Opinion
NO. 09-11-00649-CV
07-12-2012
CHARLES POPENEY AND FORT BEND NEUROLOGY, PA, Appellants v. RACHEL CAUSEY AND BILL CAUSEY, Appellees
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 10-06-06191 CV
MEMORANDUM OPINION
This interlocutory appeal concerns whether a report adequately addresses causation under standards that apply to health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (West Supp. 2011), § 74.351 (West 2011). In two issues, Dr. Charles Popeney and Fort Bend Neurology, PA contend the trial court erred in denying their objections challenging the adequacy of the medical report of Dr. Jaime López. In their appeal, Dr. Popeney and Fort Bend Neurology argue that Dr. López's report fails to sufficiently explain how their acts or omissions caused Rachel Causey's injury, and that the report fails to sufficiently explain the standards of care that apply and how they were breached. We conclude the report of Dr. López does not adequately address how Dr. Popeney's or how Fort Bend Neurology's alleged failures to meet the applicable standards of care caused Rachel's injury. We reverse and remand the case to the trial court for further proceedings consistent with this opinion.
The Causeys' First Amended Petition alleges that Dr. Popeney is an employee of Fort Bend Neurology, PA, and that it is jointly and severally liable for the acts of Dr. Popeney and of Justin Hawkins under the doctrine of respondeat superior. Regarding vicarious liability claims, "[w]hen a party's alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party's agents or employees is sufficient." Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 587 (Tex. App.— Beaumont 2011, no pet.).
Background
In May 2009, Dr. Rosalia Burke performed a right superficial parotidectomy on Rachel at Memorial Hermann Hospital—The Woodlands. To assist in locating Rachel's facial nerve, Dr. Burke utilized intraoperative neurophysiological monitoring (IONM). Intra-Op Monitoring Services, LLC provided the IONM equipment, which is used to detect neurophysiological changes in patients undergoing surgery, and a technologist, Justin Hawkins, who was present during Rachel's surgery. Dr. Popeney, although not physically present in the operating room, participated in Rachel's surgery by monitoring the IONM device from another location.
Parotidectomy is the "surgical removal of the parotid gland[.]" Webster's Third New International Dictionary 1644 (2002). The parotid gland is "either of a pair of salivary glands situated on the side of the face below and in front of the ear[.]" Id.
The Causeys filed a report authored by Dr. Jaime López to fulfill the requirements that apply to health care liability claims. See id. Dr. López's report reflects that electromyography activity was noted during the surgery, that during the surgery, Dr. Burke "encountered a structure that she thought was consistent with a facial nerve[,]" and "a nerve stimulator was used and confirmed stimulation of all branches of the facial nerve." Nevertheless, Dr. Burke subsequently mistook Rachel's facial nerve for a vessel and cut it. While Dr. López's report includes his opinion that the monitoring procedures used during Rachel's surgery were inadequate, his report fails to explain how adequate IONM monitoring performed according to the applicable standards of care would have allowed Dr. Burke to avoid cutting Rachel's facial nerve. Absent this information, Dr. López's report does not contain a fair summary explaining how the alleged acts of Dr. Popeney and Fort Bend Neurology caused the injury to Rachel's facial nerve.
Applicable Law and Analysis
Generally, we review a trial court's ruling on a motion to dismiss a health care liability claim for abuse of discretion. See 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 acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In cases involving health care liability claims, the claimant must file an expert report that provides a "fair summary" of the expert's opinion as of the date of the report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). To constitute a good-faith effort, a 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 report that merely states the expert's conclusions on the applicable standard of care, breach, and causation "does not fulfill these two purposes." Id. at 879. "'Rather, the expert must explain the basis of his statements to link his conclusions to the facts.'" Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). A reviewing court cannot fill gaps in a report by drawing inferences. Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex. App.—Fort Worth 2009, no pet.).
In determining whether the trial court's ruling on the motion to dismiss was correct, we look to the four corners of the report. Palacios, 46 S.W.3d at 878. With respect to whether the report adequately explained how a health-care provider caused a patient's injury, we evaluate whether the report demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53. A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that absent this act or omission, 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.).
"[W]hen a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant's individual acts and the injury." Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.—El Paso 2011, no pet.); see also CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23 (Tex. App.—Houston [14th Dist.] 2001, no pet.). An expert report may not assert that multiple defendants are all negligent for failing to meet the standard of care without providing an explanation of how each defendant breached the standard of care and how that breach caused or contributed to the cause of injury. Taylor, 169 S.W.3d at 244. "Collective assertions of negligence against various defendants are inadequate." Id.
Dr. López's entire explanation concerning how Dr. Popeney and Fort Bend Neurology caused Rachel's injury consists of the following statement:
Based on the review of the medical records made available to me, it is my opinion that the Plaintiff's injuries/damages were proximately caused in whole or in part by the failure of Intra-op Monitoring Services LLC.; Justin Hawkins; Ft. Bend Neurology, P.A.; and Dr. Popeney[] to follow the applicable standard of care.Elsewhere in the report, Dr. López states that Dr. Popeney provided offsite monitoring of the IONM device, and that he was contacted at some point during the surgery. However, we are unable to determine from the report whether Dr. Burke contacted Dr. Popeney before or after she cut Rachel's facial nerve. The report also fails to make it clear whether Dr. Popeney was responsible for monitoring the IONM equipment during the entire procedure or whether he was only responsible for monitoring during a portion of the procedure. Finally, Dr. López's report fails to identify the point during surgery that Dr. Burke cut Rachel's nerve, and what information should have been provided to her that would have allowed her to avoid cutting the nerve. Additionally, the report fails to contain a fair summary regarding these same details with respect to Hawkins's role during Rachel's surgery. While Dr. López's report contains additional paragraphs that specify various standards of care that he asserts were breached, he never connects the alleged breaches to explain how additional monitoring data would have allowed Dr. Burke to avoid cutting Rachel's facial nerve or when that additional data should have been received.
Because "[a]n expert cannot simply opine that the breach caused the injury[,]" a bare assertion of causation does not meet the requirements of section 74.351(r)(6). Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Palacios, 46 S.W.3d at 879); see also Wright, 79 S.W.3d at 52 (holding that merely providing insight into the plaintiff's claims does not adequately address causation). Rather, to satisfy the element of causation "the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented." Jelinek, 328 S.W.3d at 539-40. An expert must explain the basis of his statements and link his conclusions to the facts of the case. Id.; Wright, 79 S.W.3d at 52. Dr. López's report does not connect his conclusion that Dr. Popeney and Fort Bend Neurology were negligent to Dr. López's general statement addressing how the defendants all caused Rachel's injury.
In summary, Dr. López's report, which contends, without further explanation, that several health-care providers caused Rachel's injury, is insufficient to comply with the "fair summary" requirement of section 74.351(r)(6).See Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879-80.
We need not address Dr. Popeney's remaining arguments, as they would not result in greater relief. See Tex. R. App. P. 47.1.
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Opportunity to Cure
Dr. Popeney asks that we reverse the trial court's order and render judgment dismissing Rachel's claims or that we instruct the trial court, on remand, to render judgment dismissing Rachel's claims. In contrast, the Causeys asks that on remand, we allow the trial court to consider granting additional time to allow them to file an amended report that would cure any deficiencies in Dr. López's current report. See Tex. Civ. Prac. & Rem. Code § 74.351(c).
Recently, the Texas Supreme Court discussed whether an inadequate expert report contained deficiencies to such an extent that it could not be considered as constituting a good-faith effort to file an expert report. See Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). After considering the Act's text and purpose, the Court held that "a document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit." Id. at 549. The Court concluded that "a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated." Id. at 557. The trial court "must grant it if the deficiencies are curable." Id. at 549.
We are unable to conclude that the deficiencies in Dr. López's report are incurable solely from the four corners of the report. Additionally, Dr. Popeney's and Fort Bend Neurology's conduct is implicated by his current report and the report was served by the statutory deadline. See Scoresby, 346 S.W.3d at 549; see also Palacios, 46 S.W.3d at 875. As a result, it is for the trial court to consider whether it must grant the Causeys' request to file amended reports aimed at curing their currently deficient report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (directing that the trial court "may" grant one thirty-day extension); Scoresby, 346 S.W.3d at 549. We conclude that this case should be remanded to the trial court so that it may consider the Causeys' request to file amended medical reports, as provided by section 74.351(c). See Scoresby, 346 S.W.3d at 557; see also Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008) (holding that if appellate courts determine an expert report deficient, the statute permits the appellate court to remand the case to the trial court to consider a thirty-day extension to allow the plaintiff an opportunity to cure the deficiency).
Conclusion
Dr. López's report fails to adequately explain how Dr. Popeney and Fort Bend Neurology caused Rachel's injury. Therefore, we reverse the trial court's order denying Dr. Popeney's and Fort Bend Neurology's motion to dismiss, and we remand this cause to the trial court to consider the Causeys' request for additional time to cure the deficiencies.
REVERSED AND REMANDED.
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HOLLIS HORTON
Justice
Before McKeithen, C.J., Kreger and Horton, JJ.