Opinion
NO. 01-17-00008-CV
08-15-2017
MARSTON HOLT, M.D., Appellant v. KIRBY HOLT, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Case No. 15-CV-0798
MEMORANDUM OPINION
In this interlocutory appeal, appellant, Marston Holt, M.D., is challenging the trial court's denial of his motion to dismiss the healthcare liability claims filed against him by appellee, Kirby Holt. In two issues, Dr. Holt argues that the trial court abused its discretion by denying his motion to dismiss because appellee's expert report failed to: (1) establish that Dr. Holt owed a duty to appellee and that the expert's failure to establish that he owed a duty of care to appellee makes it "impossible for [the expert's] report to establish a standard of care applicable to" him; and (2) link appellee's damages to a specific breach of an applicable standard of care. Because appellee's expert report meets the statutory requirements, we affirm the trial court's denial of Dr. Holt's motion to dismiss.
Dr. Holt and Kirby Holt are not related.
Background
Appellee's expert report provides the background facts in this case. The medical records are not before us, and we accept the factual statements for the limited purpose of this appeal.
See Marino v. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.)).
On January 6, 2012, appellee was seen by Dr. Javier Rios of All American Orthopedic & Sports Medicine. Dr. Rios conducted a physical examination of appellee, diagnosed him with a right lower leg sprain, and referred him for an MRI to confirm the diagnosis. The radiologist who performed the MRI reported to Dr. Rios that his findings were consistent with early compartment syndrome.
After he received the results of the MRI, Dr. Rios discussed the case with Dr. Holt, an orthopedic surgeon who practiced with Dr. Rios at All American and was to perform the surgery on appellee. During their conversation, Dr. Rios and Dr. Holt discussed appellee's history, the date of appellee's original injury, his clinical presentation, and Dr. Rios's findings on physical examination. After his discussion with Dr. Holt, Dr. Rios called appellee's mother with the results of the MRI, instructed appellee to ice and elevate the leg to reduce swelling, and follow up the next morning at 8:00 a.m. Appellee's expert report describes the conversation between Dr. Holt and Dr. Rios as a consultation and states that the treatment of appellee's injuries was based, at least in part, on the results of the consultation.
Appellee went to the emergency room at 1 a.m. the next morning complaining of swelling and redness in his right lower leg and intense pain. Dr. Holt performed an irrigation and debridement with fasciotomy of the anterior and lateral compartments four hours later.
Appellee subsequently developed muscle necrosis of his lower leg, rhabdomyolysis, and an associated infection. His condition required multiple subsequent surgeries and he has developed a chronic foot drop.
Appellee filed medical negligence suits against Dr. Holt, as well as several other defendants who are not parties to this appeal. After appellee timely served Dr. Holt with a second expert report prepared by Dr. Steven Meier, Dr. Holt served objections to this expert report. Six months later, Dr. Holt filed a motion to dismiss appellee's healthcare liability claims against him. After a hearing, the trial court denied Dr. Holt's motion to dismiss and this interlocutory appeal followed.
After Dr. Holt objected to appellee's first timely expert report, the trial court sustained the objections and allowed appellee an opportunity to cure the alleged defects. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West 2017).
During the intervening period, the parties designated experts and conducted depositions of all the defendant doctors, appellee, and appellee's mother.
Discussion
Dr. Holt contends that the trial court abused its discretion when it denied his motion to dismiss and request for attorney's fees because Dr. Meier's report fails to comply with Chapter 74 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2017). Specifically, Dr. Holt argues that Dr. Meier's report fails to establish that he owed a duty to appellee, and therefore, Dr. Meier's report fails to establish a standard of care applicable to him and a breach of such standard of care. Further, Dr. Meier's report fails to inform Dr. Holt of what conduct by Dr. Holt actually caused appellee's damages.
A. Chapter 74 Expert Reports
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 plaintiff has made a good faith effort to demonstrate that a qualified medical expert believes that a defendant's conduct breached the applicable standard of care and caused the claimed injury. See TEX. CIV. PRAC. & REM. CODE § 74.351; Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). To constitute a good faith effort, the report must provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claim has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). A report that merely states the expert's conclusions as to the three statutory elements of standard of care, breach, and causation does not fulfill these two purposes. Id. at 879. The expert must explain the basis for his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). In determining whether the report meets those requirements, the court should look no further than the report itself, because all of the information relevant to the inquiry must be contained within the report's four corners. Bowie Mem'l Hosp., 79 S.W.3d at 52.
B. Standard of Review
We review a trial court's ruling on a motion to dismiss for an abuse of discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
C. Analysis
1. Standard of Care and Breach
In his first issue, Dr. Holt argues that Dr. Meier's expert report does not satisfy Chapter 74's requirements because Dr. Meier assumes that Dr. Holt owes a duty to appellee without referencing any "reliable facts that provide a basis for his speculative assumption," or providing "key information as to both how [Dr. Holt] was determined to owe a duty to Appellee and under what circumstances that duty attached." Dr. Holt further contends that Dr. Meier's report does not establish that he owed a duty of care to appellee, and therefore, it also fails to establish a standard of care applicable to him and a breach of such standard of care.
In his expert report, Dr. Meier states that the facts in his report are derived from appellee's "medical treatment records and Dr. Javier Rios' First Amended Objections and Answers to the Plaintiffs First Set of Interrogatories." He further states that "[a]ccording to both the medical records and Defendant, Javier Rios, M.D.'s, First Amended Objections and Answers to Plaintiff's First Set of Interrogatories, Dr. Rios consulted with Marston Holt, M.D., an orthopedic surgeon also with All American Orthopedic & Sports Medicine Institute and the surgeon who would perform the surgery." Dr. Meier states:
Dr. Rios and Dr. Holt discussed [appellee]'s history, the date of the original injury, his clinical presentation and findings on physical examination, and the MRI. Based on their joint review of the clinical presentation and the diagnostic imaging, Dr. Rios and Dr. Holt together deferred a decision for emergency decompressive fasciotomy and concurred that [appellee] should return for a follow up visit the next morning.
. . . .
The standard of care for an orthopedic surgeon presented with a medical history and clinical symptoms indicating compartment syndrome requires orthopedic surgeon to make a clinical diagnosis and institute necessary medical interventions on a timely basis. That clinical diagnosis is based upon the patient's clinical complaints, the history, the physician's physical examination, and diagnostic imaging. Once the diagnosis is made, the standard of care requires that a decompressive fasciotomy be performed as soon as possible.
. . . .
Dr. Holt an orthopedic surgeon, breached the standard of care by deciding to defer an immediate emergency decompressive fasciotomy once the diagnosis of compartment syndrome had become evident by both clinical and radiographic examination on the evening of January 6, 2014.
Dr. Meier has alleged specific facts which form the basis for his opinion that Dr. Holt owed a standard of care to appellee. Specifically, Dr. Meier alleged that Dr. Holt is an orthopedic surgeon who practiced with Dr. Rios at All American, and that after Dr. Holt was informed of appellee's medical history and the clinical findings indicating compartment syndrome, Dr. Holt and Dr. Rios consulted with each other and "together deferred a decision for emergency decompressive fasciotomy." He also identified the sources from which he derived these facts, i.e., appellee's medical records and Dr. Rios's discovery responses. Dr. Meier's report also identifies the standard of care applicable for an orthopedic surgeon, like Dr. Holt, who is "presented with a medical history and clinical symptoms indicating compartment syndrome." The report asserts that the applicable "standard of care requires that a decompressive fasciotomy be performed as soon as possible," but that Dr. Holt "deferred a decision for emergency decompressive fasciotomy," and did not perform the required surgery until the next day. The lack of specific citations to the portions of the medical record or discovery responses that Dr. Meier is relying upon does not render the report insufficient because a claimant does not have to present evidence as if he was actually litigating the merits in order to constitute a good faith effort to establish the requirements of Chapter 74. See Bowie Mem'l Hosp., 79 S.W.3d at 52-53; Palacios, 46 S.W.3d at 878-79.
Dr. Holt describes the interaction between himself and Dr. Rios as a "curbside" consultation and argues that physicians who provide consultations like the one he provided to Dr. Rios should not be "held to the same duty of care as the physicians actually treating the patient." Dr. Meier's report asserts that Dr. Holt's involvement in appellee's medical treatment could not be described as a "curbside" consultation. According to Dr. Meier's report, Dr. Holt, who was appellee's orthopedic surgeon and actually operated on appellee, participated in the decision to delay performing an emergency decompressive fasciotomy. To the extent that Dr. Holt is challenging the accuracy of Dr. Meier's report and his opinion as to the applicable standard of care under this factual scenario, such issues should be raised in a motion for summary judgment, not a motion to dismiss under Chapter 74. See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 199 n.2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Sanjar v. Turner, 252 S.W.3d 460, 467 n.6 (Tex. App.—Houston [14th Dist.] 2008, no pet.) and Wissa v. Voosen, 243 S.W.3d 165, 169-70 (Tex. App.—San Antonio 2007, pet. denied)). Despite the fact that he operated on appellee the very next day, Dr. Holt contends that appellee's medical records do not show that he was involved in appellee's medical treatment at the time of the disputed consultation. The trial court cannot look beyond the four corners of Dr. Meier's report to evaluate the veracity of his factual allegations or the sufficiency of his report. See Bowie Mem'l Hosp., 79 S.W.3d at 52 (stating that when evaluating sufficiency of expert report, court's inquiry is limited to information contained within the four corners of the report). The court's role is not to determine the truth or falsity of the expert's opinion, or the facts upon which the expert bases such opinions, but to act as a gatekeeper in evaluating the sufficiency of the report itself. See Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
Based on the four corners of the report, we conclude that Dr. Meier's report not only provided Dr. Holt with a fair summary of the applicable standard of care and his failure to meet it, but it also informed Dr. Holt of the specific conduct that appellee has called into question, i.e., participating in the decision to defer an immediate emergency decompressive fasciotomy when the diagnosis of compartment syndrome had become evident. See Palacios, 46 S.W.3d at 879-80. Therefore, the trial court did not abuse its discretion by finding that Dr. Meier's report satisfies Chapter 74's requirements with regard to the elements of standard of care and breach.
We overrule appellant's first issue.
2. Causation
In his second issue, Dr. Holt argues that the trial court abused its discretion when it denied his motion to dismiss because Dr. Meier's report fails to adequately describe the causal connection between his alleged breaches of the standard of care and appellee's harm.
Based on his review of appellee's medical treatment records and Dr. Rios's discovery responses, Dr. Meier opines with respect to causation:
In reasonable medical probability, Dr. Holt's decision to abstain from performing emergency decompressive fasciotomy on the evening of January 6, 2014 is a substantial factor in [appellee]'s development of muscle necrosis, rhabdomyolysis, subsequent infection and foot drop. Dr. Holt was to be the surgeon for [appellee]. Thus, his decision to operate or not in consultation with Dr. Rios affects the timing of the necessary definitive treatment for the compartment syndrome which [appellee] was suffering from on the evening of January 6, 2014. Had an emergency decompressive fasciotomy been performed by Dr. Holt on the evening of January 6, 2014, it is within a reasonable degree of medical probability that this would have resulted in [appellee] avoiding loss of viable muscle tissue and having some return of function to his lower leg anterior compartment muscles.
Dr. Meier sufficiently describes the element of causation because he explains the factual basis for his statements and he links Dr. Holt's alleged conduct, i.e., deferring an immediate emergency decompressive fasciotomy, with appellee's development of muscle necrosis, rhabdomyolysis, subsequent infection and foot drop. See Bowie Mem'l Hosp., 79 S.W.3d at 52 (quoting Earle, 998 S.W.2d at 890).
In his supplemental reply brief, Dr. Holt argues that Dr. Meier's report is deficient because it does not explain how he could have changed the decision of his fellow orthopedic surgeon, Dr. Rios, to postpone making a decision on appellee's surgery until the next day nor does it establish that Dr. Holt "was capable of doing something to change the outcome," citing to the Texas Supreme Court's recent decision in Columbia Valley Healthcare System, L.P. v. Zamarripa, No. 15-0909, 2017 WL 2492003, at *2, 5 (Tex. June 9, 2017). The expert report in Zamarripa stated that the hospital, through its nurses, breached the applicable standard of care by not stopping a patient's transfer to another hospital, without explaining how they could have done that or if they even had the authority to do that. See id. In this case, Dr. Meier's report states that Dr. Holt participated in the decision to delay appellee's surgery until the next morning, and the delay in performing the surgery caused appellee's injuries. Unlike the nurses in Zamarippa, Dr. Holt, as a treating physician, if he was, had the authority to defer making a decision as to surgery until the next morning. The extent of his involvement in that decision, the liability which attaches to his actions, if any, can be developed in the course of the litigation and evaluated by the judge and, possibly, a jury. However, this expert report has met the standard of Chapter 74 by having an expert lay out a factual scenario which explains how Dr. Holt acted in a fashion that, in the expert's opinion, breaches the standard of care and describes the direct consequences of that breach.
To the extent that Dr. Holt is complaining about the factual specificity or the accuracy of Dr. Meier's report, an expert report need not marshal all of the plaintiff's proof, or present evidence as if the plaintiff was actually litigating the merits in order to constitute a good faith effort to establish the causal relationship. See Bowie Mem'l Hosp., 79 S.W.3d at 52-53; see also Methodist Hosp., 296 S.W.3d at 200.
We overrule Dr. Holt's second issue.
Conclusion
We affirm the trial court's denial of Dr. Holt's motion to dismiss.
Russell Lloyd
Justice Panel consists of Justices Jennings, Brown and Lloyd.