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Sison v. Andrew M.

Court of Appeals of Texas, Second District, Fort Worth

September 7, 2017



          LIVINGSTON, C.J.; WALKER, J.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).



         I. Introduction

         In this interlocutory appeal, [2] Appellants Antonio Sison, M.D., a radiologist, and Heidi Christine Knowles, M.D., an emergency-medicine physician, appeal the trial court's order denying their motions to dismiss the healthcare-liability claims brought by Appellees Andrew M. and Cynthia M., both individually and as guardians to C.M., their minor son. Dr. Sison and Dr. Knowles each raise two issues claiming that the expert reports served upon them by Appellees are insufficient in certain respects to satisfy the requirements of chapter 74 of the civil practice and remedies code.[3] We will affirm.

         II. Background Facts

         In March 2015, Appellees sued Dr. Sison and Dr. Knowles.[4] They alleged that on March 28, 2013, when C.M. (Christopher)[5] was thirteen years old, he woke up experiencing severe pain in his left testicle and was taken to a Fort Worth hospital. Appellees pleaded that at the hospital, Christopher received a physical exam and an ultrasound of his testicles. Appellees alleged that Dr. Sison and Dr. Knowles failed to properly detect Christopher's torsed left testicle and sent Christopher home. On March 31, 2013, Christopher returned to the hospital. His left testicle was now swollen to the size of a baseball. After he underwent another ultrasound, he was transferred to another hospital on "suspicion of testicular torsion." At the second hospital, Christopher was diagnosed with left testicular torsion and immediate surgery was performed. Christopher's left testicle was torsed, or twisted, approximately 720 degrees, cutting off the blood supply to it. After Christopher's left testicle was detorsed during surgery, the surgeon observed it for approximately fifteen minutes to determine whether blood flow could be reestablished. No blood flow returned to Christopher's left testicle, and it was amputated.

         Appellees asserted a negligence claim against Dr. Sison and Dr. Knowles, contending that during Christopher's initial visit to the hospital, they owed Christopher a duty to exercise reasonable care in diagnosing and treating him and that they had breached these duties; Appellees sought damages for Christopher's pain and suffering, medical bills, mental anguish, physical disfigurement, and physical impairment and for their (Andrew M.'s and Cynthia M.'s) pain and suffering, medical bills, mental anguish, and lost wages.

         Appellees timely served Dr. Sison and Dr. Knowles with two expert reports. Dr. David Smoger, a Pennsylvania interventional radiologist, authored one report. Dr. Smoger's report addressed Dr. Sison's negligence in failing to correctly diagnose testicular torsion from the March 28, 2013 ultrasound of Christopher's left testicle, and the report included Dr. Smoger's opinion that Dr. Sison's negligence led to the amputation of Christopher's left testicle. Dr. Jonathan Guenter, a Utah emergency-medicine physician, wrote a report addressing Dr. Knowles's negligence. Dr. Sison and Dr. Knowles challenged the adequacy of these reports, claiming both reports failed to constitute a good-faith effort to comply with the requirements of chapter 74 and claiming neither Dr. Smoger nor Dr. Guenter were qualified to write their respective reports.

         The trial court held a hearing on Appellants' challenges to the reports; globally sustained them, noting the reports were "right there on the edge" of satisfying chapter 74's requirements; and gave Appellees thirty days to cure the deficiencies.[6] Within the thirty-day period, Appellees served amended expert reports from Dr. Smoger and Dr. Guenter.[7] Dr. Smoger's amended report, addressing Dr. Sison's alleged negligence in performing his duties as a radiologist, stated in part,

I received my medical degree from Temple University School of Medicine in 2003. I completed one year as an Intern in Medicine at Lankenau Medical Center in Wynnewood, PA[, ] in 2004 and completed my Radiology Residency at Temple University Hospital in 2008. At the Hospital of the University of Pennsylvania, I completed a fellowship in Interventional Radiology in 2009. I am Board Certified in Diagnostic Radiology with a Certificate of Added Qualification in lnterventional Radiology. I am familiar with the Radiology standards of care as they apply to the interpretation of testicular ultrasound.
In providing my amended opinions in this case, I have reviewed records and imaging from John Peter Smith Hospital and Cook Children's Hospital.
At the time of this case, [Christopher] was a 13[-]year[-]old male who presented to JPS with complaints of significant left testicular pain, swelling, redness[, ] and a subjectively high riding left testicle. He underwent an ultrasound at that time which by report revealed "normal echogenicity vascular flow, and size of the testes bilaterally. . . . Patient presents with recent onset of left testicular pain. He was tender during scanning of the left hemiscrotum.
IMPRESSION: Mass. protruding from or abutting the lower pole of left testis suspicious for hemorrhage arising from inferior margin of the testis or in the epididymal tail. Bilateral hydroceles.["] . . . Of note, at the end of the study, the sonographer explains that it was "more difficult to get color/[D]oppler on left testicle, difficult scan[."] This information was not reported in the Radiology report . . . .
. . . .
The standard of care . . . for conducting an ultrasound on a 13[-]year[-]old boy's testicle(s) to determine the cause and source of the testicular pain and swelling in an emergency room setting is to evaluate the testes in at least 2 planes: longitudinal and transverse. Transverse images should be obtained in the superior, mid, and inferior portions of the testes. Longitudinal views should be obtained centrally as well as medially and laterally. Each testis should be evaluated in its entirety. The size, echogenicity, and blood flow of each testis and epididymis should be compared to the contralateral side. Comparison of the testes is best accomplished with a side-by-side transverse image.
Testicular torsion occurs when a testicle rotates, twisting the spermatic cord that brings blood to the scrotum. In this case, the sonographer conducted transverse and longitudinal imaging, but is clear that on 3/28/2013, Dr. Antonio Sison fell below the standard of care by not properly interpreting the imaging as the study of the left testicle lacked color/[D]oppler flow which he failed to see and report to Dr. Heidi Knowles, the emergency[-]medicine physician for [Christopher]. When there is a lack of color/[D]oppler flow[, ] that is an indication that there is no blood flowing through the testis. In this case, there was no color/[D]oppler flow in the left testicle[, ] and that fact is referenced by the hospital's own records. As a result, Dr. Antonio Sison failed to make the proper diagnosis of testicular torsion[, ] which was evident on the ultrasound study. His deviation in failing to adhere to the appropriate standards of care amounts to the fact that he acted with willful and/or wanton negligence in conducting, and interpreting[] [Christopher's] 3/28/2013 ultrasound of his testicles[, ] which would have more likely than not revealed left testicular torsion. . . . [Testicular torsion] is a condition that requires emergency intervention. If testicular torsion is detected in a timely manner, the testicle can be saved. Had Dr. Sison not willfully and/or wantonly acted in a negligent manner in the operation and interpretation of the 3/28/2013 ultrasound, [Christopher's] left testicle more likely than not would have been saved, especially considering the relatively short time frame between the onset of [Christopher's] symptoms (as per the history) and the arrival time at the hospital. It is my opinion, based upon reasonable medical probability, that Dr. Sison's falling below the standard of care as a radiologist in an emergency[-]room setting was a proximate cause in [Christopher's] delay in obtaining the proper medical treatment to save his left testicle. Had Dr. Sison not fallen below the standard of care in the interpretation of the ultrasound, [Christopher] would more likely than not have lost his left testicle.

         Dr. Guenter's amended report, addressing Dr. Knowles's alleged negligence in performing her duties as an emergency-medicine physician, stated in part,

I am a board-certified, practicing, Emergency Medicine Physician. . . . I have extensive experience caring for and treating patients with testicular pain in the emergency department.
I have reviewed documents that include medical records and imaging from JPS and Cook Children's Hospitals. In summary, [Christopher] presented to the emergency room complaining of testicular pain that awakened him from sleep. His case was managed by Heidi Knowles, MD. After an ultrasound was performed, [Christopher] was sent home with a diagnosis of testicular pain and hydrocele. Three days later[, ] he returned with continued pain and increasing swelling. A second ultrasound ultimately led to a transfer and surgical treatment of a testic[ul]ar torsion.
Testicular torsion is a time-sensitive emergency. Outcomes are best when definitive management occurs within 4-6 hours. The standard of care in this case is for Dr. Knowles to have evaluated and examined [Christopher] for the common presentation symptoms[, ] which include sudden onset of testicular pain, often at night, with nausea and vomiting and conducting examinations to determine lack of cremasteric reflex, abnormal orientation or asymmetric elevation of the testicle, and scrotal edema. Further, her diagnosis must only be considered after history and clinical examinations and specialty consultation should never be delayed for imaging studies. Furthermore, each of these examinations should be properly denoted with [Christopher's] medical records[, ] and the failure to do so is also a breach from the appropriate standard of care.
Dr. Knowles['s] physical examination did not include cremasteric reflex or orientation of the testicle. ln spite of the typical presentation for testicular torsion, an indicated urologic consultation was also not made. She also did not even include testicular torsion as the differential diagnosis. It is my opinion, to a reasonable degree of medical probability, that the evaluation and management of [Christopher] . . . did not meet the standard of care for a patient with severe testicular pain in the emergency department because a thorough examination of the cremasteric reflex or orientation of the testicle was not conducted, nor was a specialty consult provided to [Christopher]. The apparent disregard of the one true potential emergency in [Christopher's] presentation to the ER was reckless and equates to wanton negligence. ln essence, Dr. Knowles['s] failure to adhere to the appropriate standards of care in the evaluation and examination of [Christopher] . . . to determine the source of his pain and left testicular swelling was a proximate cause in his inability to obtain proper medical attention, which was emergent at the time of his presentation on 3/28/2013. Had [Christopher] . . . received the proper medical attention in a timely manner, his left testicle would have more likely than not been saved.

         Dr. Sison and Dr. Knowles each objected to the amended reports. They both filed motions to dismiss Appellees' suit. After holding another hearing, the trial court overruled Dr. Sison's and Dr. Knowles's objections to the amended expert reports and denied their motions to dismiss Appellees' suit. Dr. Sison and Dr. Knowles each appealed.

         III. The Adequacy of the Expert Reports

         In separate briefing, Dr. Sison and Dr. Knowles contend that the trial court abused its discretion by denying their motions to dismiss. Dr. Sison raises two issues consistent with his objections in the trial court complaining that Dr. Smoger is not qualified to opine on the applicable standards of care, breach, or causation and that Dr. Smoger's amended report does not contain a fair summary of the applicable standards of care, breach, or the causal connection between Dr. Sison's alleged negligence and the amputation of Christopher's left testicle. Dr. Knowles raises two issues consistent with her objections in the trial court complaining that "inconsistencies" between Dr. Guenter's amended report and Dr. Smoger's initial report "fail to meet the Chapter 74 requirements for expert reports" and that Dr. Guenter's report "fail[s] to render reliable expert testimony when [Dr. Guenter's] opinions on the standard of care and causation are not based upon reliable facts and do not set forth facts to support the opinions."

         A. Standard of Review

         In a healthcare-liability claim, [8] a plaintiff must serve each defendant with a report and a curriculum vitae (CV) of the report's author. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The report must be written by an expert qualified to give an opinion on the matters in the report, must inform the defendant of the specific conduct called into question, and must provide a basis for the trial court to determine that the plaintiff's claim has merit. See id. §§ 74.351(r)(5)(A), (r)(6), 74.401(a); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see also Hebner v. Reddy, 498 S.W.3d 37, 40 (Tex. 2016) (explaining that chapter 74 aims to eliminate frivolous claims expeditiously while preserving claims of potential merit). The purpose of the Texas Medical Liability Act's (the TMLA) expert report requirement is not to have claims dismissed regardless of their merits, but rather it is to identify and deter frivolous claims while not unduly restricting a claimant's rights. Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 502 (Tex. 2015); Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). The expert-report requirement is a threshold mechanism to dispose of claims lacking merit. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). When reviewing the adequacy of a report, the only information relevant to the inquiry is the information contained within the four corners of the document. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). And a report is deficient only if it does not represent an objective, good-faith effort to comply with the statutory requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)-(b), (l). When reviewing an expert's qualifications under section 74.351, we look to the four corners of the report and also to the expert's CV. See, e.g., Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.-Houston [14th Dist.] 2009, no pet.); see also Palacios, 46 S.W.3d at 878.

         Consequently, an expert report "need not marshal all the plaintiff's proof"; it must only provide a fair summary of the expert's opinions as to 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); Palacios, 46 S.W.3d at 879. We do not grade the report based on whether an expert stated these statutory elements exhaustively or elegantly or based on whether the expert recited the proper "magic words" necessary to ward off the specter of dismissal. Mendez-Martinez v. Carmona, 510 S.W.3d 600, 608-09 (Tex. App.-El Paso 2016, no pet.). Nor is the information in the expert report held to the same standard as evidence offered in a summary-judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; El Paso Specialty Hosp. Ltd. v. Gurrola, 510 S.W.3d 655, 664 (Tex. App.-El Paso 2016, no pet.).

         Instead, we review a trial court's denial of a motion to dismiss alleging the inadequacy of an expert report for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011); Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.-Fort Worth 2008, pet. denied) (op. on remand). Likewise, we review a trial court's decision on whether a physician is qualified to offer an expert opinion in a healthcare-liability claim under an abuse-of-discretion standard. Moore, 269 S.W.3d at 139. A trial court abuses its discretion if the court acts without reference to any guiding rules or principles. See Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). In making such a determination, a court of appeals may not simply substitute its own judgment for that of the trial court. Wright, 79 S.W.3d at 52. That is, an abuse of discretion does not occur simply because a trial court decides the matter differently than an appellate court would under similar circumstances. See Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569-70 (Tex. App.-Dallas 2007, pet. denied).

         B. Dr. Sison's Challenges to Dr. Smoger's Amended Report

         1. Challenge to Dr. Smoger's qualifications to opine on standard of care, breach, and causation

         The trial court overruled Dr. Sison's objections to Dr. Smoger's qualifications as reflected in Dr. Smoger's amended report. On appeal, Dr. Sison's first issue re-urges his complaint that Dr. Smoger is not qualified to articulate opinions about the standard of care for interpreting a testicular sonogram, about a breach of that standard of care, or causation. Dr. Sison's complaint was framed in the trial court as follows:

Dr. Smoger is not demonstrated in his first report to have the qualifications to address the interpretation of a testicular sonogram of a child and that he does not have the qualifications to render opinions regarding causation from the failure to diagnose a testicular sonogram of a child.
He is a radiologist. He is a [sic] neuroradiologist. His first report and his second report are absolutely silent as to his education, training, and experience in diagnosing and treating children for testicular problems and the diagnostic tool [is] a sonogram.
The In re Windisch[9] case, it is the Spotted ...

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