Court of Appeals of Texas, Second District, Fort Worth
ANTONIO SISON, M.D. AND HEIDI CHRISTINE KNOWLES, M.D. APPELLANTS
ANDREW M. AND CYNTHIA M., BOTH INDIVIDUALLY AND AS GUARDIANS TO C.M., A MINOR CHILD APPELLEES
THE 352ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER, J.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).
MEMORANDUM OPINION 
interlocutory appeal,  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. We will affirm.
March 2015, Appellees sued Dr. Sison and Dr.
Knowles. They alleged that on March 28, 2013, when
C.M. (Christopher) 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.
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.
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.
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. Within the thirty-day period, Appellees
served amended expert reports from Dr. Smoger and Dr.
Guenter. 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.
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
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.
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.
The Adequacy of the Expert Reports
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."
Standard of Review
healthcare-liability claim,  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.
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.).
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).
Dr. Sison's Challenges to Dr. Smoger's Amended
Challenge to Dr. Smoger's qualifications to opine on
standard of care, breach, and causation
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 case, it is the Spotted ...