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Hambrick v. Dominguez

Court of Appeals of Texas, Fifth District, Dallas

June 12, 2017

BRENT ALLEN HAMBRICK, M.D., EMCARE HOLDINGS, INC., EMCARE, INC. AND TEXAS EM-I MEDICAL SERVICES, P.A., Appellants
v.
LETICIA DOMINGUEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAVIER DOMINGUEZ, JENNIFER DOMINGUEZ, LUIS ADEMIR DOMINGUEZ, JAVIER DOMINGUEZ, JR., AND ESMERALDA DOMINGUEZ, INDIVIDUALLY, Appellees

         On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-12919-K

          Before Justices Lang, Myers, and Stoddart

          MEMORANDUM OPINION

          Myers Justice

         This case concerns the sufficiency of an expert report in a medical malpractice case under section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2016). Appellants' Brent Allen Hambrick, M.D., Emcare Holdings, Inc., Emcare, Inc., and Texas Em-I Medical Services P.A. appeal the trial court's order denying their motion to dismiss the suit filed by Leticia Dominguez, the personal representative of the deceased, Javier Dominguez, and Dominguez's family members. See Civ. Prac. § 51.014(a)(9) (West Supp. 2016). Appellants bring three issues on appeal contending the trial court erred by overruling their objections to the expert reports of Dr. Kenneth Corre and Dr. Brian Gogel and by denying appellants' motion to dismiss because: (1) Dr. Corre was not qualified to render an opinion on the causal link between Dr. Hambrick's care and Dominguez's death; (2) Dr. Corre's opinions do not constitute a good-faith report on causation; and (3) the opinions expressed in Dr. Gogel's report do not constitute an expert report against Dr. Hambrick. We conclude Dr. Corre's report fails to establish his qualifications to render an opinion on the causation of Javier Dominguez's death. We reverse the trial court's judgment and remand the cause to the trial court to consider whether to grant a thirty-day extension to cure the deficiencies in Dr. Corre's report. See id. § 74.351(c).

         BACKGROUND

         On July 11, 2014, Javier Dominguez underwent gall-bladder-removal surgery. After the surgery, Dominguez's condition worsened, and he had high fever and rapid heart rate. The doctors returned Dominguez to the operating room on July 14 and found bowel contents in his abdomen from a pinhole in his colon. After this surgery, Dominguez's condition deteriorated further. Dominguez was placed in the ICU, and he required mechanical assistance to breathe. Dominguez's hypoxemia grew worse, and on July 29, a tracheostomy was performed inserting a tube into Dominguez's airway. Later that day, Dominguez's respiration rate increased, and despite the tracheostomy, there was air coming out of his nose. At 10:45 p.m., during "repositioning" by the nurses, the tracheostomy tube dislodged. At 10:51 p.m., when the nurses and a respiratory therapist could not successfully reposition or replace the tube, a "code blue" was called. About two minutes later, Dr. Hambrick arrived from the emergency room and tried to replace the tracheostomy tube, but he was unsuccessful. Dominguez went into cardiac arrest at 10:58 p.m. Dominguez's oxygen saturation dropped to forty percent, and he showed signs of subcutaneous emphysema, including swelling of the face and neck. Dr. Hambrick tried again to replace the tracheostomy tube, but he was unsuccessful. The medical director then ordered reintubation. Dr. Hambrick ordered administration of succinylcholine, which Dominguez received at 11:05 p.m. Dr. Hambrick then intubated Dominguez, but he and the other hospital staff could not revive him. Dr. Hambrick called the time of death at 11:19 p.m.

         The Dominguez family sued Dr. Hambrick as well as other physicians and health care providers. The Dominguezes served Dr. Hambrick with the expert reports of Dr. Corre and Dr. Gogel. Dr. Corre concluded that Dr. Hambrick should have intubated Dominguez sooner. Dr. Hambrick objected to the expert reports and moved to dismiss the Dominguezes' claims under section 74.351(b). The trial court overruled the objections and denied the motion to dismiss.

         EXPERT-REPORT REQUIREMENT

         Section 74.351 of the Civil Practice & Remedies Code provides that a plaintiff bringing a health care liability claim must serve defendants who are physicians or health care providers with an expert report within 120 days of their answers. Civ. Prac. § 74.351(a). The report must provide the expert's opinions regarding the standard of care, the manner in which the care rendered by the defendant failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages caused. Id. § 74.351(r)(6). A defendant may file objections to the report within twenty-one days after the report is served or the defendant files its answer. Id. § 74.351(a). Any objections to the expert report not filed within that time are waived. Id. If an expert report is not timely filed, the trial court must, on the defendant's motion, dismiss the health care liability claims with prejudice and award the defendant its reasonable attorney's fees and costs of court. Id. § 74.351(b). If the plaintiff serves an expert report that "does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6), " then the court must grant a motion challenging the adequacy of the report. Id. § 74.351(l). The court may grant a party that serves a deficient expert report one 30-day extension to cure the deficiencies. Id. § 74.315(c).

         We review a trial court's order on the sufficiency of an expert report for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam).

         DR. CORRE'S EXPERT REPORT

         In their first issue, appellants contend the trial court erred by denying their objections to Dr. Corre's expert report and denying their motion to dismiss because the report did not show Dr. Corre was qualified to render an opinion on whether Dr. Hambrick's conduct caused Dominguez's death. To render an opinion on whether a physician has departed from accepted standards of health care, the Healthcare Liability Act requires that an expert must be a physician who:

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or ...

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