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Otero v. Saldivar

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 24, 2018

FERNANDO JAVIER OTERO, M.D., Appellant,
v.
RACHEL SALDIVAR AND ROBERTO GARZA, JR., INDIVIDUALLY AND AS NEXT FRIENDS OF XXX, A MINOR, Appellees.

          On appeal from the 370th District Court of Hidalgo County, Texas.

          Before Justices Rodriguez, Contreras, and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS Justice

         In this interlocutory appeal, appellant Fernando Javier Otero, M.D., challenges the denial of his motion to dismiss the health care liability claim of appellees Rachel Saldivar and Roberto Garza Jr., individually and as next friends of P.G., [1] a minor. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(9); 74.351(a), (b) (West, Westlaw through 2017 1st C.S.). By one issue, Dr. Otero argues that the trial court should have dismissed the health care liability claim because the plaintiffs' expert report did not adequately address proximate causation. We affirm.

         I. Background

         On October 8, 2014, Rachel was admitted emergently at 11:45 p.m. to Doctors Hospital at Renaissance in Edinburg, Texas. Rachel was over thirty-seven weeks pregnant with P.G. and complained of vaginal bleeding and lower right abdominal pain. Rachel, however, was not evaluated in person by a physician until almost nine hours after her admission. During that time, P.G.'s vitals deteriorated and indicated that P.G. was not receiving enough oxygen. P.G. was eventually delivered via cesarean section at 9:22 a.m. on October 9, 2014, but without a heartbeat, and she was successfully resuscitated. Subsequent MRI scans showed P.G. sustained hypoxic ischemic encephalopathy (HIE)-a severe, permanent brain injury caused by a lack of oxygen and blood flow. P.G. spent forty-six days after birth in neonatal intensive care and was diagnosed with HIE, epilepsy, bronchiolitis, and uncontrolled seizures.

         Two physicians oversaw Rachel's care from the time she was admitted at the hospital until P.G. was delivered: (1) Carlos Eduardo Puig, M.D., who was the obstetrician and gynecologist responsible for Rachel from the beginning of her emergency care on October 8, 2014 until early the next morning; and (2) Dr. Otero, an obstetrician and gynecologist, who was called to evaluate Rachel at 8:19 a.m. on October 9, 2014, evaluated her at 8:31 a.m., and subsequently performed a cesarean section on her at 9:22 a.m. Three hospital nurses also looked after Rachel during this time.

         Rachel and Roberto filed suit against Doctors Hospital at Renaissance, Dr. Puig, and Dr. Otero for negligence resulting in the injuries suffered by P.G.; however, only their claim against Dr. Otero is relevant for the purpose of this appeal.

         Pursuant to the Texas health care liability statute, Rachel and Roberto served Dr. Otero with an expert report authored by Mark D. Akin, M.D. See id. § 74.351(a). Dr. Otero filed objections to Dr. Akin's report and a motion to dismiss, and Rachel and Roberto then obtained leave from the trial court to file an amended expert report. According to Dr. Akin's amended report, Dr. Otero should have ordered a cesarean section immediately at 8:20 a.m. when he was informed over the phone of Rachel's condition and P.G.'s vitals. Instead, Dr. Otero examined Rachel at her bedside at 8:31 a.m. and decided to perform an elective surgery on another patient before performing Rachel's cesarean section at 9:22 a.m. Dr. Akin explains Dr. Otero's actions resulted in a delay of thirty-two minutes in P.G.'s delivery, after accounting for the thirty-minute window it takes from "decision to incision."[2] Dr. Otero again filed objections to Dr. Akin's report, which were overruled, and a second motion to dismiss, which was denied. This interlocutory appeal followed.

         II. Standard of Review

         We review a trial court's decision on the sufficiency of an expert's report and on a motion to dismiss under the expert-report rule for an abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351. A court abuses its discretion if it acts in an arbitrary or unreasonable manner and without reference to any guiding rules or principles. Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 911 (Tex. 2017). "When reviewing matters committed to the trial court's discretion, 'the reviewing court may not substitute its judgment for that of the trial court.'" Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 512-13 (Tex. 2017) (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).

         III. Applicable Law

         Section 74.351 of the Texas Civil Practice and Remedies Code provides that a plaintiff in a health care liability suit must serve the defendant with a statutorily-compliant expert report accompanied by the expert's curriculum vitae. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. If a plaintiff fails to do so within 120 days of filing suit, the statute provides that the trial court must dismiss the claim with prejudice on the defendant's motion. See id. § 74.351(a), (b)(2). The report must include the expert's opinion on each of the three elements: standard of care, breach, and causation. Jelinek, 328 S.W.3d at 539. The goal is "to deter frivolous lawsuits by requiring a claimant early in litigation to produce the opinion of a suitable expert that his claim has merit." Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (quoting Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011)). Therefore, "[a]n expert report . . . is a low threshold a person [bringing a claim] against a health care provider must cross merely to show that his claim is not frivolous." Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012).

         "A trial court must sustain a challenge to a report's adequacy if the report does not represent an objective good faith effort to provide a fair summary of the applicable standard of care, the defendant's breach of that standard, and how that breach caused the patient's harm." Miller, 536 S.W.3d at 513 (internal quotation marks omitted); see Tex. Civ. Prac. & Rem. Code. Ann. § 74.351(l), (r)(6). "A good-faith effort must 'provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit.'" Miller, 536 S.W.3d at 513 (quoting Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). All information needed for this inquiry is found within the four corners of the expert report, which need not marshal all of the plaintiff's proof. Jelinek, 328 S.W.3d at 539 (quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 879, 879 (Tex. 2011)).

         As to the causation element, the expert report must explain how and why the healthcare provider's breach proximately caused the plaintiff's injury. Zamarripa, 526 S.W.3d at 460. "Unquestionably, a plaintiff asserting a health care liability claim based on negligence, who cannot prove that her injury was proximately caused by the defendant's failure to meet applicable standards of care, does not have a meritorious claim." Id. There is no requirement that the expert use any particular words, such as "proximate cause, " "foreseeability, " or "cause in fact"; however, the expert's explanation of the plaintiff's injuries must be more than a mere conclusory assertion. See id. Thus, "the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)); Jelinek, 328 S.W.3d at 539. In our inquiry, we are precluded from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Fulp v. Miller, 286 S.W.3d 501, 509 (Tex. App.-Corpus Christi 2009, no pet.).

         IV. Dr. Akin's Expert Report

          By his sole issue, Dr. Otero makes several arguments in support of his claim that Dr. Akin's expert report does not adequately address proximate causation. Dr. Otero, however, does not dispute the applicable standards of care or breaches thereof as articulated by Dr. Akin. Thus, to aid our analysis and provide ...


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