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Aggarwal v. Trotta

Court of Appeals of Texas, First District

June 11, 2019

AJAY AGGARWAL, M.D., AJAY AGGARWAL, M.D., P.A., AND PAIN RELIEF CENTER, M.D., P.A., Appellants
v.
MARCIE TROTTA AND BENITO TROTTA, Appellees

          On Appeal from the 412th Judicial District Court Brazoria County, Texas Trial Court Case No. 96498-CV

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          Sarah Beth Landau Justice.

         Marcie Trotta sued Dr. Ajay Aggarwal and his related entities, alleging that Dr. Aggarwal negligently performed an epidural steroid injection on her cervical spine, which proximately caused her injuries and damages.[1] As required by Chapter 74 of the Civil Practice and Remedies Code, Trotta provided an expert report to support her health care liability claim.[2] Aggarwal moved to dismiss Trotta's claim, challenging the adequacy of the report.[3] The trial court denied his motion, and this interlocutory appeal followed.[4]

         In a single issue, Aggarwal contends the trial court abused its discretion in denying his motion to dismiss. We affirm.

         Background

         Marcie Trotta was experiencing neck pain and arm tingling. She was seen by Dr. Aggarwal, who recommended a cervical steroid injection. Trotta's petition alleged that Aggarwal performed the injection while Trotta was in a state of deep sedation. She pleaded that the appropriate standard of care required that she be less sedated to the level of "conscious sedation." She alleged that she was sedated to the point of being "unresponsive," leaving her unable to react when Aggarwal negligently punctured her spinal cord during the injection.

         Trotta contends that over-sedation prevented her from providing the verbal and physical reactions on which surgeons rely to discover an inadvertent puncture of the spinal cord. While she was unresponsive, Aggarwal negligently punctured her spinal cord and, without any reaction from Trotta, Aggarwal injected the steroid directly into her spinal cord, causing her injuries.

         Aggarwal moved to dismiss Trotta's claim, arguing that her expert report, authored by Dr. J. Lowell Haro, failed to meet the requirements of Section 74.351 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 74.351(b) (providing mechanism for dismissal of health care liability claims for failure to provide adequate expert report). Trotta supplemented her report. Aggarwal again sought dismissal. He challenged the report in three regards: (1) Haro's report failed to inform Aggarwal of the specific acts required of him to meet the stated standard of care, (2) Haro provided no basis for contending that Aggarwal was vicariously liable for the acts of a nurse anesthetist, and (3) Haro's opinion on causation failed to address foreseeability. The trial court denied Aggarwal's dismissal motion. He appeals.

         Motion to Dismiss

         Aggarwal contends the trial court abused its discretion by denying his motion to dismiss Trotta's health care liability claims, focusing on the elements of standard of care and causation.

         A. Standard of review

         We review a trial court's ruling on a motion to dismiss a health care liability claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam). We "defer to the trial court's factual determinations if they are supported by evidence," but we review its legal determinations de novo. Id. "A trial court abuses its discretion if it rules without reference to guiding rules or principles." Id.

         B. Expert report requirements

         Under the Medical Liability Act, a plaintiff asserting health care liability claims must timely serve each defendant physician and health care provider with one or more expert reports and a curriculum vitae of each expert whose opinion is offered to substantiate the merits of the claims. Tex. Civ. Prac. & Rem. Code § 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.-Houston [1st Dist.] 2015, no pet.). The expert report must provide a "fair summary" of the expert's opinions regarding the (1) applicable standards of care, (2) manner in which the care rendered by the physician or health care provider failed to meet the standards, and (3) causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6). "No particular words or formality are required, but bare conclusions will not suffice." Scoresby v. Santillan, ...


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