Opinion
No. 09-07-300-CV
Submitted on September 20, 2007.
Opinion delivered October 25, 2007.
On Appeal from the 284th District Court, Montgomery County, Texas, Trial Cause No. 06-07-06852-CV.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
In this healthcare liability claim, Bill and Lana Comstock, individually and on behalf of their daughter, Megan Rae Comstock, (the "Comstocks"), appeal an order dismissing their claims against M. James Clark, D.D.S. ("Clark") and Northwest Oral Maxillofacial Surgery, P.C. ("Northwest") (collectively referred to as "health care providers") on the grounds that the Comstocks failed to produce a sufficient expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351( l) (Vernon Supp. 2006). We reverse and remand.
Background
The Comstocks sued Clark, a dentist specializing in oral and maxillofacial surgery, and Northwest, his alleged employer, and contended that they committed malpractice. The Comstocks claimed that Megan suffered permanent brain damage because of an overdose of sedation medication during a procedure to surgically extract her wisdom teeth. Specifically, the Comstocks contend that the health care providers were negligent by overly sedating Megan, causing her brain to be deprived of sufficient oxygen, and then failed to sufficiently monitor her following the procedure.
The Comstocks served the health care providers with the expert reports of Dr. Roger E. Alexander, a licensed dentist and a board-certified specialist in oral and maxillofacial surgery, and Dr. Malcolm D. Orr, a board-certified anesthesiologist. The health care providers moved to strike the experts' reports asserting that the reports failed to comply with the statutory medical report requirements of Chapter 74 of the Civil Practice and Remedies Code. See id. § 74.351(r). After holding a hearing, the trial court found the two experts' reports inadequate, but granted the Comstocks a thirty-day extension to allow them to cure the alleged deficiencies in their reports. See id. § 74.351(c).
After the Comstocks served the health care providers with updated expert reports, the health care providers objected to the revised reports and again requested that the court dismiss the Comstocks' claims. The health care providers argued to the trial court, and maintain on appeal, that Dr. Orr is not qualified to render an opinion regarding Megan's injuries, and that the expert reports were inadequate to explain how their alleged negligence caused Megan's brain injury. See id. § 74.351(r)(6).
After a hearing, the trial court sustained the health care providers' objections to the Comstocks' revised expert reports and granted the health care providers' motion to dismiss. The Comstocks then filed this interlocutory appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2006).
Standards Pertinent to Health Care Liability Expert Reports
We review a trial court's decision regarding the adequacy of a health care liability expert report under an abuse of discretion standard. 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 fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
A plaintiff asserting a health care liability claim must timely provide each defendant health care provider with an expert report. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). 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.
Id. § 74.351(r)(6). If a plaintiff timely furnishes the required report, the defendant may file a motion challenging the report's adequacy. See id. § 74.351( l).
The statute provides that the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. When determining whether the report represents a good faith effort, the trial court's inquiry is limited to the four corners of the report. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. To constitute a good faith effort, 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." Palacios, 46 S.W.3d at 875.
To be sufficient, the expert's report in a health care liability claim is not required to marshal and present all of the plaintiff's proof; but the report cannot merely state the expert's conclusions about the required elements. Wright, 79 S.W.3d at 52. Rather, the report must explain the basis of the expert's statements to link his conclusions to the facts. Id. However, because a plaintiff need not present a report that describes evidence as if he were actually litigating the merits, the information in the report does not have to meet the same requirements as evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879. For example, the report is not required to express the causal relationship in terms of reasonable medical probability or other "magic" words. Wright, 79 S.W.3d at 53.
With respect to opinion testimony on causation issues in health care claims against dentists, the expert must be a dentist or physician, and "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)(D). Under the Texas Rules of Evidence, an expert must have 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 v. Heise, 924 S.W.2d 148, 153 (Tex. 1996); see also Tex. R. Evid. 702.
In this case, the parties agree that Dr. Alexander did not discuss causation in his report and focused solely on the issue of standards of care. Thus, the Comstocks only submitted Dr. Orr's expert report to address causation. Here, and in the trial court, the health care providers challenge Dr. Orr's qualifications and the adequacy of his report with respect to providing them a fair summary of the causal relationship between the alleged negligence of the health care providers and Megan's injury.
Adequacy of Dr. Orr's Report
The Comstocks contend that Dr. Orr was qualified to offer an expert opinion on the causal relationship between Megan's injuries and the applicable standards of care. The Comstocks point to Dr. Orr's extensive training and experience in the field of anesthesiology and Dr. Orr's statement in his report that he has the ability to "manage the airway of patients such as Megan Rae Comstock to conduct their anesthesia, titrate their level of sedation, guide [their] emergence, assess their recovery and ability to breathe for themselves for the automobile trip home where they are without any specialty trained healthcare provider." The health care providers argue, on the other hand, that because Dr. Orr is not a neurologist, neurosurgeon, or a specialist in brain disorders, he is not qualified to testify that Megan sustained an injury.
Not every physician automatically qualifies as an expert in every area of medicine. See Broders, 924 S.W.2d at 152. However, a physician need not be a practitioner in the same specialty as the defendant to be a qualified expert in a particular case. See id. at 153; see also Blan v. Ali, 7 S.W.3d 741, 745 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Under the Rules of Evidence, the test is whether the offering party has established that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court. See Tex. R. Evid. 702; Broders, 924 S.W.2d at 153; see also Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). The issue before us is whether Dr. Orr's report reflects that he has the credentials and experience to provide an opinion that links deprivation of oxygen to a brain injury.
Dr. Orr, a board-certified anesthesiologist for over thirty years, currently practices medicine and is a tenured professor of anesthesiology with the University of Texas Health Science Center in San Antonio, Texas. Since 1978, Dr. Orr has provided general anesthesia for dental patients within the dental school of the University and within Audie Murphy Veterans' Hospital, which is a teaching hospital for dental residents. He has been responsible for staffing the dental school's operating rooms, and has directed the University's anesthesia operations. Dr. Orr trains medical and dental students in anesthesiology and oral and maxillofacial surgery and consults with other MD's, DO's, and oral and maxillofacial surgeons. Additionally, according to Dr. Orr's report and curriculum vitae, he has extensive training and experience with the standards of anesthesia management and recovery from medications used in sedating patients. Moreover, he was one of the researchers in a multi-center study on one of the sedation reversal agents used during Megan's procedure.
The health care providers characterize the specific issue before the trial court as the diagnosis and treatment of Megan's alleged brain damage. However, Dr. Orr's report focuses on Megan's overdose of sedation medication, her monitoring after the procedure, her untimely discharge, and her resulting cerebral hypoxia. Dr. Orr's qualifications support his expertise in the subjects on which he provided opinions in his report.
The health care providers rely on Leland v. Brandal, 217 S.W.3d 60 (Tex.App.-San Antonio 2006, pet. granted), for support of their contention that anesthesiologists, although often qualified to render opinions on general causation, are not qualified to render an opinion on specific causation on issues beyond their training and experience. In Brandal, the issue concerned whether an anesthesiologist was qualified to testify that the cessation of a patient's anticoagulant medication had caused his stroke. See id. at 62, 63. The Brandal court stated that while anesthesiologists may administer anesthesia to patients with a myriad of problems, that activity does not give them specialized knowledge concerning the causation of ancillary problems. Id. at 63. However, in this case, Dr. Orr's opinion did not concern an ancillary problem that required a showing of the type of specialized knowledge required by the court in Brandal. 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, Dr. Orr's causation opinion is premised on the proposition that a significant deprivation of oxygen to the brain causes brain damage, and that Megan, as a result of sedation, suffered from a significant deprivation of oxygen. Because Dr. Orr'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.
We also conclude that Dr. Orr was qualified to express an opinion on specific causation. Dr. Orr reviewed the clinical records from Megan's surgery. Megan's history established that prior to the procedure she was in good health. After the procedure, Megan required assistance in being placed in the car, and upon arriving at home was difficult to arouse. Megan's history indicated that she "went from being an accomplished pianist and equestrienne to one who is now challenged in these and in many other areas." Further, the health care providers suggested no intervening cause to explain the change in Megan's overall health. In the absence of another explanation, and given the temporal nature of the change in Megan's health status, we conclude that Dr. Orr's report is adequate to demonstrate that his qualifications were sufficient to allow him to associate the deprivation of oxygen to Megan's brain as a probable cause of her symptoms that he attributed to a brain injury.
In addition to their contention that Dr. Orr is qualified to provide causation testimony, the Comstocks also assert that Dr. Orr's report adequately identified the standard of care, breaches of those standards, and the causation elements required of an expert report. The health care providers do not contend that Dr. Orr failed to identify the applicable standards of care and their breaches. After reviewing Dr. Orr's report, we find that it provides a fair summary of the standards and the manner in which the health care providers failed to meet those standards. Namely, Dr. Orr's report specifies the recommended dosage of sedation medication for the type of procedure Megan underwent and then states that Megan received 150% of the maximum recommended dose for all patients. Next, Dr. Orr explains how the reversal agents should have been administered as compared to the amount given to Megan — the smallest reversal dose recommended — which resulted in Megan's re-narcotization. Dr. Orr also details the required monitoring necessary when administering sedation medications and reversal agents, and how the health care providers failed to properly monitor Megan. Last, Dr. Orr's report explains that Megan did not meet the criteria to be discharged.
The health care providers maintain that Dr. Orr's causation testimony was "based upon speculation, and [that] he did not link his conclusions to the facts of this case." Specifically, the health care providers argue that without reviewing the medical records of Megan's postoperative hospital admission, Dr. Orr had no competent medical evidence of any injury and thus, could not link Megan's injuries to the health care providers' breach of the applicable standards of care.
Dr. Orr's report stated he had reviewed Megan's clinical records from the procedure at issue, and that he spoke with Megan's mother regarding the events surrounding the procedure and her present condition. Dr. Orr's report included the chronological history of the procedure, which included specifics regarding the sedation medication administered to Megan that resulted in her being under deep sedation. Dr. Orr also detailed how the health care providers should have monitored Megan after she was given reversal agents. Additionally, Dr. Orr's report discussed the events that took place after the surgery. Dr. Orr notes that at her discharge, Megan was not alert and her speech was slurred.
Additionally, regarding the causal relationship between the health care providers' failure to meet the standard of care and the injury claimed, Dr. Orr's report specifically states:
The health care provider placed the patient in the car in a semi-recumbent position where she had iatrogenic obstructive sleep apnea. She was not returned to the recovery facility for enriched oxygen to protect her during the 45 minute drive home. Dr. Clark could have changed the outcome of events that day if he had carried out the Dental Board Instructions. The injuries to this patient were caused by cerebral hypoxia occasioned by the obstructive sleep apnea. Prolonged deep sedation/general anesthesia coupled with tongue obstruction caused the injury. These injuries were the result of untimely dismissal of the patient without one to two hours of recovery time with oxygen and careful respiratory coaching by the recovery room staff.
Dr. Orr's report provides the link between the health care providers' breach (overdose of sedation medication, failure to properly reverse deep sedation, failure to monitor properly, untimely discharge, and the placement of Megan in the vehicle) and his conclusion on causation that, if properly medicated or monitored, Megan would have avoided the obstruction of her airway that resulted in hypoxia and brain injury.
We find that Dr. Orr's expert report provided a fair summary to reflect the bases of his opinions. See generally Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 875. As we previously explained, the temporal relationship of the procedure and the symptoms together with the fact that no confounding intervening causes are suggested as factors lead us to conclude that the information required by Chapter 74 of the Civil Practice and Remedies Code is contained in Dr. Orr's report.
We do not imply or suggest that an expert report's sufficiency for purposes of Chapter 74 of the Texas Civil Practice and Remedies Code immunizes the report from a challenge that it is not sufficiently reliable to be admitted before the trier of fact. That type of challenge generally carries with it a more developed record than is before us here in this preliminary proceeding.
Because Dr. Orr's report provided adequate opinions on the applicable standard of care, breach, and causal relationship, we find that the report represents an objective good faith effort to comply with the statutory requirements of a health care liability expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6); see also Palacios, 46 S.W.3d at 875. We sustain the Comstocks' issue. Accordingly, the judgment of the trial court dismissing the Comstocks' claim is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
The Comstocks concede that Dr. Alexander's expert report does not include causation testimony. Rather, they urge that it addresses standards of care and breaches of those standards committed by the health care providers. Because we find Dr. Orr's expert report satisfies the statutory requirements of an expert report under Chapter 74 of the Texas Civil Practice and Remedies Code, we need not address the adequacy of Dr. Alexander's report. See generally Tex. Civ. Prac. Rem. Code Ann. § 74.351(i).
REVERSED AND REMANDED.