Opinion
No. 01-04-00013-CV
Opinion issued September 23, 2004.
On Appeal from the 125th District Court, Harris County, Texas, Trial Court Cause No. 2003-24781.
Bryan Monroe Denison; McGlynn, Glisson Koch; Scott H. Fruge deGravelles, Palminter, Holthaus Fruge', Baton Rouge, LA, for Appellant.
Cameron P. Pope, Jeffrey B. McClure, Andrews Kurth, LLP; Richard M. Law, Michelle Marie Samadany-Farme; Dunn, Kacal, Adams, Pappas Law, P.C.; Houston TX, for Appellee.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
MEMORANDUM OPINION
Appellant, James M. Ciaravella III, challenges the trial court's orders dismissing, with prejudice, his medical malpractice lawsuit against appellees, Dr. Stanley H. Appel, The Methodist Hospital (Methodist), and Baylor College of Medicine (Baylor) (collectively, the defendants). In three issues, Ciaravella contends that the trial court erred in dismissing his lawsuit because he timely filed his expert report, which complied with the substantive requirements of the former Texas Medical Liability and Insurance Improvement Act (former article 4590i), and, alternatively, the trial court abused its discretion in denying Ciaravella's request for an extension of time in which to correct any deficiencies in his expert report.
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, (formerly codified at Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 1.01-16.02), repealed by, Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884 (hereafter "former article 4590i"). Many of the provisions of former article 4590i have been re-codified in the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.001-74.507 (Vernon Supp. 2004-2005). However, a medical malpractice suit that was filed before September 1, 2003, such as the present case, "is governed by the law in effect immediately before" the changes in the law that were made by the Legislature. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864, 899.
We affirm.
Factual and Procedural Background
In May 2003, Ciaravella filed a medical malpractice lawsuit against the defendants. In his original petition, Ciaravella alleged that, in March 2001, he had sought treatment at Methodist for "a 'bite' on his forearm, mid upper back pain, scrotal/testicular pain, grinding of joints and occasional muscle aches." Ciaravella further alleged that, during his three-day stay at Methodist, Dr. Appel treated him and diagnosed muscular dystrophy. After he was discharged, Ciaravella learned that the results of a muscle biopsy confirmed that he did not have muscular dystrophy. Ciaravella further alleged that, in May 2001, he was diagnosed as having Lyme disease.
The record indicates that, at the time that he treated Ciaravella, Dr. Appel, a neurologist, was employed by or affiliated with Baylor.
It is not clear from the record whether the defendants or another healthcare provider diagnosed Ciaravella's Lyme disease.
Ciaravella alleged that the defendants were negligent in failing to diagnose and treat his Lyme disease properly and in initially misdiagnosing his condition as muscular dystrophy. He also alleged that, as a result of the defendants' breach of their duty of care, he "suffered severe and debilitating damages to his entire body . . . underwent unnecessary procedures, suffered great physical pain, mental anguish, and irreparable physical and mental damages. . . ."
In support of his allegations, Ciaravella submitted an expert report signed by Dr. Gene O. Neri. The report reads in relevant part, as follows:
1. It is my belief that [Dr. Appel] failed to properly test and diagnose [Ciaravella] with Lymes disease in spite of being given an extensive history by the patient and despite being specifically requested by the patient to be tested for Lymes disease. In addition, he failed to maintain adequate medical records and failed to obtain complete medical records. As a result the disease progressed causing the patient further illness and permanent injury. When proper and timely medical treatment would have arrested the disease more likely than not, at that point in time.
2. It is my belief that [Baylor] failed to properly test and to diagnose and to treat [Ciaravella], who is affected with Lymes disease. This occurred despite the institution being given extensive history by the patient and despite specifically being requested to be tested for the disease in question. They failed to maintain adequate medical records and failed to obtain the complete medical records which were readily available.
3. That [Methodist] in Houston, Texas failed to properly test diagnose and treat Lymes disease in [Ciaravella] in spite of being given an extensive history and specifically being requested by the patient to be tested for that specific disease. In addition they failed to obtain complete medical records and failed to maintain adequate records.
This is my belief within a reasonably [sic] degree of medical certainty.
The defendants subsequently filed separate motions to dismiss Ciaravella's claims on the grounds that Dr. Neri's expert report was untimely, inadequate, and did not meet the statutory requirements of former article 4590i. In their motions, the defendants asserted that Dr. Neri's report failed (1) to describe the applicable standards of care, (2) to identify the specific conduct that allegedly breached the applicable standards of care, and (3) to explain how that conduct constituted a breach of the applicable standards of care or caused injury or damages to Ciaravella. On December 9, 2003, in two separate orders, the trial court granted the motions and dismissed, with prejudice, Ciaravella's claims against the defendants.
Standard of Review
We review a trial court's dismissal of a healthcare liability claim under former article 4590i using an abuse-of-discretion standard. Am. Transitional Care Centers of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Powers v. Mem'l Hermann Hosp. Sys., 81 S.W.3d 463, 465 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Powers, 81 S.W.3d at 465.
Expert Report Requirement
In his second issue, Ciaravella argues that the trial court erred in dismissing his claims against the defendants if it did so on the grounds that Dr. Neri's report failed to provide the defendants with "fair notice" of Ciaravella's claims and did not represent a "good faith effort" to comply with the statutory requirements of former article 4590i.
Section 13.01(a) of former article 4590i requires that a plaintiff file either an expert report or a $5,000 cost bond for each defendant physician or healthcare provider within 90 days of filing suit. Within 180 days after filing suit, a plaintiff must either provide each defendant physician or healthcare provider with an expert report, along with the expert's curriculum vitae, or nonsuit the claims.
Former article 4590i, § 13.01(a).
Id. § 13.01(d).
In their motions to dismiss Ciaravella's claims, the defendants argued that Dr. Neri's report failed (1) to describe the applicable standards of care, (2) to identify the specific conduct that allegedly breached the applicable standards of care, and (3) to explain how that conduct constituted a breach of the applicable standards of care or caused injury or damages to Ciaravella.
A trial court must grant a defendant's motion challenging the adequacy of an expert report filed by a plaintiff if "it appears to the court . . . that the report does not represent a good faith effort to comply with the definition of an expert report." Former Article 4590i defines an expert report as "a written report by an expert that provides a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and causal relationship between that failure and the injury, harm, or damages claimed." If a trial court determines that an expert report does not meet the statutory requirements and that the time for filing a report has passed, the court must then dismiss, with prejudice, the claims against the defendant who challenged the report.
Id. § 13.01( l).
Id. § 13.01(r)(6).
Id. § 13.01(e).
To constitute a "good-faith effort," a report must provide enough information (1) to "inform a defendant of the specific conduct the plaintiff has called into question" and (2) to "provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 879. A report that merely states an expert's conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Id.
In determining whether an expert report is adequate, a trial court should look no further than the report itself because all of the information relevant to the inquiry is contained within the document's four corners. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The report need not marshal the plaintiff's proof, but it must include the expert's opinion on each of the three elements that former article 4590i identifies: standard of care, breach, and causal relationship. Id. A report cannot merely state the expert's conclusions about these elements. Id. "[R]ather, the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). With regard to the importance of expert testimony in medical malpractice cases, the Texas Supreme Court has noted:
Because expert testimony is crucial to a medical malpractice case, knowing what specific conduct the plaintiff's experts have called into question is critical for both the defendant's ability to prepare for trial and the trial court's ability to evaluate the viability of the plaintiff's claims.
Palacios, 46 S.W.3d at 876-77.
Here, Ciaravella asserts that Dr. Neri's report cannot "set forth the standard of care and a breach of that standard in a more obvious manner" and "[i]t is abundantly clear to anyone reading the report of Doctor Neri that the standard of care of a neurologist required Dr. Appel to properly diagnose Lyme Borrelosis from the detailed medical chronology presented to him, the tick-like bite on [Ciaravella's] arm and the bull's eye rash accompanying that bite." However, our review of the sufficiency of a plaintiff's expert report is confined to the four corners of the report itself. Bowie Mem'l Hosp., 79 S.W.3d at 52. As set out above, Dr. Neri's report does not identify or explain the standard of care applicable to the defendants, does not identify the details in Ciaravella's medical history that should have led Dr. Appel to a proper diagnosis, does not identify or explain what specific treatment the defendants should have provided Ciaravella, and does not explain how the alleged failure to diagnose Ciaravella's Lyme disease properly proximately caused him to sustain injuries or damages.
Dr. Neri's report did not provide sufficient information to inform the defendants of the specific conduct that Ciaravella alleged was negligent and did not provide a basis for the trial court to conclude that the claims had merit. See Palacios, 46 S.W.3d at 879. Rather, Dr. Neri's report merely stated his conclusions that the defendants had breached the standard of care, without any description defining the applicable standards of care and treatment or their breach, and without any explanation of how the breach proximately caused Ciaravella's damages. Thus, the report did not constitute a "good faith effort" to comply with former article 4590i's statutory definition of an expert report." See id.
Id. § 13.01( l).
Accordingly, we hold that the trial court did not abuse its discretion in dismissing Ciaravella's claims against the defendants because the record indicates that Dr. Neri's report did not meet the statutory requirements of former article 4590i regarding expert reports.
In his pleadings before the trial court and in his briefing to this Court, Ciaravella also argues that he "properly filed" an expert report signed by Dr. Charles S. Crist on November 14, 2003. However, no such report appears in the record. Moreover, assuming that Dr. Crist's report was filed in the trial court as asserted, November 14, 2003 is more than 180 days after the date on which Ciaravella filed his lawsuit and, thus, such a report would be considered to have been filed untimely under the statutory requirements of former article 4590i.
We overrule Ciaravella's second issue.
Opportunity to Amend
In his third issue, Ciaravella asserts that his trial counsel "did not act with conscious indifference or intentional disregard" in submitting Dr. Neri's report and that "this Court has the authority, under [former] article 4590i . . . to extend the time within which to cure the alleged defects" in Dr. Neri's report. Because this Court has no power to grant Ciaravella an extension of time in which to file an expert report, we construe this issue as a contention that the trial court abused its discretion in refusing Ciaravella's request for an extension of time.
Section 13.01(g) of former article 4590i requires a trial court to grant a plaintiff a 30-day grace period to comply with the requirements of section 13.01(d) if the failure to file an adequate expert report is "not intentional or the result of conscious indifference but was the result of an accident or mistake." A trial court's refusal to grant such an extension of time is reviewed for abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 61 (Tex. 2003). To establish an abuse of discretion, the plaintiff must show that, in light of the circumstances of the case, the trial court acted arbitrarily or unreasonably and without reference to any guiding rules and principles. Id. at 62.
Id. § 13.01(g).
Here, Ciaravella did not set forth any explanation in his pleadings to the trial court, nor in his briefing to this Court, as to how the filing of Dr. Neri's report was the result of an accident or a mistake. Rather, Ciaravella argues that the substance of Dr. Neri's report complied with the statutory requirements of former article 4590i. Accordingly, we hold that the trial court did not abuse its discretion in denying Ciaravella's request for a 30-day extension of time in which to file an adequate expert report.
We overrule Ciaravella's third issue.
Conclusion
Having held that the trial court did not abuse its discretion in dismissing Ciaravella's claims against the defendants because the record indicates that Dr. Neri's report did not meet the substantive, statutory requirements of former article 4590i, we need not reach Ciaravella's first issue, in which he contends that he timely filed Dr. Neri's report and provided it to the defendants.
We affirm the trial court's judgment, comprised of its two orders of dismissal.