Ramarao Denduluri, M.D. and Houston Urology Parters v. Maria Nancy Bravo, Individually and as Representaive of the Estate of Jose Antonio Quintero A/K/A Hector Rodriguez ( 2023 )

Opinion issued June 15, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00230-CV
———————————
RAMARAO DENDULURI, M.D. AND HOUSTON UROLOGY PARTNERS,
Appellants
V.
MARIA NANCY BRAVO, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF JOSE ANTONIO QUINTERO A/K/A HECTOR
RODRIGUEZ, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2021-36624
MEMORANDUM OPINION
Appellee Maria Nancy Bravo, individually and as representative of the estate
of Jose Antonio Quintero, her deceased husband, asserts health care liability claims
against appellants Ramarao Denduluri, M.D. and Houston Urology Partners under
Chapter 74 of the Civil Practices and Remedies Code. Appellee alleges that
appellants failed to properly diagnose, treat, or refer Quintero for cancer treatment
and that he died because of the treatment delay. Appellants contend the trial court
erred by denying their motion to dismiss because appellee’s statutorily required
expert report was deficient. Because the report was not deficient, we affirm the trial
court’s ruling.
Background
In May 2019, Quintero went to West Calcasieu Hospital in Louisiana for
scrotal pain. Tests showed a right hydrocele (swelling of the testicle due to fluid
accumulation) and abnormalities of the right testicle and right spermatic cord of
uncertain cause. Scans also showed that both of Quintero’s lungs had pulmonary
nodules of unknown origin.
A month later, Quintero saw urologist Ramarao Denduluri. Dr. Denduluri’s
records note the history of the ultrasound and CT scans and the finding of a right
hydrocele. On June 19, Dr. Denduluri operated to remove the hydrocele. On June
24, Quintero developed a hematoma that Dr. Denduluri managed with antibiotics
and pain medications. Dr. Dendurluri continued to provide wound care in June, July,
and August 2019.
Dr. Denduluri obtained a scrotal ultrasound on September 3, 2019. The
ultrasound report described abnormal masses in both of Quintero’s testicles. On
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September 26, Dr. Denduluri recommended surgical evacuation of the right testicle
hematoma with a possible removal of the testicle. The hematoma and testicle
removals were done on October 1. The pathology report on the testicle described a
mixed germ cell tumor that was 35% embryonal carcinoma with components of yolk
sac tumor and choriocarcinoma. Lymphovascular invasion was present, meaning the
cancer had invaded the blood vessels and lymphatic system or both. The
combination of embryonal cancer and lymphovascular invasion were signs of an
aggressive testicular cancer at high risk for metastasis.
By mid-November 2019, Quintero had already had three rounds of
chemotherapy. In late November, he had surgery to remove his right spermatic cord
and a mass on his pubic bone. Dr. Denduluri noted that a recent CT scan after the
chemotherapy treatments had shown reduction in the size of the pulmonary and
retroperitoneal lymph nodes. Quintero died in August 2020, allegedly from
metastatic testicular cancer.
Appellee sued Dr. Denduluri and his practice, Houston Urology Partners,
alleging professional negligence in failing to properly treat, test, and diagnose
Quintero, ultimately leading to his death. Because the allegations against appellants
are health care liability claims, appellee had to provide a proper expert report. TEX.
CIV. PRAC. & REM. CODE §74.351(a). Appellee filed an initial report from urologist
Douglas Dow, M.D.
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Appellants objected to the sufficiency of Dr. Dow’s report, arguing that:
(1) his causation opinions were conclusory, based on speculation and assumptions
without a factual basis, (2) nothing in his report or curriculum vitae showed his
qualification to opine on whether an earlier diagnosis of Quintero’s cancer would
have probably changed the treatment or outcome of the cancer; and (3) the report
provided no basis for the trial court to find appellee’s claims meritorious. See id.
The trial court granted appellee a 30-day extension under Section 74.351(c) to
supplement the report with additional details and support for Dr. Dow’s opinions.
After appellee filed Dr. Dow’s supplemental report, appellants filed a second
motion to dismiss. They argued that the report was still insufficient because Dr. Dow
had not provided any factual basis or explanation for his causation opinions, which,
in appellants’ view, assumed that the testicular cancer that had metastasized to
Quintero’s lungs in May 2019 was at a lower stage and more easily treatable in June
than in October. Appellants also objected to the lack of any information in the
supplemental report showing that Dr. Dow was qualified to determine the stage of
the cancer in June 2019, or whether a diagnosis then would have resulted in different
and more successful treatment. The trial court denied the motion to dismiss.
Standard of Review
We review a trial court’s denial of a Chapter 74 motion to dismiss for an abuse
of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
4
875 (Tex. 2001). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or principles. Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial court has
no discretion to determine the law or apply the law to the facts incorrectly. Walker
v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In determining whether a trial court
abused its discretion, we may not substitute our own judgment for the trial court’s
judgment. Wright, 79 S.W.3d at 52.
Applicable Law
A trial court must grant a defendant’s motion to dismiss a health care liability
suit with prejudice unless the plaintiff serves a timely expert report within 120 days
of filing the original petition. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (b).
The report must represent a good faith effort to comply with the statutory
requirements for an expert report. See id. § 74.351(l).
An expert report is defined as a written report by an expert that provides a fair
summary of the expert’s opinions about (1) the applicable standard of care; (2) the
way the care provided failed to meet that standard; and (3) the causal relationship
between that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6);
see also Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. An expert report is a
low threshold that a person bringing a claim against a health care provider must cross
merely to show that her claim is not frivolous. See Loaisiga v. Cerda, 379 S.W.3d
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248, 264 (Tex. 2012) (Hecht, J., concurring). The report need not contain all the
plaintiff’s proof, but it must include the expert’s opinion on each element identified
in the statute. See Palacios, 46 S.W.3d at 878; Kelly v. Rendon, 255 S.W.3d 665,
672 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The plaintiff need not present
evidence in the report as if she was litigating the merits at this preliminary stage of
the lawsuit. Palacios, 46 S.W.3d at 879. Instead, the report must provide only
enough information to: (1) inform the defendant of the specific conduct the plaintiff
has questioned; and (2) provide a basis for the trial court to conclude that the claims
have merit. Id.
Expert Report
Appellants contend the denial of their motion to dismiss was an abuse of
discretion because the trial court misapplied the facts in the expert reports and
incorrectly found that Dr. Dow was qualified to be an expert and that the reports
were sufficient.
A. Causation and Sufficiency
Appellants argue that Dr. Dow’s reports do not satisfy Section 74.351’s
requirements because they contain conclusory statements that fail to explain how
and why a breach of the standard of care caused the injury. Appellee responds that
Dr. Dow’s reports are sufficient because they make a good faith effort to comply
6
with the statute. Because appellants’ first and third issues overlap, we address them
together.
Causation requires that the expert report explain how and why the alleged
breach caused the plaintiff’s injury. Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex.
2010). An expert report is sufficient if it “provides a fair summary of the expert’s
opinions . . . regarding applicable standards of care, the manner in which the care
rendered . . . failed to meet the standards, and the causal relationship between that
failure and the injury.” TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A trial court
only needs to find that the report constitutes a “good faith effort” to comply with the
statutory requirements. Id. § 74.351(l). An expert report shows a “good faith effort”
when it “(1) inform[s] the defendant of the specific conduct called into question and
(2) provid[es] a basis for the trial court to conclude the claims have merit.” Baty v.
Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018). “[A] report that merely states the
expert’s conclusions about the standard of care, breach, and causation,” without
stating the underlying facts on which the inference is based, is insufficient. See
Palacios, 46 S.W.3d at 879; see also Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 224 (Tex. 2018) (“the expert must explain the basis of his statements and link
conclusions to specific facts.”); Quintero v. Hous. Methodist Hosp., No.
01-14-00448-CV, 2015 WL 831955, at *3 (Tex. App.—Houston [1st Dist.] Feb. 26,
7
205, pet. denied) (mem. op.). We consider both of Dr. Dow’s reports to determine
whether they represent a good faith effort to comply with these requirements.
In articulating the standard of care and breach, “an expert report must set forth
specific information about what the defendant should have done differently”; that is,
“what care was expected, but not given.” Abshire, 563 S.W.3d at 226 (internal
quotations omitted). Dr. Dow’s reports address the standard of care by remarking
that Dr. Denduluri made no notes of Quintero’s scrotal ultrasound or CT scan reports
and stating that the failure to assess the abnormal findings from these diagnostics
breached the standard of care. Dr. Dow highlights that Dr. Denduluri’s notes lacked
orders, comments, or review of Quintero’s continued complaints involving his
testicle and the testicular mass. Dr. Dow explains that this delay to properly review
and consider the diagnostic testing, combined with the failure to order additional
testing, delayed Quintero’s cancer diagnosis and treatment.
According to the reports, the standard of care required review of the diagnostic
testing, which revealed an abnormally appearing testicle and spermatic chord, and
further investigation, including a scrotal physical exam and additional imaging of
the scrotal area. See Abshire, 563 S.W.3d at 224 (the court’s role at this stage is not
to determine the report’s credibility); see also Miller v. JSC Lake Highlands
Operations, 536 S.W.3d 510, 515 (Tex. 2017) (per curiam) (at “this preliminary
stage, whether those standards appear reasonable is not relevant to the analysis of
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whether the expert’s opinion constitutes a good-faith effort.”). Dr. Dow observes
that Dr. Denduluri made few to no notes about Quintero’s initial testing in Louisiana.
No notes indicate that when Quintero underwent the testicular surgery recommended
by Dr. Denduluri, Dr. Denduluri evaluated the abnormal testicle or spermatic chord
while he was already removing the right hydrocele located inside the sac surrounding
the testicle. Quintero saw Dr. Denduluri five times after the surgery before additional
ultrasound imaging was ordered, revealing the testicular mass. Dr. Denduluri did not
mention the testicular mass when reviewing the ultrasound report, nor did he order
testing of the mass. Thus, the reports identify specific actions that should have been
taken but were not. See Palacios, 46 S.W.3d at 880.
The reports also discuss how the testing done in May 2019 did not note a
change in Quintero’s retroperitoneal lymph nodes, which are commonly affected by
testicular cancer. In September 2019, Quintero underwent surgery to remove his
right testicle. Testing revealed that there was lymphovascular invasion—a sign of a
more aggressive cancer. In November 2019, Dr. Denduluri noted that the
retroperitoneal lymph nodes had changed in size, reflecting a change in the stage of
Quintero’s cancer. The reports then connect how early diagnosis of testicular cancer
can result in a better chance of survival, and that once the cancer expands over the
local lymph nodes, a patient’s survival rate decreases significantly.
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Considering these aspects of the Dr. Dow’s reports, we conclude the reports
inform appellants of the specific conduct that appellee has called into question, the
standards of care that should have been followed, and what appellants should have
done. See Abshire, 563 S.W.3d at 225–26 (report adequately links conclusion with
underlying facts by asserting that failing to properly assess medical history and
physical conditions led to a delay in diagnosis, proper treatment, and to the alleged
injury); Harris Cnty. Hosp. Dist. v. Garrett, 232 S.W.3d 170, 179 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). Although the reports do not identify specific
testing that should have been done or notes that should have been made, such detail
“is simply not required at this stage of the proceedings.” Baty, 543 S.W.3d at 697.
For health care liability claims based on the progression of undiagnosed and
untreated cancer, an expert report must contain information about (1) the effect of
cancer development over time on the patient’s prognosis and (2) the potential
effectiveness of treatments for the patient’s type of cancer. Kapoor v. Estate of
Klovenski, No. 14-11-00118-CV, 2012 WL 8017139, at *7 (Tex. App.—Houston
[14th Dist.] Feb. 16, 2012, no pet.) (mem. op.) (Kapoor II); see also Garrett, 232
S.W.3d at 179–81. The report must explain how and why the physician’s breach of
the standard of care proximately caused the plaintiff’s injury. Columbia Valley
Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).
10
Causation consists of two components: (1) cause-in-fact and
(2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A physician’s
breach was a cause-in-fact of the plaintiff’s injury if the breach was a substantial
factor in bringing about the harm, and without the breach the harm would not have
occurred. Id. Even if the harm would not have occurred without the physician’s
breach, “the connection between the defendant and the plaintiff's injuries simply may
be too attenuated” for the breach to qualify as a substantial factor. Allways Auto Grp.,
Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (internal quotations omitted). A
breach is not a substantial factor if it “does no more than furnish the condition that
makes the plaintiff’s injury possible.” Id. A physician’s breach is a foreseeable cause
of the plaintiff’s injury if a physician of ordinary intelligence would have anticipated
the danger caused by the negligent act or omission. Puppala v. Perry, 564 S.W.3d
190, 197 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Dr. Dow opines in his reports that Dr. Denduluri’s breach of the standard of
care allowed Quintero’s cancer to advance. See Abshire, 563 S.W.3d at 224–25
(expert report showed causal link between failure to properly assess medical history
and physical conditions, delay in diagnosis and proper treatment, and alleged injury);
see also Garrett, 232 S.W.3d at 181. Dr. Dow notes that Quintero continued to
complain to Dr. Denduluri, but Dr. Denduluri did not order further testing or
properly investigate the complaints as required by the standard of care. Dr. Dow
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states that testicular cancer doubles between 10 and 30 days and that lymph node
spread is an indicator of Stage III cancer with an “extremely” decreased survival
rate. Dr. Dow notes how further investigation into Quintero’s condition, at an earlier
time, is imperative with the type of testicular cancer Quintero had. He highlights that
testicular cancer tends to have a 95 to 96 percent survival rate before spreading to
the lymph nodes. And he explains that the failure to timely investigate and diagnosis
Quintero’s condition led to a failure to refer him to a specialized doctor, such as an
oncologist or pulmonologist, which led to a delay in the use of multimodal treatment
(therapy combining more than one method of treatment such as, surgery,
radiotherapy, and chemotherapy) at an earlier stage. Dr. Dow does not opine that
Quintero would have no risk of death from the cancer in the absence of Dr.
Denduluri’s breaches of the standard of care, only that the failure to meet the
standard of care increased that risk because the cancer progressed to Stage III. Cf.
Wright, 79 S.W.3d at 53 (reasoning that expert report was conclusory when it stated
that plaintiff might have had “the possibility of a better outcome” without explaining
how defendant’s conduct injured plaintiff).
Dr. Dow’s reports are like the expert report in Abshire. 563 S.W.3d at 221.
There, the patient complained of back and chest pain that ultimately resulted in the
patient becoming paraplegic. Id. at 221–22. The medical staff failed to (1) note that
the patient suffered from brittle bone disease, which was relevant medical
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information; (2) properly assess the patient based on her medical history, ignoring
her medical condition and complaints; and (3) order the proper imaging tests, such
as a CT or MRI, to investigate her complaints. Id. at 221–23. The report concluded
that the standard of care was breached by failing to properly assess medical history
and physical conditions leading to a delay in diagnosis and proper treatment that
resulted in the patient’s alleged injury. Id. at 224–25.
Miller is also analogous. 536 S.W.3d at 515. In that case, the patient
swallowed her dental bridge and died shortly after it was removed. Id. at 512.
Although x-rays showed the bridge’s presence in the patient’s trachea when she
began showing signs of chest congestion, the reviewing physician failed to notice or
identify the problem. Id. The expert reports concluded that the physician breached
the standard of care by failing to detect the dental bridge in the x-rays and that the
delay in removing the bridge caused a series of pulmonary issues resulting in the
patient’s death. Id. at 514. Both Abshire and Miller held that their respective reports
sufficiently addressed how the breach of the standard of care resulted in an injury to
the patient. Abshire, 563 S.W.3d at 227; Miller, 536 S.W.3d at 515.
We must remain mindful that expert-report challenges are made at an early,
pre-discovery stage in the litigation, not when the merits of the health care liability
claim are being presented to the fact finder to determine liability. Puppala, 564
S.W.3d at 198. To provide more than a conclusory statement on causation, an expert
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report must include an “explanation tying the conclusion to the facts” and showing
“how and why the breach caused the injury based on the facts presented.” Jelinek,
328 S.W.3d at 539–40; Abshire, 563 S.W.3d at 226 (“the court’s role is to determine
whether the expert has explained how the negligent conduct caused the injury.”).
The expert report need only provide some basis that the physician’s act or omission
proximately caused injury. Owens v. Handyside, 478 S.W.3d 172, 187–88 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied). Dr. Dow’s reports assert that if further
investigation, testing, and diagnosis had been done earlier, Quintero’s cancer
treatment would have begun before his cancer advanced to Stage III, involved more
specialists, and used multimodal treatment at an earlier time to increase the chance
for success. An expert may show causation by explaining a chain of events that
begins with the defendant physician’s negligence and ends in injury to the plaintiff.
See Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *16 (Tex.
App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); Owens, 478 S.W.3d
at 189. Like Abshire and Miller, Dr. Dow has laid out a timeline of events of when
Quintero was under Dr. Denduluri’s care and how the breach of the standard of care
resulted in Quintero’s injury. The reports accordingly inform appellants of the
specific conduct that appellee has questioned and provide a basis for the trial court
to conclude that the claims have merit. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(r)(6); Palacios, 46 S.W.3d at 879–880.
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Because the reports sufficiently identify the applicable standard of care and
link Dr. Denduluri’s alleged breaches with Quintero’s injury, we overrule
appellants’ claims that the expert reports were conclusory and insufficient.
B. Dr. Dow’s Qualifications
Appellants argue that Dr. Dow is not qualified because his reports do not show
any experience or training in treating testicular cancer, determining the stages of
testicular cancer, or determining whether an earlier diagnosis would have probably
changed the patient’s treatment and outcome. Appellee responds that while Dr. Dow
is not an oncologist, his experience as a urologist, like Dr. Denduluri, makes him
qualified here.
An expert must establish that she is qualified to provide a report addressing
accepted standards of care, causation, or both. See TEX. CIV. PRAC. & REM. CODE
§ 74.351(r)(5)(A), (C). Qualifications must appear in the expert report and cannot be
inferred. See Olveda v. Sepulveda, 141 S.W.3d 679, 683 (Tex. App.—San Antonio
2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App.—Dallas 2003,
pet. denied). Accordingly, analysis of an expert’s qualifications under Section
74.351 is limited to the four corners of the expert’s report and curriculum vitae.
Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—
Houston [14th Dist.] 2007, no pet.) (citing Palacios, 46 S.W.3d at 878).
15
To qualify as an expert who can provide opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged departure
from the applicable standard of care in a health care liability case, the expert must
be (1) a physician and (2) “otherwise qualified to render opinions on that causal
relationship under the Texas Rules of Evidence.” See TEX. CIV. PRAC. & REM. CODE
§§ 74.351(r)(5)(C), 74.403(a); Thomas v. Alford, 230 S.W.3d 853, 857 (Tex. App.—
Houston [14th Dist.] 2007, no pet.).
When a physician’s failure to diagnose is alleged to have harmed a patient, an
expert testifying on causation must be qualified to opine on the effect of a timely
diagnosis and treatment on the outcome. See Broders v. Heise, 924 S.W.2d 148, 153
(Tex. 1996) (emergency physician was qualified to testify at trial that the standard
of care required diagnosis of head injury and referral of patient for neurological
treatment, but not as to potential effectiveness of proposed treatments for the
undiagnosed neurological condition); Thomas, 230 S.W.3d at 859–60 (radiologist
was not qualified to offer expert opinion addressing whether delayed cancer
diagnosis affected patient’s prognosis); cf. Mosely v. Mundine, 249 S.W.3d 775,
779–80 (Tex. App.—Dallas 2008, no pet.) (emergency room physician was
qualified to opine because proffered expert opinion “related to the ability of an
emergency room physician to interpret a routine chest x-ray . . . not the diagnosis
and treatment for cancer”). Under the Texas Rules of Evidence, an expert witness
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may be qualified based on knowledge, skill, experience, training, or education to
testify on scientific, technical, or other specialized subjects if the testimony would
“assist the trier of fact” in understanding the evidence or determining a fact issue.
TEX. R. EVID. 702; see also Burrell, 230 S.W.3d at 762. Thus, a plaintiff must show
that the expert has “knowledge, skill, experience, training, or education” about the
specific issue before the court that would qualify the expert to give an opinion on
that subject. Kuhn v. Sam, No. 01-20-00260-CV, 2021 WL 3359171, at *16 (Tex.
App.—Houston [1st Dist.] Aug. 3, 2021, no pet.) (mem. op.) (citing Broders, 924
S.W.2d at 153)).
Not every physician is qualified to testify on every medical question. See
Broders, 924 S.W.2d at 152–53. But a physician need not practice in the particular
medical field about which they are testifying if they can show that they have
knowledge, skill, experience, training, or education about the specific issue before
the court that would qualify them to give an opinion on that subject. Cornejo v.
Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
Appellants argue that because this case involves the field of oncology, and
nothing in Dr. Dow’s reports indicate that he is board certified in oncology or has
knowledge or experience in determining the stages of testicular cancer, treating
testicular cancer, or determining whether an earlier diagnosis would have changed a
patient’s treatment and prognosis, he is not qualified to submit an expert report.
17
Appellants note that while Dr. Dow mentions in his supplemental report that during
his residency in the 1990s he spent one year treating patients with urologic cancers
and has treated 20 patients with testicular cancer, this does not indicate that he has
treated patients for cancer.
Appellants compare this case to Kapoor v. Estate of Klovenski, where the
appellate court found that the expert, a physician specializing in family and
emergency medicine, had identified no experience or credentials to qualify her to
testify on treatments that would have been available if the patient’s cancer was
diagnosed earlier; and, whether earlier treatment would have resulted in a more
favorable prognosis. No. 14-09-00963-CV, 2010 WL 3721866, at *2–3 (Tex.
App.—Houston [14th Dist.] Sep. 23, 2010, no pet.) (mem. op.) (Kapoor I).
Appellee argues that Gunderson v. Wade is more instructive. See No.
14-20-00795-CV, 2022 WL 456720 (Tex. App.—Houston [14th Dist.] Feb. 15,
2022, no pet.) (mem. op.). In Gunderson, the plaintiff’s expert was an
ophthalmologist who opined on the causal link between an alleged failure to perform
certain eye examinations and the delayed discovery of the patient’s cancer diagnosis
of ganglioglioma. Id. at *3. The Gunderson court held that based on the expert’s
“education and experience in the field of ophthalmology, the trial court reasonably
could have determined that he was qualified to opine on the specific issue before the
court. Id. at *6.
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There is not a precise formula for qualifying a doctor as a medical expert, so
we begin with a review of Dr. Dow’s curriculum vitae. See, e.g., Benge v. Williams,
548 S.W.3d 466, 471 (Tex. 2018). Dr. Dow is a urologic surgeon who graduated
from the University of Texas Medical Branch and completed his residency at the
University of South Florida Moffitt Cancer Center. He is a Diplomate of the
American Board of Urology and a Fellow of the American College of Surgery who
has been practicing for over 20 years. He is currently a urologist with the Memorial
Hermann Medical Group Urology Associates.
Further describing his qualifications in his supplemental expert report, Dr.
Dow states:
Included in my residency was spending one year at The H. Lee Moffitt
Cancer Center in Tampa, Florida, the only National Cancer
Institute-designated Comprehensive Cancer Center in Florida[.] During
my time at Moffitt, I spent the great majority of my time evaluating and
treating (both surgically and medically) exclusively urologic oncology
patients. I was involved in the care of hundreds of urologic oncology
patients while at Moffitt many of whom had testicular cancer.
Additionally, I have treated more than 20 patients with testicular cancer
in my practice and have performed over 2000 surgeries of the scrotum
and its contents. . . .
The standard of care for a Urologist requires that the physician gather
an appropriate history, perform a thorough of examination of the
patient’s genitalia, review the diagnostic studies; the images, reports
and the laboratory studies and order further testing as deemed
appropriate. . . .
The standard of care for a urologist requires that the physician
investigate and diagnose the condition of a patient’s genitals. This
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includes a scrotal physical exam and ordering and reviewing the
appropriate diagnostic tests as needed. . . .
As a Urologist [who] completed a six[-]year residency, four of which
were Urology specific, and . . . as a Urologist in surgical practice since
July 2000, the evaluation of the scrotal mass is extremely common
place, almost daily. A scrotal exam and appropriate interpretation of
studies related to scrotal complaints is of paramount importance to a
practicing urologist.
This supplemental report is more like Kapoor II than Kapoor I. In Kapoor I,
the doctor did not identify any experience or credential to show that she was
qualified to testify about what treatments would have been available for an earlier
cancer diagnosis and whether earlier treatments would have improved the patient’s
prognosis. 2010 WL 3721866, at *3. The amended report in Kapoor II stated that
the doctor had cared for and supervised over 500 patients diagnosed with and treated
for cancer, diagnosed cancer, and reviewed records kept on the diagnosis and
treatment of patients with cancer. 2012 WL 8017139, at *7.
In addition, as in Gunderson, where an ophthalmologist submitted an expert
report on the care and treatment of a patient by another ophthalmologist, Dr. Dow,
a urologist, has submitted expert reports on the care and treatment of a patient by
another urologist. While the expert in Gunderson did not have experience treating
the illness the patient suffered from, he did have experience with the standards of
care applicable to the examinations done by an ophthalmologist and had significant
experience and education in the field. 2022 WL 456720, at *3. Similarly, Dr. Dow
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did not indicate experience in the exact situation Quintero faced, but he did have
experience with the standards of care applicable to the examinations done by a
urologist based on his significant experience and education in the field.
Based on Dr. Dow’s education and experience in the field of urology, the trial
court reasonably could have determined that he was qualified to opine on the specific
issue before the court—the causal link between appellants’ alleged failure to perform
certain scrotal examinations and the delayed discovery of Quintero’s cancer. The
central allegations underlying appellee’s suit relate to whether a urologist departed
from the standards of care applicable to scrotal examinations and a subsequent
scrotal surgery; the record shows that Dr. Dow has significant education and
experience in both areas.
Appellants challenge Dr. Dow’s lack of training, education, or experience in
determining the stages of testicular cancer, treating testicular cancer, or determining
whether an earlier diagnosis would have changed a patient’s treatment and
prognosis. But similar arguments challenging an expert’s qualifications related to
the specific condition stemming from the alleged negligence have been rejected. See,
e.g., Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *10–12
(Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); Mosely, 249
S.W.3d at 779–80.
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Therefore, the trial court did not abuse its discretion in concluding that Dr.
Dow is qualified to opine on the causal relationship between the alleged negligence
and Quintero’s subsequent injuries and harm. See TEX. R. EVID. 702; Burrell, 230
S.W.3d at 762. We overrule appellants’ challenge to Dr. Dow’s qualifications.
Conclusion
We affirm the trial court’s order.
Sarah Beth Landau
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
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