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Monga v. Perez

Court of Appeals of Texas, Fourteenth District

January 23, 2018

MANJU MONGA M.D., Appellant
v.
ISRAEL PEREZ AND ARGELICA PEREZ, INDIVIDUALLY AND A/N/F OF XXXXX XXXXX, A MINOR, Appellee

         On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2016-54818

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.

          MEMORANDUM OPINION

          Ken Wise Justice

         Appellant Dr. Manju Monga was the consulting maternal-fetal medicine doctor for appellee Argelica Perez, a pregnant mother with gestational diabetes. In this interlocutory appeal Dr. Monga challenges the denial of her motion to dismiss the claims against her for failure to serve an adequate expert report under section 74.351 of the Texas Civil Practice and Remedies Code. Argelica and her husband Israel, Individually and as next friend of their minor child, J.P., brought suit against Dr. Monga and others for injuries sustained during the birth of J.P.

         The Perezes timely filed three expert reports, two of which are at issue here. Dr. Monga challenges one report on grounds that the expert was not qualified to render the opinions stated and his opinions are conclusory and speculative. Dr. Monga maintains that the second expert report does not establish causation as to her because the report does not refer to her by name. Because we conclude that the expert reports in this case, when read together, provide a fair summary of the applicable standards of care, how the experts contend the standards of care were breached, and the causal relationship between the breach and the injury, harm, or damages claimed, we affirm the trial court's order denying Dr. Monga's motion to dismiss.

         Background[1]

         Argelica Perez gave birth to her third child, J.P., in March 2014. As she had with her first two children, Argelica developed gestational diabetes. Gestational diabetes, if not adequately treated, can lead to a large fetus, known as macrosomia. According to the expert report, macrosomic fetuses are those weighing over 8 pounds 13 ounces.

         Argelica obtained prenatal care from her primary obstetrician Dr. David Galvan. Near the end of her pregnancy, she also saw maternal-fetal medicine specialist Dr. Monga. Dr. Monga states in her brief that she specializes in prenatal care of patients with diabetes and other high risk diseases, and that Dr. Galvan consulted her group practice to assist him in the prenatal assessment and management of Argelica's diabetes.[2] Dr. Monga saw Argelica three times: on March 3, March 10, and March 13.

         On March 13, Dr. Monga recommended inducement of labor for preeclampsia and diabetes. Dr. Galvan admitted Argelica for induction and was assisted in the delivery by his colleague Dr. Jane Starr. During delivery, J.P. became entrapped in the birth canal and suffered shoulder dystocia[3] and cord occlusion. Medical records indicate that J.P. 's head was exposed while the remainder of his body remained stuck in the birth canal for 29 minutes. Dr. Starr ultimately employed a procedure to pull the infant out of the birth canal and, when delivered, J.P. had extensive facial and scalp bruising. He also did not have a heartbeat for 15 minutes and had to be resuscitated. J.P. weighed 10 pounds and 13.5 ounces at birth.

         The Perezes maintain that J.P. suffered permanent brachial plexus and brain injuries during his delivery and brought this lawsuit against Dr. Galvan, Dr. Starr, their medical practice, Southwest Obstetrical/Gynecological Associates LLP, Methodist Sugarland Hospital, The Methodist Hospital, the hospital nurses involved in the delivery, and Dr. Monga.[4] They assert that, given the size of J.P. before birth, the doctors should have recommended earlier delivery or delivery by cesarean section. Specifically as it relates to Dr. Monga, the Perezes pleaded that Dr. Monga was negligent in (1) failing to properly perform the medical treatment necessary and according to standards set by the medical profession; (2) failing to recognize J.P.'s size and risk factors; (3) failing to measure the fetal head and fetal abdomen, which would have been a risk factor for shoulder dystocia; and (4) failing to order a cesarean section that, if performed promptly, would have avoided the harm.

         Pursuant to the requirements of the Texas Medical Liability Act, [5] the Perezes timely filed three expert reports. One report, by nurse Gayle M. Huelsmann R.N., is not involved in this appeal. The second report, by pediatric neurologist Dr. Garrett C. Burris, addressed the causation element of the injuries sustained by J.P. Dr. Monga did not object to the Burris report, but contends that it does not support causation as to the claims asserted against her. The third report, by maternal-fetal medicine specialist Dr. Van Reid Bohman, addressed the standards of care, breach of those standards, and, according to the Perezes, causation, as to the claims asserted.

         Dr. Monga timely filed objections to the Bohman report and the Perezes then served an amended report. Dr. Monga objected again to the amended report and filed a motion to dismiss the claims, contending that the report is inadequate. The trial court held a hearing on the objections and motion and, after taking the motion under advisement, denied the motion to dismiss. Dr. Monga timely filed this interlocutory appeal under section 51.014(a)(10) of the Texas Civil Practice and Remedies Code.[6]

         Analysis

         In one issue, Dr. Monga raises six grounds challenging the expert report of Dr. Bohman and the trial court's denial of the motion to dismiss. In our analysis, we group the grounds into three categories: (1) challenges to Dr. Bohman's qualifications to render opinions; (2) challenges to the description of the relevant standard of care and the criticism of Dr. Monga as speculation and conjecture; and (3) challenges to the causation opinions of Dr. Bohman as conclusory and speculative. According to Dr. Monga, the expert reports lack any basis for the trial court to conclude that the claims against Dr. Monga have merit, equate to no report rather than a deficient report, and that dismissal, rather than an extension, is the only option.

         A. Standards of review and applicable law

         We review a trial court's ruling on the adequacy of an expert report under section 74.351 for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam); Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to any guiding rules or principles. Bowie Mem 7 Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). As a reviewing court on matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court merely because we would have ruled differently. See Wright, 79 S.W.3d at 52; Lucas v. Clearlake Senior Living Ltd. P'ship, 349 S.W.3d 657, 660 (Tex. App.-Houston [14th Dist] 2011, no pet.). When reviewing decisions that fall within the trial court's discretion, "[c]lose calls must go to the trial court." Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam).

         The Texas Medical Liability Act requires a party asserting a healthcare liability claim to serve, within the 120th day after each defendant's original answer is filed, an expert report for each physician or healthcare provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a). 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 applicable standards of care, the manner in which the care rendered by the physician . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code § 74.35l(r)(6). If a plaintiff does not timely serve an expert report that is an "objective good faith effort"[7] to provide a fair summary of the required elements, the trial court must dismiss the healthcare claim on motion of the affected healthcare provider. See id. §§ 74.351(b), (/); Miller v. JSCLake Highlands Operations, LP, No. 16-0986, 2017 WL 6391215, at *2 (Tex. Dec. 15, 2017) (per curiam); Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.- Houston [14th Dist] 2010, pet. denied). If the report has not been timely served because "elements of the report are found deficient, " the court may grant a thirty-day extension to cure the deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c); Gannon, 321 S.W.3d at 885.

         While the expert report need not marshal all of the plaintiffs proof, it must include the expert's opinions on the three statutory elements of standard of care, breach, and causation. Palacios, 46 S.W.3d at 878; Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.-Houston [14th Dist.] 2008, no pet.). The plaintiff may satisfy these requirements by serving more than one expert report regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or healthcare provider. Tex. Civ. Prac. & Rem. Code § 74.35l(i); see Miller, 2017 WL 6391215, at *2 (citing Tex. Civ. Prac. & Rem. Code § 74.35l(i) and TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 43 (Tex. 2013)); Packard v. Guerra, 252 S.W.3d 511, 526 (Tex. App.-Houston [14th Dist.] 2008, pet. denied). Information in the report can be informal, need not use any "magic words, " and does not have to meet the same standards as evidence offered in a summary judgment proceeding or trial. See Kelly, 255 S.W.3d at 672 ("The expert report is not required to prove the defendant's liability."); see also Jelenik v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (stating no magic words are required). Bare conclusions or speculation will not suffice, and the information relevant to the inquiry must be contained within the four corners of the expert report. See Wright, 79 S.W.3d at 52-53; Humble Surgical Hosp., LLC v. Davis, No. 14-16-01026-CV, 2017 WL 4679280, at *8 (Tex. App.-Houston [14th Dist] Oct. 17, 2017, no pet. h.) ("Conclusions without explanation or connection to facts are not sufficient.").

         To constitute a good faith effort to comply with the expert-report requirement, the report must provide enough information to fulfill two purposes of the statute: (1) the report must inform the defendant of the specific conduct the plaintiff has called into question and (2) the report must provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879; see also Miller, 2017 WL 6391215, at *2.

         B. The expert reports

         Dr. Monga challenges the second Palacios element and contends that the expert reports of Dr. Bohman and Dr. Burris do not provide the trial court with any reasonable basis to conclude that the claims against her have merit. To aid our analysis and provide context for Dr. Monga's arguments on appeal, we quote portions of both reports.

         Dr. Bohman's 16-page report provides in pertinent part as follows:

         2. Standard of Care and Breach by Manju Monga, MD

Standard: The standard of care for physicians providing Maternal Fetal Medicine services is to monitor and assess the mother and the fetus and to make a determination as to whether the mother and the fetus have a higher chance of a positive outcome through vaginal or cesarean delivery. When presented with a fetus too large for a safe, vaginal delivery, the standard of care requires the obstetrician to recommend a delivery by cesarean section. The standard of care requires obstetricians to take a patient's full medical history and prenatal care into account determining the safest method of delivery. Regardless of whether the obstetrician is the "primary" or "consulting" physician, the duties do not change regarding recommendations for the patient. It [is] reasonable to appreciate that a primary obstetrician will follow the advice of a consulting maternal fetal medicine specialist.
Breach: Dr. Monga reviewed the March 3, 2014 ultrasound, which demonstrated that fetal weight was already 3, 819 grams, or 8lbs 7ozs, a gain of 1, 487 grams or 3lbs 5ozs in four weeks. The fetal weight and abdominal circumference exceeded the 95th percentile, and the head circumference was only in the 31st percentile. Fetal weight gain increases after the 35th week of gestation, with the average fetus gaining Vi pound, or 230 grams, per week for the next four weeks. Mrs. Perez's infant had gained an average of 371 grams per week since February 3, 2014. Dr. Monga was aware that Mrs. Perez's pregnancy was complicated by gestational diabetes and controlled by medication, including insulin. As stated above, excess insulin produced during gestational diabetes acts as a growth hormone that causes the fetus to grow abnormally large. Based on her baby's rapid growth, Mrs. Perez was going to have a fetal weight that exceeded 4, 000 grams in less than one week. Dr. Monga knew that [J.P.] was likely to be macrosomic, weighing over 4, 000 grams, based on the current scans. Dr. Monga should have realized that if Mrs. Perez was allowed to carry her baby even a week longer, there was a substantial risk to the baby. Dr. Monga failed to recommend either immediate induction of delivery on March 3, 2014 or delivery by cesarean, breaching of [sic] the standard of care. Further, despite also knowing that the abdominal circumference was substantially larger than the circumference of the head, Dr. Monga did not recommend a delivery by cesarean section or immediate induction, also a breach of the standard of care. Mrs. Perez's history shows that she delivered her second child weighing 8lbs 11 ozs with no listed complications. Had Mrs. Perez delivered on this date, either vaginally or by cesarean section, her baby would not have grown to 10 lbs 13 ozs and dystocia would likely not have occurred and neither would have the further resulting permanent injuries to [J.P.].
Regardless, Dr. Monga continued to breach the standard of care. On March 10, 2014, one week after her previous visit, Mrs. Perez was again seen by Dr. Monga. Fetal growth measurements were not taken despite Mrs. Perez['s] well-documented high risk for fetal macrosomia and shoulder dystocia. . . .During this March 10, 2014 visit, Dr. Monga again does not recommend Mrs. Perez be scheduled for delivery. She also fails to make any recommendation for Mrs. Perez to deliver via cesarean. Instead, Dr. Monga agrees with Dr. Galvan to deliver [J.P.] the following week. . . .Dr. Monga breached the standard of care when she did not take fetal growth measurements to obtain a more accurate estimation of [J.P.]'s weight and measurements. Dr. Monga then breached the standard of care when she failed to recommend Mrs. Perez deliver immediately and via cesarean section.
And yet the breaches of the standard continued. On March 13, 2014, Dr. Monga saw Mrs. Perez for a third time. Again, Dr. Monga failed to take any fetal growth measurements when she performed an ultrasound. The records indicate that Dr. Monga finally recommended Mrs. Perez be induced for preeclampsia and diabetes. Dr. Monga breached the standard of care again when she failed to recommend a cesarean delivery for Mrs. Perez despite knowledge of Mrs. Perez's high risk for fetal macrosomia and shoulder dystocia based on her prenatal records and numerous ultrasound scans.
Opinion: It is my opinion that based on the documented size of [J.P.] Dr. Monga violated the standard of care by failing to recommend that Mrs. Perez deliver via cesarean section, when she had three opportunities to do so. Predicting an estimated fetal weight further into a mother's gestation can be done using the fetal growth percentiles provided when measurements are taken. A fetus that is measuring above the 95th percentile in the last month of gestation can be expected to grow along the 95th percentile growth line within the next week. Dr. Monga could have easily anticipated the estimated fetal weight of [J.P.] by tracking the progress on a fetal growth chart. When presented with a baby of this size, growing at an above-average rate, and with an abdominal circumference substantially larger than the head circumference, and with the mother's history of diabetes and her small stature, Dr. Monga should have anticipated that fetal macrosomia and shoulder dystocia was likely to occur if Mrs. Perez delivered vaginally. The standard of care required Dr. Monga to recommend a cesarean section. Had she done so, the dystocia that went unresolved for 29 minutes during delivery and the subsequent injuries to [J.P.] would [sic] been avoided.

         CONCLUSION

I am familiar with the terms "negligence, " "ordinary care, " and "proximate cause." Mrs. Perez should have been better monitored during her pregnancy for diabetes, which would have resulted in a normal sized baby, but Dr. Galvan failed to do so. Mrs. Perez should have been informed of the risks posed to her and her infant if a vaginal delivery occurred and she should have been given the recommendation to have a cesarean. Instead, Dr. Galvan and Dr. Monga decided on a vaginal delivery when a cesarean was plainly called for. Even though shoulder dystocia occurred, Mrs. Perez's baby could have still been delivered without any permanent injuries if the Hospital nurses, including Nurse Menard and Nurse Martin; Dr. Galvan; and Dr. Stan-had not breached the standards of care required in shoulder dystocia situations as discussed above. It is my opinion that they ...

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