AFFIRM; Opinion Filed November 6, 2012.
In The
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No. 05-12-00033-Cs’
LARRY A. WHITFIELD, M.D., TEXOMACARE, SAM GEORGE
THOYAKULATHU, M.D., and JOHN NELSON LITTRELL, M.D., Appellants
V.
MARJOYRIE HENSO, INDIVJI)UALLY ANt) AS
NEXT FRIENI) OF R.D., A MINOR, Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-i 1-07563-K
OPINION
Before Justices O’Neill, FitzGerald, and Lang-Miers
Opinion By Justice Lang-Miers
This is an interlocutory appeal from the trial court’s orders denying appellants’ motions to
dismiss appellee’s health care liability lawsuit for failure to comply with the expert report
requirements in chapter 74 of the Texas Civil Practice and Remedies Code. We affirm the trial
court’s orders.
BAcKGRouND
In June 2009 Marjoyrie Henson went to the emergency room at Red River Regional Hospital
in Bonham, Texas, complaining about abdominal pain. She was treated for hypertension and
released. Over the next two months. Henson saw appellants and four other health care providers tor
uncontrolled hypertension. hvperthvroidism, anxiety, weight gain, abdominal pain, nausea, and
vomiting. None of the providers tested Flenson, who was 42 years old at the time, to see if she was
pregnant; some of the medications they prescribed [br her conditions were contraindicated for
pregnancy. In November 1-lenson went back to the emergency room complaining again of abdominal
pain and also leakage of fluid and blood from her vagina. She learned then that she was almost 27
weeks pregnant and would have been pregnant in the summer when she saw appellants, She was
transferred to another facility where she underwent an emergency caesarian section five days later.
She gave birth to a son, R[)., at almost 27 weeks gestation. I-Ic was born with very low birth weight,
required resuscitation, and was subsequently diagnosed with respiratory distress syndrome, perinatal
depression, anemia, apnea of prematurity, tachypnea, subgaleal hemorrhage, gastroesophageal reflux,
enceiphalomalacia, intracranial hemorrhage, hydrocephalus, seizure disorder, blindness,
developmental delays, and brain damage.
Henson sued appellants and the other health care providers she saw during the summer of
2009 alleging, among other things. that they were negligent by failing to test her for pregnancy,
failing to diagnose her pregnancy, failing to refer her to an obstetrician/gynecologist for prenatal
care, and prescribing medications contraindicated for pregnancy. She alleged that as a result of
appellants’ negligence, she was denied the opportunity for prenatal care and her son was born
prematurely with numerous permanent, serious injuries. She alleged that R.D. will require lifetime
medical and custodial care and most likely will never be gainfully employed.
Henson filed six expert reports pursuant to section 74.351 of the Texas Civil Practice and
Remedies Code. Appellants objected to the expert reports and moved to dismiss Henson’s claims.
At a hearing on the motions, appellants challenged the expert reports on the issue of causation. The
trial court denied the motions and this interlocutory appeal followed.
STANDARD OF REvIEw
We review a trial court’s ruling on a motion to dismiss a health care liability claim for an
abuse of discretion. Brewer v Standefr, 366 S.W.3d 326, 329 (Tex, App.—-Dallas 2012, no pet.)
(citing Am, Transitional c’are Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)). A
trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to guiding
rules orprinciples. Id. (citing Jelinek v, Casas, 328 S.W.3d 526, 539 (Tex. 2010)). When we review
a matter committed to a trial court’s discretion, we may not substitute our judgment for that of the
trial court. Id. at 329—30.
APPLICABLE LAW
The Texas Medical Liability Act requires a claimant asserting a health care liability claim
to serve each party with one or more expert reports and the expert’s curriculum vitae no later than
120 days after the original petition is filed. See TEx. Civ. PRAC. & REM. CODE ANN. § 74.35 1(a)
(West 2011). An expert report is
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 or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury, harm, or
damages claimed.
Id. § 74.351 (r)(6). “The purpose of the expert report requirement is to deter frivolous claims, not to
dispose of claims regardless of their merits.” Loaisiga v. Cerda, No. 10-0928, 2012 WL 3800322,
at *6 (Tex. Aug. 31, 2012) (quoting Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011));
Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011). “[T]he expert report must represent only
a good-faith effort to provide a fair summary of the expert’s opinions. A report need not marshal all
the plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in
the statute.” Loaisiga, 2012 WL 3800322, at *6 (quoting Palacios, 46 S.W.3d at 878). A report
qualifies as an objective good faith effort if it informs “the defendant of the specific conduct the
plaintiff questions and provides “a basis tbr the trial court to conclude that the plaintifrs claims
have merit.’’ id. at *9 (citing Score,hv, 346 S.W.3d at 556). “A report meets the minimum
qualifications for an expert report under the statute ‘if it contains the opinion of an individual with
expertise that the claim has merit, and if the defendant’s conduct is implicated.” Id. (quoting
S’corcsbv, 346 S.W.3d at 557). “An expert report ... is a low threshold a person claiming against a
health care provider must cross merely to show that [her] claim is not frivolous.” Id. at * 13 (Hecht,
J., concurring in part and dissenting in part).
DISCuSSiON
In a joint brief on appeal, appellants contend that F-lenson’s expert reports “simply conclude
that the lack of prenatal care and use of potentially contraindicated medications caused [R.D.’s]
injuries.” They argue that the expert reports are conclusory because they do not explain how or why
the lack of prenatal care or the use of potentially harmful medications caused R.D.’s injuries. And
they argue that Texas law does not allow the trial court to make “assumptions to fill in the empty
blanks Appellants do not challenge the experts’ qualifications or their opinions on the standard
of care or how the standard of care was breached; they challenge only the experts’ opinions on
causation.
We begin our analysis with the allegations of negligence in Flenson’s pleading. She alleged
that appellants were negligent by:
a. failing to take a proper medical history from [her];
b. failing to test [her] for pregnancy and diagnose [her] as pregnant;
c. failing to inform [her] that she was pregnant;
d. failing to refer [her] to an OB/GYN for prenatal care;
e. failing to recommend to [her] that she receive treatment from an OB/GYN
including prenatal care; and
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prescribing medication(s) to [her] contraindicated (‘or pregnancy and/or
medication(s) likely to injure [her] fetus, without lrst ruling out pregnancy
in a woman of child hearing age with complaints of abdominal pain.
Flenson served two expert reports on the issue of causation. We may resolve this
interlocutory appeai by examining only one of those of Dr. Robert Atlas, a board
certified obstetrician/gynecologist with a subspecialty in maternal—fetal medicine.
Dr. Atlas noted in his report that Henson was of child-bearing years with one prior term
delivery and had chronic hypertension, a history of pituitary adenoma, and hyperthyroidism. He
described in detail Flenson’s medical history from the time she first went to the emergency room in
June until R.D. was born in early December. The following is a summary of his report about
Henson’s medical history:
Henson went to the emergency room on June 21. 2009. complaining of abdominal pain.
Dr. Thomas Walker treated Henson and diagnosed her with hypertension. She was given Clonidine,
Lisinopril, and started on Benazepril. Dr. Walker instructed Henson to follow up with a primary care
physician. A few days later, Henson saw Dr. Sam George Thoyakulathu, an internal medicine
physician, who diagnosed Henson with hypertension and hyperthyroidism. Dr. Thoyakulathu saw
Henson three times: he discontinued the Benazepril and started her on Exforge, inderal, and PTU.
He also referred Henson to Dr. Larry A. Whitfield, an endocrinologist, and Dr. Martin Gregory
Farrell, a gastroenterologist. Henson saw Dr. Whitfield in July 2009 and complained of general
anxiety, weight gain, and nausea. Dr. Whitfield diagnosed Henson with a thyroid disorder,
hypertension, and nausea, and prescribed Methimazole. Henson saw Dr. Farrell in August 2009.
Dr. Farrell documented that Henson had a two-month history of persistent abdominal pain, nausea,
and vomiting: she also had gained 37 pounds over 4 months. Dr. Farrell prescribed Zegerid. Later
that month, Henson saw Dr. John Nelson Littrell, a general surgeon, about removing a polyp on her
gallbladder, but the surgery was not performed. Dr. Littrell also documented Henson’s history of
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abdominal pain, nausea, and recent weight gain. On November 27. 2009. Henson again went to the
emergency room at Red River Regional Hospital complaining of abdominal pain and also leakage
of fluid and blood from her vagina. The doctor determined that Ilenson was almost 27 weeks
pregnant. She was diagnosed with “preterm premature prolonged rupture of membranes, severe
hypertension with superimposed preeciampsia, and GU infection.” She was transferred to Medical
Center of Piano where R.D. was delivered by emergency caesarian section on December 2, 2009.
Dr. Atlas noted that none of the health care providers treating 1-lenson in the summer of 2009
ordered a pregnancy test despite her “classic symptoms of pregnancy[.f’ I-Ic concluded that the lack
of prenatal care and the improper use of medications were the proximate causes of R.D.’s injuries.
His report stated:
The proximate cause of injuries as described above to [R.D.] is the fact that
his mother did not receive any prenatal care. Prenatal care improves pregnancy
outcomes. This time allows for the use of appropriate medications, use of
medications safe in pregnancy, use of medicines such as folic acid which has been
shown to improve pregnancy outcomes. Patients with high risk factors are seen much
more frequently to adjust medications and optimize outcomes. This is especially true
in regard to Ms. Henson’s blood pressures and the inability to control them at all
during the period of her care. She would have been seen every other week to watch
her blood pressures. She would have been placed on medications safe in pregnancy
such as methyldopa, labetalol, or nifedipine. Ms. Henson would have had every 4—6
week thyroid levels drawn and adjusted. The fetus would have been monitored
closely throughout the pregnancy with at least monthly ultrasounds for growth and
Doppler velocimetry (blood flow to the placenta, fetus and mother).
Prenatal care allows for the appropriate dating ofpregnancies and maximizes
the ability of a successful pregnancy. No prenatal care is associated with an increased
risk of poor pregnancy outcome. This includes a higher risk for preterm birth, low
birth weight, and intrauterine growth restriction. Prematurity causes the highest risk
of complications to the infant including long term morbidity and mortality. [R.D.]’s
injuries were caused by a lack of prenatal care which his mother Marjoyrie Henson
was not provided. if she had been referred to an 013/GYN early in pregnancy, [R.D.]
would not have suffered a preterm delivery and all of the complications which he has
and continues to suffer from. This is within a reasonable degree of medical
probability.
Ms. Henson had a prior history of a term birth. It is unusual for someone to
have a tenri birth as she had and end up with such severe complications related to
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pregnancy. The lack of identification of the pregnancy along with improper use of
medications was a proximate cause of the complications associated with [RD.].
Appellants contend that Dr. Atlas’s report is conclusory because it does not explain why or
how the lack of prenatal care or the medications caused R.D.’s injuries. They argue that Dr. Atlas’s
report leaves unanswered:
(I) How R.D.’s injuries of respiratory distress syndrome, perinatal depression,
anemia, apnea of prematurity.. tachypnea, subgaleal hemorrhage, gastroesophageal
reflux, encephalomalacia, intracranial hemorrhage, hydrocephalus, seizure disorder,
blindness, developmental delays, and brain damage were caused by a lack ofprenatal
care, or would have been prevented by prenatal care;
(2) How R.D.’s injuries of respiratory distress syndrome, perinatal depression,
anemia, apnea of prematurity, tachypnea, subgaleal hemorrhage, gastroesophageal
reflux, encephalomalacia, intracranial hemorrhage, hydrocephalus, seizure disorder,
blindness, developmental delays, and brain damage were caused by the
contraindicated medications, or would have been prevented by different medications
or stopping the medications altogether:
(3) I-low prenatal care would have effectively avoided the eventual outcome of the
pregnancy, given Henson’s chronic hypertension;
(4) Which of R.D.’s injuries are attributable to a lack of prenatal care;
(5) At what point in the pregnancy R.D’s injuries caused by a lack of prenatal care
occurred;
(6) At what point in the pregnancy the injuries caused by a lack of prenatal care were
irreversible;
(7) How pregnancy-safe blood pressure medications would have successfully
controlled Henson’s severe hypertension and thus avoided preterm labor, given the
fact her hypertension was not responding to any of the several medications she was
prescribed;
(8) How a lack ofprenatal care, as opposed to Henson’s chronic hypertension, caused
R.D. ‘s premature birth, given the fact premature birth is a known risk ofuncontrolled
hypertension;
(9) Which of R.D.’s injuries are attributable to the medications Henson ingested
while pregnant;
(10) Which of the medications Henson ingested while pregnant caused R.D.’s
injuries;
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(11) How the medications Flenson took in pregnancy caused RD. ‘s injuries;
(12) At what point in the pregnancy the injuries caused by the medications Henson
ingested occurred; and
(13) At what point in the pregnancy the injuries caused by the medications Flenson
ingested were irreversible.
Appellants argue, “With nothing to connect the Appellants’ acts or omissions to the 15
different injuries RD. allegedly suffered, Henson is asking the Court to assume the answers to the
13 questions Dr. Atlas failed to address in the four corners of his report.” I3ut “[a] report need not
marshal all the plaintiff’s proof. . . .“ See Loaisiga, 2012 WL 3800322, at *6, “A core purpose of
the [Texas Medical Liability Act] was to identify and eliminate frivolous health care liability claims
expeditiously, while preserving those of potential merit.” Samlowski, 332 S.W.3d at 410 (citing
legislative history).
Dr. Atlas’s report stated that the lack of prenatal care causes a high risk of premature birth
and that prematurity is the highest risk for complications in infants. He stated that Flenson had given
birth before and it was unusual for a woman with a history of a term birth to have “such severe
complications related to pregnancy.” He also stated that if Henson had received prenatal care, her
hypertension would have been monitored closely, she would have been seen every other week, she
would have been given medications that were safe for her, her thyroid levels would have been
monitored every four to six weeks, and her medications would have been adjusted as necessary. He
stated that the fetus also would have been monitored more closely “with at least monthly ultrasounds
for growth and Doppler velocimetry (blood flow to the placenta, fetus and mother).” He stated that
maternal—fetal specialists such as himself “routinely diagnose” and care for conditions such as
Henson’s. With regard to the improper use of medications, Dr. Atlas stated that Lisinopril “can cause
significant harm to a fetus including fetal anomalies and renal failure”; that Benazepril “is not
recommended for use in pregnancy due to the risk of fetal harm (birth defects) to an unborn baby”;
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and Inderal is “an older beta blocker [which] is not used in pregnancy secondary to the risk of fetal
growth restriction.” He noted that R.D. was born prematurely with low birth weight and suffered
significant permanent and serious injuries which he attributed in part to the improper use of
medications in the mother, Dr. Atlas concluded that if Henson had been referred to an obstetrician!
gynecologist early in her pregnancy, R.D. would not have been born prematurely or suffered the
complications of a premature birth.
In summary, the report explained why prenatal care was necessary for Henson, a high-risk
patient; it explained the complications associated with a lack of prenatal care; it explained the
treatment Henson and the fetus would have received with prenatal care; it explained that the lack of
prenatal care causes premature birth and other complications to the fetus, which were present in this
case; it explained that many of the medications Henson was prescribed were known to cause birth
defects or other harm to the fetus, which were present in this case; and it concluded that the lack of
prenatal care and improper use of medications were the proximate causes of R.D.’s injuries.
We conclude that the report contained Dr. Atlas’s opinion that the claim has merit, implicated
appellants’ conduct, and constituted a fair summary of his expert opinion on causation. See Loaisiga,
2012 WL 3800322, at *6, 9. The report informed appellants of the specific conduct in question and
gave the trial court a basis to conclude that Henson’s claims have potential merit. See id. at *9;
Samlowski, 332 S.W.3d at 410. Accordingly, we conclude that the trial court did not abuse its
discretion by denying appellants’ motions to dismiss. Because we conclude that Dr. Atlas’s report
satisfies chapter 74’s requirements for an expert report on the issue of causation, we do not need to
consider the reports of Henson’s other experts.
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CoNc1usIoN
We affirm the trial court’s orders.
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JUDGMENT
LARRY A. WHITFIELD, M.D., Appeal from the 192nd Judicial District
TLXOMACARL SAM GEOR(jl-’ Court of Dallas County, Texas. (Tr.Ct,No,
THOYAKULATHU, M.D., AND JOHN L)C-i U07563-K).
NELSON LITTRELL, M.[).. Appellants Opinion delivered by Justice Lang-Miers.
Justices O’Neill and FitzGerald
No. 05-12-00033-CV V. participating.
MARJOYRIE HENSON. INDIViDUALLY
AND AS NEXT FRIEND OF R.D., A
MINOR, Appellee
In accordance with this Court’s opinion of this date, the orders of the trial court denying
appellants’ motions to dismiss are AFFIRMED. it is ORDERED that appellee Marjoyrie
Henson, Individually and as Next Friend of R.i)., a Minor recover her costs of this appeal from
appellants Larry A. Whitfield, M.D.. TexomaCare, Sam George Thoyakulathu. M.D., and John
Nelson Littrell. M.D.
Judgment entered November 6, 2012.
El 1/ ‘\IIVFI I LANG—\1 IERS
ii. SuCh
Larry Whitfield, M.D. & Texomacare v. Marjoyrie Henson, Individually and as Next Friend of Ramont Davis
Combined Opinion