Reversed and Remanded and Majority and Dissenting Opinions filed October 11, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00962-CV
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WALGREEN COMPANY, Appellant
V.
CYNTHIA HIEGER AND ROY C. HIEGER, BOTH INDIVIDUALLY AND AS NEXT FRIEND OF DAVID C. HIEGER, A MINOR, Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2005-79787
M A J O R I T Y O P I N I O N
This appeal pertains to a health care liability suit brought by appellees, Cynthia Hieger and Roy C. Hieger, individually and as next friend of their minor son David C. Hieger (collectively Athe Hiegers@), against appellant, Walgreen Co.[1] The trial court denied Walgreen=s motion to dismiss based on inadequate expert reports. In its sole issue, Walgreen contends the trial court erred in denying its motion to dismiss because the Hiegers= expert reports did not adequately address causation. We agree, and therefore we reverse the trial court=s judgment and remand for further proceedings.
Background
Cynthia Hieger=s physician prescribed Paxil CR, an antidepressant, and she filled the prescription at a Walgreens pharmacy. In October 2003, she obtained a refill and immediately began taking medicine from the refill container. However, the tablets in the container were not Paxil CR but were Ambien, a sleep medication. A Walgreens pharmacy employee had placed the label for the Paxil CR prescription over a label for Ambien.
The Hiegers filed their health care liability claim on December 21, 2005, alleging Walgreen incorrectly refilled Ms. Hieger=s prescription for Paxil CR with Ambien. Hieger alleged that the abrupt discontinuation of Paxil CR, combined with the effects of taking Ambien during the day, caused her to suffer Asevere and excruciating pain, migraines, nausea, irritability, super-sensitivity to light and sound, anxiety, fear, nightmares, inability to perform household functions, inability to stand-up, irrational behavior and to suffer very severe depression.@
On April 20, 2006, the 120th day after filing suit, the Hiegers filed an expert report by Diane B. Ginsburg, a registered pharmacist and clinical professor and assistant dean for student affairs at the College of Pharmacy at the University of Texas at Austin. Walgreen objected to Ginsburg=s expert report and moved to dismiss pursuant to Texas Civil Practice and Remedies Code section 74.351 arguing (1) Ginsburg=s report was inadequate because it did not address causation and (2) Ginsburg, as a pharmacist, was not qualified to render a causation opinion.
The Hiegers responded and requested a thirty-day extension to file an additional expert report pursuant to Texas Civil Practice and Remedies Code section 74.351(c). The trial court granted the extension, and the Hiegers filed an expert report by Dr. Reed Young, a doctor licensed in Texas who is board certified in adult neurology and sleep medication. Walgreen filed another motion to dismiss, arguing that Dr. Young=s expert report did not adequately address causation, which the trial court denied. Walgreen now appeals the trial court=s denial of this second motion to dismiss.
Analysis
In its sole issue, Walgreen contends the trial court erred by denying its second motion to dismiss because the Hiegers did not present adequate expert opinion regarding causation. We review a trial court=s ruling as to the adequacy of an expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). Though we may not substitute our judgment for that of the trial court in reviewing factual matters or matters committed solely to the trial court=s discretion, the trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992). Thus, the trial court=s failure to apply or analyze the law correctly is an abuse of discretion. Id. at 840.
Pursuant to section 74.351 of the Civil Practice and Remedies Code, health care liability claimants must provide an expert report to the defendant no later than 120 days after filing the original petition. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a) (Vernon Supp. 2006). A defendant may then file a motion challenging the adequacy of the report, and the trial court Ashall grant@ the motion if it appears that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See id. '' 74.351(a), (l) (Vernon Supp. 2006). In determining whether the report represents a good faith effort, the trial court=s inquiry is limited to the four corners of the report. See Palacios, 46 S.W.3d at 878.
The statute defines an expert report as a written report by an expert that provides a fair summary of the expert=s opinions as of the date of the report regarding the applicable standard of care, the manner in which that standard was breached, and the causal relationship between that breach and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6) (Vernon Supp. 2006); Palacios, 46 S.W.3d at 878B79. Although a plaintiff need not marshal all of her proof and need not fulfill the same requirements as the evidence offered in a summary judgment proceeding, the expert=s report must include opinions on the three statutory elementsCstandard of care, breach, and causation. See Palacios, 46 S.W.3d at 878B79.
Walgreen contends Dr. Young=s report does not provide a fair summary of the alleged causal relationship between the incorrectly refilled prescription and Ms. Hieger=s alleged injuries.[2] Relative to causation, Dr. Young=s report states as follows:
Paxil is an antidepressant with anxiolytic properties. It is prescribed for rheumatic pain syndromes and clearly has a central action against pain. In my own experience, when Paxil is stopped abruptly, the patient can go through a very uncomfortable period of worse depression, worse pain, and marked anxiety and hyper reactivity.
Ambien, like Halcion, can cause peculiar side effects if someone takes it and tries to stay awake for awhile; specifically they can act somewhat psychotic.
I was told by the patient that in October, 2003, a prescription for Paxil was miss-filled [sic] with Ambien and miss-labeled [sic]. As applied to these events, when [C]ynthia Hieger suddenly ceased taking her Paxil and began taking Ambien for daytime use, her complaints of psychosis, hypersensitivity, jitteriness, and increased pain are consistent with the known side effects of each medication.
(emphasis added). Walgreen argues that the language Aconsistent with@ does not demonstrate a causal connection because language indicating that Ms. Hieger=s symptoms are Aconsistent with@ the known side effects of the medications is not the same as saying the symptoms were in fact caused by the medication. We agree. Though an expert is not required to use Amagical words@ in expressing her opinion and expert reports are not held to the same standard as summary judgment evidence, a plaintiff still must present an expert opinion on each element required by the statute, including causation. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6); Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Palacios, 46 S.W.3d at 878B79. A description of only a possibility of causation does not constitute a good-faith effort to comply with the statute. See Bowie, 79 S.W.3d at 53 (holding that expert report opining about Athe possibility of a better outcome@ was insufficient to meet expert report statute); Estate of Allen v. Polly Ryon Hosp. Auth., No. 01-04-00151-CV, 2005 WL 497291, at *3, 5 (Tex. App.CHouston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) (finding that expert report discussing what was Amore likely@ or Acould have contributed@ constituted mere possibilities and thus were not statements of causation); Hutchinson v. Montemayor, 144 S.W.3d 614, 617B18 (Tex. App.CSan Antonio 2004, no pet.) (concluding that expert report discussing that injury Amay have been avoided@ was insufficient to meet statute); see also Smith v. Landry=s Crab Shack, Inc., 183 S.W.3d 512, 514B15 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (affirming summary judgment for defendant because plaintiff=s expert=s opinion that her illness was Aconsistent with@ food poisoning constituted no evidence of causation). Dr. Young=s report states only that Ms. Hieger=s symptoms are Aconsistent with@ the known side effects of the medication and thus expresses an opinion on a possibility, not an ultimate opinion on causation. See Smith, 183 S.W.3d at 515 (stating that expert opinion that plaintiff=s illness was Aconsistent with@ food poisoning Adid not express any ultimate opinion (in reasonable medical probability or otherwise) that [plaintiff=s food poisoning] was caused by the food she ate at the restaurant@). Thus, we hold that the trial court abused its discretion in failing to dismiss the case.
Accordingly, we sustain Walgreen=s sole issue and reverse the trial court=s judgment. We remand with instructions for the trial court to dismiss this case with prejudice and for other proceedings consistent with this opinion. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(b) (Vernon Supp. 2006).
/s/ Leslie B. Yates
Justice
Judgment rendered and Majority and Dissenting Opinions filed October 11, 2007.
Panel consists of Justices Yates, Frost, and Seymore (Seymore, J., dissenting).
[1] Appellant notes that its name is incorrectly listed as AWalgreen Company@ in the case caption.
[2] The dissent is correct that under section 74.351(i), expert reports may be considered together in determining whether the plaintiff has provided adequate expert opinion regarding the standard of care, breach, and causation. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(i) (Vernon Supp. 2006). However, because Diane Ginsburg is not a physician, she is not qualified to give an expert opinion regarding causation. See id. ' 74.403(a) (Vernon 2005) (stating that only a physician is qualified to render causation opinions in health care liability claims); Randalls Food & Drugs, L.P. v. Kocurek, No. 14-05-01184-CV, 2006 WL 2771872, at *3 (Tex. App.CHouston [14th Dist.] Sept. 28, 2006, no pet.) (mem. op.) (holding expert with master=s degree in microbiology and Ph.D. in toxicology not qualified to provide expert opinion on causation in pharmaceutical misfill case because she was not a physician). Thus, although we agree that Ginsburg=s report can be considered regarding the other statutory elements, we consider only Dr. Young=s report in determining whether the Hiegers have met their statutory obligation as to the element of causation.