Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
JENNIFER J. GARZA, M.D. AND JENNIFER GARZA, M.D., P.A., Appellants,
RAFAEL DELEON AND VANESSA DELEON AS PARENTS AND NEXT OF FRIEND OF E.D., A MINOR CHILD, Appellees.
On appeal from the County Court at Law No. 4 of Hidalgo County, Texas.
Before Chief Justice Valdez and Justices Benavides and Longoria
NORA L. LONGORIA Justice
This is an interlocutory appeal from an order denying appellant Jennifer Garza, M.D.'s motion to dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2011); § 51.014(a)(9) (West 2008). We affirm.
Appellees brought a healthcare liability claim against Dr. Garza in connection with an elective circumcision that she performed on their four-year-old minor son, E.D. E.D.'s pediatrician recommended that E.D. be circumcised because of the conditions of phimosis (tight foreskin) and redundant foreskin. Appellees alleged that Dr. Garza overused an electrocautery device during the circumcision and caused E.D. to develop two holes (fistulas) on his penis that required reconstructive surgery.
Specifically, appellees alleged that Dr. Garza first told them that the circumcision had been successful but that there had been a small amount of bleeding that she had been able to stop. A nurse who came to change E.D.'s bandages in the recovery room noticed that E.D. "still had a lot of bleeding" that did not appear to be stopping. Dr. Garza returned E.D. to the operating room under anesthesia and found that there was "general ooze" of blood from under the head of the penis but without a specific source. Dr. Garza stated that she "gently used" an electrocautery device along with hemostatic agents on the head of the penis to stop the bleeding. Appellees alleged that within two to three days of being released from the hospital, E.D. was voiding urine through two holes in his penis and that the "oozing bleeding" continued. Appellees took E.D. to the emergency room for blood in his urine and for pain that they allege was so severe that he was unable to sleep. Appellees were eventually referred to a pediatric urologist who diagnosed the holes as "urethrocutaneous fistulas, " holes between the urethra and the skin of the penis. After waiting approximately six months for healing and to permit the scar tissue to soften, E.D. underwent reconstructive surgery that closed the holes without any bleeding issues, but the surgeon also noted that E.D. might require further surgeries if complications arose.
Appellees brought suit on behalf of E.D., alleging that Dr. Garza was negligent for: (1) "failing to properly perform the circumcision"; (2) "causing excessive bleeding during the circumcision procedure"; (3) "removing excessive tissue during the circumcision procedure"; (4) "using excessive electrocautery during the second procedure"; (5) "injuring E.D.'s glans, urethra and skin of his penis"; and (5) generally "failing to provide proper care and treatment" to E.D. Appellees filed three separate expert reports from Dr. James E. Moulsdale, M.D., a pediatric urologist from Maryland. The trial court overruled Dr. Garza's objections to the third expert report, and it issued an order denying Dr. Garza's motion to dismiss. This appeal followed. See id. § 51.014(a)(9) (allowing for an interlocutory appeal of the denial of a motion to dismiss brought under section 74.351 (b)).
By two issues, Dr. Garza argues that the trial court abused its discretion in denying her motion to dismiss because the third expert report is not an objective good faith effort to comply with the definition of an expert report in section 74.351 (r)(6) of the Texas Civil Practice and Remedies Code. See id. § 74.351 (r)(6), (I).
A. Standard of Review and Applicable Law
The Texas Medical Liability Act requires that a plaintiff in a suit against a physician or health care provider must serve an expert report on the defendant or the defendant's attorneys within 120 days after the filing of the first petition. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the defendant objects to the adequacy of the report and files a motion to dismiss, the trial court should grant the motion "only if 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)." Id. § 74.351(1), (r)(6). We review a trial court's decision on a motion to dismiss under section 74.351(b) for abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006).
In the context of a motion to dismiss under section 74.351(b), "[a] good faith effort. . . simply means a report that does not contain a material deficiency." Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011). "A valid expert report . . . must provide (1) a fair summary of the applicable standards of care; (2) the manner in which the physician or health care provider failed to meet those standards; and (3) the causal relationship between that failure and the harm alleged." TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (r)(6)). A plaintiff is not required to present evidence in the report as if he was arguing the merits, but it is not enough that the report merely state the expert's conclusions about the three elements. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). "Rather, the expert must explain the basis of his statement to link his conclusions to the facts." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). The report must contain information that is sufficient to fulfill two purposes: "[f]irst, the effort must inform the defendant of the specific conduct the plaintiff has called into question. Second, ... the report must provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 879. "Therefore, an ...