Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

First Nobilis Surgical Center, LLC v. Phillips

Court of Appeals of Texas, Fourteenth District

October 31, 2019

FIRST NOBILIS SURGICAL CENTER, LLC D/B/A FIRST STREET SURGICAL CENTER AND MICHAEL CIARAVINO, M.D., Appellants
v.
PATRICIA PHILLIPS, Appellee

          On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 2017-63372

          Panel consists of Chief Justice Frost and Justices Wise and Hassan.

          MEMORANDUM OPINION

          MEAGAN HASSAN JUSTICE.

         In this interlocutory appeal, Appellants, First Nobilis Surgical Center, LLC d/b/a First Street Surgical Center ("First Street") and Michael Ciaravino, M.D., challenge the trial court's denial of their motions to dismiss the healthcare liability claims of Appellee, Patricia Phillips, on the grounds that the expert reports[1] Phillips served do not satisfy the expert report requirements under the Texas Medical Liability Act. We affirm.

         Background

         Phillips had breast implant surgery in 2005. On September 25, 2015, Dr. Ciaravino, a plastic surgeon, replaced Phillips's saline breast implants with silicone breast implants at First Street. On October 1, 2015, Phillips developed tenderness and redness on her right breast. She contacted Dr. Ciaravino's office and was prescribed oral ciprofloxacin and oral fluconazole. Dr. Ciaravino saw Phillips on October 2, 2015, and referred her to First Street for intravenous antibiotic treatment.

         On October 5, 2015, Dr. Ciaravino removed Phillips's implants, and a wound culture was taken from her breast during the surgery. The next day, she was discharged with oral antibiotics (ciprofloxacin). By October 8, 2015, Phillips noted continued redness and drainage from her left breast, so she went to Memorial Hermann Hospital. She was hospitalized for treatment of cellulitis in both breasts.

         At the time, wound cultures were obtained from her right and left breasts by an infectious disease doctor at the hospital. The cultures were positive for Klebsiella oxytoca. The cultures obtained on October 5 were positive for Serratia marcescens. These bacteria identified from her breast wounds are normally found in the human colon.

         On October 14, 2015, Phillips required surgery to drain her left breast hematoma and her right breast was treated with a washout procedure. She was treated with Levofloxacin, a broad-spectrum oral antibiotic. She was discharged from Memorial Hermann Hospital on October 17, 2015.

         Phillips sued Dr. Ciaravino and First Street on September 25, 2017. She alleged Dr. Ciaravino was negligent in failing to follow the appropriate standard of care with regard to the medical care provided to her, which caused or contributed to cause her injuries and damages. Phillips alleged:

1. Defendant, CIARAVINO, failed to promptly and timely assess, recognize and/or acknowledge the signs, symptoms and/or evidence of post-surgical infection in Plaintiff, PATRICIA PHILLIPS' surgical wounds as heretofore described;
2. Defendant, CIARAVINO, failed to promptly and timely implement an appropriate response to the obvious signs of infection presented by Plaintiff, PATRICIA PHILLIPS;
3. Defendant, CIARAVINO, failed to promptly and timely swab Plaintiff, PATRICIA PHILLIPS' wounds and submit swabs to an appropriate pathology laboratory for culturing, analysis and diagnosis;
4. Defendant, CIARAVINO, failed to prescribe appropriate antibiotics to treat the infection in Plaintiff, PATRICIA PHILLIPS' surgical wounds resulting in the infection becoming resistant to antibiotics;
5. Defendant, CIARAVINO, failed to properly treat Plaintiff, PATRICIA PHILLIPS' post-surgical infection;
6. Defendant, CIARAVINO, failed to timely consult and/or refer Plaintiff, PATRICIA PHILLIPS, to an infectious disease specialist for a higher level of medical care and treatment; and
7. Defendant, CIARAVINO, failed to treat for serratia and/or the actual infection, ESBL Klebsiella.

         Phillips asserted a medical-negligence claim against First Street and stated:

1. FIRST STREET Defendants[2] failed to sterilize and decontaminate the operating room surfaces to remove bacterial, viral, fungal, and/or any nosocomial infection, including but not limited to, ESBL Klebsiella and other multi-drug resistant organisms.
2. FIRST STREET Defendants failed to properly maintain for physician use sterile equipment/instruments and/or avoid cross-contamination to prevent ESBL Klebsiella and other multi-drug resistant organisms.
3. FIRST STREET Defendants failed to sterilize and decontaminate the surgical instruments/equipment used in the surgical procedure and/or avoid cross-contamination, prevent ESBL Klebsiella and other multi-drug resistant organisms.
4. FIRST STREET Defendants failed to maintain the sterilization of the breast implant device and/or permit cross-contamination by ESBL Klebsiella and other multi-drug resistant organisms.
5. FIRST STREET Defendants failed to supervise the operating room nursing staff's hygiene to avoid bacterial, viral, fungal, and/or any nosocomial infection and/or cross-contamination as a result of ESBL Klebsiella and other multi-drug resistant organisms.
6. FIRST STREET Defendants failed to provide employees with proper supervision and failed themselves to render medical care in a manner that met the applicable standard of care.
7. FIRST STREET Defendants failed to meet the duty to provide for the safety and care of Plaintiff, PATRICIA PHILLIPS.

         First Street filed its original answer on October 30, 2017, and Dr. Ciaravino filed his original answer on November 2, 2017. Phillips served expert reports from (1) Drs. Tyler Curiel and Rathel Nolan on First Street on February 26, 2018, and (2) Dr. Lincoln Miller on First Street and Dr. Ciaravino on March 1, 2018. Both First Street and Dr. Ciaravino filed objections to the three expert reports and motions to dismiss in March 2018.

         On April 11, 2018, Phillips filed a motion for a 30-day extension to provide supplemental reports to meet the objections of First Street and Dr. Ciaravino; attached to Phillips's motion was a revised report by Dr. Miller dated April 6, 2018. First Street and Dr. Ciaravino filed objections to Dr. Miller's revised report on April 30, 2018.

         The trial court held a hearing on June 4, 2018. First Street argued the reports of Drs. Curiel and Nolan were deficient, and Dr. Miller's reports were untimely served or, alternatively, deficient. Phillips argued the reports of Drs. Curiel and Nolan were not deficient and adequately addressed only First Street. Phillips admitted that Dr. Miller's report was "filed late as to First Street." She acknowledged Dr. Miller's original report "could be done better" but argued that Miller's revised report of April 6, 2018 is "solid" and cures the original report. Phillips argued she served the revised Miller report to demonstrate the original report "is a curable report" warranting the grant of a 30-day extension.

         At the hearing on June 4, 2018, the trial court granted an extension to "try and fix" the reports of Drs. Curiel and Nolan but was concerned that Dr. Miller's report was late with regard to First Street. The trial court would not allow Phillips to cure the expert reports from Drs. Nolan and Curiel with a report from Dr. Miller unless caselaw supported Phillips's argument that a plaintiff is not limited to the original experts to cure deficiencies but is allowed to cure an expert report with her choice of a new expert. The trial court also granted an extension without limitation regarding Dr. Ciaravino, stating "so if there's issues, you got 30 days."

         On June 7, 2018, Phillips filed a motion to allow additional expert reports. She petitioned the trial court to allow her to, among others, "use the amended expert report by Dr. Lincoln Miller" to cure any defects with regard to First Street; and she provided caselaw in support of her argument that the Supreme Court of Texas "mandates that she be allowed to provide reports from the experts of her choice."

         On June 18, 2018, Phillips re-served Dr. Miller's revised report of April 6, 2018 on First Street and Dr. Ciaravino. This report is also referred to as Dr. Miller's third report.

         On June 25, 2018, the trial court signed three orders. In the first order, the trial court (1) sustained Dr. Ciaravino's and First Street's objections to the original reports of Drs. Curiel, Nolan, and Miller as well as objections to Dr. Miller's revised report; and (2) ordered that Phillips "was granted one 30-day extension on June 4, 2018 . . . to cure any deficiencies." In the second order, the trial court granted Phillips's "Motion for a 30-day extension of time to serve additional or supplemental expert reports." The trial court ordered that Phillips, within thirty days of June 25, 2018, (1) "serve any supplemental or amended reports prepared solely by either" Dr. Curiel or Dr. Nolan as to First Street; and (2) "serve any supplemental or amended reports prepared solely by" Dr. Miller as to Dr. Ciaravino. In the third order, the trial court lifted the second order's limitations and stated as follows:

On the undersigned date[, ] the Court considered the Plaintiff's Motion to Allow Additional Expert Reports. After review of the authority[, ] the Court finds that the restriction limiting witness should be withdrawn.
IT IS ORDERED that Plaintiff, Patricia Phillips, has no limitation as to the expert witness who [sic] she may choose to use for the purpose of "curing" any defect in the Expert Report applicable to any Defendant in this cause, during the time permitted to effect a cure of prior reports.

         On June 29, 2018, Phillips served a revised expert report from Dr. Nolan. There is no dispute that Dr. Nolan's revised report, except for his qualifications, is essentially identical to Dr. Miller's third report.

         In July 2018, Dr. Ciaravino and First Street filed motions to dismiss as well as objections to Dr. Miller's third report and Dr. Nolan's revised report.

         The trial court held a hearing on the motions to dismiss on August 24, 2018. First Street argued that, because the trial court already had sustained its objections to Dr. Miller's revised report and signed an order finding the report deficient, the court should find Dr. Miller's third report and Dr. Nolan's revised report equally deficient as they are identical to Dr. Miller's revised report. Phillips countered that the trial court found Dr. Miller's report insufficient only because it was untimely filed as to First Street and the court did not consider the substance of the report. Dr. Ciaravino also argued that Dr. Miller's third report is inadequate and reminded the trial court that it had signed an order sustaining objections to the original reports of Drs. Miller, Nolan, and Curiel as well as Dr. Miller's revised report. In response to the parties' arguments, the trial court stated:

Okay. So let me say this. As I recall our prior meeting, we spent the large sum of it dealing with the lateness of these reports and whether or not we could switch out the expert, more so than dealing with the substantive issues with the reports. To be perfectly honest, Dr. Miller's report, I don't really have a problem with. To the extent that it sounds like Dr. Nolan signed off on Dr. Miller's report might be a problem later on down the road, but as far as pursuing the case, I'm not having a problem with that. So here's what I'm going to do: I'm going to overrule the objections to the reports for Ciaravino and First Street at this time.

         After the hearing, the trial court signed an order denying the motions to dismiss. Dr. Ciaravino and First Street filed a timely interlocutory appeal.[3]

         Standard of Review and Applicable Law

         We review a trial court's ruling on a healthcare provider's motion to dismiss a healthcare liability claim for an abuse of discretion. Harvey v. Kindred Healthcare Operating, Inc., 578 S.W.3d 638, 644 (Tex. App.-Houston [14th Dist.] 2019, no pet. h.); Houston Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 129 (Tex. App.- Houston [14th Dist.] 2015, pet. denied). In the absence of findings of fact or conclusions of law, we uphold a trial court's ruling on a motion to dismiss on any theory supported by the record and infer any necessary findings of fact to support the ruling. Harvey, 578 S.W.3d at 644; Nguyen, 470 S.W.3d at 129. A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (per curiam); Harvey, 578 S.W.3d at 644.

         The Texas Medical Liability Act governs healthcare liability claims. Nguyen, 470 S.W.3d at 129; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-.507. The Act entitles a defendant to dismissal of a healthcare liability claim if the defendant is not timely served with an expert report showing the claim has merit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with these requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1), (r)(6); Scoresby, 346 S.W.3d at 549. In determining whether a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Harvey, 578 S.W.3d at 644.

         An expert must establish that he is qualified to provide an acceptable report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5); Harvey, 578 S.W.3d at 644. The expert's qualifications must appear in the expert report and cannot be inferred. Harvey, 578 S.W.3d at 644; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Thus, analysis of expert qualifications under section 74.351 is limited to the four corners of the expert's report and the expert's curriculum vitae. Pokluda, 283 S.W.3d at 117; see also Harvey, 578 S.W.3d at 644.

         Further, an expert report must provide a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 (Tex. 2001). To comply with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879; see also Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018). A report may not merely contain the expert's conclusions about these elements. Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879. The expert must explain the basis for his statements and link his conclusions to the facts of the case. Jelinek, 328 S.W.3d at 539; Harvey, 578 S.W.3d at 645. A plaintiff need not present all the evidence necessary to litigate the merits of the plaintiff's case. Palacios, 46 S.W.3d at 879; Harvey, 578 S.W.3d at 645. The report may be informal and the information therein need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Harvey, 578 S.W.3d at 645.

         Analysis

         Dr. Ciaravino and First Street submitted separate briefing on appeal; Dr. Ciaravino presents five issues and First Street presents three issues. We begin by addressing Dr. Ciaravino's issues.

         I. Dr. Ciaravino's Issues

         A. Expert Qualifications

         Dr. Ciaravino argues in his first issue that the trial court abused its discretion by overruling his objections to Dr. Nolan's and Dr. Miller's qualifications because these experts, who are infectious disease specialists, "fail to articulate credentials to opine on the standard of care relevant to Dr. Ciaravino, a plastic surgeon." Dr. Ciaravino contends that Drs. Nolan and Miller did not demonstrate qualifications based on training or experience in the "standards of care for the diagnosis, care, or treatment as applied to a plastic surgeon in the peri- or post-operative phase of a patient's care."

         1. Dr. Miller's Qualifications

         Dr. Ciaravino contends that "Dr. Miller is not qualified to opine on the peri-operative and post-operative standards relevant to Dr. Ciaravino, a plastic surgeon" because: "Dr. Miller offers no insight as to where his promoted standards originated"; he did not state that "his promoted peri- or post-operative standards are substantially developed in the surgical arena or, more specifically, the plastic surgery arena"; he never articulated any credentials or "practical knowledge of what is usual or customary for plastic surgeons in the same peri- or post-operative situation that confronted Dr. Ciaravino"; and he did not "indicate the standards advanced are generally accepted in the medical field, much less plastic surgery."

         We focus our initial analysis on whether Dr. Miller was qualified to opine on the post-operative standards of care. An expert report satisfying the requirements of the Texas Medical Liability Act as to a defendant "is sufficient for the entire suit to proceed against the defendant", even if "it addresses only one theory of liability alleged against that defendant." TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 42 (Tex. 2013); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630-32 (Tex. 2013). Thus, if Dr. Miller's report satisfies all the Act's requirements as to Phillips's claim against Dr. Ciaravino for negligence during post-operative care, we need not address arguments relating to a liability theory against Dr. Ciaravino for negligent pre-operative care. See Methodist Hosp. v. Addison, 574 S.W.3d 490, 502 (Tex. App.- Houston [14th Dist.] 2018, no pet.); see also Potts, 392 S.W.3d at 630-32. With that in mind, we turn to the expert qualification requirements set out in the Act.

         A person is qualified as an expert witness to render an opinion against a physician on the issue of whether the physician departed from accepted standards of medical care if the person is a physician who (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a). "Practicing medicine" or "medical practice" includes, but is not limited to, training residents or students at an accredited school of medicine or serving as a consulting physician to other physicians who provide direct patient care. Id. § 74.401(b). In assessing whether the witness has the required knowledge, skill, experience, or training, the court must consider whether the witness is: (1) board certified or has other substantial training or experience "in an area of medical practice relevant to the claim"; and (2) actively practicing medicine "in rendering medical care services relevant to the claim." Id. § 74.401(c).

         In his expert report, [4] Dr. Miller outlines his qualifications as follows:

I am a licensed Infectious Disease Physician in the State of New Jersey. I am board certified in the specialty of Internal Medicine and the subspecialty of Infectious Diseases. I received a B.A. from Brown University and an M.D. from the Sackler School of Medicine/University of Tel-Aviv. I did my internship and residency in Internal Medicine at the SUNY Buffalo Affiliated Hospitals Program and my Infectious Disease subspecialty training at Emory University. I have more than twenty-five years of experience in the field of Infectious Diseases. I am the Co-Chief, Section of Infectious Disease, at Saint Barnabas Medical Center, Livingston, New Jersey, where I serve as the Co-Chief of the Infection Control Committee and the Co-Chief of the Antimicrobial Stewardship Committee. I have extensive experience in the treatment of patients with breast infections, like Ms. Phillips, particularly those related to breast implants. I have significant experience in the prevention and treatment of nosocomial infections- infections acquired by patients directly from health care facilities- including infections acquired in the operating room setting. Additionally, I am a Clinical Associate Professor of Medicine at Rutgers - New Jersey Medical School. I frequently lecture medical residents and medical students about Infectious Diseases and I teach medical residents how to diagnose and treat patients with a variety of infectious diseases, including breast infections in patients like Ms. Phillips. I have attached a copy of my up-to-date curriculum vitae. Therefore, I am qualified, based on my education, training, and experience, to opine in this report.

         Dr. Ciaravino's overarching complaint is that Dr. Miller is not qualified to opine on the relevant post-operative standards because Dr. Miller is not a plastic surgeon. Dr. Ciaravino argues Dr. Miller allegedly did not state "where his promoted standards originated," did not articulate that his stated post-operative standards are substantially developed in the "plastic surgery arena," did not articulate any credentials or "practical knowledge of what is usual or customary for plastic surgeons" in the "post-operative situation that confronted Dr. Ciaravino," and did not "indicate the standards advanced are generally accepted in the medical field, much less plastic surgery." Dr. Ciaravino seemingly takes the position that Dr. Miller is not qualified to render opinions in this case because Dr. Miller's specialty is in a different medical discipline from his own.

         Although not every licensed physician is qualified to testify about every medical question, see Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996), "expert qualifications should not be too narrowly drawn." Larson, 197 S.W.3d at 305. To qualify as an expert in a particular case, a medical expert need not practice in the exact same field as the defendant physician. Pokluda, 283 S.W.3d at 118; see also Broders, 924 S.W.2d at 153-54; Kelly v. Rendon, 255 S.W.3d 665, 674 (Tex. App.- Houston [14th Dist.] 2008, no pet.); and McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex. App.-Houston [1st Dist.] 2007, no pet.). The test is whether the report and curriculum vitae establish the expert's knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003); Pokluda, 283 S.W.3d at 118-19. In determing whether a witness is qualified on the basis of training or experience to render expert opinions, the court shall consider whether the proffered witness (1) is board certified or has other substantial training or experience "in an area of medical practice relevant to the claim," and (2) is actively practicing medicine "in rendering medical care services relevant to the claim." Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c) (emphasis added).

         Here, the relevant medical services are those for a post-surgical patient showing signs and symptoms of infection in her breasts. Phillips specifically pleaded Dr. Ciaravino failed to (1) timely assess and recognize signs and symptoms of post-surgical infection; (2) timely implement an appropriate response to obvious signs of infection; (3) timely swab Phillips's wounds and submit swabs for culturing and analysis; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.