Ronald Engh v. Michael Reardon, M.D. and Panagiotis Kougias, M.D.

Opinion issued November 10, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00017-CV

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Ronald Engh, Appellant

V.

Michael Reardon, M.D. and Panagiotis Kougias, M.D., Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2008-00133

MEMORANDUM OPINION

This appeal arises from medical malpractice claims brought by appellant, Ronald Engh, against appellees, Dr. Panagiotis Kougias and Dr. Michael Reardon.  The trial court dismissed Engh’s claims against both doctors with prejudice after concluding that the expert report served by Engh did not satisfy the requirements of section 74.351 of the Texas Civil Practice and Remedies Code.[1]  This appeal followed. 

We reverse the judgment of the trial court.

Background

Engh presented to Methodist Hospital in Houston, Texas with a history of bilateral extremity deep vein thrombosis and true vena cava thrombosis.  His course of treatment included a femorocaval bypass performed by Dr. Kougias and Dr. Reardon on March 23, 2006.  Engh alleges that a surgical clip was placed on his right ureter during that operation and that the doctors failed to remove the clip prior to closing.[2]  Drs. Reardon and Kougias, however, claim that there is no evidence that Engh’s ureter was actually clipped during the procedure.  According to the doctors, surgical clips were purposefully placed on blood vessels adjacent to the ureter. 

It is undisputed that in the weeks and months following the surgery, Engh’s right kidney began to fail. Engh was discharged from the hospital to skilled nursing care on May 5, 2006.  Later that same day, Engh was admitted to another hospital for right hydronephrosis[3] of unknown cause.  On May 24, 2006, another doctor, Dr. David Ho, unsuccessfully attempted to insert a stent through Engh’s right ureter but encountered an obstruction.  According to Dr. Ho’s operative report, the “severe obstruction” was due to “a clip interpositioned at that location.”  The operative report also refers to a fluoroscopy of the obstructed area that identified “multiple surgical clips.” The following day, radiologist Dr. George Soltes examined Engh and found “hydronephrosis and hydroureter with occlusion of the ureter at the L4 level secondary to a surgical clip.”  A renal scan taken at the time also showed a “minimally functioning right kidney.”  These attempts to save the kidney, however, were unsuccessful, and Engh’s right kidney was removed some months later. 

On January 2, 2008, Engh filed medical malpractice claims against Dr. Kougias, Dr. Reardon, and three other defendants.[4]  Engh subsequently served the defendants with a timely expert report authored by Dr. Michael Verta, a board certified vascular surgeon.  Drs. Kougias and Reardon timely objected to the sufficiency of the report on February 18, 2008.  After Engh’s 120-day expert report deadline expired on May 1, 2008, Drs. Kougias and Reardon filed separate motions to dismiss Engh’s claims for failure to comply with the requirements of section 74.351.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2010).  Later that month, the trial court ruled that Dr. Verta’s expert report was deficient, but granted Engh thirty days to cure the deficiency. 

Engh timely served an amended expert report; Drs. Kougias and Reardon responded by filing separate motions to dismiss pursuant to section 74.351(b) based upon alleged deficiencies with respect to the amended report.  On August 11, 2009, following a hearing on the doctors’ motions to dismiss, the court granted the motions and dismissed Engh’s claims against Drs. Kougias and Reardon with prejudice.  In its order, the court stated that “[t]he amount of attorney’s fees and costs to be awarded pursuant to Tex. Civ. Prac. & Rem. Code Sec. 74.351(b) will be determined at a hearing to be set by defendants at a later date.”

Four days later, Engh filed a motion for reconsideration, and in the alternative, Request for Findings of Fact and Conclusions of Law regarding the trial court’s August 11, 2008 order.  Nearly two months later, on October 17, 2008, the trial court heard argument on Engh’s motion and took the matter under advisement.[5]  On October 27, 2008, Engh filed a notice of appeal seeking review of the August 11, 2008 order.  That appeal was docketed in this Court as an interlocutory appeal under appellate cause number 01-08-00895-CV. 

Pursuant to the trial court’s August 2008 order, a hearing was held on December 22, 2008 in order to determine the amount of attorney’s fees and costs to be awarded.  After the hearing, the court issued an order granting Dr. Kougias $100,000 and Dr. Reardon $56,000 in attorney’s fees and costs.[6]  On December 30, 2008, Engh filed a notice of appeal of the trial court’s December order. That appeal was docketed in this Court as a separate and independent interlocutory appeal under appellate cause number 01-09-0017-CV.

Engh subsequently motioned the trial court for an order severing the claims pending against the remaining defendants into a separate cause number (trial court cause number 2008-00133-A).  The trial court granted Engh’s request and entered an order severing the remaining claims on May 5, 2010.  Accordingly, Engh’s October and December 2008 notices of appeal effectively merged into one notice of appeal that was deemed filed on May 5, 2010 in appellate cause number 01-09-0017-CV.  See Tex. R. App. P. 27.1(a) (stating premature notice of appeal is “deemed filed on date of, but after, the event that begins the period for perfecting the appeal”).

Engh presents four issues on appeal, which we will address in the following order:

1. Whether the trial court abused its discretion by granting Dr. Kougias’s and Dr. Reardon’s motions to dismiss;

2. Whether the fact that Engh’s expert report substantiates his common law claim of negligence against Drs. Reardon and Kougias under the doctrine of res ipsa loquitur, codified as section 74.201 of the Texas Civil Practice and Remedies Code, relieves him of his obligations under section 74.351;

3. Whether the trial court’s dismissal of Engh’s Chapter 74 claims violates his federal constitutional rights to procedural due process and equal protection under the law; and

4. Whether the trial court’s awarding of attorney’s fees under section 74.351(b)(1) of the Texas Civil Practice and Remedies Code violates Engh’s constitutional right to procedural due process.

Discussion

In his first issue, Engh contends that the trial court abused its discretion when it found that Dr. Verta’s report did not satisfy the requirements of Chapter 74 and granted Dr. Kougias’s and Dr. Reardon’s motions to dismiss.  Drs. Reardon and Kougias, however, contend that the trial court did not abuse its discretion when it dismissed Engh’s claims for failure to satisfy the procedural requirements of Chapter 74 because Dr. Verta’s report was insuffient with regard to all three critical elements: standard of care, breach, and causation.  In addition to these insufficiencies, both doctors also contend that dismissal was proper because Dr. Verta was not qualified to opine on causation.[7]   

I. Standard of Review

We review a trial court’s decision regarding the adequacy of a section 74.351 expert report under an abuse of discretion standard.  Am. Transitional Care Centers v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).  We also apply this same standard when reviewing a trial court’s decision regarding whether a witness qualifies as an expert for purposes of authoring such a report.  Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex. 2006) (per curiam); Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet. denied).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles.  See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985); Larson, 197 S.W.3d at 304 (“Whether to exclude [the expert’s] testimony is a close call on this record. Close calls must go to the trial court.”)  A clear failure by the trial court to analyze or apply the law correctly, however, will constitute an abuse of discretion.  Packer, 827 S.W.2d at 840.

In reviewing the adequacy of a section 74.351 expert report, we must evaluate whether the report “represents a good-faith effort” to comply with the statute.  Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).  Although the report need not marshal all of plaintiff’s proof in order to constitute a “good-faith effort,” it must include a “fair summary” of the expert’s opinions on the three statutory elements—standard of care, breach, and causation.  See Palacios, 46 S.W.3d at 878, 880; Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex. App.—Tyler 2008, pet. denied) (quoting Palacios, 46 S.W.3d at 880) (stating “fair summary” is “something less than a full statement” of applicable standard of care, how it was breached, and how that breach caused plaintiff’s injury). 

In detailing these elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort.  Palacios, 46 S.W.3d at 879.  First, the report must inform the defendant of the specific conduct that the plaintiff has called into question.  Id.  Second, the report must provide a basis for the trial court to conclude that the claims have merit.  Id. A report that merely states the expert’s conclusions as to the standard of care, breach, and causation does not fulfill these two purposes.  Id. The expert must explain the basis for his statements and link his conclusions to the facts.  Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).  Further, in assessing the report’s sufficiency, the court may not draw any inferences, and instead must rely exclusively on the information contained within the four corners of the document and the expert’s curriculum vitae.  See id.; Palacios, 46 S.W.3d at 878.       

In the present case, the trial court did not prepare any findings of fact or conclusions of law, nor did it specify which ground it was relying upon when it ordered the dismissal of Engh’s petition.  See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984).  In such cases, the judgment of the trial court implies all necessary fact findings in support of the judgment and we will affirm the judgment if it can be upheld on any legal theory that finds support in the evidence.  See id. at 717.  Accordingly, we must affirm the trial court’s order on any ground that could have provided the trial court with a reasonable basis to conclude that Engh’s expert’s report did not meet the statutory requirements of Chapter 74 (i.e., the report was not authored by a qualified expert or failed to include a “fair summary” of the expert’s opinions on standard of care, breach, or causation), so long as that theory is supported by the evidence.

II. Expert Qualifications

Both Dr. Reardon and Dr. Kougias argue that the trial court did not abuse its discretion when it dismissed Engh’s claims against them because Engh’s expert, Dr. Verta, is not qualified to opine on the issue of causation.  Specifically, Dr. Reardon and Dr. Kougias contend that, as a vascular surgeon, Dr. Verta is not qualified—nor does he claim to be qualified—to opine with regard to the cause of Engh’s renal failure and the eventual loss of his kidney.

A person is qualified to opine on the causal relationship between the damages claimed and the alleged departure from the applicable standard of care in a section 74.351 expert report only if that person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C).  To be qualified under the Texas Rules of Evidence, an expert must have knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject, and the expert’s testimony must be able to assist the trier of fact in understanding that issue.  Broders v. Heise, 924 S.W.2d 148, 152–53 (Tex. 1996).  Whether an expert is qualified to opine on a given issue, however, is not dependent upon the expert’s area of practice, but rather the expert’s familiarity with the issues involved in the claim before the court.  See id. at 154. An expert’s qualifications must appear within the expert report and cannot be inferred.  See Palacios, 46 S.W.3d at 878; see also Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Accordingly, analysis of section 74.351 expert qualifications is limited to the four corners of the expert’s report and the expert’s curriculum vitae.  Pokluda, 283 S.W.3d at 117.

Dr. Verta states in his report, in pertinent part: “By virtue of my education, training, and experience I am qualified to render opinions regarding the standard of care of the comprehensive vascular surgical treatment of deep vein thrombosis and vena cava thrombosis and its complications as well as the cause of those complications.”[8]  According to Dr. Verta, Engh presented to Methodist Hospital with a history of bilateral extremity deep vein thrombosis and true vena cava thrombosis.  Engh’s course of treatment included a March 2006 femorovaval bypass performed by vascular surgeons, Dr. Kougias and Dr. Reardon.  Based upon his review of Engh’s medical records, Dr. Verta concluded that Engh’s ureter was clipped during that femorocaval bypass surgery. Dr. Verta also professes to have knowledge regarding the treatment of such ureteral ligations and the medical consequences that flow from them, including hydronephrosis and kidney loss.  Specifically, Dr. Verta states:

The consequences of ligation or clipping of the ureter are well-known and entirely predictable, namely, the development of hydronephrosis, the loss of kidney function on that side because of the ureteral blockage, and a propensity to develop pyelonephritis because of stagnant urine.  This is exactly what occurred as the result of Mr. Engh’s clipped ureter.  If the blockage is not recognized, as it wasn’t in this case, eventual loss of the kidney is inevitable.  If the condition is recognized, immediate reconstruction of the ureter is necessary to preserve function of the kidney and even this may not be entirely successful if too much time has elapsed between the event and its recognition.

. . . .

If the ureter cannot be reconstructed, then external drainage of the urine is necessary to preserve kidney function.  This entails the wearing of an appliance for external delivery and all the consequences attendant to external urinary diversion, which include dislodgement of the urinary stent with calcareous deposits, and the need for periodic maintenance of the stent. 

As a vascular surgeon, Dr. Verta is qualified to opine as to the causation of complications arising from vascular surgical procedures.  See Livingston v. Montgomery, 279 S.W.3d 868, 873 (Tex. App.—Dallas 2009, no pet.) (concluding that obstetrician, who was expert in labor and delivery, was qualified to opine as to causation of complications arising from such medical procedures, including pediatric neurological injuries).  Moreover, it is apparent from the four corners of his report that Dr. Verta is knowledgeable regarding the specific issue before the court—the consequences of ureteral obstructions—and that his testimony on this issue would assist the fact finder in understanding the issue and evaluating the causal connection between the clipping of the ureter and the injuries suffered by Engh.  Under these circumstances, it appears as though the trial court would have acted arbitrarily or in an unreasonable manner if it had concluded that Dr. Verta was not qualified to opine on causation, and therefore, the trial court would have abused its discretion if it had dismissed Engh’s claims on this basis.  See Gutierrez, 111 S.W.3d at 62.  The dismissal of Engh’s claims cannot be affirmed on this ground.

III. Standard of Care and Breach

Dr. Reardon and Dr. Kougias also allege that the trial court did not abuse its discretion when it dismissed Engh’s claims against them because Dr. Verta’s expert report is insufficient with regard to the elements of standard of care and breach.  Specifically, both Dr. Reardon and Dr. Kougias contend that Dr. Verta’s report is inadequate with respect to standard of care and breach because (1) Dr. Verta impermissibly applies a collective standard of care to both physicians; (2) Dr. Verta’s opinions with regard to the applicable standards of care are inaccurate; (3) there is no factual basis for Dr. Verta’s opinions regarding either standard of care or breach; and (4) Dr. Verta’s report fails to provide a fair summary of how each physician breached the standard of care.  Dr. Reardon also contends that Dr. Verta’s opinion regarding the standard of care applicable to him is also deficient because it is based upon a theory of vicarious liability that has been expressly rejected by Texas courts and was not pled in Engh’s amended petition.

With respect to the issues of standard of care and causation, Dr. Verta’s report states in pertinent part:

Standard of care requires that surgeons, such as Drs. Reardon and Kougias, properly identify the ureter when performing a femorocaval bypass graft . . . . Standard of care requires the ureters identification so that it would not be inadvertently clipped.

. . . .

Standard of care requires that surgeons, such as Drs. Reardon and Kougias, avoid clipping the ureter during a femorocaval bypass graft.  Clipping the ureter under conditions described in Dr. Kougias’ Operative Report falls grossly outside standard of care.  There are no circumstances that I can contemplate that would call for the clipping of the ureter when performing this procedure.  Surgical clips are designed to reduce blood flow in veins or arteries, but they are ill-equipped to clamp the ureter.

Dr. Verta also states that, in addition to their general obligations as vascular surgeons to identify the ureter and avoid clipping it, both Dr. Reardon and Dr. Kougias had additional obligations due to their respective roles in the surgical procedure. Specifically, as the lead surgeon, Dr. Reardon was also responsible for checking any surgical work performed by Dr. Kougias, a surgical resident.  According to Dr. Verta, if Dr. Kougias breached the standard of care when he clipped the ureter, then Dr. Reardon also breached the standard of care by failing to adequately monitor Dr. Kougias’s work, because “that is the standard of care for the lead surgeon working with a resident in this type of surgery.”  As the assisting surgical resident, Dr. Kougias also had an obligation to object to, and even correct, a “glaring deviation” from the standard of care committed by his senior colleague.  Accordingly, if Dr. Reardon breached the standard of care when he clipped the ureter, then Dr. Kougias also breached the standard of care by failing to object to or correct such a “glaring error.”

Having done so, the report provided Dr. Reardon with a fair summary of Dr. Vertas’s opinions concerning the applicable standards of care and how Dr. Reardon failed to meet those standards.  See Palacios, 46 S.W.3d at 880. The report also informed Dr. Reardon of the specific conduct that Engh has called into question—Dr. Reardon’s allowance of the ureter to be clipped during the femorocaval bypass and to remain clipped either through his actions (clipping the ureter) or inactions (failing to monitor Dr. Kougias’s work, thus allowing Dr. Kougias to clip the ureter). See id. at 879.  Thus, pursuant to Palacios and its progeny, Dr. Verta’s report is sufficient with regard to standard of care and breach.

Likewise, Dr. Verta’s report also provided Dr. Kougias with a fair summary of his opinions concerning the applicable standards of care and how Dr. Kougias failed to meet those standards. See id. at 880.  The report also informed Dr. Kougias of the specific conduct that Engh has called into question—Dr. Kougias’s allowance of the ureter to be clipped during the femorocaval bypass and to remain clipped, either through his actions (clipping the ureter) or inactions (failing to unclip the ureter after it was clipped). See id. at 879.  Thus, pursuant to Palacios and its progeny, Dr. Verta’s report is sufficient with regard to standard of care and breach.

Nevertheless, Dr. Reardon and Dr. Kougias contend that Dr. Verta’s report is inadequate as to the standard of care because it collectively refers to them as a group rather than setting forth individual standards as to each defendant physician.  The doctors rely upon several cases to support this contention.  See, e.g., Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Longino v. Crosswhite, 183 S.W.3d 913 (Tex. App.—Texarkana 2006, no pet.); Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241 (Tex. App.—Corpus Christ 2005, no pet.); Doades v. Syed, 94 S.W.3d 664 (Tex. App.—San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718 (Tex. App.—Houston [14th Dist.] 2001, no pet.).  These cases, however, are factually distinguishable from the present case.[9] 

In Longino, the expert failed to differentiate between the conduct of a treating emergency room physician and a consulting pediatrician, and provided no specific information with regard to how the pediatrician breached the standard of care.  Longino, 183 S.W.3d at 917.  The court of appeals stated that “in the absence of specific information concerning [the pediatrician’s] conduct and only conclusory statements concerning causation, the trial court abused its discretion by finding that the expert report constituted a good-faith effort.”  Id. at 918.

In Taylor, the plaintiff filed suit against several defendants, including a hospital, a doctors’ association, an emergency room physician, and a cardiologist, alleging that her husband’s death was due to the defendants’ negligence in failing to manage and timely and accurately diagnose his cardiac condition and in failing to perform tests necessary to diagnose and recognize his condition.  Taylor, 169 S.W.3d at 242.  The expert in that case failed to articulate a specific standard of care for each defendant.  See id. at 243–44.  He also failed to identify what each individual defendant should have done to meet the standard of care and failed to do.  See id.  The court of appeals determined that the trial court did not abuse its discretion when it found the report insufficient and it affirmed the trial court’s dismissal of the suit.

The claims in Rittmer involved two separate surgical procedures performed by two different defendants—an oncologist performing a mastectomy and a plastic surgeon performing reconstructive surgery.  Rittmer, 65 S.W.3d at 720.  The expert report in Rittmer failed to articulate a specific standard of care applicable to each defendant, with respect to the performance of his particular surgical procedure and failed to causally link the conduct of each defendant to the plaintiff’s injuries. Like in Taylor, the court of appeals in that case determined that the trial court did not abuse its discretion when it found the report insufficient and it affirmed the trial court’s dismissal of the suit.  Id. at 722.  

In Doades, the expert report combined the standard of care, breach, and causation into a general assertion that that treating physician and nurse “[failed] to properly monitor Doades and . . . [failed] to timely identify and properly treat [his] condition,” a statement the court of appeals deemed conclusory.  Doades, 94 S.W.3d 664, 668, 671–72.  The court of appeals in that case determined that the report did not constitute a good faith effort to comply with the statutory requirements because it failed to set forth the standard of care for each of the defendant and contained mere conclusions regarding breach and causation.  Id.  Likewise, in Gray, this Court held that the trial court could have found the identical standards of care articulated for both the surgeon and the nurses treating the plaintiff as generic statements, which reasonably could be deemed conclusory and affirmed the trial court’s dismissal for failure to comply with section 74.351.  189 S.W.3d at 859.   

In the present case, Dr. Verta is not attempting to state a collective standard of care applicable to members of two or more different professions, as was the case in both Gray and Doades, nor is he attempting to state a collective standard of care applicable to physicians with different specializations, as was the case in Longino, Rittmer, and Taylor.  Here, Dr. Verta’s report comments on the failure of a uniform duty owed by two vascular surgeons to the same patient with respect to a single surgical procedure—to identify the ureter and not clip it.  And, also unlike these cases, Dr. Verta specifically identifies each defendant’s negligent actions, and discusses their failures according to the standard of care owed to Engh.  Furthermore, Dr. Verta’s report does not contain the type of overly broad, sweeping statements found to be conclusory in both Gray and Doades. 

Not only are the cases relied upon by Drs. Reardon and Kougias factually distinguishable, but the circumstances of this case are more closely aligned with this Court’s recent opinion in Rittger v. Danos, which Engh cited to during oral argument.  No. 01-08-00588-CV, 2009 WL 1688099 (Tex. App.—Houston [1st Dist.] June 18, 2009, no pet.).  In that case, Dr. Rittger alleged that the plaintiff’s expert report was insufficient because it collectively referred to him (an emergency room physician) and another defendant (an obstetrician) when discussing the applicable standard of care.  This Court determined that the report was sufficient as to Dr. Rittger with regard to standard of care and breach because it articulated a standard of care applicable to him and described how he breached that standard.

The doctors also challenge the accuracy of Dr. Verta’s opinions with respect to standard of care. Whether Dr. Verta’s opinions regarding the applicable standards of care are correct, however, is an issue for summary judgment, not a motion to dismiss under Chapter 74.  See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 199 n.2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Sanjar v. Turner, 252 S.W.3d, 460, 467 n.6 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (concluding that doctor’s arguments that he did not owe duty to patient as described in expert report was issue for summary judgment rather than motion to dismiss) and Wissa v. Voosen, 243 S.W.3d 165, 169–70 (Tex. App.—San Antonio 2007, pet. denied) (same)).

The doctors also contend that there is no factual basis for Dr. Verta’s opinions regarding either standard of care or breach.  According to Drs. Kougias and Reardon, Dr. Verta’s opinions are based upon an unsubstantiated assumption that Engh’s ureter was actually clipped during the femorocaval bypass procedure.  In his report, Dr. Verta cites to numerous places in the Engh’s medical records which clearly indicate that Engh’s ureter was clipped.  Specifically, Dr. Verta states, in pertinent part that “[t]he medical records are replete with evidence that the ureter was clipped.”  Dr. Verta cites, among other things, a report by Dr. Soltes in which he stated that an examination of Engh in May 2006 revealed “hydronephrosis and hydroureter with occlusion of the ureter at the L4 level secondary to a surgical clip” and an operative report detailing Dr. Ho’s unsuccessful attempt to insert a stent through Engh’s right ureter on May 24, 2006, which, according to Dr. Verta, “is concrete evidence that a surgical clip had been placed on Mr. Engh’s ureter prior to 5/24/2006.”  Dr. Verta also states that in his professional opinion, the ureter was clipped during the March 23, 2006 femorocaval bypass performed by Drs. Reardon and Kougias because “[t]his is the only operation that would had led surgeons to encounter Mr. Engh’s ureter and to clip it.”  Thus, there is a factual basis for Dr. Verta’s claim that Engh’s ureter was clipped during the procedure.  Which doctor actually clipped the ureter, however, is of little consequence at this stage, because Engh’s negligence claim is premised upon the fact that the ureter was clipped and that both doctors would be negligent either through their actions (clipping the ureter) or inactions (failing to discover the clipped ureter and unclip it prior to closing the incision).

Dr. Reardon also contends that Dr. Verta’s opinion regarding the standard of care applicable to him is also deficient because it is based upon a theory of vicarious liability that has been expressly rejected by Texas courts and was not pled in Engh’s amended petition—the “captain of the ship” doctrine.  Dr. Reardon’s arguments, however, mischaracterize both Dr. Verta’s report and Engh’s allegations.  Neither Engh nor Dr. Verta is alleging that Dr. Reardon is liable for any negligent acts committed by Dr. Kougias in the operating room by virtue of the fact that Dr. Reardon was the lead surgeon.  On the contrary, the claims against Dr. Reardon are based upon alleged negligent acts or omissions committed by Dr. Reardon himself. Specifically, Engh asserts in his petition that Dr. Reardon was negligent in allowing the ureter to be clipped during the procedure and in failing to remove the clip prior to closing the surgical incision.  Dr. Verta’s report, which supports Engh’s cause of action for negligence, offers two possible theories of negligence, based upon allegations of both action and inaction on Dr. Reardon’s part.  Whether Dr. Verta is correct in holding Dr. Reardon to such standards of care, however, is an issue for summary judgment, not a motion to dismiss under Chapter 74.  See Shepherd-Sherman, 296 S.W.3d at 199 n.2.

Under these circumstances, we conclude that the trial court would have acted arbitrarily or in an unreasonable manner if it had concluded that Dr. Verta’s report was insufficient with regard to standard of care or breach, and therefore, the trial court would have abused its discretion if it had dismissed Engh’s claims on either basis.  See Gutierrez, 111 S.W.3d at 62. The dismissal of Engh’s claims cannot be affirmed on either of these grounds.

IV. Causation

Both Dr. Reardon and Dr. Kougias challenge the sufficiency of Dr. Verta’s report with regard to the issue of causation.  Specifically, Dr. Kougias alleges that Dr. Verta’s opinions regarding causation are conclusory and speculative and not supported by any factual basis.  Dr. Kougias contends that Dr. Verta’s opinions with regard to the issue of causation are based upon the unsupported assumptions that Engh’s ureter was clipped during the surgery, and that the clipping of the ureter caused Engh’s injuries.  Dr. Kougias also contends that Dr. Verta does not identify a specific breach of the applicable standard of care by Dr. Kougias that caused Engh’s injuries (rather than Dr. Kougias and Dr. Reardon collectively).

Dr. Reardon alleges that Dr. Verta’s report fails to provide a fair summary of how he caused Engh’s injuries.  According to Dr. Reardon, there is an analytical gap between the facts alleged in Dr. Verta’s report and Dr. Verta’s conclusions with regard to the issue of causation.  Dr. Reardon further alleges that Dr. Verta’s report does not provide the trial court with a basis for concluding that Engh’s claims against him have merit.

As discussed in the previous section, Dr. Verta’s opinions with regard to standard of care and breach are based upon facts, not mere speculation, because the medical records in this case provide a factual basis for Dr. Verta’s claim that Engh’s ureter was clipped during the femorocaval bypass procedure performed by Drs. Reardon and Kougias.  Dr. Verta also identifies in his report what each doctor did or failed to do and what they should have done in order to comply with the applicable standards of care. According to Dr. Verta, both doctors are responsible for either the clipping of the ureter or failing to unclip it prior to closing the surgical incision, and it was this conduct that set a chain of events in motion that ultimately caused the loss of Engh’s kidney.  This is sufficient under section 74.351.  See Patel v. Williams, 237 S.W.3d 901, 905–06 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently set forth causation when it presented chain of events beginning with contraindicated prescription and ending with patient’s death).

Nevertheless, Dr. Reardon contends that the trial court would not have abused its discretion if it had found that the report was insufficient as to causation because the facts in this case provided ample support for the trial court to find that it was the action of another party—not Dr. Reardon—that was the substantial factor in causing Engh’s injury, citing IHS Cedars Treatment Center v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).  IHS Cedars Treatment Center, however, does not stand for such a proposition.  In that case, the Supreme Court affirmed the trial court’s granting of summary judgment in favor of certain health care defendants because the evidence failed to show a causal connection between each defendant’s conduct and the plaintiff’s injuries.  Furthermore, IHS Cedars Treatment Center, which involved a summary judgment proceeding, not a section 74.351 motion to dismiss, does not stand for the proposition that a section 74.351 expert report must exclude every other possible cause of the plaintiff’s injury in order to comprise a “good-faith effort” to comply with the statute.  See Palacios, 46 S.W.3d at 878, 880 (stating report need not marshal all of plaintiff’s proof in order to constitute “good-faith effort”).  This is particularly true in light of the fact that a plaintiff—at any stage in a health care liability suit—is not required to establish causation in terms of medical certainty, nor is he or she required to exclude every other reasonable hypothesis.  Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing King v. Flamm, 442 S.W.2d 679, 682 (Tex. 1969)).  

Under these circumstances, we conclude that the trial court would have acted arbitrarily or in an unreasonable manner if it had concluded that Dr. Verta’s report was insufficient with regard to causation, and therefore, the trial court would have abused its discretion if it had dismissed Engh’s claims on this basis.  See Gutierrez, 111 S.W.3d at 62.  The dismissal of Engh’s claims cannot be affirmed on this ground.

Conclusion

Having determined that the trial court would have abused its discretion had it found that Dr. Verta’s report was insufficient with respect to standard of care, breach, or causation, or that Dr. Verta was unqualified to opine on the issue of causation, we conclude that the trial court abused its discretion by granting Dr. Kougias’s and Dr. Reardon’s motions to dismiss.  We grant appellant’s first issue.

Having determined that the trial court abused its discretion by granting Dr. Kougias’s and Dr. Reardon’s motions to dismiss, we need not address appellant’s remaining issues.  We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

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[1]           See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2010).

[2]           The ureter is a long, narrow duct that transports urine from a kidney to the urinary bladder.

[3]           Hydronephrosis is distention (dilation) of the kidney with urine, caused by backward pressure on the kidney when the flow of urine is obstructed.

[4]           Although Methodist Hospital, Dr. Claudia Jordan, and Medical Specialists of Texarkana were also named as defendants in the suit, they are not a party to this appeal. Engh dropped his claims against Methodist Hospital.  His claims against Dr. Jordan and Medical Specialists of Texarkana were severed, given a new cause number, and remain pending.

[5]           The trial court denied Engh’s motion for reconsideration on November 11, 2008.

[6]           Although the hearing was held on December 22, 2008, the trial court’s order awarding attorney’s fees and costs was inadvertently dated December 19, 2008.  The date of the order, however, is immaterial for purposes of this appeal.  As a matter of convenience, we will use the same date as the trial court.

[7]           Neither Dr. Reardon nor Dr. Kougias challenge Dr. Verta’s qualifications with regard to either standard of care or breach.

[8]           Dr. Verta also states that a “uretral  obstruction” is “not a normal or expected consequent [sic] of femorocaval bypass.” Dr. Verta goes on to say that Dr. Reardon’s and Dr. Kougias’s actions were “so far a field from [the applicable] standard of care, no subsequent treater would have examined Mr. Engh for the possibility of a surgical clip being the cause of his ureter obstruction.”

[9]           The following memorandum opinions cited by Dr. Reardon and/or Dr. Kougias in support of this proposition are also distinguishable: Haddad v. Marroquin, Nos. 13-07-014-CV, 13-07-109-CV, 2007 WL 2429183, at *4 (Tex. App.—Corpus Christi Aug. 29, 2007, pet. denied) (mem. op.) (concluding that in suit alleging sponge left in patient after surgery, report that failed to set forth standard of care for either physician or hospital with respect to use and count of sponges was insufficient); Kuykendall v. Dragun, M.D., No. 11-05-00230-CV, 2006 WL 728068, at *3 (Tex. App.—Eastland Mar. 23, 2006, pet. denied) (mem. op.) (concluding that report that failed to differentiate between conduct of first surgeon who perforated patient’s bladder during surgery and second surgeon who subsequently repaired perforation, but was not present for initial surgical procedure, was insufficient); Boston v. Baylor College of Med., No. 01-14-00230-CV, 2005 WL 1365505, at *3 (Tex. App.—Houston [1st Dist.] June 9, 2005, pet. denied) (concluding that report that stated single standard of care for 10 physicians, without regard to each physician’s specialization or role in patient’s medical treatment was insufficient); Talmore v. Baptist Hosps. of Se. Tex., No. 09-06-024-CV, 2006 WL 2883124, at *3 (Tex. App.—Beaumont Oct. 12, 2006, no pet.) (mem. op.) (concluding that report that set forth one standard of care for orthopedic surgeon, nephrologist, and infectious disease specialist who treated plaintiff for different medical conditions was insufficient); Norris v. Tenet Houston Health Sys., No. 14-04-01029-CV, 2006 WL 1459958, at *3–4 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.)  (concluding that report that failed to identify defendant nurses by name or identify how each nurse breached standard of care and how breach caused injury was insufficient).