Enes Kanlic, M. D. v. Shirley Meyer ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ENES KANLIC, M.D., No. 08-09-00235-CV
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Appellant, Appeal from
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v. 120th District Court
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SHIRLEY MEYER, of El Paso County, Texas
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Appellee. (TC # 2006-3642)
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OPINION
Enes Kanlic, M.D. appeals from an order denying his motion to dismiss this medical
malpractice action pursuant to Section 74.351(b) of the Civil Practice and Remedies Code. For the
reasons that follow, we affirm.
FACTUAL SUMMARY
Shirley Meyer filed this lawsuit alleging malpractice arising from Dr. Kanlic’s treatment of
various medical conditions related to her right hip. According to the pleadings and the expert report,
Meyer suffered a comminuted right pelvis/acetabulum fracture which was treated with an open
reduction internal fixation on May 24, 2000. In June 2000, Dr. Kanlic diagnosed Meyer as having
a failure of the internal fixation, a dislocation of her right hip, and an infection in the fracture region
of her right pelvis. Meyer underwent several operations to treat the persistent infection and she
suffered several dislocations of the hip in 2000 and 2001. In October 2001, Dr. Kanlic performed
a right total hip arthroplasty. Meyer suffered several additional hip dislocations between 2001 and
August 2004. In August 2004, Meyer saw Dr. Kanlic following the most recent dislocation. He
reviewed x-rays made on the date of her visit but did not note any infection or loosening of the hip.
Meyer consulted Dr. Eric Sides the following day and he concluded--after reviewing the x-rays-- that
she had a loose acetabular component with loose plate and screws and a persistent fracture. He also
determined that the loose acetabular cup accounted for the dislocations and he believed that she had
a comminuted fracture of the acetabulum which had never healed. Dr. Sides also found that Meyer’s
hip was infected.1 Meyer subsequently underwent treatment for infection in the hip and had revision
hip arthroplasty.
In her petition, Meyer complained that Dr. Kanlic (1) failed to adequately and properly
diagnose and treat her following her initial surgery for hip fractures; (2) failed to provide necessary
follow-up review and treatment; and (3) failed to adequately treat the complications which developed
following surgery. In accordance with Section 74.351 of the Civil Practice and Remedies Code,2 she
provided an expert report prepared by Theodore W. Crofford, M.D. Dr. Kanlic objected to the report
and filed a motion to dismiss, alleging that the report did not set forth the applicable standard of care
and did not state the manner in which the care rendered by him failed to meet that standard. He also
argued that Dr. Crofford failed to conclude that the treatment rendered by Dr. Kanlic was a
proximate cause of Meyer’s injuries or damages. The trial court found the report inadequate but
granted Meyer’s request for a thirty-day extension pursuant to Section 74.351(c). After Meyer
submitted a revised expert report prepared by Dr. Crofford, Dr. Kanlic filed written objections and
another motion to dismiss. The trial court overruled the objections and denied the motion to dismiss.
This appeal follows.
ADEQUACY OF THE EXPERT REPORT
In his sole issue for review, Dr. Kanlic challenges the sufficiency of the revised expert report.
1
According to the pleadings, Meyer’s hip was infected with Pseudomonas aeruginosa.
2
T EX .C IV .P RAC .&R EM .C O D E A N N . § 74.351(Vernon Supp. 2009).
He contends that it inadequately addressed the applicable standard of care, what conduct of his
breached it, and how that breach caused injury.
Statutory Requirements
In a healthcare liability claim, a claimant is required to serve on each party an expert report
no later than 120 days after the original petition is filed. TEX .CIV .PRAC.&REM .CODE ANN . §
74.351(a)(Vernon Supp. 2009). Section 74.351(r)(6) defines “expert report” as a written report by
an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding
applicable standards of care, the manner in which the care rendered by the physician or 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). A defendant may file
a motion challenging the adequacy of the report. TEX .CIV .PRAC.& REM .CODE ANN . § 74.351(l).
The trial court is required to grant the motion only if it finds, after a hearing, that the report does not
represent an objective good faith effort to comply with Section 74.351(r)(6)’s definition of an expert
report. TEX .CIV .PRAC.&REM .CODE ANN . § 74.351(l). To constitute a “good-faith effort,” the report
must provide enough information to fulfill two purposes: (1) it must inform the defendant of the
specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial
court to conclude that the claims have merit. Bowie Memorial Hospital v. Wright, 79 S.W.3d 48,
52 (Tex. 2002); American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 879
(Tex. 2001).
The trial court should look no further than the report itself because all the information
relevant to the inquiry is contained within the four corners of the document. Bowie Memorial
Hospital, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The report need not marshal all the
plaintiff’s proof, but it must include the expert’s opinion on each of the three statutory elements:
standard of care, breach, and causal relationship. Bowie Memorial Hospital, 79 S.W.3d at 52;
Palacios, 46 S.W.3d at 878. A report cannot merely state the expert’s conclusions; it must explain
the basis of the expert’s statements to link the conclusions to the facts. Bowie Memorial Hospital,
79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.
Standard of Review
We review a trial court’s order either dismissing or refusing to dismiss a medical malpractice
claim for an abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Palacios, 46
S.W.3d at 877. An abuse of discretion occurs when a trial court acts arbitrarily or unreasonably and
without reference to any guiding rules or principles. Walker, 111 S.W.3d at 62.
Standard of Care and Breach Thereof
Dr. Kanlic suggests that the revised expert report failed to identify the applicable standard
of care or how he breached it. We agree that the report does not precisely identify the standard of
care using legal terminology, but Dr. Crofford clearly opined that the standard of care required a
physician who specializes in hip replacement surgery to evaluate radiographs of a patient’s hip and
identify looseness of the acetabular component, malpositioning of the hip, and infection. With
respect to the breach element, the report recounted that “Dr. Kanlic made an incorrect diagnosis in
July 2004 when he stated that there were no problems or no loosening of the total hip.” Thus, the
report identified the specific conduct Meyer has called into question, i.e., the doctor’s failure to
diagnose and treat the conditions causing instability in her hip, and it provided a basis for the trial
court to conclude that the claim has merit.
Dr. Kanlic additionally argues that Dr. Crofford relied upon the opinion of Dr. Sides but
failed to append either Dr. Sides’ qualifications or opinions. Citing Jones v. King, Dr. Kanlic
maintains that Dr. Sides’ input cannot be used to cure deficiencies in Dr. Crofford’s report. Jones
v. King, 255 S.W.3d 156, 160 (Tex.App.--San Antonio 2008, pet. denied). In Jones, the expert
“relied heavily” on an opinion and documentation by another doctor that failure to turn off a
morphine pump caused diabetes insipidus. Id. The court of appeals noted that the other doctor’s
qualifications were not established in the expert report and the documentation was not attached. Id.Given that the sufficiency of a report must be judged solely by its four corners, the court of appeals
held that the missing documentation could not cure its deficiencies. Id. Here, Dr. Crofford stated
his agreement with Dr. Sides but he did not rely on Dr. Sides’ opinion or documentation to establish
any of the statutory elements. Instead, the report indicated Dr. Crofford formed his own opinion –
based upon his examination of the radiographs – that the acetabular component was loose.
Causation
We turn now to Dr. Kanlic’s primary assertion that the expert report is inadequate because
it failed to explain how a breach of the standard of care caused Meyer’s injuries. An expert report
should explain how the defendant’s action or inaction caused injury. Bowie Memorial Hospital, 79
S.W.3d at 53. We are not permitted to fill in the gaps of an expert report by drawing inferences or
guessing as to what the expert likely meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d
276, 279 (Tex.App.--Austin 2007, no pet.). Nor may we infer causation. Castillo v. August, 248
S.W.3d 874, 883 (Tex.App.--El Paso 2008, no pet.).
After stating his qualifications and Meyer’s medical history relating to her hip arthroplasty,
Dr. Crofford opined:
Following her right hip arthroplasty, Ms. Meyer, unfortunately, suffered several
dislocations of her hip. In July of 2004, she saw Dr. Kanlic after dislocation of her
hip, which I believe was the last issue treated by Dr. Kanlic for Ms. Meyer. In
August of 2004, Dr. Kanlic saw her in his office and gave her hip position
precautions and told her to go home and be careful with the position of her hip. Dr.
Kanlic noted in x-rays from August 25, 2004 that there were no significant problems
or loosening of her hip. He made no mention of infection of her right hip when he
saw her in August of 2004.
Ms. Meyer then went on to be seen by Dr. Sides on August 25, 2004 who felt, just
one day after the visit by Dr. Kanlic,3 that she had a loose acetabular component with
loose plate and screws and that the stem of the femur ‘did not appear to be involved.’
According to the records, Dr. Sides apparently continued to provide follow-up
treatment and evaluation of Ms. Meyer and expressed some disagreement with the
diagnosis and treatment determined by Dr. Kanlic. Ultimately, Ms. Meyer was
referred to see me in November of 2004.
My treatment of Ms. Meyer included debridement of her hip and treatment for an
infection. She was subsequently referred to my partner, Dr. Steve Weeden, for
revision hip arthroplasty of this complex situation. She has apparently undergone
revision of her hip arthroplasty, but I have no records regarding this procedure in my
possession.
I think that Dr. Kanlic made an incorrect diagnosis in July of 2004 when he stated
that there were no problems or no loosening of the total hip. I agree with Dr. Sides
that the x-rays from that time demonstrate that the acetabular component was loose.
Additionally, with Ms. Meyer’s history of infection, the possible diagnosis of
recurrent infection certainly should have been entertained by Dr. Kanlic. The
malposition of the hip and the loosening of the acetabular component together with
the presence of infection in the right hip created the specter of continued and
recurrent instability in the hip, with resultant persistent pain from recurrent
dislocations. Although the evaluation of radiographs following hip arthroplasty
sometimes is difficult, I think that if Dr. Kanlic specializes in hip replacement
surgery the standard of care would dictate that such a trained physician should be
expected to recognize this problem. That failure to meet this standard of care caused
a delay in the diagnosis of the aforementioned malpositioning, loosening, and
infection. This delay lead [sic] to a period of recurrent hip instability and hip pain
until the problems were diagnosed and treated.
While the failure to accurately diagnose and treat Ms. Meyer’s hip caused her to
suffer continued instability and pain until the condition was corrected to prevent
recurrent dislocations, I cannot state that the delay in diagnosis from the time she was
seen by Dr. Kanlic in August of 2004 until she present to me in November of 2004
substantially changed her ultimate treatment or the outcome of her hip replacement
surgery. Ms. Meyer had a complex problem with deficiencies of bone stock,
particularly in the acetabulum. I do not think that recurrent dislocations or a several
week delay of the diagnosis of an infection substantially altered the eventual course
of Ms. Meyer’s treatment or eventual outcome. This delay, however, did result in a
period of continued instability and hip pain until the conditions were treated.
3
The report is unclear whether Meyer saw Dr. Kanlic on August 24 or 25. It is clear that she consulted with
Dr. Sides on August 25.
Dr. Kanlic focuses on August 25, 2004, the day he noted in x-rays that there were no significant
problems or loosening of the hip. Meyer saw Dr. Sides either the same day or the next day. From
this, Dr. Kanlic concludes that there was no delay in treatment, there was no pain associated with
any delay in treatment, and thus there is no causal connection. He faults Dr. Crofford’s report
because the only breach articulated is the failure to properly read the x-rays and x-rays cannot show
infection.
In support of this argument, Dr. Kanlic directs to our decision in Castillo v. August, 248
S.W.3d 874 (Tex.App.--El Paso 2008, no pet.). There, the plaintiff underwent spinal surgery and
was subsequently transferred to a rehabilitation facility under the care of Dr. August. The plaintiff
developed a staph infection in the surgical site and meningitis. She sued Dr. August and other
defendants alleging that Dr. August had a duty to “observe and monitor” her incision for any sign
of infection and that his failure to do so resulted in the staph infection and life-threatening
meningitis. The expert report opined that the standard of care required Dr. August to personally and
vigilantly monitor the plaintiff’s status because she had presented upon admission with signs and
symptoms of infection. The standard of care also required that he identify, examine, diagnose, and
take measures to treat the infection. Id. at 882. The trial court denied Dr. August’s motion to
dismiss because the report did not adequately delineate either the standard of care or how a breach
thereof harmed the plaintiff. Id. at 878. Noting that causation could not be inferred, we concluded
that the report did not adequately address causation because it did not explain how the staff infection
caused the meningitis. Id. at 882-83.
Dr. Kanlic also relies on the San Antonio Court of Appeals’ opinion in Jones v. King, 255
S.W.3d 156 (Tex.App.--San Antonio 2008, pet. denied). The plaintiff sought treatment for chronic
pain from an anesthesiologist who recommended the implantation of an intrathecal morphine pump.
The plaintiff later filed suit claiming she developed meningitis, diabetes insipidus, and other health
problems as a result of complications from the surgical implantation of the morphine pump and
subsequent treatment. The court of appeals determined that the expert report offered a series of
conclusory statements that (1) the morphine pump should never have been placed and its placement
proximately caused all of the injuries and damages alleged by the plaintiff, (2) the failure to timely
detect the meningitis and treat it for more than forty-eight hours caused it to become worse and
resulted in numerous additional complications and injuries including decreased vision, diabetes
insipidus, and pain, and (3) the failure to turn off the morphine pump when the catheter was removed
caused diabetes insipidus. Id. at 159. The report thus failed to adequately address causation because
it offered no medical explanation about whether earlier treatment would have been effective in
shortening the duration of the meningitis. Id. at 159-60. The report was also deficient despite the
expert’s opinion that the continued morphine flow caused the hypothalamus “to go to sleep”
resulting in diabetes insipidus because it did not explain how the continued morphine flow caused
the hypothalamus “to go to sleep” or how a “sleeping” hypothalamus could cause diabetes insipidus.
Id. at 160-61.
Dr. Crofford’s report stated that Dr. Kanlic failed to correctly diagnose and treat
malpositioning of the hip, looseness in the acetabular component, and infection in Meyer’s hip,
which caused her to suffer continued instability and pain until the condition was corrected. We agree
that the report does not explain how Dr. Kanlic’s failure to diagnose the infection caused instability
in the hip. Nor does the report advise that surgery was delayed three months because of the untreated
infection. Of course, we are prohibited from filling in these analytical gaps or stacking these
inferences. But in contrast to the expert reports in Castillo and Jones, Dr. Crofford did explain how
Dr. Kanlic’s misdiagnosis of looseness in the acetabular component and malpositioning of the hip
and his failure to treat the condition caused Meyer to suffer from continued instability and hip pain
until the condition was surgically corrected. Likewise, his report stated that Dr. Kanlic’s failure to
diagnose the hip infection caused her to suffer pain until the infection was treated. We conclude that
the report sufficiently establishes how Dr. Kanlic’s action caused Meyer’s injury. We overrule the
sole issue and affirm the trial court’s order denying Dr. Kanlic’s motion to dismiss.
June 23, 2010
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.