Opinion
NO. 14-17-00158-CV
04-24-2018
RAMAKRISHNA VENKATA CHAVA, M.D., Appellant v. JOSHUA HUBBARD, REBECCA MEASON AND ANN HUBBARD, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN HUBBARD, Appellees
On Appeal from the 281st District Court Harris County, Texas
Trial Court Cause No. 2016-35351
MEMORANDUM OPINION
In this interlocutory appeal, Dr. Ramakrishna Chava challenges the trial court's order denying his motion to dismiss the medical malpractice claim filed by appellees Joshua Hubbard, Rebecca Meason and Ann Hubbard, Individually and on Behalf of the Estate of Jonathan Hubbard. Dr. Chava asserts in one issue that appellees failed to serve an expert report complying with section 74.351 of the Texas Civil Practice and Remedies Code because the amended expert report they served was conclusory and inadequate with respect to causation. We hold that the trial court did not abuse its discretion in denying Dr. Chava's motion to dismiss because the amended expert report states with sufficient detail the causal relationship between the alleged failure to meet the standard of care and the alleged harm resulting in Jonathan Hubbard's death. We therefore overrule Dr. Chava's sole issue and affirm the trial court's order.
BACKGROUND
Given the preliminary stage of the proceeding, we draw the background facts from the allegations in plaintiffs' live pleading and the report of their expert. The parties likewise rely on these facts.
When Jonathan Hubbard, age 67, developed a sudden onset of mid-back pain radiating to his left shoulder, he went to a stand-alone emergency room affiliated with Kingwood Medical Center. Jonathan arrived at the emergency room at 9:17 p.m. and was seen by Dr. Naim El-Aswad. Jonathan did not report a history of heart disease, but he did have coronary risk factors of age, chronic hypertension, hyperlipidemia, and excess weight. An electrocardiogram performed at 9:21 p.m. showed normal sinus rhythm but other abnormalities the expert interpreted as "consistent with acute true posterior myocardial infarction." Initial laboratory studies showed an elevated cardiac enzyme level. CT scans of his chest and abdomen came back normal.
Kingwood Medical Center is a hospital located approximately fifteen minutes away from the stand-alone emergency room.
Jonathan was given aspirin, nitroglycerin topically, and pain medications. As of 10:03 p.m., Jonathan reported continued pain "that comes and goes in back," and at 10:24 p.m., Dr. El-Aswad ordered Jonathan admitted to telemetry. An order was also given for a cardiologist to be called, but the record does not show whether the call was placed.
Admission to telemetry required transportation of Jonathan to the main hospital at Kingwood Medical Center by ambulance. For unknown reasons, the ambulance was not called until 11:28 p.m., and did not leave for the hospital until 12:01 a.m. Jonathan arrived at Kingwood Medical Center at 12:16 a.m. By the time he reached the hospital, Jonathan continued to complain of back pain and arm pain and had progressed to nausea and vomiting. He was first seen at the hospital at 12:37 a.m. and had a primary diagnosis of "Back pain; R/O myocardial infarction."
Appellees state in their brief that R/O refers to "rule out."
Jonathan was placed in a telemetry room "in observation status under the care of" Dr. Chava, but it is unclear whether Dr. Chava ever saw Jonathan. Although Jonathan had been under continuous electrocardiographic monitoring in the emergency room and during transport by ambulance, he did not receive electrocardiographic monitoring on admission to the hospital. In addition, the telemetry room in which Jonathan was placed did not have a telemetry monitor set, so the nurse that saw Jonathan on arrival left the room to obtain a monitor set. When the nurse returned to the room approximately twenty to thirty minutes later, she discovered that Jonathan had gone into cardiac arrest unwitnessed by any hospital staff. During the interval the nurse left him alone, Jonathan was "completely unmonitored by medical staff or EKG telemetry." Though cardiac pulmonary resuscitation began at 1:03 a.m., Jonathan remained without a pulse and was pronounced dead at 1:46 a.m. The death certificate states the cause of death as atherosclerotic cardiovascular disease, and an autopsy showed 95-99% obstruction in his right main and left anterior descending coronary arteries.
Appellees sued Dr. Chava, Dr. El-Aswad, and Kingwood Medical Center and related entities. Appellees asserted wrongful death and survival claims based on negligence and gross negligence. Pursuant to section 74.351, appellees served the expert report of Dr. Paul Dlabal, a board-certified internist and cardiologist. Dr. Dlabal discussed the conduct of all defendants. He opined, among other things, that "the fact that, the patient's arrest occurred in the absence of observation renders it within the category of 'unwitnessed cardiac arrest,' which is a 'never' event to occur in a hospital cardiac-care setting." With regard to Dr. Chava, he opined that the lack of physician attendance by Dr. Chava fell outside of the applicable standards of care in the emergency situation and was a proximate cause of Jonathan's death.
Appellees also sued cardiologist Dr. John R. Samuel, but later non-suited him from the case.
Dr. Chava filed objections to the report and a motion to dismiss, asserting that the report failed to state the standard of care applicable to Dr. Chava, was vague and conclusory with regard to breach of the standard of care, and was vague and conclusory with regard to causation. The trial court sustained the objections without stating its reasons, but denied the motion to dismiss and gave appellees thirty days to cure the deficiencies in the report.
Appellees then filed an amended report of Dr. Dlabal. In the amended report, Dr. Dlabal added additional information and opinions regarding Dr. Chava. As discussed in more detail below, Dr. Dlabal opined that Dr. Chava should have seen the patient on arrival, assessed symptoms, properly and timely addressed the conditions encountered to begin stabilization, and referred the patient to a cardiologist for more definitive treatment. Dr. Dlabal listed additional treatments that could have been initiated if Dr. Chava had timely examined the patient and opined that the patient would not have progressed to cardiac arrest had the standards of care been met.
Dr. Chava objected to the amended report, stating that the report remained vague and conclusory as to causation. Dr. Chava argued, among other things, that "but for" causation was missing because the report failed to address how the death would have been avoided even if Dr. Chava had initiated any treatment at his first opportunity. The trial court overruled the objections and denied Dr. Chava's motion to dismiss. This appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2017).
ANALYSIS
Dr. Chava argues that the trial court abused its discretion in denying dismissal, attorneys' fees, and costs because Dr. Dlabal's opinion is vague and conclusory with respect to causation. For the reasons set forth below, we conclude the trial court did not abuse its discretion.
I. Standard of review and applicable law
We review for an abuse of discretion a trial court's ruling on a motion to dismiss for failure to comply with section 74.351. Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).
The Texas Medical Liability Act requires a party asserting a healthcare liability claim to file an expert report and serve it on each party not later than the 120th day after the petition is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). Under the statute, an expert report means a written report that provides "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). If a plaintiff does not timely serve an expert report meeting the required elements, the trial court must dismiss the healthcare claim on motion of the affected healthcare provider. See id. §§ 74.351(b), (l); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam); Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). If elements of the report are found deficient, as opposed to absent, the court may grant a thirty-day extension to cure the deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c); Gannon, 321 S.W.3d at 885.
Although the expert report need not marshal all of the plaintiff's proof, it must include the expert's opinions on the three statutory elements of standard of care, breach, and causation. Palacios, 46 S.W.3d at 878-79; Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The report need not use "magic words" and does not have to meet the same standards as evidence offered in a summary judgment proceeding or trial. See Kelly, 255 S.W.3d at 672 ("The expert report is not required to prove the defendant's liability."); see also Jelinek v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (stating no magic words are required). Bare conclusions or speculation, however, will not suffice. See Wright, 79 S.W.3d at 52, 53; Humble Surgical Hosp., LLC v. Davis, ___ S.W.3d ___, 2017 WL 4679280, at *8 (Tex. App.—Houston [14th Dist.] Oct. 17, 2017, pet. filed).
To constitute a good-faith effort to comply with the expert report requirement, the report must provide enough information to fulfill two purposes of the statute: (1) the report must inform the defendant of the specific conduct the plaintiff has called into question and (2) the report must provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879; see also Miller, 536 S.W.3d at 513.
II. The report adequately addresses the element of causation.
The goal of section 74.351 is to "deter frivolous lawsuits by requiring a claimant early in litigation to produce the opinion of a suitable expert that his claim has merit." Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (internal quotation marks omitted). Showing a claim has merit requires an opinion that the alleged negligence of the medical provider proximately caused the plaintiff's injury. See id. Although the plaintiff need not actually prove the claim with the expert report, the report must show that the expert is of the opinion that the plaintiff can do so, including as to both foreseeability and cause-in-fact. Id.
An expert's mere ipse dixit regarding causation will not suffice; the expert must explain the basis of his or her conclusions, showing how and why a breach of the standard of care caused the injury. See id; Jelinek, 328 S.W.3d at 536. The conclusion must be linked to the facts of the case and cannot contain any gaps in the chain of causation. See Wright, 79 S.W.3d at 52; Davis, 2017 WL 4679280, at *8. We determine whether an expert opinion is sufficient under section 74.351 by considering the opinion in the context of the entire report, rather than taking statements in isolation. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (per curiam).
A. Dr. Dlabal's report
To aid our analysis of the arguments raised by Dr. Chava, we set forth the relevant portions of Dr. Dlabal's amended report, which he based on information contained in the medical records provided to him:
* * *
The patient arrived [at Kingwood Medical Center] and was first seen at [12:37 a.m.], with a primary diagnosis of "Back pain: R/O myocardial infarction." At that time, the patient continued to complain of back pain and arm pain, and had progressed to nausea and vomiting, for which he received Phenergan 12.5 mg.
The patient was placed in observation status under the care of Dr. Ramakrishna V. Chava. . . .
* * *
An adult patient, presenting with unprecedented chest or back discomfort, radiating to the left shoulder or arm, must be considered as having myocardial infarction (MI) until proven otherwise. These patient symptoms were classic for myocardial infarction. When such a patient also has an abnormal EKG, as did Mr. Hubbard, the probability of myocardial infarction is substantially increased. . . . The triad of chest or back pain, abnormal EKG, and abnormal cardiac enzymes is proof positive of the process of acute myocardial infarction.
* * *
Had the patient been continuously monitored and observed closely by nursing staff, he would have been found to have exhibited continued deterioration, would have been found to require additional medical therapy and/or urgent cardiac catheterization, and in reasonable medical probability would not have progressed to cardiac arrest. Given that he did progress to unwitnessed cardiac arrest, there was no opportunity to provide augmented medical therapy or to even begin CPR in a timely manner, thus resulting in the patient's death at the time, place, and manner in which it occurred.
Dr. Chava, as the physician of record, accepting the responsibility of
care for this patient, apparently did not see this patient on arrival or at any time prior to cardiac arrest. Furthermore, Dr. Chava did not ensure that Mr. Hubbard received consultation by a cardiologist or any treatment for his coronary condition. The standard of care applicable to a physician responsible for admitting a patient in critical condition is to see the patient on arrival, assess symptoms and signs of instability, properly and timely address the condition(s) encountered, and, where appropriate, refer to specialty care. In this case, had Dr. Chava seen the patient on arrival, in reasonable medical probability he would have recognized the presence of MI, or at least an acute coronary syndrome (unstable angina, threatened myocardial infarction), and would have been in position to insure proper monitoring of the patient, have begun initial treatment for stabilization, and referred timely to a cardiologist for definitive treatment. If the standard of care had been followed, the patient would have received proper monitoring so an event such as the one that unfortunately occurred would not go "unwitnessed," without an opportunity for immediate advanced cardiac life support. Additionally, had Dr. Chava timely examined the patient and obtained an emergent cardiology consultation, the following treatment could have been initiated: multiple simultaneous interventions directed at reducing cardiac injury or ischemia, optimizing coronary flow, relief of pain, anticoagulation to prevent further intracoronary thrombosis, and in the case of STEMI, definitive treatment to medically or mechanically reverse coronary obstruction, and vessel stabilization with angioplasty and/or stent implantation, all done acutely in the process of percutaneous coronary intervention (PCI).
As it occurred, the opportunity to assess and intervene, as above, was missed. If the aforementioned standards of care were followed, in reasonable medical probability, this event would not have progressed to cardiac arrest. Given that he did progress to unwitnessed cardiac arrest, there was no opportunity to provide augmented medical therapy or to even begin CPR in a timely manner, thus resulting in the patient's death at the time, place, and manner in which it occurred. The lack of physician attendance and intervention falls outside applicable standards of care in this emergency situation and was a proximate cause of Mr. Hubbard's death at the time and place and in the manner in which it occurred.
B. The report shows how and why Dr. Chava's alleged conduct resulted in Jonathan's death.
Dr. Chava first contends that Dr. Dlabal's causation opinion fails to connect his absence or failure to see Jonathan with Jonathan's death. Specifically, Dr. Chava argues that the opinion lacks an explanation or factual information regarding what would have been done but for Dr. Chava's absence and how those actions likely would have avoided the death. We disagree.
Dr. Dlabal states in his report that Jonathan appeared at the Kingwood Medical Center with symptoms that were "classic for myocardial infarction," and that his abnormal EKG substantially increased the probability of myocardial infarction. According to the report, Dr. Chava accepted the responsibility of care for Jonathan as a patient. The standard of care requires a physician that accepts a patient in critical condition to see the patient on arrival, assess the patient and see that the patient is stable, and, if appropriate, refer the patient to specialty care. Dr. Dlabal explained that had Dr. Chava seen Jonathan on arrival, then in reasonable medical probability he would have recognized the myocardial infarction symptoms described above (or at least an unstable coronary syndrome), ensured monitoring and begun stabilization treatment, and obtained an emergent cardiac consultation for definitive treatment. If he had done so, various treatments were available for reversing the coronary obstruction and stabilizing vessels, including angioplasty and/or stent implantation. The failure to see the patient upon arrival resulted in the lack of an ability to assess and intervene. Dr. Dlabal opined that had Dr. Chava met the standard of care, in reasonable medical probability Jonathan "would not have progressed to cardiac arrest." Dr. Dlabal further opined that the unwitnessed cardiac arrest, which is a "'never' event occurrence in a hospital cardiac-care setting," resulted in Jonathan's death. In these ways, the report links the underlying facts of the case to the alleged breach of the standard of care by Dr. Chava and explains how the breach was a substantial factor in Jonathan's death.
In Patterson v. Ortiz, the court faced a similar causation challenge and held the expert report sufficient. 412 S.W.3d 833 (Tex. App.—Dallas 2013, no pet.). The patient in Patterson went to the Family Medical Center with an upper respiratory complaint and was sent home rather than to a hospital. Id. at 834. The next day, the patient went to a hospital where he died from bilateral pneumonitis and pulmonary edema. Id. His widow brought a wrongful death and survival action against the doctor at the Family Medical Center, alleging that he failed to diagnose the condition, perform tests that would have disclosed the condition, and refer the patient for immediate treatment. Id. at 834-35.
The defendant doctor challenged the expert report on causation by arguing that the report did not explain how the failure to conduct certain tests and examinations caused the death. Id. at 838. The Dallas Court of Appeals reviewed several cases addressing the required causal link between a failure to observe, monitor, test or evaluate a patient and the patient's injury, explaining:
If the action based on the observation, monitoring, testing, and evaluating would have avoided the patient's injury, then there is a causal relationship between the failure to observe, monitor, test, and evaluate and the patient's injury. However, if that action would not have avoided the patient's injury, then there is no causal relationship between the failure to observe, monitor, test, and evaluate and the injury. Therefore, if the report states the breach of the standard of care by the physician or health care provider is the failure to monitor, observe, test, or evaluate, the report must explain what action the defendant physician or health care provider would have taken in response to the data obtained from the monitoring, testing, and evaluating that should have been performed, including passing that data to another physician or health care provider who could take action that would have altered the patient's outcome. The report must explain why the action the defendant should have taken, either by itself or in coordination with the actions of others, would have prevented the
patient's injury.Id. at 839-40.
We conclude that Dr. Dlabal's report met this requirement. Dr. Dlabal explained that had Dr. Chava met the standard of care, Dr. Chava would have recognized the signs of myocardial infarction or acute coronary syndrome, begun initial treatment for stabilization, and referred Jonathan timely to a cardiologist for definitive treatment. Upon referral, additional treatment could have been initiated, including treatment to reverse the coronary obstruction and stabilize vessels with angioplasty and/or stent implantation. The opportunity to assess and intervene was missed, and Jonathan progressed to unwitnessed cardiac arrest, resulting in his death. Thus, the report explains what information Dr. Chava would have received had he seen the patient on arrival and ensured proper monitoring, and what actions he could have taken—both himself and in coordination with a cardiologist for additional definitive treatment—that would have prevented Jonathan's cardiac arrest. See Patterson, 412 S.W.3d at 843; see also Hilton v. Wettermark, No. 14-14-00697-CV, 2015 WL 2169516, at *2 (Tex. App.—Houston [14th Dist.] May 7, 2015, no pet.) (mem. op.) (expert report sufficient when it listed standard of care, breaches of those standards, and other treatments that would have been effective to prevent injury).
Dr. Chava cites Wells v. Ashmore in support of his argument that the report fails to provide sufficient information explaining the causal link. 202 S.W.3d 465 (Tex. App.—Amarillo 2006, no pet.). In Ashmore, a patient suffered a heart attack and was transferred to a hospital in Lubbock. Id. at 466. At the time of the transfer, he was under the care of the defendant doctor. Id. The patient developed seizures and irregular heart rhythms later that night, and he died the next day. Id. The expert report, after stating the applicable standard of care and the manner in which the standard was breached, opined simply that the patient would have survived had measures been performed upon arrival or if the doctor had taken appropriate measures when first paged. Id. at 467-68. The report did not state how the patient died, however, nor explain how or why the actions of the doctor caused the death given the existence of other potentially fatal medical conditions. Id. at 468. The court stated that, without an explanation of the precise condition from which the patient died, the court was "left to only guess at the relationship between supposed bad acts on the part of the doctor and the death." Id.
We conclude that Wells does not support Dr. Chava's argument. In contrast to the report in Wells, Dr. Dlabal specified in his report that unwitnessed cardiac arrest resulted in Jonathan's death and explained how and why (through the various monitoring and treatment that could have been performed) Jonathan would not have progressed to cardiac arrest had Dr. Chava not breached the standard of care.
We conclude that two other cases relied upon by Dr. Chava are similarly distinguishable. In Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.), the expert offered no explanation of what medical information would have been revealed, what would have been done absent the complained-of omissions, or what other treatments could have or would have been effective. 141 S.W.3d at 249. As explained above, Dr. Dlabal's report supplies the information that was missing in Costello. In Taylor v. Fossett, 320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.), the expert opined that an earlier evaluation of the patient "might" have led to diagnosis of infections and treatment. 320 S.W.3d at 577. The court noted that a description of only a "possibility of causation" is not sufficient. Id.; see also Wright, 79 S.W.3d at 53. In addition, under the expert's stated standard of care, the patient was actually seen at a hospital within the time the expert claimed the patient should have been evaluated. Taylor, 320 S.W.3d at 577. The report included no factual statements showing that the doctor's alleged negligence in failing to diagnose before hospital admission resulted in the claimed injuries or would have changed the outcome. See id. at 576 ("[The expert] did not assert in his report that had Fossett been re-evaluated by Dr. Taylor within 48 hours of her post-operative office visit, she would have avoided hospitalization and surgical treatment."). In contrast, Dr. Dlabal's report does not speak in terms of "possibility of causation," and it provides the facts underlying his opinion that, had Dr. Chava been present and provided the listed treatments required under the applicable standard of care, the event would not have progressed to an unwitnessed cardiac arrest resulting in Jonathan's death.
Dr. Chava argues that "[n]one of these statements express that this missed opportunity was a substantial factor in bringing out the arrest and death of Mr. Hubbard." We disagree. The report expressly states that if the treatment meeting the standard of care occurred, "in reasonable medical probability, this event would not have progressed to cardiac arrest." The report also states in summary that the care received at Kingwood Medical Center fell outside the applicable standards and "did preclude application of necessary treatments which, in reasonable medical probability, would have allowed and supported survival." Further, "[t]he failure to apply such observations and treatments led to progression of myocardial infarction, according to the natural history of disease, and ultimately to unwitnessed cardiac arrest. . . ." The trial court did not abuse its discretion in holding these statements sufficient at this preliminary stage to satisfy section 74.351. See Hilton, 2015 WL 2169516, at *5; see also Bustillos v. Rowley, 225 S.W.3d 122, 130 (Tex. App.—El Paso 2005, pet. denied) (trial court could find report adequate that opined had ER physician timely monitored patient with cardiac monitor and other indicators, "appropriate treatment" could have been started and prevented cardio-vascular collapse).
C. The opinion has no gaps or missing inferences and moves beyond mere ipse dixit.
Dr. Chava next argues that impermissible gaps exist in the causal connection based upon the timing of events and the lack of information on what communications were made to Dr. Chava. He cites Dr. Dlabal's statements earlier in the report that treatment within 90 minutes of symptoms is optimal, pointing out that Jonathan was not brought to Kingwood Medical Center until approximately 3 hours after presentation to the stand-alone emergency room, and that Dr. Chava had, at most, between 23 and 44 minutes before Jonathan's cardiac arrest to make a difference.
Dr. Chava is correct that an expert report is not sufficient if it leaves gaps in or requires inferences to establish the causal connection. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 281 (Tex. App.—Austin 2007, no pet.) (expert report that required reader to infer or make educated guess as to which of two doctors breached standard of care and caused injury was not adequate). In this case, the report does not contain such gaps.
Though the report states that treatment within 90 minutes yields "optimal results" and that any delay in treatment is "deleterious to outcome," the word optimal does not imply that treatment after 90 minutes would have made no difference. Moreover, Dr. Dlabal explains elsewhere in the report what Dr. Chava could have done upon Jonathan's arrival so that Jonathan "would not have progressed to cardiac arrest," namely: ensure proper monitoring, begin initial stabilization, and obtain an emergency cardiac consultation. Given that Jonathan did progress to unwitnessed cardiac arrest, Dr. Dlabal explains that Dr. Chava missed the "opportunity to provide augmented medical therapy or to even begin CPR in a timely manner, thus resulting in the patient's death at the time, place, and manner in which it occurred."
Dr. Dlabal also explained that treatment was likely to be effective in Jonathan's particular case: "Given that the patient had but one coronary occlusion causing cell injury, in reasonable medical probability, it is likely that intracoronary thrombolysis, coronary angioplasty, and/or stent implantation (singly and/or in combination) would have been highly effective in terminating myocardial infarction and restoring coronary blood flow. Patients so treated have survival in excess of 95%."
Dr. Chava may disagree that any actions by him could have made a difference, but that is not the standard for determining the adequacy of an expert witness report. See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 200 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding fact that evidence later proves expert wrong does not provide basis for holding report insufficient); see also Miller, 536 S.W.3d at 516 (stating "[t]he court of appeals' real concern appears to be the believability of Dr. Albright's articulated standards of care, not the manner in which she stated them. Our inquiry is not so exacting."). The report explains how the lack of attendance and monitoring by Dr. Chava made a difference in Jonathan's outcome, thus satisfying section 74.351. See Patterson, 412 S.W.3d at 843; see also Thomas v. Alford, 230 S.W.3d 853, 859 (Tex. App.—Houston [14th Dist.] 2007, no pet) (expert's conclusion on causation sufficient when it set forth how delay in diagnosis of lung cancer allowed tumor to progress to stage IV, eliminating opportunity for curative therapy).
Dr. Chava also argues that the report contains gaps because it fails to show that he was told of Jonathan's arrival or that his condition was critical. The report does, however, state that Dr. Chava accepted responsibility for care of Jonathan, and it explains the standard of care applicable to a physician accepting care of a patient in this setting. Dr. Chava does not challenge Dr. Dlabal's report regarding the applicable standard of care or breach of the standard. Whether Dr. Dlabal is correct that Dr. Chava accepted the care of Jonathan and whether the stated standard of care is reasonable under the circumstances is not relevant to our analysis at this stage. See Miller, 536 S.W.3d at 516-17 ("At this preliminary stage, whether those standards appear reasonable is not relevant to the analysis of whether the expert's opinion constitutes a good-faith effort.").
Finally, Dr. Chava argues that Dr. Dlabal's opinion on causation is mere ipse dixit that will not satisfy section 74.351. An expert's bare assertion that a breach of the standard of care caused the injury, of course, will not suffice. Jelinek, 328 S.W.3d at 539 ("An expert cannot simply opine that the breach caused the injury."). The expert must state the basis for the conclusions and link the conclusions to the facts. Id.
We conclude that Dr. Dlabal's report does so. As discussed in detail above, Dr. Dlabal explains why Dr. Chava's absence upon Jonathan's arrival and his failure to ensure proper monitoring or treatment allowed Jonathan to progress to unwitnessed cardiac arrest, resulting in his death. The report provides the factual background of how Jonathan came to the hospital, the symptoms he exhibited that would have shown myocardial infarction or acute coronary syndrome, the lack of physician attendance or proper monitoring, the standard of care that if followed would in reasonable medical probability have avoided cardiac arrest, and how the lack of any treatment allowed the myocardial infarction to progress to cardiac arrest. Because the cardiac arrest was unwitnessed, there was no opportunity for timely cardiopulmonary resuscitation and Jonathan died.
In his reply brief, Dr. Chava relies heavily on the proximate cause analysis in Columbia Valley Healthcare System, L.P. v. Zamarripa, 526 S.W.3d 453 (Tex. 2017). In Zamarripa, a pregnant mother with placental accreta suffered cardiac arrest while being transported from Valley Regional to another hospital. Id. at 457. The Supreme Court of Texas held the expert report failed to set forth sufficiently facts establishing proximate cause as to Valley Regional because the expert report did not state how the hospital, through its nurses, would have had the authority to stop the transfer. Id. at 461. The court observed:
[A]s [plaintiffs' medical expert Dr.] Harlass himself explains, it was [the mother's original doctor] Dr. Ellis who ordered Flores's transfer, not Valley Regional. Harlass does not explain how Valley Regional permitted or facilitated Flores's transfer, or even whether Valley Regional had any say in the matter. . . . Neither [expert] explains how Valley Regional had either the right or the means to persuade Dr. Ellis not to order the transfer or to stop it when he did.Id. at 461.
Unlike the report in Zamarripa, Dr. Dlabal's report states sufficient facts linking Dr. Chava's failure to meet the standard of care to the harm claimed. The report states that Dr. Chava had responsibility for the care of Jonathan as the physician of record, and it explains the standard of care applicable to Dr. Chava and how it was breached. There is no indication in the record that Dr. Chava lacked the authority to ensure that the standard of care was followed. If the appropriate standards of care had been followed, Dr. Dlabal opined, "this event would not have progressed to cardiac arrest."
Dr. Chava complains that the report does not state how he was "to have ensured continuous ECG monitoring/telemetry or cardiac consult, when the patient had already been ordered to be on telemetry and a cardiac consult had been requested," or how he could have accomplished the treatment when the report does not state if or when when Dr. Chava was notified of the patient. The report does, however, state that Dr. Chava accepted responsibility for the care of Jonathan, and it explains the standard of care applicable to a physician responsible for admitting a patient in critical condition. According to the report, it was Dr. Chava's responsibility to see Jonathan on arrival, assess his symptoms, timely address the conditions encountered, and refer to specialty care as appropriate. Dr. Chava did none of these things. As Dr. Dlabal explains, had Dr. Chava seen Jonathan on arrival, he would have been in a position to ensure proper monitoring, begin initial treatment for stabilization, and ensure a cardiac consult. Explaining in detail the various steps Dr. Chava could have taken to receive notice of new patients and have orders carried out is not required to inform Dr. Chava of the complained-of conduct or to provide a basis for the trial court to determine whether the claims have merit at this early stage. See Hilton, 2015 WL 2169516, at *4. We conclude that the trial court did not abuse its discretion in denying Dr. Chava's motion to dismiss. We therefore overrule his issue on appeal.
As noted above, an order was given at the stand-alone emergency room for a cardiologist to be called, but the record does not show whether the call was placed.
CONCLUSION
Having overruled Dr. Chava's sole issue on appeal, we affirm the trial court's order denying the motion to dismiss.
/s/ J. Brett Busby
Justice Panel consists of Justices Jamison, Busby, and Donovan.