Opinion
Civil Action No: SA-03-CA-284-XR
January 5, 2004
ORDER
On this date, the Court considered Defendant Boulos Toursakissian, M.D. and Edson Franco, M.D.'s Amended Objections to Expert Disclosures and Alternatively Motion to Dismiss, filed Novembers, 2003, Plaintiff's Response, filed November 25, and Defendants' Reply, filed December 11. After careful consideration, the Court will GRANT IN PART and DENY IN PART the motion (docket no. 26).
Facts and Procedural Background
According to Plaintiff's complaint, on March 21, 2000, Plaintiff Dana White was involved in a motor vehicle accident and sustained a fractured left femur and acetabulum. After being treated at Citizen's Medical Center, she was transferred to Bexar County Hospital District d/b/a University Health System on March 24, 2000 for management of the fracture. On March 29, White underwent a left femoral thrombectomy with patch angioplasty. Doctors Boulos Toursakissian and Edson Franco performed this procedure. After the procedure, White began exhibiting symptoms of ischemia with reduced sensory and motor control in her lower left leg. Plaintiff's complaint alleges that, while under the continuing care of Doctors Toursakissian, Franco, McGanity, Kill, and Corley, White's symptoms continued, and she eventually required amputation of her lower left extremity.
White originally filed this lawsuit in state court. Her fourth amended petition was filed on March 4, 2003, and citation was served upon the United States of America on March 25, 2003. Defendant Dr. Keith Jay Hill was an employee of the United States Department of Army, and thus White's claims against Dr. Hill fall within the scope of the Federal Tort Claims Act, giving this Court exclusive jurisdiction. See 28 U.S.C. § 1346(b). On April 11, 2003, the United States of America filed a Notice of Removal pursuant to 28 U.S.C. § 2679(d)(2), accompanied by a certification by the Chief of the Civil Division of the United States' Attorney's Office for the Western District of Texas that Dr. Hill was acting within the scope of his federal employment at the time of the incident giving rise to this suit. Thus, the United States of America was substituted as a party defendant in place of Dr. Hill. See 28 U.S.C. § 2679(d)(3).
The Defendants bringing this motion are Doctors Boulos Toursakissian and Edson Franco. Because Defendants are not federal employees, Plaintiffs claims against them fall within this Court's supplemental jurisdiction and are governed by state substantive law. See 28 U.S.C. § 1367(a).
Federal Rule of Civil Procedure 26(a)(2) governs expert witness reports. It requires a report to contain "a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." FED. R. Civ. P. 26(a)(2)(B). These disclosures "shall be made at the times and in the sequence directed by the court." FED. R. Civ. P. 26(a)(2)(C). Under the scheduling order entered August 15, 2003, White was required to file her designation of testifying experts and serve the materials required by Rule 26(a)(2)(B) by October 6, 2003. On October 6, White filed her designation of expert witnesses and produced an expert report and curriculum vitae for three experts: (1) William M. lannacone, M.D., Ph.D., an orthopedic surgeon; (2) Robert Principato, D.O., a radiologist; and (3) Carl Hubbard, Ph.D., an economist.
On October 24, 2003, Defendants Toursakissian and Franco filed their Objections to Expert Qualifications and Motion to Dismiss (docket no. 25). No response was received to this motion, and on November 5, Defendants filed their Amended Objections to Expert Disclosures and Alternatively Motion to Dismiss (docket no. 26). Because the amended motion supersedes the October 24 motion, the October 24 Objections and Motion to Dismiss (docket no. 25) is DISMISSED AS MOOT.
In their Amended Objections to Expert Disclosures and Alternatively Motion to Dismiss, Defendants move under Federal Rules of Civil Procedure 12(b)(6), 26, and 37 and argue that Plaintiff has failed to meet the federal civil procedure requirements for disclosures pertaining to expert witnesses and has failed to state a claim upon which relief may be granted because the allegations lack support by any expert testimony. Specifically, Defendants contend that the expert reports submitted by Plaintiff are insufficient because they fail to contain all of the elements required by Federal Rule of Civil Procedure 26(a)(2)(B). Defendants contend that, at a minimum, this Court should order Plaintiff to supplement the reports to fully comply with the Federal Rules of Civil Procedure. Alternatively, Defendants argue that Plaintiffs claim must be dismissed because Plaintiff's expert reports failed to satisfy the statutory requirements of the Texas Medical Liability and Insurance Improvement Act, Article 4590i and Texas case law.
Article 4590i, otherwise known as the Medical Liability Insurance Improvement Act, was repealed in the most recent Texas legislative session. Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 10.09, effective Sept. 1, 2003. The Legislature re-codified similar provisions in Chapter 74 of the Civil Practice and Remedies Code. However, section 4590i continues to apply to cases filed before the September 1 effective date.
Analysis
Defendants contend that Dr. Iannacone's report is "insufficient under the Federal Rules of Civil Procedure in that it fails to disclose all opinions as to this expert, any exhibits he intends to use, any prior testimony he has given in the last four years, his compensation for review and testimony in this case, and any qualifications he possesses with respect to vascular surgery." Thus, Defendants assert, "Plaintiff should be required to provide a complete disclosure as to this expert." Defendants contend that Dr. Principato's report is similarly deficient. After reviewing the reports, the Court finds that both reports fail to comply with the requirements of Rule 26 in some respects. Both reports fail to state what exhibits, if any, will be used as a summary of or support for the opinions, the compensation to be paid for the study and testimony, and a listing of any other cases in which the witness has testified as an expert in the preceding four years. Plaintiff has failed to address these deficiencies in her response. Thus, at a minimum, Plaintiff must resubmit or supplement these expert reports to include the omitted information. Dr. Hubbard's report does list the cases in which he has testified as an expert, but fails to state the compensation to be paid for the study and testimony. Thus, Dr. Hubbard's report must also be resubmitted or supplemented.Dr. Boulos Toursakissian is a vascular surgeon, and, although not entirely clear from the current record, it appears that Dr. Edson Franco is as well. Defendants argue that Plaintiffs expert reports submitted by Drs. lannacone and Principato are insufficient to support a claim against them for medical negligence under state substantive law because they fail to establish that the expert is qualified to offer an opinion on the standard of care of a vascular surgeon; fail to establish the standard of care for either Dr. Toursakissian or Dr. Franco; fail to provide any factual information to support the implication that White suffered compartment syndrome; fail to state in what way the vascular surgeons Dr. Toursakissian and Dr. Franco breached the standard of care; fail to establish that any act or omission of the vascular surgeons Dr. Toursakissian and Dr. Franco as opposed to acts or omissions of the orthopedic surgeons or other parties was the proximate cause of White's injuries; and fail to state what any particular Defendant did or should have done in caring for White. Defendants further argue that "no designated expert is qualified to render an opinion as to the standard of care for a vascular surgeon." Defendants request that the Court require Plaintiff to supplement her disclosures to include a sufficient expert report, sanction Plaintiff for failure to provide adequate disclosures, or dismiss her claims against them for failure to state a claim upon which relief may be granted.
The parties do not discuss in detail to what extent Texas statutes governing health care liability claims control this case to the exclusion of the federal rules of civil procedure. See Poindexter v. Bonsukan, 145 F. Supp.2d 800 (E.D. Tex. 2001) (concluding that federal rules concerning expert reports control and that the Medical Liability Insurance Improvement Act's expert reporting provisions do not apply in federal court). Section 13.01(d) requires that "Not later than the later of the 180th day after the date on which a health care liability claim is filed . . . the claimant shall, for each physician or health care provider against whom a claim is asserted: (1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report." TEX. REV. Civ. STAT. ART. 4590i, § 13.04(d). Both parties assume that the deadline contained in the Court's scheduling order rather than the statutory deadline controls. However, Defendants' motion to dismiss appears to be premised on Plaintiff's failure to satisfy the expert report requirements of article 4590i, section 13.01(r)(6), which defines an expert report as "a written report by an expert that provides a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." If a plaintiff fails to timely submit an expert report, section 13.01(1) requires the court to grant a motion to dismiss. Federal Rule of Civil Procedure 26 requires more generally that expert reports include the expert's opinions and the bases for those opinions but does not expressly require the report to state the standard of care, the breach of the standard of care, and causation. However, under Texas substantive law, expert testimony concerning those elements would be essential to a plaintiff's recovery. See Amer. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001). Regardless of whether the Texas statute controls over the federal rules, Plaintiff contends that her submitted reports satisfy both the Texas statute and state substantive case law. Accordingly, the Court now turns to that inquiry.
As an initial matter, Defendants contend that no expert is qualified to render an opinion regarding Drs. Toursakissian and Franco because plaintiff's experts are not vascular surgeons. The Court concludes that the fact that Drs. Iannacone and Principato are not vascular surgeons is unavailing as a challenge to their testimony. See Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1020 (5th Cir. 1993) (citing Simpson v. Glenn, 537 S.W.2d 114, 116-17 (Tex.Civ.App.-Amarillo 1976, writ ref'd n.r.e.) ("[A] witness need not be a specialist in the particular branch of the profession about which testimony is offered.")). As the Fifth Circuit indicated in Rodriguez, a physician may provide expert testimony so long as he meets the statutory criteria and is familiar with the standard of care applicable to injuries like those suffered by the plaintiff. Texas law requires that an expert testifying on whether a physician departed from the accepted standard of medical care be practicing medicine at the time the testimony is given or the time the claim arose, has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the injury or condition involved in the claim, and is qualified on the basis of training or experience to offer an expert opinion regarding the accepted standards of medical care. Rodriguez, 980 F.2d at 1019; TEX. REV. CIv. STAT. ANN. art. 4590i, § 14.01(a)(1); TEX. R. Evro. 702. In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony was given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. TEX. CIV. PRAC. REM. CODE § 74.401(c). And as the Texas Supreme Court has stated, "The Fifth Circuit, for instance, has focused, as we do, on whether the expert's expertise goes to the very matter on which he or she is to give an opinion." Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (citing Christopherson v. Allied-Signal Corp., 939 F.2d 1106, 1112-13 (5th Cir. 1991). Thus, what is required is that the offering party establish that the expert has "knowledge, skill, experience, training, or education" regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. Broders, 924 S.W.2d at 153.
Dr. lannacone is a board certified orthopedic surgeon, currently licensed to practice medicine. In his report, Dr. lannacone states that he has knowledge of the accepted standards of medical and hospital nursing care required for the diagnosis and treatment of the medical problems demonstrated by White while she was a patient at University Hospital. He states that he has provided orthopedic consultation on numerous patients who have had symptoms and injuries similar to those sustained by White during her hospitalization. After reviewing Dr. lannacone's affidavit and curriculum vitae, the Court concludes that Dr. lannacone is qualified to provide expert testimony regarding the standard of care owed to White by Drs. Toursakissian and Franco, especially insofar as his testimony focuses not on Defendants' negligence during the surgery, but on their alleged negligence after.
Defendants Toursakissian and Franco "object to Plaintiff's expert disclosures in that no designated expert is critical of the vascular surgeons." However, Doctor lannacone's report is critical of Doctors Toursakissian and Franco. He states, "it is my expert opinion that the orthopedic staff, Boulos Toursakissian, MD, Edson Franco, MD, Peter L. McGanity, MD and Fred Corley, MD and the nurses at the University Hospital deviated from the requisite applicable standards of care and this caused or contributed to cause compromise of Dana White's lower left extremity ultimately . . . resulting in amputation." Thus, although Dr. lannacone does not refer to Drs. Toursakissian and Franco as vascular surgeons and may incorrectly refer to them as part of the orthopedic staff, his report names them individually and is critical of them. In their reply, Defendants state that "[b]oth Dr. lannacone and Dr. Principato make it clear that the basis of their claim is that Plaintiff suffered injuries during the initial surgery performed by other defendants. Neither doctor has linked any specific act or omission by these Defendants to Plaintiff's injuries." However, Dr. lannacone criticizes the lack of diagnosis and treatment after the surgery. Dr. lannacone's report notes that it was well documented in the medical records that White began exhibiting signs of ischemia after her surgery but it was not until 1645 hours on March 31, 2000 that angiography was performed to evaluate vascular supply to the left lower extremity. The angiography determined that White had compete occlusion of her left common femoral artery with no vascular supply to her left lower extremity and the angiographer requested a vascular consult. Approximately 4.5 hours elapsed before the vascular surgeon reestablished flow to the left lower extremity, with the vascular procedure being completed at 0026 hours on April 1, 2000. The report further provides that although White clearly demonstrated signs and symptoms consistent with compartment syndrome in her left lower extremity, fasciotomoy was not performed until 13 hours later at 1355 hours on April 1. Dr. lannacone states that the standard of care for a surgery patient demonstrating signs and symptoms of ischemia would require immediate notification by the nursing staff to orthopedic surgeons of potential vascular compromise. He further states that the standard of care also requires that orthopedic surgeons immediately intervene to prevent the development of compartment syndrome by performing a fasciotomy. In this case, however, nearly 50 hours elapsed before a definitive diagnosis of ischemia was made on March 31. Further, he states there "was failure to anticipate the development of compartment syndrome following reperfusion. An additional 20 hours elapsed after perfusion was established before the compartment syndrome in the left lower extremity was recognized and fasciotomy performed." He then states that it is his opinion that "the delay in recognition and treatment of the ischemia to Dana White's lower extremity represented a substantial deviation from the standard of orthopedic trauma care by the individual physicians of the Orthopedic Trauma Team and the supporting nursing personnel."
Plaintiff states that Drs. Toursakissian and Franco performedher left femoral thrombectomy with patch angioplasty on March 29 and that Plaintiff was under their continuing care, treatment, and observation after the surgery, when she exhibited signs of ischemia. Her petition alleges that Drs. Toursakissian and Franco were negligent in failing to recognize the serious nature of the symptoms related by Plaintiff upon presentment on March 24; failing to follow the generally accepted standard of care to prevent unnecessary and additional injury to Plaintiff during the March 29 surgical procedure; failing to properly and timely diagnose the symptoms Plaintiff exhibited after the March 29 procedure; failing to provide proper medical treatment, care, and monitoring after the March 29 procedure; failing to conduct appropriate testing and procedures to determine the cause of Plaintiff's symptoms after the March 29 procedure; and failing to follow generally accepted standards for health care.
With regard to her allegations that Drs. Toursakissian and Franco were negligent in failing to recognize the serious nature of the symptoms related by Plaintiff upon presentment on March 24 and failing to follow the generally accepted standard of care to prevent unnecessary and additional injury to Plaintiff during the March 29 surgical procedure, Plaintiff has failed to provide any expert opinion supporting these allegations. Dr. Principato's report states only that "After surgery at University Hospital the patient lost her pulses in her left leg requiring arteriography, embolization and an injured artery in the pelvis and subsequent surgical repair of an arterial occlusion. From documentation this occurred during the acetabular hip repair." Neither of Plaintiff's experts indicates any breach of the standard of care by Defendants Toursakissian and Franco in performing the March 29 surgery or beforehand. However, Dr. lannacone's report clearly criticizes defendants for failing to diagnose and treat her symptoms after the surgery, and links that failure causally to her amputation. Thus, Plaintiff has presented expert testimony to supporther allegations that defendants failed to properly and timely diagnose the symptoms Plaintiff exhibited after the March 29 procedure, failed to provide proper medical treatment, care, and monitoring after the March 29 procedure, and failed to conduct appropriate testing and procedures to determine the cause of Plaintiff's symptoms after the March 29 procedure. Thus, because Plaintiff has submitted a good-faith effort to meet the statutory requirements of article 4590i, dismissal under 4590i would not be warranted, and the Court need not decide whether Texas statutory provisions regarding the sufficiency of an expert report control to the exclusion of the federal rules of civil procedure. Further, because Plaintiff has submitted a good faith effort, the Court finds that dismissal for Plaintiff's failure to fully comply with the requirements of Federal Rule of Civil Procedure 26 is unwarranted. Accordingly, Defendants' motion to dismiss is DENIED.
Conclusion
Defendants' Objections and Motion to Dismiss filed October 24, 2003 (docket no. 25) is DISMISSED AS MOOT. Defendants' Boulos Toursakissian and Edson Franco's Amended Objections to Expert Disclosures and Alternatively Motion to Dismiss (docket no. 26)is GRANTED IN PART and DENIED IN PART. Because Plaintiff's expert reports fail to comply with Federal Rule of Civil Procedure 26, Defendants' objections are sustained and Plaintiff is ORDERED to resubmit or supplement her expert reports to fully comply with Rule 26's requirements no later than February 2, 2004. Because Plaintiff has submitted a good faith effort to produce expert reports that comply with state statutory requirements and that could support a claim under Texas law, Defendants' Motion to Dismiss is DENIED. However, Plaintiff is ORDERED to resubmit or supplement her expert reports no later than February 2, 2004 to set forth expert testimony regarding (1) the standard of care owed by each individual defendant, (2) whether and in what manner each individual defendant departed from the standard of care, and (3) whether and in what manner each individual defendant's departure from the standard of care caused Plaintiff's injuries.