Opinion
No. 05-04-00123-CV
Opinion Filed June 20, 2005.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 380-3318-03, 380-3529-03.
Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
This is an appeal from the trial court's orders dismissing the medical malpractice claims against appellees Drs. Zafar, Donaldson, Foster, Treer, and Vallurupalli. Appellants contend the trial court abused its discretion in dismissing and severing their causes of action based on the failure to provide an expert report in compliance with section 13.01 of Article 4590i of the Texas Revised Civil Statutes, the Medical Liability and Insurance Improvement Act (MLIIA). Appellants also contend the trial court abused its discretion in denying their request for a 30-day grace period as provided by section 13.01(g) of the MLIIA. We affirm the trial court's orders of dismissal. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1.
Article 4590i was repealed by the 78th Legislature, effective September 1, 2003. This case was filed before article 4590i was repealed.
I. Factual and Procedural Background.
According to plaintiffs' first amended petition, on January 3, 2001, Joy S. Dickson presented to the hospital emergency room "complaining of a non-productive cough aggravating a chronic pain condition and shortness of breath" and she was admitted to the hospital for the "reasons of pneumonia, hypokalemia and chronic pain." According to the petition, after eight days she tested positive for Methicillin-resistant Staphylococcus aureus (MRSA), an antibiotic resistant infection, and she died in the hospital on January 24, 2001. Appellants sued the hospital and seven doctors alleging Dickson was not properly diagnosed or treated for MRSA and that the failure to treat MRSA caused her death.
On August 4, 2003, appellants filed the expert report of Dr. Jared Kelley and his curriculum vitae in compliance with section 13.01(d) as to all defendants. Challenging the adequacy of the expert report, Drs. Zafar and Treer filed a motion to dismiss and such motion was granted by the trial court's order of October 3, 2003. Likewise, Drs. Donaldson, Foster, and Vallurupalli filed a motion to dismiss challenging the report, and their motion was granted by the trial court on October 31, 2003. An order of severance for Drs. Zafar and Treer was signed on October 31, 2003 and the cause was subsequently assigned number 380-3318-03. An order of severance for Drs. Donaldson, Foster, and Vallurupalli was also signed on October 31, 2003 and the cause was subsequently assigned number 380-3529-03. Appellants filed a motion for relief under section 13.01(g) asking for a 30-day grace period to comply with the requirements for the expert report. The appellate record contains no order relating to the request for the 30-day grace period. A motion for new trial and notice of appeal were timely filed in the parent cause number of 380-895-03. We consider the notice of appeal filed in the parent cause number a bona fide attempt to appeal the two orders of dismissal made final by the severance orders of October 31, 2003, and, therefore, we have jurisdiction to review the two orders of dismissal. See Espalin v. Children's Medical Center of Dallas, 27 S.W.3d 675, 680-82 (Tex.App.-Dallas 2000, no pet.).
Although the trial court did not explicitly rule on appellants' request for a grace period, the trial court implicitly denied the motion seeking a grace period by granting the motion to dismiss. Walker v. Gutierrez, 111 S.W.3d 56, 64, n. 1 (Tex. 2003).
II. Standard of Review
The MLIIA provides, "A 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 a good faith effort to comply with the definition of an expert report. . . ." See Tex. Rev. Civ. Stat. Ann. Art. 4590i § 13.01(l) (Vernon Supp. 2003). We review a trial court's decision on a motion challenging an expert report and a motion to dismiss a case under section 13.01(e) for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001).
In reviewing a trial court decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine, 701 S.W.2d 238, 241-42 (Tex. 1985). The exercise of discretion is within the sole province of the trial court, and an appellate court may not substitute its discretion for that of the trial judge. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding). If the claimant has failed to file a medical expert report in compliance with section 13.01(d), the court may, after a hearing, grant a grace period of 30 days to permit compliance with that subsection. See Tex. Rev. Civ. Stat. Ann. Art. 4590i § 13.01(g) (Vernon Supp. 2003). We review a trial court's section 13.01(g) grace period determination under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
III. Applicable Law As to Adequacy of Report
To constitute a good faith effort, the expert report must provide, for each defendant, a fair summary of the expert's opinions with respect to each of the requirements set out in section 13.01(r)(6), i.e., a standard of care, breach of that standard, and causation. Palacios, 46 S.W.3d at 878-79. A report cannot be a good faith effort if it omits any of the statutory elements. Id. at 879. The report must fulfill dual purposes: (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Id. In determining if the report constitutes a good faith effort, the trial court's inquiry is limited to the four corners of the report. Id. at 878.
IV. The Report
Section 13.01(d) of the Act requires a plaintiff asserting a health care liability claim to submit an expert report, along with the expert's curriculum vitae, to each defendant physician no later than the 180th day after filing suit. See Tex. Rev. Civ. Stat. Ann. Art. 4590i § 13.01(d) (Vernon Supp. 2003). Section 13.01(r)(6) defines an 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 . . . failed to meet the standards, and the causal relationship between the failure and the injury, harm or damages claimed." Appellees challenged the adequacy of the report on several grounds including Kelley's status as a qualifying expert and the explanation of causal relationship between the breach of the standard of care and plaintiff's injury.
V. Issues on Appeal
In their first two issues, appellants assert that the trial court abused its discretion in finding the expert report inadequate and dismissing their claims as to the five appellees. We have reviewed Kelley's July 30, 2003 report and we conclude the trial court did not act without reference to any guide or principle in determining that the report was inadequate. See Downer, 701 S.W.2d at 241-42.
Allegedly, Dickson was admitted into the hospital because of a respiratory ailment and died because of an infectious disease, contracted through unsanitary surgical procedures. The conditions involved in this claim relate to the treatment of respiratory difficulties and infectious diseases, specifically, MRSA. Two of the three qualifications for an expert witness are that the physician have "knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim" and that the physician have "training or experience to offer an expert opinion regarding those accepted standards of medical care." Tex. Rev. Civ. Stat. Ann. Art. 14.01(a) (Vernon Supp. 2003).
In his report, Kelley stated that he practices obstetrics and gynecology and is board certified in those areas. He stated that "as a surgeon" he is familiar with the standard of care for diagnosis and treatment of MRSA. However, Kelley's report and his curriculum vitae do not state how he has become qualified in diagnosis or treatment of MRSA infections. He failed to state whether he has ever seen or treated a patient with MRSA. In this case, where the decedent was admitting into the hospital because of respiratory distress and allegedly died because of an infectious disease, it would not be an abuse of the trial court's discretion for it to determine that a gynecologist was not qualified as an expert. Hansen v. Starr, 123 S.W.3d 13, 19-20 (Tex.App.-Dallas 2003, pet. denied).
Regarding causation, Kelley stated the negligence of the doctors resulted in the nosocomial MRSA infection and "the absence of proper diagnosis and treatment were the proximate cause of Ms. Dickson's death." He concluded that, "[b]ecause of the existence of the nosocomial MRSA infection and the lack of proper diagnosis and treatment, Ms. Dickson was pronounced dead at 6:44 AM, January 24, 2001. . . ." He does not explain how the doctors' alleged failure to diagnose and treat the infection caused Dickson's death. He does not state how he concluded that Dickson had "nosocomial MRSA" or how she was diagnosed with MRSA. He does not provide sufficient information regarding the severity and effects of the infection, its rate of development, its prognosis, or its inevitable consequences, if untreated.
The second prong of the Palacios test requires the report to "provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 879. An expert's conclusions about the standard of care, breach, and causation are not sufficient to fulfill the purposes of the Palacios test. Id. It was not an abuse of discretion for the trial court to determine that the conclusory statements of the report regarding causation did not provide a basis for it to determine the claims had merit. See Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 51-4 (Tex. 2002) (per curiam).
We overrule appellants' first and second issues. Included in the first and second issues, appellants assert that the trial court abused its discretion in granting the orders of severance but they offer no record references, legal authority or argument regarding the severance orders. Accordingly, we deem any issue regarding severance waived. See Tex.R.App.P. 38.1; Kang v. Hyundai Corp. 992 S.W.2d 499, 503 (Tex.App.-Dallas 1999, no pet.).
In their third issue, appellants assert the trial court abused its discretion in denying their request for a 30-day grace period as provided by section 13.01(g) of the MLIIA. Included in their response to the motion to dismiss, appellants requested relief under section 13.01(g) for a 30-day grace period if the trial court determined that their medical expert report had failed to comply with article 4590i. In support of the request for the grace period, appellants' attorney filed an affidavit in which she stated that any omissions in the report were not intentional, but were due to accident or mistake "[b]ecause of the number of defendants and the various nature of their treatment to Ms. Dickson. . . ." Section 13.01(g) requires a trial court to grant a 30-day grace period if, 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." However, the supreme court has stated that "[a] party who files suit on claims subject to article 4590i is charged with knowledge of the statute and its requirements." Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003). The bare assertion that the number of defendants, a matter under the control of appellants, caused omissions in the report does not provide facts that negate intentional or consciously indifferent conduct by the claimants in the filing of their inadequate expert report. See Id. at 64-65 (citing Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984)). Accordingly, the trial court did not abuse its discretion in failing to grant a grace period. We overrule appellants' third issue.
We find that the expert report is deficient, and we conclude the trial court did not abuse its discretion in granting the motions to dismiss this case. We affirm the trial court's orders for dismissal.