Opinion
No. 05-19-00866-CV
04-02-2020
MICHAEL WIERSCHEM, M.D., Appellant v. WILLIAM BOURGEOIS AND CAROLYN BOURGEOIS, Appellees
On Appeal from the 429th Judicial District Court Collin County, Texas
Trial Court Cause No. 429-02281-2018
DISSENTING OPINION
Before Justices Partida-Kipness, Nowell, and Evans
Dissenting Opinion by Justice Evans
Robert Kessler, M.D.'s expert report announces that large quantities of fluids introduced into William Bourgeois's body resulted in very low sodium in his blood, which resulted in permanent brain injury. Kessler's report does not explain—even in a brief, cursory way—how large quantities of fluids caused low sodium in Bourgeois's blood nor how low sodium in Bourgeois's blood caused a brain injury. Perhaps because that causal connection is not explained, Kessler's report also does not explain how a urology surgeon such as himself and Michael Wierschem, M.D., who performed the procedures on Bourgeois and is the defendant in this lawsuit, knew or should have known about that causal connection. So, I conclude the text of the report does not supply this necessary information, and we cannot supplement the report with material pleaded in William and Carolyn Bourgeoises' petition or counsel's able appellate argument. See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (review limited to four corners of report). For these reasons, we should reverse the trial court's order and dismiss this case against Wierschem. Because the majority reaches the opposite conclusion, I respectfully dissent.
We review the trial court's ruling on an expert report's sufficiency for abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). In analyzing a report's sufficiency under this standard, we consider only the information contained within the four corners of the report. See Abshire, 563 S.W.3d at 223. Appellate courts defer to the trial court's factual determinations if they are supported by the evidence but review its legal determinations de novo. See Van Ness, 461 S.W.3d at 142. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Id.
The statutory requirements for an expert report are straightforward:
"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 [1] applicable standards of care, [2] the manner in which the care rendered by the physician or health care provider failed to meet the standards, and [3] the causal relationship between that failure and the injury, harm, or damages claimed.TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (enumeration added). Regarding the third element—the causal connection—"[a] conclusory statement of causation is inadequate; instead, the expert must explain the basis of his statements and link conclusions to specific facts." Abshire, 563 S.W.3d at 224; see also Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) ("[W]ithout factual explanations, the reports are nothing more than the ipse dixit of the experts, which . . . are clearly insufficient."). "In satisfying this 'how and why' requirement, the expert need not prove the entire case or account for every known fact; the report is sufficient if it makes 'a good-faith effort to explain, factually, how proximate cause is going to be proven.'" Abshire, 563 S.W.3d at 224 (quoting Zamarripa, 526 S.W.3d at 460).
An expert testifying about the first two elements—standard of care for a physician and breach thereof—is required to meet specific qualifications set forth in section 74.401. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(A); id. § 74.401. An expert testifying about the third element—the causal relationship between the breach of the standard and the injury, harm, or damages claimed—must be qualified under the rules of evidence. See id. § 74.351(r)(5)(A); id. § 74.403(a). "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702. The supreme court recognized that some medical issues span more than one type of medical area of expertise:
[W]hen a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 936 (1953). See also Hersh v. Hendley, 626 S.W.2d 151, 154-55 (Tex. App.—Fort Worth 1981, no writ) (Orthopedic surgeon could testify in suit against podiatrist on the standard of care for podiatric surgery since it "was common throughout the medical profession.").Broders v. Heise, 924 S.W.2d 148, 154 (Tex. 1996). But the report must explain that multiple disciplines overlap in some way. See id. at 154 (favorably summarizing Hersh v. Hendley, 626 S.W.2d 151, 154-55 (Tex. App.—Fort Worth 1981, no writ) as holding a medical witness could testify about an issue that "was common throughout the medical profession"). Again, this explanation must be in the expert report. See Abshire, 563 S.W.3d at 223.
I will assume the majority is correct that Kessler's report adequately explains the first two elements—standard of care and breach—and that Kessler is well-qualified as an expert about those matters. Instead, I focus on Wierschem's further challenges that he summarized when introducing his argument in his brief,
Nowhere does [Kessler] spell out either a causal link or his basis to opine on a causal link between blood sodium and diminished mental capacity. Nor does he appear to have any qualifications to opine on the alleged permanent nature of this alleged diminished mental capacity. Nowhere is he demonstrated to be a neurologist or other expert on brain chemistry or any other sort of expert who can opine on this.Thus, Wierschem challenges Kessler's opinions about the third element—the causal connection—and his qualifications to express such an opinion.
Kessler states a summary of his opinion near the beginning of his substantive discussion:
I am familiar with the condition known as hyponatremia. This condition is best defined as a sodium reading less than 134. Readings as low as 119 are very serious and can lead to, and in this case, did lead to brain damage for Mr. Bourgeois. I am familiar with what happens when one does not have an adequate sodium level be it from surgery or physical exertion in heated temperatures or after causes such as vomiting or diarrhea. I have seen and reviewed the notes from the neurologist in this case. One can determine from those records that Mr. Bourgeois did not have a stroke, but he did have cell damage in the brain. A sodium reading of 119 does cause this. In the practice of urology, a practitioner must be aware of this condition happening when fluids are used.Here, Kessler states hyponatremia is low sodium in the blood measuring less than 134. He further states a measurement of 119 is very seriously low. Then he announces—without explanation—such a low reading "can lead to, and in this case, did lead to brain damage for Mr. Bourgeois." He states that the neurologist's records indicate Bourgeois "did not have a stroke, but he did have cell damage." Then he repeats his announcement, "A sodium reading of 119 does cause this." This is a helpful, global summary introducing his opinions, but in the summary Kessler does not explain how Bourgeois came to a state of hyponatremia nor how hyponatremia causes brain cell damage.
Kessler then provides more detail. He notes that preoperatively Bourgeois had blood test results for the sodium in his blood of 139 and that Bourgeois's mental functioning was not indicated as a concern. Kessler notes the medical records indicate several liter bags of lactated Ringers, one 3-liter (3,000 ml) bag of sodium chloride, and 50 ml of sterile water for injection. He notes from the billing records several liter bags of lactated Ringers, "Sodium Chloride .9% Irrigation 300, .9% irrigation, 3,000 ml Bag," and "Normal Saline for Irrigation 500 ml ns .9% irrigation 500 ml btl." He also notes billing for a 4-liter urology drain bag, and a "Bag urinary drainage 2,000 cc Bag."
Kessler notes that during the procedure Bourgeois received a total of 55 minutes of continuous bladder irrigation and that the patient was described as drinking water and elsewhere records state, "oral fluids, 1,000 ml. taken by patient." Kessler notes Bourgeois was administered "one bottle of NACL 500 cc and four (4) bottles of NACL 3,000 ccs bag amount used." He does not link directly these notes to the sodium chloride and normal saline for irrigation he observed in the billing records.
Kessler opines, "Regardless of the sodium content of the lactated ringers and the sodium chloride, large amounts of fluids were passed through William Bourgeois." He states the laser ablation "evaporates the tissue on the prostate" which "opens vessels which allow the vessels to absorb the fluids [that] are used and to deplete sodium." So at this point in Kessler's report he has explained three ways fluids entered Bourgeois's body: through intravenous fluids, through irrigation during the procedure, and through Bourgeois's drinking fluids. Kessler then concludes, "Even though the lactated ringers have a sodium content in them, the amount of lactated ringers used plus the bladder irrigation plus the oral consumption of fluids were too much and were the only cause of the sodium depletion. Mr. Bourgeois did not have a stroke and did not, obviously[,] exercise that day[,] and there is no record of vomiting or diarrhea."
One of Wierschem's challenges is directed at alleged discrepancies between the medical records and billing records based on which Wierschem argues Kessler's opinion is unreliable, i.e. a Daubert/Robinson challenge to rule 702 admissibility based on factual unreliability. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Wierschem's argument appears to rely on his knowledge of matters outside the medical and billing records to reconcile those records differently than Kessler did (after all, Wierschem was present performing the procedure). From the records alone it is not at all clear that Wierschem is correct and Kessler is incorrect. Kessler's acceptance of facts from the records as best he can reconcile the alleged discrepancies in the medical and billing records appears reasonable and not aggressively slanted in favor of his opinion. Wierschem's challenge based on the conflicts in the records would be an appropriate subject for development through discovery, and Wierschem is not deprived of his right later to challenge Kessler's opinions by motions for summary judgment or a Daubert/Robinson challenge close to or at trial. See Maris v. Hendricks, 262 S.W.3d 379, 386 (Tex. App.—Fort Worth 2008, pet. denied) (challenge to expert report is limited to four corners of report so outside material cannot be utilized as in a Daubert challenge, but "[n]othing in section 74.351 provides that an expert report meeting the statute's requirements is invalidated if the expert who signed off on the report is subsequently struck pursuant to a Daubert challenge."). At this preliminary stage, I would reject Wierschem's challenge to Kessler's report based on the conflicts in the records and allow Kessler to reasonably interpret and rely on the medical and billing records as he has done. After all, such records are exactly what Kessler is supposed to base his opinions on. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(s) (before expert report is served, claimant may not obtain discovery except for basic information "including medical or hospital records or other documents or tangible things").
Wierschem complains that Kessler does not explain here or anywhere what effect the content of the sodium in some of the fluids and the absence of sodium in other fluids had on Bourgeois's sodium level in his blood. That criticism is accurate; there is nothing in Wierschem's report that discusses the effect that the sodium content of some of the fluids would have on Bourgeois or discloses Kessler's rational basis for dismissing without discussion or analysis that sodium introduced into Kessler's body when the issue is low sodium in Bourgeois's blood. Wierschem also asserts the report does not explain how low sodium or even extremely low sodium in Bourgeois's blood could cause brain injury or brain cell injury. Having examined carefully Kessler's entire report, I conclude Wierschem is correct when he complains, "Nowhere does [Kessler] spell out either a causal link or his basis to opine on a causal link between blood sodium and diminished mental capacity." If the reader did not know before reading Kessler's report what, if any, causal relationship there is between introducing fluids into someone's body and low sodium in that person's blood and brain injury, the reader does not learn that statutorily required information from Kessler's report.
It does not take an extremely long report worthy of publication in a peer-reviewed medical journal for an expert to explain the basic mechanism of causation. But section 74.351(r)(6) requires the report to contain an explanation of "the causal relationship between that failure and the injury, harm, or damages claimed," and that must be in the text of the report. See Abshire, 563 S.W.3d at 223. The report cannot meet that requirement merely by the expert's announcing, "It's true because I say so." Id. at 224. Because Kessler's report does not include a basic causal explanation, I conclude his report does not satisfy the third requirement of section 74.351(r)(6).
This is my colloquial translation of the Latin phrase ipse dixit which literally means, "he himself said it." See Ipse Dixit, BLACK'S LAW DICTIONARY (11th ed. 2019) (further stating: "Something asserted but not proved <his testimony that she was a liar was nothing more than an ipse dixit>. • The phrase is commonly used in court decisions analyzing the admissibility of expert testimony. A court may reject expert-opinion evidence that is connected to existing data only by the expert's 'ipse dixit.'").
As for Wierschem's challenge to Kessler's lack of neurological expertise, I suspect that Kessler's lack of an explanation of the causal relationship resulted in his omitting explaining how he knew such matters. In other words, had Kessler explained the causal steps in modest detail, in the process of his explanation Kessler probably would have explained how urology surgeons such as himself and Wierschem know these causal steps and the result of failing to follow them. At oral argument, Bourgeois's counsel filled in this blank by stating that every surgery resident is educated in this causal relationship. Assuming that is true, it is not stated in the text of the report, and it must be in order for this Court to consider it. See Abshire, 563 S.W.3d at 223. Using counsel's suggestion as a hypothetical example, Kessler's report should have at a minimum explained the causal relationship, and then explained that every surgery resident is taught that, so it is commonly known among the surgeons in the medical community or perhaps commonly known among all doctors. That explanation would have brought Kessler's expertise to opine about the cause of Bourgeois's brain injury within the ambit of Broders. See 924 S.W.2d at 154 (allowing multiple disciplines that overlap in an explained way to testify about certain matters in the other discipline and favorably summarizing Hersh as holding a medical witness could testify about an issue that "was common throughout the medical profession"). Again, the explanation of how Kessler is qualified, such as this hypothetical example, must be in the text of the expert report. See Abshire, 563 S.W.3d at 223. But neither that hypothetical explanation nor any other explanation of Kessler's expertise to opine about Bourgeois's brain injury is in the report, so the report does not comply with sections 74.351(r)(5)(A) and 74.403(a). Accordingly, I conclude Wierschem is correct in his complaint that Kessler's report is deficient in failing to explain how or that Kessler is qualified to render any opinion about a causal connection to Bourgeois's brain injury.
For these reasons, I conclude the trial court abused its discretion when it denied Wierschem's motion to dismiss, which should have been granted. Because the majority reaches the opposite conclusion, I respectfully dissent.
/David Evans/
DAVID EVANS
JUSTICE 190866DF.P05