Opinion
No. 05-08-00436-CV
Opinion Filed February 3, 2009.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-03458-07.
Before Justices BRIDGES, FITZGERALD, and LANG.
MEMORANDUM OPINION
This is a health care liability case against a chiropractor and his clinic. In an effort to comply with the expert-report requirements set forth in chapter 74 of the civil practice and remedies code, the plaintiff furnished the defendants with one report when she filed suit and a second report 120 days later. The defendants filed an objection and motion to dismiss attacking the first report, and they later filed a separate objection and motion to dismiss attacking the second report. The trial court signed a single order in which it overruled the objection and denied the motion to dismiss as to the first report, but sustained the objection to the second report and granted the plaintiff a thirty-day extension to cure deficiencies in the second report. The defendants filed this interlocutory appeal from the order as it pertains to the first report only. We reverse in part and remand for further proceedings.
I. Background
Susan Billingsley sued chiropractor Tinghui Li, D.C. and his company, Li Chiropractic and Acupuncture Clinic (collectively, "Li"). She alleged that Li improperly performed a chiropractic adjustment to her thoracic spine, thereby causing her severe injuries.
Billingsley acknowledged in her petition that her claims are health care liability claims governed by chapter 74 of the civil practice and remedies code. She attached a report by a chiropractor, Robert B. Honigsfeld, D.C, to her petition in support of her claim. Shortly thereafter, and well within Billingsley's 120-day deadline for serving expert reports, Li filed a single document containing both objections to the adequacy of the Honigsfeld report and a motion to dismiss the case with prejudice. On the 120th day after she filed suit, Billingsley filed a second report by a medical doctor, Gregory D. Powell, M.D. Li then filed a second motion to dismiss in which he objected to the sufficiency of the Powell report.
As has since been clarified by the Texas Supreme Court, this request for dismissal was premature. Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) ("Only when [the 120-day] window has closed and no report has been filed can a defendant move for dismissal and fees under subpart (b).").
The trial court heard both of Li's motions to dismiss on the same day. In a single order it (1) overruled Li's objections to the Honigsfeld report, (2) denied Li's motion to dismiss attacking the Honigsfeld report, (3) sustained Li's objections to the Powell report, (4) granted Billingsley a thirty-day extension to cure the defects in the Powell report, and (5) took the Powell motion to dismiss under advisement pending receipt of a new report. Li then filed this interlocutory appeal from the trial court's order. In the meantime, our record shows, Billingsley has served and filed in the trial court an amended report by Powell, and Li has filed a new motion to dismiss attacking that amended report. Our record contains no order disposing of that motion.
Li concedes that any issues regarding the Powell report and amended Powell report are not properly before us. See Ogletree v. Matthews, 262 S.W.3d 316, 317 (Tex. 2007). Thus, we limit our analysis to the trial court's rulings on the Honigsfeld report.
II. Analysis
A. Standard of review
We review a trial court's ruling on a motion to dismiss under the expert report provisions of Chapter 74 for abuse of discretion. Romero v. Lieberman, 232 S.W.3d 385, 389 (Tex.App.-Dallas 2007, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Id.
B. Expert report requirements of Chapter 74
Within 120 days after filing an original petition asserting a health care liability claim, a plaintiff must serve an expert report, with the expert's curriculum vitae, on each defendant against whom a liability claim is asserted. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). "Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding three elements: (1) the applicable standards of care, (2) the manner in which the care rendered by the defendant failed to meet the standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). If the plaintiff does not timely serve an expert report, the court must, on motion by the affected defendant, dismiss the case with prejudice and award the defendant its attorneys' fees and costs. Id. § 74.351(b). If the defendant's motion is based on the inadequacy of the plaintiff's report, the court shall grant the motion only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the statutory definition of an expert report. Id. § 74.351( l).
C. Application of the law to the facts
Li argues that the Honigsfeld report is deficient as to all three required elements of an expert report. He argues that Honigfeld's opinions about causation are insufficient because Honigsfeld is not statutorily qualified to render such an opinion. And he argues that Honigsfeld's opinions about the applicable standards of care and the defendants' alleged breaches of the standards are insufficient because they are conclusory.
1. Causation
We agree with Li that Billingsley has not shown Honigsfeld to be qualified to provide an expert report on the element of causation. For purpose of the expert report, a person is an "expert" with respect to the element of causation only if he or she is "a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence." Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(5)(C); see also Davis v. Webb, 246 S.W.3d 768, 771 (Tex.App.-Houston [14th Dist.] 2008, no pet.) ("[U]nder subsection 74.351(r)(5)(C), only a physician may render opinions regarding causation in an expert medical report.") (footnote omitted). Chapter 74 provides several definitions of "physician," but the only one that applies to natural persons (as opposed to corporations and the like) is "an individual licensed to practice medicine in this state." Tex. Civ. Prac. Rem. Code Ann. § 74.001(a)(23)(A). To be licensed to practice medicine in Texas, a person must hold a license issued under title 3, subtitle B of the Texas Occupations Code. Tex. Occ. Code Ann. § 155.001 (Vernon 2004). Chiropractors, however, are licensed to practice chiropractic by the Texas Board of Chiropractic Examiners under title 3, subtitle C of the code. Id. § 201.301. Nothing in Honigsfeld's report or curriculum vitae suggests that he is licensed to practice medicine, so he is not qualified to provide an expert report as to the element of causation. The trial court erred by failing to sustain Li's objection to all causation opinions in Honigsfeld's report.
2. Standard of care and breach
The statute requires the expert report to set forth the "applicable standards of care [and] the manner in which the care rendered by the physician or health care provider failed to meet the standards." Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6). Courts have construed this to mean that bare conclusions as to the required elements will not suffice. E.g., Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex.App.-Dallas 2007, pet. denied); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (construing article 4590i). "The expert must explain the basis for his statements and must link his conclusions to the facts." Rosa, 240 S.W.3d at 570; see also Mallat v. Reeves, 238 S.W.3d 874, 877 (Tex.App.-Dallas 2007, no pet.) (stating that an expert report must "inform the defendant of the specific conduct at issue") (citing Palacios, 46 S.W.3d at 879). "Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Palacios, 46 S.W.3d at 880.
Although some of Honigsfeld's opinions about the standard of care and Li's breaches are conclusory, we conclude that some of them are based on enough supporting facts to satisfy the statute. After stating a number of general standards applicable to all chiropractors, Honigsfeld states as follows:
In this specific instance, these standards of care required that Dr. Li:
. . .
6. Elicit, perform and document an appropriate daily record of each and every encounter with Ms. Billingsley, to include but not limited to subjective complaints, objective findings, assessment, and plan and/or prognosis
7. Elicit, perform and document an appropriate daily record of each and every treatment provided to Ms. Billingsley, to include but not limited to area(s) treated, form of treatment utilized, length of time of each treatment, settings for each form of treatment utilized and results/outcome of each treatment utilized[.]
We conclude that these opinions about the standard of care include enough specific facts to pass muster under the statute. As to Li's breaches of the standards of care, Honigsfeld states as follows:
I am of the opinion that Tinghui Li, D.C. departed from the above referenced acceptable standard(s) of chiropractic care in the following manner:
. . .
6. Failure to document treatment
a. There are no treatment records made on a daily basis that document subjective complaints, objective findings, assessment, and plan and/or prognosis
b. There are no treatment records made on a daily basis that document each and every treatment provided to Ms. Billingsley, to include but not limited to area(s) treated, form of treatment utilized, length of time of each treatment, settings for each form of treatment utilized and results/outcome of each treatment utilized[.]
We conclude that these opinions are likewise sufficiently grounded in stated facts to pass muster under the statute.
Honigsfeld's report is comparable to the one we reviewed in Romero v. Lieberman. In that case, the expert opined that the standard of care for treating a patient exhibiting the symptoms of the decedent was to arrange for urgent admission of the patient to an intensive care unit where he could receive treatments in the form of oxygen, fluids, and antibiotics. 232 S.W.3d at 390, 391. He further opined that the defendant physicians did not arrange for this care. Id. at 391. We held that the expert's report was not conclusory. Id. In this case, Honigsfeld states that the standard of care required Li to document numerous specific factual matters, and that Li's records do not contain such documentation. We reject Li's argument that Honigsfeld's report is conclusory on the elements of standard of care and breach.
III. Disposition
In his brief, Li prays for dismissal of the case with prejudice and for an award of attorneys' fees. In the current procedural posture of the case, however, the request is premature and cannot be granted.
Accordingly, we reverse the trial court's March 10, 2008 Order on Defendant's Motion to Dismiss only insofar as the court overruled Li's objection to the causation opinions found in the Honigsfeld report. We affirm the Order to the extent the court overruled Li's objections to the standard of care and breach opinions found in the Honigsfeld report. And we remand the case to the trial court for further proceedings consistent with this opinion.