Thomas Alexander Mitchell, M.D. v. Lesa Swanson

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00460-CV
___________________________
THOMAS ALEXANDER MITCHELL, M.D., Appellant
V.
LESA SWANSON, Appellee
On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-307531-19
Before Sudderth, C.J.; Birdwell and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Dr. Thomas Alexander Mitchell appeals the denial of his motion to
dismiss appellee Lesa Swanson’s health care liability claims. Appellant cites deficiencies
in Swanson’s expert reports—in particular, that they lack any explanation of how
Appellant caused Swanson’s injuries.
We agree that the reports are deficient, and so we hold that the trial court abused
its discretion by overruling Appellant’s motion. But Swanson’s reports are not so
devoid of substance that they constitute no reports at all, and they are not patently
incurable either. Swanson is therefore entitled to remand, rather than outright dismissal
of her claims, so that the trial court may consider whether to grant a thirty-day extension
to cure the deficiencies.
I. BACKGROUND
In 2016, Swanson was having pain in her lower back and legs, so she consulted
Dr. Anil Kumar Kesani.1 Dr. Kesani diagnosed her with various back conditions in the
L4-5 and L5-S1 regions, and they discussed surgical and nonsurgical options for
treatment. Dr. Kesani prescribed physical therapy and medication, and he
recommended that she return to revisit the issue.
The facts recited are in accordance with those alleged in Swanson’s petition and
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expert reports. See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 221 n.1 (Tex.
2018) (per curiam).
2
Swanson returned six months later without improvement. Dr. Kesani suggested
that she consider surgery. Ultimately, Swanson agreed to undergo a combination of
two spinal-fusion surgeries. Dr. Kesani performed the first surgery without incident.
However, the second surgery—the placement of fixating screws and rods—
allegedly went awry: Dr. Kesani misplaced some of the screws so badly that they were
drilled directly into the nerves in the center of the spine. Swanson alleged that upon
waking from anesthesia, she immediately reported numbness, weakness, and extreme
pain. According to Swanson, Dr. Kesani did not tell her the screws were misplaced,
and he instead told her that any complications were due to her abnormal spinal
anatomy. The next day, Dr. Kesani performed surgery to remove two of the screws
and reposition others, but according to Swanson, her symptoms were not remedied.
Swanson filed suit against Dr. Kesani in 2019, alleging that his medical negligence
left her with extensive, permanent injuries. In support of her claims against Dr. Kesani,
Swanson submitted a seventeen-page expert report authored by Dr. Jerry Bob
Blacklock.
She later amended her petition to allege claims against Appellant, a neurologist
who participated in her second surgery remotely, and Dustin McHalffey, a technologist
who assisted Appellant. To more specifically address Appellant’s conduct, Swanson
submitted an expert report authored by Dr. Amit Verma, in which he discussed his
credentials and Appellant’s role in Swanson’s second surgery. Swanson’s claims against
Appellant and her expert reports are the subject of this appeal.
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Appellant’s role, Swanson’s petition explained, was to monitor her neurological
condition during the surgery using various techniques, including electromyography or
“EMG,” and to report any concerning changes in her readings in order to avoid
damaging Swanson’s nerves. According to the petition, Appellant’s entries in the
medical records stated that all of Swanson’s neurological readings during the procedure
were normal, but the fact that three screws went directly into her spinal nerves
suggested that her readings could not have been normal. Thus, Swanson alleged that
Appellant was negligent in monitoring and assessing her condition, in failing to notify
the surgeon of changes in her condition to ensure that she received appropriate care,
and in failing to properly document and preserve data relating to the neuromonitoring
process.
Appellant objected to both of Swanson’s expert reports and moved to dismiss
her claims against him. The trial court overruled his objections and denied his motion.
This appeal followed. 2
II. ADEQUACY OF THE REPORT
Appellant’s first, second, third, and fifth issues all share the same theme: that
Swanson’s reports are inadequate. The first and second issues focus on inadequacies in
Dr. Verma’s report—namely, that Dr. Verma’s report fails to adequately describe the
2
The Legislature has provided for interlocutory appeal of the denial of a motion
to dismiss under Texas Civil Practice and Remedies Code Section 74.351(b). Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(9). We therefore have jurisdiction to hear this
appeal.
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standard of care that applied to Appellant and how Appellant’s breach of that standard
caused Swanson’s injuries. In his third issue, Appellant contends that Dr. Blacklock’s
report does not cure either of these inadequacies, because Dr. Blacklock’s report was
primarily concerned with Dr. Kesani’s alleged negligence rather than Appellant’s. And
his fifth issue is a summation, in which he argues that his motion to dismiss should have
been granted.
A. Standard of Review and Applicable Law
The Texas Medical Liability Act (the Act) requires health care liability claimants
to serve an expert report upon each defendant not later than 120 days after that
defendant’s answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An expert
report is sufficient under the Act if it provides a fair summary of the expert’s opinions
regarding applicable standards of care, the manner in which the care rendered failed to
meet the standards, and the causal relationship between the failure and the injury. Id.
§ 74.351(r)(6). The trial court need only find that the report constitutes a “good faith
effort” to comply with the Act’s requirements. Id. § 74.351(l). An expert report
demonstrates a “good faith effort” when it “(1) informs the defendant of the specific
conduct called into question and (2) provides a basis for the trial court to conclude the
claims have merit.” Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018)
(per curiam) (cleaned up) (quoting Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018)).
A report need not marshal all the claimant’s proof, but a report that merely states the
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expert’s conclusions about the standard of care, breach, and causation is insufficient.
Id.
We review the denial of a motion to dismiss based on the adequacy of an expert
report for an abuse of discretion. Id. In analyzing a report’s sufficiency, we consider
only the information contained within the four corners of the report. Id. A reviewing
court may not fill gaps in a report by drawing inferences or guessing as to what the
expert meant or intended. Moore v. Gatica, 269 S.W.3d 134, 140 (Tex. App.—Fort Worth
2008, pet. denied). However, one expert need not address the standard of care, breach,
and causation; multiple expert reports may be read together to determine whether these
requirements have been met. Abshire, 563 S.W.3d at 223 (citing Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(i)).
To adequately identify the standard of care, an expert report must set forth
“specific information about what the defendant should have done differently.” Id. at
226 (quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex.
2001)). Ergo, related to the standard of care and breach, the expert report must explain
what the health care provider should have done under the circumstances and what he
did instead. Palacios, 46 S.W.3d at 880.
The causation element requires an expert to explain how and why the alleged
negligence caused the injury in question. Abshire, 563 S.W.3d at 224. The report need
not use the words “proximate cause,” “foreseeability,” or “cause in fact” because a
report’s adequacy does not depend on whether the expert uses any particular magic
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words. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex.
2017). But the expert report must make a good-faith effort to explain, factually, how
proximate cause is going to be proven. Id. Proximate cause has two components:
(1) foreseeability and (2) cause-in-fact. Id. For a negligent act or omission to have been
a cause-in-fact of the harm, the act or omission must have been a substantial factor in
bringing about the harm, and absent the act or omission, the harm would not have
occurred. Id.
B. Discussion
By way of background, Dr. Verma’s and Dr. Blacklock’s reports together offer a
clear picture of Swanson’s condition, the procedures she underwent, and Appellant’s
role in the case. According to Dr. Blacklock’s report, Swanson was diagnosed with
degeneration of the spine due to wear and tear (spondylosis), a chronic stress fracture
in one of her vertebral bones that led to instability (spondylolysis), and a slippage of the
disc that caused radiating nerve pain (spondylolisthesis). To treat her condition,
Dr. Kesani performed a two-stage spinal-fusion procedure. On April 25, 2017,
Dr. Kesani successfully performed the first surgery, an anterior discectomy and fusion
at L4-5 and L5-S1, in which he placed synthetic cages packed with donor bone into the
two disc spaces and attached metal fixation plates to the vertebral bodies. On April 27,
2017, Dr. Kesani performed the second stage, in which he was to drill screws into the
pedicle bones on the sides of the vertebrae and then connect those screws to rods
running parallel to the spinal column. The result was meant to be a rigid metal structure
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that held the bones in place so that the fusion could occur. But Dr. Blacklock explained
that Dr. Kesani misplaced some of the screws so badly that they did not touch the
pedicle bones at all; instead, he placed some screws far off to the side, and he drilled
others directly into the nerves in the center of the spine.
Dr. Verma’s report stated that Appellant’s function during this second procedure
was to oversee monitoring of Swanson’s neurological signals to alert Dr. Kesani of any
alarming changes which could indicate that the surgery was damaging Swanson’s nerves.
To that end, Appellant monitored Swanson’s neurological condition using
“somatosensory evoked potentials, H-reflex, EEG, EMG [and] train of four”
techniques.
Dr. Verma’s report also briefly described how Appellant breached the standard
of care. Appellant’s entries in the medical records stated that some of the
neuromonitoring showed normal results with no dramatic changes during the
procedure, but other monitoring results were missing—specifically, the records lacked
“the printouts showing absence of stimulated EMG below the thresholds that are
mentioned in the report or the printouts of the train of 4 responses showing the
presence of actual twitches.” In Dr. Verma’s view, Appellant’s account that all was well
in the neuromonitoring was most likely inaccurate: as Dr. Verma saw it, the fact that
Dr. Kesani drilled multiple screws directly into Swanson’s spinal nerve roots would
have likely produced significant changes in the neuromonitoring results, and it was
“highly improbable” that no changes would be shown on the monitoring. Dr. Verma
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believed that Appellant breached the standard of care by not alerting Dr. Kesani that
there were significant changes in the neuromonitoring. Dr. Verma thought that
Appellant also breached the standard of care by “fail[ing] to produce these waveforms,”
referring to Appellant’s failure to produce the missing neuromonitoring results.
However, Dr. Verma’s report lacks any specific discussion concerning what the
standard of care required. We are left to work backward from Dr. Verma’s assertion
that Appellant breached the standard of care by not doing certain things; the report
implies that, apparently, the standard of care required those things in the first place. See
Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011) (“For example, [the report] did not
state the standard of care but only implied that it was inconsistent with the Physicians’
conduct.”). Thus, strictly speaking, while Dr. Verma explains what Appellant did not
do (in terms of breach), Dr. Verma does not explain what Appellant should have done
to begin with (in terms of the standard of care). See Palacios, 46 S.W.3d at 880.
Furthermore, completely absent from the report is any mention of how
Appellant’s alleged breaches caused harm to Swanson. Dr. Verma simply discusses the
alleged breaches and then ends his report. He does not explain, for example, how
Appellant’s failure to report changes in the neuromonitoring led to Swanson’s harm.
We do not require an expert to incant the magic phrase “proximate cause,” see Zamarripa,
526 S.W.3d at 460, but we do require him to draw a line, in the form of factual
allegations, between the physician’s conduct and the plaintiff’s injury, see Abshire, 563
S.W.3d at 225. That line is absent from Dr. Verma’s report.
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Swanson contends that any gaps in Dr. Verma’s report can be resolved by
reading it in conjunction with Dr. Blacklock’s report. See, e.g., Miller v. JSC Lake
Highlands Operations, LP, 536 S.W.3d 510, 515 (Tex. 2017) (per curiam) (holding that one
report remedied potential deficiencies in another). We disagree. Dr. Blacklock’s report
does not aid Swanson’s case against Appellant with respect to the standard of care,
breach, or causation. Indeed, Dr. Blacklock’s report detracts from her case on the
standard of care. According to that report, the standard of care did not require any of
the neuromonitoring that Appellant performed on Swanson:
There were four types of neuromonitoring used in the surgeries described
in this report. Only one of these four was actually of any potential value.
That was EMG, electromyography, but this is just an adjunct that is
sometimes useful but sometimes not. . . . The standard of care does not
require the use of neuromonitoring for the type of surgery performed on
Ms[.] Swanson.
Dr. Blacklock later reiterated that EMG monitoring was “purely adjunctive” and that
while it is “potentially useful” in the typical case, it was “useless” in Swanson’s case. He
continued, “It would have not been below the standard of care to not use it at all in this
case. Dr[.] Kesani was entirely responsible for placing the screws correctly and for
verifying this with imaging, regardless of what the EMG showed or did not show.”
Dr. Blacklock repeated this thought yet again toward the end of the report, stating, “It
would not be below the standard to not use neuromonitoring in this case. It was of no
use in this case.”
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Nor does Dr. Blacklock’s report add anything to Swanson’s argument that
Appellant’s breaches caused her injuries. In the section of his report labeled
“Causation,” Dr. Blacklock opined that Swanson’s injuries were caused by Dr. Kesani’s
actions alone: his negligent placement of the screws, his failure to immediately perform
tests and recognize the problem when Swanson presented with extreme pain, his delay
in performing corrective surgery, and the damaging effects of the corrective surgeries
that he did eventually perform. Dr. Blacklock did not mention Appellant or his alleged
breaches as potential causes.
With only an implied opinion on the standard of care, a brief opinion on breach,
and no opinion at all on causation, Swanson’s case somewhat resembles Intra-Op
Monitoring Services, LLC v. Causey, No. 09-12-00050-CV, 2012 WL 2849281, at *3 (Tex.
App.—Beaumont July 12, 2012, no pet.) (mem. op.). In that case, a doctor performed
a gland-removal surgery while another physician remotely conducted neuromonitoring
to locate and avoid a facial nerve, and the surgeon nevertheless accidentally cut the
nerve. Id. at *1. The injured party sued the neuromonitoring physician, but in her
expert report, the plaintiff offered only a cursory opinion on causation, stating a one-
sentence conclusion that the breaches related to neuromonitoring had caused the nerve
to be cut. Id. at *2. The court held that because the expert failed to explain his causation
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opinion with factual specificity, the report did not meet the requirements of the Act.3
See id. at *3–4.
A similar conclusion is called for here. Because the reports do not adequately
address the required elements, they are deficient, and the trial court abused its discretion
by overruling Appellant’s motion. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6);
Abshire, 563 S.W.3d at 223. We sustain Appellant’s first, second, third, and fifth issues.
III. OPPORTUNITY TO CURE
We next consider Appellant’s fourth issue, in which he maintains that the
inadequacies in Swanson’s reports are so complete that she effectively filed no report
at all, such that she should be denied the opportunity to amend her reports.
The Act distinguishes between situations where a report is timely served but
deficient and those where no report is served. Taton v. Taylor, No. 02-18-00373-CV,
3
Nonetheless, the court ordered a remand rather than a dismissal. Causey, 2012
WL 2849281, at *4. The court concluded that remand was appropriate because the
report’s deficiencies were not patently incurable, because the report implicated the
defendants’ conduct, and because the plaintiff had served the report by the statutory
deadline. Id.
On remand, the plaintiff served a supplemental report that outlined at least seven
specific steps that were required by the standard of care and factually explained why the
failure to take those steps caused the plaintiff’s injury: by mishandling the
neuromonitoring and misstating its results, the monitoring physician misled the surgeon
into believing there was no risk in making certain incisions, and those incisions severed
the nerve. Intra-Op Monitoring Servs., LLC v. Causey, No. 09-12-00597-CV, 2013 WL
1790875, at *3–4 (Tex. App.—Beaumont Apr. 25, 2013, no pet.) (mem. op.). In a
subsequent appeal, the Beaumont court held that this specific, factual explanation was
sufficient to satisfy the Act’s dictates. Id. at *4.
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2019 WL 2635568, at *8 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.).
If a report is timely served but deficient, the trial court may grant a thirty-day extension
to cure the deficiency. Id.
“In distinguishing between a deficient report and no report, we are guided by the
supreme court’s decision in Scoresby . . . .” Id. (citing Scoresby, 346 S.W.3d at 546). Under
Scoresby, a thirty-day extension to cure deficiencies in an expert report may be granted if
the report is served by the statutory deadline, if it contains the opinion of an individual
with expertise that the claim has merit, and if the defendant’s conduct is implicated.
Scoresby, 346 S.W.3d at 557. “[T]his is a minimal standard,” id., and thus we have held
that “[w]hen we conclude that an expert report is deficient,” we generally “do not
render” judgment; instead, we usually “remand for the trial court to consider whether
to grant a thirty-day extension,” UHP, LP v. Krella, No. 02-19-00136-CV, 2019 WL
3756203, at *1 (Tex. App.—Fort Worth Aug. 8, 2019, no pet.) (per curiam) (mem. op.);
see Mangin v. Wendt, 480 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2015, no pet.)
(“[W]hen the court of appeals finds deficient a report that the trial court considered
adequate, the plaintiff should be afforded one 30-day extension to cure the deficiency,
if possible.” (internal quotation omitted)); Rosemond v. Al–Lahiq, 362 S.W.3d 830, 840
(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“[M]ost purported expert reports
are likely to fall into the deficient-report category and be eligible for a thirty-day
extension . . . .”). The Scoresby court held that because the plaintiff’s report satisfied this
minimal standard, the plaintiff was entitled to an opportunity to cure, even though the
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report did not state the standard of care but only implied that the standard was
inconsistent with the physicians’ conduct, and even though there were potential
problems with the expert’s qualifications as well. 346 S.W.3d at 557.
We arrive at a similar disposition. As in Scoresby, Dr. Verma’s report addressed
the standard of care only through implication, if at all, and it suffered other problems
as well. See id. Nonetheless, Swanson satisfies Scoresby’s three-part test. Swanson timely
served Dr. Verma’s report just twenty-one days after Appellant filed his answer. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Dr. Verma’s report and curriculum
vitae 4 set out his qualifications and expertise as they were relevant to neuromonitoring:
he was the director of clinical neurophysiology at Houston Methodist Hospital, he
oversaw the hospital’s neuromonitoring program, and he had personally supervised
thousands of cases since his graduation from Duke’s medical school in 1999. And
Dr. Verma’s report suggested an opinion that Swanson’s claim had merit and implicated
Appellant’s conduct by criticizing the neuromonitoring he performed, the results that
he did and did not record, and his failure to communicate the significant changes in
Swanson’s neurological readings to Dr. Kesani. Scoresby therefore instructs that despite
the report’s deficiencies, remand is in order. See 346 S.W.3d at 557; Hernandez v. Christus
Spohn Health Sys. Corp., No. 04-14-00091-CV, 2015 WL 704721, at *4 (Tex. App.—
When the question of adequacy hinges on the expert’s qualifications, the court
4
also considers what is within the four corners of the expert’s curriculum vitae. See
Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 626 (Tex. App.—
Fort Worth 2012, no pet.).
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San Antonio Feb. 18, 2015, no pet.) (mem. op.) (holding that despite a report’s
complete failure to address causation, among other deficiencies, remand was required
because the report satisfied Scoresby’s three-prong test); Sanchez v. Martin, 378 S.W.3d
581, 597 (Tex. App.—Dallas 2012, no pet.) (ordering remand because the report
satisfied Scoresby, even though plaintiff’s report failed to address the standard of care);
cf. Taton, 2019 WL 2635568, at *9 (collecting cases that genuinely failed the Scoresby test).
Another consideration is whether curing the report’s deficiencies appears to be
impossible. The goal of the Act’s expert-report requirement is to deter frivolous claims,
and an inadequate expert report does not indicate a frivolous claim if the report’s
deficiencies are readily curable. Scoresby, 346 S.W.3d at 556. In Zamarripa, our supreme
court determined that remand was appropriate because the court could not say that “it
would be impossible” to cure the deficiencies. 526 S.W.3d at 461; see Jepson v. Wyrick,
No. 02-18-00148-CV, 2019 WL 2042303, at *11 (Tex. App.—Fort Worth May 9, 2019,
no pet.) (mem. op.) (ordering remand because “we cannot say that it is impossible for
the deficiencies in the report to be cured”); Methodist Hosp. v. Addison, 574 S.W.3d 490,
506 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (same). Based on the content of
Dr. Verma’s report, we cannot conclude that its defects are patently incurable, which
further counsels in favor of remand.
We will therefore remand this case for the trial court to consider whether to grant
Swanson an extension. “The trial court should err on the side of granting additional
time”; the court “should be lenient in granting thirty-day extensions and must do so if
15
deficiencies in an expert report can be cured within the thirty-day period.” Scoresby, 346
S.W.3d at 549, 554. We overrule Appellant’s fourth issue.
IV. CONCLUSION
We reverse the trial court’s order denying Appellant’s motion and remand this
case for further proceedings in accordance with this opinion. See Tex. R. App. P.
43.2(d).
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: October 15, 2020
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