Dr. Jaime Clavijo v. Gary Lynn Fomby ( 2018 )

Opinion issued June 14, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00120-CV
———————————
DR. JAIME CLAVIJO AND MANOR CARE – SHARPVIEW OF
HOUSTON, TEXAS, LLC, Appellants
V.
GARY LYNN FOMBY, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2016-19064
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, Dr. Jaime Clavijo (“Clavijo”) and
Manor Care – Sharpview of Houston, Texas, LLC (“Manor Care”), challenge the
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10) (West Supp. 2017).
trial court’s denial of their motions to dismiss the health care liability claims2 brought
against them by appellee, Gary Lynn Fomby. In two issues,3 Clavijo contends that
the trial court abused its discretion in denying his motion to dismiss the claims
against him because Fomby’s medical expert is not qualified to opine as to the
applicable standard of care and the expert’s report4 is inadequate as to the element
of causation. In two issues,5 Manor Care contends that the trial court abused its
discretion in denying its motion to dismiss the claims against it because Fomby’s
medical expert is not qualified to opine as to the applicable standard of care and
causation and the expert’s report6 is inadequate as to the standard of care and
causation.
We affirm, in part, and reverse and remand, in part.
Background
In December 2013, Fomby underwent cardiac surgery at Memorial Hermann
Hospital in Houston. During the procedure, a vein was harvested from his right leg,
2
See id. § 74.001(a)(13) (West 2017).
3
Although Dr. Clavijo presents three issues, his third issue, in which he generally
challenges the trial court’s order dismissing Fomby’s claims is, in fact, part of his
first and second issues. Accordingly, we address Clavijo’s two substantive issues.
4
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2017).
5
Although Manor Care also presents three issues, its third issue, in which it generally
challenges the trial court’s order dismissing its claims is, in fact, part of its first and
second issues. Accordingly, we address Manor Care’s two substantive issues.
6
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).
2
resulting in a 20-inch incision, extending from above his knee to midway down his
lower leg (the “surgical leg wound”). On January 13, 2014, Fomby was discharged
to Manor Care for post-operative care of the surgical leg wound and for physical
therapy. Dr. Clavijo was Fomby’s admitting physician at Manor Care.
In his original petition, Fomby, proceeding pro se, alleged that, beginning on
January 14, 2014, Manor Care physical therapists, acting on Dr. Clavijo’s orders,
directed him to ride an exercise bicycle. Fomby alleged that Clavijo and Manor Care
failed to disclose to him that riding a bicycle posed a risk of dehiscence, or rupture,
of his surgical leg wound. He alleged that, during his daily physical therapy sessions
on the bicycle, his surgical leg wound seeped blood. Nevertheless, Manor Care
personnel directed him to continue riding the bicycle and, in fact, increased the
resistance on the bicycle and the duration of his rides. Fomby alleged that, “in
January,” while riding the exercise bicycle, his surgical leg wound ruptured.
Fomby alleged that Dr. Clavijo should have ordered Manor Care physical
therapists not to employ bicycle riding as a therapy. Further, the bicycle riding
should have been stopped when Manor Care physical therapists first noted that
Fomby’s surgical leg wound was seeping blood. Fomby alleged that the motion of
riding the bicycle caused excessive tension on his surgical leg wound, rupturing the
skin. He further alleged that Clavijo and Manor Care, immediately after the rupture,
should have transferred him back to Memorial Hermann to repair the rupture.
3
Instead, they waited a week, until January 26, 2014, before transferring him to the
emergency room at Memorial Hermann for surgical repair.
Fomby further alleged that, on January 29, 2014, he was again transferred
from Memorial Herman back to Manor Care for wound care and physical therapy.
While at Manor Care, he developed severe diarrhea from antibiotics that were
prescribed to treat an infection in his surgical leg wound. Fomby alleged that, on
two occasions, in either late February or early March 2014, Manor Care nursing staff
failed to respond to his repeated requests for assistance to the restroom in his room.
During his attempts to walk to the restroom unassisted, he lost control of his bowels
and fell, soiling the dressing on his surgical leg wound and the furniture and
surroundings in his room. In his first fall, he injured his existing surgical leg wound
and his right foot and “big toe.” He alleged that, after his second fall, nursing staff
did not change the soiled dressing on his surgical leg wound until the wound care
nurse arrived for her shift an hour later.
Fomby alleged that after he was transported back to Memorial Hermann for
the treatment of an infection in his surgical leg wound, he was diagnosed with a
Methicillin-resistant-Staphylococcus-aureus (“MRSA”) infection, underwent
excisional debridement of the wound and placement of a wound vacuum,7 and, in
7
Dr. Chowdhury, appellant’s expert, explains in her report that a wound vacuum is a
dressing that promotes healing of chronic wounds. It involves the controlled
application of sub-atmospheric pressure to the local wound environment, using a
4
December 2014, amputation of the “big toe” of his right foot. Fomby alleged that
Dr. Clavijo and Manor Care should have monitored his open wound for infection
and delays should not have occurred between the onset of infection and his transport
to Memorial Hermann for treatment.
Fomby sued Dr. Clavijo and Manor Care for negligence, alleging that their
individual breaches of the standard of care in treating him had caused him to undergo
additional surgery, lengthened the time he spent in nursing homes, and caused him
physical injury, medical expenses, pain and suffering, lost wages, physical
impairment, and mental anguish. To support his claims, Fomby filed and served
upon Clavijo and Manor Care a medical expert report8 authored by Sumita
Chowdhury, M.D., M.P.H., F.A.C.C., M.B.A.
Dr. Clavijo and Manor Care objected to Dr. Chowdhury’s report on the ground
that her curriculum vitae (“CV”) was not included. Clavijo further objected to
Chowdhury’s report on the ground that she was not qualified to opine as to the issue
of causation and that her report failed to adequately address the element of causation.
Manor Care objected to Chowdhury’s report on the ground that she was not qualified
to opine as to applicable standard of care and causation and that her report failed to
sealed wound dressing connected to a vacuum pump. The continued vacuum draws
fluid from the wound and increases blood flow to the wound.
8
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).
5
adequately address the elements of the standard of care and causation. The trial
court sustained Clavijo’s and Manor Care’s objections and granted Fomby thirty
days to file and serve amended reports.
Fomby then filed and served Dr. Chowdhury’s “Supplemental Expert Witness
Report” and CV. Chowdhury, in her report and CV, states that she is a cardiologist
“trained at” Massachusetts General Hospital, Harvard Medical School, and she was,
from 2006 to 2014, board certified in cardiology and internal medicine. She has
authored numerous peer-reviewed publications and cardiology textbook chapters.
She is licensed to practice in the state of Texas and states that she was practicing
medicine in Texas at the time of Fomby’s injuries. Dr. Chowdhury further states:
My experience includes ambulatory preventive medical care,
emergency care, urgent care, inpatient care, intensive care unit
management, invasive procedures including permanent pacemaker
placement, and management of patients who have undergone coronary
artery bypass surgery during their preoperative, postoperative,
long-term care, vein harvest wound healing and rehab periods.
Dr. Chowdhury states that, based on her review of Fomby’s medical records
and Fomby’s representations, he underwent coronary-artery bypass surgery
emergently on December 20, 2013. A vein for the surgical bypass was harvested
from his lower right leg. Fomby was 65 years old and had “severe comorbidities
and risk factors that would put him at a very high risk for wound dehiscence after
major surgery,” including insulin-dependent diabetes mellitus, diabetic neuropathy,
hyperlipidemia, chronic kidney disease with a previous episode of acute renal failure
6
requiring hemodialysis, anemia, obesity, and hypertension. Chowdhury explained
that, based on Fomby’s risk factors, his “peripheral arteries in his lower extremities
would be expected to have severely compromised blood flow” and his “risk for poor
wound healing and risk of dehiscence was very high.” She noted that Fomby’s leg
wound was a “slow healing wound” and “was healing at a rate significantly slower
than a patient without the numerous risk factors of a dehiscence” that Fomby’s
condition presented. Chowdhury notes that, during the postoperative period at
Memorial Hermann, Dr. William Nguyen documented that Fomby had cellulitis in
his lower legs. Fomby was placed on intravenous antibiotics and discharged to a
skilled nursing facility, Manor Care, to continue the antibiotics and wound care.
Dr. Chowdhury notes that, based on Fomby’s medical records, the primary
objective of his admission to Manor Care on January 13, 2014 was “wound healing,”
with respect to his “surgical leg wound.” The next day, although Dr. Clavijo, the
admitting physician at Manor Care, noted that Fomby had edema in his lower legs
and an infection, Clavijo did not inspect the wound or order a wound vacuum.
Further, without having evaluated the wound, Clavijo ordered that Fomby undergo
unrestricted physical therapy.
On approximately January 20, 2014, Fomby’s surgical leg wound ruptured as
he was riding an exercise bicycle during physical therapy exercises administered by
Manor Care physical therapists, who were carrying out Dr. Clavijo’s orders.
7
Nevertheless, the “first wound evaluation performed and documented” by Clavijo
was not until two days later, on January 22, 2014, when Clavijo documented only
redness of skin. On January 24, 2014, Clavijo documented continued cellulitis,
however, he neither documented a wound evaluation, nor ordered a wound vacuum.
On January 26, 2014, Fomby was transferred back to Memorial Hermann to repair
the rupture of his surgical leg wound. Dr. Chowdhury notes that, immediately upon
Fomby’s return to Memorial Hermann, Dr. Nguyen ordered a wound vacuum.
Dr. Chowdhury states that, when Fomby was re-admitted to Manor Care three
days later, he developed a “C. diff. toxin related diarrhea.” Although Manor Care
records indicated that nursing staff had been apprised of Fomby’s special needs to
go to the bathroom, they failed, on March 18, 2014, to attend to Fomby’s “multiple
buzzed requests” for assistance to the bathroom. Fomby, who was in a weakened
state from the C. Diff toxin, attempted to get to the bathroom unassisted and “fell
from an explosive diarrhea episode and could not get up,” saturating the dressing on
his surgical leg wound with feces. Chowdhury stated that “Fomby believe[d]” that
nursing staff “carelessly cleaned” his surgical leg wound and his room because they
were in a hurry to leave at 7:00 a.m., when their work shift ended. Nursing staff also
did not properly clean his room, which had fecal matter on the floor and furniture.
Manor Care nursing staff then left Fomby’s wound undressed and open to the air in
his contaminated room until the next shift arrived at 8:00 a.m. and dressed the
8
wound. Chowdhury opines that the nursing staff’s superficial cleaning of Fomby’s
surgical leg wound and leaving the wound undressed and open in a room that still
had fecal matter on the floor and furniture resulted in a MRSA infection in Fomby’s
surgical leg wound, which required surgical debridement at Memorial Hermann.
Dr. Chowdhury opines that the standard of care applicable to Dr. Clavijo, a
physician treating a wound, is to recognize the risk factors with which Fomby
presented, including a significant risk of dehiscence of the surgical leg wound. The
standard of care also required that, upon Fomby’s arrival at Manor Care, the dressing
covering the surgical leg wound be removed and the wound inspected, and that a
wound vacuum be ordered. Chowdhury explained:
Inspection of the wound by a physician can reveal information pertinent
to a patient’s treatment, therapy and recovery, including . . . the
presence or extent of any infection; how . . . the wound [is] healing after
more than 3 weeks from surgery; does the surgical leg wound need
cleaning and re-dressing now; the space between each stitch, staple, or
other fastener and the risk of dehiscence implied by the distance
between each fast[e]ner; how close the stitches, staples or other
fasteners are to the edge of the wound; whether the stitches, staples or
fasteners are beginning to tear or are holding satisfactorily; assessing
the risks of tearing or wound dehiscence; whether the ordering of
wound vacuum treatment is indicated.
Chowdhury further opines that the standard of care applicable to a physician treating
a wound on a patient with Fomby’s risk factors is to restrict any physical therapy
that would place excess stress on the immediate area surrounding the wound.
9
Dr. Chowdhury opines that Dr. Clavijo breached the standard of care
applicable to a physician treating a wound by not inspecting Fomby’s leg wound
upon his admittance to Manor Care, by not ordering a wound vacuum, and by
ordering that Fomby undertake unrestricted physical therapy.
As to causation, Dr. Chowdhury opines that Dr. Clavijo’s departures from the
standards of care applicable to wound treatment caused Fomby’s surgical leg wound
to deteriorate to a status of “non-healing” and dehiscence, requiring “acute care
transfer, prolonged hospital stay, and painful incomplete recovery.”
With respect to Manor Care, Dr. Chowdhury opines that the applicable
standard of care for its physical therapists, as healthcare providers, is to be familiar
with risk factors for post-surgery dehiscence of wounds during physical therapy, i.e.,
age, circulatory issues, diabetes, neuropathy, and obesity; to disclose to the patient
the risk of dehiscence; and “to not put a patient in an unsafe position.” Chowdhury
opines that Manor Care, through its physical therapists, breached the standard of care
by not disclosing the risk of dehiscence and placing Fomby on an exercise bicycle
with a tension level of “8.” As to causation, she opines that Manor Care’s departures,
through its physical therapists, from the standard of care caused the dehiscence of
Fomby’s surgical leg wound.
Dr. Chowdhury opines that the applicable standard of care for Manor Care’s
nursing staff, as healthcare providers, is to respond within a reasonable period of
10
time to requests from patients for assistance, to promptly and thoroughly clean a
wound that has become contaminated, to promptly and thoroughly clean a room and
furniture that have become contaminated, and to not leave an open wound undressed
in a contaminated room. Chowdhury opines that Manor Care, through its nursing
staff, breached the standards of care by not responding to Fomby’s requests for
assistance within a reasonable time; not promptly and thoroughly cleaning his
wound and environment after his wound dressing, room, and furniture became
contaminated with feces; and leaving the wound open and undressed in a
contaminated room for over an hour. As to causation, Chowdhury opines that the
departures of Manor Care, through its nursing staff, from the standards of care
caused Fomby to fall and contract a MRSA infection in his surgical leg wound,
which necessitated additional surgery, lengthened the time that he spent bed-ridden
in a nursing home, and caused diminished mobility, pain and suffering, and
emotional distress.
Dr. Clavijo moved to dismiss Fomby’s claims on the grounds that Dr.
Chowdhury’s report, as supplemented, still did not reflect that she was qualified to
opine as to the applicable standard of care and, as pertinent here, failed to adequately
address causation. Manor Care moved to dismiss Fomby’s claims against it on the
grounds that Chowdhury’s report, as supplemented, did not demonstrate that she was
11
qualified to opine on the issues of the standard of care and causation and failed to
sufficiently address the elements of the standard of care and causation.
After a hearing, the trial court denied Dr. Clavijo’s and Manor Care’s motions
to dismiss Fomby’s claims.
Expert Report
In his first and second issues, Dr. Clavijo argues that the trial court erred in
denying his motion to dismiss Fomby’s claims against him because Dr.
Chowdhury’s report does not demonstrate that she is qualified to opine on the issue
of the standard of care applicable to an internist and does not adequately address the
issue of causation. In its first and second issues, Manor Care argues that the trial
court erred in denying its motion to dismiss Fomby’s claims against it because Dr.
Chowdhury’s report does not demonstrate that she is qualified to opine on the issue
of the standard of care applicable to physical therapists and nursing staff at a nursing
care facility or on the issue of causation, and does not adequately address the issues
of the standard of care and causation.
A. Standard of Review and Overarching Legal Principles
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.). We apply the same
12
standard to a trial court’s determination that an expert is qualified. See Broders v.
Heise, 924 S.W.2d 148, 151–52 (Tex. 1996); San Jacinto Methodist Hosp. v.
Bennett, 256 S.W.3d 806, 811 (Tex. App.—Houston [14th Dist.] 2008, 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 Cty. Hosp. Dist. v. Garrett,
232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.). However, a
trial court has no discretion in determining what the law is or in applying the law to
the facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
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(a) (West 2017); Gray, 189 S.W.3d at 858. An 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
13
damages claimed.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West
2017). If a defendant files a motion to dismiss, challenging the adequacy of a
claimant’s expert report, a trial court must grant the motion only 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).
Although the report need not marshal all the plaintiff’s proof, it must include
the expert’s opinions on the three statutory elements, i.e., the standard of care,
breach, and causation. See Palacios, 46 S.W.3d at 878–79. To be considered a
good-faith effort, the report must inform the defendant of the specific conduct that
the plaintiff calls into question and must provide a basis for the trial court to conclude
that the claims have merit. Id. at 879. A report that merely states the expert’s
conclusions as to the standard of care, breach, and causation does not fulfill these
purposes. Id. Rather, the expert must explain the basis of her statements and must
link her conclusions to the facts. Wright, 79 S.W.3d at 52. The trial court, in
assessing the sufficiency of the report, may not draw inferences, but instead must
rely exclusively on the information contained within the four corners of the expert
report or its accompanying curriculum vitae. See In re McAllen Med. Ctr., Inc., 275
S.W.3d 458, 463 (Tex. 2008).
14
B. Dr. Clavijo
1. Expert’s Qualifications
In his first issue, Dr. Clavijo asserts that Dr. Chowdhury’s report and CV do
not demonstrate that she is qualified to opine as to whether he, an internist, departed
from the accepted standards of care applicable to wound care and physical therapy
of a leg wound in a nursing home facility setting. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.401(a) (West 2017).
A person may qualify as an expert witness on the issue of whether a physician
departed from standards of medical care only if the person is a physician who:
(1) is practicing medicine at the time such testimony is given or was
practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of medical
care.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a). “Practicing medicine” or “medical
practice” includes, but is not limited to, training residents or students at an accredited
school of medicine or osteopathy or serving as a consulting physician to other
physicians who provide direct patient care, upon the request of such other
physicians. Id. § 74.401(b). “In determining whether a witness is qualified on the
basis of training or experience, the court shall consider whether, at the time the claim
15
arose or at the time the testimony is given, the witness: (1) is board certified or has
other substantial training or experience in an area or medical practice relevant to the
claim and (2) is actively participating in rendering medical care services relevant to
the claim.” Id. § 74.401(c).
Dr. Clavijo first asserts that Dr. Chowdhury is not qualified to testify
regarding the standard of care applicable to an internist because she is a cardiologist.
In determining whether an expert is qualified, the Texas Supreme Court has
cautioned against drawing expert qualifications “too narrowly.” Larson v. Downing,
197 S.W.3d 303, 305 (Tex. 2006); see also Owens v. Handyside, 478 S.W.3d 172,
186–87 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). To qualify as an expert,
a physician need not be a practitioner in the same specialty as a defendant. See
Broders, 924 S.W.2d at 153–54. The plain language of section 74.401 “focuses not
on the defendant doctor’s area of expertise, but on the condition involved in the
claim.” Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no
pet.); see also McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex. App.—Houston
[1st Dist.] 2007, no pet.). Thus, an expert is not required to “be able to articulate the
standard of care applicable to a specialty other than his own.” McKowen, 263
S.W.3d at 162. “The focus . . . is on the ‘fit’ between the subject matter at issue and
the expert’s familiarity therewith, and not on a comparison of the expert’s title or
specialty with that of the defendant.” Broders, 924 S.W.2d at 153. The critical
16
inquiry is “whether the expert’s expertise goes to the very matter on which he or she
is to give an opinion.” Id.
This Court has held that a physician whose specialty differs from that of the
defendant may be qualified to provide an expert report if she “has practical
knowledge of what is usually and customarily done by other practitioners under
circumstances similar to those confronting the malpractice defendant” or “if the
subject matter is common to and equally recognized and developed in all fields of
practice.” Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied) (general surgical practices such as postoperative care); see also Tawa v.
Gentry, No. 01–12–00407–CV, 2013 WL 1694869, at *7 (Tex. App.—Houston [1st
Dist.] Apr. 18, 2013, no pet.) (mem. op.) (expert sufficiently qualified to opine on
standard of care by showing injury involved was of type he treated in his practice);
Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
(holding expert who stated familiarity “with the standards of care relevant to the
condition involved in th[e] claim” and had “diagnosed and treated patients with the
conditions similar to those experienced by” plaintiff was qualified to opine on
standard of care).
Here, the subject matter of the claim against Dr. Clavijo involves the standards
of care in the treatment of an open wound and the prevention of infection. “[T]he
care and treatment of open wounds and the prevention of infection are subjects
17
common to and equally recognized and developed in all fields of practice, thus any
physician familiar with and experienced in the subject may testify as to the standard
of care.” Legend Oaks—S. San Antonio, L.L.C. v. Molina, No. 04-14-00289-CV,
2015 WL 693225, at *4 (Tex. App.—San Antonio Feb. 18, 2015, no pet.) (mem.
op.); see Khan v. Ramsey, No. 01-12-00169-CV, 2013 WL 1183276, at *6 (Tex.
App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.) (holding that expert
with over eighteen years of medical experience, including ambulatory, urgent, and
emergent care, possessed specialized knowledge on subject matter common to and
equally recognized and developed in all fields of practice, i.e., recognizing
importance of patient history and infection process); Garza v. Keillor, 623 S.W.2d
669, 671 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (“[T]he
standard of care in the infection process . . . is common to and equal in all fields of
medical practice.”); see also Gonzalez v. Padilla, 485 S.W.3d 236, 243–44 (Tex.
App.—El Paso 2016, no pet.) (care and treatment of open wounds and prevention of
infection are common to and equal in all fields of medical practice).
Dr. Chowdhury, in her report9 and CV, states that she is licensed to practice
in Texas and was practicing medicine in Texas at the time Fomby’s claim arose, in
9
Generally, an amended expert report served after a thirty-day extension granted by
the trial court 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). However, when an
18
2014. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(1); San Jacinto
Methodist Hosp., 256 S.W.3d at 813. Chowdhury, in her report and CV, states that
she is a cardiologist “trained at” Massachusetts General Hospital, Harvard Medical
School, and was board certified in cardiovascular diseases by the American Board
of Internal Medicine from 2004 to 2014, i.e, at the time that Fomby’s injuries
occurred. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(c) (providing that court
must consider whether, at time claim arose, or at time testimony is given, expert
witness was board certified); San Jacinto Methodist Hosp., 256 S.W.3d at 813. She
has also authored numerous cardiology textbook chapters and peer-reviewed
publications, and has written extensively on post-operative care, including the care
of diabetic patients after vascular surgery, as here.
Dr. Chowdhury states that she has over 15 years of experience in clinical
cardiology patient care, including “providing care in intensive care units” and “long-
expert report has been “supplemented,” as here, courts have considered both the
original and supplemental reports in conducting an analysis of the adequacy of the
reports. 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”). The expert report requirement may be
satisfied by utilizing more than one expert report, and a court may read the reports
together. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i) (West 2017);
Cornejo v. Hilgers, 446 S.W.3d 113, 120 (Tex. App.—Houston [1st Dist.] 2014,
pet. denied). Here, although Dr. Chowdhury’s report filed after the thirty-day
extension granted by the trial court is titled a “supplement,” in it she reiterates, and
expounds on, the statements in her original report. Thus, we consider only her
“supplemental” expert report in conducting our analysis.
19
term care facilities,” “while patients undergo rehab after cardiovascular surgery,”
and in
ambulatory preventive medical care, emergency care, urgent care,
inpatient care, intensive care unit management, invasive procedures
including permanent pacemaker placement, and management of
patients who have undergone coronary artery bypass surgery during
their preoperative, postoperative, long-term care, vein harvest wound
healing and rehab periods.
(Emphasis added.) See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(3), (c).
Chowdhury is presently employed by the Preventive Med Center of Houston, where
her experience includes providing “ambulatory and inpatient care in intensive care
units, step-down units, medical floors, long-term care facilities, and while patients
undergo rehab after cardiovascular surgery.”
Dr. Chowdhury asserts that she has “knowledge of the accepted standards of
care of what a reasonably prudent physician would do or not do when treating
patients with the conditions involved in this claim” and is “familiar with breaches of
the standard of care that can occur and result in harm to a patient” similar to Fomby.
She opines that the standard of care applicable to Dr. Clavijo, a physician treating a
wound, is to recognize the risk factors with which Fomby presented, including a
significant risk of dehiscence of the surgical leg wound. The standard of care also
required that, upon Fomby’s arrival at Manor Care, the dressing covering the
surgical leg wound be removed and the wound inspected, and that a wound vacuum
be ordered. Chowdhury explained:
20
Inspection of the wound by a physician can reveal information pertinent
to the patient’s treatment, therapy and recovery, including . . . the
presence or extent of any infection; how . . . the wound [is] healing after
more than 3 weeks from surgery; does the surgical leg wound need
cleaning and re-dressing now; the space between each stitch, staple, or
other fastener and the risk of dehiscence implied by the distance
between each fast[e]ner; how close the stitches, staples or other
fasteners are to the edge of the wound; whether the stitches, staples or
fasteners are beginning to tear or are holding satisfactorily; assessing
the risks of tearing or wound dehiscence; whether the ordering of
wound vacuum treatment is indicated.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(2). Further, the standard of
care required that Clavijo restrict any physical therapy that would place excess stress
on the immediate area surrounding the surgical wound.
Based on her report and CV, the trial court could have reasonably concluded
that Dr. Chowdhury possesses knowledge on subject matter that is common to, and
equally recognized and developed in, all fields of practice, i.e., wound care and the
infection process. See Keo, 76 S.W.3d at 732; see also Methodist Health Ctrs. v.
Crawford, No. 01-14-00291-CV, 2014 WL 5500492, at *3 (Tex. App.—Houston
[1st Dist.] Oct. 30, 2014, no pet.) (mem. op.) (holding report in which medical expert
stated that he “underst[ood] not just what the standard of care requires, but also what
is likely to occur if the standard of care is not met,” coupled with specific references
to standards of care, demonstrated familiarity with applicable standards). Further,
Chowdhury has specialized knowledge in the area of post-operative care of
diabetics, like Fomby, and over 15 years of medical experience in cardiology patient
21
care, including “providing care in intensive care units” and “long-term care
facilities,” “while patients undergo rehab after cardiovascular surgery,” and,
specifically, management of patients who have undergone coronary bypass surgery
during their “postoperative vein harvest wound healing” and “rehab periods.” See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(3).
Dr. Clavijo asserts that Dr. Chowdhury’s report and CV do not reflect that she
is qualified to opine on the standard of care applicable to the treatment of a wound
because her report and CV do not show that she “treats patients in a nursing home.”
An expert is not required to have practiced in a specific type of facility, so long as
her general work experience and knowledge establishes an ability to offer a
sufficient opinion on proper practices. See Gonzalez, 485 S.W.3d at 243–44
(physician qualified to opine on standard of care pertaining to rehabilitation
specialist); see also IHS Acquisition No. 131, Inc. v. Crowson, 351 S.W.3d 368, 372
(Tex. App.—El Paso 2010, no pet.) (physician who had never worked in nursing
home qualified to testify regarding standard of care applicable to nursing home care
based on knowledge and experience with condition and practices at issue).
Dr. Clavijo asserts that Dr. Chowdhury’s CV is inadequate because it does not
identify her specific job title at Preventive Med Center. Dr. Chowdhury’s CV does,
however, list her experience at Preventive Med Center. Again, the critical inquiry
is “whether the expert’s expertise goes to the very matter on which he or she is to
22
give an opinion.” Broders, 924 S.W.2d at 153. “The focus . . . is on the ‘fit’ between
the subject matter at issue and the expert’s familiarity therewith, and not on a
comparison of the expert’s title or specialty with that of the defendant.” Id.
To the extent that Dr. Clavijo suggests that Dr. Chowdhury’s statements in
her report or CV are not credible, for purposes of our review of the adequacy of a
medical expert report under Chapter 74, we take the statements in the report as true.
See Crawford, 2014 WL 5500492, at *1 n.1; Marino v. Wilkins, 393 S.W.3d 318,
320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
We conclude that, based on her report and CV, the trial court could have
reasonably concluded that that Dr. Chowdhury is qualified to render an expert
opinion on the standard of care applicable to Dr. Clavijo in this case. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.401. Accordingly, we hold that the trial court did
not err in denying Clavijo’s motion to dismiss Fomby’s health care liability claims
against him on this ground.
We overrule Dr. Clavijo’s first issue.
2. Sufficiency of the Report
In his second issue, Dr. Clavijo argues that the trial court erred in denying his
motion to dismiss Fomby’s claims because Dr. Chowdhury’s expert report does not
constitute a good faith effort to comply with the causation requirement of section
74.351(r)(6). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Clavijo
23
argues that Chowdhury’s expert report is conclusory because it does not adequately
set out a causal connection between the alleged breach of the standard of care and
alleged harm.
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 Rosa Health
Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.). Again,
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.
Rather, 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. Id. at 52–53. 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 her conclusions to the facts. Id. 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.
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
24
corners of the report. Wright, 79 S.W.3d at 52. However, section 74.351 does not
prohibit experts, as opposed to courts, from making inferences based on medical
history. Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 265 (Tex.
App.—Fort Worth 2009, no pet.). Whether an expert’s factual inferences made in
the expert report are accurate is an issue for summary judgment, not a Chapter 74
motion to dismiss. Hood v. Kutcher, No. 01-12-00363-CV, 2012 WL 4465357, at
*4 (Tex. App.—Houston [1st Dist.] Sept. 27, 2012, no pet.) (mem. op.); see Gannon
v. Wyche, 321 S.W.3d 881, 892 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied); Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, 199 n.2 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
Here, in setting out the causal connection between the standard of care and
the harm, Dr. Chowdhury, in her report, notes that, based on Fomby’s medical
records, the primary objective of his admission to Manor Care was “wound healing,”
with respect to the “surgical leg wound.” She opines that the standard of care
required that Clavijo, as a physician treating a wound, recognize the risk factors with
which Fomby presented, which included a significant risk of dehiscence. The
standard of care also required that Clavijo, upon Fomby’s arrival at Manor Care,
remove the dressing and inspect his wound, and that a wound vacuum be ordered.
Dr. Chowdhury explained:
Inspection of the wound by a physician can reveal information pertinent
to a patient’s treatment, therapy and recovery, including . . . the
25
presence or extent of any infection; how . . . the wound [is] healing after
more than 3 weeks from surgery; does the surgical leg wound need
cleaning and re-dressing now; the space between each stitch, staple, or
other fastener and the risk of dehiscence implied by the distance
between each fast[e]ner; how close the stitches, staples or other
fasteners are to the edge of the wound; whether the stitches, staples or
fasteners are beginning to tear or are holding satisfactorily; assessing
the risks of tearing or wound dehiscence; whether the ordering of
wound vacuum treatment is indicated.
Further, the standard of care required that Clavijo restrict Fomby from any physical
therapy that would place excess stress on the immediate area surrounding the
surgical wound.
Dr. Chowdhury opines that Dr. Clavijo breached the standard of care
applicable to a physician treating a wound by not recognizing the risk factors with
which Fomby presented, which included a significant risk of dehiscence, not
inspecting Fomby’s leg wound upon his admittance to Manor Care, not ordering a
wound vacuum, and by ordering that Fomby undertake unrestricted physical therapy.
Although the primary objective of his admission to Manor Care on January 13, 2014
was “wound healing,” with respect to the “surgical leg wound,” and Clavijo, as the
admitting physician at Manor Care, noted the next day that Fomby had edema in his
lower legs and a “surgical wound infection,” Clavijo did not inspect the wound or
order a wound vacuum. Further, without having evaluated the wound, Clavijo
ordered that Fomby undergo unrestricted physical therapy.
26
On approximately January 20, 2014,10 Fomby’s surgical leg wound ruptured
as he was riding an exercise bicycle, during physical therapy exercises ordered by
Dr. Clavijo and administered by Manor Care physical therapists. However, the “first
wound evaluation performed and documented” by Clavijo, was not until January 22,
2014, when he documented only redness of skin. On January 24, 2014, although
Clavijo documented continued cellulitis, he did not document a wound evaluation
and did not order a wound vacuum. Thus, Dr. Chowdhury inferred from Clavijo’s
having not documented a wound evaluation that such did not occur. See Hood, 2012
WL 4465357, at *5 (expert inferred from doctor’s lack of documentation concerning
any exploration, cleaning, or wound care procedures used, that wound was not
appropriately explored and treated); Quinones v. Pin, 298 S.W.3d 806, 813 (Tex.
App.—Dallas 2009, no pet.) (holding that medical expert could rely on silence of
medical records to support inferences); Thiel, 296 S.W.3d at 265 (noting that section
74.351 does not prohibit experts from making inferences based upon patient’s
medical history); see also Gannon, 321 S.W.3d at 892 (noting that accuracy of
10
Dr. Clavijo argues that Dr. Chowdhury’s report is insufficient because she relied, in
part, on Fomby’s allegations. In formulating an adequate expert report, the Texas
Supreme Court has held that an expert “may consider and rely on the plaintiff’s
pleadings,” so long as the expert “at least considered and commented on the
patient’s medical records to the extent the records and their contents—or lack of
appropriate contents—are relevant to the expert’s opinion.” Loaisiga v. Cerda, 379
S.W.3d 248, 261 (Tex. 2012). In this portion of her report, Chowdhury states that
she considered both Fomby’s allegations and his medical records. See id.
27
expert’s inferences is issue for summary judgment, not for section 74.351 motion to
dismiss). Further, on January 26, 2014, Fomby was transferred back to Memorial
Hermann to repair the rupture of his surgical leg wound. Chowdhury noted that,
immediately upon Fomby’s return to Memorial Hermann, Dr. Nguyen ordered a
wound vacuum.
With respect to causation, Dr. Chowdhury opined that Dr. Clavijo’s
departures from the standards of care, i.e., lack of proper wound care upon
admission, lack of access to a wound vacuum, and ordering that Fomby undergo
unrestricted physical therapy, despite not having evaluated Fomby’s wound, caused
Fomby’s surgical leg wound to deteriorate to a status of “non-healing,” caused the
dehiscence of his surgical leg wound while he was riding an exercise bicycle during
a physical therapy session at Manor Care, and caused him to undergo “acute care
transfer, prolonged hospital stay, and painful incomplete recovery.”
In Hood, the plaintiff-patient, who had fallen on broken glass and suffered a
laceration to his right thigh, was provided with wound care by the defendant-doctor
and discharged home. 2012 WL 4465357, at *1. A month later, a CT scan revealed
the presence of multiple pieces of glass still in the wound, requiring surgical
removal. Id. The patient’s post-operative course of care was lengthy, and he
required multiple follow-up evaluations. Id. The patient sued the doctor for
negligence and provided the report of an expert. Id. The doctor moved to dismiss
28
his claim on the ground that the report was conclusory as to the element of causation,
in that it failed to link the alleged breaches of the standard of care to the harm
suffered. Id. This Court concluded that the expert had set out the applicable standard
of care, which required the doctor to visualize, inspect, and properly clean the wound
upon initial presentment. Id. at *6. In addition, the expert set out a breach of the
standard of care by inferring, from the doctor’s lack of documentation concerning
any exploration, cleaning, or wound care procedures used, that the wound was not
appropriately explored and treated. Id. Further, the expert opined that the patient’s
post-operative course, which included surgery, would not have occurred but for the
doctor’s failure to evaluate and care for the patient’s laceration. Id. In affirming the
trial court’s order denying the doctor’s motion to dismiss, we concluded that the
expert report adequately linked the expert’s conclusions to the particular facts of the
case and provided a fair summary of his opinions concerning the causal connection
between the doctor’s breach and the harm suffered. Id. at *7.
Here, like the expert in Hood, Dr. Chowdhury, in her report, links her
conclusions to the particular facts of the case. See id. at *6. We conclude that
Chowdhury’s report provides a fair summary of the causal relationship between Dr.
Clavijo’s failure to meet the appropriate standard of care and the injuries suffered by
Fomby. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Hood, 2012 WL
4465357, at *6. Thus, the report presents an objective, good faith effort to comply
29
with the statute. See TEX. CIV. PRAC. & REM. CODE ANN. §.74.351(l); Scoresby, 346
S.W.3d at 555–56.11 Accordingly, we hold that the trial court did not err in denying
Clavijo’s motion to dismiss Fomby’s claims on the ground that the expert report did
not adequately address the issue of causation.
We overrule Dr. Clavijo’s second issue.
C. Manor Care
In its second issue, Manor Care argues that the trial court erred in denying its
motion to dismiss Fomby’s claims against it because Dr. Chowdhury’s expert report
does not constitute a good faith effort to comply with the standard of care or
causation requirements of section 74.351(r)(6). See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(6). Manor Care asserts that Chowdhury’s opinions regarding its
physical therapists and nursing staff are conclusory, vague, and speculative, in that
she does not identify the standard of care, or articulate the actions that Manor Care
should have taken, and she does not link the alleged breaches of the standard of care
to the alleged harm.
11
Having concluded that Fomby’s health care liability claim contains at least one
viable liability theory, as evidenced by an expert report meeting the statutory
requirements, we do not reach whether his expert report is sufficient as to his other
liability theories. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630–31 (Tex.
2013); SCC Partners, Inc v. Ince, 496 S.W.3d 111, 115 (Tex. App.—Fort Worth
2016, pet. dism’d) (“[I]f at least one alleged claim, theory, or cause of action in a
health care liability suit has expert support, then the legislative intent of deterring
frivolous suits has been satisfied.”).
30
Identifying the standard of care in a health care liability claim is critical:
whether a defendant breached its duty to a patient cannot be determined absent
specific information about what the defendant should have done differently.
Palacios, 46 S.W.3d at 880. Again, an 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.” See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). While a “fair summary” is
something less than a full statement of the applicable standard of care and how it
was breached, it must set out what care was expected, but not given. Palacios, 46
S.W.3d at 880. The report must provide enough information to fulfill two purposes:
(1) it must inform the defendant of the specific conduct the plaintiff has called into
question and (2) it must provide a basis for the trial court to conclude that the claims
have merit. Scoresby, 346 S.W.3d at 556. A report that wholly fails to set out the
standard of care or does so in a conclusory manner is deficient and does not
constitute a good-faith effort to meet the statute’s requirements. Palacios, 46
S.W.3d at 880.
31
1. Physical Therapists
With respect to Fomby’s negligence claim against Manor Care based on its
physical therapists administering therapy on an exercise bicycle, Dr. Chowdhury, in
her report, opines that “placing Mr. Fomby on a bike with a tension level setting at
8” put him in an “unsafe position.” She opines that the “applicable accepted standard
[of care] for physical therapists in overseeing bike riding is to not put the patient in
an unsafe position.”
Dr. Chowdhury’s statement does not constitute a statement of a standard of
care because it does not articulate anything specific about what Manor Care’s
physical therapists should have done differently. See Palacios, 46 S.W.3d at 880
(holding that whether defendant breached its duty to patient cannot be determined
absent specific information about what defendant should have done differently and
holding that expert’s statement that “precautions to prevent [the patient’s] fall were
not properly used is not a statement of a standard of care”). Although she states that
a “tension level setting at 8” is “unsafe,” Chowdhury does not define such tension
or resistance level in any meaningful way or relate it to any particular reference range
for the bicycle that Fomby was riding. For instance, a tension level of “8” on a
bicycle with a range of 1 to 10 might represent a high resistance, or 80 percent of the
maximum; whereas, an “8” on a bicycle with a range of 1 to 20 might represent less
than half the maximum resistance, or 40 percent. Manor Care and the trial court are
32
left to speculate about what an ordinarily prudent physical therapist would have done
differently, particularly in light of Dr. Clavijo’s order for “unrestricted physical
therapy.” See id.
The standard of care is defined by what an ordinarily prudent healthcare
provider would have done under the same or similar circumstances. Id. While a fair
summary is something less than a full statement of the applicable standard of care,
“even a fair summary must set out what care was expected, but not given.” Id. We
conclude that Dr. Chowdhury’s statement does not constitute a statement of a
standard of care because she does not set out what care was expected. See id.
With respect to Fomby’s informed-consent claim against Manor Care, based
on the care rendered by its physical therpists, Dr. Chowdhury, in her report, states,
“I have had discussions with [Fomby] on two occasions,” and, “[f]or purposes of
rendering this report, I rely on the following non-exclusive representations by
[Fomby:] . . . That Manor Care physical therapists did not discuss or mention the
risks of a wound rupture in riding a bike.” In addition, “Fomby has represented to
me that [neither] Manor Care, nor any of its physical therapists, . . . obtain[ed] his
informed consent at any time or prior to Manor Care physical therapists[’] order to
ride a bike.” Chowdhury opines that, “had the risks and hazards of a wound
dehiscence occurring while riding a bike been disclosed, this information could have
[i]nfluenced [Fomby] . . . in making a decision to give or withhold consent,” and
33
“[i]t is quite possible that [Fomby] would have withheld consent.” She concludes,
thus, that the failure to disclose the risks of dehiscence “directly and proximately
resulted in causation of dehiscence in [Fomby’s] leg wound.”
Dr. Chowdhury asserts, and Manor Care does not dispute, that the Texas
Medical Disclosure Panel has not specifically determined what risks or hazards must
be disclosed by a physical therapist prior to beginning a physical therapy regimen
on an exercise bicycle. In such cases, the duty is that “otherwise imposed by law.”
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.106(b) (West 2017); see also Baylor
Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 914 n.3 (Tex. App.—Dallas 2007, pet.
denied). Here, the duty “otherwise imposed by law” is to “disclose the risks or
hazards that could have influenced a reasonable person in making a decision to give
or withhold consent.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.101 (West
2017); Binur v. Jacobo, 135 S.W.3d 646, 654–55 (Tex. 2004). Further, in an
informed-consent claim, causation has two parts: (1) whether a reasonable person
could have been influenced, in deciding whether to give or withhold consent, by
information concerning the risks and hazards that was not disclosed and (2) whether
the injury complained of was caused in fact by the undisclosed risk. Quinones, 298
S.W.3d at 814. Manor Care argues that Chowdhury’s report is insufficient as to both
parts.
34
As a preliminary matter, Manor Care asserts that Dr. Chowdhury’s report is
inadequate because she, in formulating her report, relied on Fomby’s representations
without stating that she had compared them against, or even considered, any of the
medical records.
The Texas Supreme Court has held that, in formulating a report, an expert:
may consider and rely on the plaintiff’s pleadings, but the expert must
consider more than the pleadings. How much more will depend on the
particular circumstances of the claim. But we fail to see how in most
instances . . . an expert report could be adequate unless the expert at
least considered and commented on the patient’s medical records to the
extent the records and their contents—or lack of appropriate contents—
are relevant to the expert’s opinion.12
12
The supreme court reasoned:
[T]he purpose of an expert report is to give the trial court sufficient
information within the four corners of the report to determine if the
plaintiff’s claim has merit. . . . If an expert could formulate an
adequate expert report by merely reviewing the plaintiff’s pleadings
and assuming them to be true, then artful pleading could neutralize the
Legislature’s requirement that expert reports demonstrate the
plaintiff’s claims have merit. . . . That is because the facts and
circumstances alleged in the plaintiff’s pleadings might omit or
misstate, inadvertently or otherwise, matters critical to a valid expert
opinion. An expert report based only on the plaintiff’s pleadings
could mask the context of the medical services or health care rendered.
Significant matters involved in the rendition of the care, such as the
patient’s complaints or the health care provider’s findings, could
warrant investigation and examination beyond that which might
otherwise seem to have been appropriate, yet be unknown to the
expert. If such matters were not in the plaintiff’s pleadings the expert
would not have considered them, the expert report would not
reference them, and because they are outside the four corners of the
report, the trial court could not consider them in deciding whether the
plaintiff’s claims have merit. That is not what we believe the
Legislature intended.
Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012).
35
Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012).
Because Dr. Chowdhury affirmatively states that she formulated her opinions
pertaining to Fomby’s informed-consent claim based wholly on his representations,
her report does not reflect that she considered any of Manor Care’s records
pertaining to Fomby’s informed-consent claim, and she does not comment on any
lack of such record, we conclude that her report is inadequate to comply with the
statute. See Loaisiga, 379 S.W.3d at 261; Hous. Methodist Hosp. v. Nguyen, 470
S.W.3d 127, 131 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (holding that,
in formulating opinions, “medical expert must consider, at a minimum, medical
records that are relevant to those opinions, along with the pleadings”); see also TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351.
2. Nursing Staff
With respect to Manor Care’s nursing staff, Dr. Chowdhury states that, on
March 18, 2014, nursing staff, despite having been apprised of Fomby’s “C. diff.
toxin related” illness and “special needs to go to the bathroom,” failed to attend to
his “multiple buzzed requests for assistance” for approximately 15 minutes. When
Fomby attempted to get to the bathroom unassisted, he “fell from an explosive
diarrhea episode and could not get up,” saturating the dressing on his surgical leg
wound and causing fecal matter to contact the floor and furniture in his room. Dr.
Chowdhury asserts that “Fomby’s leg wound was cleaned carelessly” and “Fomby
36
believes superficially, without attention to cleanliness,” because a nursing staff shift
change was underway. She also states that “Manor Care personnel did not properly
clean the room.” Furthermore, nursing staff left Fomby’s uncovered for an hour,
during a shift change.
Dr. Chowdhury opines that the applicable standard of care requires that
nursing staff respond to patient requests for assistance “within a reasonable period
of time”; that a “wound covered with excrement saturated dressing should be cleaned
thoroughly and not carelessly or superficially”; that a room with fecal matter on the
floor and furniture should be “thoroughly and properly” cleaned; and that a wound
“should not be left uncovered for more than an hour in a room” not “properly”
cleaned.
Dr. Chowdhury opines that Manor Care’s nursing staff breached the standard
of care by not responding to Fomby’s requests for assistance for over 15 minutes;
by “carelessly” and “superficially” cleaning his wound; by not “properly” cleaning
his room for “more than an hour”; and by leaving his wound uncovered for an hour.
Chowdhury further opines that these breaches “directly and proximately resulted in
a MRSA infection in [Fomby’s] surgical leg wound.”
Again, aside from noting that Fomby’s medical records indicate that nursing
staff was apprised of his bathroom needs and did not respond to his request for
assistance for over 15 minutes, Dr. Chowdhury does not state that she considered
37
any medical records in formulating her opinion that nursing staff “carelessly”
cleaned Fomby’s wound. She states, rather, that “Fomby believes” that his wound
was “superficially” cleaned. Further, she expressly states that, in formulating her
report, she relied on Fomby’s representations that “Manor Care nurses left
the . . . surgical wound undressed and uncovered” and “that the room was not
properly cleaned.”
Because Dr. Chowdhury affirmatively states that she formulated her opinions
based on Fomby’s beliefs and representations, her report does not reflect that she
considered any of Manor Care’s records pertaining to Fomby’s claims based on the
nursing staff’s care of his wound, and she does not comment on any lack of such
record, her report is inadequate to comply with the statute. See Loaisiga, 379 S.W.3d
at 261; Hous. Methodist Hosp., 470 S.W.3d at 131 (holding that, in formulating
opinions, “medical expert must consider, at a minimum, medical records that are
relevant to those opinions, along with the pleadings”); see also TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351.
In addition, Dr. Chowdhury opines that the applicable standard of care
requires that nursing staff respond to patient requests for assistance “within a
reasonable period of time”; that a “wound covered with excrement saturated
dressing should be cleaned thoroughly and not carelessly or superficially”; that a
room with fecal matter on the floor and furniture should be “thoroughly and
38
properly” cleaned; and that a wound “should not be left uncovered for more than an
hour in a room” not “properly” cleaned. (Emphasis added.) Again, these do not
constitute statements of standards of care because they do not articulate anything
specific about what Manor Care’s nursing staff should have done differently. See
Palacios, 46 S.W.3d at 880 (holding that expert’s statement that “precautions to
prevent [the patient’s] fall were not properly used is not a statement of a standard of
care”).
Again, the standard of care is defined by what an ordinarily prudent healthcare
provider would have done under the same or similar circumstances. Palacios, 46
S.W.3d at 880. While a fair summary is something less than a full statement of the
applicable standard of care, “even a fair summary must set out what care was
expected, but not given.” Id. Here, Dr. Chowdhury does not set out what care was
expected. See id. We hold that the trial court erred in denying Manor Care’s motion
to dismiss Fomby’s health care liability claims.
We sustain the portion of Manor Care’s second issue in which it asserts that
Dr. Chowdhury’s expert report does not constitute a good faith effort to comply with
the standard-of-care requirements of section 74.351(r)(6).
Having held that Dr. Chowdhury’s report is substantively inadequate, we need
not consider the causation element of Manor Care’s second issue or consider Manor
39
Care’s first issue, in which it argues that Chowdhury is not qualified to render an
opinion as to the standard of care applicable Manor Care or as to causation.
Conclusion
We affirm the trial court’s interlocutory order denying Dr. Clavijo’s motion
to dismiss Fomby’s claims. We reverse the trial court’s interlocutory order denying
Manor Care’s motion to dismiss Fomby’s claims against it and remand for further
proceedings consistent with this opinion. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(b).
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
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