THN Physicians Association D/B/A El Paso Perinatology and Maria D. Velazquez, M.D. v. Mario A. Tiscareno and Michelle R. Tiscareno, Ind. and as Next Friends for A. R. T., a Minor ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THN PHYSICIANS ASSOCIATION §
D/B/A EL PASO PERINATOLOGY AND No. 08-15-00317-CV
MARIA D. VELAZQUEZ, M.D., §
Appeal from the
Appellants, §
448th District Court
v. §
of El Paso County, Texas
MARIO A. TISCARENO AND §
MICHELLE R. TISCARENO, (TC# 2014-DCV-2484)
INDIVIDUALLY AND AS NEXT §
FRIENDS FOR A.R.T., A MINOR,
Appellees.
OPINION
This appeal involves the sufficiency of a preliminary expert report in a medical malpractice
case. Plaintiffs Mario and Michelle Tiscareno (individually and as next friends of their daughter,
A.R.T.) filed a healthcare liability claim against Dr. Maria D. Velazquez and her health care
practice, THN Physicians Association, claiming Dr. Velazquez’s negligence injured Michelle
Tiscareno. Dr. Velazquez1 moved to dismiss the lawsuit, contending Plaintiffs’ expert report
failed to meet the requirements of the Texas Medical Liability Act. The trial court denied the
motion, and Dr. Velazquez filed this interlocutory appeal. We conclude the expert report is
1
Plaintiffs’ claims against THN Healthcare Associates are strictly vicarious for the alleged negligence of Dr.
Velazquez. For purposes of clarity, we refer to Dr. Velazquez and THN collectively as “Dr. Velazquez.”
deficient, and reverse and remand for the trial court to consider giving Plaintiffs an opportunity to
amend the report.
BACKGROUND
We take the following background information from the petition and the expert report in
issue, noting that the factual claims have not yet been proven.
Michelle Tiscareno was pregnant, and her baby was due in September 2012. She was
under the care of Dr. Velazquez’s partner, Dr. Frederick Harlass. On August 6, 2012, Tiscareno
was admitted to Providence Memorial Hospital, and that same day, Dr. Harlass performed an
emergency C-section. Dr. Harlass’s operative notes stated that there was an “extremely foul odor
upon opening of the uterus,” and that Tiscareno’s membranes were “very yellow.” Tiscareno was
discharged from the hospital on August 8. According to the expert report, no treatment for
postpartum infection was provided to Tiscareno at the time of her discharge, even though she
exhibited signs of postpartum infection, including a fever, tachycardia, and leukocytosis.
On August 13, Tiscareno went to Dr. Velazquez’s office, complaining of “pain in the
surgical area which was described as hard, red, and swollen,” and was examined by Dr. Velazquez.
According to the report, Tiscareno displayed signs of a “postpartum infection” during the visit, and
Dr. Velazquez “attempted to drain the [surgical] area with a syringe, without success.” The report
contends that Dr. Velazquez thereafter sent Tiscareno home without providing her with
“appropriate treatment including antibiotic therapy[.]”
The next day, while Tiscareno was at the hospital visiting her daughter, her post-operative
wound ruptured “with significant fluid coming out.” Tiscareno was immediately admitted to the
hospital for a “post-operative infected wound.” The expert report does not discuss what treatment
2
Tiscareno received after the rupture. The report instead merely indicates that after Tiscareno was
admitted to the hospital, an infectious disease physician was consulted, who diagnosed Tiscareno
with a “post-operative wound infection likely secondary to infected amniotic fluid.”
The Lawsuit
Plaintiffs sued Dr. Velazquez, Dr. Harlass, and their medical practice, THN Physicians
Association.2 The complaint alleged Tiscareno had a “serious infection” when Dr. Velazquez
examined her on August 13 and that Dr. Velazquez failed to “properly evaluate and treat the
infection.”
The Expert Report
As provided by statute, Plaintiffs were required to serve a complying preliminary expert
report on Dr. Velazquez in support of their claims. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351
(West Supp. 2016); see also Tenet Hosps., Ltd. v. Garcia, 462 S.W.3d 299, 302-03 (Tex.App. – El
Paso 2015, no pet.). The report was authored by Lawrence S. Borow, M.D., a board-certified
obstetrician-gynecologist, with 40 years of experience. Dr. Velazquez did not raise any issues
concerning Dr. Borow’s qualifications.
Based on his review of the medical records, Dr. Borow opined that the standard of care
required Dr. Velazquez to provide antibiotic therapy to Tiscareno when she treated her on August
13, and that Dr. Velazquez breached that standard by “failing to provide appropriate treatment
including antibiotic therapy when …Tiscareno presented with signs and symptoms of post-partum
infection.” On the issue of causation, Dr. Borrow stated that:
Dr. Velasquez’ [sic] failure to recognize signs and symptoms of postpartum infection
and provide appropriate treatment resulted in progressive ongoing infection, and
2
Dr. Harlass also filed a motion to dismiss, which the trial court denied. Dr. Harlass also appealed, which we
considered separately in Appeal No. 08-15-00321-CV.
3
increased morbidity, requiring additional treatment. This breach of the standard of
care was a substantial cause of harm to Mrs. Tiscareno. Had Dr. Velasquez [sic]
complied with this standard of care, appropriate antibiotic therapy would have reduced
the ongoing progressive infection and decreased Mrs. Tiscareno’s suffering and
morbidity.
Objections and Motion to Dismiss
Dr. Velazquez filed objections to Dr. Borow’s expert report, as well as a motion to dismiss,
contending that the report was conclusory and therefore inadequate to meet the requirements of the
TMLA. After hearing, the trial court denied the motion.
DISCUSSION
In two issues, Dr. Velazquez contends the trial court abused its discretion in denying her
motion to dismiss, claiming the report did not meet the standards imposed by the TMLA. In her
first issue, Dr. Velazquez contends the report failed to adequately identify the standard of care and
how Dr. Velazquez allegedly breached that standard. In her second issue, she claims the report
failed to provide an adequate explanation how her alleged breach caused injury to Tiscareno. We
sustain both issues.
Standard of Review
The TMLA defines “expert report” to mean one that “provides a fair summary of the
expert’s opinions” regarding (1) the standard of care, (2) how the health care provider failed to
meet that standard, and (3) the causal relationship between that failure and the injury, harm, or
damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2016); see
also Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). A “fair summary of the expert’s
opinions” means that, at the least, the report must state more than mere conclusions, and must
instead explain the basis of the expert’s opinion so as to link the conclusions to the facts of the
4
case. See Garcia, 462 S.W.3d at 304 (citing American Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001)); see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002).
Once an expert report is timely served and properly challenged, the trial court must grant a
motion challenging the adequacy of an expert report 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. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012); Garcia, 462 S.W.3d at 304; see also
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). To qualify as an objective good faith effort, the
report must (1) inform the defendant of the specific conduct the plaintiff questions, and (2) provide
a basis for the trial court to conclude that the plaintiff’s claims have merit. Scoresby, 346 S.W.3d
at 556 (citing Palacios, 46 S.W.3d at 879); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625,
630-31 (Tex. 2013).
While the claimant need not marshal all her evidence to support the expert’s opinion, there
must be sufficient facts within the report to meet the objectives of the statute. Garcia, 462
S.W.3d at 304 (citing Palacios, 46 S.W.3d at 877). In determining whether the report meets those
requirements, the court should look no further than the report itself, because all of the information
relevant to the inquiry must be contained within the document’s four corners. Bowie Mem'l
Hosp., 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 878); see also Baker v. Gomez, 276 S.W.3d
1, 8 (Tex.App. – El Paso 2008, pet. denied). The court should not have to fill in missing gaps in a
report by drawing inferences or resorting to guess work. Garcia, 462 S.W.3d at 304 (citing Bowie
Mem’l Hosp., 79 S.W.3d at 52); see also Kanlic v. Meyer, 320 S.W.3d 419, 422 (Tex.App. – El
Paso 2010, pet. denied).
5
The trial court makes the decision whether an expert report is sufficient. Our role is to
determine if the trial court abused its discretion. Garcia, 462 S.W.3d at 304 (citing Tenet
Hospitals Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App. – El Paso 2009, pet. denied)); see also
Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006). A trial court abuses its discretion when it
acts arbitrarily or unreasonably and without reference to any guiding rules or principles. Garcia,
462 S.W.3d at 304; see also Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
Whether the Expert Report Adequately Described
the Standard of Care and Breach
In her first issue, Dr. Velazquez contends Dr. Borow’s report did not adequately address
the standard of care and breach.
The Standard of Care and Breach
“‘Identifying the standard of care is critical: Whether a defendant breached his or her duty
to a patient cannot be determined absent specific information about what the defendant should
have done differently.’” Gonzalez v. Padilla, 485 S.W.3d 236, 248 (Tex.App. – El Paso 2016, no
pet.) (quoting Palacios, 46 S.W.3d at 880); see also Clapp v. Perez, 394 S.W.3d 254, 259
(Tex.App. – El Paso 2012, no pet.). “‘While a “fair summary” is something less than a full
statement of the applicable standard of care and how it was breached, even a fair summary must set
out what care was expected, but not given.’” Padilla, 485 S.W.3d at 248 (quoting Palacios, 46
S.W.3d at 880). “‘Mere reference to general concepts regarding assessment, monitoring, and
interventions are insufficient as a matter of law.’” Id. (quoting Regent Health Care Ctr. of El
Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex.App. – El Paso 2008, no pet.)).
Analysis
Dr. Velazquez first contends Dr. Borow’s expert report did not adequately identify the
6
“signs and symptoms” of a postpartum infection that existed the time she examined Tiscareno on
August 13, and failed to explain how a reasonable physician would have been able to diagnose a
postpartum infection based on those signs and symptoms. Dr. Velazquez points out that in one
portion of his report, Dr. Borow stated that Tiscareno presented during her office visit with “pain
in the surgical area which was described as hard, red, and swollen,” but never expressly stated that
these were in fact signs and symptoms of a diagnosable postpartum infection requiring treatment.
Dr. Velazquez acknowledges that elsewhere in his report, Dr. Borow stated that Tiscareno
presented with signs and symptoms of a postpartum infection, but argues that the report failed to
“connect these two assertions.” Dr. Velazquez contends that in concluding the report was
sufficient, the trial court was required to make an “impermissible inference” that Dr. Borow meant
to say the described symptoms were in fact the type of symptoms that would have alerted a
reasonable physician that Tiscareno was suffering from a diagnosable and treatable condition.
We disagree.
Dr. Borow described within the four corners of his report the signs and symptoms that
Tiscareno presented with on the day of her office visit (i.e., that she had a pain in the surgical area
that was “hard, red, and swollen”), and that Tiscareno presented with signs and symptoms of
postpartum infection. The mere fact these statements are contained in different sections of the
four-page report is not dispositive. These statements are easily linked—not by inference—but by
simple reading comprehension. The report states that Tiscareno presented with one, and only
one, set of symptoms and that she presented with signs and symptoms of postpartum infection.
Although the report could have been better written in this regard, we conclude the report
adequately conveyed Dr. Borow’s opinion that Tiscareno’s symptoms presented that day were
7
symptoms indicating postpartum infection. The report thus adequately linked the facts of the case
to Dr. Borow’s conclusion. Garcia, 462 S.W.3d at 304; see also Bowie Mem’l Hosp., 79 S.W.3d
at 52 (the expert must “explain the basis of his statements to link his conclusions to the facts”). In
sum, Dr. Borow’s report was sufficient to adequately inform Dr. Velazquez of the specific conduct
the plaintiffs questioned and to provide a basis for the trial court to conclude that the Plaintiffs’
claims had merit.3 Scoresby, 346 S.W.3d at 556; see also Certified EMS, Inc., 392 S.W.3d at
630-31.
Dr. Velazquez also contends Dr. Borow’s report nevertheless failed to adequately explain
how Dr. Velazquez breached the standard of care. In particular, Dr. Velazquez contends the
report was inadequate because it alleged only that Dr. Velazquez failed to provide “appropriate
treatment including antibiotic therapy,” without specifying the type of antibiotic treatment that
should have been provided. According to Dr. Velazquez, Dr. Borow’s general statement that
antibiotic therapy was required did not provide a fair summary of “what care was expected, but not
given,” as required by the TMLA.4
3
Dr. Borow also indicated that Tiscareno’s surgical wound ruptured the next day and that she was later diagnosed
with a postpartum infection. We disagree with Plaintiffs’ assertion that these were also indications that Tiscareno was
suffering from a diagnosable condition of postpartum infection on the day of her office visit. What Dr. Velazquez
should have known on the day of the office visit can only be based on the signs and symptoms Tiscareno exhibited at
the time of the treatment itself. See Springer v. Johnson, 280 S.W.3d 322, 333 (Tex.App. – Amarillo 2008, no pet.)
(expert report must focus on the “clinical indicators” that would have prompted the treating physician to recognize the
patient’s condition and to initiate a particular treatment).
4
In this regard, Dr. Velazquez misplaces her reliance on Ibrahim v. Gilbride, No. 14-09-00938-CV, 2010 WL
5064430 (Tex.App. – Houston [14th Dist.] Dec. 9, 2010, no pet.) (mem. op.). In Ibrahim, the court found the report
failed to specify the medication that should have been prescribed. Id., at *11. Ibrahim, however, was not based
solely on the failure to describe the type of anti-seizure medication needed to treat the patient, but discussed numerous
other weaknesses not at issue in the present case, such as the failure to identify the seizure disorder suffered by the
plaintiff and its pathology and thus to show that medication was a necessary and potentially effective treatment. Id.
Unlike the report in Ibrahim, Dr. Borow’s report adequately identified the type of infection that Tiscareno was
suffering from at the time of her discharge (i.e., a postpartum infection), identified the pathology of the infection (i.e.,
an untreated postpartum infection stemming from infected amniotic fluid), and expressly stated that appropriate
antibiotic therapy would have been effective in preventing the ongoing infection. More importantly, Ibrahim dealt
with a much more complex questions regarding the nature of ongoing seizures, whether those seizures could be treated
8
As explained in more detail below, we agree with Plaintiffs that an expert is not required in
every case to describe the exact nature of the antibiotic treatment a defendant doctor should have
provided to a patient suffering from an otherwise diagnosable and treatable infection. See, e.g.,
Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (report was adequate where
it referred only to the need to treat the patient’s illness with “antibiotics”); see also Lakshmikanth
v. Leal, No. 13-08-00389-CV, 2009 WL 140741, at *3 (Tex.App. – Corpus Christi Jan. 22, 2009,
pet. denied) (mem. op.) (expressly rejecting the doctor’s argument that the expert report was
required to identify the type of antibiotics that should have been prescribed to prevent infection,
noting that the report otherwise clearly informed the doctor of the specific conduct the plaintiff
called into question, i.e., his failure to order antibiotics for the patient at the time of his discharge).
However, as discussed below, under the facts of the present case, the expert report was required to
provide greater detail in order to adequately explain what was expected of Dr. Velazquez and how
providing Tiscareno with antibiotic therapy during her office visit on August 13 would have
prevented the injuries Tiscareno suffered the very next day on August 14.
Whether the Expert Report Provided an Adequate Causation Opinion
In her second issue, Dr. Velazquez contends Dr. Borow’s opinion on causation was
inadequate because it was conclusory and failed to set out a causal connection between Dr.
Velazquez’s alleged breach and Tiscareno’s injuries. We agree.
The Adequacy of a Causation Opinion
An expert report must provide information linking the defendant’s purported breach of the
standard of care to the plaintiff's injury. Garcia, 462 S.W.3d at 310 (citing Bowie Memorial
or controlled, and if so, what type of treatment would be effective to accomplish that task—a much more arcane topic
than the typically less complex question whether an infection may be treated with appropriate antibiotics.
9
Hospital, 79 S.W.3d at 53). A court may not fill in missing gaps by drawing inferences or
guessing what the expert likely meant or intended, nor may we infer causation. Id. (citing Bowie
Mem’l Hosp., 79 S.W.3d at 52); see also Castillo v. August, 248 S.W.3d 874, 883 (Tex.App. – El
Paso 2008, no pet.) (causation cannot be inferred; it must be clearly stated). The report may not
have an “analytical gap” or a “missing link” between the expert’s allegation that the physician
defendant breached the standard of care and the plaintiff’s injuries. See Clark v. HCA, Inc., 210
S.W.3d 1, 11 (Tex.App. – El Paso 2005, no pet.). The adequacy standard at the TMLA pleading
stage is simple: we determine whether the expert report constitutes a “fair summary” of the issues
at play, a summary that includes an articulable, complete, and plausible explanation of how the
alleged breach led to the damages sustained. See Garcia, 462 S.W.3d at 308.
In medical malpractice cases, “plaintiffs are required to adduce evidence of a ‘reasonable
medical probability’ or ‘reasonable probability’ that their injuries were caused by the negligence
of one or more defendants, meaning simply that it is ‘more likely than not’ that the ultimate harm
or condition resulted from such negligence.” Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex.
2010) (citing Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993)).
However, statements based on reasonable medical probability, without explanation and without
tying the conclusions to the facts, are not sufficient. Id. at 539. Instead, “the expert must go
further and explain, to a reasonable degree, how and why the breach caused the injury based on the
facts presented.” Id. at 539-40. “While a claimant is not required to conclusively prove her case
through a preliminary expert report, the report may not merely state conclusions about any of the
elements.” Castillo v. August, 248 S.W.3d 874, 883 (Tex.App. – El Paso 2008, no pet.) (report
was inadequate concerning the physician’s failure to monitor a patient for signs of infection
10
following surgery, where the one-sentence statement on causation only generally alleged that the
physician’s actions were the cause of the patient’s subsequent condition).
Analysis
Dr. Velazquez attacks Dr. Borow’s causation opinion in two respects. First, Dr.
Velazquez points out that the expert report states that Tiscareno was examined by Dr. Velazquez
on August 13, and that her wound ruptured the next day on August 14. Dr. Velazquez contends
the report “simply opines that one event (one day delay in diagnosis of infection) caused another
(ongoing progressive infection and additional treatment) without explaining how and why.”
We note that in one line of cases, the courts have generally concluded that expert reports
are sufficient when the expert simply opines that the cause of the plaintiff’s injuries resulted from
the doctor’s failure to provide appropriate antibiotic therapy, without any additional description of
that therapy. See, e.g., Van Ness, 461 S.W.3d at 144 (report represented a good faith effort to
comply with the requirements of the TMLA where it stated that the patient’s illness was treatable
with antibiotics, and that the continued treatment with antibiotics probably would have prevented
the patient’s death); Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 796 (Tex.App. –
Dallas 2009, no pet.) (expert report indicating that patient’s condition was treatable with proper
antibiotics and that the doctor’s lack of appropriate treatment resulted in his death was sufficient to
link the doctor’s breach to the patient’s death); Romero v. Lieberman, 232 S.W.3d 385, 391
(Tex.App. – Dallas 2007, no pet.) (holding sufficient an expert report stating that patient would
have survived infection if given antibiotic treatment, and that the failure to start such treatment
resulted in the patient’s death); Spitzer v. Berry, 247 S.W.3d 747, 752 (Tex.App. – Tyler 2008, pet.
denied) (expert report was adequate where it stated the doctor’s breach caused the patient’s
11
injuries due to his failure to “maintain antibiotic therapy”).
On the other hand, in some instances, it is simply not clear from the expert report that
antibiotic treatment would have been effective to treat the patient. In those cases, a more
thorough medical explanation may be required. Timing can play an important role in determining
whether the report must provide a more detailed explanation of how antibiotic therapy would have
been effective in treating the patient and in preventing the injuries resulting from any failure to
treat.
For example, in Jelinek, the Court concluded that an expert report stating that a relatively
short lapse in providing antibiotics to a hospitalized patient prolonged the patient’s hospital stay
and increased his pain and suffering, was no more than a “bare assertion” that failed to present any
“explanation of how the breach caused the injury.” 328 S.W.3d at 540; see also Ngo v. Lewis, No.
09-10-00140-CV, 2010 WL 3518225, at *3 (Tex.App. – Beaumont Sept. 9, 2010, no pet.) (mem.
op.) (report failed to explain how alleged 25-minute delay in properly treating an infant who had
been exposed to infection during delivery would have changed the infant’s outcome or affected his
chance of survival).
Further, in cases where a patient presents with a pre-existing condition, such as an
infectious disease that has been brewing for some time, the expert report must provide an adequate
explanation regarding how any delay in providing treatment was a substantial factor in causing
harm the patient. See, e.g., Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245,
249 (Tex.App. – San Antonio 2004, no pet.) (expert report claiming that patient would have
survived but for the delays in diagnosing and treating her was insufficient where it failed to
describe “what treatment would have or could have been available, that the patient was a candidate
12
for the unknown treatment, or that the unknown treatment could have or would have been
effective”); see also Jones v. King, 255 S.W.3d 156, 160 (Tex.App. – San Antonio 2008, pet.
denied) (expert report was inadequate where it failed to explain how a 48-hour delay in diagnosis
caused the patient’s alleged injuries).
Ortiz v. Patterson, 378 S.W.3d 667, 673 (Tex.App. – Dallas 2012, no pet.), provides a
good example. In Ortiz, the patient presented at a hospital with various symptoms, including
fever and a high heart rate, which the expert report stated should have alerted the treating physician
that the patient was “very ill” and in need of a chest x-ray and a pulse oximetry assessment. The
report concluded that the doctor’s failures to perform the appropriate tests, to make the correct
diagnosis, and to refer the patient for hospital admission, did not meet the standard of care and
contributed to the patient’s “premature death” from pneumonia the next day. Id. The court
concluded the report was inadequate to explain how the alleged breach actually caused the
patient’s death because it failed to explain how performing the suggested tests would have altered
the patient’s outcome and prevented the patient from dying the next day. Id. at 674.
As in Ortiz, Dr. Borow’s expert report failed to adequately discuss how placing Tiscareno
on “appropriate antibiotic therapy” would have prevented her wound from rupturing the next day.
In particular, Dr. Borow stated that the infection had been brewing for several days after Tiscareno
was discharged from the hospital, while under the care of another doctor. The report however
failed to provide any medical explanation regarding the rate that Tiscareno’s infection might
progress, the type of antibiotics that may be required, or any necessary method of administration
(i.e., whether they needed to be administered orally, by injection or I.V. drip, or only after hospital
admission), and why this would have prevented the wound rupture that occurred less than 24 hours
13
later. Consequently, in upholding the report, the trial court was required to make an
impermissible inference that there was an antibiotic treatment available that would have prevented
Tiscareno’s wound from rupturing the next day.
The level of detail required in an expert report must be determined on a case-by-case basis,
and will necessarily vary depending, in part, on the complexity of the case. See, e.g.,
Mendez-Martinez v. Carmona, ___ S.W.3d __, 2016 WL 1613422, at *5 (Tex.App. – El Paso
April 22, 2016, no pet.). An expert may not be required in every case to provide a detailed
description of the biological process by which a disease progresses or the process by which a
particular medication might stop that progress. However, as here, when it is unclear from the
expert report how a patient with a pre-existing condition would have had a better outcome if there
had not been a short delay in diagnosis and treatment, some medical explanation is required to link
the delay to the patient’s outcome. See Bowie Mem’l Hosp., 79 S.W.3d at 50-51 (report was too
conclusory to meet the requirements of an adequate report where it stated only that if a physician
had properly read the x-rays of a patient’s foot, which was ultimately found to have been fractured
following an accident, and had acted upon those findings, the patient “would have had the
possibility of a better outcome”); Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 755-56 (Tex.App. –
El Paso 2011, no pet.) (expert report that made “broad” and “conclusory” allegation that a patient
who died of cardiac arrest “would more likely than not be alive today” if the defendant hospital
had consulted a pulmonologist during a plaintiff’s hospital stay, was inadequate, where it provided
no “medical explanation” of how consulting with a pulmonologist would have resulted in a
different outcome). While no magic words or particular terms or phrases are required, the
converse is also true: merely stating there was a reasonable probability that a better outcome
14
would have occurred is insufficient to show causation. Costello, 141 S.W.3d at 249 (citing
Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711–12 (Tex. 1997)).
Plaintiffs cite to numerous cases to support their argument that there was no need for Dr.
Borow’s causation opinion to be more specific, and that it was sufficient to simply state that
appropriate antibiotic treatment would have avoided the complications allegedly resulting from
the delay in treatment. All of those cases, however, involved the physician’s failure to monitor or
to test the patient.5 The expert reports were found to be adequate because the experts opined that
the patient would have had a better outcome if the doctor had properly monitored the patient or if
proper diagnostic tests and evaluations had been timely performed, and that the failure to perform
such tests led to delays in diagnosing serious medical conditions, which could have been
successfully treated if found earlier. In all of those cases, the focus was on the doctor’s failure to
perform diagnostic tests or to properly evaluate the patient, not on what type of treatment should
have been given. In contrast, Plaintiffs’ sole claim in the present case is that Dr. Velazquez did
not provide appropriate antibiotic therapy to treat Tiscareno’s infection at the time of her office
5
See, e.g., Bustillos v. Rowley, 225 S.W.3d 122, 130-31 (Tex.App. – El Paso 2005, pet. denied) (failure-to-monitor
case where the expert report was found to be adequate on causation based on expert’s statements that proper
monitoring would have detected the patient’s pulmonary edema, which in turn that could have been properly treated if
found in time); Adeyemi v. Guerrero, 329 S.W.3d 241, 245 (Tex.App. – Dallas 2010, no pet.) (expert report provided
an adequate causation opinion where it stated that ordering a CT Scan or a neurological evaluation to determine the
source of the patient’s persistent headaches following a fall in the hospital would have led to detection of patient’s
hematoma, and that if given appropriate treatment three days earlier, she could have avoided the multiple
complications that she ultimately suffered); Moore v. Sutherland, 107 S.W.3d 786, 790 (Tex.App. – Texarkana 2003,
pet. denied) (expert report provided an adequate causation opinion where it stated that ordering a post-surgical
evaluation to rule out bile peritonitis during the four days that the patient was in the hospital would have prevented her
death three days after her discharge, despite any discussion of what type of treatment could have been given to the
patient in the interim to prevent the patient’s death); see also Sides v. Guevara, 247 S.W.3d 293, 301-02 (Tex.App. –
El Paso 2007, no pet.) (expert report provided an adequate causation opinion where it stated, among other things, that
the defendant doctor failed to “appreciate and diagnose” the patient’s ongoing toe problem, which expert believed led
to the patient’s post-surgical infection, despite experts failure to explain precisely what type of treatment could have
been given to the patient to avoid the infection).
15
visit.6 As such, Dr. Borow’s report was required to supply the direct missing link, i.e., how a
one-day failure to treat a pre-existing infection with antibiotics led to Tiscareno’s injuries.
Given the timing of Tiscareno’s office visit, which was at least five days after her infection
began, and the fact that Tiscareno’s wound ruptured the very next day after her office visit, we
conclude it was incumbent upon Dr. Borow to provide a more detailed medical explanation to
support his conclusion that Dr. Velazquez failed to meet the standard of care and that her failure to
provide appropriate antibiotic treatment caused Tiscareno’s alleged injuries.
Dr. Velazquez also criticizes Dr. Borow’s report for failing to describe the “additional
treatment” Tiscareno was forced to endure because of Dr. Velazquez’s failure to provide
appropriate antibiotic treatment on the day of her office visit. Dr. Velazquez provides no
authority for the proposition that an expert must provide a detailed description of the nature of the
treatment a patient received as the result of her alleged injuries, and we know of none. In any
event, although his report is not a model of clarity, Dr. Borow did make a good faith effort to
explain the nature of the injuries suffered by Tiscareno as the result of Dr. Velazquez’s alleged
failure to treat Tiscareno with appropriate antibiotic therapy, contending that this alleged failure
led to an ongoing infection, which ultimately resulted in Tiscareno’s surgical wound rupturing on
August 14, and which required her admission to the hospital, as well as a consultation with an
infectious disease physician. This is sufficient to pass the hurdle of providing fair notice of the
general nature of the injuries Tiscareno believes resulted from Dr. Velazquez’s allegedly negligent
acts or omissions. See Palacios, 46 S.W.3d at 879 (expert report need not be formal and its
information need not meet the evidentiary requirements of a summary judgment proceeding or at
6
We note that in his report Dr. Borow appears to believe that Dr. Velazquez did in fact diagnose Tiscareno with an
infection, as she attempted to drain the surgical site during the office visit, but that she simply provided the wrong
treatment at that time.
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trial); see also Spitzer, 247 S.W.3d at 750 (providing that a “‘fair summary’” in an expert report is
“‘something less than a full statement’ of the applicable standard of care, how it was breached, and
how that breach caused the injury”). At this early stage in the proceedings, a plaintiff “need not
drill down into every possible detail in every case in order to survive dismissal[.]”
Mendez-Martinez, 2016 WL 1613422, at *6.
Remand for Opportunity to Amend
We conclude the trial court abused its discretion in denying Dr. Velazquez’s motion to
dismiss. However, because Plaintiffs have not been given an opportunity to cure any deficiencies
in Dr. Borow’s report, and because their report is not so deficient as to constitute no report at all,
we remand for the trial court to consider granting a thirty-day extension to allow Plaintiffs to
attempt to cure the deficiencies in the report with regard to their claims.7 See Tenet Hosps. Ltd. v.
De La Riva, 351 S.W.3d 398, 407-08 (Tex.App. – El Paso 2011, no pet.) (upon finding that trial
court abused its discretion in denying the defendant doctor’s motion to dismiss, proper course of
action was to remand the case to the trial court to consider whether the deficiencies could be cured,
and therefore, whether to grant an extension of time) (citing Leland v. Brandal, 257 S.W.3d 204,
207–08 (Tex. 2008)); see also Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (stating that
a deficient report may be cured by amending the report or by serving a new report from a separate
expert that cures the deficiencies in the previously filed report). In doing so, we note that the trial
court “should be lenient in granting thirty-day extensions and must do so if deficiencies in an
expert report can be cured within the thirty-day period.” Tenet Hosps. Ltd. v. Bernal, 482 S.W.3d
165, 176 (Tex.App. – El Paso 2015, no pet.) (citing Scoresby, 346 S.W.3d at 554).
7
When a timely-filed expert report is deficient, the trial court may grant one thirty-day extension to cure the
deficiencies, unless it is objectively shown that the report was not filed in good faith, at which point, dismissal is
required. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
17
CONCLUSION
We reverse the trial court’s order denying Dr. Velazquez’s motion to dismiss and remand
for further proceedings consistent with this opinion.
STEVEN L. HUGHES, Justice
August 17, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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