Opinion issued April 18, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00987-CV
———————————
SAM LO, M.D. AND SOUTHWEST RADIOLOGY ASSOCIATION,
Appellants
V.
RITA GONZALES, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2011-64104
MEMORANDUM OPINION
In this interlocutory appeal, Rita Gonzales sued Sam Lo, M.D., and
Southwest Radiology Association (collectively, “Lo”) for medical malpractice. Lo
moved to dismiss Gonzales’s claims, but the trial court denied Lo’s motion. In two
issues, Lo contends that the trial court erred in denying the motion to dismiss
because (1) Gonzales’s expert report did not adequately set out the causal
connection between Lo’s alleged breach of the standard of care and the alleged
injuries to Gonzales and (2) Gonzales’s expert was not qualified to opine on
causation.
We reverse and remand.
Background
On July 16, 2008, Gonzales was diagnosed with lumbar spondylosis with
spondylolisthesis. She underwent a lumbar fusion surgery performed by Dr.
Jeremy Wang, who is not a party to the underlying case. Over a year later, on July
30, 2009, Gonzales returned to Dr. Wang, complaining of lumbar pain. Dr. Wang
ordered several radiological tests, including x-rays, a bone scan, MRI scans of
Gonzales’s hips and lumbar spine, and a CT scan of Gonzales’s lumbar area.
On August 7, 2009, Gonzales had an x-ray of the lumbar spine performed at
Clear Lake Regional Medical Center, and Lo interpreted the results. Lo’s report
stated, “Stable changes from patient’s previous L3-L4 through L5-S1
laminectomies, posterior discectomies and spinal fusion as described. No evidence
of instability. Stable ossific density in the posterior L3-L4 disc space and L4-L5
posterior marginal osteophyte formation possibly causing osteophytic
neuroforaminal encroachment.” On August 8, 2009, a CT scan of Gonzales’s
2
lumbar spine was performed, and Lo interpreted those results as demonstrating that
Gonzales has “disc osteophyte complex L3-S1 with neuroforaminal
encroachment.” Gonzales underwent a lumbar MRI on August 10, 2009, and Lo
interpreted those results as demonstrating “disc osteophyte complex with
neuroforaminal stenosis.” Gonzales alleged that, in interpreting these test results,
Lo did not specifically identify the absence of bony bridging at any of the levels of
Gonzales’s spine that had been fused in her previous surgery.
Gonzales returned to Dr. Wang, who explained to her that the test results
showed no instability in her spine, and he recommended that she return for a
follow-up appointment in a month. 1 On August 29, 2009, Gonzales was evaluated
by Dr. Richard Francis, who “noted that the x-rays showed no convincing evidence
of bony bridging from [Gonzales’s] original back surgery.” Dr. Francis ordered a
myleogram and an additional CT scan, performed on September 2, 2009, which
“showed no continuous osseous fusions from L3-S1.” Dr. Francis diagnosed
Gonzales with a “failure of fusion,” and he performed a revision back surgery on
September 23, 2009. Gonzales alleged that, during the surgery, Dr. Francis “found
1
There is a discrepancy concerning when this appointment with Dr. Wang
occurred. In her original petition, Gonzales alleged that this appointment occurred
on August 8, 2009, the day of her CT scan, and the day before her lumbar MRI.
The medical records from Dr. Wang’s office, however, reflect that Gonzales did
not meet with Dr. Wang until August 24, 2009.
3
[that] the lumbar spine had not fused, causing movement which was impinging on
the spinal cord causing pain to [Gonzales].”
Gonzales subsequently filed suit against Lo and Southwest Radiology
Association for medical malpractice. Gonzales alleged that Lo was negligent in
(1) failing to timely diagnose Gonzales’s failed fusion as the cause of her lower
back pain; (2) failing to correctly read and interpret the radiographs of Gonzales’s
spine; and (3) failing to diagnose instability from the absence of bony bridging at
the fusion site as the cause of Gonzales’s low back pain. Gonzales alleged that
Southwest Radiology was negligent in (1) failing to timely diagnose Gonzales’s
failed fusion as the cause of her back pain; and (2) failing to correctly read and
interpret the spinal radiographs. Gonzales also alleged that Southwest Radiology
was vicariously liable for Lo’s negligence under the doctrine of respondeat
superior. Gonzales sought damages for, among other things, past and future
physical pain and past and future medical expenses.
Gonzales timely filed and served the expert report of Dr. Randall Patten, a
board-certified radiologist. Lo objected to Dr. Patten’s expert report and moved to
dismiss the case pursuant to Civil Practice and Remedies Code section 74.351(b).
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (Vernon 2011). Lo objected
on the grounds that Dr. Patten’s expert report failed to set out the applicable
standard of care, failed to appropriately address causation, and failed to
4
demonstrate that Dr. Patten was qualified to render an opinion on causation. Lo
requested that the trial court dismiss Gonzales’s claims and award reasonable
attorney’s fees pursuant to section 74.351(b). 2
Gonzales requested, and the trial court granted, a thirty-day extension of
time pursuant to section 74.351(c) to cure any deficiencies in Dr. Patten’s expert
report. See id. § 74.351(c) (providing that if expert report is considered to be
untimely because elements of report are found deficient, court may grant one
thirty-day extension for claimant to cure deficiencies). Gonzales subsequently
filed an amended expert report by Dr. Patten.
In this report, Dr. Patten stated that all of his opinions were based on
reasonable medical probability and “the information I have reviewed to date, as
well as my education, training, knowledge, and direct experience, in the
examination, reading and review of radiographic studies, including ultrasounds of
the abdomen, in patients the same as, or similar to, Ms. Gonzales.” After
describing Gonzales’s medical history, including her visits to Dr. Wang and Dr.
2
Section 74.351(b) provides that if an expert report has not been served within the
120-day time period, on the motion of the affected physician or health care
provider, the court shall enter an order awarding reasonable attorney’s fees and
court costs and dismissing the claim with prejudice. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(b) (Vernon 2011); Key v. Muse, 352 S.W.3d 857, 864 (Tex.
App.—Dallas 2011, no pet.) (remanding case to trial court for purpose of
determining reasonable attorney’s fees and court costs and entering order
dismissing plaintiff’s claim with prejudice).
5
Francis and Lo’s interpretations of her radiological test results, Dr. Patten stated
the following standard of care with respect to Lo and Southwest Radiology:
1. The standard of care required that Dr. Lo correctly interpret the
lumbar x-ray and CT scan done on Ms. Gonzales in August
2009 as being diagnostic of a failed fusion. The radiologist
interpreting a CT scan on a patient who has undergone a fusion
should evaluate the presence of new bone formation which is
necessary to achieve a successful fusion. This requires cuts
thinner than the standard 3 mm slices. By 12 months post-op,
in a successful fusion, there should be evidence of obvious
bony bridging between the vertebral bodies. The absence of
bony bridging by this time interval indicates a failed fusion.
2. The standard of care required Southwest Radiology Association
to provide its patients with competent radiologists who could
properly and correctly interpret and report radiographic findings
seen on x-rays and CT scans of the lumbar spine.
Dr. Patten then stated the following with respect to Lo’s alleged breach of the
standard of care and the causal relationship between the alleged breach and
Gonzales’s injuries:
Dr. Lo breached and violated the standard of care when he failed to
correctly interpret the lumbar x-ray and CT performed on Rita
Gonzales in August 2009. Although the x-rays and CT showed a lack
of bony bridging, osseous integration and failure of fusion, these
findings were not properly reported to the surgeon. Dr. Lo, in
reasonable medical probability, should also have had slices thinner
than the standard 3 mm slice obtained in order to best evaluate the
integrity of Ms. Gonzales’ spinal fusion. In failing to obtain slices
smaller than 3 mm, Dr. Lo breached and violated the standard of care.
More than twelve months after surgery, radiographs should
demonstrate evidence of obvious bony bridging between the vertebral
bodies. Ms. Gonzales[’s] radiographs did not[,] but these findings
were not reported. Instead, the findings that were reported to the
surgeon were that the fusion was stable. If Dr. Lo had correctly
6
interpreted the films and reported the absence of bony bridging, in
reasonable medical probability, Ms. Gonzales’ spinal instability
would have been diagnosed and treated by Dr. Wang, the initial
surgeon. Ms. Gonzales would have been treated without having to
obtain a second opinion which required another work-up before
surgery was recommended. Ms. Gonzales would have avoided the
pain she described to Dr. Francis as including weakness in both legs,
difficulty walking and bending, and an inability to sit or stand for
prolonged periods of time. Because Dr. Lo breached and violated the
standard of care and did not correctly interpret and report the absence
of bony bridging on the lumbar x-ray and CT scan, Dr. Lo caused Ms.
Gonzales to suffer worsening and debilitating pain.
Dr. Patten also opined that Southwest Radiology breached the standard of care
when it
failed to provide its patients with competent radiologists, who should
realize that absence of osseous bridging was diagnostic of a failure of
the fusion, who could properly and correctly interpret and report
lumbar x-rays and CT scans. If Southwest Radiology Association had
provided Ms. Gonzales with a competent radiologist to accurately
interpret the imaging and report abnormalities seen in the lumbar x-
ray and CT, Ms. Gonzales’ failed fusion and spinal instability would
have been diagnosed sooner. In reasonable medical probability, as
described above, she would have avoided the worsening pain and
weakness she was experiencing in August and September 2009 before
her diagnosis and surgery by Dr. Francis.
Lo again objected to Dr. Patten’s amended expert report and moved to
dismiss Gonzales’s claims. Specifically, Lo argued that the amended expert report
still failed to state the applicable standard of care and still failed to establish a
causal relationship between Lo’s alleged breach of the standard of care and
Gonzales’s injuries. Lo also argued that Dr. Patten was not qualified to render an
opinion on causation. Lo again requested that the trial court award him reasonable
7
attorney’s fees. After a hearing, the trial court overruled Lo’s objections and
denied his motion to dismiss. The trial court granted Southwest Radiology’s
motion to dismiss any direct liability claims asserted against it by Gonzales, but it
denied the motion to dismiss with respect to the vicarious liability claims. This
interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(9) (Vernon Supp. 2012) (allowing interlocutory appeal from trial
court’s order denying section 74.351(b) motion to dismiss).
Sufficiency of Expert Report
In his first issue, Lo contends that the trial court erroneously denied his
motion to dismiss because Dr. Patten’s expert report did not constitute a good faith
effort to comply with the requirements of section 74.351(r)(6). Specifically, Lo
argues that the expert report fails to establish a causal relationship between Lo’s
alleged breach of the standard of care and Gonzales’s injuries.
A. Standard of Review
We review a trial court’s ruling on a section 74.351 motion to dismiss for an
abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877 (Tex. 2001). The trial court abuses its discretion if it acts
arbitrarily or unreasonably or without reference to any guiding rules or principles.
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). In
reviewing a trial court’s ruling, we may not substitute our judgment for that of the
8
trial court. Id. Mere disagreement with the trial court’s decision is insufficient to
constitute an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex. 1985).
B. Requirements of Section 74.351(r)(6)
A plaintiff in a medical malpractice action must serve each defendant with
an expert report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). If the plaintiff
timely serves an expert report, the defendant-physician may file a motion objecting
to the sufficiency of the report. Id.; Hillery v. Kyle, 371 S.W.3d 482, 489 (Tex.
App.—Houston [1st Dist.] 2012, no pet.). The trial court shall grant a motion
challenging the adequacy of an expert report only if it appears to the court that the
report “does not represent an objective good faith effort to comply with the
definition of an expert report in Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(l); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied). Subsection 74.351(r)(6) defines
“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 applicable standards of
care, the manner in which the care rendered by the physician . . . 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); Palacios,
9
46 S.W.3d at 878; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858–59 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
The expert report need not marshal all of the plaintiff’s proof, but it must
include the expert’s opinion on the three statutory elements: standard of care,
breach, and causation. Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859; see
also Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (stating that expert report is not required to prove defendant’s
liability). To constitute a “good faith effort” to comply with the statute, the expert
report must provide enough information to fulfill two purposes: the report must
(1) inform the defendant of the specific conduct that the plaintiff has called into
question; and (2) provide a basis for the trial court to conclude that the claims have
merit. Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. An expert report
that merely states the expert’s conclusions regarding the three statutory elements
does not fulfill these two purposes. Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d
at 859; see also Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (“No
particular words or formality are required [in the expert report], but bare
conclusions will not suffice.”). In the report, the expert must explain the basis for
his statements and must link his ultimate conclusions to the facts of the particular
case. Wright, 79 S.W.3d at 52; Gray, 189 S.W.3d at 859. In assessing the
sufficiency of the report, the trial court may not draw any inferences; instead, it
10
must exclusively rely upon the information contained within the four corners of the
report. Wright, 79 S.W.3d at 52.
C. Sufficiency of Dr. Patten’s Expert Report
Dr. Patten’s expert report set out relevant facts, including Gonzales’s prior
surgery, her initial visit to Dr. Wang in July 2009, Lo’s interpretations of the
radiological test results, and Gonzales’s subsequent treatment by Dr. Francis. Dr.
Patten then opined that Lo breached the standard of care when he failed to interpret
Gonzales’s x-ray and CT results as demonstrating a lack of bony bridging. He
further opined:
If Dr. Lo had correctly interpreted the films and reported the absence
of bony bridging, in reasonable medical probability, Ms. Gonzales’
spinal instability would have been diagnosed and treated by Dr.
Wang, the initial surgeon. Ms. Gonzales would have been treated
without having to obtain a second opinion which required another
work-up before surgery was recommended. Ms. Gonzales would
have avoided the pain she described to Dr. Francis as including
weakness in both legs, difficulty walking and bending, and an
inability to sit or stand for prolonged periods of time.
Dr. Patten ultimately concluded that “[b]ecause Dr. Lo breached and violated the
standard of care and did not correctly interpret and report the absence of bony
bridging on the lumbar x-ray and CT scan, Dr. Lo caused Ms. Gonzales to suffer
worsening and debilitating pain.”
Dr. Patten opined that Lo’s breach of the standard of care caused Gonzales
“to suffer worsening and debilitating pain,” and he opined that had Lo correctly
11
interpreted the radiological tests, Gonzales “would have avoided the pain she
described to Dr. Francis as including weakness in both legs, difficulty walking and
bending, and an inability to sit or stand for prolonged periods of time.” 3 It is
undisputed that Gonzales was already suffering from back and hip pain when she
visited Dr. Wang in July 2009, before Dr. Wang ordered the radiological tests at
issue. Dr. Patten’s expert report gives no indication of when Gonzales’s
symptoms—weakness in her legs, her difficulty in walking and bending, and her
inability to sit and stand for prolonged periods—began. It is unclear whether
Gonzales started suffering from these particular ailments before she visited Dr.
Wang in July 2009; after she visited Dr. Wang but before Lo conducted and
interpreted the radiological tests on August 7 and 8; after the tests but before she
saw Dr. Wang on August 24; after she saw Dr. Wang on August 24 but before she
saw Dr. Francis on August 29; or after Dr. Francis determined that further tests
needed to be conducted but before her surgery on September 23, 2009.
Because Gonzales contends that her pain worsened due to the delay in
treatment allegedly caused by Lo, for the trial court to conclude that her claim has
merit, the expert report must state facts supporting a conclusion that her pain
became more severe or she developed new ailments, as opposed to her pain
continuing at the level that it was at before Lo’s involvement, during the delay.
3
We note that, in his expert report, Dr. Patten specifically opined that Gonzales
suffered “worsening” pain as a result of Lo’s conduct.
12
See Palacios, 46 S.W.3d at 879 (stating that one purpose of expert report
requirement is to provide basis for trial court to conclude that plaintiff’s claim has
merit); see also Estorque v. Schafer, 302 S.W.3d 19, 29 (Tex. App.—Fort Worth
2009, no pet.) (noting, in holding expert report insufficient in delay-of-treatment
case, that “[the expert] did not explain how the alleged breaches led to a
deterioration of kidney function and triggered needless pain and suffering . . . .”).
Here, Dr. Patten opined that Gonzales’s pain worsened as a result of her
delay in treatment, but he provided no factual basis to support what her pain level
was and what her specific ailments were before Lo became involved compared to
what her pain level was and what her specific ailments were after Lo allegedly
incorrectly interpreted the radiological tests and Dr. Wang decided not to treat
Gonzales immediately. Dr. Patten’s conclusion that Gonzales’s pain worsened
thus appears to be based solely on the fact that time passed between Lo’s
interpretation of the radiological tests and her surgery by Dr. Francis. The expert
report contains no factual support for the contention that the delay itself actually
caused any additional symptoms or additional pain beyond what Gonzales was
already suffering when she first consulted Dr. Wang. Although “it may be facially
appealing to infer [that] additional pain and suffering resulted from the alleged
delay in diagnosis, the trial court is not permitted to rely on such speculation in
determining the adequacy of the report.” See Jones v. King, 255 S.W.3d 156, 160
13
(Tex. App.—San Antonio 2008, pet. denied) (noting, in case in which plaintiff
alleged that delay in diagnosing meningitis caused disease to worsen and resulted
in additional pain and suffering, that expert report failed “to provide any baseline
from which the trial court could conclude that the delay caused the results”); see
also Wright, 79 S.W.3d at 52 (“[R]ather, the expert must explain the basis of his
statements to link his conclusions to the facts.”).
Here, Dr. Patten’s expert report stated, in a conclusory fashion, that the
delay in treatment as a result of Lo’s alleged errors caused Gonzales’s pain to
worsen, but he provided no factual basis to support this conclusion. Hutchinson v.
Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.)
(“[L]iability in a medical malpractice suit cannot be made to turn upon speculation
or conjecture. ‘The proof must establish causal connection beyond the point of
conjecture. It must show more than a possibility.’”) (quoting Lenger v. Physician’s
Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)).
Furthermore, Dr. Patten’s conclusion that, had Lo correctly interpreted
radiological tests and reported the absence of bony bridging, Dr. Wang would have
diagnosed Gonzales’s spinal instability and immediately treated it himself, requires
us to infer that Dr. Wang relied solely on the fact that Lo, who did report that the
radiological tests reflected that Gonzales had “osteophytic neuroforaminal
encroachment,” did not specifically report an absence of bony bridging when he
14
evaluated Gonzales’s test results and determined that she did not need immediate
revision surgery. This we may not do. See Murphy v. Mendoza, 234 S.W.3d 23,
28 (Tex. App.—El Paso 2007, no pet.) (“Nor can we infer that the surgeon relied
upon the [allegedly erroneous] ambiguous report in deciding the surgical
options.”).
We therefore conclude that Dr. Patten’s expert report fails to establish a
causal connection between Lo’s alleged breach of the standard of care and
Gonzales’s injuries.4 We hold that the trial court erroneously denied Lo’s motion
to dismiss Gonzales’s claims.
We sustain Lo’s first issue. 5
4
Because we conclude that Gonzales’s claims against Lo should be dismissed, we
likewise conclude that her remaining claims against Southwest Radiology, based
solely on vicarious liability, should also be dismissed. Cf. Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam) (“When a party’s
alleged health care liability is purely vicarious, a report that adequately implicates
the actions of that party’s agents or employees is sufficient.”); RGV Healthcare
Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus Christi 2009,
pet. denied) (holding that if expert report adequately addresses statutory elements
with respect to employee-physician, expert report is adequate to satisfy report
requirement for vicarious liability claims against health care provider).
5
Because we hold that Dr. Patten’s expert report fails to establish a causal
connection between Lo’s alleged breach and Gonzales’s injuries and the trial court
has already granted Gonzales a thirty-day extension to cure any deficiencies in her
expert report, we need not address Lo’s second issue: whether Dr. Patten was
qualified to render an opinion on causation. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(c) (“If an expert report has not been served within the period
specified by Subsection (a) because elements of the report are found deficient, the
court may grant one 30-day extension to the claimant in order to cure the
deficiency.”) (emphasis added); Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.
15
Conclusion
Because we conclude that the trial court erred in denying Lo’s motion to
dismiss, we reverse the order of the trial court. Pursuant to Civil Practice and
Remedies Code section 74.351(b), we remand the case to the trial court for the
limited purpose of determining Lo’s reasonable attorney’s fees and court costs and
for entry of an order dismissing Gonzales’s claims against Lo and Southwest
Radiology with prejudice.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
2007) (noting that Legislature authorized “a single” thirty-day extension for
deficient reports).
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