Opinion
No. 09-06-024 CV
Submitted on July 27, 2006.
Opinion Delivered October 12, 2006.
On Appeal from the 172nd District Court, Jefferson County, Texas, Trial Cause No. E-175010.
Affirmed.
Before GAULTNEY, KREGER and HORTON, J.J.
MEMORANDUM OPINION
Veronica Leslie and Carolyn Talmore, individually and as next friend of Agnes Talmore, filed a healthcare liability suit against Dr. Keshava Cheruku Reddy, Dr. Robert Kramer, Dr. Hervy Harrison Hiner, Jr., and Baptist Hospitals of Southeast Texas. The plaintiffs challenged the trial court's dismissal of their suit brought under Chapter 74 of the Texas Civil Practice Remedies Code. Finding no abuse of discretion, we affirm the trial court's judgment.
Plaintiffs Veronica Leslie and Carolyn Talmore pled that they are the children and heirs of Agnes Talmore.
The Statute
Plaintiffs who assert a healthcare liability claim in Texas must provide each defendant physician and healthcare provider with an expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006). The statute defines "expert report" as follows:
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 or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2006). The 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." Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); see also Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). The trial court's inquiry is limited to the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (citing Palacios, 46 S.W.3d at 878). Although an expert does not need to marshal all the evidence, a report that omits any of the statutory elements is not a good-faith effort, and a report merely stating that the expert knows the standard of care and concludes it was not met is insufficient. Palacios, 46 S.W.3d at 878, 880 (quoting Chopra v. Hawryluk, 892 S.W.2d 229, 233 (Tex.App.-El Paso 1995, writ denied)).
As permitted by statute, Baptist and the defendant physicians filed motions objecting to the reports. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(l) (Vernon Supp. 2006). Plaintiffs did not file a written response, although they challenged defendants' objections at the hearing on the motion to dismiss. The trial court concluded the reports were not adequate and dismissed the plaintiffs' claims. We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Palacios, 46 S.W.3d at 878. "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., 79 S.W.3d at 52.
The Expert Reports
Plaintiffs submitted expert reports from Dr. Mark Levinson and Nurse Practitioner Lisa Lindsay. The reports describe Agnes Talmore's medical condition. She had chest discomfort and was admitted to Baptist on February 7, 2003. Her pre-admission history revealed she had pre-existing conditions of hypertension, congestive heart failure, diabetes, and an abdominal aortic aneurysm. Talmore underwent cardiac catheterization and coronary artery bypass surgery that same day. On February 8, two more procedures were performed on Talmore. First, she was operated on for "excessive mediastinal drainage" and removal of a blood clot in the heart. Second, blood clots were removed during emergency exploration of the right femoral, popliteal arteries. On February 9, defendant Dr. Kramer, an orthopedic surgeon, performed a right leg fasciotomy to relieve the "compartment syndrome of the right leg."
Both experts submitted two reports. Lindsay's supplemental report was identical to Dr. Levinson's supplemental report.
Talmore developed renal failure and had to have dialysis. She was under the care of defendant Dr. Hiner, a nephrologist, for this condition.
Talmore received numerous transfusions of packed red blood cells. On February 14, she was transferred to rehabilitation. There, another physician evaluated Talmore, who was complaining of shortness of breath and chest pain. Concerned about "possible sepsis and/or pneumonia[,]" the doctor expressed reservations about Talmore's ability to participate in rehabilitation and recommended she be transferred to the emergency room. Talmore was re-admitted to Baptist on February 15. Dr. Levinson's report states a chest x-ray showed "bilateral pleural effusions . . . consistent with congestive heart failure." Talmore's white blood cell count was 17,000, hemoglobin was 9, and hematocrit was 26.
At some point during her stay, defendant Dr. Reddy, an infectious disease specialist, saw Talmore in consultation concerning her right leg wound. Dr. Reddy recommended intravenous antibiotics and clinical monitoring of the leg.
A gastroenterologist believed Talmore was having an upper GI bleed and recommended aggressive medical management. Levinson's report states that by February 20, Talmore's hematocrit had stabilized and "it was felt" she no longer had a GI bleed. The gastroenterologist indicated that if Talmore "continued to need transfusion[s] . . .," "she would need to have EGD." However, because of Talmore's "poor respiratory status[,]" a pulmonologist concluded an EGD was too risky.
At some point, Talmore had another myocardial infarction. Her hematrocrit dropped to 26.6, and hemoglobin was at 9.1. The leg wound became infected with vancomycin resistant enteroccus. On February 24, she was discharged home with a hemoglobin count of 8.7 and hematocrit of 25.4.
On February 28, emergency medical services brought Talmore back to the emergency room after she suffered a cardiopulmonary arrest at home. At the time of admission, her hemoglobin was 5.3 with a hematocrit of 15.8. Dr. Levinson's report states as follows:
A CT Scan of the abdomen and pelvis showed . . . a persistent density identified in the left abdomen that extends along the left flank into the pelvis suspicious for a prominent hematoma. This could have been from the rupture of an abdominal aortic aneurysm or retroperitoneal hematoma.
Talmore died at the hospital on February 28, 2003.
Dr. Levinson's report sets out the following as the standard of care and indicates the standard is the same for the hospital and each physician:
1. To "properly and expeditiously evaluate [Talmore's] progressive anemia" with a "CT Scan over the abdomen looking for leakage from a known a[bd]ominal aortic aneurysm or retroperitoneal hematoma."
2. To not discharge her with "failing" hemoglobin, hematocrit, and with a known diagnosis of an abdominal aortic aneurysm and possible retroperitoneal bleed.
3. To not discharge her if she was unresponsive, had pneumonia, a GI bleed, a high white blood cell count, fever, and an active infection VRE in the right leg wound.
4. To not transfer her to a general medical floor or a telemetry unit to start physical therapy if she could not get out of bed.
Dr. Levinson asserts the defendants breached each of these standards of care and then sets out the causal relationship between the failure to meet these standards and the injuries leading to Talmore's death:
Under section 74.403, only a physician may qualify as an expert witness on the causal relationship element in a suit involving a healthcare liability claim against a physician or healthcare provider, unless the claim is against a podiatrist or dentist. Tex. Civ. Prac. Rem. Code Ann. § 74.403 (Vernon 2005).
As a direct result of the departure of the above Standard of Care, Ms. Agnes Talmore became weakened and lethargic and as a direct and proximate cause, sustained a cardiac pulmonary arrest due to the profound anemia and hemorrhaging. This injury resulted in her death.
Dr. Levinson and Nurse Practitioner Lindsay also set out the standard of care for the prevention and treatment of bedsores. For Baptist and the nursing staff caring for Talmore, that meant "turn[ing] her and reposition[ing] her every two (2) hours or provid[ing] adequate skin care." Both expert reports state Baptist breached this standard and then explain the causal relationship between the breaches of the care standard and the presence of decubitus ulcers:
As a result of the departure of the Standard of Care, [Talmore] developed Stage II [d]ecubitus ulcers on her buttocks and skin tears and necrotic tissue with yellow slough. This is completely an unacceptable departure of the Standard of Care for someone hospitalized for such a short term.
As a direct result of this departure from this Standard of Care, [Talmore] undoubtedly suffered great pain, suffering and mental anguish.
Baptist and the defendant physicians challenged the experts' statements of the standards of care, breaches of the standards, and causation.
Although each of the doctors the plaintiffs sued is a specialist, Dr. Levinson's report relies on a general standard of care and does not identify the duties owed, or the specialities practiced by, each physician; nor does the report set out the standard of care for each specialty. At least eight physicians, including a cardiologist, pulmonologist, gastroenterologist, orthopedist, nephrologist, and infectious disease specialist, were involved in Talmore's treatment. Three specialists, Dr. Kramer (orthopedics), Dr. Reddy (infectious disease), and Dr. Hiner (nephrology) are sued here.
Dr. Levinson assumes the physicians sued are equally responsible for all care and all treatment of Talmore during her hospitalization, but the assumption must have some foundation and explanation. The physicians were not treating Talmore for a single problem. In addition to the pre-existing conditions of diabetes, hypertension, congestive heart failure, and abdominal aortic aneurysm, Talmore developed complications in the hospital, and each physician had an area of expertise that he or she was called upon to apply to the specific conditions. A report may not simply assert that multiple defendants are all negligent for failing to meet the standard of care without explaining how each defendant specifically breached the standard and how that breach caused or contributed to the cause of the injury or death. See Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.); Wood v. Tice, 988 S.W.2d 829, 831 (Tex.App.-San Antonio 1999, pet. denied) ("The report must specifically refer to the defendant and discuss how that defendant breached the applicable standard of care."). The report should have included specific details regarding the responsibilities of each physician treating Talmore. In omitting these details, the report lacked specificity as to the standard of care applicable to the treatment and care provided by each of the specialists consulted in the case. See Taylor, 169 S.W.3d at 245; Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
The trial court reasonably may have concluded the defendant physicians cannot be said to have breached the standard of care when (a) no standard of care is set out for each specialty consult, and (b) as to the transfer and discharge, the report does not identify who ordered the transfer and later the discharge. Given that the reports indicate Talmore's hospitalization involved various medical complications, and she was treated by at least eight physicians, the trial court could reasonably conclude the reports did not comply with the statute, because they failed to adequately state the duty or the standard of care applicable to each defendant.
Dr. Levinson's report also states the causation element: because of the breaches of the standard of care, Talmore became "weakened and lethargic" and "as a direct and proximate cause," sustained a "cardiac pulmonary arrest." The trial court reasonably may have concluded the report did not adequately explain the cause of the pulmonary arrest; the report does not link sufficient facts concerning each defendant specialist's treatment to the report's conclusion. At one point Ms. Talmore's hemoglobin was 9, later 9.1, and then 8.7 at her discharge from Baptist on February 24. Upon emergency re-admission on February 28, Talmore's hemoglobin level was 5.3. Given Talmore's pre-existing conditions and complications developed in the hospital after bypass surgery, the report does not explain what treatment within the defendants' specialties would have been appropriate, or even which treatment should have been done by these specific physicians had a CAT scan of the abdomen been performed prior to the February 24 discharge from the hospital. As we have noted, Talmore was under the care of other physicians who were treating the identified condition within their areas of specialization. Although the report indicates those consultations directly related to Talmore's medical condition and resulted in her injury and death, Dr. Levinson does not explain the causation relationship between each defendant's specific treatment of other conditions, the hemoglobin levels, the failure to do a CAT scan prior to discharge, the prior existence of an abdominal aortic aneurysm, and Talmore's cardiac pulmonary arrest on February 28.
The reports of Dr. Levinson and Nurse Practitioner Lindsay state that Talmore developed Stage II bedsores during her hospitalization. The reports set out the standard of care: Talmore should be turned every two hours or be provided with adequate skin care. Both Lindsay and Levinson assert neither was done, and as a result, Talmore developed bedsores and suffered great pain.
Nurse Practitioner Lindsay also states Baptist and the medical personnel involved released Talmore prematurely on February 14 to the cardiac rehab unit and prematurely discharged her home on February 24. Although qualified by education, experience, or training, to express an opinion about the nursing standard of care during Talmore's hospitalization at Baptist, Nurse Practitioner Lindsay is disqualified by statute as an expert witness on causation in this case. See Tex. Occ. Code Ann. § 301.002(2) (Vernon Supp. 2006); Tex. Civ. Prac. Rem. Code Ann. § 74.403 (Vernon 2005). Specifically, under the circumstances of this case she could not offer an opinion that any breach of a standard of medical care was a cause of Talmore's injuries and death.
Other than the statement of the need to turn Talmore every two hours and the need for adequate skin care, the reports offer no specific explanation of how Talmore's multiple medical problems impacted the development and treatment of the ulcers; and there is no description of an appropriate skin care program to prevent and treat bedsores or to keep them from progressing to a more serious level. The trial court may have concluded Dr. Levinson's report did not explain causation adequately; his report simply concludes causation exists. The application of the expert report requirements to Baptist Hospital is a close question in this case. Nevertheless, in considering the rather conclusory statement of the care standard, description of the breach, and causation statement, the trial court, within its discretion, may reasonably have found one or all cursory and inadequate.
Conclusion
The trial court did not abuse its discretion in finding the expert reports inadequate. Plaintiffs' issues are overruled. The trial court's dismissal of the suit is affirmed.