pedro-e-estorque-jr-md-individually-and-dba-pedro-e-estorque ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-424-CV
PEDRO E. ESTORQUE, JR., M.D., APPELLANTS
INDIVIDUALLY AND D/B/A PEDRO E.
ESTORQUE, JR., M.D., P.A. AND
AMJAD AWAN, M.D., INDIVIDUALLY
AND D/B/A NORTH TEXAS
GASTROENTEROLOGY
CONSULTANTS, P.A.
V.
SHIRLEY SCHAFER AND APPELLEES
ANTHONY B. SCHAFER
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. Introduction
This is an interlocutory appeal from a denial of a motion to dismiss
challenging the sufficiency of an expert report in a health care liability claim.
Appellants are Dr. Pedro Estorque, Jr., individually and d/b/a Pedro Estorque,
Jr., M.D., P.A., and Dr. Amjad Awan, individually and d/b/a North Texas
Gastroenterology Consultants, P.A. Appellants challenge the trial court’s order
denying their motions to dismiss the expert report submitted by Appellees
Shirley Schafer and Anthony Schafer. In three issues, Dr. Estorque argues that
the trial court abused its discretion by denying his motion because the Schafers’
expert report (1) evidenced the expert’s lack of qualifications to opine on
causation, (2) lacked sufficient explanation of the causal relationship between
the breach of care and injury, and (3) lacked explanation of the negligence claim
against Pedro Estorque’s professional association. Dr. Awan raises the same
expert qualifications, causation, and professional association arguments as Dr.
Estorque and additionally challenges the report’s identical criticisms of both his
actions and Dr. Estorque’s actions. 1 We affirm in part and reverse in part.
II. Factual and procedural background
The Schafers’ original petition contained the following allegations: on
March 6, 2006, Shirley arrived at the Presbyterian Hospital emergency room,
presenting with severe abdominal pain. Her family physician, Dr. Estorque,
admitted her to the hospital for evaluation. Dr. Estorque performed a CT scan
on Shirley’s abdomen and pelvis. The examination report noted a “4.8
1
… Dr. Awan argues that the expert report should have separately
addressed North Texas Gastroenterology Consultants, P.A.
2
centimeter cyst on the right ovary and a smaller cyst on the left ovary,” a
“dilated upper left pale collecting system with a dilated left ureter where a 3.0
millimeter kidney stone was visualized,” and “an inflammatory focus related to
sigmoid diverticulitis.” Dr. Estorque referred Shirley to a gastroenterologist, Dr.
Amjad Awan, who consulted during her hospitalization. Dr. Awan further
investigated her gastrointestinal-related symptoms and treated Shirley for
alleged diverticulitis starting in April 2006. Neither Dr. Estorque nor Dr. Awan
referred Shirley to any other doctors.
Shirley continued to feel abdominal pain for nine months after her
consultations with both doctors. In December, she consulted with Dr. Fred
Cummings, her gynecologist, who reviewed Shirley’s chart from her March 6
hospital visit, noting her gynecological and renal issues.2 On December 2, a
new CT scan of her abdomen and pelvis revealed that the 4.8 centimeter cyst
revealed in the previous March 6 CT scan had enlarged to 7.2 centimeters and
that her left kidney demonstrated “a markedly distended upper pale collecting
system” and “intrarenal calculi.” Dr. Cummings performed a laparoscopic
2
… Shirley had a kidney stone in 2003. At that time, Dr. Estorque had
referred her to Dr. Admire, who performed a left renal shockwave lithotripsy to
treat the kidney stone.
3
oophorectomy.3 On December 9, 2006, Dr. Admire performed a cystoscopy,
left ureteroscopy, and removal of the stone, with placement of stents in the
ureters. The ovarian cysts were benign; however, the delay in treating Shirley’s
renal problems allegedly resulted in loss of the “total function of one kidney.”
On May 19, 2008, the Schafers sued Appellants for negligence, asserting
that Dr. Estorque and Dr. Awan breached their standards of care when they
each viewed the CT scan results and failed to obtain gynecological and
urological consults for Shirley. Within 120 days of filing suit, the Schafers
served the statutorily-required expert report on Appellants. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Dr. Keith Miller, a board-
certified family physician, wrote the report.
Dr. Awan and Dr. Estorque filed motions to dismiss, objecting to the
adequacy of the expert report. Dr. Awan objected to (1) Dr. Miller’s
qualifications to opine as to the standard of care, (2) Dr. Miller’s qualifications
as to causation, (3) Dr. Miller’s failure to provide sufficient information
regarding standard of care and causation for each individual physician, and (4)
Dr. Miller’s speculative causation opinions. Dr. Estorque also objected to (1) Dr.
3
… An oophorectomy is also known as an “ovariectomy,” which is “the
surgical rem oval of an ovary.” See Dictionary.com ,
http://dictionary.classic.reference.com/browse/ovariectomy (last visited Sept.
16, 2009).
4
Miller’s qualifications to render an opinion on causation and (2) the sufficiency
of the report to meet the statutory and case law requirements for causation.
The trial court overruled the objections and denied the motions to dismiss.
This interlocutory appeal immediately followed.4
III. Standard of review
A trial court’s ruling concerning an expert report under section 74.351
(formerly article 4590i, section 13.01) of the Medical Liability and Insurance
Act is reviewable under the abuse of discretion standard. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351; Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 875 (Tex. 2001). To determine whether a trial court abused its
discretion, we must decide whether the trial court acted without reference to
any guiding rules or principles; in other words, we must decide whether the act
was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004). An appellate court cannot conclude that a trial court abused its
discretion merely because the appellate court would have ruled differently in the
4
… See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008)
(authorizing appeal from trial court order determining that expert report was
adequate and denying motion to dismiss).
5
same circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I. du Pont de Nemours
& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
IV. Statutory requirements
A health care liability claimant must serve an expert report on each
defendant no later than the 120th day after the claim is filed. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351. If the claimant does not serve an expert
report on a defendant physician or health care provider within the 120-day
period, then on the motion of the affected physician or health care provider, the
trial court must dismiss the claim with prejudice. Id. § 74.351(b).
A defendant may challenge the adequacy of a report by filing a motion to
dismiss. Id. § 74.351(l). The trial court must grant the motion to dismiss if it
finds, after a hearing, that “the report does not represent an objective good
faith effort to comply with the definition of an expert report” in the statute. Id.
While the expert report “need not marshal all of the plaintiff’s proof,” it must
provide a fair summary of the expert’s opinions as to the “applicable standard
of care, the manner in which the care rendered by the physician or health care
provider failed to meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6); Palacios,
46 S.W.3d at 878 (construing former article 4590i, § 13.01).
6
To constitute a good faith effort, the report must discuss the standards
of care, breach, and causation with sufficient specificity (1) to inform the
defendant of the conduct the plaintiff has called into question and (2) to provide
the trial court with a basis to conclude that the claims have merit. See Bowie
Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. A report does not fulfill
this requirement if it merely states the expert’s conclusions or if it omits any of
the statutory requirements. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46
S.W.3d at 879. But the information in the report “does not have to meet the
same requirements as the evidence offered in a summary-judgment proceeding
or at trial.” Palacios, 46 S.W.3d at 879.
When reviewing the adequacy of a report, the only information relevant
to the inquiry is the information contained within the four corners of the
document. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. This
requirement precludes a court from filling gaps in a report by drawing inferences
or guessing as to what the expert likely meant or intended. See Austin Heart,
P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).
However, section 74.351 does not prohibit experts, as opposed to courts, from
making inferences based on medical history. Marvin v. Fithian, No. 14-07-
00996-CV, 2008 WL 2579824, at *4 (Tex. App.—Houston [14th Dist.] July
1, 2008, no pet.) (mem. op.); see also Tex. R. Evid. 703 (providing that an
7
expert may draw inferences from the facts or data in a particular case); Tex. R.
Evid. 705 (providing that expert may testify in terms of opinions and
inferences).
If a timely served document intended by a claimant to be an expert report
is determined by the trial court to be deficient in complying with statutory
requirements, the trial court may grant one thirty-day extension to the claimant
in order to cure the deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).
If the court determines that the report is adequate, the defendant may challenge
that ruling by interlocutory appeal. Id. § 51.014(a); Funderburk, 253 S.W.3d
at 207. An appeals court may find an expert report deficient and remand the
case to the trial court to decide whether to grant a thirty-day extension to cure
the deficiency. See Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008).
IV. Dr. Miller’s qualifications for causation
Dr. Estorque argues in his first issue and Dr. Awan argues in his third
issue that Dr. Miller is not qualified to render opinions on causation in this case.
A. Applicable Law
A person is qualified to give opinion testimony concerning the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care only if the person (1) is a
physician and (2) is otherwise qualified to render opinions on the causal
8
relationship under the Texas Rules of Evidence. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.351(r)(5)(C), 74.403(a) (Vernon 2005). The party offering
the witness as an expert on causation must establish that the witness is
qualified to testify under Texas Rule of Evidence 702. Mem’l Hermann
Healthcare Sys. v. Burwell, 230 S.W.3d 755, 762–63 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (holding doctor was qualified to opine on causation
because report demonstrated direct experience with treating condition at issue).
To be qualified under Rule 702, an expert witness must have “knowledge,
skill, experience, training, or education” regarding the specific issue before the
court. Tex. R. Evid. 702; Thomas v. Alford, 230 S.W.3d 853, 857, 860 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). Qualifications must appear in the
expert report and cannot be inferred. See Olveda v. Sepulveda, 141 S.W.3d
679, 683 (Tex. App.—San Antonio 2004, pet. denied). When a party can
show that a subject is substantially developed in more than one field, testimony
can come from an expert in any of those fields. Thomas, 230 S.W.3d at 857
(citing Broders v. Heise, 924 S.W.2d 148, 154 (Tex. 1996)). The analysis of
the expert’s qualifications under section 74.351 is limited to the four corners
of the expert report and the expert’s curriculum vitae. See Palacios, 46 S.W.3d
at 878.
9
A physician does not need to be a practitioner in the same speciality as
the defendant to qualify as an expert. See Broders, 924 S.W.2d at 153; Moheb
v. Harvey, 2008 WL 5501166, at *6 (Tex. App.—Beaumont Jan. 15, 2009,
no pet.) (mem. op., not designated for publication). The proper inquiry in
assessing a doctor’s qualifications to submit an expert report is not his area of
expertise but his familiarity with the issues involved in the claim before the
court. See Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.]
1999, no pet.). A physician who is not of the same school of medicine may be
competent if he has practical knowledge of what is usually and customarily
done by a practitioner under circumstances similar to those confronting the
defendant. See Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex. App.—Fort Worth
2004, pet. denied).
B. Analysis
Dr. Estorque and Dr. Awan argue that Dr. Miller did not have sufficient
qualifications in the specialities of nephrology, urology, and gynecology to
render opinions on the causal relationship between the physicians’ failure to
refer and the resulting kidney disorders and gynecological cysts.
To establish his qualifications, Dr. Miller was required to demonstrate his
knowledge, skill, experience, training, or education regarding the specific issue
raised by the Schafers’ claim that would qualify him to give an opinion on that
10
subject. See Ehrlich, 144 S.W.3d at 625; see also Roberts v. Williamson, 111
S.W.3d 113, 120–21 (Tex. 2003). The Schafers’ original petition indicates
that their negligence issue relates to Shirley’s alleged injuries resulting from
both doctors’ conduct in their diagnosis, treatment, and lack of referral for her
exhibited abdominal pain, rather than any injury from a specialized treatment or
surgery performed by Dr. Awan or Dr. Estorque. The specialized branches of
nephrology, urology, and gynecology are not implicated by the physician’s
alleged negligence in failing to refer Shirley to other specialists for the renal and
ovarian problems revealed in the CT scan. See Mosely v. Mundine, 249
S.W.3d 775, 779 (Tex. App.—Dallas 2008, no pet.) (stating that alleged
conduct causing the patient’s injuries related to the physician’s ability to
interpret a routine chest x-ray and identify an abnormality rather than to
diagnose and treat cancer).
Dr. Miller stated that he had experience treating patients with symptoms
similar to the symptom’s Shirley exhibited from March 2006 to December
2006. Dr. Miller stated that the standards for treating patients with similar
signs, symptoms, and conditions are “national standards of care” and “apply
to all physicians.” Dr. Miller stated that he was familiar with the causes of
abdominal pain, kidney stones, ureteral obstruction, and ovarian masses. He
also stated that he was familiar with complications arising from the referenced
11
medical conditions and that he participated in the development and use of
protocols, policies, and procedures for patients with similar conditions. Dr.
Miller stated that he “kn[e]w the accepted standards of care, the breaches and
violations of the standards of care, and the causation link between the breaches
and violations of the standard of care as they apply to Dr. Pedro Estorque and
Dr. Amjad Awan, on the basis of [his] education, knowledge, training, and
experience.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C).
Dr. Miller stated that he acquired his “education, knowledge, training, and
experience” through attending classes that taught the evaluation, treatment,
diagnosis, and care of patients with the same or similar conditions as Shirley.
Dr. Miller further stated that he acquired knowledge about Shirley’s conditions
through practical experience, medical conferences, technical works published
in textbooks and journals, consultations with other physicians, communications
with hospital nurses, staff and residents, lectures personally given in
conferences, participation in hospital committees, and observation of the nurses
and supervising residents that care and treat patients with the same or similar
medical conditions as Shirley.
Based on his knowledge, skill, experience, training, and education, we
conclude that Dr. Miller is qualified to opine about causation as to both Dr.
Estorque and Dr. Awan. See Tex. R. Evid. 702; compare Mosely, 249 S.W.3d
12
at 779 (holding that expert’s knowledge regarding emergency room physicians’
scope of practice qualified him to opine on causal link between failing to
interpret abnormality in x-ray and claimant’s cancer), and Palafox v. Silvey, 247
S.W.3d 310, 316 (Tex. App.—El Paso 2007, no pet.) (holding physician’s
experience and training with elderly patients and knowledge of “swallowing
mechanism” sufficient to opine about causal link between the non-pureed diet
and aspiration-related death), with Collini v. Pustejovsky, 280 S.W.3d 456, 466
(Tex. App.—Fort Worth 2009, no pet.) (holding doctor not qualified to opine on
causation when he did not state experience or training regarding prescribing
Reglan or diagnosing tardive dyskinesia to support statements about the
physician’s course of treatment).
We hold that the trial court did not abuse its discretion in overruling
Appellants’ objections for this issue. We therefore overrule both Dr. Estorque’s
first issue and Dr. Awan’s third issue concerning Dr. Miller’s qualifications to
opine on causation.
V. Dr. Miller’s causation statements
Dr. Estorque argues in his second issue and Dr. Awan argues in his first
issue that Dr. Miller failed to provide a specific causal link between the health
care providers’ breach of the standard of care and the injury or damages.
13
A. Applicable Law
An expert report must provide a fair summary of the causal relationship
between the failure of a health care provider to meet the standards of care and
the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6); Palacios, 46 S.W.3d at 875, 878. An expert report cannot
merely state the expert’s conclusions about the statutory elements; the expert
must explain the basis of his statements made regarding causation and link his
conclusions to the facts. See Bowie Mem’l, 79 S.W.3d at 52. An expert
report does not sufficiently address the causation element if it merely
“‘provide[s] insight’ about the plaintiff’s claims.” Id. A causal relationship is
established by proof that the negligent act or omission was a substantial factor
in bringing about the harm and that absent said act or omission, the harm
would not have occurred. Costello v. Christus Santa Rosa Health Care Corp.,
141 S.W.3d 245, 249 (Tex. App.— San Antonio 2004, no pet.). The expert
report must explain how the alleged breach caused the harm or injury. See
Bowie Mem’l, 79 S.W.3d at 53; Collini, 280 S.W.3d at 467; Bidner v. Hill, 231
S.W.3d 471, 475 (Tex. App.— Dallas 2007, pet. denied). However, to avoid
dismissal, a plaintiff need not present all the evidence necessary to litigate the
merits of his case. Palacios, 46 S.W.3d at 879; Patel v. Williams, 237 S.W.3d
901, 904 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
14
B. Analysis
Dr. Miller stated, separately as to each physician, that Dr. Estorque and
Dr. Awan failed to apply the standard of care required “during the
hospitalization of [Shirley] on 3-6-06.” Dr. Miller stated that each doctor
“should have obtained a urological consultation and/or referral in order to obtain
definitive care and treatment of Shirley’s ureteral obstruction.” He also stated
each doctor “should have obtained a gynecological consultation and/or referral
in order to obtain definitive care and treatment for [Shirley]’s ovarian mass.”
Dr. Miller concluded that Dr. Estorque’s and Dr. Awan’s “failure to practice
according to acceptable standards, more likely than not and to a reasonable
degree of medical probability, resulted in loss of function of [Shirley]’s kidney”
and “resulted in needless pain and suffering to [Shirley].” In his summary
section, Dr. Miller added that:
More likely than not, this failure on the part of . . . Dr. Pedro
Estorque and Dr. Amjad Awan, to practice in an acceptable manner
directly resulted in [Shirley]’s delayed diagnosis and treatment of
kidney stones, ureteral obstruction, and ovarian masses, as well as
overall worsening of her condition, pain, mental anguish, loss of
dignity, and loss of kidney function. As more specifically set forth above,
the actions, and inactions, of Dr. Pedro Estorque and Dr. Amjad
Awan, caused the conditions and complications described above. 5
5
… Dr. Miller also stated that “these negligent acts and omissions as
stated above, proximately caused [Shirley]’s delayed diagnosis and treatment
of kidney stones, ureteral obstruction, and ovarian masses, as well as overall
15
It is Dr. Miller’s opinion, as stated in his report, that “[h]ad the standards of
care been followed by [the physicians], then, more likely than not, and based
upon a reasonable degree of medical certainty, [Shirley] would not have
suffered her delayed diagnosis and treatment of kidney stones . . . [and the
other listed conditions].”
Dr. Miller’s report does not explain the basis of his opinions as to
causation; his report leaves gaps by not explaining how or why the physicians’
failure to consult a urologist or gynecologist caused worsening or progression
of Shirley’s listed conditions. See Ehrlich, 144 S.W.3d at 628 (holding report
conclusory because it failed to link alleged negligent activity to the specific
injuries in the case); Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex.
App.—San Antonio 2004, no pet.) (holding report conclusory because it did not
provide sufficient information linking the failure to order an arteriogram to
Hutchinson’s eventual leg amputation); cf. Polone v. Shearer, 287 S.W.3d 229,
236–37 (Tex. App.—Fort Worth, no pet.) (holding causation report not
conclusory because experts linked the failure to timely evaluate breast mass
and pain to the progressive growth and increased risk of metastatic breast
cancer with subsequent morbidity and mortality), and Eikenhorst v. Wellbrock,
worsening of her condition, pain, mental anguish, loss of dignity, and loss of
kidney function.”
16
No. 01-07-00459-CV, 2008 WL 2339735, at *10 (Tex. App.—Houston [1st
Dist.] 2008, no pet.) (mem. op., not designated for publication) (holding
causation report not conclusory because expert stated that patient would have
received immediate surgery and would have had a greatly recovered health
status had he obtained an early diagnosis). Dr. Miller’s report does not provide
a chain of causation that adequately describes how the ureter, kidney, and
ovarian conditions, left untreated, progressed to the claimed injured state and
how Dr. Estorque’s and Dr. Awan’s acts were a substantial factor in this
progression. See Costello, 141 S.W.3d at 249 (holding report did not explain
how alleged failure to act was a substantial factor in bringing about patient’s
death).
Beyond Dr. Miller’s statement that had the standards of care been
followed, Shirley would not have suffered her delayed diagnosis and subsequent
conditions, Dr. Miller does not explain how the injuries would not have occurred
if Dr. Estorque and Dr. Awan had obtained consults from a urologist and
gynecologist earlier in Shirley’s course of treatment. Compare Eikenhorst, 2008
WL 2339735, at *10 (holding causation sufficient where expert stated that
“surgical intervention would have reliev[ed] pressure on the spinal cord and
stabiliz[ed] the spine”), with Jones v. King, 255 S.W.3d 156, 160 (Tex.
App.—San Antonio 2008, pet. denied) (holding that expert report needed an
17
explanation that “earlier treatment would have shortened the duration of
meningitis, precluding additional pain and suffering, or preventing other alleged
injuries or damages”). Dr. Miller did not explain how the alleged breaches led
to a deterioration of kidney function and triggered needless pain and suffering,
and we cannot infer that failing to notify and send Shirley to a urologist and
gynecologist was a substantial factor in causing the alleged conditions and
injuries. See Collini, 280 S.W.3d at 467 (holding expert report did not
sufficiently explain how Dr. Collini’s prescriptions of Reglan led to Pustejovsky’s
condition).
Based on the report’s limited description of causation, we cannot say that
Dr. Miller sufficiently explained how the doctors’ inaction caused Shirley’s
injuries to provide the trial court with a basis to conclude that the Schafers’
claim had merit. See Bowie Mem’l, 79 S.W.3d at 52. Therefore, the trial court
abused its discretion by denying the motions, and we sustain Dr. Estorque’s
second issue and Dr. Awan’s first issue.
VI. Dr. Miller’s criticism of the two physicians
Dr. Awan argues in his second issue that an expert report must provide
an individualized assessment of the statutory elements as to each health care
provider that has been sued.
18
A. Applicable law for multiple defendants
When a plaintiff sues more than one defendant, the expert report must
set forth the standard of care applicable to each defendant and explain the
causal relationship between each defendant’s individual acts and the injury.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6); Sanjar v. Turner,
252 S.W.3d 460, 465 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Collective assertions of negligence against various defendants are inadequate.
See CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex.
App.—Houston [1st Dist.] 2007, no pet.) (stating that claimant failed to
address various negligence elements for hospital, nurses, and staff); Doades v.
Syed, 94 S.W.3d 664, 671–72 (Tex. App.—San Antonio 2002, no pet.)
(holding that report failed to identify standard of care for each of the defendant
health care providers). Identifying the correct standard of care is essential
because the trial court cannot determine whether each doctor breached his or
her duty without specific information about what that particular doctor should
have done. See Palacios, 46 S.W.3d at 880.
B. Analysis
Dr. Miller stated that the accepted standards of care for the “assessment,
diagnosis, and treatment of medical conditions similar to those of [Shirley] apply to
all physicians.” Dr. Miller listed the same standard of care, in separate sentences,
19
for both physicians: that they were required, while caring for Shirley, to obtain
a “urological” and “gynecological consultation” for the ureteral obstruction and
ovarian mass. All of the listed defendants in the case were involved in Shirley’s
diagnosis for her abdominal pain; both Dr. Estorque and Dr. Awan 6 diagnosed
Shirley’s symptoms following her initial CT scan. Dr. Awan argues that the
report fails to give an “individualized analysis” of his conduct; however, based
on each party’s recitation of the facts, Dr. Estorque and Dr. Awan did not
appear to have different roles or duties for the Schafers’ asserted diagnostic
and referral issue. In their petition, the Schafers are not challenging Dr. Awan’s
subsequent gastroenterological course of treatment; rather, they argue that Dr.
Awan and Dr. Estorque breached the standard of care when both physicians
read the CT scans, failed to disclose the results to Shirley, and then failed to
refer Shirley to specialists in urology and gynecology.
Although Dr. Miller uses the same standard for both physicians, his report
outlines each doctor’s standard of care separately, identifying each doctor and
his standard of care in the case. See Romero v. Lieberman, 232 S.W.3d 385,
392 (Tex. App.—Dallas 2007, no pet.) (holding same standard of care adequate
for all listed medical doctors involved in treating septicemia condition); In re
6
… Both doctors were working in the course of their employment in their
professional associations, which we will address in the next section.
20
Stacy K. Boone, P.A., 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006,
orig. proc.) (holding expert report adequate on standard of care for multiple
defendants where each defendant was in the same type of care and the
standard was the same for each); Cf. Taylor v. Christus Spohn Health Sys.
Corp., 169 S.W .3d 241, 245 (Tex. App.—Corpus Christi 2004, no pet.)
(holding that report failed to address separate standards of care for varied
duties of the defendants, including the hospital, doctors’ association,
emergency room physician, and cardiologist). Dr. Estorque and Dr. Awan may
disagree with Dr. Miller’s opinions regarding the standard of care applicable to
each of them, but the standards of care are sufficiently stated to provide both
physicians with notice of the conduct at issue. See In re Boone, 223 S.W.3d
at 406. Because Dr. Miller applied the proper standard of care for both
physicians’ identical conduct, we must overrule this segment of Dr. Awan’s
second issue.
VII. Dr. Miller’s treatment of the professional associations
Dr. Estorque argues in his third issue and Dr. Awan argues in his second
issue that the report fails to contain sufficient criticism or analysis of their
respective professional associations, “North Texas Gastroenterology
Consultants, P.A.” and “Dr. Pedro E. Estorque, Jr. M.D., P.A.”
21
A. Applicable law
A plaintiff must provide an expert report to each health care provider
against whom he or she has alleged a health care liability claim, or the claim
must be dismissed on the health care provider’s motion. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(b). Under section 24 of the Professional
Associations Act (“the Act”), “the association (but not the individual members,
officers or directors) shall be jointly and severally liable with the officer or
employee furnishing professional services for such professional errors,
omissions, negligence, incompetence, or malfeasance on the part of such
officer or employee when such officer or employee is in the course of his
employment for the association.” Tex. Rev. Civ. Stat. Ann., art. 1528f, § 24
(Vernon 2003); Obstetrical and Gynecological Assocs., P.A. v. McCoy, 283
S.W.3d 96, 105 (Tex. App.—Houston [14th Dist.] 2009, pet. filed) (holding
that the legal consequences to a professional association are based solely on
the doctors’ conduct, making the need for a separate expert report
unnecessary) (citing Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d
893, 902–03 (Tex. 2005)). Under the Act, the negligence of a professional
association’s employee is imputed to the association; thus if an expert report
is sufficient as to specific claims against the doctor, then the report is sufficient
as to the same claims against the professional association. See Ctr. for
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Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort
Worth 2008, pet. denied). Further, the Texas Supreme Court recently stated
in Gardner v. U.S. Imaging, Inc. that “[w]hen a party’s alleged health care
liability is purely vicarious, a report that adequately implicates the actions of
that party’s agents or employees is sufficient.” 274 S.W.3d 669, 671–72
(Tex. 2008).
B. Analysis
It is undisputed that Dr. Estorque and Dr. Awan were acting in the course
and scope of their employment at their respective professional associations
when they initially examined Shirley’s symptoms in March 2006. See Tex. Rev.
Civ. Stat. Ann., art. 1528f, § 24; Battaglia, 177 S.W.3d at 901-02 (explaining
that “[n]either the pleadings nor the evidence furnished any basis for drawing
distinctions between the physicians and their respective professional
associations”). The Schafers have not alleged any theories of negligence
distinct from the negligence of the two physicians; no direct acts by the
professional associations as separate entities have been identified or
challenged.7 See McCoy, 283 S.W.3d at 106 (holding that when liability is
7
… The Schafers named the professional associations in the suit and
served both with process; Dr. Estorque and Dr. Awan were named as registered
agents to receive those citations.
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based solely on the actions of a professional associations’ principals and not the
entities, no expert report is required). The expert report and the petition do not
specifically allege that the Schafers are suing the professional associations on
the legal principle of vicarious liability; however, the documents clearly identify
only the physicians’ conduct as constituting negligence. See Univ. of Tex. Sw.
Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.)
(concluding that plaintiffs need not mention hospital in expert report when
plaintiffs limited their claim against hospital to vicarious liability for acts of
employees). Thus, we conclude and hold that the Schafers did not need to file
an expert report specifically addressing the professional associations that were
only implicated by the actions of the two physicians. McCoy, 283 S.W.3d at
106.
Because the professional associations’ liability was based solely on the
acts of its physicians, we overrule Dr. Estorque’s third issue and Dr. Awan’s
second issue pertaining to this argument.
VIII. Conclusion
Because Dr. Miller’s report insufficiently describes the causal link between
Dr. Estorque’s and Dr. Awan’s breaches and the Schafers’ injury and thus fails
to provide the trial court with sufficient information to determine that the
Schafers’ claims have merit, we must sustain Dr. Estorque’s and Dr. Awan’s
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issues with regard to the inadequacy of Dr. Miller’s expert report on the
causation element. We note that the Shafers raised only claims of vicarious
liability against the professional associations. We therefore reverse the trial
court’s decision denying Appellants’ motions to dismiss and remand this case
to the trial court to consider the issue of whether to grant the Schafers a thirty-
day extension to file an adequate expert report. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(c); Leland, 257 S.W.3d at 208.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
LIVINGSTON, J., dissents without opinion.
DELIVERED: September 17, 2009
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