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Jones v. Waggoner

Court of Appeals of Texas, Twelfth District, Tyler

May 15, 2019

CARL R. JONES, M.D., Appellant

          Appeal from the 145th District Court of Nacogdoches County, Texas (Tr.Ct.No. C1733213)

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



         Carl R. Jones, M.D., appeals the trial court's order denying his motion to dismiss Alice Waggoner's suit against him. We affirm.


         On October 15, 2015, Waggoner arrived at the emergency room of Nacogdoches Memorial Hospital complaining of abdominal pain as a result of pancreatitis. Her medical history included gallstones, removal of the gallbladder, heart problems, asthma, lung problems, and chronic obstructive pulmonary disease (COPD). Dr. Jones suspected that a gallstone was blocking the pathways to her pancreas and performed an endoscopic retrograde cholangiopancreatograpy (ERCP) on October 20. However, no gallstone was discovered. Within a few hours of this ERCP, Waggoner developed subcutaneous emphysema with the symptoms of coughing with facial and chest wall puffiness. When the subcutaneous emphysema markedly worsened, Waggoner was transferred 175 miles to Texas Health Presbyterian-Dallas. After six days of treatment in Dallas, Waggoner was discharged to return home.

         Waggoner brought a healthcare liability claim against Dr. Jones. She alleges that Dr. Jones breached the standard of care by failing to use a non-invasive test such as a magnetic resonance cholangiopancreatography (MRCP) to determine whether the ERCP was necessary. In an attempt to comply with Section 74.351 of the Texas Civil Practice and Remedies Code, Waggoner served Dr. Jones with an expert report and curriculum vitae of Perry Hookman, M.D. Dr. Jones filed objections to Dr. Hookman's report urging that he was unqualified as an expert and that his report was conclusory on both causation and standard of care. Following a hearing, the trial court allowed Dr. Hookman to supplement his report in accordance with Section 74.351(c) to cure deficiencies regarding his qualifications and causation.

         After Dr. Hookman timely supplemented his report, Dr. Jones renewed his objections and again moved for dismissal. Following a hearing, the trial court denied Dr. Jones's renewed challenge and motion to dismiss regarding Dr. Hookman's expert report. This interlocutory appeal followed.[1]

         Expert Report

         In his first issue, Dr. Jones contends that Dr. Hookman's report fails to establish causation. In his second issue, Dr. Jones contends that Dr. Hookman is not qualified as an expert under the Texas Medical Liability Act because he had not performed the medical procedure described in his report in over twenty years. We will consider Dr. Jones's second issue first.

         Standard of Review

         We review a trial court's decision to grant or deny a motion to dismiss based on the adequacy of an expert report for an abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). 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. Id. at 144. When reviewing factual matters committed to the trial court's discretion, the 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 healthcare liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). The Act's expert-report requirement seeks "to deter frivolous lawsuits by requiring a claimant early in litigation to produce the opinion of a suitable expert that his claim has merit." Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (citing Scoresby v. Santilla, 346 S.W.3d 546, 552 (Tex. 2011)). While the plaintiff is not required to prove her claim with the expert report, the report must show that a qualified expert is of the opinion she can. Columbia Valley, 526 S.W.3d at 460. An expert report is sufficient under the Act 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 that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Abshire, 563 S.W.3d at 523. The trial court need only find that the report constitutes a "good faith effort" to comply with the statutory requirements. Abshire, 563 S.W.3d at 523; Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1). The report is adequate if it contains sufficient information: (1) informing the defendant of the specific conduct called into question, and (2) providing a basis for the trial court to conclude the claims have merit. See Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018). A report need not marshal all of the claimant's ...

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