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Arturo Armenta, M.D. v. Jones

Court of Appeals of Texas, First District

March 1, 2018

ARTURO ARMENTA, M.D., Appellant
v.
ROBERT JONES, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF ISONETTA JONES, DECEASED AND ON BEHALF OF THE ESTATE OF ISONETTA JONES, DECEASED; TRISTON JONES-MAXIE, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF ISONETTA JONES, DECEASED, Appellees

         On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 16-DCV-235127

          Panel consists of Chief Justice Radack and Justices Massengale and Brown.

          MEMORANDUM OPINION

          Michael Massengale Justice

         This is 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 against him.

         In 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.

         We affirm.

         Background

         The 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.

         Jones's 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.

         The 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.

         Dr. 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.

         The 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.

         Analysis

         Dr. 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.

         In 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 court.

         A 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 ...


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