THN Physicians Association D/B/A El Paso Perinatology and Frederick E. Harlass, M. D. v. Mario A. Tiscareno and Michelle R. Tiscareno, Individually and as Next Friends for A. R. T., a Minor , 2016 Tex. App. LEXIS 8948 ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THN PHYSICIANS ASSOCIATION §
D/B/A EL PASO PERINATOLOGY AND No. 08-15-00321-CV
FREDERICK E. HARLASS, M.D., §
Appeal from the
Appellants, §
448th District Court
v. §
of El Paso County, Texas
MARIO A. TISCARENO AND §
MICHELLE R. TISCARENO, (TC# 2014-DCV-2484)
INDIVIDUALLY AND AS NEXT §
FRIENDS FOR A.R.T., A MINOR,
Appellees.
OPINION
This appeal involves the sufficiency of a preliminary expert report in a medical malpractice
case. Plaintiffs Mario and Michelle Tiscareno (individually, and as next friends of their daughter,
A.R.T.) filed a healthcare liability claim against Dr. Frederick E. Harlass and his health care
practice, THN Physicians Association. Plaintiffs claimed Dr. Harlass 1 was responsible for
injuries caused to Michelle Tiscareno and their new-born daughter, A.R.T. Dr. Harlass moved to
dismiss the lawsuit, contending Plaintiffs’ expert report failed to meet the requirements of the
Texas Medical Liability Act. The trial court denied the motion, and Dr. Harlass filed this
interlocutory appeal.
1
Plaintiffs’ claims against THN Healthcare Associates are strictly vicarious for Dr. Harlass’s alleged negligence.
For purposes of clarity, we refer to Dr. Harlass and THN collectively as “Dr. Harlass.”
We conclude the expert report is sufficient as to at least one theory of liability against Dr.
Harlass with regard to the claims concerning Michelle Tiscareno. But, we conclude that the
expert report is deficient with regard to the claims concerning A.R.T. Accordingly, we affirm in
part and reverse and remand in part.
BACKGROUND
We take the following background information from the petition and the expert report in
issue, noting that the factual claims have not yet been proven.
Michelle Tiscareno was pregnant, and her baby was due in September 2012. She was
under the care of Dr. Harlass beginning in January 2012. On August 2, 2012, Tiscareno was
admitted to Providence Memorial Hospital where she was evaluated by Dr. Harlass, who
discharged her on August 4. On August 5, Tiscareno called the hospital with unspecified
complaints regarding “urination.” Plaintiffs alleged Dr. Harlass was notified of Tiscareno’s
complaints. The next day, August 6, Tiscareno went to the hospital and was admitted at
approximately 11 a.m.
According to the expert report, shortly after Tiscareno’s admission, there was a
“non-reassuring electronic fetal monitor strip[.]” The expert report does not indicate when the
monitor strip was recorded or what made it “non-reassuring.” The report also states Tiscareno’s
membranes ruptured during her hospital admission, and that a “foul smell” was noted. The report
does not indicate when this event occurred. Dr. Harlass performed an emergency C-section that
same day. The report does not indicate what time the C-section was performed. Dr. Harlass’s
operative notes from the C-section state there was an “extremely foul odor upon opening of the
uterus[,]” and that Tiscareno’s membranes were “very yellow.”
2
Tiscareno was discharged from the hospital on August 8. According to the expert report,
no treatment for postpartum infection was provided to Tiscareno at the time of her discharge, even
though she exhibited signs of postpartum infection, including a fever, tachycardia, and
leukocytosis.
Five days later, on August 13, Tiscareno went to Dr. Harlass’s office, complaining of “pain
in the surgical area” which was described as “hard, red, and swollen[,]” and was examined by Dr.
Harlass’s partner, Dr. Velazquez. According to the report, Tiscareno displayed signs of a
“postpartum infection” during the visit, and Dr. Velazquez “attempted to drain the [surgical] area
with a syringe, without success.” The report contends Dr. Velazquez sent Tiscareno home
without providing her “appropriate treatment including antibiotic therapy[.]”
The next day, while Tiscareno was at the hospital visiting her daughter, her post-operative
wound ruptured “with significant fluid coming out[.]” Tiscareno was immediately admitted to
the hospital for a “post-operative infected wound.” The expert report does not discuss what
treatment Tiscareno received after the rupture. The report merely indicates that Tiscareno was
admitted to the hospital, and an infectious disease physician was consulted, who diagnosed
Tiscareno with a “post-operative wound infection likely secondary to infected amniotic fluid.”
The Lawsuit
Plaintiffs sued Dr. Harlass, Dr. Velazquez, and their medical practice, THN Physicians
Association.2 Plaintiffs alleged that while under Dr. Harlass’s care, Tiscareno and her daughter
A.R.T. “developed complications related to an infection.” The petition alleged that as early as
August 2, Dr. Harlass should have known that Tiscareno and her daughter A.R.T. were at risk for
2
Dr. Velazquez also filed a motion to dismiss, which the trial court denied. Dr. Velazquez also appealed, which we
considered separately in Appeal No. 08-15-00317-CV.
3
perinatal complications, and that Dr. Harlass failed to properly monitor, evaluate, and treat those
perinatal complications.
The Expert Report
As provided by statute, Plaintiffs were required to serve a complying preliminary expert
report on Dr. Harlass in support of their claims. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351
(West Supp. 2016); see also Tenet Hosps., Ltd. v. Garcia, 462 S.W.3d 299, 302-03 (Tex.App. – El
Paso 2015, no pet.). The report was authored by Lawrence S. Borow, M.D., a board-certified
obstetrician-gynecologist, with 40 years of experience. Dr. Harlass did not raise any issues
concerning Dr. Borow’s qualifications.
Based on his review of the medical records, Dr. Borow opined that Dr. Harlass had
breached the standard of care at three different times, causing harm to both Tiscareno and baby
A.R.T.3
First, Dr. Borow stated, without elaboration, that Dr. Harlass should have recognized
before August 6 that Tiscareno and A.R.T. “were at increased risk for chorioamnionitis.” He
noted that chorioamnionitis is “an infection of the amniotic fluid, membranes, placenta an/or [sic]
decidua” and “is associated with maternal infection, fetal white matter brain injury and cerebral
palsy.”
Second, Dr. Borow opined that on August 6, Dr. Harlass should have performed the
C-section delivery earlier, and breached the standard of care because he “knew or should have
known that the mother and infant were at increased risk for chorioamnionitis and morbidity.” Dr.
Borow stated that by the time Tiscareno was admitted to the hospital on August 6, she “had been in
3
Dr. Borow also opined that Dr. Velazquez failed to provide appropriate treatment “including antibiotic therapy when
Mrs. Tiscareno presented with signs and symptoms of post-partum infection” at the August 13 office visit.
4
and out of threatened preterm labor for 5 days[,]” and there was a “non-reassuring electronic fetal
monitor strip from shortly after admission” until the emergency C-section was performed. Dr.
Borow also noted that Ticareno’s membranes ruptured, and a “foul smelling fluid was noted.” He
asserted that “there was chorioamnionitis present upon rupture of membranes which in association
with the non-reassuring EFM pattern required cesarean section delivery much sooner.” Dr.
Borow also noted that Dr. Harlass’s operative notes stated there was “an extremely foul odor upon
opening of the uterus” and “the membranes were very yellow;” and that a later “placenta pathology
diagnosis stated mild to moderate acute funisitis of trivascular umbilical cord.”
Finally, Dr. Borow opined that on August 8, the standard of care required Dr. Harlass to
recognize that Tiscareno was at increased risk for postpartum infection due to chorioamnionitis
and to provide Tiscareno with “appropriate treatment for post-partum infection including
antibiotic therapy at the time of discharge.” Dr. Borow noted that before her discharge, Tiscareno
“showed signs and symptoms of postpartum infection including a fever, tachycardia, and
leukocytosis,” and that “[w]hen she was discharged, no treatment for postpartum infection was
provided[,]” and she “continued having significant pain in her c-section site and in her pelvis.”
As to causation, Dr. Borow opined that Dr. Harlass’s failure to recognize the risk of
chorioamnionitis “resulted in a delay in proper antibiotic therapy and delivery.” He stated that:
The longer the baby and the mother were exposed to infection the greater the harm,
including infant white matter brain injury and maternal postpartum infection.
Intrapartum antibiotic therapy is known to prevent infant morbidity and brain
damage. This breach of the standard of care was a substantial cause of the infant’s
white matter brain injury and the mother’s postpartum infection. Had Dr. Harlass
complied with this standard of care, appropriate antibiotic therapy and early
delivery would have more likely than not prevented the white matter brain injury
and postpartum maternal infection.
5
Dr. Borow further opined that Dr. Harlass’s failure to prescribe appropriate treatment to Tiscareno
for postpartum infection:
[R]esulted in progressive ongoing infection and increased morbidity, requiring
additional treatment. This breach of the standard of care was a substantial cause of
harm to Mrs. Tiscareno. Had Dr. Harlass complied with this standard of care,
appropriate antibiotic therapy would have prevented the ongoing progressive
infection requiring additional treatment.
Objections and Motion to Dismiss
Dr. Harlass filed objections to Dr. Borow’s expert report, as well as a motion to dismiss,
contending that the report was conclusory as to the standard of care, breach, and causation, and
therefore was inadequate to meet the requirements of the TMLA. After hearing, the trial court
denied the motion.
DISCUSSION
In two separate issues, Dr. Harlass contends the trial court abused its discretion in denying
the motion to dismiss because Dr. Borow’s report failed to adequately identify the standards of
care, how Dr. Harlass breached those standards, and how any breach caused injury to Tiscareno
and A.R.T.
Applicable Law and Standard of Review
The TMLA defines “expert report” to mean one that “provides a fair summary of the
expert’s opinions” regarding (1) the standard of care, (2) how the health care provider failed to
meet that standard, and (3) the causal relationship between that failure and the injury, harm, or
damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2016); see
Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011). A “fair summary of the expert’s
opinions” means that, at the least, the report must state more than mere conclusions and must
6
instead explain the basis of the expert’s opinion so as to link the conclusions to the facts of the
case. See Garcia, 462 S.W.3d at 304 (citing American Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001)); see also Bowie Mem'l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002).
Once an expert report is timely served and properly challenged, the trial court must grant a
motion challenging the adequacy of an expert report 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. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012); Garcia, 462 S.W.3d at 304; see also
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). To qualify as an objective good faith effort, the
report must (1) inform the defendant of the specific conduct the plaintiff questions, and (2) provide
a basis for the trial court to conclude that the plaintiff's claims have merit. Scoresby, 346 S.W.3d
at 556 (citing Palacios, 46 S.W.3d at 879); see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625,
630-31 (Tex. 2013).
While a claimant must timely file an adequate expert report as to each defendant in a health
care liability claim, the TMLA does not require an expert report as to each liability theory alleged
against that defendant. See Tenet Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 171 (Tex.App. – El
Paso 2015, no pet.). An expert report that adequately addresses at least one pleaded theory of
liability satisfies the statutory requirements, and the trial court must not dismiss in such a case.
Certified EMS, Inc., 392 S.W.3d at 632; see also TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41,
44-45 (Tex. 2013).
While the claimant need not marshal all her evidence to support the expert’s opinion, there
must be sufficient facts within the report to meet the objectives of the statute. Garcia, 462
7
S.W.3d at 304 (citing Palacios, 46 S.W.3d at 877). In determining whether the report meets those
requirements, the court should look no further than the report itself, because all of the information
relevant to the inquiry must be contained within the document’s four corners. Bowie Mem’l
Hosp., 79 S.W.3d at 52; see also Baker v. Gomez, 276 S.W.3d 1, 8 (Tex.App. – El Paso 2008, pet.
denied). The court should not have to fill in missing gaps in a report by drawing inferences or
resorting to guess work. Garcia, 462 S.W.3d at 304 (citing Bowie Mem’l Hosp., 79 S.W.3d at
52); see also Kanlic v. Meyer, 320 S.W.3d 419, 422 (Tex.App. – El Paso 2010, pet. denied).
The trial court makes the decision whether an expert report is sufficient. Our role is to
determine if the trial court abused its discretion. Garcia, 462 S.W.3d at 304 (citing Tenet Hosp.
Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App. – El Paso 2009, pet. denied)); see also Jernigan v.
Langley, 195 S.W.3d 91, 93 (Tex. 2006). A trial court abuses its discretion when it acts arbitrarily
or unreasonably and without reference to any guiding rules or principles. Garcia, 462 S.W.3d at
304; see also Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
Whether the Report Adequately Described the Standard of Care and Breach
In his first issue on appeal, Dr. Harlass argues that the expert report did not adequately set
out the standard of care or the manner in which Dr. Harlass breached that standard. The expert
report asserted three different theories on how Dr. Harlass’s conduct fell below the standard of
care at three different times: (1) his conduct before Tiscareno was admitted to the hospital on
August 6; (2) his conduct on August 6 when he performed the emergency C-section; and (3) his
conduct on August 8 when he discharged Tiscareno from the hospital. The first two involve the
alleged injuries to both Tiscareno and A.R.T., while the third involves only an alleged injury to
Tiscareno. We examine each of these theories separately.
8
The Standard of Care and Breach
“‘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.’” Gonzalez v. Padilla, 485 S.W.3d 236, 248 (Tex.App. – El Paso 2016, no
pet.) (quoting Palacios, 46 S.W.3d at 880); see also Clapp v. Perez, 394 S.W.3d 254, 259
(Tex.App. – El Paso 2012, no pet.). “‘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.’” Padilla, 485 S.W.3d at 248 (quoting Palacios, 46
S.W.3d at 880). “‘Mere reference to general concepts regarding assessment, monitoring, and
interventions are insufficient as a matter of law.’” Id. (quoting Regent Health Care Ctr. of El
Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex.App. – El Paso 2008, no pet.)).
Events Occurring Before Tiscareno’s Hospital Admission on August 6:
Tiscareno and A.R.T.
Planitiffs alleged that on August 2 (when Tiscareno was first admitted to the hospital), Dr.
Harlass knew or should have known that Tiscareno and her unborn infant were at risk for
“perinatal complications.” Dr. Borow’s report, however, does not provide any insight into what
Dr. Harlass knew or should have known on or about August 2. The only reference the report
makes to the events leading up to Tiscareno’s subsequent hospital admission on August 6 is Dr.
Borow’s unsubstantiated and unexplained statement that Tiscareno had been in “threatened
preterm labor for 5 days” prior to her hospital admission. The report fails to explain how or why
Dr. Borow arrived at that conclusion, and further fails to indicate that Dr. Harlass was even aware
of that condition at any time before or during Tiscareno’s hospital admission on August 6.
Although Dr. Borow indicates in his report that he had reviewed Tiscareno’s prenatal records, he
9
did not indicate that Tiscareno had any prenatal office visits or any other contact with Dr. Harlass,
during those five days leading up to her admission on August 6 that would have suggested the
possibility that he was aware that Tiscareno was in “threatened preterm labor” during that time.
More importantly, even if we were to assume that Tiscareno was in fact in “threatened
preterm labor” for any period of time leading up to the time the emergency C-section was
performed on August 6, the report fails to explain how this would have suggested to a reasonable
physician that an earlier C-section was warranted or that Tiscareno and her baby were at increased
risk of chorioamnionitis. Given this lack of specificity regarding the events prior to August 6, we
conclude there is nothing in the expert report to suggest that Dr. Borow’s conduct fell below the
standard of care during the time period leading up to Tiscareno’s August 6 hospital admission.
Therefore, we conclude that the trial court could not have relied on this theory of liability in
denying Dr. Harlass’s motion to dismiss.
Events Occurring on August 6, the Day of Tiscareno’s Hospital Admission
and Emergency C-Section:
Tiscareno and A.R.T.
Dr. Borow’s report provides more specificity with regard to the events that occurred when
Tiscareno presented at the hospital at 11 a.m. on the morning of August 6. Nevertheless, a closer
examination of the report reveals that Dr. Borow failed to establish that any delay in performing
the C-Section actually occurred.
Dr. Borow described two separate events that occurred at the time of Tiscareno’s hospital
admission on August 6 which he believes would have alerted Dr. Harlass that he needed to
perform an “earlier” C-section—the nonreassuring fetal monitoring strip and the rupturing of
Tiscareno’s membranes. Dr. Borow failed, however, to state exactly when those events occurred
10
or their temporal relation to when the C-section was performed. Instead, Dr. Borow states
generally that this information was evident at 1 p.m. that day, two hours after Tiscareno was
admitted, yet he fails to indicate when the C-section was performed. Dr. Borow’s theory of
liability rests on his conclusion that Dr. Harlass improperly delayed performing the C-section.
However, without any information to substantiate that a delay even occurred, the trial court could
not rely on this conclusion in denying Dr. Harlass’s motion to dismiss.
Further, aside from the timing issues, Dr. Borow failed to adequately explain how Dr.
Harlass knew or should have known that an earlier C-section was required. Dr. Borow asserts Dr.
Harlass knew or should have known that Tiscareno was at “increased risk for chorioamnionitis”
and that he failed to perform an earlier C-section in light of this risk. Dr. Borow points out two
events that occurred prior to the C-section, which he claims should have alerted Dr. Harlass that an
earlier C-section was indicated. Yet in both instances, he failed to provide an explanation why
those events would have alerted a reasonable physician of the necessity to perform an earlier
C-section. First, as to the “nonreassuring” fetal monitor strip, Dr. Borow failed to provide any
description of what the fetal monitor strip indicated, or how it would have alerted a reasonable
physician that an earlier C-section was necessary. Second, as to his general statements that “there
was chrorioamnionitis present upon rupture of membranes” and that this was “evidence” that an
earlier C-section was required, Dr. Borow fails to explain how or why he believed
chrorioamnionitis was present. Instead, Dr. Borow states only, in a completely separate section
of his report, that when Tiscareno’s membranes ruptured, a “foul smelling fluid was noted.” And,
even then, Dr. Borow never explains the significance of the “foul” smell, and never states that the
smell was in fact indicative of chrorioamnionitis.
11
As such, we conclude Dr. Borow has done little more than describe a set of events, without
making an adequate attempt to link those facts to his conclusion that Dr. Harlass’s conduct fell
below the standard of care in performing the C-section. It is insufficient for an expert to merely
describe facts and make general conclusions from those facts. Instead, the report must
necessarily link the facts of the case to the conclusion. Garcia, 462 S.W.3d at 304; see also
Bowie Mem’l Hosp., 79 S.W.3d at 52 (the expert must “explain the basis of his statements to link
his conclusions to the facts”). While no “magic words” are required to make that connection, the
expert report nevertheless must make a connection between the signs and symptoms presented by
the patient and what these signs would have signaled to a reasonable physician.
Mendez-Martinez, 2016 WL 1613422, at *6 (although “magic words” are not needed in an expert
report, the report must contain sufficient detail regarding a doctor’s alleged breach of the standard
of care).
A court may not go outside the four corners of the report and make an inference that these
were signs of a treatable infection that the defendant doctor should have recognized. See Jones v.
King, 255 S.W.3d 156, 160 (Tex.App. – San Antonio 2008, pet. denied); see also Scoresby, 346
S.W.3d at 556 (“No particular words or formality are required [in the expert report], but bare
conclusions will not suffice.”). In order to reach a conclusion that Dr. Harlass’s conduct in failing
to perform an earlier C-section fell below the standard of care, the trial court would have been
required to make a series of impermissible inferences, i.e., that there was in fact a delay in
performing the C-section, that the fetal monitoring strip should have alerted a reasonable physician
that an earlier C-section was required, and that the rupturing of Tiscareno’s membranes would
have alerted a reasonable physician that Tiscareno and A.R.T. were at increased risk for
12
chorioamnionitis.
Moreover, much of Dr. Borow’s report focuses on conditions that were discovered either
during or after the C-section was performed, such as the foul order Dr. Harlass noted when he
opened Tiscareno’s uterus, as well as the placenta pathology diagnosis the indicated funisitis in the
umbilical cord and the report of the infectious disease physician diagnosed Tiscareno after her
wound ruptured as suffering from a postpartum infection relating to infected amniotic fluid. An
expert report must contain “a description of the circumstances confronting the doctor” at the time
of treatment, which “purportedly obligated him to respond in a particular manner.” Johnson v.
Willens, 286 S.W.3d 560, 564-65 (Tex.App. – Beaumont 2009, pet. denied). The report must
focus on the “clinical indicators” that would have prompted the treating physician to recognize the
patient’s condition and to initiate a particular treatment. Springer v. Johnson, 280 S.W.3d 322,
333 (Tex.App. – Amarillo 2008, no pet.). Therefore, the trial court could not have relied on any
of the facts that Dr. Harlass learned during or after the C-section was performed in determining
whether his conduct fell below the standard of care in failing to perform the C-section earlier.4
Because the expert report was deficient in this regard, the trial court could not have relied
on this theory of liability to support the claims concerning the injuries to either Tiscareno or
A.R.T. This is the only remaining theory that would have supported a claim that Dr. Harlass’s
conduct fell below the standard of care with respect to his treatment of A.R.T. Once baby A.R.T.
was delivered, her care was out of Dr. Harlass’s hands. Accordingly, we conclude the expert
4
Planitiffs appear to assert that Dr. Harlass is complaining that Dr. Borow’s expert report fails to address
foreseeability. Planitiffs point out that an expert report is not required to opine on the “foreseeability” of a patient’s
injuries. See Adeyemi v. Guerrero, 329 S.W.3d 241, 245-46 (Tex.App. – Dallas 2010, no pet.) (rejecting doctor’s
contention the expert report was required to address whether all of a patient’s injuries were foreseeable). In the
present case, however, Dr. Harlass is not attempting to impose a foreseeability requirement on Dr. Borow’s expert
report. Instead, Dr. Harlass’s argument is properly focused on the key question whether Dr. Borow’s report provided
a “fair summary” of the standard of care and how Dr. Harlass’s conduct on August 6 fell below the standard of care.
13
report, in its present form, will not support any claims against Dr. Harlass for the alleged injuries to
A.R.T.
However, Dr. Harlass continued to treat Tiscareno after the C-section on August 6, and her
third and final theory of liability is based on Dr. Harlass’s conduct occurring after that time.
Thus, we address that theory with respect to Tiscareno only.
Tiscareno’s August 8 Discharge from the Hospital: Tiscareno Only
In his expert report, Dr. Borow contends Dr. Harlass’s conduct fell below the standard of
care by failing to recognize that Tiscareno was suffering from a postpartum infection at the time of
her discharge, which he claims required appropriate antibiotic treatment. In his report, Dr. Borow
states that before or at the time of her discharge, Tiscareno “showed signs and symptoms of
postpartum infection including a fever, tachycardia, and leukocytosis.” 5 Dr. Borow then
concludes that Dr. Harlass should have recognized that Tiscareno was at increased risk for
postpartum infection, and that he should have provided her with “appropriate treatment . . .
including antibiotic therapy at the time of discharge.”
Dr. Harlass first generally criticizes Dr. Borow’s opinion on the ground that Dr. Borow did
not clearly state how Tiscareno’s “condition” in the hospital or at the time of discharge suggested
that she needed “further intervention” of “how Dr. Harlass should have recognized a pending
infection.” According to Dr. Harlass, the report merely “rattle[d] off a list of Mrs. Tiscareno’s
labs and vitals,” and provided no explanation which symptoms should have suggested an infection
5
Dr. Borow also states that during the C-section, Dr. Harlass noted that there was “an extremely foul odor upon
opening of the uterus,” and that Tiscareno’s membranes were “very yellow.” We note however that in his report, Dr.
Borow fails to expressly indicate that those were symptoms of a pending diagnosable infection, which would have
prompted Dr. Harlass to initiate antibiotic therapy, and does not include them when describing Tiscareno’s signs of
postpartum infection. The report further states that Tiscareno continued having “significant pain in her c-section site
and in her pelvis[,]” but does not indicate whether this pain occurred before or after her discharge, or whether
Tiscareno reported this pain to Dr. Harlass either before or after her discharge. We therefore do not consider this in
our analysis.
14
and why such symptoms should have prompted diagnosis and treatment. We disagree.
Dr. Borow expressly stated that at the time of her discharge, Tiscareno “showed signs and
symptoms of postpartum infection including a fever, tachycardia, and leukocytosis.” This
statement represented more than a mere rattling off of a list of symptoms. Instead, the report
expressly stated that these three symptoms were in fact symptoms of a diagnosable postpartum
infection. Further, Dr. Borow was not required to explain which specific symptom suggested an
infection, as he was instead opining that all three of symptoms suggested an infection. We
therefore conclude Dr. Borow’s report provided the necessary link between the facts described,
i.e., the symptoms exhibited by Tiscareno at the time of her discharge, and his conclusion that Dr.
Harlass should have diagnosed and treated Tiscareno for a postpartum infection.
Dr. Harlass nevertheless contends the report was inadequate because it failed to identify
what “antibiotic therapy” should have been administered to Tiscareno at the time of her discharge,
and thereby does not provide fair notice of the applicable standard of care or how it was breached.
In support of his argument, Dr. Harlass relies on Ibrahim v. Gilbride, No. 14-09-00938-CV, 2010
WL 5064430 (Tex.App. – Houston [14th Dist.] Dec. 9, 2010, no pet.) (memo op.), in which the
court found the report failed to specify the medication that should have been prescribed. Id. at
*11. Ibrahim, however, was not based solely on the failure to describe the type of anti-seizure
medication needed to treat the patient, but discussed numerous other weaknesses not at issue in the
present case, such as the failure to identify the seizure disorder suffered by the plaintiff and its
pathology and to show that medication was a necessary and potentially effective treatment. Id.
Unlike the report in Ibrahim, Dr. Borow’s report adequately identified the type of infection that
Tiscareno was suffering from at the time of her discharge (i.e., a postpartum infection), identified
15
the pathology of the infection (i.e., an untreated postpartum infection stemming from infected
amniotic fluid), and expressly stated that appropriate antibiotic therapy would have been effective
in preventing the ongoing infection. More importantly, Ibrahim dealt with much more complex
questions regarding the nature of ongoing seizures, whether those seizures could be treated or
controlled, and if so, what type of treatment would be effective to accomplish that task—a much
more arcane topic than the typically less complex question whether an infection may be treated
with appropriate antibiotics. See, e.g., Mendez-Martinez, 2016 WL 1613422, at *6 (the level of
detail required in an expert report will depend, in part, on the complexity of the case, with more
complex cases requiring more detail).
Numerous courts have found expert reports to be adequate when the report merely states
that a physician’s failure to treat a patient suffering from an otherwise treatable infection with
antibiotics was a substantial cause of the patient’s injuries, without imposing any requirement that
the report specify the exact type of antibiotic therapy the treating physician should have used.
See, e.g., Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (report was
adequate where it referred only to the need to treat the patient’s illness with “antibiotics”); Nexion
Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 796 (Tex.App. – Dallas 2009, no pet.) (expert
report was adequate where it simply indicated that patient’s condition was treatable with proper
antibiotics); Romero v. Lieberman, 232 S.W.3d 385, 391 (Tex.App. – Dallas 2007, no pet.) (expert
report was adequate where it stated that the patient should have been given antibiotic treatment for
his infection); Spitzer v. Berry, 247 S.W.3d 747, 752 (Tex.App. – Tyler 2008, pet. denied) (expert
report was adequate where it stated that the defendant doctor was required to “maintain antibiotic
therapy” in a post-surgical patient); see also Lakshmikanth v. Leal, No. 13-08-00389-CV, 2009
16
WL 140741, at *3 (Tex.App. – Corpus Christi Jan. 22, 2009, pet. denied) (mem. op.) (expressly
rejecting the doctor’s argument that expert report was required to identify the type of antibiotics
that should have been prescribed to prevent infection).
There may be unique or unusual situations in which it would be necessary for an expert
report to identify the type of antibiotic that would have been effective to treat a certain type of
infection, such as when the report indicates that the infection is known to be resistant to antibiotics,
or situations in which a report is claiming that an antibiotic could have been expected to work in a
short period of time. However, we do not find that any unique or unusual circumstances are
present here. Dr. Borow’s report was sufficient to put Dr. Harlass on notice of the conduct being
called into question, and to provide the trial court with sufficient information to conclude that
Tiscareno’s claim that Dr. Harlass breached the standard of care by allegedly failing to provide her
with antibiotics at the time of discharge had merit.
Whether the Expert Report Provided an Adequate Opinion on Causation
In his second issue on appeal, Dr. Harlass contends Dr. Borow’s opinion on causation is
inadequate, because it is conclusory and fails to set out a causal connection between Dr. Harlass’s
alleged breach of the standard of care and the alleged injuries to both Tiscareno and A.R.T.
The Adequacy of a Causation Opinion
An expert report must provide information linking the defendant’s purported breach of the
standard of care to the plaintiff's injury. Garcia, 462 S.W.3d at 310 (citing Bowie Memorial
Hospital, 79 S.W.3d at 53). The report may not have an “analytical gap” or a “missing link”
between the expert’s allegation that the physician defendant breached the standard of care and the
plaintiff’s injuries. See Clark v. HCA, Inc., 210 S.W.3d 1, 11 (Tex.App. – El Paso 2005, no pet.).
17
A court may not fill in missing gaps by drawing inferences or guessing what the expert likely
meant or intended, nor may we infer causation. Garcia, 462 S.W.3d at 310 (citing Bowie Mem’l
Hosp., 79 S.W.3d at 52); see also Castillo v. August, 248 S.W.3d 874, 883 (Tex.App. – El Paso
2008, no pet.) (causation cannot be inferred; it must be clearly stated). A “fair summary” of
causation must include an articulable, complete, and plausible explanation of how the alleged
breach led to the damages sustained. See Garcia, 462 S.W.3d at 308.
In medical malpractice cases, “plaintiffs are required to adduce evidence of a ‘reasonable
medical probability’ or ‘reasonable probability’ that their injuries were caused by the negligence
of one or more defendants, meaning simply that it is ‘more likely than not’ that the ultimate harm
or condition resulted from such negligence.” Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex.
2010) (citing Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993)).
Statements based on reasonable medical probability, without explanation and without tying the
conclusions to the facts, are not sufficient. Id. at 539. Instead, “the expert must go further and
explain, to a reasonable degree, how and why the breach caused the injury based on the facts
presented.” Id. at 539-40. “While a claimant is not required to conclusively prove her case
through a preliminary expert report, the report may not merely state conclusions about any of the
elements.” Castillo v. August, 248 S.W.3d 874, 883 (Tex.App. – El Paso 2008, no pet.) (report
was inadequate where one-sentence statement on causation only generally alleged that the
physician’s actions were the cause of the patient’s subsequent condition).
We analyze separately the questions whether Dr. Borow’s causation opinions were
adequate to support the claims concerning A.R.T. and the claims concerning Tiscareno.
Causation Analysis: A.R.T.
18
Dr. Harlass contends Dr. Borow’s report is inadequate in several respects with regard to the
causation of A.R.T.’s injuries. We agree. Dr. Borow’s causation opinion concerning how Dr.
Harlass’s breach resulted in injury to A.R.T. is conclusory and does not adequately link his
conclusions to the facts.
Dr. Borow’s causation opinion as to A.R.T. is premised on the conclusion that A.R.T.
suffered brain damage from being exposed to chorioamnionitis in utero before and during
delivery. However, missing from Dr. Borow’s report is any clear statement that Tiscareno was in
fact actually suffering from chorioamnionitis before or during her delivery. As set forth above,
throughout his report, Dr. Borow indicates only that Tiscareno was at “increased risk for
chorioamnionitis,” and he makes no express statement that Tiscareno was ever in fact diagnosed
with chorioamnionitis. There is only one point in his report where Dr. Borow arguably comes
close to making an assertion that Tiscareno did in fact have chorioamnionitis, when he states there
was “evidence” of chorioamnionitis in Tiscareno’s membranes at the time they ruptured.
However, as set forth above, Dr. Borrow never explains how he made the determination that
chorioamnionitis was “present.” We therefore conclude the trial court not reply on this statement
in concluding that Tiscareno did in fact suffer from chorioamnionitis before or during the
C-section.6
Further, while the report indicates Tiscareno was later diagnosed with a postpartum
infection, Dr. Borow does not indicate how this postpartum infection was related to the alleged
existence of chorioamnionitis before or at the time the C-section was performed. Without any
6
At one point in his report, Dr. Borow states that on or before August 8, 2012, Dr. Harlass failed to recognize that
Tiscareno was at an “increased risk for post-partum infection due to chorioamnionitis.” While this statement could
possibly suggest Dr. Borow believed that Tiscareno suffered from chorioamnionitis, he failed to make any express
statement to that effect in his report.
19
express statement that Tiscareno was in fact suffering from chorioamnionitis at the time of her
delivery, in order to conclude that A.R.T. was injured due to exposure to chorioamnionitis in utero,
the trial court would have had to make an impermissible inference that Tiscareno was in fact
suffering from chorioamnionitis at the time of her delivery.
Moreover, even if we were to assume that A.R.T. was in fact exposed to chorioamnionitis
before or during delivery, Dr. Borow’s causation opinion suffers from some of the same
deficiencies as his opinion regarding the breach of the standard of care. In particular, Dr.
Borow’s report makes various general statements regarding how, in theory, exposure to
chorioamnionitis may affect an unborn infant. For example, Dr. Borow states in general terms
that “[c]horioamnionitis is associated with maternal infection, fetal white matter brain injury and
cerebral palsy,” and that “[t]he longer the baby and the mother were exposed to infection the
greater the harm, including infant white matter brain injury and maternal postpartum infection.”
Dr. Borow makes virtually no attempt, however, to correlate these statements with the facts in this
case, and his general theoretical statements regarding the association between exposure to
chorioamnionitis raise more questions than they answer.
While there is no requirement that an expert report describe all biological process involved
in the onset of the injury, the expert must at a minimum explain the connection between doctor’s
conduct and the injury to the patient. See Jelinek, 328 S.W.3d at 540; Palacios, 46 S.W.3d at 879;
Bowie, 79 S.W.3d at 53. Unlike the simple question whether a patient suffering from an infection
should be given antibiotics, the question of how exposure to chorioamnionitis in utero affects an
infant is a more complicated question, which requires more medical explanation before a
connection may be made between Dr. Harlass’s alleged delay in performing the C-section and
20
A.R.T.’s alleged brain injuries.
This problem, in large part, harkens back to Dr. Borow’s failure to provide any timeline
from which the trial court could have determined how long Dr. Harlass actually delayed in
performing the C-section. This missing information is critical to the question of causation,
because it is virtually impossible to know whether exposure to chorioamnionitis during this
unknown period of delay could have in fact caused A.R.T.’s brain injuries. Similarly missing
from Dr. Borow’s report is any indication of how long an unborn baby would have to be exposed
to chorioamnionitis before brain damage would likely occur. The report provides no insight into
the rate at which a brain injury may develop, i.e., whether the process takes weeks, days, hours, or
minutes, and more importantly whether the time period of the alleged delay was long enough to be
significant in this process. In order to conclude that the delay contributed to A.R.T.’s brain
injury, the trial court would have had to make an impermissible inference that the delay in
performing the C-section could have contributed to A.R.T.’s brain injury, without having any
information regarding how long the delay was or how long it takes for a baby to develop a brain
injury under these circumstances. The trial court would have been required to speculate that the
process of developing a brain injury can occur rather quickly, or alternatively that the delay in
performing the C-section was long enough for that process to occur. The trial court was not
permitted to engage in any such conjecture; instead, the expert report itself was required to furnish
that link. See Bowie Mem’l Hosp., 79 S.W.3d at 53 (the expert report must contain sufficient facts
explaining the expert’s conclusions and must show causation beyond mere conjecture); Jones v.
King, 255 S.W.3d 156, 160 (Tex.App. – San Antonio 2008, pet. denied) (court was not entitled to
infer that an alleged delay in diagnosis caused the patient additional pain and suffering, as it was
21
“not permitted to rely on such speculation in determining the adequacy of the report”); see also
Garcia, 462 S.W.3d at 310 (chronicling various cases in which a link in the chain of causation was
completely missing).
We conclude Dr. Borow’s opinion on causation as to A.R.T.’s injuries is too conclusory to
meet the requirements of the TMLA See, e.g., Jelinek, 328 S.W.3d at 539–40 (expert’s
conclusion that a hospital’s failure to provide antibiotics to a patient within a reasonable medical
probability caused increased pain and suffering and a prolonged hospital stay was inadequate
where it “offer[ed] no more than a bare assertion” that the hospital’s failure resulted in those
injuries); Ngo v. Lewis, No. 09-10-00140-CV, 2010 WL 3518225, at *2 (Tex.App. – Beaumont
Sept. 9, 2010, no pet.) (expert report was inadequate where it made a conclusory statement that an
approximate two-hour delay in providing a newborn infant who had been exposed to streptococcus
bacteria during labor was the proximate cause of the infant’s death over a week later without
providing adequate explanation of how the alleged delay in the infant’s treatment was a substantial
factor that caused his death or otherwise lowered his chances of survival); Jones v. King, 255
S.W.3d 156, 160 (Tex.App. – San Antonio 2008, pet. denied) (expert report on causation was
inadequate where it offered no medical explanation regarding whether earlier treatment would
have been effective in shortening the duration of the patient’s meningitis, precluding additional
pain and suffering, or preventing other alleged injuries and damages).
Causation Opinion: Tiscareno
As determined above, Dr. Borow’s expert report provides a basis for supporting only one
of Tiscareno’s theories of liability, i.e., Dr. Harlass failed to prescribe antibiotic therapy to
Tiscareno at the time of her discharge from the hospital on August 8. Therefore, we will analyze
22
whether Dr. Borow’s report provides an adequate causation opinion with regard to that particular
theory of liability.
In his expert report, Dr. Borow expressly stated that before Tiscareno’s discharge from the
hospital, she exhibited signs and symptoms of postpartum infection, including fever, tachycardia,
and leukocytosis, which required antibiotic therapy, but that “no treatment for postpartum
infection was provided.” On the issue of causation, Dr. Borow further opined that:
Dr. Harlass’ failure to prescribe appropriate treatment for postpartum infection
resulted in progressive ongoing infection and increased morbidity, requiring
additional treatment. This breach of the standard of care was a substantial cause of
harm to Mrs. Tiscareno. Had Dr. Harlass complied with this standard of care,
appropriate antibiotic therapy would have prevented the ongoing progressive
infection requiring additional treatment.
Dr. Harlass contends that Dr. Borow’s causation opinion was vague and conclusory
because in order to find a causal link, the trial court would have been required to infer that
Tiscareno “probably had a post-partum infection on August 8, 2012” at the time of her discharge,
and that her postpartum infection required “additional or different treatment than what she
received[.]” We conclude no such inference was required.
The report in this instance clearly identifies Tiscareno’s condition (a postpartum infection),
the signs and symptoms that Tiscareno displayed that should have alerted Dr. Harlass that she was
suffering from this condition (fever, tachycardia, and leukocytosis), and the treatment that Dr.
Harlass could have initiated to prevent the “ongoing progressive infection requiring additional
treatment.” As explained above, numerous courts have found the expert report to be adequate
based on similar statements that a patient was suffering from a diagnosable infection for which
antibiotic therapy would have been effective. See, e.g., Van Ness, 461 S.W.3d at 144; Nexion
Health at Terrell Manor, 294 S.W.3d at 796; Romero, 232 S.W.3d at 391; Spitzer, 247 S.W.3d at
23
752. We similarly conclude that Dr. Borow’s report sufficiently complied with the requirements
of the TMLA.
Dr. Harlass also criticizes Dr. Borow’s report for failing to describe in detail the
“additional treatment” that Tiscareno received as the result of her ongoing infection. Dr. Harlass
provides no authority for his proposition that an expert report must provide a detailed description
of the type of treatment a patient may have received as the result of her injuries, and we know of
none. Further, we note that although his report is not a model of clarity, Dr. Borow did make a
good faith effort to explain the nature of the injuries suffered by Tiscareno. In particular, Dr.
Borow states that Dr. Harlass’s failure to properly diagnose and treat Tiscareno with appropriate
antibiotic therapy at the time of her discharge led to an “ongoing” infection, which ultimately
resulted in Tiscareno’s surgical wound rupturing six days later, and which required her admission
to the hospital, as well as a consultation with an infectious disease specialist. This was sufficient
to provide Dr. Harlass with fair notice of the general nature of the injuries Plaintiffs believed
resulted from his allegedly negligent acts. See Palacios, 46 S.W.3d at 879 (expert report need not
be formal and its information need not meet the evidentiary requirements of a summary judgment
proceeding or at trial); see also Spitzer, 247 S.W.3d at 750 (a “fair summary” in an expert report is
“something less than a full statement” of the applicable standard of care, how it was breached, and
how that breach caused the injury”).
At this early stage in the proceedings, a plaintiff “need not drill down into every possible
detail in every case in order to survive dismissal[.]” Mendez-Martinez, 2016 WL 1613422, at *6.
Remand for Opportunity to Amend
With regard to the claims concerning Tiscareno’s injuries, we find that the expert report
24
was adequate to support Plaintiffs’ theory that Dr. Harlass’s conduct fell below the standard of
care by failing to properly diagnose and treat Tiscareno’s postpartum infection at the time of her
discharge from the hospital on August 8. Because the plaintiff in a healthcare liability suit need
only provide an adequate expert report on one theory of liability, we therefore conclude that the
trial court did not abuse its discretion in denying Dr. Harlass’s motion to dismiss concerning
Tiscareno’s claims. See Certified EMS, Inc., 392 S.W.3d at 632 (an expert report that adequately
addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial
court must not dismiss in such a case); Bernal, 482 S.W.3d at 171 (while a claimant must timely
file an adequate expert report as to each defendant in a health care liability claim, the TMLA does
not require an expert report as to each liability theory alleged against that defendant).
With regard to the claims concerning A.R.T.’s injuries, we conclude the trial court abused
its discretion in denying the motion to dismiss. However, because Plaintiffs have not been given
an opportunity to cure any deficiencies in Dr. Borow’s report, and because their report is not so
deficient as to constitute no report at all, we remand for the trial court to consider granting a
thirty-day extension to allow Plaintiffs to attempt to cure the deficiencies in the report with regard
to those claims.7 See Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 407-08 (Tex.App. – El
Paso 2011, no pet.) (upon finding that trial court abused its discretion in denying the defendant
doctor’s motion to dismiss, proper course of action was to remand the case to the trial court for
consideration of whether the deficiencies could be cured, and therefore, whether to grant an
extension of time) (citing Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)); see also Lewis
v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (stating that a deficient report may be cured by
7
When a timely-filed expert report is deficient, the trial court may grant one thirty-day extension to cure the
deficiencies, unless it is objectively shown that the report was not filed in good faith, at which point, dismissal is
required. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
25
amending the report or by serving a new report from a separate expert that cures the deficiencies in
the previously filed report). In doing so, we note that the trial court “should be lenient in granting
thirty-day extensions and must do so if deficiencies in an expert report can be cured within the
thirty-day period.” Bernal, 482 S.W.3d at 176 (citing Scoresby, 346 S.W.3d at 554).
CONCLUSION
We affirm in part the trial court’s order denying the motion to dismiss with regard to the
claims concerning Tiscareno’s injuries, and reverse in part the trial court’s order denying the
motion to dismiss with regard to the claims concerning A.R.T.’s injuries and remand for further
proceedings in accordance with our opinion.
STEVEN L. HUGHES, Justice
August 17, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
26