consultants-in-radiology-pa-jason-w-skiles-do-david-w-simonak ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00091-CV
CONSULTANTS IN RADIOLOGY, APPELLANTS
P.A., JASON W. SKILES, D.O.,
DAVID W. SIMONAK, D.O., AND
FOSSIL CREEK FAMILY MEDICAL
CENTER, P.A.
V.
S.K. AND C.K., INDIVIDUALLY, APPELLEES
AND ON BEHALF OF J.K., A.K.,
AND R.K., MINOR CHILDREN
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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This is a health care liability case. Appellees S.K. and C.K., individually
and on behalf of J.K., A.K., and R.K., minor children, sued Appellants
1
See Tex. R. App. P. 47.4.
Consultants in Radiology, P.A. (Radiology), Jason W. Skiles, D.O., David W.
Simonak, D.O., and Fossil Creek Family Medical Center, P.A. (Fossil Creek) for
negligence related to medical services provided by Appellants to S.K. In January
2013, S.K. was diagnosed with Stage IIIC breast cancer, and Appellees alleged
that Appellants could have and should have diagnosed the cancer at an earlier
stage. In one issue, Appellants ask whether the trial court abused its discretion
by concluding that Appellees’ expert reports were sufficient under civil practice
and remedies code section 74.351 2 when the expert reports “fail[ed] to explain
why or how the cancer worsened during the delay allegedly caused by
Appellants.” Because we hold that the expert reports were sufficient, we affirm.
Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to dismiss under section 74.351
for an abuse of discretion. 3 A plaintiff in a health care liability claim must provide
an expert report in support of the claim. 4 The reports must set out “a fair
summary of the expert’s opinions . . . regarding applicable standards of care, the
manner in which the care rendered by the physician or health care provider failed
2
Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2013).
3
Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008,
pet. denied).
4
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
2
to meet the standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.” 5
An expert report must meet three elements: (1) “it must fairly summarize
the applicable standard of care;” (2) “it must explain how a physician or health
care provider failed to meet that standard;” and (3) “it must establish the causal
relationship between the failure and the harm alleged.” 6 If a report satisfies these
elements as to any theory of liability against a defendant, the plaintiff may
proceed on the suit against that defendant. 7
Upon a defendant’s motion, the trial court must dismiss the claims against
the defendant if the plaintiff’s expert report does not represent an objective good
faith effort to comply with these requirements. 8 A report qualifies as an objective
good faith effort if the report “(1) inform[s] the defendant of the specific conduct
the plaintiff questions, and (2) provide[s] a basis for the trial court to conclude
that the plaintiff’s claims have merit.” 9 The report “meets the minimum
qualifications for an expert report under the statute ‘if it contains the opinion of an
5
Id. § 74.351(r)(6).
6
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
7
Id.
8
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l).
9
Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012).
3
individual with expertise that the claim has merit, and if the defendant’s conduct
is implicated.’” 10
Analysis
Appellees alleged that on September 19, 2011, S.K. went to Fossil Creek
complaining of breast tenderness and pain. She was seen by Brenda Wilmore, a
nurse practitioner, who did not perform a physical examination. Dr. Simonak,
S.K.’s primary care physician, made a referral for a mammogram and ultrasound.
On September 22, 2011, Dr. Skiles performed and interpreted the
mammogram. Dr. Skiles reported “indeterminate microcalcifications in the left
breast, probably benign” and recommended a follow-up study in three to six
months. S.K. alleged that in fact, the mammogram showed “a highly suspicious
cluster of microcalcifications in the upper outer quadrant of the left breast, with
adjacent groups of microcalcifications raising the possibility of multifocal
disease,” which should have led Dr. Skiles to recommend a biopsy. Dr. Skiles’s
report was sent to Dr. Simonak at Fossil Creek, but neither he nor anyone else at
Fossil Creek informed S.K. of the abnormal results or that she should have a
follow-up study done within three to six months.
Between September 2011 and January 2013, S.K. went to Fossil Creek to
see Dr. Simonak or Nurse Wilmore multiple times for various medical reasons.
10
Id. (quoting Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011)).
4
In none of those visits to Fossil Creek was she informed of her abnormal
mammogram results.
In January 2013, S.K. consulted Dr. Mary Brian, a breast specialist, who
performed an in-office biopsy that “revealed high grade ductal carcinoma in situ
[(DCIS)].” The next month, Dr. Brian performed a mastectomy and left sentinel
node biopsy. Subsequent testing showed that S.K.’s cancer had spread to the
lymph nodes, leading to a diagnosis of multifocal Stage IIIC invasive ductal
carcinoma. She has since undergone chemotherapy and radiation therapy, and
her prognosis is “very poor.”
Appellees alleged that Dr. Simonak was negligent in, among other acts,
failing to properly supervise Nurse Wilmore, failing to communicate and explain
the abnormal mammogram findings to S.K.; failing to adequately monitor S.K.;
and failing to render proper and timely care to S.K. to prevent the progression of
the cancer. They alleged that Dr. Skiles was negligent by, among other acts,
failing to accurately interpret and report S.K.’s mammogram; failing to recognize
the presence and significance of the mammogram results; and failing to
recommend that S.K. have a prompt biopsy.
Appellees served Appellants with the expert reports of Dr. Peter D. de
Ipolyi, M.D., Dr. Suraj Achar, M.D., and Dr. Jeffrey B. Mendel, M.D. Appellants
filed objections to each expert report and motions to dismiss based on those
objections. Among other objections, Appellants complained that the reports were
5
not adequate as to causation. The trial court denied Appellants’ motions to
dismiss, leading to this appeal.
On appeal, Appellants make three main arguments about the reports’
discussion of causation: (1) the reports did not discuss when S.K.’s lymph nodes
became positive for cancer or how the lymph nodes became involved during the
delay in diagnosis and treatment, (2) the reports did not account for the fact that
during the period in which S.K. was not diagnosed, she was pregnant, and (3)
aside from a lack of discussion of the lymph nodes, the reports did not explain
how the delay caused S.K.’s diagnosis to worsen.
As for the first argument, Appellants did not raise in the trial court any
question about the failure to discuss lymph nodes, and the excerpts from the
Cancer Staging Manual they rely on here were not presented to the trial court.
The trial court therefore did not have this information in deciding whether the
reports adequately discussed causation. In determining whether the trial court
abused its discretion, we look at the information that the trial court had before it
at the time of its ruling. 11 We therefore will not consider this information in
deciding whether the trial court abused its discretion in determining that the
expert reports made a good faith effort at complying with statutory requirements.
11
See Finley v. Steenkamp, 19 S.W.3d 533, 540 n.3 (Tex. App.—Fort
Worth 2000, no pet.) (stating that we review the actions of a trial court based on
the evidence before the court at the time it acted); Methodist Hosps. of Dallas v.
Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is
axiomatic that an appellate court reviews actions of a trial court based on the
materials before the trial court at the time it acted.”).
6
As for the second argument, from the record, S.K. found out she was
pregnant in December 2011, and the experts all complained about Appellants’
failure to act in September 2011. The evidence does not show that she was
pregnant in September 2011. Accordingly, the argument that the reports were
inadequate because they did not account for S.K.’s pregnancy is unpersuasive.
As to their third argument about causation, Appellants make two
subarguments. They complain that the reports asserted that but for Appellants’
negligence, S.K. would have been diagnosed in September 2011 or soon after
with DCIS and S.K.’s prognosis would have been good, but in January 2013, Dr.
Brian did what the reports say Appellants should have done, and even she
diagnosed DCIS, not Stage IIIC. Thus, either (i) S.K. had DCIS in January 2013,
and it only spread after that time (in which case, Appellants’ negligence did not
cause S.K.’s injuries), or (ii) a biopsy alone cannot determine whether a lymph
node will contain cancer, so even if Appellants had done exactly what the reports
say they should have done, the outcome would have been the same.
With respect to subargument (ii)—that the reports suggest that a biopsy
alone cannot adequately diagnose a cancer stage and therefore Appellants’
compliance with the standard of care would have led to the same result—Dr.
Brian’s biopsy led to a cancer diagnosis, which led to treatment. The expert
reports asserted that following the standard of care in September 2011 would
have led to an earlier diagnosis and earlier treatment with a less invasive
treatment approach, and that “[t]umor size and involvement of lymph nodes often
7
depends specifically on the time of detection.” And the opinions in the expert
reports were based, not just on the results of a biopsy, but also on reading the
September 2011 mammogram. Thus, an argument that a biopsy alone does not
lead to a correct diagnosis does not address Appellees’ allegations of
negligence.
As to subargument (i)—that S.K.’s cancer did not spread until after she
was seen by Dr. Brian—Appellants argue that “Dr. Mary Brian . . . diagnosed
[DCIS] after Appellants’ involvement ceased. Dr. Brian found exactly what the
experts believed should have been found earlier,” and “[i]f Dr. Brian’s biopsy
report was correct, S.K. and her family have suffered no harm by the delay.” But
Dr. Brian’s diagnosis of DCIS was based on an initial biopsy. Less than a month
later, she performed a mastectomy and left sentinel node biopsy, and pathology
showed that the cancer had spread to the lymph nodes. Consequently, S.K. was
diagnosed with multifocal Stage IIIC invasive ductal carcinoma. Appellees’
allegation, and that of their experts, has been that if S.K. had been treated in
accordance with the standard of care, her cancer would have remained
noninvasive, she would not have had to have chemotherapy, and her prognosis
would have been good. But because the cancer was not timely diagnosed, the
cancer became invasive, chemotherapy was required, and her prognosis is poor.
Dr. Achar’s report stated that “[i]nformation sharing, more likely than not,
would have led [S.K.] to the conclusion that she would like to see a specialist like
the specialist who ultimately diagnosed her,” and that the failure to share led her
8
to “falsely believe that her breast symptoms were not cancer, delayed the
ultimate diagnosis, and worsened her outcome.” Dr. Mendel stated in his report
that if the abnormalities had been correctly identified and reported with a
recommendation for a biopsy, then a biopsy would have been performed, and
S.K.’s diagnosis would likely have been reached within days.
In his report, Dr. de Ipolyi stated that “[h]ad Dr. Skiles properly
recommended a biopsy following the September 22, 2011 mammogram, more
likely than not a Fine Needle Aspiration Biopsy (FNAB) or Core Needle Biopsy
(CNB) would have been performed within a short period,” and that if the biopsy
been performed three to six months following the 2011 mammogram, it would
have resulted in S.K. being diagnosed with DCIS.
He further stated:
DCIS refers to a cancer started in a duct (the tube that carries
the milk from the lobule to the nipple) that has not spread to the
nearby breast tissue or other organs.). DCIS is the most treatable
form of breast cancer that carries the best prognosis. Had [S.K.]
been properly diagnosed shortly after the mammogram, or shortly
after the recommended follow-up period, her treatment would have
most likely been lumpectomy with radiation or mastectomy surgery.
Chemotherapy is not required for DCIS, and [S.K.]’s prognosis would
have been excellent. By definition, there is no risk of distant
recurrence since the cancer is noninvasive. For women having
lumpectomy with radiation, the risk of local recurrence ranges from
5–15 percent. For women having mastectomy, the risk of local
recurrence is less than 2 percent. Large clinical trials, conducted by
the National Surgical Adjuvant Breast and Bowel Project, show that
the overall 15 year survival rate exceeded 85%, with the incidence of
death from breast cancer less than 5 percent. Quite simply, with
timely follow-up exams and biopsy, [S.K.] would likely not have
required chemotherapy and/or died from breast cancer.
9
Because Dr. Skiles, Dr. Simonak, and [Fossil Creek] failed to
provide timely/proper follow-up and care, [S.K.]’s breast cancer was
not diagnosed and treated before it spread. Pathology following her
February 2013 surgery revealed multiple positive lymph nodes (14
out of 28) and she was diagnosed with multifocal Stage IIIC invasive
ductal carcinoma. The treatment and prognosis for this cancer is
vastly different than DCIS. Treatment for multifocal Stage IIIC
invasive ductal carcinoma involves modified radical mastectomy
surgery (removing the whole breast that has cancer, many of the
lymph nodes under the arm, the lining over the chest muscles, and
often part of the chest wall muscles) followed by radiation therapy
(using high-energy x-rays or radiation to kill cancer cells or keep
them from growing) and chemotherapy (using drugs to stop the
growth of cancer cells, either by killing the cells or by stopping them
from dividing). Based upon the most recent numbers published by
the National Cancer Data Base, [S.K.] has a less than 50% chance
of surviving 5 years, even with the best treatment available.
And he stated that the failure in September 2011 “to conduct and document a
physical examination prevented healthcare providers from being aware of the
clusters of abnormal tissue in [S.K.]’s left breast, much less tracking its
size/appearance over time.” Thus, as to Appellants’ arguments that the expert
reports do not show how the cancer progressed during the period of delay, and
they therefore do not show that S.K.’s prognosis worsened because of the delay,
this expert report points out that it was Appellants’ negligence that prevented
S.K. from being able to demonstrate precisely when her cancer spread.
We hold that the expert reports were sufficient as to causation. These
reports made a good faith effort at informing the trial court and Appellants of the
causal relationship between the Appellants’ failures and the harm alleged by
Appellees. Accordingly, we overrule Appellants’ sole issue.
10
Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s order.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DELIVERED: June 26, 2014
11