Vivek Goswami, M.D. and Austin Heart, PLLC v. Nancy Jo Rodriguez ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00717-CV
Vivek Goswami, M.D. and Austin Heart, PLLC, Appellants
v.
Nancy Jo Rodriguez, Appellee
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, Vivek Goswami, M.D. and Austin Heart, PLLC challenge
the trial court’s order denying their 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)(9)
(authorizing appeal from interlocutory order denying relief sought under section 74.351(b) of
TMLA), 74.351(b) (generally requiring dismissal of health care liability claim on motion of affected
physician or health care provider when claimant fails to comply with expert report requirement).
Because we conclude that the expert report is deficient, we reverse the trial court’s order denying the
motion to dismiss and remand the case to the trial court to consider whether a thirty-day extension
is appropriate. See id. § 74.351(c) (allowing one thirty-day extension when court finds expert
report deficient).
BACKGROUND
Appellee Nancy Jo Rodriguez sued appellants and others asserting health care liability
claims stemming from Rodriguez’s use of the drug Pradaxa.1 Rodriguez was a patient of Austin
Heart, and one of her cardiologists at Austin Heart was Dr. Goswami. In her petition, Rodriguez
alleges that Dr. David Kessler, another cardiologist with Austin Heart, ordered that she stop using
Pradaxa; Dr. Goswami did not follow this order; 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 appellants with
an expert report and the expert’s curriculum vitae.2 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”).
Appellants objected to the expert report and filed a motion to dismiss Rodriguez’s
claims against them on the grounds that the report was insufficient and constituted “no report at all.”
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); Scoresby v. Santillan,
346 S.W.3d 546, 554 (Tex. 2011) (discussing when expert report is “really no report at all” in
1
A separate interlocutory appeal from the same underlying proceeding is pending before this
Court in cause number 03-14-00765-CV. In that case, Rodriguez appeals the trial court’s order
dismissing her claims against the Walgreen Company and Sara Elizabeth McGuire, a pharmacist,
arising from the same allegations concerning Rodriguez’s use of Pradaxa. See Tex. Civ. Prac. &
Rem. Code § 74.351(l).
2
Rodriguez served reports from two different experts, but there is no dispute that the other
report does not apply to appellants.
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context of whether trial court should grant extension to allow claimant to cure deficiency in report).
Appellants asserted that the report failed to set forth the applicable standard of care or explain how
the standard of care was breached or how any such breach caused Rodriguez’s alleged injuries.
Rodriguez filed a response to appellants’ objections and motion to dismiss, but she did not amend
the expert report. After a hearing, the trial court found that the expert report complied with section
74.351 of the TMLA and denied appellants’ 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 Tex. Civ. Prac. & Rem. Code § 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.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing
Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)).3
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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
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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))). The court also
may grant one thirty-day extension to the claimant to cure a deficiency in a timely-filed report. Tex.
Civ. Prac. & Rem. Code § 74.351(c); see Scoresby, 346 S.W.3d at 554, 559 (holding that “document
qualifies as an expert report if it contains a statement of opinion by an individual with expertise
indicating that the claim asserted by the plaintiff against the defendant has merit” and noting that
“Legislature has likewise recognized that when an expert report can be cured in thirty days, the claim
is not frivolous”).
standards, and the causal relationship between that failure and the injury, harm, or
damages claimed.
Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
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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.” Jelinek, 328 S.W.3d at 539 (quoting Wright, 79 S.W.3d at 52 (citing
Palacios, 46 S.W.3d at 879)). 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
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abuses its discretion if it rules without reference to guiding rules and principles.” Id. With these
standards in mind, we turn to appellants’ issues.
Adequacy of Expert Report
In two issues, appellants contend that the trial court abused its discretion when it
found that the expert report was adequate and when it denied their motion to dismiss brought under
section 74.351(b) of the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351(b). Appellants argue
that the expert report does not constitute a good faith effort to comply with the requirements of
section 74.351 because it fails to provide any facts surrounding the care and treatment provided by
appellants and offers only conclusory opinions that do not link facts to the expert’s conclusions on
the statutory elements of standard of care, breach, and causation. We turn then to review the
information “found within the four corners of the expert report.” See Jelinek, 328 S.W.3d at 539.
After describing his qualifications and the records that he reviewed to form his
opinions, the expert, who was a cardiologist, opined in total:
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.
According to the report, Rodriguez’s claim is based on her use of Pradaxa after Dr.
Kessler “request[ed] that the Pradaxa be discontinued.” The report, however, does not reference
underlying facts concerning her care and treatment by appellants, but rather it contains only
conclusory statements such as the “request to stop the medication was not appreciated by”
Dr. Goswami and Rodriguez “appeared to be obtaining refills for this medication authorized by
nurses and staff of this same heart group.” For example, facts missing from the report include
whether Dr. Goswami had any reason to know of Dr. Kessler’s order, when Dr. Kessler made the
alleged request, to whom the request was communicated, whether appellants treated or had contact
with Rodriguez after the request, or the circumstances in which Rodriguez obtained the prescription
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
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(Tex. App.—Dallas 2010, no pet.) (affirming trial court’s denial of motion to dismiss claims alleging
doctor negligently prescribed drug and describing specific facts contained in report that addressed
standard of care, breach, and causation).
The report also fails to “fairly summarize the applicable standard of care,” “explain
how [appellants] failed to meet that standard,” or “establish the causal relationship between the
failure and the harm alleged.” See Potts, 392 S.W.3d at 630; see also Jelinek, 328 S.W.3d at 539–40
(explaining that “expert cannot simply opine that the breach caused the injury” but that “expert must
go further and explain, to a reasonable degree, how and why the breach caused the injury based on
the facts presented”). In the report, the expert states that the “standard of care would have been to
follow the orders of Dr. Kessler to stop the administration of Pradaxa,” but he does not differentiate
between appellants, the individual Goswami or Austin Heart. See Gray, 189 S.W.3d at 859
(concluding that trial court did not abuse discretion in finding expert report inadequate that stated,
“without explanation, that a single standard of care applied to both” the medical center and the
doctor and noting that “such generic statements, without more, can reasonably be deemed
conclusory”); Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.—Houston
[1st Dist.] 2003, pet. denied) (describing standard of care for health care provider or physician to be
“what an ordinarily prudent health-care provider or physician would have done under the same or
similar circumstances”).
The expert also does not provide “specific information about what [appellants] should
have done differently.” See Palacios, 46 S.W.3d at 880; CHCA Mainland L.P. v. Burkhalter,
227 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (noting that identifying
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standard of care in expert report “critical” because “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”). And the expert does not present facts to explain “how and why” appellants’
alleged breach of the standard of care caused Rodriguez’s alleged injuries. See Jelinek, 328 S.W.3d
at 539–40. “[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 Palacios, 46 S.W.3d at 878; Wright, 79 S.W.3d at 53); see Smith
v. Wilson, 368 S.W.3d 574, 576 (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”).
Because the expert report fails to provide a basis to conclude that Rodriguez’s claims
have merit, see Jelinek, 328 S.W.3d at 539, we conclude that the trial court abused its discretion
when it found that the expert report complied with section 74.351 of the TMLA and denied
appellants’ motion to dismiss. See Moreno, 401 S.W.3d at 44. On this basis, we sustain
appellants’ issues.
Thirty-day Extension
Rodriguez asks this Court, should it conclude that the expert report is deficient, to
remand the case to the trial court so the trial court can consider whether to grant a thirty-day
extension to cure any deficiency in the report. See Tex. Civ. Prac. & Rem. Code § 74.351(c)
(authorizing court to grant one thirty-day extension to cure deficiency in report); Leland v. Brandal,
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257 S.W.3d 204, 207–08 (Tex. 2008) (noting that section 74.351(c) “does not allow for an extension
unless, and until, elements of a report are found deficient, and that did not occur in this case until the
court of appeals so held” and, in that context, concluding that court of appeals had discretion to
remand “consideration of the extension issue to the trial court”).
Appellants argue that Rodriguez is not entitled to an extension because her report
does not meet the Texas Supreme Court’s “minimal standard” for a trial court to consider an
extension and that the report is “no report at all.” See Scoresby, 346 S.W.3d at 557 (stating “minimal
standard” for trial court to grant extension and holding that trial court has discretion to grant
extension “if the report is served by the statutory deadline, if it contains the opinion of an individual
with expertise that the claim has merit, and if the defendant’s conduct is implicated”); Fung
v. Fischer, 365 S.W.3d 507, 535–36 (Tex. App.—Austin 2012, no pet.) (discussing Scoresby
standard for granting extension to cure deficient expert report and difference between deficient report
and report that is “so deficient as to constitute ‘no report’”), overruled in part on other grounds by
Potts, 392 S.W.3d 625.
The report, however, was prepared by an expert who claimed expertise as a
cardiologist, opined that Rodriguez’s claims against appellants have merit, and implicated the
conduct of appellants. See Scoresby, 346 S.W.3d at 557. Further, the trial court concluded that the
report was adequate so Rodriguez has not had an opportunity to cure. In this context, we remand the
case to the trial court for it to consider whether to grant one thirty-day extension. See Leland,
257 S.W.3d at 207 (collecting cases in which courts of appeals, upon finding reports deficient,
remanded cases to trial court to decide whether to grant thirty-day extension to cure deficiencies).
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CONCLUSION
For these reasons, we reverse the trial court’s order denying appellants’ motion to
dismiss and remand the case to the trial court for further proceedings consistent with this opinion.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Reversed and Remanded
Filed: January 27, 2016
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