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Norberg v. Ameel

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 19, 2019

WILLIAM J. NORBERG JR., M.D., ET AL., Appellants,

          On appeal from the 206th District Court of Hidalgo County, Texas.

          Before Justices Benavides, Hinojosa, and Tijerina



         Appellants Vangala J. Reddy, M.D., William J. Norberg, Jr., M.D., Krishna M. Turlapati, M.D., Ana Hernandez Almeda, M.D., Frank W. Sabatelli, M.D., and Irene V. Perez Young, M.D. appeal the trial court's order denying their motions to dismiss a healthcare liability claim brought by appellees Alexis Ameel, Pieter Ameel, [1] and Acacia Ameel. In a single issue, appellants assert the trial court erred in denying their motions to dismiss because the Ameels' expert reports failed to comply with § 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. We reverse and remand in part and affirm in part.

         I. Background

         On May 9, 2015, sixteen-year-old Alexis was admitted to the emergency department at Doctor's Hospital at Renaissance (DHR) after being diagnosed with deep-vein thrombosis (DVT) at Valley Baptist Medical Center.[2] After a thirteen-day stay at DHR, during which she was treated by appellants, Alexis was flown from DHR to Texas Children's Hospital (TCH) in Houston. At TCH, physicians performed a pulmonary angiogram, and she was diagnosed with Catastrophic Antiphospholipid Syndrome (CAS) and pulmonary emboli (PE).[3] After three weeks of undergoing multiple surgical procedures, Alexis was discharged.

         On May 8, 2017, the Ameels filed their original petition and request for disclosure, alleging appellants were negligent in failing to detect and diagnose Alexis with PE, and as a result of appellants' negligence, Alexis suffered catastrophic injuries. On September 15, 2017, the Ameels filed two expert reports by Michael Tsifansky, M.D. and S. Robert Hurwitz, M.D. in accordance with § 74.351. See id. § 74.351(a) ("In a health care liability claim . . . a claimant shall . . . serve on [a defendant physician] one or more expert reports, with a curriculum vitae of each expert listed in the report."). The experts opined, among other things, that appellants "failed to order, recommend, or perform a single pulmonary CT angiogram (or invasive pulmonary angiogram) throughout [Alexis's] stay at DHR" and that Alexis's pain, impairment, and multiple surgical procedures were a result of appellants' failures.

         Appellants filed their objections to the expert reports and motions to dismiss, contending that the expert reports did not represent a "good faith" effort to comply with the statute. Id. § 74.351(1) ("A court shall grant a motion challenging the adequacy of an expert 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 . . . ."). After a hearing, the trial court overruled appellants' objections and denied the motions to dismiss. This interlocutory appeal followed. See id. § 51.014(a)(9) (authorizing an appeal of an interlocutory order denying a motion to dismiss for failure to file a medical expert report under the Texas Medical Liability Act).

         II. Discussion

         Appellants assert the trial court erred in denying their motions to dismiss because the expert reports: (1) "fail to set out the specific standards of care"; (2) fail to set out "deviations from that nonspecific standard of care"; and (3) inadequately explain "the causal relationship between appellants alleged breaches" and Alexis's injuries.[4]Appellants also allege that the opinions in the expert reports are conclusory. Drs. Norberg, Turlapati and Almeda additionally challenge Dr. Hurwitz's qualifications, but we first address whether Dr. Tsifansky's expert report meets the statutory requirements.

         A. Chapter 74 Expert Report

         In a suit against a physician, a plaintiff is required to serve on defendants one or more expert reports within 120 days of a defendant physician's answer that fairly summarizes: (1) the applicable standard of care; (2) how the defendant physician failed to meet that standard; (3) and the causal relationship between the defendant physician's breach and the plaintiff's injury. Id. § 74.351(a), (r)(6); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). A report that satisfies these requirements, even if as to one theory only, entitles the plaintiff to proceed with a suit against the defendant physician. Potts, 392 S.W.3d at 630. "The expert report requirement is a threshold mechanism" for the trial court to conclude that the plaintiff's claims have merit. Id. at 631.

         First, the report must inform the defendant of the specific conduct the plaintiff has called into question and must provide a basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). "It need not cover every alleged liability theory to make the defendant physician aware of the conduct at issue, but it must sufficiently describe the defendant physician's alleged conduct." Potts, 392 S.W.3d at 631. If the trial court determines that a liability theory is supported, then the claim is not frivolous, and the plaintiff's suit may proceed. Id.

         B. Standard of Review

         We review a trial court's decision with respect to chapter 74 expert reports for an abuse of discretion. Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 398 (Tex. 2011); Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006); Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 877. The trial court abuses its discretion if it acts unreasonably, arbitrarily, or without reference to any guiding rules or principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). In our review of an expert report, we are limited to the contents contained within the four corners of the report in determining whether the report manifests a good faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 878.

         C. Analysis

         1. Applicable ...

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