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Propath Services, LLC v. Russ

Court of Appeals of Texas, Fifth District, Dallas

June 19, 2018

PROPATH SERVICES, LLC AND TERRY L. BARRETT, M.D., Appellants
v.
AMANDA RUSS, Appellee

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-02637

          Before Justices Francis, Evans, and Boatright

          MEMORANDUM OPINION

          JASON BOATRIGHT JUSTICE

         Propath Services, LLC and Terry L. Barrett, M.D. appeal the denial of their motion to dismiss, which asserted that appellee, Amanda Russ, failed to comply with the Medical Liability Act's expert-report requirement. The sole issue in this appeal is whether appellee's expert report sufficiently addresses the causal link between appellants' failure to meet applicable standards of care and the claimed injury. Finding no abuse of discretion by the district court, we affirm.

         BACKGROUND

         Appellee is the wife of the late Stephen Russ. On January 29, 2015, Russ consulted his dermatologist, Dr. Peter Morrell, M.D., regarding a lesion on his right check. Dr. Morrell performed a biopsy and sent the sample to appellant Propath. Appellant Barrett, also a dermatologist, evaluated the biopsy and diagnosed Russ as having invasive squamous cell carcinoma. On February 27, 2015, Dr. Morrell performed a surgical procedure on Russ's cheek to remove the cancerous lesion. Russ followed up with Dr. Morrell and was told during his May 29, 2015 appointment that he did not need to be seen again for a year.

         In May 2016, Russ experienced swelling in his neck and was seen at Baptist Hospitals of Southeast Texas in Beaumont. Following a biopsy on one of his lymph nodes, Russ was diagnosed with metastatic malignant melanoma. Russ was referred to M.D. Anderson Cancer Center in Houston. Doctors at M.D. Anderson diagnosed Russ with Stage IIIc melanoma. They also reviewed Russ's biopsy from Propath and determined that, as of January 2015, he was suffering from Stage II melanoma, not squamous cell carcinoma as had been diagnosed by Dr. Barrett. Thus, Russ's melanoma progressed from Stage II to Stage IIIc in the fifteen months between his original diagnosis and his visit to M.D. Anderson.

         Following his corrected diagnosis, Russ was administered chemotherapy. A "surgical modified radical neck dissection" was also planned but never occurred due to melanoma-related complications. As of August 2016, Russ's melanoma was diagnosed as Stage IV, MIC "with bone and lymph node involvement." By November of the same year, the melanoma had spread to his brain.

         Russ sued Propath and Dr. Barrett in March 2017, asserting medical negligence based on Dr. Barrett's misdiagnosis.[1] Pursuant to section 74.351(a) of the Civil Practice and Remedies Code, Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017), Russ served the expert report and curriculum vitae of Andrzej T. Slominski, M.D., Ph.D. Dr. Slominski is board-certified in Dermatopathology and in Anatomic Pathology, and his CV reflects extensive experience in skin cancers including melanoma.

         Russ died of end-stage metastatic melanoma on August 1, 2017. His suit continued as a wrongful death and survival action brought by appellee, individually, as the personal representative of Russ's estate, and as the next friend of their minor child. Appellants filed objections to Dr. Slominski's report and a motion to dismiss appellee's claims. They challenged Dr. Slominski's qualifications to opine regarding the element of causation, and they urged that his report did not establish a causal relationship between appellants' breach of the applicable standards of care and Russ's injury. The district court held a hearing on appellants' objections and motion to dismiss on October 20, 2017, and signed an order one month later denying the motion. This interlocutory appeal followed.

         ANALYSIS

         Appellants contend that Dr. Slominski's report failed to adequately demonstrate causation, and therefore the district court erred in denying their motion to dismiss. We review a trial court's determination regarding the sufficiency of an expert report under an abuse-of-discretion standard. Baty v. Futrell, 543 S.W.3d 689, 693 & n.4 (Tex. 2018). We "defer to the trial court's factual determinations if they are supported by evidence, but review its legal determinations de novo." Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Id.

         Under the Medical Liability Act (MLA), [2] an "expert report" must provide "a fair summary of the expert's opinions" regarding, among other topics, "the causal relationship" between the health care provider's breach of the applicable standards of care and the claimant's injury. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West 2017). A court must grant a motion challenging the adequacy of an expert report only if it appears that the report "does not represent an objective good faith effort to comply with the definition of an expert report." Id. § 74.351(1) (West 2017). To constitute a "good-faith effort, " the report must provide "information sufficient to (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.'" Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)).

         We are limited to "the four corners of the expert report, which need not 'marshal all the plaintiff's proof' but must include the expert's opinion on each of the three main elements: standard of care, breach, and causation." Id. (quoting Wright, 79 S.W.3d at 52). Bare conclusions will not suffice, Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011), nor will an expert's simple ipse dixit, Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017), nor may omissions be supplied by inference, Scoresby, 346 S.W.3d at 556. The report must explain the basis for the expert's statements and link his conclusions to the facts. Zamarripa, 526 S.W.3d at 460. In other words, the report "must make a good-faith effort to explain, factually, how proximate cause is going to be proven." Id. A report that relies on inference, such as that the alleged breach precluded a quicker diagnosis and treatment, fails the good-faith standard. Ortiz v. Patterson, 378 S.W.3d 667, 674 (Tex. App.-Dallas 2012, no pet.). However, a plaintiff need not present evidence in ...


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