Summary
concluding that the entire standard of care and breach were contingent on an assumption that emergency department charts and physician's notes were available to two other physicians
Summary of this case from Doctors Hosp. at Renaissance v. LugoOpinion
No. 04-07-00734-CV
Delivered and Filed: April 9, 2008.
From the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CI-08843, Honorable John D. Gabriel, Jr., Judge Presiding.
Reversed and Remanded.
Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Carrie Cooper, M.D. and George Wilcox, M.D. appeal the trial court's order denying their motions to dismiss the health care liability claims asserted against them in the underlying lawsuit. Cooper and Wilcox contend the trial court abused its discretion in denying the motions to dismiss because: (1) the expert report failed to identify them in its discussion of causation; (2) the expert report is inadequate on the element of causation; and (3) the expert report is speculative because the expert makes unsupported assumptions about the facts. Wilcox also contends that the report fails to demonstrate that the expert is qualified. We reverse the trial court's order and remand for further proceedings.
Background
According to the expert report of Joseph Varon, M.D., Linda Arizpe was taken to the emergency department ("ED") at a hospital for left leg pain on August 22, 2005. In the ED, Larry Skeete, M.D. ordered multiple sedative medications despite Arizpe's medical condition which included mental retardation, history of seizure disorder, and her inability to talk to the medical providers. The sedatives caused respiratory depression and led to a complete respiratory arrest. Dr. Skeete spoke with Dr. Stephen Bauer, a hospitalist, who admitted Arizpe to the regular "med-surg" floor but did not order continuous monitoring.
According to Wilcox's brief, a hospitalist is a physician "who does not maintain a standard physician practice, but rather, focuses his practice exclusively in providing hospital care."
On August 23, 2005, Arizpe was admitted to the floor. Wilcox, a hospitalist, saw Arizpe at 0900 and wrote an order for lab work. Cooper, another hospitalist, saw Arizpe at 1100 and wrote a complete HP note. Neither ordered Arizpe to be placed on continuous monitoring or transferred to ICU. At 8:00 p.m., Arizpe suffered a second respiratory arrest. Although another doctor ordered Arizpe transferred to ICU as soon as possible after her second respiratory arrest, she was not transferred until two hours later. As a result of her respiratory arrests, Arizpe sustained anoxic brain injury.
Standard of Review
We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for the trial court's judgment. Id.
Report References to Cooper and Wilcox
Cooper and Wilcox initially contend that the expert report is deficient because it fails to specifically mention them in the section of the report addressing causation. The cases Cooper and Wilcox rely upon to support this contention, however, are readily distinguishable. In both of those cases, the expert report never mentioned the physician's name "at all." See Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex.App.-Austin 2007, no pet.); Garcia v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San Antonio 2006, no pet.). In this case, both Cooper and Wilcox were expressly mentioned in the summary of events and in the sections of the expert report discussing the standard of care and the breach thereof. Although the causation section of the report does not expressly refer to Cooper and Wilcox, Dr. Varon opines in his report that Cooper and Wilcox breached the applicable standard of care by failing to review Arizpe's chart and order continuous monitoring or admission to ICU or a floor where continuous monitoring would have occurred. The causation section of the report then describes the causal impact of failing to have Arizpe admitted into ICU or continuously monitored. Specifically, the causation section states that this failure prevented Arizpe's respiratory depression from being detected before Arizpe suffered a second respiratory arrest and additional brain injury. The trial court did not abuse its discretion in determining that the report was not deficient simply based on the absence of the express use of Cooper's and Wilcox's names in the causation section of the report.
Causation
Cooper and Wilcox next contend that the causation section of the report was deficient because it was conclusory. Cooper and Wilcox argue that the failure to monitor Arizpe did not cause her respiratory depression or arrest and the report fails to explain what steps could have been taken if a respiratory depression had been detected by monitoring.
An expert report must provide a fair summary of the causal relationship between the failure and the harm or damages claimed. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.). Cooper and Wilcox focus on the following section of the expert report that addresses causation with regard to the breaches of the standard of care that Dr. Varon attributed to Cooper and Wilcox:
Linda Arizpe suffered a second respiratory arrest on the floor. It is likely that she developed progressive respiratory depression on the floor that went undetected because she was not in the ICU and was not being continuously monitored on the floor. The progressive respiratory depression resulted in further inadequate oxygenation to her brain and culminated in her second arrest. Once Ms. Arizpe suffered a second arrest, a Code was not immediately called and a physician did not come to examine and treat her and expedite her transfer to the ICU, and she was not immediately transferred to the ICU. Instead, there was a two (2) hour delay in the transfer to ICU causing a two (2) hour state of hypoxemia and acidosis as evident by Ms. Arizpe's condition and abnormal arterial blood gas upon her arrival to ICU. The events on the floor caused significant additional brain injury to Ms. Arizpe.
Had Ms. Arizpe been in the ICU or if she had been continuously monitored on the floor, it is likely that her progressive respiratory depression on the floor would have been detected (via a reduction in her O2 saturations and signs and symptoms of respiratory depression) before she suffered any additional brain injury.
Cooper and Wilcox argue that this section of the report provides no specific information concerning what actions Cooper, Wilcox or others could or should have taken in the event a reduction in Arizpe's O2 saturations or other signs and symptoms of respiratory depression were observed. See Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859-60 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (noting report failed to provide specific information concerning what actions would be taken if patient had been monitored); Costello, 141 S.W.3d 245, 249 (noting report failed to state what medical information a more timely evaluation would have revealed or what treatment would or could have been available, that the patient was a candidate for the unknown treatment, or that the unknown treatment would have been effective). If we read this section of the report in isolation, we might agree with this argument. However, a few paragraphs earlier in Dr. Varon's report where he addresses the initial failure to monitor Arizpe before the first respiratory arrest, Dr. Varon explained the following:
Because Ms. Arizpe was not continuously monitored in the ED, Dr. Skeete and the nurses did not timely detect the progressive respiratory depression. If she had been monitored, it is likely that signs and symptoms of respiratory depression would have been detected early at the onset. Specifically, it is likely that a progressive decrease in oxygen saturations measured by the pulse oximeter would have been timely detected indicating the developing respiratory depression.
The respiratory depression would have been detected and treated (via administration of oxygen and medications including Narcan) before Linda Arizpe arrested and before she suffered any brain injury. In this regard, the length of time before inadequate oxygenation of the brain causes brain injury is dependent on the degree of inadequate oxygenation. The reduced oxygenation will manifest itself by reducing the patient's oxygen saturations, measured by a pulse oximeter. In Linda Arizpe's case, it is likely that her hypoxic state would have been detected and successfully treated prior to any brain injury.
Cooper and Wilcox contend that it would have been impermissible for the trial court to infer that the same treatment would have been appropriate in response to a second respiratory depression. See Costello, 141 S.W.3d at 249 (noting inferences are not permitted). We disagree. The trial court was permitted to read the causation section of the report in context. Because Dr. Varon previously described the actions to be taken upon detection of respiratory depression, the trial court did not abuse its discretion in determining that Dr. Varon was not required to repeat the required actions in order to provide a fair summary of the causal relationship between the failure to monitor and the second respiratory arrest.
Speculation
Cooper and Wilcox further contend that the report is speculative because it assumes that the ED chart and Dr. Skeete's notes concerning the events in the ED were included in the floor chart and available for Cooper and Wilcox to review. The report states that the ED Chart and Dr. Skeete's notes "should have been" with the floor chart and states that the applicable standard of care required Cooper and Wilcox to review the pertinent portions of the chart, "including the ED chart and Dr. Skeete's progress notes that supposedly were in the chart on the floor." Therefore, the alleged breach of the standard of care by Cooper and Wilcox in failing to order continuous monitoring or transfer to ICU were contingent on Dr. Varon's assumption that the ED chart and Dr. Skeete's progress notes were in the floor chart.
Liability in a medical malpractice suit cannot be made to turn upon speculation or conjecture. Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.App.-San Antonio 2004, no pet.). In Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex.App.-El Paso 2007, no pet.), the appellate court held that an opinion was speculative and conclusory where the expert's opinion was not supported by the facts because the expert relied upon an assumption. Similarly, in this case, Dr. Varon's report relies on the assumption that the ED Chart and Dr. Skeete's notes were with the floor chart.
To constitute a "good-faith effort" to comply with the statutory definition of an expert report, the report must provide a basis for the trial court to conclude that the claims have merit. Bowie Mem'l Hosp., 79 S.W.3d at 52. In this case, the entire standard of care and breach thereof is contingent on the ED chart and Dr. Skeete's progress notes being included in the floor chart and available for review by Cooper and Wilcox. By relying on assumptions instead of facts, the report provides no basis for the trial court to conclude that the claims against Cooper and Wilcox have merit. The appellees argue that "Dr. Varon was merely reciting evidence discovered via a deposition of one of the floor nurses, i.e., that Dr. Skeete's notes should have been in the floor chart." In determining the adequacy of an expert report, however, the trial court looks no further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners. Bowie Mem'l Hosp., 79 S.W.3d at 52. Looking at the document's four corners, Dr. Varon's statements regarding the applicable standard of care and its breach are speculative because he bases his decision on the assumption that the ED chart and Dr. Skeete's progress notes were in the floor chart reviewed by Cooper and Wilcox. Accordingly, the trial court abused its discretion in denying the motion to dismiss for this reason.
Qualifications
Wilcox contends that the expert was not qualified because he was not a hospitalist. The Texas Supreme Court, however, has repeatedly held that being of the same specialty is not a requirement for qualification if the subject of inquiry is common to and equally recognized and developed in more than one specialty. See Olveda v. Sepulveda, 189 S.W.3d 740, 742 (Tex. 2006). Moreover, in the medical context, certain standards are universally regarded as ordinary medical standards beneath which no common or community standards may fall. Id. These standards apply across multiple schools of practice and to any physician. Id. A person qualifies as an expert witness if the person is: (1) a physician who is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (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. Tex. Civ. Prac. Rem. Code Ann. § 74.401(a) (Vernon 2005). In this case, Dr. Varon's report reveals that he is a licensed physician who routinely treats and follows patients in an emergency department. He also is an assistant director in the Emergency Medical Services Training Program at the College of Mainland in Texas City, Texas. Dr. Varon has lectured and written extensively on the topic of emergency medicine, including the standards of care for the monitoring, care and treatment of a patient with respiratory depression and how to prevent a subsequent respiratory arrest. He also has admitted and monitored patients who present to emergency departments with conditions similar to Arizpe and has treated patients with brain injuries similar to Arizpe's brain injuries. In view of the foregoing, the trial court did not abuse its discretion in determining that Dr. Varon was qualified to render his opinion.
Extension to Cure
The plaintiffs originally filed suit against the hospital, Skeete and Emergency Physicians Affiliates. The plaintiffs served an expert report authored by Dr. Varon addressing those three defendants, and those defendants filed motions to dismiss claiming the report was inadequate. The trial court granted the plaintiffs an extension to cure the report and denied the defendants' motions after the plaintiffs filed a supplemental report. Subsequently, the plaintiffs amended their petition to add additional defendants including Cooper and Wilcox and served an addendum letter report by Dr. Varon specifically addressing the new defendants. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2007) (requiring expert report to be served for each physician against whom a liability claim is asserted). Cooper and Wilcox contend that a remand is not permissible because the trial court has previously granted an extension to correct Dr. Varon's report. Section 74.351, however, gives the trial court the discretion to grant an extension as to each expert report that is timely served. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(c) (Vernon Supp. 2007). Here, although the expert report at issue is authored by Dr. Varon, it is a different report than the report previously considered by the trial court and addresses the negligence of the new defendants.
Conclusion
Although we have determined that the expert report in this case was deficient because it was speculative, the report was timely filed. Because the trial court could grant an extension of time to cure the report's deficiencies, we reverse the trial court's order and remand the cause for proceedings consistent with this opinion. See Murphy, 234 S.W.3d at 30; see also Leland v. Brandal, 217 S.W.3d 60, 64-65 (Tex.App.-San Antonio 2006, pet. granted).