RENEE RICE, D.O. AND NSR PHYSICIANS, P.A., Appellant
PATRICIA A. MCLAREN, Appellee
Appeal from the 334th District Court Harris County, Texas
Trial Court Cause No. 2016-34771
consists of Justices Jamison, Busby, and Donovan.
Brett Busby Justice
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
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.
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.
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.
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." 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
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.
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.
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.
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
sued Dr. Rice 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.
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).
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.
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.
Standards of review and applicable law
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).
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.
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
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.
The expert reports satisfy the causation
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.
Applicable law regarding causation
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).
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).
Dr. Grodzin's reports
Grodzin's opinions appear in his original and
supplemental reports, which together total 19 single-spaced
pages. In his original ...