Opinion
NUMBER 13-17-00275-CV
02-01-2018
ROGER TIMPERLAKE, M.D. AND ROGER W. TIMPERLAKE, M.D., P.A., Appellants, v. ERIC CRUZ, INDIVIDUALLY AND AS NEXT FRIEND OF ERICA CRUZ, A MINOR, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Rodriguez
Appellant Roger Timperlake, M.D. appeals the denial of his motion to dismiss a health care liability claim filed by appellee Eric Cruz, individually and as next friend of Erica Cruz ("Erica"), his minor daughter. By three issues, Dr. Timperlake asserts that Cruz's expert report failed to establish the expert's qualifications or the elements of a health care liability claim. We reverse and remand.
This appeal is also filed on behalf of a professional association bearing Dr. Timperlake's name: Roger W. Timperlake, M.D., P.A. We refer to the professional association as if included in the singular, masculine term "Dr. Timperlake."
I. BACKGROUND
A. Cruz's Petition
Cruz sued Dr. Timperlake, an orthopedic surgeon, as well as other defendants who do not participate in this appeal. Cruz's petition alleged that on August 11, 2012, Erica stepped on a toothpick that plunged into her foot, just below her big toe. Erica was seen in the emergency room at Driscoll Children's Hospital, but Driscoll's physicians were unable to remove a small fragment of the toothpick, and they referred her to Dr. Timperlake.
Also named as defendants were various medical entities which were alleged to be vicariously responsible for Dr. Timperlake's actions, such as the hospital where Dr. Timperlake performed Erica's surgeries.
According to the petition, on August 14, 2012, Dr. Timperlake performed surgery to remove the toothpick fragment. However, in the months that followed, Erica returned to the hospital several times for worsening pain and infection in her foot, requiring extensive treatment. On January 2, 2013, an MRI revealed that the fragment remained in Erica's foot. Dr. Timperlake surgically removed the fragment the following day. Cruz's suit alleged that much of Erica's suffering and surgery would have been avoided but for Dr. Timperlake's negligence (1) in failing to timely remove the toothpick during the initial surgery and (2) after the initial operation, in failing to diagnose and treat her condition, including the failure to obtain timely diagnostic testing.
B. Dr. Cardarola's Expert Report
In support of his suit, Cruz submitted an expert report by Vincent A. Cardarola, M.D. By way of background, Dr. Cardarola established himself as a surgeon with experience and training in the specific procedure at issue: surgical removal of foreign objects from patients similar to Erica. The report also established how and why the presence of a foreign object within Erica's foot caused an infection which abscessed and spread into the surrounding bones, requiring extensive treatment.
Dr. Cardarola summarized how Erica's condition developed based on Dr. Timperlake's records, beginning with his original surgical attempt to remove the toothpick. Dr. Cardarola's report set out that, in Dr. Timperlake's initial entry, he took note of an ultrasound which showed that Erica's foot contained a foreign object measuring "3 mm x 1.5 mm." Dr. Timperlake reopened the incision that had been made by the emergency room physician and observed several "small black dots," but Dr. Timperlake was unable to identify these dots as either the foreign object or simply blood clots. Nonetheless, Dr. Timperlake described removing the dots, probing the wound further, irrigating it with antibiotics, and closing the site, which concluded his initial surgery of August 14, 2012.
Dr. Cardarola also documented Erica's subsequent visits to the hospital. Erica returned to Driscoll Children's Hospital on August 22, 2012, complaining of pain and redness in her foot. Erica's evaluation suggested infection. Antibiotics were administered, and a battery of tests was conducted, including X-rays, an MRI, and an ultrasound. Erica was discharged on August 26.
According to Dr. Cardarola's report, Erica returned to the emergency room once more on September 11, 2012. A device was inserted into her foot to directly administer antibiotics to the worsening infection, and another series of tests was conducted, including X-rays, an MRI, and a bone scan. The test results indicated that Erica's infection had spread to her bone. Dr. Timperlake subsequently performed a second surgery—an incision and drainage of the upper forefoot with "drilling of the second metatarsal with a pin" and placement of a "short leg splint." Erica was released from the hospital on September 18, 2012, but she returned later the same day because of increased pain and a yellow discharge from the wound. After further pain management, she was released the following day.
Dr. Cardarola reported that Erica was again admitted to the hospital on November 8, 2012, and Dr. Timperlake performed an "incision and drainage with placement of wound vac" for her non-healing wound. During surgery, Dr. Timperlake identified a small pocket of pus "in the subcuticular tissue." Thereafter, Dr. Timperlake obtained an MRI which showed that a foreign object remained in Erica's foot. On January 3, 2013, Dr. Timperlake successfully removed the toothpick fragment. On February 5, 2013, Dr. Timperlake again drained the wound; he documented signs of healing and improvement in the foot, and no signs of deep infection.
After detailing the facts in the medical records, Dr. Cardarola opined that the standard of care required Dr. Timperlake to completely remove the foreign body from Erica's foot during his initial surgery, and he breached the standard of care by failing to remove the toothpick. In his opinion on breach, Dr. Cardarola noted the following: a pre-operative ultrasound showed a 3 millimeter by 1.5 millimeter foreign body in Erica's right foot; Dr. Timperlake documented the removal of several small black dots during surgery, but not the toothpick fragment; and "[r]ather than obtain intraoperative imaging to locate the retained foreign body, Dr. Timperlake removed the black dots which he described as being possibly blood clots in his operative report and irrigated the foot and closed the wound."
Dr. Cardarola also explained his view that Dr. Timperlake breached the post-operative standard of care: when Erica continued to complain of pain and began to develop an infection following the initial surgery, the standard of care required Dr. Timperlake to timely diagnose the retained foreign body in Erica's foot and remove it, which he did not do. In particular, the report asserted that in September 2012, when Dr. Timperlake performed an incision and drainage to address the infection, he should have identified and removed the foreign body.
Dr. Cardarola concluded that Erica's pain, infection, and extensive treatment could have been avoided but for Dr. Timperlake's negligent failure to remove the toothpick, either during the initial operation or the visits that followed.
C. Subsequent History
Dr. Timperlake filed a motion to dismiss Erica's claims, asserting that Dr. Cardarola's report did not satisfy the requirements of the Texas Medical Liability Act (TMLA). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2017 1st C.S.). The trial court denied Dr. Timperlake's motion to dismiss. This interlocutory appeal followed.
II. MEDICAL NEGLIGENCE
By his first issue on appeal, Dr. Timperlake contends that Dr. Cardarola's report fails to adequately address the three elements of a medical negligence claim: standard of care, breach, and causation. As to the standard of care, Dr. Timperlake asserts the report frames the standard of care so broadly that it gives no indication as to what conduct is called into question—that is, what Dr. Timperlake should have done differently to avoid causing harm to Erica. We agree.
A. Standard of Review and Applicable Law
We apply the abuse of discretion standard in reviewing the trial court's decision on a motion to dismiss under the TMLA. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam); Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). Under that standard, we defer to the trial court's factual determinations if they are supported by evidence, but we review its legal determinations de novo. Van Ness, 461 S.W.3d at 142. Generally, when reviewing matters committed to the trial court's discretion, "the reviewing court may not substitute its judgment for that of the trial court." Miller v. JSC Lake Highlands Operations, L.P., ___ S.W.3d ___, ___, No. 16-0986, 2017 WL 6391215, at *2 (Tex. Dec. 15, 2017) (per curiam).
"Expert report" means 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 ANN. § 74.351 (r)(6). A court shall grant the motion to dismiss "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report Jelinek, 328 S.W.3d at 539 (quoting Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002) (per curiam)) (emphasis in original); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l).
A "good-faith effort" is one that provides information sufficient to (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Jelinek, 328 S.W.3d at 539. The report need not marshal all the plaintiff's proof, but it must include the expert's opinion on each of the three main elements: standard of care, breach, and causation. Id. "Identifying the standard of care is critical: Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). "While a 'fair summary' is something less than a full statement of the applicable standard of care and how it was breached, even a fair summary must set out what care was expected, but not given." Id. All information needed for this inquiry is found within the four corners of the expert report. Jelinek, 328 S.W.3d at 539; Fulp v. Miller, 286 S.W.3d 501, 509 (Tex. App.—Corpus Christi 2009, no pet.) (op. on denial of reh'g).
B. Analysis
Dr. Cardarola's report gave two accounts of the standard of care, one for the initial operation and another for post-operative care. According to the report, the standard of care required Dr. Timperlake to identify and remove the foreign object during the initial surgery. When Erica developed persistent pain and infection after her initial surgery, the standard of care required Dr. Timperlake to timely diagnose the problem and correct it with another surgery. According to the report, Dr. Timperlake breached both of these standards when he failed to identify and remove the foreign body during his initial surgery or in subsequent visits.
In both of these accounts of the standard of care, the focus is on achieving a result: removal of a tiny fragment of toothpick, which Dr. Timperlake compares in size to the head of a pin. However, the report mentions few, if any, specific steps that Dr. Timperlake was expected to take in order to achieve that result. Put differently, Dr. Cardarola's opinion does not state a standard of care, it states a standard of outcome.
In Dr. Cardarola's opinion on breach, there is one statement that could be construed as referring to a specific act or omission on Dr. Timperlake's part that could have made the difference in achieving the desired outcome: his alleged failure to "obtain intraoperative imaging" during the initial operation. However, this single phrase—which is mentioned in passing, without elaboration, and without any indication that the standard of care required Dr. Timperlake to obtain such imaging—offers only a vague clue of what care was expected, but not given. See Palacios, 46 S.W.3d at 880. Even viewing this matter deferentially under the abuse of discretion standard, see Miller, ___ S.W.3d at ___, 2017 WL 6391215, at *2, this hint does not meet his obligation to inform the defendant of the specific conduct the plaintiff has called into question. See Jelinek, 328 S.W.3d at 539; see also Hood v. Kutcher, No. 01-12-00363-CV, 2012 WL 4465357, at *7 (Tex. App.—Houston [1st Dist.] Sept. 27, 2012, no pet.) (mem. op.).
Dr. Cardarola's report stands in contrast with the report discussed in Hood, where a defendant-physician was alleged to have left fragments of a foreign object—bits of glass—in a patient's wound, leading to infection and extended treatment. 2012 WL 4465357, at *1. In discussing the standard of care, the plaintiff's expert report cited several "medical reference sources" that discussed standards of appropriate wound care for foreign bodies, including "meticulous preparation of the skin surrounding the wound and the actual wound, irrigation, and wound debridement," and fulfilling the physician's responsibility to "visually inspect the wound, . . . detect[] and identify[] foreign bodies within the wound, and . . . inform the patient if the physician decides not to remove any foreign bodies" so that the patient could remain vigilant against future risks from the foreign body and take any necessary precautions. Id. (editorial marks omitted). The report further opined that the standard of care required the physician to:
(1) Ensure that the wound is properly explored, prepared, and cleaned—including irrigation and debridement, if necessary—to detect foreign bodies and reduce the likelihood of wound contamination and subsequent infection and to promote proper healing.See id. at *2; see also Haddad v. Marroquin, No. 13-08-00139-CV, 2009 WL 2192737, at *2-3 (Tex. App.—Corpus Christi July 23, 2009, pet. denied) (mem. op.) (finding that a report sufficiently stated the standard of care in that it outlined "the specific tasks and responsibilities required" of the surgeon to address the potential presence of a foreign object, such as a "thorough" and "methodical wound exploration" before closure of the wound and performing a confirmation procedure to ensure that no foreign object was left behind); Health Care Unlimited, Inc. v. Villarreal, No. 13-09-00456-CV, 2010 WL 468061, at *5-6 (Tex. App.—Corpus Christi Feb. 11, 2010, no pet.) (mem. op.) (similar).
(2) Discuss with the patient the potential for retained foreign bodies in the wound and the need for alertness to this possibility and seeking additional and follow-up treatment.
(3) Document that the appropriate exploration and cleaning of the wound has been accomplished and that the patient has been informed of the possible need for additional treatment and the potential for foreign body retention.
Unlike the report in Hood, Dr. Cardarola's report offers only hints at what, specifically, Dr. Timperlake should have done differently to find and extract the foreign object during the initial surgery. See Palacios, 46 S.W.3d at 880. Neither the trial court nor Dr. Timperlake would be able to determine from the conclusory statements if Dr. Cardarola believes that the standard of care required Dr. Timperlake to have more carefully inspected or extensively explored the wound, ordered intraoperative imaging, or done something else entirely. See id. The expert report does not say, and we cannot guess. See Fulp, 286 S.W.3d at 509.
The same is true of Dr. Cardarola's account of the post-operative standard of care. The report faults Dr. Timperlake for not identifying and removing the toothpick fragment during a subsequent drainage procedure in September 2012. However, the report does not point to any specific flaw in Dr. Timperlake's handling of that procedure—or in his handling of two rounds of tests, including X-rays, MRIs, ultrasound, and bone scanning—which prevented the desired result.
In all, the report does not represent a "fair summary" of what specific treatment was expected under the standard of care. See Jelinek, 328 S.W.3d at 539. The report is therefore deficient. See id. We sustain Dr. Timperlake's first issue on appeal.
However, we apply a "lenient standard" to a plaintiff's right to cure a deficient report. Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial court should err on the side of granting additional time to cure the report, and a court must grant an extension if the deficiencies are curable. Id. Dr. Cardarola's report already appears to hint at some of the specific acts which, in his view, formed the standard of care, suggesting that the deficiencies are curable. See id. Accordingly, the "trial court here must be given the opportunity to consider an extension." See Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017).
III. CONCLUSION
We reverse the ruling of the trial court and remand for further proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 1st day of February, 2018.