Madhavan Pisharodi, M.D., P.A., D/B/A Pisharodi Clinic v. Mario Saldana, Nancy Lama, and Jesus Lamas

NUMBER 13-09-00552-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MADAHAVAN PISHARODI, M.D.,
P.A., D/B/A PISHARODI CLINIC, Appellant,
v.
MARIO SALDANA, NANCY LAMAS,
AND JESUS LAMAS, Appellees.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Vela1
Memorandum Opinion by Chief Justice Valdez
1
The Honorable Linda Reyna Yañez, former Justice of this Court, did not participate in this
opinion because her term of office expired on December 31, 2010; therefore, this case will be decided by
the two remaining justices on the panel. See TEX. R. APP. P. 41.1(b) (“After argument, if for any reason a
member of the panel cannot participate in deciding a case, the case may be decided by the two
remaining justices.”).
In this interlocutory appeal, appellant, Madhaven Pisharodi, M.D., P.A. d/b/a
Pisharodi Clinic, appeals from the trial court‟s denial of his motion challenging the expert
report and requesting dismissal of a health care liability lawsuit brought by appellees,
Mario Saldaña, Nancy Lamas, and Jesus Lamas. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(9) (Vernon 2008). By two issues, Dr. Pisharodi contends that the
expert report relied upon facts that do not exist and never identified the proper standard
of care.2 We affirm.
I. BACKGROUND
Dr. Pisharodi, a neurosurgeon, gave Micaela Lamas an epidural steroid injection
in her lower back. Subsequently, Lamas died after suffering cardiac arrest in Dr.
Pisharodi‟s office. Appellees, Lamas‟s children, filed suit against Dr. Pisharodi claiming
that his negligent acts caused Lamas‟s death. In his answer to appellees‟ petition, Dr.
Pisharodi denied any negligence and claimed that Lamas‟s death was caused by the
intervening acts of Alejandro Betancourt, M.D.
Appellees filed a medical expert report and a supplemental expert report
generated by Stephanie S. Jones, M.D., an anesthesiologist. Dr. Jones stated that she
reviewed Lamas‟s autopsy report, Dr. Pisharodi‟s office notes, the emergency medical
services (“EMS”) ambulance activity report, and medical records from South Texas
Rehab Hospital, Valley Regional Medical Center, and Valley Baptist Hospital.
2
In his brief, Pisharodi generally challenges appellees‟ expert report because he claims that it
“failed to establish that [the patient‟s] death was caused by any conduct of [Pisharodi]” and it did not
include the “causal relationship to the death of the patient.” However, Pisharodi has not provided briefing
on the issue of causation; therefore, to the extent that Pisharodi attempts to challenge the expert report
on the basis that it did not state causation, we are unable to address his issue. See TEX. R. APP. P.
38.1(i).
2
In her expert report, Dr. Jones set out that Lamas had been diagnosed with a
large L1-2 lumbar disc herniation. According to Dr. Jones, Dr. Pisharodi performed two
spinal injections on Lamas. The first time Dr. Pisharodi administered the morphine into
Lamas‟s spine, she did not have an adverse reaction. According to Dr. Jones, Dr.
Pisharodi had given Lamas an epidural steroid injection “without fluoroscopy” using a
local anesthetic.3 Dr. Jones stated that Dr. Pisharodi performed the injection in his
office “and documented that he injected 5 cc of 0.5% bupivacaine into the neuroaxial
region with 4 mg of (presumably) epidural morphine.” Dr. Jones noted due to the
“amount of local anesthetic and neuroaxial opiates” injected in Lamas‟s spine, it was
outside of the standard of care to perform the procedure in Dr. Pisharodi‟s office. Dr.
Jones stated that after the first spinal injection did not reduce Lamas‟s pain, Lamas had
“spine surgery” but eventually suffered increasing back pain. Dr. Jones stated:
Dr. Pisharodi felt that [Lamas‟s] back pain was due to muscle spasms, but
in the same sentence also reported that he felt an epidural “pain block”
was the cure. In [Dr. Pisharodi‟s] request for such an injection, he
reported that he expected “immediate relief” because he was injecting an
“anti-inflammatory” (Depo-Medrol typically takes more than two days to
take effect) and “pain medications.” Unfortunately, he was given
authorization to do this procedure and this was done on October 29,
2007.[4] In the procedure note, he reported that he injected “4 cc of
Marcaine and 2 cc of morphine[.]” There is no mention of the strength of
the Marcaine or the milligram dosage of the Duramorph. The patient was
taken to the recovery area at approximately 10:20 in the morning and
reported as being stable. Her vital signs reflected this. At 11:05, she
[Lamas] became nauseated, restless and diaphoretic with a recorded
blood pressure of 140/88, respirations 22, oxygen saturation 96%. EMS
was called at 11:05 and by 11:15 [Lamas] had collapsed without a pulse
and CPR was reportedly started. The last recorded vital signs per the
3
Fluoroscopy is “[a]n x-ray procedure that makes it possible to see internal organs in motion.”
Definition of fluoroscopy, MedicineNet.com, available at
http://www.medterms.com/script/main/art.asp?articlekey=3488 (last visited January 11, 2011).
4
There is nothing in the record stating who gave Dr. Pisharodi authorization to perform the
procedure on October 29, 2007.
3
person recording them was 135/90, pulse 90, respirations 24. EMS
arrived somewhere around 11:20 in the morning and they documented
pupils fixed and un-reactive meiosis due to opiate overdose as well as
what they felt to be inadequate bag valve mask ventilation (they were not
able to auscultate breath sounds on the patient while the mask ventilation
was being done). Fortunately, they intubated the patient and on the way
to the hospital, they were able to obtain a cardiac rhythm. [Lamas] was
also given atropine and epinephrine. [Lamas] was taken to Valley
Regional Medical Center and the admitting diagnosis was anaphylaxis.
She developed seizures felt secondary to anoxic brain injury. Dr.
Pisharodi was dismissed from care of the patient by the family and her
care was taken over by [Dr. Betancourt].
Dr. Jones noted that after several days, Lamas‟s family allowed the removal of the
ventilator, and she died.
Based on the autopsy report, the timing of the spinal injection, Lamas‟s
symptoms, and the EMS‟s report, Dr. Jones disagreed with the diagnosis of anaphylaxis
due to morphine and believed that Lamas suffered an overdose. Dr. Jones opined that
“[a]t minimum” fluoroscopic guidance was required for this procedure, and without
fluoroscopy, Dr. Pisharodi could not verify that the anesthetic and morphine were not
injected into Lamas‟s spinal fluid. Dr. Jones stated that Dr. Pisharodi was negligent and
went outside the standard of care when he performed the procedure with “the amounts
of local anesthetic and neur[o]axial opiates that he was giving in his office.” Dr. Jones
explained that Dr. Pisharodi should have put Lamas on an IV in order to provide
adequate resuscitation, if necessary. Dr. Jones stated that she believed that the
combination of the medication Dr. Pisharodi injected into the spine, the lack of a
fluoroscopy to verify placement of such a large dose of local anesthetic and morphine,
and an inability to provide rapid resuscitation led to Lamas‟s death. Dr. Jones stated:
At MINIMUM these guidelines should have also been applied in the setting
in which he placed [Lamas] in accordance with the standard of care.
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#1) Monitoring for respiratory depression every 1hr for 12 hrs and
then every 2hrs for 12hrs.
#2) IV access during the time of monitoring to allow for reversal
agent administration if necessary.
#3) Administration of reversal agent (eg Narcan) to all patients
experiencing significant respiratory depression after spinal opioid
administration.
In her supplemental expert report, Dr. Jones opined that anaphylaxis is not an
“appropriate” diagnosis in this case because of the state of Lamas‟s pupils as
documented by EMS personnel. According to Dr. Jones, the EMS report documented
that Lamas‟s pupils were “fixed and meiotic (i.e., pinpoint in size) and not dilated as you
would expect in cardiopulmonary arrest from an allergic reaction. Opiates cause very
small pupils and it is something classically looked for in opiate overdose.” Dr. Jones
further stated that Dr. Pisharodi violated the accepted guidelines for administering spinal
morphine and that he should not have performed the procedure in his office.
Dr. Pisharodi objected to appellees‟ expert report and asked the trial court to
strike it and dismiss appellees‟ lawsuit. The trial court denied Dr. Pisharodi‟s request.
This interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.04(a)(9)
(Vernon 2008).
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court‟s ruling on a motion to dismiss a health care liability claim
for an abuse of discretion. Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex.
App.–Corpus Christi 2006, no pet.) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48,
52 (Tex. 2002) (per curiam)). A trial court abuses its discretion when it acts “„without
reference to any guiding rules or principles‟ or, stated another way, when the trial court
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acts in an arbitrary and unreasonable manner.” City of San Benito v. Rio Grande Valley
Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 242 (Tex. 1985)). We may not substitute our own judgment for
that of the trial court when reviewing matters committed to the trial court's discretion.
Bowie, 79 S.W.3d at 52. A trial court does not abuse its discretion merely because it
decides a discretionary matter differently than the appellate court would in a similar
circumstance. Downer, 701 S.W.2d at 242.
Section 74.351(r)(6) requires that an expert report provide a fair summary of the
expert‟s opinions regarding applicable standards of care, the manner in which the care
rendered by the defendant failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6) (Vernon 2005); Bowie, 79 S.W.3d at 52; Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). An expert report
constitutes a good faith effort if it: (1) informs the defendant of the specific conduct the
plaintiff has called into question; and (2) provides a basis for the trial court to conclude
that the claims have merit. Palacios, 46 S.W.3d at 879. “The report need not marshal
all the plaintiff‟s proof, but it must include the expert‟s opinion on each of the three
elements that [section 74.351(r)(6)] identifies: standard of care, breach, and causal
relationship.” Bowie, 79 S.W.3d at 52. A report merely stating the expert‟s conclusions
about the standard of care, breach, and causation does not represent a good faith
effort. Palacios, 46 S.W.3d at 879. “„Rather, the expert must explain the basis of his
statements to link his conclusions to the facts.‟” Bowie, 79 S.W.3d at 52 (quoting Earle
v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).
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If, after a hearing, it appears to the trial court that the expert report does not
represent an objective good faith effort to comply with subsection 74.351(r)(6), it shall
grant a motion challenging the adequacy of the expert report. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(l); Bowie, 79 S.W.3d at 51-52. “The 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.” Bowie, 79 S.W.3d at 52. Furthermore,
“a plaintiff need not present evidence in the report as if it were actually litigating the
merits. 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.” Palacios, 46 S.W.3d at 879.
III. RELIABILITY OF DR. JONES’S EXPERT REPORT
By his first issue, Dr. Pisharodi contends that Dr. Jones‟s expert report is
inadequate because she relied “upon facts that do not exist.” Specifically, Dr. Pisharodi
argues that a defendant in a health care liability lawsuit “should be permitted to
demonstrate to a trial court that the facts or data upon which a [section] 74.351 report is
based are not true and do not exist in order to challenge and strike a report” and that
the trial court in this case “should have reviewed the records provided.” Dr. Pisharodi
urges this Court to review the medical records that Dr. Jones relied on and conclude
that the report is insufficient.
We decline to review those medical records. When determining whether a good
faith effort has been made, the trial court is limited to the four corners of the report, and
it cannot consider extrinsic evidence. Palacios, 46 S.W.3d at 878 (“Because the statute
focuses on what the report discusses, the only information relevant to the inquiry [of
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whether the report represents a good faith effort] is within the four corners of the
document.”); see also Doctors Hosp. v. Hernandez, No. 01-10-00270-CV, 2010 Tex.
App. LEXIS 8453, at **19-21 (Tex. App.–Houston [1st Dist.] Oct. 21, 2010, no pet.)
(mem. op.) (rejecting the appellant‟s plea for the appellate court to go outside the four
corners of the expert report and review the medical records examined by the expert
because the expert report allegedly contradicted the findings in the medical records).
Therefore, we must look no further than the four corners of the expert report in order to
determine whether Dr. Jones made an objective good faith effort to comply with section
74.351(r)(6). See Palacios, 46 S.W.3d at 878; see also Hernandez, 2010 Tex. App.
LEXIS 8453, at **19-21. Furthermore, the medical records that Dr. Pisharodi urges us
to review are not included in the appellate record. Although he has attached these
records as appendices to his brief, we cannot consider documents attached to an
appellate brief that do not appear in the record. See Cantu v. Horany, 195 S.W.3d 867,
870 (Tex. App.–Dallas 2006, no pet.) (“An appellate court cannot consider documents
cited in a brief and attached as appendices if they are not formally included in the record
on appeal.”); Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.–Houston [1st Dist.] 1999,
no pet.). We overrule Dr. Pisharodi‟s first issue.
IV. STANDARD OF CARE
By his second issue, Dr. Pisharodi contends that the expert report failed to
identify the proper standard of care.
In her expert report, Dr. Jones stated that it was outside the standard of care for
Dr. Pisharodi to perform the procedure in his office using the amounts of local
anesthetic and neuroaxial opiates that he gave Lamas. Dr. Jones stated that “[a]t
8
minimum, anybody who is getting this type of spinal injection should have not only
fluoroscopic guidance and contrast injected prior to the medication, but there should be
an IV placed regardless of whether IV sedation is used so that adequate resuscitation
could be provided if necessary.” After reviewing Lamas‟s medical records, Dr. Jones
documented that Dr. Pisharodi did not use fluoroscopic guidance and did not place an
IV on Lamas. Dr. Jones concluded that Dr. Pisharodi should have performed the
procedure in accordance with “the standard of care per the American Society of
Anesthesiology guidelines.” She then listed the guidelines that she believed “should
have been applied” by Dr. Pisharodi in accordance with the standard of care: (1) there
would have been monitoring for respiratory depression for a specified time; (2) IV
access would have been established in order to administer a reversal agent if needed;
and (3) the reversal agent would have been administered to any patient experiencing
significant respiratory depression after spinal opioid administration. Finally, in her
supplemental expert report, Dr. Jones opined that Lamas‟s death was caused by an
overdose of spinal morphine causing cardiopulmonary arrest that was not properly
treated, which led to anoxic brain injury.
An expert report must “set out what care was expected, but not given.” Palacios,
46 S.W.3d at 880. In this case, Dr. Jones‟s report informed Dr. Pisharodi that the
proper standard of care when performing a spinal injection of local anesthetic and
opiates required him to utilize fluoroscopic guidance, provide an IV for Lamas, and
adequately treat Lamas‟s adverse reaction to the medication. “[M]agical words” are not
needed to provide a fair summary of the standard of care. See Bowie, 79 S.W.3d at 53.
Moreover, in determining whether the expert complied with the statute, we consider the
9
“substance of the opinions, not the technical words used.” Moore v. Sutherland, 107
S.W.3d 786, 790 (Tex. App.–Texarkana 2003, pet. denied). Here, the expert report
provided the substance of Dr. Jones‟s opinions and gave a basis for the trial court to
conclude that the appellees‟ claims have merit. See Palacios, 46 S.W.3d at 879.
Therefore, we conclude that the trial court did not abuse its discretion by denying Dr.
Pisharodi‟s motion to strike appellees‟ expert report. Valley Baptist Med. Ctr., 198
S.W.3d at 815. We overrule Dr. Pisharodi‟s second issue.
V. CONCLUSION
We affirm the trial court‟s judgment.
________________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
27th day of January, 2011.
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