Nancy Jo Rodriguez v. the Walgreen Company and Sara Elizabeth McGuire ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00765-CV
Nancy Jo Rodriguez, Appellant
v.
The Walgreen Company and Sara Elizabeth McGuire, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-14-000903, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING
MEMORANDUM OPINION
In this interlocutory appeal, Nancy Jo Rodriguez challenges the trial court’s order
granting appellees’ motion to dismiss brought pursuant to section 74.351(b) of the Texas Medical
Liability Act (TMLA). See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(10) (authorizing appeal from
interlocutory order granting relief sought under section 74.351(l) of TMLA), 74.351(l) (authorizing
court to grant motion challenging adequacy of expert report). Because we conclude that the trial
court did not abuse its discretion, we affirm the trial court’s order.
BACKGROUND
Rodriguez sued appellees the Walgreen Company, Inc. and Sara Elizabeth McGuire
asserting health care liability claims stemming from Rodriguez’s use of the drug Pradaxa.1
1
A separate interlocutory appeal from the same underlying proceeding is pending before this
Court in cause number 03-14-00717-CV. In that case, Dr. Vivek Goswami, one of Rodriguez’s
Rodriguez was a patient with Austin Heart, PLLC and one of her cardiologists was
Dr. David Kessler. In her petition, Rodriguez alleges: “Despite Dr. Kessler’s orders to discontinue
use of the Pradaxa, Walgreens continues to renew the refills and Austin Heart’s staff and nurses
continue to authorize them”; and, “[a]s a result of her continued use of Pradaxa, [she was] admitted
to the hospital with hypotension, acute kidney injury and apparent gastrointestinal bleeding, known
side effects of the over-use of Pradaxa”; and she “suffers severe, painful, and life-threatening injuries
due to her continued use of Pradaxa.” Rodriguez timely served appellees with expert reports and the
experts’ curriculum vitae. See id. § 74.351(a) (requiring claimant asserting health care liability claim
as threshold matter to serve expert report with curriculum vitae “for each physician or health care
provider against whom a liability claim is asserted”). One of the experts is a licensed pharmacist in
the state of Texas, and the other one holds a medical license with a speciality in cardiology.
Appellees objected to the sufficiency of the expert reports and moved to dismiss
Rodriguez’s claims. See id. § 74.351(b) (requiring trial court to dismiss claims on motion of affected
health care provider or physician if expert report not served within 120-day window). Appellees
challenged the experts’ qualifications and asserted that the reports were conclusory and failed to set
out the causal connection between any act or failure to act by appellees and Rodriguez’s alleged
injuries. After the 120 day window expired for Rodriguez to file an expert report, Appellees filed
a subsequent motion to dismiss, urging that the reports were completely insufficient such that they
constituted “no report at all.” See Scoresby v. Santillan, 346 S.W.3d 546, 556–57 (Tex. 2011)
cardiologists, and Austin Heart, PLLC appeal the trial court’s order denying their motion to dismiss
brought pursuant to section 74.351(b) of the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351(b).
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(discussing when expert report is “really no report at all” in context of whether trial court should
grant extension to allow claimant to cure deficiency in report). Among their arguments, appellees
urged that the reports failed to give any factual background concerning the prescription for Pradaxa.
Rodriguez filed a response to appellees’ objections and motion to dismiss, but she
did not file additional or amended expert reports. After a hearing, the trial court informed the parties
by letter that it found that the expert reports as to appellees did not satisfy the requirements of the
TMLA. Rodriguez thereafter filed a motion to reconsider the dismissal of her claims against
appellees and to permit a thirty-day extension to cure the deficiencies that the trial court found in her
reports. See Tex. Civ. Prac. & Rem. Code § 74.351(c) (allowing trial court to grant one thirty-day
extension to cure deficiencies in expert report). Appellees filed a response to the motion to
reconsider, opposing an extension to cure and arguing that an extension was not justified. The trial
court thereafter signed its order granting appellees’ motion to dismiss. This appeal followed.
ANALYSIS
Chapter 74 Expert Report Requirements
Section 74.351 of the TMLA provides a 120-day window for a claimant, who is
asserting a health care liability claim, to serve each defendant physician and health care provider with
an expert report with the expert’s curriculum vitae. See id. § 74.351(a). “The purpose of the expert
report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits.”
Scoresby, 346 S.W.3d at 554. “A valid expert report has three elements: it must fairly summarize
the applicable standard of care; it must explain how a physician or health care provider failed to meet
that standard; and it must establish the causal relationship between the failure and the harm alleged.”
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Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing Tex. Civ. Prac. & Rem. Code
§ 74.351(r)(6)).2
On the motion of an affected defendant physician or health care provider, the trial
court must dismiss the case if the claimant fails to serve an expert report within the 120-day window.
Tex. Civ. Prac. & Rem. Code § 74.351(b). If the claimant timely files an expert report, a trial court
should not grant a motion challenging the report’s adequacy unless “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 in Subsection (r)(6).” Id. § 74.351(l). The Texas Supreme Court has defined “a
‘good faith effort’ as one that provides information sufficient to (1) ‘inform the defendant of the
specific conduct the plaintiff has called into question,’ and (2) ‘provide a basis for the trial court to
conclude that the claims have merit.’” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing American
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001))).3
2
Section 74.351(r)(6) of the Texas Medical Liability Act (TMLA) defines an expert report
to mean:
a written report by an expert that provides a fair summary of the expert’s opinions as
of the date of the report regarding applicable standards 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.
Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
3
The trial court also may grant one thirty-day extension to the claimant to cure a deficiency
in a timely-filed expert report. Id. § 74.351(c). Rodriguez, however, has not briefed or otherwise
requested that this Court remand the case for the purpose of allowing her the opportunity to cure
deficiencies in the expert reports.
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To determine whether an expert report complies with section 74.351, courts consider
the information “found within the four corners of the expert report, which need not ‘marshall all the
plaintiff’s proof’ but must include the expert’s opinion on each of the three main elements: standard
of care, breach, and causation.” Id. The “‘report cannot merely state the expert’s conclusions about
these elements,’ but ‘the expert must explain the basis of his statements to link his conclusions to
the facts.’” Id. (quoting Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999))); see Shenoy v. Jean, No. 01-10-01116-CV, 2011 Tex. App. LEXIS 10212, at *16 (Tex.
App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.) (noting that “an expert report that
merely asserts that a defendant physician’s breach caused the plaintiff’s injury without providing a
factual basis does not provide the trial court with the information necessary to evaluate the merits
of the plaintiff’s claim”). “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.” Austin Heart, P.A.
v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (citing Wright, 79 S.W.3d at 53;
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).
We review a trial court’s denial of a motion to dismiss brought under section
74.351(b) for an abuse of discretion. TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013)
(citing Palacios, 46 S.W.3d at 877). “Under that standard, appellate courts defer to the trial court’s
factual determinations if they are supported by evidence, but review its legal determinations de
novo.” Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). “A trial court
abuses its discretion if it rules without reference to guiding rules and principles.” Id. With these
standards in mind, we turn to Rodriguez’s issues.
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Adequacy of Expert Reports
Rodriguez raises two appellate issues. She argues that her expert who is a pharmacist
was qualified to give an opinion on appellees’ breach of the applicable standard of care and that the
expert reports “when considered in the aggregate” are sufficient because they apprise appellees of
the claims against them and inform the court that the claims are not frivolous. See Tex. Civ. Prac.
& Rem. Code § 74.351(i) (allowing claimant to satisfy expert report requirement “by serving reports
of separate experts . . . regarding different issues arising from conduct of physician or health care
provider, such as issues of liability and causation”); Mitchell v. Satyu, No. 05-14-00479-CV,
2015 Tex. App. LEXIS 6127, *12 n.3 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.) (noting
that expert report requirement may be satisfied by utilizing more than one expert report and that
“court may read the reports together”). Rodriguez argues that, “when these reports are read in the
aggregate, they apprise Walgreens and McGuire of the specific conduct called into question by
Rodriguez’s claims and demonstrate that Rodriguez’s claims have merit.” Rodriguez, however,
concedes that her expert who is a pharmacist is not qualified to opine on causation because he is not
a medical doctor. See Tex. Civ. Prac. & Rem. Code §§ 74.351(r)(5)(C) (limiting “expert” with
respect to opinion testimony about causation to “physician who is otherwise qualified to render
opinions on such causal relationships under the Texas Rules of Evidence”), .403(a) (generally
requiring expert on causation to be physician).
Appellees argue that the trial court did not abuse its discretion by dismissing
Rodriguez’s claims against appellees. Among their arguments, they contend that the experts’
opinions are speculative and conclusory, that they fail to provide a factual basis for their opinions,
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that the physician’s report does not mention appellees but is directed to the conduct of Rodriguez’s
cardiologist, and that the physician’s report “does not bridge the gaps” in the pharmacist’s report.
We turn then to review the information “found within the four corners” of the expert reports to
determine whether the trial court abused its discretion in granting appellees’ motion to dismiss. See
Jelinek, 328 S.W.3d at 539.
In his report, the pharmacist lists the records that he reviewed to form his opinions
and concludes that appellees did not meet the applicable standards of care.4 He opines in
relevant part:
Standards of Care
The standard of care required to fill Ms. Rodriguez’s dabigatran etexilate
(PRADAXA) prescription are as follows:
• Pharmacists have a duty to contact the prescribing physician if patient harm
is possible to validate the prescription
• Pharmacists are responsible for ensuring a prescription is accurately
communicated and dispensed as intended by the prescriber
• Pharmacists are responsible for communicating with the prescribing
physician to validate continuation of therapy when no refills remain on
a prescription
Breach of Standard of Care
Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with
initials MDD breached the applicable standards of care. Specifically, Walgreens,
4
The pharmacist also opines on causation but, as previously noted, Rodriguez concedes that
the pharmacist was not qualified to opine on that issue. See Tex. Civ. Prac. & Rem. Code
§§ 74.351(r)(5)(C), .403(a).
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Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD conduct fell
below the standard of care by:
• Continuing to dispense a prescription for dabigatran etexilate (PRADAXA)
after the prescribing physician indicated it should be discontinued; and
• Failing to verify if the prescription for dabigatran etexilate (PRADAXA)
should be continued with the prescribing physician
Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD
should have provided Ms. Rodriguez with the care and treatment in the standard of
care paragraph above. However, this expected care was not provided to
Ms. Rodriguez as set forth in the preceding paragraph.
To satisfy the statutory elements of standard of care and breach, Rodriguez relies on the pharmacist’s
opinion that appellees’ conduct fell below the standard of care by “continuing to dispense” the
prescription for Pradaxa “after the prescribing physician indicated it should be discontinued” and by
failing to verify if the prescription “should be continued with the prescribing physician.” See Jelinek,
328 S.W.3d at 539 (requiring expert report on standard of care, breach, and causation).
In his report, the physician describes his qualifications and the records that he
reviewed to form his opinions, and then opines:
In my opinion the care and treatment provided to Nancy Jo Rodriguez by Austin
Heart fell below the accepted standards of care in the following particulars: Despite
Dr. David Kessler, one of her cardiologists from Austin Heart, requesting that the
Pradaxa be discontinued (in this patient who, at best, has bipolar disorder and at
times was confused, this was a reasonable request), Pradaxa therapy nevertheless was
continued after her acute hospitalization. This request to stop the medication was not
appreciated by her primary cardiologist, Dr. Vivek Goswami (who was in the same
group as Dr. Kessler). Furthermore, Ms. Rodriguez appeared to be obtaining refills
for this medication authorized by nurses and staff of this same heart group who
recommended discontinuing this medication (Austin Heart). The standard of care
would have been to follow the orders of Dr. Kessler to stop the administration
of Pradaxa.
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Failure to discontinue the use of Pradaxa was a direct cause of her subsequent acute
admission to the hospital with hypotension, acute kidney injury and apparent
gastrointestinal bleeding—known side effects of the over-use of Pradaxa.
Ms. Rodriguez’s entire hospitalization was attributable to the failure to stop Pradaxa
therapy as ordered by Dr. Kessler. More likely than not, had the Pradaxa medication
been discontinued as requested, Ms. Rodriguez’s hospitalization would never have
needed to take place.
I hold these opinions to a reasonable degree of medical certainty. They are based
upon my education, training and experience as well as the records which I
have reviewed.
To satisfy the statutory element of causation, Rodriguez relies on the physician’s opinion that
Rodriguez’s continued use of Pradaxa caused her hospitalization.
Both reports, however, fail to include underlying facts to support the experts’
opinions, such as the factual background concerning Rodriguez’s prescription for Pradaxa and refills
on the prescription. Compare Gray, 189 S.W.3d at 859–60 (upholding dismissal of claims against
medical center and doctor based on inadequate expert report and noting that conclusory statements
do not satisfy requirements of section 74.351), with Van Ness, 461 S.W.3d at 142–44 (reciting facts
contained in expert report and concluding that trial court did not abuse discretion “by determining
that report was not conclusory” and that it was “good faith effort to comply with the TMLA’s
requirements”); Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496–99 (Tex. App.—Dallas 2010,
no pet.) (affirming trial court’s denial of motion to dismiss claims that alleged doctor negligently
prescribed drug and describing specific facts contained in expert report that addressed standard of
care, breach, and causation).
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For example, Rodriguez argues that appellees should have contacted her physicians
so that appellees would have been aware that her prescription was discontinued. The physician’s
only statement in his report about prescription refills for Pradaxa, however, does not support this
argument. The physician asserted in his report that “Ms. Rodriguez appeared to be obtaining refills
for this medication authorized by nurses and staff of this same heart group.” He further stated that
the “request to stop the medication was not appreciated by” Rodriguez’s primary cardiologist.
Missing from the report is how or when appellees would have become aware of the alleged request
to stop the medication even if they had contacted the prescribing physician, given the expert’s
assertion that refills were authorized by the heart group and the lack of information about when the
request to stop was made or how or when the primary cardiologist should have “appreciated” the
request. “[N]either the trial court nor this Court may infer additional opinions or underlying facts
to fill in gaps that the report itself leaves open.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex.
App.—Austin 2013, no pet.) (citing Wright, 79 S.W.3d at 53); see Smith v. Wilson, 368 S.W.3d 574,
577 (Tex. App.—Austin 2012, no pet.) (noting that trial court should confine inquiry to four corners
of expert report when adequacy of report challenged and that report must link conclusions to facts);
Webb, 228 S.W.3d at 279 (precluding “court from filling gaps in a report by drawing inferences or
guessing as to what the expert likely meant or intended”).
Further, the physician’s report—the only report addressing causation—does not
mention appellees by name or position and does not otherwise “implicate” appellees. See Haskell
v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 760–61 (Tex. App.—Houston [1st
Dist.] 2012, no pet.) (concluding that report that only named nurse as intended recipient of report
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was “not a report as to” nurse); Fung v. Fischer, 365 S.W.3d 507, 529–30 (Tex. App.—Austin 2012,
no pet.) (noting that “defendant may be ‘implicated’ in a report even if the defendant is not
specifically named” but concluding that expert report did not “implicate” and was “no report” as to
primary care physician), overruled in part on other grounds by Potts, 392 S.W.3d 625; Rivenes
v. Holden, 257 S.W.3d 332, 338–39 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(concluding that expert report that did not refer to doctor by name or position and did not offer an
opinion as to doctor’s conduct was not report as to doctor). Thus, the trial court would not have
abused its discretion by finding that the report fails to establish a “causal relationship” between an
alleged breach by appellees and Rodriguez’s harm. See Potts, 392 S.W.3d at 630; see also Jelinek,
328 S.W.3d at 539–40 (requiring that “expert must go further and explain, to a reasonable
degree, how and why the breach caused the injury based on the facts presented”); Mitchell,
2015 Tex. App. LEXIS 6127, at *10 (explaining that “causal relationship is established by proof that
the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this
act or omission, the harm would not have occurred”).
Without factual background concerning the prescription such as the inclusion of
underlying facts to link appellees’ conduct to Rodriguez’s harm, the expert reports fail to provide
a basis to conclude that Rodriguez’s claims have merit. See Jelinek, 328 S.W.3d at 539. Thus, we
conclude that the trial court did not abuse its discretion when it granted appellees’ motion to dismiss.
See Moreno, 401 S.W.3d at 44.
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CONCLUSION
For these reasons, we overrule Rodriguez’s issues and affirm the trial court’s order
granting appellees’ motion to dismiss.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: January 27, 2016
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