Appeal from the 281st District Court Harris County, Texas
Trial Court Cause No. 2016-35351
consists of Justices Jamison, Busby, and Donovan.
Brett Busby Justice
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.
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. 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.
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.
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
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. 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.
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.
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.
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
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.
Standard of review and applicable law
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).
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.
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