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concluding that "it is reasonable to anticipate [primary doctor] would follow the recommendation of [consulting specialist doctor]"
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NO. 14-16-00961-CV
01-23-2018
MANJU MONGA M.D., Appellant v. ISRAEL PEREZ AND ARGELICA PEREZ, INDIVIDUALLY AND A/N/F OF XXXXX XXXXX, A MINOR, Appellee
On Appeal from the 281st District Court Harris County, Texas
Trial Court Cause No. 2016-54818
MEMORANDUM OPINION
Appellant Dr. Manju Monga was the consulting maternal-fetal medicine doctor for appellee Argelica Perez, a pregnant mother with gestational diabetes. In this interlocutory appeal Dr. Monga challenges the denial of her motion to dismiss the claims against her for failure to serve an adequate expert report under section 74.351 of the Texas Civil Practice and Remedies Code. Argelica and her husband Israel, Individually and as next friend of their minor child, J.P., brought suit against Dr. Monga and others for injuries sustained during the birth of J.P.
The Perezes timely filed three expert reports, two of which are at issue here. Dr. Monga challenges one report on grounds that the expert was not qualified to render the opinions stated and his opinions are conclusory and speculative. Dr. Monga maintains that the second expert report does not establish causation as to her because the report does not refer to her by name. Because we conclude that the expert reports in this case, when read together, provide a fair summary of the applicable standards of care, how the experts contend the standards of care were breached, and the causal relationship between the breach and the injury, harm, or damages claimed, we affirm the trial court's order denying Dr. Monga's motion to dismiss.
BACKGROUND
Unless otherwise noted, the factual background is drawn from statements contained in the Perezes' live pleading and the report of their expert, Dr. Van Reid Bohman.
Argelica Perez gave birth to her third child, J.P., in March 2014. As she had with her first two children, Argelica developed gestational diabetes. Gestational diabetes, if not adequately treated, can lead to a large fetus, known as macrosomia. According to the expert report, macrosomic fetuses are those weighing over 8 pounds 13 ounces.
Argelica obtained prenatal care from her primary obstetrician Dr. David Galvan. Near the end of her pregnancy, she also saw maternal-fetal medicine specialist Dr. Monga. Dr. Monga states in her brief that she specializes in prenatal care of patients with diabetes and other high risk diseases, and that Dr. Galvan consulted her group practice to assist him in the prenatal assessment and management of Argelica's diabetes. Dr. Monga saw Argelica three times: on March 3, March 10, and March 13.
Dr. Monga also states that she "does not provide obstetrical care but rather is a consultant who assist [sic] the primary obstetricians with the prenatal care of their patients."
On March 13, Dr. Monga recommended inducement of labor for preeclampsia and diabetes. Dr. Galvan admitted Argelica for induction and was assisted in the delivery by his colleague Dr. Jane Starr. During delivery, J.P. became entrapped in the birth canal and suffered shoulder dystocia and cord occlusion. Medical records indicate that J.P.'s head was exposed while the remainder of his body remained stuck in the birth canal for 29 minutes. Dr. Starr ultimately employed a procedure to pull the infant out of the birth canal and, when delivered, J.P. had extensive facial and scalp bruising. He also did not have a heartbeat for 15 minutes and had to be resuscitated. J.P. weighed 10 pounds and 13.5 ounces at birth.
Shoulder dystocia occurs when the baby's shoulder becomes stuck in the birth canal during delivery.
The Perezes maintain that J.P. suffered permanent brachial plexus and brain injuries during his delivery and brought this lawsuit against Dr. Galvan, Dr. Starr, their medical practice, Southwest Obstetrical/Gynecological Associates LLP, Methodist Sugarland Hospital, The Methodist Hospital, the hospital nurses involved in the delivery, and Dr. Monga. They assert that, given the size of J.P. before birth, the doctors should have recommended earlier delivery or delivery by cesarean section. Specifically as it relates to Dr. Monga, the Perezes pleaded that Dr. Monga was negligent in (1) failing to properly perform the medical treatment necessary and according to standards set by the medical profession; (2) failing to recognize J.P.'s size and risk factors; (3) failing to measure the fetal head and fetal abdomen, which would have been a risk factor for shoulder dystocia; and (4) failing to order a cesarean section that, if performed promptly, would have avoided the harm.
Dr. Monga is the only defendant that is a party to this appeal.
Pursuant to the requirements of the Texas Medical Liability Act, the Perezes timely filed three expert reports. One report, by nurse Gayle M. Huelsmann R.N., is not involved in this appeal. The second report, by pediatric neurologist Dr. Garrett C. Burris, addressed the causation element of the injuries sustained by J.P. Dr. Monga did not object to the Burris report, but contends that it does not support causation as to the claims asserted against her. The third report, by maternal-fetal medicine specialist Dr. Van Reid Bohman, addressed the standards of care, breach of those standards, and, according to the Perezes, causation, as to the claims asserted.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2017).
Dr. Monga timely filed objections to the Bohman report and the Perezes then served an amended report. Dr. Monga objected again to the amended report and filed a motion to dismiss the claims, contending that the report is inadequate. The trial court held a hearing on the objections and motion and, after taking the motion under advisement, denied the motion to dismiss. Dr. Monga timely filed this interlocutory appeal under section 51.014(a)(10) of the Texas Civil Practice and Remedies Code.
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (10) (West Supp. 2017).
ANALYSIS
In one issue, Dr. Monga raises six grounds challenging the expert report of Dr. Bohman and the trial court's denial of the motion to dismiss. In our analysis, we group the grounds into three categories: (1) challenges to Dr. Bohman's qualifications to render opinions; (2) challenges to the description of the relevant standard of care and the criticism of Dr. Monga as speculation and conjecture; and (3) challenges to the causation opinions of Dr. Bohman as conclusory and speculative. According to Dr. Monga, the expert reports lack any basis for the trial court to conclude that the claims against Dr. Monga have merit, equate to no report rather than a deficient report, and that dismissal, rather than an extension, is the only option.
A. Standards of review and applicable law
We review a trial court's ruling on the adequacy of an expert report under section 74.351 for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam); Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to any guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). As a reviewing court on matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court merely because we would have ruled differently. See Wright, 79 S.W.3d at 52; Lucas v. Clearlake Senior Living Ltd. P'ship, 349 S.W.3d 657, 660 (Tex. App.—Houston [14th Dist.] 2011, no pet.). When reviewing decisions that fall within the trial court's discretion, "[c]lose calls must go to the trial court." Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam).
The Texas Medical Liability Act requires a party asserting a healthcare liability claim to serve, within the 120th day after each defendant's original answer is filed, an expert report for each physician or healthcare provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a). An expert report is defined as "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 . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). If a plaintiff does not timely serve an expert report that is an "objective good faith effort" to provide a fair summary of the required elements, the trial court must dismiss the healthcare claim on motion of the affected healthcare provider. See id. §§ 74.351(b), (l); Miller v. JSC Lake Highlands Operations, LP, No. 16-0986, 2017 WL 6391215, at *2 (Tex. Dec. 15, 2017) (per curiam); Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). If the report has not been timely served because "elements of the report are found deficient," the court may grant a thirty-day extension to cure the deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c); Gannon, 321 S.W.3d at 885.
A good faith effort means "a report that does not contain a material deficiency. Therefore, an expert report that includes all the required elements[,] and that explains their connection to the defendant's conduct in a non-conclusory fashion[,] is a good faith effort." Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011) (internal citations omitted).
While the expert report need not marshal all of the plaintiff's proof, it must include the expert's opinions on the three statutory elements of standard of care, breach, and causation. Palacios, 46 S.W.3d at 878; Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The plaintiff may satisfy these requirements by serving more than one expert report regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or healthcare provider. Tex. Civ. Prac. & Rem. Code § 74.351(i); see Miller, 2017 WL 6391215, at *2 (citing Tex. Civ. Prac. & Rem. Code § 74.351(i) and TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 43 (Tex. 2013)); Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Information in the report can be informal, need not use any "magic words," and does not have to meet the same standards as evidence offered in a summary judgment proceeding or trial. See Kelly, 255 S.W.3d at 672 ("The expert report is not required to prove the defendant's liability."); see also Jelenik v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (stating no magic words are required). Bare conclusions or speculation will not suffice, and the information relevant to the inquiry must be contained within the four corners of the expert report. See Wright, 79 S.W.3d at 52-53; Humble Surgical Hosp., LLC v. Davis, No. 14-16-01026-CV, 2017 WL 4679280, at *8 (Tex. App.—Houston [14th Dist.] Oct. 17, 2017, no pet. h.) ("Conclusions without explanation or connection to facts are not sufficient.").
To constitute a good faith effort to comply with the expert-report requirement, the report must provide enough information to fulfill two purposes of the statute: (1) the report must inform the defendant of the specific conduct the plaintiff has called into question and (2) the report must provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879; see also Miller, 2017 WL 6391215, at *2.
B. The expert reports
Dr. Monga challenges the second Palacios element and contends that the expert reports of Dr. Bohman and Dr. Burris do not provide the trial court with any reasonable basis to conclude that the claims against her have merit. To aid our analysis and provide context for Dr. Monga's arguments on appeal, we quote portions of both reports.
Dr. Bohman's 16-page report provides in pertinent part as follows:
* * *
2. Standard of Care and Breach by Manju Monga, MD
Standard: The standard of care for physicians providing Maternal Fetal Medicine services is to monitor and assess the mother and the fetus and to make a determination as to whether the mother and the fetus have a higher chance of a positive outcome through vaginal or cesarean delivery. When presented with a fetus too large for a safe, vaginal delivery, the standard of care requires the obstetrician to recommend a delivery by cesarean section. The standard of care
requires obstetricians to take a patient's full medical history and prenatal care into account determining the safest method of delivery. Regardless of whether the obstetrician is the "primary" or "consulting" physician, the duties do not change regarding recommendations for the patient. It [is] reasonable to appreciate that a primary obstetrician will follow the advice of a consulting maternal fetal medicine specialist.
Breach: Dr. Monga reviewed the March 3, 2014 ultrasound, which demonstrated that fetal weight was already 3,819 grams, or 8lbs 7ozs, a gain of 1,487 grams or 3lbs 5ozs in four weeks. The fetal weight and abdominal circumference exceeded the 95th percentile, and the head circumference was only in the 31st percentile. Fetal weight gain increases after the 35th week of gestation, with the average fetus gaining ½ pound, or 230 grams, per week for the next four weeks. Mrs. Perez's infant had gained an average of 371 grams per week since February 3, 2014. Dr. Monga was aware that Mrs. Perez's pregnancy was complicated by gestational diabetes and controlled by medication, including insulin. As stated above, excess insulin produced during gestational diabetes acts as a growth hormone that causes the fetus to grow abnormally large. Based on her baby's rapid growth, Mrs. Perez was going to have a fetal weight that exceeded 4,000 grams in less than one week. Dr. Monga knew that [J.P.] was likely to be macrosomic, weighing over 4,000 grams, based on the current scans. Dr. Monga should have realized that if Mrs. Perez was allowed to carry her baby even a week longer, there was a substantial risk to the baby. Dr. Monga failed to recommend either immediate induction of delivery on March 3, 2014 or delivery by cesarean, breaching of [sic] the standard of care. Further, despite also knowing that the abdominal circumference was substantially larger than the circumference of the head, Dr. Monga did not recommend a delivery by cesarean section or immediate induction, also a breach of the standard of care. Mrs. Perez's history shows that she delivered her second child weighing 8lbs 11 ozs with no listed complications. Had Mrs. Perez delivered on this date, either vaginally or by cesarean section, her baby would not have grown to 10 lbs 13 ozs and dystocia would likely not have occurred and neither would have the further resulting permanent injuries to [J.P.].
Regardless, Dr. Monga continued to breach the standard of care. On March 10, 2014, one week after her previous visit, Mrs. Perez was again seen by Dr. Monga. Fetal growth measurements were not taken despite Mrs. Perez['s] well-documented high risk for fetal macrosomia
and shoulder dystocia. . . .During this March 10, 2014 visit, Dr. Monga again does not recommend Mrs. Perez be scheduled for delivery. She also fails to make any recommendation for Mrs. Perez to deliver via cesarean. Instead, Dr. Monga agrees with Dr. Galvan to deliver [J.P.] the following week. . . .Dr. Monga breached the standard of care when she did not take fetal growth measurements to obtain a more accurate estimation of [J.P.]'s weight and measurements. Dr. Monga then breached the standard of care when she failed to recommend Mrs. Perez deliver immediately and via cesarean section.
And yet the breaches of the standard continued. On March 13, 2014, Dr. Monga saw Mrs. Perez for a third time. Again, Dr. Monga failed to take any fetal growth measurements when she performed an ultrasound. The records indicate that Dr. Monga finally recommended Mrs. Perez be induced for preeclampsia and diabetes. Dr. Monga breached the standard of care again when she failed to recommend a cesarean delivery for Mrs. Perez despite knowledge of Mrs. Perez's high risk for fetal macrosomia and shoulder dystocia based on her prenatal records and numerous ultrasound scans.
Opinion: It is my opinion that based on the documented size of [J.P.] Dr. Monga violated the standard of care by failing to recommend that Mrs. Perez deliver via cesarean section, when she had three opportunities to do so. Predicting an estimated fetal weight further into a mother's gestation can be done using the fetal growth percentiles provided when measurements are taken. A fetus that is measuring above the 95th percentile in the last month of gestation can be expected to grow along the 95th percentile growth line within the next week. Dr. Monga could have easily anticipated the estimated fetal weight of [J.P.] by tracking the progress on a fetal growth chart. When presented with a baby of this size, growing at an above-average rate, and with an abdominal circumference substantially larger than the head circumference, and with the mother's history of diabetes and her small stature, Dr. Monga should have anticipated that fetal macrosomia and shoulder dystocia was likely to occur if Mrs. Perez delivered vaginally. The standard of care required Dr. Monga to recommend a cesarean section. Had she done so, the dystocia that went unresolved for 29 minutes during delivery and the subsequent injuries to [J.P.] would [sic] been avoided.
* * *
CONCLUSION
* * *
I am familiar with the terms "negligence," "ordinary care," and "proximate cause." Mrs. Perez should have been better monitored during her pregnancy for diabetes, which would have resulted in a normal sized baby, but Dr. Galvan failed to do so. Mrs. Perez should have been informed of the risks posed to her and her infant if a vaginal delivery occurred and she should have been given the recommendation to have a cesarean. Instead, Dr. Galvan and Dr. Monga decided on a vaginal delivery when a cesarean was plainly called for. Even though shoulder dystocia occurred, Mrs. Perez's baby could have still been delivered without any permanent injuries if the Hospital nurses, including Nurse Menard and Nurse Martin; Dr. Galvan; and Dr. Starr had not breached the standards of care required in shoulder dystocia situations as discussed above. It is my opinion that they were negligent in failing to exercise ordinary care before and during the delivery and that their negligence was a proximate cause of the baby's brachial plexus injury and brain damage.
Dr. Burris, a pediatric neurologist, also authored an expert report in support of the Perezes' claims. Dr. Burris, like Dr. Bohman, explained that gestational diabetes is a well-known complication of pregnancy and that excessive insulin can cause the fetus to grow abnormally large. Dr. Burris stated:
There are significant risks with delivering a macrosomic fetus vaginally. Given that the fetus is so large, there is an increased risk for shoulder dystocia during the birthing process. When the fetus is trapped, significant injuries can occur, including hypoxic ischemic injury and brachial plexus injury.
* * *
Based on my review of the records, it is my opinion within a reasonable degree of medical probability that when Mrs. Perez was admitted to Houston Methodist Sugar Land Hospital on March 13, 2014, her baby was neurologically and physically normal, as reflected in his biophysical profile three days earlier and in the fetal heart strips leading up to his delivery. It is my opinion within a reasonable degree of medical probability that hypoxic ischemic injury occurred during the
time of the shoulder dystocia and fetal entrapment with umbilical cord occlusion. In this case, [J.P.] endured oxygen deprivation as long as 29 minutes causing severe brain damage.
The abnormal cord blood gases shortly after delivery reflected the severity of the hypoxia and ischemia during the entrapment. This infant would have been neurologically normal had the fetal entrapment at delivery been avoided.
Dr. Monga does not challenge the Burris report with regard to his qualifications or the opinions stated in the report.
C. Qualifications of Dr. Bohman
Dr. Monga challenges Dr. Bohman's qualifications to render opinions on medical ultrasound, the disease of gestational diabetes, and causation. Dr. Monga did not raise an objection to Dr. Bohman's qualifications on gestational diabetes in the trial court. In her objections and motion to dismiss in the trial court, Dr. Monga contended that "Dr. Bohman has not shown himself qualified to assert the opinions he has asserted against Dr. Monga concerning the use of ultrasound," and "[i]n this case Dr. Bohman's criticisms of Dr. Monga centered around the interpretation of ultrasound. . . . Dr. Bohman, on the other hand, demonstrated no expertise or qualifications in his report or CV qualifying him to be an expert in ultrasound interpretation." Dr. Monga makes no objection in the trial court regarding Dr. Bohman's qualifications to opine on gestational diabetes. As a result, Dr. Monga may not raise that objection for the first time on appeal. See Gannon, 321 S.W.3d at 894 (refusing to consider new causation argument not included in objections in trial court). We thus consider the objection to Dr. Bohman's qualifications on medical ultrasound and causation.
In Humble Surgical Hosp., we recently held that a defendant could argue objections on appeal that were sufficiently similar to those made in the trial court. See 2017 WL 4679280, at *7. We concluded that the objections raised on appeal were not new objections, but rather more accurately characterized as facts or explanations of the argument made in the trial court, and "[b]ecause the arguments . . . on appeal are sufficiently similar to or encompassed by those they raised before the trial court," the objections were sufficiently preserved. Id. In this case, the objection to Dr. Bohman's qualification to render an opinion related to gestational diabetes was not raised in any form in the trial court. As such, the objection was not preserved. See Gannon, 321 S.W.3d at 894.
1. Challenge to qualifications on medical ultrasound
An expert is qualified to render an opinion against a physician regarding standard of care if the physician (1) is practicing medicine at the time of the testimony or was practicing medicine at the time the claim arose; (2) has knowledge of the accepted standard of care for diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. See Tex. Civ. Prac. & Rem. Code § 74.401(a). In assessing whether the witness has the required knowledge, skill, experience, or training, the court shall consider whether the witness is: (1) board certified or has other substantial training or experience "in an area of medical practice relevant to the claim," and (2) is actively practicing medicine "in rendering medical care services relevant to the claim." Id. § 74.401(c). We look only to the four corners of the expert report and the curriculum vitae to determine whether an expert is qualified. Mem'l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The expert report and curriculum vitae must establish the witness's knowledge, skill, experience, training, or education regarding the specific issue before the court. See Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 118-19 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Not every licensed physician is qualified to provide expert testimony on every medical question. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). There must be a link between the expert's knowledge and experience to the facts at issue in the case. See Burrell, 230 S.W.3d at 759-60; see also CHCA Mainland, L.P. v. Dickie, No. 14-07-00831-CV, 2008 WL 3931870, at *6 (Tex. App.—Houston [14th Dist.] Aug. 21, 2008, no pet.) (mem. op.) (neither expert report nor curriculum vitae showed internist had experience or familiarity with decubitus ulcers, the condition relevant to the claim).
In his report, Dr. Bohman states the following with regard to his qualifications:
I am a Maternal Fetal Medicine specialist. I have over 25 years of experience as a medical doctor, and I am Board Certified in both Obstetrics and Gynecology and Maternal-Fetal Medicine. . . . I am licensed to practice medicine in both Texas and Nevada. In my years of practice, I have gained extensive experience in labor and delivery and performing cesareans, in various settings.
Being familiar with the applicable standards of care—expressed in the Association of Women's Health, Obstetric and Neonatal Nurses (AWHONN) and the American College of Obstetricians & Gynecologists (ACOG)—I have prepared this report reflecting my opinions regarding standards of care in the profession related to this case and the manner in which those standards were not met by the healthcare providers who provided care to Argelica and her baby, including during labor and delivery.
My opinions in this report are based on reasonable medical probability. My opinions were formulated on my knowledge, training, and experience acquired in the over 25 years of clinical experience related to the continuum of care provided to women, their pregnancies, and deliveries. . . .
Dr. Bohman's curriculum vitae shows that he has practiced as a part of various perinatology groups continuously since 1992 and that he has authored or co-authored several articles on sutures for cesarean sections. Dr. Bohman maintains privileges at several hospitals and is a Fellow of the American College of Obstetricians and Gynecologists and a Fellow of the Society of Perinatal Obstetricians.
Dr. Monga correctly states that nothing in the expert report or the curriculum vitae expressly states that Dr. Bohman uses or has experience with medical ultrasound. But we do not agree that the statute requires Dr. Bohman to list his experience with medical ultrasound in his report to render an opinion regarding the failure to recommend delivery by cesarean. The statute provides that a witness is qualified to render an opinion if the witness is board certified and "is actively practicing medicine in rendering medical care services relevant to the claim." Tex. Civ. Prac. & Rem. Code § 74.401(c); see Pokluda, 283 S.W.3d at 120. Dr. Bohman is qualified under this standard because his report and curriculum vitae show that he is board certified in not only obstetrics and gynecology but also in maternal-fetal medicine, that he has been practicing with perinatology groups continuously since 1992, and that he has experience with labor and delivery, cesareans, and the continuum of care involved with women, their pregnancies, and deliveries.
Dr. Monga also argues that Dr. Bohman included a definition of macrosomia that is different than several bulletins describing macrosomia, and that ultrasound imaging is a highly regulated and specialized medical endeavor that is not always accurate. To the extent Dr. Monga complains of the reasonableness of the opinions stated or the accuracy of ultrasound, such complaints challenge the underlying credibility of Dr. Bohman's opinions, not his qualifications and are not relevant to the analysis. See Miller, 2017 WL 6391215, at *6 ("At this preliminary stage, whether those standards appear reasonable is not relevant to the analysis of whether the expert's opinion constitutes a good-faith effort."); Gannon, 321 S.W.3d at 892 ("[t]he credibility and weight to be given to the facts supporting the expert's opinion is an issue for trial.").
As we explained in Pokluda, the statute does not require that an expert have performed the exact procedure at issue to render an opinion. 283 S.W.3d at 120 ("We have found no authority for the proposition that a surgeon must have performed exactly the same surgery as the defendant physician in order to render an expert opinion. The standard is not so narrow."). Likewise, the statute does not require that an expert expressly state that he has used various tools at issue in the case. As long as the physician has the requisite knowledge, training, and experience rendering "medical services relevant to the claim," the expert is qualified to render an opinion. See id.; see also Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (expert qualified to give opinion where he had knowledge, skill, training, and experience and where subject of claim fell within his medical expertise).
Dr. Monga cites Cortez v. Tomas, No. 02-11-00231-CV, 2012 WL 407382 (Tex. App.—Fort Worth Feb. 9, 2012, no pet.) (mem. op.) and In re Windisch, 138 S.W.3d 507 (Tex. App.—Amarillo 2004, orig. proceeding) (per curiam) in support of her argument that Dr. Bohman must show specific experience with medical ultrasound. We find both cases inapposite. In both cases, the court found the physicians failed to show experience or familiarity with the specialized procedures at issue. See Cortez, 2012 WL 407382, at *5 (surgical removal of ovary was "complex and beyond the experience and training of most physicians practicing obstetrics and gynecology"); In re Windisch, 138 S.W.3d at 514 (nothing in radiologist's report showed any familiarity, training, or experience with procedure at issue—embolization of brain tumors). To the extent Cortez and Windisch conflict with our statement in Pokluda that the statute does not require the expert to have performed the exact procedure at issue to render an opinion, we decline to follow them.
Dr. Bohman's core opinion regarding breach of the standard of care is that Dr. Monga did not recommend delivery immediately on March 3 or delivery by cesarean section, based on the information available to her through prior ultrasound and the patient's history. The Perezes specifically pleaded that Dr. Monga was negligent in failing to order a caesarean section that, if performed promptly, would have avoided the harm. Dr. Bohman's report and curriculum vitae demonstrate his experience with managing labor and delivery by cesarean section when he states: "I have gained extensive experience in labor and delivery and performing cesareans, in various settings" and explains he has over 25 years clinical experience related to "the continuum of care provided to women, their pregnancies, and deliveries." He is qualified to render an opinion as to whether Dr. Monga breached the standard of care in failing to order the type of procedure that he has extensive experience performing.
The trial court acted within its discretion in finding Dr. Bohman was qualified to render his opinions related to Dr. Monga's breach of the standard of care. See Pokluda, 283 S.W.3d at 120.
Even were we to determine that Dr. Bohman was not qualified to render an opinion related to medical ultrasound because he did not state his experience with medical ultrasound in his report or curriculum vitae, we still would hold that the trial court did not abuse its discretion in denying the motion to dismiss. As long as the plaintiff serves a report that is adequate as to at least one pleaded liability theory, the case may proceed. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) ("In sum, an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case."). As noted, the Perezes pleaded that Dr. Monga is liable based on the failure to recommend a cesarean section that, if performed promptly, would have avoided the harm. Dr. Bohman is qualified to render an opinion related to this alleged failure, thus allowing the case to proceed.
2. Challenges to qualifications on causation.
Dr. Monga also contends that Dr. Bohman is not qualified to render opinions as to causation because he "never showed himself qualified to make a pediatric neurologic causation opinion." She states that Dr. Bohman by his own admission limited himself to standard-of-care opinions. We again disagree. Though Dr. Bohman stated in his report that he was preparing it to reflect his opinions on the standards of care and the way those standards were not met, nothing in the report states that he is limiting himself to opinions regarding standards of care and breach of those standards.
If Dr. Bohman made such a statement and then inconsistently opined on causation, that fact would not render Dr. Bohman unqualified to render an opinion on causation. Instead, the trial court had the discretion to review the report in its entirety and resolve any such inconsistences. As the Supreme Court of Texas stated in Van Ness v. ETMC First Physicians, "the trial court had the discretion—indeed it was incumbent on the trial court—to review the report, sort out its contents, resolve any inconsistencies in it, and decide whether the report demonstrated a good faith effort to show that the Van Nesses' claims had merit." 461 S.W.3d 140, 144 (Tex. 2015) (per curiam). The trial court here did so and determined that the report was sufficient.
Section 74.351(r)(5)(C) provides that, "a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim" must be qualified under the Texas Rules of Evidence. See Tex. Civ. Prac. & Rem. Code § 73.351(r)(5)(C); see Burrell, 230 S.W.3d at 762. Rule 702 of the Rules of Evidence allows a witness "qualified as an expert by knowledge, skill, experience, training, or education" to testify in the form of an opinion or otherwise. Tex. R. Evid. 702. Dr. Bohman's clinical experience managing labor and delivery as a maternal-fetal medicine specialist for over 25 years also qualifies him to render an opinion as to the cause of complications and injuries arising from labor and delivery, including shoulder dystocia and resulting injuries.
Several of our sister courts have addressed when an obstetrician is qualified to opine on causation of neurological injuries suffered during birth even though the physician is not a neurologist. See, e.g., Cornejo v. Hilgers, 446 S.W.3d 113, 120-23 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (board certified obstetrician/gynecologist qualified to testify regarding neurological injuries suffered at or around time of birth because report demonstrated he had specific expertise in complications in pregnancy, management of labor, and evidence of fetal hypoxia as predicted by fetal heart rate patterns); Abilene Reg'l Med. Ctr. v. Allen, 387 S.W.3d 914, 922-23 (Tex. App.—Eastland 2012, pet. denied) (obstetrician/gynecologist qualified because expert had attended hundreds of deliveries and was familiar with biological mechanisms that can lead to brain injury in fetus); Livingston v. Montgomery, 279 S.W.3d 868, 877 (Tex. App.—Dallas 2009, no pet.) (obstetrician qualified to testify even though not a pediatric neurologist because expert had sufficient experience managing labor and delivery and the complications that stem from labor and delivery, including an infant's neurological injuries). As these decisions show, there is no per se requirement that an expert be a pediatric neurologist to opine on causes of fetal brain injury occurring during labor and delivery. Instead, the expert must show the requisite expertise or experience relevant to the injuries at issue. See Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 407 (Tex. App.—El Paso 2011, no pet.) (physician not qualified to testify on causation of neurologic injuries because he had no recent experience in perinatology); see also Roberts v. Williamson, 111 S.W.3d 113, 122 (Tex. 2003) (pediatrician could testify regarding neurological injuries because he had experience and education relating to injuries at issue).
In this case, Dr. Bohman's report states that Argelica's diabetes was not controlled with medicine, causing the fetus to grow exceptionally large. He further states that there is a high likelihood that an exceptionally large fetus will become entrapped during the birthing process and, if that happens, significant injuries can occur, including lack of oxygen, nerve damage, and other birth injuries. In his opinion, had Dr. Monga recommended delivery by cesarean section, "the dystocia that went unresolved for 29 minutes during delivery and the subsequent injuries to [J.P.] would have been avoided." Dr. Bohman's report and curriculum vitae establish that he has many years of experience with perinatology groups in the specialized field of maternal-fetal medicine, is affiliated with several hospitals, and has over 25 years of clinical experience related to the continuum of care provided to women, their pregnancies, and deliveries. This experience dealing with all aspects of labor and delivery and specialized education in maternal-fetal medicine, qualifies Dr. Bohman to opine on the complications that can occur during deliveries, including shoulder dystocia and birth injuries that result from shoulder dystocia. See Livingston, 279 S.W.3d at 877; see also Sison v. Andrew M., No. 02-16-00129-CV, 2017 WL 3974356, at * 8-9 (Tex. App.—Fort Worth Sept. 7, 2017, pet. filed) (mem. op.) (holding training and experience of interventional radiologist qualified him to opine on causation of injury resulting from failure to accurately read sonogram).
Dr. Monga states in her reply brief: "If in fact just delivering babies qualified a doctor to diagnose and treat the complications resulting from HIE why would medicine have developed the specialties of pediatric neurology, perinatology, neonatology, neonatal intensive care, and a half dozen related specialties involving the care of fetuses and neonates?" As a maternal-fetal medicine specialist, also known as a perinatologist, Dr. Bohman is not a doctor who simply delivers babies.
Dr. Monga relies heavily on the holding in De La Riva that the obstetrician there did not have the requisite skill, training, or experience to opine on causation of an infant's hypoxic ischemic brain damage. De La Riva, 351 S.W.3d at 406-07. Unlike the obstetrician in De La Riva, however, Dr. Bohman is also board certified in the specialty field of maternal-fetal medicine and has experience with the continuum of care involved in labor and delivery. This experience and training qualifies him, for purposes of a preliminary expert report under section 74.351, to opine on causation of the complications that occurred in J.P.'s delivery.
We conclude the trial court did not abuse its discretion in finding the expert report shows Dr. Bohman was qualified to opine on the cause of the fetal entrapment and resulting injuries suffered by J.P. as reflected in Dr. Bohman's report. As we discuss in the causation section below, Dr. Burris also discusses causation of the injuries suffered by J.P. and, when Dr. Burris's report is read with Dr. Bohman's report, the requisite links in causation exist to satisfy the expert-report requirement of section 74.351.
D. Standard of Care
Dr. Monga argues Dr. Bohman's report is inadequate with regard to the standard of care because "he defined the standard of care for an Obstetrician. He did not describe the standard for Dr. Monga, a consulting Maternal Fetal Medicine physician." Dr. Monga cites statements in Dr. Bohman's report that the standard of care requires "the obstetrician to recommend a delivery by cesarean section" and "the standard of care requires obstetricians to take a patient's full medical history and prenatal care into account determining the safest method of delivery." We conclude that, when read in its entirety, the report adequately sets forth the standard of care as to Dr. Monga. See Van Ness, 461 S.W.3d at 144 (court should "fully credit" all of expert's statements and opinions rather than view them in isolation).
Dr. Bohman devotes two pages in his report to his opinion on the standard of care required of and breached by Dr. Monga. The heading states: "Standard of Care and Breach by Manju Monga, MD." Although he uses the terms obstetrician, physician, and maternal-fetal medicine specialist all within the paragraph describing the standard of care for Dr. Monga, it is clear that he is providing the standard of care he believes applies to Dr. Monga. Dr. Monga contends that she is not an obstetrician, and thus the standard of care cannot apply to her. We disagree. Though she may not have been the primary obstetrician for Argelica, she was a consulting physician for Argelica. Dr. Bohman's report states: "Whether the obstetrician is the "primary" or "consulting" physician, the duties do not change regarding recommendations for the patient." Furthemore, Dr. Bohman expressly states later in his report: "The standard of care required Dr. Monga to recommend a cesarean section." Within the four corners of his report, Dr. Bohman has made a good faith effort to state the standard of care applicable to Dr. Monga. This is sufficient to provide Dr. Monga with a fair summary of the conduct called into question and the trial court with sufficient information to conclude the claims have merit. See Van Ness, 461 S.W.3d at 144; see also Miller, 2017 WL 6391215, at *6 ("The only question here is whether Miller's four expert reports provided enough information for the trial court to conclude they constituted a good-faith effort.").
In the trial court, Dr. Monga did not argue that she was not an obstetrician. She argued that she was "not an obstetrician in the scenario regarding Argelica Perez's medical care and treatment." We thus take Dr. Monga's argument on appeal to mean that she was not the primary obstetrician for Argelica.
E. Causation
Dr. Monga next argues that Dr. Bohman's causation opinion as to Dr. Monga is insufficient because it is speculative and conclusory. Dr. Monga's argument rests on three main contentions: (1) Dr. Bohman failed to state to whom Dr. Monga should have recommended delivery by cesarean section and whether Argelica would have agreed to it; (2) Dr. Bohman failed to show how Dr. Monga would have had the right and the means to enforce her recommendation to prevent J.P.'s injuries during delivery, since she was not the admitting obstetrician; and (3) the causation opinion is based on speculation and conjecture because Dr. Bohman used terms such as "likely to occur" and "shoulder dystocia likely would not have occurred." We review the standards applicable to causation opinions in expert reports and then address Dr. Monga's arguments.
The Legislature enacted the expert-report requirement in section 74.351 to deter frivolous claims. See Palacios, 46 S.W.3d at 878. The statute does not require a plaintiff to marshal all of the proof necessary to establish causation at trial. Wright, 79 S.W.3d at 52; see also Potts, 392 S.W.3d at 631 ("[T]he purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits." (internal quotations omitted)). Nor does a plaintiff have to submit an expert report that anticipates and rebuts all possible defensive theories that ultimately may be presented at trial, and a report is not inadequate simply because the expert ultimately proves incorrect. See Fortner v. Hosp. of the SW, LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.). The expert report or reports, however, must explain the basis of the causation statements and link the conclusions to the facts. See Zamarippa, 526 S.W.3d at 460. This includes adequate opinions regarding proximate cause and how it will be proven. See id. As the Zamarippa court explained:
Proximate cause has two components: (1) foreseeability and (2) cause-in-fact. For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission—i.e., but for the act or omission—the harm would not have occurred.Id. (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per curiam)). Thus, the expert reports submitted by the Perezes must show how foreseeability and cause-in-fact will be proven with regard to Dr. Monga's alleged breaches of the standard of care and the cause of J.P.'s birth injuries.
1. The "should have recommended" a cesarean opinion is not speculative.
Dr. Monga argues that Dr. Bohman's opinion that Dr. Monga should have recommended delivery by cesarean section is impermissibly speculative because he fails to state to whom she should have made the recommendation, and whether that recommendation would have been followed. We disagree.
Read as a whole, the Bohman report shows that Dr. Galvan, the primary obstetrician, and Dr. Monga, the consultant, worked together and with Mrs. Perez with regard to the plan for J.P.'s delivery. The report states in pertinent parts:
• In the records, Dr. Monga stated that she discussed the client's condition with Dr. Galvan and she agreed with a plan to deliver [J.P.] the following week (essentially at 40 weeks, or full term).
• Dr. Monga was aware that Mrs. Perez's pregnancy was complicated by gestational diabetes and controlled by medication, including insulin. . . .Dr. Monga should have realized that if Mrs. Perez was allowed to carry her baby even a week longer, there was a substantial risk to the baby. Dr. Monga failed to recommend either immediate induction of delivery on March 3, 2014 or delivery by cesarean breaching the standard of care.
• During this March 10, 2014 visit, Dr. Monga again does not recommend Mrs. Perez be scheduled for delivery. She also fails to make any recommendation for Mrs. Perez to deliver via cesarean. Instead, Dr. Monga agrees with Dr. Galvan to deliver [J.P.] the following week.
• On March 13, 2014, Dr. Monga saw Mrs. Perez for a third time. . . . The records indicate that Dr. Monga finally recommended Mrs. Perez be induced for preeclampsia and diabetes.
The report also sets forth the fact that, once Dr. Monga recommended that Mrs. Perez be induced, Dr. Galvan in fact admitted Mrs. Perez for induction that same day. The facts set forth in the entirety of the report show that Dr. Galvan followed the recommendation of Dr. Monga, once it was finally made. Thus, Dr. Bohman's opinion that Dr. Monga should have recommended delivery by cesarean is not speculative, but is based on the facts stated in the medical records he reviewed. See Miller, 2017 WL 6391215, at *4 (expert's opinion that failure to timely remove foreign body "can" lead to aspiration, which "can" be deadly, adequate when read in context of entirety of report); Van Ness, 461 S.W.3d at 144.
2. Dr. Bohman's report addresses whether Dr. Monga's recommendation would have been followed.
Likewise, Dr. Bohman's opinion is not speculative with regard to whether the recommendation would have been followed. Dr. Monga relies heavily in post-submission letter briefing on the Zamarippa decision to argue the opinion is speculative because Dr. Bohman does not show that Dr. Monga could enforce her recommendation. In Zamarippa, a pregnant mother suffering from placenta accreta died after being transported from one hospital to another. 526 S.W.3d at 457. The court held that the expert report failed to show proximate cause as to a hospital-defendant where the expert report stated the hospital, through its nurses, breached the standard of care by not stopping the patient's transfer, but did not state how the nurses could have done so or whether they had the authority to do so. Id. at 461. The court noted:
But as Harlass himself explains, it was Dr. Ellis who ordered Flore's transfer, not Valley Regional. Harlass does not explain how Valley Regional permitted or facilitated Flore's transfer, or even whether Valley Regional had any say in the matter. . . . Neither [expert] explains how Valley Regional had either the right or the means to persuade Dr. Ellis not to order the transfer or to stop it when he did.Id.; see also Davis, 2017 WL 4679280, at *10 (finding Zamarippa controlling in case involving nurses' failure to prevent doctor from discharging patient from hospital). Dr. Monga contends that, as in Zamarippa and Davis, the report of Dr. Bohman does not explain how "Dr. Monga—whom Bohman says should have 'recommended' a C-section—would have had the right and the means to enforce her 'recommendation' to prevent an injury during a labor and delivery initiated by the order of, and supervised by, the patient's primary physician, Dr. Galvan, especially when Dr. Monga did not even participate in the labor or delivery."
In this case, however, Dr. Bohman's report fills in the gap left out in Zamarippa and Davis. Dr. Bohman states that it is reasonable to anticipate a primary doctor, such as Dr. Galvan, would follow the recommendation of a consulting specialist, such as Dr. Monga. Dr. Bohman also explains that, when Dr. Monga did finally recommend Mrs. Perez be induced for delivery, Dr. Galvan admitted her for induction. We conclude that the statements of Dr. Bohman go beyond mere speculation or conjecture, to explain how or why Dr. Monga's recommendation to deliver immediately or by cesarean section would have been followed. He links his conclusion that Dr. Monga should have recommended delivery via cesarean to the facts of this case, making Zamarippa and Davis distinguishable.
Whether Dr. Bohman ultimately proves correct regarding his statement that it is reasonable to anticipate that Dr. Galvan would follow the recommendation of Dr. Monga to deliver via cesarean is not the dispositive issue. See Miller, 2017 WL 6391215, at *6 ("At this preliminary stage, whether those standards appear reasonable is not relevant to the analysis of whether the expert's opinion constitutes a good-faith effort.); see also Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 200 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (fact that discovery could later prove expert wrong does not provide basis for holding report insufficient). The dispositive issue is whether the trial court reasonably could have concluded the report was adequate. On these facts, we conclude the trial court reasonably could have done so.
3. The causation opinion is not speculative.
Finally, we address Dr. Monga's argument that Dr. Bohman's opinion on causation is conjecture or too speculative because he opined that a large baby was "likely to occur," that dystocia "likely would not have occurred" if Dr. Monga recommended a cesarean section, and that shoulder dystocia "likely would not have occurred" had a cesarean section been performed. According to Dr. Monga, use of terms such as "likely to occur" or "likely would not have occurred" amount to speculation and conjecture and do not satisfy the expert-report requirement.
We would agree with Dr. Monga if Dr. Bohman had used only words of mere possibility in his report. See, e.g., Walgreens Co. v. Hieger, 243 S.W.3d 183, 186 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (holding report insufficient on causation because opinion using language "consistent with" known side effects not same as saying injury caused by medicine). He did not. Dr. Bohman's report explains the "how and why" Dr. Monga's breach of the standard of care caused the shoulder dystocia leading to J.P.'s birth injuries. With regard to foreseeability, Dr. Bohman states that insulin used to control gestational diabetes acts as a growth hormone in a fetus. Dr. Monga was aware of the gestational diabetes and insulin use by Mrs. Perez and that, based on her baby's rapid growth, Dr. Monga would know that Mrs. Perez was likely to have a macrosomic baby and that shoulder dystocia was likely to occur if Mrs. Perez delivered vaginally. As to cause-in-fact, Dr. Bohman concludes that the failure to recommend cesarean delivery (which he states would be reasonable to anticipate Dr. Galvan would have done had Dr. Monga so recommended), "the dystocia that went unresolved for 29 minutes during delivery and the subsequent injuries to [J.P.] would have been avoided." This adequately explains the "how and why" Dr. Monga's breach of the standard (failure to recommend cesarean section) caused shoulder dystocia, leading to J.P.'s injuries. See Miller, 2017 WL 6391215, at *4.
In addition, in his report Dr. Burris opines that the shoulder dystocia was a cause of the neurological injuries suffered by J.P.: "[J.P.'s] hypoxic ischemic injury occurred during the time of shoulder dystocia and fetal entrapment with umbilical cord occlusion. . . This infant would have been neurologically normal had the fetal entrapment at delivery been avoided." Thus, Dr. Burris's report links the shoulder dystocia and fetal entrapment to the neurological and brachial plexus injuries suffered by J.P. during birth. The use of two reports to connect the links in causation is permissible. See Moreno, 401 S.W.3d at 43-44 (reading expert reports together provided adequate opinions on causation); Patel v. Williams, 237 S.W.3d 901, 905-06 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (multiple links in causation chain permitted where each step in chain is explained); see also Miller, 2017 WL 6391215, at *4 (reports, when read together, were sufficient because "[t]he two reports connect on a factual understanding of the same event: the delay in discovering and removing the dental bridge").
Dr. Monga argues that we cannot rely on Dr. Burris's report to satisfy the causation element because the report does not specifically name her. The court in Miller recently rejected this very argument. Miller, 2017 WL 6391215, at *3. The court held: "He did not need to specifically name the person who caused the delay or otherwise outline the conduct of a particular defendant who caused that delay because the other reports supplied that information." Id. (citing Moreno, 401 S.W.3d at 44)). We likewise reject the argument that Dr. Burris had to name Dr. Monga for the trial court to read his report as supporting causation. Dr. Bohman's report opines that Dr. Monga's breach of the standard of care in failing to recommend a cesarean section led to J.P.'s shoulder dystocia. Thus, Dr. Bohman's report supplied the necessary information.
We conclude that the trial court reasonably could have determined that the reports of Dr. Bohman and Dr. Burris represented a good-faith effort to provide a fair summary of the basis for Dr. Monga's alleged liability and allow the trial court to conclude the claims have merit. See id. at *4.
CONCLUSION
Having reviewed the expert reports submitted by appellees, we conclude that the trial court did not abuse its discretion in finding the expert reports satisfied the requirements of section 74.351. We overrule Dr. Monga's issue on appeal and affirm the trial court's order.
/s/ Ken Wise
Justice Panel consists of Chief Justice Frost and Justices Donovan and Wise.