COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00122-CV
Clinton Brunson, M.D. § From the 48th District Court
§ of Tarrant County (48-253022-11)
v.
§ January 17, 2013
Ellvan Johnston § Opinion by Justice Gardner
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court‘s order. It is ordered that the order of the trial
court is affirmed.
It is further ordered that appellant Clinton Brunson, M.D. shall pay all costs
of this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Anne Gardner
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00122-CV
CLINTON BRUNSON, M.D. APPELLANT
V.
ELLVAN JOHNSTON APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In this interlocutory appeal,2 Appellant Clinton Brunson, M.D. contends that
the trial court abused its discretion by denying his motion to dismiss the
healthcare liability claim filed against him by Appellee Ellvan Johnston. Dr.
Brunson asserts in one issue that the expert report by Dr. Gary Lustgarten does
1
See Tex. R. App. P. 47.4.
2
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2012).
2
not establish Dr. Lustgarten‘s qualifications to address the applicable standard of
care or breach of the standard of care and that the expert reports by Dr.
Lustgarten and Dr. Philip Shalen do not adequately set forth the required element
of proximate cause. We affirm.
II. Background
Johnston filed this lawsuit against Dr. Brunson and three other defendants
in May 2011. Johnston alleged in his original petition that he was admitted to
Presbyterian Hospital of Rockwall on June 8, 2009. The next day, Johnston
could not move his left leg. Although Johnston was later able to move his leg, he
underwent an MRI on June 9, and Dr. Brunson carried out and interpreted the
MRI scan and dictated a report. In the report, Dr. Brunson did not identify any
abnormalities in Johnston‘s spinal cord.
Dr. Michael Musacchio, a neurosurgeon, evaluated Johnston on June 11
because of Johnston‘s report of pain in his right hip and tail bone and difficulty in
moving his leg. Dr. Musacchio also reviewed the June 9 MRI scan and likewise
found no abnormalities, but he recommended that Johnston be evaluated by a
pain management doctor. Dr. Amit Darnule evaluated Johnston on June 12 but
also did not identify abnormalities on Johnston‘s June 9 MRI scan.
On June 13, Johnston exhibited escalating neurologic injuries in both lower
extremities. He was unable to move either of his legs by June 14. Dr. Ahmed
Elsehety was consulted and ―identified findings suggestive of damage to
[Johnston‘s] spinal cord at L1‖ and ―abnormalities between T9 and the top of L1.‖
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Johnston was transferred to the University of Texas Southwest Zale Lipshy
Hospital on June 18 and underwent surgery on June 19. At the time of surgery,
―there was a spinal cord intradural hematoma from T9 to L2.‖ Johnston alleged
that Dr. Brunson was negligent by failing ―to reasonably identify abnormalities in
the MRI scan of June 9, 2009 in the L1 T12 region of the spinal cord‖ and by
failing to ―provide reasonable treatment for those abnormalities.‖
Johnston served an expert report and curriculum vitae by Dr. Lustgarten
along with his original petition, and he subsequently served expert reports by
Neal H. Blauzvern, D.O. and Philip R. Shalen, M.D. Dr. Brunson filed objections
to the reports by Drs. Lustgarten and Shalen. The trial court overruled Dr.
Brunson‘s objections after a hearing, and this interlocutory appeal followed.
III. Standard of Review and Statutory Requirements
A trial court‘s ruling concerning an expert report under civil practice and
remedies code section 74.351 is reviewable under the abuse of discretion
standard. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011); Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). To determine
whether a trial court abused its discretion, we must decide whether the trial court
acted without reference to any guiding rules or principles; in other words, we
must decide whether the act was arbitrary or unreasonable. Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot conclude that a
trial court abused its discretion merely because the appellate court would have
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ruled differently in the same circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
A health care liability claimant must serve an expert report on each
defendant no later than the 120th day after the claim is filed. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a). A defendant may challenge the adequacy of a
report by filing a motion to dismiss, and the trial court must grant the motion to
dismiss if it finds after a hearing that ―the report does not represent an objective
good faith effort to comply with the definition of an expert report‖ in the statute.
Id. § 74.351(l). While the expert report ―need not marshal all [of] the plaintiff‘s
proof,‖ Palacios, 46 S.W.3d at 878 (construing former article 4590i, § 13.01), it
must provide a fair summary of the expert‘s opinions as to the ―applicable
standards of care, the manner in which the care rendered by the physician or
health care provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed.‖ Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(r)(6).
To constitute a good faith effort, the report must discuss the standards of
care, breach, and causation with sufficient specificity (1) to inform the defendant
of the conduct the plaintiff has called into question and (2) to provide the trial
court with a basis to conclude that the claims have merit. See Bowie Mem’l, 79
S.W.3d at 52; Palacios, 46 S.W.3d at 879. A report does not fulfill this
requirement if it merely states the expert‘s conclusions or if it omits any of the
statutory requirements. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at
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879. But 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.
When reviewing the adequacy of a report, the only information relevant to
the inquiry is the information contained within the four corners of the document.
Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. This requirement
precludes a court from filling gaps in a report by drawing inferences or guessing
as to what the expert likely meant or intended. See Austin Heart, P.A. v. Webb,
228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.). However, section
74.351 does not prohibit experts, as opposed to courts, from making inferences
based on medical history. Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL
2579824, at *4 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem.
op.); see also Tex. R. Evid. 703 (providing that an expert may draw inferences
from the facts or data in a particular case); Tex. R. Evid. 705 (providing that an
expert may testify in terms of opinions and inferences).
IV. Expert Qualifications
Dr. Brunson argues in the first part of his sole issue that Dr. Lustgarten‘s
expert report and attached CV do not establish his qualifications to address the
applicable standard of care or breach of the standard of care.
To be qualified, an expert must satisfy the requirements of section 74.401.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A). Under section 74.401,
the expert must be a physician who:
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(1) is practicing medicine at the time such testimony is given
or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for
the diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of medical care.
Id. § 74.401(a) (West 2011).
Dr. Lustgarten‘s expert report contains the following:
My qualifications to render opinions as an expert witness . . .
in this case are set out on my CV which [is] attached. In pertinent
part I am a board certified neurological surgeon. I graduated from
State University of Iowa College of Medicine in 1965. I served my
internship at the New York Hospital/Cornell Medical Center in New
York City in 1965 through 1966. I was flight surgeon for the United
States Air [F]orce between 1966 and 1968. In 1968 I was accepted
as a neurosurgical resident at the University of Miami-Jackson
Memorial Hospital School of Medicine, Miami, Florida. I completed
my residency in 1973 and I‘ve been in private practice of
neurosurgery since 1976. I have been Board Certified [i]n
neurological surgeries since 1976.
....
As a neurosurgeon through my training, experience and
education I have been thoroughly exposed to neuroradiology as it
pertains to interpretation of lumbar MRI scans of the type performed
on Mr. Johnston in this case on June 9, 2009. . . . Interpretation of a
lumbar spine MRI is a skill that both a radiologist and a
neurosurgeon are expected to be able to perform with competence
and accuracy to the degree with which is necessary to identify the
lesion at the T-12 through L-1 region as identified on this scan.
As such, I am qualified to express an opinion as to whether or
not Dr. Brunson met the standard of care in interpretation of the film
performed on Mr. Johnston on June 9, 2009. I am familiar with the
standard of care for Dr. Brunson and the circumstances because
both radiologist[s] like Dr. Brunson and neurosurgeons like myself
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have the responsibility to accurately and competently interpret films
of this type.
In addition to listing various honors and awards that Dr. Lustgarten has
received, his CV states that he has been licensed in Florida from ―1970 –
Present,‖ that he has been licensed in Maine from ―2000 – Present,‖ and that he
has served as a ―Florida Worker‘s Compensation Certified Physician Expert
Medical Advisor (Examiner) – ‗EMA‘‖ from ―08/05/95 – Present.‖ The CV also
states that Dr. Lustgarten is or was a ―Senior Attending‖ at Jackson North
Medical Center, but the CV does not include a date-range or clarify whether that
is a position Dr. Lustgarten held in either 2009 or 2011.
Dr. Brunson contends that Dr. Lustgarten is not qualified to offer opinions
as to the standard of care and breach of the standard of care because his expert
report and CV do not establish on their face that he ―was actively practicing
medicine in rendering medical care services relevant to [Johnston]‘s claim, either
at the time the claim arose [in 2009], or at the time he rendered the opinion in his
report [in 2011].‖ Dr. Brunson further argues that although Dr. Lustgarten‘s
report states that he has ―been in [the] private practice of neurosurgery since
1976,‖ the only employment listed during 2009 or 2011 is ―Expert Medical
Advisor.‖ Dr. Brunson argues that other statements in Dr. Lustgarten‘s report are
conclusory and are therefore insufficient to establish his qualifications. In his
reply brief, Dr. Brunson asserts that the statements that Dr. Lustgarten ―has
been‖ board certified in neurological surgeries and in the ―private practice of
8
neurosurgery‖ since 1976 and that Dr. Lustgarten has been licensed in Florida
from 1970 to the present and Maine from 2000 to the present do not establish
that Dr. Lustgarten was actively practicing medicine in 2009 or 2011.
We decline to read Dr. Lustgarten‘s CV and report so narrowly. Dr.
Lustgarten‘s report and CV expressly provide that he serves as a Florida
Worker‘s Compensation Certified Physician Expert Medical Advisor and that he
has been licensed, board certified, and in the private practice of neurosurgery
from 1976 to the present. As to whether Dr. Lustgarten, a neurosurgeon, is
qualified to address the standard of care and alleged breach by Dr. Brunson, a
radiologist, Dr. Lustgarten‘s report provides that he has been ―thoroughly
exposed‖ to neuroradiology through his years of practice and that the
interpretation of an MRI scan like that involved in this case is common to both
neurosurgery and radiology. We hold that, considered together in their entirety,
Dr. Lustgarten‘s report and CV establish his qualifications to render opinions in
this case as to the applicable standard of care and alleged breach of the
standard of care by Dr. Brunson. See Tex. Civ. Prac. & Rem. Code Ann. §
74.401(a)(1) (expert must be ―practicing medicine‖ at time of testimony or at time
claim arose); see also Moore v. Gatica, 269 S.W.3d 134, 140–41 (Tex. App.—
Fort Worth 2008, pet. denied) (stating that certain standards of medical care
―apply to multiple schools of practice and any medical doctor‖ and that a
physician of another school of practice may be ―competent to testify if he has
practical knowledge of what is usually and customarily done by a practitioner
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under circumstances similar to those confronting the defendant‖). We overrule
this part of Dr. Brunson‘s sole issue.
V. Proximate Cause
In the remainder of his sole issue, Dr. Brunson contends that the expert
reports by ―Drs. Lustgarten and Shalen, taken together or separately, are legally
insufficient‖ because they include only conclusory and speculative statements of
proximate causation.
The purpose of the expert report requirement is to inform the defendant of
the specific 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
879. A report that merely states the expert‘s conclusions about causation does
not fulfill these purposes. Id. Rather, the expert must explain the basis of his
statements to link his conclusions to the facts. Bowie Mem’l, 79 S.W.3d at 52.
A plaintiff may meet the requirements of chapter 74 through multiple
reports. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). A single report need not
―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.‖ Id. But read together, the reports must
provide a ―fair summary‖ of the experts‘ opinions. Id. § 74.351(r)(6); Barber v.
Mercer, 303 S.W.3d 786, 791 (Tex. App.—Fort Worth 2009, no pet.).
Relevant to proximate cause, Dr. Lustgarten‘s report states as follows:
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On June 9, 2009[,] Dr. Brunson breached the standard of care when
he interpreted this film but failed to identify the lesion at T-12 and L-
1. Dr. Brunson further failed to meet the standard of care in fa[i]ling
to identify the lesion, recommend follow-up imaging including MRI
scans of the thoracic and lumbar spine with and without contrast and
to make recommendation and/or direct referral to a neurosurgeon to
address the lesion. It would have been acceptable in these
circumstances to either contact the patient‘s admitting physician or if
that could not be accomplished immediately arranging emergency
consultation with a neurosurgeon for evaluation for surgery for
removal of and/or exploration of the lumbar and thoracic spine.
It is well understood and documented in medicine that emergency
decompression of the spine must be accomplished within 12 hours
of the onset of symptom. If emergency decompression of the spine
is performed on those patients who have hematoma in their spinal
canal within the first 12 hours of symptoms more likely than not such
decompression will result in restoration of neurologic function and
stabilization of the patient to such a degree that they will no longer
be paraplegic.
. . . Mr. Johnston‘s case records demonstrate that after the episode
in which he was experiencing loss of neurologic function to the left
leg he had an episode of almost complete resolution. It was not until
June 12, 2009 that he suffered findings consistent with paraplegia
that became permanent. If Dr. Brunson had met the standard of
care then Mr. Johnston would have undergone emergency
decompression of the spine prior to the onset of permanent
paraplegia three days later on June 12, 2009.
Stated another way, the evolution of Mr. Johnston‘s symptoms
created a circumstance whereby if Dr. Brunson had met the
standard of care appropriate surgical intervention could have been
performed prior to the onset of the catastrophic damages that
occurred with new onset of symptoms on June 12, 2009. . . . This
would have afforded Mr. Johnston with an opportunity for definitive
surgical correction of his problem and resolution of the mass on his
spinal cord before it ever reached the point of causing bilateral lower
extremity paralysis and paraplegia.
Dr. Shalen‘s report includes the following:
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It is my opinion, based on a reasonable degree of medical certainty
that Dr. Brunson failed to meet the reasonable, prudent and
accepted standards of medical care for a radiologist in the diagnosis,
care and treatment of Mr. El[l]van Johnston by failing to identify an
obvious conus medullaris region abnormality visible o[n] the MRI of
June 9, 2009. Compression of the conus was evident. Conus
compression was most likely secondary to a hematoma. This failure
to diagnose a conus abnormality deviates from the standard of care.
To comply with the standard of care Dr. Brunson should have:
(1) carefully reviewed the images of the MRI that showed the conus
medullaris region abnormality; (2) identified those abnormalities and
(3) dictated a report describing those abnormalities. This would
have allowed a timely recognition of the pathology in Mr. Johnston‘s
spine.
Within reasonable probability, this deviation caused an
unreasonable delay in the clinical diagnosis and intervention of his
neurological condition. The delay allowed his symptoms to increase
to the point of causing permanent neurological injury by ischemia to
the spinal cord.
Considered together, the Dr. Lustgarten and Dr. Shalen reports provide
that, more likely than not, a patient undergoing emergency decompression of the
spine within twelve hours of the onset of symptoms would have neurologic
function restored and would no longer be paraplegic; that Johnston showed signs
of permanent paraplegia on June 12, three days after Dr. Brunson performed and
interpreted the MRI scan; that Dr. Brunson‘s failure to recognize the spinal
condition and recommend or obtain further evaluation or surgical intervention
permitted Johnston‘s condition to worsen ―to the point of causing permanent
neurological injury‖; and that the delay deprived Johnston of the ―opportunity for
definitive surgical correction of his problem and resolution of the mass on his
spinal cord‖ before it led to paraplegia. In short, the expert reports provide that
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had Dr. Brunson recognized the spinal abnormality, Johnston would have
undergone spinal decompression and had his neurologic function restored but
that Johnston did not receive the proper treatment for three days, a time at which
his neurologic injury had become permanent.
Dr. Brunson argues that Dr. Lustgarten‘s and Dr. Shalen‘s causation
opinions merely ―provide insight‖ into what caused Johnston‘s paralysis but that
they do not link Dr. Brunson‘s alleged breach of the standard of care to
Johnston‘s injuries through specific facts. He further argues that the reports are
lacking because the experts leave room to speculate as to whether there would
have been time to recognize the pathology of Johnston‘s spine, whether the
other two physicians who evaluated Johnston would have agreed that surgery
should go forward, whether Johnston would have in fact undergone surgery, and
whether the surgery would have successfully prevented permanent paraplegia.
These complaints relate, however, to inferences that expert witnesses are
permitted to make. See Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App.—Fort
Worth 2009, pet. denied) (contrasting experts‘ ability to make inferences from
facts with prohibition against courts making inferences to determine if statutory
expert reports establish that claims have merit) (citing Tex. R. Evid. 703, 705);
see also Weatherford Tex. Hosp. Co. v. Riley, No. 02-10-00453-CV, 2011 WL
2518920, at *4 (Tex. App.—Fort Worth June 23, 2011, no pet.) (mem. op.)
(holding causation opinion in expert report sufficient because expert was
13
permitted to infer that physician would have performed cesarean section had
nurses discussed issues with the physician).
Rather than attempting to create a list of hypothetical scenarios not
addressed within the expert reports, the questions we must answer are whether
the Dr. Lustgarten and Dr. Shalen reports provide a fair summary of the causal
relationship between Dr. Brunson‘s alleged failure to meet the standard of care
and Johnston‘s injuries and whether the reports adequately inform Dr. Brunson of
the specific conduct Johnston has called into question. In that regard, the reports
at issue in this case are similar to the report held to be adequate in Eikenhorst v.
Wellbrock, No. 01-07-00459-CV, 2008 WL 2339735, at *2–3, 9–11 (Tex. App.—
Houston [1st Dist.] June 5, 2008, no pet.) (mem. op.). There, the expert opined
that Dr. Eikenhorst‘s failure to properly diagnose the injury and communicate his
CT scan findings caused a delay in treatment and aggravation of the patient‘s
injuries. Id. at *9. The court held that the expert‘s report ―did not only state that a
delay in diagnosis caused permanent injuries; it linked Eikenhorst‘s specific
conduct to a delay in diagnosis, leading to increased and prolonged spinal
pressure, resulting in [the patient]‘s permanent impairment.‖ Id. at *10. In this
case, the reports assert that Dr. Brunson failed to recognize the spinal
abnormality and failed to arrange further evaluation or surgical intervention for
Johnston, the result of which was a delay in treatment that led to permanent
paralysis. The reports, while not lengthy, provide sufficient information and are
14
not so conclusory or speculative that they fail to satisfy Johnston‘s statutory
obligations.
We hold that the reports by Dr. Lustgarten and Dr. Shalen gave the trial
court a sufficient basis to reasonably conclude that Johnston‘s claims have merit
and advised Dr. Brunson of the conduct Johnston has called into question. See
Palacios, 46 S.W.3d at 875. We overrule the remainder of Dr. Brunson‘s sole
issue.
VI. Conclusion
Having overruled Dr. Brunson‘s sole issue, we affirm the trial court‘s order.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: January 17, 2013
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