COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-326-CV
RALPH PLEMONS, M.D. APPELLANT
V.
PATRICIA HARRIS, INDIVIDUALLY APPELLEE
AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF HARVEY
HARRIS, DECEASED
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one issue, Appellant Ralph Plemons, M.D. asserts that the trial court
abused its discretion by overruling his objections to Appellee Patricia Harris’s
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… See Tex. R. App. P. 47.4.
chapter 74 expert report and also by denying Dr. Plemons’s motion to dismiss.
We affirm.
II. Factual and Procedural History
On September 7, 2005, after performing an EKG on Harvey Harris, Dr.
Tracye Orr referred Harvey to a surgeon for repair of an umbilical hernia. On
October 21, 2005, Dr. Augustus Lyons, along with the anesthesiologist Dr.
Plemons, performed the surgery. Approximately twenty-four hours after the
surgery, Harvey returned to the hospital with chest pains. He died the
following day from an apparent myocardial infarction, a.k.a. “heart attack.”
Harris, Harvey’s surviving spouse, filed this suit on December 17, 2007,
alleging that Dr. Plemons failed to utilize appropriate anesthesia given Harvey’s
health. Pursuant to chapter 74 of the civil practice and remedies code, Harris
served a timely expert report from Dr. Joseph A. Stirt, an anesthesiologist from
Charlottesville, Virginia. He opined that Dr. Plemons breached the standard of
care by not obtaining a preoperative EKG within thirty days of a planned
surgical procedure as required for any patient over sixty years old who was to
receive general anesthesia. Dr. Stirt further stated that the deviations from the
standard of care represented negligence, which proximately caused Harvey’s
death.
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On April 29, 2008, Dr. Plemons filed objections to Harris’s expert report,
and he amended those objections on May 6, 2008. Subsequently, the trial
court overruled Dr. Plemons’s objections, and this interlocutory appeal followed.
III. Preservation of Error
A. Review
To preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.
103(a)(1). If a party fails to do this, error is not preserved, and the complaint
is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
The objecting party must get a ruling from the trial court. This ruling can be
either express or implied. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.
App.—Fort Worth 1999, pet. denied). If trial judge refuses to rule, an objection
to the refusal to rule is sufficient to preserve error. Tex. R. App. P. 33.1(a)(2).
Further, the complaint on appeal must be the same as that presented in the trial
court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An appellate
court cannot reverse based on a complaint not raised in the trial court. Id.
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B. Analysis
In “Defendant Ralph Plemons, M.D.’s Amended Objections to Plaintiff’s
Chapter 74 Expert Report and Motion to Dismiss,” Plemons asked the court to
dismiss Harris’s suit due to the inadequacy of Dr. Stirt’s report as follows:
In his report Dr. Stirt suggests “one standard of care was
breached by Dr. Ralph Plemons”. Dr. Stirt goes on to state, “a pre-
operative EKG obtained within 30 days of a planned surgical
procedure is required prior to general anesthesia for any patient
over 60 years old. No EKG was performed on Mr. Harris and
subsequently examined as required by Dr. Plemons.” See attached
report of Dr. Stirt as Exhibit 2.
Dr. Stirt’s sole criticism of Dr. Plemons was that no EKG was
performed on Mr. Harris prior to the surgery and subsequently
examined as required by Dr. Plemons. This sole criticism is entirely
factually inaccurate. See attached as Exhibit 3, EKG dated
September 7, 2005 performed and received prior to the procedure
at issue. As such, this report is conclusory and does not represent
a good faith effort to fulfill the statute as well as case law
interpreting same. . . . The report of Dr. Stirt is conclusory and
based upon assumptions which are not supported by the facts with
respect to standard of care, breach and causation and accordingly
fails to meet the requisites of Chapter 74 as well as case law
interpreting same. [Emphasis added.]
On appeal, Plemons argues thusly:
It is significant to note that on the first page of Dr. Stirt’s
report, he states that he had reviewed the records from Dr. Tracye
Orr from September 7, 2005, through October 19, 2005. It is
undisputed that Dr. Orr performed an EKG on Mr. Harris on
September 7, 2005. After Dr. Orr obtained this EKG, he referred
Mr. Harris for a surgical consult for the umbilical hernia, without
requesting or seeking any type of further cardiac evaluation or
follow-up.
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Since Dr. Stirt reviewed Dr. Orr’s records, he would have had
access to the EKG performed on September 7, 2005, yet
conspicuously missing from his report is any mention or reference
to any abnormalities in the September 7 EKG that would have
caused the surgery to be cancelled; moreover, he does not identify,
describe, or explain why an EKG done 14 days later (i.e., 30 days
before surgery) would have been different or demonstrated some
type of abnormality that would have resulted in the surgery being
cancelled. To the contrary, Dr. Stirt only speculates that a pre-
operative EKG “could well have shown marked cardiac abnormality
. . .” Dr. Stirt is obviously speculating on what a second EKG could
have shown; how it might have changed from the one obtained on
September 7; whether it would have resulted in further cardiac
follow-up; and whether it would have resulted in a deferral of the
surgery. Dr. Stirt’s attempts at causation are conclusory and
would require an inference on causation which, under the “four
corners rule,” a court is not permitted to do. [Emphasis supplied;
internal citations omitted.]
A plain reading of Dr. Plemons’s argument to the trial court is that there
was the a factual inaccuracy in Dr. Stirt’s report, which Dr. Plemons asserted
caused the report to be conclusory in nature. This is plainly demonstrated
when he states that, referring to Dr. Stirt’s criticism that no presurgery EKG
was performed on Harvey, “[t]his sole criticism is entirely inaccurate . . . [a]s
such, this report is conclusory.”
In contrast, on appeal, Dr. Plemons acknowledges that he is not arguing
factual inaccuracy. Rather, a plain reading of Dr. Plemons’s argument on
appeal is that because there was an EKG performed forty-four days before the
surgery, Dr. Stirt’s report failed to show how a second EKG performed thirty
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days or less before the surgery would have resulted in a different surgical
outcome. Specifically, he argues that Dr. Stirt’s report only speculated that a
pre-operative EKG “could well have shown marked cardiac abnormalities” and
speculated “whether it would have resulted in the deferral of the surgery. Dr.
Stirt’s attempts at causation are conclusory and would require an inference on
causation . . . .”
During oral argument to this court, counsel for Dr. Plemons attempted to
explain the lack of congruity between the arguments at trial and on appeal by
asserting that he only needed to urge that Dr. Stirt’s report was conclusory
without any explanation to the trial court of where, when, how, or why, and
that he had in his summation at the end of his amended motion stated that the
report was conclusory and factually unsupported, thereby disconnecting the
two thoughts. We observe that the only explanation given to the trial court of
how the report was conclusory was that it was factually inaccurate, as
previously discussed. We decline to hold that trial judges are required to adopt
the methods of Sherlock Holmes and divine without written or oral guidance as
to where, when, why, and how an expert’s report is conclusory. We therefore
hold that the complaint to the trial court does not comport with the complaint
on appeal and as such is not preserved for our review. See Banda, 955 S.W.2d
at 272; see also Wohlfahrt v. Holloway, 172 S.W.3d 630, 639–40 (Tex.
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App.—Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a
party’s argument on appeal must comport with its argument in the trial court.”),
cert. denied, 549 U.S. 1052 (2006); Hoxie Implement Co., Inc. v. Baker, 65
S.W.3d 140, 151 (Tex. App.—Amarillo 2001, pet. denied) (“[G]iven that the
contention before us does not comport with the objection raised below, that
before us was and is waived.”).
IV. Conclusion
Having found that Dr. Plemons’s complaint on appeal has not been
preserved, we overrule his sole issue on appeal and affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).
LIVINGSTON, J. concurs without opinion.
DELIVERED: January 8, 2009
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