stephen-c-walters-dds-arlington-oral-surgery-pa-and-party-doing ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-196-CV
STEPHEN C. WALTERS, D.D.S.; APPELLANTS
ARLINGTON ORAL SURGERY, P.A.;
AND PARTY DOING BUSINESS AS
ARLINGTON ORAL SURGERY
V.
TRINA HUDOBA, INDIVIDUALLY APPELLEE
AND ON BEHALF OF THE ESTATE
OF ELIZABETH TAYLOR, DECEASED
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Stephen C. Walters, D.D.S., and Arlington Oral Surgery, Appellants,
(collectively referred to herein as Dr. Walters) appeal the trial court’s denial of
their motion to dismiss Appellee Trina Hudoba’s dental malpractice claim for the
1
… See Tex. R. App. P. 47.4.
alleged failure to file an adequate expert report. Because Appellee timely filed
an adequate expert report, the trial court did not abuse its discretion by refusing
to dismiss the suit. Accordingly, we will affirm the trial court’s order.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Appellee’s daughter, Elizabeth Taylor, sought treatment from Dr. Walters
for a tooth extraction. Taylor was five-foot-three-inches tall and weighed 290
pounds; she suffered from a heart murmer, high blood pressure, chest pain,
irregular heart beat, bronchitis, asthma, and sleep apnea. Prior to performing
the tooth extraction procedure, Dr. Walters administered general anesthesia to
Taylor. Following the administration of the anesthesia drugs, Taylor stopped
breathing. Resuscitation efforts commenced; Dr. Walters intubated
Taylor—placing the tube into Taylor’s stomach instead of her lungs—and a call
to 911 was placed. Paramedics arrived and transported Taylor to the hospital
where she was pronounced dead on arrival.
The State Board of Dental Examiners (the Board) initiated an investigation
into Taylor’s death. Roger P. Byrne, D.D.S, M.D. examined the Board’s
investigative file and prepared an expert report for the Board. The report is
eighteen pages long and details the records Dr. Byrne reviewed, the statements
Dr. Byrne reviewed, the sequence of events that occurred, the “record keeping”
standard of care violations by Dr. Walters, and the nine “standard of care
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violations committed by Dr. Walters which led to Ms. Taylor’s death.” It
contains a report summary concluding that “[i]t is my opinion Dr. Walters’[s]
negligent acts are responsible for the demise of Ms. Elizabeth Taylor.” A copy
of Dr. Byrne’s report is attached to this opinion as Appendix A.
Appellee attached Dr. Byrne’s report to her October 30, 2007 original
petition to satisfy the statutory expert report requirement. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351 (Vernon Supp. 2008). Appellants timely filed an
answer that, in two paragraphs, objected to Dr. Byrne’s expert report.
Specifically, Appellants alleged that
8. Defendants object to the correspondence/report and curriculum
vitae of Roger P. Byrne, D.D.S., M.D., as attached to Plaintiff’s
Original Petition. Dr. Byrne’s correspondence, with attached
curriculum vitae, is confidential communication to the State Board
of Dental Examiners, and therefore, should not be attached to
Plaintiff’s Original Petition. Defendants further object to any
attempt by Plaintiff [sic] utilize Dr. Byrne’s correspondence to
comply with the expert report requirements of Chapter 74 of the
Texas Civil Practice & Remedies Code.
9. To the extent that Plaintiff is attempting to utilize the
correspondence and curriculum vitae of Roger P. Byrne, D.D.S.,
M.D. to comply with the expert report requirements of Chapter 74
of the Texas Civil Practice & Remedies Code, Defendants object to
the opinions and qualifications of Dr. Byrne in accordance with
Chapter 74 of the Texas Civil Practice & Remedies Code.
Additionally, Defendants object to the sufficiency of the
report/correspondence and curriculum vitae of Dr. Byrne in
accordance with Chapter 74 of the Texas Civil Practice & Remedies
Code.
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The record reflects that Appellee requested a hearing on Dr. Walters’s
objections, set forth above. Dr. Walters filed “Objections to Hearing on Chapter
74 Objections,” claiming that “Chapter 74 does not permit the Court to rule on
Defendants’ objections to Plaintiff’s expert report prior to the 120-day deadline”
and requesting that “the hearing on Defendants’ objections to Plaintiff’s expert
report be reset until after the 120-day deadline.” The trial court conducted a
hearing on January 14, 2008, within 120 days of Appellee’s October 30, 2007
filing of her original petition. The trial court signed a February 5, 2008 order
overruling Dr. Walters’s objection to conducting the hearing prior to the 120-
day deadline and also overruling Dr. Walters’s objections to the expert report
of Dr. Byrne.
On March 14, 2008, Dr. Walters filed a motion to dismiss Appellee’s
claim for “failure to comply with Chapter 74 expert report requirement.” Dr.
Walters specifically alleged that Dr. Byrne was not qualified and that his report
“fails to establish the causal relationship between defendants’ alleged
negligence and Elizabeth Taylor’s death.” Appellee filed objections and a
response to Dr. Walters’s motion to dismiss. Appellee contended that “a
hearing was already held on all of Defendants’ objections to Plaintiff’s expert
report under Chapter 74 and all of Defendants’ objections were overruled.”
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The trial court conducted a hearing on Dr. Walters’s motion to dismiss on
April 8, 2008. The trial court signed an April 21, 2008 order overruling
Appellee’s objection to the motion to dismiss contending that all objections to
Dr. Byrne’s report had been overruled by the trial court’s prior order. The trial
court also denied Dr. Walters’s motion to dismiss. Dr. Walters perfected this
appeal.
III. D R. W ALTERS’S A PPELLATE C ONTENTIONS
In his sole issue, Dr. Walters contends that the trial court abused its
discretion by denying his motion to dismiss. Dr. Walters argues on appeal that
Dr. Byrne’s report “fails to establish the causal relationship between Dr.
Walters’[s] alleged negligence and Ms. Taylor’s death.” Specifically, Dr.
Walters claims that Dr. Byrne’s report (1) addresses Dr. Walters’s alleged
violation of the State Board’s rules, but it “does not establish the causal
relationship between Dr. Walters’[s] purported negligence and Elizabeth Taylor’s
death;” (2)”is conclusory because he fails to rule out other possible causes of
Ms. Taylor’s death;” (3) “fails to explain how Dr. Walters’[s] failure to
appropriately treat Ms. Taylor’s respiratory depression caused her death;” (4)
“omits any explanation for how Dr. Walters’[s] administration of general
anesthesia proximately caused Ms. Taylor’s death;” (5) “contains a large
analytical gap[] in that he failed to explain how Dr. Walters’[s] administration
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of Versed, Fentanyl, and Propofal proximately caused Ms. Taylor’s death;” and
(6) “fails to flesh out how Dr. Walters’[s] administration of general anesthesia
and failure to respond to Ms. Taylor’s respiratory depression caused Ms.
Taylor’s death.”
On appeal, Dr. Walters does not raise any challenge to Dr. Byrne’s
qualifications, but on page 8 of his brief he complains:
Dr. Byrne was retained by the Texas State Board of Dental
Examiners (“State Board”) to serve as an expert witness in the
State Board’s case involving Dr. Walters’[s] treatment of Ms.
Taylor. Dr. Byrne wrote his report as an expert witness for the
State Board. . . . Dr. Byrne’s opinions are relevant to the State
Board’s investigation of Dr. Walters’[s] treatment of Ms. Taylor,
. . . but Dr. Byrne’s opinions are irrelevant in this malpractice case.
. . . While Dr. Byrne’s report addresses Dr. Walters’[s] alleged
violation of the State Board’s Rules, it does not establish the causal
relationship between Dr. Walters’[s] purported negligence and
Elizabeth Taylor’s death.”
Thus, Dr. Walters’s two main appellate complaints concerning Dr. Byrne’s
report concern causation and Appellee’s reliance on a report prepared for the
Board.
IV. W AIVER OF C AUSATION O BJECTION
Appellee claims that Dr. Walters waived all of his causation objections
because he did not timely assert them in the trial court. Texas Civil Practice
and Remedies Code, section 74.351(a) provides:
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In a health care liability claim, a claimant shall, not later than the
120th day after the date the original petition was filed, serve on
each party or the party’s attorney one or more expert reports, with
a curriculum vitae of each expert listed in the report for each
physician or health care provider against whom a liability claim is
asserted. . . . Each defendant physician or health care provider
whose conduct is implicated in a report must file and serve any
objection to the sufficiency of the report not later than the 21st
day after the date it was served, failing which all objections are
waived.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (emphasis added); see also
Maris v. Hendricks, 262 S.W.3d 379, 385 (Tex. App.—Fort Worth 2008, pet.
denied) (holding objection to sufficiency of chapter 74 expert report was waived
because it was not asserted within the statutory twenty-one-day time period).
Dr. Walters concedes that he was required to object to Dr. Byrne’s report
within the statutory twenty-one-day time period; Dr. Walters explained at oral
argument that the objection asserted in his answer that “Defendants object to
the sufficiency of the report/correspondence and curriculum vitae of Dr. Byrne
in accordance with Chapter 74 of the Texas Civil Practice & Remedies Code”
impliedly included an objection to every statutory element of an expert report.
Thus, Dr. Walters claims that he did timely assert his causation objection.
We cannot agree. Dr. Walters’s only timely filed objections to Dr. Byrne’s
report were contained in paragraphs 8 and 9 of his original answer, set forth
previously in this opinion. Dr. Walters objected to Appellee’s use of a report
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prepared for the Board and to the “opinions and qualifications of Dr. Byrne” and
“the sufficiency of the report.” Neither of these objections raise the objections
to the causation element of Dr. Byrne’s report set forth in his motion to dismiss
or in his brief on appeal. See Tex. R. App. P. 33.1(a) (requiring objection to be
specific); Plemons v. Harris, No. 02-08-00326-CV, 2009 WL 51290, *3 (Tex.
App.—Fort Worth Jan. 8, 2009, no pet. h.) (holding objection to expert report
made in trial court must comport with complaint asserted on appeal). Because
Dr. Walters did not timely assert specific causation objections, he waived those
objections. See Ogletree v. Matthews, 262 S.W.3d 316, 322 (Tex. 2007)
(stating that any objection to report must be made within twenty-one days after
service of report); Williams v. Mora, 264 S.W.3d 888, 891(Tex. App.—Waco
2008, no pet.) (holding that when defendant’s only timely filed objections to
expert report were that two statements were speculative, defendant waived all
other objections); Springer v. Johnson, No. 07-07-00424-CV, 2008 WL
2346385, at *9 (Tex. App.—Amarillo June 4, 2008, no pet.) (holding
objection to report not raised in trial court was waived). Because the causation
objections asserted in Dr. Walters’s motion to dismiss and in this appeal were
not filed within twenty-one days of the service of Dr. Byrne’s report, we hold
they were waived and overrule the portion of Dr. Walters’s issue arguing that
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Dr. Byrne’s report is inadequate on the issue of causation. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a).
V. D R. W ALTERS’S O BJECTION C ONCERNING U SE OF
R EPORT P REPARED FOR THE B OARD
In the second portion of his sole issue, Dr. Walters argues that he did,
however, timely object to Appellee’s use of Dr. Byrne’s report because the
report was prepared for the Texas State Board of Dental Examiners. As set
forth above, at page eight of his brief Dr. Walters attempts to bootstrap, or tie,
his causation arguments to his preserved contention that the trial court abused
its discretion by concluding that a report prepared for the State Board was an
adequate report. We have held that Dr. Walters waived his causation
objections; but in the interest of justice, alternatively, and because this
causation argument is bootstrapped to an objection that Dr. Walters did timely
make, we address Dr. Walters’s causation arguments below.
A. Standard of Review
We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285,
290–91 (Tex. App.—Fort Worth 2008, no pet.); Maris, 262 S.W.3d at 383.
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
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principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a
trial court may decide a matter within its discretion in a different manner than
an appellate court would in a similar circumstance does not demonstrate that
an abuse of discretion has occurred. Id. But a trial court has no discretion in
determining what the law is or in applying the law to the facts, and thus “a
clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth
2004, pet. denied).
B. No Abuse of Discretion
A 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. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(l). While the expert report “need not marshal all the
plaintiff’s proof,” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 878 (Tex. 2001) (construing former art. 4590i, § 13.01), it must
provide a fair summary of the expert’s opinions as to the “applicable standards
of care, the manner in which the care rendered by the physician or health care
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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
Ann. § 74.351(r)(6).
To constitute a good-faith effort, the report must “discuss the standard
of care, breach, and causation with sufficient specificity to inform the
defendant of the conduct the plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit.” Palacios, 46
S.W.3d at 875. A report does not fulfill this requirement if it merely states the
expert’s conclusions or if it omits any of the statutory requirements. Id. 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.” Id. The
claimant’s expert must incorporate enough information to fulfill two purposes:
(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 the claims are
meritorious. Id.
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. Id. 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 id. However, section 74.351 does not prohibit experts, as
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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 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).
To establish causation, an expert report must provide information linking
the defendant’s purported breach of the standard of care to the plaintiff’s
injury. See Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex. App.—San
Antonio 2004, no pet.); see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
53 (Tex. 2002). An expert must also explain the basis of his statements to link
his conclusions to the facts. Wright, 79 S.W.3d at 52.
A review of Dr. Byrne’s report refutes each of Dr. Walters’s claims
concerning its causation sufficiency. Dr. Byrne’s report explains,
It is my medical opinion, based on the known sequence of events
and reasonable medical probability, Ms. Taylor’s death on 11/4/05
resulted from three separate, but obviously connected, findings: 1)
morbid obesity, reactive airway disease, “difficult airway”, possibly
contributing obstructive sleep apnea, hypertension and cardiac
hypertrophy; 2) Dr. Walters[‘s] decision to perform an office-based
operator-anesthetist general anesthesia on Ms. Taylor; and 3)
respiratory depression, resultant apnea and hypoxia from the
administration of Versed, Fentanyl, and Propofol medications with
a progressive spiral of decline into a life-threatening emergency
which was not appropriately treated by Dr. Walters.
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After setting forth Dr. Walters’s standard of care violations in classifying the
pre-operative physical risk status of Ms. Taylor, Dr. Byrne opined, “It is my
opinion Ms. Taylor should have had the tooth removed under a local anesthesia
or possibly a conscious sedation and local anesthesia because of her significant
general anesthesia medical risks.” After setting forth Dr. Walters’s standard of
care violations in failing to consider the increased risk of office-based general
anesthesia in a morbidly obese patient, Dr. Byrne opined, “In my medical
opinion, Dr. Walters had an inadequate fund of knowledge, demonstrated poor
clinical judgment, and possessed extremely low skill levels in his ability to
manage and maintain a difficult airway which caused the death of Ms. Taylor.”
After setting forth Dr. Walters’s standard of care violations in failing to train and
rehearse his office staff in emergency procedures, Dr. Byrne opined, “In my
opinion, the apparent lack of emergency training and performance by Dr.
Walters and his staff caused Ms. Taylor’s death.” After setting forth Dr.
Walters’s standard of care violations in failing to appropriately treat Ms.
Taylor’s respiratory emergency by failing to immediately administer reversal
agents, failing to establish an intubated airway, and failing to provide adequate
respiratory support, Dr. Byrne opined, “It is my opinion, Dr. Walters had an
inadequate fund of anesthesia knowledge about respiratory depression and
possessed extremely poor judgment and skill levels in his ability to manage and
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maintain an adequate airway which caused the death of Ms. Taylor.” These
examples do not constitute a complete itemization of the causation opinions in
Dr. Byrne’s report. There are still more, which we do not detail here. Finally,
Dr. Byrne concluded, “It is my opinion that Dr. Walters’[s] negligent acts are
responsible for the demise of Ms. Elizabeth Taylor.”
Viewing the information set forth within the four corners of Dr. Byrne’s
report, we hold that the trial court did not abuse its discretion by determining
Dr. Byrne’s report provides a fair summary of his expert opinions as to the
“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 Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878.
The trial court did not abuse its discretion by determining that Dr. Byrne’s
report constitutes an objective good faith effort to satisfy the two purposes of
section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
The cases cited by Dr. Walters for the contrary position are not applicable
here. See Clark v. HCA, Inc., 210 S.W.3d 1, 11 (Tex. App.—El Paso 2005, no
pet.) (holding expert report did not causally link alleged negligent use of
Lovenox to compartment syndrome alleged as injury from doctor’s negligence);
Barko v. Genzel, 123 S.W.3d 457, 458–59 (Tex. App.—Eastland 2003, no
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pet.) (holding expert report did not causally link plaintiff’s claims that doctor
negligently failed to diagnose and treat back injury to miscarriage alleged as
injury from doctor’s negligence); Windsor v. Maxwell, 121 S.W.3d 42, 46–50
(Tex. App.—Fort Worth 2003, pet. denied) (holding expert report did not
causally link plaintiff’s pleaded facts to intimal injury to left vertebral artery
alleged as injury from doctor’s negligence); Zavala v. Pinkerton, No. 03-05-
00169-CV, 2007 WL 2010832, at *2 (Tex. App.—Austin July 10, 2007, no
pet.) (mem. op.) (holding expert report did not causally link plaintiff’s claim of
negligent wisdom tooth extraction “to the chronic facial pain, internal
derangement of the right and left temporomandibular joints and other harm”
alleged as injuries from dentist’s negligence); Meyers v. Golden Palms Ret. &
Health Ctrs., Inc., No. 13-06-00289-CV, 2007 W L 1500819, at *3 (Tex.
App.—Corpus Christi May 24, 2007, pet. denied) (mem. op.) (holding expert
report did not show causal link between plaintiff’s claim of nursing home
employees’ negligent performance of a transfer of plaintiff from wheel chair to
the broken femur alleged as injury from negligence).
Here, unlike the expert reports in Clark, Barko, Windsor, Zavala, and
Meyers, Dr. Byrne’s report does causally link Dr. Walters’s standard of care
violations to the injury—death—alleged to have occurred as a result of Dr.
Walters’s negligence. As set forth above, and demonstrated in the report
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attached to this opinion as Appendix A, Dr. Byrne’s report itemizes and then
discusses in detail nine specific standard-of-care violations by Dr. Walters:
failure to appropriately classify the pre-operative physical risk status of Ms.
Taylor; failure to consider the increased risks of office-based general anesthesia
in a morbidly obese patient; failure to properly assess the status of Ms. Taylor’s
asthmatic bronchitis prior to administering general anesthesia; failure to train
and rehearse his office staff in emergency procedures; failure to monitor Ms.
Taylor’s vital signs while she was under general anesthesia; failure to properly
treat Ms. Taylor’s respiratory emergency by not immediately administering
reversal agents, not establishing an intubated airway, and not providing
adequate respiratory support; failure to maintain flumazinil (Romazicon)
medication on his “crash cart;” failure to properly perform advanced cardiac life
support on Ms. Taylor; and failure to use prudent medical judgment by choosing
to use general anesthesia on Ms. Taylor for “the simple removal of a tooth.”
After each section of the report discussing each of these nine standard of care
violations, Dr. Byrne’s report links the standard of care violation specifically to
the facts of Ms. Taylor’s death. Dr. Byrne’s factually specific causation
opinions are not conclusory. See Arkoma Basin Exploration Co. v. FMF Assocs.
1990-A, Ltd., 249 S.W.3d 380, 392 n.32 (Tex. 2008) (defining conclusory as
“[e]xpressing a factual inference without stating the underlying facts on which
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the inference is based”); see also, e.g., Mosley v. Mundine, 249 S.W.3d 775,
781 (Tex. App.—Dallas 2008, no pet.) (holding expert report sufficient on
causation element); Grindstaff v. Michie, 242 S.W.3d 536, 544 (Tex. App.—El
Paso 2007, no pet.) (same); Patel v. Williams, 237 S.W.3d 901, 906 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (same); Bidner v. Hill, 231 S.W.3d
471, 474 (Tex. App.—Dallas 2007, pet. denied) (same).
Moreover, this is not a case like Clark, Barko, Windsor, Zavala, or Meyers,
where the injury alleged by the plaintiff did not necessarily follow from the
negligence alleged by the plaintiff. Here the negligence alleged all relates to Dr.
Walters’s administration of office-based general anesthesia to Ms. Taylor. The
injury alleged, the death of Ms. Taylor from respiratory depression induced by
drugs administered by Dr. Walters, flows—as opined by Dr. Byrne—directly
from Dr. Walters’s negligent administration of those drugs in an office-based
general anesthesia and from Dr. Walters’s negligent care for Ms. Taylor during
general anesthesia and after she suffered respiratory distress. An “expert
report does not need to marshal all the evidence necessary to establish
causation at trial,” it must only “contain sufficiently specific information to
demonstrate causation beyond mere conjecture.” Farishta v. Tenet
Healthsystem Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex. App.—Fort
17
Worth 2007, no pet.) (citing Wright, 79 S.W.3d at 52). Dr. Byrne’s report
more than adequately meets this standard.
Concerning Dr. Walters’s contention that Dr. Byrne’s report is inadequate
because it “fails to rule out other possible causes of Ms. Taylor’s death,” no
such requirement exists, even at trial in a medical negligence case. In a medical
malpractice case, the plaintiff must prove by competent testimony that the
defendant’s negligence proximately caused the plaintiff’s injury. Duff v. Yelin,
751 S.W.2d 175, 176 (Tex. 1988) (citing Hart v. Van Zandt, 399 S.W.2d 791,
792 (Tex. 1965) and Bowles v. Bourdon, 148 Tex. 1, 5, 219 S.W.2d 779, 782
(1949)). The plaintiff must establish a causal connection beyond the point of
conjecture; proof of mere possibilities will not support the submission of an
issue to the jury. Duff, 751 S.W.2d at 176. The plaintiff is required to show
evidence of a “reasonable medical probability” or “reasonable probability” that
his or her injuries were proximately caused by the negligence of one or more of
the defendants. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511
(Tex. 1995). But a plaintiff is not required to establish causation in terms of
medical certainty, nor is he or she required to exclude every other reasonable
hypothesis. Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex. App.—Houston
[14th Dist.] 1994, writ denied) (citing King v. Flamm, 442 S.W.2d 679, 682
(Tex. 1969)). Dr. Walters has cited no authority, and we have located none,
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indicating that an expert report must “rule out other possible causes of Ms.
Taylor’s death” in order to be adequate under chapter 74. Moreover, Dr.
Byrne’s report specifically explains that “the autopsy performed by the Tarrant
[c]ounty Medical Examiner ruled out a catastrophic cause of death such as a
stroke or a myocardial infarction and physical and microscopic findings were
consistent with respiratory and cardiac arrest.”
Concerning Dr. Walters’s contention that Dr. Byrne’s report is inadequate
because it “fails to explain how Dr. Walters’[s] failure to appropriately treat Ms.
Taylor’s respiratory depression caused her death,” we simply cannot agree; Dr.
Byrne’s report specifically explains that Dr. Walters failed to appropriately treat
Ms. Taylor’s respiratory depression by failing to administer reversal agents,
failing to establish an intubated airway, failing to provide adequate respiratory
support, failing to properly administer advanced cardiac life support, and failing
to train his staff in emergency procedures. Dr. Byrne’s report specifically
opines that each of these acts caused the death of Ms. Taylor by preventing
adequate ventilation of Ms. Taylor and allowing her oxygen saturation to drop
below an acceptable level.
Concerning Dr. Walters’s contentions that Dr. Byrne’s report is inadequate
because it “omits any explanation for how Dr. Walters’[s] administration of
general anesthesia proximately caused Ms. Taylor’s death,” “contains a large
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analytical gap in that he failed to explain how Dr. Walters’[s] administration of
Versed, Fentanyl, and Propofal proximately caused Ms. Taylor’s death,” and
“fails to flesh out how Dr. Walters’[s] administration of general anesthesia and
failure to respond to Ms. Taylor’s respiratory depression caused Ms. Taylor’s
death,” Dr. Byrne’s report speaks for itself. As explained above, Dr. Byrne’s
report details exactly how Dr. Walters’s administration of general anesthesia
caused Ms. Taylor’s death. These contentions are simply variations of the
same challenges to Dr. Byrne’s report that we have rejected.
Concerning Dr. Walters’s contention that Appellee is somehow prohibited
from using an expert report paid for and prepared for the Texas State Board of
Dental Examiners, we have found no authority for this contention and Dr.
Walters has cited none. And Dr. Byrne’s report expressly states,
While there are similarities, it is my opinion that a case review for
a licensing board is different from that of a civil negligence case.
The licensing board is not only concerned about causal negligent
acts and damages to a patient as in a civil litigation, I believe they
are also concerned about other acts which demonstrate a
practitioner’s fund of knowledge, medical judgment, clinical skill,
trend of practice, and attitude toward patient care in an effort to
meet their charge to protect the public.
Therefore, in my report I will also list all standard of care
violations I note in this case committed by Dr. Walters, be they
causal to damage or not . . . .
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Thus, Dr. Byrne’s report does include a “Standard of Care Violations–Section
1,” which addresses Dr. Walters’s violations of standards of care relevant to
the State Board’s rules. We did not utilize these standard of care violations in
our analysis of Dr. Byrne’s report. And Dr. Byrne’s report contains a “Standard
of Care Violations–Section 2” in which Dr. Byrne explains, “In this section I list
and discuss the ‘standard of care’ violations committed by Dr. Walters which
led to Ms. Taylor’s demise.” These standard of care violations and their
corresponding specific factually based causation opinions form the basis of our
analysis of the adequacy of Dr. Byrne’s report. Accordingly, although Dr.
Walters may be correct that the section 1 standard of care violations are not
applicable to a health care liability claim, the section 2 standard of care
violations clearly are.
We overrule the remainder of Dr. Walters’s sole issue.
VI. C ONCLUSION
Having overruled Dr. Walters’s sole issue, we affirm the trial court’s order
denying Dr. Walters’s motion to dismiss.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: January 22, 2009
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