Angela Cornejo and Carlos Portillo v. Stephen J. Hilgers, M.D. , 2014 Tex. App. LEXIS 9019 ( 2014 )

Opinion issued August 14, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00752-CV
———————————
ANGELA CORNEJO AND CARLOS PORTILLO, Appellants
V.
STEPHEN J. HILGERS, M.D., Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2012-69538
OPINION
In this interlocutory appeal,1 appellants, Angela Cornejo and Carlos Portillo,
challenge the trial court’s dismissal of their health care liability claims 2 against
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10) (Vernon Supp. 2013).
2
See id. § 74.001(a)(13) (Vernon Supp. 2013).
appellee, Stephen Hilgers, M.D. 3 In two issues,4 Cornejo and Portillo contend that
the trial court erred in dismissing their claims against Dr. Hilgers on the grounds
that one of their medical experts is not qualified to opine on the issue of causation
and both of their medical expert reports 5 are insufficient as to causation.
We reverse and remand.
Background
In their amended petition, Cornejo and Portillo allege that on December 2,
2010, Cornejo, who was forty weeks’ pregnant, presented at St. Joseph Medical
Center with gestational hypertension and headaches. Dr. Hilgers, an obstetrics and
gynecology resident, examined Cornejo and conducted an ultrasound and
electronic fetal monitoring, which, at 8:28 p.m., showed increasing contractions
and an irregularity in the fetal heart rate. Nevertheless, Hilgers discharged Cornejo
at 8:40 p.m., with instructions to return in four days.
3
Defendants Mae Kathleen Borchardt, M.D., formerly known as Mae Kathleen
Hayes, M.D., John Cecil McBride, M.D., Bridgette Parish, M.D., Danielle
Niemeyer, R.N., Jamie Respondek, R.N., Mayoor Bhatt, M.D., Sharon Ann
Woodson, R.N., and St. Joseph Medical Center are not parties to this appeal.
4
Although Cornejo and Portillo present three issues, their first issue, in which they
generally challenge the trial court’s order dismissing their claims is, in fact, part of
their second and third issues. Accordingly, we address Cornejo and Portillo’s two
substantive issues.
5
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2013).
2
Cornejo returned to St. Joseph thirteen hours later with elevated blood
pressure, headaches, “visual disturbances,” and reporting decreased fetal activity.
It was determined that the onset of Cornejo’s labor occurred at 5:00 a.m. on
December 3rd. Nurses J. Respondek and D. Niemeyer placed Cornejo on a fetal
heart rate monitor, the readings of which were “reassuring, with good variability.” 6
Minutes later, however, there was a “dramatic decrease in fetal heart rate
variability,” and Cornejo was taken to labor and delivery. At 11:10 a.m., Drs. K.
Hayes and B. Parish attended Cornejo, whose membranes were artificially
ruptured, and they noted the presence of “thick meconium.” Shortly thereafter, the
fetal monitor showed “minimal variability” and “late decelerations.” 7 At 11:20
a.m., Cornejo signed consent forms for a Cesarean section delivery. St. Joseph
personnel then repositioned Cornejo and continued to monitor the fetal heart strip,
which showed “occasional late decelerations” with “no accelerations of the fetal
6
A baby’s heart rate is monitored as a means of assessing the baby’s oxygenation,
including oxygenation of the baby’s brain. See Morrell v. Finke, 184 S.W.3d 257,
262 (Tex. App.—Fort Worth 2005, pet. denied). A fetal heart monitor strip is read
at regular intervals to determine whether the baby’s heart rate reflects “hypoxia,” a
deficiency of oxygen reaching the tissues of the body that could lead to depletion
of the baby’s oxygen reserves over time, resulting in brain damage. See id. A
fetal heart monitor strip will be either “reassuring” or “nonreassuring.” See id.
Following a contraction, “reassuring” accelerations show that the baby is
oxygenated and tolerating labor. See id. at 263. A normal variation in the fetal
heart rate is also a reassuring sign of fetal well-being. See id. at 262–63.
7
In his medical expert report, Dr. Michael L. Hall, Cornejo and Portillo’s expert,
explained that “[d]ecreased long-term fetal heart rate variability” and “persistent
late decelerations” in a baby’s heart rate are “nonreassuring” and can be
“ominous” signs of hypoxia or asphyxia.
3
heart.” Cornejo was sent to the operating room shortly after 1:00 p.m., and her
baby was delivered at 1:41 p.m. Although the baby was “blue” and did not cry,
she was resuscitated.
Cornejo’s baby was later diagnosed with hypoxic-ischemic encephalopathy,
a severe, permanent brain injury caused by a lack of oxygen and blood flow. 8 At
two months of age, she showed a history of renal injury, secondary to metabolic
acidosis and hypoxic injury, and mild spasticity in all extremities. At two years of
age, she presented with seizures and significant developmental impairment.
Cornejo and Portillo sued Dr. Hilgers for negligence, seeking damages for
past and future medical expenses and mental anguish. To support their claims,
they timely filed and served upon Hilgers medical expert reports 9 authored by
Michael L. Hall, M.D., Jerry J. Tomasovic, M.D., and Bradley A. Yoder, M.D.
Hilgers objected to Drs. Hall’s and Tomasovic’s reports on the ground that they
failed to sufficiently address the element of causation. Hilgers also objected to
Hall’s report on the ground that Hall is not qualified to opine on the issue of
causation. The trial court sustained Hilgers’s objections and allowed Cornejo and
Portillo thirty days to file and serve amended reports. Cornejo and Portillo
stipulated that Dr. Yoder’s expert report would not be offered as to Hilgers.
8
See Morrell, 184 S.W.3d at 275 & n.12.
9
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).
4
Cornejo and Portillo then filed and served Dr. Hall’s amended medical
expert report. As Dr. Hilgers notes in his brief on appeal, Hall’s curriculum vitae
does not appear in the record before us. In his amended report, however, Hall
notes that he is board certified in obstetrics and gynecology, is licensed to practice
medicine in the state of Colorado, is affiliated with several hospitals, and serves as
an assistant clinical professor at the University of Colorado. Hall further states:
I am familiar with the standard of care applicable to the
management of medical and obstetrical complications in pregnancy,
management of labor, use of Pitocin, interpretation of electronic fetal
monitoring (EFM), abnormal fetal heart rate patterns, and evidence of
fetal hypoxia as predicted by the fetal heart rate pattern. I am also
very well aware, that regardless of who is caring for the laboring
patient, whether Ob/Gyn, resident, or labor and delivery nurse, that
the standards of care regarding recognition of ominous findings on
fetal monitor strip are the same. . . .
As an obstetrician, I have cared for numerous pregnant patients
with the same or similar clinical circumstances as those [Cornejo]
presented with. . . . I have taught nurses and residents fetal monitoring
and have worked closely with nurses and residents for 34 years, and I
am familiar with what reasonable and prudent nurses, residents and
obstetricians would or would not do in response to abnormal
electronic fetal heart patterns and management of Pitocin. The
standards of care in the interpretation of electronic fetal monitoring,
recognition of abnormal patterns, and recognition of the need for
intervention [are] the same across these professionals, although the
roles of each may be different in intervening for the same.
....
Based on my education, training, years of experience,
familiarity with the medical literature and my board certification in
OB/GYN, I am familiar with the probable causes of . . . hypoxic-
ischemic injuries in babies generally and with the probable causes of
the injuries to [Cornejo’s baby] in this case. Specifically, during my
many years of practice, I . . . read the medical literature, reviewed case
5
studies and have followed the care for babies with the same or similar
clinical presentation as [Cornejo’s baby]. I have kept current on the
medical studies and literature regarding babies who have suffered
hypoxic-ischemic encephalopathy (HIE) from events at or around the
time of birth. I have also seen infants in my education, training and
experience who have suffered from hypoxic-ischemic encephalopathy
(HIE) from events at around the time of birth.
Dr. Hall goes on to explain that he reviewed Cornejo’s prenatal records,
labor and delivery records, and the electronic fetal monitor strip. He notes that the
applicable standard of care for Dr. Hilgers was to recognize certain risk factors
with which Cornejo presented and are “well known to increase the risk of fetal
intolerance to the uterine environment, increasing the foreseeability of progressive
hypoxia and ischemia and need for expeditious delivery of the fetus.” Specifically,
Cornejo, prior to the time that Hilgers discharged her, presented with decreased
fetal movement, gestational hypertension, suspected intrauterine growth restriction,
and late deceleration on the electronic fetal monitor. Due to the risk factors
present, and because there was a “late deceleration just prior to the end of the fetal
monitor strip” at 8:28 p.m. on the evening that Hilgers examined Cornejo, Hall
opines that Hilgers had a duty to admit Cornejo to the hospital, rather than
discharge her, and continue to monitor the fetal heart rate, the fetus for progressive
hypoxia and ischemia, and the need to expedite delivery.
Dr. Hall further opines that Dr. Hilgers breached “the standard of care of any
resident providing obstetrical services” by:
6
• “failing to recognize the risk factors at the time of the premature
discharge on December 2, 2010, discuss those with the ‘OB/GYN
specialist’ and admit [Cornejo] to the Hospital”;
• “discontinuing fetal heart rate monitoring on December 2, 2010, in
the face of a late deceleration (a potentially ominous finding
suggestive of uteroplacental insufficiency given the risk factors
discussed above)”;
• “failing to continuously monitor the fetal heart rate patterns on the
evening and morning of December 2–3, 2010”; and
• “failing to deliver [Cornejo’s baby] due to a progressively
deteriorating fetal status which would have been evident on fetal
monitoring.”
He added:
We know that the deterioration would have been evident given the
difference in the quality of the fetal monitor tracing . . . between
December 2, 2010 before the late deceleration at the end and the
tracing the following morning when she presented again to the
Hospital. Tracings do not suddenly become nonreassuring unless
there is an acute cord accident that we know did not occur in this case.
In reasonable medical probability, there was plenty of opportunity to
see the deterioration occur had she been monitored, and any ordinary,
reasonably prudent obstetrician (or resident acting under his or her
supervision), would have delivered [Cornejo’s baby] before she
actually presented again the following morning according to the
chronology.
As to causation, Dr. Hall opines that Dr. Hilgers “should have known” that
the risk factors present in this case “may foreseeably cause fetal intolerance even to
normal labor which may induce sufficient stress to produce a lack of blood flow to
the fetus (hypoxia), which foreseeably may produce acidosis (asphyxia), which
may foreseeably cause brain injury.” And he notes that,
7
[Cornejo’s baby] suffered progressive hypoxia and acidosis, as a
result of the delay in delivery caused by Dr. Hilgers’[s]. . . breaches in
the standard of care. Because [Cornejo] was not kept overnight, she
arrived in a more critical state, setting into motion a chain of events
which required more timely action after [she] returned [the next
morning] with a persistently and progressively abnormal electronic
fetal monitor pattern which was not resolved.
Dr. Hall further opines that,
more likely than not, had [Cornejo’s baby] been delivered by Dr.
Hilgers and/or the OB/GYN specialist assigned to supervise him, she
would have been neurologically intact at the time of birth, would not
have had difficulty with the newborn resuscitation, would not have
developed pneumothoraces, would not have had an additional episode
of documented severe metabolic acidosis, and would likely be normal
today. . . .
....
[T]he care rendered [Cornejo] by Dr. Hilgers was deficient—falling
well below the standard of care owed to this patient. . . . Within a
reasonable degree of medical probability, the negligent breaches in the
standard of care by . . . Dr. Hilgers substantially contributed to the
direct and proximate cause of the hypoxic ischemic encephalopathy
noted in [Cornejo’s baby].
Cornejo and Portillo also filed and served Dr. Hilgers with Dr. Tomasovic’s
amended expert report. Although Tomasovic’s curriculum vitae also does not
appear in the record before us, he, in his amended report, notes that he is a board-
certified pediatric neurologist and has been in private practice for twenty-eight
years. He “remain[s] actively supportive of two major medical center neonatal
intensive care units and [has] been involved in the care of neonates and infants
who have experienced hypoxic-ischemic encephalopathy and hypoglycemia.”
8
Dr. Tomasovic notes that he met with Cornejo’s child on January 15, 2013
to address her “current neurologic condition as it relates to events involving her
birth and subsequent treatment, and whether there is medical causation between
such treatment” and her condition. After noting his discussion with her parents
about the child’s behavior and development and his own observations, Tomasovic
states that the child’s “findings [are] consistent with microcephaly, a mild
hemiparesis with motor coordination issues, and an encephalopathic condition with
impaired expressive language.” He concludes that “it is medically probable” that
when she reaches adulthood, Cornejo’s child “will not be able to be independent or
employable.”
After his review of Dr. Hall’s report and the medical records of Cornejo and
her baby, Dr. Tomasovic observes that “Cornejo was evaluated on December 2nd,
2010, for transient blood pressure elevations which were stable resulting in her
discharge home on that date at 20:29 hours.” Although he cannot “address
whether the standard of care was breached in doing so,” he is able to opine that
“the late deceleration of the fetal heart most likely relates to the beginning of a
period of hypoxia.” He further opines that, “to a reasonable degree of medical
probability (and in reliance upon the expert opinions of Dr. Hall), . . . [Cornejo’s
baby] suffered a significant portion of her injuries due to the failure to deliver her
before progressive hypoxia and ischemia deprived her brain tissue of well-
9
oxygenated blood and neuro[l]ogic injury occurred in utero.” And, “[h]ad she
been monitored throughout the night rather than discharged by Dr. Hilgers and the
hospital personnel, . . . her progressive intolerance of the uterine environment
would have been evident and the opportunity would have presented itself to deliver
her timely (as opined by Dr. Hall) and before permanent [and] irreversible brain
damage occurred.” “In other words,” according to Tomasovic, “had she been
delivered before her mother presented again the next morning to the Hospital, she
would not have suffered her injuries.”
Dr. Hilgers moved to dismiss Cornejo and Portillo’s claims on the grounds
that Dr. Hall “is not qualified to address causation” and the amended medical
expert reports by Drs. Hall and Tomasovic are insufficient as to the element of
causation because they are “inherently grounded in speculative assumptions.”
Specifically, Hilgers argued that the experts’ theories that “had [Cornejo] been
kept in the hospital longer on 12/2, the fetal heart tracing would, at some point or
points that night, have shown a pattern indicative of fetal deterioration,” and,
“based on the assumed patterns on the heart tracing, at some unspecified time
during the night of 12/2 or the early morning of 12/3, a health care provider would
have interpreted the situation as requiring a cesarean delivery and proceeded with
delivery” were conjectural. After a hearing, the trial court, without stating its
10
reasons, granted Hilgers’s motion to dismiss Cornejo and Portillo’s health care
liability claims.
Standard of Review
We review a trial court’s decision on a motion to dismiss a health care
liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner without
reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539
(Tex. 2010). When reviewing matters committed to a trial court’s discretion, we
may not substitute our own judgment for that of the trial court. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its
discretion merely because it decides a discretionary matter differently than an
appellate court would in a similar circumstance. Harris Cnty. Hosp. Dist. v.
Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Sufficiency of Expert Reports
In their two issues, Cornejo and Portillo argue that the trial court erred in
dismissing their claims against Dr. Hilgers because, contrary to his assertions, Dr.
11
Hall is qualified to opine on the issue of causation and both Drs. Hall and
Tomasovic adequately address the issue in their amended medical expert reports.10
A health care liability claimant must timely provide each defendant health
care provider with an expert report. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351 (Vernon Supp. 2013); Gray, 189 S.W.3d at 858. The report must provide
a “fair summary” of the expert’s opinions as of the date of the report regarding the
applicable standards of care, the manner in which the care rendered by the health
care provider failed to meet the standard, and the causal relationship between that
failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6). The expert report requirement may be satisfied by
utilizing more than one expert report, and a court may read the reports together.
See id. § 74.351(i).
If a defendant files a motion to dismiss challenging the adequacy of a
claimant’s expert report, a trial court must grant the motion if it appears, after a
hearing, that the report does not represent an objective good faith effort to comply
with the definition of an expert report or is not sufficiently specific to provide a
basis for the trial court to conclude that the claims have merit. Id. § 74.351(l);
Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011). In setting out the
expert’s opinions, the report must provide enough information to fulfill two
10
The applicable standard of care and the manner in which Dr. Hilgers allegedly
breached that standard are not at issue in this appeal.
12
purposes: first, it must inform the defendant of the specific conduct the plaintiff
has called into question, and, second, it must provide a basis for the trial court to
conclude that the claims have merit. Scoresby, 346 S.W.3d at 553–54.
Dr. Hall’s Qualifications
In their second issue, Cornejo and Portillo argue that, to the extent the trial
court granted Dr. Hilgers’s motion to dismiss their claims on the ground that Dr.
Hall is not qualified to address the issue of causation, it erred because Hall’s
extensive expertise and training qualify him “to recognize the risk and to prevent
the injury” suffered by Cornejo’s baby and “to understand the causal link to” the
baby’s “neurologic injury” due to Hilgers’s breach of the pertinent standard of
care. In his motion to dismiss Cornejo and Portillo’s claims, Hilgers argued that
Hall “is not qualified to address causation” because he “is not certified in
neonatology, pediatric neurology, or maternal-fetal medicine.” And he complained
that Hall “does not treat newborns.”
To be qualified to opine on the causal relationship between a defendant-
physician’s alleged failure to meet an applicable standard of care and a plaintiff’s
injury, the author of an expert report must be a physician who is qualified to render
opinions on such causal relationships under the Texas Rules of Evidence. TEX.
CIV. PRAC. & REM. CODE ANN. §.74.351(r)(5); see also id. §.74.403(a) (Vernon
2011) (“[A] person may qualify as an expert witness on the issue of the causal
13
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.”).
An expert witness may be qualified on the basis of knowledge, skill,
experience, training, or education to testify on scientific, technical, or other
specialized subjects if the testimony would “assist the trier of fact” in
understanding the evidence or determining a fact issue. TEX. R. EVID. 702. 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. Broders v. Heise, 924 S.W.2d
148, 153–54 (Tex. 1996).
Whether an expert witness is qualified under rule 702 lies within the sound
discretion of a trial court. Id. at 151–52. Not every licensed physician is qualified
to testify on every medical question. Id. at 152–53. A physician need not practice
in the particular field about which he is testifying so long as he can demonstrate
that he has knowledge, skill, experience, training, or education regarding the
specific issue before the court that would qualify him to give an opinion on that
subject. Roberts v. Williamson, 111 S.W.3d at 113. Analysis of the expert’s
qualifications to opine as an expert on the subject matter of the report is limited to
14
the four corners of the expert report or its accompanying curriculum vitae. See
TEX. CIV. PRAC. & REM. CODE ANN. §.74.351(a); In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458, 463 (Tex. 2008).
Here, Cornejo and Portillo were required to establish that Dr. Hall is
qualified on the basis of “knowledge, skill, experience, training, or education” to
offer opinions concerning the causal link between the alleged breaches of the
standard of care by Dr. Hilgers and the injuries suffered by Cornejo’s baby. See
TEX. R. EVID. 702; Roberts, 111 S.W.3d at 122.
In his brief to this Court, Dr. Hilgers argues that Dr. Hall is not qualified to
render an opinion as to causation because he is not a perinatologist, neonatologist,
neurologist, “or any other medical specialist who routinely takes care of babies or
who diagnoses and treats brain injuries”; “does not say he provides ongoing
medical care or treatment to neonates (outside of the delivery process)”; “does not
say he diagnoses or treats babies with brain damage”; and “does not identify any
specific, relevant training or experience that would qualify him to provide expert
opinions about how Dr. Hilgers’[s] conduct on 12/2 caused [Cornejo’s baby’s]
injuries, sustained later.” And Hilgers complains that Hall is “not shown to be
qualified to address the opinions at the heart of his causation theory: what a fetal
monitor tracing ‘would have shown.’”
15
Dr. Hall, in his expert report, explains that he is board certified in obstetrics
and gynecology, is licensed to practice medicine in the state of Colorado, is
affiliated with several hospitals, and serves as an assistant clinical professor at the
University of Colorado. He specifically states that he is “familiar with the standard
of care applicable to the management of medical and obstetrical complications in
pregnancy, management of labor, . . . interpretation of electronic fetal monitoring
(EFM), abnormal fetal heart rate patterns, and evidence of fetal hypoxia as
predicted by the fetal heart rate pattern.” Hall notes that, as an obstetrician, he has
“cared for numerous pregnant patients with the same or similar clinical
circumstances” as those Cornejo presented to Dr. Hilgers. Moreover, he has taught
residents fetal monitoring and has “worked closely with . . . residents for 34 years.”
And Hall specifically explained that he is “familiar with what reasonable and
prudent” residents and obstetricians “would or would not do in response to
abnormal electronic fetal heart patterns.”
Dr. Hall further notes that, based on his “education, training, years of
experience, familiarity with the medical literature[,] and . . . board certification in
OB/GYN,” he is “familiar with the probable causes of . . . hypoxic-ischemic
injuries in babies generally and with the probable causes of the injuries to
[Cornejo’s baby] in this case.” During his years of practice, he has “read the
medical literature, reviewed case studies and . . . followed the care for babies with
16
the same or similar clinical presentation” as Cornejo’s baby. Hall has “kept
current on the medical studies and literature regarding babies who have suffered
hypoxic-ischemic encephalopathy (HIE) from events at or around the time of
birth.” And he has “seen infants” in his “education, training and experience who
have suffered from hypoxic-ischemic encephalopathy (HIE) from events at around
the time of birth.”
Dr. Hall’s report demonstrates that he has specific expertise in the areas of
obstetrical complications in pregnancy, management of labor, interpretation of
electronic fetal monitoring, abnormal fetal heart rate patterns, and evidence of fetal
hypoxia as predicted by fetal heart rate patterns. And he specifically notes that he
is familiar, based on his education, training, and experience, with the probable
causes of hypoxic-ischemic injuries in babies generally and with the probable
causes of the injuries to Cornejo’s baby in this case. This is the type of expertise
involved in the claims asserted by Cornejo and Portillo in this case.
In Roberts v. Williamson, the Texas Supreme Court held that a board-
certified pediatrician was qualified to render an expert opinion as to a newborn
baby’s neurological injuries. 111 S.W.3d at 121–22. There, after their baby
suffered brain damage, parents sued two physicians, alleging that a malfunctioning
ventilator, delay in treatment, and failure to transfer the baby to a better-equipped
hospital combined to proximately cause the baby’s injuries. Id. at 115. The
17
physicians argued that the parents’ expert, Dr. McGehee, a board-certified
pediatrician, was not qualified to testify as to the nature and extent of the child’s
neurological injuries because he was not a neurologist. Id. at 121. The court
considered that McGehee held certifications in pediatric advanced life-support and
advanced trauma life-support, had studied the effects of pediatric neurological
injuries, and had extensive experience advising parents about the effects of such
injuries. Id. at 121–22. Accordingly, it held that the trial court did not err in
admitting McGehee’s testimony because, although he was not a neurologist, the
record reflected that he had experience and expertise regarding the specific causes
and effects of the injuries at issue. Id. at 122.
In Livingston v. Montgomery, parents sued five physicians after their child
suffered severe neurological injuries just prior to birth. 279 S.W.3d 868, 870 (Tex.
App.—Dallas 2009, no pet.). The parents alleged that the physicians failed to
“intervene in the face of fetal distress on non-reassuring fetal heart rate patterns.”
Id. The physicians argued that the parents’ expert, an obstetrician, was not
qualified to opine “as to causation of neurological injuries or conditions—much
less pediatric neurological injuries.” Id. at 873. The court explained that the issue
was not who was qualified to testify about whether a neurologist could have saved
the patient’s life by treating his neurological injuries. Id. at 877. Rather, the
causation issue related to the duty of health care providers to recognize potential
18
harm and take appropriate actions. Id. Because the parents’ expert had
experience in managing labor and delivery, his expertise qualified him to opine on
the causal relationship between labor and delivery and the complications that stem
from labor and delivery, including a newborn’s neurological injuries. Id.
Here, based on his experience in managing obstetrical complications in
pregnancy and labor, interpreting electronic fetal monitoring and abnormal fetal
heart rate patterns, and recognizing fetal hypoxia as predicted by fetal heart rate
patterns, Dr. Hall is qualified to opine as to the causal relationship between a
newborn’s injuries and the failure of a resident or obstetrician to recognize
complications in pregnancy and take appropriate actions. The law does not require
him to be “certified in neonatology, pediatric neurology, or maternal-fetal
medicine” or “treat newborns” to be qualified to so opine. Accordingly, we hold
that the trial court, to the extent that it granted Dr. Hilgers’s motion to dismiss the
claims of Cornejo and Portillo on the ground that Hall is not qualified to opine on
the issue of causation, abused its discretion. See Keo v. Vu, 76 S.W.3d 725, 733
(Tex. App.—Houston [1st Dist.] 2002, pet. denied).
We sustain Cornejo and Portillo’s second issue.
Causation
In their first issue, Cornejo and Portillo argue that the trial court, to the
extent it granted Dr. Hilgers’s motion to dismiss their claims on the ground that
19
Drs. Hall and Tomasovic did not adequately address the issue of causation in their
amended medical expert reports, erred because what Hilgers’s “calls ‘speculation’
or ‘conjecture’ is, in fact, the physicians stating to a ‘reasonable [degree of]
medical probability’ what most likely caused” the injuries to Cornejo’s baby. In
his motion to dismiss Cornejo and Portillo’s claims, Hilgers argued that Hall and
Tomasovic’s amended medical expert reports do not adequately address the
element of causation because their causation theory “is inherently grounded in
speculative assumptions” and “conjecture.”
An expert report must provide a fair summary of the expert’s opinions
regarding the causal relationship between the failure of the health care provider to
provide care in accord with the pertinent standard of care and the injury, harm, or
damages claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). In
assessing the sufficiency of a report, a trial court may not draw inferences; instead,
it must exclusively rely upon the information contained within the four corners of
the report. Wright, 79 S.W.3d at 52. “No particular words or formality are
required [in the expert report], but bare conclusions will not suffice.” Scoresby,
346 S.W.3d at 556.
A causal relationship is established by proof that the negligent act or
omission constituted a substantial factor in bringing about the harm and absent the
act or omission, the harm would not have occurred. Costello v. Christus Santa
20
Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no
pet.). However, an expert report need not marshal all of the plaintiff’s proof
necessary to establish causation at trial, and it need not anticipate or rebut all
possible defensive theories that may ultimately be presented to the trial court.
Wright, 79 S.W.3d at 52; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383
(Tex. App.—Dallas 2013, no pet.). The expert must simply provide some basis
that a defendant’s act or omission proximately caused injury. Id. at 53. And the
expert must explain the basis of his statements and link his conclusions to the facts.
Id. at 52.
In his amended medical expert report,11 Dr. Tomasovic notes that he
examined Cornejo’s child specifically to assess her “current neurologic condition
as it relates to events involving her birth and subsequent treatment, and whether
there is medical causation between such treatment” and her condition. He
11
The parties dispute whether Drs. Hall’s and Tomasovic’s original expert reports
should be considered with their amended reports in evaluating whether the doctors
adequately addressed the causation issue. Dr. Hilgers quotes extensively from the
original expert reports and points out inconsistencies between the original and
amended reports. Cornejo and Portillo argue that once they submitted amended
expert reports, the original reports were supplanted. An amended expert report
served after a thirty-day extension granted by the trial court, as here, supersedes
any initial report filed by the claimant. Otero v. Leon, 319 S.W.3d 195, 204–05
(Tex. App.—Corpus Christi 2010, pet. denied); HealthSouth Corp. v. Searcy, 228
S.W.3d 907, 909 (Tex. App.—Dallas 2007, no pet.) (holding that amended expert
report “supplants” previously filed report); see also Packard v. Guerra, 252
S.W.3d 511, 515–16, 534–35 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(considering previously filed reports that were refiled and “supplemented”). Thus,
we consider only the amended expert reports in conducting our analysis.
21
concludes that his findings are “consistent with microcephaly, a mild hemiparesis
with motor coordination issues, and an encephalopathic condition with impaired
expressive language” and “it is medically probable” that she “will not be able to be
independent or employable.”
In regard to causation specifically, Dr. Tomasovic opines that “the late
deceleration of the fetal heart most likely relates to the beginning of a period of
hypoxia” and “to a reasonable degree of medical probability (and in reliance upon
the expert opinions of Dr. Hall), . . . [Cornejo’s child] suffered a significant portion
of her injuries due to the failure to deliver her before progressive hypoxia and
ischemia deprived her brain tissue of well-oxygenated blood and neurolo[g]ic
injury occurred in utero.” And he emphasizes that, “[h]ad she been monitored
throughout the night rather than discharged by Dr. Hilgers and the hospital
personnel, . . . her progressive intolerance of the uterine environment would have
been evident and the opportunity would have presented itself to deliver her timely
(as opined by Dr. Hall) and before permanent [and] irreversible brain damage
occurred.” “In other words,” according to Tomasovic, “had she been delivered
before her mother presented again the next morning to the Hospital, she would not
have suffered her injuries.” He emphasizes that,
It is a legal fiction rather than a medical reality to suggest that any of
the health care providers responsible for making decisions regarding
delivery from the evening of December 2, 2010 until the time of [the
child’s] birth are not responsible, at least in part, for her neurological
22
injuries because they had not yet occurred. All are complicit in failing
to rescue her from a foreseeably progressive hostile uterine
environment which was the source of all of her injuries and
complications . . . .
In his amended medical expert report, Dr. Hall states his familiarity “with
the probable causes of . . . hypoxic-ischemic injuries in babies generally and with
the probable causes of the injuries to [Cornejo’s baby] in this case.” He notes that
Dr. Hilgers “should have known” that the risk factors present in this case “may
foreseeably cause fetal intolerance even to normal labor which may induce
sufficient stress to produce a lack of blood flow to the fetus (hypoxia), which
foreseeably may produce acidosis (asphyxia), which may foreseeably cause brain
injury.” And Hall emphasizes that,
[Cornejo’s baby] suffered progressive hypoxia and acidosis, as a
result of the delay in delivery caused by Dr. Hilgers’[s] . . . breaches
in the standard of care. Because [Cornejo] was not kept overnight,
she arrived in a more critical state, setting into motion a chain of
events which required more timely action after [she] returned [the
next morning] with a persistently and progressively abnormal
electronic fetal monitor pattern which was not resolved.
Dr. Hall further opines that,
more likely than not, had [Cornejo’s baby] been delivered by Dr.
Hilgers and/or the OB/GYN specialist assigned to supervise him, she
would have been neurologically intact at the time of birth, would not
have had difficulty with the newborn resuscitation, would not have
developed pneumothoraces, would not have had an additional episode
of documented severe metabolic acidosis, and would likely be normal
today. . . .
....
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[T]he care rendered [Cornejo] by Dr. Hilgers was deficient—falling
well below the standard of care owed to this patient. . . . Within a
reasonable degree of medical probability, the negligent breaches in the
standard of care by . . . Dr. Hilgers substantially contributed to the
direct and proximate cause of the hypoxic ischemic encephalopathy
noted in [Cornejo’s baby].
Further, Hall explains in great detail how the effects of hypoxia and asphyxia are
cumulative and progressive, the role of fetal heart monitoring, and the medical
relationship between the late deceleration on the monitor in this case and the
injuries suffered by Cornejo’s baby.
In his appellate brief, Dr. Hilgers argues, as he did in his motion to dismiss,
that Drs. Hall’s and Tomasovic’s expert reports are insufficient because their
“proximate causation theory . . . is inherently grounded in speculative
assumptions.” Specifically, he characterizes their causation theory thusly: “had
[Cornejo] been kept in the hospital longer on 12/2, the fetal heart tracing would, at
some point or points that night, have shown a pattern indicative of fetal
deterioration,” and, “based on the assumed patterns on the heart tracing, at some
unspecified time during the night of 12/2 or the early morning of 12/3, a health
care provider would have interpreted the situation as requiring a cesarean delivery
and proceeded with delivery.” Hilgers notes that Tomasovic asserted no
“identifiable injury” to Cornejo’s baby during his treatment and neither expert
asserted that “the standard of care required [him] to deliver [Cornejo’s baby]
during his care.”
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In their reports, however, Drs. Hall and Tomasovic do more than
“speculate.” They explain the link between the specific injuries suffered by
Cornejo’s baby and Dr. Hilgers’s alleged failure to recognize Cornejo’s risk factors
and the late deceleration on the fetal heart monitor, and his failure to take action—
by admitting Cornejo to the hospital and continuing the fetal monitoring. See
Jelinek, 328 S.W.3d at 539–40 (“[T]he expert must . . . explain, to a reasonable
degree, how and why the breach caused the injury based on the facts presented.”).
Hall opines that Hilgers’s failure to comprehend the dangers and take appropriate
action constituted a substantial factor in bringing about the injuries suffered by
Cornejo’s baby and, absent such omission, the harm would not have occurred.
Likewise, Tomasovic agrees that had Cornejo’s baby been monitored throughout
the night, rather than discharged by Dr. Hilgers and the hospital personnel, “her
progressive intolerance of the uterine environment would have been evident and
the opportunity would have presented itself to deliver her timely (as opined by Dr.
Hall) and before permanent [and] irreversible brain damage occurred.” Although
neither Hall nor Tomasovic opines that a specific injury to Cornejo’s baby
occurred during Hilgers’s treatment of Cornejo on December 2nd, it is sufficient
that, in their reports, the experts “state[] a chain of events that begin with a health
care provider’s negligence and end in personal injury.” McKellar v. Cervantes 367
S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.); see Patel v. Williams, 237
25
S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Costello, 141
S.W.3d at 249.
In McKellar, Cervantes was a patient of Dr. McKellar and saw him regularly
for prenatal care of her high-risk twin pregnancy. 367 S.W.3d at 481. McKellar
admitted Cervantes to the hospital during the course of her pregnancy with
suspicion of preeclampsia. Id. When the twins were delivered via Caesarean
section the day after admission, one of the babies, “Alek,” was diagnosed with
encephalopathy. Id. Cervantes brought a health care liability claim against
McKellar, and her expert opined in his report that when a patient is admitted with
Cervantes’s conditions, the standard of care mandated that the fetal well-being be
assessed upon admission, yet Cervantes was not placed on an external fetal
monitor until more than twenty-eight hours after admission. Id. at 487. The expert
opined that McKellar’s failure to expeditiously discover and address the recurring
variable decelerations with absent long-term variability in Alek’s heart rate
resulted in brain damage. Id. at 486. The court of appeals held that the report
sufficiently put McKellar on notice of the conduct about which Cervantes
complained and further provided the trial court with a basis to conclude that her
claim against McKellar had merit. Id. at 490.
We conclude that Drs. Hall and Tomasovic, in their amended medical expert
reports, provided a fair summary of the causal relationship between Dr. Hilgers’s
26
failure to meet the appropriate standard of care and the injuries suffered by
Cornejo’s baby. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Thus, the
reports presented an objective, good faith effort to comply with the statute. Id.
§.74.351(l); Scoresby, 346 S.W.3d at 555–56. Accordingly, we hold that the trial
court, to the extent that it granted Hilgers’s motion to dismiss the claims of
Cornejo and Portillo on the ground that the reports did not adequately address the
issue of causation, abused its discretion.
We sustain Cornejo and Portillo’s first issue.
Conclusion
We reverse the order of the trial court and remand the case to the trial court
for further proceedings not inconsistent with this opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
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