In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-01-00756-CV
____________
FLORENCE M. STROM, Appellant
V.
MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HOSPITAL SOUTHWEST AND MEMORIAL HOSPITAL SYSTEM, AND DR. HENRY BLUM, INDIVIDUALLY AND D/B/A SUGAR LAND ORTHOPEDIC ASSOCIATES, P.A., Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 98-47318
DISSENTING OPINION
In my opinion, the timely-filed expert report of Dr. Robert A. Callewart, M.D., represents a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of the Medical Liability and Insurance Improvemnet Act, and therefore the trial court abused its discretion when it dismissed the plaintiff’s claims with prejudice. Accordingly, I respectfully dissent.
I note that this is not a case involving the failure to file an expert report, and this is not a case involving the filing of a late expert report. Rather, this case involves a timely-filed expert report. The issue is whether the defendants’ challenges to the adequacy of the expert report should have been granted, resulting in the dismissal of plaintiff’s case with prejudice.
If a plaintiff timely files an expert report and the defendant moves to dismiss because of the report’s inadequacy, the trial court must grant the motion “only if it appears to the trial court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.” Tex. Rev. Civ. Stat. Ann. Art. 4590i, § 13.01(l) (Vernon Supp. 2003) (emphasis added); Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002). To constitute a “good-faith effort,” the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie, 79 S.W.3d at 52. A Court reviews the information contained within the four corners of the report to determine whether it constitutes a “good-faith effort” to provide a fair summary of the expert’s opinions about the standard of care, breach, and causal connection between breach and injury. Id. Claims against the Hospital
Dr. Callewart’s report reads, in relevant part:
A. Injury
Based upon evaluation by MRI, x-ray, and a cervical myelogram in August and September 1996, Dr. John Berry suggested a cervical decompression bilaterally of C7-T1, and possibly re-explore C5-6 bilaterally. This surgery was performed on October 4, 1996, at the Memorial Hospital Southwest in Houston, Texas. This surgery resulted in the patient sustaining an acute traumatic injury in the patient’s left knee probably associated with improper positioning of padding of the knee/leg, the patient being presumably in a sitting position. The patient suffered immediate pain and swelling of the knee postoperatively, with difficulty walking.
On October 23, 1996, it is reported that the patient complains of left knee pain and hobbling on the left knee, which is swollen, with decreased range of motion and tenderness. A MRI of the left knee on November 1, 1996, showed a horizontal tear through the posterior horn of the medial meniscus, extending to the inferior articular surface near the free edge, and a small inferior surface tear of the medial meniscus at the junction of the posterior horn and body segment, and a grade I medial collateral ligament sprain.
B. Standard of Care
The knee injuries described in the MRI do not occur when the customary and usual standards of care are exercised in the positioning and strapping a patient on the operative table. However, the injuries can occur when the hospital’s operating room personnel fail to take necessary precautions to pad and avoid the placement of the leg/knee in an abnormal position by strapping the patient to prevent movement during surgery.
C. Breach
It is my expert opinion, based upon a reasonable medical probability, that the knee injuries suffered by the patient were due to the failure of the operating room personnel to exercise ordinary care, or negligence of the operating room personnel, in placing and maintaining her position on the operating room table.
D. Causal Connection
The knee injuries described in the MRI do not occur when the customary and usual standards of care are exercised in the positioning and strapping a patient on the operative table. However, the injuries can occur when the hospital’s operating room personnel fail to take necessary precautions to pad and avoid the placement of the leg/knee in an abnormal position by strapping the patient to prevent movement during surgery. . . . On a follow up of her knee pain January 8, 1997, it was noted that ‘apparently during her recent surgery, her knees were taped in an untoward position, resulting in some problems. Difficult to know exactly what, but it is felt that she has some cartilage torn in the left knee.’. . . . It is my expert opinion, based upon a reasonable medical probability, that the knee injuries suffered by the patient were due to the failure of the operating room personnel to exercise ordinary care, or negligence of the operating room personnel , in placing and maintaining her position on the operating table.
Does Dr. Callewart’s report provide enough information to inform the defendant Hospital of the specific conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit?
Clearly, Dr. Callewart’s report gives notice that the manner in which the hospital personnel strapped the plaintiff to the operating table was called into question. The standard of care requires hospital personnel to take necessary precautions to pad and avoid the placement of the leg/knee in an abnormal position by strapping (standard of care); a medical report indicated that plaintiff’s knees were taped in an untoward position on the operating table, and based on a reasonable medical probability, it was Dr. Callewart’s expert opinion that the plaintiff’s knee injuries were due to the failure of the hospital personnel to properly place and maintain plaintiff’s position on the operating table (breach and causal connection).
This case is unlike the Palacios case. American Transitional Care Centers v. Palacios, 46 S.W.3d 873 (Tex. 2001). In Palacios, the patient fell from his bed, and the expert opined that “precautions to prevent [the patient’s] fall were not properly utilized.” Id. at 880. The supreme court held that this was not a statement of a standard of care because neither the trial court nor the defendant would be able to determine from this statement if the doctor “believes that the standard of care required [defendant] to have monitored Palacios more closely, restrained him more securely, or done something else entirely.” Id. In contrast, the expert’s report in the present case puts the trial court and the defendant on notice of the conduct complained of, i.e.
that the hospital personnel failed to properly pad and place the leg/knee in a normal position when strapping the plaintiff to the operating table—by taping the leg in an untoward and abnormal position, a tearing injury was caused to the plaintiff’s knee.
Under the guiding principles set out in Bowie and Palacios, Dr. Callewart’s report constitutes a good-faith effort to provide a fair summary of the doctor’s opinions about the standard of care, breach and causal connection. Accordingly, the trial court abused its discretion when it granted the defendant’s motion challenging the adequacy of the report resulting in a dismissal, with prejudice, of the plaintiff’s claims against the hospital.
Claims against Dr. Blum
Dr. Callewart’s report reads, in relevant part:
A. Injury
“I have reviewed the medical records furnished in the case of Myrna Strom. . . .
In February of 1997, she was seen by Dr. Henry Blum, an orthopedic surgeon, with her chief complaint involving her left knee. X-rays showed degenerative changes with medial joint space narrowing and some calcification in the notch, and his impression of torn medial meniscus and chondromalacia. Again, he reports that she had no prior history of knee related complaints prior to surgery in question. Dr. Blum performed the menisectomy on February 12, 1997. On March 3, 1997, it is reported that she is doing fantastic after surgery. However, on April 19, 1997, Dr. Blum indicates the patient needs a total knee replacement, and on July 28, 1997, reports that she is scheduled for a total knee replacement on August 1, 1997.
(Emphasis added). Dr. Blum performed the total knee replacement surgery on the
plaintiff.
B. Standard of Care
The surgery would . . . violate the standards of care which would be expected to be exercised by a reasonable and prudent orthopedic surgeon under the same or similar circumstances.
C. Breach
Based upon the records, it is my expert opinion that the total knee and carpal tunnel releases were not medically indicated. There is no justification or very clear indication in the chart for the surgery. There is some suggestion she had severe arthritis in the knee; however, this is not consistent with what was reported in the knee at the time of the prior surgery or other evaluations of the knee. If she had severe degenerative joint disease, this could not have occurred in a several months time frame from when she had the surgery of the neck or from the time of February 12, 1997, surgery.
Based upon a reasonable medical probability, the records indicate no medical basis of reason for the total knee replacement in a woman in her middle 50's who weighs 240 lbs, who had reportedly a normal knee prior to the operative room injury. The surgery would therefore violate the standards of care which would be expected to be exercised by a reasonable and prudent orthopedic surgeon under the same or similar circumstances, and gross negligence to submit such a patient to unnecessary surgery.
D. Causal Connection
Based upon the records, it is my expert opinion that the total knee and carpal tunnel releases were not medically indicated. There is no justification or very clear indication in the chart for the surgery. . . . Based upon a reasonable medical probability, the records indicate no medical basis of reason for the total knee replacement . . . .
Does Dr. Callewart’s report provide enough information to inform the defendant Doctor of the specific conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit?
It is clear from Dr. Callewart’s report that the conduct called into question is the performance of a total knee replacement operation, when such surgery was unnecessary. The report provides a fair summary of Dr. Callewart’s opinions about the standard of care (that which would be expected to be exercised by a reasonable and prudent orthopedic surgeon under the same or similar circumstances), breach (performing “unnecessary” knee replacement surgery, which is “not medically indicated”, for which there is “no justification...in the chart”), and causal connection (the breach of the applicable standard of care caused the injury of unnecessary knee replacement surgery).
With regard to standard of care, the Texas Supreme Court stated in Palacios:
The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances. . . . . Identifying the standard of care is critical: Whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.
Id. at 880. In the present case, the expert’s report identified the standard of care for an orthopedic surgeon, and specifically stated what care was expected, but not given, i.e., a diagnosis and action based on what is medically indicated, not the performance of unnecessary major surgery.
Once again, under the guiding principles set out in Bowie and Palacios, Dr. Callewart’s report constitutes a good-faith effort to provide a fair summary of his opinions about the standard of care, breach, and causal connection. Accordingly, the trial court abused its discretion when it granted the defendant doctor’s motion challenging the adequacy of the report resulting in a dismissal, with prejudice, of the plaintiff’s claims against the defendant, Dr. Blum.
CONCLUSION
We should sustain appellant Strom’s points of error one through seven, reverse the judgment, and remand the case to the trial court.
Margaret Garner Mirabal
Justice
Panel consists of Justices Taft, Hanks, and Mirabal.
Justice Mirabal, dissenting.