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JMA Partners, Inc. v. Guzman

Court of Appeals of Texas, Fifth District, Dallas

April 16, 2019

JMA PARTNERS, INC. D/B/A GUARDIAN PHARMACY SERVICES AND JACK R.MUNN, Appellants
v.
JESUS GUZMAN, Appellee

          On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-17-06313

          Before Justices Brown, Schenck, and Pedersen, III

          MEMORANDUM OPINION

          ADA BROWN JUSTICE

         In this interlocutory appeal, we consider whether expert reports filed by appellee Jesus Guzman to support his health care liability claims against appellants JMA Partners, Inc. d/b/a Guardian Pharmacy Services and its president Jack R. Munn (together, Guardian) meet the requirements of chapter 74 of the civil practice and remedies code, the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. We conclude they do and affirm the trial court's order overruling Guardian's objections to the reports and denying Guardian's motion to dismiss.

         Background

         In February 2017, Guzman underwent a routine cataract surgery during which the surgeon, Jeffrey Whitman, M.D. of the Key-Whitman Eye Center (Key-Whitman), injected a triamcinolone/moxifloxacin with Pluronic antibiotic and steroid medication (Tri-Moxi) into Guzman's eye. Guzman alleges the Tri-Moxi, which was compounded by Guardian, caused permanent damage to his eye. Guzman sued Guardian, alleging strict liability in tort, negligence, and gross negligence, and served expert reports by John Scott Karolchyk, MS, RPh, FIACP, and Wesley K. Herman, M.D.

         Guardian moved to dismiss Guzman's claims, arguing the expert reports did not satisfy the TMLA requirement for a fair summary of the experts' opinions regarding the applicable standards of care, the failure to meet those standards, and the causal relationship between the failure and Guzman's injury. See Civ. Prac & Rem. § 74.3351(r)(6). Following a hearing, the trial court denied Guardian's motion, and Guardian filed this interlocutory appeal. In two issues, Guardian contends the trial court abused its discretion in overruling its objections to the expert reports and denying its motion to dismiss or, alternatively, should have provided a thirty-day extension for Guzman to attempt to cure the deficiencies in the reports.

         Applicable Law

         A plaintiff who files a health care liability claim must serve an expert report on each defendant early in the proceedings. Civ. Prac. & Rem. § 74.351(a).[1]An expert report is sufficient if it "provides a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and the causal relationship between the failure and the injury, harm, or damages claimed." Id. § 74.351(r)(6). A trial court should grant a motion challenging the adequacy of a report "only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.351(1).

         The report need not marshal all of a plaintiff's proof, but must include the expert's opinions on the standard of care, breach, and causation. Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-79 (Tex. 2001)). The report must (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 the claims have merit. Palacios, 46 S.W.3d at 880 (although a fair summary "is something less than a full statement of the applicable standard of care and how it was breached," it must "set out what care was expected, but not given"). A report "must make a good-faith effort to explain, factually, how proximate cause is going to be proven," although the report need not use the words "proximate cause," "foreseeability," or "cause in fact." Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). "A conclusory statement of causation is inadequate; instead, the expert must explain the basis of his statements and link conclusions to specific facts." Id.

         The trial court must consider an expert report in its entirety, rather than isolating specific portions or sections, to determine whether it includes the required information. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (per curiam); see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282 (Tex. App.-Austin 2007, no pet.) ("The form of the report and the location of the information in the report are not dispositive."). Additionally, one expert need not address the standard of care, breach, and causation; multiple expert reports may be read together to determine whether the requirements have been met. See Civ. Prac. & Rem. § 74.351(i).

         We review a trial court's ruling on a motion to dismiss under section 74.351 for an abuse of discretion. Baty, 543 S.W.3d at 693 n.4; Children's Med. Ctr. of Dall. v. Durham, 402 S.W.3d 391, 395 (Tex. App.-Dallas 2013, no pet.). A trial court abuses its discretion when it acts arbitrarily and without reference to guiding rules or principles. Nexion Health at Duncanville, Inc. v. Ross, 374 S.W.3d 619, 622 (Tex. App.-Dallas 2012, pet. denied). In analyzing a report's sufficiency, we consider only the information contained within the four corners of the report. See Palacios, 46 S.W.3d at 878.

         Analysis

         Guzman served Guardian with two expert reports. One report was prepared by John Scott Karolchyk, MS, RPh, FIACP, a formulation developer and compounding pharmacist who developed the "true" Tri-Moxi injectable formulation with Jeffrey Liegner, M.D., and patented it with Imprimis Pharmaceuticals in 2013. Liegner contacted Karolchyk on Dr. Whitman's behalf about potential retinal toxicity associated with a version of the formulation compounded by Guardian, and Karolchyk agreed to consult for Key-Whitman. Karolchyk ...


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