Opinion
NO. 03-17-00465-CV
03-15-2018
Michael Fitzpatrick, M.D., Appellant v. Christina Reale, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
NO. 16-0535-C425 , HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING MEMORANDUM OPINION
In this medical malpractice case, Michael Fitzpatrick, M.D., brings this interlocutory appeal from the trial court's order denying his objections to Christina Reale's expert reports and his motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9) (authorizing interlocutory appeal from order denying relief sought under section 74.351(b) of Texas Medical Liability Act (TMLA)), 74.351(b) (generally requiring dismissal of health care liability claim on motion of affected physician or health care provider when claimant fails to comply with threshold expert report requirement). In two issues, Dr. Fitzpatrick argues that the expert reports were deficient as to causation, see id. § 74.351(r)(6) (requiring expert report to include "fair summary" of expert's opinion on causation), and that the trial court erred when it denied his motion to dismiss because the trial court previously had given Reale a thirty-day extension to satisfy the threshold expert report requirement. Because we conclude that the trial court did not abuse its discretion in denying Dr. Fitzpatrick's objections to the expert reports and motion to dismiss, we affirm the trial court's order.
BACKGROUND
Reale sued Dr. Fitzpatrick and Andy Hawthorne, M.D., in 2016 asserting health care liability claims arising from injuries that she allegedly sustained as a result of the doctors' negligent and substandard care and treatment during and after a laparoscopic total hysterectomy that Dr. Fitzpatrick performed on her. See id. § 74.001(a)(13) (defining "health care liability claim"). In her petition, Reale alleged that: (i) during the surgery, Dr. Fitzpatrick "allowed the manipulator to cut through the uterus perforating Plaintiff's venous vessel causing a massive amount of blood loss" and then "called for a general surgery consultation rather than a specialist for evaluation and repair of the blood vessel"; (ii) during the consultation, Dr. Hawthorne "noted that there was in fact an iliac vein injury and, rather than calling in a specialist, attempted to stabilize the massive amount of blood loss Plaintiff was experiencing"; and (iii) "[a]s a result of Defendants' negligence Plaintiff suffered an intraoperative pelvic venous injury resulting in extensive blood loss and causing severe injuries." Reale also detailed the medical procedures, including surgical intervention and a "massive blood transfusion," that were required to stabilize her condition.
Reale served Dr. Fitzpatrick with expert reports by Stephen D. McCarus, M.D., FACOG, and Andrew J. Manganaro, M.D., FACS, FACC, and the doctors' curricula vitae. See id. § 74.351(a) (requiring claimant asserting health care liability claims as threshold matter to serve expert report with curriculum vitae "for each physician or health care provider against whom a liability claim is asserted"). In his report, Dr. McCarus opined that Dr. Fitzpatrick breached the standard of care in performing the "Robotic Total Hysterectomy on Christina Reale" by the "misuse of the uterine manipulator, trocars and instruments during the procedure," directly leading to Reale's "vascular injuries." In his opinion, "if used properly this surgical complication would not have occurred," and he explained: "Due to the breach in the standard of care the resultant need for additional surgery, etc. was directly related to the misuse of instruments without control as well as not protecting vascular tissue." Although Dr. Manganaro's report addressed the care provided by Dr. Hawthorne, he provided factual background, including: "[U]pon arriving at the outpatient surgery clinic where Dr. Michael Fitzpatrick was performing surgery on Christina Reale and upon finding severe bleeding from an iatrogenic perforation of the left iliac vein, Dr. Hawthorne should have . . . ."
After Dr. Fitzpatrick filed objections to the expert report of Dr. McCarus and a motion to dismiss, Reale served an amended report by Dr. McCarus. In the amended report, Dr. McCarus expanded his opinions by specifically listing the applicable standards of care for a gynecological surgeon performing a laparoscopic total hysterectomy, stating Dr. Fitzpatrick's breaches of the standards of care, and addressing causation as follows:
A. Standard of Care
1. The standard of care requires a gynecological surgeon to examine and measure the cervix and uterus with subsequent proper placement of the correct size Fornisee sound into the uterus.
2. The standard of care requires a gynecological surgeon to have the knowledge and ability to safely use the Fornisee manipulator once it is placed in the proper location within the uterine tissue.
3. The standard of care requires a gynecological surgeon to prevent vascular injuries during pelvic surgery when using a uterine manipulator.
4. The standard of care requires a gynecological surgeon to visualize instruments, or in the case of the Fornisee uterine manipulator, not to visualize instruments during the manual movement of the manipulator.
B. Breaching the Standard of Care
1. Dr. Fitzpatrick did not measure the uterine canal/cavity properly when examining Mrs. Reale.
2. Dr. Fitzpatrick used the incorrect uterine sound length during Mrs. Reale's surgery.
3. Dr. Fitzpatrick did not use correct manual maneuver technique to secure the safe and efficacious use of the Fornisee manipulator.
4. Dr. Fitzpatrick did not protect vascular structures during his minimally invasive hysterectomy when operating on Mrs. Reale.
C. Causation
Failure to comply with the standard of care led directly to subsequent vascular injuries, including but not limited to specific multiple problems and many corrective surgeries.
Dr. Fitzpatrick filed objections to the amended expert report and another motion to dismiss. He argued that the amended expert report was deficient because Dr. McCarus's opinions were "conclusory, speculative, and overly generalized," "which shed no light on what the plaintiff is claiming the standard of care require[d] in this case, how Defendant breached that standard of care, what her damages are and how Defendant's actions caused those damages." He further argued that the amended expert report failed to provide any basis for the trial court to conclude that Reale's claims had merit.
Following a hearing, the trial court sustained Dr. Fitzpatrick's objections to the amended expert report of Dr. McCarus as to causation but denied his objections as to all other issues. The trial court ordered that Reale had thirty days to amend the expert report to satisfy Dr. Fitzpatrick's objections. In response, Reale filed a second amended report by Dr. McCarus. The second amended expert report is identical to the amended expert report, except Dr. McCarus added the following information in the section of his report specifically addressing causation:
Ms. Reale suffered an intraoperative major venous injury which resulted in extensive blood loss with extensive repair. This severe injury caused multiple problem[s] in which [sic] included but was not limited to: Left Leg compartment syndrome, chronic leg and thigh pain, acute venous embolism and femoral DVT, fasciotomies with left leg wound dehiscence, left leg neuropathy, left leg seroma and impaired mobility.
Dr. Fitzpartick thereafter filed objections to the second amended expert report, arguing that it was statutorily insufficient as to causation—"the causal relationship between Plaintiff's injury and Dr. Fitzpatrick's alleged breach of the standard of care in his treatment of Plaintiff"—and he again sought dismissal. He argued that the report made no attempt to link Dr. McCarus's conclusions to the underlying facts. Reale filed a response, listing excerpts from the expert reports that she contended addressed causation. Following another hearing, the trial court denied Dr. Fitzpatrick's objections to the second amended report of Dr. McCarus and his motion to dismiss. This interlocutory appeal followed.
ANALYSIS
Chapter 74 Expert Report Requirement and Standard of Review
Section 74.351 of the TMLA provides a 120-day window for a claimant who is asserting a health care liability claim to serve each defendant physician and health care provider with an expert report with the expert's curriculum vitae. See Tex. Civ. Prac. & Rem. Code § 74.351(a). "The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits." Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). Two functions of the expert report are to "inform the defendant of the specific conduct the plaintiff has called into question" and "provide a basis for the trial court to conclude that the claims have merit." Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (quoting American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).
A trial court should not grant a motion challenging the adequacy of an expert report unless "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)." Tex. Civ. Prac. & Rem. Code § 74.351(l); see id. § 74.351(r)(6). "A valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged." Potts, 392 S.W.3d at 630 (citing Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)). "A report that satisfies these requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider." Id.; see Scoresby, 346 S.W.3d at 549 (holding that "document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit"). In making its evaluation, "[t]he trial court should look 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. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Palacios, 46 S.W.3d at 878).
Section 74.351(r)(6) of the TMLA defines an expert report to mean:
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.Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
We review a trial court's denial of a motion to dismiss brought under section 74.351 of the TMLA for an abuse of discretion. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013); Palacios, 46 S.W.3d at 875. "Under that standard, appellate courts defer to the trial court's factual determinations if they are supported by evidence, but review its legal determinations de novo." 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. With these standards in mind, we turn to Dr. Fitzpatrick's issues.
Adequacy of Dr. McCarus's Expert Reports
In his issues, Dr. Fitzpatrick argues that the "combined reports" of Dr. McCarus remain deficient under chapter 74 "because they wholly fail to demonstrate a causal relationship between the alleged failure of Dr. Fitzpatrick to meet an applicable standard of care and the injury, harm, or damage claimed." He argues that the reports: (i) "provide no factual basis to support [Dr. McCarus's] criticisms of Dr. Fitzpatrick and make no good faith effort to demonstrate the causal relationship between Dr. Fitzpatrick's alleged failure to adhere to the applicable standards of care and Plaintiff's injuries"; (ii) are "conditional and speculative, requiring the court to draw inferences to determine whether the claims against Dr. Fitzpatrick have merit"; (iii) "fail to link any purported breach on the part of Dr. Fitzpatrick to the cause of Ms. Reale's damages"; and (iv) "are conclusory and unsupported by a factual basis within the four corners of the documents." He also argues that, because Reale was already granted a thirty-day extension, she is not entitled to another one and, therefore, that her claims against Dr. Fitzpatrick should be dismissed with prejudice.
Dr. Fitzpatrick's challenge is limited to the causation requirement. The TMLA's expert report requirement as to causation is satisfied if the expert explains, "based on facts set out in the report, how and why [a health care provider's] breach [of the standard of care] caused the injury." Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459-60 (Tex. 2017) (quoting Van Ness, 461 S.W.3d at 142). "A bare expert opinion that the breach caused the injury will not suffice." Id. at 460. "[R]ather, the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Earle v. Ratliff, 998 SW.2d 882, 890 (Tex. 1999)); see Wright, 79 S.W.3d at 52 (requiring expert to "explain the basis of his statements to link his conclusions to the facts"). "In showing how and why a breach of the standard of care caused injury, the expert report must be a good-faith effort to explain, factually, how proximate cause is going to be proven: 'Proximate cause has two components: (1) foreseeability and (2) cause-in-fact.'" Zamarripa, 526 S.W.3d at 460 (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per curiam)).
Dr. Fitzpatrick argues that Dr. McCarus's reports do not offer a "factual explanation of any chain of events to determine whether, absent any action or omission by Dr. Fitzpatrick, the harm would not have occurred anyway." He argues that the reports fail to identify the "vascular injuries" Reale suffered or to describe the surgery that was performed. He also argues that the report fails to show the injuries were "inflicted during surgery, leaving the court to speculate about how any action or inaction on the part of Dr. Fitzpatrick led to or was a substantial factor in causing Ms. Reale's damages" and requiring the court to "make inferences outside the four corners of the report" in order to conclude that her claims have merit. See Wright, 79 S.W.3d at 52; Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (precluding court from "filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended"). Dr. Fitzpatrick further argues that Dr. Manganaro's report is effectively "no report" as to Dr. Fitzpatrick. See Webb, 228 S.W.3d at 283-84 (discussing when expert report amounts to "no report" as to particular doctor).
An expert report, however, "need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue" and a report that satisfies the requirements as to one pleaded theory of liability is sufficient for the trial court to conclude that the claim is not frivolous and that the suit may proceed. See Potts, 392 S.W.3d at 630-32 (noting that "expert report requirement is a threshold mechanism to dispose of claims lacking merit" and contrasting expert report requirement with role of pleadings, discovery, and "full development of all liability theories" for summary judgment and trial stages). The expert report requirement also "may be satisfied by utilizing more than one expert report." Mitchell v. Satyu, No. 05-14-00479-CV, 2015 Tex. App. LEXIS 6127, at *12 n.3 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.) (observing that "a court may read the reports together"); see Tex. Civ. Prac. & Rem. Code § 74.351(i) (explaining that claimant may satisfy expert report requirements "by serving reports of separate experts . . . regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation"); Miller v. JSC Lake Highland Operations, 536 S.W.3d 510, 514 (Tex. 2017) (per curiam) (explaining that "Act allows a plaintiff to use multiple expert reports to satisfy any of the Act's requirements"). Further, "[w]e review a causation opinion in the context of the entire report when assessing its sufficiency." Columbia N. Hills Hosp. Subsidiary, L.P. v. Tucker, No. 05-14-00056-CV, 2014 Tex. App. LEXIS 13685, at *6 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op.); see Miller, 536 S.W.3d at 515.
Although Dr. Manganaro's expert report is directed at Dr. Hawthorne's care, he provided a factual description of Reale's injury during the outpatient surgery that was performed by Dr. Fitzpatrick—"severe bleeding from an iatrogenic perforation of the left iliac vein." In his reports, Dr. McCarus also identified the surgery that Dr. Fitzpatrick performed on Reale—"Robotic Total hysterectomy" and opined that Dr. Fitzpatrick's "misuse of the uterine manipulator, trocars and instruments during the procedure" "without control as well as not protecting vascular tissue" directly led to Reale's "vascular" injuries. Dr. McCarus further listed the applicable standards of care for a gynecological surgeon performing a "laparoscopic total hysterectomy" and Dr. Fitzpatrick's breaches of the standards of care, including his alleged failure to "protect vascular structures during his minimally invasive hysterectomy when operating on Mrs. Reale."
Reviewing Reale's expert reports as a whole, the trial court within its discretion could have concluded that Dr. McCarus adequately explained his causation opinions with reference to specific underlying facts such that Dr. Fitzpatrick had notice of the complained-of conduct and that Reale's claims have merit. See Miller, 536 S.W.3d at 515 (reviewing causation opinion in context of entire report); Potts, 392 S.W.3d at 630 (noting that functions of expert report are to "inform the defendant of the specific conduct the plaintiff has called into question" and "provide a basis for the trial court to conclude that the claims have merit"); Tucker, 2014 Tex. App. LEXIS 13685, at *6 (same); see also Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 647-48 (Tex. App.—Dallas 2010, pet. denied) (finding that expert report "articulated the required causal relationship" between alleged failure to meet applicable standards of care and plaintiff's death). Among the complained-of conduct is Dr. Fitzpatrick's alleged failure to protect vascular structures and his incorrect use of the Fornisee manipulator that led directly to "subsequent vascular injuries"—"intraoperative major venous injury which resulted in extensive blood loss with extensive repairs." These theories of liability were sufficient for the trial court to have concluded that Reale's claim against Dr. Fitzpatrick is not frivolous and that the suit may proceed. See Potts, 392 S.W.3d at 630-32; see also Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) (requiring "fair summary" of expert's opinions with respect to causal relationship between failure to meet standard of care and "injury, harm, or damages claimed" (emphasis added)); Miller, 536 S.W.3d at 515-17 (concluding that two expert reports connected factual understanding of event and concluding that reports provided enough information to inform doctor of conduct called into question and to allow trial court to conclude plaintiff's claims had merit).
Dr. Fitzpatrick analogizes the expert reports at issue here to expert reports that this Court found deficient in other cases. We do not find the factual posture of those cases analogous here. See, e.g, Goswami v. Rodriguez, No. 03-14-00717-CV, 2016 Tex. App. LEXIS 782, at *10-12 (Tex. App.—Austin Jan. 27, 2016, no pet.) (mem. op.) (concluding expert report did not fairly summarize standard of care, breach, or causal relationship); Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454, at *3-4 (Tex. App.—Austin Aug. 22, 2014, no pet.) (mem. op.) (concluding that expert report contained "nearly no discussion of causation to link [patient]'s alleged harm to [doctor]'s actions" and explaining problems with report to include "fail[ing] to show, within its four corners, what specific actions [doctor] did or did not take, or could have taken, that would have prevented [patient]'s symptoms or injuries"); Smith v. Wilson, 368 S.W.3d 574, 579 (Tex. App.—Austin 2012, no pet.) (explaining that expert report "was not required to provide an exhaustive, lengthy summary of how [doctor]'s omissions caused [patient]'s suicide" but observing that report provided "literally no summary of such information").
For these reasons, we cannot conclude that the trial court abused its discretion by denying Dr. Fitzpatrick's objections to the expert reports and his motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 74.351(l) (precluding trial court from granting motion challenging adequacy of expert report if report represents "objective good faith effort to comply with the definition of an expert report"); Texas San Marcos Treatment Ctr., L.P. v. Payton, No. 03-14-00726-CV, 2015 Tex. App. LEXIS 11818, at *10-12 (Tex. App.—Austin Nov. 18, 2015, no pet.) (mem. op.) (concluding that expert's assertions on causation were "tied to the facts and standards of care laid out by [expert]" and showed connection alleged between act or omission and injuries and affirming denial of motion to dismiss).
CONCLUSION
For these reasons, we overrule Dr. Fitzpatrick's issues and affirm the trial court's order.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Affirmed Filed: March 15, 2018