malcolm-barber-and-leann-barber-v-william-f-dean-md-mikko-peter ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-353-CV
MALCOLM BARBER AND LEANN APPELLANTS
BARBER
V.
WILLIAM F. DEAN, M.D., MIKKO APPELLEES
PETER TAURIAINEN, M.D., AND
CARDIOVASCULAR AND
THORACIC SURGICAL GROUP
OF WICHITA FALLS, P.A.
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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OPINION
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I. INTRODUCTION
In three issues, appellants Malcolm Barber and Leann Barber appeal the
trial court’s order dismissing their health care liability claims against Appellees
William F. Dean, M.D., Mikko Peter Tauriainen, M.D., and Cardiovascular and
Thoracic Surgical Group of Wichita Falls, P.A. (“CTSG”). See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009). We will affirm in part
and reverse and remand in part.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
According to Appellants’ original petition and the expert report of Jeffrey
Alan Wagner, M.D., M.B.A., in January 2004, Malcolm underwent a multivessel
coronary artery bypass graft procedure involving the harvesting of his left radial
artery, left saphenous vein, and left internal mammary artery. The surgery
lasted over six hours. A “three team approach” was utilized during the
harvesting procedure, and all three harvests were performed simultaneously.
Dr. Tauriainen performed the harvest of the left internal mammary artery; Leo
Mercer, M.D. performed the harvest of the left saphenous vein; and Shellie
Barnett-Wright, PA-C performed the harvest of the left radial artery from
Malcolm’s left forearm. Dr. Dean, who was present in the operating room for
a portion of Malcolm’s surgical procedure, provided “medical/surgical” services
to Malcolm. Following the harvesting, Malcolm’s left arm was “tucked” by
anesthesiologist Robert Moss, M.D., assisted by a couple of nurses.
Following the bypass graft procedure, Malcolm experienced difficulties
with his left hand and arm, including pain, burning, numbness, inability to grip,
stiffness, stinging, swelling, and weakness. He attempted to relieve these
2
difficulties through medical management and occupational therapy, but the
treatments proved to be unsuccessful. An orthopedic surgeon diagnosed
Malcolm with a left ulnar nerve lesion and ulnar cubital syndrome and
recommended surgery to treat the conditions. Surgery to relieve these
conditions was unsuccessful, and Malcolm continues to experience pain,
weakness, grip difficulties, and other problems with his left arm and hand.
Appellants sued Appellees and others 1 alleging, among other things, that
Malcolm’s postsurgical problems were caused by Appellees’ negligence in
failing to provide medical or surgical care regarding Malcolm’s left upper
extremity condition during and after the surgical procedures. Throughout his
report, Dr. Wagner characterizes Appellees’ conduct as a failure to provide for
the proper positioning and padding of Malcolm’s arms and body to prevent
perioperative peripheral neuropathies. Appellants alleged both direct and
vicarious theories of liability against CTSG. They tendered Dr. Wagner’s expert
report within 120 days of suit.
1
… The other defendants included Dr. Mercer; Barnett-Wright; Dr. Moss,
who placed Malcolm under general anesthesia for the procedure; and United
Regional Health Care System, Inc., the hospital at which the surgery occurred.
Dr. Mercer was the appellee in a separate appeal in which Appellants challenged
the trial court’s dismissal of their claim against Dr. Mercer for failure to comply
with the civil practice and remedies code expert report requirements. See
Barber v. Mercer, No. 02-08-00079-CV, 2009 WL 3337192 (Tex. App.—Fort
Worth Oct. 15, 2009, no pet. h.).
3
Dr. Dean timely filed his objections to Dr. Wagner’s report on the
following grounds:
(1) Dr. Wagner is not qualified to render an opinion about the
accepted and applicable standard of care relevant to Appellants’
claim; and
(2) the report fails to sufficiently set forth (i) the applicable
standard of care and (ii) how Dr. Dean failed to meet that standard
of care.
Dr. Tauriainen timely filed his objection to Dr. Wagner’s report on the ground
that Dr. Wagner, an anesthesiologist, is not qualified to render an opinion about
the standard of care applicable to a cardiovascular and thoracic surgeon. CTSG
timely filed its objections to Dr. Wagner’s report on the following grounds:
(1) Dr. Wagner is not qualified to render an opinion as to whether
CTSG breached any applicable standard of care; and
(2) the report is insufficient to set forth (i) the applicable standard
of care, (ii) how CTSG breached the standard of care, and (iii) how
CTSG’s alleged negligence caused Malcolm’s alleged injuries.
Appellees also filed civil practice and remedies code section 74.351(b)
motions to dismiss. After a hearing on Appellees’ objections to Dr. Wagner’s
report and motions to dismiss, the trial court sustained Appellees’ objections
and dismissed Appellants’ claims against Appellees with prejudice.2
2
… The trial court also denied Appellants’ request for a thirty-day grace
period to provide an amended expert report as to Appellees, but Appellants
have not appealed that portion of the trial court’s order.
4
III. S TANDARD OF R EVIEW
We review a trial court’s order on a motion to dismiss a health care
liability claim for an abuse of discretion. 3 Jernigan v. Langley, 195 S.W.3d 91,
93 (Tex. 2006). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner or if it acts without reference to any guiding rules or
principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985), cert. denied, 476 U.S. 1159 (1986)). We may not substitute our
judgment for the trial court’s judgment. Id. Nor can we determine that the trial
court abused its discretion merely because we would have decided the matter
differently. Downer, 701 S.W.2d at 242.
IV. E XPERT R EPORT R EQUIREMENTS AND S TANDARDS
Civil practice and remedies code section 74.351 provides that, within 120
days of filing suit, a plaintiff must serve expert reports for each physician or
health care provider against whom a liability claim is asserted. Tex. Civ. Prac.
3
… In their first issue in this appeal, Appellants ask this court to conclude
that abuse of discretion continues to be the proper standard of review following
the recodification of the Texas Medical Liability Act in 2003. Appellees agree
that the standard of review is abuse of discretion. In the absence of supreme
court authority instructing otherwise, we have continued to apply the abuse of
discretion standard and do so here. See, e.g., Maris v. Hendricks, 262 S.W.3d
379, 383 (Tex. App.—Fort Worth 2008, pet. denied).
5
& Rem. Code Ann. § 74.351(a). An expert report is a written report by an
expert that provides a fair summary of the expert’s opinions regarding the
applicable standard of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standard, and the causal
relationship between that failure and the injury, harm, or damages claimed. Id.
§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may
file a motion challenging the report’s adequacy. See id. § 74.351(a), (c), (l).
A trial court must grant a motion to dismiss based on the alleged inadequacy
of an expert report only 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. § 74.351(l).
The information in the report does not have to meet the same
requirements as evidence offered in a summary judgment proceeding or at trial,
and the report need not marshal all the plaintiff’s proof, but it must include the
expert’s opinions on each of the elements identified in the statute—standard of
care, breach, and causation. Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Thomas v. Alford, 230 S.W.3d
853, 856 (Tex. App.—Houston [14th Dist.] 2007, no pet.). In detailing these
elements, the supreme court has made clear that an expert report must provide
enough information to fulfill two purposes if it is to constitute a good faith
6
effort: the report must (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 plaintiff’s claims have merit. Palacios, 46 S.W.3d at 879;
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). A report does not fulfill these two purposes if it merely
states the expert’s conclusions or if it omits any of the statutory requirements.
Palacios, 46 S.W.3d at 879. In assessing the report’s sufficiency, the trial
court may not draw any inferences; it must rely exclusively on the information
contained within the report’s four corners. Bowie Mem’l Hosp., 79 S.W.3d at
52; Palacios, 46 S.W.3d at 878.
Regarding qualifications, the civil practice and remedies code provides in
relevant part that “expert” means the following:
(A) with respect to a person giving opinion testimony regarding
whether a physician departed from accepted standards of
medical care, an expert qualified to testify under the
requirements of Section 74.401;
(B) with respect to a person giving opinion testimony regarding
whether a health care provider departed from accepted
standards of health care, an expert qualified to testify under
the requirements of Section 74.402; [and]
(C) with respect to a person giving opinion testimony about the
causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable
standard of care in any health care liability claim, a physician
7
who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A)–(C).
Under section 74.401, a person may qualify as an expert witness on the
issue of whether a physician departed from accepted standards of medical care
only if the person is a physician who
(1) is practicing medicine at the time such testimony is given or
was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of medical care.
Id. § 74.401(a) (Vernon 2005). In determining whether a witness is qualified
on the basis of training or experience under section 74.401(a)(3), the court
shall consider whether, at the time the claim arose or at the time the testimony
is given, the witness (1) is board certified or has other substantial training or
experience in an area of medical practice relevant to the claim and (2) is
actively practicing medicine in rendering medical care services relevant to the
claim. Id. § 74.401(c).
8
Under section 74.402, a person may qualify as an expert witness on the
issue of whether a health care provider departed from accepted standards of
care only if the person
(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the defendant
health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing that
type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness, injury,
or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of health care.
Id. § 74.402(b) (Vernon 2005). In determining whether a witness is qualified
on the basis of training or experience under section 74.402(b)(3), the court
shall consider whether, at the time the claim arose or at the time the testimony
is given, the witness (1) is certified by a licensing agency of one or more states
of the United States or a national professional certifying agency, or has other
substantial training or experience, in the area of health care relevant to the
claim and (2) is actively practicing health care in rendering health care related
services relevant to the claim. Id. § 74.402(c).
Under rule of evidence 702, “[w]hat is required is that the offering party
establish that the expert has ‘knowledge, skill, experience, training, or
9
education’ regarding the specific issue before the court which would qualify the
expert to give an opinion on that particular subject.” Broders v. Heise, 924
S.W.2d 148, 153 (Tex. 1996); see also Tex. Civ. Prac. & Rem. Code Ann.
§ 74.403 (Vernon 2005).
V. D R. W AGNER’S Q UALIFICATIONS
In their second issue, Appellants argue that the trial court abused its
discretion by ruling that Dr. Wagner is not qualified to render an expert opinion
as to whether Dr. Dean, Dr. Tauriainen, and CTSG departed from accepted
standards of medical care regarding the positioning and padding of Malcolm’s
arm during the January 2004 multivessel coronary artery bypass graft
procedure.
A. Dr. Dean’s Objection
Dr. Dean did not object in the trial court that Dr. Wagner does not meet
the criteria identified in section 74.401(a), (b), or (c). Instead, Dr. Dean based
his objection to Dr. Wagner’s qualifications on only one ground, stating as
follows:
[Dr.] Wagner’s curriculum vitae (“CV”) fails to show that he has
any training or experience as a cardiovascular surgeon. Since
Dr. Dean is a cardiovascular surgeon, Dr. Wagner is not and cannot
be familiar with the standard of care applicable to a physician like
or similar to Dr. Dean.
10
Dr. Dean’s objection to Dr. Wagner’s qualifications is without merit for more
than one reason.
In delineating the statutory qualifications for a chapter 74 expert, the
statute does not merely focus on the defendant physician’s area of expertise
but also on the condition involved in the claim. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.401(a)(2) (requiring expert to have “knowledge of accepted
standards of medical care for the diagnosis, care, or treatment of the illness,
injury, or condition involved in the claim” (emphasis added)), § 74.401(c)(1), (2)
(recognizing an expert may be qualified on the basis of training or experience
if he or she is board certified or is practicing “in an area of medical practice
relevant to the claim” (emphasis added)). That is, the applicable “standard of
care” and an expert’s ability to opine on it are dictated by the medical condition
involved in the claim and by the expert’s familiarity and experience with that
condition. See Granbury Minor Emergency Clinic v. Thiel, No. 02-08-00467-
CV, 2009 WL 2751026, at *4 (Tex. App.—Fort Worth Aug. 27, 2009, no
pet.); McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (permitting infectious disease physician to opine on
standard of care for treating infection stemming from AV graft even though
defendant doctor was cardiothoracic surgeon); Blan v. Ali, 7 S.W.3d 741,
746–47 & n.3 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
11
Here, according to Dr. Wagner’s fourteen-page, single-spaced report, he
specializes in anesthesiology and he has substantial personal knowledge and
experience in the care and treatment of patients undergoing general anesthesia
for cardiac surgical procedures. He is also familiar with how such procedures
are managed. Included in the management of such procedures is the
positioning and padding of the patient and the patient’s extremities. 4
Appellants claim that Malcolm’s postsurgical problems were caused by
Appellees’ negligence in failing to provide for the proper positioning and padding
of his arm. Thus, Dr. Wagner has familiarity and experience with the specific
medical condition involved in the claim, which is the focus of chapter 74.
Further, though not every physician automatically qualifies as an expert
in every area of medicine, it is well established that a physician need not be a
practitioner in the same specialty as the defendant to be qualified as an expert
in a particular case. Broders, 924 S.W.2d at 152–53. If a particular subject
is substantially developed in more than one medical field, a qualified physician
in any of those fields may testify. Id. at 154; see Rittger v. Danos, No. 01-08-
00588-CV, 2009 WL 1688099, at *7 (Tex. App.—Houston [1st Dist.] June
4
… Dr. Wagner additionally states, “Anesthesiology may also be defined
as continuity of patient care involving preoperative evaluation, intra-operative
and postoperative care and the management of systems and personnel that
support these activities.” [Emphasis added.]
12
18, 2009, no pet. h.) (stating that when a particular subject of inquiry is
common to and equally developed in all fields of practice and the prospective
medical expert witness has practical knowledge of what is usually and
customarily done by a practitioner under circumstances similar to those that
confronted the practitioner charged with malpractice, the witness is qualified
to testify).
Here, the proper positioning and padding of Malcolm’s arm during the
cardiac surgical procedure is not a subject exclusively within the knowledge or
experience of a physician specializing in cardiovascular or thoracic surgery
because Dr. W agner, a physician who specializes in anesthesiology, is
experienced in and familiar with how cardiac surgical procedures—including the
positioning and padding of patients’ extremities—are managed. Contrary to
Dr. Dean’s objection, Dr. Wagner’s specialization in the field of anesthesiology
instead of cardiovascular or thoracic surgery does not disqualify him from
rendering an expert opinion as to whether Dr. Dean departed from accepted
standards of medical care regarding the proper positioning and padding of
Malcolm’s arm.5 See Broders, 924 S.W.2d at 153–54. We hold that the trial
5
… To the extent Dr. Dean argues that Dr. Wagner is not qualified to
render an opinion for reasons other than the ground addressed above, we do
not consider those waived objections because they were not raised in the trial
court within twenty-one days after the date Dr. Dean was served with Dr.
13
court abused its discretion by ruling that Dr. Wagner is not qualified to render
an expert opinion as to whether Dr. Dean departed from the accepted standards
of medical care regarding the positioning and padding of Malcolm’s arm. We
sustain this part of Appellants’ second issue.
B. Dr. Tauriainen’s Objection
Dr. Tauriainen made the following objection in the trial court to
Dr. Wagner’s qualifications:
[Dr. Tauriainen] objects to the qualifications of Dr. Wagner for the
reason that they fail to meet the criteria, delineated in § 74.401(a),
(b) and (c), that would permit him to offer expert testimony on the
issue of whether Dr. Tauriainen departed from the accepted
standards of medical care in this matter.
Dr. Wagner’s report satisfies each of the section 74.401(a) requirements.
Dr. Wagner has been actively engaged in the practice of medicine from
1982 to the present, and he was practicing medicine as of the date of the
Wagner’s report implicating Dr. Dean’s conduct. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(a); Maris, 262 S.W.3d at 384.
14
report and when the claim arose in January 2004.6 Dr. Wagner thus satisfies
the requirement of civil practice and remedies code section 74.401(a)(1).
As mentioned above, Dr. Wagner states that he has substantial personal
knowledge and experience in the care and treatment of patients undergoing
general anesthesia for cardiac surgical procedures. He is also familiar with the
management of such procedures, which includes positioning and padding
patients and patients’ extremities in order to prevent perioperative peripheral
neuropathies. Dr. Wagner consequently states that he has substantial
knowledge of the reasonable, prudent, and accepted standards of care
applicable to cardiovascular and cardiothoracic surgeons, general and traumatic
surgeons, registered nurses, and physician assistants, among others, for “the
diagnosis, assessment, care, and treatment of patients undergoing general
anesthesia for cardiac surgical procedures,” which includes the positioning and
padding of the patient and the patient’s extremities in order to prevent
6
… According to Dr. Wagner’s curriculum vitae, which he fully
incorporated by reference into his report, he has been the President and
Managing Partner of Anesthesia Associates since 1986, he was the chairperson
for the Department of Anesthesia at a Connecticut hospital, he was on the
faculty of the Yale School of Medicine, he was an Assistant Professor of
Anesthesia at the Yale School of Medicine, he was the CEO of Pain Therapy
Consultants, and he was the director of an intensive care unit at a Connecticut
hospital.
15
perioperative peripheral neuropathies. Dr. Wagner’s knowledge of the
applicable standards of care is based upon the following:
(1) his education, training, and experience;
(2) his familiarity with applicable medical literature;
(3) his familiarity with the applicable standards of medical and
health care developed among anesthesiologists, cardiovascular and
cardiothoracic surgeons, general and traumatic surgeons, nurses,
and physician assistants in the positioning and padding of patients
and the patients’ extremities for the prevention of perioperative
peripheral neuropathies under circumstances like Malcolm’s;
(4) his familiarity with the minimum standards of reasonable,
prudent, and accepted medical practices for the assessment, care,
and treatment of surgical patients like or similar to Malcolm
regarding the prevention of perioperative peripheral neuropathies;
and
(5) his familiarity with the standards of reasonable, prudent, and
accepted standards of medical care and treatment of surgical
patients like Malcolm regarding the prevention of perioperative
peripheral neuropathies that were applicable to all cardiovascular
and thoracic surgeons, general or traumatic surgeons, nurses, and
physician assistants as of 2004.
In light of his substantial knowledge of the reasonable, prudent, and accepted
standards of care for Malcolm’s condition, Dr. Wagner demonstrated that he
“has knowledge of accepted standards of medical care for the diagnosis, care,
or treatment of the illness, injury, or condition involved in the claim,” as
mandated by civil practice and remedies code section 74.401(a)(2). See Tex.
Civ. Prac. & Rem. Code Ann. § 74.401(a)(2).
16
As for the section 74.401(a)(3) requirement, Dr. Wagner states in his
report that he became board certified in anesthesiology in 1985. He has been
a Diplomate and Consultant to the American Board of Anesthesia since 1985
and a Diplomate to the National Board of Medical Examiners since 1982.
Dr. Wagner’s certification is relevant to Appellants’ claim because Dr. Wagner
is experienced in and familiar with how cardiac surgical procedures, including
the proper positioning and padding of a patient’s extremities, are managed. See
id. § 74.401(c)(1).
Additionally, Dr. Wagner states that since 1982, he has administered and
managed medical anesthesia care and treatment to over 10,000 patients
undergoing surgeries in a supine position and to between 300 and 400 patients
undergoing cardiac surgery. He also states that he has “extensive experience
working cooperatively with nurses and physician[] assistants in the nursing and
physician assistant care and treatment of patients undergoing general
anesthesia for cardiac surgical procedures.” Further, Dr. Wagner states that he
has substantial knowledge of the causal relationship regarding an
anesthesiologist’s, cardiovascular and cardiothoracic surgeon’s, and physician
assistant’s failures to meet the reasonable, prudent, and accepted standards of
care and supervision in the diagnosis, care, and treatment of patients
undergoing general anesthesia for cardiac surgical procedures. In light of
17
Dr. Wagner’s substantial relevant experience, he has “other substantial training
or experience in an area of medical practice relevant to” Appellants’ claim.
See id.
In considering section 74.401(c)(2), Dr. Wagner has specialized in the
field of anesthesiology since 1983 and is actively engaged in the practice of
medicine as the term is defined in section 74.401. We have already explained
that Dr. Wagner’s practice of anesthesiology is relevant to Appellants’ claim.
Thus, Dr. Wagner is actively practicing medicine in rendering medical care
services relevant to Appellants’ claim. See id. § 74.401(c)(2). Accordingly,
considering that Dr. Wagner is board certified or has other substantial training
or experience in an area of medical practice relevant to the claim and that he
is actively practicing medicine in rendering medical care services relevant to the
claim, he showed that he is “qualified on the basis of training and experience
to offer an expert opinion regarding” the accepted and applicable standards of
medical care in this case. See id. § 74.401(a)(3).
To the extent Dr. Tauriainen’s objection based on section 74.401
implicates section 74.351(r)(5)(C), considering the totality of Dr. Wagner’s
report, he has knowledge, skill, experience, training, or education that qualifies
him to give an opinion about whether Dr. Tauriainen’s departure from accepted
standards of medical care regarding the positioning and padding of Malcolm’s
18
arm before, during, and after the surgical procedure had a causal relationship
to Malcolm’s injury because (1) he has substantial personal knowledge and
experience in the care and treatment of patients undergoing general anesthesia
for cardiac surgical procedures; (2) he has substantial knowledge of the
reasonable, prudent, and accepted standards of care applicable to
cardiovascular and cardiothoracic surgeons and other professionals for the care
and treatment of patients undergoing general anesthesia for cardiac surgical
procedures; (3) he has specialized in the field of anesthesiology since 1983 and
has been board certified in anesthesiology since 1985; and (4) he has
administered and managed medical anesthesia care and treatment to between
300 and 400 patients undergoing cardiac surgery. See Broders, 924 S.W.2d
at 153. Dr. Wagner’s report establishes that he is qualified to opine on the
issue of causation because he is qualified to render such an opinion under the
rules of evidence. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(C),
74.403(a).
Like Dr. Dean, Dr. Tauriainen argues that Dr. Wagner is not qualified to
address the accepted standard of care in this case because he is an
anesthesiologist, not a cardiovascular and thoracic surgeon. This argument is
unpersuasive for the same reasons that it was unpersuasive for Dr. Dean. We
hold that the trial court abused its discretion by ruling that Dr. Wagner is not
19
qualified to render an expert opinion as to whether Dr. Tauriainen departed from
the accepted standards of medical care regarding the positioning and padding
of Malcolm’s arm. We sustain this part of Appellants’ second issue.
C. CTSG’s Objection
CTSG challenged Dr. Wagner’s qualifications to render an expert opinion
as to whether it departed from the accepted standards of medical care relevant
to Appellants’ claims. Appellants alleged both direct and vicarious theories of
liability against CTSG. 7 We construe CTSG’s objection as a challenge to
Dr. Wagner’s qualifications to render an expert opinion as to CTSG’s direct
liability.8
As a professional association, CTSG is a “health care provider” as defined
by section 74.001. Id. § 74.001(a)(12)(A). Thus, Dr. Wagner’s report must
demonstrate that he is qualified pursuant to section 74.402 to render an expert
opinion as to CTSG’s alleged departure from the applicable standard of care.
See id. § 74.351(r)(5)(B). Unlike Dr. Wagner’s report as to Dr. Dean and Dr.
7
… Regarding Appellants’ direct liability claims, they alleged that CTSG
negligently failed to supervise the quality of medical and health services for
Malcolm.
8
… To the extent CTSG challenges Dr. Wagner’s report as to Appellants’
allegations that CTSG is vicariously liable for the actions and inactions of
Dr. Tauriainen and Dr. Dean, we have already ruled above that the report was
sufficient to demonstrate Dr. Wagner’s qualifications to render an expert
opinion as to Dr. Tauriainen and Dr. Dean.
20
Tauriainen, Dr. Wagner’s report as to CTSG does not provide any information
regarding his background, training, or experience from which it can be
concluded that he has expertise about the standards of care generally applicable
to professional associations. Dr. Wagner generally asserts that he is qualified
to render an expert opinion on CTSG’s conduct, but this alone is insufficient in
the absence of any information within the report itself indicating any experience
or training regarding the standards of care applicable to professional
associations. We hold that the trial court did not abuse its discretion by
sustaining CTSG’s objection that Dr. Wagner’s report failed to show that he is
qualified under section 74.402 to opine regarding Appellants’ direct liability
claim against CTSG. We overrule this part of Appellants’ second issue.
VI. S UFFICIENCY OF D R. W AGNER’S R EPORT
In their third issue, Appellants argue that the trial court abused its
discretion by ruling that Dr. Wagner’s report is insufficient to represent an
objective good faith effort to comply with the definition of an expert report in
section 74.351(r)(6). Dr. Tauriainen did not object in the trial court that
Dr. Wagner’s report was insufficient as to any of the section 74.351(r)(6)
requirements. But Dr. Dean objected that Dr. Wagner’s report was insufficient
regarding the applicable standard of care and how Dr. Dean failed to meet that
21
standard of care, and CTSG challenged each requirement of section
74.351(r)(6).
A. Standard of Care
Dr. Wagner states the following regarding the accepted and applicable
standards of care in this case:
The applicable reasonable, prudent and accepted standards of care
for . . . Dr. [Tauriainen] [and] Dr. Dean . . . involved a shared
responsibility on the part of each of these surgeons, the physician
assistant, and nurses to properly position and pad [Malcolm’s] left
and right upper extremities before the start of the CABG surgical
procedure, during the left radial artery harvest, after the left radial
[artery] harvest and during the remainder of the surgery in order to
prevent peripheral neuropathies to [Malcolm’s] upper extremities.
Of the major nerves in the upper extremities, the ulnar nerve and
brachial plexus nerves are and were the most common nerves to be
at risk of injury and to become symptomatic and lead to major
disability of a patient during and after the perioperative period.
Improper surgical patient positioning and padding of upper
extremities were well known causative factors in the development
of surgical patients’ ulnar neuropathies as of 2004 and such risks
had been known by the surgical, physician assistants, hospital, and
operating room nursing communities in the United States for many
years. As of 2004, reasonably prudent anesthesiologists,
cardiovascular and cardiothoracic surgeons, general and traumatic
surgeons, physician’s professional associations, registered nurses,
and physician[] assistants were or should have been aware that
surgical patients in supine positions were at risk of developing ulnar
nerve injuries and neuropathies during surgery due to external ulnar
nerve compression or stretching caused by malpositioning and
improper or inadequate padding during surgery. Prevention of
perioperative peripheral neuropathies to [Malcolm], including his left
upper extremity, was preventable by proper positioning and
padding of his left arm and hand. Dr. Moss, with the cooperation
of nurses Alexander and Syptak, should have positioned
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[Malcolm’s] right and left upper extremities in a manner to decrease
pressure on the postcondylar groove of the humerus or ulnar
groove. When his arms were tucked at the side the neutral forearm
position with elbows padded would have been appropriate. When
his left upper extremity was abducted on an arm board, that
extremity should have been either in supination or a neutral forearm
position. His arm should have been extended to less than ninety
degrees. They should have applied padding materials such as foam
sponges, eggcrate foam or gel pads, to protect exposed peripheral
nerves in [Malcolm’s] left arm, particularly at the site of his elbow
and left ulnar groove. Thus, after Drs. [Tauriainen] [and] Dean . . .
harvested [Malcolm’s] left radial artery from his left upper extremity
extended on an armboard, they, together with Dr. Moss, and
nurses Alexander and Syptak, should have assured that [Malcolm’s]
left upper extremity was returned to his side in a neutral forearm
position and padding of his left elbow and any bony prominences
should have been performed to protect his left ulnar nerve and
prevent the risk of a left upper extremity neuropathy to the nerve.
Also, Drs. [Tauriainen] and Dean . . . should have assured and
followed procedures so that [Malcom’s] left upper extremity was
positioned in a neutral forearm position and properly padded to
prevent the risk that any of the surgeons or assistants could come
in contact or lean on his left arm during the surgical procedure.
[Emphasis added.]
The report thus includes Dr. Wagner’s opinions on the element of
standard of care. See id. § 74.351(r)(6). Dr. Dean and CTSG, however, cite
Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (Tex.
App.—Corpus Christi 2004, no pet.), and argue that Dr. Wagner’s report is
insufficient because it fails to state with specificity the applicable standard of
care for each defendant. Taylor has been thoroughly scrutinized by the
appellate courts, and it does not expressly prohibit applying the same standard
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of care to more than one health care provider if they all owe the same duty to
the patient. See Springer v. Johnson, 280 S.W.3d 322, 332–33 (Tex.
App.—Amarillo 2008, no pet.); Livingston v. Montgomery, 279 S.W.3d 868,
871–73 (Tex. App.—Dallas 2009, no pet.); Sanjar v. Turner, 252 S.W.3d 460,
466–67 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Dr. Wagner’s report
provides that Appellees all shared a responsibility to properly position Malcolm’s
arm. The report is not insufficient for “grouping” Appellees together because
Dr. Wagner specifically states that they all owed the same duty to ensure the
proper positioning and padding of Malcolm’s arm. See Springer, 280 S.W.3d
at 332; Livingston, 279 S.W.3d at 873; Sanjar, 252 S.W.3d at 466; In re
Stacy K. Boone, 223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006, no pet.)
(holding that a single standard of care applicable to physicians and physician
assistant was sufficient because all participated in administering treatment); cf.
Polone v. Shearer, 287 S.W.3d 229, 235 (Tex. App.—Fort Worth 2009, no
pet.) (holding report that set forth single standard of care applicable to
physician and physician assistant insufficient to represent a good faith effort
because “[a]lthough the standards of care might be the same for both [the
physician and physician assistant], the report does not specifically state as
much”). We hold that Dr. Wagner’s report constitutes a good faith effort to
identify and set forth the applicable standards of care in this case and that the
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trial court abused its discretion by ruling otherwise. We sustain this part of
Appellants’ third issue.
B. Breach of Standard of Care and Causation
Dr. Wagner’s report states the following regarding how Appellees failed
to meet the applicable standards of care and the causal relationship between
that failure and the injury, harm, or damages claimed:
It is my opinion that Dr. [Tauriainen] [and] Dr. Dean . . . failed to
meet the applicable reasonable, prudent and accepted standards of
medical care . . . for each of them in that they did not properly and
adequately perform procedures to assure that [Malcolm’s] left
upper extremity was positioned and padded to decrease pressure
on his left postcondylar groove of the humerus or ulnar groove in
order to protect him from a serious and permanent left ulnar nerve
injury and neuropathy to his left upper extremity. During the
surgery, [Malcolm] was asleep under the effects of general
anesthesia and he was unable to care for himself and protect
himself from a left upper extremity ulnar nerve injury and
neuropathy. According to the hospital’s intraoperative record[,] a
left radial artery harvest was performed by Ms. Barnett-Wright,
under the supervision of Dr. [Tauriainen] and Dr. Dean. After this
harvest procedure, [Malcolm’s] right arm was placed in a tucked
and padded position on his right side, his left arm was placed on an
olympic table for the left radial artery harvest procedure, and then
his left arm was placed in a “tucked” position on his left side by
Dr. Moss, with the cooperation of nurses Alexander and Syptak.
Dr. [Tauriainen] [and] Dr. Dean . . . had a shared responsibility with
the anesthesiologist . . . to assure that [Malcolm’s] left upper
extremity was properly positioned and padded for the remainder of
the CABG surgery. However, Dr. [Tauriainen] [and] Dr. Dean . . .
improperly failed to position [Malcolm’s] left arm and apply padding
or adequate padding such as foam sponges, eggcrate foam, or gel
pads to protect his exposed peripheral left ulnar nerve at the site of
his elbow and left ulnar groove. Dr. [Tauriainen] [and]
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Dr. Dean . . . should have directed Ms. Barnett-Wright to place
[Malcolm’s] left arm in a neutral forearm position and apply padding
of his left elbow to protect his left ulnar nerve, and Dr. [Tauriainen]
[and] Dr. Dean . . . should have checked the site of [Malcolm’s] left
arm and elbow to assure that these procedures had been properly
followed, or Dr. [Tauriainen] [and] Dr. Dean should have performed
these procedures themselves. It appears from the hospital record
that Dr. [Tauriainen] [and] Dr. Dean . . . did not adequately direct
Ms. Barnett-Wright in the positioning and placement of [Malcolm’s]
left arm to protect his left ulnar nerve following the left radial artery
harvest, and that they did not adequately perform these procedures
themselves nor assure that Ms. Barnett-Wright had done so to
protect [Malcolm’s] left ulnar nerve. . . . These standard of care
failures by Dr. [Tauriainen] [and] Dr. Dean . . . very likely resulted
in the exposure of [Malcolm’s] left ulnar peripheral nerve to
excessive external pressure or stretching, or both, over a prolonged
period of approximately four hours during the surgical procedure
and this prolonged pressure and/or stretching most likely resulted
in a serious and permanent left ulnar nerve injury and neuropathy
to [Malcolm’s] left arm and hand, and [Malcolm’s] physical
impairments in the use of his left hand consisting of pain,
numbness, stiffness, impaired use of his left hand and two fingers
involved. My opinion in this regard is based upon the facts that
[Malcolm] did not have any preoperative history of left upper
extremity neuropathy, the hospital intraoperative records indicate
that his left upper extremity was inappropriately and inadequately
positioned and padded during the surgery, [and] he awoke from
general anesthesia in the ICU and immediately perceived painful
throbbing, burning and swelling of his left arm and hand. . . . If
Dr. [Tauriainen] [and] Dr. Dean . . . with the cooperation of
Ms. Barnett-Wright, had properly positioned and padded
[Malcolm’s] left arm, and particularly the area of his elbow and
ulnar groove, his ulnar nerve would not have been exposed to
prolonged pressure throughout the remainder of the surgery, and in
all reasonable medical probability, he would not have suffered
permanent left upper extremity ulnar nerve injury and neuropathy
for the reasons which I have discussed above. [Emphasis added.]
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The report thus includes Dr. Wagner’s opinions on the elements of the
manner in which the care rendered by Appellees failed to meet the applicable
standards of care and the causal relationship between that failure and the
injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6). The report also links Appellees’ purported breach of the
applicable standards of care to Malcolm’s alleged injuries. See Bowie Mem’l
Hosp., 79 S.W.3d at 52 (requiring expert to explain the basis of his statements
regarding causation and link his conclusions to the facts). We hold that
Dr. Wagner’s report represents an objective good faith effort to identify and set
forth how Appellees breached the applicable standards of care and the causal
relationship between that failure and the injuries claimed. Dr. Wagner’s report
indisputably informs Appellees of the specific conduct Appellants have called
into question and provides a basis for the trial court to conclude that the
Appellants’ claims have merit. See Palacios, 46 S.W.3d at 879. We hold that
the trial court’s ruling otherwise was arbitrary or unreasonable, or without
reference to any guiding rules or principles, and, thus, an abuse of discretion.
We sustain the remainder of Appellants’ third issue.
VII. C ONCLUSION
Having overruled part of Appellants’ second issue, we affirm the part of
the trial court’s order sustaining CTSG’s objection that Dr. Wagner’s report
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failed to show that he is qualified under section 74.402 to render an expert
opinion as to CTSG’s direct liability and dismissing Appellants’ direct liability
claims against CTSG. Having sustained the remainder of Appellants’ second
issue and all of their third issue, we reverse the trial court’s order sustaining
each of Appellees’ other objections to Dr. Wagner’s report and dismissing
Appellants’ claims against Dr. Dean and Dr. Tauriainen and their vicarious
liability claims against CTSG. We remand the case to the trial court for further
proceedings.
BILL MEIER
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and MEIER, JJ.
DELIVERED: October 29, 2009
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