Summary
holding expert report deficient regarding standard of care when report did not explain "which of the several defendants failed to properly interpret the monitoring data what monitoring data was not properly interpreted"
Summary of this case from Tex. Health Harris Methodist Hosp. Fort Worth v. BiggersOpinion
NO. 09-12-00050-CV
07-12-2012
INTRA-OP MONITORING SERVICES, LLC AND JUSTIN HAWKINS, Appellants v. RACHEL CAUSEY AND BILL CAUSEY, Appellees
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 10-06-06191 CV
MEMORANDUM OPINION
In this interlocutory appeal, we address whether a physician's report adequately addresses how a medical technologist, who assisted during a surgery by monitoring a patient's physiological changes, caused the patient's surgeon to mistakenly cut the patient's facial nerve. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (West Supp. 2011), § 74.351 (West 2011). Because the trial court determined that the report at issue was adequate, it denied Intra-Op Monitoring Services, LLC's and Justin Hawkins's motion to dismiss. In their appeal, Intra-Op and Hawkins argue that Dr. Jaime López's report fails to sufficiently explain the standards of care that apply to them and to explain how these standards were breached, that Dr. López's report fails to provide a fair summary that explains how their alleged acts or omissions proximately caused Rachel Causey's injury, and that Dr. López is not qualified to render an expert opinion on standards of care applicable to them. We conclude that the report of Dr. López does not provide a fair summary that explains how Intra-Op's and Hawkins's acts or omissions proximately caused Rachel's injury. We reverse and remand the case to the trial court for further proceedings consistent with this opinion.
The Causeys' First Amended Petition alleges that Justin Hawkins is an employee of Intra-Op Monitoring Services, LLC, and that it is jointly and severally liable for the acts of Hawkins under the doctrine of respondeat superior. Regarding vicarious liability claims, "[w]hen a party's alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party's agents or employees is sufficient." Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 587 (Tex. App.—Beaumont 2011, no pet.).
Background
In May 2009, Dr. Rosalia Burke performed a right superficial parotidectomy on Rachel at Memorial Hermann Hospital—The Woodlands. To assist in locating Rachel's facial nerve, Dr. Burke utilized intraoperative neurophysiological monitoring (IONM). Intra-Op provided the IONM equipment, which is used to detect neurophysiological changes in patients undergoing surgery, and a technologist, Hawkins, who was present during Rachel's surgery. Dr. Charles Popeney, although not physically present in the operating room, participated in Rachel's surgery by monitoring the IONM device from another location.
A parotidectomy is the "surgical removal of the parotid gland[.]" Webster's Third New International Dictionary 1644 (2002). The parotid gland is "either of a pair of salivary glands situated on the side of the face below and in front of the ear[.]" Id.
The Causeys filed a report authored by Dr. López to fulfill the requirements that apply to health care liability claims. See id. Dr. López's report reflects that electromyography activity was noted during the surgery, that during the surgery, Dr. Burke "encountered a structure that she thought was consistent with a facial nerve[,]" and that "a nerve stimulator was used and confirmed stimulation of all branches of the facial nerve." Nevertheless, Dr. Burke subsequently mistook Rachel's facial nerve for a vessel and cut it. While Dr. López's report includes his opinion that the monitoring procedures used during Rachel's surgery were inadequate, his report fails to explain how adequate IONM monitoring performed according to the applicable standards of care would have allowed Dr. Burke to avoid cutting Rachel's facial nerve. Absent this information, Dr. López's report does not contain a fair summary explaining how the alleged acts of Intra-Op or Hawkins caused the injury to Rachel's facial nerve.
Applicable Law and Analysis
Generally, we review a trial court's ruling on a motion to dismiss a health care liability claim for abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In cases involving health care liability claims, the claimant must file an expert report that provides a "fair summary" of the expert's opinion as of the date of the report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). To constitute a good-faith effort, a report "must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 875. A report that merely states the expert's conclusions on the applicable standard of care, breach, and causation "does not fulfill these two purposes." Id. at 879. "'Rather, the expert must explain the basis of his statements to link his conclusions to the facts.'" Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). A reviewing court cannot fill gaps in a report by drawing inferences. Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex. App.—Fort Worth 2009, no pet.).
In determining whether the trial court's ruling on the motion to dismiss was correct, we look to the four corners of the report. Palacios, 46 S.W.3d at 878. With respect to whether Dr. López's report adequately explains how the health-care providers that he criticized caused Rachel's injury, we evaluate whether his report demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53. A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that absent this act or omission, 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.).
"[W]hen 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." Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.—El Paso 2011, no pet.); see also CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23 (Tex. App.—Houston [14th Dist.] 2001, 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 breached the standard of care and how that breach caused or contributed to the cause of injury. Taylor, 169 S.W.3d at 244. "Collective assertions of negligence against various defendants are inadequate." Id.
Dr. López's entire explanation concerning how Intra-Op and Hawkins caused Rachel's injury consists of the following statement:
Based on the review of the medical records made available to me, it is my opinion that the Plaintiff's injuries/damages were proximately caused in whole or in part by the failure of Intra-op Monitoring Services LLC.; Justin Hawkins; Ft. Bend Neurology, P.A.; and Dr. Popeney[] to follow the applicable standard of care.Elsewhere in the report, Dr. López discusses the parties and their connections with Rachel's surgical case—that Dr. Popeney provided offsite monitoring of the IONM device, Intra-Op provided the IONM device and technologist Hawkins, and Hawkins operated the IONM device during the surgery. In his report, Dr. López states that Dr. Burke attributed her mistake in cutting Rachel's nerve to the defendants' failure to properly advise her of the IONM data. However, we are unable to determine from Dr. López's report which of the several defendants failed to properly interpret the monitoring data, what monitoring data was not properly interpreted, or to understand what the standards that apply to medical technologists such as Hawkins require with respect to whether he is responsible under the standards to instantly convey his interpretations of data during surgery to Dr. Burke. Moreover, Dr. López's report fails to identify the point during surgery that Dr. Burke cut Rachel's nerve, and what information should have been provided to her that would have allowed her to avoid cutting Rachel's nerve. Without that information, we do not see how the trial court could determine whether additional data would have been able to prevent Dr. Burke from cutting Rachel's nerve.
Intra-Op and Hawkins also argue that Dr. López is not qualified to render an expert opinion regarding the standards of care applicable to Intra-Op and Hawkins. To be qualified to express an opinion against a health care provider, an expert's qualifications must satisfy the requirements of section 74.402 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(B); 74.402(b) (West 2011). The expert's qualifications "must be evident from the four corners of his report and curriculum vitae." Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 536 (Tex. App.—Beaumont 2008, no pet.).
In his three page report, Dr. López states that he is an associate professor of neurology and neurological sciences and neurosurgery at Stanford University School of Medicine, and that he is board certified in neurology. His curriculum vitae reflects that he is currently the director of the "Clinical Neurophysiology and Intraopertaive Neurophysiologic Monitoring Fellowship" at Stanford and the director of the "Intraoperative Neurophysiologic Monitoring Program" at Stanford University Medical Center. Additionally, Dr. López's curriculum vitae reflects that he has lectured repeatedly and authored numerous publications concerning intraoperative monitoring. Nevertheless, neither his report nor his curriculum vitae explain how these experiences and positions necessarily qualify him with the expertise to opine on the standards of care applicable to a technologist, such as Hawkins, or his employer, Intra-Op. However, in light of our determination that Dr. López's report fails to sufficiently address causation, we need not reach this issue. Nevertheless, if permitted additional time to file amended reports, the Causeys can take the opportunity to further clarify how their expert is qualified with respect to the standards applying to Hawkins and Intra-Op to avoid our being required to reach that issue based on the same information in a subsequent appeal.
Because it is settled that "[a]n expert cannot simply opine that the breach caused the injury[,]" a bare assertion of causation does not meet the requirements of section 74.351(r)(6). Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Palacios, 46 S.W.3d at 879); see also Wright, 79 S.W.3d at 52 (holding that merely providing insight into the plaintiff's claims does not adequately address causation). Rather, to satisfy the element of causation "the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented." Jelinek, 328 S.W.3d at 539-40. An expert must explain the basis of his statements and link his conclusions to the facts of the case. Id.; Wright, 79 S.W.3d at 52. We conclude that Dr. López's report does not connect his conclusion that Intra-Op and Hawkins were negligent to Dr. López's general statement addressing how various defendants all caused Rachel's injury. We hold that Dr. López's current report is insufficient to comply with the "fair summary" requirement of section 74.351(r)(6). See Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879-80. We sustain Intra-Op's and Hawkins's first issue, which argues that Dr. López's report fails to adequately address causation.
We need not address Intra-Op's and Hawkins's remaining arguments concerning the sufficiency of the report, as they would not result in greater relief. See Tex. R. App. P. 47.1.
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Intra-Op and Hawkins ask that we reverse the trial court's order, render judgment dismissing the Causeys' claims, and that we remand the case to the trial court for a determination of reasonable fees and costs as permitted by statute. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1). In contrast, the Causeys asks that on remand, we allow the trial court to consider granting them additional time to file an amended report curing any deficiencies in Dr. López's current report. See id. § 74.351(c).
Recently, the Texas Supreme Court discussed whether an inadequate expert report contained deficiencies to such an extent that it did not constitute a good-faith effort to file an expert report. See Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). After considering the Act's text and purpose, the Court held that "a document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit." Id. at 549. The Court concluded that "a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated." Id. at 557. The trial court "must grant it if the deficiencies are curable." Id. at 549.
We are unable to conclude that the deficiencies in Dr. López's report are incurable solely from the four corners of the report. Additionally, Intra-Op's and Hawkins's conduct is implicated by Dr. López's current report, and the report was served by the statutory deadline. See Scoresby, 346 S.W.3d at 549; see also Palacios, 46 S.W.3d at 875. As a result, it is for the trial court to consider whether it must grant the Causeys' request to file amended reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (directing that the trial court may grant one thirty-day extension); Scoresby, 346 S.W.3d at 549. We conclude that this case should be remanded to the trial court so that it may consider the Causeys' request to file amended reports, as provided by section 74.351(c). See Scoresby, 346 S.W.3d at 557; see also Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008) (holding that if appellate courts determine an expert report deficient, the statute permits the appellate court to remand the case to the trial court to consider a thirty-day extension to allow the plaintiff an opportunity to cure the deficiency).
Conclusion
Dr. López's report fails to adequately explain how Intra-Op and Hawkins caused Rachel's injury. Therefore, we reverse the trial court's order denying Intra-Op's and Hawkins's motion to dismiss, and we remand this cause to the trial court to consider the Causeys' request for additional time to cure the deficiencies.
REVERSED AND REMANDED.
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HOLLIS HORTON
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.
DISSENTING OPINION
Intra-Op Monitoring Services, LLC, provided the technical support in the operating room to identify the facial nerve during Rachel Causey's surgery. This was the technician's purpose for being in the room. The technician (Justin Hawkins) was to be supervised by a neurologist (Dr. Popeney) who was not in the operating room but was remotely monitoring the case. Unfortunately, with the technology provided, the facial nerve was mistakenly identified as a vessel, and was cut through and tied by the surgeon.
The surgeon indicates she relied on the technician to properly monitor the IONM data and assist in identifying the facial nerve. The surgeon's claim is that the intraoperative neurophysiological monitoring (IONM) -- intended specifically to help identify the facial nerve -- failed and caused the surgeon to unknowingly cut and ligate the facial nerve.
The Causeys have provided an expert report that supports the surgeon's view and the plaintiffs' claim. Dr. López is board-certified in neurology. He is "Associate Professor of Neurology and Neurological Sciences, and Neurosurgery" at the Stanford University School of Medicine. His sixteen-page curriculum vitae lists numerous accomplishments, including presentations, published articles, and book chapters that deal specifically with intraoperative nerve monitoring. He is in fact the director of the Intraoperative Neurophysiologic Monitoring Program at Stanford University Medical Center, and has been since 1994. The trial judge could reasonably accept his qualifications to express an opinion on intraoperative neurophysiological monitoring.
The report describes what the technician and the monitoring offsite neurologist should have done to "properly setup the case." The technician's setup should have included:
[P]roperly and competently placing invasive intramuscular electrodes in the correct facial muscles at risk for injury and those used as a control; using adequate IONM protocols for this type of procedure; using the proper equipment; properly establishing a remote connection between [the technician] and Dr. Popeney [the offsite monitoring physician] reviewing the baseline data prior to the start of the critical portion of the surgery; and confirming the IONM dynamic results, in real-time, as they occurred with Dr. Popeney.Dr. López reviewed the IONM "Communication Log." Entries support what the surgeon "refers to in her operative report, where she notes that stimulation of all branches of the facial nerve was seen." He contrasts this with what he characterizes as a "Revised" report by the offsite monitoring physician that reported no "CMAPs" (muscle activity) were obtained with any of the stimulations. The expert report notes that the surgeon alerted the monitoring technician that there appeared to be a problem with the stimulator and monitor during the surgery, and the monitoring physician was contacted. Attempts were made during the surgery to adjust the stimulator. Statements made by the technician during the surgery indicated to the surgeon that the facial nerve was not in the area being electrically stimulated and that the electromyography activity was not abnormal, according to the report.
Apparently Dr. Popeney did not begin monitoring until more than forty minutes after the first surgical incision, and the data was already being obtained at that time. The expert report further explains, "This would indicate that the IONM technologist was unsupervised at the start of the case and that Dr. Popeney could not have reviewed any of the baseline IONM data at the start of the case."
Dr. López's report supports plaintiffs' claim: the technician was unsupervised and failed to properly interpret the data to locate the facial nerve, and as a result the surgeon mistakenly cut and ligated the nerve. In Dr. López's opinion, the cutting of the facial nerve was proximately caused in whole or in part by the technician's failure to follow the applicable standard of care. Dr. López states, "[A]t a minimum, [the technician] did not adhere to the standard of care for his profession in the following manner: 1. [P]roviding IONM services beyond his level of expertise; 2. Providing expert interpretation of the IONM data, and doing so in a real-time manner; misinterpretation of the IONM data; 3. Failure to confirm the IONM data with the supervising IONM physician prior to alerting the surgeon; 4. Improper storage of the IONM data." Dr. López reports that the technician's employer was negligent in failing to provide a properly trained technician to perform IONM technical services and alert the surgeon of neurophysiologic changes. The report indicates that the technician was interpreting and reporting data directly to the surgeon that should have been interpreted by the supervising neurologist; that the neurologist was not supervising the technician; and that the technician misinterpreted the data because the technician was not sufficiently qualified to provide an expert interpretation. Assisting in the proper identification of the facial nerve was the purpose for the monitoring service.
The Supreme Court has explained that "the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial." Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). A report may be informal, as it is here, and "need not marshal all the plaintiff's proof[.]" Id. at 878-79. The report must provide enough information to inform the defendant of the specific conduct in question, and "provide a basis for the trial court to conclude that the claims have merit." Id. at 879. The trial judge could reasonably conclude the report in this case does both. The statute "vests the trial court with discretion." Id. at 877. I respectfully dissent.
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DAVID GAULTNEY
Justice