Opinion
No. 08-20-00059-CV
09-29-2021
Janelle THOMPSON, CRNA, Appellant, v. Genesis FONG, Appellee.
ATTORNEY FOR APPELLANT: Sean M. Higgins, Lewis Brisbois Bisgaard & Smith LLP, 24 Greenway Plaza, Ste. 1400, Houston, TX 77046. ATTORNEY FOR APPELLEE: Walter L. Boyaki, Miranda & Boyaki, 4621 Pershing Dr., El Paso, TX 79903.
ATTORNEY FOR APPELLANT: Sean M. Higgins, Lewis Brisbois Bisgaard & Smith LLP, 24 Greenway Plaza, Ste. 1400, Houston, TX 77046.
ATTORNEY FOR APPELLEE: Walter L. Boyaki, Miranda & Boyaki, 4621 Pershing Dr., El Paso, TX 79903.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
YVONNE T. RODRIGUEZ, Chief Justice
Janelle Thompson, Appellant, brings an interlocutory appeal of the trial court's denial of her motion to dismiss the health care liability claim of Genesis Fong, Appellee. Appellant's sole issue is her allegation that Appellee's expert reports were so deficient as to not qualify as expert reports, meaning that Appellee failed to serve Appellant with an expert report within 120 days, therefore, the trial court erred by failing to dismiss Appellee's claims. TEX.CIV.PRAC. & REM.CODE ANN. § 74.351. We find Appellant's argument on appeal does not comport with her objections raised with the trial court. Accordingly, Appellant has waived her sole issue on appeal. TEX.R.APP.P. 33.1. We affirm the trial court's decision.
BACKGROUND
Appellee gave birth at the Hospitals of Providence - East Campus on October 20, 2017. Appellee alleges that during her labor Appellant, a certified registered nurse anesthetist (CRNA) and another CRNA, Jose Robledo, placed an epidural catheter to alleviate her pain. Postpartum, Appellee claimed neither Appellant nor Robledo were able to remove the catheter. A CT scan showed the distal end of the catheter lodged in her spine and surgery was required to remove the catheter. Two partial laminectomies were performed to remove the portion of the catheter lodged in Appellee's spine. The surgery was unsuccessful and a portion of the catheter remained. Appellee sued Appellant and Robledo alleging they negligently failed to properly place and remove the epidural catheter.
The Texas Medical Liability Act requires an individual alleging a health care liability claim to timely present an expert report to the healthcare provider against whom the claim is asserted. TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(a). Appellee timely served an expert report together with an attached curriculum vitae from Dr. Cecil-Arredondo, a board-certified orthopedic surgeon, with experience performing laminectomies and epidural analgesia for pain management. Appellee later served a second report and curriculum vitae from Dr. Sabri Malek, a board-certified anesthesiologist, with substantial experience in labor epidural catheter placement. Both reports were substantively the same. In their respective reports, both physicians stated that not properly placing or removing the catheter was a breach of the standard of care, the improper placement or removal of the catheter caused Appellee to need laminectomy surgery, and she is at risk for future health complications as a result of the portion of catheter remaining in her spine. Both physicians stated without additional information, neither would be able to determine whether the catheter was placed or removed correctly.
In response, Appellant filed objections and motions to dismiss for each report claiming they were deficient for failing to establish the standard of care, how Appellant breached the standard of care, and how that breach led to Appellee's injuries. Following a hearing in which Appellant reurged her objections, the trial court issued an order granting Appellant's objections to Appellee's experts’ reports. Specifically, the trial court found Dr. Arredondo's report failed to: (1) establish his qualifications to opine on the standard of care applicable to a CRNA placing and removing an epidural catheter ; (2) adequately identify the standard of care for each defendant; and (3) differentiate between the two defendants regarding breach and causation. The trial court further found Dr. Malek's report failed to: (1) adequately identify the standard of care for each defendant; and (2) differentiate between the two defendants regarding breach and causation. Accordingly, the trial court granted Appellee thirty days to cure the deficiencies in her experts’ reports and file new or amended reports. Appellant now brings an interlocutory appeal of the trial court's order alleging the expert reports provided by Appellee were so deficient as to not qualify as expert reports, meaning Appellee failed to serve Appellant with an expert report and therefore the trial court erred by failing to dismiss Appellee's claims.
DISCUSSION
Appellant argues the trial court abused its discretion by failing to dismiss Appellee's lawsuit and award attorney's fees and court costs, because the reports provided by Drs. Arredondo and Malek were so substantially deficient as to not qualify as expert reports. Appellant asserts Drs. Arredondo and Malek's reports are substantially deficient in two ways. First, the reports do not contain opinions that there is a meritorious claim against Appellant. Second, the reports do not implicate Appellant's conduct.
Standard of Review and Applicable Law
We review the trial court's ruling on a motion to dismiss for an inadequate expert report under an abuse of discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001) ; Gonzalez v. Padilla , 485 S.W.3d 236, 242 (Tex.App.—El Paso 2016, no pet.). We defer to the factual determinations of the trial court and review the trial court's legal determinations de novo. In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009).
The Texas Medical Liability Act requires an individual alleging a health care liability claim to present one or more expert reports to the healthcare provider against whom the claim is asserted within 120 days of filing the original petition. TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(a). A valid expert report will provide a summary of the expert's opinions regarding: (1) the applicable standards of care; (2) the manner in which the care rendered by the health care provider failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Palacios , 46 S.W.3d at 877-78 ; TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(r)(6). The Texas Supreme Court has determined, at a minimum, an expert report must contain the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated. Loaisiga v. Cerda , 379 S.W.3d 248, 260 (Tex. 2012) (citing Scoresby v. Santillan , 346 S.W.3d 546, 557 (Tex. 2011) ). If a report does not meet this standard, then the trial court must dismiss the claim if the defendant has moved for dismissal. Loaisiga , 379 S.W.3d at 260 ; TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(b).
Analysis
As a preliminary matter, we must address whether Appellant has preserved her error for review. Appellant contends the trial court erred when it failed to dismiss Appellee's claim. Appellant argues the reports filed by Appellee are so substantially deficient they are not expert reports because the reports do not opine whether there is a meritorious claim against Appellant and do not implicate Appellant's conduct.
In the underlying proceedings, Appellant filed separate objections and motions to dismiss in response to Drs. Arredondo and Malek's reports. In each objection, Appellant argued the report failed to identify Appellant by name, failed to establish the standard of care, how Appellant breached the standard of care, and how that breach led to Appellee's injury. Each objection concluded with a motion to dismiss. During the dismissal hearing, Appellant's counsel reiterated the same objections, stating "I don't feel like it's being done in good faith because if I go through both reports .... They don't even address the standard of care at all. There's not a mention of what Ms. Thompson, certified nurse anesthetist, should have done." At no point during the underlying proceedings, either by motion or in the hearing did Appellant raise the issue of whether the reports fail to constitute expert reports.
"To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint and obtain an adverse ruling thereon." In re N.T. , 335 S.W.3d 660, 669 (Tex.App.—El Paso 2011, no pet.) (citing TEX.R.APP.P. 33.1(a) ). Further, a "complaint on appeal that does not comport with the party's objection at trial is not preserved for review." Martinez Jardon v. Pfister , 593 S.W.3d 810, 831 (Tex.App.—El Paso 2019, no pet.).
Our review of the record reveals Appellant fails to raise the issue of whether the reports provided by Drs. Arredondo and Malek were so substantially deficient as to not qualify as expert reports. Appellant did contend the reports were inadequate but did not apprise the trial court the proffered reports were legally equivalent to no report. Appellant's only objections were that the reports were deficient for failing to identify Appellant by name, state the standard of care, Appellant's breach of that standard, and the causal relationship between the breach and Appellee's harm. Appellant did not raise an objection that the expert reports failed to opine whether Appellee's case has merit or implicated Appellant's conduct. Appellant's argument that the trial court erred in failing to dismiss the case because the report did not implicate Appellant or directly opine on the merits is not preserved.
Given Appellant failed to raise the issue the expert reports did not constitute "expert reports" in the trial court, her sole issue on appeal does not comport with the objections she made in the trial court. As a result, the trial court was not aware of or afforded an opportunity to rule on Appellant's argument. Appellant has failed to preserve her issue for our review. TEX.R.APP.P. 33.1. Consequently, we hold Appellant has waived her sole issue on appeal.
CONCLUSION
We affirm the trial court's judgment.
DISSENT
JEFF ALLEY, Justice
I respectfully dissent. In my view the appeal should be dismissed for want of jurisdiction, hence my reluctance to simply concur in a judgment on the merits.
As required by section 74.351 of the Civil Practices and Remedies Code, Ms. Fong filed two documents described as compliant expert reports within 120 days of when CRNA Thompson filed her answer. TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(a). Thompson timely objected to the reports. At that point, the trial court could have found the reports compliant, which would have entitled Thompson to challenge that ruling through an interlocutory appeal. Id. § 51.014(a)(9) (allowance of appeal). Or, the trial court could have found the reports deficient and dismissed the suit. See id. § 74.351(l). If it did so, Fong would have a right to appeal. Id. § 51.014(10). But here, the trial court followed a third option and found the expert reports deficient but, allowed Fong a thirty-day cure period. See id. § 74.351(c) ; § 74.351(l) (court may not dismiss case if report represents an objective good faith effort to comply). While the legislature has granted us jurisdiction to hear an interlocutory appeal from a trial court's order denying all or a part of the relief in a motion to dismiss, that same provision expressly states "that an appeal may not be taken from an order granting an extension" to cure a defective expert report. Id. at 51.014(a)(9).
This statutory scheme generally precludes an appeal in a case such as this where the trial court finds a report deficient but grants a cure period. In Ogletree v. Matthews , the Texas Supreme Court held: "Thus, if a deficient report is served and the trial court grants a thirty-day extension, that decision—even if coupled with a denial of a motion to dismiss—is not subject to appellate review." 262 S.W.3d 316, 321 (Tex. 2007). The Ogletree court's majority opinion alluded to a binary choice between situations where a plaintiff failed to file any kind of report, and one where a deficient report was filed, but a cure period allowed. Justice Willett's concurrence suggested another prospect--a report so lacking in substance that it amounted to no report at all. Id. at 323 (Willett, concurring) ("In my view, there exists a third, albeit rare, category: a document so utterly lacking that, no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one. A document like this merits dismissal just like an absent report."). By way of example, he suggested a document like a medical or hospital record that the author "may never have intended it as [an expert medical report]." Id. at 323. And the court was presented with a concrete example of what Justice Willett envisioned the next year in Lewis v. Funderburk when a plaintiff offered as an expert report what was essentially a thank you letter from one physician to another that never accused anyone of malpractice. 253 S.W.3d 204, 206, 211 (Tex. 2008) (noting that fact but, resolving the case solely on whether the court of appeals had jurisdiction to hear interlocutory appeal from challenge to the curative report later filed); see also Haskell v. Seven Acres Jewish Senior Care Servs. , 363 S.W.3d 754, 760-61 (Tex.App.--Houston [1st Dist.] 2012, no pet.) (pro se plaintiff who offered as his section 74.351 expert reports a series of letters from health care providers only describing his medical condition, but making no allegation against health care defendants).
The Texas Supreme Court closed the loop on the issue of whether a report could be deemed effectively "no report" in Scoresby v. Santillan , 346 S.W.3d 546 (Tex. 2011). There, the court agreed that while "a document can be considered an expert report despite its deficiencies, the Act does not suggest that a document utterly devoid of substantive content will qualify as an expert report." Id. at 549. But to distinguish between what is effectively "no report" from a merely deficient report, the court posited this test: "we hold 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. The court describes this as a lenient test that serves two purposes: avoiding multiple interlocutory appeals and allowing plaintiffs a fair opportunity to show that their claim is not frivolous.
Here for instance, Thompson could have challenged the corrected report or reports after they were filed, and if that challenge was denied, she could have pursued an interlocutory appeal of that decision.
The report at issue in Scoresby was no doubt deficient. A neurologist alleged that two surgeons were negligent, yet said little more than they violated the standard of care (without stating what the standard required or how it was not met). Id. at 551. The neurologist's report did not attach a curriculum vitae as required by the statute. Id. It only marginally addressed causation with a conclusory statement that bleeding from the surgery at issue led to further hospitalization and paralysis. Id. Nonetheless, the court found the report "easily" met its new standard for what might qualify as a "report", albeit a deficient one. Id. at 557.
In her reply brief, Thompson directs us to the more recent case of Loaisiga v. Cerda , 379 S.W.3d 248 (Tex. 2012), but in that case the court only reaffirmed that Scoresby defines the correct test, and the Loaisiga court concluded the report before it met the Scoresby test such that the trial court could grant a thirty-day extension. Id. at 261-62.
Procedurally, the court of appeals in Scoresby had dismissed the interlocutory appeal from a trial court's order that allowed a thirty-day cure period to correct the deficiencies. The Texas Supreme Court affirmed that outcome, reiterating that when a report is filed, found deficient, but not so deficient that it could not be cured, the "defendant cannot seek review of this ruling or appeal the court's concomitant refusal to dismiss the claim before the thirty-day period has expired." Id. at 549 (footnotes omitted). In my view, that is what we deal with here.
For additional context, I set out the relevant portions of the two expert reports at issue. Dr. Cecil Rene Arredondo, under the "Medical Facts" section of his two-page report, states:
During her labor, Ms. Fong had an epidural catheter placed for labor analgesia to control pain. Postpartum, the catheter was unable to be removed. A lumbar CT scan on 10/23/17 revealed the distal end of the catheter curled at the L3 posterior epidural space.
On 10/23/17 the consulting neurosurgeon (Dr. Hanbali) noted the CT scan showed the catheter curled and was stuck under the lamina at L2 - L3. He also noted a history of several attempts at removal by the anesthetist and perhaps other providers.
Ms. Fong's back was operated on 10/25/17 for exploration and removal of the foreign body. Partial L2 and L3 laminectomies were performed but the catheter could not be completely removed.
Under a "Standard of Care Discussion, the report continues:
Without commenting on the obstetrical medicine, it is a breach of the standard of care to not properly place or remove an epidural catheter either before or after labor. In fact, I have seen many epidural placements, but I have never encountered the loss of the tip of the catheter such as was done here.
Without the benefit of additional information from the hospital chart to include a note from the person placing the catheter, it is difficult to ascertain whether the catheter was placed correctly or removed correctly. Be that as it may, it could have been placed too vigorously or at an angle or too deep causing the catheter to coil beneath the lamina. Either explanation is indicative of substandard catheter placement and technique.
The second report, authored by Dr. Sabri E. Malek, contains the same opinions, many repeated verbatim. The primary difference between the two reports is that Dr. Malek additionally criticizes Dr. Hanbali for the timing of the procedure to try to remove the catheter. In his "Findings and Medical Facts" section, Dr. Malek states:
During her labor, Ms. Fong had a continuous labor epidural catheter placed
for labor pain management. Postpartum, the anesthetist failed to remove the catheter and multiple attempts made by other providers failed as well including a spinal surgeon exposing the patient to a critically invasive attempt where the risk at my professional opinion outweigh the possible benefit. A lumbar CT scan on 10/23/17 revealed the distal end of the catheter curled at the L3 posterior epidural space, that is where the entry point was originally indicating an incorrect threading of the catheter, also the curling mentioned in the radiologist reports of scans indicate a faulty threading and inappropriate placement of the catheter tip which should be few spinal segments above the entry site.
On 10/23/17 the consulting neurosurgeon (Dr. Hanbali) noted the CT scan showed the catheter curled and was stuck under the lamina at L2-L3. He also noted, as I mentioned above in this report, a history of several attempts at removal by the anesthetist and perhaps other providers.
His "Analysis regarding Standard for Care" section tracks that of Dr. Arredondo:
I have no comment regarding the obstetric medicine, however; it is a breach of the standard of care to not properly place or remove an epidural catheter either before or after labor. In fact, I have performed and seen many epidural placements for labor pain and general and regional anesthesia for all types of procedures and surgeries as well as for placement for just labor pain in particular and general pain for a wide range of conditions, but I have ever encountered the loss of the tip of the catheter such as was done in the case of Mrs. Fong.
Without the benefit of additional information from the hospital chart to include a note from the person placing the catheter, it is difficult to ascertain whether the catheter was placed correctly or removed correctly. Be that as it may, it could have been place too vigorously or at an angle or too deep causing the catheter to coil beneath the lamina. Either explanation is indicative of substandard catheter placement and technique.
Thompson urges that these reports amount to no report because they do not implicate her, do not set out the standard of care, and do not allege how she breached it. I agree the reports are deficient in all those regards, but not so deficient that the gaps cannot be filled.
There is no doubt both letter reports were intended to be reports that accused the person who placed or attempted to remove the catheter of malpractice. They are not merely a medical record or chance correspondence used as a poor substitute for a compliant medical report. In the section headings, the authors attempted to address each of the core requirements of a compliant medical report. See TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(r)(6) (an "expert report" is statutorily defined to mean one that "provides a fair summary of the expert's opinions" regarding the standard of care, how the health care provider failed to meet that standard, and the causal relationship between that failure and the injury claimed.). Thompson focuses on the language in the analysis section that does not identify a specific breach of the standard of care and alludes to further investigation ("Without the benefit of additional information from the hospital chart to include a note from the person placing the catheter, it is difficult to ascertain whether the catheter was placed correctly or removed correctly"). I read that statement in light of the background fact sections that note that after the placement and removal efforts, the distal end of the catheter is "curled at the L3 posterior epidural space." According to Dr. Malek, this placement reflects an incorrect threading of the catheter, and that the tip should have been a "few spinal segments above the entry site." To be sure, the significance of these details deserves a better explanation, but they offer a firm opinion that a mistake was made. Moreover, the fact that two practitioners, with a combined 67 years in practice had not seen a tip placement in this position offers some indicia the claim potentially has merit.
The other major thread to Thompson's argument is that neither report indicates who was responsible for the breach of the standard of care. The issue as I understand is that one CRNA placed the catheter and perhaps the other was involved in the initial efforts to remove it. The medical chart is not a part of our record, but presumably both Thompson and Robledo appear in the chart as involved with one or both functions. Both expert reports indicate that from the existing medical record, the improper position of the catheter occurred either at its original placement, or at the time of the attempted removal, and additional records are required to flesh out that opinion. This situation is not appreciably different from the report in Scoresby which named two defendant doctors, but which did not attribute any specific act to either, as both were somehow involved in the allegedly botched surgery.
In sum, this report meets at least the minimal standard for what may be called a report under section 74.351 as described in Scoresby . And because the trial court determined it defective, but curable, we are without jurisdiction to hear this appeal. TEX.CIV.PRAC. & REM.CODE ANN. at § 51.014(a)(9). Hence, I cannot join the majority's merit disposition, even if it is limited to a waiver argument.