Court of Appeals of Texas, Fifth District, Dallas
STEPHEN COURTNEY, M.D. AND PLANO ORTHOPEDICS SPORTS MEDICINE AND SPINE CENTER, P.A., Appellants
CHRISTEL PENNINGTON, INDIVIDUALLY AND AS AN HEIR AND REPRESENTATIVE OF THE ESTATE OF STEVEN PAUL PENNINGTON, DECEASED, Appellee
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-03386
Justices Francis, Brown, and Schenck
interlocutory appeal, Stephen Courtney, M.D. and Plano
Orthopedics Sports Medicine and Spine Center, P.A. appeal the
trial court's order denying their objections to Christel
Pennington's Chapter 74 expert reports and denying their
motion to dismiss Pennington's wrongful death case for
failure to serve adequate expert reports. We reverse and
remand to the trial court for further proceedings.
Courtney performed spinal surgery on Pennington's husband
Steven Pennington twice, once in March 2012, and once in July
2015. During the July 2015 procedure, Steven suffered cardiac
arrest and died. In March 2016, Pennington, individually and
as an heir and representative of Steven's estate, sued
Dr. Courtney and his professional association (collectively
"Dr. Courtney") for negligence and gross negligence
that allegedly occurred in connection with the 2012 surgery.
On behalf of Steven's estate, Pennington sought survival
damages for Steven's mental anguish and pain and
suffering, among other damage elements, following the 2012
surgery until his death. Pennington also sought wrongful
death damages for the loss of her husband, as well as
to Chapter 74 of the civil practice and remedies code,
Pennington served Dr. Courtney with the expert report of Dr.
George Wharton. Dr. Courtney objected to the expert report
for various reasons. Pennington then served Dr. Courtney with
a supplemental expert report from Dr. Wharton and a new
expert report from Dr. Mark Entman. Dr. Courtney objected to
these new reports and moved to dismiss Pennington's
claims with prejudice for failure to serve sufficient expert
reports. After a hearing, the trial court overruled
Courtney's objections to the reports and denied the
motion to dismiss. This appeal followed. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West
Supp. 2016) (permitting appeal from interlocutory order that
denies relief sought by motion under section 74.351(b)).
appeal, Dr. Courtney contends the trial court abused its
discretion in overruling the objections to the expert reports
and in denying the motion to dismiss Pennington's
wrongful death claim. Dr. Courtney
maintains that Pennington's expert reports were
insufficient because they fail to (1) articulate the
standards of care for the 2015 surgery; (2) articulate any
breach of the standard of care for the 2015 surgery; and (3)
sufficiently address causation. Pennington responds that the
first two complaints about her expert reports are irrelevant
because she has not alleged that any negligence during the
2015 surgery caused her husband's death. Her theory is
that her husband underwent a second surgery, during which he
died, only because Dr. Courtney was negligent in performing
the first surgery. We agree with Pennington that the sole
issue in this appeal is whether her expert reports adequately
address whether negligence during the 2012 surgery caused her
husband's death in 2015.
asserting a health care liability claim, a claimant must
comply with Chapter 74. Stockton v. Offenbach, 336
S.W.3d 610, 614 (Tex. 2011). Section 74.351(a) provides that
a claimant shall serve, within 120 days after the
defendant's original answer is filed, an expert report.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West
Supp. 2016). An expert report is defined as:
a written report by an expert that provides a fair summary of
the expert's opinions as of the date of the report
regarding the 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
Id. § 74.351(r)(6). A trial court shall grant a
motion challenging the adequacy of an expert report only if
it appears to the court, after a hearing, that the report
does not represent an objective good faith effort to comply
with this definition. Id. § 74.351(l).
A claimant may use multiple expert reports to address the
different issues that may arise in a health care liability
claim, such as liability and causation. Id. §
review the trial court's decision regarding the adequacy
of an expert report under an abuse of discretion standard.
Methodist Hosps. of Dallas v. Winn, 496 S.W.3d 148,
150 (Tex. App.-Dallas 2016, no pet.). A trial court abuses
its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles.
Id. A trial court also abuses its discretion if it
fails to analyze or apply the law correctly. Id.
expert reports, Dr. Wharton, an orthopedic surgeon, provided
a history of Steven's spinal problems and treatment by
Dr. Courtney, which began in 1997. Dr. Wharton described the
March 2012 surgery as "lumbar spine surgery" and
"a 2 level lumbar interbody instrumentation with Eminent
Peek cages . . . performed at L3-4 and L4-5." His
supplemental report stated that during the 2015 surgery, Dr.
Courtney implanted pedicle screws at several levels, and the
report indicates that over two hours into the surgery Steven
suffered a cardiac arrest and was declared dead.
Wharton opined about the standards of care for the 2012
surgery and several breaches of those standards. For example,
Dr. Wharton opined that the standard of care required Dr.
Courtney to offer Steven a simple decompression at L3-4 only,
which would have, within reasonable medical probability,
alleviated his symptoms. The decompression was a minimally
invasive outpatient procedure with a higher likelihood of
success. Also, Dr. Wharton determined that even if the
standard of care supported the decision to place implants
into the intervertebral disc spaces, Dr. Courtney failed to
select implants appropriate for the condition of Steven's
bone, which caused Steven to suffer an end plate fracture.
According to Dr. Wharton, these and other named violations of
the standards of care were a proximate cause of Steven's
continued pain and suffering and his need for the July 2015
surgery. Dr. Wharton stated in his supplemental report,
"In my opinion, within reasonable medical probability,
Mr. Pennington would have avoided the need for the second
surgical procedure on 07/22/2015 if Dr. Courtney had not
performed a needless procedure and had . . . [done] a simple
also served a report from Dr. Entman, a board-certified
cardiologist. Dr. Entman reviewed Steven's medical
records for the decade before his death, as well as the
autopsy report. Dr. Entman stated that Steven was a
fifty-seven-year-old man with several health issues,
including diabetes and reactive lung disease, that were
"uncommonly well managed." The doctor noted that
Steven had a normal stress test in 2005 and had several
evaluations of cardiac function thereafter which were
basically normal. Physical examinations were done frequently
during follow-ups without any obvious abnormalities. In
discussing Steven's cardiovascular disease risk factors,
Dr. Entman observed that Steven had very little additional
risk of heart disease from his diabetes diagnosis.