Ahmad Karkoutly, M.D. v. Maria Guerrero, Individually and as Representative of the Estate of Maria Otilia Estrada ( 2017 )

NUMBER 13-17-00097-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
AHMAD KARKOUTLY, M.D., Appellant,
v.
MARIA GUERRERO, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF MARIA OTILIA ESTRADA, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Rodriguez
In this interlocutory appeal, appellant Ahmad Karkoutly, M.D. challenges the denial
of his motion to dismiss the health care liability claim of appellee Maria Guerrero. We
reverse and remand.
I. BACKGROUND
Guerrero filed suit for medical negligence against two hospital entities and nine
physicians, including Dr. Karkoutly. Guerrero’s petition alleged that on October 9, 2013,
her mother Maria Otilia Estrada was admitted to Valley Regional Medical Center, a
hospital in Brownsville, Texas. She complained of abdominal pain, nausea, and
vomiting, and had a history of colon ailments. Various defendants treated her for several
weeks, including multiple surgeries. However, Estrada died, allegedly because the
defendants’ substandard care caused Estrada to suffer septic shock and respiratory
failure.
To support her claim against Dr. Karkoutly, Guerrero filed an expert report
authored by David H. Miller, M.D. Guerrero did not file expert reports concerning any
other defendant, and Dr. Karkoutly became the only defendant remaining in the case.
Dr. Karkoutly filed a motion to dismiss Guerrero’s claims, asserting that Dr. Miller’s
report did not satisfy the requirements of the Texas Medical Liability Act (TMLA). See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2017 1st C.S.). Dr.
Karkoutly objected to multiple aspects of Dr. Miller’s report, including the objection that is
the subject of this appeal: conclusory statements and logical inconsistencies in Dr.
Miller’s opinions on causation. Following a hearing, the trial court denied Dr. Karkoutly’s
motion to dismiss. This interlocutory appeal followed.
II. CAUSATION
By his sole issue on appeal, Dr. Karkoutly contends that Dr. Miller’s report is fatally
inadequate under the TMLA. In particular, Dr. Karkoutly asserts that the report
inadequately addresses the causation element of Guerrero’s health care liability claim,
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offering only a conclusory and internally inconsistent account of how Dr. Karkoutly’s acts
and omissions caused Estrada’s demise.
A. Dr. Miller’s Report
Dr. Miller began his report by summarizing Estrada’s medical records. According
to Dr. Miller’s report, Estrada presented to the hospital with a history of diverticulitis—a
condition of the colon—along with chronic “hypovolemia,” nausea, and vomiting.
Estrada’s initial screening revealed apparent signs of infection to the point of sepsis,
which included an elevated heart rate, respiratory rate, and white blood cell count. Dr.
Miller explained that upon her admission to the hospital, Estrada met the criteria for
systemic inflammatory response syndrome or “SIRS,” which meant that she was already
septic or in danger of developing severe sepsis.
Estrada was diagnosed with a likely “stricture” in her colon, and on October 15,
2013, she underwent surgery to remove a portion of her colon, with an “ileostomy” (which
Dr. Miller described as draining the colon using a tube) and “anastomosis” (which he
described as reconnection of the remaining colon). Following her surgery, Estrada was
admitted to the intensive care unit under the care of Dr. Karkoutly, who diagnosed her
with SIRS. Dr. Karkoutly treated her with antibiotics and noted her continuing signs of
sepsis, which worsened in the following days.
As we read his report, Dr. Miller discussed three potential causes of Estrada’s
infection. In his opinion, the two “likely” causes of her infection were a rupture of the
colon or the failure of the surgical reconnection of her colon following her initial operation.
Another “possibl[e]” cause was the perforation of her colon during her pre-operative
colonoscopy. Out of these three, Dr. Miller felt that it was “fairly clear from Dr. Karkoutly’s
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daily charting that something” had gone wrong with the surgical reconnection of the
colon—i.e., that the reconnection had failed and was leaking fecal matter into the
surrounding tissue, causing infection. Beyond his statement that the source was “fairly
clear” from Dr. Karkoutly’s chart notations, Dr. Miller offered no further explanation of his
reasoning concerning the source of the infection.
Dr. Miller asserted that as Estrada’s condition deteriorated, with high fevers and
severe respiratory distress which required intubation, the only way to save such a patient
would be to perform exploratory surgery to find and correct the source of the infection.
According to Dr. Miller, exploratory surgery should be performed within “the first few days”
after the damage to the colon in order to maximize the patient’s chance of survival and to
satisfy the standard of care. However, Estrada did not undergo exploratory surgery until
“around ten days” after her first operation. Dr. Miller asserted that Dr. Karkoutly was
negligent in failing to recommend the surgery sooner (it was undisputed that Dr. Karkoutly
did not perform the exploratory surgery himself). Dr. Miller did not mention any new
information that was gleaned from the exploratory surgery, or whether the exploratory
surgery yielded any progress toward resolving Estrada’s condition.
Nonetheless, as to causation, Dr. Miller theorized that if Dr. Karkoutly had promptly
arranged for the exploratory surgery within a few days of Estrada’s initial operation, the
surgery would have led to the discovery and correction of the source of sepsis. Dr. Miller
viewed this delay as critical, because the compromise or perforation of the large intestine,
if left untreated, may develop into sepsis over time. Dr. Miller explained that if the
compromise of the intestine is treated early on, mortality rates remain low, but “as the
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patient approaches 48 hours post-injury without surgical correction, mortality rates are
about 40% or higher,” according to medical literature. Therefore, according to Dr. Miller,
Dr. Karkoutly’s delay in recommending exploratory surgery caused Estrada’s condition to
develop into septic shock and eventually led to her death.
Upon review of Dr. Miller’s report, the trial court determined that the report satisfied
the requirements of the TMLA, and the court denied the motion to dismiss.
B. Standard of Review and Applicable Law
We apply the abuse of discretion standard in reviewing the trial court’s decision on
a motion to dismiss under the TMLA. Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 142 (Tex. 2015) (per curiam); Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).
Under that standard, we defer to the trial court’s factual determinations if they are
supported by evidence, but we review its legal determinations de novo. Van Ness, 461
S.W.3d at 142.
“Expert report” means 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. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). A court shall
grant the motion to dismiss “only if it appears to the court, after hearing, that the report
does not represent a good faith effort to comply with the definition of an expert report . . . .”
Jelinek, 328 S.W.3d at 539 (quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–52
(Tex. 2002) (per curiam)) (emphasis in original); see TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(l).
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A “good-faith effort” is one that provides information sufficient to (1) “inform the
defendant of the specific conduct the plaintiff has called into question,” and (2) “provide a
basis for the trial court to conclude that the claims have merit.” Jelinek, 328 S.W.3d at
539. All information needed for this inquiry is found within the four corners of the expert
report, which need not marshal all the plaintiff’s proof, but must include the expert’s
opinion on each of the three main elements: standard of care, breach, and causation.
Id. The report cannot merely state the expert’s conclusions about these elements, but
instead must explain the basis of the expert’s statements to link his conclusions to the
facts. Id.; Bowie Mem’l, 79 S.W.3d at 52.
As to causation, an “expert must explain, based on facts set out in the report, how
and why” a health care provider’s breach proximately caused the injury. Columbia Valley
Healthcare Sys., LP v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017). Proximate
cause has two components: (1) foreseeability and (2) cause-in-fact. Id. at 460. An act
or omission qualifies as the cause-in-fact of harm if, but for the act or omission, the harm
would not have occurred. Id. A bare expert opinion that the breach caused the injury
does not suffice as a “good faith effort.” Id.
C. Analysis
According to Dr. Karkoutly, the crux of Dr. Miller’s theory of causation is that Dr.
Karkoutly was negligent in delaying his recommendation of exploratory surgery until ten
days after Estrada’s initial operation on October 15. Dr. Miller opined that if Dr. Karkoutly
had promptly recommended exploratory surgery within a few days after the initial
operation, the source of the infection would have been timely discovered, and Estrada
would not have experienced decline into sepsis and death. However, Dr. Karkoutly
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argues that Dr. Miller’s expert opinion on causation is conclusory because it does not link
his conclusions with the facts. Instead, Dr. Miller’s report simply states his conclusion
on causation without elaboration, and it does so in a logically inconsistent manner, leaving
“analytical gaps” between Dr. Karkoutly’s alleged breach and his patient’s harm. We
agree.
We perceive at least two areas of concern in Dr. Miller’s opinion on causation:
first, deficiencies in his opinion regarding the physical problem that was the source of
Estrada’s infection; and second, deficiencies in his opinion regarding the exploratory
surgery that, he supposed, would have discovered and corrected that source of infection.
First, Dr. Miller discussed three potential sources of infection: (1) a rupture of
Estrada’s colon, (2) a failure of the surgical reconnection of her colon after her initial
operation, and (3) a perforation of her colon during her pre-operative colonoscopy. Dr.
Miller felt that it was “clear from Dr. Karkoutly’s daily charting” that the second possibility
was to blame, and the surgical reconnection had failed. However, Dr. Miller did not offer
any supporting facts, analysis, or explanation to justify this conclusion. Moreover, this
opinion appears to conflict with Dr. Miller’s own account of the sequence of events. As
Dr. Miller effectively conceded, Estrada was already showing “signs of developing sepsis
on admission” to the hospital; it is simply that her condition formally progressed into
“septic shock shortly after the October 15, 2013 surgery.” Nonetheless, Dr. Miller opined
that the failure of the surgical reconnection was clearly the source of the sepsis.
The second and more important gap in Dr. Miller’s report is his conclusory and
inconsistent account of how Dr. Karkoutly’s delay in recommending surgery caused harm
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to Estrada. Dr. Miller asserted that Dr. Karkoutly should have promptly recommended
exploratory surgery within “a few days” after Estrada’s initial operation, but his delay
instead allowed the source of the infection to persist as Estrada’s condition worsened.
According to Dr. Miller, an earlier exploratory surgery would have discovered the source
of the infection—be it a rupture, a perforation, or a failure of the surgical reconnection—
and led to its timely correction. However, Dr. Miller’s opinion suffers from a glaring
omission: ten days after Estrada’s first operation, there was an exploratory surgery, and
yet Dr. Miller’s report did not mention whether the exploratory surgery actually led to any
progress in isolating or resolving the source of the infection. Without disclosing the
outcome of the exploratory surgery, Dr. Miller provides no basis to believe that the timing
of the surgery would have made any difference to the patient’s health.
Dr. Miller’s omissions concerning the exploratory surgery are made even more
conspicuous by other gaps in the report: even long after the exploratory surgery, Dr.
Miller’s report continued to discuss three “likely” or “possible” sources of infection, and he
offered no factual basis to justify a choice among these three possibilities beyond his view
of “Dr. Karkoutly’s daily charting.” Dr. Miller provided no clue as to what those charts
might contain that led him to his belief, leaving only his ipse dixit as to their significance.
And if, indeed, the surgeons were unsuccessful in performing exploratory surgery ten
days after Estrada’s initial operation—which we do not suppose—Dr. Miller gave no
explanation why an exploratory surgery two days afterward would have been better able
to determine the source of the infection.1
1 Again, we do not intend to fill the gaps in Dr. Miller’s report with our own suppositions. Instead,
we leave these gaps outstanding, and we simply note (1) the conspicuous absence of these facts, and (2)
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It was Dr. Miller’s obligation to explain, “based on facts set out in the report, how
and why” Dr. Karkoutly’s delay in recommending exploratory surgery proximately caused
the injury. See Columbia Valley, 526 S.W.3d at 459–60. But we find nothing of
substance in his report to explain how the delay was a cause-in-fact of Estrada’s harm;
Dr. Miller’s report offers no reason, fixed in fact, to believe that but for Dr. Karkoutly’s
delay, the outcome would have been any different. See id. Rather, all the report offers
is a “bare expert opinion that the breach caused the injury,” and Dr. Miller’s own
description of the facts appears to conflict with his conclusory opinions. See Columbia
Valley, 526 S.W.3d at 460; Carreras v. Trevino, 298 S.W.3d 721, 725 (Tex. App.—Corpus
Christi 2009, no pet.) (concluding that where the factual content of a report contradicted
the expert’s assertions, and those assertions were otherwise conclusory, the report did
not satisfy the TMLA); Gray v. CHCA Bayshore LP, 189 S.W.3d 855, 860 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (holding that in light of an expert report’s conclusory
and often internally inconsistent opinions concerning breach and causation, the report did
not satisfy the TMLA); cf. Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824, at
*2–4 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.) (finding that a
report sufficiently addressed causation because it described, in detail, the harm caused
by a physician’s delay in ordering a surgery which successfully discovered and corrected
the ways in which these gaps give rise to serious questions about Dr. Miller’s conclusions regarding
causation. Cf. Fulp v. Miller, 286 S.W.3d 501, 509 (Tex. App.—Corpus Christi 2009, no pet.) (noting that
we are precluded from filling gaps in an expert report by drawing inferences or guessing as to what the
expert likely meant).
Furthermore, we do not intend to imply that each and every one of these absent details must be
addressed in all similar cases in order to qualify as a good faith effort to explain causation. Rather, we
discuss the details that are missing from Dr. Miller’s report simply to illustrate the ways in which Dr. Miller
might have adequately addressed causation.
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a hole in the patient’s gastrointestinal tract, where the report’s factual content supported
the expert’s conclusion concerning the source of the infection).
We therefore cannot say that Dr. Miller’s report satisfies the requirements of the
TMLA. See Columbia Valley, 526 S.W.3d at 460. We hold that the trial court abused
its discretion in denying Dr. Karkoutly’s motion to dismiss Guerrero’s health care liability
claim. See Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539.
However, it remains to be determined whether dismissal should be with prejudice.
“The Act allows a trial court to grant one 30-day extension to cure a deficiency in an expert
report, and a court must grant an extension if a report’s deficiencies are curable.”
Columbia Valley, 526 S.W.3d at 461. While Dr. Miller’s report does not advance a valid,
factual explanation of causation, the deficiencies in his report are not so overwhelming
that a valid explanation “would be impossible.” See id. Accordingly, the “trial court here
must be given the opportunity to consider an extension” or dismissal with prejudice, in its
sound discretion. See id.
We sustain Dr. Karkoutly’s sole issue on appeal.
III. CONCLUSION
We reverse the ruling of the trial court and remand to the trial court for further
proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 14th
day of December, 2017.
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