Opinion
NO. 01-19-00012-CV
06-11-2019
AJAY AGGARWAL, M.D., AJAY AGGARWAL, M.D., P.A., AND PAIN RELIEF CENTER, M.D., P.A., Appellants v. MARCIE TROTTA AND BENITO TROTTA, Appellees
On Appeal from the 412th Judicial District Court Brazoria County, Texas
Trial Court Case No. 96498-CV
MEMORANDUM OPINION
Marcie Trotta sued Dr. Ajay Aggarwal and his related entities, alleging that Dr. Aggarwal negligently performed an epidural steroid injection on her cervical spine, which proximately caused her injuries and damages. As required by Chapter 74 of the Civil Practice and Remedies Code, Trotta provided an expert report to support her health care liability claim. Aggarwal moved to dismiss Trotta's claim, challenging the adequacy of the report. The trial court denied his motion, and this interlocutory appeal followed.
Marcie Trotta's husband, Benito Trotta, also asserted a claim for damages against Dr. Aggarwal and his related entities.
See TEX. CIV. PRAC. & REM. CODE § 74.351(a).
See id. § 74.351(b), (l).
See id. § 51.014(a)(9).
In a single issue, Aggarwal contends the trial court abused its discretion in denying his motion to dismiss. We affirm.
Background
Marcie Trotta was experiencing neck pain and arm tingling. She was seen by Dr. Aggarwal, who recommended a cervical steroid injection. Trotta's petition alleged that Aggarwal performed the injection while Trotta was in a state of deep sedation. She pleaded that the appropriate standard of care required that she be less sedated to the level of "conscious sedation." She alleged that she was sedated to the point of being "unresponsive," leaving her unable to react when Aggarwal negligently punctured her spinal cord during the injection.
Trotta contends that over-sedation prevented her from providing the verbal and physical reactions on which surgeons rely to discover an inadvertent puncture of the spinal cord. While she was unresponsive, Aggarwal negligently punctured her spinal cord and, without any reaction from Trotta, Aggarwal injected the steroid directly into her spinal cord, causing her injuries.
Aggarwal moved to dismiss Trotta's claim, arguing that her expert report, authored by Dr. J. Lowell Haro, failed to meet the requirements of Section 74.351 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 74.351(b) (providing mechanism for dismissal of health care liability claims for failure to provide adequate expert report). Trotta supplemented her report. Aggarwal again sought dismissal. He challenged the report in three regards: (1) Haro's report failed to inform Aggarwal of the specific acts required of him to meet the stated standard of care, (2) Haro provided no basis for contending that Aggarwal was vicariously liable for the acts of a nurse anesthetist, and (3) Haro's opinion on causation failed to address foreseeability. The trial court denied Aggarwal's dismissal motion. He appeals.
Motion to Dismiss
Aggarwal contends the trial court abused its discretion by denying his motion to dismiss Trotta's health care liability claims, focusing on the elements of standard of care and causation.
A. Standard of review
We review a trial court's ruling on a motion to dismiss a health care liability claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam). We "defer to the trial court's factual determinations if they are supported by evidence," but we review its legal determinations de novo. Id. "A trial court abuses its discretion if it rules without reference to guiding rules or principles." Id.
B. Expert report requirements
Under the Medical Liability Act, a plaintiff asserting health care liability claims must timely serve each defendant physician and health care provider with one or more expert reports and a curriculum vitae of each expert whose opinion is offered to substantiate the merits of the claims. TEX. CIV. PRAC. & REM. CODE § 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The expert report must provide a "fair summary" of the expert's opinions regarding the (1) applicable standards of care, (2) manner in which the care rendered by the physician or health care provider failed to meet the standards, and (3) causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). "No particular words or formality are required, but bare conclusions will not suffice." Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). The report must explain the basis of the expert's statements and link the expert's conclusions to the facts of the case. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).
For standard of care and breach, the expert report must explain what the physician or health care provider should have done under the circumstances and what the physician or health care provider did instead. Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001).
For causation, the expert report must explain how and why the physician's or health care provider's breach proximately caused the plaintiff's injury. Columbia Valley Healthcare Sys. v. Zamarripa, 526 S.W.3d 453, 459-60 (Tex. 2017). Proximate cause has two components: (1) cause-in-fact and (2) foreseeability. Id. at 460. A physician's or health care provider's breach was a cause-in-fact of the plaintiff's injury if the breach was a substantial factor in bringing about the harm and, absent the breach (i.e., but for the breach), the harm would not have occurred. Id. Even if the harm would not have occurred absent the defendant's breach, "the connection between the defendant and the plaintiff's 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) (per curiam) (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)). A breach is not a substantial factor if it "does no more than furnish the condition that makes the plaintiff's injury possible." Id. (quoting Union Pump, 898 S.W.2d at 776).
A physician's or health care provider's breach is a foreseeable cause of the plaintiff's injury if a physician or health care provider of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. See Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
The expert report is not required to prove the plaintiff's case but only to provide notice of the conduct forming the basis of the plaintiff's claim. Gracy Woods I Nursing Home v. Mahan, 520 S.W.3d 171, 189 (Tex. App.—Austin 2017, no pet.). The report "need not anticipate or rebut all possible defensive theories that may ultimately be presented" in the case. Owens v. Handyside, 478 S.W.3d 172, 187 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Nor must the report "rule out every possible cause of the injury, harm, or damages claimed." Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.).
In reviewing the adequacy of an expert report, a trial court may not consider the expert's credibility, the data relied upon by the expert, or the documents that the expert failed to consider at this pre-discovery stage of the litigation. See Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Gonzalez v. Padilla, 485 S.W.3d 236, 245 (Tex. App.—El Paso 2016, no pet.). Instead, the trial court must limit its review to the "four corners" of the expert report and, when the question of adequacy hinges on the expert's qualifications, the "four corners" of the expert's curriculum vitae. Mangin, 480 S.W.3d at 706.
The statute's purpose is to rule out frivolous lawsuits at the onset of litigation, it is not to determine the merits of the claim. Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 502 (Tex. 2015); Mangin, 480 S.W.3d at 706. As we have explained:
The requirement to serve an expert report arises at the outset of litigation and before the opportunity for the plaintiff to engage in significant discovery, including taking oral depositions of the defendants. As such, the statute itself contemplates that the amount and quality of evidence available at the time of drafting the expert reports will be less than that available at trial on the merits or even the summary-judgment stage.Mangin, 480 S.W.3d at 713 (citations omitted).
If the plaintiff "fails to timely serve an expert report, then on the affected health care provider's motion the trial court must dismiss the pertinent health care liability claim with prejudice and award attorney's fees." Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)). "However, if the motion challenges the adequacy of an otherwise timely report, the court may grant the motion 'only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the [Act's] definition of an expert report.'" Baty, 543 S.W.3d at 692-93 (quoting TEX. CIV. PRAC. & REM. CODE § 74.351(l)).
A report qualifies as an objective good faith effort if it provides information sufficient to (1) inform the defendant of the specific conduct the plaintiff questions and (2) provide a basis for the trial court to conclude that the plaintiff's claims have merit. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam); Jelinek, 328 S.W.3d at 539; see Scoresby, 346 S.W.3d at 557 (defining report as meeting "minimal standard" of objective-good-faith threshold if it "contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated"). A report that contains conclusory statements that do not put the defendant or the trial court on notice of the conduct complained of fails to meet the threshold of an objective good-faith effort. Palacios, 46 S.W.3d at 880. The good-faith requirements of the statute have been described as a "lenient standard," "low threshold," and "relatively low bar." See Scoresby, 346 S.W.3d at 549; Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J., concurring in part and dissenting in part); Baty, 543 S.W.3d at 698 (Johnson, J., dissenting).
C. Trial court did not abuse its discretion in concluding expert's opinion on standard of care was sufficient
Aggarwal's first argument is that Haro's report "failed to describe what particular acts Dr. Aggarwal should have performed" to comply with the standard of care. Aggarwal focuses his criticism on the following language from Haro's report: "The Standard of Care dictates that the surgeon adequately monitor and adjust, if necessary, the level of sedation to insure the patient is at appropriate level of sedation during the procedure." Aggarwal focuses on just that sentence, but our review must be broader: we review the entire report to determine whether it explains what the expert claims the doctor should have done under the circumstances and what the doctor did instead. See Baty, 543 S.W.3d at 694 (stating that "courts must view the report in its entirety, rather than isolating specific portions or sections"); see also Palacios, 46 S.W.3d at 880 (discussing requirements of expert report); Miller, 536 S.W.3d at 513 (same).
Haro's report states that the "appropriate level of sedation for this [cervical steroid injection] procedure is that level that allows the patient to communicate pain and discomfort that may arise during the surgical procedure." According to Haro, the standard of care is to "insure the patient is at the appropriate level of sedation during the procedure," because "communication is essential for the surgeon to know if he strikes or penetrates the spinal cord or a nerve so that he can withdraw the needle before additional damage is incurred including injecting steroids into the spinal cord," as Aggarwal is alleged to have done here. To "insure the patient is at the appropriate level of sedation," the surgeon must be aware of the level of sedation achieved. Haro's report states Aggarwal was required to have "monitored [Trotta's] level of sedation . . . and delayed the insertion of the needle until he had established the ability to communicate with the patient."
These statements adequately inform Aggarwal of the particular acts that the expert contends he should have done to comply with the standard of care. See Baty, 543 S.W.3d at 695 (rejecting argument that expert report failed to adequately describe what, in expert's opinion, physician should have done under standard of care). According to Haro, Aggarwal should have observed Trotta's level of sedation and delayed the procedure until she was communicative. Nothing is left to infer. Like in Baty, "the report expressly references the 'specific conduct the plaintiff has called into question.'" Id. (quoting Palacios, 46 S.W.3d at 879).
Aggarwal's second argument is that Haro's standard-of-care opinion fails to "explain how Dr. Aggarwal was supposed to do the nurse anesthetist's job of monitoring and adjusting anesthesia medications at the same time Dr. Aggarwal was inserting needles in the patient's spine." Again, Aggarwal's challenge is overly narrow and ignores other parts of Haro's report. Haro's phrasing of the standard of care is not so limited that it requires Aggarwal to "do the nurse anesthetist's job . . . at the same time Dr. Aggarwal" performs his own surgical duties. Haro's expert opinion on the applicable standard of care is that Aggarwal, himself, should have been observant of Trotta's level of sedation and "delay[ed] the insertion of the needle until he had established the ability to communicate with the patient," as the level of sedation lessened, so that he would have the benefit of the patient's reactions to assist in proper needle placement.
The trial court did not abuse its discretion in concluding that Haro's expert report adequately informed Aggarwal of the standard of care element of Trotta's claim, including the specific conduct Trotta has called into question. "Additional detail is simply not required at this stage of the proceeding." Baty, 543 S.W.3d at 697.
To the extent Aggarwal disputes that Haro has accurately stated the standard of care, his complaint does not support a Chapter 74 dismissal. See Engh v. Reardon, No. 01-09-00017-CV, 2010 WL 4484022, at *8 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet.) (mem. op.) ("The doctors also challenge the accuracy of [the expert's] opinions with respect to standard of care. Whether [the expert's] opinions regarding the applicable standards of care are correct, however, is an issue for summary judgment, not a motion to dismiss under Chapter 74."); see also Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 199 n.2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (concluding doctor's arguments that he did not owe duty to patient as described in expert report was issue for summary judgment rather than motion to dismiss); Wissa v. Voosen, 243 S.W.3d 165, 169-70 (Tex. App.—San Antonio 2007, pet. denied) (same).
D. Trial court did not abuse its discretion in concluding that expert's opinion on causation was sufficient
Chapter 74 requires an expert report to address all elements of a plaintiff's health care liability claim, including proximate cause. Zamarripa, 526 S.W.3d at 460. While the expert is required to explain "the causal relationship between breach and injury," the expert is not required to include "magical words" in his explanation with specific reference to "the words 'proximate cause,' 'foreseeability,' or 'cause in fact.'" Id.
Aggarwal's challenge to Haro's causation opinion is limited to the foreseeability component of proximate cause. Aggarwal argues Haro's expert report "fails to provide any discussion or explanation regarding why Dr. Aggarwal should have foreseen that the nurse anesthetist would over-sedate Ms. Trotta."
As with standard-of-care, Aggarwal engages in an overly narrow reading of Haro's expert report. Haro does not contend Trotta's damages were caused only by Aggarwal's failure to foresee or prevent the nurse anesthetist from over-sedating Trotta. Instead, Haro's expert opinion is that Aggarwal should have recognized Trotta's level of sedation as he prepared to perform the injection and, after observing that Trotta was too sedated to communicate, should have delayed the procedure until Trotta's sedation diminished sufficiently to the point that she was communicative. Had he done so, Trotta's physical and verbal reactions to the needle insertion could have guided Aggarwal in determining that he did not have proper needle placement. Because he did not, according to Haro, Aggarwal proceeded with the needle mispositioned and injected the steroid into Trotta's spinal cord, proximately causing her injuries. With that standard of care in mind, we consider the foreseeability challenge.
A physician's breach is a foreseeable cause of the plaintiff's injury if a physician of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. See Price, 224 S.W.3d at 336. Haro's expert report discusses anticipated dangers.
First, Haro set forth the dangers caused by the negligent act or omission. He explained, "Penetration of the spinal cord is accompanied by pain and/or discomfort which [Trotta] would have been able to communicate to the surgeon if the patient had been properly sedated" instead of overly sedated. He stated that "communication is essential for the surgeon [performing a cervical steroid injection procedure] to know if he strikes or penetrates the spinal cord or a nerve so that he can withdraw the needle before additional damage is incurred including injecting steroids into the spinal cord." The surgeon must "insure the patient is at the appropriate level of sedation" to "allow the patient to communicate pain or discomfort to the surgeon." And if the surgeon observes the patient is not at the appropriate level of sedation, Haro opined, the surgeon must "delay[] the insertion of the needle until he has established the ability to communicate with the patient."
Next, he established the causal link between the breach and injuries. Haro opined Aggarwal breached the standard of care by performing the procedure while Trotta was sedated to the level of "general anesthesia," meaning that she was "completely unconscious and unable to feel pain." Aggarwal stated Trotta's level of sedation was "completely inappropriate" "for this procedure." He stated, "If Ms. Trotta had been at the appropriate sedation level upon insertion of the epidural needle into the spinal cord, she would have communicated pain to the surgeon and the surgeon would have known he had penetrated the spinal cord, and known not to inject the medication into the cord. Dr. Aggarwal could then withdraw the needle before spinal cord damage occurred." Haro concluded Aggarwal's breach of the standard of care "was a proximate cause of the penetration and injection into the spinal cord which resulted in an incomplete spinal cord injury."
Thus, Haro addressed the foreseeability component of causation by stating how, factually, proximate cause would be proven. According to Haro, a patient should remain communicative to assist the surgeon in determining proper placement of the needle and avoid injection into the spinal cord. A patient that is sedated to the point of being noncommunicative cannot provide that assistance, which could lead to an undiscerned puncture of the spinal cord, injection into the spinal cord, and resulting spinal cord injuries. Haro makes clear that moving forward with a procedure on a patient that is noncommunicative presents a heightened risk of injecting directly into the spinal cord and injuring the spinal cord as a result, as was alleged to have occurred to Trotta. See Miller, 536 S.W.3d at 515 (concluding expert report adequately explained "how any why" breach of standard of care caused injuries, including foreseeability component of causation).
Haro opined that moving forward with a procedure on a fully sedated patient foreseeably could lead to foreseeable injuries because the patient would be unable to communicate pain if the surgeon punctured the spinal cord, and, absent any physical or verbal reaction from the patient upon puncture of the spinal cord, the surgeon could inject material directly into the spinal cord, causing injury.
The trial court did not err in concluding that Haro's expert report sufficiently addressed the issues of standard of care and causation. Thus, the trial court did not abuse its discretion in denying Aggarwal's motion to dismiss Trotta's health care liability claim.
We do not address Aggarwal's challenge to Haro's expert report on the matter of Aggarwal's potential vicarious liability for the nurse anesthetist's over-sedation of Trotta because we have concluded the trial court did not abuse its discretion when it concluded Haro's expert report was adequate under another theory of recovery, based on Aggarwal's own alleged negligence. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (stating expert report that satisfies elements of health care liability claim "even if as to one theory only, entitles the claimant to proceed with a suit against the physician," even if alternative liability theories are addressed in expert's report and are subject to challenge).
We overrule Aggarwal's sole issue.
Conclusion
We affirm.
Sarah Beth Landau
Justice Panel consists of Justices Lloyd, Landau, and Countiss.