Michael J. Reardon, M.D. v. Royce Nelson

Reversed and Remanded and Memorandum Opinion filed September 30, 2008

Reversed and Remanded and Memorandum Opinion filed September 30, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00263-CV

____________

MICHAEL J. REARDON, M.D., Appellant

V.

ROYCE NELSON, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2006-58453

M E M O R A N D U M  O P I N I O N

Appellant Michael Reardon, M.D., files this interlocutory appeal from the trial court=s denial of his motion to dismiss a medical malpractice lawsuit brought by appellee Royce Nelson.  In four issues, appellant contends that neither of appellee=s two expert reports is sufficient to avoid mandatory dismissal under section 74.351 of the Texas Civil Practice and Remedies Code.  We reverse.

On September 14, 2004, Royce Nelson, an 80-year-old gentleman, sought treatment for chest pain and other symptoms of coronary-artery blockage.  After performing a coronary angiography, Nelson=s doctor recommended that he have coronary artery bypass surgery on his left anterior descending (ALAD@) coronary artery and  his circumflex artery.  Dr. Reardon, a cardiovascular surgeon, performed double coronary artery bypass surgery on Nelson on or about September 16, 2004.  Nelson continued to experience pain and shortness of breath after his discharge from the double coronary bypass surgery, and was hospitalized at least once in late September and again in October, 2004.  During a catheterization procedure in October, the attending physician discovered bypass grafts to the LAD and ramus arteries as well as a lesion and narrowing of the circumflex artery.  In order to restore blood flow through the circumflex artery, the physician successfully inserted a stent.

 Claiming that Dr. Reardon operated on the LAD and ramus arteries rather than on the LAD and circumflex arteries, Nelson filed this lawsuit.  Nelson seeks damages for physical pain and mental anguish, physical impairment, and past and future medical expenses for treating the circumflex artery that Dr. Reardon should originally have treated. 

Nelson=s claim is a Ahealth care liability claim@ governed by Chapter 74 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code '' 74.001B.507 (Vernon 2005 & Supp. 2007).  Under Chapter 74, within 120 days from filing suit, a claimant is required to serve on each physician or health care provider at least one expert report in support of the claim(s).  Id. ' 74.351(a).  If the claimant timely serves the report, the physician or health care provider may nonetheless challenge the report=s adequacy by filing a motion to dismiss.  See id.  The trial court shall grant the motion Aonly if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).@  Id. ' 74.351(l).

Subsection (r)(6) defines an expert report as:

a written report by an expert that provides a fair summary of the expert=s opinions ... regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.    

Id. ' 74.351(r)(6). Thus, the expert report must include the expert=s opinions on the standard of care, breach, and causation.  See Am.  Transitional Care Ctrs. of Tex., Inc.  v. Palacios, 46 S.W.3d 873, 878B79 (Tex.  2001). In detailing these elements, if the report is to constitute a good faith effort, the report must provide enough information to fulfill two purposes.  Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.CHouston [1st Dist.] 2006, no pet.).  The report must both inform the defendant of the specific conduct the claimant has called into question and provide a basis for the trial court to conclude the claims have merit.  Id. (citing Palacios, 46 S.W.3d at 879).  In the report, the expert must state more than his conclusions; the expert must explain the basis for his statements and link his conclusions to the facts.  Id. (citing Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)).  Finally, in assessing the report=s sufficiency, the trial court must refrain from drawing inferences and must instead rely only on the information contained within the report itself.  Id. (citing Palacios, 46 S.W.3d at 879).

Inherent in the definition of an expert report is the requirement that its author actually be an expert.  See Clark v. HCA, Inc., 210 S.W.3d 1, 6B7 (Tex. App.CEl Paso 2005, no pet.) (citing several intermediate court opinions and noting that to comply with statute, expert report must establish on its face that the purported expert is qualified).  With respect to opinions regarding the standard of care applicable to a physician and whether the physician breached such standard, a person is an expert if his report and curriculum vitae demonstrate that (1) he is a physician who (2) is practicing medicine at the time his testimony is given or the claim arose; (3) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (4) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.  See Tex. Civ. Prac. & Rem. Code '' 74.351(r)(5)(A), 74.401(a).         To comply with these statutory requirements, Nelson was required to serve on Dr. Reardon one or more reports, from qualified experts, setting forth the applicable standard of care, the manner in which Dr. Reardon failed to meet the standard of care, and the causal relationship between that failure and Nelson=s claimed injury and damages.  See id. ' 74.351(a), (r)(6).  Nelson served two reports on Dr. Reardon on January 11, 2007, one from Dr. John Seaworth and the other from Dr. Ihsan Shanti.

Dr. Reardon filed a motion to dismiss Nelson=s lawsuit, contending that the expert reports, while timely, failed to satisfy the statutory standards.  See id. ' 74.351(b), (c). Specifically, Dr. Reardon argued that each of Nelson=s purported experts is not qualified to render an opinion on the standard of care for a cardiovascular surgeon in the performance of a double cardiac bypass operation.  He further alleged that neither expert sufficiently identified the applicable standard of care and how Dr. Reardon allegedly breached such standard.  The trial court denied Dr. Reardon=s motion to dismiss, and Dr. Reardon now seeks interlocutory review of such denial under Section 51.014(a)(9) of the Texas Civil Practice and Remedies Code.  See id. ' 51.014(a)(9) (Vernon 2008). 

We review rulings on a section 74.351 motion to dismiss under an abuse of discretion standard.  Gray, 189 S.W.3d at 858 (citing Palacios, 46 S.W.3d at 877); Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.  Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999) (per curiam).  When reviewing matters committed to the trial court=s discretion, a court of appeals may not substitute its own judgment for that of the trial court.  See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989).

Are Nelson=s proffered experts qualified to render opinions in this action?

In order to qualify as an expert in a particular case, a physician need not be a practitioner in the same specialty as the defendant.  Broders v. Heise, 924 S.W.2d 148, 153B54 (Tex. 1996); Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  The test is whether the served report and curriculum vitae establish the witness=s 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.  Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003).  In assessing whether a witness is qualified on the basis of training or experience to render expert opinions, a trial court shall consider whether the proffered witness (1) is board certified or has other substantial training or experience Ain an area of medical practice relevant to the claim,@ and (2) is actively practicing medicine Ain rendering medical care services relevant to the claim.@  Tex. Civ. Prac. & Rem. Code ' 74.401(c).

Dr. Reardon is a cardiac surgeon who performed double cardiac bypass surgery on Nelson, but, in this lawsuit, Nelson does not complain of Dr. Reardon=s surgical technique.  Indeed, in his response to Dr. Reardon=s motion to dismiss in the trial court, Nelson admitted, AThere was nothing wrong with the [bypass] graft technique.@  Nelson=s complaint is that Dr. Reardon performed the admittedly successful bypass on a healthy artery rather than the artery needing the bypass.  It is in this context that we address Dr. Reardon=s assertion that neither Dr. Shanti nor Dr. Seaworth is qualified to render an expert report under Section 74.351.

Dr. Shanti

Dr. Shanti is a board-certified anesthesiologist.  He is a professor of anesthesiology at Baylor College of Medicine, and his curriculum vitae indicates that he operates a pain-management clinic in Houston.  In his report, Dr. Shanti claims to be qualified to render opinions on the standard of care applicable to this case because he has assisted in Athe performing of numerous cardiac bypass procedures through the providing of anesthesia to such patients and the monitoring of such patients during the entire procedure.@  He further states:

I am also qualified to review the medical records which have been authored by Dr. Reardon, Dr. Guttin, Dr. Leachman and Dr. Robben, as well as the records from Methodist Hospital, based on my training in medical school, residency, internship and in my practice in providing anesthesia to surgical patients, including cardiothoracic surgical patients.  I am qualified based on my knowledge and training in basic anatomy, my residency in Anesthesiology and my teaching at Baylor College of Medicine to be able to identify when a bypass procedure, such as the one performed by Dr. Reardon, is performed on the wrong artery.

Anesthesiologists are routinely involved in the planning of the cardiac procedure conducted in preoperative care as well [as] caring for patients in the post operative area in the cardiovascular intensive care unit.  I have also assisted in numerous cases that are similar to Mr. Nelson in terms of the type of procedure done with a coronary condition similar to this patient.

I am also qualified to address the immediate damages associated with and resulting from such negligence.  As further described below, because Dr. Reardon performed a bypass on the wrong artery, it was obviously necessary [to] perform a second medical procedure in the form of a stint to the blocked artery at issue which would not have been performed if Dr. Reardon had performed the bypass to the correct artery as planned.

In addition anesthesiologists have contributed prominently to the development of the safety of Cardiac Surgery, including Coronary Bypass operations and open heart procedures.  The development of narcotic anesthesia, a technique that permitted cardiac operations even in those with poor myocardial function, as an example of the role of Anesthesia care in the development of cardiac surgery; others also include recent studies that defined the influences of anesthetic techniques or underlying myocardial ischemic on the morbidity and mortality associated with cardiac operations.  Anesthesiologist have continued to lead in the transfer of technology into the operating room; a recent example is the intra operative use of transesophageal echocardiography.

Neither the report nor Dr. Shanti=s curriculum vitae contains information to support Dr. Shanti=s claim that his education, experience, and training qualify him to render opinions as to the standard of care and breach thereof in this case.  Dr. Shanti=s participation as an anesthesiologist in Anumerous@ cardiac bypass proceduresCwhether Anumerous@ means ten or a hundredCdoes not necessarily qualify him to render opinions in all health care liability claims that may arise out of such procedures.  Cf. Broders, 924 S.W.2d at 152B54 (refusing to hold that every medical doctor is qualified to testify on all medical matters). 

In this case, Nelson claims that Dr. Reardon bypassed the wrong artery.  Nelson=s claim thus requires explanation of the standard of care related to a surgeon=s identification, whether before or during surgery, or both, of the actual vessel needing the bypass.  Nothing in Dr. Shanti=s report and curriculum vitae hints, much less establishes, that he is actively practicing medicine in rendering medical care services relevant to Nelson=s claim.^[1] Dr. Shanti=s statement that A[a]nesthesiologists are routinely involved in the planning of the cardiac procedure conducted in preoperative care@ is too general and conclusory to support a conclusion that Dr. Shanti is qualified to opine on the standard of care for recognition and identification of vessels to be bypassed in surgery.  Equally conclusory, and empty of informational support, is Dr. Shanti=s declaration, AI am qualified based on my knowledge and training in basic anatomy, my residency in Anesthesiology and my teaching at Baylor College of Medicine to be able to identify when a bypass procedure, such as the one performed by Dr. Reardon, is performed on the wrong artery.@

It is obvious from reading Dr. Shanti=s report that he believes he is qualified to tender opinions on the standard of care applicable to Dr. Reardon=s care of Nelson.  But, Dr. Shanti has not explained how his stated experience (in providing anesthesia to bypass patients during surgery and monitoring them after surgery; teaching anesthesiology and practicing pain management) qualifies him to address the standard of care for a cardiac surgeon (in identifying, before or during surgery,  coronary vessels that had been clinically identified as needing bypass).  Without such an explanation, there is no basis to support a conclusion that Dr. Shanti is qualified to author a report that could satisfy Nelson=s obligation under Section 74.351.  Thus, the trial court abused its discretion to the extent it relied on Dr. Shanti=s report in denying Dr. Reardon=s motion to dismiss.

Dr. Seaworth

Dr. Seaworth is a cardiologist, but not a surgeon, and, according to Dr. Reardon, is thus not qualified to opine on the standards of care applicable to a cardiac surgeon. We recognize that Dr. Reardon has surgical training and experience beyond that of Dr. Seaworth.  However, the difference is not material if Dr. Seaworth is shown to have skill, experience, training, or education regarding the specific issue before the court.  See, e.g., Blan, 7 S.W.3d at 746 (stating determination of expert=s qualification under Section 74.401(a) must focus Anot on the defendant doctor=s area of expertise, but on the condition involved in the claim@) (emphasis in original).

Dr. Seaworth is board certified in both Internal Medicine and Cardiology.  In his report, Dr. Seaworth makes the following statements:

$ I have over 25 years experience caring for patients before and after coronary artery bypass surgery.

$ I perform cardiac interventions and evaluate patients for consideration of angioplasty or coronary artery bypass surgery.

$ I have reviewed thousands of coronary angiograms with surgeons before and after bypass surgery to help determine which artery should be bypassed.

$ I have cared for thousands of patients after bypass surgery who need further catheterization and intervention for recurrent anginal symptoms after cardiac intervention or bypass surgery.

$ My current training, cardiology practice, and years of experience in dealing with patients who have similar problems qualify me to have expert opinions and judgements about the care of  Mr. Royce Nelson.

As noted above, Nelson claims that Dr. Reardon failed actually to bypass the particular artery that had been clinically determined to need the bypass.  Dr. Seaworth=s report sufficiently establishes, for purposes of Section 74.351, his knowledge and experience regarding identification of a surgical candidate=s arteries, by treating patients before and after bypass surgery and reviewing coronary angiograms with surgeons before bypass surgery.  In short, Dr. Seaworth=s report demonstrates that he is board certified and has substantial other experience Ain an area of medical practice relevant to the claim,@ and is actively practicing medicine Ain rendering medical care services relevant to the claim.@  See Tex. Civ. Prac. & Rem. Code ' 74.401(c). 

The trial court did not abuse its discretion in impliedly overruling Dr. Reardon=s objection to Dr. Seaworth=s qualification to render expert opinions concerning Nelson=s claim.  We now review Dr. Reardon=s assertion that even if Dr. Seaworth is qualified, his report is deficient and fails to satisfy Nelson=s obligations under Section 74.351.^[2]

Did the trial court abuse its discretion by impliedly finding that Dr. Seaworth=s report constitutes a good faith effort to comply with the statutory definition of an expert report?

Dr. Reardon claims that Dr. Seaworth=s opinions are conclusory and not supported by sufficient information regarding what the standard of care is for identification of coronary blood vessels that have been diagnosed as needing bypass surgery.  Similarly, Dr. Reardon criticizes the report for not specifying what Dr. Reardon should have done differently in order to meet the standard of care.

Dr. Seaworth=s report contains the following statements concerning the standard of care applicable to Dr. Reardon and Reardon=s alleged breach of that standard:

Prior to the bypass surgery, the cardiac catheterization worksheet of September 15 identified and displays the presence of a ramus branch.  Prior to and at the time of surgery it was the duty of Dr. Reardon, the surgeon, to identify the anatomy and to assure that the correct vessels are bypassed.  The surgical description dated September 16 does not show that any attempt to identify the ramus branch and then locate the marginal branch was made.  This failure to carefully identify the ramus branch, led to the error of sewing the vein graft into the wrong vessel.

[The s]tandard of care requires that the correct coronary vessel be bypassed at the time of coronary artery bypass surgery and that all possible obstruction be bypassed.  Placement of a graft in the wrong vessel puts the incorrectly bypassed vessel at risk of obstruction or closure and will require further invasive procedures to open the vessel that was not bypassed.  These additional procedures may include[:] cardiac catheterization, angioplasty with stenting, or even a repeat bypass procedure with significant risks and costs. Mr. Nelson has already required further invasive procedures, and has a high probability of requiring more in the future because of the error committed during surgery.

In summary, [the] standard of care at the time of the coronary artery bypass surgery was not met.  The wrong coronary artery was bypassed and critical obstruction of coronary blood flow was left untreated.  Restoration of blood flow to Mr. Royce Nelson=s heart will require other procedures.  These procedures are potentially dangerous and costly.  The patient may even need to have another open heart operation to correct the error.

On its face, Dr. Seaworth=s report appears to address Section 74.351's three required elements: standard of care, breach, and causation.  But, A[w]hether a defendant breached the standard of care due a patient cannot be determined without >specific information about what the defendant should have done differently.=@ Gray, 189 S.W.3d at 859 (quoting Palacios, 46 S.W.3d at 880); see also CHCA Mainland L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (Aa >fair summary= is something less than a full statement of the applicable standard of care and how it was breached, [but] even a fair summary must set out what care was expected but not given@).  And, as noted above, such information must be contained within the four corners of the report.  Palacios, 46 S.W.3d at 879.  We agree with Dr. Reardon that Dr. Seaworth=s report provides no specific factual information about what Reardon should have done differently so as not to bypass the wrong blood vessel.^[3]

When an expert=s report is conclusory and fails to put the defendant or the trial court on notice of the specific conduct complained of, the trial court has no discretion but to find that the report does not represent a good faith effort to comply with Chapter 74 of the Texas Civil Practice and Remedies Code. Palacios, 46 S.W.3d at 880; see also Clark, 210 S.W.3d at 11.  We appreciate Nelson=s comment that A[t]his is an obviously legitimate medical malpractice case,@ but we are constrained to apply Chapter 74 to all cases that fall within the definition of a Ahealth care liability claim.@  And, while one purpose of Section 74.351=s expert-report requirement is to allow the trial court to conclude that the claim has merit, an equally important purpose is to inform the defendant of the specific conduct called into question.  See Bowie, 79 S.W.3d at 53 (rejecting intermediate court=s singular reliance on report=s satisfaction of only one of the two purposes in determining that report met the good-faith effort test).  Nelson has failed to do so here, and the trial court abused its discretion in denying Dr. Reardon=s motion to dismiss the claim.

Conclusion

In the trial court, in response to Dr. Reardon=s motion to dismiss, Nelson argued that his expert reports satisfied the requirement of Section 74.351, but also requested an extension of time in order to cure any deficiency in the report(s).  We conclude that the trial court abused its discretion to the extent it found that (1) Dr. Shanti=s report and curriculum vitae establish his qualification to render opinions in this cause and (2) Dr. Seaworth=s report represents a good-faith effort to comply with the statute.  We therefore reverse the trial court=s denial of Dr. Reardon=s motion to dismiss. We remand to the trial court for consideration of Nelson=s request for extension of time, pursuant to Section 74.351(c),  to cure the deficiencies in his expert-report submission.  See Murphy v. Mendoza, 234 S.W.3d 23, 30 (Tex. App.CEl Paso 2007, no pet.) (reversing denial of motion to dismiss and remanding to allow trial court to consider request for extension to cure timely but deficient report); Foster v. Zavala, 214 S.W.3d 106, 116B17 (Tex. App.CEastland 2006, pet. denied) (same).

/s/      Jeff Brown

Justice

Judgment Reversed and Remanded and Memorandum Opinion filed September 30, 2008

Panel consists of Justices Yates, Anderson, and Brown.

---

^[1]  Dr. Shanti=s curriculum vitae reveals that he participated in a surgical internship for one year, approximately a decade before Nelson=s surgery.  There is no evidence that Dr. Shanti performed cardiac bypass surgery during his internship.

^[2]  Because we sustain Dr. Reardon=s claim that there is insufficient information to establish Dr. Shanti=s qualification to render an expert opinion in this case, we do not address Reardon=s alternate claim that Dr. Shanti=s report also fails adequately to describe the standard of care.

^[3]  In his brief to this court, Nelson declares, ADr. Reardon needed to review the pertinent medical tests which related to Mr. Nelson=s heart before surgery which included the catheterization worksheet.  The statement in Dr. Seaworth=s report that Dr. Reardon=s operative report shows >no attempt to identify the ramus branch and then the circumflex artery= is an obvious indication that Dr. Reardon simply did not review the catheterization worksheet prior to surgery.@  While Nelson=s briefing arguably clarifies the nature of his claim and the support Dr. Seaworth=s report was intended to give it, we must restrict our analysis to the report itself.  Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859.  We cannot participate in Nelson=s counsel=s infererence from Dr. Seaworth=s mention of the catheterization worksheet that, according to Dr. Seaworth, Dr. Reardon had a duty to review the worksheet.  The report itself is void of specific information about what Dr. Reardon should have done differently, whether in terms of pre-surgical determination of Nelson=s particular arterial anatomy or during surgery to identify the proper subject of the bypass graft.