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Smith v. Johnson

Court of Appeals of Texas, Fifth District, Dallas

July 26, 2017

BLAKE SMITH, M.D.; BAYLOR SCOTT & WHITE HEALTH SYSTEM; BAYLOR REGIONAL MEDICAL CENTER AT GRAPEVINE; TEXAS HEART HOSPITAL OF THE SOUTHWEST LLP D/B/A THE HEART HOSPITAL BAYLOR PLANO; AND RICHARD FEINGOLD, D.O., Appellants
v.
HARRY JOHNSON AND LYNN JOHNSON, Appellees

         On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-01488

          Before Justices Fillmore, Whitehill, and Boatright

          MEMORANDUM OPINION

          ROBERT M. FILLMORE, JUSTICE

         Harry Johnson (Johnson) suffered cardiac arrest and was transported to Baylor Regional Medical Center at Grapevine (Baylor Grapevine). At Baylor Grapevine, Johnson was resuscitated and stabilized, however impaired blood flow to Johnson's lower extremities was not detected until later in the day. After a failed attempt to transfer Johnson to Texas Heart Hospital of the Southwest LLP d/b/a The Heart Hospital at Baylor Plano (Heart Hospital), Johnson was taken to surgery at Baylor Grapevine in order to address the impaired blood flow to his lower extremities. Johnson's left leg could not be saved during that surgery and was later amputated. Johnson and his wife, Lynn Johnson, (appellees) sued Blake Smith, M.D., Richard Feingold, D.O., Baylor Scott & White Health System (Baylor Scott & White), Baylor Grapevine, and Heart Hospital (collectively appellants) for damages allegedly sustained by Johnson as a result of the negligent acts or omissions of appellants.

         Appellees served appellants with expert reports as required by section 74.351 of the civil practice and remedies code. Appellants objected to various aspects of those reports and moved to dismiss the case. The trial court entered orders overruling appellants' objections to the expert reports and denying their motions to dismiss, and this interlocutory appeal was taken challenging those trial court orders. In three issues, Dr. Smith contends the expert report of Patrick Roughneen, M.D., did not constitute a good faith report because his opinions on causation are conclusory, his opinions on standards of care provide no information on specific conduct alleged to have been negligent, and he is not qualified to render standard-of-care opinions concerning the care provided by Dr. Smith. In a single issue, Baylor Scott & White, Baylor Grapevine, and Heart Hospital (collectively "the Baylor appellants") and Dr. Feingold assert the expert reports of Dr. Roughneen and J. Kevin Moore, M.H.A., J.D., are deficient because their opinions on causation are conclusory and speculative.

         For reasons explained in this opinion, we affirm the trial court's orders overruling appellants' objections to the expert reports and denying their motions to dismiss.

         Background[1]

         Appellees' Factual Allegations

         On October 6, 2014, Johnson suffered a blood clot in his descending aorta that blocked blood flow to his lower extremities. The blood clot also caused Johnson to suffer cardiac arrest, for which he was transported to Baylor Grapevine. At Baylor Grapevine, Dr. Smith treated Johnson. Johnson was resuscitated and stabilized with an acceptable heart rate, heart rhythm, and blood pressure. Impaired blood circulation to Johnson's legs was not timely recognized or acted upon by Dr. Smith. Dr. Smith contacted Dr. Feingold regarding a cardiology consultation for Johnson. At the time he examined Johnson, Dr. Feingold failed to recognize or act upon impaired blood circulation to Johnson's legs.

         Hours passed between the time Johnson was stabilized and the time impaired blood circulation to Johnson's legs was treated. At approximately 11:50 a.m., Baylor Grapevine Emergency Department staff placed a telephone call to Dr. Roughneen, a vascular surgeon, to request a consultation concerning Johnson's condition. During that phone conversation, Dr. Roughneen accepted Johnson as a patient, instructed the Emergency Department staff to obtain a CT angiogram, and informed the Emergency Department staff he would come to the hospital as soon as possible to assume care of Johnson. At some point shortly after that phone call, Dr. Roughneen was informed that a decision had been made to transfer Johnson from Baylor Grapevine to Heart Hospital and that Dr. Roughneen was no longer responsible for Johnson's care. Baylor Grapevine concurred in a decision of Drs. Smith and Feingold to transfer Johnson to Heart Hospital. Heart Hospital initially accepted the transfer knowing that Baylor Grapevine had the capability to treat Johnson.

         At approximately 2:00 p.m., Dr. Roughneen was informed the transfer of Johnson to Heart Hospital was not "going to be accomplished" because Heart Hospital did not have an available hospital bed for Johnson. At that point, Dr. Roughneen agreed again to assume care of Johnson. Dr. Roughneen went to Baylor Grapevine and performed emergency surgery to restore blood circulation to Johnson's lower extremities. Due to the delay between the time Johnson's impaired blood circulation "should have been or actually was recognized" and the time of surgery, Johnson lost his left leg and ultimately underwent a complete hindquarter amputation.

         Appellees' Theories of Liability

         Appellees allege Dr. Smith and Dr. Feingold were negligent in the medical examination, diagnosis, and treatment of Johnson by failing to timely recognize and act upon impaired blood circulation in Johnson's legs, failing to timely seek a vascular consultation, seeking or permitting the consultation by Dr. Roughneen to be cancelled, and attempting to transfer Johnson from Baylor Grapevine to Heart Hospital.

         Appellees allege Baylor Scott & White and Baylor Grapevine were negligent in failing to have policies, procedures, or protocols in place to prevent transfer of a patient from Baylor Grapevine to Heart Hospital when the necessary "medical/surgical" services were available at Baylor Grapevine. Appellees also allege Baylor Scott & White and Baylor Grapevine were negligent under the doctrine of respondeat superior for their actual or apparent agents or employees at Baylor Grapevine who participated in the attempted transfer of Johnson to Heart Hospital. Appellees allege Heart Hospital was negligent in failing to have policies, procedures, or protocols in place to prevent transfer of a patient from an "outside" healthcare facility to Heart Hospital when the necessary "medical/surgical" services were available at the "outside" healthcare facility and/or when Heart Hospital had no available hospital bed for the patient.

         Appellees allege the cancellation of Dr. Roughneen's initial consultation and the attempted transfer of Johnson to Heart Hospital "foreseeably caused a needless delay" in Johnson's surgery and caused them harm and damages.

         Appellees further allege Baylor Scott & White, Baylor Grapevine, and Heart Hospital violated 42 U.S.C.A. § 1395dd, entitled "Examination and Treatment for Emergency Medical Conditions and Women in Labor, "[2] and "other related federal regulations, " causing them harm and damages.[3]

         Procedural History

         Pursuant to section 74.351 of the civil practice and remedies code, appellees served appellants with expert reports prepared by Dr. Roughneen, a board certified thoracic surgeon, and Moore, who has a master's degree in health administration and a law degree, in support of their claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2016). Appellants filed objections challenging the adequacy of Dr. Roughneen's and Moore's expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). Dr. Smith objected to Dr. Roughneen's qualifications to render an opinion regarding the applicable standards of care[4] as well as his actual opinions concerning both the standards of care and causation. The Baylor appellants and Dr. Feingold objected to Dr. Roughneen's and Moore's qualifications to render standard-of-care opinions. They also objected to Dr. Roughneen's expert report because it failed to sufficiently identify the applicable standards of care, show how the standards of care were breached, and explain the causal relationship between the breach of the standards of care and the alleged injury, and to Moore's expert report because it failed to explain the causal relationship between the breach of the applicable standards of care and the alleged injury.

         Although not in the appellate record, the parties do not dispute that on August 15, 2016, the trial court heard the objections to Dr. Roughneen's expert report, sustained objections to the report, [5] and granted appellees a thirty-day extension in which to attempt to cure deficiencies. See id. § 74.351(c), (l).[6] Within the thirty-day extension period, appellees served appellants with an amended expert report of Dr. Roughneen.

         Dr. Smith objected to Dr. Roughneen's amended expert report on the bases that Dr. Roughneen is not qualified to opine regarding the applicable standards of care, and the amended report is unreliable because it conflicts with the causation opinion contained in his original report.[7] Dr. Smith moved for dismissal of appellees' claims against him. The Baylor appellants and Dr. Feingold also objected to Dr. Roughneen's amended report on the bases that Dr. Roughneen is not qualified to render standard-of-care opinions and his amended report fails to sufficiently identify the applicable standards of care, show how the standards of care were breached, and explain the causal relationship between the breach of the standards of care and the alleged injury. On October 3, 2016, the trial court signed an order denying appellants' objections to Dr. Roughneen's amended report and denying appellants' motions to dismiss appellees' claims against them.

         On October 25, 2016, the Baylor appellants and Dr. Feingold filed a motion to dismiss appellees' claims against them to "procedurally perfect their right" to seek appellate review of the trial court's ruling on the sufficiency of Dr. Roughneen's amended report. See § 74.351(b). In their motion to dismiss, the Baylor appellants and Dr. Feingold incorporated their prior objections that Dr. Roughneen is not qualified to render standard-of-care opinions and his amended report fails to sufficiently identify the applicable standards of care, show how the standards of care were breached, and explain the causal relationship between the breach of the standards of care and the alleged injury. On November 9, 2016, the trial court signed an order denying the Baylor appellants' and Dr. Feingold's motion to dismiss appellees' claims against them.

         Dr. Smith invoked the jurisdiction of this Court by filing his interlocutory appeal of the trial court's order overruling his objections to Dr. Roughneen's amended expert report and denying his motion to dismiss appellees' claims against him. See id. § 51.014(a)(9) (West Supp. 2016). The Baylor appellants and Dr. Feingold thereafter filed their interlocutory appeal of the trial court's order overruling their objections to appellees' expert reports and denying their motions to dismiss appellees' claims against them. See id.

         Standard of Review

         We review a trial court's order on a motion to dismiss a health care liability claim based on the sufficiency of an expert's report for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 791 (Tex. App.-Dallas 2009, no pet.). We must defer to the trial court's factual determinations if they are supported by the evidence, but review its legal determinations de novo. Van Ness, 461 S.W.3d at 142. A trial court has no discretion in determining what the law is or in applying the law to the facts. Sanchez v. Martin, 378 S.W.3d 581, 587 (Tex. App.-Dallas 2012, no pet.). We apply the same standard in reviewing a trial court's determination in a health care liability case that a person submitting an expert report is qualified. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.402 (West 2011). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).

         Applicable Law

         The Texas Medical Liability Act (TMLA) contained in Chapter 74 of the civil practice and remedies code governs health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507 (West 2011 & Supp. 2016); Columbia Valley Healthcare Sys., L.P. v. Zamarripa, No. 15-0909, 2017 WL 2492003, at *1 (Tex. June 9, 2017); see also Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 316 n.3 (Tex. App.-Dallas 2008, no pet.). Any person who brings suit asserting a health care liability claim must, within 120 days after each defendant's original answer is filed, serve on that party or the party's attorney one or more expert reports for each physician or health care provider against whom a health care liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An "expert report" is:

a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding 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); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex. 2002) (per curiam).

         When a plaintiff sues more than one defendant in connection with a health care liability claim, the expert report must set forth the standard of care applicable to each defendant, show how that defendant's conduct failed to meet that standard of care, and explain the causal relationship between each defendant's failure to meet the standard of care and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6); see also Scoresby v. Santillan, 346 S.W.3d 546, 555-56 (Tex. 2011).

         A trial court shall grant a motion challenging the adequacy of an expert report 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 "expert report" in section 74.351(r)(6). Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l); see also Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). To represent an objective good faith effort to comply with the statutory requirements of Chapter 74, the expert report must (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016); see also Loaisiga, 379 S.W.3d at 260. If a report omits any of the statutory elements of section 74.351(r)(6), it cannot be considered a good faith effort. Sanchez, 378 S.W.3d at 588.

         In determining whether the expert report represents an objective good faith effort to comply with the statutory requirements, the court's inquiry is limited to the four corners of the report. Fortner v. Hosp. of the Sw, LLP, 399 S.W.3d 373, 379 (Tex. App.-Dallas 2013, no pet.); see also Jelinek, 328 S.W.3d at 539 (to determine whether expert report complies with section 74.351, courts consider the information "found within the four corners of the expert report, which need not 'marshal all the plaintiff's proof' but must include the expert's opinion on each of the three main elements: standard of care, breach, and causation") (quoting Bowie Mem'l Hosp., 79 S.W.3d at 52)).[8] An expert report must do more than merely state the expert's conclusions about the standard of care, breach, and causation, Bowie Mem'l Hosp., 79 S.W.3d at 52; Fortner, 399 S.W.3d at 379; "the expert must explain the basis of his statements to link his conclusions to the facts." Jelinek, 328 S.W.3d at 539 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). "We may not 'fill gaps' in an expert report by drawing inferences or guessing what the expert likely meant or intended." Hollingsworth v. Springs, 353 S.W.3d 506, 513 (Tex. App.-Dallas 2011, no pet.); see also Fortner, 399 S.W.3d at 379 (report must contain sufficiently specific information to demonstrate causation beyond mere conjecture).

         Appellees' Expert Reports

         Dr. Roughneen's Amended Expert Report

         Summary of ...


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