Opinion
NO. 09-16-00071-CV
04-20-2017
DOYLE J. ELEVENS JR., Appellant v. EMAD MIKHAIL EISHAI, THE WOODLANDS PAIN INSTITUTE, BONAVENTURE NGU AND PREMIER SPINE INSTITUTE, PLLC, Appellees
On Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 15-04-03842-CV
MEMORANDUM OPINION
Doyle J. Blevins Jr. (Blevins or Plaintiff or Appellant) appeals the trial court's orders sustaining defendants' objections to Blevins's expert reports and granting their motions to dismiss Blevins's health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2017). Blevins raises five issues on appeal, arguing (1) that the trial court erred by granting Appellees' motions to dismiss without first holding a hearing on the sufficiency of Blevins's expert report, (2) that the trial court erred by determining that the expert report was served without leave of court, (3) that the trial court erred by dismissing Ngu and Premier Spine Institute, PLLC because they failed to challenge the final expert report and thereby waived their objections, (4) that the trial court abused its discretion in finding that Dr. Mallory was not qualified to render an opinion under the statute, and (5) that the trial court abused its discretion in determining that the expert report was insufficient under section 74.351. The Appellees raise cross-issues concerning the trial court's order granting an extension of time and the statute of limitations. We affirm.
We cite to the current version of statutes, as subsequent amendments do not affect the disposition of this appeal.
PROCEDURAL BACKGROUND
Allegations in Original Petition
On April 16, 2015, Blevins filed Plaintiff's Original Petition and Request for Disclosure (Original Petition) against defendants Emad Mikhail Bishai, M.D. (Dr. Bishai), The Woodlands Pain Institute (WPI), Bonaventure Ngu, M.D. (Dr. Ngu), Premier Spine Institute, PLLC (PSI), Spine Frontier, Inc. (SF), and Invibio, Inc. (Invibio). In his Original Petition, Blevins asserted a medical negligence claim against Dr. Bishai and WPI (collectively "the Bishai Defendants" or "Bishai Appellees") and against Dr. Ngu and PSI (collectively "the Ngu Defendants" or "Ngu Appellees").
The Original Petition also asserted various tort and contract claims against SF and Invibio. However, SF and Invibio are not parties to this appeal, and we need not address the allegations or claims against them herein.
The parties do not dispute that Dr. Bishai administered epidural steroid injections to Blevins and that, sometime thereafter, Dr. Ngu performed certain surgeries or procedures on Blevins. Blevins alleged in his Original Petition that Dr. Bishai was a "spine specialist" who treated Blevins for "extreme chronic lower back pain[]" at WPI's facilities between November 12, 2012, and February 1, 2013. On November 12 and 27, 2012, Dr. Bishai administered a lumbar epidural injection to Blevins's lower back or spine. According to Blevins, on January 15, 2013, Blevins visited Dr. Bishai, complaining that the pain persisted, and pursuant to Dr. Bishai's recommendation, Blevins underwent an MRI of his lumbar spine without contrast. According to the Original Petition, when Dr. Bishai met with Blevins on February 1, 2013, to discuss the MRI results, Dr. Bishai "refuse[d]" to treat Blevins further and advised Blevins to find another spine specialist.
Blevins alleged that on February 4, 2013, another person not named in the lawsuit performed another MRI with contrast on Blevins. Blevins contends that he continued to experience "extreme" pain, and his primary care physician referred him to Dr. Ngu. Blevins alleged that he visited Dr. Ngu at PSI's facilities on February 15, 2013, and on February 22, 2013, and, thereafter, Dr. Ngu performed lower back surgery on Blevins that included several procedures as well as the installation of "pedicle screws [and] instrumentation[.]"
After the surgery, Blevins visited Dr. Ngu again on March 12, 2013, and Dr. Ngu noted that Blevins's surgical wound was not healing. Dr. Ngu saw Blevins again on July 30, 2013, and at that time he noted that Blevins complained of radiating "electrical shooting pains[.]" Dr. Ngu then examined Blevins on August 29, 2013, and according to Blevins, Dr. Ngu recommended another MRI, after which Dr. Ngu recommended "hardware removal[.]"
Blevins alleged that on September 4, 2013, Dr. Ngu "attempted . . . corrective surgical procedures[]" on Blevins to "revise [] defective hardware" and also performed additional surgical procedures on Blevins. Blevins complained of continued pain when he saw Dr. Ngu post-operatively in October and November 2013. Dr. Ngu recommended a lumbar CT scan. Blevins met with Dr. Ngu on December 3, 2013, to discuss the results of the CT scan, and, according to the Original Petition, Dr. Ngu noted that "the squeaking and popping sound coming from Plaintiff's back was [] likely a result of one [] set [of] screws being loose and the rod sliding through the tulip of the screw[.]" Dr. Ngu then recommended another procedure to "explore the defective hardware[.]" Dr. Ngu performed revisionary surgery again on January 24, 2014.
In a post-operative visit on March 19, 2014, Blevins contends that he complained to Dr. Ngu that "the hardware feels like it is coming loose and/or off, again[,]" and Blevins underwent another lumbar CT scan that same day, performed by a non-party to this lawsuit. Blevins alleges that at a May 1, 2014, post-operative visit with Dr. Ngu, Blevins advised Ngu that the hardware was still making noises, and Dr. Ngu suspected this was due to "a broken pedicle screw." Dr. Ngu then recommended an additional surgery to implant a "stand-alone cage[.]"
According to the Original Petition, in a May 13, 2014 pre-operative discussion, Blevins complained of continued pain and an audible clicking sound in his lower back, and Dr. Ngu "noted that there was unspecified mechanical complication of internal orthopedic device." On May 19, 2014, Dr. Ngu performed additional surgical procedures on Blevins.
On July 9, 2014, Blevins visited Dr. Ngu and complained of continued lower back pain and an "extremely painful" sensation of a loose screw in his back. The Original Petition alleges that, at this visit, "Dr. Ngu informed Plaintiff that he refuse[d] to treat Plaintiff any further[.]" The Original Petition, filed on April 16, 2015, did not recite any additional treatment Blevins received, but alleged that Blevins "is currently experiencing extreme and persistent pain" and is currently disabled and unable to work due to his injuries.
Blevins alleged that Bishai and Ngu breached their duties of care and caused Blevins's injuries by the following acts or omissions:
a. Failing to diagnose Plaintiff's condition properly;The Original Petition asserted claims for direct and vicarious liability against WPI and PSI and alleged that the Bishai and Ngu Defendants' negligent conduct "was the sole proximate cause of Plaintiff's spinal injuries and continued deterioration of Plaintiff's spinal condition."
b. Failing to choose an appropriate procedure;
c. Failing to treat Plaintiff's condition properly;
d. Failing to provide the medical care reasonably required for Plaintiff's condition;
e. Failing to consult a specialist;
f. Failing to properly monitor Plaintiff;
g. Failing to take precautions to prevent further injury to Plaintiff; and
h. Abandoning Plaintiff.
The Bishai Defendants filed an answer on May 1, 2015, entering a general denial and asserting various defenses. On May 12, 2015, the Ngu Defendants filed an answer, also entering a general denial and asserting various defenses.
On July 6, 2015, the Bishai Defendants filed a motion for summary judgment arguing that Blevins's claim against the Bishai Defendants was barred by the statute of limitations and that Blevins's "Authorization for the Release of Protected Health Information" accompanying his notice letter was "fatally defective." On September 2, 2015, Plaintiff filed a response to the Bishai Defendants' motion for summary judgment. On September 7, 2015, Plaintiff filed an amended response to the Bishai Defendants' motion for summary judgment, requesting oral argument on the motion. On September 8, 2015, the Bishai Defendants filed a reply to Plaintiff's responses to the motion for summary judgment. The merits of the motion for summary judgment are not currently before us on appeal.
On August 19, 2015, the Ngu Defendants filed a plea in abatement, requesting that the trial court suspend the proceedings for sixty days because Blevins failed to give the defendants the required release form. The court granted the plea in abatement on October 2, 2015. Section 74.052 of the Texas Civil Practice and Remedies Code requires that a plaintiff making a health care liability claim must provide a signed form authorizing the release of protected health information, and a defendant physician or health care provider that does not receive a compliant release form may request the proceedings be abated until sixty days following receipt of a complaint release form. See Tex. Civ. Prac. & Rem. Code Ann. § 74.052 (West Supp. 2017). The parties do not raise any appellate issues pertaining to the section 74.052 release.
Dr. Baule's Expert Report
On August 28, 2015, Plaintiff filed a report and curriculum vitae (CV) of Raymond M. Baule, M.D. (Dr. Baule) (Baule Report). The Baule Report was fairly short. It stated the following:
The following are the responses to queries in the matter of Doyle Belvins [sic]:
1. Did Dr. Bishai fall below the standard of care by not using proper imaging (MRI with contrast, or otherwise) and taking proper precautions[?]
2. Can it be determined with the images provided, that there is clear, distinctive indication of the injection being administered directly into the cyst?
3. Is it possible that the steroid injection into Mr. Blevins' spine exacerbated his condition, which resulted in further disk degeneration and surgeries?
1. It appears that Dr. Bishai was within the standard of care in his administration of the epidural steroid. It is reasonable to perform an epidural steroid injection based upon clinical presentation without an MRI scan.
. . . .
2. The images provided are insufficient to determine if cyst injection is indicated. Injection and aspiration of a spinal synovial cyst is an acceptable treatment for a symptomatic synovial cyst.
. . . .
Dr. Baule's CV was attached to the report and it reflected, among other credentials, that he was currently practicing as a neurological surgeon. There was no mention of Dr. Ngu in the Baule Report.
3. Epidural injections are a widely employed modality as a treatment of spinal etiology pain. The injections did not exacerbate the condition, for which they were performed, nor did they result in the necessity for the eventual surgery.
The statements contained herein are based solely upon the medical records provided. Should any other records exist, the contents of this opinion may be modified or retracted in part or completely.
On October 21, 2015, Plaintiff de-designated Dr. Baule as an expert witness.
Plaintiff's Motion for Extension to Cure Deficient Expert Report
On August 31, 2015, Plaintiff filed a motion for an extension of time to cure what Plaintiff described as a "deficient expert report" and to compel discovery. The motion alleged that Plaintiff had timely filed an expert report on August 28, 2015, but that the expert report was deficient "due to Defendant Bishai's intentional and knowing failure to provide the entire set of medical records pertaining to Plaintiff[.]" Plaintiff asked the trial court to compel production of medical notes and records from Dr. Bishai regarding his treatment of Blevins and requested a thirty-day extension to cure the deficiencies in the expert report.
Plaintiff's Amended Motion for an Extension to Cure Deficiencies and Order Granting
On September 7, 2015, Plaintiff filed an amended motion for an extension to cure deficiencies in his expert report. In his amended motion, Plaintiff complained of "non-cooperation in discovery proceedings and the intentional spoliation of evidence" by the Bishai Defendants. Plaintiff asserted that the expert report filed on August 28, 2015, was deficient as a result of the Bishai Defendants' failure to provide complete medical records. Plaintiff also requested a thirty-day extension to cure deficiencies in the expert report, requested the court to compel the Bishai Defendants to produce all of Blevins's medical records and notes, and requested imposition of sanctions for spoliation of evidence.
On September 9, 2015, Plaintiff filed a First Amended Petition and Requests for Disclosure (Amended Petition) in which he added allegations that on February 7, 2013, Blevins visited Dr. Bishai to discuss MRI results, that Dr. Bishai did not review the MRI results with Blevins, and that Dr. Bishai then referred Blevins to physical therapy. The Amended Petition also claimed that Dr. Bishai negligently failed to review the MRI, referred Blevins for physical therapy "when surgery was indicated[,]" and failed to refer Blevins for "minimally invasive surgery for the removal of one or more cysts[,] which resulted in Plaintiff ultimately seeking medically unnecessary surgeries, resulting in permanent disability[.]" On October 2, 2015, the trial court signed an order granting Blevins a thirty-day extension to cure the deficient expert report.
Expert Reports of Dr. Mallory
On September 8, 2015, Plaintiff filed the first expert report from G. Edward Mallory, D.O. (Dr. Mallory) together with his CV (First Mallory Report). Dr. Mallory's CV reflected that he is board-certified by the American Osteopathic Board of Emergency Medicine and that he was actively practicing as an attending physician in emergency medicine at a hospital in Florida. Plaintiff attached another report of Dr. Mallory to the First Amended Petition filed on September 9, 2015 (Second Mallory Report). Plaintiff also filed the Second Mallory Report on September 10, 2015. On September 15, 2015, Plaintiff filed another report from Dr. Mallory (Third Mallory Report). And, then on October 23, 2015, Plaintiff filed the last report from Dr. Mallory (Fourth Mallory Report).
Objections to the Expert Reports and Motions to Dismiss
1. Bishai Defendants' Objections and Motions to Dismiss
On September 9, 2015, the Bishai Defendants filed a response to Plaintiff's motion for an extension of time, objections to Dr. Baule's report, and a motion to dismiss (First Bishai Motion). Therein, the Bishai Defendants argued that Dr. Baule was not qualified under Chapter 74 as his CV reflected no "familiarity with" pain management, which is Dr. Bishai's specialization. The First Bishai Motion also argued that Dr. Baule's report was "no report at all[]" because it lacked statements of breach and causation and established "Dr. Bishai's adherence to the relevant standard of care[.]" The Bishai Defendants requested the court to dismiss all claims against them because Plaintiff had failed to provide an expert report in compliance with section 74.351.
On September 29, 2015, the Bishai Defendants filed objections to Dr. Mallory's reports and a second motion to dismiss (Second Bishai Motion). Addressing Dr. Mallory's qualifications, the Bishai Defendants argued that Dr. Mallory's reports and CV do not "demonstrate or otherwise state his expertise in pain management in general or in the context of a physician treating a chronic pain sufferer, such as Dr. Bishai." The Bishai Defendants argued that Dr. Mallory had not outlined the standard of care for a pain management specialist "beyond rank ipse dixit[]" nor had Dr. Mallory made any statement connecting any alleged negligence by Dr. Bishai to Plaintiff's injuries. Finally, the Bishai Defendants argued in part that Dr. Mallory's reports were untimely as they were all served after August 28, 2015 (the 120th day following Plaintiff filing his Original Petition) and the court had not granted Plaintiff an extension of time to cure deficiencies in the Baule Report. The Bishai Defendants asked the court to strike the Mallory reports as untimely and to dismiss Plaintiff's claims against them.
Plaintiff filed a response to the Second Bishai Motion on October 2, 2015. Plaintiff argued that Dr. Mallory was qualified inasmuch as "Dr. Mallory's field of medicine is broad, and he must have expertise in many different facets of medicine in order to treat the wide variety of conditions he is exposed to and expected to treat, including pain." Plaintiff also argued that the Second Mallory Report was a good faith effort under the statute as it detailed the specific conduct by Dr. Bishai that Plaintiff called into question and it provided a basis for the trial court to conclude that Plaintiff's claims have merit. Plaintiff also argued that any untimeliness was a result of the Bishai Defendants' intentional and knowing failure to provide complete medical records and that section 74.351(c) permits a court to grant a thirty-day extension to cure deficiencies in an expert report.
On November 6, 2015, the Bishai Defendants filed a third motion to dismiss (Third Bishai Motion). The Third Bishai Motion objected that Plaintiff served the Fourth Mallory Report after the trial court had entered an order abating the proceedings. The Bishai Defendants also objected that Dr. Mallory had not demonstrated "any proficiency in chronic pain management or orthopedics[.]" The Third Bishai Motion also objected that Dr. Mallory never explained any causal link between Dr. Bishai's conduct and Plaintiff's injuries, never distinguished causation by Dr. Bishai's conduct from causation by Dr. Ngu's conduct, and was impermissibly conclusory as to causation.
2. Ngu Defendants' Objections and Motion to Dismiss
On September 18, 2015, the Ngu Defendants filed objections to Plaintiff's expert report and a motion to dismiss. The Ngu Defendants argued that the expert report by Dr. Baule "does not even discuss the treatment performed by Defendants nor name Dr. Ngu or [PSI] at all[]" and was "no report" as to the Ngu Defendants. Addressing Dr. Mallory's reports, the Ngu Defendants argued that the "live" report at the time was the Third Mallory Report, which "fail[ed] to mention Dr. Ngu[.]" Therefore, the Ngu Defendants argued that the Third Mallory Report constituted "no report" under Chapter 74. The Ngu Defendants also addressed the Second Mallory Report and argued that Dr. Mallory, as an emergency medicine specialist, was not qualified to offer opinions regarding spine surgery or the conduct of an orthopedic surgeon. The Ngu Defendants further argued that the Second Mallory Report failed to explain how the surgeries or procedures by Dr. Ngu were performed incorrectly or inappropriately, and that Dr. Mallory's opinions were conclusory and unsupported by facts. The Ngu Defendants argued that Plaintiff's expert reports were not good faith reports under Chapter 74 and asked the trial court to dismiss Plaintiff's claims.
On September 22, 2015, Plaintiff filed his response to the Ngu Defendants' objections and motion to dismiss, arguing that Dr. Mallory's reports were an objective good faith effort to comply with section 74.351. On November 23, 2015, Plaintiff filed a response to the Bishai and Ngu Defendants' objections to the expert reports and motions to dismiss. Therein, Plaintiff noted that the trial court had granted him an extension to cure deficiencies and he had timely filed an "updated medical expert report[.]"
Orders Sustaining Objections and Granting Motions to Dismiss
On January 29, 2016, the trial court signed an order granting the Ngu Defendants' motion to dismiss. The order dismissed Plaintiff's claims against the Ngu Defendants with prejudice and awarded attorney's fees and costs.
Also on January 29, 2016, the trial court signed an order sustaining the Bishai Defendants' objections to Dr. Mallory's reports and objections, finding Dr. Mallory's report was "untimely and served without leave of the Court[,]" and granting the Bishai Defendants' motion to dismiss. The order dismissed Plaintiff's claims against the Bishai Defendants with prejudice and awarded attorney's fees and costs.
The trial court also entered orders granting the defendants' attorney's fees on motions supported by affidavits submitted by the Bishai and Ngu Defendants. On February 29, 2016, Plaintiff filed motions for reconsideration of the orders dismissing the Bishai and Ngu Defendants, and the motions for reconsideration were overruled by operation of law. See Tex. R. Civ. P. 329b(c). Plaintiff timely filed this appeal.
ISSUES ON APPEAL
Blevins raises five issues on appeal. In his first issue, Blevins argues that the trial court erred as a matter of law in granting Appellees' motions to dismiss without first holding an oral hearing on the sufficiency of Blevins's expert report. In his second issue, Blevins argues that the trial court erred as a matter of law by holding that the expert report was served without leave of court. In his third issue, Blevins argues that the trial court erred as a matter of law by dismissing the Ngu Defendants because they failed to challenge the final expert report and thereby waived their objections. In his fourth issue, Blevins argues that the trial court abused its discretion in finding that Dr. Mallory was not qualified to render an opinion under the statute. And in his fifth issue, Blevins argues that the trial court abused its discretion in determining that the expert report was insufficient under section 74.351.
The Bishai Appellees bring two issues on cross-appeal. First, the Bishai Appellees argue that the trial court erred in granting Blevins thirty days to cure Dr. Baule's report because the Baule report "did not sufficiently implicate Dr. Bishai[.]" Second, the Bishai Appellees argue that Blevins's claims against them are foreclosed by the statute of limitations, and they urge us to render judgment on that basis. The Ngu Appellees bring a single issue on cross-appeal, arguing that the trial court erred in granting Blevins thirty days to cure Dr. Baule's report because the Baule report "did not sufficiently implicate Dr. Ngu[.]"
STANDARD OF REVIEW
We review the trial court's decision regarding the adequacy of an expert report and on a motion to dismiss under chapter 74 for abuse of discretion. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (citing Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001)); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). In reviewing the trial court's decision, we may not substitute our judgment for that of the trial court in reviewing factual matters or matters committed solely to the trial court's discretion. See In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)); Wright, 79 S.W.3d at 52. "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Wright, 79 S.W.3d at 52. A trial court also abuses its discretion if it fails to analyze or apply the law correctly. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004); Walker, 827 S.W.2d at 840 ("a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion").
EXPERT REPORT REQUIREMENTS UNDER CHAPTER 74
Section 74.351 of the Civil Practice and Remedies Code serves as a "gate-keeper" through which no medical negligence causes of action may proceed until the claimant has made a good faith effort to demonstrate that at least one expert believes that a breach of the applicable standard of care caused the claimed injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351; Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) ("The expert report requirement is a threshold mechanism to dispose of claims lacking merit[.]"). A health care liability claimant must provide each defendant physician and health care provider with an expert report within a specified time. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merit. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). Accordingly, the expert report should (1) inform the defendant of the specific conduct the plaintiff has called into question; and (2) provide a basis for the trial court to conclude the plaintiff's claims have merit. See In re Buster, 275 S.W.3d 475, 476-77 (Tex. 2008) (per curiam) (citing Palacios, 46 S.W.3d at 879); see also Wright, 79 S.W.3d at 52; HEB Grocery Co., L.L.P. v. Farenik, 243 S.W.3d 171, 173 (Tex. App.—San Antonio 2007, no pet.).
The statute defines "expert report" as follows:
. . . a written report by an expert 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 or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The defendant may file challenges to the adequacy of the report. Id. § 74.351(l). The court's inquiry as to the sufficiency of an expert report is limited to the four corners of the report. See Wright, 79 S.W.3d at 53 ("[T]he report must include the required information within its four corners."); Palacios, 46 S.W.3d at 878 ("a trial court should look no further than the report" to determine whether it meets the statutory requirements).
While the report "need not marshal every bit of the plaintiff's evidence," it must provide a fair summary of the expert's opinions as to 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. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 875, 878; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The report must "explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented." Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010); Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 (Tex. App.—Beaumont 2010, no pet.) (citing Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.—Fort Worth 2003, pet. denied)) (explaining that the expert report must address the claims asserted by the pleadings).
It is unnecessary for the expert in his report to rule out all other possible causes or meet summary judgment or trial standards of proof. Palacios, 46 S.W.3d at 879; Baylor Med. Ctr. v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). "If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous." Potts, 392 S.W.3d at 631. "[T]o constitute a good-faith effort to establish the causal-relationship element, the expert report must fulfill Palacios's two-part test." Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). The expert report must explain the basis of the expert's opinions and link them to the facts. Id.; Windsor, 121 S.W.3d at 47 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
When determining whether a report adequately explains how the defendant health care provider caused an injury to a patient, we evaluate whether the report demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53 (a conclusory report does not meet the statutory requirements); Rosemond v. AL-lahiq, 362 S.W.3d 830, 836 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (same); see also HEB Grocery Co., LP v. Galloway, No. 09-13-00486-CV, 2014 Tex. App. LEXIS 5506, at *16 (Tex. App.—Beaumont May 22, 2014, no pet.) (mem. op.) (an expert report must do more than merely make conclusory statements and should address causation and the link between the negligence and the injury alleged). A causal relationship is established "by proof that the negligent act or omission was a substantial factor in bringing about the harm and without which the harm would not have occurred." Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.).
"When a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant's individual acts and the injury." Estorque v. Schafer, 302 S.W.3d 19, 29 (Tex. App.—Fort Worth 2009, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6); Sanjar v. Turner, 252 S.W.3d 460, 465 (Tex. App.—Houston [14th Dist.] 2008, no pet.)).
An expert report may not assert that multiple defendants are all negligent for failing to meet the standard of care without providing an explanation of how each defendant specifically breached the standard and how that breach caused or contributed to the cause of injury. Collective assertions of negligence against various defendants are inadequate.Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.) (internal citations omitted).
An expert report concerning the breach of the standard of care of a health care provider that is "authored by a person who is not qualified to testify. . . cannot constitute an adequate report." In re Windisch, 138 S.W.3d 507, 511 (Tex. App.—Amarillo 2004, orig. proceeding) (applying former version of section 74.351(a)); see also Ehrlich v. Miles, 144 S.W.3d 620, 624-26 (Tex. App.—Fort Worth 2004, pet. denied) (same). A physician is qualified to submit an expert report on the causal relationship between a departure from the standard of care and an injury when he would otherwise be qualified to address causation under the Texas Rules of Evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C).
A plaintiff may satisfy the statutory requirements by serving reports by separate experts. See id. § 74.351(i). Where a plaintiff does so, we consider the expert reports in the aggregate, and a single expert need not address all liability and causation issues with respect to a defendant. Id.; see also Tenet Hosps. Ltd. v. De La Rosa, 496 S.W.3d 165, 170 (Tex. App.—El Paso, 2016, no pet.); Gannon v. Wyche, 321 S.W.3d 881, 896 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
COMPLAINT REGARDING LACK OF A HEARING
In his first issue, Blevins argues that the trial court abused its discretion by failing to hold a hearing on the expert report prior to dismissing Blevins's claims. According to Appellant, the trial court "ignored[]" the statutory requirement and failed to hold an oral hearing on the sufficiency of Blevins's expert report. Appellant argues that the trial court erred as a matter of law when it ruled on the sufficiency of the expert report and dismissed Blevins's claims "without meeting § 74.351(l) procedural conditions[.]"
Section 74.351(l) provides that "[a] court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). We conclude that the statute's use of the word "hearing" does not require a trial court to hold an oral hearing; rather the trial court may decide the matter on written submission. See Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (stating that "[a]rticle 4590i [the predecessor to Chapter 74] does not expressly require an oral hearing on a motion to dismiss[]"); see also Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) ("Unless required by the express language or the context of the particular rule, the term 'hearing' does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court."). "As a general rule, an adjudication based on written materials alone is sufficient." Jackson, 14 S.W.3d at 819 (concluding the court conducted the statutorily-required hearing "based on written materials alone[]"); see also Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 781 (Tex. 2005) (noting that "[m]any pretrial 'hearings' take place entirely on paper[]"); Norris v. Tenet Houston Health Sys., No. 14-04-01029-CV, 2006 Tex. App. LEXIS 4600, at **13-14 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (a motion to dismiss pursuant to former Medical Liability and Insurance Improvement Act may be decided on written materials alone); Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (holding that a motion to dismiss pursuant to Article 4590i may be properly "heard" by submission). Furthermore, any oral argument or testimony would fall outside the four corners of the expert report. See Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 878. Consequently, we conclude the trial court did not err as regards to the requirement of a hearing, and we overrule Appellant's first issue on appeal.
APPELLEES' CROSS-ISSUES
Before we examine the additional issues raised by Appellant, we will address cross-issues raised by both the Bishai and Ngu Appellees arguing that the trial court abused its discretion in granting Blevins an extension of time to cure deficiencies in the expert report. The Appellees argue that the trial court erred because Dr. Baule's report, the only expert report served at the time Blevins filed a motion for an extension of time, did not implicate either Dr. Bishai or Dr. Ngu.
"If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). As the Court explained in Scoresby, service of a piece of paper that says "expert report" is akin to serving no report at all, subjecting the underlying health care liability claim to dismissal; but a statutorily noncompliant report is merely deficient and subject to cure if it is: (1) timely served; (2) contains an expert's opinion that the claim has merit; and (3) implicates the defendant's conduct. See 346 S.W.3d at 556-57.
Similarly, a report served in a medical liability lawsuit does not implicate a particular health care provider's conduct merely because the provider is a defendant in the lawsuit. See Troeger v. Myklebust, 274 S.W.3d 104, 110 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Ogletree v. Matthews, 262 S.W.3d 316, 317-22 (Tex. 2007)). Although a report served in a medical liability lawsuit need not identify a defendant by name, the report must implicate a defendant's conduct. See Sinha v. Thurston, 373 S.W.3d 795, 800 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Scoresby, 346 S.W.3d at 549 ("[T]he Act does not suggest that a document utterly devoid of substantive content will qualify as an expert report."). "[W]here a defendant is not identified at least in some manner within the 'four corners' of the report, the report is, for that reason alone, deficient as to that defendant because it would require the reader to infer or make an educated guess as to whose actions the expert is complaining." Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex. App.—Austin 2008, no pet.).
The Bishai Defendants
We first address the Bishai Appellees' cross-issue concerning the trial court's order granting an extension of time. The order granted Blevins's "Second Amended Motion for 30-Day Extension to Cure Deficient Expert Report[.]" Blevins filed this motion on September 7, 2015, and the motion references "Plaintiff's expert report filed on August 28, 2015[.]" We interpret an order granting relief with reference to the motion it grants. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 405 (Tex. 1971); Estate of Hoskins, 501 S.W.3d 295, 302 (Tex. App.—Corpus Christi 2016, no pet.). Therefore, we analyze the trial court's order granting an extension of time in light of Blevins's motion for an extension, the amended motion for an extension, and the Baule Report—the expert report served on August 28, 2015, and the only expert report served at the time Blevins filed his motion for an extension of time to cure deficiencies.
Interpreting the order in light of the motion it granted, we conclude that the order granting an extension of time granted an extension as to the Baule Report. Therefore, we must determine whether an extension of time to cure deficiencies in the Baule Report was warranted under the statute, as explained in Scoresby. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); 346 S.W.3d at 557.
The Baule Report provided the following statements concerning Dr. Bishai:
1. It appears that Dr. Bishai was within the standard of care in his administration of the epidural steroid. It is reasonable to perform an epidural steroid injection based upon clinical presentation without an MRI scan.
. . . .
2. The images provided are insufficient to determine if cyst injection is indicated. Injection and aspiration of a spinal synovial cyst is an acceptable treatment for a symptomatic synovial cyst.
. . . .
Such statements do not implicate Dr. Bishai because they wholly fail to address any manner in which Dr. Bishai breached the applicable standard of care or caused Blevins's alleged injuries. See, e.g., Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 760-61 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (the conduct of the nursing staff was not implicated where the expert report included no statement or opinion by any expert asserting that plaintiff's claims had merit). Rather, the Baule Report indicated that Dr. Bishai did not breach the standard of care and that he did not exacerbate the condition. Therefore, we conclude that the Baule Report was "no report" as to the Bishai Defendants. See Laredo Tex. Hosp. Co. v. Gonzalez, 363 S.W.3d 255, 258-59 (Tex. App.—San Antonio 2012, no pet.) (expert report that did not mention any health care defendant or any applicable standard of care was "no report"); Velandia v. Contreras, 359 S.W.3d 674, 678-79 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (an expert report is insufficient where it fails to include any opinion or statement that the plaintiff's claim has merit and fails to address how defendant's breach of the standard of care caused plaintiff's injury); Rivenes v. Holden, 257 S.W.3d 332, 338-39 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (a report does not implicate a defendant's conduct if it fails to discuss how the care rendered by the defendant breached the standard of care and thereby caused the plaintiff's injuries).
3. Epidural injections are a widely employed modality as a treatment of spinal etiology pain. The injections did not exacerbate the condition, for which they were performed, nor did they result in the necessity for the eventual surgery.
A plaintiff is not entitled to a thirty-day extension to cure when "no report" is timely served. Ogletree, 262 S.W.3d at 319-20. Therefore, Blevins was not entitled to a thirty-day extension to cure deficiencies, and the trial court abused its discretion in granting the motion for an extension. Because Blevins failed to timely serve a qualifying report as to the Bishai Defendants, the court did not err in dismissing Blevins's claims against them. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (trial court "shall" dismiss claims where plaintiff fails to serve an expert report and defendant moves to dismiss); Hebner v. Reddy, 498 S.W.3d 37, 40 (Tex. 2016) (explaining that if a claimant fails to timely serve a qualifying expert report, the trial court shall dismiss the claim with prejudice). We sustain the Bishai Appellees' first cross-issue on appeal. We also overrule Appellant's second, fourth, and fifth issues as they pertain to the Bishai Defendants. Because we find the Baule Report was "no report" and that the trial court erred in granting Blevins a thirty-day extension of time, we need not address whether the Mallory Reports were insufficient as to the Bishai Defendants under section 74.351, and we need not separately address Appellant's remaining arguments concerning whether Dr. Mallory was qualified to render an expert report. See Tex. R. App. P. 47.1. We also need not address the Bishai Appellees' cross-issue concerning the statute of limitations. Id.
The Ngu Defendants
We next address the Ngu Appellees' cross-issue. The Baule Report never even mentions Dr. Ngu or his conduct. Therefore, it was "no report" as to Dr. Ngu. However, as of August 28, 2015, Blevins's 120-day period to serve an expert report implicating Dr. Ngu had not expired, and Blevins served the First and Second Mallory Reports within 120 days after the Ngu Defendants filed their answer. Nevertheless, Blevins did not file a motion for an extension to cure deficiencies as to any of the Mallory Reports. See Lone Star Cement, 467 S.W.2d at 405; Estate of Hoskins, 501 S.W.3d at 302. Accordingly, the trial court's order did not grant a motion for an extension of time to cure deficiencies in the Mallory Reports (because no such motion was ever before the court). And, therefore whether or not the trial court erred in granting Plaintiff an extension as to the Baule Report is of no consequence to the Ngu Defendants.
The Ngu Defendants filed their answer on May 12, 2015. Therefore, Blevins's 120-day period to serve an expert report ended on September 9, 2015. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Blevins served the First and Second Mallory Reports on September 8 and 9, 2015, respectively, within the 120-day period. An amended expert report supersedes a previously-served report. See HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 909 (Tex. App.—Dallas 2007, no pet.) (holding that amended expert report "supplants" previously filed report). Accordingly, the only timely expert report that should have been considered by the trial court is the Second Mallory Report.
The Second Mallory Report provided the following statements concerning Dr. Ngu:
It is my medical opinion that reasonable grounds exist to initiate medical negligence litigation against Dr. Bonaventure Ngu.
. . . .
The patient had four surgeries performed by Dr. Ngu from February 22, 2013 until May 19, 2014. Between the first and second surgeries, the patient developed worsening right leg pain and weakness requiring him to use a walker. The second surgery removed the hardware, Dr. Ngu placed during the first surgery. This indicates the first surgery was performed inappropriately. Between the second and third surgeries, the patient reported a "squeaking[]" noise in his back. Dr. Ngu dictated the
squeaking noise is most likely due to "the rod sliding through the tulip and the set screw." Because of this, this patient's second surgery was inappropriately performed. On January 24, 2014, the patient underwent a third surgery. On May 1, 2014 the patient reported to Dr. Ngu he felt like the hardware is coming out. His low back pain had begun to worsen again. Dr. Ngu dictated he thought another pedicle screw had broken. On May 19, 2014, the patient underwent a fourth spinal surgery. On December 4, 2014, this was the last visit documented in the medical record. The patient still has right ankle and foot weakness. He still takes Oxycodone 15 mg 4 times a day, and Norco 10/325 mg every 4-6 hours as needed for pain. The patient reported the pain on this last visit is still 5/10. The fourth surgery has not significantly improved the patient's quality of life.
. . . .
It is my medical opinion that reasonable grounds exist for Doyle Blevins to initiate medical negligence litigation against Dr. Emad Bishay [sic], and Dr. Bonaventure Ngu.
Such conclusory statements in the Second Mallory Report do not explain the basis of Dr. Mallory's opinions nor link his conclusions to the facts. See Wright, 79 S.W.3d at 52. Neither do any of these statements explain "to a reasonable degree, how and why the breach [by Ngu] caused the injury based on the facts presented." See Jelinek, 328 S.W.3d at 539-40; Ngo v. Lewis, No. 09-10-00140-CV, 2010 Tex. App. LEXIS 7432, at **8, 14-15 (Tex. App.—Beaumont Sept. 9, 2010, no pet.) (mem. op.) (expert report that "merely asserts that causation exists is not enough[]"). The trial court could have reasonably concluded that the Second Mallory Report was deficient regarding causation as to the Ngu Defendants, and we need not address whether the Second Mallory Report was sufficient as to standard of care and breach. See Tex. R. App. P. 47.1. We overrule Appellant's second and fifth issues as to the Ngu Defendants. Because we find the Second Mallory Report insufficient as to the Ngu Defendants under section 74.351, we need not separately address Appellant's remaining argument concerning whether Dr. Mallory was qualified to render an expert report. See id.
We sustain the Bishai Appellees' first cross-issue challenging the trial court's order granting an extension of time. We overrule all of Appellant's issues on appeal as to Dr. Bishai. We need not reach the Ngu Appellees' cross-issue and the Bishai Appellees' second cross-issue concerning the statute of limitations as these issues are unnecessary to our disposition in this matter. See id.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on March 2, 2017
Opinion Delivered April 20, 2017 Before McKeithen, C.J., Horton and Johnson, JJ.