Granbury Minor Emergency Clinic and Abel Salas, M.D. v. Teagan Thiel ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-467-CV
GRANBURY MINOR EMERGENCY APPELLANTS
CLINIC AND ABEL SALAS, M.D.
V.
TEAGAN THIEL APPELLEE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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I. INTRODUCTION
This is an interlocutory appeal challenging (1) the adequacy of an expert
report prepared by William W. Spangler, M.D., FACEP addressing the alleged
negligence of Appellant Abel Salas, M.D. and (2) the trial court’s failure to
award attorney’s fees after dismissing with prejudice Appellee Teagan Thiel’s
claims against Appellant Granbury Minor Emergency Clinic. For the reasons set
forth below, we hold that the trial court did not abuse its discretion by
determining that Dr. Spangler’s report was adequate but did abuse its discretion
by failing to award attorney’s fees to the Clinic; accordingly, we will reverse the
portion of the trial court’s order awarding no attorney’s fees to the Clinic and
remand the issue of attorney’s fees to the trial court.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
On August 28, 2006, Thiel sought treatment at the Clinic and was seen
by Dr. Salas. Thiel complained of abdominal pain and vomiting. Without
performing a physical examination or diagnostic testing, Dr. Salas diagnosed
Thiel as suffering from food poisoning and sent her home with a prescription for
an antibiotic.
Thiel’s symptoms continued to worsen, and she went back to the Clinic
on September 6, 2006. At that time, Thiel was still suffering from abdominal
pain, which had localized to her right side. Dr. Salas diagnosed Thiel with a
urinary tract infection and gave her a prescription for an antibiotic.
When Thiel’s symptoms still did not improve, she went on September 14,
2006 to see her primary care physician who immediately ordered a CT scan to
rule out appendicitis. The CT scan confirmed appendicitis, and Thiel was taken
into surgery later that day. The surgery revealed that Thiel’s appendix had
ruptured and had become gangrenous and that she was suffering from an intra-
abdominal abscess caused by the ruptured appendix. Because the abscess
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significantly involved Thiel’s colon, she underwent a partial hemicolectomy with
anastomisis. Following the surgery, Thiel underwent additional surgeries
secondary to the delayed diagnosis of her appendicitis.
Thiel filed suit and timely served a seven-page, single-spaced expert
report by Dr. Spangler along with his four-page curriculum vitae. Appellants
filed a motion to dismiss with prejudice. Appellants generally denied Thiel’s
allegations and specifically denied that the Clinic is “in any way a legal entity
subject to liability.” Appellants asserted objections to Dr. Spangler’s
qualifications and to the substance of his report, specifically its purported failure
to address the elements of standard of care, breach, and causation concerning
Thiel’s health care liability claims.
After a hearing, the trial court sustained the Clinic’s objections to Dr.
Spangler’s report and dismissed with prejudice Thiel’s claims against the Clinic;
the trial court found that the reasonable and necessary attorney’s fees for the
Clinic were $0. The trial court overruled Dr. Salas’s objections to Dr.
Spangler’s report and denied his motion to dismiss. This appeal followed.
III. D R. S PANGLER’S R EPORT M EETS C HAPTER 74 C RITERIA
In Appellants’ first issue, Dr. Salas argues that the trial court abused its
discretion by failing to dismiss Thiel’s health care liability claims against him
because Dr. Spangler was not qualified to offer his opinions and because Dr.
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Spangler’s report fails to adequately set forth the statutory expert report
elements of standard of care, breach, and causation.
A. Standard of Review
We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Ctr. for
Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.
App.—Fort Worth 2008, pet. denied); Maris v. Hendricks, 262 S.W.3d 379,
383 (Tex. App.—Fort Worth 2008, pet. denied). To determine whether a trial
court abused its discretion, we must decide whether the trial court acted
without reference to any guiding rules or principles; in other words, we must
decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.
1159 (1986). Merely because a trial court may decide a matter within its
discretion in a different manner than an appellate court would in a similar
circumstance does not demonstrate that an abuse of discretion has occurred.
Id. But a trial court has no discretion in determining what the law is or in
applying the law to the facts, and thus “a clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion.”
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); Ehrlich
v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).
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B. Statutory Standards for Expert Reports
A trial court must grant a motion to dismiss a health care liability claim
if it finds, after a hearing, that “the [expert] report [filed by the claimant] does
not represent an objective good faith effort to comply with the definition of an
expert report” in the statute. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l)
(Vernon Supp. 2008). While the expert report “need not marshal all the
plaintiff’s proof,” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 878 (Tex. 2001) (construing former art. 4590i, § 13.01), it must
provide a fair summary of the expert’s opinions as to the “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. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(6).
To constitute a good faith effort, the report must “discuss the standard
of care, breach, and causation with sufficient specificity to inform the
defendant of the conduct the plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit.” Palacios, 46
S.W.3d at 875. A report does not fulfill this requirement if it merely states the
expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.
But the information in the report “does not have to meet the same requirements
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as the evidence offered in a summary-judgment proceeding or at trial.” Id. The
claimant’s expert must incorporate enough information into the report to fulfill
two purposes: (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 the
claims are meritorious. Id.; see also Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l), (r)(6).
When reviewing the adequacy of a report, the only information relevant
to the inquiry is the information contained within the four corners of the
document. Palacios, 46 S.W.3d at 878. This requirement precludes a court
from filling gaps in a report by drawing inferences or guessing as to what the
expert likely meant or intended. See id. However, section 74.351 does not
prohibit experts, as opposed to courts, from making inferences based on
medical history. Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824,
at *4 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.); see
also Tex. R. Evid. 703 (providing that an expert may draw inferences from the
facts or data in a particular case); Tex. R. Evid. 705 (providing that expert may
testify in terms of opinions and inferences).
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C. Dr. Spangler is Qualified
Dr. Salas contends that Dr. Spangler was not qualified to provide opinions
in this case because Dr. Salas is a general family practitioner while Dr. Spangler
is a board-certified emergency room physician.
The determination of a doctor’s qualifications to provide an expert report
must be made on the basis of the contents of the report and his curriculum
vitae. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). With
respect to a person giving opinion testimony regarding whether a physician
departed from accepted standards of medical care, an expert must (1) be
practicing medicine at the time of the testimony or at the time the claim arose;
(2) have knowledge of accepted standards of medical care for the diagnosis,
care, or treatment of the condition involved in the claim; and (3) be qualified on
the basis of training or experience to offer an expert opinion regarding the
standard of care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A), §
74.401(a) (Vernon 2005). A physician is “qualified on the basis of training or
experience” if the physician is board-certified or has other substantial training
or experience in an area of medical practice relevant to the claim and is actively
practicing medicine in rendering medical care services relevant to the claim. Id.
§ 74.401(c).
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An expert is qualified to give opinion testimony about the causal
relationship between the injury claimed and the alleged departure from the
applicable standard of care if he is “otherwise qualified to render opinions on
such causal relationship under the Texas Rules of Evidence.” See id.
§ 74.351(r)(5)(C), § 74.403(a) (Vernon 2005). The Texas Rules of Evidence
provide that “[i]f scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise.” Tex. R.
Evid. 702; see also Roberts v. Williamson, 111 S.W.3d 113, 121–22 (Tex.
2003) (recognizing that while medical license does not automatically qualify
holder to testify as expert on every medical question, test is not whether expert
practices in a particular field of medicine but rather whether offering party has
established that expert has knowledge, skill, experience, training, or education
regarding specific issue before court that would qualify expert to give opinion
on particular subject, and holding that based on qualifications and experience,
pediatrician was qualified to opine on cause and effect of neurological injuries).
We review a trial court’s determination that an expert is qualified under
an abuse of discretion standard. Benish v. Grottie, 281 S.W.3d 184, 198–99
(Tex. App.—Fort Worth 2009, pet. denied); Mem’l Hermann Healthcare Sys. v.
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Burrell, 230 S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(citing Broders v. Heise, 924 S.W.2d 148, 151–52 (Tex. 1996)).
Concerning his qualifications, Dr. Spangler’s report states, in part:
I am an emergency medicine physician currently practicing in
Katy, Texas at Christus St. Catherine’s Hospital. I have been
licensed to practice medicine in the State of Texas since 1992.[1]
I am Board Certified by the American Board of Emergency Medicine
and am an instructor in Advanced Cardiac Life Support and
Advanced Trauma Life Support. My attached curriculum vitae is
incorporated herein as part of my report.
I am currently, and was at the time Dr. Salas treated Teagan
Thiel, practicing medicine in an area relevant to this case.
Throughout my career, I have worked as an emergency physician
and have often been required to evaluate and diagnose a patient
suffering from abdominal pain and acute appendicitis. I am well
familiar with the standard of care required to diagnose appendicitis.
By virtue of my education, training, experience and board
certification in emergency medicine, I am familiar with and have
knowledge of the accepted requisite standards of care for the
diagnosis and treatment in question in this case. I am thus
qualified to offer expert opinions in this matter regarding the care
that Teagan Thiel received from Dr. Abel Salas and the Granbury
Minor Emergency Clinic.
Concerning Dr. Salas’s complaint that Dr. Spangler was not qualified to
offer opinions in the case because he is an emergency room physician, not a
general family practitioner like Dr. Salas, we note that Dr. Salas treated Thiel
at a minor emergency clinic; Dr. Salas was not Thiel’s family doctor, and she
1
… Dr. Spangler graduated from medical school in 1984 and held licenses
in North Carolina and Louisiana before becoming licensed in Texas.
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did not seek care from him in that capacity. Moreover, in setting the statutory
qualifications for a chapter 74 expert, the statute does not focus on the
defendant doctor’s area of expertise but on the condition involved in the claim.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(2) (requiring expert to have
“knowledge of accepted standards of medical care for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim,” not
knowledge of the defendant doctor’s area of speciality) (emphasis added);
§ 74.401(c)(1), (2) (recognizing that experts may be qualified on the basis of
training or experience if they are board certified or are actively practicing “in an
area of medical practice relevant to the claim,” not in the same field as the
defendant doctor) (emphasis added). That is, the applicable “standard of care”
and an expert’s ability to opine on it are dictated by the medical condition
involved in the claim and by the expert’s familiarity and experience with it, not
by the defendant doctor’s area of expertise. See, e.g., McKowen v. Ragston,
263 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(permitting infectious disease physician to opine on standard of care for treating
infection stemming from arteriovenus access graft even though defendant
doctor was cardiologist); Blan v. Ali, 7 S.W.3d 741, 746–47 & n.3 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (holding that board-certified
neurologist was not precluded from giving an opinion that two doctors—a
10
cardiologist and an emergency room physician—breached the standard of care
in an area in which the neurologist has knowledge, skill, training, and
experience and where the subject of the claim (strokes) fell squarely within his
medical expertise). Thus, to the extent Dr. Salas complains in issue one that
Dr. Spangler was not qualified because he is not a general family practice
doctor, we overrule this portion of issue one.
Dr. Spangler’s report establishes that he was qualified to opine on the
applicable standard of care for the diagnosis, care, or treatment of the illness,
injury, or condition (i.e., appendicitis) involved in Thiel’s claim, as well as Dr.
Salas’s alleged breaches of that standard. Dr. Spangler is licensed to practice
medicine in the State of Texas and was practicing medicine at the time Thiel’s
claim arose. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(1). Dr.
Spangler possesses knowledge of accepted standards of medical care for the
diagnosis, care, or treatment of appendicitis (“[t]hroughout my career, I have
worked as an emergency physician and have often been required to evaluate
and diagnose a patient suffering from abdominal pain and acute appendicitis.
I am well familiar with the standard of care required to diagnose appendicitis”).
See id. §§ 74.351(r)(5)(A), .401(a)(2)–(3); Kelly v. Rendon, 255 S.W.3d 665,
674 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (rejecting argument that
experts were “not qualified to render opinions against [defendant doctor]
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because their medical specialty is in a different medical discipline from his own”
and holding that “the statute does not require a medical expert be practicing in
the exact same field as the defendant physician, but instead must only be
actively practicing medicine in rendering medical care services relevant to the
claim”). Thus, Dr. Spangler meets the qualification requirements imposed by
chapter 74 to offer opinions on the relevant standard of care and on Dr. Salas’s
breaches of that standard.
Dr. Spangler’s report also establishes that he was qualified to opine on
the issue of causation because he is qualified to render such an opinion under
the Texas Rules of Evidence. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 74.351(r)(5)(C), .403(a); Tex. R. Evid. 702. Dr. Spangler is board certified
in emergency medicine and has practiced emergency medicine for over twenty
years. These credentials and this experience, set forth within the four corners
of Dr. Spangler’s report and curriculum vitae, sufficiently establish that he is
qualified to render an opinion on causation in this case. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 74.351(r)(5)(C), .403(a); Tex. R. Evid. 702; see, e.g.,
Mosely v. Mundine, 249 S.W.3d 775, 779–80 (Tex. App.—Dallas 2008, no
pet.) (concluding that expert had the knowledge, skill, experience, training, or
education regarding specific emergency room physician’s scope of practice and
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holding that expert was therefore qualified to render an opinion on causation
under section 74.351(r)(5)).
D. Dr. Spangler’s Report Adequately Sets Forth the Standard of Care
and the Alleged Standard of Care Violations by Dr. Salas
Dr. Salas argues that Dr. Spangler’s report fails to establish the standard
of care for a family or general practitioner, such as Dr. Salas, or the
commonality of standards between his own emergency medicine practice and
the family or general medicine practice of Dr. Salas. To the extent that Dr.
Salas argues that Dr. Spangler was not qualified to opine on the standard of
care for the diagnosis and treatment of appendicitis, we have overruled that
contention as set forth above.
Dr. Salas also argues that Dr. Spangler did not describe what a “thorough
history and physical examination” required or how Dr. Salas failed to conduct
them or identify what diagnostic testing should have been ordered.
Dr. Spangler’s report contains the following:
Standards of Care and Deviations from Standards of Care
In reasonable medical probability, the standards of care
applicable to evaluation and treatment of, and the injuries sustained
by Teagan Thiel are as follows:
1. The standard of care required Dr. Salas to conduct a
thorough history and physical examination which would have lead
him to consider further diagnostic evaluation to determine the
cause of her abdominal complaints. Dr. Salas’ differential diagnosis
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should have included ectopic pregnancy, gastritis, appendicitis,
urinary tract infection, pyelonephritis and gastroenteritis. Further
testing and evaluation to determine the true cause of Teagan
Thiel’s abdominal complaints should be based upon a thorough and
appropriate history and physical examination which should have
included Teagan Thiel’s vital signs. Had Dr. Salas conducted a
thorough history and physical examination, as the standard of care
required, his findings would have more than likely led him to
perform additional testing to determine the true cause of her
abdominal complaints.
2. Without conducting an appropriate and thorough history
and physical examination on August 28, 2006, Dr. Salas diagnosed
Teagan Thiel as suffering from gastroenteritis, commonly a viral
illness. Although acute gastroenteritis is most commonly caused
by a virus, Dr. Salas prescribed an antibiotic, a medication used to
treat bacterial illnesses which is ineffective on viral illnesses.
Symptoms of gastroenteritis also include diarrhea, a symptom that
Teagan Thiel did not have when she was seen by Dr. Salas on
August 28, 2006. Dr. Salas failed to perform a thorough history
and physical examination which would have lead him to consider
further diagnostic evaluations to determine the cause of Teagan
Thiel’s abdominal complaints. Dr. Salas breached the standard of
care and was negligent when he mis-diagnosed Teagan Thiel with
gastroenteritis without considering and excluding other causes of
Teagan Thiel’s abdominal symptoms.
3. On September 6, 2006, when Teagan Thiel again
presented to Dr. Salas at the Granbury Minor Emergency Clinic, she
was complaining of worsening symptoms of abdominal pain that
were localizing to the right side of the abdomen. Abdominal pain
in the right lower quadrant is a symptom commonly caused by
appendicitis. At the time of this second visit, Teagan Thiel had
been taking antibiotics prescribed by Dr. Salas on August 28,
2006, yet he diagnosed her with a urinary tract infection on
September 6, 2006. The antibiotic therapy she had been taking
should have increased his index of suspicion that the cause of her
abdominal complaints was appendicitis rather than the urinary tract
infection. Put simply, in light of her right sided abdominal
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complaints, Dr. Salas should have considered the cause of Teagan
Thiel’s abdominal complaints as appendicitis until proven otherwise
through an appropriate work-up. In order to make the proper
diagnosis, the standard of care required Dr. Salas’ work-up of
Teagan Thiel’s abdominal pain to include (1) obtaining her vital
signs to determine if there was a fever which is frequently present
with appendicitis; (2) obtaining a complete blood count (CBC)
which is a blood test which would have revealed any elevation in
her white blood cell count which is commonly found in patients
with appendicitis; (3) obtaining a pregnancy test since Teagan Thiel
was of child-bearing age and ectopic pregnancy may mimic the
signs and symptoms of appendicitis; and (4) obtaining an abdominal
and pelvic CT scan, a radiographic test conducted to visualize the
appendix to determine if it is enlarged, distended or thickened,
findings that indicate inflammation. Dr. Salas breached the
standard of care by failing to obtain an adequate history, perform
an appropriate physical examination and conduct the work-up
necessary to diagnose the cause of Teagan Thiel’s complaints. In
reasonable medical probability, had Dr. Salas conducted the work-
up described above, he would have diagnosed Teagan Thiel with
appendicitis before her appendix ruptured spilling bacteria and
causing the involvement of the colon that necessitated its removal
on September 14, 2006. The CT would have in all likelihood
revealed changes indicative of appendicitis that would have led to
the correct diagnosis. This opinion is based on her symptoms, the
CT findings on September 14, 2006 of appendicitis with extensive
inflammatory changes and the September 14, 2006 operative
findings of a ruptured, gangrenous appendix that had cause
extensive disease to the adjacent colon.
4. The standard of care further required Dr. Salas to refer
Teagan Thiel to the hospital emergency department or a surgeon to
treat her appendicitis on September 6, 2006. Having failed to
conduct any meaningful work-up to determine the cause of Teagan
Thiel’s abdominal pain, Dr. Salas mis-diagnosed her appendicitis
and failed to send Teagan Thiel to the hospital or a surgeon. In
reasonable medical probability, Dr. Salas’ failure to appropriately
diagnose Teagan Thiel and refer her to healthcare providers who
could treat her appendicitis resulted in a delayed diagnosis of her
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appendicitis. During this delayed period the appendix ruptured,
spilling bacteria into the peritoneal cavity. This bacteria formed an
abscess and infected the colon and resulted, in reasonable medical
probability, in the gangrenous colon found during the September
14, 2006 operation that necessitated the hemicolectomy.
To summarize, Dr. Spangler set forth at least two specific standard of
care violations by Dr. Salas: (1) he failed to conduct an appropriate and
thorough history and physical examination of Teagan Thiel on both August 28
and September 6 and failed to perform diagnostic testing on both dates, and (2)
he failed to refer Teagan Thiel to the hospital emergency department or to a
surgeon to treat her appendicitis. After setting forth these standard of care
violations, Dr. Spangler’s report sets forth the conduct that the standard of care
required in the taking of a medical history and physical examination: (1)
obtaining Thiel’s vital signs to determine if Thiel had a fever, which is frequently
present with appendicitis; (2) obtaining a complete blood count (CBC), which
is a blood test that would have revealed any elevation in her white blood cell
count that is commonly found in patients with appendicitis; (3) obtaining a
pregnancy test since Thiel was of child-bearing age and an ectopic pregnancy
may mimic the signs and symptoms of appendicitis; and (4) obtaining an
abdominal and pelvic CT scan, a radiographic test conducted to visualize the
appendix to determine if it is enlarged, distended, or thickened, which are
findings that indicate inflammation. The report then sets forth the treatment
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that should have been given to meet the standard of care—including referring
Thiel to a hospital or to a surgeon—and opines that Dr. Salas breached the
standard of care and was negligent when he misdiagnosed Thiel with
gastroenteritis and with a urinary tract infection without considering and
excluding other causes of Thiel’s abdominal symptoms.
Thus, contrary to Dr. Salas’s argument, Dr. Spangler’s report does
specifically describe what a “thorough history and physical examination”
required, does specifically describe how Dr. Salas failed to conduct a thorough
history and examination, and does specifically identify what diagnostic testing
should have been ordered. For the purposes of a statutory expert report,
statements concerning the standard of care and breach need only identify what
care was expected and was not given with such specificity that inferences need
not be indulged to discern them. See Palacios, 46 S.W.3d at 880; Benish, 281
S.W.3d at 198; Thomas v. Alford, 230 S.W.3d 853, 858 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). Because Dr. Spangler’s report meets this
requirement, we hold that the trial court did not abuse its discretion by
determining that Dr. Spangler’s report was adequate in this regard. We overrule
this portion of Dr. Salas’s first issue.
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E. Dr. Spangler’s Report Adequately Sets Forth Causation: The
Alleged Standard of Care Violations by Dr. Salas Proximately
Caused Thiel’s Hemicolectomy
Dr. Salas next argues that Dr. Spangler’s report fails to adequately
address the causation element of Thiel’s health care liability claim. Dr. Salas
contends that Dr. Spangler’s causation opinion is inadequate because he failed
to “provid[e] a time frame within which one would reasonably expect an
inflamed appendix to become gangrenous” and “utterly failed to establish when
Thiel actually started suffering from appendicitis, as well as when her appendix
ruptured.” Dr. Salas argues that Dr. Spangler’s causation opinion stacks
“speculation upon speculation and inference upon inference” concerning when
Thiel began suffering from appendicitis.
To establish causation, an expert report must provide information linking
the defendant’s purported breach of the standard of care to the plaintiff’s
injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Arkoma
Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 390
n.32 (Tex. 2008) (defining “conclusory” as “[e]xpressing a factual inference
without stating the underlying facts on which the inference is based”). An
expert must also explain the basis of his statements to link his conclusions to
the facts. Bowie Mem’l Hosp., 79 S.W.3d at 52. To constitute a good faith
effort to establish the causal relationship element, the expert report need not
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marshal all of the plaintiff’s proof or present evidence as if the plaintiff was
actually litigating the merits. See id. at 52–53; Palacios, 46 S.W.3d at 878.
No magic words such as “reasonable medical probability” are required for
compliance. Bowie Mem’l Hosp., 79 S.W.3d at 53. The report, however, must
provide enough information within the document to both inform the defendant
of the specific conduct at issue and to allow the trial court to conclude that the
suit has merit. Id. at 52.
A review of Dr. Spangler’s report refutes each of Dr. Salas’s claims
concerning its causation sufficiency. Dr. Spangler’s report explains,
Appendicitis should be diagnosed as early as possible to
achieve the best outcome for the patient. If a patient is diagnosed
before the appendix perforates, the appendix is typically removed
via a laparoscopic surgical procedure which allows for more rapid
healing and minimal scarring. In contrast, if the diagnosis is
delayed in a patient until after the appendix ruptures, a patient may
develop complications such as abscess, infection of other organs
or infection of the peritoneal cavity that requires more extensive
and difficult surgery. After rupture of the appendix, the longer the
diagnosis is delayed, the more extensive the spread of infection in
the abdomen becomes and greater damage to abdominal structures
occurs.
In this case, the diagnosis of Teagan Thiel’s appendicitis was
delayed due to Dr. Salas’ failure to obtain the appropriate clinical
history or complete an adequate physical examination and perform
the appropriate diagnostic testing to determine the cause of her
abdominal complaints. Because of this delay, her appendicitis
progressed until the appendix became gangrenous and ruptured
thereby spilling bacteria into her peritoneal cavity. As a result of
the perforation, Teagan Thiel’s colon became infected and
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gangrenous which required that a portion of this twenty-two year
old’s colon needed to be surgically removed (hemicolectomy).
It is my opinion, based on reasonable medical probability, as
explained in detail above, that Dr. Salas failed to timely diagnose
Teagan Thiel’s appendicitis. It is further my opinion, based on
reasonable medical probability, that this caused Teagan Thiel’s
diagnosis of appendicitis to be delayed. Due to this delay, Teagan
Thiel’s appendix ruptured and her colon became gangrenous. Her
increasing symptomatology is consistent with appendicitis at
different stages and supports the conclusion that the delay in the
diagnosis caused, in reasonable medical probability, the appendix
to rupture. Initially, appendicitis typically presents with abdominal
pain located around the umbilical area. As the appendix becomes
more distended, the overlying parietal peritoneum becomes irritated
causing the pain to migrate and become localized to the right lower
quadrant. When Teagan Thiel initially presented to the Granbury
Minor Emergency Clinic and was seen by Dr. Salas on August 28,
2006, she was not yet complaining of pain that was localized to
the right lower quadrant. This is indicative of an early appendicitis.
The second time Teagan Thiel was seen by Dr. Salas on September
6, 2006, the pain was localizing to the right side which is indicative
of an acute appendicitis with irritated parietal peritoneum most
commonly associated with increased swelling of the appendix
without perforation.
Thus, if Dr. Salas had acted within the standard of care and
timely diagnosed Teagan Thiel, her appendix would not have
ruptured, her colon would not have become gangrenous and she
would not have had to endure the extensive surgery she underwent
on September 14, 2006 that included removal of part of her colon.
Without restating every sentence in the causation portion of Dr.
Spangler’s report set forth above, a review of the above paragraphs
demonstrates information sufficient enough to inform Dr. Salas of the specific
conduct that Thiel has called into question and how that conduct purportedly
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injured Thiel, providing a basis for the trial court to conclude that Thiel’s claims
against Dr. Salas have merit. See, e.g., id. (setting forth when a report is
sufficient on causation). Dr. Spangler links Dr. Salas’s breaches of the standard
of care (“having failed to conduct any meaningful work-up to determine the
cause of Teagan Thiel’s abdominal pain, Dr. Salas mis-diagnosed her
appendicitis and failed to send Teagan Thiel to the hospital or a surgeon”) to
Thiel’s injury (“[i]n reasonable medical probability, Dr. Salas’ failure to
appropriately diagnose Teagan Thiel and refer her to healthcare providers who
could treat her appendicitis resulted in a delayed diagnosis of her appendicitis.
During this delayed period the appendix ruptured, spilling bacteria into the
peritoneal cavity. This bacteria formed an abscess and infected the colon and
resulted, in reasonable medical probability, in the gangrenous colon found
during the September 14, 2006 operation that necessitated the
hemicolectomy”).
Concerning Dr. Salas’s argument that Dr. Spangler failed to “provid[e] a
time frame within which one would reasonably expect an inflamed appendix to
become gangrenous” or “utterly failed to establish when Thiel actually started
suffering from appendicitis, as well as when her appendix ruptured,” Dr. Salas
points us to no case law or statutory provisions that would require Dr. Spangler
to opine in a chapter 74 expert report when Thiel started suffering from
21
appendicitis or when her appendix ruptured. Nonetheless, Dr. Spangler’s report
specifically explains how appendicitis progresses and states that when Dr. Salas
initially saw Thiel, her symptoms (general abdominal pain) were consistent with
early appendicitis; that when he saw her approximately nine days later, her
symptoms (abdominal pain localizing to the right side) were consistent with
acute appendicitis; and that if Dr. Salas had acted within the standard of care
and timely diagnosed Thiel, her appendix would not have ruptured, and she
would not have had to endure the extensive surgery she underwent on
September 14, 2006 that included removal of part of her colon. It is enough
that Dr. Spangler opined that Dr. Salas’s breaches of the standard of care
delayed the diagnosis of Thiel’s appendicitis so that Thiel’s appendix ruptured
after Dr. Salas’s September 6, 2006 examination and caused Thiel’s colon to
become gangrenous. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6);
see also, e.g., Simonson v. Keppard, 225 S.W.3d 868, 875–76 (Tex.
App.—Dallas 2007, no pet.) (causation opinion that failure to timely diagnose
cerebellar infarction or hemorrhage via a CT scan or neurological consult
proximately caused patient’s death was adequate).
Dr. Salas also claims that Dr. Spangler’s causation opinions are
conclusory. But, as set forth above, Dr. Spangler’s causation opinions
specifically and extensively set forth all of the facts on which they are
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based—that is, Thiel’s symptoms on August 28, her continuing and worsening
symptoms on September 6, and her ultimate ruptured appendix and gangrenous
colon. Thus, Dr. Spangler’s causation opinions are not conclusory. See, e.g.,
Arkoma Basin Exploration Co., 294 S.W.3d at 390 n.32; Mosely, 249 S.W.3d
at 780–81 (holding expert’s causation opinion was not mere conjecture
because it was supported with facts); Simonson, 225 S.W.3d at 876 (same).
For the same reasons that Dr. Spangler’s causation opinions are not
conclusory, they also do not stack inference upon inference as alleged by Dr.
Salas. An inference is a deduction of fact that may be drawn from another
fact. See Black’s Law Dictionary 700 (5th ed. 1979). Direct evidence, on the
other hand, is “evidence which, if believed, proves the fact without inference
or presumption.” Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861
(5th Cir. 1993). Dr. Spangler’s causation opinions constitute direct evidence
that Dr. Salas’s breaches of the standard of care caused Thiel’s injuries. Dr.
Spangler expressly explained that
based on reasonable medical probability, as explained in detail
above, . . . Dr. Salas failed to timely diagnose Teagan Thiel’s
appendicitis. It is further my opinion, based on reasonable medical
probability, that this caused Teagan Thiel’s diagnosis of
appendicitis to be delayed. Due to this delay, Teagan Thiel’s
appendix ruptured and her colon became gangrenous.
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No inference is required. Dr. Spangler expressly states that Dr. Salas’s
breaches of the standard of care caused Thiel’s injuries. Likewise, Dr. Spangler
expressly opines that Thiel was suffering from appendicitis when she initially
presented to Dr. Salas on August 28 (“early appendicitis”); that when Thiel
presented to Dr. Salas on September 6, she was suffering from acute
appendicitis but her appendix had not yet ruptured (“pain was localizing to the
right side which is indicative of an acute appendicitis . . . with increased
swelling of the appendix without perforation”) (emphasis added); and that, as
a result of Dr. Salas’s failure to timely diagnose Thiel’s appendicitis, her
appendix subsequently ruptured (“if Dr. Salas had acted within the standard of
care and timely diagnosed Teagan Thiel, her appendix would not have
ruptured”). No inferences are required to support Dr. Spangler’s causation
opinions.
Viewing the information set forth within the four corners of Dr. Spangler’s
report, we hold that the trial court did not abuse its discretion by determining
that Dr. Spangler’s report provides a fair summary of his expert opinions as to
the “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. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see Palacios, 46 S.W.3d at
24
878; Walters v. Hudoba, No. 02-08-00196-CV, 2009 WL 161079, at *6 (Tex.
App.—Fort Worth Jan. 22, 2009, no pet.) (mem. op.). Thus, the trial court did
not abuse its discretion by determining that Dr. Spangler’s report constitutes
an objective good faith effort to satisfy the two purposes of section 74.351.
See Palacios, 46 S.W .3d at 879; see also Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l), (r)(6); CHCA Mainland, L.P. v. Wheeler, No. 09-07-00634-CV,
2008 WL 960798, at *5 (Tex. App.—Beaumont Apr. 10, 2008, no pet.) (mem.
op.) (holding that doctor’s expert report represented a good faith effort to
comply with the definition of an expert report when it expressed opinion that
if not for medical center’s breach of the standard of care, with the symptoms
the patient presented at the emergency room, the patient would have been seen
and evaluated by qualified medical personnel and “would have been spared the
generalized intraperitoneal sepsis that necessitated more extensive surgery and
an extended hospitalization”). Accordingly, we overrule the remainder of
Appellants’ first issue.
IV. T RIAL C OURT F AILED TO A WARD A TTORNEY’S F EES TO C LINIC
In Appellants’ second issue, the Clinic argues that the trial court abused
its discretion when it refused to award the Clinic attorney’s fees after
dismissing, with prejudice, the health care liability claims Thiel alleged against
the Clinic. In the Clinic’s motion to dismiss, it objected to Dr. Spangler’s
25
qualifications and the substance of his opinions, moved for dismissal with
prejudice of the claims Thiel brought against the Clinic, and requested
attorney’s fees. The trial court thereafter signed an order sustaining the Clinic’s
objections, granting the Clinic’s motion to dismiss with prejudice all health care
liability claims alleged by Thiel against the Clinic, and awarding the Clinic “$0”
in attorney’s fees. Thiel did not perfect an appeal challenging the trial court’s
dismissal with prejudice of her health care liability claims against the Clinic;
thus, the propriety of the trial court’s order dismissing with prejudice Thiel’s
claims against the Clinic is not before us.2 See Tex. R. App. P. 25.1(c)
(requiring any party who seeks to alter the trial court’s judgment or other
appealable order to file a notice of appeal).
When a health care liability claim is dismissed with prejudice pursuant to
Texas Civil Practice and Remedies Code section 74.351(b), the trial court is
required to award attorney’s fees. Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b) (providing that trial court shall award reasonable attorney’s fees).
Statutes providing that a party “shall” be awarded attorney’s fees are not
discretionary. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998); Abilene
Diagnostic Clinic v. Downing, 233 S.W.3d 532, 535 (Tex. App.—Eastland
2
… Likewise, in her appellate brief, Thiel prays that this court “will affirm
the judgment of the trial court.”
26
2007, pet. denied). We therefore hold that the trial court abused its discretion
by awarding no attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b); accord Davis v. Webb, 246 S.W.3d 768, 774 (Tex.
App.—Houston [14th Dist.] 2008, no pet.).
We sustain Appellants’ second issue.
V. C ONCLUSION
Having overruled Appellants’ first issue, we affirm the portion of the trial
court’s November 17, 2008 order denying Dr. Salas’s motion to dismiss.
Because Thiel does not challenge the portion of the order granting the Clinic’s
motion to dismiss, we affirm that portion of the order. Having sustained
Appellants’ second issue, we reverse the portion of the trial court’s order
awarding no attorney’s fees to the Clinic and remand the issue of attorney’s
fees to the trial court.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: August 27, 2009
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