AJAY AGGARWAL, M.D., AJAY AGGARWAL, M.D., P.A., AND PAIN RELIEF CENTER, M.D., P.A., Appellants
MARCIE TROTTA AND BENITO TROTTA, Appellees
Appeal from the 412th Judicial District Court Brazoria
County, Texas Trial Court Case No. 96498-CV
consists of Justices Lloyd, Landau, and Countiss.
Beth Landau Justice.
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. As required by Chapter 74 of
the Civil Practice and Remedies Code, Trotta provided an
expert report to support her health care liability
claim. Aggarwal moved to dismiss Trotta's
claim, challenging the adequacy of the report. The trial court
denied his motion, and this interlocutory appeal
single issue, Aggarwal contends the trial court abused its
discretion in denying his motion to dismiss. We affirm.
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.
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
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.
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.
Standard of review
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
Expert report requirements
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."
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