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David D. Kim, M.D v. Steven Hoyt

April 24, 2013

DAVID D. KIM, M.D,
APPELLANT
v.
STEVEN HOYT, INDIVIDUALLY AND AS NEXT FRIEND OF MINOR CHILDREN TAYLOR HOYT AND JORDAN HOYT, AND AS SOLE ADMINISTRATOR OF THE ESTATE OF KRISTINE HOYT,
APPELLEE



On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-11-01461-C

The opinion of the court was delivered by: Michael J. O'neill Justice

AFFIRM; and Opinion Filed April 24, 2013.

OPINION

Before Justices O'Neill, FitzGerald and Lang-Miers

Opinion by Justice O'Neill

In this interlocutory appeal, appellant David D. Kim, M.D. appeals an order denying his motion to dismiss healthcare liability claims. In two issues, Kim contends the trial court abused its discretion in denying his motion to dismiss because the expert report submitted by appellee Steven Hoyt, individually and as next friend of minor children Taylor and Jordan Hoyt and as sole administrator of the estate of Kristine Hoyt does not meet the requirements of the Medical Liability Act. For the following reasons, we affirm the trial court's judgment.

On March 2, 2009, Dr. Kim performed outpatient laparoscopic surgery on Kristine Hoyt. Kristine was administered intravenous general anesthesia by another physician. During Kim's procedure, Kristine began "bucking" due to inadequate anesthesia and/or muscle relaxants being administered, causing Kim to sever Kristine's abdominal aorta. Complications followed Kim's efforts to repair the aorta, and tragically Kristine died in the operating room. Immediately following Kristine's death, Kim informed Hoyt that that he had nicked the femoral artery with the trocar. He stated that ordinarily such nicks are repairable, but he had been unable to repair it because of the jagged nature of the puncture. Kim notified Hoyt he had a right to request an autopsy, but stated an autopsy was unnecessary because Kim knew the cause of death. Likewise, Kim informed Hoyt he did not think it was necessary to request the Medical Examiner's Office to investigate the death. Hoyt nevertheless requested an autopsy to determine the cause of Kristine's death.

Two days following the surgery, Kim redictated his operative report, claiming he could not find the original dictation. Hoyt claims the redictation of the allegedly lost report was false and was not consistent with what Kim verbally told him following Kristine's death. Hoyt also alleged that Kim then somehow arranged for Dr. Juan Luis Zamora, a private forensic pathologist, to perform the autopsy. Hoyt alleges that Zamora falsified the autopsy results, concluding the cause of death was the result of a pre-existing condition. Hoyt asserted Kim knew or should have known that Zamora falsified the autopsy.

Hoyt sued several defendants alleging claims surrounding Kristine's death and subsequent cover-up regarding the cause of death. With respect to Kim, Hoyt did not allege any acts of negligence that caused Kristine's death, but complained only of his participation in the cover-up. He alleged claims against Kim for fraudulent nondisclosure, common-law fraud, intentional infliction of emotional distress, and conspiracy to commit fraud. Although Hoyt alleged his claims against Kim were not health care liability claims, he nevertheless served Kim with a report from Dr. Marc Cooperman. Kim responded Hoyt's claims were health care liability claims and objected to the report, asserting it failed to show Cooperman's qualifications to render his opinions and was conclusory as to how the alleged deviations from the standard of care caused the alleged injuries. Before the trial court determined the adequacy of the original report, the parties reached an agreement that Hoyt would be given thirty days to file an amended report.

Hoyt served Kim with Cooperman's revised report. Kim again objected to the report, asserting it failed to establish Cooperman's qualifications and was conclusory as to causation. The trial court disagreed, concluded the report was adequate, and denied Kim's motion to dismiss.

In this appeal, Kim asserts the trial court erred in denying his motion to dismiss. In oral argument, Hoyt conceded his claims were health care liability claims subject to the Act's requirements. Therefore, the sole issue presented is whether the trial court abused its discretion in concluding Cooperman's amended report was sufficient to meet the requirements of the Act.

We review a trial court's decision with respect to expert reports and the qualifications of experts for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex. App.--Dallas 2007, pet. denied). When reviewing matters committed to the trial court's discretion, an appellate court may not substitute its judgment for that of the trial court. Rosa, 240 S.W.3d at 569. However, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

A trial court must dismiss a cause if it determines that the report does not represent a good faith effort to comply with the Act's requirements. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 74.351(l) (West 2011); Palacios, 46 S.W.3d at 878; Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex. App.--Dallas 2007, no pet.). The Act requires the expert to provide a "fair summary" of his or her opinions regarding the applicable standards of care, the manner in which the care rendered failed to meet those standards, and the causal ...


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