Nancy Jo Rodriguez v. the Walgreen Company and Sara Elizabeth McGuire ( 2015 )

ACCEPTED
03-14-00765-CV
4402607
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 2:11:03 PM
JEFFREY D. KYLE
CLERK
NO. 03–14–00765–CV
IN THE COURT OF APPEALS
FILED IN
FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AT AUSTIN AUSTIN, TEXAS
3/6/2015 2:11:03 PM
JEFFREY D. KYLE
NANCY JO RODRIGUEZ, Clerk
APPELLANT,
V.
THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE,
APPELLEES.
On Appeal from the 419th District Court
Travis County, Texas
BRIEF OF APPELLEES
JUDITH R. BLAKEWAY
State Bar No. 02434400
judith.blakeway@strasburger.com
CYNTHIA DAY GRIMES
State Bar No. 11436600
Cynthia.Grimes@strasburger.com
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
(210) 250-6003 Telephone
(210) 258-2706 Facsimile
ATTORNEYS FOR APPELLEES
1751449.6/SPSA/87282/0138/030615
Identity of Parties and Counsel
In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,
Appellees provide the following complete list of all parties and counsel to the trial
court’s order that forms the basis of this appeal.
Party Trial Counsel
NANCY JO RODRIGUEZ Lannie Todd Kelly
Appellant State Bar No. 24035049
THE CARLSON LAW FIRM, P.C.
11606 N. IH–35
Austin, TX 78753
Telephone: (512) 346–5688
Facsimile: (512) 719–4362
tkelly@carlsonattorneys.com
THE WALGREEN COMPANY, INC. CYNTHIA DAY GRIMES
and State Bar No. 11436600
SARA ELIZABETH MCGUIRE Cynthia.Grimes@strasburger.com
Appellees STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
(210) 250-6003 Telephone
(210) 258-2706 Facsimile
Trial Counsel
JUDITH R. BLAKEWAY
State Bar No. 02434400
judith.blakeway@strasburger.com
CYNTHIA DAY GRIMES
State Bar No. 11436600
Cynthia.Grimes@strasburger.com
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
(210) 250-6003 Telephone
(210) 258-2706 Facsimile
Appellate Counsel
ii
1751449.6/SPSA/87282/0138/030615
VIVEK GOSWAMI, M.D. and Chris Knudsen
AUSTIN HEART, PLLC State Bar No. 24041268
Defendants (not parties to this cknudsen@serpejones.com
appeal) nandrews@serpejones.com
Nicole Andrews
State Bar No. 00792335
SERPE JONES ANDREWS
CALLENDER & BELL, PLLC
2929 Allen Parkway, Suite 1600
Houston, Texas 77019
(713) 452–4400 Telephone
(713) 452–4499 Facsimile
ST. DAVID’S HEALTH CARE Missy Atwood
PARTNERSHIP State Bar No. 01428020
Defendant (not a party to this GERMER, BEAMAN & BROWN, PLLC
appeal) 301 Congress Avenue, Suite 1700
Austin, Texas 78701
(512) 472–0288 Telephone
(512) 472–0721 Facsimile
matwood@germer-austin.com
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Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ......................................................................................................iv
Table of Authorities ..................................................................................................vi
Statement of the Case................................................................................................. 1
Issue Presented ........................................................................................................... 1
Did the trial court abuse its discretion in dismissing Plaintiff’s claims
against Walgreen and McGuire? ..................................................................... 1
Statement of Facts ...................................................................................................... 1
Summary of Argument .............................................................................................. 4
Standard of Review .................................................................................................... 6
Argument.................................................................................................................... 8
I. A Chapter 74 report must be from a qualified expert and
address in non–conclusory terms the standard of care, breach
and causation. ........................................................................................ 8
II. The trial court did not abuse its discretion in dismissing claims
against Walgreen and McGuire. ............................................................ 9
A. Mr. Hardy’s report is deficient.................................................... 9
1. Mr. Hardy’s opinion is speculative and conclusory. ........ 9
2. Mr. Hardy is statutorily disqualified from
addressing causation. ...................................................... 11
3. Mr. Hardy’s report fails to distinguish between
multiple defendants......................................................... 13
4. Mr. Hardy is not qualified as a practicing
pharmacist. ...................................................................... 14
iv
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B. Dr. Breall’s expert report is deficient. ...................................... 15
1. Dr. Breall’s report does not even mention
Walgreen or McGuire. .................................................... 16
2. Dr. Breall’s report is speculative and conclusory. .......... 17
3. Dr. Breall is not qualified to testify to the standard
of care for a pharmacy or pharmacist. ............................ 19
Conclusion ............................................................................................................... 19
Certificate of Service ............................................................................................... 21
Certificate of Compliance ........................................................................................ 21
Appendix .................................................................................................................. 22
1. Order dated December 3, 2014 ........................................................... 22
2. Mr. Hardy’s CV and report ................................................................. 22
3. Dr. Breall’s CV and report .................................................................. 22
4. TEX. CIV. PRAC. & REM. CODE §74.351 .............................................. 22
5. TEX. CIV. PRAC. & REM. CODE §74.402 .............................................. 22
v
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Table of Authorities
Page(s)
CASES
American Transitional Care Centers of Texas Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001).......................................................................6, 7, 8, 9
Apodaca v. Russo,
228 S.W.3d 252 (Tex. App.–Austin 2007, no pet.) ............................................ 17
Austin Heart, P.A. v. Webb,
228 S.W.3d 276 (Tex. App.–Austin 2007, no pet.) ................................13, 14, 17
Austin Regional Clinic v. Power,
2012 Tex. App. LEXIS 5242 (Austin 2012, no pet.).......................................... 17
Bogar v. Esparza,
257 S.W.3d 354 (Tex. App.–Austin 2008, no pet.) ............................................ 17
Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002)...............................................................7, 9, 12, 13, 18
Broders v. Heise,
924 S.W.2d 148 (Tex. 1996) .............................................................................. 15
Constancio v. Bray,
266 S.W.3d 149 (Tex. App.–Austin 2008, no pet.) ............................................ 18
Cooper v. Arizpe,
No. 04–07–00743, 2008 Tex. App. LEXIS 2506 (Tex. App.–San
Antonio, April. 9, 2008, pet. denied) .................................................................. 10
Doades v. Syed,
94 S.W.3d 664 (Tex. App.–San Antonio 2002, no pet.) .................................... 13
Estate of Allen v. Polly Ryon Hosp. Auth.,
No. 01–04–00151–CV, 2005 Tex. App. LEXIS 1691 (Tex. App.–
Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) ....................................... 12
Fung v. Fischer,
365 S.W.3d 507 (Tex. App.–Austin 2012), overruled in part by Certified
EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) .........................................10, 16
vi
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Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010) ................................................................................ 7
Jernigan v. Langley,
195 S.W.3d 91 (Tex. 2006)...........................................................................6, 7, 9
Kocerek v. Colby,
No. 03–13–0057–CV, 2014 Tex. App. LEXIS 9336 (Tex. App.–Austin
2014, no pet.) ...................................................................................................... 18
Lenger v. Physician’s Gen. Hosp.,
455 S.W.2d 703 (Tex. 1970) .............................................................................. 12
McMenemy v. Holden,
No. 14–07–00365–CV, 2007 Tex. App. LEXIS 8830 (Tex. App.–
Houston [14th Dist.] Nov. 1, 2007, pet. denied) (mem. op.) .............................. 12
Murphy v. Mendoza,
234 S.W.3d 23 (Tex. App.–El Paso 2007, no pet.) ............................................ 11
Perez v. Daughters of Charity Health Servs. of Austin,
No. 03–08–00200–CV, 2008 WL 4531558 (Tex. App.–Austin, Oct. 10,
2008, no pet.) (mem. op.).................................................................................... 18
Reddy v. Hebner,
435 S.W.3d 323 (Tex. App.–Austin 2014, pet. filed) ........................................ 16
Rittmer v. Garza,
65 S.W.3d 718 (Tex. App.–Houston [14th Dist.] 2001, no pet.) ....................... 13
Samlowski v. Wooten,
332 S.W.3d 404 (Tex. 2011) ............................................................................ 7, 9
Scoresby v. Santillan,
346 S.W.3d 546 (Tex. 2011) ................................................................................ 9
Smith v. Wilson,
368 S.W.3d 574 (Tex. App.–Austin 2012, no pet.) ........................................ 7, 18
Taylor v. Christus Spohn Health Sys. Corp.,
169 S.W.3d 241 (Tex. App.–Corpus Christi 2004, no pet.) ............................... 14
vii
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Tenet Hospitals Ltd. v. De La Riva,
351 S.W.3d 398 (Tex. App.–El Paso 2011, no pet.) .......................................... 14
Walgreen Co. v. Hieger,
243 S.W.3d 183 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) ............... 12
Walker v. Gutierrez,
111 S.W.3d 56 (Tex. 2003)................................................................................... 7
STATUTES
TEX. CIV. PRAC. & REM. CODE 74.001(a)(10) .......................................................... 15
TEX. CIV. PRAC. & REM. CODE § 74.351 .................................................................... 8
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i)..................................................... 16
TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) ...................................................13, 18
TEX. CIV. PRAC. & REM. CODE § 74.402 ..................................................................... 19
TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1)–(3) .................................................. 14
TEX. CIV. PRAC. & REM. CODE § 74.402(c) ............................................................. 15
TEX. CIV. PRAC. & REM. CODE § 74.403(a).............................................................. 11
viii
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Statement of the Case
This is an interlocutory appeal from an order dismissing a health care
liability claim against Walgreen and its pharmacist McGuire for failure to serve
adequate expert reports. Ms. Rodriguez claims that the district court abused its
discretion in concluding that she failed to serve expert reports that comply with
Chapter 74 of the Texas Civil Practice and Remedies Code.
Issue Presented
Did the trial court abuse its discretion in dismissing Plaintiff’s claims
against Walgreen and McGuire?
Statement of Facts
Ms. Rodriguez sued her cardiologist, Dr. Goswami, Walgreen and its
pharmacist, McGuire, claiming that Defendants were negligent because after
Dr. Kessler (who was in the same group as Dr. Goswami) advised that Pradaxa be
discontinued, Walgreen continued to fill a prescription previously issued by
Dr. Goswami. C.R. 6. Dr. Goswami issued the prescription on February 14, 2012,
C.R. 335, with a prescription refill on March 16, 2012. C.R. 336. Ms. Rodriguez
alleged that continued use of Pradaxa caused her to be admitted to the hospital with
hypertension, acute kidney injury and gastrointestinal bleeding. C.R. 6. In support
of her claim, she served reports from Jeffrey Hardy, Pharm. D., M.S., C.R. 39–42,
and Dr. Jeffrey Breall, a professor of clinical medicine. C.R. 43–44.
1751449.6/SPSA/87282/0138/030615
Mr. Hardy opined that Walgreen, McGuire and a pharmacist with the initials
MDD breached the applicable standard of care because (1) they failed to verify
whether the prescription previously written by Dr. Goswami for Pradaxa should be
continued and (2) dispensed a prescription for Pradaxa after Dr. Kessler indicated
that it be discontinued.
His report stated:
Standards of Care
The standard of care required to fill Ms. Rodriguez’s dabigatran
etexilate (PRADAXA) prescription are as follows:
 Pharmacists have a duty to contact the prescribing
physician if patient harm is possible to validate the
prescription
 Pharmacists are responsible for ensuring a prescription is
accurately communicated and dispensed as intended by
the prescriber
 Pharmacists are responsible for communicating with the
prescribing physician to validate continuation of therapy
when no refills remain on a prescription
Breach of Standard of Care
Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist
with initials MDD breached the applicable standards of care.
Specifically, Walgreens, Sara Elizabeth McGuire (pharmacist), and
pharmacist with initials MDD conduct fell below the standard of care
by:
 Continuing to dispense a prescription for dabigatran
etexilate (PRADAXA) after the prescribing physician
indicated it should be discontinued; and
1751449.6/SPSA/87282/0138/030615 2
 Failing to verify if the prescription for dabigatran
etexilate (PRADAXA) should be continued with the
prescribing physician
Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist
with initials MDD should have provided Ms. Rodriguez with the care
and treatment in the standard of care paragraph above. However, this
expected care was not provided to Ms. Rodriguez as set forth in the
preceding paragraph.
C.R. 40–41.
Plaintiff did not offer Mr. Hardy’s opinion as to causation, but instead relied
on the report of Dr. Breall. C.R. 359; R.R. 32. Dr. Breall’s report did not mention
Walgreen or McGuire; it was instead directed solely to the conduct of Dr.
Goswami. C.R. 44. Dr. Breall stated the following about causation:
Failure to discontinue the use of Pradaxa was a direct cause of her
subsequent acute admission to the hospital with hypotension, acute
kidney injury and apparent gastrointestinal bleeding – known side
effects of the over–use of Pradaxa. Ms. Rodriguez’s entire
hospitalization was attributable to the failure to stop Pradaxa therapy
as ordered by Dr. Kessler. More likely than not, had the Pradaxa
medication been discontinued as requested, Ms. Rodriguez’s
hospitalization would never have needed to take place.
C.R. 44.
Walgreen and McGuire objected to both reports, C.R. 64–74, and moved to
dismiss. C.R. 212–20. The trial court granted their motion. C.R. 375–76.
Ms. Rodriguez appeals. Supp. C.R. 3–4.
1751449.6/SPSA/87282/0138/030615 3
Summary of Argument
The trial court did not abuse its discretion in dismissing Ms. Rodriguez’s
claims against Walgreen and McGuire. Her experts were not shown to be qualified
and their reports failed to implicate Walgreen or its pharmacists. Neither expert
provided a factual basis for his opinions. Both reports were based on the unstated
assumption that Walgreen and McGuire knew Dr. Kessler had instructed Ms.
Rodriguez to discontinue Pradaxa. Even when read together, there was no report
that implicated the conduct of Walgreen or its pharmacists because Mr. Hardy was
incompetent to render a report as to causation and Dr. Breall never even mentioned
Walgreen or McGuire in his report. The trial court’s dismissal should be affirmed.
The trial court did not abuse its discretion in finding Mr. Hardy’s report
deficient. First, his report is conclusory ––he fails to provide any facts to support
his conclusion about why Walgreen and its pharmacists failed to meet the standard
of care. He does not recite any facts about the date of Dr. Kessler’s advice to stop
Pradaxa, to whom the instruction may have been communicated, whether
Walgreen or its pharmacists ever had any notice of the advice, the circumstances
under which Walgreen continued to refill her Pradaxa prescription, or any other
relevant facts. If Walgreen received the prescription written by Dr. Goswami,
C.R. 335, and the five refills of Pradaxa, C.R. 336, and was not aware of
Dr. Kessler’s subsequent indication to stop using Pradaxa, there would be no
1751449.6/SPSA/87282/0138/030615 4
reason for Walgreen to refuse to refill her prescription using the prescription it had
on file. Nevertheless, Mr. Hardy’s report does not even mention the fact that
Walgreen had a prescription refill that predated the hospital admission during
which Dr. Kessler said to stop Pradaxa. Nor does it mention whether Walgreen or
McGuire were ever informed of Dr. Kessler’s instruction.
Second, Mr. Hardy was statutorily disqualified from testifying to causation.
Ms. Rodriguez concedes that Mr. Hardy was unqualified to render an opinion
regarding causation; only a physician may render opinions regarding causation.
Nevertheless, Ms. Rodriguez asserts that when Mr. Hardy’s report is read in
conjunction with Dr. Breall’s report, the causation requirement is satisfied. While
it is true that the expert report requirement may be satisfied by utilizing more than
one expert report, Dr. Breall’s report does not supply the missing causation.
Dr. Breall’s report does not even mention Walgreen or its pharmacists much less
identify any conduct, act or omission attributable to them.
Third, 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 acts and the plaintiff’s injury. A claimant
must provide each defendant with an expert report that sets forth the manner in
which the care rendered by that defendant failed to meet the standard of care and
1751449.6/SPSA/87282/0138/030615 5
the causal relationship between that failure and the injuries claimed. This Mr.
Hardy and Dr. Breall failed to do.
Fourth, Mr. Hardy was not qualified. There is nothing in the four corners of
his report to indicate that he was a practicing pharmacist filling prescriptions at the
time the claim arose or when he made his report.
The trial court did not abuse its discretion in finding that Dr. Breall’s report
does not bridge the gaps in Mr. Hardy’s report. First, his report does not even
mention Walgreen or McGuire much less recite any facts that Walgreen’s
pharmacists were on notice of Dr. Kessler’s instruction. Second, his report is
speculative and conclusory on the issue of causation. It fails to identify the
prescription used by Ms. Rodriguez after Dr. Kessler said to stop using Pradaxa,
the circumstances under which Walgreen continued to refill the prescription, or
how doing so contributed to Ms. Rodriguez’s injury. Third, Dr. Breall is not
qualified to testify to the standard of care for a pharmacist.
The trial court’s dismissal should be affirmed.
Standard of Review
A trial court’s rulings on motions to dismiss health care liability claims are
reviewed for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93
(Tex. 2006); American Transitional Care Centers of Texas Inc. v. Palacios,
46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion by rendering an
1751449.6/SPSA/87282/0138/030615 6
arbitrary and unreasonable decision lacking support in the facts or circumstances of
the case or by acting in an arbitrary or unreasonable manner without reference to
guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.
2011) (plurality op.) When reviewing matters committed to the trial court’s
discretion, an appellate court may not substitute its 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. Id.; see also
Jelinek v. Casas, 328 S.W.3d 526, 542 (Tex. 2010) (Jefferson, C.J., dissenting)
(“The dividing line between a sufficient and an inadequate report is impossible to
draw precisely. We have said, therefore, that the determination must be made in
the first instance by the trial court, and review of that decision asks not how an
appellate court would have resolved that issue, but instead whether the trial court
abused its discretion.”) (citing Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.
2006); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003)). But if an expert
report contains only conclusions about the statutory elements, a trial court has “no
discretion but to conclude . . . that the report does not represent a good–faith
effort” to satisfy the statute. Palacios, 46 S.W.3d at 877, 880; Smith v. Wilson,
368 S.W.3d 574 (Tex. App.–Austin 2012, no pet.).
1751449.6/SPSA/87282/0138/030615 7
Argument
I. A Chapter 74 report must be from a qualified expert and address in
non–conclusory terms the standard of care, breach and causation.
Pursuant to Section 74.351, medical–malpractice plaintiffs must provide
each defendant health care provider with an expert report or voluntarily nonsuit the
action. TEX. CIV. PRAC. & REM. CODE §74.351. If a claimant timely furnishes an
expert report, a defendant may file a motion challenging the report’s adequacy. Id.
The trial court shall grant the motion only if it appears, after hearing, that the report
does not represent a good faith effort to comply with the statutory definition of an
expert report. See id. §74.351(l). The statute defines an expert report as a written
report by an expert that provides, as to each defendant, a fair summary of the
expert’s opinions, as of the date of the report, regarding: (1) the applicable
standards of care; (2) the manner in which the care provided failed to meet the
standards; and (3) the causal relationship between that failure and the injury, harm,
or damages claimed. See id. §74.351(r)(6).
Although the report need not marshal all the plaintiff’s proof, it must include
the expert’s opinions on the three statutory elements––standard of care, breach and
causation. See Palacios, 46 S.W.3d at 878. In detailing these elements, the report
must provide enough information to fulfill two purposes: first, it must inform the
defendant of the specific conduct the plaintiff has called into question, and, second,
it must provide a basis for the trial court to conclude that the claims have merit.
1751449.6/SPSA/87282/0138/030615 8
Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios,
46 S.W.3d at 879). A report that merely states the expert’s conclusions as to the
standard of care, breach, and causation does not fulfill these two purposes. Id. A
report that omits one or more of these required elements, or states the expert’s
opinions as merely conclusions without supporting facts, is insufficient to
constitute a “good faith effort” at compliance with Chapter 74. See Samlowski v.
Wooten, 332 S.W.3d 404, 409–10 (Tex. 2011); Jernigan v. Langley, 195 S.W.3d
91, 93–94 (Tex. 2006) (affirming trial court’s dismissal of suit because expert
reports omitted any allegation about how doctor breached standard of care and
causation); Bowie Mem’l Hosp., 79 S.W.3d at 52. (“[T]he expert must explain the
basis of his statements and link his conclusions to the facts.”) Furthermore, in
assessing a report’s sufficiency, a trial court may not draw any inferences, and
instead must rely exclusively on the information contained within the report’s four
corners. See Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing
Palacios, 46 S.W.3d at 878).
II. The trial court did not abuse its discretion in dismissing claims against
Walgreen and McGuire.
A. Mr. Hardy’s report is deficient.
1. Mr. Hardy’s opinion is speculative and conclusory.
Mr. Hardy’s report is speculative because it relies on the assumption that
Walgreen and McGuire were aware of Dr. Kessler’s advice to discontinue the use
1751449.6/SPSA/87282/0138/030615 9
of Pradaxa. It fails to make a causal link between an allegedly breached standard of
care and injury by requiring an inference that if Walgreen and McGuire had known
of Dr. Kessler’s advice, then Ms. Rodriguez’s outcome would have been different.
His opinions all hinge on Walgreen and McGuire knowing of Dr. Kessler’s advice.
Yet there is nothing in Mr. Hardy’s report that affirmatively shows that Walgreen
and McGuire were aware of the information that is identified as key to their
liability. Any breach of the standard of care discussed in Mr. Hardy’s report is
entirely dependent on what Defendants knew and when. Yet Mr. Hardy’s report is
silent on these crucial facts. Further, Mr. Hardy’s report says Walgreen should
have contacted the prescribing physician––Dr. Goswami. But there is no indication
that at that time Dr. Goswami even knew of Dr. Kessler’s advice or would have
communicated it to Walgreen or McGuire.
By relying on assumptions instead of facts, the report provides no basis for a
trial court to conclude that the claims against Defendants have merit. Fung v.
Fischer, 365 S.W.3d 507, 533 (Tex. App.–Austin 2012), overruled in part by
Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (finding that report that
depended on unsupported assumptions about what a defendant knew and when he
knew it was speculative); Cooper v. Arizpe, No. 04–07–00743, 2008 Tex. App.
LEXIS 2506 at *9–10 (Tex. App.–San Antonio, April. 9, 2008, pet. denied)
(holding that report that relied on assumption that notes were in chart was
1751449.6/SPSA/87282/0138/030615 10
conclusory and speculative); Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex. App.–
El Paso 2007, no pet.) (holding that expert’s opinion as to breach of the standard of
care was speculative and conclusory as it was unsupported by facts in report’s four
corners and relied on assumption).
Mr. Hardy’s opinions regarding Walgreen’s negligence, breach of the
standard of care, and causation––which depend on unsupported assumptions as to
what Walgreen and McGuire knew and when they knew it––are conclusory and
speculative at best. They do not provide a basis for the court to conclude that
Ms. Rodriguez’s healthcare liability claim against Walgreen and McGuire has
merit.
2. Mr. Hardy is statutorily disqualified from addressing
causation.
Mr. Hardy, Pharm. D., M.S., is a pharmacist and not a medical doctor. Only
a physician can render an opinion on causation. TEX. CIV. PRAC. & REM. CODE
§74.403(a). Therefore, Mr. Hardy, by statute, cannot render an opinion on
causation.
Moreover, Mr. Hardy’s statement of causation is entirely conclusory in that
it fails to explain the relationship between the alleged injuries and the failure to act
according to the standard of care. He simply states “…It is clear that the long-term
use of dabigatran etexilate (Pradaxa) as dispensed by Walgreens and Sara
Elizabeth McGuire (pharmacist), and pharmacist with initials MDD caused
1751449.6/SPSA/87282/0138/030615 11
Ms. Rodriguez’s acute kidney injury, anemia, and gastrointestinal bleeding (which
have led to her long-term clinical demise and medical injuries).” C.R. 42.
The causal connection in healthcare malpractice suits must be made “beyond
the point of conjecture” and “must show more than a possibility” to warrant
submission of the issue to a jury. Lenger v. Physician’s Gen. Hosp., 455 S.W.2d
703, 706 (Tex. 1970); see Bowie Mem’l Hosp., 79 S.W.3d at 53. Reports providing
a “description of only a possibility of causation do not constitute a good–faith
effort to comply with the statute.” Walgreen Co. v. Hieger, 243 S.W.3d 183, 186–
87 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) (holding that expert report
stating claimant had symptoms “consistent with” known side effects of medication
was insufficient to demonstrate causal link); see McMenemy v. Holden, No. 14–
07–00365–CV, 2007 Tex. App. LEXIS 8830, at *15–16 (Tex. App.–Houston
[14th Dist.] Nov. 1, 2007, pet. denied) (mem. op.) (concluding that expert’s report
expressing uncertainty about possibility of positive outcome for patient failed to
make causal link indicating plaintiffs’ claim had merit); Estate of Allen v. Polly
Ryon Hosp. Auth., No. 01–04–00151–CV, 2005 Tex. App. LEXIS 1691, at *16–17
(Tex. App.–Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) (holding that
expert’s report failed to meet statutory causation requirement by opining merely
that breach of standard of care “could have contributed” to decline in claimant’s
condition).
1751449.6/SPSA/87282/0138/030615 12
Further, a court may not fill in gaps in a report by drawing inferences or
guessing what the expert meant or intended. Austin Heart, P.A. v. Webb,
228 S.W.3d 276, 279 (Tex. App.–Austin 2007, no pet.). Instead, the report must
include the required information within its four corners. Bowie Mem’l Hosp.,
79 S.W.3d at 53. This Mr. Hardy’s report fails to do. The trial court thus did not
abuse its discretion in finding it inadequate.
3. Mr. Hardy’s report fails to distinguish between multiple
defendants.
Also, Mr. Hardy’s report does not separately set out the alleged acts of
negligence and causal connection for each of the multiple defendants. 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
§74.351(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 standard 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
1751449.6/SPSA/87282/0138/030615 13
to cause the injury. Austin Heart, 228 S.W.3d at 282-83 (finding deficient expert
report that was “silent as to whether a single physician, multiple physicians, or all
physicians’ mentioned in the report failed to meet the standard of care and caused
injury to [the patient]”); Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (Tex.
App.–El Paso 2011, no pet.) (finding deficient expert report that failed to state who
among multiple defendants caused the injuries); Taylor v. Christus Spohn Health
Sys. Corp., 169 S.W.3d 241, 245–46 (Tex. App.–Corpus Christi 2004, no pet.)
(finding deficient expert report that failed “to state what each defendant should
have done in order to meet the standard of care, what each defendant failed to do,
and how such failure led to [the patient’s] death”).
Because Mr. Hardy’s report does not explain what conduct, act or omissions
are attributable to which of the defendants, it is deficient, and the trial court did not
abuse its discretion in finding it did not satisfy the statutory requirements.
4. Mr. Hardy is not qualified as a practicing pharmacist.
A person may qualify as an expert witness on whether a health care provider
departed from accepted standards of care only if, at the time the claim arose or at
the time the testimony is given, he is practicing the same type of care or treatment
as the defendant, and is qualified by training or experience. TEX. CIV. PRAC. &
REM. CODE §74.402(b)(1)–(3). In determining whether a witness is qualified, a
court considers whether the witness (1) is certified by the licensing agency, and
1751449.6/SPSA/87282/0138/030615 14
(2) is actively practicing health care in rendering health care services relevant to
the claim. TEX. CIV. PRAC. & REM. CODE §74.402(c). “Health care” is defined as
“any act or treatment performed or furnished, or that should have been performed
or furnished, by any health care provider for, to or on behalf of a patient during the
patient’s medical care, treatment, or confinement.” TEX. CIV. PRAC. & REM. CODE
74.001(a)(10). A plaintiff offering medical testimony must establish that the expert
has expertise regarding “the specific issue before the court which would qualify the
expert to give an opinion on that particular subject.” Broders v. Heise, 924 S.W.2d
148, 153 (Tex. 1996). The analysis focuses on “the very matter” on which the
expert is to give an opinion. Id.
Here, there is no showing in the four corners of his report that Mr. Hardy is
practicing and rendering health care in “the very matter” on which he is giving an
opinion. Mr. Hardy’s CV shows only that he is involved in pharmacy “information
technology.” There is no showing that he was, at the pertinent times, filling
prescriptions for patients. Nothing in the four corners of Mr. Hardy’s report
indicates that he is qualified to opine on the standard of care, breach or causation.
B. Dr. Breall’s expert report is deficient.
Conceding that Mr. Hardy is prohibited by statute from stating any opinions
on causation, Ms. Rodriguez still asserts that when Mr. Hardy’s report is read in
conjunction with the report provided by Dr. Breall, causation is found. While it is
1751449.6/SPSA/87282/0138/030615 15
true that the expert report requirement may be satisfied by utilizing more than one
expert report, and thus, a court may read those reports together to supply missing
elements, see TEX. CIV. PRAC. & REM. CODE ANN. §74.351(i), Dr. Breall’s report
does not supply the missing causation.
1. Dr. Breall’s report does not even mention Walgreen or
McGuire.
Dr. Breall does not mention Walgreen or McGuire, does not discuss any
standard of care pertaining to Walgreen or McGuire, and does not discuss any
causal connection between anything done or failed to be done by Walgreen or
McGuire and the injuries sustained by Ms. Rodriguez. In fact, the report does not
mention Walgreen or McGuire at all; instead, the report discusses only
Dr. Goswami. His report thus does not constitute an expert report as required to
maintain a suit against Walgreen and McGuire. Accordingly, the trial court was
correct to grant the motion to dismiss.
When a defendant is not identified within the four corners of a report, the
report is, for that reason alone, deficient as to that defendant because it requires the
reader to infer or make an educated guess as to whose actions caused the injuries.
See Reddy v. Hebner, 435 S.W.3d 323, 328 (Tex. App.–Austin 2014, pet. filed)
(finding report that did not mention doctor or discuss how doctor’s treatment did
not meet the standard of care, did not constitute a good-faith effort to comply with
the statutory requirements); Fung v. Fischer, 365 S.W.3d 507, 529 (Tex. App.–
1751449.6/SPSA/87282/0138/030615 16
Austin 2012, no pet.) overruled on other grounds by Certified EMS, Inc. v. Potts,
392 S.W.3d 625 (Tex. 2013) (concluding that report did not implicate defendant
when it did not allege breach by defendant or any causal link between defendant’s
breach and injury); Austin Regional Clinic v. Power, 2012 Tex. App. LEXIS 5242
(Austin 2012, no pet.) (concluding that trial court abused its discretion by denying
motion to dismiss claims against certain defendant when the expert report did not
mention that defendant); see also Bogar v. Esparza, 257 S.W.3d 354, 363 (Tex.
App.–Austin 2008, no pet.); Austin Heart P.A. v. Webb, 228 S.W.3d 276, 281
(Tex. App.–Austin 2007, no pet.); Apodaca v. Russo, 228 S.W.3d 252, 257-58
(Tex. App.–Austin 2007, no pet.). Dr. Breall’s report falls below the minimal
standard and thus does not constitute an expert report as required to maintain a suit
against Walgreen and McGuire.
2. Dr. Breall’s report is speculative and conclusory.
Like Mr. Hardy’s, Dr. Breall’s report would have to be based on the
assumption that Walgreen and McGuire––although they are never mentioned––
knew about Dr. Kessler’s advice to stop Pradaxa. But there is nothing in his report
about to whom the advice was communicated, whether the prescription that was
used by Ms. Rodriguez predated the advice, or any other circumstances under
which Ms. Rodriguez continued to refill her prescription. Dr. Breall simply does
not provide facts to establish the causal link between Walgreen’s alleged breach
1751449.6/SPSA/87282/0138/030615 17
and Ms. Rodriguez’s injuries, one of the required statutory elements of an expert
report. See TEX. CIV. PRAC. & REM. CODE §74.351(r)(6). “To avoid being
conclusory, an expert must explain the basis of the statements to link his
conclusions to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002).
This Court has consistently required more than what Dr. Breall has provided
in terms of expert testimony on causation. See Kocerek v. Colby, No. 03–13–
0057–CV, 2014 Tex. App. LEXIS 9336 (Tex. App.–Austin 2014, no pet.)(holding
insufficient expert report that failed to show specific actions defendant did or did
not take would have prevented patient’s injuries); Smith v. Wilson, 368 S.W.3d
574, 578 (Tex. App.–Austin 2012, no pet.)(holding that expert failed to show how
doctor’s alleged breach of standard of care caused patient to commit suicide);
Constancio v. Bray, 266 S.W.3d 149, 157–58 (Tex. App.–Austin 2008, no pet.)
(holding insufficient expert report that alleged that breach of standard of care by
doctor caused patient’s death when report did not explain how increased
monitoring of patient, detection of hypoxemia, and other consequence would have
prevented patient’s death); Perez v. Daughters of Charity Health Servs. of Austin,
No. 03–08–00200–CV, 2008 WL 4531558, at *4 (Tex. App.–Austin, Oct. 10,
2008, no pet.) (mem. op.) (concluding expert report insufficient on causation
because it did not link hospital’s actions to patient’s death or any cause of death
1751449.6/SPSA/87282/0138/030615 18
and did not identify any specific injury that would have been prevented had
hospital complied with standard of care). To find Dr. Breall’s report sufficient on
causation, the trial court would have had to make inferences beyond the four
corners of his report, which it could not do. For this additional reason, the trial
court was correct to grant the motion to dismiss.
3. Dr. Breall is not qualified to testify to the standard of care
for a pharmacy or pharmacist.
An expert report must demonstrate within the four corners of the report that
the purported expert is qualified to testify about the particular matters for which the
opinion is offered. TEX. CIV. PRAC. & REM. CODE §74.351, 74.402. Dr. Breall is
not a pharmacist qualified on the basis of training or experience to offer an expert
report regarding accepted standards for a pharmacy or pharmacist. Because he is
not qualified to give opinions as to the standard of care, he cannot connect any
breaches of the standard of care with the damages claimed. Therefore, the Court’s
dismissal of Ms. Rodriguez’s claims against Walgreen and McGuire was correct.
CONCLUSION
The trial court was correct in dismissing the claims against Walgreen and
McGuire. Its order should be affirmed.
1751449.6/SPSA/87282/0138/030615 19
Respectfully submitted,
/s/ Judith R. Blakeway
JUDITH R. BLAKEWAY
State Bar No. 02434400
judith.blakeway@strasburger.com
CYNTHIA DAY GRIMES
State Bar No. 11436600
Cynthia.Grimes@strasburger.com
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215
(210) 250-6003 Telephone
(210) 258-2706 Facsimile
ATTORNEYS FOR APPELLEES
THE WALGREEN COMPANY AND
SARA ELIZABETH MCGUIRE
1751449.6/SPSA/87282/0138/030615 20
CERTIFICATE OF SERVICE
Pursuant to E-Filing Standing Order, I certify that on March 6, 2015, I
electronically filed the foregoing with the Clerk of Court using the
EFile.TXCourts.gov electronic filing system which will send notification of such
filing to the following:
Lannie Todd Kelly
State Bar No. 24035049
THE CARLSON LAW FIRM, P.C.
11606 N. IH–35
Austin, TX 78753
Telephone: (512) 346–5688
Facsimile: (512) 719–4362
tkelly@carlsonattorneys.com
Attorneys for Appellant Nancy Jo Rodriguez
/s/ Judith R. Blakeway
JUDITH R. BLAKEWAY
CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Brief
of Appellees contains no more than 4,460 words.
/s/ Judith R. Blakeway
JUDITH R. BLAKEWAY
1751449.6/SPSA/87282/0138/030615 21
NO. 03–14–00765–CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AT AUSTIN
NANCY JO RODRIGUEZ
APPELLANT,
V.
THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE
APPELLEES.
On Appeal from the 419th District Court
Travis County, Texas
APPENDIX
1. Order dated December 3, 2014
2. Mr. Hardy’s CV and report
3. Dr. Breall’s CV and report
4. TEX. CIV. PRAC. & REM. CODE §74.351
5. TEX. CIV. PRAC. & REM. CODE §74.402
1751449.6/SPSA/87282/0138/030615 22
APPENDIX 1
DEC-03-2014 14:56 P.002/006
FHed In The District Court
of Travis County, Texas
DEC 03 2014 {If1-
CAUSE NO. D-l-GN-000903
AL ' :~l1 fa:' _M.
a; Clark
Amalia RJdriguez.Mendo
NANCY.TO RODRIGUEZ § IN THE DISTRICT COURT OF
§
PLAINTIFF, §
§
vs, §
§ TRAVIS COUNTY, TEXAS
THE WALGREEN COMPANY, SARA §
ELIZA6ETH MCGUIRE, AUSTIN HEART §
PLLC, sr.
DAVID'S HEALTH CARE §
PARTNERSHIP, DA YID 11
Tex. Civ. Prac. & Rem. Code § 74.351
physician or health care provider.
U) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other
than an issue relating to liability or causation.
(k) Subject to Subsection (t), an expert report served under this section:
(I) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by any party during the course of the action for any purpose.
(l) A 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).
(m) to (q) [Reserved].
(r) In this section:
(I) "Affected parties" means the claimant and the physician or health care provider who are directly affected by
an act or agreement required or permitted by this section and does not include other parties to an action who are not
directly affected by that particular act or agreement.
(2) "Claim" means a health care liability claim.
(3) [Reserved].
(4) "Defendant" means a physician or health care provider against whom a health care liability claim is asserted.
The term includes a third-party defendant, cross-defendant, or counterdefendant.
(5) "Expert" means:
(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testify under the requirements of Section 74.40 I;
(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from
accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402;
(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a
physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence;
(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who
is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or
(E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist or physician
who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.
(6) "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
Page 2
Tex. Civ. Prac. & Rem. Code § 74.351
health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm,
or damages claimed.
(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in
a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or
hospital records or other documents or tangible things, related to the patient's health care through:
(I) written discovery as defined in Rule 192.7. Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200. Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 20S. Texas Rules of Civil Procedure.
(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the
service requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any
party are waived.
(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take
not more than two depositions before the expert report is served as required by Subsection (a).
HISTORY: Enacted by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 10.01, effective September 1,2003; am. Acts 2005,
79th Leg., ch. 635 (H.B. 2645), § I, effective September I, 2005; am. Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2,
effective September I, 2013.
Page 3
APPENDIX 5
LEXSTAT
LexisNexis (R) Texas Annotated Statutes
Copyright © 2014 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group
All rights reserved.
*** This document is current through the 2013 3rd Called Session ***
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 74. MEDICAL LIABILITY
SUBCHAPTER I. EXPERT WITNESSES
GO TO TEXAS CODE ARCHIVE DIRECTORY
Tex. Civ. Prac. & Rem. Code § 74.402 (2014)
§ 74.402. Qualifications of Expert Witness in Suit Against Health Care Provider
(a) For purposes of this section, "practicing health care" includes:
(I) training health care providers in the same field as the defendant health care provider at an accredited
educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the
defendant health care provider.
(b) In a suit involving a health care liability claim against a health care provider, 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 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.
(c) 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:
(I) 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.
(d) The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is
qualified to offer expert testimony on the issue of whether the defendant health care provider departed from accepted
Page 1
Tex. Civ. Prac. & Rem. Code § 74.402
standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is
good reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if
the court departs from the criteria.
(e) This section does not prevent a health care provider who is a defendant, or an employee of the defendant health
care provider, from qualifying as an expert.
(f) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of
the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the
date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not
have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for
an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent
the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to
determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before
trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall
be conducted outside the presence of the jury. This subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's qualifications.
HISTORY: Enacted by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 10.01, effective September 1,2003.
Page 2