COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-350-CV
BURT EUGENE HYDE, M.D. APPELLANT
V.
DOROTHY MENEFEE, INDIVIDUALLY APPELLEES
AND AS NEXT FRIEND OF EVOLLA TUTT,
AND EVOLLA TUTT
------------
FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
In a single issue, Appellant Burt Eugene Hyde, M.D. brings this interlocutory
appeal from the denial of his motion to dismiss the health care liability claim filed
against him by Appellees Dorothy Menefee, individually and as next friend of Evolla
Tutt and Evolla Tutt . See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon
2008). W e affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural History
On February 25, 2007, Appellee Dorothy Menefee brought her
sixteen-year-old daughter, Evolla Tutt, to Millwood Hospital, a psychiatric facility, for
treatment of a major depressive disorder with psychosis. Tutt had previously been
diagnosed with Schizoaffective Disorder, and she had been suffering from increased
depression and anxiety, including auditory hallucinations, for two weeks.
Dr. Hyde, a general practitioner, was the first physician to examine Tutt at
Millwood Hospital; he noted an admission diagnosis of major depressive disorder
with psychosis. At the time, Tutt was taking a combination of medications, including
Seroquel (an antipsychotic), Concerta (an amphetamine used for treatment of
attention-deficit disorder), and Zoloft (an antidepressant). Dr. Hyde ordered the
continuation of Tutt’s current medications and the administration of a combination
of medication, including Haldol (an antipsychotic), Ativan (an anticonvulsant), and
Benadryl, 2 as needed if Tutt became “agitated or very upset.” Dr. Hyde did not see
Tutt again or have any further involvement in her care.
After being admitted to Millwood, Tutt became the patient of Dr. Tarakumar
Reddy, M.D. Dr. Reddy entered new orders discontinuing the Concerta, increasing
the Zoloft and Seroquel dosages, and leaving in place Dr. Hyde’s order for the
Haldol cocktail. Tutt was not given the Haldol cocktail prior to the entry of Dr.
2
W e will refer to the combination of Haldol, Ativan and Benadryl as the the
“Haldol cocktail.”
2
Reddy’s February 25 orders, but she did receive three doses of the Haldol cocktail
on February 26.
On February 28, Tutt was transferred from Millwood to the emergency room
at Arlington Memorial Hospital. At the time of admission, Tutt was described as
drooling, non-verbal, and trembling. Several hours later, Menefee took Tutt by
private car to North Hills Hospital where Tutt remained a patient until March 12.
During that time, one of the North Hills doctors noted a possible diagnosis of
Neuroleptic Malignant Syndrome (“NMS”). Menefee alleges that Tutt’s NMS caused
seizures between March 4 and March 11 that resulted in “substantial brain damage
and permanent, debilitating physical and mental impairment.” Tutt was transferred
to Children’s Medical Center in Dallas on March 12 and was discharged from there
in June.
Menefee and Tutt sued thirty defendants, including Dr. Hyde, for negligence
and served Dr. J. Boswell Tabler’s expert report with their original petition. Dr. Hyde
objected to the expert report’s sufficiency and moved to dismiss Menefee and Tutt’s
claim under civil practice and remedies code section 74.351. After a hearing, the
trial court denied Dr. Hyde’s motion to dismiss, and this interlocutory appeal
followed.
III. Expert Report
In his sole issue, Dr. Hyde argues that the trial court erred by denying his
motion to dismiss. Specifically, Dr. Hyde argues that Dr. Tabler’s expert report does
3
not satisfy the requirements of civil practice and remedies code section 74.351
because it fails to establish a discernible standard of care applicable to Dr. Hyde,
fails to set forth a breach of that standard “in anything but a conclusory manner,” and
fails to establish a causal link between Dr. Hyde’s alleged misconduct and the harm
Tutt allegedly suffered.
A. Standard of Review
A trial court’s ruling concerning an expert report under section 74.351
(formerly article 4590i, section 13.01) of the Medical Liability and Insurance Act is
reviewable under the abuse of discretion standard. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351 (Vernon Supp. 2009); 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 ruled differently in the same circumstances.
Bowie Mem’l Hosp., 79 S.W .3d at 52; E.I. du Pont de Nemours & Co. v. Robinson,
923 S.W .2d 549, 558 (Tex. 1995).
B. Applicable Law
4
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). W hile the
expert report “need not marshal all of the plaintiff’s proof,” it must provide a fair
summary of the expert’s opinions as to the “applicable standard[ ] 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); Palacios, 46 S.W .3d at 878
(construing former article 4590i, § 13.01).
To constitute a good faith effort, the report must discuss the standard 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 Hosp., 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 Hosp., 79 S.W .3d at 52; Palacios, 46 S.W .3d at 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
5
S.W .3d at 879. W hen 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 Hosp., 79 S.W .3d at 52; Palacios, 46 S.W .3d at 878.
C. Analysis
Dr. Hyde argues that Dr. Tabler’s expert report is conclusory and does not
sufficiently detail the standard of care, breach of the standard of care, or causation
as to Dr. Hyde.
1. Standard of Care and Breach
Although he acknowledges that the expert report identifies three specific
duties he owed to Tutt, Dr. Hyde argues that these duties are stated only as “broad
generalities” and that the report does not set forth a “specific standard of care.” Dr.
Hyde also contends that Dr. Tabler’s report does not explain why or how Dr. Hyde
breached these standards of care.
The relevant portions of Dr. Tabler’s expert report state:
Dr. Hyde initially evaluated the patient upon her admission to Millwood
Hospital on February 25–26, 2007. At this time, Dr. Hyde owed a duty
to the patient to make appropriate decisions concerning her course of
psychiatric medication treatment. Dr. Hyde improperly continued the
drug Concerta for the patient, a stimulant medication used to treat
Attention Deficit Disorder, in spite of this drug’s contraindication per its
label for individuals experiencing agitation and/or psychosis. . . .
Dr. Hyde also owed a duty to the patient to prescribe a course of
psychiatric treatment that would not endanger her safety while treating
her underlying psychiatric condition. Dr. Hyde failed the patient by
6
beginning her initial “cocktail” utilizing dosages and combinations that
failed to treat the patient’s condition without inducing a life-threatening
neurological condition. . . .
Dr. Hyde had a further duty to closely monitor the patient’s condition for
any signs or symptoms of adverse reaction to the psychiatric drug
“cocktail” administered to her as treatment of her mental state. Dr.
Hyde’s failure to initiate a course of psychiatric medications that would
consider the presentation of the patient from February 27 to February
29, 2007 [sic] as a potential life-threatening condition resulted in the
continued administration of the “cocktail,” contributing to the patient’s
eventual seizures that resulted in her injuries.
Dr. Tabler’s report adequately describes Dr. Hyde’s duties and alleged
breaches of duty. The report states that Dr. Hyde: (1) had a duty to make
appropriate decisions concerning Tutt’s medication treatment and allegedly
breached this duty by improperly continuing Concerta, a contraindicated stimulant;
(2) had a duty to treat Tutt’s underlying psychiatric condition while not endangering
her safety and allegedly breached this duty by not treating Tutt’s condition and
improperly using medication dosages and combinations that induced a life-
threatening neurological condition; and (3) had a duty to closely monitor Tutt for
signs of an adverse reaction to the medication and allegedly breached this duty by
not recognizing Tutt was in a potentially life-threatening condition and by continuing
the same medications she had been taking. Other sections of Dr. Tabler’s report
provide that NMS “is a potentially-fatal brain and bodily disorder,” that the risk of
developing NMS increases with, among other things, the use of “high potency
agents” such as Haldol, that Dr. Hyde prescribed the Haldol cocktail for Tutt, and
7
that Tutt received at least three doses of the Haldol cocktail. These statements, all
contained within the four corners of Dr. Tabler’s report, are sufficient to inform Dr.
Hyde of the specific conduct Menefee and Tutt have called into question and provide
a basis for the trial court to conclude that the claim has merit. Bowie Mem’l Hosp.,
79 S.W .3d at 52; Palacios, 46 S.W .3d at 879; see also Baylor Coll. of Med. v.
Pokluda, 283 S.W .3d 110, 121–22 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(holding expert report sufficiently set forth standard of care and breach of standard
of care).
Dr. Hyde asserts two other arguments concerning the standard of care and
breach. He first argues that Dr. Tabler’s report takes issue with Dr. Reddy’s, not Dr.
Hyde’s, decision to continue the Haldol cocktail. But this argument is unavailing
because Dr. Tabler’s report specifically states that Tutt received three doses of the
Haldol cocktail and that it was a breach of the standard of care for Dr. Hyde to
prescribe the Haldol cocktail without regard to Dr. Reddy’s alleged negligence.
Second, Dr. Hyde contends that Dr. Tabler’s report attempts to establish “a global
and generic ‘Standard of Care at Millwood’” but that this standard of care does not
apply to him. W e need not address this argument, however, because Dr. Tabler’s
report, independent of this alleged “global and generic standard of care,” sufficiently
describes specific duties Dr. Hyde owed to Tutt and his alleged breaches of those
duties. See Tex. R. App. P. 47.1.
8
The trial court did not abuse its discretion by finding that Dr. Tabler’s report
sufficiently addressed the elements of duty and breach of duty.
2. Causation
Dr. Hyde also argues that Dr. Tabler’s report fails to “connect the dots and
specifically explain how [Dr. Hyde’s] conduct resulted in Ms. Tutt receiving this toxic
combination of medication and how the medication brought about the damages
alleged.” W e disagree.
Read as a whole, Dr. Tabler’s report sufficiently links his causation opinions
to the facts. Among other things, the report states: (1) Hyde admitted Tutt to
Millwood on February 25, 2007, for treatment of a major depressive disorder with
psychosis; (2) Hyde continued Tutt’s medication combination, which included
Seroquel and Concerta; (3) the continued administration of Concerta “more likely
than not contributed to the hospital’s difficulties in abating [Tutt]’s admission
psychosis and encouraged the use of Haldol”; (4) Dr. Reddy discontinued Dr. Hyde’s
Concerta order on February 25; 3 (5) Dr. Hyde prescribed the Haldol cocktail for Tutt
as needed; (6) Tutt received at least three doses of the Haldol cocktail; (7) the
3
Dr. Hyde argues the discontinuation of the Concerta means that his
“Concerta order could not have contributed to any harm suffered by Ms. Tutt.” But
Dr. Hyde prefaces his argument on there being “no evidence Ms. Tutt ever received
Concerta at Millwood.” Not only does this argument reach beyond the four corners
of Dr. Tabler’s report, but it improperly seeks to require a level of detail required in
a summary judgment proceeding or at a trial. See Palacios, 46 S.W .3d at 879. The
argument also ignores Dr. Hyde’s order for the Haldol cocktail that Tutt received on
at least three occasions.
9
Haldol cocktail was an “excessively-risky treatment regimen [that] resulted in the
patient’s initial neurological crisis”; (8) the risk of developing NMS increases with,
among other things, patient agitation, the “use of high potency agents” such as
Haldol, and the “concomitant use of predisposing drugs (Haldol + Seroquel)”; (9)
NMS “is a potentially-fatal brain and bodily disorder with sequelae requiring active
medication treatment if suspected to prevent complications”; (10) the continued
administration of the Haldol cocktail “contribut[ed] to the patient’s eventual seizures
that resulted in her injuries”; and (11) “the tragedy that occurred was a direct result
of a combination of the above medication. The patient was overly sedated and any
potential over sedation requires special medical care.” These statements, all
contained within the four corners of Dr. Tabler’s report, sufficiently link Dr. Tabler’s
causation opinions to the facts. See Patel v. Williams, 237 S.W .3d 901, 905–06
(Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently set
forth causation when it presented a chain of events beginning with a contraindicated
prescription and ending with the patient’s death). The trial court acted within its
discretion in finding that Dr. Tabler’s report sufficiently addressed the element of
causation.
W e hold that the trial court was justified in finding that Dr. Tabler’s report
discusses the standard of care, breach, and causation with sufficient specificity to
fulfill the statutory requirements. W e therefore overrule Dr. Hyde’s sole issue.
IV. Conclusion
10
Having overruled Dr. Hyde’s sole issue, we affirm the trial court’s order.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: April 29, 2010
11