Summary
holding expert reports represented objective, good-faith effort to comply with chapter 74's requirements as to one defendant because experts opined prescribing excessive dosages of prescription drug Phentermine over excessive duration of time was breach of standard of care and patient's sudden death from arrhythmia was more likely than not a result of effects of Phenter-mine
Summary of this case from Bakhtari v. Estate of DumasOpinion
No. 05-07-00371-CV
Opinion issued October 31, 2007.
On Appeal from the County Court at Law No. 2 Dallas County, Texas, Trial Court Cause No. cc-06-08740-b.
Before Justices, Whittington, FitzGerald, and Mazzant.
MEMORANDUM OPINION
In this interlocutory appeal, Otto Puempel, D.O., Otto Puempel, D.O., P.A. d/b/a Weight Control Clinic, and Patrick Kirlin, D.O. appeal the trial judge's order denying their objections to Antonio A. Lopez, Individually and as Representative of the Estate of Gloria A. Lopez, Urica Lopez, and Adria Lopez's (collectively "Lopez") experts' reports and denying their motion to dismiss. Drs. Puempel and Kirlin raise four issues: (i) this Court's jurisdiction over this interlocutory appeal, (ii) the standard of review, and (iii) error by the trial judge in finding the experts' reports legally sufficient.
Background
Gloria Lopez died of sudden cardiac arrhythmia. Drs. Puempel and Kirlin, employees of Weight Control Clinic, prescribed weight loss drugs, including Phentermine, to Gloria Lopez prior to her death. Lopez sued Drs. Puempel and Kirlin and their clinic employer for negligence in prescribing weight loss drugs to Gloria Lopez. Lopez alleges breaches of the standard of care by the physicians because Gloria Lopez was not a candidate for prescription weight loss medication, the prescription dosages were excessive, and the duration of treatment with the weight loss prescriptions was excessive. Lopez contends Gloria Lopez's cardiac death was proximately caused by the breaches of the standard of care.
Allegations against the Weight Control Clinic were limited to vicarious liability.
Jurisdiction
Drs. Puempel and Kirlin challenged the adequacy of Lopez's experts' reports and filed a motion to dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code, which the trial judge denied. Lopez filed a motion to dismiss this appeal arguing the trial judge's ruling is not appealable and we lack jurisdiction over this appeal. We disagree. See Cayton v. Moore, 224 S.W.3d 440, 444 (Tex.App.-Dallas 2007, no pet.) (Court has jurisdiction when trial judge's order, in part, denies request for dismissal challenging adequacy of expert report under Texas Civil Practice and Remedies Code section 74.351( l) (Vernon Supp. 2006)). See also Healthsouth Corp. v. Searcy, 228 S.W.3d 907, 908 (Tex.App.-Dallas 2007, no pet.); Harris v. Jones, 2007 WL 1866879, *1 (Tex.App.-Dallas June 29, 2007, no pet.); Bidner v. Hill, 231 S.W.3d 471, 472 (Tex.App.-Dallas 2007, pet. filed); Romero v. Lieberman, 232 S.W.3d 385, 388 (Tex.App.-Dallas 2007, no pet.).
We have previously concluded we have jurisdiction under similar facts and circumstances as are presented here. Because this Court has jurisdiction over Drs. Puempel and Kirlin's interlocutory appeal, we deny Lopez's motion to dismiss the appeal.
Standard of Review
An appellate court reviews a trial judge's decision on a motion to dismiss a claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) (discussing former article 4590i); Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (discussing former article 4590i); Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex.App.-Dallas 2007, no pet.).
A trial judge abuses his discretion if he acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)) (discussing section 74.351). When reviewing matters committed to the trial judge's discretion, an appellate court may not substitute its judgment for that of the trial judge. See Gray, 189 S.W.3d at 858 (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). A trial judge does not abuse his discretion merely because he decides a discretionary matter differently than an appellate court would under similar circumstances. See Gray, 189 S.W.3d at 858 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). However, a trial judge has no discretion in determining what the law is or in applying the law to the facts. See Walker, 827 S.W.2d at 840. A clear failure by the trial judge to analyze or apply the law correctly will constitute an abuse of discretion. Id.
Applicable Law
An expert report under section 74.351(r) of the Texas Civil Practice and Remedies Code must provide enough information to fulfill two purposes if it is to constitute an objective good faith effort. The report must inform the defendant of the specific conduct the plaintiff has called into question and must provide a basis for the trial judge to conclude the claims have merit. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r) (Vernon Supp. 2006); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859.
An expert report must provide a fair summary of the expert's opinions as of the date of the report regarding the applicable standard 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. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6). The statute does not require that a single expert address all liability and causation issues with respect to a physician. Section 74.351(i) provides:
Nothwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.
Tex. Civ. Prac. Rem. Code Ann. § 74.351(i). See Healthsouth Corp. v. Searcy, 228. S.W.3d 907, 909 (Tex.App.-Dallas 2007, no pet.) (that expert report fails to address causation does not render it otherwise incompetent or insufficient).
A report cannot merely state the expert's conclusions as to the standard of care, breach, and causation. See Palacios, 46 S.W.3d at 879; Hansen v. Starr, 123 S.W.3d 13, 20 (Tex.App.-Dallas 2003, pet. denied); Garcia v. Marichalar, 198 S.W.3d 250, 254 (Tex.App.-San Antonio 2006, no pet.); Gray, 189 S.W.3d at 859. The expert must explain the basis for his statements and must link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Garcia, 198 S.W.3d at 254; Gray, 189 S.W.3d at 859. A trial judge may not draw any inferences. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Instead, the trial judge must rely exclusively on the information contained within the four corners of the report. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. The expert report does not need to marshal all of the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. See Ehrlich v. Miles, 144 S.W.3d 620, 626 (Tex.App.-Fort Worth 2004, pet. denied). The expert report may be informal and the information presented need not meet the same requirements as evidence offered in summary judgment proceedings or in a trial. See Ehrlich, 144 S.W.3d at 626. Also, it is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. See Ehrlich, 144 S.W.3d at 626-27.
Application of Law to the Facts
Drs. Puempel and Kirlin challenge the sufficiency of the expert reports of Lewis M. Pincus, D.O. and Charles H. Beckmann, M.D. See Tex. Civ. Prac. Rem. Code Ann. § 74.351( l). No challenge was made to the qualifications of Dr. Pincus or Dr. Beckmann to render opinions on standard of care or causation. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.401(e), 74.403(d) (Vernon 2005).
With regard to Dr. Puempel, we conclude that Dr. Pincus's and Dr. Beckmann's reports represent objective good faith efforts to comply with the definition of an expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2006).
In their reports, Drs. Pincus and Beckmann opine that Dr. Puempel prescribing Phentermine to Gloria Lopez for an excessive period (ten years) was a breach of the standard of care. Dr. Pincus states that there is not now, nor has there ever been, an FDA-approved indication for the use of Phentermine for more than short term use. Dr. Beckmann, too, states that the PDR and standard of care provide that weight loss drug treatment should only be for a few weeks. Dr. Pincus notes Dr. Puempel's prescriptions spanning Gloria Lopez's initial date of treatment by Dr. Puempel in 1994 through the last date of treatment by Dr. Puempel in June 2004.
Drs. Pincus and Beckmann further opine that Dr. Puempel breached the standard of care in prescribing excessive dosages of Phentermine to Gloria Lopez. According to Dr. Pincus, the standard of care provides that a usual dose of Phentermine is 37.5 mg per day and the dose should not be increased. Dr. Pincus notes particular dates of alleged excessive dosage prescriptions from Dr. Puempel (March 2004 Phentermine restarted at excessive dose of 37.5 mg tablet twice daily and June 2004 Phentermine again dispensed at excessive dosage of 37.5 mg twice daily).
In May 2003, an electrocardiogram (EKG) indicated Gloria Lopez had an abnormal, prolonged QT interval. Following that cardiac study, Gloria Lopez was prescribed Phentermine in allegedly excessive dosages by Dr. Beckmann, notably in a prescription shortly before her death in June 2004. Dr. Pincus sets out an alleged causal relationship between the dosages of Phentermine prescribed by Dr. Puempel and Gloria Lopez's death, particularly as prescribed by Dr. Puempel after the abnormal EKG. Dr. Pincus's report states:
Based on her abnormal electrocardiogram of May 29, 2003, Gloria Lopez was at an increased risk for sudden cardiac death based on the fact that she was a female with a prolonged QT/QTc interval, who was taking phentermine. At the time of her death she was taking twice the recommended daily dose and had been taking higher than recommended dosages since March, 2002 which caused her arrhythmia and sudden cardiac death. (See Autopsy Report). . . .
[B]ased upon reasonable medical probability, had Gloria Lopez not been subjected to an excessive duration of and excessive dosages of phentermine, she in reasonable medical probability would not have suffered sudden cardiac death (see . . . Autopsy Report). This is particularly true following her abnormal electrocardiogram of May 29, 2003 which evidenced a prolonged QT interval putting her at risk for sudden cardiac death.
Noting that the 2003 EKG demonstrated a prolonged QT interval, "a well known adverse effect of Phentermine," Dr. Beckmann states that electrical changes in the heart predispose patients to early arrhythmias and sudden death. Based on Gloria Lopez's May 2003 abnormal EKG, Dr. Pincus states Gloria Lopez was at an increased risk for sudden cardiac death based on the fact that she was a female with a prolonged QT interval, and a prolonged heart rate corrected QT interval. Gloria Lopez "was also taking Phentermine, a medication known to prolong the QT interval and thus increase the risk for sudden, potentially serious, cardiac arrhythmias. . . ."
Dr. Pincus opines that had Gloria Lopez not been "treated with excessive dosages of weight loss medications over an excessive duration of time, especially following the EKG abnormal finding of a prolonged QT interval then she likely would not have suffered a sudden cardiac death on June 27, 2004." Dr. Beckmann similarly opines it is more likely than not that Gloria Lopez "suffered from an arrhythmia causing sudden death, the arrhythmia being the result of the effects of Phentermine. . . ."
Through these reports, the experts have addressed how the conduct of Dr. Puempel has been called into question, as well as the causal relationship between Dr. Puempel's alleged errors and the death of Gloria Lopez. The reports provide a sufficient basis for the trial judge to conclude that Lopez's claims against Dr. Puempel have merit. Therefore, we conclude the trial judge did not abuse his discretion in denying Dr. Puempel's motion challenging the adequacy of Dr. Pincus's and Dr. Beckmann's expert reports.
We reach a different conclusion with respect to the experts' reports regarding Dr. Kirlin. With regard to Dr. Kirlin, we conclude that the reports of Drs. Pinus and Beckmann fail to address how the actions of Dr. Kirlin are causally related to the death of Gloria Lopez. The expert must explain how the alleged negligence caused the injury or death. See Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Simonson v. Keppard, 225 S.W.3d 868, 869 (Tex.App.-Dallas 2007, no pet.). Dr. Pincus and Dr. Beckmann opine that Drs. Kirlin and Puempel breached the standard of care in prescribing Phentermine to Gloria Lopez, who was not clinically obese and was not, therefore, a candidate for prescription weight loss treatment. In their reports, Dr. Pincus and Dr. Beckmann state that during her years of treatment at the Weight Clinic, Gloria Lopez was never clinically overweight and based on her body mass index, Gloria Lopez was never a candidate for and should not have been prescribed weight loss medications, including Phentermine. Drs. Beckmann and Pincus state that drug weight loss therapy should not have been started, and the action in doing so falls below the appropriate standard of care.
Prescribing Phentermine to an inappropriate candidate for obesity prescription therapy is the sole breach of the standard of care specified as to Dr. Kirlin. There is no opinion stated by either Dr. Pincus or Dr. Beckmann of the alleged causal relationship between Dr. Kirlin's prescribing Phentermine to Gloria Lopez and her death. There are no date(s) of Phentermine prescription(s) or dosage(s) of prescription(s) written by Dr. Kirlin and no temporal relationship identified with regard to prescription(s) from Dr. Kirlin and Gloria Lopez's death. There is no indication that Dr. Kirlin prescribed Phentermine to Gloria Lopez between the time of the May 2003 diagnostic EKG and prior her death in June 2004. Thus, these reports fail to provide a sufficient basis for the trial judge to conclude that Lopez's claims against Dr. Kirlin have merit. The trial judge abused his discretion in denying Dr. Kirlin's motion challenging the sufficiency of Dr. Pincus's and Dr. Beckmann's expert reports and denying Dr. Kirlin's motion to dismiss. See Harris v. Jones, 2007 WL 1866879, *1 (Tex.App.-Dallas June 29, 2007, no pet.).
We affirm the trial judge's order overruling Dr. Puempel's objections to Lopez's experts' reports and denying Dr. Puempel's motion to dismiss. We reverse the trial judge's order overruling Dr. Kirlin's objections to Lopez's experts' reports and denying Dr. Kirlin's motion to dismiss, and we render judgment that Lopez take nothing in the claim against Dr. Kirlin.