In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00597-CV
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INTRA-OP MONITORING SERVICES, LLC AND
JUSTIN HAWKINS, Appellants
V.
RACHEL CAUSEY AND BILL CAUSEY, Appellees
________________________________________________________________________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 10-06-06191 CV
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MEMORANDUM OPINION
Intra-Op Monitoring Services, LLC (―Intra-Op‖) and Justin Hawkins appeal
the trial court‘s order denying their motion to dismiss the Causeys‘ health care
liability claims pursuant to section 74.351 of the Texas Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011).
Because the supplemental expert report was sufficient for the trial court to find it
met the requirements of section 74.351, we affirm the order of the trial court.
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I. BACKGROUND
In May 2009, Dr. Rosalia Burke performed a right superficial
parotidectomy1 on Rachel Causey at Memorial Hermann Hospital–The
Woodlands. To assist in locating Rachel‘s facial nerve, Dr. Burke utilized
intraoperative neurophysiological monitoring (IONM). Intra-Op provided the
IONM equipment. The IONM equipment allows real-time mapping of areas with
nerve branches by the placement of monitoring electrodes (which provide
electroconductive feedback) on a patient‘s cranial nerves so the surgeon may avoid
damaging the nerves during surgery. Intra-Op also provided the technologist,
Justin Hawkins, who was present during the surgery. Dr. Charles Popeney, a
neurologist specializing in intraoperative neurophysiological monitoring, assisted
Dr. Burke by monitoring the readings from the IONM equipment, from a remote
location. During the procedure, Rachel‘s facial nerve was inadvertently transected.
The Causeys filed a report authored by Dr. Jaime Lopez to comply with the
statutory requirements that apply to health care liability claims. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351. Intra-Op and Hawkins filed objections to the
sufficiency of the expert report. The trial court overruled the objections and denied
1
A parotidectomy is the ―surgical removal of the parotid gland[.]‖
Webster’s Third New International Dictionary 1644 (2002). The parotid gland is
―either of a pair of salivary glands situated on the side of the face below and in
front of the ear[.]‖ Id.
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the parties‘ motion to dismiss. Intra-Op and Hawkins appealed the trial court‘s
ruling. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2012).
In the prior appeal, we concluded that Dr. Lopez‘s report failed to provide a fair
summary that explained how the acts or omissions of Intra-Op and Hawkins
proximately caused Rachel‘s injury. See Intra-Op Monitoring Servs., LLC v.
Causey, No. 09-12-00050-CV, 2012 WL 2849281, at *1 (Tex. App.—Beaumont
July 12, 2012, no pet.) (mem. op.). We reversed the trial court‘s order and
remanded the case to the trial court to consider the Causeys‘ request for additional
time to cure the deficiencies. Id. at *5.
The trial court subsequently granted Intra-Op‘s and Hawkins‘s request for an
extension of time and Dr. Lopez filed a supplemental report. Intra-Op and Hawkins
objected to the sufficiency of the supplemental report and moved to dismiss. The
trial court overruled the objections and denied the motion to dismiss. This
interlocutory appeal followed. On appeal, Intra-Op and Hawkins argue that Dr.
Lopez‘s supplemental report still fails to explain how the alleged acts or omissions
of Intra-Op and Hawkins caused Rachel‘s injuries and fails to adequately address
the standard of care and breach of the standard of care. Finding no abuse of
discretion by the trial court in denying the motion to dismiss, we affirm the order
of the trial court.
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II. APPLICABLE LAW
We review a trial court‘s denial of a motion to dismiss under section 74.351
of the Civil Practice and Remedies Code for an abuse of discretion. See Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.
2001). ―A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles.‖ Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if
it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992).
A plaintiff who asserts a health care liability claim, as defined by the statute,
must provide each defendant physician or health care provider with an expert
report which provides ―a fair summary of the expert‘s opinions‖ as of the date of
the report regarding the applicable standards of care, the manner in which the care
rendered failed to meet the applicable standards, and the causal relationship
between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a), (r)(6). When a plaintiff timely files an expert report and a defendant
moves to dismiss on the basis that the report is insufficient, the trial court must
grant the motion only if the report does not represent a good faith effort to meet the
statutory requirements. Id. § 74.351(l). To constitute a good faith effort, a report
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―must discuss the standard of care, breach, and causation with sufficient specificity
to inform the defendant of the conduct the plaintiff has called into question and to
provide a basis for the trial court to conclude that the claims have merit.‖
Palacios, 46 S.W.3d at 875.
―A report cannot merely state the expert‘s conclusions about these
elements[]‖ but ―‗must explain the basis of [the] statements to link [the]
conclusions to the facts.‘‖ Bowie, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998
S.W.2d 882, 890 (Tex. 1999)); see also Jelinek v. Casas, 328 S.W.3d 526, 539-40
(Tex. 2010). A report that merely states the expert‘s conclusions about the standard
of care, breach, and causation is deficient. Palacios, 46 S.W.3d at 879. Further, a
report that omits any of the statutory elements is likewise deficient. Id. Regarding
claims of vicarious liability, an expert report is sufficient when it ―adequately
implicates the actions of that party‘s agents or employees[.]‖ Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). ―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.‖ Palacios, 46
S.W.3d at 879.
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III. ANALYSIS
In our prior opinion, we concluded that Dr. Lopez‘s initial report was
insufficient because we were unable to determine from the report which of the
defendants failed to properly interpret the monitoring data, what monitoring data
was not properly interpreted, what the standards of care applicable to a
technologist such as Hawkins required, at what point during the surgery the facial
nerve was cut, and what information should have been provided to Dr. Burke that
would have allowed her to avoid cutting the facial nerve. Intra-Op, 2012 WL
2849281, at *3. Dr. Lopez‘s supplemental report answers these questions and
provides a fair summary of the standards of care, breach, and causation. See
Palacios, 46 S.W.3d at 875.
In his supplemental report, Dr. Lopez extensively sets out the standards of
care applicable to Hawkins, including, but not limited to, a duty to ―properly and
competently place invasive intramuscular recording electrodes in the correct facial
nerve innervated muscles, corresponding to the nerve at risk for injury and those
muscles used as controls[;]‖ ―monitoring continuous and electrically stimulated
electromyographic activity from the facial innervated muscles and a non-facial
innervated muscle for control purposes[;]‖ ―[r]eviewing the baseline IONM data
with Dr. Popeney prior to the first incision of the case[;]‖ ―[r]eviewing the IONM
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data obtained prior to the critical portion of the surgery[;]‖ ―[r]eviewing and
confirming the IONM dynamic data results, in real-time, as it was obtained with
Dr. Popeney . . . in a contemporaneous manner[;]‖ ―[t]o promptly inform the
surgeon of any IONM testing results and/or changes after reviewing the data with
Dr. Popeney[;]‖ and to ―not independently interpret the IONM data, . . . [because]
[t]his must be done by the supervising IONM physician, in this case, Dr. Popeney.‖
To evidence a breach of the standard of care, Dr. Lopez relied upon the
events of the surgery, Dr. Burke‘s post-operative report, Dr. Burke‘s affidavit, and
a communications log and chat log that recorded communications between
Hawkins and Dr. Popeney during the surgery. In his supplemental report, Dr.
Lopez states that surgery began at 1:25 p.m. but Dr. Popeney did not begin
monitoring until 2:18 p.m., leaving Hawkins ―unsupervised at the start of the case‖
and indicating that Dr. Popeney did not review any of the baseline IONM data at
the start of the case. Dr. Lopez specifically asserts that Hawkins breached the
applicable standards of care because he failed to monitor non-facial innervated
control muscles. Dr. Lopez explains that ―[h]aving a control muscle innervated by
a different nerve helps to determine if the muscle activity seen is due to electrical
artifact, a generalized process, or if it is specifically a result of activity from the
nerve in question[.]‖ Dr. Lopez further asserts that Hawkins breached the standards
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of care by failing to review the baseline IONM data with Dr. Popeney, or any other
IONM physician, failing to review the IONM data obtained prior to the critical
portion of the surgery, failing to review the IONM data contemporaneously with
Dr. Popeney, and independently and improperly interpreting the IONM data.
Based on communications in the chat log, Dr. Lopez asserts in his
supplemental report that Hawkins was ―not in communication‖ with Dr. Popeney
from 2:36 p.m. to 3:15 p.m., the period during the surgery that Dr. Burke was
stimulating structures in an attempt to verify the nerve position. Dr. Lopez states
that Hawkins breached the standard of care by failing to inform Dr. Burke that the
IONM data had not been reviewed by the supervising IONM physician. Dr. Lopez
reports that prior to cutting the facial nerve, Dr. Burke stimulated to verify the
nerve position and the IONM data ―‗showed stimulation of all branches of the
facial nerve.‘‖ Dr. Lopez explains that the IONM screenshot at 2:44 p.m. ―of the
electrically triggered EMG response shows an electrical shock artifact but no true
EMG (muscle) response.‖ Dr. Lopez states:
This would indicate that the facial nerve was not being electrically
activated. Instead, by being told [by Hawkins] there was activity “on
Oculi, oris, and Mandibular” . . . Dr. Burke was led to believe that the
structure she was stimulating was indeed the facial nerve. This is of
crucial importance because if she thought the structure she stimulated
was the facial nerve, then she would assume the other structures
encountered were not the facial nerve and treat them differently. This
erroneous and false identification of the facial nerve, within
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reasonable medical probability, contributed to the transection of the
facial nerve, since the IONM nerve stimulation results conveyed to
Dr. Burke indicated she had identified the facial nerve and, thus, the
other structures in the surgical field could be treated as non-nerve[.]
Dr. Lopez concluded that Hawkins should have informed Dr. Burke that he
had not confirmed any of the electrical stimulation findings with Dr. Popeney, and
that he was unable to interpret the data, or confirm that the structure stimulated was
the facial nerve. Dr. Lopez opined that ―[d]oing this would have alerted Dr. Burke
of the uncertainty of the situation regarding facial nerve identification and would
have given her the opportunity to wait for Dr. Popeney to review the IONM data
and then stimulate other structures‖ to correctly identify the facial nerve.
Dr. Lopez sets forth in his supplemental report the applicable standards of
care and how they were allegedly breached by Hawkins. Dr. Lopez‘s explanation
of how and why Hawkins‘s breach of the standards of care may have caused or
contributed to Dr. Burke inadvertently cutting the facial nerve provides a sufficient
basis for the trial court to determine that the claim has merit. See Jelinek, 328
S.W.3d at 539-40; Palacios, 46 S.W.3d at 879. We conclude the trial court did not
abuse its discretion in denying Intra-Op‘s and Hawkins‘s motion to dismiss. We
affirm the order of the trial court.
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AFFIRMED.
___________________________
CHARLES KREGER
Justice
Submitted on March 12, 2013
Opinion Delivered April 25, 2013
Before Gaultney, Kreger, and Horton, JJ.
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