Opinion
NO. 09-12-00080-CV
09-13-2012
JEROME F. SCHRAPPS AND SOUTHEAST TEXAS SURGICAL ASSOCIATES, P.A., Appellants v. LAM PHAM, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HANH THI NGO, LANA TRAN, ANNA BAILEY AND DIEP PHAM, Appellees
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-190,100
MEMORANDUM OPINION
Jerome F. Schrapps and Southeast Texas Surgical Associates, P.A., appeal from the trial court's order denying their motion to dismiss a health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2012); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2012). According to plaintiffs' expert report, Hanh Thi Ngo presented to Christus St. Elizabeth Hospital with abdominal pain, nausea, and vomiting. Schrapps diagnosed Ngo with a bowel obstruction and performed surgery. Ngo was discharged four days later. She returned to Dr. Schrapps for staple removal. Schrapps's notes indicate that at that time she was tolerating a regular diet and had normal bowel function. Schrapps asked Ngo to return in six days for further evaluation. When she returned, she was acutely ill. Schrapps admitted her to the hospital.
Ngo was anemic, dehydrated, and had abdominal abscesses. Schrapps surgically re-explored Ngo, drained the abdomen, and decompressed the gastrointestinal tract. He could not identify the source of an intestinal perforation. He put in place a biologic dressing and a vacuum dressing. A PICC line was inserted for antibiotic and parenteral nutrition therapy. Eight days later, Ngo was transferred to Dubuis Hospital for rehabilitation and support. She was transferred back to Christus St. Elizabeth Hospital, where she was re-explored, intubated, and placed on a respirator.
Ngo was transferred to Methodist Hospital in Houston with septic shock and multiple organ failure and was diagnosed with multiple bilateral strokes. She was non-responsive and on a ventilator. When further therapy became futile, she was placed on comfort care, and she died.
Appellees sued Schrapps, Southeast Texas Surgical Associates, P.A., Christus St. Elizabeth Hospital, and Christus Dubuis Hospital of Beaumont. Appellees contend that Schrapps negligently performed the first procedure which caused severe complications, and that Southeast Texas Surgical Associates employed Schrapps and is vicariously liable for Ngo's injuries. Appellees alleged that Schrapps was negligent in perforating Ngo's bowel, in failing to conduct appropriate follow-up and monitoring of her condition after the procedure, and in failing to timely transfer her to Methodist Hospital in Houston.
When considering a motion to dismiss for failure to comply with section 74.351, the trial court must determine '"whether 'the report' represents a good-faith effort to comply with the statutory definition of an expert report.'" Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). The report need not marshal all of the plaintiff's proof. Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 878). In reviewing the trial court's decision, an appellate court considers whether the trial court could reasonably determine that the report represents a good-faith effort (1) in informing the defendants of the specific conduct the plaintiff calls into question and (2) in providing a sufficient basis for the trial court to determine the claims have merit. See Palacios, 46 S.W.3d at 875, 878-79.
Appellants argue in multiple issues that the amended report fails to adequately explain the standard of care and the causal connection between any alleged breach by Schrapps and Ngo's death. They argue that the report does not provide a fair summary of the treatment required to meet the standard of care. In another issue, they contend that the expert report does not support appellees' claim of negligent performance of surgery.
Chapter 74 defines "claim" as "a health care liability claim," and "health care liability claim" is defined as follows:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West Supp. 2012) (definition of health care liability claim); § 74.351(r)(2) (definition of claim). Chapter 74 defines "health care" to mean "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10).
The phrase "a cause of action" is not defined by Chapter 74. In applying the statute, the Texas Supreme Court has defined "a cause of action" as '"a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief"' and as a '"group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person."' In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (orig. proceeding) (quoting A.H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 621 (Tex. 1939); Black's Law Dictionary 235 (8th ed. 2004)); see also, generally, United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68, 53 S.Ct. 278, 77 L.Ed. 619 (1933) ("Cause of action" may mean different things in different contexts.).
Appellants attack the sufficiency of the report on the post-surgery treatment. Appellees' expert asserts that the care provided by Schrapps fell below accepted standards and that the deviations from those standards resulted directly in Ngo's death. The expert states that Schrapps's failure to transfer Ngo to a tertiary care facility after she had been initially stabilized was a proximate cause of her death. The expert explains in the report that Ngo needed advanced imaging studies, twenty-four hour intensive care with monitoring, and complex staged surgery that could only be supplied by the staff of a facility like Methodist Hospital with subspecialty expertise.
According to the report, Schrapps knew or should have known that Ngo needed care that would have stabilized her physiologically and investigated her radiographically, and that she needed an operation to control her sepsis and enteric fistula with an open abdomen as a first step to reconstruction. The expert concluded that Schrapps denied Ngo timely access to this type of care. The report states that "[r]ather than send Ms. Ngo to Dubuis where the care she needed was even less available (because Dubuis is a long-term acute care facility and not a tertiary health care facility), the standard of care required that she be transferred to a tertiary facility such as The Methodist Hospital in Houston[.]" By the time Schrapps did refer Ngo to Methodist Hospital a few days before her death, her condition, according to the expert, had so badly deteriorated that any of the suggested treatment options were effectively foreclosed to the health care providers at Methodist. The report indicates that Schrapps's failure to timely transfer Ngo to a tertiary care facility denied Ngo treatment options that, in reasonable medical probability, would have saved her life.
In their brief to this Court, appellants state that the "fatal defect in [the expert's] report is that his opinion that the standard of care required Dr. Schrapps to transfer Mrs. Ngo to Houston to receive 'advanced imaging studies, 24-hour intensive care monitoring, and complex, staged surgery' is based on an assumption that these treatments were not available at Dubuis Hospital or St. Elizabeth Hospital in Beaumont." The inquiry at the report stage focuses on whether the information within the four corners of the report meets the good faith report requirement of the statute. Palacios, 46 S.W.3d at 878-79; see also Wright, 79 S.W.3d at 52. The expert states in his report that the medical records show that advanced imaging studies, twenty-four hour intensive care with monitoring, and complex, staged surgery were not conducted. The report faults the surgeon's failure to provide the necessary follow-up care to address Ngo's deteriorating condition. If the facts do not support a plaintiff's claim, summary judgment procedure provides a remedy. See Tex. R. Civ. P. 166a.
Appellants also contend that the trial court abused its discretion in not dismissing appellees' allegation of negligent performance of surgery, because the expert report does not mention anything about the standard of care for the first surgery, and the report does not provide support for the claim. The expert states in his report that "I have no criticism of Dr. Schrapps' conduct of the March 16 surgery . . . ." Appellants contend that, as to the negligent surgery allegation, the report is therefore "no report at all."
Appellees allege in their petition that Schrapps negligently perforated Ngo's bowel, but then argue that at the time of the expert report it was unknown how the perforation occurred. Appellees contend that "unless and until Dr. Schrapps is deposed, the cause and origin of the perforation in Mrs. Ngo's intestine should be a fact question that ought to be preserved for later exploration in discovery, rather than one which is foreclosed from an inability, at the present time, to conduct discovery." The expert states in his report that he may amend, modify, or expand on his opinions if he receives additional information in the case.
Appellants rely on this Court's decisions in Serrano and Slaughter in support of their argument that the trial court abused its discretion in failing to dismiss the negligent performance-of-surgery allegation. See River Oaks Endoscopy Ctrs., L.L.P. v. Serrano, No. 09-10-00201-CV, 2011 Tex. App. LEXIS 557 (Tex. App.—Beaumont Jan. 27, 2011, no pet.) (mem. op.); Beaumont Bone & Joint Inst., P.A. v. Slaughter, No. 09-09-00316-CV, 2010 Tex. App. LEXIS 1536 (Tex. App.—Beaumont Mar. 4, 2010, pet. denied) (mem. op.). In Serrano, we held that the plaintiff was required to submit expert reports on direct liability claims against the care facility, but to the extent the pleadings asserted vicarious liability, an adequate report as to the doctor fulfilled the report requirement. Serrano, 2011 Tex. App. LEXIS 557, at **5-6. Regarding vicarious liability claims, "[w]hen a party's alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party's agents or employees is sufficient." Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 587-88 (Tex. App.—Beaumont 2011, no pet.). In Slaughter, we discussed four allegations in the plaintiff's petition, which we described as direct negligence claims, and held that a report was insufficient because it failed to adequately address the direct negligence claims. Slaughter, 2010 Tex. App. LEXIS 1536, at
We again distinguished vicarious liability claims from direct liability claims in Renaissance Healthcare Systems, Inc. v. Swan. There we expounded on our holding in Slaughter:
Slaughter does not stand for the proposition that an expert report must discuss each factual allegation of an act of negligence enumerated in a plaintiff's petition. Rather, Slaughter holds that the report must address each type of negligence claim. The twenty-two allegations in appellees' petition pertain to each of their general categories of claims: negligence, malicious credentialing, and gross negligence on the part of appellants, as well as Dr. Webb (for whose conduct appellees allege appellants are vicariously liable).Swan, 343 S.W.3d at 587-88 (citation omitted).
Serrano and Slaughter concerned claims of direct negligence and vicarious liability, which we evaluated separately. See Hendrick Med. Ctr. v. Miller, No. 11-11-00141-CV, 2012 Tex. App. LEXIS 683, at **10-17 (Tex. App.—Eastland Jan. 26, 2012, no pet.); TTHR Ltd. P'ship v. Moreno, No. 02-10-00334-CV, 2011 Tex. App. LEXIS 5152, at **6-13 (Tex. App.—Fort Worth July 7, 2011, pet. granted); Petty v. Churner, 310 S.W.3d 131, 134-39 (Tex. App.—Dallas 2010, no pet.); RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 270-74 (Tex. App.—Corpus Christi 2009, pet. denied); Obstetrical & Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 102-106 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Compare Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 689-700 (Tex. App.—Houston [1st Dist.] 2011, pet. granted). Here, the petition alleges multiple acts of negligence during a course of treatment by the surgeon; the negligence cause of action is based on one course of treatment. We are not presented with a report that addresses only a vicarious liability claim and does not address a direct negligence cause of action.
In Schmidt v. Dubose, the plaintiff sued Schmidt for specific acts of negligence arising from the laparoscopic cholecystectomy, for which the plaintiff alleged another defendant was vicariously liable. Schmidt v. Dubose, 259 S.W.3d 213, 214 (Tex. App.— Beaumont 2008, no pet.). During plaintiff's expert's deposition, the expert testified that Schmidt was negligent in misidentifying and dividing the bile duct. Id. at 215. The defendants filed a motion to dismiss the portion of Dubose's claim regarding Schmidt's alleged negligence in misidentifying and dividing the wrong duct, because the expert's report expressly negated those allegations. In affirming the trial court's denial of the defendants' motion to dismiss, we held that "[n]o new cause of action has been asserted as a result of the partial change in the expert's opinion in this case. Multiple causes of action do not arise dependent on whether the physician was negligent before, during, or after the wrong cut." Id. at 218-19.
In this case, plaintiffs' petition alleges different acts of negligence by Schrapps in his treatment of Ngo that resulted in her death. These factual allegations of negligence regarding Schrapps's operative and post-operative care do not allege separate causes of action. See Swan, 343 S.W.3d at 587-88; see also Lopez v. Brown, 356 S.W.3d 599, 605 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (Expert report that failed to address all of plaintiff's damages but adequately addressed one liability theory satisfied the statutory requirement.); Pedroza v. Toscano, 293 S.W.3d 665, 668 (Tex. App.—San Antonio 2009, no pet.) (When testifying expert relied on different acts than those disclosed in the expert report, testifying expert was not precluded from testifying because he was "not asserting a different cause of action, only a different negligence theory."); Baylor College of Med. v. Pokluda, 283 S.W.3d 110, 123 n.3 (Tex. App.—Houston [14th Dist] 2009, no pet.) (declining to address adequacy of report concerning pre-surgery breaches of standard of care when report adequately addressed breaches occurring during surgery). The expert report noted that Schrapps was unable to identify the source of the perforation. As discovery is conducted, new information regarding the perforation, and when it occurred, may be learned. The question at this stage is not one of summary judgment, but whether the report represents a good faith effort to comply with the statutory requirements. Palacios, 46 S.W.3d at 879.
The trial judge concluded the report was sufficient under the statute to allow the cause of action to proceed to discovery. Under the circumstances, we do not see an abuse of discretion in denying the motion to dismiss as to Dr. Schrapps. Because appellees seek to hold Southeast Texas Surgical Associates, P.A. liable solely on vicarious liability theories, the trial court did not abuse its discretion in denying the motion to dismiss as to Southeast Texas Surgical Associates, P.A. See Gardner, 274 S.W.3d at 671-72; Swan, 343 S.W.3d at 587-88. Appellants' issues are overruled. The trial court's order is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Before Gaultney, Kreger, and Horton, JJ.