NUMBERS 13-13-00116-CV & 13-13-00117-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FILIBERTO RODRIGUEZ-SALINAS, M.D.
AND CARDIO-THORACIC
SURGEONS OF MCALLEN, Appellants,
v.
YVETTE M. CANO, ET AL., Appellees.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez, and Justices Perkes, and Wittig1
Memorandum Opinion by Justice Wittig
Appellants, Filiberto Rodriguez-Salinas. M.D. & Cardiothoracic Surgeons of
1
Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice
of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN § 74.003
(West 2005).
McAllen, complain that the trial court erred by denying their motions to dismiss and
overruling their objections to the medical expert reports of Andrew S. Wechsler, M.D. and
Zoltan G. Turi, M.D. In this accelerated appeal, appellants argue three issues: (1) that
Dr. Wechsler’s report failed to address medical liability claims pled by appellees Yvette M.
Cano et al.2; (2) that Dr. Turi lacked qualifications; and (3) that appellees did not meet the
statutory requirements of the Medical Liability Act as to these reports. We affirm the
actions of the trial court.
I. BACKGROUND
Plaintiffs’ Second Amended Original Petition pled a cause of action for negligence
against Dr. Rodriguez-Salinas and Cardio-Thoracic Surgeons of McAllen, inter alios.
Specifically, paragraph 4.1 states that the cause of action for medical malpractice is
premised upon a misdiagnosis and an improper course of treatment or mistreatment
ending with the death of Abraham Palacios Cano. Paragraph 4.2 alleges that defendant
Blake misdiagnosed the carotid angiogram. Appellants, together with defendant
Harlingen Medical Center and defendant Eduardo D. Flores, M.D., began an improper
course of treatment premised upon the misdiagnosis. Paragraph 4.3 alleges appellants
performed procedures and surgeries that were unnecessary and negligently elected to
perform the several procedures all in one setting. Paragraph 4.4 alleges appellants and
Harlingen Medical Center negligently failed to diagnose the patient’s retroperitoneal
bleed, and negligently allowed the patient to exsanguinate.
Appellees filed two expert reports, one by Dr. Wechsler and another by Dr. Turi.
2
Appellees include Yvette M. Cano, individually and as representative of the estate of Abraham
Palacios Cano, deceased, Mary Helen Cano, Liza Battah, Anna James, and Michelle Proctor.
2
Appellants filed objections and a motion to dismiss as to both reports. The trial court
denied the objections and motions to dismiss. This interlocutory appeal ensued.
II. STANDARD OF REVIEW
The Medical Liability Act requires a claimant to file an expert report “[i]n a health
care liability claim.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630–31 (Tex. 2013)
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)). Once an expert report is timely
served and properly challenged, the trial court: shall 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 definition of an expert
report. Id.; Tex. CIV. PRAC. & REM. CODE § 74.351(l); Loaisiga v. Cerda, 379 S.W.3d 248,
260 (Tex. 2012). A valid expert report has three elements: it must fairly summarize the
applicable standard of care; it must explain how a physician or health care provider failed
to meet that standard; and it must establish the causal relationship between the failure
and the harm alleged. Id.; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Scoresby v.
Santillan, 346 S.W.3d 546, 556 (Tex. 2011). A report that satisfies these requirements,
even if as to one theory only, entitles the claimant to proceed with a suit against the
physician or health care provider. Potts, 392 S.W.3d at 630.
The expert report serves two functions. “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.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
879 (Tex. 2001).
3
A report need not cover every alleged liability theory to make the defendant aware
of the conduct that is at issue. Potts, 392 S.W.3d at 630–31. Palacios recognized that
an expert report does not require litigation-ready evidence. See 46 S.W.3d. at 879. “[T]o
avoid dismissal . . . [t]he 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.” Id. For the particular liability theory addressed, the report must
sufficiently describe the defendant’s alleged conduct, which both informs a defendant of
the behavior in question and allows the trial court to determine if the allegations have
merit. Potts, 392 S.W.3d at 631. If the trial court decides that a liability theory is
supported, then the claim is not frivolous and the suit may proceed. Id.
We review the denial of a motion to dismiss under an abuse of discretion
standard. Palacios, 46 S.W.3d at 877 (a district 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) (per curiam) (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). We likewise review
a trial court’s determination of whether a physician is qualified to opine in a health care
liability case under an abuse of discretion standard. Larson v. Downing, 197 S.W.3d
303, 304–05 (Tex. 2006) (per curiam); Mem’l Hermann Healthcare Sys. v. Burrell, 230
S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
III. ANALYSIS
Appellants argue that Dr. Wechsler’s report fails to address any theories of liability
in appellees’ petition. They argue from Palacios that the report must inform them
4
regarding the specific conduct called into question. See 46 S.W.3d at 879. Closer in
point to appellants’ argument, appellants cite Windsor v. Maxwell, 121 S.W.3d 42, 51
(Tex. App.—Fort Worth 2003, pet. denied) (holding that to inform the defendant of the
specific conduct the plaintiff has called into question, the report must support the cause of
action alleged by the plaintiff in its pleadings). Appellants go on to argue that the only
criticisms in Dr. Wechsler’s report were the failure to dictate intelligible operative notes
and that Dr. Rodriguez-Salinas failed to administer sufficient cardioplegia during the
procedure. According to appellants, these two criticisms do not address the theories of
liability pled. They cite Qi for the proposition that the report need not address each and
every action or omission mentioned in the pleadings but must address at least one liability
theory. See Univ. of Tex. Med. Branch at Galveston v. Qi, 370 S.W.3d 406, 415 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). We agree in part.
The Wechsler report states that the patient Abraham Cano, M.D., 67, was
diagnosed with moderately severe aortic stenosis with symptoms of increasing fatigue
and shortness of breath. Cano was noted to have three-vessel coronary artery disease
with excellent ventricular function. The survival rate for patients with this condition is
greater than 90% if the patient is treated in accordance with the standard of care. The
initial part of the operation proceeded without apparent adverse affects. Dr.
Rodriguez-Salinas applied an aortic cross-clamp at 10:45 and used both antegrade and
retrograde cardioplegia. The cross-clamp was released at about 13:45 indicating the
period of ischemic arrest was three hours. At the time of the release, left ventricular
function was poor and the patient could not be sustained off cardiopulmonary bypass.
5
Five units of red blood cells were transfused. Bulging of the patient’s diaphragm was
noted, the right groin was explored, and the femoral artery repaired. There was severe
coagulopathy and massive blood transfusions were given.
The pleadings indicated the defendants negligently failed to diagnose the patient’s
retroperitoneal bleed and negligently allowed the patient to exsanguinate. In paragraph
4.1, it is also alleged that a misdiagnosis and an improper course of treatment or
mistreatment ended with the death of Cano.3 The report stated that Dr. Cano’s poor
heart function at the termination of the procedure was proximately caused by the
defendants’ departure from the standard of care in failing to provide adequate myocardial
protection. The effective administration of cardioplegia (heart arresting and preserving
solution) is a critical component of cardiac operations, particularly when performed on
hypertrophied hearts with coronary artery disease. The initial dose of 400ml was too low
for effective preservation of a hypertrophied heart. Only a portion of the cardioplegia
administered actually gains access to the heart muscle. The given doses of 300ml over
a three hour period were inadequate. The total amount of cardioplegia administered
during the three hours was only 2000ml. The time required to deliver the intermittent
300ml doses (after the initial dose) also suggests improper placement of the retrograde
cardioplegia catheter. The standard of care required diligence in the frequent and
effective delivery of the cardioplegic solution which Dr. Rodriguez-Salinas failed to do.
The failure to meet this standard of care caused damage to the patient by causing loss of
heart function. The report states that acceptable doses of cardioplegia, more or less,
3
Appellants fail to address these allegations in their brief.
6
should have been one liter at inception of the cross clamp interval with additional doses of
500ml every 15-20 minutes. “The flow rate should have been a minimum of
150-200ml/minutes rather than the calculated flow rate which is estimated at
60ml/minute.” The multiple departures from the standard of care were negligent, which
in reasonable medical probability proximately caused the death of Cano.
We agree with appellants that Dr. Wechsler’s report does not appear to address
the allegations in paragraph 4.2 and 4.3 of the second amended petition. However, as
we view the petition paragraphs 4.1 and 4.4, they allege causes of action addressed in
the report. The allegations include claims that appellants and Harlingen Medical Center
negligently allowed the patient to exsanguinate and paragraph 4.1 states that the cause
of action for medical malpractice is premised in part on an improper course of treatment or
mistreatment ending with the death of Cano. While these pleadings may be subject to
special exceptions, the second amended petition was superseded by a third amended
petition filed March 6, 2013, during the pendency of this appeal. See TEX. R. CIV. P. 91.
Claims raised in the second amended petition’s paragraphs 4.1 and 4.4 are adequately
addressed in Dr. Wechsler’s report. In particular the allegation of improper treatment or
mistreatment ending in the death of Cano is appropriately addressed by the report. Any
complaints by appellants regarding the sufficiency of these pleadings is best addressed
by special exceptions. See id.
We conclude that the trial court did not abuse its discretion in overruling appellants’
objections and denying their motion to dismiss. Dr. Wechsler’s report satisfies the expert
report requirements because it “provides a fair summary of the expert’s opinions as of the
7
date of the report regarding applicable standards of care, the manner in which the care
rendered by the physician failed to meet the standards, and the causal relationship
between the failure and the injury, harm or damages claimed.” TEX. CIV. PRAC. & REM.
CODE § 74.351(r)(6); Scoresby, 346 S.W.3d at 556. It appears to us that the report
represents an objective good faith effort to comply with the definition of an expert report.
Tex. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Loaisiga, 379 S.W.3d at 260.
The second expert report filed by plaintiffs was prepared by Dr. Turi, who is board
certified in internal medicine, cardiovascular disease, and interventional cardiology. Dr.
Turi is not board certified in cardiothoracic surgery (not necessarily required) and neither
his curriculum vitae nor his report demonstrate that he had experience in the particular
type of cardiac surgery performed or that he taught the surgical procedure at issue in this
case (also not necessarily required). Appellants argue that the trial court erred by not
holding Turi to be unqualified. See Larson, 197 S.W.3d at 304 (holding that under the
abuse of discretion standard, close calls must go to the trial court). However, in light of
Dr. Wechsler’s satisfactory report, the issue is not necessary to our holding and we need
not address this question. See TEX. R. APP. P. 47.1.
In their third and final issue, appellants argue the trial court’s ruling is in error
because of appellees’ failure to meet the statutory requirements. Essentially, appellants
reiterate their arguments addressed above. They additionally cite Carreras v. Trevino,
298 S.W.3d 721, 726 (Tex. App.—Corpus Christi, 2009, no pet.) (holding the report
inadequate because it did not demonstrate qualifications to render an expert medical
opinion in this case). They also cite Palacios for the application of the abuse of
8
discretion standard for dismissal and qualifications for the expert report. Palacios, 46
S.W.3d at 877–80. See our discussion above on the application of these principles.
IV. CONCLUSION
Because the appellees produced an expert report that adequately addressed at
least one pled liability theory, the statutory requirements are satisfied, and “the trial court
must not dismiss in such a case.” Potts, 392 S.W.3d at 632. We affirm the orders of the
trial court.
Don Wittig
Justice
Delivered and filed the
12th day of September, 2013.
9