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Chava v. Hubbard

Court of Appeals of Texas, Fourteenth District

April 24, 2018


          On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2016-35351

          Panel consists of Justices Jamison, Busby, and Donovan.


          J. Brett Busby Justice

         In this interlocutory appeal, Dr. Ramakrishna Chava challenges the trial court's order denying his motion to dismiss the medical malpractice claim filed by appellees Joshua Hubbard, Rebecca Meason and Ann Hubbard, Individually and on Behalf of the Estate of Jonathan Hubbard. Dr. Chava asserts in one issue that appellees failed to serve an expert report complying with section 74.351 of the Texas Civil Practice and Remedies Code because the amended expert report they served was conclusory and inadequate with respect to causation. We hold that the trial court did not abuse its discretion in denying Dr. Chava's motion to dismiss because the amended expert report states with sufficient detail the causal relationship between the alleged failure to meet the standard of care and the alleged harm resulting in Jonathan Hubbard's death. We therefore overrule Dr. Chava's sole issue and affirm the trial court's order.


         When Jonathan Hubbard, age 67, developed a sudden onset of mid-back pain radiating to his left shoulder, he went to a stand-alone emergency room affiliated with Kingwood Medical Center.[2] Jonathan arrived at the emergency room at 9:17 p.m. and was seen by Dr. Naim El-Aswad. Jonathan did not report a history of heart disease, but he did have coronary risk factors of age, chronic hypertension, hyperlipidemia, and excess weight. An electrocardiogram performed at 9:21 p.m. showed normal sinus rhythm but other abnormalities the expert interpreted as "consistent with acute true posterior myocardial infarction." Initial laboratory studies showed an elevated cardiac enzyme level. CT scans of his chest and abdomen came back normal.

         Jonathan was given aspirin, nitroglycerin topically, and pain medications. As of 10:03 p.m., Jonathan reported continued pain "that comes and goes in back, " and at 10:24 p.m., Dr. El-Aswad ordered Jonathan admitted to telemetry. An order was also given for a cardiologist to be called, but the record does not show whether the call was placed.

         Admission to telemetry required transportation of Jonathan to the main hospital at Kingwood Medical Center by ambulance. For unknown reasons, the ambulance was not called until 11:28 p.m., and did not leave for the hospital until 12:01 a.m. Jonathan arrived at Kingwood Medical Center at 12:16 a.m. By the time he reached the hospital, Jonathan continued to complain of back pain and arm pain and had progressed to nausea and vomiting. He was first seen at the hospital at 12:37 a.m. and had a primary diagnosis of "Back pain; R/O myocardial infarction."[3]

         Jonathan was placed in a telemetry room "in observation status under the care of" Dr. Chava, but it is unclear whether Dr. Chava ever saw Jonathan. Although Jonathan had been under continuous electrocardiographic monitoring in the emergency room and during transport by ambulance, he did not receive electrocardiographic monitoring on admission to the hospital. In addition, the telemetry room in which Jonathan was placed did not have a telemetry monitor set, so the nurse that saw Jonathan on arrival left the room to obtain a monitor set. When the nurse returned to the room approximately twenty to thirty minutes later, she discovered that Jonathan had gone into cardiac arrest unwitnessed by any hospital staff. During the interval the nurse left him alone, Jonathan was "completely unmonitored by medical staff or EKG telemetry." Though cardiac pulmonary resuscitation began at 1:03 a.m., Jonathan remained without a pulse and was pronounced dead at 1:46 a.m. The death certificate states the cause of death as atherosclerotic cardiovascular disease, and an autopsy showed 95-99% obstruction in his right main and left anterior descending coronary arteries.

          Appellees sued Dr. Chava, Dr. El-Aswad, and Kingwood Medical Center and related entities.[4] Appellees asserted wrongful death and survival claims based on negligence and gross negligence. Pursuant to section 74.351, appellees served the expert report of Dr. Paul Dlabal, a board-certified internist and cardiologist. Dr. Dlabal discussed the conduct of all defendants. He opined, among other things, that "the fact that, the patient's arrest occurred in the absence of observation renders it within the category of 'unwitnessed cardiac arrest, ' which is a 'never' event to occur in a hospital cardiac-care setting." With regard to Dr. Chava, he opined that the lack of physician attendance by Dr. Chava fell outside of the applicable standards of care in the emergency situation and was a proximate cause of Jonathan's death.

         Dr. Chava filed objections to the report and a motion to dismiss, asserting that the report failed to state the standard of care applicable to Dr. Chava, was vague and conclusory with regard to breach of the standard of care, and was vague and conclusory with regard to causation. The trial court sustained the objections without stating its reasons, but denied the motion to dismiss and gave appellees thirty days to cure the deficiencies in the report.

         Appellees then filed an amended report of Dr. Dlabal. In the amended report, Dr. Dlabal added additional information and opinions regarding Dr. Chava. As discussed in more detail below, Dr. Dlabal opined that Dr. Chava should have seen the patient on arrival, assessed symptoms, properly and timely addressed the conditions encountered to begin stabilization, and referred the patient to a cardiologist for more definitive treatment. Dr. Dlabal listed additional treatments that could have been initiated if Dr. Chava had timely examined the patient and opined that the patient would not have progressed to cardiac arrest had the standards of care been met.

         Dr. Chava objected to the amended report, stating that the report remained vague and conclusory as to causation. Dr. Chava argued, among other things, that "but for" causation was missing because the report failed to address how the death would have been avoided even if Dr. Chava had initiated any treatment at his first opportunity. The trial court overruled the objections and denied Dr. Chava's motion to dismiss. This appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2017).


         Dr. Chava argues that the trial court abused its discretion in denying dismissal, attorneys' fees, and costs because Dr. Dlabal's opinion is vague and conclusory with respect to causation. For the reasons set forth below, we conclude the trial court did not abuse its discretion.

         I. Standard of review and applicable law

         We review for an abuse of discretion a trial court's ruling on a motion to dismiss for failure to comply with section 74.351. Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

         The Texas Medical Liability Act requires a party asserting a healthcare liability claim to file an expert report and serve it on each party not later than the 120th day after the petition is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). Under the statute, an expert report means a written report 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 § 74.351(r)(6). If a plaintiff does not timely serve an expert report meeting the required elements, the trial court must dismiss the healthcare claim on motion of the affected healthcare provider. See id. §§ 74.351(b), (l); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam); Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). If elements of the report are found deficient, as opposed to absent, 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.

         Although the expert report need not marshal all of the plaintiff's 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 878-79; Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.-Houston [14th Dist.] 2008, no pet.). The report need not use "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 Jelinek v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (stating no magic words are required). Bare conclusions or speculation, however, will not ...

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