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Meyer v. Strahan

Court of Appeals of Texas, Twelfth District, Tyler

April 10, 2019

DARRY G. MEYER, D.O., AND DARRY G. MEYER, D.O., P.A., APPELLANTS
v.
ANSEL STRAHAN, APPELLEE

          Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. CV-00688-17-10)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          JAMES T. WORTHEN CHIEF JUSTICE

         Darry G. Meyer, D.O. and Darry G. Meyer, D.O., P.A. (collectively "Dr. Meyer") appeal the trial court's order denying their motion to dismiss Ansel Strahan's suit against them. We affirm.

         Background

         On July 23, 2015, Strahan complained of pain in his left side and a noticeable bulge in his left inguinal area. Strahan went to see Dr. Meyer, who determined Strahan required surgery to repair a hernia. The surgical consent form stated that Strahan was to undergo a "Unilateral Inguinal Hernia Repair, Robotic Left Inguinal Hernia Repair" and contained a clause that authorized Dr. Meyer to perform additional operations that are necessary or advisable. Surgery began the same day at Memorial Medical Center of East Texas (Memorial Medical). According to Dr. Meyer, during the procedure, he encountered a hernia on Strahan's right side. After the surgery, Dr. Meyer informed Strahan that the right-side hernia was repaired as well, even though Strahan never complained of any pain on his right side. Strahan was discharged.

         The following day, Strahan experienced severe abdominal pain and swelling. He returned to the emergency room at Memorial Medical. A CT scan revealed that Strahan was hemorrhaging in his abdomen. On July 26, an additional surgery was performed during which the left-side inguinal mesh and the corresponding blood clots were removed. Strahan was then transferred to the intensive care unit. Strahan alleges he suffered serious and permanent injuries as a result of his stay at Memorial Medical.[1]

         Strahan brought a healthcare liability claim against Dr. Meyer. He contends Dr. Meyer lacked consent to perform the right-side hernia repair and that the extra surgery caused the subsequent hemorrhaging. In an attempt to comply with Section 74.351 of the Texas Civil Practice and Remedies Code, Strahan served Dr. Meyer with an expert report and curriculum vitae of Dr. David Befeler. Dr. Meyer filed objections to Dr. Befeler's report, including an objection that Dr. Befeler's report was insufficient as to causation, and a motion to dismiss Strahan's claim. The trial court allowed Dr. Befeler to supplement his report in accordance with Section 74.351(c) to cure deficiencies regarding the standard of care and causation. After Dr. Befeler timely supplemented his report, Dr. Meyer renewed his objections and again moved for dismissal. Following a hearing, the trial court overruled the objections and denied the motion. This appeal followed.

         Expert Report

         In his sole issue, Dr. Meyer contends the trial court abused its discretion when it denied his motion to dismiss. Specifically, Dr. Meyer urges that Dr. Befeler's report does not adequately address whether the right-side hernia repair caused the hemorrhaging.

         Standard of Review

         A trial court's ruling on qualifications of a medical expert and the sufficiency of an expert's report under Chapter 74 is reviewed for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Van Ness, 461 S.W.3d at 142. However, in exercising its discretion, it is incumbent upon the trial court to review the report, sort out its content, resolve any inconsistencies, and decide whether the report demonstrated a good faith effort to show that the plaintiff's claims have merit. See id. at 144. When reviewing factual matters committed to the trial court's discretion, an appellate court may not substitute its judgment for that of the trial court. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

         Expert Report Requirements

         The Texas Medical Liability Act requires a claimant to serve an expert report early in the proceedings on each party against whom a health care liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). The Texas Supreme Court has explained that "eliciting an expert's opinions early in the litigation [is] an obvious place to start in attempting to reduce frivolous lawsuits." Palacios, 46 S.W.3d at 877. The purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). A valid expert report must fairly summarize the applicable standard of care; explain how a physician or health care provider failed to meet that standard; and establish a causal relationship between the failure and the harm alleged. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West 2017); Potts, 392 S.W.3d at 630.

         A report need not cover every alleged liability theory to make the defendant aware of the conduct at issue, nor does it require litigation ready evidence. Potts, 392 S.W.3d at 631-32. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial. Id. For the particular liability theory addressed, the report must sufficiently describe the defendant's alleged conduct. Id. Such a report both informs a defendant of the behavior in question and allows the trial court to determine if the allegations have merit. Id. If the trial court decides that a liability theory is supported, then the claim is not frivolous, and the suit may ...


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