Opinion
01-21-00572-CV
09-08-2022
US ANESTHESIA PARTNERS AND PAUL SIMS, JR., M.D., Appellants v. BRIAN BLAKE ROBINSON, INDIVIDUALLY AND ON BEHALF OF THEESTATE OF AUNDI GRIFFIN ROBINSON, GRIFFIN ROBINSON,JUSTIN ROBINSON, AND DUSTIN ROBINSON, Appellees
On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2020-78191
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
MEMORANDUM OPINION
Julie Countiss Justice
In this interlocutory appeal, appellants, U.S. Anesthesia Partners and Paul Sims, Jr., M.D. (collectively, "appellants"), challenge the trial court's order denying their amended motion to dismiss the health care liability claims brought against them by appellees, Brian Blake Robinson, individually and on behalf of the Estate of Aundi Griffin Robinson, Griffin Robinson, Justin Robinson, and Dustin Robinson (collectively, "appellees"), in their suit for negligence, wrongful death, and survival. In three issues, appellants contend that the trial court erred in denying their amended motion to dismiss appellees' claims against them.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9).
See id. § 74.001(a)(13) (defining "[h]ealth care liability claim" (internal quotations omitted)).
See id. § 74.351 (governing expert reports).
We reverse and remand.
Background
In their petition, appellees allege that they are family members of Aundi Griffin Robinson ("Aundi"). Aundi was "a patient" of appellants and KPH-Consolidation, Inc., doing business as HCA Houston Healthcare Kingwood (the "hospital"), in October and November 2018. Aundi sustained unspecified "injuries . . . as a result of [the] medical treatment she received" while she was a patient. These unspecified injuries proximately caused her death.
Appellees bring health care liability claims against Dr. Sims, alleging that he was negligent. Appellees also allege that U.S. Anesthesia Partners is vicariously liable for the negligent "acts and omissions of [its unnamed] employees, physicians, nurses, staff, representatives[,] and agents." Appellees request damages.
Appellees also brought health care liability claims against the hospital, alleging that the hospital was negligent and also vicariously liable for the negligent "acts and omissions of [its unnamed] employees, physicians, nurses, staff, representatives[,] and agents." The hospital is not a party to this appeal.
To support their claims, appellees timely served appellants with an expert report authored by James Suliburk, M.D., F.A.C.S. In his expert report, Dr. Suliburk states that he is a board-certified surgeon by the American Board of Surgery and "a fellow of the American College of Surgeons." He is "a tenured associate professor and full-time faculty [member at] Baylor College of Medicine." And he is "an instructor in Advanced Trauma Life Support for the American College of Surgery." He has nineteen years of experience "managing and evaluating complex surgical patients." He was previously an "attending faculty surgeon in acute care and trauma surgery at Ben Taub Hospital." Dr. Suliburk has an "extensive background in the delivery of quality surgical care and management of complex surgical patients." He also has "expertise and additional training in [the] development and implementation of safe surgical care pathways . . . [and] guideline development for optimal clinical care." He has "work[ed] with the administrative leadership [of a] hospital to implement best practice[s] to care for [the] patients," which has involved "performing multidisciplinary quality improvement coordinating efforts by nurs[es], clinicians, respiratory therapists, dieticians, and administration." Dr. Suliburk states that he practices "general surgery" and has "knowledge about [the] treatment of patients with poorly healing diabetic foot wounds." And he sees, treats, and operates on patients with diabetic foot infections.
Dr. Suliburk attached his curriculum vitae ("CV") to his expert report.
As to Aundi, in his report, Dr. Suliburk states that Aundi "suffered from multiple comorbidities[,] including [e]nd [s]tage [r]enal [d]isease, [d]iabetes, [h]ypertension, [d]iabetic [n]europathy[,] and [a]nemia." Aundi was admitted to the hospital "for acute management of a diabetic foot infection" in September 2018 and October 2018. During her hospital stay, she underwent treatment "for a non-healing infected diabetic foot." "This required multiple interventions surgically in addition to intravenous antibiotic therapy and wound care." Aundi also "continued with her dialysis as part of her routine medical care for her [e]nd [s]tage [r]enal [d]isease and management of her significant medical co[morbidities]."
On October 15, 2018, Aundi "underwent a non-eventful adjustment of her external fixator on her foot using general anesthesia." Debridement was not performed, and Aundi was discharged from the hospital. Aundi was readmitted to the hospital on October 24, 2018, with a worsening infection in the same diabetic foot. On October 27, 2018, she "was dialyzed per routine" and "5.7[] [liters] of fluid" were removed from her body. During the evening of October 28, 2018, Aundi had surgery for the "ongoing infection in her foot." Because surgery did not occur until the evening, Aundi was "kept in a prolonged fasted state without nutrition and minimal fluid while awaiting surgery."
During the October 28, 2018 surgery, "an additional general anesthetic was planned" and "it was necessary to change from laryngeal mask airway . . . to endo-tracheal tube intubation." According to Dr. Suliburk, the "need for airway exchanges indicate[d] that there was a transient period where [Aundi's] airway was not securely controlled for optimal oxygenation and ventilation." Also, during surgery, "there was a significant variation in [Aundi's] blood pressure as a result of [the] general anesthetic administration."
After the October 28, 2018 surgery, Aundi was transferred "by the perioperative team[,] including clinicians and nurses," to the post-anesthesia care unit ("PACU"), "where her mental status was poorly responsive." "Her gas exchange[] and respiratory physiology w[ere] checked via arterial blood gas assessment[,] and she was discharged from the PACU by the anesthesia and nursing teams." Aundi was "obtund[e]nt upon arriving to the ward and within [thirty] minutes of arriving a critical code event was called due to [her] continuing to be non-responsive." Aundi was intubated and transferred to the intensive care unit ("ICU"). "Her mental status never recovered, and she was transferred to a long-term acute care hospital" on November 13, 2018 "with [a] tracheostomy for airway protection and [a] gastrostomy tube for enteral nutrition." Aundi "eventually died."
As to the standard of care and breach of the standard of care, Dr. Suliburk generally states, in his report, without reference to any particular defendant, that the standard of care for a patient with multiple medical comorbidities, including end stage renal disease, "who must undergo serial procedures on an extremity[,] is a regional block anesthetic." "[T]he entire care team[,] including surgeons, anesthesia, and nurs[es,] must be aware of [the] standard practice for these patients." "This technique eliminates the significant variation in blood pressure and oxygenation associated with [the] induction and administration of general anesthesia" and "provides improved levels of compassionate post-operative pain control while minimizing the need for dangerous narcotic medication." The "[r]epeated plans by the treatment team for general anesthesia administration to [Aundi] continued to expose unnecessary risk to [an] already high-risk patient." "It [was] below [the] standard of care to not have available regional anesthesia for a high-risk patient needing a relatively minor surgical procedure on [an] extremity."
Dr. Suliburk further explains that, during the October 28, 2018 surgery, Aundi "likely suffered a hypoxic insult to the brain triggered by a combination of low oxygen tension in the blood (as a result of a non-secure airway) along with inadequate blood pressure (as a result of anesthetic medications) to maintain optimal cerebral perfusion." If Aundi had "a local-regional block of the extremity neither her oxygenation nor blood pressure would have been affected and her brain function would be intact." "[T]he care team as well as the hospital did not maintain [the] standard of care in allowing [Aundi] to have ongoing serial high-risk general anesthetics." In Dr. Suliburk's opinion, there was a "substandard anesthetic plan, substandard execution of the anesthetic plan[,] and poor evaluation of [the] overall care plan for [Aundi's] acute diabetic foot infection [that] resulted in irreversible hypoxic encephalopathy." And if "a loco-regional block had been performed[,] [Aundi] would not have sustained cerebral damage and would be alive today." The aforementioned breaches of the standard of care "were a direct and proximate cause of the damage, injuries[,] and ultimate death of" Aundi.
Appellants objected to Dr. Suliburk's expert report and moved to dismiss appellees' health care liability claims against them. Appellants asserted that Dr. Suliburk's expert report was inadequate as to the standard of care and breach of the standard of care as to appellants. According to appellants, when there is more than one defendant in a health care liability action, "the expert report must set forth the standard of care for each defendant" and "provide an explanation of how each defendant specifically breached the standard and how that breach caused or contributed to the cause of injury." Dr. Suliburk, in his expert report, "fail[ed] to set forth an applicable standard of care as to [appellants]" and did not identify "what [appellants] should have done differently." The expert report "fail[ed] to delineate which of . . . [appellants'] actions or inactions constituted a breach of their duties of care" to Aundi. Dr. Suliburk, in his report, also "fail[ed] to establish a causal nexus between the alleged breach [of the standard of care by appellants] and [appellees'] claimed damages." The expert report "d[id] not explain how any breach of the standard of care by [appellants], specifically and individually[,] caused the alleged injuries or death made the basis of th[e] litigation." And Dr. Suliburk did not "explain[] what specific actions or inactions [by appellants] caused or contributed to [Aundi's] death." In fact, "the entirety of [Dr.] Suliburk's [expert] report . . . never even references" appellants. (Emphasis omitted.) Appellants also asserted that Dr. Suliburk is not qualified to offer an expert opinion on the standard of care and breach of the standard of care as to appellants. In sum, appellees "failed to produce . . . a good-faith expert report criticizing any care given by [appellants]," and Dr. Suliburk's expert report constituted "no expert report at all."
Appellees responded to appellants' objections and motion to dismiss, asserting that Dr. Suliburk was "[q]ualified to [o]pine on the [m]atters [c]ontained [w]ithin [h]is [expert] report" and the expert report "[p]roperly [s]et[] [f]orth the [r]equisite [s]tandard of [c]are and [h]ow [appellants'] [b]reach [t]hereof [p]roximately [c]aused [i]njury" to Aundi. Appellees requested that the trial court overrule appellants' objections to Dr. Suliburk's expert report and deny appellants' motion to dismiss. In the alternative, if the trial court determined that Dr. Suliburk's expert report was inadequate, then appellees requested a thirty-day extension to "cure the deficienc[ies]."
See id. § 74.351(c).
After a hearing on appellants' objections and motion to dismiss, the trial court denied appellants' motion to dismiss and signed an order on July 21, 2021 (the "July 2021 order"), stating:
Having considered [appellants'] [o]bjections to [appellees'] [c]hapter 74 [e]xpert [r]eport of [Dr.] Suliburk[] . . ., [appellants'] [m]otion[] to [d]ismiss[,] and [appellees'] [r]esponse in [o]pposition to [appellants'] [o]bjections . . . the [c]ourt is of the opinion that the [m]otion to [d]ismiss should be denied in its entirety and grant a [thirty]-day extension in order to cure any deficiencies in [Dr. Suliburk's] [e]xpert [r]eport . . . . It is therefore,
ORDERED that [appellants'] [m]otion to [d]ismiss is DENIED.
Following the July 21, 2021 order, appellees did not serve appellants with an amended, supplemental, or new expert report. And after thirty days had passed, appellants filed an amended motion to dismiss, asserting that Dr. Suliburk's expert report was inadequate on the standard of care, breach of the standard of care, and causation as to appellants and Dr. Suliburk is not qualified to offer an expert opinion on the standard of care and breach of the standard of care as to appellants.
After appellees responded to appellants' amended motion to dismiss, on September 29, 2021, the trial court signed an order denying appellants' amended motion to dismiss the health care liability claims against them (the "first September 29, 2021 order"). The trial court, on September 29, 2021, also signed another order (the "second September 29, 2021 order"), stating:
On July 21, 2021, this Court erred when it granted [appellees] a 30[-]day continuance to file an amended report. The Court did intend to deny all Chapter 74 motions filed by [appellants and others]. This [o]rder, though, redundant, DENIES all Chapter 74 motions filed by [appellants and others] to date.
On October 19, 2021, appellants filed their notice of appeal.
Jurisdiction
As an initial matter, appellees argue that this Court lacks jurisdiction over appellants' appeal of the trial court's order denying their amended motion to dismiss the health care liability claims against them because appellants did not file their notice of appeal within twenty days of the trial court's July 21, 2021 order.
"[C]ourts always have jurisdiction to determine their own jurisdiction," and "[a]ppellate jurisdiction is never presumed." Heckman v. Williamson Cty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted); Florance v. State, 352 S.W.3d 867, 871 (Tex. App.-Dallas 2011, no pet.); see also Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (jurisdiction fundamental in nature and cannot be ignored). Whether we have jurisdiction is a question of law, which we review de novo. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). If this is an appeal over which we have no jurisdiction, it must be dismissed. See Alaniz v. O'Quinn Law Firm, No. 01-14-00027-CV, 2015 WL 6755614, at *3 (Tex. App.-Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.); Ragsdale, 273 S.W.3d at 763.
Any party "seek[ing] to alter the trial court's judgment or other appealable order" must timely file a notice of appeal. Tex.R.App.P. 25.1(c). Generally, if a party fails to timely file a notice of appeal, we have no jurisdiction to address the merits of the party's appeal. See Tex. R. App. P. 25.1(b); In re K. L. L., 506 S.W.3d 558, 560 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (without timely notice of appeal, appellate court lacks jurisdiction over appeal); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545-46 (Tex. App.-Dallas 2009, no pet.) (timely filing of notice of appeal is jurisdictional prerequisite).
In an accelerated appeal, a notice of appeal must be filed within twenty days after the judgment or order is signed. See Tex. R. App. P. 26.1(b), 28.1; see also Tex. R. App. P. 26.3; In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) ("[I]n an accelerated appeal, absent a rule 26.3 motion, the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law will not extend the deadline."); Spencer v. Pagliarulo, 448 S.W.3d 605, 606-07 (Tex. App.-Houston [1st Dist.] 2014, no pet.).
Texas Civil Practice and Remedies Code section 51.014(a)(9) authorizes an accelerated interlocutory appeal from a trial court's order denying a motion to dismiss a health care liability claim filed under Texas Civil Practice and Remedies Code section 74.351(b). See id. § 51.014(a)(9) (permitting interlocutory appeal of order denying all or in part "relief sought by a motion under [s]ection 74.351(b), except that an appeal may not be taken from an order granting an extension under [s]ection 74.351"); Tex.R.App.P. 28.1 (stating appeals from interlocutory orders, when allowed by statute, are accelerated); Sims v. Kemmerling, No. 09-12-00338-CV, 2013 WL 1189091, at *1 (Tex. App.-Beaumont Mar. 21, 2013, no pet.) (mem. op.).
Appellants filed their notice of appeal on October 19, 2021. Appellees assert that appellants were required to file a notice of appeal within twenty days of the trial court's July 21, 2021 order, which denied appellants' motion to dismiss. But, the trial court, in its July 21, 2021 order, also stated that it "grant[ed] [appellees] a [thirty]-day extension in order to cure any deficiencies in [Dr. Suliburk's] expert report."
Generally, appellate courts have jurisdiction to hear immediate appeals of interlocutory orders only when a statute explicitly provides for such jurisdiction. Koseoglu, 233 S.W.3d at 840; Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Kim v. Ramos, 632 S.W.3d 258, 264 (Tex. App.-Houston [1st Dist.] 2021, no pet.). And we have only been given limited jurisdiction to review certain interlocutory orders arising in the context of health care liability claims. Kim, 632 S.W.3d at 265.
In a suit involving a health care liability claim, an interlocutory appeal may be taken from a trial court's order "den[ying] all or part of the relief sought by a motion [to dismiss] under [Texas Civil Practice and Remedies Code] [s]ection 74.351(b), except that an appeal may not be taken from an order granting an extension under [s]ection 74.351." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9); see also id. § 74.351(b), (c); Kim, 632 S.W.3d at 264. In other words, no immediate interlocutory appeal may be taken from a trial court's order denying a motion to dismiss if the trial court also grants an extension. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9); Scoresby v. Santillan, 346 S.W.3d 546, 555 (Tex. 2011) (there is no immediate interlocutory appeal from order denying motion to dismiss that also states that it grants thirty-day extension to cure deficiencies); Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007) ("[T]he actions denying the motion to dismiss and granting an extension are inseparable. . . . The statute plainly prohibits interlocutory appeals of orders granting extensions . . . ."); Kim, 632 S.W.3d at 264; Bogar v. Esparza, 257 S.W.3d 354, 361 (Tex. App.-Austin 2008, no pet.) (appellate court cannot reach merits of motion to dismiss when trial court also grants extension); see also Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 185-86 (Tex. App.-Austin 2005, no pet.) ("Because [Texas Civil Practice and Remedies Code] section 51.014's authorizing of interlocutory appeals is a narrow exception to the general rule that only final judgments and orders are appealable, we must strictly construe it.").
The trial court's July 21, 2021 order not only denied appellants' motion to dismiss but stated that it granted appellees a thirty-day extension. See Kim, 632 S.W.3d at 269 ("We interpret court orders[] . . . according to the plain meaning of their terms."). Appellees do not direct this Court to any statutory authority that would have permitted appellants to appeal from the trial court's July 21, 2021 order at the time it was signed. See Bally Total Fitness, 53 S.W.3d at 352; Merritt v. Methodist Hosp., No. 14-19-00340-CV, 2019 WL 3943248, at *1 (Tex. App.- Houston [14th Dist.] Aug. 20, 2019, no pet.) (mem. op.) ("Unless a statutory exception applies, the [interlocutory] order may not be appealed."). Thus, because the trial court's July 21, 2021 order stated that it granted appellees a thirty-day extension, it was not an appealable interlocutory order and appellants were not required to file their notice of appeal within twenty days of that order.
We note that after the trial court signed its July 21, 2021 order and thirty days had passed, appellants filed an amended motion to dismiss appellees' health care liability claims against them. On September 29, 2021, the trial court signed the first September 29, 2021 order, which denied appellants' amended motion to dismiss. The trial court also signed the second September 29, 2021 order, stating:
On July 21, 2021, this Court erred when it granted [appellees] a 30[-]day continuance to file an amended report. The Court did intend to deny all Chapter 74 motions filed by [appellants and others]. This [o]rder, though, redundant, DENIES all Chapter 74 motions filed by [appellants and others] to date.
Appellees attempt to rely on the second September 29, 2021 order to assert that the trial court, in its July 21, 2021 order, mistakenly included the "[thirty]-day extension" language, and because the trial court clarified its "mistake" two months later, appellants were somehow obligated to realize the mistake in July 2021 and file a notice of appeal within twenty days of the July 21, 2021 order. This argument is without merit.
Court orders must be interpreted "according to the plain meaning of their terms." Kim, 632 S.W.3d at 269. The trial court, in its July 21, 2021, denied appellants' motion to dismiss but also stated that it "grant[ed] [appellees] a [thirty]-day extension." The fact that the trial court later, in a subsequent order, stated that it "erred when it granted [appellees] a 30[-]day continuance to file an amended report" cannot be used to make the July 21, 2021 order into an appealable interlocutory order.
On September 29, 2021, the trial court denied appellants' amended motion to dismiss the health care liability claims brought against them. Appellants timely filed their notice of appeal within twenty days of that date, on October 19, 2021. We hold that we have jurisdiction to review the trial court's order denying appellants' amended motion to dismiss.
Sufficiency of Expert Report
In their first issue, appellants argue that the trial court erred in denying their amended motion to dismiss appellees' health care liability claims against them because Dr. Suliburk's expert report "[f]ails to [s]ufficiently [a]ddress the [a]pplicable [s]tandard of [c]are and [a]lleged [b]reaches of [the] [s]tandard of [c]are as to [a]ppellants" and "[f]ails to [s]ufficiently [a]ddress [c]ausation" as to appellants. (Emphasis omitted.) In their second issue, appellants argue that the trial court erred in denying their amended motion to dismiss appellees' health care liability claims against them because Dr. Suliburk is not qualified to offer an expert opinion on the standard of care and breach of the standard of care as to appellants.
We review a trial court's decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.). We apply the same standard to a trial court's determination that an expert is qualified. See Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996); San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). When reviewing matters committed to a trial court's discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Harris Cty. Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.-Houston [1st Dist.] 2007, no pet.). But a trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In conducting our review, we always consider that the Legislature's goal in requiring expert reports is to deter baseless claims, not block earnest ones. Jackson v. Kindred Hosps. Ltd. P'ship, 565 S.W.3d 75, 81 (Tex. App.-Fort Worth 2018, pet. denied); Gonzalez v. Padilla, 485 S.W.3d 236, 242 (Tex. App.-El Paso 2016, no pet.); see also Scoresby, 346 S.W.3d at 554.
Under the Texas Medical Liability Act ("TMLA"), a plaintiff asserting a health care liability claim must timely serve each defendant physician and health care provider with at least one expert report, with a CV for the expert whose opinion is offered, to substantiate the merits of the plaintiff's claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (i); see also Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.-Houston [1st Dist.] 2015, no pet.). The purpose of the expert report requirement is to weed out unmeritorious claims, not to dispose of potentially meritorious claims. See E.D. by & through B.O. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022); Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018).
See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A) (defining "[h]ealth care provider" (internal quotations omitted)).
An expert report must provide a "fair summary" of the expert's opinions on (1) the applicable standard of care, (2) the manner in which the care rendered by the defendant physician or health care provider failed to meet the standard of care, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). A "fair summary" of the expert's opinions means that, at the least, the report must state more than the expert's mere conclusions on the standard of care, breach, and causation; it must instead explain the basis of the expert's opinion so as to link the conclusions to the facts of the case. See Jelinek, 328 S.W.3d at 539; Wright, 79 S.W.3d at 52.
If the plaintiff fails to timely serve an expert report, then, on the motion of a defendant physician or health care provider, the trial court must dismiss the pertinent health care liability claim with prejudice and award attorney's fees. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b); Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018). But if the plaintiff timely serves an expert report and a defendant physician or health care provider files a motion challenging the adequacy of that report, then the trial court may only grant the motion "if it appears to the court, after [a] hearing, that the report does not represent an objective good faith effort to comply with the [TMLA's] definition of an expert report." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1); Baty, 543 S.W.3d at 692-93; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) ("[e]xpert report" means "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding [the] 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" (internal quotations omitted)).
An expert report qualifies as an "objective good faith effort" to avoid dismissal if it discusses each element with sufficient specificity so that it (1) informs the defendant physician or health care provider of the specific conduct that the plaintiff questions or about which the plaintiff complains and (2) provides a basis for the trial court to conclude that the plaintiff's health care liability claim has merit. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017); see also Baty, 543 S.W.3d at 693-94. The expert report need not use any particular words, and it may be informal, "but bare conclusions will not suffice." Scoresby, 346 S.W.3d at 555-56. An expert report meets the minimum requirements for an expert report under the TMLA "if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant[] [physician's or health care provider's] conduct is implicated." Id. at 557.
In determining whether an expert report constitutes an "objective good faith effort" to address each element, "a trial court may not draw inferences; instead, it must exclusively rely upon the information contained within the four corners of the report." Puppala v. Perry, 564 S.W.3d 190, 197 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (internal quotations omitted). And when the issue of adequacy hinges on an expert's qualifications, the trial court may also consider the "four corners" of the expert's CV. Id.; Mangin, 480 S.W.3d at 706. Courts must view the report in its entirety, rather than isolating specific portions or sections, to determine whether it is sufficient. See Baty, 543 S.W.3d at 694; see, e.g., Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015); see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282 (Tex. App.-Austin 2007, no pet.) ("The form of the report and the location of the information in the report are not dispositive."). In reviewing the adequacy of an expert report, a trial court may not consider an expert's credibility, the data relied on by the expert, or the documents that the expert failed to consider at the pre-discovery stage of the litigation. See Mettauer v. Noble, 326 S.W.3d 685, 691-92 (Tex. App.-Houston [1st Dist.] 2010, no pet.); Gonzalez, 485 S.W.3d at 245.
Notably, if there are multiple defendants in a health care liability action, the expert report must be sufficient as to each defendant individually. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Haskell v. Seven Acres Jewish Sr. Care Servs., Inc., 363 S.W.3d 754, 759 (Tex. App.-Houston [1st Dist.] 2012, no pet.); see also Rivenes v. Holden, 257 S.W.3d 332, 336 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (holding if plaintiff does not serve report as to particular defendant, trial court must dismiss that defendant from suit). In certain situations, an expert report can be so deficient as to be considered no report at all. See Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012); see also Scoresby, 346 S.W.3d at 557 (at minimum, expert report must contain opinion of individual with expertise that claim has merit and implicate defendant's conduct).
A. Standard of Care and Breach as to Dr. Sims
In a portion of their first issue, appellants argue that Dr. Suliburk's expert report does not adequately address the standard of care and breach of the standard of care as to Dr. Sims because the expert report "never mentions Dr. Sims by name," does not state "how [Dr. Sims was] involved in [Aundi's] care," "fails to set out the applicable standard of care for Dr. Sims," fails to make Dr. Sims "aware of the specific conduct th[at] [appellees] have called into question," and "fails to provide an explanation of how [Dr. Sims] specifically breached the standard of care and how the breach[] caused or contributed to the cause of the injury."
As stated above, an expert report must provide a "fair summary" of the expert's opinions regarding the applicable standard of care and the manner in which the care rendered by the defendant physician failed to meet that standard. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *13 (Tex. App.-Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); see also Potts, 392 S.W.3d at 630. Identifying the standard of care in a health care liability claim is critical. Palacios, 46 S.W.3d at 880. To adequately identify the standard of care, an expert report must set forth "specific information about what the defendant should have done differently." Abshire, 563 S.W.3d at 226 (internal quotations omitted). Thus, related to standard of care and breach, the expert report must explain what the defendant physician should have done under the circumstances and what the physician did instead. Palacios, 46 S.W.3d at 880; Whitmire, 2020 WL 4983321, at *13; see also Kline v. Leonard, No. 01-19-00323-CV, 2019 WL 6904720, at *7 (Tex. App.-Houston [1st Dist.] Dec. 19, 2019, pet. denied) (mem. op.) ("[A]n expert report must provide a fair summary of the expert's opinion regarding the applicable standard of care and the manner in which the care rendered by the health care provider failed to meet the standard." (internal quotations omitted)). It is not sufficient for the expert to simply state that he knows the standard of care and conclude that it was or was not met. Palacios, 46 S.W.3d at 880; Whitmire, 2020 WL 4983321, at *13. When a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and the manner in which each defendant breached the standard of care. Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.-El Paso 2011, no pet.).
In his expert report, Dr. Suliburk states that Aundi "suffered from multiple comorbidities[,] including [e]nd [s]tage [r]enal [d]isease, [d]iabetes, [h]ypertension, [d]iabetic [n]europathy[,] and [a]nemia." Aundi was admitted to the hospital "for acute management of a diabetic foot infection" in September 2018 and October 2018. During her hospital stay, she underwent treatment "for a non-healing infected diabetic foot." "This required multiple interventions surgically in addition to intravenous antibiotic therapy and wound care." Aundi also "continued with her dialysis as part of her routine medical care for her [e]nd [s]tage [r]enal [d]isease and management of her significant medical co[morbidities]."
On October 15, 2018, Aundi "underwent a non-eventful adjustment of her external fixator on her foot using general anesthesia." Debridement was not performed, and Aundi was discharged from the hospital. Aundi was readmitted to the hospital on October 24, 2018, with a worsening infection in the same diabetic foot. On October 27, 2018, she "was dialyzed per routine" and "5.7[] [liters] of fluid" were removed from her body. During the evening of October 28, 2018, Aundi had surgery for the "ongoing infection in her foot." Because surgery did not occur until the evening, Aundi was "kept in a prolonged fasted state without nutrition and minimal fluid while awaiting surgery."
During the October 28, 2018 surgery, "an additional general anesthetic was planned" and "it was necessary to change from laryngeal mask airway . . . to endo-tracheal tube intubation." According to Dr. Suliburk, the "need for airway exchanges indicate[d] that there was a transient period where [Aundi's] airway was not securely controlled for optimal oxygenation and ventilation." Also, during surgery, "there was a significant variation in [Aundi's] blood pressure as a result of [the] general anesthetic administration."
After the October 28, 2018 surgery, Aundi was transferred "by the perioperative team[,] including clinicians and nurses[,]" to PACU, "where her mental status was poorly responsive." "Her gas exchange[] and respiratory physiology w[ere] checked via arterial blood gas assessment[,] and she was discharged from the PACU by the anesthesia and nursing teams." Aundi was "obtund[e]nt upon arriving to the ward and within [thirty] minutes of arriving a critical code event was called due to [her] continuing to be non-responsive." Aundi was intubated and transferred to the ICU. "Her mental status never recovered, and she was transferred to a long-term acute care hospital" on November 13, 2018 "with [a] tracheostomy for airway protection and [a] gastrostomy tube for enteral nutrition." Aundi "eventually died."
As to the standard of care, Dr Suliburk, in this expert report, states that the standard of care for a patient, like Aundi, with multiple medical comorbidities, including end stage renal disease, "who must undergo serial procedures on an extremity[,] is a regional block anesthetic." "[T]he entire care team[,] including surgeons, anesthesia, and nurs[es,] must be aware of [the] standard practice for these patients." "This technique eliminates the significant variation in blood pressure and oxygenation associated with [the] induction and administration of general anesthesia" and "provides improved levels of compassionate post-operative pain control while minimizing the need for dangerous narcotic medication." The standard of care required "a loco-regional block" to be performed, rather than "high-risk general anesthetics."
As to breach of the standard of care, Dr. Suliburk, in his expert report, states that "[i]t [was] below [the] standard of care to not have available regional anesthesia for a high-risk patient needing a relatively minor surgical procedure on [an] extremity." And the "[r]epeated plans by the treatment team for general anesthesia administration to [Aundi] continued to expose unnecessary risk to [an] already high-risk patient." According to Dr. Suliburk, during the October 28, 2018 surgery, Aundi "likely suffered a hypoxic insult to the brain triggered by a combination of low oxygen tension in the blood (as a result of a non-secure airway) along with inadequate blood pressure (as a result of anesthetic medications) to maintain optimal cerebral perfusion." If Aundi had "a local-regional block of the extremity [during the October 28, 2018 surgery] neither her oxygenation nor blood pressure would have been affected and her brain function would be intact." "[T]he care team . . . did not maintain [the] standard of care in allowing [Aundi] to have ongoing serial high-risk general anesthetics." In Dr. Suliburk's opinion, there was a "substandard anesthetic plan, substandard execution of the anesthetic plan[,] and poor evaluation of [the] overall care plan for [Aundi's] acute diabetic foot infection [that] resulted in irreversible hypoxic encephalopathy."
To be sufficient as to the standard of care and breach, an expert report must explain what the defendant physician should have done under the circumstances and what the physician did instead. Palacios, 46 S.W.3d at 880; Whitmire, 2020 WL 4983321, at *13; see also Kline, 2019 WL 6904720, at *7 ("[A]n expert report must provide a fair summary of the expert's opinion regarding the applicable standard of care and the manner in which the care rendered by the health care provider failed to meet the standard." (internal quotations omitted)). Dr. Suliburk does not reference Dr. Sims in his expert report nor discuss Dr. Sims's role, if any, in the treatment and care of Aundi during the October 28, 2018 surgery or while she was hospitalized in 2018. Although Dr. Suliburk discusses a general standard of care and alleged breaches of that general standard of care, he does not state that the standard of care applied to Dr. Sims and he does not identify any actions or conduct by Dr. Sims that constituted a breach of the standard of care. In short, Dr. Suliburk's expert report does not state what Dr. Sims should have done under the circumstances and what he did instead. See Palacios, 46 S.W.3d at 880; Whitmire, 2020 WL 4983321, at *13; see also Kline, 2019 WL 6904720, at *7; cf. Walker v. Onugha, No. 05-19-00801-CV, 2020 WL 3248478, at *3 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.) ("[N]owhere in the [expert] report did [expert] state what the applicable standard of care was or how [defendant physician's] conduct fell below that standard.").
Although an expert report will typically identify a defendant by name, we note that Texas Civil Practice and Remedies Code section 74.351 "does not specifically require the defendant physician to be identified by name." See Mangin v. Wendt, 480 S.W.3d 701, 711-12 (Tex. App.-Houston [1st Dist.] 2015, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
The Court cannot fill in missing gaps in an expert report, draw inferences, or guess what an expert likely meant in his expert report. Tenet Hosps., Ltd. v. Garcia, 462 S.W.3d 299, 310 (Tex. App.-El Paso 2015, no pet.); see also Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex. App.-Fort Worth 2009, no pet.) ("When reviewing the adequacy of a report, the only information relevant to our inquiry is the information contained within the four corners of the document. This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended." (internal citations and footnote omitted)). And because appellees sued more than one defendant, Dr. Suliburk's expert report was required to set forth the standard of care applicable to each defendant and the manner in which each defendant breached the standard of care. De La Riva, 351 S.W.3d at 404. We hold that Dr. Suliburk's expert report does not adequately inform Dr. Sims of the applicable standard of care and the manner in which Dr. Sims failed to meet that standard.
We sustain this portion of appellants' first issue.
B. Causation as to Dr. Sims
In another portion of their first issue, appellants argue that Dr. Suliburk's expert report does not adequately address causation as to Dr. Sims because the expert report must "provide an explanation of how each defendant specifically breached the standard of care and how that breach[] caused or contributed to the cause of injury" and the expert report "fail[ed] to specify how [Dr. Sims's] actions caused or contributed to [Aundi's] injuries." Appellants assert that Dr. Suliburk's "causation opinions are conclusory" and Dr. Suliburk "fail[ed] to explain the causal nexus between the . . . breaches of [the standard of care by] Dr. Sims" and Aundi's injuries.
An expert report must provide a "fair summary" of the expert's opinion regarding the causal relationship between the failure of a defendant physician to provide care in accord with the applicable standard of care and the claimed injury, harm, or damages. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Potts, 392 S.W.3d at 630. For causation, the expert report must explain how and why the defendant physician's breach proximately caused the injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459-60 (Tex. 2017). An expert report need not marshal all the plaintiff's proof necessary to establish causation at trial, and it need not anticipate or rebut all possible defensive theories that may ultimately be presented to the trial court. Wright, 79 S.W.3d at 52; Cornejo v. Hilgers, 446 S.W.3d 113, 123 (Tex. App.-Houston [1st Dist.] 2014, pet. denied). But an expert cannot simply opine that the breach caused the injury. Jelinek, 328 S.W.3d at 539. When a plaintiff brings suit against more than one defendant, the expert repot must explain the causal relationship between each defendant's individual acts and the injury. De La Riva, 351 S.W.3d at 404.
Causation consists of two components: (1) cause-in-fact and (2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A physician's breach was a cause-in-fact of the injury if the breach was a substantial factor in bringing about the harm, and absent the breach the harm would not have occurred. Id. Even if the harm would not have occurred absent the defendant physician's breach, "the connection between the defendant and the . . . injuries simply may be too attenuated" for the breach to qualify as a substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (internal quotations omitted). A breach is not a substantial factor if it "does no more than furnish the condition that makes the . . . injury possible." Id. A defendant physician's breach is a foreseeable cause of the injury if a physician of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. Puppala, 564 S.W.3d at 197.
As to causation, Dr. Suliburk, in his expert report, states that during the October 28, 2018 surgery, Aundi "likely suffered a hypoxic insult to the brain triggered by a combination of low oxygen tension in the blood (as a result of a non-secure airway) along with inadequate blood pressure (as a result of anesthetic medications) to maintain optimal cerebral perfusion." If Aundi had "a local-regional block of the extremity [during the October 28, 2018 surgery] neither her oxygenation nor blood pressure would have been affected and her brain function would be intact." "[T]he care team . . . did not maintain [the] standard of care in allowing [Aundi] to have ongoing serial high-risk general anesthetics." In Dr. Suliburk's opinion, there was a "substandard anesthetic plan, substandard execution of the anesthetic plan[,] and poor evaluation of [the] overall care plan for [Aundi's] acute diabetic foot infection [that] resulted in irreversible hypoxic encephalopathy." And if "a loco-regional block had been performed[,] [Aundi] would not have sustained cerebral damage and would be alive today." The alleged breaches of the standard of care "were a direct and proximate cause of the damage, injuries[,] and ultimate death of" Aundi.
An expert simply opining that a breach of the standard of care caused the injury is not sufficient. See Jelinek, 328 S.W.3d at 539; see also Abshire, 563 S.W.3d at 224 ("A conclusory statement of causation is inadequate . . . ."). And an expert's conclusion that "in medical probability" one event caused another is nothing more than an expert's simple ipse dixit, which is insufficient to establish causation. Jelinek, 328 S.W.3d at 539-40 (internal quotations omitted); see also City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). To be sufficient as to causation, an expert report must explain how and why the defendant physician's breach proximately caused the injury. Zamarripa, 526 S.W.3d at 459-60.
As noted above, Dr. Suliburk does not reference Dr. Sims in his expert report nor discuss Dr. Sims's role, if any, in the treatment and care of Aundi during the October 28, 2018 surgery or while she was hospitalized in 2018. Dr. Suliburk does not identify the standard of care applicable to Dr. Sims or any actions or conduct by Dr. Sims that constituted a breach of the non-identified standard of care. Because Dr. Suliburk does not identify Dr. Sims's breaches in his expert report, it naturally follows that Dr. Suliburk's expert report does not explain how and why Dr. Sims's non-identified breaches proximately caused Aundi's injuries. See Abshire, 563 S.W.3d at 224; Wright, 79 S.W.3d at 53-54 (report inadequate where expert does not explain how health care provider's negligent conduct caused injury); see also CHCA Clear Lake, L.P. v. Stewart, No. 01-19-00874-CV, 2021 WL 3412461, at *12 (Tex. App.-Houston [1st Dist.] Aug. 5, 2021, no pet.) (mem. op.) (concluding expert report did not adequately inform defendant physicians "of the causal relationship between their purported failures to provide care in accord with the applicable standards of care and the claimed injury, harm, or damages" because expert report "d[id] not explain how the named-defendant physicians' purported breaches caused [plaintiff's] skiing-related injuries"); THN Physicians Ass'n v. Tiscareno, 495 S.W.3d 599, 614 (Tex. App.-El Paso 2016, no pet.) ("[T]he expert must at a minimum explain the connection between [physician's] conduct and the injury . . . .").
Significantly, an expert report must set forth facts showing causation and causation may not be inferred by the Court. See El Paso Specialty Hosp. Ltd. v. Gurrola, 510 S.W.3d 655, 659 (Tex. App.-El Paso 2016, no pet.); Quintero v. Houston Methodist Hosp., No. 01-14-00448-CV, 2015 WL 831955, at *3 (Tex. App.-Houston [1st Dist.] Feb. 26, 2015, pet. denied) (mem. op.). Because appellees brought suit against more than one defendant, Dr. Suliburk's expert report was required to explain the causal relationship between each defendant's individual acts and Aundi's injury. De La Riva, 351 S.W.3d at 404. We hold that Dr. Suliburk's expert report did not adequately inform Dr. Sims of the causal relationship between his unspecified failures to provide care in accord with the non-identified standard of care and the claimed injury, harm, or damages.
We sustain this portion of appellants' first issue.
C. Qualifications as to Dr. Sims
In a portion of their second issue, appellants argue that Dr. Suliburk is not qualified to offer an expert opinion on the standard of care and breach of the standard of care as to Dr. Sims because Dr. Sims is an anesthesiologist and Dr. Suliburk is not "board certified in anesthesiology," is not "actively practicing anesthesiology," has "no experience or training in anesthesiology," and "does not indicate [that] he is familiar with the standard of care for anesthesiologists."
An expert report by a person not qualified to testify does not constitute a good-faith effort to comply with the TMLA's definition of an expert report and warrants dismissal. See Mettauer, 326 S.W.3d at 693; Hendrick Med. Ctr. v. Conger, 298 S.W.3d 784, 789 (Tex. App.-Eastland 2009, no pet.) (where expert not qualified to render opinion, expert report is rendered deficient); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1), (r)(6). Whether an expert witness is qualified to offer an expert opinion lies within the sound discretion of the trial court. Cornejo, 446 S.W.3d at 121. The expert's qualifications must appear in the four corners of the expert report or in the expert's accompanying CV. Puppala, 564 S.W.3d at 197, 202; see also Cornejo, 446 S.W.3d at 121.
In a suit involving a health care liability claim against a physician, a person is qualified as an expert on the issue of whether the physician departed from the accepted standard of care, if the expert is a physician who:
1. is practicing medicine at the time such testimony is given or was practicing medicine 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 of medical care.Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a); see also id. § 74.351(r)(5)(A) ("[e]xpert" means "with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of [s]ection 74.401" (internal quotations omitted)); Methodist Hosp. v. Addison, 574 S.W.3d 490, 503 (Tex. App.-Houston [14th Dist.] 2018, no pet.). In determining whether a witness is "qualified on the basis of training or experience" to offer an expert opinion about the applicable standard of medical care,
the court shall 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).
"[P]racticing medicine . . . includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provided direct patient care, upon the request of such other physicians." Tex. Civ. Prac. & Rem. Code Ann. § 74.401(b) (internal quotations omitted).
Not every licensed physician is qualified to testify on every medical question. See Broders, 924 S.W.2d at 152-54; Cornejo, 446 S.W.3d at 121. Yet, a physician need not practice in the particular field about which he is testifying so long as he can demonstrate that he has knowledge, skill, experience, training, or education about the specific issue before the court that would qualify him to give an opinion on that subject. Cornejo, 446 S.W.3d at 121; Owens v. Handyside, 478 S.W.3d 172, 185 (Tex. App.-Houston [1st Dist] 2015, pet. denied); Rittger v. Danos, 332 S.W.3d 550, 558-59 (Tex. App.-Houston [1st Dist.] 2009, no pet.). The critical inquiry is whether the expert's expertise goes to the very matter on which he is to give an opinion. See Broders, 924 S.W.2d at 152-53; Mangin, 480 S.W.3d at 707. It is appellees' burden to show that Dr. Suliburk is qualified to opine on the applicable standard of care and breach of the standard of care as to Dr. Sims. See Rittger, 332 S.W.3d at 558-59; Mem l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
In his expert report, Dr. Suliburk does not directly discuss the standard of care applicable to Dr. Sims or specify Dr. Sim's breaches of the standard of care. Dr. Sims's name does not appear anywhere in Dr. Suliburk's expert report. Instead, Dr. Suliburk generally states that the standard of care for a patient, with multiple medical comorbidities, including end stage renal disease, "who must undergo serial procedures on an extremity[,] is a regional block anesthetic." According to Dr. Suliburk, "[t]his technique eliminates the significant variation in blood pressure and oxygenation associated with [the] induction and administration of general anesthesia" and "provides improved levels of compassionate post-operative pain control while minimizing the need for dangerous narcotic medication." The "[r]epeated plans by the treatment team for general anesthesia administration to [Aundi] continued to expose unnecessary risk to [an] already high-risk patient." "It [was] below [the] standard of care to not have available regional anesthesia for a high-risk patient needing a relatively minor surgical procedure on [an] extremity."
Dr. Suliburk also states in his expert report that, during the October 28, 2018 surgery, Aundi "likely suffered a hypoxic insult to the brain triggered by a combination of low oxygen tension in the blood (as a result of a non-secure airway) along with inadequate blood pressure (as a result of anesthetic medications) to maintain optimal cerebral perfusion." If Aundi had "a local-regional block of the extremity neither her oxygenation nor blood pressure would have been affected and her brain function would be intact." "[T]he care team . . . did not maintain [the] standard of care in allowing [Aundi] to have ongoing serial high-risk general anesthetics." In Dr. Suliburk's opinion, there was a "substandard anesthetic plan[] [and] substandard execution of the anesthetic plan" that "resulted in irreversible hypoxic encephalopathy." And if "a loco-regional block had been performed[] [Aundi] would not have sustained cerebral damage and would be alive today."
We must determine whether Dr. Suliburk's expert report and CV demonstrate that he is qualified to offer these specific expert opinions despite the fact that he is neither board certified in anesthesiology nor actively practicing anesthesiology. Cf. Mangin, 480 S.W.3d at 708. Dr. Suliburk is a board-certified surgeon, who practices "general surgery." He states that he has nineteen years of experience "managing and evaluating complex surgical patients." According to his expert report, he is "a tenured associate professor and full-time faculty [member at] Baylor College of Medicine," is "an instructor in Advanced Trauma Life Support for the American College of Surgery," and was an "attending faculty surgeon in acute care and trauma surgery at Ben Taub Hospital."
Neither Dr. Suliburk's expert report nor his CV demonstrate that he has the knowledge, skill, experience, training, or education to qualify him to render an expert opinion as to the standard of care and breach of the standard of care applicable to an anesthesiologist, like Dr. Sims, who is presumably participating in the surgery of a patient, like Aundi, who has multiple medical comorbidities and is "undergo[ing] serial procedures on an extremity." See Broders, 924 S.W.2d at 153-54 ("What is required is that the offering party establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." (internal quotations omitted)); Olveda v. Sepulveda, 141 S.W.3d 679, 683 (Tex. App.-San Antonio 2004, no pet.) (expert report by anesthesiologist did not "refer to any knowledge, skill, experience, training, or education regarding the standard of care applicable to urologists"); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a) (expert meets requirements of Texas Civil Practice and Remedies Code section 74.401 if he (1) is practicing medicine, (2) has knowledge of accepted standard of care for diagnosis, care, or treatment of illness, injury, or condition involved in claim, and (3) is qualified on basis of training or experience to offer expert opinion about accepted standard of care). In fact, it is not evident from Dr. Suliburk's expert report and CV that he has any experience in anesthesiology or the use of various types of anesthesia during surgery. See CHCA Mainland, L.P. v. Dickie, No. 14-07-00831-CV, 2008 WL 3931870, at *5 (Tex. App.-Houston [14th Dist.] Aug. 21, 2008, no pet.) (mem. op.) ("[I]t is not evident from the four corners of [the expert report or CV] that [expert] has any experience in the treatment and prevention of decubitus ulcers.").
Appellees argue that it does not matter that Dr. Suliburk is not a board-certified anesthesiologist or that he does not practice in the field of anesthesiology because Dr. Suliburk states that he has "knowledge about [the] treatment of patients with poorly healing diabetic foot wounds" and he "see[s], treat[s,] and operate[s] on multiple patients weekly with diabetic foot infections who require surgical procedures."
Here, our focus is not on the fact that Dr. Suliburk is a "general surgeon" and not an anesthesiologist. See Cook v. Broussard, No. 01-17-00943-CV, 2018 WL 3384638, at *6 (Tex. App.-Houston [1st Dist.] July 12, 2018, pet. denied) (mem. op.) ("Of course, [expert's] different area of specialization would not disqualify him if he had nevertheless demonstrated his qualifications. But he did not do so."). Instead, what is significant is that nowhere in his expert report or CV does Dr. Suliburk establish his qualifications to opine that the applicable standard of care for an anesthesiologist required the use of a "regional block anesthetic" on Aundi during the October 28, 2018 surgery or his qualifications to opine that an anesthesiologist would breach the standard of care by "not hav[ing] available regional anesthesia" for Aundi's surgery and purportedly using "general anesthesia" instead. See Estorque v. Schafer, 302 S.W.3d 19, 26 (Tex. App.-Fort Worth 2009, no pet.) ("Qualifications must appear in the expert report [and CV] and cannot be inferred."); cf. Mangin, 480 S.W.3d at 709 (expert in anesthesiology failed to make "any assertions of expertise pertaining to a cardiologist's duties when providing cardiac care"). And Dr. Suliburk's expert report does not assert that the applicable standard of care and any alleged breaches of the standard of care "pertain to a subject matter that is common to and equally recognized and developed in all fields of medical practice, such that no specific . . . knowledge or experience [related to anesthesiology] would be required to offer a relevant opinion." Mangin, 480 S.W.3d at 709.
In Mangin, we addressed a similar situation where the defendant cardiologist, Dr. Mangin, argued that the trial court erred in denying his motion to dismiss the plaintiffs' health care liability claims against him because Dr. Memon, an anesthesiologist and author of the expert report, was not qualified to render an expert opinion on the standard of care and breach of the standard of care applicable to a cardiologist performing heart surgery. Id. at 707-10. In that case, Dr. Mangin performed an angioplasty and implanted a stent in the patient. Id. at 704. During the procedure, Dr. Mangin perforated one of the patient's arteries. Id. An anesthesia provider who responded to the call for assistance attempted to establish ventilation by intubating the patient, but mistakenly inserted the tube in the patient's esophagus. Id. The patient's oxygen levels dropped, and he experienced cardiac arrest. Id. The loss of oxygen caused irreparable brain damage, and the patient died two days later. Id.
The plaintiffs-the patient's estate and daughters-brought suit against Dr. Mangin and others. Id. As to Dr. Mangin, the plaintiffs served an expert report authored by an anesthesiologist, Dr. Memon, which attempted to address the standard of care applicable to Dr. Mangin and whether Dr. Mangin departed from the standard of care when performing heart surgery on the patient. Id. at 707-08.
In Mangin, we explained that Dr. Memon's opinions as to Dr. Mangin "implicate[d] the qualifications required for, and the adequacy of performance of, heart surgery relating to inserting a stent and managing complications of that procedure." Id. at 708. And this required the Court to "determine whether Dr. Memon's report and [CV] demonstrate[d] that he [was] qualified to offer specific expert opinions despite the fact that he [was] neither board certified in nor actively practicing cardiology." Id. We noted that Dr. Memon was a board-certified anesthesiologist with extensive education and experience in anesthesiology and pain management. Id. And that he had experience in the administration of anesthesia and intubation of patients during surgical procedures and was "familiar with the possible complications that c[ould] arise during treatment of an acute myocardial infarction and the remedial measures necessary if such complications" were to arise. Id. at 708-09 (internal quotations omitted). Further, Dr. Memon had "substantial knowledge of the causal relationship between an anesthesiologist's and general and traumatic surgeon's failures to meet the reasonable, prudent, and accepted standards of medical care and supervision in the diagnosis, care[,] and treatment of patients requiring ventilation and/or undergoing general anesthesia for cardiac surgical procedures under both planned and emergency conditions." Id. at 709.
But this Court concluded that although Dr. Memon asserted that he was familiar with the standards of care for "general and traumatic surgeons," he did not make any assertions of expertise pertaining to a cardiologist's duties when providing cardiac care to a patient. Id. (internal quotations omitted). Dr. Memon's expert report did not explain whether and how his knowledge applied to the specific breaches in cardiac care that he attributed to Dr. Mangin. Id. Notably, we concluded that Dr. Memon's statement that he was "familiar" with certain complications that could arise during treatments for acute myocardial infarction and the treatment for such complications was "vague and non-specific." Id. (internal quotations omitted). And Dr. Memon's expert report did not demonstrate how his "knowledge, skill, experience, training, or education qualified him to render an opinion about the particular breaches of the standard of care applicable to a cardiologist when the coronary artery was perforated during the catherization procedure and during subsequent complications that occurred." Id. Knowledge about when and whether a cardiologist should seek help from a cardiac surgeon was not something common to all fields of medicine, and to the extent that Dr. Memon possessed such knowledge, the basis for that knowledge was not clearly articulated in his expert report and CV. Id. at 709-10. Because Dr. Memon's expert report and CV did not demonstrate that he had "substantial training or experience in cardiology or [the] management of cardiac complications," we concluded that he had not shown that his "expertise [went] to the very matter on which he . . . [was] to give an opinion" and Dr. Memon was not qualified to render an expert opinion about the standard of care and breach of the standard of care as to Dr. Mangin. Id. at 710 (internal quotations omitted).
Much like in Mangin, Dr. Suliburk, in his expert report and CV, makes no assertions of expertise pertaining to an anesthesiologist's duties when providing care to a patient, like Aundi, who has multiple comorbidities and who is "undergo[ing] serial procedures on an extremity." Id. at 709. And what an anesthesiologist should do in connection with such a patient, while she is "undergo[ing] serial procedures on an extremity," is not something common to all fields of medicine. Id. If Dr. Suliburk possesses the basis for the required knowledge, it is not clearly articulated in his expert report and CV. Id.; see also Cook, 2018 WL 3384638, at *6.
We hold that Dr. Suliburk's expert report and CV do not establish that he is qualified to opine on the standard of care and breach of the standard of care as to Dr. Sims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a); see also Conger, 298 S.W.3d 789 (where expert not qualified to render opinion, expert report is deficient).
We sustain this portion of appellants' second issue.
D. Sufficiency of Expert Report as to U.S. Anesthesia Partners
In a portion of their first issue, appellants argue that Dr. Suliburk's expert report does not adequately address the standard of care, breach of the standard of care, and causation as to U.S. Anesthesia Partners, "an anesthesiology group," because appellees have asserted vicarious liability health care liability claims against U.S. Anesthesia Partners and Dr. Suliburk's expert report is deficient as to the standard of care, breach of the standard of care, and causation as to Dr. Sims. In a portion of their second issue, appellants argue that Dr. Suliburk is not qualified to offer an expert opinion on the standard of care and breach of the standard of care as to U.S. Anesthesia Partners, "an anesthesiology group," because appellees have asserted vicarious liability health care claims against U.S. Anesthesia Partners and Dr. Suliburk is not qualified to offer an opinion on the standard of care and breach of the standard of care as to Dr. Sims.
In their petition, appellees allege that U.S. Anesthesia Partners is vicariously liable for the alleged negligent conduct of Dr. Sims. "[W]hen a health care liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that meets the statutory standards as to the employee is sufficient to implicate the employer's conduct under the vicarious [liability] theory." Potts, 392 S.W.3d at 632; see also Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) ("When 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."); Owens, 478 S.W.3d at 191-92. In other words, when a health care liability claim against a defendant health care provider is based on vicarious liability, an expert report that meets the statutory standards as to the defendant health care provider's employee is sufficient to implicate the health care provider's conduct. See Potts, 392 S.W.3d at 632; Seton Family of Hosps. v. White, 593 S.W.3d 787, 792 (Tex. App.-Austin 2019, pet. denied); Stewart, 2021 WL 3412461, at *16; Owens, 478 S.W.3d at 191-92; see, e.g., Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex. App.-Fort Worth 2008, pet. denied) ("[I]f the expert report is sufficient as to the claims against [employee physician], and we have held that it is[,] . . . then the report is sufficient as to [the] claims against [employer health care provider] that are based on [employee physician's] alleged negligence." (footnote omitted)).
Although in their petition appellees allege that U.S. Anesthesia Partners are vicariously liable for the negligent "acts and omissions of [its unnamed] employees, physicians, nurses, staff, representatives[,] and agents," in their briefing, appellees only assert that U.S. Anesthesia Partners is vicariously liable for the alleged negligent conduct of Dr. Sims. Appellees have not brought direct liability health care liability claims against U.S. Anesthesia Partners.
Yet, it is also true that an expert report that is insufficient as to an employee, on whose alleged negligent conduct a plaintiff's vicarious liability health care liability claim is based, is also insufficient as to the employer health care provider. See, e.g., Stewart, 2021 WL 3413461, at *17 ("[W]e have concluded that [expert's] amended expert report is deficient as to [employee physicians and employee nurse practitioner] for various reasons. Thus, because [expert's] amended expert report does not meet the statutory standards as to the . . . physicians and nurse practitioner . . . -the individuals whose purportedly negligent acts or omissions serve as the basis for [plaintiff's] vicarious liability health care liability claim against [employer health care provider]-we conclude that [expert's] amended expert report is also deficient as to [employer health care provider] on [plaintiff's] vicarious liability health care liability claim."); Tawa v. Gentry, No. 01-12-00407-CV, 2013 WL 1694869, at *14 (Tex. App.-Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) (concluding where expert not qualified to opine on standard of care applicable to employee nurse practitioner, trial court erred in denying motion to dismiss of employee nurse practitioner and employer health care provider against whom plaintiffs had brought vicarious liability health care liability claim); Concentra Health Servs., Inc. v. Everly, No. 2-08-455-CV, 2010 WL 1267775, at *6 (Tex. App.-Fort Worth Apr. 1, 2010, no pet.) (mem. op.) ("[B]ecause we have held that [expert's] report and [CV] d[id] not demonstrate that [expert was] qualified to offer standard of care opinions regarding [employee physician], we hold that they likewise do not demonstrate that [expert] is qualified to offer standard of care opinions on [plaintiff's] vicarious liability claims against [employer health care provider] for the acts of [employee physician].").
Here, we have held that Dr. Suliburk's expert report and CV do not establish that he is qualified to opine on the standard of care and breach of the standard of care as to Dr. Sims and that Dr. Suliburk's expert report does not adequately address the applicable standard of care, breach of the standard of care, and causation as to Dr. Sims. Thus, because Dr. Suliburk's expert report does not meet the statutory standards as to Dr. Sims-the individual whose purportedly negligent conduct serves as the basis for appellees' vicarious liability health care liability claims against U.S. Anesthesia Partners-we hold that Dr. Suliburk's expert report does not meet the statutory standards as they relate to appellees' vicarious liability health care liability claims against U.S. Anesthesia Partners.
We sustain this portion of appellants' first issue and this portion of appellants' second issue.
Thirty-Day Extension to Amend Report
In their brief, appellees state that should this Court determine that Dr. Suliburk's expert report is inadequate, they "[r]equest a [thirty]-[d]ay [e]xtension to cure any deficiencies" in Dr. Suliburk's expert report.
Texas Civil Practice and Remedies Code section 74.351(c) affords the trial court the ability to grant a thirty-day extension for a plaintiff to cure deficiencies in his expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). Thus, when an appellate court reverses a trial court's denial of a motion to dismiss a health care liability claim due to the omission of any of the statutory expert report requirements, the appellate court may remand the case to the trial court to consider granting a thirty-day extension for the plaintiff to cure the deficiencies in the expert report. Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008); Nw. EMS Consultants, P.A. v. Guillory, No. 01-19-00668-CV, 2020 WL 4516872, at *13 (Tex. App.- Houston [1st Dist.] Aug. 6, 2020, pet. denied) (mem. op.); see also Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (stating deficient report may be cured by amending report or by serving new report from separate expert that cures deficiencies in previously filed report); Protzman v. Gurrola, 510 S.W.3d 640, 654- 55 (Tex. App.-El Paso 2016, no pet.).
The trial court is in the best position to decide whether a cure for an inadequate expert report is feasible. See Guillory, 2020 WL 4516872, at *13. And the Texas Supreme Court has instructed that "trial courts should be lenient in granting [a] thirty-day extension[] and must do so if [the] deficiencies in an expert report can be cured within the thirty-day period." Scoresby, 346 S.W.3d at 554; see also Guillory, 2020 WL 4516872, at *13; Cook, 2018 WL 3384638, at *6-7.
Appellants argue that appellees are not entitled to a thirty-day extension because the trial court, in its July 21, 2021 order, already "granted [a]ppellees their one thirty[-]day extension" and "[a]ppellees are not entitled to a second thirty-day extension to cure deficiencies in their expert report."
Appellants do not argue in their briefing that appellees are not entitled to a thirty-day extension to cure the deficiencies in Dr. Suliburk's expert report because the expert report constitutes "no report" as to appellants. See Tex. R. App. P. 38.1(i); see, e.g., Walker v. Onugha, No. 05-19-00801-CV, 2020 WL 3248478, at *4 (Tex. App.- Dallas June 16, 2020, no pet.) (mem. op.) (defendant physician argued that appellate court should not remand case, but instead render judgment dismissing plaintiff's health care liability claims because expert report "was so deficient with respect to the statutory elements that it was not a good faith effort and constituted no report at all"). Further, we note that a court must grant an extension if an expert report's deficiencies are curable. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017); Walker, 2020 WL 3248478, at *4. And the Texas Supreme Court has admonished that courts should be "lenient" in granting a thirty-day extension where the expert report does not demonstrate that the plaintiff's claims are frivolous. Scoresby v. Santillan, 346 S.W.3d 546, 549, 554 (Tex. 2011); see also Walker, 2020 WL 3248478, at *4. Here, we cannot say that it would be impossible for the deficiencies in Dr. Suliburk's expert report to be cured; thus, the trial court must be given the opportunity to consider an extension. See Walker, 2020 WL 3248478, at *4; see also Scoresby, 346 S.W.3d at 557 (thirty-day extension to cure deficiencies in expert report may be granted if report is served by statutory deadline, if it contains opinion of individual with expertise that claim has merit, and if defendant's conduct is implicated); Guerrero v. Karkoutly, No. 13-20-00053-CV, 2020 WL 5056511, at *3 (Tex. App.-Corpus Christi-Edinburg Aug. 27, 2020, pet. denied) (mem. op.) (courts should "err on the side of granting [plaintiff's] extensions" (internal quotations omitted)); Mangin, 480 S.W.3d at 711-14 (lack of defendant's name in expert report did not render it "no report" (internal quotations omitted)).
The trial court, in its July 21, 2021 order, stated:
Having considered [appellants'] [o]bjections to [appellees'] [c]hapter 74 [e]xpert [r]eport of [Dr.] Suliburk[] . . ., [appellants'] [m]otion[] to [d]ismiss[,] and [appellees'] [r]esponse in [o]pposition to [appellants'] [o]bjections . . . the [c]ourt is of the opinion that the [m]otion to [d]ismiss should be denied in its entirety and grant a [thirty]-day extension in order to cure any deficiencies in [Dr. Suliburk's] [e]xpert [r]eport . . . . It is therefore,
ORDERED that [appellants'] [m]otion to [d]ismiss is DENIED.(First emphasis added.) Later, in its second September 29, 2021 order, the trial court stated:
On July 21, 2021, this Court erred when it granted [appellees] a 30[-]day continuance to file an amended report. The Court did intend to deny all Chapter 74 motions filed by [appellants and others]. This [o]rder, though, redundant, DENIES all Chapter 74 motions filed by [appellants and others] to date.(First emphasis added.)
In the first September 29, 2021 order, the trial court denied appellants' amended motion to dismiss the health care liability claims against them.
Notably, Texas Civil Practice and Remedies Code section 74.351(c) only empowers the trial court to grant the plaintiff a thirty-day extension to cure deficiencies found in the plaintiff's initial expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (plaintiff can be granted extension to cure deficiency only after elements of report are found to be deficient); Guillory, 2020 WL 4516872, at *14; Hilton v. Wettermark, No. 14-14-00697-CV, 2015 WL 2169516, at *6 (Tex. App.-Houston [14th Dist.] May 7, 2015, no pet.) (mem. op.); Marino v. Wilkins, 393 S.W.3d 318, 331-32 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). In the July 21, 2021 order, the trial court denied appellants' motion to dismiss appellees' health care liability claims, and although the trial court included language stating that it "grant[ed] [appellees] a [thirty]-day extension in order to cure any deficiencies in [Dr. Suliburk's] [e]xpert [r]eport," the trial court did not identify any deficiencies in Dr. Suliburk's expert report. Further, the trial court, in its second September 29, 2021 order, corrected its previous statement about the extension, explaining that it "erred when it granted [appellees] a 30[-]day continuance to file an amended report."
Here, the trial court denied appellants' motion to dismiss and amended motion to dismiss appellees' health care liability claims against appellants and never found any deficiencies in Dr. Suliburk's expert report. Because the trial court did not find any deficiencies in Dr. Suliburk's expert report, appellees were never entitled to a thirty-day extension to cure any deficiencies in the expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (plaintiff can be granted extension to cure deficiency only after elements of report are found to be deficient); Guillory, 2020 WL 4516872, at *14; Hilton, 2015 WL 2169516, at *6; Marino, 393 S.W.3d at 331- 32. Thus, we hold that it is appropriate to remand the case to the trial court for consideration of whether the deficiencies identified by this Court related to Dr. Suliburk's expert report can be cured, and whether to grant an extension of time. See Guillory, 2020 WL 4516872, at *13-14; see also Scoresby, 346 S.W.3d at 549 ("An individual's lack of relevant qualifications and an opinion's inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so."); Guerrero v. Karkoutly, No. 13-20-00053-CV, 2020 WL 5056511, at *3 (Tex. App.-Corpus Christi-Edinburg Aug. 27, 2020, pet. denied) (mem. op.) (courts should "err on the side of granting [plaintiff's] extensions" (internal quotations omitted)); Mangin, 480 S.W.3d at 706 ("[W]hen the court of appeals finds deficient a report that the trial court considered adequate, the plaintiff should be afforded one [thirty]-day extension to cure the deficiency, if possible." (internal quotations omitted)). We remain mindful that "[t]he standard for granting a thirty-day extension is lenient." See El Paso Sw. Cardiovascular Assocs., P.A. v. Crane, No. 08-20-00090-CV, --- S.W.3d ---, 2021 WL 5991032, at *3 (Tex. App.-El Paso Dec. 17, 2021, no pet.) (mem. op); see also Scoresby, 346 S.W.3d at 549, 554, 557.
Even if the trial court had previously afforded appellees a thirty-day extension to cure a deficiency in Dr. Suliburk's expert report, the trial court did not identify the deficiencies discussed in this Court's opinion as deficiencies needing addressing, and appellees did not have an opportunity to cure on this basis. See Cook v. Broussard, No. 01-17-00943-CV, 2018 WL 3384638, at *6-7 (Tex. App.- Houston [1st Dist.] July 12, 2018, pet. denied) (mem. op.). Under such circumstances, we may remand the case to the trial court for consideration of whether the identified deficiencies in Dr. Suliburk's expert report can be cured, and whether to grant an extension of time. See Cook, 2018 WL 3384638, at *6-7; Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 624-25 (Tex. App.-Fort Worth 2012, no pet.) ("[W]e may allow the trial court to grant another thirty-day extension on remand if we hold that the report is deficient in a different manner than found by the trial court when granting the original thirty-day extension.").
To the extent appellants, in their briefing, raise any other issues, due our disposition of appellants' first and second issues, we need not address any remaining arguments. See Tex. R. App. P. 47.1.
Conclusion
We reverse the trial court's order denying appellants' amended motion to dismiss the health care liability claims against them. We remand this case to the trial court to determine whether to grant appellees a thirty-day extension to file an expert report or reports that are compliant with the TMLA and for further proceedings consistent with this opinion.