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  • Affirmed and Memorandum Opinion filed July 22, 2008

    Affirmed and Memorandum Opinion filed July 22, 2008.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-07-00150-CV

    ____________

     

    AHMAD MOUTASSEM RAJAR PACHA, M.D., INDIVIDUALLY AND D/B/A MOUTASSEM RAJAR PACHA, M.D., P.A., Appellant

     

    V.

     

    GRETCHEN CASEY, INDIVIDUALLY AND A/N/F OF JOHN CONNER CASEY AND CULLEN PATRICK CASEY, MINOR SURVIVING CHILDREN OF KEVIN JOHN CASEY; GRETCHEN CASEY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KEVIN JOHN CASEY; AND JOHN CASEY AND JOAN CASEY, AS SURVIVING PARENTS OF KEVIN JOHN CASEY, Appellees

     

      

     

    On Appeal from the 11th District Court

    Harris County, Texas

    Trial Court Cause No. 2006-30392

     

      

     

    M E M O R A N D U M   O P I N I O N

    In this interlocutory appeal, a gastroenterologist appeals the trial court=s denial of his motion to dismiss health-care-liability claims for plaintiffs= failure to file an expert report in compliance with section 74.351 of the Texas Civil Practice and Remedies Code.  We affirm.

    I.  Factual and Procedural Background

    Kevin John Casey (ACasey@), now deceased, visited his family physician complaining of chest pain and dizziness.  Upon the physician=s referral, Casey sought treatment the next day from appellant, gastroenterologist Dr. Ahmad Moutassem Rajar Pacha.  Casey reported that he had been experiencing indigestion for two years, persistent coughing, and a Aburning@ sensation in his chest that lasted for two weeks.  Dr. Pacha ordered chest x-rays, performed a gastroscopy,[1] and diagnosed Casey with hiatal hernia, stomach erosions, and erosive gastritis.  Medical records indicate that before this procedure, Casey had an elevated pulse rate and decreased oxygen saturation levels.  One day later, Casey returned to his physician, complaining of chest pain.  Several days later, Casey suffered a fatal heart attack.

     Autopsy reports revealed that the cause of Casey=s death was cardiovascular heart disease with congestive heart failure and that evidence existed of multiple acute (less than two weeks old), recent (two to six weeks old), and remote (more than six weeks old) myocardial infarcts.[2] Casey=s family and estate filed a health-care-liability claim against Dr. Pacha individually and against his professional association (hereinafter collectively ADr. Pacha@) seeking to recover damages for Dr. Pacha=s alleged negligence and for failing to meet the applicable standards of medical care by failing to recognize, diagnose, or properly treat Casey=s cardiovascular symptoms and disease.  Appellees include Casey=s wife, individually, as next friend to Casey=s minor, surviving children, and as personal representative to Casey=s estate, and Casey=s parents (collectively Athe Caseys@).

    In attempting to comply with section 74.351 of the Texas Civil Practice and Remedies Code, the Caseys designated Dr. Steven Kanner, an internist, as an expert witness who provided a written expert report and his curriculum vitae.  Dr. Pacha moved to dismiss the Caseys= suit, claiming the expert report was insufficient because Dr. Kanner was not qualified to provide opinions regarding standard of care and causation, and because Dr. Kanner=s opinions were conclusory and speculative.  The trial court denied the motion to dismiss, but found that the report did not meet all of the requirements of Chapter 74 of the Texas Civil Practice and Remedies Code, also known as the Medical Liability Act.  The trial court granted a thirty-day period to remedy the deficiencies in accordance with the Medical Liability Act.  The Caseys filed a supplemental report from Dr. Kanner and a new report from cardiologist Dr. Barry Silverman. Dr. Pacha challenged these reports on the basis that the reports did not show that the witnesses were qualified to provide opinions for the standard of care or proximate cause and that the reports contained conclusory assertions on the standards of care.  The trial court denied Dr. Pacha=s motion to dismiss.

    II.  Standard of Review

    Dr. Pacha brings this interlocutory appeal challenging the trial court=s order denying his motion to dismiss.  We review a trial court=s determination that an expert witness is qualified under an abuse-of-discretion standard.  See Broders v. Heise, 924 S.W.2d 148, 151B52 (Tex. 1996). We also apply this same standard when reviewing a trial court=s decision regarding the adequacy of an expert report.  See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).  The Caseys, as the proponents of the experts, have the burden to show that the experts are qualified.  See Broders, 924 S.W.2d at 151.  The trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles.  See id.; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985). An abuse of discretion does not occur merely because the appellate court may have decided a discretionary matter in a different way than the trial court.  Downer, 701 S.W.2d at 242.

    III.  Analysis

    A.      Did the trial court abuse its discretion in denying the doctor=s motion to dismiss based on the doctor=s objection to the qualifications of the plaintiffs= expert witnesses in providing expert opinions on the standard of care and proximate causation?

    In Dr. Pacha=s first two issues, he complains the trial court abused its discretion in denying his request to dismiss the Caseys= claims under section 74.351 because, he claims, the Caseys failed to demonstrate that Dr. Kanner and Dr. Silverman were qualified to render expert opinions on standard of care and causation.[3] Under section 74.351 of the Texas Civil Practice and Remedies Code, a claimant, not later than the 120th day after the date a health-care-liability claim is filed, must serve on each party one or more expert witness reports addressing liability and causation.  Tex. Civ. Prac. & Rem. Code Ann. '' 74.351(a), (j) (Vernon 2005); Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex. 2008).

    To qualify as an expert witness who may render a report in a suit against a physician, the physician preparing the report must be qualified to offer an opinion regarding the standard of care by meeting the requirements of section 74.401 by (1) practicing medicine at the time testimony was given or when the claim arose; (2) having knowledge of the accepted standard of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) having training or experience in order to offer an expert opinion regarding those accepted standards of medical care.  Tex. Civ. Prac. & Rem. Code Ann. '' 74.401(a), 74.351(r)(5)(A) (Vernon 2005); McKowen v. Ragston, No. 01-06-00665-CV, 2007 WL 79330, at *3 (Tex. App.CHouston [1st Dist.] Jan. 11, 2007, no pet.).  To determine whether an expert=s training or experience yields sufficient qualifications to offer an expert opinion regarding those accepted standards of medical care, we consider whether the expert is (1) board certified or has other substantial training or experience in the area of medical practice relevant to the claim and (2) actively practicing medicine in rendering medical care services relevant to the claim.[4] Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(c); see McKowen, 2007 WL 79330, at *3; Mem=l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 759 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (reviewing the same factors with regard to a claim against a health care provider).  Subject to exceptions not applicable to this case, section 74.403 requires that:

    in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

    Tex. Civ. Prac. & Rem. Code Ann. ' 74.403(a) (Vernon 2005).  The party offering the witness as an expert must establish that the witness is qualified to testify under Rule 702 by demonstrating the witness has expertise concerning the actual subject matter for which the party is offering an opinion.  See Mem=l Hermann Healthcare Sys., 230 S.W.3d at 762. 

    AAphysician@ is defined as a person who is:

    (1) licensed to practice medicine in one or more states in the United States; or

    (2) a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant=s standard of care, the alleged departure from that standard of care, or the causal relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed.

    Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(g).  Thus, at a minimum, to render an expert report as to standard of care or causation, Drs. Kanner and Silverman must be licensed to practice medicine in one or more states in the United States.  See id.; see also id. '' 74.403(a), 74.401(a).  The qualifications of the expert necessary to fulfill the criteria of an expert report as defined in section 74.351 must be found within the four corners of the expert report itself and the expert=s curriculum vitae.  Palacios, 46 S.W.3d at 878; see Mem=l Hermann Healthcare Sys., 230 S.W.3d at 758.

    Dr. Kanner=s Qualifications

    Dr. Kanner=s supplemental report and curriculum vitae reflect that he is a board-certified physician specializing in internal medicine and licensed in four states.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.401(g), 74.401(c)(1). He has practiced medicine for over twenty-five years, currently treating patients weekly, and he has treated hundreds of cardiology and gastroenterology patients.  See id. '' 74.401(a), (c)(2).  In addition to teaching medical students through his position with a medical school and at Columbia Hospital, he treats cardiac patients on a daily basis and regularly treats patients in the throes of a heart attack.  See id. '' 74.401(a), (c)(1). Based on his training as an internist and through practical experience, Dr. Kanner explained his knowledge and familiarity with the standard for cardiac care as presented in the Caseys= claim.  See id. '' 74.401(a), (c)(2).  These qualifications, under the plain language of the applicable statute, are sufficient for Dr. Kanner to qualify as an expert witness who may render an expert report and offer an expert opinion based on his knowledge of the accepted standard of medical care for the diagnosis, care, or treatment of cardiac conditions as involved in this claim.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.401(a), (g); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 572 (Tex. App.CDallas 2007, pet. filed); Mem=l Hermann Healthcare Sys., 230 S.W.3d at 760B62.

    Dr. Kanner explained that internists and those specializing in subspecialties such as gastroenterology must be aware of multiple causes of chest pain besides gastrointestinal pain and that a major cause of chest pain is underlying coronary artery disease.  According to Dr. Kanner, such a standard is applicable to any physician treating a patient with chest pain and burning sensations and the standards are basic to the general practice of medicine.  Dr. Kanner stated in his affidavit that he is aware of the standard of care and protocol for treatment of patients presenting with Casey=s conditions.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.401(a), (c). Likewise, he indicated that admittance to a hospital to receive an angiogram is the appropriate standard for a patient presenting with cardiovascular disease like Casey=s; this procedure would have located the area of pathology and led to open-heart surgery or coronary artery balloon angioplasty.  Dr. Kanner knows and teaches the standard of care not only as a physician, but as an internist who has practical knowledge and training in the fields of cardiology and gastroenterology.


    Dr. Kanner opined that Dr. Pacha should have ruled out cardiac etiology[5] and ordered adequate testing, including electrocardiograms both in the office and prior to endoscopy.[6] Dr. Kanner described Dr. Pacha=s breach of the standard of care as his failure to adequately question or properly examine Casey=s history of chest pain and burning sensations in the chest, as documented in his medical records.  According to Dr. Kanner, given Casey=s symptoms of chest pain and burning, Dr. Pacha, as an internist specializing in gastroenterology, should have recognized, investigated, and ruled out symptoms of cardiovascular disease with congestive heart failure, which Dr. Kanner explained Dr. Pacha failed to do.  Having reviewed Dr. Pacha=s medical chart and the autopsy report of Casey, Dr. Kanner opined that had Dr. Pacha complied with the applicable standard of care, Casey would have been admitted to a hospital to receive intravenous diuretics to reduce overload around Casey=s heart and lungs.  According to Dr. Kanner=s experiences and practical knowledge, Dr. Pacha=s failure to consider, investigate, and treat Casey=s classic cardiac warning symptoms caused Casey=s death.  The expert report provides the basis for Dr. Kanner=s knowledge, training, and practical experience in treating cardiac patients and contains an opinion as to the appropriate standard of care, how Dr. Pacha=s conduct specifically departed from the standard, as well as the causal relationship between Dr. Pacha=s alleged errors and Casey=s death.  Under the plain language of the statutes, Dr. Kanner is qualified to render an expert opinion regarding causation.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.403(a), 74.401(g), 74.351(r)(6); Rosa, 240 S.W.3d at 572; Mem=l Hermann Healthcare Sys., 230 S.W.3d at 762.

    Dr. Silverman=s Qualifications

    Similarly, Dr. Silverman=s expert report and curriculum vitae indicate that he is board-certified in cardiology and licensed to practice in Georgia.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.401(g), 74.401(c)(1). In addition to teaching at Emory University, Dr. Silverman practices cardiology, a field of medicine which is relevant to the Caseys= claim.  See id. '' 74.401(a), (c).  Based on his knowledge, training, and experience, and after reviewing the pertinent medical records, Dr. Silverman claimed knowledge and familiarity with the standard of care regarding treatment of those patients presenting cardiovascular disease.  See id. '' 74.401(a), (c)(1).  Under the plain language of the applicable statute, Dr. Silverman=s qualifications are sufficient for him qualify as an expert witness who may render an expert report and offer an expert opinion based on knowledge of the accepted standard of medical care for the diagnosis, care, or treatment of Casey=s cardiac condition as involved in this claim.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.401(a), (g); Rosa, 240 S.W.3d at 572; Mem=l Hermann Healthcare Sys., 230 S.W.3d at 760B62.

    Dr. Silverman is familiar with the standard of cardiac care and claims knowledge of the appropriate standard of care for a patient presenting cardiovascular disease with congestive heart failure such as Casey=s.  Dr. Silverman indicated that Dr. Pacha=s treatment of Casey fell below the recognized standard of care in recognizing, investigating, and treating Casey=s cardiac symptoms by the following acts:

    $ Dr. Pacha should have recognized and investigated the symptoms of cardiovascular disease with congestive heart failure given Casey=s complaints of chest pain and burning sensation in his chest.

    $ In conducting a physical, Dr. Pacha was deficient in not recognizing the presence of congestive heart failure and not recording Casey=s blood pressure or heart rate.

    $ Dr. Pacha should have conducted an EKG (electrocardiogram) before the endoscopy, given Casey=s symptoms, signs, and risk factors.

    $ Dr. Pacha was deficient in not carefully examining Casey before and after the endoscopy to explain Casey=s tachycardia.[7]

    According to Dr. Silverman, had Dr. Pacha complied with the requisite standard of care, Casey would have been admitted to the hospital for intravenous diuretic treatment and would have had an angiogram to locate the areas of cardiac pathology and a coronary artery balloon angioplasty or open-heart surgery.  According to Dr. Silverman, Dr. Pacha=s negligence in failing to treat Casey=s cardiovascular disease was the proximate cause of Casey=s death.  Dr. Silverman=s expert report sets forth his knowledge, training, and experience and provides an opinion as to the appropriate standard of care, Dr. Pacha=s specific departure from that standard, and causation linking Dr. Pacha=s alleged errors to Casey=s death.  Under the plain language of the statutes, Dr. Silverman is qualified to render an expert opinion regarding causation.  See Tex. Civ. Prac. & Rem. Code Ann. '' 74.403(a), 74.401(g), 74.351(r)(6); Rosa, 240 S.W.3d at 572; Mem=l Hermann Healthcare Sys., 230 S.W.3d at 762.

    Dr. Pacha argues Drs. Kanner and Silverman are not gastroenterologists and the reports do not indicate that they observed gastroenterologists examining a patient with burning sensations in the chest. Therefore, Dr. Pacha asserts that these doctors are not qualified to render expert opinions concerning the standard of care for a gastroenterologist.  As part of this argument, Dr. Pacha claims that each of the proffered experts, Dr. Kanner and Dr. Silverman, must demonstrate his experience in ordering and performing angiograms, balloon angioplasties, or open-heart surgery.

    Under subsection 74.401(a) only a physician may opine as an expert against another physician.  See Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(a); see also id. ' 74.401(g).  Not every physician is a qualified expert.  See Broders, 924 S.W.2d at 152.  However, when a subject matter is common to and equally recognized in all fields of practice, then any physician familiar with the subject may testify to the standard of care.  Blan v. Ali, 7 S.W.3d 741, 745B46 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Similarly, when a subject of inquiry is substantially developed in multiple fields of practice, a physician in any one of the fields may opine as to the standard of care for that procedure in another field.  Broders, 924 S.W.2d at 152.

    In determining expert qualifications for the standard of care, we examine whether the expert  has knowledge of the specific condition involved in the claim and we do not focus on the physician=s area of expertise.  Blan, 7 S.W.3d at 746.  The claim at issue in this case is recognizing and investigating cardiovascular disease when confronted with symptoms of chest pain and burning sensation.[8] See id.  Certain standards of care apply to multiple schools of practice and any medical doctor.  Id.  In this case, Dr. Kanner=s report describes that a gastroenterologist is a subspecialty of internal medicine, of which Dr. Kanner is an internist and Dr. Pacha is an internist with a subspecialty of gastroenterology.  Although, Dr. Kanner=s experience stems from treating cardiac patients regularly, his report indicates that the standards in treating cardiac symptoms are basic to the general practice of medicine and apply to any physician treating a patient with chest pain and burning sensations.  See id.  Likewise, Dr. Silverman=s report provides the appropriate standard of care for any patient presenting cardiovascular disease with congestive heart failure, though his experience stems from his cardiology practice.  Though Drs. Kanner and Silverman are not gastroenterologists, each expert report provides sufficient evidence of the expert=s knowledge, training, and experience in connection with recognizing, diagnosing, and treating cardiovascular symptoms in patients such as Casey in this claim.  See id. at 745.  We conclude that the trial court did not abuse its discretion in finding that Drs. Kanner and Silverman demonstrated sufficient qualifications to opine about the standards of care in connection with recognizing, investigating, and treating or ruling out cardiovascular disease in treating Casey, whose symptoms involved chest pain and burning sensations within his chest.  See id. at 747; McKowen, 2007 WL 79330, at *10. We also conclude that the trial court did not abuse its discretion by finding that Drs. Kanner and Silverman are qualified to opine as experts on Dr. Pacha=s standard of care in treating Casey and in the causation between Dr. Pacha=s alleged departure from the standard of care and Casey=s death.  See Rosa, 240 S.W.3d at 572; Mem=l Hermann Healthcare Sys., 230 S.W.3d at 762; McKowen, 2007 WL 79330, at *10; see also Blan, 7 S.W.3d at 745.  We overrule Dr. Pacha=s first and second issues.

     

    B.      Did the trial court abuse its discretion in denying the doctor=s motion to dismiss based on the objections to the sufficiency of the plaintiffs= expert reports that the expert reports were conclusory and offered speculative opinions contrary to medical evidence regarding the standard of care?

    In his third issue, Dr. Pacha claims the trial court erred in denying his motion to dismiss challenging the sufficiency of the expert reports of Drs. Kanner and Silverman under section 74.351 because Dr. Pacha contends the reports offered conclusory and speculative opinions contrary to medical evidence regarding the standard of care.

    In accordance with section 74.351(l), a trial court should grant a motion challenging the adequacy of an expert report if the report is not an objective, good-faith effort to comply with the definition of an expert report provided in subsection (r)(6).  Tex. Civ. Prac. & Rem. Code Ann. '' 74.351(l), 74.351(r)(6).  Subsection 74.351(r)(6) defines Aexpert report@ as:

    a written report by an expert that provides a fair summary of the expert=s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

    Id. ' 74.351(r)(6). The trial court=s inquiry is limited to the four corners of the report.  Palacios, 46 S.W.3d at 878.  A Agood-faith@ effort requires that the report contain a discussion of  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.  Id. at 875.

    A[T]o avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that 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. at 879.  Omission of any of the statutory elements prevents the report from being a good-faith effort.  Id. A report that merely states the expert=s conclusions about the standard of care, breach, and causation does not meet the statutory requirements.  Id.

    A fair summary sets forth what care was expected but was not given.  Id. at 880. Identifying whether the standard of care has been breached cannot be determined absent specific information about what should have been done differently.  Palacios, 46 S.W.3d at 880.  An expert=s report must contain information on the standard of care; it is not enough for a report to contain conclusory insights about the Caseys= claims.  See Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).  Rather, the expert must explain the bases of the statements and link any conclusions to the facts.  Id.; Patel v. Willams ex Rel. Estate of Mitchell, 237 S.W.3d 901, 904 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  An expert report must show causation beyond mere conjecture.  Wright, 79 S.W.3d at 52. 

    In his report, Dr. Kanner described the standard of care for treating patients like Casey, who exhibit chest pain and experience burning sensations, as recognizing and ruling out cardiac etiology, which is a major cause of chest pain.  To exercise reasonable care, the physician would require adequate testing, such as electrocardiograms both in the office and prior to the endoscopy.  According to Dr. Kanner, Dr. Pacha inadequately investigated the source of Casey=s chest pain by not properly examining and questioning him regarding the origin of his chest pain and burning sensations. Dr. Kanner stated that Dr. Pacha should have recognized and investigated the symptoms of cardiovascular disease because of Casey=s complaints of chest pain and burning sensations within Casey=s chest. According to Dr. Kanner, Dr. Pacha=s failure to rule out or investigate cardiac etiology caused Casey=s death, and Dr. Pacha=s departure from the standard of care applied to any physician treating a patient with chest pain and burning sensations.

    In his report, Dr. Silverman described the standard of care for treatment of Casey, which included recognizing the presence of congestive heart failure and recording blood pressure and heart rate.  He opined that, given Casey=s symptoms, signs, and risk factors, an electrocardiogram procedure should have been conducted before the endoscopy. Dr. Silverman indicated that the standard required Dr. Pacha=s careful examination of Casey before and after the endoscopy to explain the tachycardia.  Moreover, Dr. Silverman described Dr. Pacha=s failure to comply with the standard for a patient presenting cardiovascular disease as being negligent, which, he opined, proximately caused Casey=s death.

    Each of Drs. Kanner=s and Silverman=s reports represent an objective, good-faith effort to comply with the definition of an expert report provided in subsection (r)(6).  Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6). Both reports discuss the standard of care, breach, and causation with sufficient specificity to inform Dr. Pacha of the conduct the Caseys have alleged and to provide a basis for the trial court to conclude that the claims have merit.  Palacios, 46 S.W.3d at 875.  Both reports offer more than conclusory statements about the standard of care, as each sets forth what procedures were expected but were not performed.  See Palacios, 46 S.W.3d at 879, 880; Patel, 237 S.W.3d at 905.  Each report explains the standard of care regarding patients presenting similar cardiac symptoms and links Dr. Pacha=s alleged failure to recognize, investigate, and rule out cardiac symptoms as a breach of the standard, resulting in Casey=s death.  Wright, 79 S.W.3d at 52; Patel, 237 S.W.3d at 904.  Considering the four corners of Drs. Kanner=s and Silverman=s reports, we conclude that the averments and opinions in each report contain more than mere conclusory statements concerning the standard of care  for treating patients with chest pain and burning sensations.  See Patel, 237 S.W.3d at 905.


    To hold that the trial court abused its discretion, we must conclude the trial court acted in an arbitrary or unreasonable manner.  See Wright, 79 S.W.3d at 52.  Though reasonable minds may differ in determining what is required of a fair summary of the applicable standard of care, the trial court=s decision was within the scope of its discretion.  See Palacios, 46 S.W.3d at 875; Patel, 237 S.W.3d at 905; Larson, 197 S.W.3d at 304B05; see also Mem=l Hermann Healthcare Sys., 230 S.W.3d at 757.  We overrule Dr. Pacha=s third issue. 

    The trial court=s order is affirmed.

     

     

     

     

    /s/      Kem Thompson Frost

    Justice

     

     

     

     

    Judgment rendered and Memorandum Opinion filed July 22, 2008.

    Panel consists of Justices Frost, Seymore, and Guzman.

     


    [1]  According to the Caseys= brief, this procedure involves inserting a videoscope down a patient=s throat to visualize the esophagus and stomach.  Cf. Gaut v. Quast, 505 S.W.2d 367, 368 (Tex. App.CHouston [14th Dist.] 1974, writ ref=d n.r.e) (referring to a gastroscopy as a procedure performed Ato look down inside the stomach@).

    [2]  According to the Caseys= brief, a myocardial infarction is commonly known as a heart attack.  Cf. Martin v. Abilene Reg=l Med. Ctr., No. 11-04-00303-CV, 2006 WL 241509, at *4 (Tex. App.CEastland Feb. 2, 2006, no pet.) (referring to myocardial infarction as a heart attack).

    [3]  Dr. Pacha addresses the experts= qualifications to render expert opinions on the standard of care and causation in two separate issues, which we will address together.

    [4]  The term Apracticing medicine@ includes, but is not limited to, training residents or students at an accredited medical school or serving as a consulting physician to other physicians who provide patient care at the request of such other physicians.  Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(b).

    [5]  Etiology approximately means Acause.@  Brown v. State, No. 05-02-00207-CR, 2003 WL 21404050, at *3 (Tex. App.CDallas June 19, 2003, pet. struck) (referring to a doctor=s testimony of being unable to determine the etiology or cause of death); Leal v. Melcher, No. 14-94-01009-CV, 1996 WL 65379, at *1 (Tex. App.CHouston [14th Dist.] Feb. 15, 1996, no pet.) (referring to autopsy reports of an unclear etiology or Aunknown cause@).

    [6]  An endoscopy involves injecting media, for example, the videoscope in the gastroscopy in this case, to view parts of the body or to diagnose obstructions therein.  Cf. Williams v. Nealon, 199 S.W.3d 462, 464 n.1 (Tex. App.CHouston [1st Dist.] 2006, pet. filed).

    [7]  Tachycardia is a problem with heart rhythm.  See Shaw v. State, 243 S.W.3d 647, 650 (Tex. Crim. App. 2007).

    [8]  Dr. Pacha asserts in his brief that burning sensations are not the same symptoms as chest pain, which are terms Dr. Kanner used together and singly in referring to the symptoms which Casey presented to Dr. Pacha.  However, Dr. Pacha offers no explanation of how a two-week burning sensation in one=s chest would not be painful.  Moreover, medical records reflect that Casey complained of chest pain both to his referring physician and to Dr. Pacha, as noted in the x-ray report prepared by a radiologist and reported to Dr. Pacha.