leonardo-quintero-jr-v-houston-methodist-hospital-fka-the-methodist ( 2015 )

Opinion issued February 26, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00448-CV
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LEONARDO QUINTERO, JR., Appellant
V.
HOUSTON METHODIST HOSPITAL F/K/A THE METHODIST
HOSPITAL, PATRICIA CHEVEZ-BARRIOS, M.D., MARY SCHWARTZ,
M.D., AND TMH PHYSICIAN ORGANIZATION, Appellees
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2013-43058
MEMORANDUM OPINION
This is an appeal from the trial court’s order dismissing Appellant Leonardo
Quintero, Jr.’s lawsuit for failure to comply with Chapter 74’s expert report
requirement. Quintero sued Houston Methodist Hospital f/k/a The Methodist
Hospital, Patricia Chevez-Barrios, M.D., Mary Schwartz, M.D., and TMH
Physician Organization, claiming medical malpractice arising out of the surgical
removal of his eye. On appeal, Quintero contends that the trial court erred in
finding that his two experts’ reports did not satisfy Chapter 74. We affirm.
Background
In May 2011, Quintero underwent a biopsy of tissue around his right eye.
The tissue was sent to the Methodist pathology department for analysis where the
three pathology slides were reviewed by Dr. Chevez-Barrios and Dr. Schwartz.
Chevez-Barrios and Schwartz determined that one of the slides showed atypical
cells “[c]onsistent with metastatic carcinoma.”
Quintero went to MD Anderson Hospital, where different doctors ordered
additional tests, reviewed the pathology slides that Chevez-Barrios and Schwartz
previously had reviewed, and diagnosed Quintero with “poorly differentiated
carcinoma.” An MD Anderson surgeon, Bita Esmaeli, M.D., removed Quintero’s
right eye and the surrounding tissue. No cancerous tumor was found in the
removed eye or tissue.
Quintero sued Chevez-Barrios and Schwartz, contending that they
negligently analyzed the pathology slides and incorrectly diagnosed Quintero with
metastatic carcinoma. He sued TMH, asserting that it was liable for Chevez-
Barrios and Schwartz’s acts. He also sued Methodist, asserting that it was
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negligent in failing to maintain proper procedures to prevent pathology slides from
becoming contaminated and was vicariously liable for Chevez-Barrios and
Schwartz’s acts.
Quintero served the defendants with an expert report by Dr. William Manion
pursuant to section 74.351 of the Civil Practice and Remedies Code. Dr. Manion’s
expert report set out relevant facts, including information about the biopsy,
Chevez-Barrios’s and Schwartz’s interpretations of the pathology slides, and
Quintero’s subsequent treatment and surgery at MD Anderson. According to
Manion, Chevez-Barrios and Schwartz breached the standard of care in reviewing
the pathology slides and reporting their pathology diagnosis, and Methodist
breached the standard of care by either failing to maintain proper procedures or
failing to comply with such procedures to prevent cross-contamination of
pathology slides. Manion ultimately concluded that “[t]hese breaches of the
standards of care . . . were a proximate cause of the misdiagnosis of Leonardo
Quintero,” and that without them, “Mr. Quintero would not have undergone the
surgical removal of his eye.” Manion did not review the pathology slides or
Methodist’s procedures in preparing his report; he reviewed only Quintero’s
medical records.
The defendants objected to Manion’s report and moved to dismiss the case
on the grounds that Manion’s opinions were conclusory as to breach and causation.
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The trial court held a hearing on the motions, and granted Quintero a 30-day
extension to cure the report’s deficiencies.
Within 30 days, Quintero served the defendants with a new expert report by
a different doctor—Don Minckler, M.D. Dr. Minckler’s report drew similar
conclusions to Manion’s, but was different in that it stated that Minckler reviewed
Quintero’s medical records and the “digitized pathology slides of Mr. Quintero.”
Minckler’s report states that a “biopsy was recommended” and the specimens were
submitted to pathology at Methodist. According to the report, the pathology
diagnosis by Chevez-Barrios and Schwartz was “[c]onsistent with metastatic
carcinoma.” Minckler opined that in the digitized copies of the slides “no two
positive cells to be consistent in shape or size. These cells were loose, independent
and not obviously fixed. There was no convincing evidence of cancer evident on
the slides.” The report explains that Quintero was referred to MD Anderson where
he was seen by Dr. Esmaeli. “A total body PET/CT scan was ordered . . . . The
scans were negative but the recommendation was exenteration of Mr. Quintero’s
right eye.”
With respect to causation, Minckler’s report contained the following
statements:
• Had Dr. Schwartz not diagnosed cancer, Mr. Quintero would not have
been referred to MD Anderson and would not have undergone
exenteration of his eye.
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• Had Patricia Chevez-Barrios, M.D. not diagnosed cancer, Mr.
Quintero would not have been referred to MD Anderson and would
not have undergone exenteration of his eye.
• The misdiagnosis resulted in Leonardo Quintero being referred to MD
Anderson for further treatment of his non-existent cancer.
The defendants objected to Minckler’s report on essentially the same
grounds as Manion’s, with the additional argument that Minckler failed to review
the original pathology slides and failed to explain how the unlabeled digitized
copies were sufficiently reliable to support his conclusions. They moved to
dismiss the case on the grounds that both reports were conclusory as to breach and
causation. The trial court granted the motion and dismissed Quintero’s claims with
prejudice.
Discussion
In two issues, Quintero contends that the trial court abused its discretion in
granting the motion to dismiss because the expert reports were not conclusory
regarding breach or causation and represented a good faith effort to satisfy the
requirements of Chapter 74.
A. Standard of Review
We review all rulings related to section 74.351 of the Texas Civil Practice
and Remedies Code under an abuse of discretion standard. Jelinek v. Casas, 328
S.W.3d 526, 538–39 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Although we defer to the trial court’s
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factual determinations, we review questions of law de novo. Haskell v. Seven
Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 757 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). A trial court has no discretion in determining what the
law is, which law governs, or how to apply the law. Poland v. Ott, 278 S.W.3d 39,
45 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). An abuse of discretion
occurs if the trial court fails to correctly apply the law to the facts. Haskell, 363
S.W.3d at 757 (citing Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.—Dallas
2010, no pet.)).
B. Applicable Law
The Medical Liability Act provides that a claimant in a health care liability
claim shall serve an expert report showing that the claim has merit within 120 days
of the date the suit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)
(West Supp. 2014). Section 74.351 requires the expert report to provide a fair
summary of the expert’s opinions regarding: (1) the applicable standards of care;
(2) the manner in which the care rendered failed to meet the standards; and (3) the
causal relationship between that failure and the injury, harm, or damages claimed.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P.,
189 S.W.3d 855, 858–59 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
The expert report need not marshal all of the plaintiff’s proof, but it must
demonstrate an objective good faith effort to comply with the statutory
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requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46
S.W.3d at 878; Gray, 189 S.W.3d at 859; Strom v. Mem’l Hermann Hosp. Sys.,
110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). To
constitute a good faith effort to comply with the statute, the report must provide
enough information to fulfill two purposes: it must (1) inform the defendant of the
specific conduct that the plaintiff has called into question; and (2) provide a basis
for the trial court to conclude that the claims have merit. Scoresby v. Santillan,
346 S.W.3d 546, 556 (Tex. 2011); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d
at 859. In making this determination, we review the information contained within
the four corners of the report. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002). A conclusory report does not fulfill these two purposes. Palacios, 46
S.W.3d at 879. “[R]ather, the expert must explain the basis of his statements to
link his conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.
1999). The Act grants the trial court discretion to grant a plaintiff who timely
serves a report one 30-day extension to cure its deficiencies. TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(c).
C. Causation
The defendants contended that both the Manion and the Minckler reports
were conclusory regarding breach and causation. Because we agree that the
reports are conclusory as to causation, and this issue is dispositive, we do not
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address the arguments regarding breach. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(r)(6); see also Gray, 189 S.W.3d at 858–59 (to meet statutory
requirements, expert report must sufficiently address each of the required
elements—standard of care, breach, and causation).
With respect to causation, the reports provide no basis for the conclusion
that the MD Anderson surgeon, Dr. Esmaeli, relied upon the pathology slides or
Chevez-Barrios or Schwartz’s interpretation of them in making the determination
to remove Quintero’s eye. The reports state that doctors at MD Anderson
reviewed the slides, and they were the ones who made the diagnosis of poorly
differentiated carcinoma. The reports contain no information regarding what
Esmaeli relied upon in making the determination to operate.
This Court previously held in Lo v. Gonzales, No. 01-12-00987-CV, 2013
WL 1694938 (Tex. App.—Houston [1st Dist.] April 18, 2013, no pet.) (mem. op.)
that an expert report must set forth facts showing causation and that causation may
not be inferred. In Lo, the plaintiff’s expert opined that, had Lo correctly
interpreted and reported the results of radiological tests, the plaintiff would have
been more promptly diagnosed and would not have suffered the injuries alleged.
Id. at *6. We concluded that the report “require[d] us to infer that [the plaintiff’s
diagnosing physician] relied solely on the” alleged omissions from Lo’s report. Id.
But “[t]his we may not do.” Id.
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Likewise, we may not infer that Esmaeli relied upon the pathology slides or
Chevez-Barrios or Schwartz’s interpretation of them without some factual basis for
doing so. Quintero argues that the mere fact that he was referred to MD Anderson
as a result of the alleged breaches is sufficient to establish causation, but we are not
permitted to make such an inference. See Lo, 2013 WL 1694938, at *6 (expert
report that requires court to infer reliance is conclusory as to causation); Shenoy v.
Jean, No. 01-10-01116-CV, 2011 WL 6938538, at *6 (Tex. App.—Houston [1st
Dist.] Dec. 29, 2011, pet. denied) (mem. op.) (if “but for” causation was sufficient
under Chapter 74, “almost any prior action taken by a health care provider could be
said to cause the ultimate outcome”); Murphy v. Mendoza, 234 S.W.3d 23, 28
(Tex. App.—El Paso 2007, no pet.) (“Nor can we infer that the surgeon relied upon
the [allegedly erroneous] ambiguous report in deciding the surgical options.”).
We therefore conclude that the reports are conclusory regarding causation
and fail to establish a causal connection between the alleged breaches of the
standard of care and Quintero’s injuries. See, e.g., Shenoy, 2011 WL 6938538, at
*6 (expert report that stated that if the plaintiff had not been cleared for surgery he
would not have suffered surgical complications was insufficient to satisfy the
statutory requirements to show causation); cf. Hendrick Med. Ctr. v. Conger, 298
S.W.3d 784, 789 (Tex. App.—Eastland 2009, no pet.) (expert report statement is
conclusory if it “expresses a factual inference without stating the underlying facts
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on which the inference is based.”). Because the reports are conclusory regarding
causation, a statutorily required element, we hold that the trial court did not abuse
its discretion in finding that they do not constitute a “good faith effort” to comply
with Chapter 74 and dismissing Quintero’s claims. See Palacios, 46 S.W.3d at
879; Gray, 189 S.W.3d at 859; see also Scoresby, 346 S.W.3d at 556 (conclusory
expert report does not meet Chapter 74’s requirements).
We overrule Quintero’s two issues.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
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