnosing brain lesions, and (3) related to whether the chemotherapy drug causes brain lesions.
Silverman's report states that the standard of care for the insertion of the port-a-cath requires "smooth entry[,]" that "[r]esistance to passage indicates most likely malposition and requires removal and reinsertion[,]" and that "[h]igh-pressure back flow is clearly abnormal and is an indication suggestive of problematic placement." He further states that Pactitaxel, the chemotherapy drug administered to Anderson, was toxic when injected intra-arterially. According to Silverman, the intra-arterial injection, in all reasonable medical probability, was the direct cause of Anderson's neurological injury that "more likely than not, would have been avoided had Pangburn correctly cannulated Ms. Anderson's subclavian vein."
In his report, Silverman states he is "a board certified general and thoracic surgeon in active practice" and treats breast cancer patients like Anderson who require long-term venous access for chemotherapy. He "perform[s] breast biopsies and radical mastectomy and insertion of port-a-cath devices for long-term venous access[.]" The report indicates Silverman is qualified to render an opinion as to the standard of care for inserting port-a-cath devices. See Tex. R. Evid. 702; Broders, 924 S.W.2d at 153.
Together, the Silverman and Meyer reports satisfy the requirements of the statute as to the claim against Pangburn. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(i). We overrule Pangburn's issues.
Adequacy of the Reports as to Day
Day, the radiologist who reviewed chest films taken while Anderson was a patient at Baptist Hospital in Orange, asserts that the three reports wholly fail to address the standard of care applicable to him, how he breached the standard of care, and how he caused Anderson's injury. He maintains that Silverman and Paquette are not qualified to address the applicable standard of care, breach, or causation.
Paquette is not a physician, and therefore, does not qualify as an expert witness on the standard of care applicable to Day or whether Day breached that standard of care. See Tex. Civ. Prac. Rem. Code Ann. § 74.401(a). Only a physician is qualified to render an expert report opinion as to causation. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(5)(c); 74.401(a). Silverman's report and curriculum vitae fail to demonstrate that he is qualified on the basis of training or experience to offer an expert opinion regarding the standards of medical care applicable to Day. See Tex. Civ. Prac. Rem. Code Ann. § 74.401(a). Silverman is not a board-certified radiologist. His report does not state he practices radiology, and does not state his experience in interpreting chest x-rays. See Tex. Civ. Prac. Rem. Code Ann. § 74.401(c). The expert reports prepared by Silverman and Paquette are inadequate as to Day. Those reports fail to name Day at all, do not set out the standard of care for a radiologist, and do not explain any breach of the standard of care by Day. See Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.-Corpus Christi 2004, no pet.); Wood v. Tice, 988 S.W.2d 829, 831 (Tex. App.-San Antonio 1999, pet. denied).
Meyer states in his report that "[r]adiology reports regarding catheter tip placement are incorrect, including the chest x-ray reviewed and dictated by Charles Day, M.D., dated 8-16-06[.]" Meyer's report later states that Anderson's brain infarcations were, in reasonable medical probability "caused by the breaches of the standard of care by Stephen Cherawaty, M.D., Dan Karnicki, M.D., Charles Day, M.D., and Nestor Punay, M.D." Generally, a report may not simply assert that multiple defendants are all negligent for failing to meet the standard of care without explaining how each defendant specifically breached the standard and how that breach caused or contributed to cause the injury. See Taylor, 169 S.W.3d at 244; Wood, 988 S.W.2d at 831. Greater specificity is required.
Meyer's report states that Day's radiology report was "incorrect," but the report does not state that the x-ray itself demonstrates the catheter was misplaced. It is not entirely clear from the report that an x-ray of the type reviewed by Day would reveal the misplacement in this case, or that Meyer believes Day should have conducted a different test. Meyer's report is deficient as to Day in that it fails to discuss the standard of care applicable to a radiologist reporting or reviewing the chest x-ray under the circumstances, and how Day breached that standard of care. See Palacios, 46 S.W.3d at 880. The reports are not sufficiently specific as to the claim against Day.
Adequacy of the Reports as to Punay
Punay, the neurologist who was consulted during Anderson's hospitalization subsequent to the insertion of the port-a-cath, argues all three experts are not qualified to opine about the standard of care for a neurologist. He maintains that the reports fail to meet the statutory requirements of section 74.351.
Paquette is not a physician and does not qualify as an expert witness on the standard of care applicable to Punay or whether he breached that standard of care, nor can she render an expert opinion as to causation. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.351(r)(5)(C); 74.401(a). Silverman's report and curriculum vitae do not show his qualifications to render an expert opinion as to the standard of care applicable to a neurologist, or how Punay breached the standard of care. See Tex. Civ. Prac. Rem. Code Ann. § 74.401(a). He is not a board-certified neurologist, does not state he practices neurology, and does not state that he has training or experience in neurology. See Tex. Civ. Prac. Rem. Code Ann. § 74.401(c). However, Meyer's report states he has sub-specialties in both neurology and radiology and is "familiar with the standards of care as to each of the radiologists as well as the neurologist [Punay], by training, education, and experience[,] and made correct neurological diagnoses in [Meyer's] practice such as should have been made by the neurologist in this case[.]"
Punay argues that even if the experts can be shown to be qualified, their reports fail to meet the statutory requirements of section 74.351. Meyer makes the conclusory statement that Punay should have made the correct neurological diagnosis. Although he states that "this failure is a breach of the standard of care by Stephen Cherawaty, M.D., Dan Karnicki, M.D., Charles Day, M.D. and Nestor Punay, M.D.[,]" the report does not specifically state what "this failure" refers to in regards to Punay. Meyer's report later states that Anderson's brain infarcations were, in reasonable medical probability "caused by the breaches of the standard of care by Stephen Cherawaty, M.D., Dan Karnicki, M.D., Charles Day, M.D., and Nestor Punay, M.D." The expert reports, however, do not discuss Punay's treatment of Anderson, state the standard of care for a neurologist, state specifically how Punay breached that standard of care, or explain how the breach caused the injuries. See Taylor, 169 S.W.3d at 244; Wood, 988 S.W.2d at 831. The reports are not sufficiently specific as to the claim against Punay. Adequacy of the Reports as to Baptist
Baptist maintains (1) Paquette's expert report addressing causation cannot satisfy section 74.351's requirements, and (2) an expert report that would require a nurse to request that a physician change an order or utilize the "chain of command" cannot adequately address causation without a qualified expert's opinion that the physician's order was improper. Baptist argues the report does not explain how the outcome would have been different but for the conduct of the nurses. Baptist contends that the expert reports do not include any opinions by a physician as to how Baptist caused the injury. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(5)(C).
Pacquette's report adequately addresses the standard of care and alleged breach. Silverman's report mentions Baptist as a hospital where Anderson was treated. The report does not adequately address how Baptist caused the injury, however, and Pacquette is not a medical doctor. Meyer's report states he reviewed records from Baptist, but his report does not discuss Anderson's treatment at Baptist or how Baptist caused the injury.
Baptist contends the Andersons had an opportunity to secure an expert report to show that Lavalais's orders were inappropriate and violated the standard of care, which according to Baptist, the Andersons were "clearly . . . unable to" do because Lavalais was non-suited. According to Baptist, this Court has no discretion to allow the Andersons an extension of time to cure the deficiencies as to Baptist because that would essentially allow the Andersons more time to provide an expert report as to Lavalais. Baptist also states that "[t]he convoluted result would be that Baptist Hospital's nurses would have to defend their alleged failure to second-guess a proper order, where the physician herself has already been absolved of any responsibility."
The effect of the non-suit on any allegation against Lavalais is not the issue in this appeal. We do not resolve the merits of the plaintiffs' claim in this proceeding. The only issue we address is whether the reports comply with the requirements of the statute. The expert reports are deficient in that they do not sufficiently address how Baptist's conduct caused the injury. Because the reports are deficient as to one of the required elements, the Court has discretion to remand the case for the trial court to consider granting a thirty-day extension of time to cure the deficiencies. See Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008); see also Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (A deficiency in any requirement of section 74.351 may be cured by amending an expert report or by serving a report from a separate expert.).
Conclusion
We affirm the trial court's order denying Pangburn's motion to dismiss. The reports fail to comply with the requirements of Chapter 74 with respect to the claims against Day, Punay, and Baptist Hospital. We reverse the trial court's order denying the motions to dismiss of Day, Punay, and Baptist Hospital.
When an appellate court reverses the trial court's denial of a motion to dismiss a healthcare liability claim due to deficiencies in the elements of the report, the appellate court may remand the case to the trial court to consider granting a thirty-day extension to cure the deficiencies in the report. See Leland, 257 S.W.3d at 208; Lewis, 253 S.W.3d at 208. We remand the case to the trial court to consider granting an extension to cure the deficiencies, and for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.