Opinion issued October 29, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00551-CV
TUAN A. VU, M.D., INDIVIDUALLY AND D/B/A SOUTHWEST COSMETIC SURGERY AND SKIN CARE CENTER AND TUAN A. VU, M.D., P.A., Appellants
V.
CICELY SOLANIC, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 08-DCV-167499
MEMORANDUM OPINION
The issue in this interlocutory appeal is whether the trial court abused its discretion by denying a motion to dismiss health-care-liability claims. Appellants Tuan A. Vu, M.D., individually and d/b/a Southwest Cosmetic Surgery and Skin Care Center and Tuan A. Vu, M.D., P.A. moved to dismiss appellee Cicely Solanic’s medical-malpractice claims on the ground that Solanic filed a deficient expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l) (Vernon Supp. 2009). The trial court denied the motion to dismiss. We affirm the order in part and reverse in part.
Background
For the purposes of reviewing the sufficiency of the expert report, the relevant facts as stated in the amended report are that in May 2007 Dr. Vu performed both an abdominoplasty (tummy tuck) and lipsosuction on the patient, Cicely Solanic. Approximately nine months after the surgery, Solanic went to see another physician, Eugenio Fred Aguilar, III, M.D. Dr. Aguilar stated that he observed the following:
Within a week following the surgery, the abdominoplasty had split open at the level of the base of the abdomen. The wound healed slowly leaving a very large and unsightly scar. My examination also revealed significant scarring measuring approximately 10cm in the mid portion of the abdomen. There was also a large amount of banding and adhesions (scar tissue) to the underlying fascia. There is some irregularity of the fat lining the anterior abdominal wall as well as some amount of unevenness along the flanks. My physical examination also revealed an umbilical hernia which alters and distorts the appearance of her belly button . These complications, in my opinion, necessitate redoing the entire abdominoplasty as soon as possible.
The records from Memorial Hermann Hospital - Sugarland indicate that on May 26, 2007, ten days after her abdominoplasty and liposuction, she was admitted to the emergency room with an abdominal wound dehiscence which was draining with eschar development inside the open incision, and abdominal blisters caused by dead and/or dying/necrotic tissue. She was treated with antibiotics for infection and Vicodin for pain.
In October 2008, Solanic filed suit against Dr. Vu and his professional corporation in which she alleged Dr. Vu was negligent as follows:
(a)Failing to plicate or correct the diastatis recti in the upper part of [Solanic’s] abdomen.
(b)Failing to perform the liposuction and tummy tuck in accordance with established standards of care.
(c)Failing to provide [Solanic] with a sufficient amount of truthful and accurate information regarding [Dr. Vu’s] competence, training and experience to perform the procedures in question to enable [Solanic] to make an informed and intelligent decision regarding the procedures and the propriety of allowing [Dr. Vu] to perform the procedure.
(d)Failing to provide [Solanic] with a sufficient amount of truthful and accurate information regarding safer and reasonable available alternatives to the operative plan recommended and performed by [Dr. Vu].
(e)Failing to provide [Solanic] with a sufficient amount of truthful and accurate information about the foreseeable risks and hazards of the procedure to have enabled [Solanic] to give her informed consent to the procedure performed by [Dr. Vu].
At the time she filed her original petition, Solanic filed the original expert report and curriculum vitae from Dr. Aguilar.
Dr. Vu filed an objection to the expert report, which the trial court sustained on the basis that the report inadequately set forth the standard of care and causation. The trial court granted a 30-day extension of time for Solanic to file an amended expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp. 2009).
Solanic timely filed the amended expert report and curriculum vitae from Dr. Aguilar. The substance of the amended report follows:
It is my opinion, based on my examination of the patient, review of her medical records, and my training and experience, that the patient’s blisters, wound dehiscence, and the resulting excessive scarring were caused by a reduction in the patient’s blood supply coming from her upper abdomen to the most distal part of the abdominal flap. This reduction in blood supply caused the tissue damage and/or delayed the healing process so significantly that the patient’s blistering, tissue necrosis, and wound dehiscence were able to develop. These complications were a foreseeable result of Dr. Vu performing both the tummy tuck and liposuction at the same time, which was a departure from the applicable standard of care. In order to have complied with the standard of care, Dr. Vu should have staged the two surgical procedures by doing the abdominoplasty first and the liposuction two to three months later. Staging the surgeries would have placed less demand on the patient’s blood supply and averted the reduced abdominal blood supply which cause these complications to develop.
It is also my opinion that Dr. Vu also breached the standard of care by failing to inform the patient about the foreseeable risk of blistering and/or healing complications that were more likely if the abdominoplasty and liposuction were done at the same time. In order to have complied with this standard of care, Dr. Vu should have so informed the patient and recommended that the procedures be staged at least two to three months apart.
It is my opinion, based on my review of the relevant medical records, my examination of the patient, and my training and experience in treating many patients under similar circumstances, that Ms. Solanic’s abdominal blisters, tissue necrosis, wound dehiscence, and excessive scarring was in reasonable medical probability, caused by the reduction and/or compromise in the patient’s blood supply to the affected abdominal tissue. It is a well known medical fact that reduced blood results in slower and less effective healing and the consequent development of more scar tissue. Had the standard of care been complied with, it is unlikely, i.e., not reasonably probable, that these complications and the resultant scarring, disfigurement, and subsequent hospitalization to treat these complications would have occurred.
The amended report did not discuss Dr. Vu’s alleged failure to plicate or correct the diastatis recti in the upper part of Solanic’s abdomen. This was, however, discussed in the original report:
Dr. Vu failed to meet the standard of care by not correcting the diastasis recti in the upper portion of the abdomen. He should have plicated the diastasis recti in the upper portion of the abdomen. This violation of the standard of care caused the patient to develop apparent hernia in the upper left center of the abdomen.
Dr. Vu objected to the expert reports on the following grounds:
• Informed consent—Not discussed in the original or amended expert report
• Diastasis recti correction—Not mentioned in the amended expert report, but the original report omits (1) the standard of care and (2) expresses a conclusory opinion on whether Dr. Vu breached the standard of care
• Liposuction and tummy tuck—The original and amended reports (1) omit the standard of care and (2) inadequately express an opinion on proximate cause
The trial court overruled the objections to the amended expert report, and Dr. Vu appealed.
Discussion
Dr. Vu’s single issue on appeal is that the trial court abused its discretion in denying the motion to dismiss because Solanic did not file an expert report that was an objective, good-faith effort to comply with Civil Practice and Remedies Code section 74.351(r)(6) and American Transitional Care Centers., Inc. v. Palacios. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2009) (stating “court shall grant a motion challenging the adequacy of an expert report only 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(r)(6) (Vernon Supp. 2009) (requiring “a fair summary of the expert’s opinions as of the date of the report 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”); Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
The only information relevant to our inquiry is that found within the four corners of the report. Palacios, 46 S.W.3d at 878. A report need not marshal all of the plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in the statute. Id. In setting out the expert’s opinions on each of those elements, the report must provide enough information to fulfill two purposes to constitute a good-faith effort. Id. at 879. First, the report must inform the defendant of the specific conduct that the plaintiff has called into question. Id. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit. Id.
Dr. Vu specifically challenged the sufficiency of the expert reports for Solvanic’s negligence claims regarding informed consent, surgical errors, and the vicarious liability of Dr. Vu’s alleged negligence. We review a trial court’s order dismissing a claim for failure to comply with section 74.351(r)(6)’s expert-report requirements under an abuse-of-discretion standard. Palacios, 46 S.W.3d at 878. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment. See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989).
1. Informed consent
Dr. Vu first challenges the sufficiency of the expert reports regarding Solanic’s informed-consent claim. In her appellee’s brief, Solanic concedes that both the original and amended expert report are deficient regarding her claim that Dr. Vu did not provide her sufficient information so she could give informed consent to the procedure. Based on this admission, we hold the trial court erred in holding the expert reports to be sufficient regarding the informed-consent claim.
2. Surgical errors
Dr. Vu next challenges the sufficiency of the expert reports regarding the negligence claims for (1) the diastasis recti correction and (2) the liposuction and tummy tuck. An expert report must incorporate sufficient information to (1) inform the defendant of the specific conduct the plaintiff has called into question and (2) provide a basis for the trial court to conclude the claims are meritorious. Palacios, 46 S.W.3d at 879. A report cannot merely state the expert’s conclusions about these elements. Id. The expert must explain the basis for his statements and must link his conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). However, to avoid dismissal, a plaintiff need not present all the evidence necessary to litigate the merits of his case. Palacios, 46 S.W.3d at 879. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Id.
a. No clear and direct statement of the standard of care
Dr. Vu contends that the two expert reports do not discuss the standard of care for the two procedures. We disagree.
The original report gives the standard of care for the diastasis-recti-correction claim: “Dr. Vu failed to meet the standard of care by not correcting the diastasis recti in the upper portion of the abdomen. He should have plicated the diastasis recti in the upper portion of the abdomen.” The amended report gives a standard of care for the liposuction-and-tummy-tuck claim:
It is my opinion, based on my examination of the patient, review of her medical records, and my training and experience, that the patient’s blisters, wound dehiscence, and the resulting excessive scarring were caused by a reduction in the patient’s blood supply coming from her upper abdomen to the most distal part of the abdominal flap. This reduction in blood supply caused the tissue damage and/or delayed the healing process so significantly that the patient’s blistering, tissue necrosis, and wound dehiscence were able to develop. These complications were a foreseeable result of Dr. Vu performing both the tummy tuck and liposuction at the same time, which was a departure from the applicable standard of care. In order to have complied with the standard of care, Dr. Vu should have staged the two surgical procedures by doing the abdominoplasty first and the liposuction two to three months later. Staging the surgeries would have placed less demand on the patient’s blood supply and averted the reduced abdominal blood supply which cause these complications to develop.
(Emphasis added.)
The reports inform Dr. Vu of the specific conduct that the Solanic has called into question. While Dr. Vu can argue later in the proceedings whether the standard of care described by Dr. Aguilar is correct, the trial court did not abuse its discretion in holding the initial expert reports to be sufficient in this regard.
b. No proximate cause
Dr. Vu next contends that the two expert reports do not discuss the proximate cause required in an expert report, i.e., the causal relationship between the physician’s failure and the injury, harm, or damages claimed. In the diastasis-recti-correction claim, we agree that the causation analysis is wholly conclusory. The expert report states:
Dr. Vu failed to meet the standard of care by not correcting the diastasis recti in the upper portion of the abdomen. He should have plicated the diastasis recti in the upper portion of the abdomen. This violation of the standard of care caused the patient to develop an apparent hernia in the upper left center of the abdomen.
The causation analysis provides no basis for the trial court to conclude the diastasis-recti-correction claim is meritorious and is therefore insufficient. See Palacios, 46 S.W.3d at 879.
We disagree, however, regarding the alleged insufficiency of the liposuction-and-tummy-tuck claim. For this claim, the amended expert report’s causation analysis states:
. . . This reduction in blood supply caused the tissue damage and/or delayed the healing process so significantly that the patient’s blistering, tissue necrosis, and wound dehiscence were able to develop. . . . Staging the surgeries would have placed less demand on the patient’s blood supply and averted the reduced abdominal blood supply which cause these complications to develop.
. . .
It is my opinion, based on my review of the relevant medical records, my examination of the patient, and my training and experience in treating many patients under similar circumstances, that Ms. Solanic’s abdominal blisters, tissue necrosis, wound dehiscence, and excessive scarring was in reasonable medical probability, caused by the reduction and/or compromise in the patient’s blood supply to the affected abdominal tissue. It is a well known medical fact that reduced blood results in slower and less effective healing and the consequent development of more scar tissue. Had the standard of care been complied with, it is unlikely, i.e., not reasonably probable, that these complications and the resultant scarring, disfigurement, and subsequent hospitalization to treat these complications would have occurred.
Whether Dr. Aguilar’s expert opinion is ultimately persuasive to the fact-finder is another matter. But for the purpose of the expert report, Dr. Aguilar has provided a causal basis for the trial court to conclude that the liposuction-and-tummy-tuck claim has merit.
Accordingly, the trial court erred in holding the expert reports to be sufficient to show causation for the diastasis-recti-correction claim. The trial court did not err in holding the expert reports to be sufficient to show causation for the liposuction-and-tummy-tuck claim.
3. Vicarious liability
Dr. Vu finally claims the expert reports are insufficient concerning the vicarious responsibility claims against his professional corporation. To the extent we have already concluded the expert reports are insufficient regarding Dr. Vu, we agree the reports are also insufficient regarding his professional corporation. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (“When a party’s alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party’s agents or employees is sufficient.”).
Conclusion
We hold the trial court did not err by denying Dr. Vu’s motion to dismiss on the basis of Solanic’s liposuction-and-tummy-tuck claim. We therefore affirm that portion of the trial court’s order. We hold the trial court erred by denying Dr. Vu’s motion to dismiss on the basis of Solanic’s informed-consent and diastasis-recti-correction claims. We therefore reverse that portion of the trial court’s order.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.