Court of Appeals of Texas, Twelfth District, Tyler
DARRY G. MEYER, D.O., AND DARRY G. MEYER, D.O., P.A., APPELLANTS
ANSEL STRAHAN, APPELLEE
from the 217th District Court of Angelina County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. WORTHEN CHIEF JUSTICE
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.
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
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.
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
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.
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.).
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.
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 ...