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Opinion filed February 2, 2006
In The
Eleventh Court of Appeals
__________
No. 11-04-00303-CV
__________
RICK MARTIN, Appellant
V.
ABILENE REGIONAL MEDICAL CENTER, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 23,197-B
M E M O R A N D U M O P I N I O N
This is a medical malpractice action. Rick Martin sued Abilene Regional Medical Center, Dr. Gorman Thorp, and Cardiology Consultants of Texas (Dr. Thorp=s practice group) regarding complications he experienced following cardiac catheterization and stent placement. Martin served expert reports which he contends are sufficient to satisfy the requirements of Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp. 2005). Abilene Regional objected to the sufficiency of those reports. The trial court granted Abilene Regional=s objection and dismissed Martin=s claims against it with prejudice. Martin filed an interlocutory appeal challenging the dismissal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(10) (Vernon Supp. 2005). We reverse and remand.
Background Facts
Martin was admitted to Abilene Regional under the care of Dr. Thorp for a cardiac catheterization procedure involving the placement of a stent in his coronary artery. The procedure was successfully completed, and Martin was discharged from the hospital. Martin received Plavix, an antiplatelet medication, while in the hospital; but he was not given a prescription for Plavix when discharged. Martin=s coronary artery stent occluded ten days following his discharge, and he was readmitted for further cardiac procedures.
Martin contends that Dr. Thorp was negligent in failing to provide him with a prescription for Plavix when discharged. Martin=s claims against Abilene Regional are related to the omission of a prescription for Plavix. Francis Breisch, RN, a nurse employed by Abilene Regional, reviewed Martin=s discharge instructions with him. The discharge instructions included information concerning Plavix. Even though Martin=s discharge documentation included information about a drug which was not prescribed for Martin, Nurse Breisch did not tell Dr. Thorp or any of Martin=s other healthcare providers that Martin did not have a prescription for Plavix at discharge. Martin contends that Abilene Regional was negligent as a result of Nurse Breisch not seeking clarification of the discharge orders or not informing Dr. Thorp of the lack of a prescription for Plavix.
Issues Presented
Martin presents four issues challenging the dismissal of his claims against Abilene Regional and the refusal to grant him a thirty-day extension to serve additional expert reports. Abilene Regional contends, and Martin concedes, that both decisions are subject to an abuse of discretion standard of review. We will, therefore, review the trial court=s decisions under that standard.[1]
The Adequacy of Martin=s Expert Reports
Martin=s second, third, and fourth issues challenge the trial court=s holding that his expert reports were inadequate. In its order granting Abilene Regional=s motion to dismiss, the trial court found that A[Martin=s] expert reports fail to address the causal relationship between the alleged breach of Abilene Regional Medical Center and [Martin=s] alleged injuries.@ This finding by the trial court is the principal issue to be resolved in this appeal.
Medical malpractice actions filed after September 1, 2003, are governed by the Texas Medical Liability Act,[2] Chapter 74 of the Texas Civil Practice and Remedies Code (the Act). Section 74.351(a) requires claimants, not later than the 120th day after the date the claim is filed, to serve on each party or the party=s attorney expert reports and curriculum vitaes for each expert listed in the reports. A claimant=s reports must address each party against whom a claim is asserted and must provide a fair summary of the expert=s opinions regarding the applicable standard of care, the manner in which the defendant=s conduct violated that standard, and the causal relationship between that failure and the injury, harm, or damages claimed. See Section 74.351(r)(6). Defendants have twenty-one days after service of the reports to file any objections to the sufficiency of the reports. See Section 74.351(a). Trial courts are instructed that they Ashall 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 Act].@ See Section 74.351(l).
Scope and Standard of Review
Section 74.351(l)=s requirement that trial courts hold a hearing and employ an objective good faith standard suggests a fact-finding exercise. However, no evidence may be introduced at the hearing, and the trial court is limited to a review of the reports themselves. See American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)(the only information relevant to the inquiry is within the four corners of the document). Martin alleges that the trial court abused its discretion when it sustained Abilene Regional=s objection to the sufficiency of his reports because the reports contained all of the elements required by the statute. 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). A reviewing court is not allowed to substitute its judgment for that of the trial court when reviewing a discretionary decision. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989).
Expert Report Requirements
In Palacios, the Texas Supreme Court outlined the following criteria for evaluating the sufficiency of expert reports:
[T]he expert report must represent only a good‑faith effort to provide a fair summary of the expert=s opinions. A report need not marshal all the plaintiff=s proof, but it must include the expert=s opinion on each of the elements identified in the statute. In setting out the expert=s opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good‑faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.
A report that merely states the expert=s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Nor can a report meet these purposes and thus constitute a good‑faith effort if it omits any of the statutory requirements. However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that 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. (citations omitted)
Palacios, 46 S.W.3d at 878-79. Courts have identified additional considerations when multiple defendants are sued. An expert report pertaining to multiple defendants must provide an explanation of how each defendant specifically breached the applicable standard of care and how that breach caused or contributed to the cause of injury. Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.2d 241, 244 (Tex. App.CCorpus Christi 2004, no pet.).
Martin=s Reports
Martin served reports from Nurse Ruthie Robinson and Dr. David A. Garza in order to comply with the Act=s expert report requirements. Section 74.351(i) allowed Martin to utilize separate expert reports to satisfy the Act=s requirements for advising Abilene Regional of the standard of care for Nurse Breisch, the manner in which Nurse Breisch failed to meet the standard of care, and the causal relationship between that failure and the injury to Martin:
(i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider. (emphasis added)
The sole alleged issue of negligence on the part of Dr. Thorp was his failure to discharge appellant with a prescription for Plavix. Martin=s expert, Dr. Garza, was board certified in internal medicine and cardiovascular medicine. In his report, Dr. Garza outlined the standard of care applicable to Dr. Thorp, how Dr. Thorp allegedly breached the standard of care, and how that breach injured appellant:
THE STANDARD OF CARE
As a practicing cardiologist, I am familiar with the standard of care for therapy of patients after stent placement by reasonable and prudent cardiologists. I perform interventions in my practice and follow patients after their procedures on a regular basis.
The standard of care of a reasonable and prudent cardiologist in this case requires the discharge of the patient on Plavix therapy to prevent thrombus formation on a recently placed intracoronary artery stent.
THE STANDARD OF CARE AND CAUSATION
Dr. Thorp failed in his duty to provide ordinary and prudent care for Mr. Martin when he failed to ensure that Mr. Martin was discharged on Plavix therapy. Without such therapy, an acute or subacute stent thrombosis is a foreseeable event. The failure to provide Mr. Martin with Plavix therapy was a direct and proximate cause of the acute stent thrombosis.
Martin=s nursing expert, Nurse Robinson, set forth the standard of care that Abilene Regional=s Nurse Breisch should have followed and how Nurse Breisch breached that standard:
The standard of care for the discharge of a patient following cardiac catheterization with stent placement requires that the patient receive Plavix for a minimum of 14 to 30 days. The nurse must at all times act as the patient advocate. The nurse, acting as a patient advocate, must assure that appropriate and timely instructions are provided to the patient.
Specifically, in this case, the nurse should have questioned Dr. Crumbliss and Dr. Thorp regarding appropriate discharge instructions including a prescription for Plavix for Mr. Martin. (emphasis added)
Nurse Robinson pointed out that Section 217.11 of the Nursing Practice Act for the State of Texas requires a nurse to Aclarify any order or treatment regimen that the nurse has reason to believe is inaccurate.@ See 22 Tex. Admin. Code ' 217.11(N) (West 2004)(Tex. Bd. Nurse Examiners, Standards of Nursing Practice). Under the heading ACausal Relationships,@ Nurse Robinson explained that the purpose of the stent placement in appellant was to open a narrowed coronary artery to reestablish adequate blood flow to the myocardial tissue. Nurse Robinson then stated the following:
Without adequate blood flow, the myocardial tissue will die and a myocardial infarction (heart attack) will result. Plavix is routinely used to minimize the possibility of stent reocclusion. Plavix prevents platelets from sticking together and prevents the formation of blood clots. As printed in Abilene Regional Medical Center=s discharge instructions for patients after stent placement, APlavix helps coat the platelets so they do not cling to the stent and clot it off.@ Mr. Martin did not receive Plavix and returned to Abilene Regional Medical Center on January 19, 2002 with reocclusion of his stent and a myocardial infarction.
Both parties agree that Nurse Robinson was not qualified to address causation in this case with regard to the failure to prescribe Plavix causing Martin=s subsequent stent reocclusion. See Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 248 (Tex. App.C San Antonio 2004, no pet.)(holding that registered nurse was not qualified to express expert opinion as to cause of patient=s death). Abilene Regional argues that, since Dr. Garza was Martin=s only expert qualified to address causation, Martin=s reports are deficient regarding causation on the part of Abilene Regional because Dr. Garza only addressed Dr. Thorp=s negligence in failing to prescribe Plavix and how that failure caused Martin=s stent reocclusion. To the extent that the trial court may have reviewed Dr. Garza=s report in isolation, the trial court abused its discretion because Section 74.351(i) expressly provides that a claimant may satisfy any requirement of the Act by providing reports of separate experts.
Dr. Garza contends in his report that Dr. Thorp should have given Martin a prescription for Plavix at discharge and that the failure to do so caused Martin=s stent reocclusion. Nurse Robinson asserts in her report that Nurse Breisch should have reported the absence of the prescription for Plavix to Dr. Thorp. When the reports of Nurse Robinson and Dr. Thorp are read together, they allege that, if Nurse Breisch had informed Dr. Thorp of the lack of a prescription for Plavix at the time of Martin=s discharge, Dr. Thorp should have prescribed Plavix when notified of the omitted prescription. This allegation constitutes Aa good‑faith effort to provide a fair summary@ of the causal relationship between Abilene Regional=s actions and the injury claimed by Martin. Palacios, 46 S.W.3d at 878-79.
Abilene Regional essentially contends that Martin=s reports are deficient because they do not state that Dr. Thorp would have prescribed Plavix had Nurse Breisch informed him of an omitted prescription. We disagree with this contention. The court in Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P., No. 04-05-00054-CV, 2005 WL 3079074 (Tex. App.CSan Antonio Nov. 16, 2005, no pet. h.), reviewed an expert report filed in support of a similar claim. The claimant in Tovar asserted that the hospital=s nurses were negligent in failing to inform the treating physicians of changes in the patient=s clinical status. Tovar, 2005 WL 3079074, at *2. The court noted that the expert made the following allegation in his report regarding causation on the part of the hospital and its nurses:
Dr. Fischer states that if the nurses had Acarefully inform[ed] the treating physicians of changes in the patient=s clinical status . . . [the] type of lesion harbored by Ms. Rodriguez . . . [should have resulted in] prompt cessation of the Coumadin, an immediate brain CT scan, immediate institution of fresh frozen plasma to reverse the Coumadin, and obtaining neurological and neurosurgical consultation on a stat basis . . . [then] . . . [w]ithin reasonable medical probability, the dramatic neurological deterioration and death of Ms. Rodriguez would have been averted.@ (emphasis added)
Tovar, 2005 WL 3079074, at *4 The court in Tovar overturned the trial court=s order of dismissal even though the expert report only addressed what the treating physician should have done upon being notified of a medical condition by a nurse as opposed to what the treating physician would have done had he or she been properly notified.
Conclusion
The trial court abused its discretion by not reading the reports of Nurse Robinson and Dr. Garza together to conclude that Martin=s reports provided a fair summary of the experts= opinions regarding the causal relationship between Abilene Regional=s actions and the stent reocclusion. Martin=s second, third, and fourth issues are sustained. As a result of our holding, we do not consider Martin=s first issue.
This Court=s Ruling
The judgment of the trial court is reversed and remanded.
RICK STRANGE
JUSTICE
February 2, 2006
Panel consists of: Wright, C.J., and
McCall, J., and, Strange, J.
[1]Accord Kendrick v. Garcia, 171 S.W.3d 698 (Tex. App.CEastland 2005, pet. filed)(noting changes to the language of the Texas Medical Liability Act when Tex. Rev. Civ. Stat. art. 4590i (2001) was codified but continuing to apply an abuse of discretion review absent contrary authority).
[2]Tex. Civ. Prac. & Rem. Code Ann. '' 74.001-.501 (Vernon 2005 & Supp. 2005).