Appeal from the 281st District Court Harris County, Texas
Trial Court Cause No. 2016-54818
consists of Chief Justice Frost and Justices Donovan and
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
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.
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.
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. Dr. Monga saw Argelica three times: on
March 3, March 10, and March 13.
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 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
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. 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
to the requirements of the Texas Medical Liability Act,
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.
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
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.
Standards of review and applicable law
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).
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" 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.
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.").
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.
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.
Bohman's 16-page report provides in pertinent part as
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
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.
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 ...