Opinion
No. 04-15-00747-CV
05-11-2016
Elizabeth KING, M.D., and Northeast OB/GYN Associates, P.L.L.C., Appellants v. Hope KELLEY, Appellee
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-17290
Honorable Michael E. Mery, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED
This is an interlocutory appeal from the denial of a motion to dismiss challenging the sufficiency of an expert report in a health care liability claim. Elizabeth King, M.D. and Northeast OB/GYN Associates, P.L.L.C. appeal the trial court's order denying their motion to dismiss, asserting the trial court abused its discretion because the appellee's expert report either did not provide any opinion regarding causation or, in the alternative, any such opinion on causation was conclusory and legally insufficient to satisfy the expert report requirements of section 74.351 of the Texas Civil Practice and Remedies Code. We affirm the trial court's order.
BACKGROUND
Hope Kelley underwent a robotic assisted total vaginal hysterectomy performed by Elizabeth King, M.D. During the surgery, Kelley sustained a bladder tear, and Dr. King requested the assistance of a urologic surgeon who repaired the tear. Kelley continued to have bladder pain and urgency after her surgery, and she subsequently sued Dr. King and Northeast OB/GYN Associates, P.L.L.C., the professional association under which Dr. King was practicing medicine. In her petition, Kelley alleged Dr. King caused a severe tear to her bladder during the surgical procedure which required additional surgery to repair.
After Kelley served an initial expert report on Dr. King and the Association, they filed objections and a motion to dismiss. After Kelley filed a response, the parties entered into an agreement whereby Kelley was granted a thirty day extension to file an expert report to cure the alleged deficiencies in the initial report. Kelley subsequently filed an amended expert report. Dr. King and the Association again moved to dismiss, asserting the amended expert report was still deficient. The trial court denied the motion to dismiss, and Dr. King and the Association appeal.
EXPERT REPORT REQUIREMENT AND STANDARD OF REVIEW
When presented with a motion to dismiss a healthcare liability claim, the trial court must determine whether the expert report "'represents a good-faith effort to comply with the statutory definition of an expert report.'" Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). The statute defines an expert report as "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding the 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) (West Supp. 2015). In evaluating an expert report, the trial court looks only to the information within the four corners of the report and is prohibited from drawing any inferences. Am. Transitional Care Ctrs. of Tex., Inc., 46 S.W.3d at 878; Diagnostic Research Group v. Vora, 473 S.W.3d 861, 872 (Tex. App.—San Antonio 2015, no pet.).
We review the trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). "A trial court abuses its discretion if it rules without reference to guiding rules or principles." Id.
CAUSATION REQUIREMENT
The only element of Kelley's expert report Dr. King and the Association challenge on appeal is the element of causation. In an expert report, the "expert must explain, based on facts set out in the report, how and why the breach caused the injury." Id. "An expert cannot simply opine that the breach caused the injury." Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); see also Van Ness, 461 S.W.3d at 142 ("A bare expert opinion that the breach caused the injury will not suffice."). "Instead, the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury" by linking the defendant's alleged failures to the plaintiff's injury. Jelinek, 328 S.W.3d at 539-40; see also Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.) (noting expert report must explain causal connection between claimed omissions and injury); Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex. App.—San Antonio 2004, no pet.) (noting report must link the defendant's alleged inaction or failure to the plaintiff's injury).
In this case, Kelley's expert, Valentin Almendarez, Jr., M.D., had performed over 750 robotic surgeries in the previous four years, and a significant portion of his practice involved robotic laparoscopic surgery. He also trains, teaches, and proctors other physicians wanting to learn how to perform robotic laparoscopic surgery. Dr. Almendarez is a board certified gynecologist, and Dr. King and the Association do not challenge his qualifications on appeal.
In his report, Dr. Almendarez discusses several standards of care he believes Dr. King breached. As an example, Dr. Almendarez opines Dr. King breached the applicable standards of care by failing to perform the proper surgery and by lacerating Kelley's bladder during the surgical procedure Dr. King performed. Dr. Almendarez explains that Dr. King underestimated the size of Kelley's uterus. Because of this, Dr. King could not remove the uterus from the pelvis in one piece but had to morcellate or cut the uterus into pieces. Dr. Almendarez states Dr. King should have realized during the surgery that the uterus was too large to fit through the vagina and converted to an abdominal hysterectomy. Dr. Almendarez opines the injury to Kelley's bladder occurred when Dr. King was removing the uterus from the pelvis through the vagina, and the bladder injury was "a direct result of performing the wrong surgery and route of surgery." Dr. Almendarez further opines, "Removing the uterus from the vagina directly caused the bladder injury. If Dr. King had initially performed an abdominal hysterectomy or converted to an abdominal hysterectomy the bladder injury would have been avoided."
We hold the trial court did not abuse its discretion in concluding the foregoing opinions were sufficient to "explain, to a reasonable degree, how and why the breach caused the injury" by linking Holley's bladder injury to Dr. King's failure to perform or at least convert to an abdominal hysterectomy. See Jelinek, 328 S.W.3d at 539-40. Stated differently, Dr. Almendarez's report explained what Dr. King should have done (abdominal hysterectomy) and what happened because she failed to do it (bladder tear). See Adeyemi v. Guerrero, 329 S.W.3d 241, 245 (Tex. App.—Dallas 2010, no pet.) (holding expert report sufficiently addressed element of causation by specifically stating what physician should have done and what happened because she failed to do it). Also, because the report tied Dr. Almendarez's opinion on causation to the facts of the case, his opinion was not conclusory. See id.
Although Dr. Almendarez also addresses other breaches of the applicable standard of care in his report, we need not further discuss whether the report satisfied the causation element as to those breaches because "an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case." Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). Furthermore, because Holley's claims against the Association were based on vicarious liability and we have concluded the trial court did not abuse its discretion in determining Dr. Almendarez's report meets the statutory requirements as to Dr. King, the report also "is sufficient to implicate the [Association's] conduct under the vicarious theory." Id.
CONCLUSION
The trial court's order is affirmed.
Sandee Bryan Marion, Chief Justice