Opinion
No. 10-04-00279-CV
Opinion delivered and filed February 1, 2006.
Appeal fromthe 361st District Court, Brazos County, Texas, Trial Court No. 02-000802-CV-361.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Appellant Lindsey Daniel Bradshaw sued Appellee Dr. Garry Gore for negligent diagnosis and treatment in this medical malpractice case. The trial court dismissed her claims against Dr. Gore under former article 4590i. Bradshaw brings this appeal asserting the trial court abused its discretion in dismissing her claims due to an inadequate expert report.
We will sustain Bradshaw's sole issue, reverse the dismissal, and remand the cause for further proceedings.
BACKGROUND
On May 30, 2000, Bradshaw sought treatment at St. Joseph Regional Health Center in Bryan, Texas for a headache from which she had suffered for eight days. She also complained that she had blacked-out. Bradshaw was discharged with the diagnosis of a headache.
The next day, May 31, 2000, Bradshaw returned by ambulance to St. Joseph's emergency room. On this occasion, Bradshaw complained of the continuing headache, multiple seizures, olfactory hallucinations, and fever. Dr. Gore evaluated Bradshaw and witnessed her experience a seizure. Approximately four hours after she arrived, Dr. Gore discharged Bradshaw. His diagnosis included an acute headache, pseudo-seizures, possible viral meningitis, and possible Rickettsial illness for which he ordered the administration of Doxycycline.
Bradshaw saw her family physician on June 1, 2000, and was admitted to Mother Francis Hospital in Tyler that day. She was ultimately diagnosed with herpetic encephalitis on June 2, 2000, and was treated with Acyclovir.
Bradshaw filed suit pursuant to article 4590i and timely filed the expert reports of Dr. Stephen Hayden, a professor at the University of California at San Diego School of Medicine, and Dr. Alec Law, an internist and Bradshaw's treating physician. Dr. Gore's motion to dismiss asserted that Bradshaw's expert reports failed to adequately describe the causal relationship between Dr. Gore's breach and Bradshaw's injury. On July 29, 2004, the trial court granted Dr. Gore's motion to dismiss.
APPLICABLE LAW AND ANALYSIS
Under former article 4590i, the trial court should grant a motion to dismiss if the report does not represent a good-faith effort to comply with the definition of "expert report" in the statute. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). In determining whether the report represented a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Id. at 878. We review the court's decision to dismiss by the abuse of discretion standard. Id. at 877.
The report need only represent a good-faith effort to provide a fair summary of the expert's opinions. Id. at 878. The report does not have to marshal all of the plaintiff's proof and the plaintiff need not present evidence in the report as if it were actually litigating the merits. Id. at 879. Rather, to constitute a good-faith effort, the report must address the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff calls into question and to provide a basis for the trial court to conclude that the claims have merit. Id. at 875.
Dr. Law's report states that Bradshaw's presentation on May 31, 2000, was "fairly classic for herpetic encephalitis." He also states that not recognizing that Bradshaw had a serious illness and needed hospitalization was an "egregious error" by Dr. Gore. Dr. Law concluded: "[b]ased on reasonable probability, the institution of Acyclovir therapy at an earlier time would have prevented or ameliorated her neurologic damage." Dr. Hayden's report is even more specific as to causation. Dr. Hayden stated that Bradshaw's presentation was consistent with encephalitis and, with this presentation, Bradshaw "should have been given antibiotics, as well as empiric treatment with Acyclovir, and admitted to the hospital." He further stated that "[i]t is reasonable to believe that had therapy with Acyclovir been initiated earlier in the course of her disease, some or all of her current deficits may have been prevented." Bradshaw's reports represent a good-faith effort to summarize the causal relationship between Dr. Gore's failure to meet the applicable standards of care and Bradshaw's injury. We find these statements informed Dr. Gore of the specific conduct Bradshaw calls into question and are sufficient for the trial court to conclude that the claims against Dr. Gore have merit. We therefore hold that the trial court abused its discretion in determining that the report failed to adequately address causation. We sustain Bradshaw's sole issue.
CONCLUSION
Having sustained Bradshaw's sole issue, we reverse the dismissal of her claims and remand to the trial court for further proceedings.
DISSENTING OPINION
Lindsey Daniel Bradshaw appeals the dismissal of her medical malpractice suit for failure to file a compliant expert report. After a hearing, the trial court granted Dr. Garry Gore's motion to dismiss and dismissed the case with prejudice. Because the trial court did not abuse its discretion, we should affirm. The majority, rather than review the trial court's ruling, decides that it would not have granted the motion to dismiss. I dissent.
When considering a motion to dismiss, "the issue for the trial court is whether `the report' represents a good-faith effort to comply with the statutory definition of an expert report." American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). To constitute a "good-faith effort," the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879; Bowie, 79 S.W.3d at 52. We review a trial court's order dismissing a claim for failure to comply with the expert report requirements under an abuse-of-discretion standard. Palacios, 46 S.W.3d at 878; Bowie, 79 S.W.3d at 52.
The parties only contest whether the expert reports filed constitute a "good-faith effort" to fairly summarize the causal relationship between Gore's alleged breach and Bradshaw's injury. Both reports discuss the events leading up to Bradshaw's eventual diagnosis of herpetic encephalitis within one to two days of being seen at an emergency room on two successive days. Both reports also express disbelief in Gore's inability to make this diagnosis. The reports do not indicate when Gore treated Bradshaw. Dr. Law's report concludes:
Based on reasonable probability, the institution of Acyclovir therapy at an earlier time would have prevented or ameliorated her neurologic damage.
Dr. Hayden's report concludes:
It is reasonable to believe that had therapy with Acyclovir been initiated earlier in the course of her disease, some or all of her current deficits may have been prevented.
There is no discussion in either of these reports as to how early Acyclovir needed to be initiated and if initiated at a time when Gore treated Bradshaw what differences would have been seen in Bradshaw's mental abilities or deficiencies. We cannot infer that Gore's alleged breach prevented Bradshaw from developing less brain damage. After reviewing the reports, the trial court could have reasonably determined that the reports by Drs. Law and Hayden, much like the report reviewed in Bowie, are conclusory.
Thus, the trial court did not abuse its discretion in dismissing Bradshaw's case with prejudice. The judgment of dismissal should be affirmed. The majority simply does not agree with the trial court's ruling and therefore reverses it, thus substituting its judgment for that of the trial court's judgment. That is not a proper review under the abuse-of-discretion standard. I dissent.