Opinion
NO. 09-11-00662-CV
03-08-2012
JOHN A. SCHMIDT, Appellant v. ERNESTO ESCARENO, Appellee
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-189,375
MEMORANDUM OPINION
This interlocutory appeal concerns the adequacy of an expert report under standards that apply to health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). The appellee, Ernesto Escareno, filed a health care liability claim against John A. Schmidt, M.D. and Port Arthur Surgical Association. On appeal, Dr. Schmidt contends Escareno's expert report is deficient, and argues the trial court abused its discretion by finding the expert report sufficient. Because we conclude the trial court did not abuse its discretion when it denied Dr. Schmidt's motion to dismiss Escareno's claim, we affirm the trial court's order. See id. § 74.351(l).
Background
In December 2008, Dr. Schmidt performed a gall bladder surgery on Escareno at Renaissance Hospital in Groves. Dr. Schmidt performed a video laparoscopy and cholecystectomy with cholangiogram. During the surgery, Dr. Schmidt transected Escareno's common bile duct, which subsequently required further repairs. Dr. Schmidt transferred Escareno to another hospital where Escareno had additional surgeries to repair his injured bile duct.
Escareno's original petition alleges that the defendant caused him to suffer "a transected common bile duct and required further surgery and follow-up care." Dr. Schmidt filed a motion to dismiss, claiming that the expert report Escareno filed did not comply with the requirements of Chapter 74 of the Texas Civil Practice and Remedies Code. See id.
Following a hearing, the trial court, based on the report of Dr. I. Michael Leitman, a board certified surgeon, denied Dr. Schmidt's motion to dismiss. See id. § 74.351(a). On appeal, Dr. Schmidt contends the trial court abused its discretion by finding Dr. Leitman's report sufficient to qualify as an expert report under Chapter 74. See id. § 74.351(r)(6).
Applicable Law
We review a trial court's ruling on a motion to dismiss a health care liability claim for abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In cases involving health care liability claims, the claimant must file an expert report that provides a "fair summary" of the expert's opinion as of the date of the report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). To constitute a good-faith effort, a report "must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 875. A report that merely states the expert's conclusions on the applicable standard of care, breach, and causation "does not fulfill these two purposes." Id. at 879. "'Rather, the expert must explain the basis of his statements to link his conclusions to the facts.'" Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). A reviewing court cannot fill gaps in a report by drawing inferences. Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex. App.—Fort Worth 2009, no pet.).
To determine whether the appellee's expert report represents a good-faith effort to explain how the alleged negligence of Dr. Schmidt caused Escareno's injuries, we look to the four corners of the report. Palacios, 46 S.W.3d at 878. With respect to causation, we evaluate whether the report demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53. Dr. Leitman's report consists of a seven page, single spaced, letter. The letter identifies five standards that apply to surgeons performing a laparoscopic cholecystectomy, and identifies six ways in which Dr. Schmidt allegedly breached those standards. Dr. Leitman's discussion of how Escareno's damages were caused by the breach consists of just over a page of the report.
In issue one, Dr. Schmidt argues that Dr. Leitman failed to establish that he has the knowledge, skill, experience, training, or education to address performing a laparoscopic cholecystectomy in patients having abnormal anatomies like Escareno's. According to Dr. Schmidt, Dr. Leitman is required to demonstrate familiarity with the situation Dr. Schmidt encountered to express an opinion about it.
To be qualified to express an opinion against a physician, an expert's qualifications must satisfy the requirements of section 74.401 of the Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (r)(5)(A). Section 74.401 (a) requires an expert to be a physician who:
(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;Id. § 74.401(a) (West 2011).
(2) has knowledge of accepted standards of medical care for the 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.
Dr. Leitman qualifies as an expert in this case under these standards. The author of a medical expert report that satisfies the statutory requirements must have "'knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996); see Whisenant v. Arnett, 339 S.W.3d 920, 927 (Tex. App.—Dallas 2011, no pet.). The expert's qualifications "must be evident from the four corners of his report and curriculum vitae." Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 536 (Tex. App.—Beaumont 2008, no pet.).
Dr. Leitman's expert report indicates that he has the necessary qualifications to satisfy the statutory requirements. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351, 74.401(a), 74.403(a). Dr. Leitman's report reflects he is a physician licensed by the State of New York, board certified as a surgeon, and that he was actively practicing medicine during the period that coincides with the date of his report. Dr. Leitman's report reflects that he has knowledge of the accepted standards of medical care for the diagnosis, care, or treatment for laparoscopic gall bladder surgeries. With respect to the specific surgery involved in this case, Dr. Leitman's report reflects that he has been trained in the procedure and has performed hundreds of laparoscopic cholecystectomies over the past twenty years. He also has performed and assisted in repairing common bile duct transections, and has experience teaching those procedures at a hospital. According to Dr. Leitman, the standard for the surgery involved in this case requires the surgeon to "[c]orrectly identify[] all pertinent parts of the anatomy, including the cystic duct and common bile duct, prior to dividing or cutting any anatomical structures."
Dr. Leitman's report, which contains the relevant information on his credentials, experience, training, and practice as a surgeon in performing the same type of surgery as that performed by Dr. Schmidt, allowed the trial court to reasonably conclude that Dr. Leitman was qualified to author an expert report addressing Dr. Schmidt's surgery. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.401(a), 74.403(a); Whisenant, 339 S.W.3d at 927 (holding that "when a trial court concludes . . . that an expert is qualified to opine about the standard of care for a certain operation or procedure, it is also reasonable for a trial court to conclude that the expert is qualified to opine on the causal relationship between that operation or procedure and the complications that can arise from it"). We overrule issue one.
In his second issue, Dr. Schmidt complains that Dr. Leitman's expert report is deficient because it fails to meet the requirement of a good faith effort to explain the element of causation. A report that merely states the expert's conclusions as to causation does not satisfy the statutory requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 879. The expert must explain how the alleged malpractice caused the injury. See Wright, 79 S.W.3d at 53. Nonetheless, the appellee is not required to marshal all of his proof in the expert report or to present evidence in the report as if actually litigating the merits. Palacios, 46 S.W.3d at 878-79. The report need not meet the same requirements as evidence offered in a summary-judgment proceeding or at trial. Id. at 879.
Dr. Leitman notes in his report that Dr. Schmidt's operative report does not describe Dr. Schmidt's efforts to achieve a "critical view" of the structures to identify abnormal anatomy, and that Dr. Schmidt did not "utilize cholangiography to conclusively identify the cystic duct before dividing any structures." Dr. Leitman states that Dr. Schmidt "apparently just relied on the appearance of the 'cystic duct,'—gallbladder junction, which is quite dangerous, as this may be deceiving, particularly in the presence of severe inflammation such as that described by Dr. Schmidt." According to Dr. Leitman, obtaining a "critical view" of the structures attached to the gallbladder, "alone or with cholangiography[,] will usually enable the surgeon to conclusively identify these structures, and if it does not, the surgeon can then convert to the open procedure so that conclusive identification can be made prior to dividing the ducts, thus avoiding injuries such as Mr. Escareno's which are the result of misidentification of the anatomy." Dr. Leitman concludes that "[m]ore likely than not, had Dr. Schmidt employed any or all of these techniques, he would have avoided misidentifying the common bile duct as the cystic duct and thus avoided transecting the common bile duct." According to Dr. Leitman's report, even if Escareno's anatomy was not normal, "the use of the above-referenced techniques would have allowed for a better view of the anatomy . . . so that [Dr. Schmidt] could definitively identify the structures before proceeding." Dr. Leitman's report concludes that had the standards that he described been followed, "the injuries described herein would not have occurred."
Dr. Leitman's report provides further detail of the technique that surgeons use to obtain what he refers to as the "critical view" to allow the surgeon to visualize the structures to be clipped and transected.
While Dr. Leitman benefits from the knowledge of hindsight, we conclude that Dr. Leitman's report contains a sufficient explanation to constitute a good faith effort that explains how Escareno's injury was caused and how his injury could have been avoided. We conclude the trial court did not abuse its discretion in concluding that Dr. Leitman's report represented a good faith report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Wright, 79 S.W.3d at 53. We overrule issue two.
Conclusion
We conclude that the trial court did not abuse its discretion in ruling that Dr. Leitman's report met the requirements for expert reports under Texas Law. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. We also hold the trial court did not abuse its discretion in denying Dr. Schmidt's motion to dismiss. Having overruled each of Dr. Schmidt's issues, we affirm the trial court's order.
AFFIRMED.
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HOLLIS HORTON
Justice
Before Gaultney, Kreger, and Horton, JJ.