Steward Medical Group D/B/A Permian Premier Health Services and John Lee v. Michelle Armstrong, Individually and as Representative of the Estate of Bobby Fosha, and Peggy Fosha

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00243-CV
__________________
STEWARD MEDICAL GROUP D/B/A PERMIAN PREMIER HEALTH
SERVICES AND JOHN LEE, Appellants
V.
MICHELLE ARMSTRONG, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF BOBBY FOSHA,
AND PEGGY FOSHA, Appellees
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-205,748
__________________________________________________________________
MEMORANDUM OPINION
The Texas Medical Liability Act requires trial courts to dismiss lawsuits
alleging a healthcare liability claim unless the plaintiffs, shortly after they file the
suit, serve the defendants with a report that is “an objective good faith effort to
comply” with the expert-report requirements in Chapter 74 of the Act. 1 In this
1
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l).
1
interlocutory appeal, we must decide whether the trial court abused its discretion by
denying the objections the defendants lodged to the plaintiffs’ Chapter 74 reports
claiming the plaintiffs’ reports did not represent a good faith effort to provide the
reports required by the Act. We conclude that since no abuse of discretion occurred,
the trial court’s order denying the defendants’ motion to dismiss should be affirmed.
Background
Michelle Armstrong (as the executor of the Estate of Bobby Fosha) and Peggy
Fosha (Bobby Fosha’s widow) sued Dr. John Lee and Steward Medical Group under
the Texas Wrongful Death and Survival Act and alleged they negligently caused
Bobby Fosha’s death. 2 According to the Plaintiffs’ Original Petition, Bobby died
from an adverse side reaction to Celexa, an antidepressant prescribed by Dr. Lee
during an office visit on October 23, 2018. In their suit, the plaintiffs alleged that Dr.
Lee failed to warn Bobby about the increased risk of suicide they claimed is
associated with antidepressants like Celexa. They also alleged that several days after
Bobby started taking the medication, Dr. Lee learned from one of Bobby’s family
members that Bobby was confused after starting the Celexa. According to the motion
2
See id. § 71.002(b) (under the Texas Wrongful Death Statute, a person is
liable “for damages arising from an injury that causes an individual’s death if the
injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect,
carelessness, unskillfulness, or default”); id. § 71.021(a) (under the Texas Survival
Act, a “cause of action for personal injury to the health, reputation, or person of an
injured person does not abate because of the death of the injured person”).
2
to dismiss and the plaintiffs’ response, Celexa comes with warnings, including one
stating: “Patients of all ages who are started on antidepressant therapy should be
monitored appropriately and observed closely for clinical worsening, suicidality, or
unusual changes in behavior.” In the lawsuit, the plaintiffs alleged Dr. Lee
negligently
• failed to prescribe Bobby an appropriate starting dose of Celexa and
instead, gave him four times the recommended starting dose under FDA
dosing guidelines,
• failed to assess and account for Bobby’s past medical history in
prescribing a treatment plan that involved Celexa,
• failed to properly screen Bobby for depression and assess his risk of
suicide before prescribing Celexa,
• failed to warn Bobby about the increased risk of suicide associated with
Celexa during the office visit and after learning several days later from
one of Bobby’s family members that he seemed confused,
• failed to closely monitor Bobby’s Celexa at a reduced dose after being
told by a member of Bobby’s family that Bobby was suffering from
symptoms Dr. Lee should have recognized as associated with “Celexa-
induced delirium[,]” and
• failed to discontinue Bobby’s Celexa and instead instructed Bobby’s
family to have Bobby take Celexa at a reduced dose after Dr. Lee
learned Bobby appeared manic and confused after he started taking
Celexa.
The plaintiffs also alleged the above acts and omissions proximately caused Bobby’s
death.
3
Shortly after filing suit, the plaintiffs served Dr. Lee and Steward Medical
with two reports, signed by doctors, to meet the requirements of Chapter 74. One
report, written by Dr. Michael Dominguez, reflects that he is a board-certified family
physician with experience practicing in the field of family medicine, the same area
of medicine as Dr. Lee. The other report, signed by Dr. Thomas Kosten, reflects that
he is a board-certified psychiatrist and neurologist who has published over 750
papers and books in his field as a psychiatrist, an area that includes the diagnosis and
treatment of anxiety disorders, the risk of suicide associated with such disorders, and
treating these patients who have these disorders with medications like Celexa.
In Dominguez’s report, he criticized Dr. Lee for failing to obtain a complete
medical history after seeing Bobby in his office on October 23, failing to use
screening tools that he claims are required to diagnose and document the severity of
a patient’s anxiety before prescribing an antidepressant, prescribing Celexa at a
higher dose than the one the FDA recommends for patients as old as Bobby, and
failing to instruct Bobby’s daughter to take Bobby to an emergency room after
learning that Bobby had suffered an adverse reaction after he started the Celexa at
the dosage Dr. Lee prescribed. According to Dr. Dominguez, had Dr. Lee not
negligently prescribed the medication at too high a dose and had he monitored
Bobby based on the standard that applies to starting patients on Celexa, Bobby “more
4
likely than not and to a reasonable degree of medical probability” would not have
shot himself and died.
Dr. Kosten’s report also criticizes Dr. Lee for (1) giving Bobby a prescription
for Celexa at a strength higher than the FDA-recommended starting dose; (2) failing
to review Bobby’s medical records to assess his risks of taking Celexa given
Bobby’s family history, which includes a history showing that Bobby’s father
committed suicide; (3) failing to screen Bobby properly to evaluate the severity of
Bobby’s depression; (4) failing to warn Bobby about the adverse side-effects of
Celexa as related to the medication’s increased risk of suicide; and (5) failing to
advise Bobby on October 25 to discontinue the Celexa after Dr. Lee learned from
Bobby’s daughter that Bobby appeared to be confused and anxious after he started
taking Celexa. As to causation, Dr. Kosten’s report states the above acts and
omissions breached the standard of care that applied to treating patients like Bobby.
The report concludes the violations he identified in “the standards of care most likely
caused [Bobby’s] prescribed overdose of Celexa [and] his suicide . . . within a
reasonable degree of medical probability.”
In October 2020, the defendants moved to dismiss the plaintiffs’ suit. In their
joint motion, they argued that Dr. Dominguez’s and Dr. Kosten’s reports “are
woefully deficient” because they do not sufficiently explain how Dr. Lee’s alleged
acts and omissions caused Bobby’s death. The defendants also argued the two
5
reports of the plaintiffs’ experts did not link the experts’ respective conclusions to
the actual facts relevant to Bobby’s case when compared with what the defendants
assert is Bobby’s actual history based on the medical records that documents the
treatment he received during several months before he died. When the defendants
moved to dismiss the suit, they also suggested that Dr. Kosten’s report misrepresents
the results of Bobby’s autopsy by stating that Bobby shot himself in the mouth rather
than under his chin, as stated in the report from Bobby’s autopsy. The defendants
conclude that these discrepancies required the trial court to find the plaintiffs failed
to serve them with good-faith reports that represent a fair summary explaining what
Dr. Lee did or failed to do and how his alleged acts and omissions caused Bobby’s
death.3
After considering the defendants’ motion, together with the plaintiffs’
response and the defendants’ reply, the trial court denied the defendants’ joint
motion to dismiss. This interlocutory appeal followed. 4
3
The only medical record the defendants attached to their motion to dismiss
and reply were a copy of the autopsy report, signed by Dr. John Ralston in January
2019. Other than the autopsy report, the defendants failed to provide the trial court
with any of the other medical records they referred to in their pleadings.
4
Id. § 51.014(a)(9) (authorizing interlocutory appeals form rulings granting or
denying a party’s objection to Chapter 74 reports).
6
Standard of Review
We discuss the standard of review that applies in light of the defendants’
arguments claiming the plaintiffs’ Chapter 74 reports do not accurately and fairly
summarize the information in the medical records the experts reviewed when
forming their respective opinions. First, the defendants argue the trial court abused
its discretion when it refused to agree with them that the expert reports from Dr.
Dominguez and Dr. Kosten did not constitute the good-faith efforts that apply to
compliant reports under Chapter 74.5 Second, Dr. Lee and Steward Medical argue
that Dr. Dominguez’s and Dr. Kosten’s reports fail to adequately explain how Dr.
Lee’s negligent acts and omissions caused Bobby’s death.
Under Chapter 74, “[a]n expert report is sufficient . . . if it ‘provides a fair
summary of the expert’s opinion . . . regarding the applicable standards of care, the
manner in which the care rendered . . . failed to meet the standards, and the causal
relationship between the failure and the injury.’” 6 A report represents 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.’”7 We review rulings by trial courts that rule on objections to Chapter 74
5
Id. § 74.351(l).
6
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per
curiam) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6)).
7
Id. (quoting Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018)).
7
reports for abuse of discretion. 8 Under Chapter 74, an expert report “need not
marshal all the plaintiff’s proof,” but it must do more than a bare conclusion stating
the defendant breached the applicable standard of care that applied to the patient and
that the breach caused the patient’s injury.9 When deciding if the trial court abused
its discretion, the question is “not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court’s action.” 10 Instead, the question
is “whether the court acted without reference to any guiding rules and principles”
that apply to its ruling. 11
When evaluating challenges to Chapter 74 reports, “[t]he trial court should
look no further than the report itself, because all the information relevant to the
inquiry is contained within the document’s four corners.”12 On appeal, we examine
the Chapter 74 reports as a whole. 13 That is, when the record in the appeal includes
more than one Chapter 74 report, the reports are read together to decide whether the
trial court abused its discretion when ruling on a defendant’s motion to dismiss.14 To
8
See Abshire, 563 S.W.3d at 223; Van Ness v. ETMC First Physicians, 461
S.W.3d 140, 142 (Tex. 2015) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc.
v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001).
9
Palacios, 46 S.W.3d at 878-79.
10
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985);
see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).
11
Id.12
Wright, 79 S.W.3d at 52.
13
See Baty, 543 S.W.3d at 694.
14
Abshire, 563 S.W.3d at 223.
8
be sure, (1) if a party argued in the trial court and argues in the appeal the Chapter
74 report misstates the facts in medical records the expert relied upon when writing
the report, and (2) the record shows the trial court reviewed those records in ruling
on a motion to dismiss, the appellate court may look to the same records the trial
court had before it in deciding the motion to resolve an argument in the appeal that
claims the trial court abused its discretion by finding the reports represented good-
faith efforts to comply with Chapter 74. 15
As to causation, Chapter 74 reports, when read together, must explain how the
plaintiff’s intend to prove the defendant’s negligence caused the patient’s injury.16
That said, “[n]o particular words or formality are required” to explain how the
healthcare provider’s negligence caused the patient’s injury, but the report must
contain more than a conclusory statement explaining the expert’s theory of causation
to comply with the good-faith-report requirements of Chapter 74. 17 Nonetheless, to
be adequate under Chapter 74, an expert’s report need not meet the evidentiary
15
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(5)-(6); Christus
Health Se. Tex. v. Broussard, 306 S.W.3d 934 (Tex. App.—Beaumont 2010, no
pet.); Baptist Hospitals of Se. Tex. v. Carter, No. 09-08-067 CV, 2008 Tex. App.
LEXIS 2917109, at *3 n.4 (Tex. App.—Beaumont July 31, 2008, no pet.) (mem.
op.).
16
Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459-
60 (Tex. 2017).
17
Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Jelinek v. Casas,
328 S.W.3d 526, 539-40 (Tex. 2010).
9
requirements needed to make an expert’s opinion relevant and admissible in a
summary judgment proceeding or a trial. 18
Analysis
We turn first to Dr. Lee’s and Steward Medical’s arguments that Dr. Kosten’s
report is not a good-faith report because his opinion, they say, hinged on his view
that Bobby killed himself after placing the gun in his mouth. To be fair, Dr. Ralston’s
autopsy report does show that Dr. Kosten apparently failed to appreciate the fact that
the autopsy report shows the bullet that entered Bobby’s head entered his body from
“[b]eneath the chin[.]” And nothing in the autopsy report suggests that Bobby placed
the gun in his mouth. But even if Dr. Kosten’s report is inaccurate about the exact
point on Bobby’s body that he shot himself, the report still shows that Dr. Ralston
concluded the manner of Bobby’s death was “suicide.”
Dr. Kosten’s report also explains why he thinks Bobby committed suicide.
The report states “[t]he most likely cause of [Bobby’s] suicide was the loss of frontal
brain control over an impulsive action” after Bobby took Celexa. Thus, both the
autopsy report and Dr. Kosten’s report are consistent as to the manner of Bobby’s
death—suicide. And here, the question is whether the trial court abused its discretion
by finding Dr. Kosten’s report represented a good-faith effort to comply with
18
Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 516 (Tex.
2017) (per curiam).
10
Chapter 74. As to that question, we think the trial court could have viewed the
manner of death, suicide, as the crucial issue and viewed the discrepancy that exists
in the reports over where the bullet entered Bobby’s body as immaterial to Dr.
Kosten’s ultimate conclusion Bobby’s lack of ability to control his impulses led him
to take his own life based on the Celexa prescription he was given by Dr. Lee. For
that reason, the trial court could reasonably reject the defendants’ argument claiming
that Dr. Kosten’s report fails to include information that is sufficient to (1) inform
them of the conduct the plaintiffs’ petition questioned and (2) demonstrate why the
plaintiffs’ claims have merit. 19
The defendants also claim there are other inconsistencies between the facts in
Dr. Kosten’s and Dr. Dominguez’s reports describing Bobby’s medical history and
the facts the defendants found in Bobby’s medical records. But except for the
autopsy report, none of the other records the defendants pointed to in their motion
were filed as exhibits to their motion. For that reason, Bobby’s other records are
outside the scope of review that applies to our review of the trial court’s ruling that
the defendants elected to appeal. Simply put, these alleged inconsistencies between
19
See Palacios, 46 S.W.3d at 879. At this early stage of the proceedings, we
note the question is not whether the plaintiffs will end up prevailing on their claims
at trial.
11
the reports of the plaintiffs’ experts and the information they say is in Bobby’s
medical records were not properly preserved for our review in the appeal.20
Next, we address whether, when reading the two reports together, the trial
court could reasonably find the reports sufficient to explain how Dr. Lee’s alleged
acts and omissions violated the standards of care that applied to Bobby and caused
his death. In our opinion, the trial court could reasonably find the reports of both
experts informed the defendants of the conduct the plaintiffs questioned. Both
reports describe the standard of care that applies to treating patients of Bobby’s age
with an antidepressant like Celexa and state that Dr. Lee breached the standard of
care in starting Bobby at a higher than recommended dose. Both reports trace how
Dr. Lee’s alleged errors led to the adverse side effects that Dr. Dominguez and Dr.
Lee opine prevented Bobby from controlling his urge to commit suicide, which they
say is a known risk in patients prescribed antidepressants. In other words, both
reports explain what Dr. Lee did, what he failed to do, and what the plaintiffs’
experts claim he should have done to treat Bobby for anxiety. Read together, both
reports also tie Dr. Lee’s alleged negligence to Bobby’s death.
The trial court could also reasonably reject the defendants’ argument claiming
the reports by the plaintiffs’ experts are overly conclusory on the issue of causation.
As to causation, Dr. Dominguez’s report contains a paragraph stating:
20
Tex. R. App. P. 33.1(a)(2).
12
A reasonable and prudent physician would have known that the
maximum dose for a patient Mr. Fosha’s age was 20 mg per day and
would not have prescribed a 40 mg dose . . . . Dr. Lee prescribed
citalopram at a dose higher than recommended for his age and higher
than recommended for someone who was essentially treatment naive.
He also failed to refer Mr. Fosha for immediate care when called by
Mrs. Armstrong about her father’s condition. Had Dr. Lee not
prescribed Mr. Fosha an inappropriate dose of citalopram, it is more
likely than not and to a reasonable degree of medical probability that
Mr. Fosha would not have experienced the adverse effects of delirium
and shot himself resulting in his death. Further, if Dr. Lee had
responded to the concerns of Mr. Fosha’s family appropriately by
referring him for psychiatric evaluation when they were reported, it is
also more likely than not and to a reasonable degree of medical
probability that Mr. Fosha would not have had the opportunity to shoot
himself resulting in his death.21
Likewise, the trial court could have reasonably rejected the defendants’ arguments
that Dr. Kosten’s report failed to inform them of the conduct the plaintiffs questioned
or to explain the plaintiffs’ theory of causation. Dr. Kosten’s report summarizes his
findings as to causation as follows:
Dr. Lee committed two major negligent behaviors leading to Mr.
Fosha’s suicide from what was clearly a serotonin syndrome and
delirium induced by the high dose of Celexa. Most importantly among
the negligent behaviors and the proximal cause of Mr. Fosha’s death
was restarting Celexa 40mg after discontinuing this medication about
eight months previously . . . Furthermore, when after a single dose of
40 mg clear signs of a serotonin syndrome were evident to even layman,
the Celexa should have been immediately stopped. Mr. Fosha then
should have been sent to the emergency department . . . The most likely
cause of [Mr. Fosha’s] suicide was the loss of frontal brain control over
21
In his report, Dr. Dominguez identified the drug that Bobby took as
“citalopram.” Citalopram is the generic name for Celexa. WebMD, https://www.
webmd.com/drugs/2/drug-1701/citalopram-oral/details (last visited April 12, 2021).
13
an impulsive action that had otherwise been controlled before this
severe serotonin syndrome occurred.
The defendants also assert the reports focus on the conduct of Dr. Lee, not
Steward Medical. But the plaintiffs’ suit alleges that Dr. Lee is an employee of
Steward Medical and that Steward Medical is legally responsible for Dr. Lee’s acts
as his employer. When healthcare liability claims include claims alleging a theory
of vicarious liability against the physician’s employer, “a report that adequately
implicates the actions of that party’s agents or employees is sufficient.”22 For this
reason, the trial court could also reasonably find the reports sufficient as to Steward
Medical.
Conclusion
We hold the defendants’ issues lack merit. For that reason, the trial court’s
order denying Dr. Lee’s and Steward Medical’s joint motion to dismiss is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on January 5, 2021
Opinion Delivered April 22, 2021
Before Kreger, Horton, and Johnson, JJ.
22
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see
Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 587 (Tex. App.—
Beaumont 2011, no pet.).
14