COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-222-CV
JAMES ARENETT ROUGHLEY APPELLANT
V.
TEXAS TECH UNIVERSITY APPELLEE
HEALTH SCIENCES CENTER
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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
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MEMORANDUM OPINION 1
This is an appeal from a dismissal for failure to file an expert report in a
medical negligence case. We affirm.
Appellant James Arenett Roughley is incarcerated. He sued appellee
Texas Tech University Health Sciences Center (“TTUHSC”) in 2006, alleging
that a physician’s assistant employed by TTUHSC failed to provide adequate
medical treatment of Roughley’s chronic dermatitis, which Roughley claims was
1
… See Tex. R. App. P. 47.4.
aggravated by exposure to cleaning solutions. Roughley specifically claimed
that the TTUHSC employee prescribed ineffective medication, failed to refer
Roughley to a dermatologist, and failed to medically restrict Roughley from
working with certain cleaning solutions.
In February 2008, TTUHSC filed a motion to dismiss based on Roughley’s
failure to timely serve an expert report as required by section 74.351 of the civil
practice and remedies code.2 Roughley argued in response that the causal
connection between his injuries and chemical exposure is within the common
knowledge of the average lay person and, therefore, he did not need to file an
expert report.3 The trial court granted the motion to dismiss, and this appeal
followed.
We review a district court’s ruling on a motion to dismiss under section
74.351 for an abuse of discretion.4 A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or without reference to any guiding
2
… See Tex. Civ. Prac. & Rem. Code Ann. 74.351(a) (Vernon Supp.
2008).
3
… See, e.g., Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort
Worth 2004, pet. denied) (noting that plaintiff may rely on res ipsa loquitur in
medical malpractice case where “the nature of the alleged malpractice is plainly
within the common knowledge of laymen, making expert testimony
unnecessary”).
4
… See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 877–78 (Tex. 2001).
2
rules or principles.5 A trial court does not abuse its discretion simply because
it may decide a matter within its discretion differently than an appellate court. 6
Chapter 74 of the Texas Civil Practice and Remedies Code governs the
adjudication of health care liability claims in Texas. Section 74.351(a) requires
plaintiffs who bring health care liability claims to submit an expert report within
120 days of filing suit.7 An expert report is defined 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 . . . failed
to meet the standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.” 8
In his first issue, Roughley argues that he should be excused from the
requirement that he file an expert report because, he contends, the causal
connection between his injuries and TTUHSC’s alleged negligence is within the
common knowledge of the lay person. We disagree.
5
… See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985).
6
… See id. at 242.
7
… See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
8
… See id. § 74.351(r)(6).
3
Generally, the issues of medical negligence and causation require expert
testimony.9 With regard to Roughley’s claim that TTUHSC failed to refer him
to a dermatologist or to prescribe proper medication, such matters clearly are
not within the common knowledge of the lay person. 1 0 The average person
does not prescribe medication or make medical referrals of the type Roughley
claims.
Roughley’s “common knowledge” argument is primarily focused on his
contention that TTUHSC negligently failed to medically restrict his exposure to
certain cleaning solutions. Roughley notes that the packaging for the solutions
contained warning labels, which would alert a lay person to the dangers
involved in using those chemicals. The relevant inquiry, however, in this
medical negligence case is not whether a lay person would know that the
cleaning solutions contain dangerous chemicals. The relevant inquiry is whether
it was medically necessary to order a person with a certain type of skin
9
… See Shelton, 144 S.W.3d at 120.
10
… See, e.g., Ruiz v. Walgreen Co., 79 S.W.3d 235, 239–40 (Tex.
App.—Houston [14th Dist.] 2002, no pet.) (holding expert testimony needed
in case where plaintiff alleged pharmacist substituted different medication than
was prescribed; causal connection between alleged negligence and injury not
within common knowledge of lay person).
4
condition to avoid certain cleaning solutions. 11 This is not a matter within the
common knowledge of the lay person.12
Roughley was, therefore, required to provide an expert report with regard
to this claim.13 His failure to do so means that the trial court did not abuse its
discretion in dismissing his action.14 We overrule Roughley’s first issue.
In his second issue, Roughley contests the trial court’s denial of his
requests for a temporary restraining order and a “preliminary prohibitory
11
… See Shelton, 144 S.W.3d at 121 (stating that relevant inquiry in case
where plaintiff bases medical negligence claim on “suspicious sites” on
mammogram is “whether the proper performance of cancer-diagnosing
procedures is within the common knowledge of a layperson”).
12
… See id. (“Medical decisions about performing and interpreting
mammograms, sonograms, biopsies, and other diagnostic procedures require
professional training and are not common knowledge.”).
13
… See Garcia v. Marichalar, 198 S.W.3d 250, 255–57 (Tex. App.—San
Antonio 2006, no pet.) (holding expert report required when sponge left in
patient’s body); Hector v. Christus Health Gulf Coast, 175 S.W.3d 832,
837–38 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (holding expert
report required when patient fell from operating table while health care
providers were rotating it).
14
… In both Garcia and Hector, the courts concluded that the plaintiff was
required to timely serve an expert report even if the causal relationship between
the alleged negligence and the injury is within the common knowledge of the
lay person. Garcia, 198 S.W.3d at 255–56; Hector, 175 S.W.3d at 837–38;
see also Haddad v. Marroquin, Nos. 13-07-00014-CV, 13-07-00109-CV, 2007
WL 2429183, at *4 (Tex. App.—Corpus Christi Aug. 29, 2007, pet. denied).
Because we hold that Roughley’s claims are not within the common knowledge
of the average lay person, we do not reach this issue.
5
injunction,” by which Roughley sought relief from work detail involving certain
cleaning solutions, relief from allegedly negligent medical care, and expert
medical treatment from an outside source. However, Roughley failed to include
in the record any pleadings in which he made such requests or any document
showing the trial court’s ruling on the requests. Roughley attached some
pleadings on this issue to his brief, but we may not consider matters that are
not part of the appellate record.15 Because the record is devoid of any matters
showing a request and a ruling, there is nothing for us to review, and we,
therefore, overrule Roughley’s second issue.16
For the foregoing reasons, we affirm the trial court’s dismissal order.
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
DELIVERED: January 22, 2009
15
… See Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App.—El Paso 2007,
pet. dism’d w.o.j.); Ngyuen v. Intertex, Inc., 93 S.W.3d 288, 292–93 (Tex.
App.—Houston [14th Dist.] 2002, no pet.).
16
… See Carter v. Carter, 225 S.W.3d 649, 651 (Tex. App.—El Paso
2006, no pet.) (declaring that appellate court must affirm trial court judgment
because, “[i]n the absence of a reporters record, we are simply unable to review
the merits of Appellant[‘]s complaint”).
6