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Courtney v. Pennington

Court of Appeals of Texas, Fifth District, Dallas

July 21, 2017

STEPHEN COURTNEY, M.D. AND PLANO ORTHOPEDICS SPORTS MEDICINE AND SPINE CENTER, P.A., Appellants
v.
CHRISTEL PENNINGTON, INDIVIDUALLY AND AS AN HEIR AND REPRESENTATIVE OF THE ESTATE OF STEVEN PAUL PENNINGTON, DECEASED, Appellee

         On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-03386

          Before Justices Francis, Brown, and Schenck

          MEMORANDUM OPINION

          ADA BROWN, JUSTICE

         In this 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.

         Dr. 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 exemplary damages.

         Pursuant 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)).

         In this 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.[1] 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.

         When 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 damages claimed.

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. § 74.351(i).

         We 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.

         In his 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.

         Dr. 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 decompression."

         Pennington 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. ...


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