Billie Lynn Raines and Richard Benelayton Raines v. Ronald D. Stephens, M.D. ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-04-00137-CV

Billie Lynn Raines

and Richard Benelayton Raines,

                                                                      Appellants

 v.

Ronald D. Stephens, M.D., et al.,

                                                                      Appellee

From the 87th District Court

Limestone County, Texas

Trial Court # 26,494-B

MEMORANDUM Opinion

This is a medical malpractice case involving bladder injuries resulting from a “bungled” hysterectomy performed on Billie Lynn Raines.  Billie and Richard Raines sued Dr. Ronald D. Stephens[1] under former article 4590i of the Texas Medical Liability and Insurance Improvement Act of Texas (the “Act”).[2]  Dr. Stephens challenged the sufficiency of the Raines’ expert report for failure to include the required causation element and that the expert was not qualified.  The trial court dismissed the cause of action against Dr. Stephens with prejudice.  The Raines appeal in two issues: trial court abused discretion in finding (1) the expert report did not include the causation requirement and (2) the expert was not qualified.

We will overrule issue one and will not need to address issue two.  We will affirm the judgment.

BACKGROUND

Facts

Billie, a 35-year-old woman was suffering from abnormal menstrual bleeding (metrorrhagia and menorrhagia).  She saw Dr. Stephens, a general family physician, and wanted a hysterectomy to fix her problem.  She told Dr. Stephens that she had been on oral contraceptives for a year, but they had caused weight gain.  She also told him that she had an ultrasound and uterine scope performed.  Her mother and sister had also already had hysterectomies. Dr. Stephens referred Billie to Dr. Ramirez, a general surgeon.  Dr. Ramirez performed a hysterectomy, and during the surgery, he removed a large portion of Billie’s bladder and transsected her ureters causing permanent injuries to her bladder.  Billie alleges that she will never regain normal bladder function.  According to her expert, Billie had an endometrial polyp that was the cause of her bleeding, and it could have been removed with dilation and curettage, thereby avoiding the hysterectomy.

Petition

The Raines sued Dr. Stephens stating in their petition:

DR. STEPHENS’ NEGLIGENCE

15. Dr. Stephens practiced below the standard of reasonable medical care in failing to investigate the cause of Mrs. Raines’ complaints of metrorrhagia and menorrhagia. In this respect, Plaintiffs would show that Dr. Stephens was negligent as follows:

(1) In failing to perform a pre-operative endometrial biopsy or hysteroscopy with fractional D&C to evaluate the source of the persistent uterine bleeding problems experienced by Mrs. Raines.  Had Dr. Stephens performed this simple procedure, he would have discovered what was later revealed in the pathology report post-surgery that a “sizeable, somewhat pedunculated endometrial polyp was present.” Significance of the presence of this polyp is that such endometrial polyps commonly cause metrorrhagia and often cause menorrhagia.  Had Stephens investigated the cause of Mrs. Raines’ symptoms and followed standard medical practice, he would have discovered the polyp, addressed that problem, and avoided the surgical procedure which turned out to be disastrous for Mrs. Raines.

(2) Dr. Stephens failed to remove the endometrial polyp and place Mrs. Raines on oral contraceptives for two to three months to see if normal menstrual cycles would resume before resorting to the hysterectomy procedure.  Had the proper diagnostic work up been performed by Dr. Stephens, the standard of care would have led him to remove the endometrial polyp, place Mrs. Raines on oral contraceptives for two or three months, most likely allowing Mrs. Raines to resume her normal menstrual cycles, and avoid the hysterectomy procedure.

MRS. RAINES’ INJURIES

16. As a direct and proximate result of the negligence of Drs. Ramirez and Stephens, as set forth above, Mrs. Raines suffered severe, permanent and life-changing injuries.  During the operative procedure of March 26, 2001, Dr. Ramirez removed a large portion of Mrs. Raines’ bladder and transsected her ureters.  These injuries have resulted in Mrs. Raines undergoing five subsequent surgeries in an attempt to establish improved bladder function.  Mrs. Raines will never regain normal bladder function despite the extensive subsequent medical treatment which she has received and which she will continue to receive in the future.

MRS. RAINES’ DAMAGES

17. As a direct and proximate result of the injuries which she received due to the negligence of Drs. Ramirez and Stephens, as outlined above, Mrs. Raines suffered urological injuries which have resulted in the following elements of damage, to-wit:

(a) Physical pain and mental anguish in the past;

(b) Physical pain and mental anguish in the future;

(c) Physical impairment in the past;

(d) Physical impairment in the future;

(e) Loss of earning capacity in the past;

(f) Loss of earning capacity in the future;

(g) Reasonable and necessary medical expenses in the past;

(h) Reasonable and necessary medical expenses in the future.

MR. RAINES’ DAMAGES

18. As a result of the urological injuries sustained by his wife, Mr. Raines has sustained a loss of consortium, or a loss of affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love and felicity necessary to a successful marriage in the past, and in reasonable probability, will sustain such loss of consortium in the future.  In addition, Mr. Raines has suffered a loss of his wife’s household services in the past and a loss of his wife’s capacity to perform household services in reasonable probability in the future.

PLAINTIFFS’ CLAIM FOR COMPENSATION

19. As a result of the urological injuries sustained by Mrs. Raines[,] Plaintiff have suffered damages within the jurisdictional limits of this Court.  In addition to such damages, Plaintiffs would show that they are entitled to prejudgment interest . . . . (Emphasis added).

Expert Report

In support of their lawsuit, the Raines retained Dr. Bruce Halbridge, a board certified obstetrician and gynecologist, to prepare a report giving his opinion on Dr. Stephens’ conduct.  Dr. Halbridge’s report and curriculum vitae do not show any training in family practice.  In the report, Dr. Halbridge states that Dr. Stephens’ assessment was: (1) irregular menses (menorrahagia); (2) the patient wanted a hysterectomy; and (3) schedule an appointment with Dr. Ramirez.  Dr. Halbridge states that “the standard of care requires that the patient’s Primary Care Physician perform medical and other diagnostic tests to determine if there is a medical or physical organic cause for the recurrent menorrahagia.” He lists eight tests that he claims Dr. Stephens should have performed, including a vaginal ultrasound.  Dr. Halbridge states:

It is very likely that a vaginal ultrasound performed prior to the hysterectomy on 3/26/01 would have demonstrated the presence of the endometrial polyp.  This undiagnosed polyp was the cause of Billie Raines recurrent mennorrhagia.  The polyp could have been easily removed at the time of a hysteroscopy with dilation and curettage avoiding the hysterectomy.

Dr. Stephens assisted Dr. Ramirez during the hysterectomy.  As a Family Practitioner, Dr. Stephens did not have the extensive surgical training that gynecologists possess.  Dr. Stephens could not be of significant help in dissection required to safely remove the uterus after separating it from the bladder. Gynecologists, not Family Practitioners should be assisting at difficult gynecologic surgeries such as Billie Raines hysterectomy. (Emphasis added).

ISSUE ONE: ADEQUACY OF THE REPORT

Arguments

The Raines claim the trial court abused its discretion when it determined that Dr. Halbridge’s expert report did not constitute a good-faith effort to meet the statutory requirements of former article 4590i.  Dr. Stephens challenges the causation element of the report and contends it does not meet the statutory requirements because it is conclusory in that it does not show how the failure to conduct the vaginal ultrasound caused Billie’s bladder injuries.

The Raines respond that their expert report includes the causation requirement. They argue that, from the four corners of the report, it “is easily understood to say that Dr. Stephens was negligent in failing to perform a differential diagnosis, including a pelvic ultrasound with vaginal probe, which would have detected the polyps, allowed their easy removal, cured Mrs. Raines of her abnormal menstrual bleeding, and made her hysterectomy unnecessary.”

Standard of Review

An expert report must provide “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.”  Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(r)(6) (repealed 2003) (emphasis added). If the plaintiff timely files an expert report and the defendant moves to dismiss based on the report’s inadequacy, the trial court must grant the motion “only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.”  See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002) (emphasis in original) (citing Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(l)).  To constitute a good-faith effort, the report must: (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit.  American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The trial court should look no further than the four corners of the report, because all of the information relevant to the inquiry is contained within the document’s four corners.  See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  We review a trial court's dismissal of a suit for failure to comply with the Act under an abuse of discretion standard.  Id.

Applicable Law

The Wright case is almost identical to this case.  In Wright, the Supreme Court held that the following statement in the expert report was insufficient to establish causation: “if the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then Wright would have had the possibility of a better outcome.”  Wright, 79 S.W.3d at 53.  The Wrights’ allegations stated that Bowie Hospital personnel did not diagnose Wright’s foot fracture, protect her foot, or review diagnostic tests ordered and administered at the hospital.  Id. at 50. As in Palacios, the Court again held that “the only information relevant to whether a report represents a good-faith effort to comply with the statutory requirements is the report itself.”  Id. at 53 (citing Palacios, 46 S.W.3d at 878). The Court goes on to state:

After reviewing this report, we conclude that the trial court could have reasonably determined that the report does not represent a good-faith effort to summarize the causal relationship between Bowie’s failure to meet the applicable standards of care and Barbara’s injury.  See TEX. REV. CIV. STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 879.  That is because the report simply opines that Barbara might have had “the possibility of a better outcome” without explaining how Bowie’s conduct caused injury to Barbara.  We cannot infer from this statement, as the Wrights ask us to, that Bowie’s alleged breach precluded Barbara from obtaining a quicker diagnosis and treatment for her foot.  Rather, the report must include the required information within its four corners.  See TEX. REV. CIV. STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 878.  Because the report lacks information linking the expert’s conclusion (that Barbara might have had a better outcome) to Bowie’s alleged breach (that it did not correctly read and act upon the x-rays), the trial court could have reasonably determined that the report was conclusory.  See Palacios, 46 S.W.3d at 880; Earle, 998 S.W.2d at 890.  A conclusory report does not meet the Act’s requirements, because it does not satisfy the Palacios test.  Palacios, 46 S.W.3d at 879.

Id. (emphasis added).

To evaluate whether the expert report linked the alleged breach (failure to correctly read and act upon the x-rays) to the claimed injuries/damages (damages to her foot from an undiagnosed fracture), as required by section (r)(6), the Court must have also considered the pleadings to determine the claimed damages/injuries.  Following Wright, we must: (1) consider the four corners of the pleadings to determine the claimed injuries/damages; and (2) review the four corners of the expert report to determine if the alleged breach is linked to the claimed injuries/damages.[3]  Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(r)(6); Wright, 79 S.W.3d at 53.

Analysis

Claimed Injuries/Damages

A review of the four corners of the pleadings makes it clear that Billie is claiming urological injuries and bladder dysfunction.  Thus, we will review the four corners of the expert report to determine if the report is a good-faith effort to comply with subsection (r)(6)—does the report state the causal relationship between Dr. Stephens’ alleged failure to meet his standard of care and Billie’s urological injuries and bladder dysfunction.

Causation

The expert report need not marshal all of the plaintiff's proof, or present evidence as if the plaintiff was actually litigating the merits.  See Wright, 79 S.W.3d at 52-53; Palacios, 46 S.W.3d at 878.  No magic words such as “reasonable medical probability” are required for the report to comply with the Act.  Wright, 79 S.W.3d at 53.  However, a report that merely sets forth the expert's conclusions is insufficient.  Id. at 52. The expert must explain the basis of his statements to link his conclusions to the facts.  Id.

According to the four corners of the expert report, Dr. Stephens alleged breach was failing to perform the vaginal ultrasound.  The statements that the Raines rely on to meet the causation element do not provide any information linking Dr. Stephens’ alleged breach (failure to perform the vaginal ultrasound) to Billie’s claimed injuries and damages (bladder dysfunction/urological injuries).  We cannot infer from Dr. Halbridge’s statements that the hysterectomy would not have been performed at all, or properly performed, if Dr. Stephens had ordered the vaginal ultrasound and discovered the endometrial polyp.  In fact, Dr. Halbridge states that Billie wanted a hysterectomy.  Dr. Halbridge never mentions that the hysterectomy was “bungled” or that Billie has bladder injuries from the negligently performed hysterectomy.  At most, Dr. Halbridge finds that the hysterectomy may have been avoided.  His report does not link Dr. Stephens’ purported breach of the standard of care to Billie’s bladder injuries, and thus the report does not represent a good-faith effort to comply with former article 4590i’s requirement on causation.  See Wright, 79 S.W.3d at 52-53; Palacios, 46 S.W.3d at 878.  We note that the report states Dr. Stephens assisted in the surgery and alludes that Dr. Stephens was not qualified to assist in the surgery.  However, Dr. Halbridge does not describe any acts by Dr. Stephens during the surgery and never attempts to link any acts by Dr. Stephens during the surgery to Billie’s bladder injuries.

The report must provide sufficient specificity for the trial court to conclude the medical malpractice suit has merit.  Wright, 79 S.W.3d at 52.  Texas courts have long recognized that liability in a medical malpractice suit cannot be made to turn upon speculation or conjecture. See, e.g., Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785 (1949).  “The proof must establish causal connection beyond the point of conjecture.  It must show more than a possibility.”  Lenger, 455 S.W.2d at 706.  Accordingly, while a “fair summary” is something less than all the evidence necessary to establish causation at trial, even a fair summary must contain sufficiently specific information to demonstrate causation beyond mere conjecture in order to meet the Act's requirements and satisfy the Palacios test.  See Wright, 79 S.W.3d at 52.  Dr. Halbridge’s report fails to provide sufficiently specific information to show more than possibility and speculation on the element of causation of the injuries Billie now claims.  See Wright, 79 S.W.3d at 52; Lenger, 455 S.W.2d at 706.

We overrule the first issue.

CONCLUSION

Having overruled the Raines’ first issue, we need not reach their second issue. The trial court’s judgment dismissing the Raines’ claims with prejudice is affirmed.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed February 23, 2005

[CV06]

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    [1]       Billie also sued Dr. Roque Joel Ramirez, who performed the surgery, Surgeonone, Inc., and Parkview Regional Hospital, Inc.  These claims were separately resolved by the trial court.

    [2]       Article 4590i was amended in 1995 to include the requirements of an expert report and curriculum vitae. Act of May 18, 1995, 74th Leg., R.S., ch. 140, 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 11, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847, 884. Although it has been repealed by the codification, we refer throughout this opinion to the version in effect at the time Langley's claims were dismissed as “article 4590i.”

    [3]       This analysis is similar to the eight-corners analysis required to determine if insurers have a duty to defend where the court considers only the facts alleged in the four-corners of the pleadings of the underlying lawsuits and the language of the four-corners of the insurance contract.  See e.g., National Union Fire Ins. Co. v. Merchants Fast Motor Lines, 939 S.W.2d 139, 141 (Tex. 1997).