Kevin D. Wheeler, M.D. v. Charles F. Luberger ( 2015 )

ACCEPTED
14-14-00992-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/6/2015 5:33:21 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00992-CV
FILED IN
IN THE COURT OF APPEALS FOR THE FOURTEENTH14th
DISTRICT
COURT OFOF
APPEALS
TEXAS HOUSTON, TEXAS
2/6/2015 5:33:21 PM
CHRISTOPHER A. PRINE
Clerk
KEVIN D. WHEELER, M.D., Appellant
vs.
CHARLES F. LUBERGER, Appellee
Appeal of Cause No. 2014-07070,
in the 157 th Judicial District Court,
Harris County, Texas, Honorable Randy Wilson
BRIEF OF APPELLANT, KEVIN D. WHEELER, M.D.
UZICK & ONCKEN, P.e.
Roger A. Berger
State Bar No.: 02192400
rberger@uzickoncken.com
Jeffrey H. Uzick
State Bar No.: 20419200
jhu@uzickoncken.com
238 Westcott
Houston, Texas 77007
Tel: 713/869-2900
Fax: 713/869-6699
Counsel for Appellant
Kevin D. Wheeler, M.D.
ORAL ARGUMENT REQUESTED
IDENTITY OF THE PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of the parties, attorneys,
and any other person who has any interest in the outcome of this lawsuit:
Appellant Kevin D. Wheeler, M.D.
Appellant's Counsel Roger A. Berger
State Bar No.: 02192400
rberger@uzickoncken.com
Jeffrey H. Uzick
State Bar No.: 20419200
jhu@uzickoncken.com
238 Westcott
Houston, Texas 77007
Tel: 713/869-2900
Fax: 713/869-6699
Appellee Charles F. Luberger
Appellees' Counsel Mr. John J. I46 S.W.3d 873 (Tex. 2001) .......... passim
Bogar v. Esparza, 257 S.W.3d 354 (Tex. App. - Austin 2008, no pet.) .................... 12
Bowie Memorial Hospitall;. Wright, 79 S.W.3d 48 (Tex. 2002) ................... 9, 18,21,30
Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) ....................................................... 20
Castillo v. Atq;tlst; 248 S.W.3d 874 (Tex. App. - El Paso 2008, no pet.) ..................... .21
Clapp v. Perez, 394 S.W.3d 254 (rex. App. - El Paso 2012, no pet.) ................. 31-32
Christus Spohn Health System Coporation v. Castro, No. 13-13-00302-CV,
2013 WL 6576041 (rex. App. - Corpus Christi 2013, no pet.) ............... 25-26
Collini v. Pustejovsky, 280 S.W.3d 456 (Tex. App. Fort Worth 2009, no pet.) .......... 21
Cooper v. Ari'2008 WL 940490 (Tex. App. - San Antonio 2008, pet. denied) ...... 17
Davis v. Spring Branch Medical Center, Inc.,
171 S.W.3d 400 (Tex. App. - Houston [14d1 Dist.] 2005, no pet.) ............... 16
Doades v. Syed, 94 S.W.3d 664 (Tex App. - San Antonio 2002, no pet.) .................. 18
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985),
cert. denied, 476 U.S. 1159 (1986) ...................................................... 8
Eichelberger v. Sf. Paul, 99 S.W.3d 636 (Tex. App. - Dallas 2003, pet. denied) ...... 18,31
Estorque v. Schafer, 302 S.W.3d 19 (Tex. App. - Fort Worth 2009, no pet.) ............... 30
Ezekial v. Shorts, No. 14-12-00305-CV, 2013 WL 119712
(Tex. App. Houston [14th Dist.] 2013, no pet.) (mem. op.). ................... 25
Fontenot Enteprises 7/. Kronick, 2006 WL 2827415
(Tex. App. - Houston [14th Dist.] 2006, no pet.) (mem. op) ............... 25,27
VI
Forrest v. Danielson, 77 S.W.3d 842 (Tex. App. - Tyler 2002, no pet.) ............... 15, 29
Giannone v. Burch, No. 14-11-00242-CV, 2011 WL 6580728
(Tex. App. - Houston [14th Dist.] 2011, no pet.)(mem op.) ....................... 16
Hillman v. Diagnostic Clinic of Houston, 2005 WL 995453
(Tex. App. - Houston [1" Dist.] 2005, no pet.)(mem. op.) ................... 18, 31
Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App. - Dallas 2011, no pet.) .............. 12
In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832
(Tex. App. - Houston [14th Dist.] 2003) (orig. proceeding) .................................... 8
In re Watkins, 279 S.W.3d 633 (Tex. 2009) ............................................. 13-14
Kuykendall v. Dragun 2006 WL 728068 (Tex. App. - Eastland 2006, pet. denied) ...... 17
Laredo Tex. Hosp. Co. v. Gonzales,
363 S.W.3d 255 (Tex. App. - San Antonio 2012, no pet.) ........................ 23
Ledesma v. Shashoua, No. 03-05-00454-CV, Tex. App. LEXIS 3749
(Tex. App. - Austin 2008, pet. den.) ......................................................................... 35
Lewis v. Funderburk, 253 S.W.3d 204 (Tex. 2008) .......................................... 2
Lopez v. Sinha, 2006 WL 2669355
(Tex. App. - H.ouston [14th Dist.] 2006, no pet.) (mem. op.) ................. 33-34
Niemann v. Refugio Counry Mem. Hosp.,
855 S.W.2d 94 (Tex. App. - Corpus Christi 1993, no writ) ...................... 19
Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) ........................................... 12
Rittmer v. Garza, 65 S.W.3d 718 (Tex. App. - Houston [14th Dist.] 2001, no pet.) ...... 31
Rivenes v. Holden, 252 S. W3d 332
(Tex. App. - Houston [14th Dist.] 2008, pet. denied) ......................... 13,22
Vll
Ro.remond v. AI-L:lhiq,
362 S.W.3d 830 (rex. App. -- Houston [14th Dist.J2012, pet. denied) .......... 24
Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) ............................... 11-12,34,36
Schmidtv. Escareno, No. 09-11-00662-CV,
2012 WL 759063 (Tex. App. - Beaumont 2012, no pet.) (mem. op.) ........ 32-33
Scoresby lJ. Santillan, 346 S.W.3d 546 (Tex. 2011) ........................................... 13
Shaw v. BMW Healthcare, 100 S.W.3d 8 (Tex. App. - Tyler 2002, pet. denied) ...... l1, 15
Stanton v. Westbrook,
598 S.W.2d 331 (rex. App. -- Houston [14th Dist.J1980, writ ref'd n.r.e.) ...... 16
Strom v. Memorial Hermann Hospital System, 110 S.W.3d 216
(Tex. App. - Houston [1 st Dist.J2003, pet. denied) ........................... 9, 15
Tenet Hosp. ILC v. Love, 347 S.W.3d 743 (Tex; App. - EI Paso 2011, no pet.) .......... 21
VilJarreal v. Hernande,\; No. 13-10-00532-CV
(Tex. App. - Corpus Christi, June 9, 2011, no pet.) (mem. op.) .............. 23-24
Webster v. Johnson, 737 S.W.2d 884 (Tex. App. - Houston [1 st Dist.] 1987, pet. den.) ... 16
Whitworth v. Blumenthal, 59 S.W.3d 393 (Tex. App.-Dallas 2001, pet. dism'd by agr.) .. ll
Windsorv. Maxwell, 121 S.W.3d 42 (Tex. App. Fort Worth 2003, pet. denied) ....... 19
Women's Clinic of South Texas v. Alonzo, 2011 WL 1106698
(Tex. App. - Corpus Christi 2011, no pet.) (mem. op.) ...................... 34-35
Zavala v. Pinkerton 2007 WL 2010832 (Tex. App. -Austin 2007, no pet.)(mem. op) .... 31
VlIl
STATE RULES
Tex. Civ. Prac. & Rem. Code §51.014(a)(9) ............................................... 2,4
Tex. Civ. Prac. & Rem. Code §74.351.. ...................................................... 9
Tex. Civ. Prac. & Rem. Code §74.351(a) ................................................ 9,37
Tex. Civ. Prac. & Rem. Code §74.351(b) ................................................ 9-10
Tex. Civ. Prac. & Rem. Code §74.351 (c) ................................................... 11
Tex. Civ. Prac. & Rem. Code §74.351(l) ................................................... 10
Tex. Civ. Prac. & Rem. Code §74.351 (r)(6) ................................................. 9
Tex. Civ. Prac. & Rem. Code §74.403(a) .............................................. 20
Tex. R. Evid. 702 ................................................................................ 20
Tex. Rev. Civ. Stat. Ann. art. 4590i. ..................................................... 8,22
IX
No. 14-14-00992-CV
IN THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF
TEXAS
KEVIN D. WHEELER, M.D., Appellant
vs.
CHARLES F. LUBERGER, Appellee
Appeal of Cause No. 2014-07070,
in the 157 th Judicial District Court,
Harris County, Texas, Honorable Randy Wilson
BRIEF OF APPELLANT, KEVIN D. WHEELER, M.D.
TO THE HONORABLE JUSTICES OF THE FOURTEENTH COURT OF
APPEALS:
Appellant, Kevin D. Wheeler, M.D., (hereinafter "Appellant"), submits this
Appellate Brief and requests this Court reverse the ruling of the trial court that denied
Appellant's Chapter 74 Motion to Dismiss, order dismissal of Appellee's lawsuit and
award attorneys fees and court costs to Appellant.
STATEMENT OF JURISDICTION
This is an interlocutory appeal of the denial of a Motion to Dismiss filed
pursuant to Chapter 74 of the Civil Practice and Remedies Code. This Court
has jurisdiction over Appellants' interlocutory appeal. Tex. Civ. Prac. & Rem.
Code §51.014(a)(9); Lewis v. Funderburk, 235 S.W.3d 204 (Tex. 2008).
STATEMENT REGARDING ORAL ARGUMENT
In medical malpractice cases in Texas, claimants must file reports from qualified
expert witnesses addressing the standard of care, breach of the standard of care, and
proximate cause within 120 days of the filing of a Defendant's original answer. A
court has discretion to grant a thirty-day extension to cure a deficiency in an expert's
report if the report meets some minimum requirements.
The expert report in this case was so deficient that it qualified as "no report" -
the report met none of the statutory requirements and was therefore so deficient it was
not capable of cure. Since there is no bright line test as to when a report crosses the
line between merely deficient and so deficient as to constitute "no report", oral
argument in this case will help clarifY the reasons why this expert's report was not
capable of cure.
2
STATEMENT OF THE CASE
Nature of the Case. Appellee sued for medical malpractice, claiming Appellant cut
his common bile duct during a laparoscopic cholecystectomy. (lCR 4). Appellee also
sued another surgeon called in to assist Appellant after the complication, as well as the
group for which he worked. (lCR 4).
Course of Proceedings. For ease in the review of the procedural history of this case,
Appellant
, has prepared the following chart which summarizes the relevant events:
June 13, 2014 Report of AtifIqbal, M.D., filed.
3
July 14, 2014 Appellant filed Motion to Dismiss. 1CR 45
August 29,2014 The trial court heard Appellant's Chapter 74 1RR 1
and Motions to Dismiss.
August 29,2014 Appellant filed post-submission briefing. 2CR 3
September 4,2014 Appellee post-submission briefing. 2CR 19
September 5, 2014 Appellant filed additional post-submission 2CR 17
September 8, 2014 The trial court granted Appellee a thirty-day 1CR 56;
extension to cure deficiencies. 1
October 8, 2014 Appellee filed a report from a new expert,
Oluwole F M.D. 4
October 23, 2014 Appellant filed his Second Motion to Dismiss. 1CR 59
November 21, 2014 The trial court heard Appellant's Second 2RR 1,
Motion to Dismiss and denied the Motion. 2
1Appellant requested inclusion of tbis brief in the record, but it was not included. (2CR 19).
Appellant distinguished Appellee's arguments in a second post-submission brief. (2CR 17).
3
Trial Court's Disposition of the case. The Honorable Randy Wilson signed an Order
granting an extension to cure a report that Appellant argued was "no report" and not
capable of cure, on September 8, 2014. (1CR 56, Appendix 1). After Appellee ftled a
new report from a new expert, Judge Wilson signed an Order denying Appellant's
Second Chapter 74 Motion to Dismiss on November 21, 2014. (1CR 76; Appendix 2).
Appellant then timely perfected this interlocutory appeal challenging the denial of the
Motions to Dismiss, pursuant to Tex. Civ. Prac. & Rem. Code §51.014(a)(9). (1CR 80).
ISSUES PRESENTED
Issue number 1: Is an expert report that fails to set forth a standard of care, a
breach of the standard of care, or proximate cause capable of cure with an extension or
is it "no report" and thus incapable of cure? In this case, the trial court abused its
discretion when it failed to dismiss Appellee's lawsuit and instead granted a thirty-day
extension to cure deficiencies in Appellee's expert report as the report was "no report"
and was therefore not capable of cure.
Issue number 2: The trial court abused its discretion when it failed to dismiss
Appellee's lawsuit after Appellee failed to cure the deficiencies in his expert report
after being given a thirty-day extension to cure.
4
STATEMENT OF FACTS
Appellee underwent a laparoscopic cholecystectomy on June 14,2012. (lCR 4).
During surgery, Appellant cut Appellee's common bile duct. (lCR 4). Appellant then
converted to an open surgery and called in another surgeon, Dr. Clay Albrecht, to
assist in the repair. (lCR 4). Appellee alleged various injuries and damages in his suit
filed February 16, 2014. (lCR 4).
Appellee filed a three paragraph report of Atif Iqbal, M.D., on June 13, 2014.
(lCR 4). Appellant timely filed Objections to Appellee's filing on July 2,2014 (1CR
29), then filed a Motion to Dismiss on July 14, 2014 after expiration of the 120-day
statutory deadline. (1 CR 45).
The trial court heard the Chapter 74 Objections and Motions to Dismiss on
August 29, 2014. (lRR 1). The court took the matter under advisement and asked for
briefing on the issue raised by Appellant, that the report was "no report" and therefore
not capable of cure. (lRR 1, 6-7). Post-submission letter briefs were filed on August
29,2014 (Appellant; 2CR 3), September 4, 2014, (Appellee; 2CR 19), and September 5,
2014 (Appellant; 2CR 17). The trial court eventually granted Appellee's request for a
thirty-day extension to cure deficiencies. (lCR 56; Appendix 1).
Appellee subsequently filed a new report from a new expert, Oluwole Fajolu,
M.D., on October 8, 2014. (1CR 57). Appellant timely objected to this report and
again moved for dismissal on October 23, 2014. (1CR 59).
5
On November 21, 2014, the trial court heard Appellant's Chapter 74 Objections
and Second Motions to Dismiss (2RR 1) and denied the Motion to Dismiss on that
date. (1CR 76; Appendix 2). Appellant timely perfected this interlocutory appeal
challenging the trial court's denial of the Motion to Dismiss. (1 CR 80).
6
SUMMARY OF THE ARGUMENT
The trial court abused its discretion and erred in failing to grant Appellant's
initial Chapter 74 Motion to Dismiss and instead giving Appellee a thirty-day extension
to cure deficiencies in his expert report since that report was so deficient it was "no
report" and was not capable of being cured. More specifically, Appellee's initial report
did not meet any of the statutorily required elements for an expert report as it did not
set forth a standard of care for Appellant, did not give opinions on breach of the
standard of care by Appellant and did not address any causal connection between any
alleged breach and the injuries and damages alleged. The expert also was not qualified.
Despite the extension, Appellee failed to cure deficiencies. Although Appellee
did file an additional expert report from a new expert, the new report did not cure the
deficiencies. It did not meet the strict requirements of Chapter 74.
The Court erred and abused its discretion when it denied Appellant's Motion to
Dismiss. Its ruling should be reversed and the claims against Appellant should be
dismissed with prejudice. Appellant should also be awarded attorneys' fees and court
costs pursuant to Chapter 74.351(b)(1).
7
ARGUMENTS AND AUTHORITIES
Appellant submits the following arguments and authorities.
I. Standard of Review.
Chapter 74.001, et seq., of the Civil Practices and Remedies Code ("Chapter 74")
governs health care liability claims flled after September 1,2003, such as this case. It
differs in many respects to the prior law, Tex. Rev. Civ. Stat. Ann. art. 4590i ("Art.
4590i"). See generally Tex. Civ. Prac. & Rem. Code Ann. § 74.001, et seq. and Tex. Rev.
Civ. Stat. Ann. art. 4590i (repealed 2003). However, in many instances it uses the exact
same language. Therefore, prior case law interpreting Art. 4590i is instructive.
When examining provisions of Chapter 74, courts must be mindful of the
comprehensive nature of the Act. See In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d
832, 840 (Tex. App. - Houston [14th Dist.] 2003)(orig. proceeding). Tex. Civ. Prac. &
Rem. Code Ann. §74.351 replaced Section 13.01 of,Article 4590i (repealed by Act of
June 2, 2003, 78th Leg., R.S., Ch. 204, §10.09).
A trial court's decision under Ch. 74.351 is reviewed under an abuse of
discretion standard. American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 875
(Tex. 2001). A court abuses its discretion when it acts without regard to guiding rules
or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985), cert. denied, 476 U.S. 1159 (1986). To determine if abuse of discretion occurred,
this Court must decide if the trial court's failure to grant the Motion to Dismiss was
"arbitrary or unreasonable". Id. at 243.
8
In reviewing whether an expert report complies with Chapter 74.351, the Court
must evaluate whether the report represents a "good-faith effort" to comply with the
statute. Strom v. Memorial Hermann Hospital System, 110 S.W.3d 216, 221 (Tex. App. -
Houston [1" Dist.] 2003, pet. denied), citing Palacios, 46 S.W.3d at 878. In making this
evaluation, the Court must look only at the information contained within the four
corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002);
Palacios, 46 S.W.3d at 878.
II. Chapter 74 Expert Report Requirements.
Chapter 74.351 of the Civil Practice and Remedies Code governs filing of expert
reports in medical malpractice cases and delineates what they must contain. Pursuant
to Section 74.351, a health care liability claimant must
serve on each party or the party's attorney one or more expert reports,
with a curriculum vitae of each expert listed in the report for each
physician or health care provider against whom a liability claim is
asserted.
Tex. Civ. Prac. & Rem. Code Ann. §74.351(a). The report must provide
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 to meet the standards, and the causal relationship
between that injury and the injury, harm, or damages claimed.
Tex. Civ. Prac. & Rem. Code Ann. §74.351 (r)(6).
Chapter 74.351(b) provides remedies if a claimant fails to timely serve the
required report and curriculum vitae, requiring the Court to enter an order that:
9
(a) awards to the affected physician or health care provider reasonable
attorney's fees and costs of court incurred by the physician or health care
provider; and
(b) dismisses the claim with respect to the physician or health care
provider, with prejudice to the refiling of the claim.
Tex. Civ. Prac. & Rem. Code Ann. §74.351(b).
A court must grant a motion challenging the adequacy of an expert report if the
report does not represent an objective good faith effort to comply with the defInition
of an expert report from the statute. Tex. Civ. Prac. & Rem. Code Ann. §74.351(l).
The Supreme Court has held an expert report constitutes a goode faith effort to
provide a fair summary of the expert's opinions when the expert discusses the standard
of care, breach, and causation with "sufflcient specifIcity to infonn 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 that
merely states an expert's conclusions about standard of care, breach, and causation
does not meet the statutory requirements. Id. at 879. Both parts of the Palacios test
must be met for a report to be adequate-it does not meet the standard if it omits any
statutory requirements. Id
An expert report must provide specifIc details about the patient's treatment,
how the Defendant should have treated the patient, and how the alleged failures to
treat proximately caused the patient's injuries. Id.
A report that fails to adequately set forth the elements required by the statute
10
is not, by defmition, an "expert report." Whitworth v. Blumenthal, 59 S.W.3d 393, 397
(Tex. App. - Dallas 2001, pet. dism'd by agr.) (holding that report which failed to set
forth a standard of care for the Defendant or how the Defendant breached the
standard of care was, by definition, not an expert report); see also Shaw v. BMW
Healtheare, Inc., 100 S.W.3d 8, 13-14 (Tex. App. - Tyler 2002, pet. denied) (report that
did not delineate any standards of care for the Defendant to follow or show what the
Defendant should have done differently does not comply with the statute).
III. Extensions to cure should be liberally granted for deficient reports.
The provision governing extensions to cure deficient reports provides that:
If an expert report has not been served within the period specified by
Subsection (a) because elements of the report are found deficient, the
court may grant one 30-day extension to the claimant in order to cure the
deficiency.
Tex. Civ. Prac. & Rem. Code Ann. §74.351 (c).
In Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011), the Supreme Court set forth
new procedures for challenging expert reports and provided what some considered to
be an announcement of a strong preference that trial courts allow extensions to cure as
long as a report meets some minimum requirements of an expert report.
The plurality, concurring and dissenting opinions in S amlowski discuss the
policies behind liberal granting of extensions. The Court noted that guidance must
come from the broader purposes of the Texas Medical Liability Act, of which section
74.351 (c) is a part. Id. at 410. The statute incorporates a significant exception "giv~ngl
11
trial courts discretion to grant a thirty day extension so that parties may, where
possible, cure deftcientreports." Id. at 411 (emphasis added).
The overriding principle guiding trial court discretion under section 74.351 (c) is
elimination of frivolous claims and preservation of meritorious ones. Id at 411. An
adequate expert report is how the statute distinguishes between the two. Id A trial
court should therefore grant an extension when a deficient expert report can readily be
cured and deny the extension when it cannot. Id.
Appellee's expert report failed to meet any of the required elements and
therefore was not just inadequate, but rather "no report" and not capable of cure.
IV. Issue number 1.
Issue number 1: Is an expert report that fails to set forth a standard of care, a
breach of the standard of care, or proximate cause capable of cure with an
extension or is it "no report" and thus incapable of cure?
Because Appellee's report did not set forth any of the required elements as to
Appellant, it was "no report" and was not capable of being cured with an extension.
A. The difference between "no report" and a deficient, but curable
report.
The Supreme Court has recognized there are differences between absent reports
and merely deficient reports. See Ogietree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007).
A report that wholly fails to address one or more elements as to a Defendant is an
absent, not deficient report. See Bogar v. Esparza, 257 S.W.3d 354, 369 (Tex. App. -
Austin 2008, no pet.); HoiiingsJJJorth v. Springs, 353 S.W.3d 506, 524 (Tex. App. - Dallas
12
2011, no pet.) (court may not provide opportunity to cure when an expert report is
"absent" as opposed to deficient).
A report that fails to implicate a Defendant is so legally defective it is "no
report" and cannot be cured. Rivenes v. Holden, 252 S.W.3d 332 (Tex. App. - Houston
[14th Dist.] 2008, pet. denied). An expert report must actually allege that the
Defendant committed malpractice. Scoresby v. Santillan, 346 S.W.3d 546, 559 (Tex.
2011).
In Scoresby, the Supreme Court established a three-prong test to determine if a
report is "no report" or merely deficient, but curable; thus, for an extension to be
considered, the report must at a minimum (1) be timely served, (2) contain the opinion
of a qualified expert, and (3) implicate the Defondant's conduct. Id. at 557 (emphasis added).
Justice Willett noted in his concurrence that the line between "no report" and an
inadequate report is "forgiving but bright: the 'report' must actually allege someone
committed malpractice. The genesis of this elemental requirement is found in Ogletree,
where the Court first indicated that the purported report must implicate a provider's
conduct. It merits emphasis, however, that today's standard, benevolent as it is, is not
satisfied by any medical-related piece of paper; the bar is low but not subterranean." Id.
at 558-60 (Willett,]., concurring).
In In re Watkins, 279 S.W.3d 633 (Tex. 2009), Justice Willett again wrote a
concurring opinion, noting the Defendant appealed the extension allowed by the trial
court, but failed to appeal denial of the motion to dismiss, thus depriving the Court of
13
the opportunity to further clarify what constitutes "no report". !d. at 636-637 and fn.
13. In the case at bar, Appellant brings error as to denial of the Motion to Dismiss to
allow the appellate courts to declare Dr. Iqbal's report to be "no report", thus helping
to further clarify the line between a report that is curable and one that is so utterly
deficient that it is "no report" and thus not capable of cure. This will also provide
guidance to future litigants and to courts considering future Chapter 74 challenges.
B. Appellee's initial report was "no report".
Dr. Iqbal's report does not implicate Appellant's conduct as it does not provide
a specific standard of care for Appellant, does not say Appellant breached any standard
of care and does not affIrmatively connect any such breach to the cause of any injury.
Dr. Iqbal's report consists of three short paragraphs, with the first two devoted
to what records he reviewed and a very brief background of the surgery performed.
(1CR 16). The third and final paragraph, in its entirety, states:
"Comprehensive review of all documents especiallY operative report indicate a complex
iatrogenic bile duct injury. In my opinion that require [sic] hepato biliary surgeon as
the reconstruction procedure is complicated and if not done right it leads to prolong
[sic] morbidity and some case mortality. I feel that Intra operative [sic] consult
should have been called by Dr. Wheeler instead of trying to fix the injury by himself
unless he does routinelY [sic] hepato biliary procedures. Operatil)e report has some
elements of confusion suggesting doubts about the integrity offinal repair. This might
be the reason ofprolong recovery of Mr. Luberger. "
(1CR 16; Appendix 3).
14
1. Appellee's report did not set forth a standard of care.
As to the first required element, standard of care, Dr. Iqbal does not state. what
the standard of care required Appellant to do. A report that fails to set forth a
standard of care is not a proper report under the statute. See Forrest v. Danielson, 77
S.W.3d 842, 848 (Tex. App. - Tyler 2002, no pet.). In Forrest, the Court noted
The amended expert report flIed in this case lacks all of the requirements
of section 13.01(r)(6f The report contains a review of the medical
records, which is not required by section 13.01 (r)(6). Moreover, not only
does it not present a fair summary of the three required elements, it does
not even recite an applicable standard of care, explain how the medical care failed to
meet that standard, or identifj the causal relationship between that failure and the
claimed injHry. Rather, the report states that "this surgery was unnecessary
and improper" and concluded that "[mJore likely than not,· this
procedure caused Ms. Forrest to have symptoms and findings not
present prior to surgery." Such conclusions are inadequate to meet the
requisites of section 13.01(r)(6).
Id. (emphasis added). The Iqbal report is no different-it wholly fails to recite an
applicable standard of care.
Identifying the standard of care is critical because "whether a defendant
breached his duty to a patient cannot be determined without specific information
about what the defendant should have done differently." Strom, 110 S.W.3d at 222;
Shaw, 100 S.W.3d at 13.
Even saying a Defendant violated the standard of care would not be enough
unless the expert discusses what the standard of care required because an alleged
breach cannot be evaluated without knowing what the standard of care required. See
2 This was the equivalent section of the predecessor statute, Article 4590i, governing expert reports.
15
Giannone v. Burch, No. 14-11-00242-CV, 2011 WL 6580728 (Tex. App. - Houston
[14th Dist.] 2011, no pet.)(mem op.). Additionally, a court cannot infer a standard of
care when it is not set forth in a report. Davis v. Spring Branch Medical Center, Inc., 171
S.W.3d 400, 409 (Tex. App. - Houston [14th Dist.] 2005, no pet.).
Dr. Iqbal did not set forth a standard of care at all; the report was not capable of
cure as to the standard of care.
2. Appellee's report did not set forth a breach of the standard of care.
Dr. Iqbal's report does not state that Appellant violated the standard of care.
Although he does discuss an opinion regarding obtaining an intra-operative consult, he
merely says he "feels" it should have been done. Specifically, the only potential place a
breach is discussed is when he says:
'1 fiel that Intra operative [sic] conSlJlt should have been called by Dr. Wheeler
instead of trying to fix the injury by himself unless he does routinelY [sic] hepato
biliary procedures. "
(lCR 16; Appendix 3).
Dr. Iqbal thus gives his personal preference, but does not equate his personal
preference to the standard of care. A physician's personal preference does not
establish the standard of care absent testimony that deviation from the expert's
personal preference is below the standard of care. See Webster v. Johnson, 737 S.W.2d
884,889-890 (Tex. App. - Houston [1st Dist.] 1987, pet. denied); Stanton v. Westbrook,
598 S.W.2d 331, 333 (Tex. App. - Houston [14th Dist.] 1980, writ ref'd n.r.e.). Dr.
16
Iqbal does not tie his personal preference to the standard of care and he therefore does
not address breach of the standard of care.
Dr. Iqbal does not actually opine that the standard of care required Appellant to
obtain an intra-operative consult. This part of the report, and hence the opinion about
breach of the standard of care (assuming that was even Dr. Iqbal's intent), assumes
without any basis that Dr. Wheeler does not routinely do hepato-biliary procedures
and does not discuss what, if any, evidence supports that assumption.
An expert may not rely on assumptions and speculation in an expert report.
Cooper v. An:;pe, 2008 WL 940490 *4 (Tex. App. San Antonio 2008, pet. denied) ("by
relying on assumptions instead of facts, the report provides no basis for the trial court
to conclude that the claims against Cooper and Wilcox have merit" and the trial court
therefore abused its discretion by denying the Motion to Dismiss). See also Kuykendall?!.
Dragun 2006 WL 728068 at *3-4 (Tex. App. - Eastland 2006, pet. denied). The
Kuykendall court also affirmed the denial of an extension to cure deficiencies (albeit in
analyzing Article 4590i). Id. at *5.
Dr. Iqbal did not set forth any breach of the standard of care; the report was not
capable of cure as to breach of the standard of care.
3. Appellee's report did not set forth proximate cause.
Although "magic words" may not be required, the expert must address
proximate cause and provide some basis to conclude that an act or omission of a
Defendant proximately caused injuries. Palacios, 46 S.W.3d at 875.
17
"A report that merely states the expert's conclusions about the standard of care,
breach, and causation is not sufficient." Id at 879. An expert report cannot merely
state conclusions to meet the elements of the Palacios test; it must explain the basis of
the expert's statements and link his conclusions to the facts. Bowie, 79 S.W.3d at 52;
Hillman v. Diagnostic Clinic of Houston, 2005 WL 995453 at *3 (Tex. App. - Houston [1st
Dist.] 2005, no pet.).
Stated differently, the expert must explain the basis of his statements and link
his conclusions to the facts. Bowie, 79 S.W.3d at 52-53. See also Eichelberger v. St. Paul, 99
S.W.3d 636, 639 (Tex. App. - Dallas 2003, pet. denied) (statement in report that
plaintiff should have received different treatment and was injured as a result is
conclusory and dismissal appropriate).
A conclusory statement on causation does not satisfy the statute if the causal
link is not explained. Doades v. Syed, 94 S.W.3d 664, 672 (Tex. App. - San Antonio
2002, no pet.). As in the case at bar, Doades involved a laparoscopic cholecystectomy
and allegations that resulting complications were not properly treated. Id at 667.
Although the focus was more towards the recognition and treatment of the
complications, the reports in Doades were still more detailed than the reports in the
case at bar and were still ruled inadequate. Id at 671-672.
The closest Dr. Iqbal came to addressing causation is a statement that could be
construed as one of possible causation, not the required probable causation (again,
assuming that was even Dr. Iqbal's intent):
18
"Operative report has some elements of confusion suggesting doubts about the integrity
ofjinal repair. This might be the reason ofprolong [sic] recovery ofMr. Luberger."
(1CR 16; Appendix 3). This does not satisfy the requirement for showing probable
cause of injuries and damages. Niemann v. Refugio County Mem. Hosp., 855 S.W.2d 94, 96
(Tex. App. - Corpus Christi 1993, no writ) (must show probable, not possible cause).
To the extent Dr. Iqbal even opined about the cause of injuries, the report
simply opined on the existence of a prolonged recovery, without direcdy saying that
any negligence of Appellant caused prolonged recovery or how; this is inadequate.
In Windsor v. Maxwell, 121 S.W.3d 42, 45 (Tex. App. - Fort Worth 2003, pet.
denied) the patient suffered a cerebral infarction when the catheter inserted into her
cerebral artery during an angiogram severed the artery and penetrated her brain. The
expert report addressed standard of care and breach, but the only opinions about the
injuries were that they occurred after withdrawal of consent by the patient and the
failure to immediately withdraw the catheter. Id. at 49-50. The Court of Appeals held
this was not enough-the expert was required to explain how failure to discontinue the
procedure or failure to withdraw the catheter caused d1e injury. Id. A mere statement
that the injury followed the negligence is not enough. Id at 49. That is exacdy what
Dr. Iqbal did, mentioning doubts about the integrity of the repair and prolonged
recovery followed the inadvertent cutting of the common bile duct without connecting
any specific act or omission of Appellant to those injuries/damages.
19
Dr. Iqbal did not set forth proximate cause; the report was not capable of cure
as to proximate cause.
4. Dr. Iqbal was not qualified to give opinions.
One basis of Appellants' Chapter 74 Objections was the lack of qualifications of
Dr. Iqbal based on his statement that a consult by a hepato-biliary specialist would
have in some way altered the outcome. (lCR 34). Dr. Iqbal is not a hepato-biliary
specialist, has no qualifications that would allow him to testify what a hepato-biliary
specialist would have done if consulted intra-operatively, and has no qualifications to
opine on whether such a consult would, in reasonable probability, have changed the
outcome. Any opinions on causation are therefore sheer speculation on his part.
Chapter 74.403(a) governs qualifications of a witness to opine on proximate cause
and states that
... a person may qualifY as an expert witness on the issue of the causal relationship
between the alleged departure from accepted standards of care and the injury,
harm, or damages claimed only if the person is a physician and is otherwise
qualified to render opinions on that causal relationship under the Texas Rules of
Evidence.
Tex. Civ. Prac. & Rem. Code §74.403(a).
The party offering the expert's testimony bears the burden of proof that the
witness is qualified under Tex. R. Evid. 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.
1996) (Emergency Room physician not qualified to opine on allege brain injuries despite
testimony he had training and experience in diagnosing brain injuries).
A report authored by a person who is not qualified to testifY cannot constitute
20
an adequate report. Castillo v. August; 248 S.W.3d 874, 879 (Tex. App. - EI Paso 2008,
no pet.).
To comply with Chapter 74, the expert report must establish, on its face, that
the purported expert is qualified. Id at 880-881; see also Collini v. Pustej01JSky, 280 S.W.3d
456, 465 (Tex. App. - Fort Worth 2009, no pet.) ("while Dr. Haberer's curriculum
vitae does establish a background in pharmaceutical matters, his report does not
indicate he has any specific knowledge, experience, education, or training in assessing
the causal relationship between the prolonged use of Reglan and tardive dyskinesia").
The proffered medical expert's expertise must be evident from the four corners of his
report and curriculum vitae. Tenet Hosp. LLC v. Love, 347 S.W.3d 743, 750 (Tex. App. -
EI Paso 2011, no pet.).
Although it is possible that Appellee's expert may be qualified to opine on what
a hepato-biliary specialist might have done if consulted (though any such opinions
would be sheer inadmissible speculation), there is nothing in the four corners of his
report upon which the Court could reach the conclusion that he is qualified to give any
such opinions. In fact, his statement that he thinks a different type of specialist may
have been appropriate to contact actually demonstrates his lack of qualifications.
The Court cannot make inferences about the expert's qualifications. See Bowie,
79 S.W.3d at 53. Appellee's expert witness failed to demonstrate any qualifications to
opine on the cause of the injuries made the basis of this lawsuit.
21
Dr. Iqbal did not set forth qualifications to give opinions; this is another reason
that the report was not capable of cure.
5. Applying the law to the facts: the Iqbal report was "no report".
As demonstrated above, Dr. Iqbal's report was "no report" as to the standard of
care, breach of the standard of care, and proximate cause; in addition, he was not
shown to be a qualified expert witness and, indeed, indicated he was not qualified in
his report. Since Appellee met none of the four requirements (the three elements plus
a showing his expert was qualified), his report was not merely deficient, it was "no
report". Rivenes, 257 S.W.3d at 338-339. This Court should rule the same as in Rivenes:
the Iqbal report "cannot be considered merely deficient as to Petitioner; it is, in fact,
no report at all." Id The trial court had no discretion to do anything other than
dismiss Appellee's lawsuit; its failure to do so was an abuse of discretion.
The Iqbal report does not implicate Appellant's conduct--the report was not just
inadequate, it was no report; granting an extension was an abuse of discretion. Under
the plain language of Chapter 74.351(c) and Supreme Court precedent, the trial court
erred in failing to dismiss and instead granting an extension.
Allowing the extension to cure in this case is the equivalent of judicially bringing
back the 30-day grace periods found in Article 4590i3 §13.01(f) and (g), extensions not
included in Chapter 74 by the Texas legislature after tort reform.
At the hearing on Appellant's initial Motion to Dismiss, Appellant contended
3 Tex. Rev. Civ. Stat. Ann. art. 4590i (repealed 2003).
22
the report of Dr. Iqbal is "no report" and thus not capable of being cured. (1 RR 3-4).
More recent cases in the courts of appeals are also on point and support
Appellant's position. In Laredo Tex. Hosp. Co. v. Gonzales, 363 S.W.3d 255 (Tex. App. -
San Antonio 2012, no pet.), the expert's report did not address a Defendant by name,
but did provide opinions on negligence and causation:
"based upon my training and experience, it is my medical judgment that
the initial attempt at insertion of the intravenous catheter was more likely
than not the cause of the development of the painful neuroma involving
the superficial branch of the left radial nerve .... "
Id. at 259. The Court found it was "no report" and not capable of cure and reversed
the trial court and remanded for entry of a judgment of dismissal and a determination
of reasonable attorney's fees and costs. Id. at 259.
Although Dr. Iqbal does mention Appellant by name, he does not address any
of the required elements and his report was not capable of cure.
The Corpus Christi Court of Appeals denied an appeal4 in Villarreal v. Hernandez,
No. 13-10-00532-CV (rex. App. - Corpus Christi, June 9, 2011, no pet.) (mem. op.).
In analyzing the expert's reports, the Court noted that although insufficient to satisfy
Chapter 74, his letter at least stated (1) the Defendant performed a root canal "on the
wrong tooth" and (2) the "wrong tooth" the Defendant operated on "would not have
any problems were it not for the root canal treatment that was mistakenly done on it."
The Court noted that "although these statements are not explicidy labeled as
4 The Court actually dismissed for Want of Jurisdiction on fl11ding that denying the Motion to
Dismiss and granting the requested extension was not an abuse of discretion.
23
descriptions of the standard of care, breach, and causation elements, they do clearly
suggest that Dr. Villarreal breached the applicable standard of care by performing a
root canal on the wrong tooth and that the tooth would not have had "any problems"
but for the erroneous procedure." Unlike in Villarreal, the Iqbal report does not show
a breach of the standard of care or causation.
This Court reversed a trial court's order and remanded so an extension could be
considered in Rosemond v. Al-uhiq, 362 S.W.3d 830 (Tex. App. - Houston [14th Dist.]
2012, pet. denied). The expert's report in Rosemond was more than "no report", it was
a deficient report because the expert said, inter alia:
"Despite having no upper neuron dysfunction Ulysses Rosemond
developed severe multiple joint contractures. There is no documentation
in the records that have been provided to me that range of motion
exercises were provided during this prolonged illness and hospitalization
where Ulysses Rosemond was very weak and unable to move very much
on his own. The standard of care when a person is that ill is to be
provided range of motion exercises. Therefore based on the records that
I have and no documentation that range of motion exercises were
provided, the lack of range of motion exercises to a reasonable degree of
medical certainty is the proximal [sic] causative problem that resulted in
Mr. Ulysses Rosemond having severe contractures to this date. No range
of motion exercises is a breach of standard of care (citations omitted).
The stzndard of care is to provide range of motion exercises a minimum
of one time per day in this debilitated of a patient (citations omitted). The
breach in the standard of care, to a reasonable degree of medical
certainty, resulted in joint contxactures, impairment, and disability."
Id. at 838. The report in Rosemond was much more detailed that the report of Dr. Iqbal
and, unlike Dr. Iqbal's three paragraph letter, it provided opinions on all three
statutorily-required elements.
24
The inadequate versus "no report" dichotomy was also recently addressed by
this court in Ezekial v. Shorts, No. 14-12-00305-CV, 2013 WL 119712 (Tex. App. -
Houston [14th Dist.] 2013, no pet.) (mem. op.). The issue in Ezekial was whether the
three-page expert report was inadequate as to the Defendant labor and delivery
physician even though that physician was not named, or if it was "no report". This
Court noted that the expert's report contained several opinions about breach of the
standard of care by the labor and delivery physician and that there was no doubt that
Dr. Ezekial was the one and only labor and delivery physician to whom the report
could have referred to. Id. at *4.
Thus, the Ezekial report differs from the Iqbal report since it sets forth the
required elements of an expert report and was sufficient to inform Dr. Ezekial and the
Court of the specific conduct called into question. Although Dr. Wheeler was named
in the Iqbal report, the report itself addressed none of the required elements and was
not capable of cure. See Fontenot Enteprises v. Kronick, 2006 WL 2827415 at *5 (Tex.
App. - Houston [14th Dist.] 2006, no pet.) (mem. op.)(reversing trial court because
expert report failed to include required statutory elements).
The experts in ChristHs Spohn Health System Cop. v. Castro, No. 13-13-00302-CV,
2013 WL 6576041 (Tex. App. - Corpus Christi 2013, no pet.), went into "great detail
about the procedures necessary to prevent pressure ulcers in standard conditions" and
referred to "specific medical record dates and page numbers throughout her report and
specifically identifies what she characterizes as the deficiencies in those records." Id. at
25
*6. These lengthy and detailed reports in Castro addressed two of the three required
elements (standard of care and breach) and addressed albeit inadequately the other
element (causation), whereas Dr. Iqbal's three-paragraph report addresses none of the
three required elements, thus justifying an extension to cure.
In summary, the report of Dr. Iqbal provides none of the elements required of a
Chapter 74 report: it does not address the standard of care or breach and fails to
address any proximate causal connection, merely mentioning a possible prolonged
recovery. It qualifies as "no report" and was not capable of cure; therefore, the trial
court abused its discretion in not dismissing Appellee's lawsuit.
At the hearing on the initial Motion to Dismiss, Appellant's counsel argued to
the trial court that the report qualified as "no report" since it does not provide a
standard of care or breach. (lRR 4, lines 6-9). The trial court initially agreed:
THE COURT: "You know, I've got to tell you, Mr. Klevenhagen, that's my
problem. There are cases that say if a report is so lame, it constitutes, quote, "no
report," close quote, such thatyou don't get the 14 [sic] days."
(lRR 4, lines 10-14). The analysis should have ended there.
The trial court continued:
"So I've got no standard of care. I've got no breach of the standard. And I've got a
causation that says it might be the reason. I mean, I'm not sure you hit any of the
three bases."
(lRR 4, lines 3-7). Once again, after acknowledging that the report did not address
either standard of care or breach and only addressed "possible" causation, so that none
26
of the three bases" were hit, the analysis should have ended and dismissal ordered.
Failing to dismiss and instead granting an extension was an abuse of discretion.
Although Appellee's counsel argued that the report did address the standard of
care, the trial court correctly said it did not:
MR. I2006 WL 2827415, was an interlocutory appeal of Judge Wilson's
denial of a Chapter 74 Motion to Dismiss in which this Court found an abuse of discretion and
reversed and rendered judgment in Fontenot Enterprises' favor.
27
adequacy of the "curative" report in the event that this Court concludes that the Iqbal
report was merely inadequate and because Appellee has already received his one
allowed thirty-day extension.
V. Issue number 2
Issue number 2: The trial court abused its discretion when it
failed to dismiss since Appellee failed to cure the deficiencies in
his expert report after being given a thirty-day extension to cure.
After improperly granting Appellee a thirty-day extension to cure deficiencies in
the initial expert report, Appellee filed a new report from a new expert, Oluwole
Fajolu, M.D. (lCR57, Appendix 4). Appellant timely filed objections to the attempted
curative report because it failed to cure the deficiencies. (1 CR 59).
A. The attempted curative report was itself deficient.
Appellant addresses the deficiencies in the Fajolu report below.
1. The curative report had no opinions about the standard of care.
As with the insufficient report of Dr. Iqbal, Dr. Fajolu does not set forth a
specific standard of care that applies to Appellant. His report merely gives two general
statements, one the inverse of the other:
Appellant was required to IIcarefully identify the biliary tract anatomy, specifically the cystic
duct, and only cut the cystic duct" and
The standard of care required Dr. Wheelerto "carefully identify the common bile duct and not
cut it. "
(lCR 66, Appendix 4).
28
Dr. Fajolu does not state how Appellant was supposed to "carefully identify"
the anatomy or what steps a reasonably prudent surgeon should take to avoid cutting
the common bile duct (e.g., how the gallbladder, vessels, ducts and anatomy can and
should be viewed through the laparoscope; how to take into account potentially
abhorrent anatomy; different approaches and steps that can be used while dissecting
layer by layer from the skin down through tissue, muscle, and into the area of tile gall-
bladder and ductal system; tests that can be done during the procedure, such as
cholangiography, that help identify the critical structures, and; sequential steps that
should be taken to minin1ize the chances of a bad result). Including some of this
information would have at least put Appellant on notice as to what steps Appellee's
expert believes the standard of care required.
2. The curative report had no definite opinion that the standard of
care was breached.
Dr. Fajolu does not state anywhere in his report that Appellant breached the
standard of care, nor how he did so. As such, Appellee failed to meet the strict
requirements of Section 74.351. See Forrest, 77 S.W.3d at 848.
At most, the attempted curative report merely established that Appellant cut the
common bile duct; the report does not provide any details about how the mere cutting
of the common bile duct was below the standard of care or could have been avoided
by Appellant using reasonable care. As acknowledged by Appellee's counsel, cutting
the common bile duct can occur without negligence (2RR 6); thus, it was imperative
29
that Appellee's expert explain how the transection of the cornmon bile duct was
negligent. Otherwise, the expert's opinion is the equivalent of saying that a bad result
is negligence and/or that there is negligence per se when a bad result occurs, neither of
which are proper theories of recovery in Texas.
3. The curative report was inadequate and conclusory as to causation.
The report of Dr. Fajoludid not properly address proximate cause. Dr. Fajolu
merely opines that if Appellant had avoided cutting the cornmon bile duct, conversion
to an open procedure, additional pain and subsequent surgeries would not have
occurred. What Dr. Fajolu, like Dr. Iqbal before him, fails to do is to actually connect
some specific act or omission of Appellant to these alleged injuries and damages.
A report is insufficient if it does not link a Defendant's alleged negligence to the
alleged damages. Palacios, 46 S.W.3d at 879; Bowie, 79 S.W.3d at 52); Estorque v. Schafer,
302 S.W.3d 19, 28-29 (Tex. App. - Fort Worth 2009, no pet.)(trial court abused
discretion when it concluded a report was adequate since it did not link the
Defendant's failure to act to the alleged injuries and did not attempt to explain how
Defendant's inactions caused those injuries).
In deciding whether the requirements are met, a trial court should look no
further than the four comers of the report. Palacios, 46 S.W.3d at 878. One cannot
infer causation--it must be in the report and the conclusion (i.e., a better outcome)
must be linked to the alleged breach ~.e., misreading x-rays). Bowie, 79 S.W.3d at 53.
30
Appellee's expert was required to explain how an alleged violation of the
standard of care caused any injuries or damages. Zavala v. Pinkerton, 2007 WL 2010832
at *4 (rex. App. - Austin 2007, no pet.) (mem. op). The Zavala Court noted the
"entirety of the discussion on causation .. .is confined to a single sentence stating that
... [the Defendants'] departnres from the standard of care were 'contributing causes'
of the" injuries and was entirely devoid of any explanation of how the alleged breaches
caused the injuries. Id.; see also Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex. App. -
Houston [141h Dist.] 2001, no pet.) (report that does not explain causal relationship is
insufficient to meet the statutory requirements); Hillman, 2005 WL 995453 at *3
(expert did not indicate the basis for her conclusions, such as referral to specific entries
in the records to support her conclusions); Eichelberger, 99 S.W.3d at .639 (statement in
report that plaintiff should have received different treatment and was injured as a result
is conclusory and dismissal was appropriate). The reports mentioned in the above
cases were much more detailed than Appellee's reports-those experts at least opined
that the Defendants violated specific standards of care and proximately caused injuries.
Appellees' experts' reports are not unlike the one declared inadequate in Clapp v.
Perei> 394 S.W.3d 254 (Tex. App. - El Paso 2012, no pet.). In Clapp, the expert opined
that if a "nasal-gastric" tnbe had been placed before surgery, the stomach contents
would have been emptied and this would have prevented aspiration that led to
pneumonia, which in tnrn led to ARDS, multi-organ failure and death. Id. at 261. The
Court concluded that, though broad and sweeping in scope, in essence the expert was
31
simply concluding that one event caused the other without explaining how the
Defendants' alleged negligence caused those events. Id. at 261-262.
Appellee's experts likewise simply conclude (to the extent that they even make
conclusions) that there were injuries without any explanation of how any alleged
negligence caused those damages. The Fajolu report does not directly say that any
specific act or omission of Appellant proximately caused injuries or damages. The
Fajolu report merely states that cutting the common bile duct led to subsequent pain
and procedures-it does not give any opinion that, in reasonable medical probability,
some specific act or omission did, in fact, proximately cause injury or damage.
Other laparoscopic cholecystectomy cases are illuminating. Compare the report
in the case at bar to the one in Schmidt v. Escareno, No. 09-11-00662-CV, 2012 WL
759063 (rex. App. - Beaumont, 2012, no pet.) (mem. op.), also involving a transected
common bile duct. In Schmidt, the Plaintiffs expert opined the standard of care
required use of a technique surgeons use to obtain what he referred to as the "critical
view" allowing the surgeon to visualize the structures to be clipped and cut as part of
the laparoscopic cholecystectomy and to be able to identify abnormal anatomy, and
that Dr. Schmidt did not "utilize cholangiography to conclusively identify the cystic
duct before dividing any structures." Id. at *3. The expert stated that:
• The Defendant "apparently just relied on the appearance of the
'cystic duct,'-gallbladder junction, which is quite dangerous, as
this may be deceiving, particularly in the presence of severe
inflammation such as that described by Dr. Schmidt."
32
• Obtaining a "critical view" of the structures attached to the
gallbladder, "alone or with cholangiography[,J will usually enable
the surgeon to conclusively identify these structures, and if it does
not, the surgeon can then convert to the open procedure so that
conclusive identification can be made prior to dividing the ducts,
thus avoiding injuries such as Mr. Escareno's which are the result
of misidentification of the anatomy."
• "[mJore likely than not, had Dr. Schmidt employed any or all of
these techniques, he would have avoided misidentifying the
common bile duct as the cystic duct and thus avoided ttansecring
the common bile duct."
Id.
According to Dr. Leitman's report in Schmidt, even if Escareno's anatomy was
not normal, "use of the above-referenced techniques would have allowed for a better
view of the anatomy ... so that [Dr. Schmidt] could definitively identify the structures
before proceeding." Id. at *8. Dr. Leitman's report concluded that had the standards he
described been followed, "the injuries described herein would not have occurred." Id.
These are the kinds of details missing from either of Appellee's expert reports 6,
details that, if present, could have given the trial court discretion to deny Appellant's
Motion to Dismiss.
This Court has also previously analyzed at least one other Chapter 74 appeal of
an expert report in a laparoscopic cholecystectomy case. In Lopez v. Sinha, 2006 WL
2669355 (Tex. App. - Houston [14'h Dist.] 2006,110 pet.) (mem. op.), this Court found
6 Note also that Dr. Leitman's report in Schmidt consisted of seven single-spaced pages that identified
five standards of care applying to the Defendant and six ways these standards of care were breached,
with over a full page of opinions addressing proximate cause. In the case at bar, by contrast, Dr.
Iqbal's report was less than one page and did not identify any specific standard of care or breach and
did not address any causal connection between any unspecified breach and any injuries.
33
the report deficient because although it discussed the result of what happened after the
alleged negligence, it did not include specific information about what the Defendant
should have done to achieve the desired result, how he failed to follow any specific
procedure and what the Defendant should have done to achieve that result. ld. at *4.
Appellee's expert reports suffer from the same fatal omissions as the report in
Sinha and it was an abuse of discretion to not dismiss this lawsuit.
Appellee's experts reports leave Appellant in the very position the expert report
requirement of Chapter 74 was created to avoid: Appellant is forced to defend a case
in which Appellee alleges that negligence caused injuries, without any specifics
connecting Appellant's alleged negligence to the injuries made the basis of the suit.
B. The harshness of the result is not a reason to deny dismissal.
Although the consequences might be seemingly harsh, the Supreme Court in
Samlowski noted that
"Wooten was not ambushed; she knew exactly what Dr. Sarnlowski's
objection was and had adequate opportunity to show the trial court that
the alleged defect in Dr. Patman's report was curable-if it was. She
failed to either fIle a supplemental report attempting to address Dr.
Sarnlowski's objection or present other such evidence at the hearing."
S amlowski, 332 S.W.3d at 424 (J. Johnson, dissenting).
In Women's Clinic of South Texas, the Court noted that the Plaintiff was on notice
of the potential deficiencies in her report and acted at her own risk in failing to remedy
those alleged deficiencies by serving an amended report within the thirty-day extension
period granted by the trial court. According to tlle Court,
34
"a health care liability plaintiff is allowed one thirty-day extension to cure
deficiencies in her otherwise timely-served expert report. See TEX. CIY.
PRAC. & REM. CODE ANN. § 74.351 (c). Alonzo requested her
extension at the October 28, 2009 hearing, the trial court granted it in its
November 5, 2009 order, and Alonzo took full advantage of it to produce
Dr. Thompson's CV outside the 120-day deadline for serving her expert
report. Further, in its objections and motion to dismiss, the Clinic
specified the other 7 alleged deficiencies in the report, namely that the
expert report failed to set out the required standard of care, breach, and
causation elements and that Dr. Thompson's qualifications to author an
expert report as to the Clinic were not established. Thus, Alonzo was on
notice of the potential deficiencies in her report and acted at her own risk
in failing to remedy those alleged deficiencies by serving an amended
report within the thirty-day extension period granted by the trial court."
Women's Clinic of South Texas v. Alonzo, 2011 WL 1106698 at *3 (Tex. App. - Corpus
Christi 2011, no pet.) (mem.op.).
In Ledesma v. Shashoua, No. 03-05-00454-CV (Tex. App. - Austin, May 23, 2008,
pet. den.) (mem. op.), the Court likened the extension provisions in Chapter 74 to
being given an opportunity to replead with special exceptions:
"The intent behind this extension is analogous to the purpose of special
exceptions to civil pleadings, which is to "compel clarification of
pleadings when the pleadings are not clear or sufficiently specific or fail
to plead a cause of action." .... When a trial court sustains special
exceptions, it must give the pleader an opportunity to amend the
pleading, unless the defect cannot be cured. The expert-report
requirement and the extension allowed by section 74.351(c), much like
the concept of special exceptions and the opportunity to amend
pleadings, should be used as procedural tools to help clarify the issues in
complex litigation, rather than as a statutory trap for the unwary in what
might otherwise be a meritorious claim."
Id. at *10 (J., Henson, Dissenting Opinion on Motion for Reconsideration en bane).
35
Appellant made specific objections to Appellee's expert report in his Chapter 74
Objections and Motion to Dismiss, noting, among other things that
1. the report failed to set forth a specific standard of care for Appellant;
2. the report failed to set forth specific violations of the standard of Gire by
Appellant;
3. the report failed to properly address proximate cause, and;
4. Appellee did not establish that his expert witness was qualified to address
proximate cause.
(1 CR 29; 45; 1RR 4). As with the Plaintiffs in Sam!owski and Alonzo, Appellee was not
ambushed; he knew what was deficient about the report and sought and received an
extension to cure those deficiencies. Appellant should not be penalized because
Appellee failed to utilize the thirty-day extension to cure those deficiencies.
C. Conclusion: Appellee's expert reports were inadequate even after the
extension to cure and the court abused its discretion by not dismissing
Appellee's suit.
In Samlowski, the plurality Op1n10n announced a new requirement when a
motion for extension is denied:
"The claimant must therefore be prepared to cure a deficient expert
report whether or not the trial court grants the claimant's motion [for a
thirty-day extension]. When, as in this -case, the trial court simultaneously
finds the expert report deficient, denies a motion to cure, and dismisses
the underlying health care liability claim, the claimant must move the
court to reconsider and promptly fix any problems with the report. This
should further be done within the statutory, thirty-day period, thereby
demonstrating that the report would have been cured had the extension
been granted."
Samlowski, 332 S.W.3d at 411.
36
Thus, when a Motion for Extension is denied, a claimant must now flle a
curative expert report within thirty days in order to later be able to argue that the trial
court abused its discretion. How can we demand less from claimants who have
actually prevailed in their request for a thirty-day extension and reward them for not
curing the expert report during those thirty days?
Appellees' experts' reports were inadequate and they failed to cure the
deficiencies. Their claims against Appellants should be dismissed.
VI. Appellant is entitled to Attorneys' Fees and Costs.
Since Appellee failed to comply with the strict requirements of Chapter 74, an
award of attorneys' fees is also mandatory. Tex. Civ. Prac. & Rem. Code §74.351 (b).
Appellant seeks remand for consideration of the fees and expenses to which he is
entitled.
CONCLUSION AND PRAYER
The trial court abused its discretion when it failed to dismiss Appellee's lawsuit
and instead granted Appellee a thirty-day extension to cure deficiencies in an expert
that was so incomplete that it was "no report" as to Appellant. Appellee's expert
report was not merely inadequate, it was not capable of cure since it did not address
any of the statutorily required elements (standard of care, breach, or proximate cause)
and further was from a witness who was not qualified. The trial court had 110
discretion to do anything other than dismiss Appellee's lawsuit.
37
The trial court also abused its discretion in failing to dismiss after Appellee fIled
an attempted curative report since it too failed to meet the strict requirements of
Chapter 74.
Accordingly, Appellant respectfully prays that this Court reverse the trial court's
decision, dismiss Appellee's claims with prejudice and Order attorneys' fees and costs
be awarded pursuant to Chapter 74. Further, Appellant requests any other and further
relief to which he is justly entitled.
Respectfully submitted,
UZICK & ONCKEN, P.e.
By: _ _ _ _ _ _ _ _ _ _ _ _ __
Roger A. Berger
SBOT: 02192400
rberger@uzickoncken.com
Jeffrey H. Uzick
SBOT: 20419200
jhu@uzickoncken.com
238 Westcott
Houston, Texas 77007
(713) 869-2900
FAX: (713) 869-6699
Counsel for Appellant
Kevin D. Wheeler, M.D.
38
CERTIFICATE OF SERVICE
Pursuant to TEX. R. CIV. P. 21a and TEX. R. App. P. 25.1 (e), I hereby certify that
a true and correct copy of the foregoing instrument has been served upon Appellees'
counsel by certified mail, return receipt requested.
John J. Itilti!fi4J9,iip~ii
·;flt``'!W.~M~·~Q;!(!W~?\'i\)t;11N~ t~W!1I'tiifl<)"'~ijltihl4lh.fji)~A\ii!tillj·~Pii; .
~ ;;
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16
10/0$(2014 13: 54 FAX law fiI"lll t,!J0004/0008
Ofuwole Fajo!u, M.D., FAC.S.
Thoracic andCel).cral Surgery
5.015 Kelvin Avenue
Woodtand Hills, CA 91364
O~1\,ber 8, 2014
John r. KJevenhagenlll
6:;63 Woodway, Suite 300
Houston. T"xas 77057
Re: CharJes F. Luberger.
Dear Mr. Kl~venhagen:
I have reviewed the medical recQrds from Memorlal City Sl-Itgica\ Assocja«:s, including
the intraoperative images, Md St. Luke's Hospital for Mr. Lubetger. 1 am a Board Certified
surgeon itl active pl1ll-'lice, 1n Woodlan4 Hills, California since 1985. I have treaJed patients such
as Mr. Lilberger who suffi:r from liall bJadd<:f problems. J haveperfonned laparoOOopic gall
bledder removal surgery on patients jUst like Mr, Luberger hundreds oftim¢ r amfamiliar with
the $1lilldard of car;e retfUil:ed for Dr. Wheeler's treatment of Mr. Luher.g.er. 1 am qualified and
fa:miliar with the standard of care hy education, !:mining andexporlflncc to assess th(> qtjality of
care provided to such patients to I'\'nder an "p~rt ,?plnion regarding such care.
My credentials afe detilile<:l in the I1.ttached tv, but in SllltltlJliII)', I eatnel;! my medical
degree from Calcutta Medica! College. at CalC\\tta University in India. ! then served general
Sllfgery residencies at Lagos Univ=ity TetlPhi"g Hospital, Harlem Hospital ill New York and
Columbia Presbyterian HQspital witl:1 Columbia UniVersity. I foUov.'ed that with a cardiothoraoic
Burget)' reslde\1Cy at long Island Jewish Hospital In New York.
I tun licensed to practice. medicine in California lind. my license is recorded with the
appropriate authorities.
Mr. Luberger presented to Dr. Kevin D. Who"ler at Memorial City Surgical Associates·
for gal! bladder disease, which was confinned by radiographic studies. Mr~ Luberger was
schoo\lled for Ii laparoscopisc cholecystectomy on June 14. 21))2. Duri"g the surgery, the
common bi1~ duct was transected and the procedure was cOllverted to a Japm'otomy. Dr. Wheel!'r
fushioned a ROUic-e&-Yh"Paticojejunostomy in an att!'mpt to repair me ~age. The treldmem
il>!ldered by Dr. Wheeler was below the standard of care, :;pecifi:ca!ly refuting to the common bile
duct injury. In treating Mr. Luberger, the standard of care reqlIired Pt. Wheeler to cru¢fully
iMnt,iIy the biniif.)' ;met anatomy, gpecifically the cystic QUct, and only cut the cySlic duct to
remOVe the gallbladder. He .feli below the standard of care in. cutting the common bile duct.
66
law !lrm ~ 000$/0008
r am familiar with the standard of eate applica\}le to Dr. Wheeler for troatingpatients (ike
Mr. LtlberZer basoo on my education, experience, lrainlng and attendlng so;:minars as well as my
review of curr(>nt peer reviewed literature regarding proper technique for Japaroswpi$c
cholecystectomies. PleMe see my CV afumhed. Moreover, I have pelfornwd this speeific
operationhondreds of times on patien(s jUl;t like Mr. Luberger, and am fumiliar with standard ,,(
care required. I am intimately familiar with the management of patients similar to and Ilke Mr.
Luberger. r have admitted, followed and treated numerous patients with the same or similar
wllditlons as Mr. Lubergct.
The standard of ¢aTe required Dr. Wheeler to carefully identify the common bile duct and
to not cut it. He violated the standard of care regarding Mr. Luberger by failing to properly
identify the biliary lInatomy and by cuttiltg common bile dw:t.
Instead, Ilie treatment for Mr. Lubergcr should bave included properly identifying the
llllatol11Y, aV9iding cutting the common bUe duct, and only cutting the cystic duot to
lapar()scoplc,111y reOloVe the gallbladder. If he had avoided cutting tbe ,"ommon bile duct, in
reasonable medical probability, Mr. Luberger'sptocedllre would not have had to. be co\lverted. to
an open surgery- [laparotomy) and the R,>UJ(-en-Y hepaticojE3Moslomy WOl,lld not bave been
needed. Also, in reasonable medical pwbability, Mr. Lliberger's post operative cholangiogtruns,
livex: ;furlction tests, subsequent months of abdominal pain and subsequent surgical procedures
(including the biliary drainage catheters) would Mt nave ooeurred.
As Ii consBquen!'.e of these errors, Ilie substandard cate of Dr. Wheeler caused Mr.
Lulx-'1'ger pefmlUJent sewing, additional pain and additional otherwise unneeded surgi!lal
prO.ceVures. Dr. Wheeler's sllbstart(!ard CllI'1} re.whed in additional injury to Mr. Luberger's
abdomilla] area, which but tbr the common bile duct injury, would not have occu.rwd.
OI\lWolePajolu, M.D., FAC's.
67
Page I
V.T.C.A., Civil Practice & Remedies Code § 74.351
c Effective: September 01, 2005
Vernon's Texas Statutes and Codes Annotated Currentness
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
K~ Chapter 74. Medical Liability (Refs & Annos)
'@lSubchapterH. Procedural Provisions (Refs & Annos)
.. § 74.351. Expert Report
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was
filed, serve On each party or the party's attorney one or mOre expert reports, with a curriculum vitae of each expert
listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for
serving the report may be extended by written agreement of the affected patties. Each defendant physician or health
care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report
not later than the 21 st day after the date it was served, failing which all objections are waived.
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period
specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to
Subsection ( c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by
the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the
claim.
(c) If an expert repOlt has not been served within the period specified by Subsection (a) because elements of the report
are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the
claimant does not receive notice of the court's ruling granting the extension until after the I20-day deadline has passed,
then the 30-day extension shall run fTom the date the plaintiff first received the notice.
[Subsections (d)-(h) reserved]
(i) Notwithstanding any other provision of this section, a claimant may satisfY any requirement of this section for
serving an expert report by serving reports of separate expelts regarding different physicians or health care providers
or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability
and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and
causation issues with respect to all physicians or health care providers or with respect to both liability and causation
issues for a physician or health care provider.
G) 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:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 2
V.T.C.A., Civil Practice & Remedies Code § 74.351
(3) shall not be referred to by any party during the course of the action for any purpose.
(I) 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).
[Subsections (m)-(q) reserved]
(r) In this section:
(I) "Affected parties" means the claimant aud 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 palties to an action who are not
directly affected by that particular act or agrecment.
(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 74.401;
(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, hal'm, 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 ofthe expert's opinions as ofthe
date of the report regarding applicable standards of care, the marmer 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.
(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;
© 2006 Thomson/West. No Claim to Orig. U.S. Gov!. Works.
Page 3
V.T.C.A., Civil Practice & Remedies Code § 74.351
(2) depositions on written questions under Rule 200. Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, 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 ofthis 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).
CREDIT(S)
Added by Acts 2003. 78th Leg., ch. 204. § 10.01, eff. Sept. I. 2003. Amended by Acts 2005. 79th Leg., ch. 635. § 1.
eff. Sept. 1, 2005.
HISTORICAL AND STATUTORY NOTES
2006 Electronic Pocket Part Update
2005 Legislation
Acts 2005, 79th Leg., ch. 635, in subsec. (a), in the first sentence substituted "the original petition was filed" for "the
claim was filed".
Section 2 of Acts 2005, 79th Leg., ch. 635 provides:
"This Act applies only to a cause of action that accrues on or after the effective date Oftllis Act. An action that accrued
before the effective date of this Act is governed by the law applicable to the action immediately before the effective
date ofthis Act, and that law is continued in effect for that purpose."
2005 Main Volume
Prior Laws:
Acts 1993, 73rd Leg., ch. 625, § 3.
Acts 1995, 74th Leg., ch. 140, § 1.
Vernon's Ann.Civ.St. art. 4590i, § 13.01.
© 2006 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.