Summary
In Hambrick, we held that an emergency room physician lacked the qualifications necessary to opine on the cause of a patient's cardiac arrest where plaintiffs alleged the decedent was injured when his tracheostomy tube was dislodged while being repositioned by the nursing staff.
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No. 05-17-00003-CV
06-12-2017
BRENT ALLEN HAMBRICK, M.D., EMCARE HOLDINGS, INC., EMCARE, INC. AND TEXAS EM-I MEDICAL SERVICES, P.A., Appellants v. LETICIA DOMINGUEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAVIER DOMINGUEZ, JENNIFER DOMINGUEZ, LUIS ADEMIR DOMINGUEZ, JAVIER DOMINGUEZ, JR., AND ESMERALDA DOMINGUEZ, INDIVIDUALLY, Appellees
On Appeal from the 192nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-12919-K
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers
This case concerns the sufficiency of an expert report in a medical malpractice case under section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2016). Appellants' Brent Allen Hambrick, M.D., Emcare Holdings, Inc., Emcare, Inc., and Texas Em-I Medical Services P.A. appeal the trial court's order denying their motion to dismiss the suit filed by Leticia Dominguez, the personal representative of the deceased, Javier Dominguez, and Dominguez's family members. See CIV. PRAC. § 51.014(a)(9) (West Supp. 2016). Appellants bring three issues on appeal contending the trial court erred by overruling their objections to the expert reports of Dr. Kenneth Corre and Dr. Brian Gogel and by denying appellants' motion to dismiss because: (1) Dr. Corre was not qualified to render an opinion on the causal link between Dr. Hambrick's care and Dominguez's death; (2) Dr. Corre's opinions do not constitute a good-faith report on causation; and (3) the opinions expressed in Dr. Gogel's report do not constitute an expert report against Dr. Hambrick. We conclude Dr. Corre's report fails to establish his qualifications to render an opinion on the causation of Javier Dominguez's death. We reverse the trial court's judgment and remand the cause to the trial court to consider whether to grant a thirty-day extension to cure the deficiencies in Dr. Corre's report. See id. § 74.351(c).
BACKGROUND
On July 11, 2014, Javier Dominguez underwent gall-bladder-removal surgery. After the surgery, Dominguez's condition worsened, and he had high fever and rapid heart rate. The doctors returned Dominguez to the operating room on July 14 and found bowel contents in his abdomen from a pinhole in his colon. After this surgery, Dominguez's condition deteriorated further. Dominguez was placed in the ICU, and he required mechanical assistance to breathe. Dominguez's hypoxemia grew worse, and on July 29, a tracheostomy was performed inserting a tube into Dominguez's airway. Later that day, Dominguez's respiration rate increased, and despite the tracheostomy, there was air coming out of his nose. At 10:45 p.m., during "repositioning" by the nurses, the tracheostomy tube dislodged. At 10:51 p.m., when the nurses and a respiratory therapist could not successfully reposition or replace the tube, a "code blue" was called. About two minutes later, Dr. Hambrick arrived from the emergency room and tried to replace the tracheostomy tube, but he was unsuccessful. Dominguez went into cardiac arrest at 10:58 p.m. Dominguez's oxygen saturation dropped to forty percent, and he showed signs of subcutaneous emphysema, including swelling of the face and neck. Dr. Hambrick tried again to replace the tracheostomy tube, but he was unsuccessful. The medical director then ordered reintubation. Dr. Hambrick ordered administration of succinylcholine, which Dominguez received at 11:05 p.m. Dr. Hambrick then intubated Dominguez, but he and the other hospital staff could not revive him. Dr. Hambrick called the time of death at 11:19 p.m.
The Dominguez family sued Dr. Hambrick as well as other physicians and health care providers. The Dominguezes served Dr. Hambrick with the expert reports of Dr. Corre and Dr. Gogel. Dr. Corre concluded that Dr. Hambrick should have intubated Dominguez sooner. Dr. Hambrick objected to the expert reports and moved to dismiss the Dominguezes' claims under section 74.351(b). The trial court overruled the objections and denied the motion to dismiss.
EXPERT-REPORT REQUIREMENT
Section 74.351 of the Civil Practice & Remedies Code provides that a plaintiff bringing a health care liability claim must serve defendants who are physicians or health care providers with an expert report within 120 days of their answers. CIV. PRAC. § 74.351(a). The report must provide the expert's opinions regarding the standard of care, the manner in which the care rendered by the defendant failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages caused. Id. § 74.351(r)(6). A defendant may file objections to the report within twenty-one days after the report is served or the defendant files its answer. Id. § 74.351(a). Any objections to the expert report not filed within that time are waived. Id. If an expert report is not timely filed, the trial court must, on the defendant's motion, dismiss the health care liability claims with prejudice and award the defendant its reasonable attorney's fees and costs of court. Id. § 74.351(b). If the plaintiff serves an expert report that "does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)," then the court must grant a motion challenging the adequacy of the report. Id. § 74.351(l). The court may grant a party that serves a deficient expert report one 30-day extension to cure the deficiencies. Id. § 74.315(c).
We review a trial court's order on the sufficiency of an expert report for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam).
DR. CORRE'S EXPERT REPORT
In their first issue, appellants contend the trial court erred by denying their objections to Dr. Corre's expert report and denying their motion to dismiss because the report did not show Dr. Corre was qualified to render an opinion on whether Dr. Hambrick's conduct caused Dominguez's death. To render an opinion on whether a physician has departed from accepted standards of health care, the Healthcare Liability Act requires that an expert must 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;TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a); see CIV. PRAC. § 74.351(r)(5)(A) (expert providing report on whether physician departed from accepted standards of medical care must meet requirements of § 74.401). To render an opinion on causation, an expert must be a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C). Rule of Evidence 702 requires an expert witness to be qualified on the basis of "knowledge, skill, experience, training, or education." TEX. R. EVID. 702.
(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.
An expert report or its accompanying curriculum vitae must show that the expert is qualified to opine on the subject matter at issue. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); In re McAllen Med. Center, Inc., 275 S.W.3d 458, 463 (Tex. 2008). However, not every licensed physician is qualified to testify on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).
To determine whether an expert report is sufficient to demonstrate the qualifications of the expert to render an opinion, the trial court should focus on the medical expert's "'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." Id. at 153 (quoting Rule of Evidence 702); see also Tenet Hospitals, Ltd. v. Garcia, 462 S.W.3d 299, 306 (Tex. App.—El Paso 2015, no pet.) (application of rules of evidence in assessing expert's qualifications to opine on causation as set forth in Section 74.351(r)(5)(C) pertains only to expert's qualifications and does not extend to expert's opinion). If the subject matter is common to and equally recognized and developed in all fields of practice, any practitioner familiar with the subject may testify as to the standard of care. El Paso Specialty Hosp. Ltd. v. Gurrola, 510 S.W.3d 655, 659 (Tex. App.—El Paso 2016, no pet.). "In deciding whether an expert is qualified, the trial court must 'ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.'" Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (quoting Gamill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998)). "The expert report must do more than merely allege that the expert is a medical doctor in order to render opinions about the standard of care and causation, and the reviewing court cannot fill in gaps in a report by drawing inferences." Meth. Hosps. of Dallas v. Winn, 496 S.W.3d 148, 152 (Tex. App.—Dallas 2016, no pet.).
In this case, Dr. Corre's report set out his qualifications as follows:
I have attached to my report a copy of my curriculum vitae that sets forth my qualifications as an expert in this case. I have been in the continuous practice of emergency medicine for over 30 years. I received my medical degree at the University of California at Los Angeles (UCLA) in 1980. After graduation, I completed my rotating internship at Harbor-UCLA Medical Center, California. After my internship I completed a residency in Emergency Medicine in 1983, at
the same institution. Immediately thereafter, I entered the private practice of emergency medicine and have practiced full-time, hands-on clinical emergency medicine to the current time.Dr. Corre's curriculum vitae listed his education, his hospital-based positions and experience, his work outside of hospitals, his certifications, faculty positions, and his publications. The curriculum vitae did not expressly show Dr. Corre's experience with any specific medical procedures or conditions.
I concomitantly served as the Medical Director of the emergency department at Simi Valley Hospital in Simi Valley, California from 1993-2003. I am currently an Associate Clinical Professor of Medicine at Cedar-Sinai Medical Center through UCLA since 2005 with frequent clinical instruction to residents, physician assistants, and nurse practitioners who rotate through the ER. I also participate in the clinical training of nurses. I have expectations of and rely on nurses and others, and I supervise the nurses. I am familiar with the standard of care as it relates to nursing in this regard.
Over the years I have served on numerous hospital-based, as well as county, committees. I have served as a reviewer for the Medical Board of California. From 2006 to 2011, I served as a reviewer for Medicare federal review agencies. Additionally, I became board certified in health care quality management in 1990 and sit on their Ethics Committee currently, formerly a Co-Chair.
I was originally board certified by the American Board of Emergency Medicine in 1983 and since that time I have re-certified three times, with my last 10 year re-certification in 2013. I have authored medical articles that have been published in peer reviewed journals, most recently 2009. I have never been disqualified as an expert in court when rendering an expert opinion.
As an emergency department physician, I am also familiar with the standard of care as it applies to emergency medicine for hospitals, emergency department physicians, nurses, physician assistants, and other ancillary personnel. I work with emergency physicians, nurses, physician assistants, and ancillary personnel nearly on a daily basis and I am therefore familiar with the standard of care and expectations for nurses when a patient similar to Javier Dominguez is being seen and treated in the hospital.
Appellants objected to the report as failing to show Dr. Corre's qualifications to render an opinion on the cause of Dominguez's death. We agree that the report and curriculum vitae do not show Dr. Corre is qualified to render an opinion on the cause of Dominguez's death. Although the report and curriculum vitae demonstrate Dr. Corre has decades of experience in emergency medicine, they do not show he has knowledge, skill, experience, training, or education concerning caring for a patient with a dislodged tracheostomy tube or caring for a patient with a tracheostomy tube who requires intubation, which was Dominguez's condition.
The Dominguezes argue that no special qualifications are necessary for a physician to opine about the effects of hypoxia. They cite three cases in support of their position. In the first case, Comstock v. Clark, No. 09-07-300-CV, 2007 WL 3101992 (Tex. App.—Beaumont Oct. 25, 2007, pet. denied), the patient was having her wisdom teeth removed when the oral surgeon gave her too much anesthesia, which resulted in oxygen deprivation and caused the patient's neurological problems. The expert report of an anesthesiologist set forth his qualifications, stating "he has the ability to 'manage the airway of patients such as [the patient] to conduct their anesthesia [and] . . . assess their recovery and ability to breathe for themselves for the automobile trip home . . . .'" Id. at *3. The healthcare provider argued that because the expert was not a neurologist, neurosurgeon, or specialist in brain disorders, he was not qualified to testify that the patient sustained an injury. Id. The court of appeals stated,
The management of a patient's airway and the patient's recovery and ability to breathe for himself are central to an anesthesiologist's responsibility. Here, [the expert's] causation opinion is premised on the proposition that a significant deprivation of oxygen to the brain causes brain damage, and that [the patient] as a result of sedation, suffered from a significant deprivation of oxygen. Because [the expert's] qualifications reflect that he is educated, trained, and experienced in anesthesiology, he is qualified to express the general opinion that a significant deprivation of oxygen causes brain injury.Id. The court of appeals' conclusion that the expert was qualified to provide an opinion on the effect of oxygen deprivation appears to be based on the expert's statement that he had "the ability to 'manage the airway of patients [and] assess their . . . ability to breathe for themselves.'" Id. If so, then the expert report expressly set forth the expert's qualifications to testify about hypoxia. However, even if the court concluded that any anesthesiologist is qualified to testify that hypoxia causes brain injury, the court did not conclude that any physician was similarly qualified. Instead the opinion states that a physician "educated, trained, and experienced in anesthesiology . . . is qualified to express the general opinion that a significant deprivation of oxygen causes brain injury." Id. Dr. Corre's report did not state he is an anesthesiologist, so Comstock does not show he is qualified to testify about the effects of hypoxia.
The Dominguezes also cite Livingston v. Montgomery, 279 S.W.3d 868 (Tex. App.—Dallas 2009, no pet.). In that case, a child suffered from lack of blood flow resulting in hypoxia during the mother's labor and delivery that caused the child's neurological injuries. Id. at 874. An OB-GYN provided the expert report, and he stated, "Although I am not a neurologist, as an obstetrician I have knowledge and expertise to recognize the perinatal progression of hypoxia due to inadequate oxygenation through a compromised uteroplacental unit . . . ." Id. This Court concluded the expert was qualified because of the statement in the report that he had "knowledge and expertise to recognize the perinatal progression of hypoxia due to inadequate oxygenation through a compromised uteroplacental unit." Id. at 877. Dr. Corre's report and curriculm vitae, however, do not state that he has any knowledge and expertise concerning hypoxia due to a dislodged tracheostomy tube.
The Dominguezes also cite Cornejo v. Hilgers, 446 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2012, pet. denied), which concerned a child with "hypoxic-ischemic encephalopathy, a severe, permanent brain injury caused by a lack of oxygen and blood flow." Id. at 116. As in Livingston, the expert report was prepared by an OB-GYN who stated in the report:
I am familiar with the standard of care applicable to . . . evidence of fetal hypoxia as predicted by the fetal heart rate pattern. . . .
. . . .
Based on my education, training, years of experience, familiarity with the medical literature and my board certification in OB/GYN, I am familiar with the probable causes of . . . hypoxic-ischemic injuries in babies generally and with the probable causes of the injuries to [Cornejo's baby] in this case. Specifically, during my many years of practice, I . . . read the medical literature, reviewed case studies and
have followed the care for babies with the same or similar clinical presentation as [Cornejo's baby]. I have kept current on the medical studies and literature regarding babies who have suffered hypoxic-ischemic encephalopathy . . . from events at or around the time of birth. I have also seen infants in my education, training and experience who have suffered from hypoxic-ischemic encephalopathy . . . from events at around the time of birth.Id. 116-17. The defendants argued that the expert was not qualified to testify about causation of the child's injuries because the expert was not certified in neonatology, pediatric neurology, or maternal-fetal medicine. Id. at 120. The court of appeals rejected that argument, concluding that the expert's report showed he was qualified because the report stated he had experience in managing obstetrical complications in pregnancy and labor and he had experience in recognizing fetal hypoxia as predicted by fetal heart-rate patterns. Id. at 123.
The case before us differs from Comstock, Livingston, and Cornejo in that the expert reports in those cases all showed that the expert had knowledge, skill, experience, training, or education in the specific procedures and medical conditions discussed in the report. Dr. Corre's report discusses the appropriate response by a physician when a patient's tracheostomy tube is dislodged and the patient suffers from hypoxia, but the report does not show he has the "knowledge, skill, experience, training, or education" concerning that situation. See Broders, 924 S.W.2d at 153-54. For us to conclude the report showed Dr. Corre was qualified to testify about a dislodged tracheostomy tube and hypoxia simply from his nonspecific experience as an emergency-room physician, we would have to "fill in gaps in the report by drawing inferences," which is not permitted. Meth. Hosps., 496 S.W.3d at 152. Contrary to the Dominguezes' argument, Comstock, Livingston, and Cornejo do not stand for the proposition that no special expertise is necessary for a physician to be qualified to render an opinion regarding the effects of hypoxia.
Dr. Corre's expert report and curriculum vitae do not show that he has knowledge, skill, experience, training, or education concerning a patient who becomes hypoxic following the dislodging of a tracheostomy tube or a patient with a tracheostomy tube who becomes hypoxic and requires intubation. We conclude the trial court abused its discretion by denying appellants' objection to the qualifications of Dr. Corre in the expert report. We sustain appellants' first issue as to Dr. Corre's qualifications concerning the subject-matter of his report.
Having found one deficiency in the expert report that requires reversal, we do not address the sufficiency of the expert report as to the other statutory elements, nor do we imply that the report is sufficient as to those elements. See Sanchez v. Martin, 378 S.W.3d 581, 590 n.2 (Tex. App.—Dallas 2012, no pet.) (citing Gates v. Altaras, No. 10-09-00236-CV, 2010 WL 965960, at *4 n.2 (Tex. App.—Waco Mar. 10, 2010) (holding report was deficient as to causation, declining to consider other alleged deficiencies, and presuming that claimant would "take such precautions as may be necessary to avoid another determination of a deficiency after which there would be no opportunity to cure")). Accordingly, we do not address appellants' second issue.
DR. GOGEL'S REPORT
In their third issue, appellants contend the trial court erred by denying their objections to the expert report of Dr. Gogel. Dr. Gogel's report concluded that the surgeon who performed the gall-bladder-removal surgery did not meet the standard of care because he failed to "examine the entire bowel at the time of surgery to exclude injury." Dr. Gogel also concluded that the nurse who repositioned Dominguez dislodging the tracheostomy tube was negligent because she "failed to have a healthcare provider competent to address the dislodgement present during the maneuver." Dr. Gogel's report did not mention Dr. Hambrick. At oral argument, the parties agreed that Dr. Gogel's report is not relevant to this appeal. Accordingly, we do not address appellants' third issue.
THIRTY-DAY EXTENSION TO CURE DEFICIENCIES
The Dominguezes have requested that if we sustain any of appellants' points of error, then we should remand the case to the trial court for determination of whether to grant them a thirty-day extension of time to cure the deficiencies in the report. See CIV. PRAC. § 74.351(c). At oral argument, counsel for appellants agreed that the Dominguezes should receive the extension.
CONCLUSION
We reverse the trial court's order denying appellants' motion to dismiss, and we remand for further proceedings consistent with this opinion.
/Lana Myers/
LANA MYERS
JUSTICE 170003F.P05
JUDGMENT
On Appeal from the 192nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-12919-K.
Opinion delivered by Justice Myers. Justices Lang and Stoddart participating.
In accordance with this Court's opinion of this date, the trial court's order denying appellants' motion to dismiss is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellants BRENT ALLEN HAMBRICK, M.D., EMCARE HOLDINGS, INC., EMCARE, INC. AND TEXAS EM-I MEDICAL SERVICES, P.A. recover their costs of this appeal from appellees LETICIA DOMINGUEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAVIER DOMINGUEZ, JENNIFER DOMINGUEZ, LUIS ADEMIR DOMINGUEZ, JAVIER DOMINGUEZ, JR., AND ESMERALDA DOMINGUEZ, INDIVIDUALLY. Judgment entered this 12th day of June, 2017.