Maha Khalifa Al-Lahiq, M.D. v. Ulysses L. Rosemond ( 2013 )

Reversed and Rendered in Part and Reversed and Remanded in part and
Memorandum Opinion filed November 7, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00158-CV
MAHA KHALIFA AL-LAHIQ, M.D., Appellant
V.
ULYSSES L. ROSEMOND, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2007-63425
MEMORANDUM OPINION
Appellant Maha Khalifa Al-Lahiq, M.D. appeals the trial court’s denial of a
motion to dismiss a medical malpractice action. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351 (Vernon Supp. 2013). Dr. Al-Lahiq contends that the expert report
served by appellee Ulysses L. Rosemond was insufficient. We reverse the trial
court’s order denying dismissal and render judgment dismissing Rosemond’s
claims against Dr. Al-Lahiq with prejudice.
Background
Rosemond was admitted to Memorial Hermann Hospital on August 2, 2005,
with symptoms of severe abdominal pain and fever. Rosemond was hospitalized at
Memorial Hermann Hospital from August 2, 2005 to September 7, 2005. During
this time, Dr. Al-Lahiq was Rosemond’s attending physician. Rosemond was
discharged from the hospital and transferred to a nursing home on September 7,
2005.
During his hospitalization, Rosemond was treated for sepsis, multi-organ
failure, and renal insufficiency. Rosemond alleges that he was immobile during
his hospitalization. Rosemond further asserts he developed severe contractures due
to his immobilization coupled with Dr. Al-Lahiq’s failure to order range-of-motion
therapy. Upon discharge from Memorial Hermann Hospital, Rosemond was
assessed as being very weak and in need of extensive rehabilitation; he was not
assessed as suffering from contractures. At the nursing home, Rosemond was
provided physical therapy services. Rosemond was transferred from the nursing
home to the emergency room at Southeast Hermann Hospital on September 19,
2005. More than two years later, on January 17, 2008, Rosemond was first
diagnosed as suffering from severe contractures.
Rosemond filed health care liability claims against Memorial Hermann
Hospital System and Dr. Al-Lahiq on October 11, 2007. Rosemond later nonsuited
his claims against the hospital. In an attempt to comply with Texas Civil Practice
and Remedies Code section 74.351, Rosemond filed an expert report by Dr. Katz
on February 6, 2008. Dr. Al-Lahiq moved to dismiss the suit based on
Rosemond’s alleged failure to serve an expert report or curriculum vitae on Dr. Al-
Lahiq within 120 days of filing suit. In addition, Dr. Al-Lahiq moved to dismiss
based on the insufficiency of Dr. Katz’s expert report. The trial court sustained
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appellant’s objections and dismissed with prejudice Rosemond’s claim against Dr.
Al-Lahiq.
Rosemond appealed to this court, which concluded that the trial court had
dismissed Rosemond’s claim based upon both the objection to the sufficiency of
the report and upon Dr. Al-Lahiq’s contention that Dr. Katz’s report was not timely
served. See Rosemond v. Al-Lahiq, 331 S.W.3d 775, 777-780 (Tex. App.—
Houston [14th Dist.] 2009), rev’d, 331 S.W.3d 764 (Tex. 2011) (per curiam). This
court affirmed the trial court’s order based solely upon the timeliness issue. Id. at
781.
After granting review, the Texas Supreme Court concluded that the trial
court did not dismiss Rosemond’s claim based upon Dr. Al-Lahiq’s assertion that
Dr. Katz’s report was not timely served. See Rosemond v. Al-Lahiq, 331 S.W.3d
764, 765-68 (Tex. 2011) (per curiam). Accordingly, the supreme court reversed
and remanded the case to this court to review the report’s adequacy under section
74.351. Id. at 768. Upon remand from the supreme court, this court held that the
trial court did not abuse its discretion in determining that the expert report was
deficient; however, this court held that the trial court abused its discretion by
denying Rosemond’s request for a 30-day extension under section 74.351(c).
Rosemond v. Al-Lahiq, 362 S.W.3d 830, 841 (Tex. App.—Houston [14th Dist.]
2012, pet. denied). This court remanded to the trial court. Id.
Rosemond filed a supplemental report by Dr. Katz in the trial court on
December 21, 2012. Dr. Al-Lahiq objected to the revised report and moved to
dismiss under section 74.531. The trial court denied Dr. Al-Lahiq’s motion by
order dated January 29, 2013. This interlocutory appeal followed.1
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See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2013).
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Analysis
In two issues on appeal, Dr. Al-Lahiq contends that the trial court abused its
discretion in overruling her objection to Dr. Katz’s December 21, 2012 report and
denying her motion to dismiss the medical malpractice claim. First, Dr. Al-Lahiq
claims that the report is deficient because it is conclusory with regard to standard
of care and causation. Second, Dr. Al-Lahiq argues that the report is insufficient
because it fails to identify or articulate an experiential or educational basis for Dr.
Katz’s proposed standard of care.
I. Standard of Review
We review a trial court’s ruling regarding the adequacy of an expert report
for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion when it acts in an
arbitrary or unreasonable manner, or without reference to guiding rules or
principles. Larson v. Dowing, 197 S.W.3d 303, 304-05 (Tex. 2006) (per curiam).
Under this standard, an appellate court may not substitute its own judgment for the
trial court’s judgment. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.
App.—Houston [1st] 2006, no pet.) (citing Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992)).
II. Sufficiency of the Expert Report
A. Expert Reports Must Address Specific Elements
An expert report must fairly summarize the expert’s opinions regarding three
elements: (1) the applicable standards of care; (2) the manner in which the care
rendered by the physician or health care provider failed to meet the standards; and
(3) the causal relationship between that failure and the injury, harm, or damages
claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. In addition, an expert
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report must be sufficiently detailed to fulfill two purposes: (1) inform the
defendant of the specific conduct that the plaintiff has called into question; and (2)
provide a basis for the trial court to conclude that the claims have merit. Palacios,
46 S.W.3d at 875.
The trial court must grant a motion challenging the adequacy of an expert
report if it appears that the report does not represent an objective good faith effort
to comply with the statutory definition of an expert report. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(l). A report that does not fairly summarize the three
elements or provide enough information to fulfill the two purposes above is not
considered a good faith effort to comply with the statute. Scoresby v. Santillan,
346 S.W.3d 546, 556 (Tex. 2011). When determining whether an objective good
faith effort has been made, the trial court is limited to the four corners of the report
and cannot consider extrinsic evidence. Palacios, 46 S.W.3d at 878.
B. The Revised Report Fails to Adequately Address Causation
We begin our analysis by addressing whether Dr. Katz’s December 21, 2012
expert report adequately addressed causation because this determination is
dispositive of Dr. Al-Lahiq’s remaining issues. Dr. Al-Lahiq contends that Dr.
Katz’s report is insufficient because it is conclusory with regard to causation.
Specifically, Dr. Al-Lahiq asserts that the expert report fails to explain how a
diagnosis of contractures made 28 months after Rosemond was discharged from
Memorial Hermann Hospital emanated from her care.
No magic words are required to establish the necessary causal link between
a defendant’s alleged negligence and harm suffered by a plaintiff. See Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (per curiam). However, “an
expert cannot simply opine that the breach caused the injury.” Jelinek v. Casas,
328 S.W.3d 526, 539 (Tex. 2010). “Instead, the expert must go further and
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explain, to a reasonable degree, how and why the breach caused the injury based
on the facts presented.” Id. at 539-40. In other words, an expert report must
demonstrate causation beyond mere conjecture. See Wright, 79 S.W3d at 52.
Dr. Katz begins his discussion of Rosemond’s medical treatment by
summarizing a note attributed to Dr. Ahmad entered on August 3, 2005.
Specifically, the note indicates that Rosemond was admitted to the hospital on
August 2, 2005, with symptoms of abdominal pain and fever. Rosemond’s
condition worsened overnight and he was transferred to an intensive care unit.
According to this same section of the report, Rosemond was subjected to a number
of evaluations including a pulmonary consultation by Dr. Patel, a urology
consultation by Dr. Dow, and a surgical consultation by Dr. Garza.
The second portion of Dr. Katz’s summary of Rosemond’s medical
treatment contains an operative report by Dr. Garza dated August 4, 2005. The
note details an exploratory surgery performed on Rosemond’s abdomen. The next
section of the summary describes a consultation report note authored by Dr. Dow
recommending antibiotics, continued renal evaluation, and an MRI.
Next, Dr. Katz summarizes a note by Dr. Al-Lahiq written on the day
Rosemond was discharged from the hospital. The note details Rosemond’s
condition while under Dr. Al-Lahiq’s care. The note also discusses Rosemond’s
rehabilitation while hospitalized as follows:
[Rosemond] was transferred to the floor and put on nasogastric
feeding as tolerated. He became more alert and was able to verbalize
pain. He was started on rehabilitation with very slow progression but
willingness on Mr. Rosemond’s part to participate. When Mr.
Rosemond became stable enough it was agreed to put him in a nursing
home for rehabilitation and to continue his medical care. He was
transferred in a fairly stable condition still not tolerating PO intake
very well but was very weak and needed extensive work with
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rehabilitation.
In the next section of the summary, Dr. Katz discusses an admission record and
notes from Courtyard Convalescence Center. Rosemond was admitted to
Courtyard Convalescence on September 7, 2005. While at Courtyard
Convalescence Center, Rosemond was noted as experiencing “moderate leg pain”
and “worsening generalized debility aggravated by patient noncompliance.”
Finally, in the last section of his summary of the medical records, Dr. Katz
describes a letter from Dr. Gugenheim dated January 17, 2008, 28 months after
Rosemond was discharged from Dr. Al-Lahiq’s care. In this letter, Dr. Gugenheim
states that Rosemond suffers from severe joint contractures. This is the first and
only mention of contractures in Dr. Katz’s entire summary of Rosemond’s medical
records.
In a section entitled “Expert Opinion,” Dr. Katz attempts to provide a causal
explanation linking Dr. Al-Lahiq’s treatment with Rosemond’s contractures.
However, like the first report, the December 21, 2012 report is impermissibly
conclusory with respect to causation. The report states as follows:
Ulysses Rosemond was admitted to Memorial Herman[n] Southeast
and ultimately diagnosed with septicemia. He was bedridden for over
a month. Dr. Maha Al-Lahiq was his attending physician and, as
such, was responsible for participating in, overseeing and coordinating
Rosemond’s overall care while he was at Memorial Hermann.
Rosemond’s medical records reflect that Dr. Al-Lahiq was well aware
that Ulysses Rosemond was bedridden and immobile. Given his
condition, the standard of care for treating Rosemond required that Dr.
Maha Al-Lahiq (1) recognize that Rosemond’s condition put him at
great risk to develop contractures; (2) develop a treatment plan from
the first day he was admitted to prevent the onset of contractures[;]
and (3) at the very minimum, initiate a treatment plan that includes
full range of motion exercises to each of his joints, at least once daily.
* * *
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To a reasonable degree of medical certainty, [Rosemond’s]
contractures were already developing before he was transferred from
Memorial Hermann Hospital to the nursing care facility. Use of ROM
exercises is highly effective to prevent the onset of contractures. To a
reasonable degree of medical probability, Ulysses Rosemond would
not have developed the contractures to the extent he now suffers, if
Dr. Al-Lahiq had not deviated from the acceptable medical standard
of care and had ordered ROM exercises from the beginning of his
treatment.
Limiting our analysis to the four corners of the report, we hold that this report fails
to demonstrate causation beyond mere conjecture. The first mention of
contractures in Dr. Katz’s summary of the medical records is in Dr. Gugenheim’s
letter dated January 17, 2008 — 28 months after Rosemond was discharged from
Dr. Al-Lahiq’s care. Contractures are not mentioned in the remainder of Dr.
Katz’s summary of the medical records.
The First Court of Appeals has decided a similar case in which the expert
report was deficient with respect to causation. See Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In Gray, a patient
alleged that her left knee was injured by the flexing of her leg during nasal surgery,
and that the injury could have been prevented had the doctor and nurses properly
monitored her extremities during the operation. Id. at 856-57. The expert report in
Gray provided the following causal analysis: “The failure to monitor and detect the
malpositioned left knee resulted in a dislocated left patella, severe pain and
suffering, and subsequent medical treatment.” Id. at 858. The court concluded that
this statement was inadequate to address causation; the court stated that “by not
fleshing out how appellee’s failure to monitor Gray’s extremities caused her injury,
the report does not convincingly tie the alleged departure from the standard of care
to specific facts of the case.” Id. at 860 (citing Bowie Mem’l Hosp., 79 S.W.3d at
53).
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The the December 21, 2012 report’s causal analysis is similarly deficient.
First, the report fails to point out any facts that support Dr. Katz’s assertion that
Rosemond suffered from contractures upon discharge from Dr. Al-Lahiq’s care.
Instead, the report provides only the conclusory statement that “[t]o a reasonable
degree of medical certainty, [Rosemond’s] contractures were already developing
before he was transferred from Memorial Hermann Hospital to the nursing care
facility.”
Second, the report does not state with any specificity how Dr. Al-Lahiq’s
alleged failure to order range of motion therapy during Rosemond’s hospitalization
from August 2, 2005 to September 7, 2005 affected his ultimate diagnosis on
January 17, 2008. Instead, Dr. Katz provides only the conclusory statement that
“[t]o a reasonable degree of medical probability, Ulysses Rosemond would not
have developed the contractures to the extent he now suffers, if Dr. Al-Lahiq had
not deviated from the acceptable medical standard of care and had ordered ROM
exercises from the beginning of his treatment.” This statement fails to address the
chain of events that ultimately led to Rosemond’s 2008 diagnosis. Specifically, the
report does not detail the significance of the first six weeks of immobility to the
development of contractures. Further, the report fails to explain the impact
Rosemond’s multiple medical problems had on the development and treatment of
his contractures. See Talmore v. Baptist Hosps of Se. Tex., No. 09-06-024-CV,
2006 WL 2883124, at *4 (Tex. App.—Beaumont Oct. 12, 2006, no pet.) (report
insufficient because it failed to address how patient’s multiple medical problems
impacted the development and treatment of her bedsores). Consequently, we
conclude that this report fails to provide a causal link between Dr. Al-Lahiq’s care
and Rosemond’s contractures. See Palacios, 46 S.W.3d at 878.
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Because Dr. Katz’s expert report is impermissibly conclusory, we hold that
the trial court abused its discretion to the extent that it found the report provided a
sufficient causal analysis. In light of our disposition of the issue, we need not
address Dr. Al-Lahiq’s remaining issues.
Conclusion
We reverse the trial court’s order, render judgment dismissing Rosemond’s
claims against Dr. Al-Lahiq with prejudice, and remand to the trial court for
determination of reasonable attorney’s fees and court costs. See Tex. Civ. Prac. &
Rem. Code § 74.351(b).
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
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