Opinion issued March 10, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00778-CV
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Robert Tom, M.D. and Akihiro Izumi, M.D., Appellants
V.
Mark Estrada, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2009-73370
MEMORANDUM OPINION
In this interlocutory appeal,[1] appellants, Robert Tom, M.D. and Akihiro Izumi, M.D., challenge the trial court’s order denying their motion to dismiss the health care liability claim[2] of appellee, Mark Estrada. In their sole issue, appellants contend that the trial court erred in concluding that Estrada’s medical expert report, written by Dr. Lisbon, is sufficient and not dismissing the claim.
We affirm.
Background
In his original petition, Estrada asserts a health care liability claim against Drs. Tom and Izumi, and an orthopedic surgeon, an anesthesiologist, Foundation Surgical Affiliates, Houston Orthopedic Surgical Hospital, and Association Anesthesiology (collectively, the “defendants”).[3] Estrada alleges that on November 15, 2007, after a surgical procedure to repair a “right fractured humerus [sic] and torn rotator cuff,” the defendants had a duty “to properly administer anesthesia, monitor [him] during the anesthesia period and post-surgical period, maintain proper ventilation and circulatory support, and to properly diagnose and treat [his] resulting adverse reactions prior to the devastating consequences of the anesthesia as performed.” After the surgical procedure, Estrada “was noted to be agitated, unresponsive to voice and commands, and had suffered a period of apnea.” A head CT scan was not ordered until approximately nine hours after the surgical procedure had ended, the results of which “were consistent with a left MCA infarct.” This “negligently slow . . .work up” and treatment of Estrada’s “unresponsiveness” and “abnormal neurological symptoms” in the recovery room resulted in Estrada’s “devastating neurological outcome.”
Estrada timely served appellants with the expert report of Dr. Lisbon, who noted that after surgery at 15:25, Estrada was “agitated and unresponsive to voice”; at 17:45, Dr. Izumi was at Estrada’s bedside and Dr. Tom was to evaluate Estrada; and, at 23:55, a CT scan of Estrada’s head was ordered. The CT scan was consistent with a “left MCA infract.” Lisbon opined that the standard of care for “a patient exhibiting abnormal neurological symptoms in the immediate post-operative period requires immediate assessment, work-up and intervention to diagnose and treat potential causes.” (Emphasis added.) He further opined that the defendants deviated from the standard of care by their “slow . . . work up” and treatment of Estrada’s “unresponsiveness” and “abnormal neurological symptoms” in the recovery room. (Emphasis added.) Lisbon concluded that had Estrada’s abnormal neurological symptoms “been aggressively worked up and treated” in the recovery room, Estrada, in a “reasonable degree of medical probability,” would not have suffered a devastating neurological outcome. He opined that
[The defendants] deviated from the usual accepted standard of care in the following ways: (1) The physicians should have kept Mr. Estrada’s blood pressure at or above his usual level while he was having surgery. This is particularly important when surgery is done in the beach chair position where the head is higher than the heart; (2) The physicians were slow to work up and treat his unresponsiveness and abnormal neurological examination in the recovery room; (3) The physicians responsible for the work-up of Mr. Estrada’s abnormal neurological examination in the PACU are the orthopedic surgeon . . . and the anesthesiologist.
Appellants objected to Dr. Lisbon’s report on the ground that he does not address any care or treatment allegedly provided by appellants nor does he “implicate any conduct” of appellants. Appellants noted that Lisbon, in his report, “hardly mentions” them, “let alone opine[s] as to what care either allegedly provided to . . . Estrada, how that care violated the standard of care, or how any such violation caused . . . Estrada’s injury.” Appellants also complained that Lisbon, in his expert report, does not provide them with a fair summary of his opinion on the issue of causation, as it only contains conclusory statements regarding causation.
In response to appellants’ objections, Estrada timely served upon them Dr. Lisbon’s supplemental expert report, in which he clarifies that Drs. Izumi and Tom were “physicians either attending or expecting to attend to Mark Estrada in the post-operative period.” He notes that his initial report reflects that “Izumi was at the bedside” of Estrada at 17:45 and, as of 17:45, “Tom was to evaluate the patient.” Lisbon again opines that “the standard of care for a patient exhibiting abnormal neurological symptoms in the immediate post-operative period requires immediate assessment, work-up and intervention to diagnose and treat potential causes.” (Emphasis added.) He identifies Izumi and Tom as “two physicians involved in and responsible for the care of” Estrada in the recovery room and opines that Izumi and Tom “violated the standard of care in their failure and delay to work up and treat the unresponsiveness” and abnormal neurological symptoms identified in “Estrada in the recovery room prior to 18:00.” Lisbon opines that had the “physician staff” timely intervened with diagnostic and treatment measures in response to abnormal neurological symptoms in Estrada identified as early as 15:25, then, “in reasonable medical probability, they would have reduced or minimized the neurological damage suffered by . . . Estrada and he would not have suffered the devastating neurological outcome now suffered as a direct result of the failure to timely diagnose and treat his abnormal neurological state.”
Appellants objected to Dr. Lisbon’s supplemental expert report and moved to dismiss[4] Estrada’s health care liability claim. Appellants argued that Dr. Lisbon’s reports remain deficient because “(1) they do not provide a fair summary of [Lisbon’s] opinion as to . . . the applicable standard of care required of Dr. Tom and Dr. Izumi or how the conduct of either departed from such standard, and (2) [they] fail to provide a fair summary of [Lisbon’s] opinions concerning the causal link between any conduct of Defendants and the allegedly resulting injury to . . . Estrada.” They asserted that “Lisbon states only that had . . . Estrada been properly treated, he would not have suffered such a devastating injury.” Appellants also argued that the reports cannot be sufficient because they fail to elaborate in any way on what should have been done or how the alleged failures to timely “work up” and treat Estrada’s unresponsiveness and abnormal neurological symptoms in the recovery room contributed to Estrada’s injury.
In his response to appellants’ objections and motion to dismiss, Estrada argued that the reports meet the requirements of an expert report[5] because they “delineate the standard of care in the PACU,” inform the defendants of “how such standard was breached in the PACU,” and inform the defendants of how the breaches caused Estrada’s injuries. Estrada noted that terms such as “assessment,” “work-up,” and “intervention” are common medical terms, not unknown to the physicians who care for patients in the PACU, from which the defendants can determine the meaning of Dr. Lisbon’s articulation of the standard of care and what the defendants should have done differently.
Standard of Review
We review a trial court’s decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray, 189 S.W.3d at 858; Harris Cnty. Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Sufficiency of Expert Report
In their sole issue, appellants argue that the trial court erred in denying their motion to dismiss Estrada’s health care liability claim because “Dr. Lisbon fails to describe the standard of care and alleged breaches thereof with sufficient specificity” and “Dr. Lisbon’s reports fail to provide a fair summary of his opinions concerning the causal link between any conduct of [appellants] and the allegedly resulting injury” to Estrada.
A plaintiff bringing a health care liability claim must provide each defendant health care provider with an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2010); Gray, 189 S.W.3d at 858. The expert report must provide 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 by the health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
If a defendant files a motion to dismiss challenging the adequacy of the expert report, the trial court shall grant the motion to dismiss only if it appears to the court, after a hearing, that the report does not represent an objective good-faith effort to comply with the definition of an expert report. Id. § 74.351(b), (l). The only information relevant to the inquiry is that within the four corners of the document. Palacios, 46 S.W.3d at 878. Although the plaintiff need not marshal all of his proof in the report, the report must include the expert’s opinion on each of the elements identified in the statute. See id. at 878–79; Gray, 189 S.W.3d at 859. In setting out the expert’s opinions, the report must provide enough information to fulfill two purposes to constitute a good-faith effort. Palacios, 46 S.W.3d at 879. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Id. Second, the report must provide a basis for the trial court to conclude that the claim has merit. Id. A report that merely states the expert’s conclusions does not fulfill these two purposes. Id. The expert must explain the basis of his statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. However, a plaintiff need not present evidence in the report as if he were actually litigating the merits. Palacios, 46 S.W.3d at 879. Furthermore, the report may 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 trial. Id. We review the sufficiency of Dr. Lisbon’s report by looking at the four corners of the report. See Palacios, 46 S.W.3d at 878.
Standard of Care
Appellants argue that Dr. Lisbon, in his expert reports, does not describe the standard of care and the alleged breaches thereof with sufficient specificity because the reports “deal[] only in vague, undefined terms” about how the doctors violated the standard of care by “being slow to participate in these non-descript activities.” Appellants further argue that use of these “vague” “non-descript activities” is not sufficient to put them on notice of “what care was expected, but not given” because the report does not discuss what particular conduct would be required to “work-up” or “intervene.” In support of their argument, appellants rely on Ching-Chiang Chu v. Fields, No. 01-08-00417-CV, 2009 WL 40437, at *4 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.). In Fields, this Court held that an expert’s statement that the standard of care required “a proper, thorough, successful, and immediate treatment” of the patient’s complaints failed to “include specific information about what care” the doctor was expected to give. Id.
Here, in his report, Dr. Lisbon states the standard of care required for a post-surgery patient with abnormal neurological symptoms, in pertinent part, as follows:
Dr. Izumi and Dr. Tom are described in the records in my initial report as physicians either attending or expecting to attend to Mark Estrada in the post-operative period. Mr. Estrada began exhibiting abnormal neurological symptoms in the post-operative period and failed to regain consciousness in a timely manner. As my initial report states, “the standard of care for a patient exhibiting abnormal neurological symptoms in the immediate post-operative period requires immediate assessment, work-up and intervention to diagnose and treat potential causes.”. . .
In my opinion, Dr. . . . Izumi and Dr. . . .Tom violated the standard of care in their failure and delay to work up and treat the unresponsiveness and abnormal neurological examination identified in Mark Estrada in the recovery room prior to 18:00 on 11/15/07. . . .
Had Dr. Tom and Dr. Izumi, as well as the other care providers responsible for Mr. Estrada in the PACU, timely intervened with diagnostic and treatment measures in response to an abnormal neurological examination in Mr. Estrada identified as early as 15:25, then, in reasonable medical probability, they would have reduced or minimized the neurological damage suffered by Mark Estrada and he would not have suffered the devastating neurological outcome now suffered as a direct result of the failure to timely diagnose and treat his abnormal neurological state.
(Emphasis added.)
As revealed in his supplemental report, Dr. Lisbon clearly states that, given Estrada’s “abnormal neurological symptoms,” Drs. Izumi and Tom should have immediately intervened to assess and diagnose the causes of Estrada’s condition. (Emphasis added.) Although the terms “assessment,” “work-up,” and “intervention” are not defined in his expert reports, Lisbon does clearly convey that the doctors should have monitored and immediately assessed Estrada’s condition to diagnose and treat the causes of his unresponsiveness. Lisbon explained that in order for the defendants to have complied with the standard of care, they should have performed a “work-up” to determine the cause of his neurological abnormalities. In short, they should have acted quickly to diagnose his condition. Accordingly, we hold that the trial court did not abuse its discretion in concluding that Dr. Lisbon, in his reports, sufficiently articulated the standard of care of Drs. Izumi and Tom and how they breached the standard.
Causation
Appellants also argue that the trial court erred in denying their motion to dismiss because Dr. Lisbon, in his reports, does not “provide a fair summary of his opinions concerning the causal link between any conduct of [appellants] and the allegedly resulting injury” to Estrada. They assert that Lisbon, in his reports, “essentially states only that had Mr. Estrada been properly treated, he would not have suffered such a devastating injury.” They also assert that he does not elaborate in any way as to how their alleged failures to timely diagnose and treat Estrada’s unresponsiveness and abnormal neurological symptoms in the recovery room caused or contributed to Estrada’s injury. In regard to causation, Lisbon, in his reports, states that at 17:45, Dr. Izumi was at Estrada’s bedside, and “Dr. Tom was to evaluate the patient”; at 19:00, Estrada did not follow commands, but a CT scan was not ordered until 23:55; “it is readily foreseeable that the failure to timely diagnose and intervene in a PACU on behalf of a patient with an abnormal neurological examination can result in irreversible neurological injury”; and, had appellants “aggressively worked up and treated” the unresponsiveness prior to 18:00, when appellants were present, “they would have reduced or minimized the neurological damage” suffered by Estrada.
In order to constitute a “good-faith effort,” an expert, in his report, must explain the basis of his statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. The facts presented in Dr. Lisbon’s expert reports provide a timeline noting when Estrada’s “abnormal neurological” condition was first observed, when appellants were present, Estrada’s unresponsiveness, and when a CT scan was finally ordered, nine hours after Estrada’s neurological condition was first noted. In his report, Lisbon states that if appellants had timely diagnosed and treated Estrada’s condition prior to 18:00, then “they would have reduced or minimized the neurological damage” suffered by Estrada. Thus, Dr. Lisbon links Estrada’s neurological damage to the alleged breach of the standard of care, i.e., the failure of the doctors to timely intervene, diagnose, and treat his condition, thus, sufficiently explaining causation. Although Lisbon, in his reports, could have been more specific as to exactly how Estrada’s neurological injuries would have been reduced or minimized, we cannot say that the trial court’s conclusion that it was sufficient constitutes an abuse of discretion. See Sanjar v. Turner, 252 S.W.3d 460, 467 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Accordingly, we hold that the trial court did not abuse its discretion in concluding that Dr. Lisbon’s expert reports sufficiently articulated that the omissions of Drs. Izumi and Tom caused Estrada’s injuries.
In sum, Dr. Lisbon explained that the standard of care for a patient exhibiting abnormal neurological symptoms required the doctors to immediately assess his condition and intervene in order to “diagnose and treat potential causes.” Lisbon identified specific omissions of appellants that were negligent: their failure and delay in diagnosing and treating Estrada’s unresponsiveness prior to 18:00. The reports provided appellants with notice that Estrada suffered neurological injuries “as a direct result of [appellants’] failure to timely diagnose and treat his abnormal neurological state” and, had appellants “aggressively worked up and treated” Estrada, they, in reasonable medical probability, would have reduced or minimized the neurological damage suffered by Estrada. Accordingly, we hold that the trial court did not err in not dismissing the health care liability claim of Estrada.
We overrule appellants’ sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown.
[1] See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008).
[2] Id. § 74.351 (Vernon Supp. 2010).
[3] Only Dr. Tom and Dr. Izumi are parties to this appeal.
[4] See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
[5] See id. § 74.351.