Cyril B. Tawa, M.D., Houston Interventional Cardiology, P.A., and Angela Rowan, R.N., F.N.P.-C. v. Glenn P. Gentry and Patricia Gentry ( 2013 )

Opinion issued April 18, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00407-CV
———————————
CYRIL B. TAWA, M.D., HOUSTON INTERVENTIONAL CARDIOLOGY,
P.A., AND ANGELA ROWAN, R.N. F.N.P. -C, Appellants
V.
GLENN P. GENTRY AND PATRICIA GENTRY, Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2011-05219
MEMORANDUM OPINION
This is an interlocutory appeal from the denial of appellants’ motions to
dismiss under Chapter 74 of the Texas Civil Practice and Remedies Code. We
reverse the trial court’s order denying appellants Angela Rowan’s and Houston
Interventional Cardiology’s motion to dismiss (as it relates to care provided by
Rowan) and remand to the trial court for assessment of attorneys’ fees and costs.
We affirm the trial court’s order denying appellants Cyril Tawa’s and Houston
Interventional Cardiology’s motion to dismiss (as it relates to care provided by
Tawa).
BACKGROUND
The following summary of the plaintiff’s hospital visit, during which he
suffered a stroke, is taken from Dr. Nicolaos Madias’s August 8, 2011 expert
report1:
On November 14, 2008, 53 year-old plaintiff/appellee Glenn Gentry
(Gentry) visited his primary physician, Dr. Keller, complaining of fatigue and
shortness of breath. Keller determined that he had atrial fibrillation with a rapid
ventricular rate. Keller sent Gentry to the Emergency Room at North Cypress
Medical Center. Upon admittance, he was seen by defendant/appellant Dr. Cyril
B. Tawa, M.D., the attending physician, and defendant/appellant Angela Rowan,
Tawa’s nurse practitioner. Gentry’s primary complaint was heart palpitations and
he was “found to have atrial fibrillation with a ventricular rate of 130 beats per
1
For purposes of our review of the adequacy of a medical expert report under
Chapter 74, we take the allegations in the report as true. Marino v. Wilkins, ___
S.W.3d ___, ___ n.1, 2012 WL 749997, at *17 n.1 (Tex. App.—Houston [1st
Dist.] Mar, 8, 2012, pet. denied).
2
minute.” In the Emergency Room, Gentry was given “Cardizem bolus followed by
a Cardizem drip to control the ventricular rate.”
Upon admission, Gentry was taken off some of his regular medication and
others were prescribed. Specifically, he was “prescribed to discontinue Lovenox
and Lisinopril; to take Toprol XL, Clonidine, started [on] a Heparin drip and
Coumadin (warfarin).” The following three days, November 15, 16, and 17, Tawa
ordered Coumadin be administered.
Several medical tests were performed on Gentry’s heart and kidneys during
his hospital stay. According to the records, Mr. Gentry had “elevated creatinine.”
Tawa then consulted with Dr. Lal, who determined that a kidney biopsy was
necessary. “Medications that promote reversal of Coumadin effects as well as
infusion of coagulation facts were prescribed on November 18, 2008, including
vitamin K iv and FFP (fresh frozen plasma).” “Lal wrote in a Progress Note on
November 18 that a plan was made for a kidney biopsy (Dr. Tawa, Dr. Keller, Dr.
Morello, patient); FFP, vit K iv; hold Coumadin and heparin.”
The kidney biopsy was performed on November 19, 2008, and later that day
Gentry’s records indicate he had a “CVA (cerebrovascular accident) believed to
be of ischemic origin with left hemiparesis, aphasia, lethargy.” “Impression and
plan included: atrial fibrillation, embolism, not a candidate for TPA because of
recent kidney biopsy, MRI, and transfer to ICU,” where he “received a ‘heparin
3
drip.” His stroke “resulted in aphasia and weakness of left extremities.” A
neurology consultation that same night indicated that “Gentry had developed
hemiplegia, probably cardio embolic and this was discussed with Dr. Lal, Dr.
Tawa, and his family, and heparin infusion was prescribed.”
The medical records also describe the results of CT scans of his heart and
brain, and later ultrasound images of his carotid and vertebral arteries.” At the
time of his discharge from the hospital on December 1, 2008, “Gentry had left-
sided weakness, speech impairment, sitting up in a chair and in normal sinus
rhythm.”
Gentry and his wife, Patricia Gentry, sued Dr. Tawa, Dr. Lal, Rowan, and
Houston Intervention Cardiology, P.A. On June 14, 2011, pursuant to Chapter 74
of the Texas Civil Practice and Remedies Code, the Gentrys served the defendants
with an expert report and curriculum vitae (CV) of Dr. Nicolaos E. Madias, M.D.
Defendants Tawa, Rowan, and Houston Intervention Cardiology filed objections
and motions to dismiss. The trial court overruled the objections, but granted the
Gentrys 30 days to cure any deficiencies in Madias’s report. The Gentrys timely
filed an Amended Expert Report and CV. Tawa, Rowan, and Houston Intervention
Cardiology filed objections again, as well as a motion to dismiss and request for
attorneys’ fees. The trial court denied defendants’ motion, and Tawa, Rowan, and
4
Houston Intervention Cardiology timely brought this interlocutory, accelerated
appeal.
ISSUES ON APPEAL
Appellants argue that Madias’s amended report does not represent a good
faith effort to comply with section 74.351(r)(6) of the Texas Civil Practice and
Remedies Code. Accordingly, appellants argue that the trial court abused its
discretion by overruling their objections to Madias’s amended report, and by
denying their motions to dismiss and refusing to award attorneys’ fees. Appellants
seek reversal of the trial court’s orders, dismissal with prejudice of the Gentrys’
claims against appellants, and a remand to the trial court with instructions to award
to appellants reasonable attorneys’ fees and costs.
APPLICABLE LAW
Section 74.351 of the Texas Civil Practice and Remedies Code requires the
trial court perform a ‘gate-keeper’ function, to prevent medical negligence causes
of actions from proceeding unless the claimant has made a good-faith effort to
demonstrate that at least one expert believes that a breach of the applicable
standard of care caused the claimed injury. TTHR, L.P. v. Guyden, 326 S.W.3d
316, 319 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351; Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005)).
“A report need not marshal all of the plaintiff’s proof but it must include the
5
expert’s opinions on the three statutory elements: standard of care, breach, and
causation.” Id.; see Am. Transitional Care Centers v. Palacios, 46 S.W.3d at 873,
880 (Tex. 2001); Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex. App.—Tyler 2008,
pet. denied) (quoting Palacios, 46 S.W.3d at 880) (stating “fair summary” is
“something less than a full statement” of applicable standard of care, how it was
breached, and how that breach caused injury).
To constitute a good faith effort, the report must provide enough information
to fulfill two purposes: (1) inform the defendant of the specific conduct that the
plaintiff has called into question; and (2) provide a basis for the trial court to
conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report that
merely states the expert’s conclusions as to the standard of care, breach, and
causation does not fulfill these two purposes. Id. The expert must explain the
basis for his statements and link his conclusions to the facts. Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882,
890 (Tex. 1999)). The trial court may not draw any inferences, but must rely
exclusively on the information contained within the report’s four corners. See
TTHR, 326 S.W.3d at 319. In addition to setting forth the requisite criteria, a
Chapter 74 report must also be authored by a qualified “expert.” TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(r)(6).
6
We review a trial court’s decision on a motion to dismiss a case for failure
to comply with section 74.351 for an abuse of discretion. Palacios, 46 S.W.3d at
877; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(Vernon Supp. 2009). Although
we defer to the trial court’s factual determinations, we review questions of law de
novo. Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex. App.—Houston [14th Dist.]
2001, no pet.). To the extent that resolution of the issue before the trial court
requires interpretation of the statute itself, we apply a de novo standard. Buck v.
Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
DR. TAWA
In appellants’ first issue, they argue that the trial court abused its discretion
in failing to find Madias’s report deficient as it relates to Tawa (and to the
vicarious liability of Houston Interventional Cardiology for Tawa’s care).
Specifically, Tawa argues that Madias’s report is deficient because (1) he is “not
qualified to render an opinion regarding the applicable standard of care for Dr.
Tawa,” (2) it “fails to specify the applicable standard of care,” (3) it “fails to
adequately set forth the manner in which Tawa allegedly breached the standard of
care,” and (4) it “fails to discuss the causal relationship between the breach and
Mr. Gentry’s” stroke.
7
A. Qualification
Tawa contends that Madias’s report “seek[s] to hold Dr. Tawa strictly liable
for the conduct of all, solely by virtue of the fact that Dr. Tawa signed Mr.
Gentry’s admitting order.” This, according to Tawa, “invents a dangerous new
brand of vicarious liability, casting a net over the ‘attending physician’ and any
and all health care providers that subsequently come into contact with a patient.”
He notes that not every licensed doctor is automatically qualified to testify on
every medical question, Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996), and
that, to offer his opinion on the standard of care applicable to attending physicians,
Madias’s expertise must be evident from the four corners of his report and his CV.
Palacious, 46 S.W.3d at 878.
Tawa relies on Christus Health Southeast Texas v. Broussard, 267 S.W.3d
531, 536–37 (Tex. App.—Beaumont 2008, no pet.), a case in which a neurologist
expert opined on the standard of care applicable to a hospital’s administrative
decisions. Specifically, the expert—who had experience treating patients that, like
the complainant, had “a history of fluctuating mental capacities”—opined about
the hospital’s decisions related to the complainant’s discharge from long-term care.
Id. The complainant was intubated and being treated for “pneumonia and acute
respiratory deficiency.” Id. at 534. While the complainant was waiting to be
discharged pursuant to her doctor’s orders, plaintiff alleged that the defendant
8
hospital removed the complainant’s finger pulse oximeter, then left complainant
unrestrained and unsupervised. Id. She dislodged her breathing tube and suffered
a hypoxic brain injury. Id. The court noted that the expert’s report and CV did not
“explain how his experience with treating patients with fluctuating mental status
gives him expertise regarding a hospital’s ‘administrative decision’ about the
circumstances under which a hospital can disregard a doctor’s discharge order.”
Id. at 536. It thus held that the expert’s report did not demonstrate that he was
qualified to opine on the hospital’s standard of care in making administrative
decisions:
[The expert’s] report and curriculum vitae explain that he has active
staff privileges at Reston Hospital, where he sits on the credentials
committee, and that he is on the utilization review subcommittee for
the neurology section of Fairfax Hospital. As [plaintiff] argued in his
response to the motion to dismiss, “this case concerns the Defendant
Hospital’s decision to abandon [complainant], not whether the nursing
staff followed protocol.” The report does not state that [the expert] is
familiar with hospital administration or the standards to be applied to
implementing an attending physician’s discharge order. The fact that
[the expert] is on staff at a hospital and serves on that hospital’s
credentials committee does not establish that he possesses specialized
knowledge of the protocols, policies, or procedures a hospital of
ordinary prudence would have had in place in determining when a
facility should disregard a discharge order. See Reed v. Granbury
Hosp. Corp., 117 S.W.3d 404, 409 (Tex. App.—Fort Worth 2003, no
pet.).
[The expert’s] report and curriculum vitae do not explain how [his]
committee assignments and experience on staff at Reston Hospital
make him familiar with the standards applied by hospitals under these
circumstances. Thus, the trial court abused its discretion in overruling
[defendant’s] objections to [the expert’s] report.
9
267 S.W.3d at 536.
According to Tawa, “Dr. Madias’ opinion regarding Dr. Tawa’s liability is
not based upon the medical care Mr. Gentry received from Dr. Tawa.” Rather, he
asserts, “Madias’ conclusion regarding liability is based upon whether Dr. Tawa
should have made the administrative decision to prevent implementation of another
physician’s order.” Thus, Tawa contends that, like the report at issue in Broussard,
Madias’s report does not show he is qualified to opinion about “customs, policies
and procedures.”
The Gentrys respond that Tawa’s argument “represents either a
mischaracterization or a misunderstanding of the opinion offered by Dr. Madias.”
They argue that nowhere in Madias’s report does he opine that Tawa as the
attending physician is strictly liable for other’s care; nor does he suggest that Tawa
should have “overruled” the orders of another physician. Instead, Madias notes
that as the attending physician, Tawa is responsible for managing the overall care
of the patient, which might include attempting to prevent performing procedures
that “pose a great risk to the patient given the totality of that patient’s medical
circumstances.” The Gentrys also point out that Lal’s progress notes “indicate that
Dr. Tawa was a party to the decision to stop Mr. Gentry’s antithrombotic treatment
and administer procoagulant treatment,” such that he may have “endorsed or
approved these decisions.” Finally, the Gentrys contend that it is apparent from
10
Madias’s report and CV that he familiar with the standard of care regarding
attending physicians similarly situated with Tawa.
1. Applicable Law
Chapter 74 sets forth general criteria for qualifying an expert physician:
(a) In a suit involving a health care liability claim against a
physician for injury to or death of a patient, a person may qualify as
an expert witness on the issue of whether the physician departed from
accepted standards of medical care only if the person is a physician
who:
(1) is practicing medicine at the time such testimony is given or
was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of medical care.
TEX. CIV. PRAC. & REM. CODE § 74.401(a).
The relevant issue is not “the physician’s area of practice but the stated
familiarity with the issues involved in the claim before the court.” Pediatrix Med.
Group, Inc. v. Robinson, 352 S.W.3d 879, 884 (Tex. App.—Dallas 2011, no pet.).
“Where a particular subject of inquiry is common to and equally developed in all
fields of practice, and the prospective medical expert witness has practical
knowledge of what is usually and customarily done by a practitioner under
circumstances similar to those with confronted the practitioner charged with
11
malpractice, the witness is qualified to testify.” Rittger v. Danos, 332 S.W.3d 550,
559 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
2. Analysis
Madias is board certified in Internal Medicine, licensed to practice in
Massachusetts, and is a professor at Tuffs University School of Medicine. His
report states that he has reviewed Gentry’s medical records and is “qualified to
evaluate and render an opinion . . . based on the following”:
(1) I have the training and experience in the management of
patients with atrial fibrillation; in the use of anticoagulation
therapy in these patients; in the risk of embolic stroke in the
absence of anticoagulation therapy; in the indications and
contraindications of a kidney biopsy; and in the diagnosis and
management of kidney disease.
(2) I have been actively practicing medicine and caring for patients
like Mr. Gentry at the time he was diagnosed with atrial
fibrillation and thereafter including the time that the claim was
filed. In addition, I have been actively involved in the
diagnosis and management of kidney disease during the same
period.
(3) I have knowledge of the standard of care associated with the
diagnosis and treatment of the illness and injury that Mr. Gentry
suffered, including his atrial fibrillation, the need for
anticoagulation, the risks of embolic stroke, and management of
kidney diseases.
(4) As a doctor of Internal Medicine who has treated many patients
with atrial fibrillation and uncontrolled hypertension, I have
knowledge of the risks involved when such patients’
antithrombotic treatment is discontinued. The consequences of
discontinuation of antithrombotic therapy and the causes of
cardiac embolism are well known within the specialty of
12
Internal Medicine. Because of this, I am qualified to offer
opinions on the causation of Mr. Gentry’s injuries.
To determine if Madias is qualified to opine on the standard of care
applicable to Tawa, we look to “the medical condition involved in the claim and . .
. the expert’s familiarity and experience with it.” Grandbury Minor Emergency.
Clinic v. Thiel, 296 S.W.3d 261, 267 (Tex. App.—Fort Worth 2009, no pet.).
Tawa’s argument that Madias is not qualified to render an opinion rests
primarily on his assertion that “Dr. Madias’ opinion regarding Dr. Tawa’s liability
is not based upon the medical care Mr. Gentry received from Dr. Tawa,” but
instead whether “Tawa should have made the administrative decision to prevent
implementation of another physician’s order.” From this, Tawa argues that
Madias has not shown himself qualified to testify about such “administrative”
decisions.
We disagree with Tawa’s narrow characterization of Madias’s opinion.
Madias opines that Gentry’s stroke was most likely caused by “the discontinuation
of Coumadin and administration of FFP and vitamin K.” He opined that Tawa’s
standard of care encompassed both his role as attending physician to be
“responsible for the entire care delivered to the patient by all healthcare providers,”
and his “role of internist caring for the atrial fibrillation and the management of
this condition.” Madias opined that a “patient with atrial fibrillation of uncertain
time as to the initiation of the arrhythmia and on Coumadin therapy should not
13
discontinue all antithrombotic therapy unless clots in the atria are absent or active
bleeding is present.” He also states, with regard to Tawa, that “the standard of care
requires an internist to know that administration of fresh frozen plasma and
vitamin K to reverse the anticoagulation caused by Coumadin therapy is very risky
in a patient like Mr. Gentry since discontinuation of antithrombotic therapy may
help to trigger the development of more clots in the atria.”
According to the medical record summary contained in Madias’s report,
after admitting Gentry to the hospital, Tawa prescribed, among other things,
Coumadin and Heparin to address his atrial fibrillation. “Lal wrote in a Progress
Note on November 18 that a plan was made for a kidney biopsy (Dr. Tawa, Dr.
Keller, Dr. Morello, patient); FFP. Vit K iv.; hold Coumadin and heparin.” Tawa
argues that this Progress Note is not sufficient to suggest that he had any
involvement in the medical decision to discontinue the medication that he had
previously prescribed, and he argues that “the Amended Report does not state or
even suggest that Dr. Tawa participated in the decision to discontinue Coumadin
therapy and administer vitamin K and fresh frozen plasma.” A fair reading of
Lal’s Progress Note is that Dr. Tawa was involved or, at a minimum, acquiesced in
a treatment that called for an order discontinuing medication that Tawa had
prescribed. And, contrary to Tawa’s argument that Madias does not suggest
elsewhere in his report that Tawa was involved in this decision, Madias’s report
14
further attributes these decisions to Tawa in a section entitled “Was the treatment
that Mr. Gentry received after his admission on November 14, 2008 by his health
care providers including Dr. Tawa, Dr. Lai, and Angela Rowan NP-C, the expected
management to be implemented by competent and responsible professionals?”
Unfortunately, Mr Gentry’s health care providers decided soon after
his admission, and despite the persistence of atrial fibrillation, to stop
the antithrombotic therapy in order to address by means of a kidney
biopsy the possible cause of the patient’s reduced renal function; this
problem was unrelated to the patient’s symptoms.
Madias’s report states that he has experience treating and managing patients
similarly situated with Gentry, i.e., those diagnosed with atrial fibrillation, and that
he has “knowledge of the standard of care associated with the diagnosis and
treatment of the illness and injury that Mr. Gentry suffered, including his atrial
fibrillation, the need for anticoagulation, the risks of embolic strike, and
management of kidney disease.” He further states that in his Internal Medicine
practice, he has “treated many patients with atrial fibrillation and uncontrolled
hypertension,” and that he has “knowledge of the risks involved when such
patient’s antithrombotic treatment is discontinued.”
Madias’s report further explains that the “consequences of discontinuation of
antithrombotic therapy and the causes of cardiac embolism are well known within
the specialty of Internal Medicine,” and that “[a]ll of the concepts and opinions
that I present are completely in the domain and expected knowledge of an internist
15
without additional training in cardiology or any other subspecialty.” Finally, he
notes that the “standard of care that apply to a subspecialist in Cardiology or
Nephrology managing Mr. Gentry must satisfy or even exceed those that apply to a
specialist in Internal Medicine. That is, the standard of care applicable to internist
that do not have additional subspecialties such as Cardiology or Nephrology.”
“Where a particular subject of inquiry is common to and equally developed
in all fields of practice, and the prospective medical expert witness has practical
knowledge of what is usually and customarily done by a practitioner under
circumstances similar to those which confronted the practitioner charged with
malpractice, the witness is qualified to testify.” Rittger, 332 S.W.3d at 558
(holding that neurologist/ professor of medicine was qualified to opine on the
standard of care in case against emergency room physician who failed to diagnose
stroke in pregnant patient, explaining that the fact that the patient “was pregnant
when she experienced her stroke or that she presented herself in a emergency room
setting does not require that [the expert] be a an obstetrician or emergency room
physician,” because he “is shown to be sufficiently competent and qualified to
testify as to the care of patients with stoke as a complication of pregnancy-related
toxemia”). When, according to the expert’s report, the relevant standard of care is
basic and not limited to any particular specialty, an expert is qualified if “actively
participating in rendering medical care ‘relevant to the claim,’ which can be
16
demonstrated by a report showing the “injury involved was of the type [the expert]
treated in his practice.” Padilla v. Loweree, 354 S.W.3d 856, 864 (Tex. App.—El
Paso 2011, pet. denied) (holding that orthopedic surgeon was qualified to opine on
standard of care against gynecological surgeon because subject-matter of claim—
i.e., positioning and padding of patients’ extremities—is common to types of
surgeries expert performs).
We disagree with Tawa that Madias’s report and opinions are analogous to
the expert’s report and opinions “about the administrative decisions of the
Defendant Hospital” that the court in Brossard held the expert was not qualified by
experience or knowledge to opine about. 267 S.W.3d at 536. Rather, Madias’s
report and CV demonstrate that he has experience treating patients similarly
situated with Gentry, and that the standards about which he opines are generally
and well-known within his field of expertise. Tawa has not established that the
trial court abused its discretion in finding Madias qualified to render an opinion
regarding the applicable standard of care for Tawa.
B. Adequacy of Report
1. Standard of Care
Tawa next argues that Madias’s report “fails to specify an adequate standard
of care for Dr. Tawa.” Specifically, Tawa asserts that the “standard of care
articulated in the report is ambiguous and conclusory because the report provides
17
no specific information about what Dr. Tawa should have done differently to meet
the expected standard.” Tawa cites Kingwood Pines Hospital v. Gomez, 362
S.W.3d 740, 743 (Tex. App.—Houston [14th Dist.] 2011, no pet.) for the
proposition that Madias’s report fails to include specific enough information about
what an ordinarily prudent healthcare provider would have done, and Kettle v.
Baylor Medical Center at Garland, 232 S.W.3d 832, 838–39 (Tex. App.—Dallas
2007, pet. denied) for the proposition that Madias’s failure to include specific
information about the time frame in which Tawa was “required to intervene”
renders his articulation of the standard of care fatally deficient. Finally, Tawa
argues that the “report impermissibly infers that the standards of care applicable to
Dr. Lal also apply to Dr. Tawa.”
The Gentrys respond that a physician can be liable for negligence in Texas
based on a number of different acts or omissions, including choosing an
inappropriate procedure, abandoning a patient, not obtaining informed consent, and
not monitoring a patient’s condition. Thus, they argue, “a physician can be held
liable for omissions—an affirmative action is not required in every case.”
Additionally, they note that even the authority Tawa cites acknowledges that a full
statement of the standard of care is not required, Kingwood Pines Hosp., 362
S.W.3d at 748; all that is required is a statement sufficient to put the defendants on
notice of the nature of the claims against them, which Madias’s report does.
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The Gentrys also contend that the Kingwood Pines case primarily relied
upon by Tawa is distinguishable on its facts because it involved a conclusory
articulation of a nonmedical standard of care not present in this case. The Gentrys
argue that Kettle—the case Tawa cites for the proposition that Madias’s report
lacks requisite specificity about the timeframe for intervention—is likewise
distinguishable. In that case, the court found the word “promptly” to be too
ambiguous to articulate the standard of care that turned on when a procedure
should have been performed to prevent a patient’s death. According to the
Gentrys, this case does not involve the same ambiguity concerns, given that the
only possible time to intervene in this case would have been before cessation of
antithrombotic therapy and the subsequent administration of vitamin K and fresh
frozen plasma. Finally, the Gentrys assert that Tawa’s contention that Madias’s
report imputes Lal’s standard of care to Tawa is simply not supported by the actual
contents of the Amended Report.
Madias’s report contains the following articulation of the standard of care as
it relates to Tawa:
The accepted standard of medical care applicable to Dr. Tawa
relates to this dual role of attending physician and that of internist
caring for the patient. As the attending physician in the admission to
the hospital of Mr. Gentry, Dr. Tawa is responsible for the entire care
delivered to the patient by all healthcare providers, including Dr. Lal
and Angela Rowan. Thus, Dr. Tawa must oversee the care delivered
by the other providers and ensure that it is within the standard of care.
Failure to fulfill this task leads to substandard care. Dr. Tawa also
19
treated Mr. Gentry in the role of internist caring for the atrial
fibrillation and the management of this condition. A patient with
atrial fibrillation of uncertain time as to the intuition of the arrhythmia
and on Coumadin therapy should not discontinue all antithrombotic
therapy unless clots in the atria are absent or active bleeding is
present. The standard of care requires an internist to know that
administration of fresh frozen plasma and vitamin K to reverse the
anticoagulation caused by Coumadin therapy is very risky in a patient
like Mr. Gentry since discontinuation of antithrombotic therapy may
help to trigger the development of more clots in the atria.
It is important to recognize that the accepted standards of care
for the diagnosis and management of the illness of Mr. Gentry are
entirely dependent on his condition as a patient and are largely
independent of the subspecialty (e.g. Cardiology or Nephrology) of
the providers. Mr. Gentry had a medical condition typically managed
by internists (specialty in Internal Medicine), and both Dr. Lal and Dr.
Tawa were board certified in Internal Medicine.
The standard of care is defined by what an ordinarily prudent health care
provider or physician would have done under the same or similar circumstances.
Palacios, 46 S.W.3d at 880; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216,
222 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Identifying the standard
of care is critical: whether a defendant breached his or her duty to a patient cannot
be determined absent specific information about what the defendant should have
done differently. Palacios, 46 S.W.3d at 880. While a “fair summary” is
something less than a full statement of the applicable standard of care and how it
was breached, even a fair summary must set out what care was expected, but not
given. Id.
20
Madias’s report adequately set forth the standard of care. It states that, in
managing atrial fibrillation such as Gentry’s, antithrombotic therapy should not be
discontinued unless certain conditions are present. This is sufficient to put Tawa on
notice of the “specific conduct” that the Gentrys have called into question, and
what he should have done differently. Palacios, 46 S.W.3d at 879; e.g., Menefee v.
Ohman, 323 S.W.3d 509, 519 (Tex. App.—Fort Worth, 2010, no pet.) (expert’s
statement that defendant-physician “owed the patient in an acute care setting the
duty to immediate and sufficient medical response to her condition in order to
prevent brain damage” was sufficient articulation of standard of review, in case
alleging that physician was negligent in failing to immediately prescribe
anticonvulsants).
The cases relied upon by Tawa are inapposite. In Kingwood Pines, a minor
who was being evaluated for a psychiatric condition stemming from sexual abuse
sued her doctor and hospital after she was sexually molested by another patient
while in the hospital. 362 S.W.3d at 743–44. The court noted that her expert’s
report contained only conclusory statements “regarding the provision of a secure
environment, the supervision of patients, and the prevention of harm to patients,”
without “indicat[ing] what an ordinarily prudent health care provider would do
under the same or similar circumstances.” Id. at 749. The court thus held that the
articulation of the standard of care was insufficient as the expert merely stated
21
“that appellants did not provide a safe and secure environment for [the plaintiff],
but do not specify how this should have been accomplished.” Id. Given that
Medias’s report does indicate what course of action was called for, it does not lack
specificity as the report in Kingwood Pines did.
Kettle, the other case cited by Tawa, is likewise distinguishable. In that
case, the court affirmed the trial court’s dismissal of a plaintiff’s claim for failure
to serve an adequate expert report as to plaintiff’s claims against certain
physicians. 232 S.W.3d at 638–39. Among other things, the court concluded that
the expert’s articulation of the standard of care was vague in that it did not specify
what action should have been taken when:
Cohen’s opinion that all the physician-defendants collectively shared
the same duty to diagnose and treat Kettle's condition “promptly” or
“earlier” is also too vague and general to satisfy Palacios. It could be
stated that every physician has a general duty to diagnose or treat
medical conditions timely but that truism does not inform the
physician-defendants what the standard specifically required them to
do. It is conclusory.
Id. This analysis is simply not relevant to the Gentrys’ claims, as it is clear when
each action was taken that Madias’s views as a breach of the standard of care, i.e.,
discontinuation of antithrombotic therapy and administration of fresh frozen
plasma and vitamin K.
We find the facts presented here to be more analogous to Springer v.
Johnson, 280 S.W.3d 322, 334 (Tex. App—Amarillo 2008, no pet.). In Springer,
22
the plaintiff was admitted to the hospital for cardiac surgery and, prior to that
surgery, her attending physicians discontinued her anticoagulant therapy. 280
S.W.3d at 325. Three days later, she was discharged without receiving a
prescription or instructions to resume her anticoagulant therapy. Id. She then
suffered a stroke. Id. Similar to Madias’s report, the expert in Springer opined that
she should have been prescribed anticoagulation medication, and further that each
doctor had a duty to coordinate her care to ensure that she received the proper
medication, given the risk indicators:
[The] expert report indicates [plaintiff] suffered from paroxysmal
atrial fibrillation, an abnormal heart rhythm alternating between a
normal heart rhythm, and she underwent a combined coronary bypass
graft and aortic valve replacement while at Lubbock Heart Hospital.
He opines that these two facts are clinical indicators establishing a
compelling and absolute need for anticoagulation therapy using
warfarin because (1) an aortic valve replacement significantly
increased her risk of thromboembolism, i.e., clot formation in a blood
vessel that breaks loose and is carried by the blood stream until it
eventually plugs another blood vessel, and (2) her paroxysmal atrial
fibrillation added to that risk. [The expert] further opines that
[plaintiff] should have been prescribed warfarin and aspirin. He states
that Springer, [plaintiff]’s cardiac surgeon, and Rizzo and Solis, her
attending cardiologists, were under a duty to coordinate an appropriate
plan for their patient’s care which would have included coordinating
care between themselves as well as employees and agents of Lubbock
Heart Hospital. He further opines they were also under a duty to
supervise anticoagulation management of Johnson utilizing a
combination of warfarin and aspirin.
Id. at 331–32. The Springer court rejected the defendants’ reliance on Kettle for
the proposition that the standard of care was not sufficiently articulated. Id. at 333.
23
The court pointed out that the report at issue “states the standard of care, the
clinical indicators that should have prompted treatment (patient with newly
implanted aortic mechanical prosthesis and history of atrial fibrillation), and the
treatment that should have been administered (warfarin therapy with a prescribed
low dose aspirin) to satisfy the duty of care.” Id. Here, Madias likewise states the
clinical indicators (atrial fibrillation of uncertain time) and the treatment that
should have been administered (continued antithrombotic therapy).
Finally, we agree with the Gentrys that Tawa’s assertion that Madias’s
report does not differentiate between the standards of care applicable to Tawa and
Lal is not supported by the contents of the actual report. While Madias states that
the standards applicable to both Tawa and Lal are known and applicable to
internists generally without regard to their additional specialties, his report clearly
articulates a separate standard for both Tawa and Lal individually, and then states
that they had an obligation to coordinate their treatment of Gentry.
The trial court did not abuse its discretion in determining that Madias’s
report adequately articulated a standard of care related to Tawa.
2. Causation
Tawa next argues that Madias’s report “fails entirely to discuss a causal
relationship between Dr. Tawa’s conduct and Mr. Gentry’s embolic CVA.”
Specifically, he argues that “the report does not state or even suggest that Mr.
24
Gentry would not have suffered a stroke if he had remained on antithrombotic
therapy.” Tawa cites several cases for the proposition that a report that only sets
forth causation in a conclusory fashion is not sufficient. Tenet Hosp. LLC v. Love,
347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.) (expert opinion that if
defendant hospital “had a pulmonologist or critical care specialist on call and
available to see and treat this patient or had transferred this patient before her
condition worsened, [patient] would more likely than not be alive today” was
impermissibly conclusory); Costello v. Christus Santa Rosa Health Care Corp.,
141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.) (expert’s mere
assertion that patient would have survived was conclusory when report did not
explain causal relationship between patient’s death and alleged omissions by
hospital, including whether treatment would have or could have been effective).
The Gentrys contend that Tawa’s argument does not represent a fair reading
of Madias’s report. They assert that “when one views the report in total, it is clear
that causation of Mr. Gentry’s injuries is sufficiently addressed and connects the
actions and omissions of Dr. Tawa to those injuries.”
Madias’s report states that the care Gentry received at North Cypress
Medical Center by Tawa, Rowan, and Lal was “below the standard of ordinary
care, and that it was a proximate cause of his cerebrovascular accident (embolic
stroke) that resulted in hemiplegia with permanent and severe neurologic
25
disability.” His report then goes on to explain the underlying medical basis for his
opinion:
The cause of the CVA was acute cerebral ischemia with brain
infarction within the right side of the brain that resulted from
embolism of blood clots that originated in the left cardiac chambers
(i.e., left atrium). The consulting neurologist, the CT head, the Brain
MRI, all support that cardiac embolism was the cause of the patient’s
CVA. The relative normalcy of the Duplex carotid evaluation is also
consistent with embolism as the basis for the CVA. Because patients
with atrial fibrillation are at a much higher risk for embolic stroke, it
is important for them to receive antithrombotic therapy unless there is
active bleeding or the absence of clots has been confirmed. In this
case, the discontinuation of Coumadin and administration of FFP and
vitamin K was the most likely cause of the formation of clots in Mr.
Gentry’s atria and his subsequent CVA.
Madias’s report contains additional information about (1) the source of Gentry’s
blood clots leading to his CVA, (2) the substantial risk and usual course of
treatment for patients with atrial fibrillation associated with substantial
hypertension and left atrial enlargement, (3) why the actions of each defendant
healthcare provider were negligent and proximately caused of Gentry’s stroke, and
(4) why a kidney biopsy was not indicated, given Gentry’s symptoms. Contrary to
Tawa’s assertions, Madias’s report clearly states his opinion that the
discontinuation of Coumadin and infusion of vitamin K and fresh frozen plasma
was the most likely cause of Gentry’s stroke. The cases Tawa cites are inapposite
because unlike the conclusory reports in those cases, Madias’s report does “explain
26
the basis of the expert’s statements regarding causation and link his conclusions to
the facts.” Love, 347 S.W.3d at 754.
The trial court did not abuse its discretion in determining that Madias’s
report adequately articulated a causal link between Tawa’s care and Gentry’s
stroke. Because we have concluded that Madias possessed the required
qualifications to prepare an expert report opining on Tawa’s care, and because we
have concluded Madias’s report meets the statutory requirements, we overrule
appellants’ first issue complaining that the trial court abused its discretion in
failing to grant Tawa’s motion to dismiss.
ROWAN
In appellants’ second issue, they argue that the trial court abused its
discretion in failing to find Madias’s report deficient as it relates to Rowan (and to
the vicarious liability of Houston Interventional Cardiology for Rowan’s care).
Specifically, Rowan argues that Madias’s report is deficient because (1) he is “not
qualified to render an opinion regarding the standard of care applicable to nurse
practitioners,” (2) it “fails to specify a standard of care applicable to Ms. Rowan,”
and (3) “fails entirely to dismiss the causal relationship between Ms. Rowan’s
alleged breach and Mr. Gentry’s embolic CVA.”
27
A. Qualification
Rowan argues that Madias is not qualified to testify on the standard of care
for a nurse practitioner. She relies on HB Properties L.P. v. Cox, No, 02-09-
00111-CR, 2009 WL 3337190 (Tex. App.—Fort Worth Oct. 5, 2009, pet. denied)
(mem. op.), which held that a doctor board certified in internal medicine was not
qualified to render an opinion on the standard of care applicable to nurses. In that
case, although the expert’s CV reflected experience and expertise in internal
medicine and as a medical administrator, nothing in his report or CV demonstrated
familiarity with the acceptable standard of care for nurses. HB Props. L.P., 2009
WL 3337190, at *4 (holding trial court abused its discretion in failing to grant
motion to dismiss because “[t]hough [expert] is not automatically disqualified from
giving an expert opinion regarding the accepted standard of care for HN’s nurses
simply because he is an internal medicine physician instead of a nurse, we may not
through inferences or otherwise fill in the gaps in his report where he fails to detail
why or how he is qualified to opine about the applicable standard of care for HN’s
nurses.”). Rowan contends that Madias’s report similarly fails to demonstrate a
familiarity with the standard of care applicable to a nurse practitioner working in
cardiology.
The Texas Civil Practice and Remedies Code sets forth the criteria for an
expert witness against a health care provider such as Rowan:
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(b) In a suit involving a health care liability claim against a
health care provider, a person may qualify as an expert witness on the
issue of whether the health care provider departed from accepted
standards of care only if the person:
(1) is practicing health care in a field of practice that
involves the same type of care or treatment as that delivered by
the defendant health care provider, if the defendant health care
provider is an individual, at the time the testimony is given or
was practicing that type of health care at the time the claim
arose;
(2) has knowledge of accepted standards of care for
health care providers for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to
offer an expert opinion regarding those accepted standards of
health care.
TEX. CIV. PRAC. & REM. CODE § 74.402(b).
Applying this standard, the courts of appeals have consistently required a
physician-expert proffering an opinion on the applicable standard of care of a
nonphysician to affirmatively demonstrate experience and familiarity with the
standard of care for the nonphysician’s field.
When a physician fails to state in his expert report or affidavit
that he has knowledge of the standard of care applicable to the
specific types of health care providers involved in the claim, or that he
has ever worked with or supervised the specific types of health care
providers involved in the claim, the physician is not qualified on the
issue of whether the health care provider departed from the accepted
standards of care for health care providers. However, if the physician
states he is familiar with the standard of care for both nurses and
physicians, and for the prevention and treatment of the illness, injury,
or condition involved in the claim, the physician is qualified on the
issue of whether the health care provider departed from the accepted
standards of care for health care providers. Further, if a physician
29
states he is familiar with the standard of care and responsibilities and
requirements for physician’s assistants, and he has worked with,
interacted with, and supervised physician’s assistants, the physician is
qualified on the issue of whether the health care provider departed
from the accepted standards of care for health care providers.
Baylor Med. Center at Waxahachie v. Wallace, 278 S.W.3d 552, 558 (Tex. App.—
Dallas 2009, no pet.) (citations omitted). Compare Simonson v. Keppard, 225
S.W.3d 868, 873 (Tex. App.—Dallas 2007, no pet.) (physician not qualified to
opine on standard of care for nurse practitioner because his report does not “state
that he either has knowledge of the standard of care applicable to nurse
practitioners or that he has ever worked with or supervised nurse practitioners) and
Jones v. Ark-La-Tex Visiting Nurses, Inc., 128 S.W.3d 393, 396 (Tex. App.—
Texarkana 2004, no pet.) (physician not qualified to opine on standard of care for
nurse because his “report fails to state [his] qualifications to give the standard of
care for nurses monitoring a patient in a home healthcare setting”), with San
Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 813 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (physician qualified to opine on standard of care for
nurse because his “report stated that he is familiar with the standard of care for
both nurses and physicians for the prevention and treatment of decubitus ulcers”).
Madias’s report does not profess any knowledge about the standard of care
applicable to nurse practitioners. He does not claim to have experience training or
supervising nurse practitioners or provide any other basis for the trial court to
30
conclude that he was familiar with such standard. In contending that Madias is
qualified to opine about the standard of care applicable to Rowan, the Gentrys only
point to evidence that Madias is “familiar with the management of patients with
medical conditions similar to Mr. Gentry,” and ask us to conclude that he
“therefore would be familiar with the standard of care as it relates to nurses
managing such patients.” Neither the text of section 74.402 nor the cases
interpreting it allow us to make such an assumption.
Because nothing in Madias’s report demonstrates that he is familiar with the
standard of care applicable to nurse practitioners, we hold that the trial court
abused its discretion by denying Rowan’s motion to dismiss (and Houston
Intervention Cardiology’s motion to dismiss as it relates to vicarious liability for
Rowan’s care of Gentry). We thus sustain appellants’ second issue.
B. Attorneys’ Fees
Rowan and Houston Intervention Cardiology request that we reverse the trial
court’s order denying their motion to dismiss the Gentrys’ claims related to
Rowan’s care and remand to the trial court with instructions to award to them
reasonable attorneys’ fees and costs under section 74.351 of the Texas Civil
Practice and Remedies Code. The Gentrys argue that an award of attorneys’ fees
under section 74.351 is not appropriate, even if Madias’s report is deficient,
because it is not so deficient that it should be considered “no report at all.”
31
Section 74.351 provides that, if a timely expert report is not filed, upon
motion, the court “shall . . . enter an order that: . . . 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.” TEX. CIV. PRAC. & REM. CODE
§ 74.351. This “automatic attorney’s fees sanction comes into play when a timely
but deficient expert report has been filed.” Hightower v. Baylor Univ. Med. Ctr.,
348 S.W.3d 512, 522 (Tex. App.—Dallas 2011, pet. denied). Thus, appellants
Rowan and Houston Interventional Cardiology are entitled to an award of
reasonable attorneys’ fees and costs incurred related to claims premised on care
provided by Rowan.
CONCLUSION
We affirm the trial court’s order denying appellants Tawa and Houston
Interventional Cardiology’s motion to dismiss claims related to Tawa’s care of
Gentry. We dismiss the Gentrys’ claims against appellants Rowan and Houston
Interventional Cardiology (only as to vicarious liability claims related to Rowan’s
care of Gentry). We remand to the trial court for an award of reasonable attorneys’
fees and costs to Rowan and Houston Interventional Cardiology related to the
dismissed claims and for further proceedings.
32
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
33