COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-437-CV
ROBERT G. RANELLE, D.O. APPELLANT
V.
HERSCHEL EDWARD BEAVERS APPELLEES
AND PAMELA BEAVERS
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In this interlocutory appeal, Appellant Robert G. Ranelle, D.O. challenges
the trial court’s order denying his motion to dismiss Appellees Herschel and
Pamela Beaverses’ health care liability claims for the failure to file an adequate
expert report. We affirm.
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… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
On May 29, 2008, the Beaverses filed health care liability claims against
Dr. Ranelle that arose from medical and surgical care he had provided to
Herschel. According to their fourth amended petition, the Beaverses sought to
recover damages from Dr. Ranelle for the following:
On or about March 18, 2003, [Dr.] Ranelle performed surgery on
Herschel Edward Beavers’s back. Before surgery, [Dr.] Ranelle
represented to [Herschel] that the surgery was indicated because
[Herschel] had a ruptured disc, herniated nucleus pulposis, or
herniated disc at the L5-S1 level of his spine. This was a false
statement by Dr. Ranelle and the truth that [Herschel] did not have
this condition was never disclosed until Dr. Ranelle confessed his
dishonesty in his deposition on March 28, 2008. [Herschel] would
not have consented to the surgery had he known that he did not
have a ruptured/herniated disc. As a result of Dr. Ranelle’s
deception and the resultant surgery, [Herschel] suffered injuries and
the [Beavers] have suffered damages.
[Dr. Ranelle] violated the duty he owed to [Herschel] to exercise
ordinary care and diligence exercised by other surgeons and
healthcare providers in the same or similar circumstances and was
negligent in that he:
(1) Performed unnecessary surgery;
(2) Failed to accurately interpret radiology studies;
(3) Negligently performed surgery; and
(4) Oversold the need for surgery.
One or more of the above-mentioned acts and/or omissions, among
others, by [Dr. Ranelle], was a proximate cause of injury and
damages . . . .
[Dr. Ranelle’s] conduct as described above included making
misrepresentations as well as concealing information that [Dr.
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Ranelle] had a duty to disclose. Such conduct constitutes fraud
and/or constructive fraud and resulted in injuries to [Herschel] and
damages to the [Beavers] . . . .
As a result of the surgery performed by [Dr. Ranelle] on March 18,
2003, [Herschel] suffered an assault and battery by [Dr.] Ranelle,
since any consent was based on deception by [Dr.] Ranelle.
The Beaverses timely served Dr. Ranelle with the curriculum vitae and
expert report of Duncan McBride, M.D., a board certified neurosurgeon. In his
report, Dr. McBride stated that Dr. Ranelle’s care of Herschel was below the
standard of care in two ways: (1) Dr. Ranelle was dishonest about Herschel’s
condition and (2) Dr. Ranelle failed to adequately pad and position Herschel’s
shoulder for surgery. He further stated that it was his opinion that the failure
of Dr. Ranelle to observe the standard of care was a proximate cause of
Herschel’s ongoing back problems, Herschel’s torn rotator cuff, and all of the
consequences that naturally flow from the back surgery and surgery to repair
the torn rotator cuff.
Dr. Ranelle timely filed his motion to dismiss with prejudice, objecting to
Dr. McBride’s report on the grounds that it failed to set forth the standard of
care, breach, and causation elements of the health care liability claims alleged
against him, including the theories of negligence, battery, fraud, constructive
fraud, and lack of informed consent. After a hearing on the matter, the trial
court denied Dr. Ranelle’s motion. This appeal followed.
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III. Adequacy of Expert Report
In his sole issue, Dr. Ranelle argues that the trial court abused its
discretion by concluding that Dr. McBride’s expert report was legally sufficient
because the report (1) failed to address the elements of the common law
battery claim alleged by the Beaverses against Dr. Ranelle; (2) failed to address
Herschel’s pre surgery symptoms, their degree of severity, or why such
symptoms did not merit, per the standard of care, going forward with the
surgery; and (3) failed to provide information on how Herschel was actually
padded or positioned during the surgery, or any causal relationship between
such padding and positioning and Herschel’s rotator cuff injury.
A. Standard of Review
A trial court’s ruling concerning an expert report filed under section
74.351 (formerly article 4590i, section 13.01) of the Medical Liability and
Insurance Act is reviewable under the abuse of discretion standard. Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.
2001); see Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2008).
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An
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appellate court cannot conclude that a trial court abused its discretion merely
because the appellate court would have ruled differently in the same
circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995).
B. Applicable Law
In a health care liability claim, a claimant must serve an expert report on
each defendant no later than the 120th day after the claim is filed. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351. If the claimant does not serve an
expert report on a defendant physician or health care provider within the
120-day period, then on the motion of the affected physician or health care
provider, the trial court must dismiss the claim with prejudice. Id. § 74.351(b).
A defendant may challenge the adequacy of a report by filing a motion to
dismiss. Id. § 74.351(l). The trial court must grant the motion to dismiss if it
finds, after a hearing, that “the report does not represent an objective good
faith effort to comply with the definition of an expert report” in the statute. Id.
While the expert report “need not marshal all the plaintiff’s proof,” it must
provide a fair summary of the expert’s opinions as to the “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.” Tex. Civ. Prac. & Rem. Code
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Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878 (construing former art. 4590i,
§ 13.01).
To constitute a good faith effort, the report must “discuss the standard
of care, breach, and causation with sufficient specificity to inform the
defendant of the conduct the plaintiff has called into question and to provide
a basis for the trial court to conclude that the claims have merit.” Palacios, 46
S.W.3d at 875. A report does not fulfill this requirement if it merely states the
expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.
But 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.” Id. The
claimant’s expert must incorporate enough information to fulfill two purposes:
(1) to inform the defendant of the specific conduct the plaintiff has called into
question; and (2) to provide a basis for the trial court to conclude the claims are
meritorious. Id.
When reviewing the adequacy of a report, the only information relevant
to the inquiry is the information contained within the four corners of the
document. Id. at 878. This requirement precludes a court from filling gaps in
a report by drawing inferences or guessing as to what the expert likely meant
or intended. See id. However, section 74.351 does not prohibit experts, as
opposed to courts, from making inferences based on medical history. Marvin
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v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824, at *4 (Tex.
App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.); see also Tex. R.
Evid. 703 (providing that an expert may draw inferences from the facts or data
in a particular case); Tex. R. Evid. 705 (providing that expert may testify in
terms of opinions and inferences).
1. Battery Claim
In response to Dr. Ranelle’s argument that Dr. McBride’s expert report
failed to address the elements of the Beaverses’ claim for battery, the
Beaverses argue that Dr. McBride’s expert report meets the statutory
requirements and that requiring anything more would go to the merits of their
case. We agree.
The tort of battery has been recognized when a physician, with no
justification or excuse, performs an operation without the express or implied
consent of the patient. Gravis v. Physicians & Surgeons Hosp. of Alice, 427
S.W.2d 310, 311 (Tex. 1968). However, in Murphy, the Texas supreme court
held that the failure to obtain consent does not automatically result in a battery
because “[t]here may be reasons for providing treatment without specific
consent that do not breach any applicable standard of care.” See Murphy v.
Russell, 167 S.W.3d 835, 838 (Tex. 2005). “The existence or nonexistence
of such reasons is necessarily the subject of expert testimony.” Id.
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Here, Dr. McBride states in his expert report that one of the standards of
care for a spine surgeon in this type of case is “[b]eing truthful about a
patient’s condition.” He further states that “[b]ecause the risks and
consequences of spinal surgery are serious, it is important to avoid performing
surgery when the reason for the surgery is dishonestly stated.” Dr. McBride
opined in his report that Dr. Ranelle’s care of Herschel fell below the standard
of care based on the following:
1) Dr. Ranelle told [Herschel] and his insurance company that he
needed surgery because [Herschel] had a herniated disc, when in
fact [Herschel] did not have a herniated disc. Dr. Ranelle admits in
his deposition that he told [Herschel] that he had a herniated disc
or herniated nucleus pulposis when he knew this in fact was not
the case. Patients rely on their surgeons to be truthful about their
condition and need for surgery. Telling a patient and his insurance
company that he has a herniated disc that needs surgery is
overstating the patients condition and is misleading because the
success rate for leg pain relief after spine surgery for an annular
tear is much lower than spine surgery for a herniated disc.
He concluded his report by stating that the surgery “would not have been
performed if Dr. Ranelle had been honest” and it was his opinion that Dr.
Ranelle’s failure to observe the standard of care was a proximate cause of
Herschel’s injuries. Specifically, Dr. Ranelle’s actions were the proximate cause
of
[Herschel’s] ongoing back problems and all of the consequences
that naturally flow from performing a surgery that would not have
been performed if Dr. Ranelle had been honest. These
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consequences include hospitalization, pain associated with recovery
from the trauma of surgery, limitation in activities and additional
medical care including in this case, physical therapy and additional
surgery to remove the bone stimulator. Additionally, [Herschel]
suffered a shoulder injury as a result of Dr. Ranelle’s failure to
properly position and pad [Herschel] requiring surgery for a torn
rotator cuff.
Dr. McBride’s expert report is not required to meet the same standards
as evidence offered in summary judgment proceedings or in a trial. See Bowie
Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Therefore, we
agree with the Beaverses that the trial court could have reasonably found that
Dr. McBride’s expert report discusses the standard of care, breach, and causal
link with sufficient specificity to fulfill the two required purposes of section
74.351: (1) to inform Dr. Ranelle of the specific conduct that the Beaverses
have called into question and (2) to provide a basis for the trial court to
conclude that the claim has merit. See id. at 52; Palacios, 46 S.W.3d at 879.
To require anything more would go to the merits of their case. See Hamilton
v. Durgin, No. 10-08-00146-CV, 2008 WL 4816624, at *2 (Tex. App.—Waco
Nov. 5, 2008, no pet.) (mem. op.) (holding that the expert report was sufficient
and that the defendants were arguing the merits of the claim by relying on
documents and information outside of the reports); Arboretum Nursing &
Rehab. Ctr. of Winnie, Inc. v. Isaacks, No. 14-07-00895-CV, 2008 WL
2130446, at *6 (Tex. App.—Houston [14th Dist.] May 22, 2008, no pet.)
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(mem. op.) (holding that an expert report that failed to address several
contentions in appellee’s petition was sufficient for purposes of the required
statutory elements). Accordingly, we overrule that portion of Dr. Ranelle’s sole
issue pertaining to the Beaverses’ battery claim.
2. Negligence: Unnecessary Surgery
In response to Dr. Ranelle’s argument that Dr. McBride’s expert report
failed to state, or establish, that the surgery itself was unnecessary, the
Beaverses assert that Dr. Ranelle waived this complaint or, in the alternative,
that the report was sufficient to provide a basis for the trial court to conclude
that the surgery was unnecessary. We disagree on the matter of waiver but
agree on the issue of sufficiency.
First, the Beaverses assert that Dr. Ranelle never complained in his motion
to dismiss that Dr. McBride’s report failed to state or establish unnecessary
surgery and therefore Dr. Ranelle has failed to preserve this issue for appeal.
In support of their argument, the Beaverses direct our attention to Plemons, in
which we recently reiterated that a complaint on appeal must be the same as
that presented in the trial court. Plemons v. Harris, No. 02-08-00326-CV,
2009 WL 51290, at *3 (Tex. App.—Fort Worth Jan. 8, 2009, no pet.) (mem.
op.). Here, however, although Dr. Ranelle’s motion to dismiss did not contain
the words “unnecessary surgery,” it did contain the following complaint:
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[T]here is no discussion whatsoever of [Herschel] presenting
symptoms, their degree or severity, and why such symptoms, of
themselves, did not merit, per the standard of care, going forward
with this particular surgical procedure. Moreover, there is no
discussion of the results of the surgery in terms of whether
[Herschel] found relief from the symptoms that led to the surgery
in the first place.
Dr. Ranelle’s motion asserts that the Beaverses failed to address in the expert
report that Herschel’s symptoms did not require going through with the surgery
and also that the surgery did not benefit Herschel. In other words, Dr. Ranelle’s
complaint asserts that the Beaverses failed to address in the expert report that
Herschel’s surgery was unnecessary. Therefore, because the argument of
unnecessary surgery is apparent from the context of Dr. Ranelle’s complaint,
we hold that he has preserved this issue for appeal. Tex. R. App. P. 33.1(a).
The Beaverses also argue that Dr. McBride’s expert report was sufficient
to provide the trial court with the basis to conclude that Herschel’s surgery was
unnecessary.
In the report, Dr. McBride states that one of the standards of care for a
spine surgeon in this type of case is “[b]eing truthful about a patient’s
condition” and that “[b]ecause the risks and consequences of spinal surgery are
serious, it is important to avoid performing surgery when the reason for the
surgery is dishonestly stated.” He further opined that “[p]atients rely on their
surgeons to be truthful about their condition and need for surgery.”
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Dr. McBride’s report then states his opinion of the manner in which Dr.
Ranelle breached the standard of care. He states that Dr. Ranelle admitted, in
his deposition, that he had told Herschel that he had a ruptured disc and needed
surgery but then admitted that Herschel did not, in fact, have a ruptured disc.
Finally, Dr. McBride’s report details how Dr. Ranelle’s dishonesty led to
Herschel having a surgery that was unnecessary and the injuries that resulted
from the unnecessary surgery. Dr. McBride states,
It is my opinion based on reasonable medical probability that the
failure of Dr. Ranelle to observe the standards of care in Herschel
Beavers’ case was a proximate cause of the [sic] Mr. Beavers’
ongoing back problems and all of the consequences that naturally
flow from performing a surgery that would not have been
performed if Dr. Ranelle had been honest. [Emphasis added.]2
Therefore, after viewing the information set forth within the four corners
of Dr. McBride’s report, we hold that the trial court did not abuse its discretion
by determining that Dr. McBride’s report provides a fair summary of his expert
opinions as to the “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” as to the Beaverses’ unnecessary surgery claim. See Tex.
2
… Because we previously listed the specific injuries suffered by Herschel
as a result of the surgery, we need not list them again.
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Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878.
Furthermore, the trial court did not abuse its discretion by determining that Dr.
McBride’s report constitutes an objective good faith effort to satisfy the two
purposes of section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
Accordingly, we overrule that portion of Dr. Ranelle’s sole issue pertaining to
the Beaverses’ claim for unnecessary surgery.
3. Negligence: Rotator Cuff Injury
In response to Dr. Ranelle’s argument that Dr. McBride’s expert report
was conclusory as to Herschel’s rotator cuff injury, the Beaverses assert that
Dr. Ranelle’s admission, in his deposition, that Herschel suffered a torn rotator
cuff as a result of his positioning during the surgery, is sufficient to conclude
that the Beaverses’ claim has merit. We agree.
In his expert report, Dr. McBride states that one of the standards of care
in this type of case is “[p]ositioning and padding the patient during lumbar spine
surgery so his shoulders are protected from injury.” He further states that Dr.
Ranelle could have prevented Herschel’s rotator cuff injury with proper
positioning and padding. He then provides his opinion on Dr. Ranelle’s breach
of the standard of care by referring to Dr. Ranelle’s admission “that Herschel
Beavers suffered a torn rotator cuff as a result of the positioning for the spine
surgery.” Finally, Dr. McBride’s report provides assertions as to the causal
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relationship between Dr. Ranelle’s negligence and Herschel’s torn rotator cuff
that are not merely conclusory in light of Dr. Ranelle’s admission. He states
that Herschel “suffered a shoulder injury as a result of Dr. Ranelle’s failure to
properly position and pad [Herschel] requiring surgery for a torn rotator cuff.”
Thus, Dr. McBride’s report summarizes his opinions as to the applicable
standard of care, the manner in which Dr. Ranelle failed to meet the standard,
and the causal relationship between Dr. Ranelle’s negligence and Herschel’s
torn rotator cuff. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). We
therefore hold that the trial court did not abuse its discretion by determining
that Dr. McBride’s report complied with section 74.351 as to the Beaverses’
claim for Herschel’s torn rotator cuff, and accordingly we overrule that portion
of Dr. Ranelle’s sole issue pertaining to Herschel’s rotator cuff injury.
IV. Conclusion
Having overruled Dr. Ranelle’s sole issue in its entirety, we affirm the trial
court’s order denying his motion to dismiss.
BOB MCCOY
JUSTICE
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
CAYCE, C.J. dissents without opinion.
DELIVERED: April 30, 2009
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