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Rice v. McLaren

Court of Appeals of Texas, Fourteenth District

June 26, 2018

RENEE RICE, D.O. AND NSR PHYSICIANS, P.A., Appellant
v.
PATRICIA A. MCLAREN, Appellee

          On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 2016-34771

          Panel consists of Justices Jamison, Busby, and Donovan.

          OPINION

          J. Brett Busby Justice

         In this interlocutory appeal, we address the sufficiency of an expert report under section 74.351 of the Texas Civil Practice and Remedies Code. Appellants Dr. Renee Rice, D.O. and NSR Physicians, P.A. (collectively referred to as Dr. Rice) contend the trial court erred in denying their motion to dismiss the medical negligence claims of appellee Patricia A. McLaren for her failure to serve a report complying with the Act.

         McLaren alleges in her suit that Dr. Rice's negligence, along with that of several other physicians, caused the portal vein thrombosis with bowel ischemia that she developed after undergoing elective bariatric surgery. Dr. Rice argues that McLaren's expert reports fail to state facts supporting a causal connection between Dr. Rice's acts or omissions and the claimed injury. We conclude that the expert report sufficiently links Dr. Rice's failure to appreciate the need for keeping McLaren on anticoagulants and to consult a hematologist to the continued clotting problems and ultimate portal vein thrombosis with bowel ischemia she suffered. We therefore affirm the trial court's order denying Dr. Rice's motion to dismiss.

         Background[1]

         On March 20, 2014, McLaren underwent elective bariatric surgery, including a laparoscopic vertical sleeve gastrectomy and a laparoscopic repair of diaphragmatic hernia. Dr. Matthew St. Laurent performed the surgery at the North Cypress Medical Center. In addition to other medical conditions, McLaren had a lengthy history of blood clotting issues, including deep vein thrombosis (DVT), that she treated with long-term use of anticoagulant medication. In preparation for the surgery, McLaren went off her regular anticoagulant, Coumadin, and began temporary use of Lovenox. Dr. St. Laurent decided that McLaren should stop her Coumadin during this timeframe. Dr. Ronjay Rakkhit, a hematologist who had managed McLaren's blood clotting issues for several years prior to her surgery, was not consulted.

         Hospital records indicate that McLaren tolerated the procedure well, and she was discharged from the hospital the next day. The discharge summary and patient instructions from her surgery state that McLaren should restart her Coumadin upon her return home. Though Coumadin is known to take time to rise to a therapeutic level in the bloodstream, McLaren was not prescribed any "bridging therapy," such as the continuation of Lovenox, to guard against blood clotting issues until the Coumadin returned to a therapeutic level.

         On March 24, three days after her discharge, McLaren went to the emergency room at North Cypress Medical Center complaining of shortness of breath. A CT of her abdomen revealed an intra-abdominal hemorrhage, and she was diagnosed as suffering from hypovolemic shock, anemia due to blood loss, respiratory failure, acute venous embolism, and DVT in her distal lower extremity. McLaren was started on Lovenox and admitted to intensive care. A pulmonologist, Dr. Puppala, was asked to consult; he initially believed that McLaren had suffered a "massive pulmonary embolism."[2] Dr. Puppala recommended discontinuing the Lovenox, starting a Heparin protocol (without the initial bolus), and placing an inferior vena cava (IVC) filter to catch any clots. The IVC filter was placed later that same day.

         Dr. Rice first saw McLaren the next day and served as the primary hospitalist for McLaren during this hospital stay. Neither Dr. Rice nor any of the physicians treating McLaren consulted a hematologist regarding McLaren's treatment.

         McLaren remained in the hospital for about a week and was discharged on March 31. In the discharge summary, Dr. Rice noted that all anticoagulant medication had been stopped during the hospital stay and that upon going home, McLaren was not to take her Coumadin. This notation was based on Dr. Puppala's decision to restart McLaren's anticoagulation medication in two to three weeks. Thus, McLaren was discharged from the hospital while off Coumadin and with the IVC filter in place.

         On April 9, nine days after her discharge, McLaren returned to the emergency room at North Cypress Medical Center, again complaining of difficulty breathing. A CT scan revealed that McLaren suffered from extensive portal vein thrombosis with bowel ischemia. She was septic and given a "poor overall prognosis." Further testing revealed fluid-filled small bowel loops in her abdomen, consistent with an obstructive process. McLaren remained in the hospital until April 25, but was discharged "still suffering from portal vein thrombosis, superior mesenteric vein thrombosis, anemia, and a hypercoagulability state." The discharge summary incorrectly stated that the bowel ischemia had resolved. McLaren was advised to restart her Coumadin upon discharge, and this time was also prescribed Lovenox to take until the Coumadin reached a therapeutic level.

         Less than a week after her discharge, on May 1, McLaren was taken to Memorial Hermann/Memorial City Hospital. She was near death, and tests showed she likely had a perforated bowel and possible bowel ischemia. A physician at Memorial Herman, Dr. Thakrar, noted that "[g]iven history of thrombosis as well as hypercoagulable state, we will still elect to anticoagulate the patient. Given the complexity and history of this patient's hypercoagulable state, we will consult the patient's hematologist, Dr. Ronjay Rakkhit." McLaren underwent emergency surgery, where the surgeon noted extensive fluid in her abdomen, significant small intestine damage, and numerous clots within her pelvis. Surgeons removed a 60-centimeter portion of her small intestine. McLaren remained hospitalized for three weeks and was then transferred to a long-term acute care facility. According to McLaren's live pleading, her total medical bills exceed $1.3 million.

         McLaren sued Dr. Rice[3] and several other treating physicians for the care she received prior to her May 1, 2014 admission to Memorial Hermann. McLaren served an expert report authored by Dr. Charles J. Grodzin, a specialist in pulmonary diseases and intensive care medicine. In his original report, Dr. Grodzin criticized, among other things, the failure to continue sufficient anticoagulation therapy during McLaren's first two hospitalizations, and the failure to consult a hematologist with regard to her pre-, peri-, and post-operative care. Dr. Rice objected to the report on grounds that it failed to identify the specific conduct by her that breached the standard of care and failed to state sufficient facts supporting causation. The causation challenge targeted Dr. Grodzin's reliance on his understanding that Dr. Rakkhit (the hematologist) would have recommended that McLaren remain on anticoagulant medication after her initial surgery had he been consulted. The trial court sustained Dr. Rice's objections to the expert report but gave McLaren a thirty-day extension to file a report complying with section 74.351.

         McLaren filed a supplemental expert report by Dr. Grodzin, and Dr. Rice again objected to the report. Dr. Rice maintained that the supplemental report remained insufficient because, as in the original report, Dr. Grodzin was speculating as to what a hematologist might have done if consulted. The trial court denied Dr. Rice's motion to dismiss without stating its reasons for doing so, and this appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2017).

         Analysis

         Dr. Rice brings three issues challenging the denial of her motion to dismiss McLaren's suit for failure to serve a sufficient expert report. In her first issue, Dr. Rice contends the trial court abused its discretion because the court's order does not refer to any guiding rules or principles. In her second issue, Dr. Rice argues generally that the trial court abused its discretion because Dr. Grodzin's reports fail to inform her of the specific conduct called into question or provide a basis for the trial court to conclude the claims have merit. In her third issue, Dr. Rice contends that Dr. Grodzin's reports fail to establish causation by linking his conclusions to the facts as they apply to Dr. Rice.

         Dr. Rice briefs her second and third issues together, basing both on her contention that the reports fail to establish the requisite causal link between her actions and the injury or damages claimed. We will likewise address her second and third issues together and then turn to her first issue.

         I. Standards of review and applicable law

         We review for 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).

         A party asserting a healthcare liability claim must 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). The report must provide "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." Id. § 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 (as it did here) 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; Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.-Houston [14th Dist.] 2008, no pet.). The report need not use "magic words" or meet the same standards as evidence offered on summary judgment or at 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 suffice. See Wright, 79 S.W.3d at 52, 53.

         To constitute a good-faith effort to comply with these requirements, the expert report must provide enough information to fulfill two purposes of the statute: (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; see also Miller, 536 S.W.3d at 513.

         II. The expert reports satisfy the causation requirement.

         Dr. Grodzin's original and supplemental reports describe two breaches of the standard of care by Dr. Rice: (1) the failure to provide or ensure adequate anticoagulation therapy for McLaren during her second hospitalization; and (2) the failure to consult with McLaren's hematologist Dr. Rakkhit or a staff hematologist. Dr. Rice argues on appeal that Dr. Grodzin fails to link these alleged breaches to the facts of the case and does not state how and why Dr. Rice's failures were a substantial factor in bringing about the harm McLaren sustained.

         A. Applicable law regarding causation

         Although the plaintiff in a medical negligence case is not required to prove proximate cause with her expert report, the report must show that the expert is of the opinion she can do so regarding both foreseeability and cause-in-fact. See Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). An expert's mere ipse dixit will not suffice; the expert must explain the basis of his or her conclusions, showing how and why a breach of the standard of care caused the injury. See id. ("the expert report must make a good-faith effort to explain, factually, how proximate cause is going to be proven"); Jelinek, 328 S.W.3d at 539. The conclusion must be linked to the facts of the case and cannot contain gaps in the chain of causation. See Wright, 79 S.W.3d at 52; Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 23 (Tex. App.-Houston [14th Dist.] 2017, pet. filed).

         We determine whether an expert report is sufficient under section 74.351 by considering the opinions in the context of the entire report, rather than taking statements in isolation. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (per curiam) (trial court should review all of expert's opinions rather than considering statements in isolation); see also Baty v. Futrell, 543 S.W.3d 689, 694 (Tex. 2018). Multiple reports may be read in concert to determine whether the plaintiff has made a good-faith effort to comply with the statute's requirements. Miller, 536 S.W.3d at 513. Our review is limited to the four corners of the report, and we cannot make inferences to establish the causal connection. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 281 (Tex. App.-Austin 2007, no pet.) (expert report that required reader to infer or make educated guess as to which of two doctors breached standard of care and caused injury was not adequate).

         B. Dr. Grodzin's reports

         Dr. Grodzin's opinions appear in his original and supplemental reports, which together total 19 single-spaced pages. In his original ...


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