Kenneth C. Hancock, M.D., Noelle Cloven, M.D., and Texas Oncology, P.A. v. Arthur Rosse, Individually and as Representative of the Estate of Carol Rosse, Jerald Rosse, Individually, Joellyn Mims, Individually, Deanna Chronister, Individually, Brenda Baca, Individually and Bradley Rosse, Individually ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00126-CV
___________________________
KENNETH C. HANCOCK, M.D., NOELLE CLOVEN, M.D., AND TEXAS
ONCOLOGY, P.A., Appellants
V.
ARTHUR ROSSE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF CAROL ROSSE; JERALD ROSSE, INDIVIDUALLY; JOELLYN
MIMS, INDIVIDUALLY; DEANNA CHRONISTER, INDIVIDUALLY; BRENDA
BACA, INDIVIDUALLY; AND BRADLEY ROSSE, INDIVIDUALLY, Appellees
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-297450-18
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
I. Introduction
To treat seventy-nine-year-old Carol Rosse’s endometrial carcinoma, on May
24, 2016, Appellant Kenneth C. Hancock, M.D., a gynecologic oncologist, performed
a hysterectomy and bilateral salpingo-oophorectomy (removal of ovaries and fallopian
tubes) with a bilateral pelvic and peri-aortic lymph node dissection.1 Rosse, who had a
cardiac stent placed in 2014, had been taking Plavix and aspirin as blood thinners. Dr.
Hancock’s office told Rosse to take Plavix, but no aspirin, on the day of surgery.
Three weeks later, Rosse died from a post surgical bleed despite treatment by
Appellant Noelle Cloven, M.D., a gynecologic oncologist who was on call for
Appellant Texas Oncology, P.A.2
1
The facts recited in this opinion are in accordance with those alleged in the
original petition, the expert report, and Appellants’ brief. See Tex. R. App. P. 38.1(g)
(stating that in a civil case, the court will accept as true the facts stated unless another
party contradicts them); Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 221 n.1
(Tex. 2018) (per curiam).
2
Based on the facts set out in Appellees’ expert report, when Rosse was
brought to the emergency room on June 11, 2016, a CT scan revealed a nodular mass-
like opacity in her pelvis. Dr. Cloven concluded that the CT scan findings were most
likely compatible with a hematoma related to Rosse’s use of Plavix. Two days later,
Rosse received a blood transfusion and her aspirin and Plavix were discontinued. On
June 14, after she was deemed ready for discharge, Rosse’s blood pressure dropped,
and she developed cardiorespiratory failure. After Rosse was resuscitated, Dr.
Hancock performed an exploratory laparotomy and found “a large amount of old
blood and clots” and a small amount of continuous bleeding from the left pelvic node
dissection. Rosse received a transfusion of eight units of blood in the operating
room. She died later that day. As summarized by Appellees’ counsel at the hearing
2
After Rosse’s death, her husband and children3 sued Dr. Hancock, Dr. Cloven,
and Texas Oncology, P.A., among others, and served on them a Chapter 74 expert
report4 by Dr. Rabbie Kriakoss Hanna, M.D., a board-certified gynecologic
oncologist. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. The trial court overruled
Appellants’ objections to Dr. Hanna’s report and denied their motion to dismiss.5 In
five issues, Appellants bring this interlocutory appeal, see id. § 51.014(a)(9),
complaining that the trial court erred. We affirm.
on Appellants’ motion, “This woman slowly bled to death and two doctors did not
catch it, and they should have caught it.”
Appellees are Arthur Rosse, individually and as representative of the Estate of
3
Carol Rosse; Jerald Rosse, individually; Joellyn Mims, individually; Deanna Chronister,
individually, Brenda Baca; individually; and Bradley Rosse, individually.
4
In order to “weed out frivolous malpractice claims in the early stages of
litigation, [but] not to dispose of potentially meritorious claims,” the Texas Medical
Liability Act (TMLA) requires a health care claimant to serve an expert report early in
the proceedings on each party against whom a health care liability claim is asserted.
Abshire, 563 S.W.3d at 223 (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877 (Tex. 2001)); Baty v. Futrell, 543 S.W.3d 689, 692 (Tex. 2018) (citing
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)).
The trial court found Dr. Hanna’s initial, seven-page report deficient but
5
granted the Rosses a 30-day extension to cure the deficiency. After the Rosses served
the revised report that was more than twice as long, Appellants again objected,
complaining that while the revised report was more detailed and did more to explain
Dr. Hanna’s reasoning, it did “not close the gaps in causation present in the prior
report” and was based on “broad, speculative conclusions which lack[ed] specificity.”
3
II. Discussion
Appellants argue that the trial court erred by denying their challenges to Dr.
Hanna’s report because (1) Dr. Hanna failed to establish himself as a qualified expert
to reliably opine on the causal connection between the alleged surgical injury under
Dr. Hancock’s care and Rosse’s death almost three weeks later; (2) Dr. Hanna does
not clearly describe the standards of care that Dr. Hancock is alleged to have violated;
(3) Dr. Hanna is not qualified to opine on the mechanism of bleeding involving
Plavix, a medicine prescribed by Rosse’s cardiologist, and how it resulted in
rehospitalization and then death under the care of later physicians and health care
providers; (4) Dr. Hanna does not clearly describe the standards of care he believes
Dr. Cloven breached, vaguely stating that she should have ordered more blood checks
than she did; and (5) Dr. Hanna does not explain how Dr. Cloven caused Rosse’s
death when she, in fact, ordered blood checks, ordered that Rosse be given blood, and
determined that Rosse’s blood work and vital signs had returned to acceptable levels
before Rosse died.
Appellees respond that the trial court did not err because Dr. Hanna is a
qualified expert; the expert report needed only provide a fair summary; Dr. Hanna
described the standards of care that Dr. Hancock had violated; Dr. Hanna was
qualified to opine on the mechanism of bleeding involving Plavix because he is the
same type of doctor as Dr. Hancock and so may criticize Dr. Hancock’s decision to
keep Rosse on Plavix; Dr. Hanna described the standards of care that Dr. Cloven
4
breached by not aggressively evaluating Rosse for active bleeding, by not performing
serial abdominal examinations to allow for identification of physical signs that could
point to continuous internal bleeding, and by not recognizing that being on Plavix put
Rosse at a higher risk of continuous bleeding; and Dr. Hanna adequately explained
how Dr. Cloven had caused Rosse’s death.
A. Standard of Review and Applicable Law
We review for an abuse of discretion a trial court’s decision to deny a motion
to dismiss based on the adequacy of an expert report. Abshire, 563 S.W.3d at 223;
Baty, 543 S.W.3d at 693 & n.4. Under this standard, we defer to the trial court’s
factual determinations if they are supported by evidence but review its legal
determinations de novo. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142
(Tex. 2015) (per curiam). A trial court abuses its discretion if it acts without reference
to any guiding rules or principles—that is, if its act is arbitrary or unreasonable. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004).
A court shall grant a motion challenging the adequacy of an expert report only
if it appears to the court, after a 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).” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). The TMLA
defines an “expert report” as a
5
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.
Id. § 74.351(r)(6). An “expert” must, among other things, be “qualified on the basis
of training or experience to offer an expert opinion regarding [the] accepted standards
of medical care” for the diagnosis, care, or treatment of the illness, injury, or
condition involved in the claim. Id. § 74.401(a)(2)–(3), (c); see also id. § 74.351(r)(5)(C)
(defining an “expert” who gives 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 as “a physician who is
otherwise qualified to render opinions on such causal relationship under the Texas
Rules of Evidence”).
In determining whether an expert is qualified, the trial court shall consider
whether, at the time the claim arose or at the time the testimony is given, the witness
(1) is board certified or has other substantial training or experience in an area of
medical practice relevant to the claim, and (2) is actively practicing medicine in
rendering medical care services relevant to the claim. Id. § 74.401(c). Further, the
proper inquiry in assessing a doctor’s qualifications to submit an expert report is not
his area of expertise but rather his familiarity with the issues involved in the claim
before the court. Estorque v. Schafer, 302 S.W.3d 19, 26 (Tex. App.—Fort Worth 2009,
no pet.).
6
An expert report need not marshal all of the plaintiff’s proof, but it must
discuss the standard of care, breach, and causation with sufficient specificity within its
four corners 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. Baty, 543 S.W.3d at 693–94 (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
52–53 (Tex. 2002); Palacios, 46 S.W.3d at 875, 878). We must view the report in its
entirety rather than isolating specific portions or sections. Id. at 694.
B. Dr. Hanna’s Expert Report
In his 15-page revised expert report, Dr. Hanna set out his qualifications as a
board-certified gynecologic oncologist who had “been actively involved in the medical
and surgical training and teaching of fellows, residents[,] and medical students in a
variety of training programs in addition to caring for complex surgical patients” and
who had performed “surgeries for patients with endometrial cancer on over 1000
patients.”
After setting out a recitation of Rosse’s case, Dr. Hanna explained that Plavix
works to prevent platelets within blood from forming clots to keep blood flowing
smoothly in the body, that its use “increases the risk of surgical bed bleeding
intraoperatively and postoperatively by 20–50%,” and that such bleeding increases the
risk of surgical complications and death. He opined that a patient taking Plavix with
an elective surgery scheduled (as Rosse’s was) “should have her Plavix discontinued
for 5–7 days unless there is a medical reason not to, such as is the case if the surgery is
7
emergent or if the patient’s cardiac condition requires continuation of Plavix
preoperatively.” And he noted that if the surgeon decides to continue the Plavix
without interruption preoperatively, both the patient and surgeon “should be aware of
the high risk of intra- and postoperative bleeding, the consequences of such[,] and the
various signs/symptoms, and methods to address such.”
Dr. Hanna noted that after a patient taking Plavix undergoes surgery, her
postoperative hemoglobin should be compared to its preoperative value and a
postoperative decrease in hemoglobin levels could be reflective of an intra-abdominal
bleed that was either present but unnoticed during surgery or that could have started
after surgery. He listed other signs of postoperative bleeding to include low blood-
pressure levels that are not comparable to preoperative levels, abdominal distension,
and symptoms of anemia such as dizziness, fatigue, and fainting.
Dr. Hanna stated that if a decrease in hemoglobin is identified, even without
the presence of other symptoms, “the surgeon has the duty to investigate if there is a
postoperative bleeding event” by performing a thorough examination of the patient
and surgical site and by obtaining radiologic imaging, such as a CT scan, to exclude or
confirm the presence or absence of postoperative bleeding. And he stated that if
postoperative bleeding is identified, the surgeon has a duty to take appropriate
measures to stop it, either medically—stopping the Plavix, providing any necessary
blood or platelet transfusions, and continuing to monitor hemoglobin levels—or
surgically by coiling the bleeding vessel or through surgical re-exploration to address
8
the affected area and stop the bleeding. He also stated that the consequences of a
failure to diagnose a postoperative bleed would be to deprive major organs of blood
supply leading to organ failure and eventually death, summarizing the consequences as
“a direct proportional correlation between the extent of blood loss, its duration, the
time it is diagnosed/addressed[,] and the extent of organ(s) failure.” Dr. Hanna
concluded his recitation of the standard of care by stating that the longer the period
between the bleeding and the eventual diagnosis thereof, the smaller the chances that
the organ or organs are able to tolerate blood loss, ending in eventual organ failure
and death despite any measure taken.
Dr. Hanna then addressed how Dr. Hancock had deviated from the standards
that he had described (1) by advising Rosse to continue taking Plavix until the day of
surgery without discussing the risks and benefits of continuing or discontinuing it
preoperatively with her or her cardiologist even though he had documented Plavix
and aspirin as a surgical risk factor;6 (2) by failing to confirm the presence or absence
of postoperative bleeding when faced with abnormal laboratory values of hemoglobin
despite a documented minimal blood loss during the surgery and minimal dilutional
effect of the amount of intravenous fluids received during and after surgery;7 and (3)
6
In his report, Dr. Hanna referenced a 2014 report of the American College of
Cardiology/American Heart Association Task Force on Practice Guidelines regarding
the management of perioperative antiplatelet therapy.
7
Dr. Hanna noted that Rosse’s hemoglobin level before surgery was 14.3 g/dl
and that her postoperative level was 10.0 g/dl. He stated, “A drop of hemoglobin of
9
by failing to address Rosse’s documented low blood pressure on the day of discharge,
95/40, when her preoperative blood pressure values were normal to elevated, ranging
from 165/85 to 136/80. He concluded that the decrease in hemoglobin and blood
pressure, when compared to Rosse’s preoperative values, “cumulatively raise the
concern for a postoperative bleeding that should have been assessed.”
Dr. Hanna opined that with regard to causation that Dr. Hancock’s failure to
advise Rosse to discontinue taking Plavix five to seven days prior to surgery “more
likely than not led to an early postoperative bleeding manifested as a hemoglobin drop
and low blood pressure on the first postoperative day[,] both of which were not
individually or collectively addressed.” This, according to Dr. Hanna, led to a
premature discharge home with undiagnosed intraperitoneal bleeding, which was later
manifested and confirmed after she returned to the emergency room, and which
ultimately led to further blood loss and multiple organs shutting down without
responding to all medical and surgical methods and her eventual death.
As to Dr. Cloven, Dr. Hanna noted that a postsurgical patient with low blood
pressure in the presence of Plavix intake should raise the concern of internal bleeding,
and that when readmitted with low blood pressure and radiologic evidence of blood
accumulation, Rosse should have been evaluated for continuous bleeding aggressively
1 g/dl is equivalent to about a loss of one pint of blood, which is about 525 ml
(almost half a liter). Hence, a 4 g/dl discrepancy would surmount to approximately
two liters of blood loss.”
10
by serial blood counts every four to six hours and possibly invasive testing and that
the failure to do so would lead to further internal bleeding, depriving major organs of
blood (oxygen and nutrition) and eventual shutdown without responding to all
medical and surgical methods, and death.
Dr. Hanna stated that Dr. Cloven had diagnosed Rosse with blood collection in
the pelvis but “did not take appropriate measures to ensure there was no continuous
internal bleeding via active surveillance of her hemoglobin values at short intervals
(every 6–8 hours) and serial abdominal examinations to ensure no physical signs of
continuous blood loss” and did not consider blood or platelet transfusions soon
enough, “i.e., before more blood [was] lost in order to avoid the detrimental effects of
blood deprivation to major organs.” He opined that if Dr. Cloven had evaluated
Rosse’s hemoglobin levels in a timely fashion, Rosse would have received blood
products or platelets sooner or the decrease in hemoglobin levels would have
triggered surgical intervention sooner, allowing her vital organs to be less affected.
Dr. Hanna enumerated Dr. Cloven’s deviations from the standard of care as (1)
not aggressively evaluating Rosse for active bleeding via serial hemoglobin-level
evaluations within short intervals and comparing them to previous levels; (2) not
performing serial abdominal examinations to allow for identification of physical signs
that could point out continuous internal bleeding; and (3) not recognizing that a
patient’s actively taking Plavix put her at a higher risk of continuous bleeding because
of permanent inhibition of platelet functions and would deprive her from clotting any
11
bleeding vessels naturally, hence leading to continuous bleeding internally. As to
causation, he opined that Dr. Cloven’s deviations from the standard of care “led to a
significant delay in diagnosing bleeding internally, a delayed surgical response in
stopping the bleeding, hence a longer deprivation period of Carol Rosse’s organs from
oxygenation and nutrition leading to eventual death because of multiple organ
failing[,] a condition which leads to death.”
Dr. Hanna summarized his report by stating that within a reasonable degree of
medical probability, the following factors either individually or collectively amounted
to deviations of the standard of care leading to Rosse’s death: the continuation of
Plavix until the day of surgery, the failure to evaluate the decrease in hemoglobin
levels and abnormal vital signs following the May 24, 2016 surgical procedure, and the
failure to aggressively evaluate Rosse for potential continuous internal bleeding and to
manage it appropriately when she was readmitted.
C. Analysis
1. Standard of Care
To adequately identify the standard of care, an expert report—by a qualified
expert, see Tex. Civ. Prac. & Rem. Code Ann. § 74.401—must set forth specific
information about what the defendant should have done differently. Abshire, 563
S.W.3d at 226 (citing Palacios, 46 S.W.3d at 880). That is, the report must identify
what care was expected but not given, id., and with such specificity that inferences
need not be indulged to discern them. Cook Children’s Med. Ctr. v. C.R., No. 02-18-
12
00248-CV, 2019 WL 1185602, at *3 (Tex. App.—Fort Worth Mar. 14, 2019, no pet.)
(mem. op.) (citing Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 270 (Tex.
App.—Fort Worth 2009, no pet.)).
Appellants argue that Dr. Hanna failed to establish himself as a qualified expert
to reliably opine on the causal connection between Dr. Hancock’s surgery and Rosse’s
subsequent death and that he was not qualified to opine on the mechanism of
bleeding involving Plavix. They also contend that Dr. Hanna did not clearly describe
the standards of care that he believed Dr. Cloven breached.
Dr. Hanna’s report establishes that he is board certified in the same practice
area—gynecologic oncology—as both Dr. Hancock and Dr. Cloven, that he had
performed endometrial cancer surgeries on over 1,000 patients, and that he was
actively involved in medical and surgical training, “in addition to caring for complex
surgical patients.” Accordingly, because of his board certification in the same practice
area and his active practice in rendering medical care services “relevant to the claim,”
we conclude that the trial court did not abuse its discretion by determining that Dr.
Hanna was qualified to reliably opine on matters related to Dr. Hancock’s and Dr.
Cloven’s medical and surgical treatment of Rosse, an elderly patient suffering from
endometrial cancer, including the continued use of Plavix. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.351(r)(5)(C), .401(c). We overrule Appellants’ first and third issues.
Further, although Appellants argue that Dr. Hanna did not clearly describe the
standards of care that Dr. Hancock is alleged to have violated, Dr. Hanna’s report
13
identified Dr. Hancock’s conduct that was called into question as violating the
standards of care—(1) advising Rosse to continue taking Plavix without discussing the
risks and benefits of continuing or discontinuing it preoperatively with her or her
cardiologist even though he had documented Plavix and aspirin as a surgical risk
factor; (2) failing to confirm the presence or absence of postoperative bleeding when
faced with the abnormal laboratory values of her hemoglobin despite a documented
minimal blood loss during the surgery and minimal dilutional effect of the amount of
intravenous fluids she had received during and after surgery; and (3) by failing to
address Rosse’s documented low blood pressure on the day of discharge, 95/40, when
her preoperative blood pressure values were normal to elevated, ranging from 165/85
to 136/80—allowing the trial court to conclude that at least one of these theories had
merit to support the continuation of the Rosses’ claims. See Baty, 543 S.W.3d at 697.
Likewise, he also enumerated Dr. Cloven’s deviations from the standard of care
as (1) not aggressively evaluating Rosse for active bleeding via serial hemoglobin-level
evaluations within short intervals and comparing them to previous levels; (2) not
performing serial abdominal examinations to allow for identification of physical signs
that could point out continuous internal bleeding; and (3) not recognizing that a
patient’s actively taking Plavix put her at a higher risk of continuous bleeding because
of permanent inhibition of platelet functions and would deprive her from clotting any
bleeding vessels naturally, hence leading to continuous bleeding internally. The trial
court could have concluded that at least one of these theories as to each doctor had
14
merit to support the continuation of the Rosses’ claims. See id. Accordingly, we
overrule Appellants’ second and fourth issues.
2. Causation
The causation element requires an expert to explain “how and why” the alleged
negligence caused the injury in question. Abshire, 563 S.W.3d at 224 (citing Jelinek v.
Casas, 328 S.W.3d 526, 536 (Tex. 2010)). A conclusory statement of causation is
inadequate; instead, the expert must explain the basis of his statements and link
conclusions to specific facts. Id.; see also Columbia Valley Healthcare Sys., L.P. v.
Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (stating that reports without factual
explanations are “nothing more than the ipse dixit of the experts” and thus
insufficient). But the expert need not prove the entire case or account for every
known fact as long as the report makes a good faith effort to explain factually how
proximate cause is going to be proven. Abshire, 563 S.W.3d at 224; see Cook Children’s
Med. Ctr., 2019 WL 1185602, at *3 (explaining that proximate cause’s two components
are foreseeability and cause-in-fact); Estorque, 302 S.W.3d at 28 (explaining that a
causal relationship is established by proof that the negligent act or omission was a
substantial factor in bringing about the harm and that absent said act or omission, the
harm would not have occurred but noting that to avoid dismissal, a plaintiff need not
present all the evidence necessary to litigate the merits of his case). And our job at
this stage “is not to weigh the report’s credibility” but rather to determine whether the
expert has explained how the negligent conduct caused the injury. Abshire, 563
15
S.W.3d at 226 (“Whether this explanation is believable should be litigated at a later
stage of the proceedings.”). In short, we are to determine whether the trial court
could have found that the report represented a good-faith effort to summarize the
causal relationship between the doctors’ failures to meet the applicable standards of
care and Rosse’s injury. See Baty, 543 S.W.3d at 698.
Causation may be shown by an expert’s explaining a chain of events that starts
with a doctor’s negligence and ends with a patient’s injury. Owens v. Handyside, 478
S.W.3d 172, 189 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (op. on reh’g);
McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.).
In Owens, for example, a medical malpractice lawsuit in which the trial court
concluded that the plaintiff’s expert report was deficient and dismissed the lawsuit,
our sister court reversed that order and remanded the case. 478 S.W.3d at 175, 180,
193. The plaintiff had seen several medical providers—Drs. Handyside, Prater, and
Totz—complaining of headaches, but they failed to diagnose what eventually was
diagnosed as cerebral venous sinus thrombosis, and the delay in treatment allegedly
resulted in the patient’s developing blindness. Id. at 175–76. With respect to
causation, the court walked through the report, stating,
In regard to Dr. Prater, Dr. Richardson, in his report, states that Prater
breached the standard of care by “fail[ing] to perform a lumbar
puncture” on Owens, “fail[ing] to admit her” to the hospital, failing to
“perform cerebral imagining[,] such as [a] head CT or [a] brain MRI,”
failing to “obtain a neurological consultation to have [Owens] assessed
urgently despite the diagnoses of possible meningoencephalitis and
possible cavernous sinus thrombosis,” and failing to provide “adequate
16
neurological follow-up” after Owens was discharged from Memorial
Hermann. In regard to causation, Richardson opines:
If Dr[.] . . . Prater performed [a] lumbar puncture, ordered
cerebral imaging[,] such as [a] head CT and preferably [an]
MRI, admitted [Owens to the hospital] and/or obtained [a]
neurological consultation, . . . Owens would have likely had
a more timely diagnosis, earlier treatment[,] and her vision
would medically probably have been saved. If . . . Prater
had not prescribed dexamethazone for . . . Owens[,] it is
medically probable that her condition would not have been
exacerbated. It is possible she would not have progressed
to . . . have [a] loss of vision.
Further, Richardson states that “[i]f [Owens] was admitted [to the
hospital], if a neurology consultation was obtained, and if a lumbar
puncture had been done[,] it is medically probable that her condition,
dural sinus thrombosis[,] would have been diagnosed earlier[,] and her
vision would have been saved with treatment.” As stated above, the
treatments available to prevent Owens’s loss of vision are also addressed
by Richardson in his report.
Dr. Prater asserts that Dr. Richardson “merely state[s] that
had . . . Prater diagnosed [Owens], then she might have had a better
outcome” and fails to explain “how . . . Prater’s conduct caused the
permanent loss of vision.” In other words, Richardson “does not
explain how and why the complained of delay in diagnosis and treatment
and the prescription of dexamethasone were substantial factors in
causing [Owens’s] blindness.”
Contrary to Dr. Prater’s assertions, however, Dr. Richardson’s
report “explain[s], to a reasonable degree, how and why the [alleged]
breach [by Prater] caused [Owens’s] injury.” . . . Richardson opines that
Prater’s failure to “perform[ ][a] lumbar puncture, order[ ] cerebral
imaging[,] such as [a] head CT and preferably [an] MRI, admit[ ] [Owens
to the hospital], and/or obtain[ ][a] neurological consultation” resulted in
a delay of the diagnosis and treatment of Owens’s conditions. And
“[t]his delay resulted in the development of a complication, severe vision
loss due to idiopathic intracranial hypertension. Severe vision loss due
to intracranial complication can generally be easily treated with
17
medication if it is diagnosed early.” With earlier detection and treatment,
Owens’s “vision would medically probably have been saved.”
....
. . . Dr. Richardson does not simply assert that Owens would have had
the “possibility of a better outcome” if not for Drs. Handyside’s and
Prater’s alleged breaches of the standard of care. Instead, Richardson
explains that the doctors’ breaches caused a delay in the diagnosis and
treatment of Owens’s conditions. As stated in the report: “Untreated
dural sinus thrombosis is well known to potentially cause idiopathic
intracranial hypertension.” The delay in the diagnosis and treatment of
Owens “resulted in the development of a complication, severe vision
loss due to idiopathic intracranial hypertension.” “It is medically
probable that early diagnosis would have prevented [Owens’s] later
development of vision loss.” The treatments available to prevent
Owens’s vision loss included medication, “serial lumbar punctures,”
“lumboperitoneal shunt placement,” and “[o]ptic nerve fenestration.”
Based on the foregoing, Dr. Richardson’s report represented an
“objective good faith effort” to inform Drs. Handyside and Prater of the
causal relationship between their failure to adhere to the pertinent
standard of care and the injury, harm, or damages claimed.
Id. at 189–91 (citations omitted).
A similar result is found in McKellar, a medical negligence case in which the trial
court denied the doctor’s motion to dismiss and our sister court affirmed. 367 S.W.3d
at 481. A day after the pregnant patient was admitted to the hospital, one of her twin
children was diagnosed with encephalopathy, allegedly from the mismanagement of
the patient’s labor. Id. Dr. McKellar challenged the report of her expert, Dr.
Gatewood, as deficient on causation. Id. at 481–82. In affirming the trial court’s
order finding Dr. Gatewood’s report adequate on causation, our sister court stated,
18
It is clear from Gatewood’s report that [one of the twins] suffered from
encephalopathy. Encephalopathy is a disease of the brain involving
alteration of the brain structures. We are told that [the baby’s] altered
brain structure was probably caused by McKellar’s failure to order
continuous heart rate monitoring upon [his mother’s] admission to the
hospital; failure to order an ultrasound for discordance and a biophysical
profile; and failure to notify labor and delivery of the decision to proceed
with emergency Caesarean section at 18:35 after the consult with Dr.
Gore. Finally, upon his arrival at the hospital, McKellar failed to
expedite rapid response for the Caesarean section.
A fair reading of Gatewood’s report is that the failure to
expeditiously discover and address the recurring variable decelerations
with absent long-term variability in [the baby’s] heart rate resulted in [his]
brain damage. Thus, the report sets forth a chain of events beginning
with [the mother’s] admission to the hospital when McKellar allegedly
negligently failed to monitor the twins’ heart rates, when he knew [the
mother] was at risk for preeclampsia due to excessive edema and
proteinuria, and at a time when he was aware that repeated consultations
for serial ultrasounds were necessary from April through July 24. Even
though such ultrasounds were routinely utilized to monitor the twins’
condition due to this high-risk pregnancy prior to [the mother’s]
hospitalization, no such ultrasounds were ordered at a critical time when
she was hospitalized. Next, McKellar failed to expedite his decision to
perform an emergency Caesarean section, delaying the twins’ delivery, all
of which resulted in brain damage to [the baby]. The trial court was
permitted to read the causation section in the context of the entire
report.
Id. at 486 (footnotes and citations omitted).
In their final issue, Appellants argue that Dr. Hanna failed to explain how Dr.
Cloven caused Rosse’s death when she ordered blood checks, ordered blood, and
determined that Rosse’s blood work and vital signs had returned to acceptable levels
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before she died.8 Accordingly, we review Dr. Hanna’s report for an explanation of
the chain of events that starts with the doctors’ negligence and ends with Rosse’s
death. See Owens, 478 S.W.3d at 189; McKellar, 367 S.W.3d at 485.
Dr. Hanna’s report sets forth that Dr. Cloven had breached the standard of
care by failing to take more active, aggressive measures after diagnosing Rosse with
blood collection in her pelvis, and he listed the measures that, in his opinion, should
have been taken to prevent Rosse’s death. He opined that Dr. Cloven’s deviations
from the standards of care “led to a significant delay in diagnosing bleeding internally,
a delayed surgical response in stopping the bleeding, hence a longer deprivation
period of Carol Rosse’s organs from oxygenation and nutrition leading to eventual
death because of multiple organ failing[,] a condition which leads to death.” That is,
his report made a good faith effort to explain “how and why” Dr. Cloven’s alleged
negligence led to Rosse’s death by explaining the basis of his statements and by
linking his conclusions to the facts of Rosse’s case. See Abshire, 563 S.W.3d at 224;
Polone v. Shearer, 287 S.W.3d 229, 237 (Tex. App.—Fort Worth 2009, no pet.) (holding
that expert’s opinion that doctors’ failure to meet the standards of care regarding
8
Appellants also complain, “[T]here are three gaps here that need expert
explanation. And Dr. Hanna is not qualified on any of them. First, did Ms. Rosse
bleed for three weeks? Second, did Plavix cause the bleeding? Third, did this bleed
cause her death?” But these are ultimately fact questions for a factfinder rather than
the mere “fair summary” required by an expert report, and the lawsuit is not against
the maker of Plavix but rather the doctors and their actions and inactions with regard
to Rosse’s treatment.
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evaluation and management of breast mass and interpretation of mammography and
breast sonography increased risks of metastatic breast cancer and subsequent morbidity
and mortality was not conclusory); see also Palacios, 46 S.W.3d at 880 (stating that a
“fair summary” must set out what care was expected, but not given); cf. Kettle v. Baylor
Med. Ctr. at Garland, 232 S.W.3d 832, 838 (Tex. App.—Dallas 2007, pet. denied)
(holding that expert’s opinion that “all the physician-defendants collectively shared
the same duty to diagnose and treat Kettle’s condition ‘promptly’ or ‘earlier’” was too
vague and general to satisfy Palacios).
A trial court abuses its discretion only when it acts in an arbitrary or
unreasonable manner without reference to any guiding principles or rules. Wright, 79
S.W.3d at 52. Under this standard, the trial court in this case did not abuse its
discretion by concluding that Dr. Hanna’s report represented an objective, good-faith
effort to comply with the definition of an expert report on the issue of causation. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); McKellar, 367 S.W.3d at 486.
Accordingly, we overrule Appellants’ fifth issue.
III. Conclusion
Having overruled all of Appellants’ issues, we affirm the trial court’s order and
remand the case for further proceedings.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: January 30, 2020
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