Darry G. Meyer, D.O., Darry G. Meyer, D.O., P.A., and Memorial Medical Center of East Texas v. Ansel Strahan

NO. 12-18-00352-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DARRY G. MEYER, D.O., AND DARRY § APPEAL FROM THE 217TH
G. MEYER, D.O., P.A.,
APPELLANTS
V. § JUDICIAL DISTRICT COURT
ANSEL STRAHAN,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Darry G. Meyer, D.O. and Darry G. Meyer, D.O., P.A. (collectively “Dr. Meyer”) appeal
the trial court’s order denying their motion to dismiss Ansel Strahan’s suit against them. We
affirm.
BACKGROUND
On July 23, 2015, Strahan complained of pain in his left side and a noticeable bulge in his
left inguinal area. Strahan went to see Dr. Meyer, who determined Strahan required surgery to
repair a hernia. The surgical consent form stated that Strahan was to undergo a “Unilateral Inguinal
Hernia Repair, Robotic Left Inguinal Hernia Repair” and contained a clause that authorized Dr.
Meyer to perform additional operations that are necessary or advisable. Surgery began the same
day at Memorial Medical Center of East Texas (Memorial Medical). According to Dr. Meyer,
during the procedure, he encountered a hernia on Strahan’s right side. After the surgery, Dr. Meyer
informed Strahan that the right-side hernia was repaired as well, even though Strahan never
complained of any pain on his right side. Strahan was discharged.
The following day, Strahan experienced severe abdominal pain and swelling. He returned
to the emergency room at Memorial Medical. A CT scan revealed that Strahan was hemorrhaging
in his abdomen. On July 26, an additional surgery was performed during which the left-side
inguinal mesh and the corresponding blood clots were removed. Strahan was then transferred to
the intensive care unit. Strahan alleges he suffered serious and permanent injuries as a result of
his stay at Memorial Medical.1
Strahan brought a healthcare liability claim against Dr. Meyer. He contends Dr. Meyer
lacked consent to perform the right-side hernia repair and that the extra surgery caused the
subsequent hemorrhaging. In an attempt to comply with Section 74.351 of the Texas Civil Practice
and Remedies Code, Strahan served Dr. Meyer with an expert report and curriculum vitae of Dr.
David Befeler. Dr. Meyer filed objections to Dr. Befeler’s report, including an objection that Dr.
Befeler’s report was insufficient as to causation, and a motion to dismiss Strahan’s claim. The
trial court allowed Dr. Befeler to supplement his report in accordance with Section 74.351(c) to
cure deficiencies regarding the standard of care and causation. After Dr. Befeler timely
supplemented his report, Dr. Meyer renewed his objections and again moved for dismissal.
Following a hearing, the trial court overruled the objections and denied the motion. This appeal
followed.
EXPERT REPORT
In his sole issue, Dr. Meyer contends the trial court abused its discretion when it denied his
motion to dismiss. Specifically, Dr. Meyer urges that Dr. Befeler’s report does not adequately
address whether the right-side hernia repair caused the hemorrhaging.
Standard of Review
A trial court’s ruling on qualifications of a medical expert and the sufficiency of an expert’s
report under Chapter 74 is reviewed for an abuse of discretion. Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if it acts without
reference to guiding rules or principles. Van Ness, 461 S.W.3d at 142. However, in exercising its
discretion, it is incumbent upon the trial court to review the report, sort out its content, resolve any
inconsistencies, and decide whether the report demonstrated a good faith effort to show that the
plaintiff’s claims have merit. See id. at 144. When reviewing factual matters committed to the trial
court’s discretion, an appellate court may not substitute its judgment for that of the trial court.
1
In addition to his claims against Dr. Meyer, Strahan alleges he received substandard care while at Memorial
Medical. Those claims are not part of this appeal and Memorial Medical is not a party to this appeal.
2
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
Expert Report Requirements
The Texas Medical Liability Act requires a claimant to serve an expert report early in the
proceedings on each party against whom a health care liability claim is asserted. TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351(a) (West 2017). The Texas Supreme Court has explained that
“eliciting an expert’s opinions early in the litigation [is] an obvious place to start in attempting to
reduce frivolous lawsuits.” Palacios, 46 S.W.3d at 877. The purpose of evaluating expert reports
is to deter frivolous claims, not to dispose of claims regardless of their merits. See Certified EMS,
Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). A valid expert report must fairly summarize the
applicable standard of care; explain how a physician or health care provider failed to meet that
standard; and establish a causal relationship between the failure and the harm alleged. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(r)(6) (West 2017); Potts, 392 S.W.3d at 630.
A report need not cover every alleged liability theory to make the defendant aware of the
conduct at issue, nor does it require litigation ready evidence. Potts, 392 S.W.3d at 631–32. The
report can be informal in that the information in the report does not have to meet the same
requirements as the evidence offered in a summary-judgment proceeding or at trial. Id. For the
particular liability theory addressed, the report must sufficiently describe the defendant’s alleged
conduct. Id. Such a report both informs a defendant of the behavior in question and allows the
trial court to determine if the allegations have merit. Id. If the trial court decides that a liability
theory is supported, then the claim is not frivolous, and the suit may proceed. Id. If a health care
liability claim contains at least one viable liability theory, as evidenced by an expert report meeting
the statutory requirements, the claim cannot be frivolous. Id.
Causation
A causal relationship is established by proof that the negligent act or omission was a
substantial factor in bringing about the harm, and that, absent this act or omission, the harm would
not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249
(Tex. App.—San Antonio 2004, no pet.). Causation is often established in medical malpractice
cases through evidence of a “reasonable medical probability” or “reasonable probability” that the
alleged injuries were caused by the negligence of one or more defendants. Jelinek v. Casas, 328
S.W.3d 526, 532–33 (Tex. 2010). In other words, the plaintiff must present evidence “that it is
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‘more likely than not’ that the ultimate harm or condition resulted from such negligence.” Id.
(quoting Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993)). An expert
may show causation by explaining a chain of events that begins with a defendant doctor’s
negligence and ends in injury to the plaintiff. See McKellar v. Cervantes, 367 S.W.3d 478, 485
(Tex. App.—Texarkana 2012, no pet.).
A report is deficient if it states only the expert’s conclusions about the standard of care,
breach of the standard of care, or causation. See Ortiz v. Patterson, 378 S.W.3d 667, 671 (Tex.
App.—Dallas 2012, no pet.). An expert cannot simply opine that the breach caused the injury.
Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539. Rather, the report must explain, to a
reasonable degree, how and why the breach of the standard of care caused the injury based on the
facts presented. Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539–40. The report must
explain the basis of the expert’s statements to link his conclusions to the facts. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see also Taylor v. Fossett, 320 S.W.3d 570, 575
(Tex. App.—Dallas 2010, no pet.) (expert report must contain sufficiently specific information to
demonstrate causation beyond conjecture).
In determining whether the expert report represents a good faith effort to comply with the
statutory requirements, the court’s inquiry is limited to the four corners of the report. Christian
Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 641 (Tex. App.—Dallas 2010, pet. denied) (citing
Palacios, 46 S.W.3d at 878). “We may not ‘fill gaps’ in an expert report by drawing inferences
or guessing what the expert likely meant or intended.” Hollingsworth v. Springs, 353 S.W.3d
506, 513 (Tex. App.—Dallas 2011, no pet.). “We determine whether a causation opinion is
sufficient by considering it in the context of the entire report.” Ortiz, 378 S.W.3d at 671.
Analysis
Dr. Meyer argues that Dr. Befeler’s report is deficient because it does not adequately
summarize the causal relationship between the right-side hernia repair and Strahan’s injuries. Dr.
Meyer further posits that Dr. Befeler’s statements regarding causation are conclusory and do not
address whether Strahan may have suffered the same complications if the right-side hernia repair
had not occurred.
Dr. Befeler’s reports, in relevant part, state as follows:
As of July 23, 2015, Mr. Strahan was a 78 year old male with a history of myeloproliferative
disorder, a disease of the bone marrow and blood. In Mr. Strahan’s case, he had Essential
Thrombocythemia that meant that the number of platelets in his blood is much higher than normal
4
while other blood cell types are normal. The extra platelets make the blood “sticky” which slows
down the blood flow and can cause clotting and then hemorrhaging as the platelets are abnormal in
function. General surgeons such as [Dr. Befeler] and Dr. Meyer are taught to be familiar with these
conditions as these patients are at increased risks of bleeding and thrombosis….
…
[O]n 7/23/2015, Ansel J. Strahan, Jr. was admitted to the outpatient surgery center of the Memorial
Medical Center of East Texas for the purpose of undergoing a left inguinal hernia repair to be
performed by Dr. Darry Meyer. … By way of history, Mr. Strahan was suffering some pain in the
left inguinal area with a noticeable bulging from that same area. The intended surgery that Dr. Meyer
has discussed with Mr. Strahan involved only the repair of the left inguinal hernia and the consent
form signed by Mr. Strahan preoperatively reflected that the intended surgery was for a “Unilateral
Inguinal Hernia, Robotic Left Inguinal Hernia Repair.” Prior to 7/23/2015, Mr. Strahan had
experienced no pain or problems in the right inguinal area. Preoperatively, Mr. Strahan’s medical
records do not reflect any complaints or problems in Mr. Strahan’s right inguinal area.
…
…Of note, the surgical consent form signed by Mr. Strahan includes a paragraph that Dr. Meyer
would have the authority to perform additional operations on Mr. Strahan that may be deemed
necessary or advisable in the diagnosis and treatment of the named patient. This clause, by the
standard of care, is reserved for the surgeon to have permission to operate on life threatening
conditions that are discovered during the course of an operation. … It was neither necessary nor
advisable to perform an elective right inguinal hernia repair, assuming a right inguinal hernia
existed, in a patient like Mr. Strahan with a pre-existing significant platelet condition.
…
Postoperatively, Dr. Meyer informed Mr. Strahan and his family that he had not limited the surgical
procedure to a repair of the left inguinal hernia; rather, he claimed to have discovered an inguinal
hernia on the right side, where Mr. Strahan had never had any pain, never had any bulge, and had
been completely asymptomatic from any right hernia symptoms, and for which Mr. Strahan had
never given specific surgical consent.
…
On 7/24/2015, the following day, Mr. Strahan apparently begin [sic] experiencing severe abdominal
pain, increased abdominal swelling, and returned to the emergency room at Memorial Medical
Center of East Texas, with a pain assessment graded at 10/10. … A CT scan was ordered by the ER
physician, which showed that Mr. Strahan had developed acute hemorrhaging in his abdomen. …
The CT scan of the abdomen and pelvis revealed an acute hematoma superior to the left inguinal
canal, 8.4 cm in maximum diameter….
…
…Mr. Strahan was eventually taken back to surgery for an exploratory laparotomy at 1433 hours
on July 26. During that procedure, Dr. Cole removed the left inguinal mesh repair and evacuated
the blood clots. Following the surgery, Mr. Strahan was admitted to the PCU with an NG tube, IVs,
a Foley catheter, and was apparently incapable of doing any repositioning without nursing
assistance.
…
5
During the performance of the left inguinal hernia repair, no life threatening event or emergent
situation developed that made the performance of a right inguinal herniorrhaphy indicated to be
done without specific consent by the patient. The standard of care would be for Dr. Meyer to finish
the left inguinal herniorrhaphy and allow Mr. Strahan to recover, re-examine his alleged right sided
inguinal hernia and discuss with the patient his options for treatment. The standard of care in treating
a patient with this platelet disorder would also be to avoid prolonging surgery and making multiple
unnecessary incisions. By unnecessary incisions, [Dr. Befeler is] referring to the additional incisions
required to perform surgery on the alleged right-sided inguinal hernia….
Dr. Meyer’s decision to perform a bilateral hernia repair in light of Mr. Strahan’s pre-existing
condition was a direct and proximate cause of Mr. Strahan’s internal hemorrhaging. It is reasonably
foreseeable to a general surgeon that performing additional surgery than what was originally
intended and consented for on a patient with a pre-existing platelet condition puts that patient at an
increased risk of bleeding at any surgical site, and can result in the exact type of injury that Mr.
Strahan suffered.
…
The standard of care required Dr. Meyer to only perform the left inguinal hernia repair for which he
had received the informed consent of Mr. Strahan, and to not perform a right inguinal hernia repair,
which was asymptomatic, not causing Mr. Strahan any pain or medical problem, and for which Dr.
Meyer had not obtained Mr. Strahan’s signed, written consent. The bilateral hernia repairs prolonged
the surgery, and according to Dr. Meyer’s operative report, during the surgery, a tear occurred in
the inguinal peritoneum on the right side that required further repair. … Further, the surgical
procedure selected by Dr. Meyer was incorrect and deviated from the standard of care. A single
incision in the left inguinal area was all that was required - not all of the incisions made by Dr.
Meyer in performing a laparoscopic surgery. This error on Dr. Meyer’s part was also a deviation of
the standard of care and was medically causative of the hematoma and postoperative bleeding
suffered by Mr. Strahan and the subsequent hospitalization and subsequent exploratory laparotomy
surgery performed by Dr. [Melvin] Cole.
We first address Dr. Meyer’s argument that Dr. Befeler’s reports are required to rule out
all possible causes of Strahan’s abdominal bleeding. We disagree. Section 74.351 requires the
medical expert’s report to provide a fair summary of his opinions regarding the causal relationship
and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
Nothing in Section 74.351 suggests the preliminary report is required to rule out every possible
cause of the injury, harm or damages claimed, especially given that Section 74.351(s) limits
discovery before the report is filed. Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys.
v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.). Furthermore, the expert
report need not prove the entire case or account for every known fact; the report is sufficient if it
makes “a good-faith effort to explain, factually, how proximate cause is going to be proven.”
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 224 (Tex. 2018).
Second, we conclude that Dr. Befeler’s reports provide a basis for the trial court to conclude
that Strahan’s negligence claim has merit. See Wright, 79 S.W.3d at 52; see also Palacios, 46
S.W.3d at 879. Dr. Befeler sets forth that Strahan suffered from a preexisting condition, essential
6
thrombocythemia, which placed him at a higher risk for bleeding from surgical procedures. For
this reason, prolonging surgery and making unnecessary incisions, such as the incisions required
to repair the right-sided inguinal hernia, should be avoided. According to Dr. Befeler, the clause
regarding additional operations, by the standard of care, is reserved for life threatening conditions
discovered during an operation. Yet, Strahan never had pain or a bulge in his right side and was
“completely asymptomatic from any right hernia symptoms.” Thus, because of Strahan’s
preexisting condition, Dr. Befeler explained that, absent a life threatening or emergent situation,
Dr. Meyer should have completed the left inguinal herniorrhaphy, allowed Strahan to recover, re-
examined the alleged right-side inguinal hernia, and discussed treatment options with Strahan.
Instead, Dr. Meyer’s prolonging the surgery by completing the alleged right-side hernia repair
could, and did, cause clots and hemorrhaging at any surgical site, which includes the left-side
hernia repair.
The ultimate evidentiary value of the opinions proffered by Dr. Befeler is a matter to be
determined at summary judgment and beyond. At this stage we do not require a claimant to
marshal all his proof or present evidence in the report as if he were actually litigating the merits.
Palacios, 46 S.W.3d at 879. Accordingly, we hold that Dr. Befeler’s reports, when read together,
constitute an objective, good faith effort to comply with Chapter 74’s requirement to provide a fair
summary of his opinion with respect to the causal relationship between Dr. Meyer’s alleged breach
and Strahan’s injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6).
Based on the foregoing, we hold the trial court did not abuse its discretion in denying Dr.
Meyer’s motion to dismiss. Dr. Meyer’s sole issue is overruled.
DISPOSITION
Having overruled Dr. Meyer’s sole issue, we affirm the trial court’s order.
JAMES T. WORTHEN
Chief Justice
Opinion delivered April 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 10, 2019
NO. 12-18-00352-CV
DARRY G. MEYER, D.O., AND DARRY G. MEYER, D.O., P.A.,
Appellants
V.
ANSEL STRAHAN,
Appellee
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. CV-00688-17-10)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order denying Meyer’s motion to dismiss.
It is therefore ORDERED, ADJUDGED and DECREED that the order of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, DARRY G. MEYER, D.O., AND DARRY G. MEYER, D.O., P.A., for
which execution may issue, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.