Carly Cassady v. Kimberly N. Haynes, D.M.D. and Haynes Dental, PLLC D/B/A Aspen Dental ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00081-CV
CARLY CASSADY,
Appellant
v.
KIMBERLY N. HAYNES, D.M.D.
AND HAYNES DENTAL, PLLC
D/B/A ASPEN DENTAL,
Appellees
From the 361st District Court
Brazos County, Texas
Trial Court No. 19-001407-CV-361
MEMORANDUM OPINION
This is a health care liability claim filed by Carly Cassady against Kimberly N.
Haynes, D.M.D., and Haynes Dental, PLLC D/B/A Aspen Dental. At issue in this case is
the sufficiency of two expert reports filed by Cassady, one by Dr. Mel Hawkins and the
other by Dr. Chuck Majors. Dr. Haynes, Haynes Dental, and Aspen filed objections to
the two reports and asked the trial court to dismiss Cassady’s lawsuit because the reports
were not sufficient under the Texas Medical Liability Act. The trial court sustained the
objections as to Dr. Hawkins’s report, overruled the objections as to Dr. Majors’s report,
and it denied the motion to dismiss.
As a preliminary matter, we note that Dr. Haynes, Haynes Dental, PLLC D/B/A
Aspen Dental filed a notice of appeal with the District Clerk of Brazos County on
February 26, 2020. They appeal from that portion of the order of the trial court in which
the trial court overruled their objections to Dr. Majors’s report. They also appeal the trial
court’s denial of their motion to dismiss.
The next day, February 27, 2020, Cassady filed her notice of appeal with the
District Clerk of Brazos County. In Cassady’s notice of appeal, she challenges the trial
court’s order “only in so far as the Order sustains the Defendants’ objections to Dr. Mel
Hawkins’ Chapter 74 Report.”
This appeal has been docketed in this court to designate Cassady as the
Appellant/Cross-Appellee and Dr. Haynes, Haynes Dental, PLLC D/B/A Aspen Dental
are designated as Appellees/Cross-Appellants. We will refer to the parties either by name
or as docketed in this court.
In her lawsuit, Cassady alleged that she went to Dr. Haynes for what was to be a
routine filling procedure. The claim is that Dr. Haynes improperly administered a local
anesthetic and caused the needle to penetrate an artery in her mouth. Cassady became
Cassady v. Haynes et al. Page 2
ill, her skin turned pale, and she passed out. She also began to experience a convulsive
seizure and full body contractions. Further, she began to vomit violently.
Someone in Dr. Haynes’s office called EMS, and she was taken to the hospital by
ambulance where she was treated by hospital personnel. Cassady alleged that at some
point she began to suffer from back pain, neck pain, shoulder pain, difficulty of speech,
soreness, weakness, decreased flexibility, muscle spasms, fatigue, and nausea.
Cassady alleged some eight acts of negligence and pleaded that each constituted
a breach of the standard of care and that each, alone or in concert with the others, was a
proximate cause of the occurrence and her damages.
This lawsuit is subject to the Texas Medical Liability Act. See TEX. CIV. PRAC. &
REM. CODE ANN. ch. 74 (West). Under the provisions of Section 74.351(a) of the TMLA, a
plaintiff who asserts a health care liability claim must submit an expert report, along with
the expert's curriculum vitae, as to each physician or health care provider named as a
defendant in the suit, no later than the 120th day after the date each defendant files its
original answer. TEX. CIV. PRAC. & REM. CODE ANN. §74.351(a) (West).
Under Section 74.351(r)(6) of the TMLA, an expert report is a written report
providing “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 failure and the
injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. §74.351(r) (West).
Cassady v. Haynes et al. Page 3
If a plaintiff timely files an expert report and the defendant moves to dismiss
because the report is inadequate, the trial court must grant the motion “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 Section 74.351(r)(6). TEX. CIV. PRAC.
& REM. CODE ANN. §74.351(l) (West).
To constitute a “good-faith effort,” the report must contain 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 Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). “A valid
expert report has three elements: it must fairly summarize the applicable standard of care;
it must explain how a physician or health care provider failed to meet that standard; and
it must establish the causal relationship between the failure and the harm alleged.”
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6)).
A report that merely reflects the expert's conclusions about the standard of care,
breach, and causation does not meet the statutory requirements. Wright, 79 S.W.3d at 52.
When a trial court determines whether the report represents a good-faith effort, its
inquiry is limited to the four corners of the report. Section 74.351(r)(6); Palacios, 46 S.W.3d
at 878.
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We review a trial court’s decision on the adequacy of an expert report under the
TMLA for an abuse of discretion. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d
510, 512 (Tex. 2017) (citing Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex.
2015) (per curiam)); Palacios, 46 S.W.3d at 877 (Tex. 2001). “A trial court abuses its
discretion if it rules without reference to guiding rules or principles.” Miller, 536 S.W.3d
at 512-13 (quoting Van Ness, 461 S.W.3d at 142). “When reviewing matters committed to
the trial court's discretion, ‘the reviewing court may not substitute its judgment for that
of the trial court.’” Miller, 536 S.W.3d at 513 (quoting Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992)).
A trial court does not abuse its discretion simply because it may decide a matter
within its discretion differently than an appellate court would determine the issue.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). However, a clear
failure by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion. Walker, 827 S.W.2d at 840.
We will first examine the expert report authored by Dr. Hawkins.
A large portion of Dr. Hawkins’s report consists of a verbatim recitation of the
notes made by Dr. Haynes. Dr. Hawkins notes that there is an “absence of . . . information
about the syringe and needle used.” Later in his report, Dr. Hawkins again notes the lack
of information about needle size and type of syringe used by Dr. Haynes. According to
Dr. Hawkins, that information would not be recorded “even by most wise and prudent
Cassady v. Haynes et al. Page 5
dentists in practice and would require the dental assistant to testify that her dentist did
in fact ‘pull back’ on the thumb ring to perform the aspiration, assuming the DA saw it
and even understands what aspiration is. . ..”
Dr. Hawkins opines that the “standard of the procedure(s) in this issue include the
use of a 25 ga. needle to do an inferior alveolar block, lingual block as taught in the
majority of Universities in the USA and Canada concurrent with a self aspirating syringe.
. . . ” Dr. Hawkins states, “I do not have enough information to comment further as stated
elsewhere in this report.”
In his opinion as to the breach of the “standard of the procedure,” Dr. Hawkins’s
analysis assumes the use of a 30 ga. needle and manual syringe, the very information that
Dr. Hawkins noted that he did not have available to him. He states, “breach could have
been a factor in causing injury, assuming a 30 ga. needle was used, it is probable to say
that aspiration could not be done. Using a barbed type manual syringe, it is anybody’s
guess. . . “
Through no fault of his own, Dr. Hawkins knew neither the size of the needle nor
the type of syringe that Dr. Haynes used nor how she used it. Yet, Dr. Hawkins’s
opinions were based upon the assumption of the use of a specific needle size and a certain
type syringe.
When Dr. Hawkins addressed the causal relationship between any failure to meet
the standard of care and the injuries alleged by Cassady, he stated, “I was not there at the
Cassady v. Haynes et al. Page 6
time of the adverse event or at any other time to date to observe the injuries and can only
rely on the chart notes and pt. descriptions.” He continued, “Discovery conducted in the
future may reveal more facts which would potentially offer more clarification re: breach
and causation of injury.”
A plaintiff is not required to marshal all its proof in an expert report. However,
the expert “must discuss the standard of care, breach, and causation with sufficient
specificity to inform the defendant of the conduct the plaintiff has called into question
and to provide a basis for the trial court to conclude that the claims have merit.” American
Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).
Even if Dr. Hawkins has set forth the applicable standard of care, there is nothing
in his report to show how Dr. Haynes failed to meet that standard. Dr. Hawkins’s report
was based upon the assumption that a certain size needle was used with a certain type
syringe, but there is nothing in the report to indicate what size and type Dr. Haynes used. 1
Further, there is nothing in the report to connect any such failure to the “injury, harm, or
damages claimed” by Cassady. The trial court did not abuse its discretion when it found
Dr. Hawkins’s report to be deficient. We overrule Cassady’s issue on appeal in which
she claims otherwise.
1 Toward the end of the 120 day period in which Cassady had to file her expert report, her lawyer
telephoned the lawyer for Cross-Appellants and asked him about the needle size and type of syringe;
Cross-Appellant’s lawyer declined to give him the information. No formal discovery was ever sought as
provided for in section 74.351(s) of the Texas Civil Practice & Remedies Code. TEX. CIV. PRAC. & REM. CODE
ANN. §74.351 (s) (West).
Cassady v. Haynes et al. Page 7
We next examine the report prepared by Dr. Chuck Majors. The trial court ruled
that Dr. Majors’s report was sufficient under the TMLA. Accordingly, the trial court
overruled the objections leveled against the report by Dr. Haynes and her co-defendants;
it also denied the motion to dismiss filed by them.
In their brief, Cross-Appellants do not set forth “issues on appeal.” Instead, they
present their contentions under a section of their brief entitled “Arguments &
Authorities.” In the heading of a section of their brief denominated as “II” Cross-
Appellants state, “Cassady fails to resuscitate Dr. Majors’ report.” In essence, in this
section of Cross-Appellants’ brief, they attack the trial court’s ruling that Dr. Majors’s
report was an adequate expert report under the TMLA.
Dr. Majors states that when Dr. Haynes administered the numbing injection,
Cassady experienced an instant burning sensation in her lip on the lower right side. Dr.
Majors opined that “[t]his was an indication that the needle had penetrated the
neurovascular bundle where the artery is located.” Dr. Majors described the physical
changes that occurred within a minute of the numbing injection administered by Dr.
Haynes. It was Dr. Majors’s “professional opinion that the episode was likely caused by
inadvertent intravascular injection of the local anesthetic used by the doctor to numb the
patient.” He further stated that “the episode was caused by the injection into the blood
stream.”
Cassady v. Haynes et al. Page 8
In his report, Dr. Majors refers to a statement in the “Handbook of Local
Anesthesia” in which the author takes the position that with a proper injection technique
and with the use of an aspirating syringe, an injection into the inferior alveolar artery
should not occur. However, nowhere in the report does Dr. Majors set forth what that
proper injection technique is. Nor does Dr. Majors state how Dr. Haynes failed to follow
the proper injection technique, whatever that might be. We conclude that Dr. Majors did
not set forth the applicable standard of care and how Dr. Haynes breached that standard
of care.
Further, as to the causal relationship between any breach and injury, Dr. Majors
stated that “As [Cassady’s] body was in a tonicclonic seizure resulting in full body
contractions, somehow, she injured her neck and back.” (emphasis added). The use of the
word “somehow” is telling as to the lack of the adequacy of the report as to causation.
Further, the stated qualifications of Dr. Majors do not speak to his ability to opine as to
Cassady’s non-dental injuries such as back pain, neck pain, shoulder pain, difficulty of
speech, soreness, weakness, decreased flexibility, muscle spasms, fatigue, and nausea.
We hold that the trial court abused its discretion when it ruled that Dr. Majors’s
report was sufficient under the TMLA. We sustain Cross-Appellants’ argument that Dr.
Majors’s report was an inadequate expert report under the TMLA.
Cassady correctly states that Dr. Hawkins’s report and Dr. Majors’s reports can be
considered together on the issue of the adequacy of expert opinion. “Expert reports can
Cassady v. Haynes et al. Page 9
be considered together in determining whether the plaintiff in a health–care liability
action has provided adequate expert opinion regarding the standard of care, breach, and
causation.” Salais v. Texas Dep't of Aging & Disability Servs., 323 S.W.3d 527, 534 (Tex.
App.—Waco 2010, pet. denied). In this case, however, neither expert report supplies
information sufficient to overcome deficiencies in the other.
Our holdings as above set forth obviate the necessity to discuss any other issues
raised in this appeal.
Section 74.351(c) of the TMLA provides that if a report is found deficient, the court
may grant one 30-day extension to the plaintiff in order to cure the deficiency. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(c) (West).
We affirm the judgment of the trial court insofar as it held that the report of Dr.
Hawkins was insufficient as an expert report under the TMLA. We reverse that part of
the judgment of the trial court wherein it found that Dr. Majors’s report was sufficient as
an expert report under the TMLA. We remand that issue to the trial court for it to
determine whether to grant Cassady a 30-day extension in order to cure the deficiencies
in the report.
JIM R. WRIGHT
Senior Chief Justice
Cassady v. Haynes et al. Page 10
Before Chief Justice Gray,
Justice Johnson,
and Justice Wright2
Affirmed
Opinion delivered and filed June 1, 2022
[CV06]
2 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals,
sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§
74.003, 75.002, 75.003.
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