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Schwartz v. Fipps

Court of Appeals of Texas, Fourth District, San Antonio

May 2, 2018

Charles SCHWARTZ III, D.O., Appellant
Jake FIPPS and Miriam Fipps, Appellees

          From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2015-CVT-003956 D1 Honorable Joe Lopez, Judge Presiding

          Sitting: Marialyn Barnard, Justice; Patricia O. Alvarez, Justice Irene Rios, Justice


          Patricia O. Alvarez, Justice

         Appellee Jake Fipps developed an anastomotic leak after his gastric bypass surgery. Fipps and his wife (Appellees) sued Appellant Charles Schwartz III, D.O., the bariatric surgeon, alleging that the "surgical procedure failed." Dr. Schwartz challenged Appellees' initial and supplemental expert reports, and the trial court dismissed the suit for an inadequate report. In Appellees' motion for new trial, they argued the supplemental report showed their theory of the case had changed to a postoperative-care complaint, and their expert was qualified to opine. The trial court granted the motion for new trial, denied Dr. Schwartz's motion to dismiss, and Dr. Schwartz appeals.

          Because the only claim in Appellees' live pleading was the failed surgical procedure, and the expert reports opined on postoperative care-not the standard of care, breach, or causation for gastric bypass surgery-we reverse the trial court's order. We grant Dr. Schwartz's motion to dismiss, render judgment that Appellees take nothing, dismiss Appellees' claim with prejudice, and remand this cause to the trial court for an award of Dr. Schwartz's reasonable attorney's fees and court costs.


         A. Surgery and Complaints

         Dr. Schwartz performed laparoscopic Roux-en-Y gastric bypass surgery on Jake Fipps in Doctor's Hospital of Laredo, in Laredo, Texas on October 10, 2013. Fipps was discharged two days later, but he experienced abdominal pain and other symptoms. Fipps sought treatment from Dr. Schwartz, but because Dr. Schwartz was out of town, Fipps was seen by Dr. Luis Reyes.

         B. Postoperative Treatment

         Dr. Reyes admitted Fipps to McAllen Heart Hospital on October 16, 2013, where Fipps was found to have sepsis, intra-abdominal infection with peritonitis in the left upper quadrant, and intra-abdominal abscess due to gastric anastomotic leak. The next day, Dr. Reyes performed laparoscopic lysis of adhesions, laparoscopic drainage of left upper quadrant abscess, revision of the jejunojejunostomy, and repair of a gastric leak and stent placement in the esophagogastric area.

         C. Lawsuit, Expert Reports, Case Dismissed

         On December 17, 2015, Appellees sued Doctor's Hospital of Laredo[1] and Dr. Schwartz for medical malpractice. They alleged that "[t]he surgical procedure failed, causing harm to Jake Fipps, and this was due to the negligence of the Defendants . . . [and this] negligence was a proximate cause of injuries and damages to the Plaintiff, Jake Fipps." Appellees filed their "Initial Expert Report" of Dr. William F. Larkin, and Dr. Schwartz objected to it. Dr. Schwartz argued that Dr. Larkin was not qualified to opine on bariatric surgery, and the report failed to give a fair summary of the standard of care for gastric bypass surgery, the alleged breach, or causation. The trial court granted Appellees a thirty-day extension of time to amend Dr. Larkin's report. Dr. Larkin filed a Supplemental Report, and Dr. Schwartz filed supplemental objections to the sufficiency of the reports and moved to dismiss the case based on defective expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2017). The trial court sustained Dr. Schwartz's objections to the expert reports and granted the motion to dismiss.

         D. Motion for New Trial Granted, Interlocutory Appeal

         Appellees filed a motion for new trial. In their motion, Appellees stated that with Dr. Larkin's supplemental report, they had "changed their theory of the case, and are now staking their claims on the medical emergency that arose after the surgery, . . . [and] Dr. Larkin's reports are competent evidence on the [standard for] post-operative care and . . . Dr. Schwartz's alleged negligence." Dr. Schwartz responded that the supplemental "report does not adequately address standard of care or causation" for gastric bypass surgery, "simply makes conclusory accusations" pertaining to the alleged breaches of the standard of care, and fails to show Dr. Larkin is "qualified to be an expert in this case."

         The trial court granted Appellees' motion for new trial and denied Dr. Schwartz's motion to dismiss. Dr. Schwartz filed a notice of interlocutory appeal. He complains that the trial court erred in denying his motion to dismiss based on the alleged inadequacy of the expert reports. See id. § 74.351(b), (1), (r)(6).

         Standard of Review

         We review a trial court's ruling on a motion to dismiss-that challenges the adequacy of an expert report-for an abuse of discretion. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); accord In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008) (orig. proceeding).

         Applicable Law

         An expert report must fulfill two purposes: it must (1) "inform the defendant of the specific conduct the plaintiff has called into question, " and (2) "provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 879; accord Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). "[T]he report must include the required information within its four corners." Wright, 79 S.W.3d at 53; accord Palacios, 46 S.W.3d at 878.[2] "[O]missions may not be supplied by inference." Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011).

         "It is not sufficient for an expert to simply state that he or she knows the standard of care and concludes it was [or was not] met." Palacios, 46 S.W.3d at 880 (alteration in original). The expert report must state the standard of care: "Identifying the standard of care is critical: Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Id. "Mere reference to general concepts regarding assessment, monitoring, and interventions are insufficient as a matter of law." Regent Health Care Ctr. of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex. App.-El Paso 2008, no pet.) (citing Palacios, 46 S.W.3d at 879).

         If a physician challenges the expert report as inadequate, "[the] court shall grant [the] motion . . . only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1); accord Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).

         Under section 74.351(r)(6), an expert's report "must include the expert's opinion on each of the elements identified in the statute, " including the standard of care. Palacios, 46 S.W.3d at 878; see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Wright, 79 S.W.3d at 52. An expert report that omits the standard of care applicable to the claimed error "cannot constitute a good faith effort to meet the statutory requirements." See Jernigan, 195 S.W.3d at 94 (citing Palacios, 46 S.W.3d at 879). If the expert report does not constitute a good faith effort, and the deadline to file a compliant report has passed, the trial court has no discretion except to grant the motion ...

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