Affirmed and Memorandum Opinion filed July 1, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00996-CV
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ROBERT MARVIN, Appellant
V.
VICKI FITHIAN, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2007-16171
M E M O R A N D U M O P I N I O N
This interlocutory appeal pertains to a health-care liability suit brought by appellee, Vicki Fithian, against appellant, Dr. Robert Marvin.[1] In two issues, Dr. Marvin contends the trial court abused its discretion by denying his motion to dismiss because Fithian=s expert report was insufficient as a matter of law. Because all dispositive issues are settled in Texas law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background[2]
On January 30, 2006, Dr. Marvin performed laparoscopic gastric band surgery on Fithian at Renaissance Hospital in Houston, Texas. Fithian remained in the hospital for observation and was released the next day.
Following Fithian=s discharge from Renaissance Hospital, her daughter telephoned Dr. Marvin=s office to report that Fithian was experiencing pain in her left side and had a body temperature of 99.8°F. Later that day, Dr. Marvin=s office was informed that medication had resulted in reduction of Fithian=s pain, and her temperature had decreased to 97.9°F. On February 2, 2006, the third post-operative day, Fithian telephoned Dr. Marvin=s office and complained that she was Anot feeling well.@ She had generalized pain, mild shortness of breath, and a fever of 101.3°-101.8°F. Dr. Marvin referred Fithian for a computed axial tomography (CAT) scan which revealed infiltrated lungs. A chest x-ray revealed atelectasis,[3] infiltrates, and probable small pleural effusions.[4] Additionally, Fithian=s white blood cell count was elevated to almost two times the upper limits of normal, which is indicative of significant infection. Dr. Marvin prescribed antibiotics on February 3, 2006, after Fithian reported a temperature of 101.2°F.
On February 4, 2006, the fifth post-operative day, Fithian reported to Dr. Marvin that her temperature was down to 98.1°F, but she was experiencing Aa lot of pain@ and requested a new prescription for pain. Dr. Marvin prescribed additional pain medication.
On February 6, 2006, the sixth post-operative day, Dr. Marvin requested a new chest x-ray and blood count. The x-ray showed larger pleural effusions and Apulmonary consolitation.@[5] Additionally, Fithian requested that Dr. Marvin prescribe a recliner because she could not get comfortable when Alying down.@ Dr. Marvin deemed her request Anot medically necessary@ and refused to prescribe a recliner. Later that day, Fithian=s sister called Dr. Marvin and stated that it would be his fault if her sister had to be hospitalized in order to sleep.
At 1:54 a.m. on February 7, 2006, Fithian went to the emergency room of Conroe Regional Medical Center complaining of abdominal pain and a foul smelling drainage from her abdominal wound. A CAT scan showed multiple loculated fluid collections in the upper abdomen, indicating peritonitis.[6] A blood specimen indicated acute renal failure. Fithian was transported to Renaissance Hospital around noon that same day. Dr. Marvin performed surgery and discovered well-developed peritonitis in the left upper quadrant. After removing the gastric band and releasing the imbricated stomach, Dr. Marvin discovered a pinpoint area leaking Agastric juice.@ He installed a gastrostomy tube in order to feed Fithian. He also performed extensive debridement[7] of muscle, subcutaneous fat, and skin around the area where the surgical access port had been placed. The skin defect produced by the debridement was left open.
Fithian was hospitalized until February 28, 2006. She was readmitted to Methodist Hospital on March 31, 2006, complaining of abdominal pain with nausea and vomiting. After her intra-abdominal abscess was drained, she was discharged on April 11, 2006. Following discharge from the hospital, Fithian received home care from visiting nurses.
Fithian filed suit against Dr. Marvin, claiming that his negligence caused her actual damages including medical bills, physical disability, physical impairment, disfigurement, lost wages, lost earning capacity, physical pain, and mental anguish. Pursuant to section 74.351 of the Civil Practice and Remedies Code, Fithian timely served Dr. Martin=s expert report. According to Dr. Martin, Dr. Marvin breached the standard of care by failing to timely conduct a physical exam after Fithian presented with evidence of a post-operative infection.
Dr. Marvin filed a motion to dismiss, arguing that Dr. Martin=s expert report was not sufficient to fulfill the requirements of section 74.351. The trial court sustained Dr. Marvin=s objections, but granted Fithian a thirty-day extension to produce another report. Fithian served Dr. Martin=s second report on September 24, 2007. Dr. Marvin filed a second motion to dismiss, which the trial court denied. This interlocutory appeal followed.
II. Analysis
In two issues, Dr. Marvin contends the trial court abused its discretion by denying his motion to dismiss because Dr. Martin=s expert opinions are conclusory. Specifically, Dr. Marvin contends Dr. Martin=s opinion on causation is without factual support and his opinions on the standard of care are based on unsupported assumptions that are contradicted by the evidence.
We review a trial court=s ruling regarding the adequacy of an expert report for abuse of discretion. Am. Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court commits an abuse of discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). We may not substitute our judgment for that of the trial court when reviewing matters committed to the trial court=s discretion. Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992).
Under 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. 2005). A defendant may file a motion challenging the adequacy of the report, and the trial court Ashall grant@ the motion only if it appears the report does not represent a good faith effort to comply with the statutory definition of an expert report. See id. '' 74.351(a), 74.351(l). In determining whether a claimant made a good faith effort, the trial court=s inquiry is limited to the four corners of the report, and no inferences may be drawn from information not included in the report. See Palacios, 46 S.W.3d at 878. An expert report is defined as a written report by an expert that provides a fair summary of the expert=s opinions regarding: (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6) (Vernon Supp. 2005); Palacios, 46 S.W.3d at 878B79. In compliance with these standards, the claimant=s expert must incorporate enough information to fulfill two purposes: (1) inform the defendant of the specific conduct the plaintiff has called into question; and (2) provide a basis for the trial court to conclude the claims are meritorious. Palacios, 46 S.W.3d at 879.
A report that merely reflects the expert=s conclusions about the standard of care, breach, and causation does not fulfill these purposes. Id. An expert must explain the basis for his statements and link his conclusions to the facts. Wright, 79 S.W.3d at 52. However, a claimant need not present all the evidence necessary to litigate the merits of her case. Palacios, 46 S.W.3d at 879. The report may be informal, and it is unnecessary for the claimant to fulfill the requirements for evidence offered in a summary-judgment proceeding or at trial. Id. Moreover, the expert is not required to express the causal relationship in predicates amounting to Amagical@ words. Wright, 79 S.W.3d at 53.
A. Causation
Dr. Marvin argues that the trial court abused its discretion by finding Dr. Martin=s report complies with section 74.351 because Dr. Martin=s causation opinions are conclusory. Specifically, Dr. Marvin contends (1) Dr. Martin=s opinion that failure to conduct a physical exam was Aassociated with@ Fithian=s damages is conclusory and insufficient to provide a fair summary of facts supporting proximate cause; (2) Dr. Martin failed to provide a sufficient factual basis to support the claim that different treatment would have prevented Fithian=s damages; (3) Dr. Martin=s opinion that surgery to close the hole in Fithian=s stomach could have been performed on February 3 required the trial court to indulge an impermissible inference from outside the expert report that the pin hole existed on February 3; (4) Dr. Martin failed to provide a fair summary regarding the relevant causal facts because he did not explain how different care from February 3B6 would have prevented Fithian=s damages when peritonitis and infection were present prior to Dr. Marvin=s alleged negligence; and (5) Dr. Martin failed to address a number of Fithian=s claims for damages. However, we determine that Dr. Martin=s expert report constituted a good faith effort in compliance with section 74.351.
Dr. Marvin first argues that Dr. Martin did not adequately describe the factual basis for his contention that different treatment would have prevented Fithian=s damages. We disagree. Dr. Martin explained that surgery could have been performed prior to deterioration of Fithian=s organs if the source of her post-surgical infections had been discovered on February 3. In the report, Dr. Martin described a series of missed chances for an accurate diagnosis of the cause of Fithian=s infections. Dr. Martin stated that Fithian would have been timely diagnosed with peritonitis, and surgery would have been performed to close the hole in her stomach if a qualified physician had performed a physical exam on February 3. Dr. Martin explained that surgery would have eliminated the source of the Fithian=s peritonitis and Aalmost all of her subsequent problems.@ Dr. Martin opined that Fithian would not have developed kidney failure and pulmonary insufficiency if this course of action had been followed. Dr. Martin stated that each day Dr. Marvin missed an opportunity to intervene, more of Fithian=s tissues was destroyed by infection and her period of disability was increased. According to Dr. Martin, Fithian suffered from life-threatening peritonitis, secondary pulmonary insufficiency, pleural effusions with toxic cellular products, and secondary kidney failure because she was not timely diagnosed and treated. Accordingly, the trial court did not abuse its discretion by finding Dr. Martin described facts and circumstances sufficient to support his opinion that Dr. Marvin=s alleged negligence caused Fithian=s injuries.[8]
Dr. Marvin further argues that Dr. Martin failed to describe facts sufficient to support the assumptions and inferences drawn in his report. Specifically, Dr. Marvin contends Dr. Martin engaged in an impermissible inference that the pin hole in Fithians=s stomach existed on February 3. We disagree.
Dr. Martin infered that the pin hole in Fithian=s abdomen existed on February 3 based on the fact that she exhibited signs of infection only three days after undergoing laparoscopic gastric band surgery and the source of major infection was ultimately determined to stem from that surgery. We acknowledge that Dr. Martin=s conclusion may have been based on an inference, gleaned from medical records, that the source of Fithian=s peritonitis, present on February 7, was the same source of her infection which was present on February 3. We acknowledge that trial courts are prohibited from drawing inferences from outside the four corners of an expert report; see Palacios, 46 S.W.3d at 878; however, section 74.351 does not prohibit experts from making inferences based on medical history. See generally Tex. Civ. Prac. & Rem. Code Ann. ' 74.351. Therefore, we conclude Dr. Marvin=s contention lacks merit.
Additionally, Dr. Marvin argues that Dr. Martin=s report is deficient because Dr. Martin did not provide an opinion regarding the possible effect of the peritonitis and other infection that may have existed prior to Dr. Marvin=s alleged failure to timely diagnose and treat Fithian. However, as stated above, an expert must inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims are meritorious; he need not present all evidence necessary to litigate the merits of the plaintiff=s case or marshal all of the plaintiff=s proof. Palacios, 46 S.W.3d at 879. This specific objection to Dr. Martin=s report pertains to the measure of damages, not the question of whether Dr. Martin sufficiently described the specific conduct Fithian has called into question or whether the report provides a basis for the trial court to conclude the claims have merit. According to Dr. Martin, Fithian suffered an increase in damages due to Dr. Marvin=s alleged breach of the standard of care. Therefore, the trial court could properly have found that Dr. Martin=s report was sufficient to inform Dr. Marvin regarding the specific conduct called into question and afforded him the opportunity to form an opinion regarding whether the claims had potential merit. We reach this conclusion despite Dr. Martin=s alleged failure to differentiate between Fithian=s damages caused by a pre-existing condition and damages stemming from Dr. Marvin=s alleged negligence.
Finally, Dr. Marvin contends the trial court abused its discretion by failing to dismiss the claims not addressed in Dr. Martin=s report. A trial court is warranted in dismissing claims resulting from a defendant=s alleged breach of a standard of care if those results are not addressed in the plaintiff=s expert report. Farishta v. Tenet Healthsystem Hosps. Dallas, Inc., 224 S.W.3d 448, 455 (Tex. App.CFort Worth 2007, no pet.). In Farishta, the plaintiff alleged that the defendant=s negligence was a proximate cause of the plaintiff=s infection, related injuries, illness, developmental impairment, and damages. Id. In a section 74.351 report, the plaintiff=s expert opined that the defendant=s alleged breach of the standard of care caused respiratory distress, cyanosis, pneumonia, and other injuries sustained at birth. Id. The expert did not address developmental impairment, which the plaintiff had alleged in her petition. Id. The Farishta court held that the trial court properly dismissed the plaintiff=s claims related to developmental impairment and illness other than those specifically enumerated in the report because the expert failed to provide a fair summary regarding the causal link between those damages and the defendant=s breach of the standard of care. Id.
Here, Dr. Marvin contends that Dr. Martin failed to address the following claims: damages not caused by kidney failure, pulmonary insufficiency, or lack of abdominal muscle, fat, or skin; future medical expenses; future disability; future impairment; future lost earning capacity; and future pain and mental anguish. However, Dr. Martin opined that all of Fithian=s damages stemmed from the undiagnosed peritonitis, which led to kidney failure, pulmonary insufficiency, and the necessary debridement of abdominal muscle, fat, and skin. We cannot conclude the trial court abused its discretion by declining to dismiss the cited claims.
In sum, the trial court acted within its discretion by finding Dr. Martin=s opinions regarding causation and damages were not conclusory. Accordingly, we overrule Dr. Marvin=s first issue.
B. Standard of Care and Alleged Breach
Second, we will address Dr. Marvin=s contentions regarding the adequacy of Dr. Martin=s report relative to the standard of care. In his report, Dr. Martin set forth the applicable standard of care: A[upon receiving data indicating an infection the] standard of care required the surgeon to have a qualified physician perform a physical exam on the patient to determine potential sources of infection, both obvious and more subtle.@ Dr. Marvin does not dispute Dr. Martin=s description of the applicable standard of care; however, he contends Dr. Martin failed to sufficiently link the standard of care to circumstances presented in this case. Dr. Marvin acknowledges that under the standard of care, an examination by a qualified physician is required upon discovery of post-operative infection; however, he argues that Dr. Martin failed to adequately describe facts and circumstances necessitating such a physical exam.
Dr. Martin=s report states ADr. Marvin departed from the standard of care by not initiating direct physician contact with his patient on February 3, 2006, the day he received irrefutable evidence that she had an unanticipated and potentially life-threatening post-operative infection.@ In support of this conclusion, Dr. Martin referenced symptoms indicating Fithian suffered from a post-surgical infection on February 3, including Fithian=s February 2 reports of generalized pain, mild shortness of breath, and fever of 101.3°-101.8°F, as well as the February 2 CAT scan and chest x-ray showing infiltrated lungs and atelectasis. Accordingly, we conclude Dr. Martin provided sufficient facts to support Fithian=s claim that Dr. Marvin breached the standard of care regarding initiating contact and performing a physical examination.
However, Dr. Marvin further argues that the facts recited in Dr. Martin=s report contradict Dr. Martin=s conclusion that, under the standard of care, Dr. Marvin should have arranged for a qualified physician to conduct a physical examination. Dr. Marvin contends that Dr. Martin demonstrated only that, on February 2, Fithian was experiencing an infection in her lungs and there are no facts indicating when peritonitis formed.[9] Additionally, he notes Dr. Martin did not describe circumstances such as a CAT scan reflecting abnormalities in Fithian=s abdomen or how an infection in her lungs could spread without detection by the CAT scan. Dr. Marvin contends the trial court must have made an impermissible inference from information outside Dr. Martin=s expert report by concluding that Fithian suffered from peritonitis on February 2.
However, according to Dr. Martin, under the applicable standard of care, after observing evidence of post-operative infection, a qualified physician is required to conduct a physical examination to determine the potential source of the infection. On February 2, Fithian=s oral reports regarding her physical symptoms, her elevated white blood cell count, as well as the CAT scan and chest x-ray showing infiltrated lungs, atelectasis, and probable small pleural effusions, indicated she was experiencing post-operative infection. Additionally, Dr. Martin noted that an intra-abdominal infection may escape from abdominal lining and attack extra-abdominal tissues. Pursuant to the standard of care, when Fithian presented with evidence of an infection, Dr. Marvin, or another qualified physician, should have performed a physical exam. Dr. Martin opines that Dr. Marvin failed to comply with the applicable standard of care by neglecting to perform a physical exam.
After reviewing Dr. Martin=s expert report, we conclude the trial court acted within its discretion by concluding that Dr. Martin provided a fair summary of the applicable standard of care and sufficiently described the factual basis for his opinion that Dr. Marvin breached that standard. We overrule Dr. Marvin=s second issue.
The trial court=s order denying Dr. Marvin=s motion to dismiss is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed July 1, 2008.
Panel consists of Justices Fowler, Frost, and Seymore.
[1] Fithian originally sued Dr. Marvin and Houston Community Hospital, Inc. d/b/a Renaissance Hospital, Inc. Subsequently, she non-suited her claims against Renaissance Hospital, Inc.
[2] The medical history outlined in this opinion is taken from Dr. Martin=s report. We restate these facts solely to provide a background for disposition of this interlocutory appeal and for no other purpose.
[3] The collapse of all or part of a lung.
[4] Excess fluid in the body cavity surrounding the lungs.
[5] A condition in which tissue becomes firm and solid rather than elastic due to the accumulation of fluids and tissue debris.
[6] An infection of the abdominal cavity.
[7] The removal of dead, damaged, and infected tissue.
[8] Although his brief is somewhat unclear, Dr. Marvin seems to contend Dr. Martin=s report was deficient because he failed to adequately explain the surgical procedures required to alleviate Fithian=s infection. We disagree. Presumably, Dr. Marvin contends that an expert, opining that a patient needs surgery to cure infection, lacks a factual basis for that opinion if he fails to describe the procedures for addressing the source of infection and state how the surgeon would treat any infection present at the time of the surgery. However, the source of Fithian=s peritonitis was adequately described, and we do not agree that the statute requires Dr. Martin to detail the type of surgical procedures calculated to resolve all of Fithian=s physical injuries.
[9] Although Dr. Marvin raises this specific argument in the Acausation@ section of his brief, we address it here because this argument concerns the adequacy of the report regarding the alleged breach of the standard of care.