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In Lockhart, the plaintiff died from urosepsis before a physician was able to evaluate or treat the plaintiff for sepsis or procure the plaintiff's transfer to an acute care facility.
Summary of this case from Mummady v. GalanOpinion
No. 01-08-00983-CV
Opinion issued July 16, 2009.
On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2008-034015.
MEMORANDUM OPINION
The issue in this interlocutory appeal is whether the trial court abused its discretion by denying a doctor's motion to dismiss health-care-liability claims. Appellant Christopher Lockhart, M.D. moved to dismiss appellee Normell W. Guyden's medical-malpractice and wrongful-death claims on the ground that Guyden did not file a sufficient expert report. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a), ( l) (Vernon Supp. 2008). The trial court denied the motion to dismiss. We reverse.
Guyden is suing individually and as heir to the Estate of Natalie J. Guyden, deceased.
For the purposes of reviewing the sufficiency of the expert report, the relevant facts as stated in the report are that the patient, Natalie Guyden, was taken to a hospital in Denton, Texas after she nearly drowned. Natalie was treated at the hospital for acute respiratory and renal failure, pneumonia, diabetes mellitus, and anoxic encephalopathy. After almost two months in the hospital, Natalie's condition generally improved; however, she developed a urinary tract infection (UTI).
Notwithstanding the infection, on June 15, 2006, Natalie was transferred by ambulance to a long-term-care facility in Houston. She arrived at Courtyard Convalescent Center at approximately noon on June 15. By 10:30 pm., her fever was 101.2° and there was blood in her urine. By midnight, her temperature rose to 102.8°, which rose further by 1:30 a.m. on June 16 to 103.7°. The nursing notes indicated that Dr. Lockhart's answering service was called at that time and again at 2:50 a.m. concerning Natalie's temperature.
The nursing notes for 4:00 a.m. further indicated that Dr. Lockhart could not be contacted. Natalie refused to eat her breakfast and lunch, and when her family arrived around 12:15 p.m., Natalie's mother said Natalie "didn't look right." Natalie was not breathing, and the staff began cardiopulmonary resuscitation. Paramedics were called, and they arrived at 1:25 p.m. The paramedics pronounced Natalie dead at 1:30 p.m. Dr. Lockhart signed the death certificate, which listed the cause of death as urosepsis.
The relevant portion of the expert report follows:
The standards of medical care applicable under the circumstances beginning on or around the hours of 0130 on June 16, 2006 dictate that a physician has the duty to timely respond to an "after-office-hours" page because it may be a result of an acute deterioration of his long-term care hospitalized patient's condition. The standards of care applicable under the circumstances beginning on or around the hours of 0200 on June 16, 2006 dictate that a physician has the duty to timely evaluate and treat his long term care hospitalized patient for sepsis. The standards of medical care applicable under the circumstances beginning on or around the hours of 0230 on June 16, 2006 dictate that a physician has the duty to timely transfer his long term care hospitalized patient for the treatment of urosepsis.
The standards of medical care applicable under the circumstances, including the fact that as an accepting physician Dr. Lockhart knew or should have known that Natalie Guyden had a UTI beginning on or around the hours of 0130 on June 16, 2006 when paged by the Center's staff dictate that Dr. Lockhart had the duty to timely respond within approximately 30 minutes in order to evaluate and treat the acute deterioration of the patient's condition. The standards of medical care applicable under the circumstances beginning on or around the hours of 0200 on June 16, 2006 dictate that Dr. Lockhart had the duty to evaluate and treat Natalie for sepsis. The standards of medical care applicable under the circumstances beginning on or around the hours of 0230 on June 16, 2006 dictate that Dr. Lockhart had the duty to consider timely transfer Natalie to an acute care facility for the treatment of urosepsis.
In contrast, the medical records document that Dr. Lockhart did not timely respond to the page by the Center's staff. There is no evidence that he responded to any of the calls made to him by the staff at the Center on June 16, 2006. Consequently Dr. Lockhart did not timely evaluate and treat Natalie for sepsis nor timely transfer Natalie to an acute care facility. Thus, it is my medical professional opinion that Dr. Lockhart's medical care with respect to the treatment of Natalie's UTI represents medical negligence.
Furthermore based on my qualifications discussed above and in my CV, the medical science discussed in the "general section" above, the medical facts summarized above, that but for the negligence of Dr. Lockhart as set forth in this section, Natalie Guyden would not have suffered from and died from progressive urosepsis. That is, more likely than not had Dr. Lockhart timely and appropriately responded to the multiple pages allegedly made by the nursing staff at the Center after Natalie Guyden's condition had acutely changed in the early morning hours of June 16, 2006, the patient would have been transferred in a timely manner to an acute care facility for the appropriate and indicated treatment of her urosepsis as detailed above in the "General" section and elsewhere. Consequently, Natalie Guyden would not have died from urosepsis. Thus, it is my professional opinion to a reasonable degree of medical probability that Dr. Lockhart's negligent medical care was a proximate cause of Natalie Guyden's injuries from a urinary tract infection and her death from urosepsis.
Lockhart's motion to dismiss was based on the following objections to the expert report: (1) it does not expressly address monitoring Natalie's "worsening condition, chest retractions, pulse rate, and oxygen saturations"; (2) it assumes that the pages to Dr. Lockhart's answering service were forwarded to Dr. Lockhart and received by him; (3) it assumes that a 30-minute response time to a page is required; (4) it does not establish that the medical records from the Denton hospital indicated that Natalie had a UTI when she was discharged and transferred; (5) it speculates that if Lockhart had diagnosed Natalie in the early morning of June 16, that (a) Natalie would have been admitted to an acute-care facility, (b) she was stable enough to be transferred, and (c) acute-care treatment would have saved Natalie's life; and (6) it does not address whether Natalie was 50% or more likely to die, notwithstanding any action by Dr. Lockhart. After a nonevidentiary hearing, the trial court denied Lockhart's motion to dismiss.
Lockhart's single issue on appeal is that the trial court abused its discretion in denying the motion to dismiss because Normell Guyden did not file an expert report that was an objective, good-faith effort to comply with Civil Practice and Remedies Code section 74.351(r)(6) and American Transitional Care Centers., Inc. v. Palacios. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351( l) (Vernon Supp. 2008) (stating "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)."), § 74.351(r)(6) (Vernon Supp. 2008) (requiring "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."); Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
The only information relevant to our inquiry is within the four corners of the report. Palacios, 46 S.W.3d at 878. A report need not marshal all the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. Id. In setting out the expert's opinions on each of those elements, the report must provide enough information to fulfill two purposes to constitute a good-faith effort. Id. at 879. First, the report must inform the defendant of the specific conduct that the plaintiff has called into question. Id. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit. Id.
On appeal, Lockhart specifically attacks the trial court's order on each of the objections he raised in the trial court. Without deciding the validity of each of Lockhart's objections, we agree that the expert report is conclusory on the specific opinion that Lockhart was negligent in not timely transferring Natalie and that this negligence proximately caused her death:
That is, more likely than not had Dr. Lockhart timely and appropriately responded to the multiple pages allegedly made by the nursing staff at the Center after Natalie Guyden's condition had acutely changed in the early morning hours of June 16, 2006, the patient would have been transferred in a timely manner to an acute care facility for the appropriate and indicated treatment of her urosepsis as detailed above in the "General" section and elsewhere. Consequently, Natalie Guyden would not have died from urosepsis.
The expert report states that Lockhart had a duty to transfer Natalie to an acute-care facility at approximately 2:30 a.m.
The expert report concludes that Natalie would have lived had she been transferred to an acute-care facility. The only discussion in the expert report of the course of treatment for urosepsis, however, is a general one:
If not appropriately treated in a timely manner, urosepsis can progress to severe sepsis with multiple organ dysfunction including metabolic acidosis and/or septic shock culminating in cardiovascular collapse, multiple organ failure and death. However, timely and appropriate treatment with broad-spectrum antibiotics, most especially antibiotics with proven antimicrobial efficacy based on C S results, along with cardiovascular support and protection from vital end organ damage from sepsis, more likely than not, will prevent death in patients such as Natalie Guyden.
The expert report states Natalie should have been transferred at 2:30 a.m., and she was pronounced dead 11 hours later at 1:30 p.m. Nowhere in the expert report is there a specific discussion of, and expert opinion stating, whether Natalie's death would more likely than not have been prevented in that 11-hour period with proper medical diagnosis and treatment. For example, there is no discussion of how that information could have become available to Dr. Lockhart or of what the course of treatment at an acute-care facility would have been during that 11-hour time frame, as opposed to the care she was given or not given at the long-term-care facility, other than a reference to broad spectrum antibiotics and "protection from vital end organ [kidney, lungs, and heart] damages from sepsis." Because the expert report does not contain a fair summary of the basis for an opinion that Dr. Lockhart's alleged negligence proximately caused Natalie's death so as to conclude that the claim against Dr. Lockhart has merit, it is deficient as to Dr. Lockhart. See Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex.App.-Houston [1st Dist.] 2008, no pet.); see also IHS Acquisition No. 140, Inc. v. Travis, No. 13-07-00481-CV, slip op. at 13 (Tex.App.-Corpus Christi Apr. 24, 2008, pet. denied) (memorandum opinion) ("an expert report provides a `fair summary' of causation if it explicates what a nursing home (or physician) should have done but did not do, and then explains that the inattention caused otherwise treatable medical conditions to become fatally unmanageable."); CHCA Mainland, L.P. v. Wheeler, No. 09-07-00634-CV (Tex.App.-Beaumont Apr. 10, 2008, no pet.) (memorandum opinion).
Accordingly, we hold the trial court abused its discretion by denying Lockhart's motion to dismiss, sustain Lockhart's single issue on appeal, and reverse the trial court's order. The Clerk of this Court is directed to issue the mandate immediately to allow further proceedings in the trial court, including whether to grant a 30-day extension of time for Normell Guyden to file an amended expert report. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(c) (Vernon Supp. 2008); TEX. R. APP. P. 18.6 (expediting issuance of mandate in accelerated appeals).