Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-235127
consists of Chief Justice Radack and Justices Massengale and
Michael Massengale Justice
an interlocutory appeal from the denial of a motion to
dismiss a health care liability claim based on the adequacy
of an expert report. Dr. Arturo Armenta raises three
arguments on appeal. First, he argues that the expert report
filed by appellees was insufficient because the expert was
not qualified. Second, he argues that the report failed to
meet the statutory requirements regarding breach and
causation. Third, he argues that due to these deficiencies,
the report did not qualify as an expert report under the
statute, and the trial court should have dismissed the claims
response, the appellees contend that the expert was qualified
and the report was sufficient. They also argue that Dr.
Armenta waived his issue about causation.
expert report at issue in this interlocutory appeal provides
the background facts. The medical records are not in the
appellate record, and we rely upon the factual statements in
the report for the limited purpose of this appeal. See
Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.
2002). Dr. Arturo Armenta performed reconstructive surgery on
Isonetta Jones, who previously had undergone a bilateral
mastectomy. The day after the reconstructive surgery,
complications required Dr. Armenta to perform emergency
surgery to restore blood circulation. About ten minutes after
completion of the emergency surgery, while Jones was
intubated, her oxygen level dropped to 85% and her
spontaneous respirations decreased. Dr. Armenta remained in
the operating room until after Jones was extubated. She was
extubated and taken to the intensive care unit. She arrived
seven minutes after extubation, and she was unresponsive and
hypoventilating. She experienced respiratory and cardiac
arrest, and although she was resuscitated, she suffered brain
damage from prolonged deprivation of oxygen. Based on medical
advice that Jones would not recover from her brain injury,
mechanical life support was withdrawn, and she passed away.
estate, her husband, and her children sued the hospital,
three anesthesia practices, Dr. Armenta, and Dr. Gary Flores,
the anesthesiologist who provided care during the emergency
surgery. The petition alleged that Jones was extubated with
Dr. Armenta's "approval, " despite her shallow
and intermittent breathing. It further alleged that Dr.
Armenta failed to exercise ordinary care by failing to
properly monitor her, prematurely extubating her, and
"failing to timely resuscitate" her.
appellees served Dr. Armenta with an expert report in the
form of a letter written by Dr. William James Mazzei, a
board-certified anesthesiologist who is licensed in
California. The report recited Dr. Mazzei's credentials
and summarized relevant medical records. It stated that Dr.
Flores and a nurse anesthetist violated the standard of care
by extubating Jones before she was able to breathe on her
own. The report stated that "Dr. Armenta, who was
present and participating in her care . . . breached and
violated the standard of care by failing to immediately
ventilate the patient." It further opined that "the
anesthesiologist, certified nurse anesthetist, surgeon and
any other healthcare professional involved in the extubation
of a patient must be able to immediately ventilate the
patient if respiratory depression and/or respiratory arrest
occurs." Finally Dr. Mazzei opined that the failure of
Dr. Armenta and the other defendants "to immediately
ventilate the patient" caused oxygen deprivation and
brain injury, ultimately resulting in Jones's death.
Armenta timely filed objections to the report. He argued that
Dr. Mazzei's report was insufficient as to the standard
of care and breach of the standard of care. In particular, he
argued that the report did not demonstrate Dr. Mazzei's
expertise on the standards of care applicable to a plastic
surgeon. Dr. Armenta asserted that Dr. Mazzei's
statements were conclusory regarding the standards of care
and insufficient as to breach for failing to distinguish the
actions of each defendant.
trial court overruled Dr. Armenta's objections, and it
later denied his motion to dismiss, which asserted that he
had not been served with an expert report that complied with
the statute. Dr. Armenta appealed.
Armenta challenges the trial court's denial of his motion
to dismiss, raising three issues. First, he asserts that Dr.
Mazzei is not a qualified expert. In particular, he asserts
that Dr. Mazzei's credentials as an anesthesiologist do
not qualify him to offer opinions about the standards of care
applicable to a plastic surgeon. Second, Dr. Armenta argues
that the expert report fails to meet the statutory standards
for showing breach of the standard of care and causation.
Third, he contends that the report neither satisfied the
statutory requirements nor merits a conclusion that it was a
good-faith effort to comply with the statute. Accordingly,
Dr. Armenta urges this court to reverse the ruling of the
trial court and render a judgment of dismissal.
response, the appellees contend that Dr. Mazzei is qualified
and the report is adequate. They also argue that Dr. Armenta
waived any challenge to the adequacy of the report as to
causation by failing to make that objection in the trial
plaintiff asserting a health care liability claim must serve
each defendant physician or health care provider with one or
more expert reports and a curriculum vitae of each expert
whose opinion is offered to substantiate the merits of the
claims. See Tex. Civ. Prac. & Rem. Code §
74.351(a), (i); TTHR Ltd. P'ship v. Moreno, 401
S.W.3d 41, 42 (Tex. 2013). An expert report must provide: (1)
"a fair summary of the expert's opinions . . .
regarding applicable standards of care, " (2) a
statement identifying "the manner in which the care
rendered by the physician or health care provider failed to
meet the standards, " and (3) an explanation of
"the causal relationship between that failure and the
injury, harm, or damages claimed." Tex. Civ. Prac. &
Rem. Code § 74.351(r)(6); see TTHR Ltd.
P'ship, 401 S.W.3d at 44. Although the expert report
"need not marshal every bit of the plaintiff's
evidence, " Jernigan v. Langley, 195 ...