Hervy Hiner, Marisa Turner Johnson, H.H. Hiner, P.C. and Southeast Texas Nephrology Associates, P.A. v. Lee "Pete" Burnell Gaspard ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-07-240 CV ____________________

HERVY HINER, MARISA TURNER JOHNSON, H.H. HINER, P.C., AND SOUTHEAST TEXAS NEPHROLOGY ASSOCIATES, P.A., Appellants

V.

LEE "PETE" BURNELL GASPARD, Appellee

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-178-245

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MEMORANDUM OPINION

In this medical malpractice lawsuit brought by appellee Lee "Pete" Burnell Gaspard, appellants Hervy Hiner, M.D., Marisa Turner Johnson, M.D., H.H. Hiner, P.C., and Southeast Texas Nephrology Associates, P.A. ("STNA") appeal the denial of their motion challenging Gaspard's expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2006). Appellants present three issues for our review. We affirm the trial court's judgment.

Background

Appellee Lee "Pete" Burnell Gaspard sued appellants Hervy Hiner, M.D., Marisa Turner Johnson, M.D., H.H. Hiner, P.C., STNA, and other defendants for alleged medical malpractice. Gaspard alleged that while he was undergoing dialysis via a skin graft on his arm, the graft became infected, causing injury and permanent disability. Gaspard filed an expert report by Juan Carlos Ayus, M.D., a specialist in nephrology and internal medicine. In the report, Ayus stated that he knows the standard of care required of physicians practicing under the same or similar circumstances as Hiner and Johnson. Ayus's report also explained that although symptoms of an infection in Gaspard's graft developed on November 30, 2004, and the infection was diagnosed on December 3, 2004, surgery to remove the graft was not performed "until December 8, 2004, a full five days later." Ayus's report further stated that "[t]he standard of care with regard to the treatment in a dialysis patient like Mr. Gaspard is that immediately upon diagnosis of an infection you remove the source. You should immediately have surgery at the AV graft to remove access for infection."

Ayus's report explained as follows with respect to causation:

If Mr. Gaspard ha[d] the graft removed immediately upon the diagnosis of an infection, then the AV graft area that allows immediate access into the blood stream would be stopped. The standard of care then is to culture the wound, do blood work, and immediately get Mr. Gaspard on broad spectrum antibiotics.

In my opinion within a reasonable degree of medical probability, if Mr. Gaspard had the surgery to remove the infected graft on December 3, 2004, which should have been done considering his chills and redness and the diagnosis of an infection. . ., then the infection would have been controllable and would not have caused the significant damage that it ended up causing, including getting into Mr. Gaspard's spine and causing prolonged disability.

In the concluding section of the report, Ayus opined that if Drs. Hiner and Johnson

had implemented and followed appropriate infection control standards and policy, both during the administration of dialysis and when it became apparent Mr. Gaspard had contracted an infection, and provided Mr. Gaspard the proper treatment, including wound culture, IV antibiotics, and removal of the graft on or about December 3, 2004, then the access to the blood stream would have been prevented for five days and more likely than not the infection would not have spread throughout Mr. Gaspard's body and caused the severe infection and resulting injuries he suffered.

Appellants filed a motion to dismiss that challenged the adequacy of Ayus's report. See id. Specifically, appellants contended the report did not "identify defendants by name on the issues of standard of care, breach of standard of care, and causation[,]" that Ayus did not provide a factual basis for his opinions, and that the report "does not establish the specialties and roles of the defendants." After holding an oral hearing, the trial court found Ayus's report inadequate, but granted Gaspard a thirty-day extension to provide a report that met the requirements of section 74.351. See id. § 74.351(c).

Gaspard filed a report by a second expert, David T. Lowenthal, M.D., within the 120-day deadline for filing expert reports. See id. § 74.351(a). ⁽¹⁾ In the report, Lowenthal, a board-eligible nephrologist, stated that Gaspard complained of fever and chills on December 1, 2004, and blood cultures were performed on that date. Lowenthal's report further stated that on that date, Johnson examined Gaspard, noted that Gaspard's arm was swollen near his graft, that Gaspard "had infiltration with his last needle stick[,]" and that Gaspard had chills. Lowenthal's report explained as follows: "This is significant considering the fact of [sic] Ms. Gaspard's affidavit that Mr. Gaspard had problems dating at least 2 days before this visit. The problems noted in Ms. Gaspard's affidavit are signs and symptoms of infection."

Lowenthal opined that the standard of care for Johnson was to examine Gaspard, to note her findings, to obtain blood cultures, and to give an appropriate antibiotic, as well as "to recognize the significant potential for a major infection in an immuno-compromised patient such as Mr. Gaspard and follow that patient carefully." According to Lowenthal, the standard of care also required Johnson "to recognize that the infection was stemming from the AV graft and assure that the graft was removed promptly to eliminate the spread of the infection." Lowenthal further opined that the standard of care required hospitalization of immuno-compromised patients such as Gaspard "to allow for proper antibiotic therapy." Lowenthal's report stated that if Johnson had assured that the AV graft was promptly removed, "the infection would have been avoided with hospitalization and antibiotics."

Lowenthal noted that on December 3, 2004, Johnson was aware that Gaspard had redness and swelling, and he further explained, "It is inconceivable to me that any physician would not immediately hospitalize and mandate the AV graft be taken out after being told [by another physician] that a patient was systemically infected from the graft." Lowenthal opined that Johnson fell below the standard of care by not mandating removal of the AV graft on December 3, 2004, since the graft "was emitting the infection directly into Mr. Gaspard's blood stream."

With respect to Hiner, Lowenthal's report explains that another physician's notes indicate that Hiner was the referring physician, and Lowenthal opines that "we must assume that both Dr. Johnson and Dr. Hiner had examined [Gaspard] on 12-3-04." In the report, Lowenthal noted, "Dr. Marisa Johnson and Dr. Hervy Hiner are both nephrologists and I base my opinions above on what a reasonably prudent nephrologist would do in the same or similar circumstances." According to Lowenthal, Hiner had a duty to perform a physical examination of Gaspard, to note his findings, and to order immediate removal of the AV graft. In the report, Lowenthal explained that Hiner breached the standard of care by failing to make notes of his physical examination of Gaspard, as well as by not assuring that Gaspard's AV graft was removed. Lowenthal explained that his "previous statement about the standard of care and medical causation on 12-3-04 applies equally to Dr. Hiner because . . . [Gaspard] was referred to [another physician] by Dr. Hiner." Lowenthal's report concluded as follows:

Ultimately, Mr. Gaspard had his AV graft removed on 12-8-04. Unfortunately for Mr. Gaspard, it was too late to eliminate the significant infection which ultimately le[]d to long term hospitalization and osteomyelitis.

If Dr. Johnson or Dr. Hiner had exercised the standard of care and ordered removal of the AV graft . . ., Mr. Gaspard's infection could have been controlled and eliminated in a reasonable period of time and the ultimate catastrophic infection and osteomyelitis would have been eliminated.

Attached to Lowenthal's report was an affidavit by Gaspard's wife, Lynda. Both Dr. Ayus and Dr. Lowenthal stated in their respective reports that they had reviewed numerous medical records regarding Gaspard, as well as Lynda's affidavit. In the affidavit, Lynda stated that when she picked her husband up on November 29, 2004, a nurse approached her and told her that she "'stuck [Gaspard] with the same needle three times.'" Lynda noted that the next day, Gaspard developed fever and chills, and his arm "was turning red." According to Lynda's affidavit, she had to pick up Gaspard early from dialysis on December 1 because he had chills and fever. Lynda also noted that on December 2, Gaspard "was still sick with chills and fever and his arm was red." According to Lynda, on December 3, 2004, Gaspard had an appointment with another physician, who determined that "the graft in Pete's arm could no longer be used because he had an infection in his graft." Lynda averred that Gaspard was "still getting sick" on December 4-5, and his arm was "very inflamed" and "his upper back started hurting him." Lynda further explained that on December 6, 2004, another physician told Johnson to remove the graft, and Gaspard was still suffering from pain "in his upper back and right shoulder area." Lynda explained that in addition to the December 8 surgery to remove the infected graft, Gaspard required cervical surgery in February of 2005. Lynda's affidavit began and concluded with a statement that the matters in the affidavit are within her personal knowledge and are true and correct.

Appellants objected to Lynda's affidavit, as well as to Lowenthal's report, and re-urged their motion to dismiss. After holding a second oral hearing, the trial court issued a letter ruling and subsequently entered an order denying appellants' motion to dismiss and overruling appellants' objections to Lynda's affidavit. Appellants then filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2006).

Pertinent Law

We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

A plaintiff asserting a healthcare liability claim must provide each defendant physician and healthcare provider with an expert report no later than the 120th day after filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The statute defines "expert report" as follows:

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). If a plaintiff furnishes the required report within the time permitted, the defendant may file a motion challenging the report. See id. § 74.351(l).

The statute provides that the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. When determining whether the report represents a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. To constitute a good-faith effort, the report "must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." Palacios, 46 S.W.3d at 875.

When a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant's individual acts and the injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6) (A claimant must provide each defendant with an expert report that sets forth the manner in which the care rendered failed to meet the standards of care and the causal relationship between that failure and the injuries claimed.); Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex. App.--San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23 (Tex. App.--Houston [14th Dist.] 2001, no pet.). An expert report may not assert that multiple defendants are all negligent for failing to meet the standard of care without providing an explanation of how each defendant breached the standard of care and how that breach caused or contributed to the cause of injury. Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.--Corpus Christi 2004, no pet.). Although an expert report need not marshal and present all of the plaintiff's proof, a report that omits any of the elements required by the statute does not constitute a good-faith effort. Palacios, 46 S.W.3d at 878-79.

Issue One

In their first issue, appellants contend the trial court erred in denying their motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). Specifically, appellants argue as follows: (1) the expert reports do not identify appellants by name and do not address standard of care, breach of the standard of care, and causation as to each defendant, (2) the experts do not provide a factual basis for their opinions, (3) Dr. Ayus opines that Johnson met the standard of care, (4) the experts do not establish that they are qualified to render opinions regarding each defendant, and (5) the experts' reports are fatally deficient under Palacios. See Palacios, 46 S.W.3d 873.

Both Ayus's report and Lowenthal's report identify Hiner and Johnson by name. Therefore, appellants' contention to the contrary is incorrect. Neither report mentions STNA or H.H. Hiner, P.C. by name. Contrary to appellants' assertion, Ayus's report does not state that Johnson's treatment of Gaspard met the standard of care. Ayus's report states that he is a nephrologist; that the standard of care is to remove the source of infection immediately upon diagnosis of infection; that Johnson and Hiner breached the standard of care by failing to order surgical removal of the graft until five days after Gaspard's infection was diagnosed; and that this breach of the standard of care caused Gaspard's injury and disability because, had the graft been removed sooner, the infection "would not have spread throughout Mr. Gaspard's body and caused the severe infection and resulting injuries he suffered."

Lowenthal's report states that he is a nephrologist, that both Johnson and Hiner are nephrologists, ⁽²⁾ and that the standard of care for Johnson was to recognize that the graft was infected and to insure that the graft was promptly removed to prevent the infection from spreading. Lowenthal also explained that Johnson breached the standard of care by failing to order removal of the graft on the day the infection was diagnosed (December 3), and that if Johnson had not fallen below the standard of care, "the infection would have been avoided with hospitalization and antibiotics." According to Lowenthal's report, the same standard of care (i.e. to order immediate removal of the graft) applied to both Johnson and Hiner, Hiner breached the standard of care by failing to make notes of his examination of Gaspard and failing to insure that Gaspard's graft was removed, and Hiner's failure to exercise the standard of care resulted in "the ultimate catastrophic infection and osteomyelitis. . . ."

We find that the reports of Ayus and Lowenthal together set forth the applicable standard of care as to Johnson and Hiner, how each physician breached the standard of care, and how the breach of the standard of care caused Gaspard's injuries. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875. The reports set forth the standard of care applicable to both Johnson and Hiner and explain the causal relationship between the acts of each physician and Gaspard's injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6); Taylor, 169 S.W.3d at 244; Doades, 94 S.W.3d at 671-72. Furthermore, with respect to STNA and H.H. Hiner, P.C., Gaspard's claims against those entities necessarily involve only their vicarious liability for the actions of Johnson and Gaspard, since professional entities cannot practice medicine. See Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.--Dallas 2006, no pet.); In re CHCA Conroe, L.P., No. 09-04-453 CV, 2004 WL 2671863, at *1 (Tex. App.--Beaumont Nov. 23, 2004) (orig. proceeding) (mem. op.); Clements v. Conard, 21 S.W.3d 514, 522-23 (Tex. App.--Amarillo 2000, pet. denied). The conduct of STNA and H.H. Hiner, P.C. is not measured by a medical standard of care; rather, under the facts of this case, their liability is solely vicarious. See In re CHCA Conroe, L.P., 2004 WL 2671863, at *1. Therefore, Gaspard was not required to provide an expert report as to STNA and H.H. Hiner, P.C. See id.

Appellants also complain that the reports of Ayus and Lowenthal do not provide a factual basis for their opinions. Ayus's report stated that he had reviewed Gaspard's records from Christus St. Elizabeth Hospital, STNA, Dr. Jeffrey Goldstein, Dr. Erwin Lo, Renal Care Group, Christus St. Mary Hospital, Dr. Allen Williamson, and a "[h]emodialysis flowsheet." Lowenthal's report stated that he had reviewed Gaspard's medical records from the Renal Care Group, Dr. Goldstein, St. Elizabeth Hospital, and Mrs. Gaspard's affidavit. Both experts' reports discussed Gaspard's symptoms, such as fever, chills, and redness on his arm. Lowenthal's report explains that fever, chills, and redness are signs of infection. Ayus and Lowenthal both gave a chronological history of Gaspard's infection and its diagnosis based upon the records they reviewed. Ayus and Lowenthal both note that the infection in Gaspard's graft was diagnosed on December 3, 2004, yet the graft was not removed until December 8, 2004, allowing the infection to spread through Gaspard's bloodstream for an additional five days. We find that each expert's report adequately sets forth the factual basis for the opinions expressed therein. See generally Palacios, 46 S.W.3d at 875. We overrule issue one.

Issue Two

In their second issue, appellants assert that the trial court erred in considering Lowenthal's report rather than an amended report from Ayus. Section 74.351(i) of the Medical Liability Act provides as follows:

[A] claimant may satisfy any requirement of this section for serving an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i) (emphasis added). As discussed above, a claimant must serve his expert report within 120 days after filing his original petition. Id. § 74.351(a).

As support for their argument that the trial court improperly allowed supplementation of Ayus's report with Lowenthal's, appellants cite Danos v. Rittger, No. 01-06-00350-CV, 2007 WL 625816 (Tex. App.--Houston [1st Dist.] Mar. 1, 2007, pet. filed). ⁽³⁾ In Danos, the First Court of Appeals held that the trial court erred by permitting the plaintiff to cure the defects in her expert report by filing a report from a second expert after the 120-day deadline had passed, but during a 30-day extension granted by the trial court. Id. at *3-*4. However, in the case sub judice, Gaspard filed Lowenthal's report within the 120-day deadline. Therefore, Danos is inapposite, and the trial court did not err in permitting Gaspard to cure the deficiencies in Ayus's report by filing Lowenthal's report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). We overrule issue two.

In their third issue, appellants argue that the trial court erred in overruling their objections to Lynda Gaspard's affidavit "because her affidavit is incompetent, contains hearsay, and is based on conclusions, speculation, and assumes facts." As discussed above, both Ayus and Lowenthal reviewed Lynda Gaspard's affidavit before preparing their reports. Appellants cite no authorities that hold that an expert who is preparing a report as required by Chapter 74 may not review documents that would not be admissible into evidence at trial. In addition, we note that Chapter 74 provides that any expert reports served "under this section" are not admissible into evidence and may not be used in "a deposition, trial, or other proceeding." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(k)(2) (Vernon Supp. 2006). Because Chapter 74 prohibits the introduction of expert reports into evidence, the Legislature likely did not intend that expert reports and the evidence reviewed by experts in preparing the reports must comply with the rules of evidence. See generally id. Furthermore, assuming arguendo that the rules of evidence apply to expert reports, Rule 703 provides as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Tex. R. Evid. 703. Appellants have cited no authorities supporting the proposition that Lynda Gaspard's affidavit did not supply the type of facts or data reasonably relied upon by medical experts in preparing the reports required by Chapter 74. We overrule appellants' third issue and affirm the trial court's judgment.

AFFIRMED.

____________________________

STEVE McKEITHEN

Chief Justice

Submitted on August 7, 2007

Opinion Delivered September 6, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Section 74.351(a) provides: "In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney one or more expert reports . . . for each physician or health care provider against whom a liability claim is asserted." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

2. This appeal involves only Gaspard's health care liability claims against Johnson, Hiner, and the health care entities for which they worked. Ayus and Lowenthal need not state or address the standards of care, breach, and causation for other specialists who treated Gaspard. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i) ("Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers. . . .").

3. As part of their argument under issue two, appellants assert that section 74.351(i) "was enacted to address two specific situations[:] suits where there are multiple defendants who practice in different specialties and suits where the liability expert . . . is not qualified to render opinions on causation." See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). Because appellants failed to cite any authorities that so hold, we do not address this argument. See Tex. R. App. P. 38.1(h).