Dileep Puppala, M. D. v. James Reid Perry , 564 S.W.3d 190 ( 2018 )

Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00898-CV
———————————
DILEEP PUPPALA, M. D., Appellant
V.
JAMES REID PERRY, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2017-012732
OPINION
This is an interlocutory appeal from the trial court’s order denying Dr.
Puppala’s motion to dismiss James Perry’s health care liability claims for failure to
serve adequate expert reports.1
1
See TEX. CIV. PRAC. & REM. CODE §§ 51.014(a)(9), 75.351.
In three issues, Puppala contends that the trial court abused its discretion in
denying his motion to dismiss Perry’s claims because the opinions of Perry’s two
experts on the element of causation were conclusory and because the two experts
were not qualified to offer causation opinions.
We affirm.
Background
Perry’s two expert reports provide the background facts in this case, and we
accept the factual statements in the reports for the limited purpose of this appeal.
See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (review of
Chapter 74 report is limited to four corners of report). Perry’s medical records are
not before us.
Perry arrived at the emergency room just before 11:00 am on August 22,
2015, complaining of weakness in his left leg, difficulty walking, and poor
balance. He was admitted to the hospital and seen by physicians who are not
parties to this appeal.
The next day, on Sunday, August 23, Puppala saw Perry for the first time.
Puppala noted that Perry’s symptoms had worsened; Perry had “weakness in the
legs in the lower extremities when he came in” the day before, but now, on August
23, he “has no sensation in both lower extremities, ribs down” and “is not able to
move” either lower extremity. Puppala also noted that CT scans were ordered but
2
were “unremarkable.” Puppala ordered an MRI to diagnose Perry’s neurological
condition. Either the same day or the next, the medical staff determined that
Perry’s size prevented a successful MRI evaluation using the MRI equipment
available onsite.
On August 24, Puppala ordered that Perry be transferred to another medical
facility to have an MRI. Six medical facilities (identified by name in the expert
report) were contacted, but each responded that its MRI equipment could not
accommodate Perry’s size either. Puppala wrote: “Will continue working on
transferring him to a place where he can safely get an MRI of the spine.”
The next day, on August 25, Puppala’s notes state they “tried every which
way to get his MRI done” but could not due to his size and that transfer to another
facility “did not materialize.”
On the fifth day, August 26, Perry was transferred to another medical
facility, and an MRI was successfully performed. Perry was diagnosed with an
epidural abscess on his lumbar spine that was placing increasing pressure on his
spinal cord. The neurosurgeon who evaluated the MRI suspected that the abscess
size and sustained pressure had damaged the spinal cord to the point that the
paralysis had become permanent. This was confirmed with surgery. Perry has
remained paralyzed from the chest down.
3
Perry sued the various physicians involved in his care during the period of
delayed imaging. As to Puppala, Perry submitted expert reports from two
physicians: Dr. Alex Lechin, a board-certified pulmonologist, and Dr. Derek
Riebau, a board-certified neurologist. Dr. Lechin opined that the standard of care
generally requires physicians to timely diagnose and treat patients. More
specifically, it requires physicians to initiate an immediate work-up and diagnosis
when a patient presents with the inability, or compromised ability, to move their
lower extremities so that the chances of recovery are maximized. According to
Lechin, the standard of care required Puppala to timely ensure Perry underwent a
MRI. Lechin stated that Puppala could have met this standard in multiple ways,
including by “communicating the importance of a timely imaging study to outside
hospital staff,” “articulating the need to transfer the patient to an outside facility
and bring the patient back, given that the admitting facility cannot provide the
required services,” “contacting stand-alone imaging centers,” and “personally
telephoning hospitals and/or accepting physicians at other facilities.” Lechin
opined that Puppala breached the standard of care when he failed to ensure a
timely MRI.
Lechin’s report states that the partial or complete inability to use one’s lower
extremities is a medical emergency. According to Lechin, when a patient presents
with compromised ability to move a lower extremity, the standard of care requires
4
an “immediate work up” to determine the cause. If an extrinsic etiology is
discovered, “the standard of care requires immediate removal, usually surgically.”
This is because an extrinsic force to the spinal cord applies pressure to the cord and
causes damage to the spinal cord. “Recovery and preservation are dependent upon
timely diagnosis and treatment of extrinsic forces to the spinal cord that are
causing damage.”
Thus, Lechin opines that the standard of care required Puppala “to timely
ensure Mr. Perry underwent a MRI study” and that Puppala breached this standard
“when he failed to ensure Mr. Perry underwent a timely MRI to diagnose” his
condition. Riebau agreed.
Regarding causation, Lechin opined that Puppala’s breach caused a delay in
obtaining the necessary MRI and a delay in diagnosing Perry’s abscess.
Meanwhile, Perry’s condition worsened as the abscess “continued to grow and
apply pressure.” “As a result of Dr. Puppala’s failure to appropriately ensure a
timely MRI was performed, Mr. Perry’s abscess progressed and caused complete
paralysis.” Moreover, had an MRI been performed timely, “Mr. Perry would not
have suffered permanent paralysis.”
Riebau agreed. He noted that Perry presented to the ER on August 22 with
weakness in the left lower extremity only. Thereafter, “there was a deterioration in
his neurological condition whereby he developed loss of sensation from the chest
5
down . . . .” Riebau opined that “it is more likely than not that the abscess would
have been visible on appropriate imaging on 8/22/15,” the day Perry presented
with left-leg weakness. Riebau opined that it also is “more likely than not that had
an epidural lesion been timely diagnosed based upon emergent imaging, . . . Mr.
Perry’s outcome of paraplegia could have been prevented.” Finally, according to
Riebau, Puppala’s failure to “emergently recognize, evaluate and manage acute
spinal cord injury secondary to an extra-axial lesion more likely than not lead to
permanent neurological injury. As a result of Dr. Puppala’s failure to appropriately
ensure appropriate imaging was immediately arranged,” Perry’s abscess grew and
“progressed and caused complete paralysis.”
Puppala moved to dismiss Perry’s health care liability claims against him,
arguing that the two reports were inadequate as to the element of causation and that
the two experts were not qualified to opine on causation. The trial court denied
Puppala’s motion. Puppala appeals.
Motion to Dismiss
Dr. Puppala contends that the trial court abused its discretion by denying his
motion to dismiss Perry’s health care liability claims for failure to serve adequate
expert reports because (1) the causation opinions of Perry’s two experts were
conclusory and (2) those two experts were not qualified to opine on causation.
6
A. Standard of review
We review a trial court’s ruling on a motion to dismiss a health care
liability claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461
S.W.3d 140, 142 (Tex. 2015) (per curiam). We “defer to the trial court’s factual
determinations if they are supported by evidence,” but we review its legal
determinations de novo. Id. “A trial court abuses its discretion if it rules without
reference to guiding rules or principles.” Id.
B. Health care liability expert report requirements
Under the Medical Liability Act, a plaintiff asserting health care liability
claims must timely serve each defendant physician and health care provider with
one or more expert reports and a curriculum vitae of each expert whose opinion is
offered to substantiate the merits of the claims. TEX. CIV. PRAC. & REM. CODE
§ 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—
Houston [1st Dist.] 2015, no pet.). The standard for serving an adequate expert
report is well established. The expert report must provide a “fair summary” of the
expert’s opinions regarding the (1) applicable standards of care, (2) manner in
which the care rendered by the physician or health care provider failed to meet the
standards, and (3) causal relationship between that failure and the injury, harm, or
damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); Miller v. JSC
Lake Highlands Operations, LP., 536 S.W.3d 510, 513 (Tex. 2017) (per curiam).
7
For standard of care and breach, the expert report must explain what the physician
or health care provider should have done under the circumstances and what the
physician or health care provider did instead. Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). For causation, the expert report
must explain how and why the physician’s or health care provider’s breach
proximately caused the plaintiff’s injury. Columbia Valley Healthcare Sys., L.P.
v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).
When the plaintiff timely serves an expert report, and the defendant timely
files a motion to dismiss to challenge the adequacy of the report, the trial court
may take one of three actions. Mangin, 480 S.W.3d at 705. First, if the trial court
concludes that the report is adequate, it must deny the motion. Id. Second, if the
trial court concludes that the report does not constitute an objective good faith
effort to comply with the statute, it must grant the motion. Id.; see TEX. CIV.
PRAC. & REM. CODE § 74.351(l). Third, if the trial court concludes that the report
is an objective good faith effort to comply with the statute but is nevertheless
deficient in some way, it may grant the plaintiff one 30-day extension to cure the
deficiency and must grant the extension if the deficiency is curable. Mangin, 480
S.W.3d at 705–06.
A report qualifies as an objective good faith effort to comply if it discusses
each element with sufficient specificity to (1) inform the defendant of the specific
8
conduct the plaintiff questions and (2) provide a basis for the trial court to
conclude that the plaintiff’s claims have merit. Baty v. Futrell, 543 S.W.3d 689,
693–94 (Tex. 2018); Mangin, 480 S.W.3d at 706. In determining whether an
expert report constitutes an objective good faith effort to address each element, “a
trial court may not draw inferences; instead, it must exclusively rely upon the
information contained within the four corners of the report.” Cornejo v. Hilgers,
446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see
Baty, 543 S.W.3d at 693. And when the issue is the expert’s qualifications, the
court may also consider the four corners of the expert’s curriculum vitae. Mangin,
480 S.W.3d at 706.
For causation, an expert report must explain “how and why” the physician’s
or health care provider’s breach proximately caused the plaintiff’s injury.
Zamarripa, 526 S.W.3d at 459–60. Proximate cause has two components: cause-
in-fact and foreseeability. Id. at 460. A physician’s breach was a cause-in-fact of
the plaintiff’s injury if the breach was a substantial factor in bringing about the
harm, and absent the breach (i.e., but for the breach), the harm would not have
occurred. Id. A physician’s breach was a foreseeable cause of the plaintiff’s injury
if a physician of ordinary intelligence would have anticipated the danger caused by
the negligent act or omission. See Price v. Divita, 224 S.W.3d 331, 336 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied). “No particular words or formality
9
are required, but bare conclusions will not suffice.” Scoresby v. Santillan, 346
S.W.3d 546, 556 (Tex. 2011). Thus, to provide more than a conclusory statement
on causation, an expert report must include an “explanation tying the conclusion to
the facts” and showing “how and why the breach caused the injury based on the
facts presented.” Jelinek v. Casas, 328 S.W.3d 526, 539–40 (Tex. 2010).
The purpose of the expert-report requirement is not to determine the merits
of the claim but to rule out frivolous lawsuits at the onset of litigation, before the
parties have conducted full discovery. Ross v. St. Luke’s Episcopal Hosp., 462
S.W.3d 496, 502 (Tex. 2015); Mangin, 480 S.W.3d at 706. As we have explained:
The requirement to serve an expert report arises at the outset of
litigation and before the opportunity for the plaintiff to engage in
significant discovery, including taking oral depositions of the
defendants. As such, the statute itself contemplates that the amount
and quality of evidence available at the time of drafting the expert
reports will be less than that available at trial on the merits or even the
summary-judgment stage.
Mangin, 480 S.W.3d at 713 (citations omitted). In reviewing the adequacy of an
expert report at this early stage of the litigation, a trial court may not consider an
expert’s credibility, the data the expert relies on, or the documents he relies on or
had failed to consider. See Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—
Houston [1st Dist.] 2010, no pet.); Gonzalez v. Padilla, 485 S.W.3d 236, 245 (Tex.
App.—El Paso 2016, no pet.).
10
Additionally, an expert report “need not anticipate or rebut all possible
defensive theories that may ultimately be presented.” Owens v. Handyside, 478
S.W.3d 172, 187 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Nor must the
report “rule out every possible cause of the injury, harm, or damages claimed.”
Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278 S.W.3d
552, 562 (Tex. App.—Dallas 2009, no pet.).
In determining whether the causation opinions are conclusory, we must
remain mindful that expert-report challenges are made at this early, pre-discovery
stage in the litigation, not when the merits of the health care liability claim are
being presented to the factfinder to determine liability. Cf. Baty, 543 S.W.3d at 697
& n.10 (rejecting argument that expert report was inadequate on standard of care,
breach, and causation; concluding that expert report sufficed “particularly in light
of the purposes the report is intended to serve” at early stage in litigation; and
stating that “additional detail is simply not required at this stage of the
proceeding”).
C. Trial court did not err in concluding that experts’ causation opinions
were not conclusory
In his first and second issues, Puppala argues that the trial court abused its
discretion in denying his motion to dismiss because Lechin’s and Riebau’s expert
reports were conclusory on the element of causation.
11
Perry’s experts opined that Perry had an abscess on his spinal cord that was
growing. According to Riebau, the abscess was large enough to be identified
through MRI imaging on the day Perry arrived at the ER. On that day, Perry had
weakness in his left leg but no paralysis. An MRI was not possible at the location
where Perry was being treated, and, according to the experts’ opinions, Puppala
breached the standard of care by failing to ensure that an MRI was timely
performed at another facility. During the four-day delay in obtaining an MRI, the
abscess “continued to grow,” pressure on his spine was not relieved, there was a
“deterioration in [Perry’s] neurological condition,” and he became paralyzed from
the chest down. According to the experts, it is more likely than not that a timely
MRI would have revealed the cause of Perry’s worsening condition and avoided
the permanent paralysis that resulted from the four-day delay of imaging and
diagnosis. Their opinion is that Puppala breached the standard of care by not taking
certain, identified steps to ensure a timely MRI was performed.2 And their
causation opinion is that Puppala’s breach proximately caused the foreseeable
injury of permanent paralysis by allowing the natural and foreseeable progression
of the abscess’s growth and resulting damage through a failure to timely ensure
diagnostic imaging.
2
Puppala does not challenge the expert reports on the elements of standard of care
or breach. As such, we consider only whether the causation opinion meets the
requirements of Section 74.351.
12
This causation opinion is in line with other illness- and injury-progression
cases in which causation opinions were held to be adequate to meet the
requirements of the Medical Liability Act. See Hayes v. Carroll, 314 S.W.3d 494,
507–08 (Tex. App.—Austin 2010, no pet.); Fagadau v. Wenkstern, 311 S.W.3d
132, 138–39 (Tex. App.—Dallas 2010, no pet.); see also TEX. CIV. PRAC. &
REM. CODE § 74.351. In these cases, the experts opined that, had the physician not
breached the standard of care, a proper diagnosis and medical intervention would
have been achieved, and the patient’s injuries would have been avoided; thus, the
physician’s breach in delaying diagnosis or treatment proximately caused the
injuries suffered. See Hayes, 314 S.W.3d at 507; Fagadau, 311 S.W.3d at 138–39.
The appellate courts held that the causation opinions were adequate and not
conclusory even when they did not specify when along the continuum of illness- or
injury-progression the plaintiff’s condition became irreversible so that, after that
point, any breach and related delay could not be said to have contributed to the
ultimate injury. See Hayes, 314 S.W.3d at 507 (stating that possibility that
factfinder might reject expert’s causation opinion and conclude instead that
damage “became irreversible at a point prior to the involvement of one or more” of
the medical providers did not render expert reports conclusory); Fagadau, 311
S.W.3d at 138–39 (rejecting physician’s argument that, by failing to specify exact
date patient suffered retinal detachment, expert failed to show causal link between
13
failure to refer patient to retinal specialist and permanent injuries suffered when
retina detached).
A challenge to an expert’s causation opinion was granted by the trial court
but later reversed by this court in Owens v. Handyside, 478 S.W.3d 172 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied). There, the plaintiff went to the ER
on three separate occasions complaining of severe headaches, but the doctors did
not order any diagnostic tests. Id. at 175–76. On her fourth medical visit,
diagnostic tests were ordered, and they revealed that she had a “head bleed.” Id. at
176. The head bleed resulted in permanent blindness, and the patient sued the
doctors who failed to order diagnostic tests during her three initial visits. Id. The
patient’s expert opined that, had those physicians ordered diagnostic testing, it was
medically probable that her condition would have been diagnosed and treated in a
timelier manner, and she most likely would not have been permanently blinded. Id.
at 179. The physicians argued that the expert failed to explain “how and why” their
alleged breach caused the patient’s blindness, but we disagreed. Id. at 188–90.
We held that the causation opinion was adequate because an “expert may
show causation by explaining a chain of events that begins with a defendant
doctor’s negligence and ends in injury to the plaintiff.” Id. at 189. The expert
explained that this type of injury progression was well known and opined that the
physicians’ failure to order diagnostic testing caused a delay in diagnosis and
14
treatment and that the delay resulted in the patient’s blindness. Id. at 190. The
expert further opined that, in reasonable medical probability, early diagnosis would
have prevented the blindness. Id. We held that the expert report represented a
good-faith effort to inform the physicians of the causal relationship between their
failure to adhere to the standard of care and the injury, harm, or damages claimed
and that the expert’s report met the requirements of Section 74.351. Id. at 191.
The Austin case, Hayes, presents a similar delay-in-diagnosis-and-treatment
scenario in which the patient’s condition deteriorated rapidly, and the patient’s
experts opined that the doctors’ failure to timely diagnose an emergent medical
issue proximately caused the patient’s permanent injuries. 314 S.W.3d at 507.
There, a woman receiving emergency medical care was given a large amount of IV
fluids that caused swelling. Id. at 497–98. None of her health care providers
realized that a bandage on her leg was becoming increasingly tight as her body
swelled. Id. at 499. After 28 hours, a nurse noticed the tight bandage and removed
it, but the “tourniquet-like effect” of the bandage had already caused necrosis that
could not be reversed, requiring the amputation of her leg. Id. at 497–98.
The expert opined that, as a consequence of each health care provider’s
breach, “the extremity’s condition went unmonitored, and the impediment to
circulation was not removed until after the damage was done. Such actions caused
irreversible ischemia of the right lower extremity with resultant amputation.” Id. at
15
507. The various health care providers sought dismissal on various grounds, the
trial court held that the expert’s report was adequate, and the health care providers
appealed. See id. at 499.
The Austin court held that the trial court did not abuse its discretion in
concluding that the expert report was adequate because the report notified each
provider that, in the expert’s opinion, each was responsible for the harm caused by
the constrictive bandage in that each failed to notice, loosen, or remove the
bandage before permanent injury resulted. Id. at 507. At the pre-discovery stage of
the litigation, the plaintiff was not required to “marshal all of her evidence or prove
her case against a particular defendant. Rather, what the statute requires is that the
report constitute a good faith effort to provide a fair summary of the expert’s
opinions regarding causation.” Id. The expert report met that standard because it
informed each defendant of the conduct the plaintiff called into question and
provided a basis for the trial court to conclude that the claims have merit. Id. at
508. As the Austin court stated, “The expert report is not required to prove the
defendant’s liability, but rather to provide notice of what conduct forms the basis
for the plaintiff’s complaints.” Id. at 507.
The Austin court further explained that, while the factfinder might ultimately
reject the expert’s causation opinion and determine, as to one or more defendant
health care providers, that the damage was already irreversible before that
16
particular defendant provided any medical care, that possibility did not render the
expert’s causation opinion conclusory. Id.; see Adeyemi v. Guerrero, 329 S.W.3d
241, 244–46 (Tex. App.—Dallas 2010, no pet.) (in injury-progression case
involving delayed diagnosis, court held that expert report was not conclusory
because it stated what doctor should have done and what happened because she
failed to do it, and it provided “fair summary” of expert’s opinions on causal
relationship between breach and injury); Mosely v. Mundine, 249 S.W.3d 775,
780–81 (Tex. App.—Dallas 2008, no pet.) (holding that expert report constituted
good-faith effort to provide fair summary of expert’s causation opinion because
expert explained opinion that delayed diagnosis allowed disease to progress such
that more severe injuries resulted); see also Bay Oaks SNF, LLC v. Lancaster, No.
01-17-00982-CV, 2018 WL 3353009, at *12 (Tex. App.—Houston [1st Dist.] July
10, 2018, no pet. h.) (noting that possibility that expert is wrong about how alleged
breach caused harm is issue for summary judgment, not motion to dismiss under
Chapter 74 as conclusory opinion).
Here, Perry’s expert reports explained the experts’ causation opinions,
including the “how and why” Puppala’s alleged breach caused Perry’s injury. See
Miller, 536 S.W.3d at 516–17 (concluding that expert’s report adequately explains
“how and why” radiologist’s breach in failing to detect “foreign body” that was
visible on patient’s x-ray proximately caused patient’s aspiration and subsequent
17
death). The experts opined that meeting the identified standard of care through
identified acts would have detected the physical condition, that early detections are
remediable, that “delay in such treatment can cause significant disability,” and that
“the failure to timely diagnose and treat” the patient proximately caused the injury.
Thus, they constituted a good-faith effort to provide a fair summary of the experts’
opinions regarding causation and to describe the basis for liability. See Miller, 536
S.W.3d at 515–17; Adeyemi, 329 S.W.3d at 245–46.
Puppala argues that the expert reports did not contain enough factual
assertions, reducing the experts’ opinions to assumptions untied to the specific
facts of the case. As an example, Puppala asserts that the reports are deficient
because they do not contain facts about stand-alone radiology centers’ ability to
perform MRIs under sedation. First, we note that Section 74.351 expert reports are
due before any discovery is conducted in a case. Second, the reports state that an
MRI actually was performed at a nearby facility once one was found that could
accommodate Perry’s size, though in the experts’ opinion it was not timely. We
fail to see how more detail about MRIs performed under sedation reduce these
experts’ causation opinions to mere conclusory statements.
Puppala also argues that the experts’ opinions are conclusory because they
fail to identify when Perry’s abscess had grown and damaged his spinal cord to the
point that his paralysis was irreversible and they fail to compare the timing of that
18
event to when an MRI could have been obtained had Puppala not breached the
applicable standard of care. But the absence of an opinion stating with specificity
at what point in the continuum of disease progression an intervention would have
proven timely does not cause these experts’ causation opinion to be conclusory at
this early stage of evaluation. See Hayes, 314 S.W.3d at 507 (holding that, while it
was possible that factfinder might ultimately reject expert’s causation opinion and
conclude that plaintiff’s injury had already become irreversible before doctor’s
alleged breach, that possibility did not render expert reports conclusory); Fagadau,
311 S.W.3d at 138–39 (rejecting physician’s argument that expert’s causation
opinion was conclusory because it failed to specify exact date patient suffered
retinal detachment and therefore failed to show causal link between failure to refer
patient to retinal specialist and permanent injuries suffered when retina detached).
We conclude that the experts adequately tied their causation opinion to the
facts and explained how and why the alleged breach of the standard of care
proximately caused Perry’s permanent injuries. See Jelinek, 328 S.W.3d at 539–40.
In reaching this conclusion, we note that the context in which this these two
experts’ causation opinions are offered is distinguishable from that in other cases
involving multiple medical conditions and competing causal agents. See, e.g., id. at
540 (expert’s report identified breach of standard of care as failing to ensure that
renewal of prescription for hospitalized patient who had on-going infections,
19
identified plaintiff’s injury as increased pain and longer hospital stay, and opined
that health care provider’s breach caused injury; however, report was inadequate
because it failed to link conclusion to relevant facts given that patient was
receiving medical treatment for multiple other conditions both during and after
short-term lapse in antibiotics and expert failed to link causation opinion to facts);
Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538, at *6–10 (Tex. App.—
Houston [1st Dist.] Dec. 29, 2011, pet. denied) (expert’s report stated that
cardiologist breached standard of care by clearing patient for non-urgent surgery in
light of patient’s concurrent heart-health issues, identified plaintiff’s injuries as
post-operative respiratory arrest with oxygen deprivation and resulting death, and
opined that cardiologist’s breach caused patient’s injuries; however, report was
inadequate because it did not explain “how and why” breach caused plaintiff’s
injuries in that it did not identify any role pre-existing conditions played in
subsequent events, particularly given that patient was “prematurely” extubated,
suffered respiratory arrest, was reintubated, later self-extubated, and then suffered
second respiratory arrest).
At this expert-report stage, an expert report “does not have to meet the same
requirements as the evidence offered in a summary-judgment proceeding or at
trial.” Miller, 536 S.W.3d at 517 (quoting Scoresby, 346 S.W.3d at 556 n.60).
Because Perry’s experts’ reports provided a fair summary of the experts’ opinions
20
regarding the applicable standards of care, a statement identifying the manner in
which the care rendered by Puppala failed to meet the standards, and an
explanation of the causal relationship between that failure and the injury, harm, or
damages claimed, the trial court did not abuse its discretion in denying Puppala’s
motion to dismissal. See TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); Miller, 536
S.W.3d at 513; Mangin, 480 S.W.3d at 705.
We overrule Puppala’s second issue.
D. Qualifications
In his third issue, Puppala contends that the trial court abused its discretion
by finding that Perry’s experts are statutorily qualified to provide causation
opinions.
Whether an expert witness is qualified to offer an expert opinion under the
relevant statutes and rules lies within the sound discretion of the trial court.
Cornejo, 446 S.W.3d at 121. The expert’s qualifications must appear in the four
corners of the expert report or its accompanying curriculum vitae. Id. In a health
care liability suit, “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 § 74.403(a); see id.
21
§ 74.351(r)(5)(C) (defining “expert” qualified to give opinion on causation as “a
physician who is otherwise qualified to render opinions on such causal relationship
under the Texas Rules of Evidence”); Cornejo, 446 S.W.3d at 120.
Under the Rules of Evidence, an expert witness may be qualified on the
basis of “knowledge, skill, experience, training, or education” to testify on
scientific, technical, and other specialized subjects, if the testimony would “help
the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R.
EVID. 702; see Cornejo, 446 S.W.3d at 121. “Thus, a plaintiff must show that her
expert has knowledge, skill, experience, training, or education regarding the
specific issue before the court that would qualify the expert to give an opinion on
that particular subject.” Cornejo, 446 S.W.3d at 121 (internal quotations omitted).
Not all licensed physician are qualified to testify on all medical questions; but, at
the other extreme, there is no requirement that a physician practice in the particular
field for which he is testifying. Id. What is required is that the physician
demonstrate that he is qualified to opine on the specific issue before the court. Id.
Puppala does not challenge the qualifications of Perry’s two experts to
generally opine that an undetected epidural abscess will grow and apply increasing
pressure on a spinal cord and, if undetected and untreated, will cause irreversible
paralysis. Nor does he challenge their qualifications to opine that timely diagnosis
and treatment, in reasonable medical probability, would allow for successful
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medical intervention to remove the abscess and pressure and, in doing so, cause the
patient to obtain a more favorable result that does not include permanent paralysis.
Puppala agrees that Perry’s experts “may have experience in suspecting the
presence of an epidural abscess and obtaining the diagnostic tests (i.e. MRI) to
confirm the diagnosis.”
Puppala’s causation-qualification challenge is more specific. He argues that
Perry’s pulmonology and neurology experts are unqualified to opine on two
particular aspects of causation: “(1) when would a surgery on [Perry]’s spine have
occurred if there was a ‘timely’ MRI” and “(2) when was [Perry]’s paraplegia
irreversible and beyond the point where surgery would likely restore his ability to
walk.” In other words, Puppala contends that Perry’s experts lack the qualifications
to identify the moment beyond which a causal link could no longer be established.
But, as we already concluded, at this early stage in the litigation in a case
involving the natural progression of an illness or injury, Perry’s experts were not
required to identify when in the continuum of injury progression Perry’s paralysis
became irreversible to state a qualifying causation opinion in their pre-discovery
expert report. See Hayes, 314 S.W.3d at 507; Fagadau, 311 S.W.3d at 138–39.
Because the expert reports were not required to contain expert opinions on these
two specific temporal issues, the expert reports and accompanying CVs are not
inadequate for failing to establish a qualification to provide an unnecessary
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opinion. See TEX. CIV. PRAC. & REM. CODE §§ 74.403(a), 75.351(r)(5) (setting
forth requirements for expert qualifications).
We overrule Puppala’s third issue and, with it, his first issue asserting that
the trial court erred in denying his motion to dismiss.
Conclusion
We affirm.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
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