Rick Kline, D.D.S. and Kline Dental Implant, PLLC v. Anthony Leonard ( 2019 )

Opinion issued December 19, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00323-CV
———————————
RICK KLINE, D.D.S. AND KLINE DENTAL
IMPLANT, PLLC D/B/A SMILE TEXAS, Appellants
V.
ANTHONY LEONARD, Appellee
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 18-DCV-252609
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, Rick Kline, D.D.S. (“Dr. Kline” or
“Kline”) and Kline Dental Implant, PLLC, doing business as Smile Texas (“Kline
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9).
Dental”), challenge the trial court’s order denying their motion to dismiss the health
care liability claim2 brought against them by appellee, Anthony Leonard. In three
issues, appellants contend that the trial court erred in denying their motion to dismiss
Leonard’s claim because he failed to serve them with an adequate expert report.3
We affirm.
Background
In October 2011, Leonard underwent dental treatment by Dr. Kline at Kline
Dental, doing business as Smile Texas. Leonard sought restorative dental work and
expressed his desire to keep as many of his existing teeth as possible. Dr. Kline, a
“cosmetic dentist,” recommended a treatment plan called “Teeth in a Day,” which
involved extracting all of Leonard’s teeth and replacing them with implants and
prostheses, at a cost of $50,000.
On June 14, 2012, Dr. Kline extracted all of Leonard’s teeth and installed
implants and prostheses. Thereafter, Leonard’s teeth were non-functional, his
prostheses repeatedly detached or broke, and he experienced intense pain. Over the
course of the next five years, Leonard returned to Kline for treatment more than 65
2
See id. § 74.001(a)(13) (“Health care liability claim” means a “cause of action
against a health care provider or physician for treatment, lack of treatment, or other
claimed departure from accepted standards of medical care, or health care, or safety
or professional or administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether the claimant’s claim
or cause of action sounds in tort or contract. . . .”).
3
See id. § 74.351(a), (b).
2
times, without success. In October 2017, Kline refused Leonard any further
treatment.
In January 2018, Leonard sought treatment from another restorative dentist,
John T. Burdine D.D.S., M.Sc.D. Dr. Burdine determined that the dental work
performed by Dr. Kline was non-functional, substandard, and incomplete. Burdine
referred Leonard to a prosthodontist, Dr. Robert Velasco, who found that Leonard’s
prostheses were unstable, ill-fitting, “totally non-functional,” and had caused
Leonard pain and difficulty speaking. Velasco recommended re-construction of
Leonard’s prostheses.
On June 28, 2018, Leonard brought a negligence claim against Dr. Kline,
alleging that he owed a duty to exercise the degree of care, skill, and diligence
ordinarily possessed and employed by other members of the dental profession in
good standing under the same or similar circumstances. Leonard asserted that Kline
breached the standard of care by failing to advise him of “all treatment options,
including those preserving his existing teeth”; failing to diagnose his periodontal
disease; failing to use ordinary care in his treatment; failing to complete his dental
restorations in a timely manner; and abandoning him prior to completion of the work.
Leonard further alleged that Kline was acting within the course and scope of his
employment with Kline Dental and that Kline Dental was vicariously liable for
Kline’s actions under the doctrine of respondeat superior.
3
Leonard asserted that appellants’ breaches of the standard of care proximately
caused him physical injury, unnecessary extraction of healthy teeth, pain, anxiety,
and illness. And, as a direct and proximate result, he suffered pain, mental anguish,
and disfigurement, in addition to unnecessary expense.
On August 6, 2018, appellants answered Leonard’s suit with a general denial.4
On September 6, 2018, Leonard served upon Dr. Kline and Kline Dental an
expert report authored by Dr. Burdine, along with his curriculum vitae (“CV”).
Burdine, in his report and CV, states that he is a graduate of the University of Texas
Health Science Center, Dental Branch, (“UTHSC”) and has an advanced degree in
periodontology from Boston University-Harvard Medical School. He is currently in
private practice in Houston, specializing in the areas of periodontics,5 oral medicine,
and implantology. He has practiced in periodontics and oral medicine since 1975
and implantology since 1987. He is a Clinical Associate Professor at UTHSC, a
Diplomate of the American Board of Periodontology, and a published author.
4
“In a health care liability claim, a claimant shall, not later than the 120th day after
the date each defendant’s original answer is filed, serve on that party or the party’s
attorney one or more expert reports, with a curriculum vitae of each expert listed in
the report for each physician or health care provider against whom a liability claim
is asserted. . . .” TEX. CIV. PRAC. & REM. CODE § 74.351(a) (emphasis added).
5
“A periodontist is a dentist who specializes in the prevention, diagnosis, and
treatment of periodontal disease and in the placement of dental implants.
Periodontists receive extensive training in these areas, including three additional
years of education beyond dental school.” AM. ACADEMY OF PERIODONTOLOGY,
https://www.perio.org/consumer/what-is-a-periodontist (last visited December 16,
2019).
4
In his expert report, Dr. Burdine states that he is “familiar with the dental
standard of care for dental diagnosis, treatment, and care of patients undergoing full
mouth restoration by virtue of [his] medical education, [his] years of dental
experience, and specific practice in the field of periodontics.” Burdine has
personally diagnosed, treated, and cared for many patients with the symptomology
Leonard exhibited. Burdine opines that the applicable standard of care “requires that
a complete oral, periodontal, occlusal and restorative exam, with both functional and
esthetic considerations be made prior to any comprehensive treatment, and that all
treatment options be presented to the patient.” The standard of care also requires
that mounted models of the patient’s dentition be created in order to analyze and
determine the options for restoration of the natural dentition. Further, the standard
of care “requires that all oral diseases be identified and treated prior to
comprehensive restorative therapy or oral surgery” and “that a surgeon operate in as
clean an environment as possible.”
Dr. Burdine states that he reviewed the records of Dr. Kline’s treatment of
Leonard from October 2011 through October 2017 and the dental records of Dr.
Velasco’s treatment of Leonard from February 2018 through June 2018. Burdine
also personally examined and evaluated Leonard’s condition.
Based on his review of Dr. Kline’s medical records, Dr. Burdine noted that,
when Kline first examined Leonard on October 18, 2011, Leonard reported having
5
no loose teeth and no jaw or tooth pain. Leonard complained that his missing teeth
simply prevented his full smile, and he stated that he wanted to keep as many of his
teeth as possible. The dental x-ray showed that Leonard had 17 teeth remaining,
including an impacted third molar. Kline recommended only that he extract all of
Leonard’s remaining teeth and construct upper and lower prostheses. On June 14,
2012, Kline removed all of Leonard’s teeth and placed 11 implants, and “upper and
lower prosthetic teeth replacements were delivered.” Thereafter, Leonard’s course
of treatment, some 65 appointments, continued until October 2017, without success.
The records reflect that, throughout that period, Leonard experienced infection,
prostheses failure, dysfunction, and pain.
On January 4, 2018, Leonard presented to Dr. Burdine’s office complaining
of pain, inability to chew, difficulty speaking, and social embarrassment. Leonard
was without teeth, aside from a still-impacted third molar. In his examination of
Leonard, Burdine noted that “[i]ll-fitting dentures were cemented” to implant
abutments and that there was inflammation present around the prostheses. Leonard
reported to Burdine, and Kline’s records reflected, that the prostheses had a history
of detaching and breaking. Burdine referred Leonard to Dr. Velasco, a
prosthodontist, for treatment.
Dr. Burdine notes that Dr. Velasco’s records reflect his findings that:
The prosthes[e]s [were] ill-fitting, with a very poor occlusal scheme,
causing [Leonard] pain and difficulty speaking. Further, Dr. Kline did
6
not deliver what was discussed and promised on the original treatment
plan, as the final prosthesis is cement retained Porcelain Fused to Metal
(PFM), as opposed to Multilayered full-contour zirconia.
Both upper and lower prosthes[e]s were totally non-functional, with
poor fit of each abutment, unstable and hygienically being very difficult
to clean, due to both poor fit and design. Because the prosthes[e]s were
so ill-fitting, the patient has to re-cement [them] on his own (at home
dentistry), and this excess cement caused gingival inflammation around
the implants and bone loss around the implants.
. . . . There is a finite life expectancy for the lower implants, as a direct
result of the bone loss that has occurred since they were done in 2012.
Velasco recommended a treatment plan involving reconstruction of the prostheses,
which Leonard was undergoing at the time of the report.
Dr. Burdine opines that, based on a reasonable degree of medical probability,
Dr. Kline breached the applicable standard of care by failing to provide Leonard
with appropriate and functional dental treatment. Burdine states that the record of
Kline’s exam, although cursory and limited, indicates “adequate bone on the FMX,”
“minimal pocket probing on the probe chart,” and that the teeth were “stable.” Thus,
he opines, Leonard’s teeth were “clearly salvageable.” However, notwithstanding
that his teeth were salvageable and that Leonard stated to Kline that he “wanted to
keep as many remaining teeth as possible,” “the only recommendation made by Dr.
Kline was to extract all of [Leonard’s] erupted teeth and the construction of upper
and lower prosthetic replacements, at a cost of around $50,000.” And, the medical
records reflect that Kline discussed treatment fees with Leonard even before taking
diagnostic records and formulating treatment options. Burdine explained that such
7
action suggests that Kline utilizes a pre-determined treatment plan, which is “entirely
outside of the standard of care.” And, “there is no indication that models were
mounted,” i.e., that models of Leonard’s teeth were created to evaluate the way in
which they fit together naturally. Burdine opines that Kline breached the standard
of care by not discussing all treatment options with Leonard, such as periodontal
therapy, routine restorative work, partial denture prostheses, implants, and bridges.
Dr. Burdine further notes that Dr. Kline stated on the anesthesia record that
Leonard had periodontal disease. Thus, opines Burdine, Kline also breached the
standard of care by making “no effort” to refer Leonard for a periodontal evaluation
or to treat the disease before “embarking on this extreme treatment plan.” And,
Kline further breached the standard of care by providing Leonard with ill-fitting,
non-functional implants and prostheses, that, despite at least 65 follow-up visits over
the course of five years, were “never properly completed.”
Dr. Burdine opines that Dr. Kline’s breaches of the standard of care resulted
in an excessively long course of treatment, during which Leonard experienced pain,
difficulty chewing and speaking, and unnecessary expense. In addition, Kline’s
failure to treat Leonard’s oral disease before beginning the restorations proximately
caused his bone loss, implant failure, progression of infection, and additional pain.
Appellants moved to dismiss Leonard’s negligence claim on the ground that
Dr. Burdine’s expert report is inadequate. Appellants asserted that Burdine is not
8
qualified to render an expert report in this case because he is a periodontist and Dr.
Kline is a cosmetic dentist. Appellants asserted that Burdine’s expert report and CV
fail to establish that he possesses the knowledge, skill, experience, training, or
education to evaluate Leonard’s treatment. Although Burdine asserts that he is
familiar with the management of restorative work in patients like Leonard and states
that he has “treated many patients presenting with the same symptomology reflected
in [Leonard’s] history,” “[n]one of these statements support his inference that he
would know what a dentist in the same or similar circumstances as Dr. Kline does
do, should do, or can do.” Further, Burdine fails to state that he is trained in
implantology, teeth building, placement, or adjustment, or that he has ever placed
implant prostheses. Rather, Burdine is “only trained in the surgical aspect.”
Appellants further complained that Dr. Burdine, in his report, fails to identify
the applicable standard of care and offers only contradictory and conclusory
statements, discussed below, with respect to his alleged breaches of the standard.
And, “[t]here is a huge ‘gap’ between the alleged breach of the standard of care and
the alleged damages.” They argued: “Even if we make the impermissible
assumption Dr. Burdine makes that Dr. Kline did not inform Mr. Leonard of all of
his options, how did this directly or indirectly cause bone loss? How did the
prostheses allegedly become non-functional?” Further, they assert, Burdine failed
to acknowledge Leonard’s “neurological condition that was the actual cause of his
9
broken prostheses: bruxism.”6 Appellants asserted that Burdine simply did not
explain how Kline’s failure to follow the standard of care led to Leonard’s failed
outcome. The trial court denied appellants’ motion to dismiss Leonard’s claim.
Expert Report
In their first through third issues, appellants argue that the trial court erred in
denying their motion to dismiss Leonard’s negligence claim against them because
his expert report is inadequate. Specifically, appellants assert that Dr. Burdine is not
qualified to opine as to the applicable standard of care and breach, and Burdine does
not adequately address the elements of the standard of care, breach, and causation.
A. Standard of Review and 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
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.).
When reviewing matters committed to a trial court’s discretion, we may not
6
“Bruxism” is defined as the “habit of unconsciously gritting or grinding the teeth.”
Bruxism, MERRIAM–WEBSTER’S DICTIONARY (11th ed. 2003).
10
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 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).
A health-care-liability claimant must timely provide each defendant health
care provider7 with an expert report. TEX. CIV. PRAC. & REM. CODE § 74.351. 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.” Id. § 74.351(r)(6). In setting out the expert’s
opinions, the report must: (1) inform the defendant of the specific conduct the
7
A “health care provider” means “any person, partnership, professional association,
corporation, facility, or institution duly licensed, certified, registered, or chartered
by the State of Texas to provide health care, including: . . . a dentist.” TEX. CIV.
PRAC. & REM. CODE § 74.001(12)(A)(ii).
11
plaintiff has called into question and (2) provide a basis for the trial court to conclude
that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011).
A report that merely states the expert’s conclusions as to the standard of care, breach,
and causation does not fulfill these purposes. See id. Rather, the expert must explain
the basis of her statements and must link his conclusions to the facts. Wright, 79
S.W.3d at 52.
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 that it is not sufficiently specific to provide
a basis for the trial court to conclude that the claims have merit. TEX. CIV. PRAC. &
REM. CODE § 74.351(l). 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 & n.14
(Tex. 2008).
B. Analysis
1. Qualifications
In their first issue, appellants argue that Dr. Burdine, a periodontist, does not
establish in his expert report that he is qualified to opine as to the applicable standard
12
of care or as to any breach thereof by Dr. Kline, a “cosmetic dentist.” Specifically,
appellants assert, Burdine does not establish that he has received training in placing
dental implant prostheses or that he has ever performed any such procedure.
Whether an expert witness is qualified lies within the sound discretion of a
trial court. Broders, 924 S.W.2d at 151. Not every licensed health care provider is
qualified to testify on every medical question. Id. at 152–53. However, one need
not be a practitioner in the same specialty as the defendant to be a qualified expert
in a particular case. Id. at 153. Under the Rules of Evidence, the test is whether the
offering party has established that the expert has the knowledge, skill, experience,
training, or education to assist the trier of fact in understanding the evidence or
determining a fact issue. See TEX. R. EVID. 702; Broders, 924 S.W.2d at 153; see
also Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003); Keo v. Vu, 76 S.W.3d
725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“[T]rial courts may
qualify a medical witness of a different specialty to testify if the witness has practical
knowledge of what is usually and customarily done by other practitioners under
circumstances similar to those confronting the malpractice defendant.”).
In a suit involving a health-care-liability claim against a health care provider,
as here, a person may qualify as an expert witness on the issue of whether the health
care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the defendant
13
health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing
that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care
providers 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 health care.
TEX. CIV. PRAC. & REM. CODE § 74.402(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 arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the
United States or a national professional certifying agency, or has
other substantial training or experience, in the area of health care
relevant to the claim; and
(2) is actively practicing health care in rendering health care services
relevant to the claim.
Id. § 74.402(c). Thus, qualification under section 74.402 does not turn on specific
credentialing; rather, it turns on the expert’s competence with the type of care
delivered to the patient and the expert’s knowledge of the standard governing
diagnosis and treatment of the patient’s condition. See id.; Broders, 924 S.W.2d at
153; Keo, 76 S.W.3d at 732.
The substance of Leonard’s claim is that Dr. Kline improperly performed full-
mouth extraction of his teeth and replacement with implants and prostheses. Dr.
Burdine, in his expert report, states that, “by virtue of [his] medical education, [his]
years of dental experience, and specific practice in the field of periodontics,” he is
14
familiar with the standard of care for the diagnosis, treatment, and care of patients
undergoing full-mouth restoration. Burdine’s CV reflects that he is a licensed
dentist with an advanced degree in periodontics. Burdine specifically states that he
has been practicing in implantology since 1987. He is currently in private practice,
including implantology, and treats patients four days per week. And, he has
“personally diagnosed, treated, and cared for many patients, such as [Leonard].”
Thus, Dr. Burdine’s expert report establishes that, at the time of the report or
at the time that Leonard’s claim arose, Burdine was “practicing in a field of practice
that involves the same type of care or treatment as that delivered by” Dr. Kline. See
TEX. CIV. PRAC. & REM. CODE § 74.402(b). In addition, the report establishes that
Burdine “has knowledge of accepted standards of care for health care providers for
the diagnosis, care, or treatment of the illness, injury, or condition involved in the
claim.” See id. Further, Burdine’s expert report establishes that he is qualified on
the basis of training or experience to offer an expert opinion regarding the accepted
standards of health care because it demonstrates that he is a licensed dentist, has an
advanced degree in periodontics, and is actively rendering healthcare services
relevant to the claim, i.e., implantology. See id. § 74.402(b), (c).
Appellants argue that Dr. Burdine’s expert report is deficient because it does
not expressly state that his education, which he completed in 1974, included
implantology. We note that a “periodontist” is generally defined as a “dentist who
15
specializes in the prevention, diagnosis, and treatment of periodontal disease and in
the placement of dental implants.” AM. ACADEMY OF PERIODONTOLOGY,
https://www.perio.org/consumer/what-is-a-periodontist (last visited December 16,
2019) (emphasis added). And, again, Burdine expressly states in his report that he
has been practicing implantology since 1987. Appellants provide no authority to
support their assertion that an expert report need itemize specific coursework.
We conclude that the trial court could have reasonably concluded that Dr.
Burdine’s expert report demonstrates that he is qualified to render an opinion as to
the standard of care applicable to a dentist treating a patient with the conditions with
which Leonard presented and as to breaches of the standard. See TEX. CIV. PRAC. &
REM. CODE § 74.402; see also TEX. R. EVID. 702. Accordingly, we hold that the trial
court did not abuse its discretion in denying appellants’ motion to dismiss Leonard’s
claim on the ground that Burdine is not qualified to render an expert report.
We overrule appellants’ first issue.
2. Standard of Care and Breach
In their second issue, appellants argue that Dr. Burdine’s report is
substantively inadequate as to the applicable standard of care and breach because
Burdine’s report is “internally inconsistent” and “conclusory.”
Identifying the standard of care in a health care liability claim is critical:
“Whether a defendant breached his or her duty to a patient cannot be determined
16
absent specific information about what the defendant should have done differently.”
Palacios, 46 S.W.3d at 880. Again, an expert report must provide a “fair summary”
of the expert’s opinion regarding the applicable standard of care and the manner in
which the care rendered by the health care provider failed to meet the standard. See
TEX. CIV. PRAC. & REM. CODE § 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.
In his report, Dr. Burdine explains that “the standard of care requires that a
complete oral, periodontal, occlusal and restorative exam, with both functional and
esthetic considerations being made prior to any comprehensive treatment and all
treatment options be presented to the patient.” And, such discussion “must include
considerations as to the patient’s goals.” The standard of care also requires that
mounted models of the patient’s dentition be created in order to analyze and
determine the options for restoration of the natural dentition. The standard of care
further requires that a surgeon operate in a clean environment and thus that all oral
disease be identified and treated prior to comprehensive restorative therapy or oral
surgery. And, the standard of care requires that restorations be properly fitted and
functional. Thus, Dr. Burdine clearly identifies the pertinent standard of care for
comprehensive, restorative dental treatment. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(r)(6); Palacios, 46 S.W.3d at 880.
17
With respect to breach, Dr. Burdine opines in his report that, notwithstanding
that Dr. Kline’s medical records establish that Leonard’s teeth were “certainly
salvageable” and that Leonard stated to Dr. Kline that he “wanted to keep as many
remaining teeth as possible,” “the only recommendation made by Dr. Kline was to
extract all of [Leonard’s] erupted teeth and the construction of upper and lower
prosthetic replacements, at a cost of around $50,000.” Burdine opines that Kline
breached the standard of care by not discussing all treatment options with Leonard,
such as periodontal therapy, routine restorative work, partial denture prostheses,
implants, and bridges. And, Burdine notes that “there is no indication that models
were mounted,” i.e., that models of Leonard’s teeth were created to evaluate the way
in which they fit together naturally.
Dr. Burdine also opines that Dr. Kline, after noting on his anesthesia record
that Leonard had periodontal disease, breached the standard of care by making “no
effort” to refer Leonard for a periodontal evaluation or to treat his periodontal disease
before “embarking on this extreme treatment plan.” And, Kline breached the
standard of care by providing Leonard with ill-fitting, non-functional implants and
prostheses, that, despite at least 65 follow-up visits over the course of five years,
were “never properly completed.”
Appellants assert that Dr. Burdine’s expert report is inadequate because it
contains contradictory statements. For instance, Burdine’s statement that “it was
18
discussed with Mr. Leonard the options of saving versus extracting his teeth, his
periodontal status, and bruxism” contradicts his assertion that Dr. Kline breached
the standard of care by failing to discuss all treatment options. Thus, appellants
assert, “the standard of care does not appear to have been breached.”
In our analysis of the statutory adequacy of an expert report, we do not
determine whether the expert’s conclusions are correct, but only whether the analysis
used to reach them is reliable. See Keo, 76 S.W.3d at 734; see also Gannon v. Wyche,
321 S.W.3d 881, 892 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“Even
assuming conflicts exist between the facts on which [the expert] relies and the
medical records, . . . [a]ccepting the premise that an expert’s report may not
contradict the medical records in such a case would preclude a plaintiff from ever
being able to satisfy the expert-report requirement. Further, the credibility and
weight to be given to the facts supporting the expert’s opinion is an issue for trial.”).
Dr. Burdine opines, based on his review of the medical records, that the only
treatment option that Dr. Kline presented to Leonard was the extraction of all of his
teeth. This is sufficient to satisfy the statute. See Scoresby, 346 S.W.3d a 556.
Appellants further complain that the report requires impermissible inferences.
For instance, Dr. Burdine infers that Dr. Kline failed to mount models of Leonard’s
dentition based on there being no such models noted in his medical record. Section
74.351 does not prohibit experts, as opposed to courts, from making inferences based
19
upon silence in a patient’s medical record. See Clavijo v. Fomby, No. 01-17-00120-
CV, 2018 WL 2976116, at *10 (Tex. App.—Houston [1st Dist.] June 14, 2018, pet.
denied) (mem. op.) (holding that expert was not prohibited from inferring, based on
lack of documented wound evaluation, that such did not occur); Quinones v. Pin,
298 S.W.3d 806, 813 (Tex. App.—Dallas 2009, no pet.) (holding that medical expert
properly relied on silence in medical record to support inferences); Granbury Minor
Emergency Clinic v. Thiel, 296 S.W.3d 261, 265 (Tex. App.—Fort Worth 2009, no
pet.) (noting that section 74.351 does not prohibit experts, as opposed to courts, from
making inferences based on patient’s medical history); see also Gannon, 321 S.W.3d
at 892 (noting that whether expert’s factual inferences are accurate is question for
fact finder and should not be considered when ruling on section 74.351 motion to
dismiss).
We conclude that the trial court could have reasonably concluded that Dr.
Burdine’s report represents a “good faith effort” to inform Dr. Kline of the specific
conduct called into question, the standard of care that should have been followed,
and what he should have done differently. See Palacios, 46 S.W.3d at 880.
Accordingly, we hold that the trial court did not abuse its discretion in denying
appellants’ motion to dismiss Leonard’s health care liability claim on the ground
that Burdine’s expert report was inadequate as to the applicable standard of care and
the manner in which it was breached.
20
We overrule appellants’ second issue.
3. Causation
In their third issue, appellants argue that Dr. Burdine’s expert report is
inadequate as to the element of causation because Dr. Burdine “fails to link the
damages sustained by Leonard to any specific breach of an applicable standard of
care.” Appellants assert that “Burdine’s report never makes clear what actions Dr.
Kline took to cause the alleged damages” and “fail[s] to disprove the possible
alternative that Leonard’s bruxism was the cause of the failed treatment.”
An expert report must provide a fair summary of the expert’s opinions
regarding the causal relationship between the failure of a health care provider to
provide care in accord with the pertinent standard of care and the injury, harm, or
damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A causal
relationship is established by proof that the negligent act or omission constituted a
substantial factor in bringing about the harm and that, 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.). 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; Cornejo v.
Hilgers, 446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
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The expert must simply provide some basis that a defendant’s act or omission
proximately caused injury. Wright, 79 S.W.3d at 53. And, the expert must explain
the basis of his statements and link his 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.
Again, 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. In re McAllen Med. Ctr., 275 S.W.3d at 463 & n.14.
However, section 74.351 does not prohibit experts, as opposed to courts, from
making inferences based on medical history. Clavijo, 2018 WL 2976116, at *10.
In his expert report, Dr. Burdine opines that Dr. Kline’s failure to discuss with
Leonard all of his treatment options and to heed Leonard’s desire to keep as many
teeth as possible, caused Leonard to unnecessarily consent to the extraction of all of
his teeth. Burdine opines that the record of Kline’s exam, although cursory and
limited, indicates “adequate bone on the FMX,” “minimal pocket probing on the
probe chart,” and that the teeth were “stable.” Thus, he opines, Leonard’s teeth were
“certainly salvageable.”
Dr. Burdine further opines that a periodontist acting with ordinary care would
have foreseen that Leonard, having not visited a dentist for five years prior to
presenting for his initial treatment, would have a build-up of debris and
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inflammation in his mouth. And, Dr. Kline noted on his anesthesia report that
Leonard had periodontal disease. Burdine opines that Kline’s failure to refer
Leonard for a periodontal evaluation and failure to treat his disease before extracting
all of his teeth caused the progression of his infection, implant failure, soft tissue
loss, bone loss, and pain.
Burdine further opines that Dr. Kline’s breaches of the standard of care with
respect to providing Leonard’s implants and prostheses caused his “excessively long
course of treatment,” failed outcome, pain, difficulty speaking and chewing, social
embarrassment, and loss of an exorbitant amount of time and money on a failed
restorative treatment and repair.
Appellants assert that the report is inadequate with respect to causation
because Dr. Burdine does not address the alternative possibility that Leonard’s failed
restoration was caused by bruxism, i.e., grinding or clenching his teeth. Again,
however, an expert report need not anticipate or rebut all possible defensive theories
that may ultimately be presented to the trial court. See Wright, 79 S.W.3d at 52;
Cornejo, 446 S.W.3d at 123.
We conclude that the trial court could have reasonably concluded that Dr.
Burdine’s expert report represents an objective good faith effort to inform Dr. Kline
of the causal relationship between his failure to provide care in accord with the
pertinent standards of care and the injury, harm, or damages claimed. See Palacios,
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46 S.W.3d at 879; Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (emphasizing that expert reports “are simply a preliminary
method to show a plaintiff has a viable cause of action that is not frivolous or without
expert support”). Accordingly, we hold that the trial court did not abuse its
discretion in denying appellants’ motion to dismiss Leonard’s health care liability
claim on the ground that the expert report is inadequate with respect to the element
of causation.
We overrule appellants’ third issue.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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