Kevin D. Wheeler, M.D. v. Charles F. Luberger

ACCEPTED
14-14-00992-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/6/2015 5:33:21 PM
CHRISTOPHER PRINE
CLERK

No. 14-14-00992-CV
FILED IN
IN THE COURT OF APPEALS FOR THE FOURTEENTH14th
DISTRICT
COURT OFOF
APPEALS
TEXAS HOUSTON, TEXAS
2/6/2015 5:33:21 PM
CHRISTOPHER A. PRINE
Clerk
KEVIN D. WHEELER, M.D., Appellant

vs.

CHARLES F. LUBERGER, Appellee

Appeal of Cause No. 2014-07070,
in the 157 th Judicial District Court,
Harris County, Texas, Honorable Randy Wilson

BRIEF OF APPELLANT, KEVIN D. WHEELER, M.D.

UZICK & ONCKEN, P.e.
Roger A. Berger
State Bar No.: 02192400
rberger@uzickoncken.com
Jeffrey H. Uzick
State Bar No.: 20419200
jhu@uzickoncken.com
238 Westcott
Houston, Texas 77007
Tel: 713/869-2900
Fax: 713/869-6699

Counsel for Appellant
Kevin D. Wheeler, M.D.

ORAL ARGUMENT REQUESTED
 IDENTITY OF THE PARTIES AND COUNSEL

Appellant certifies that the following is a complete list of the parties, attorneys,
and any other person who has any interest in the outcome of this lawsuit:

Appellant Kevin D. Wheeler, M.D.

Appellant's Counsel Roger A. Berger
State Bar No.: 02192400
rberger@uzickoncken.com
Jeffrey H. Uzick
State Bar No.: 20419200
jhu@uzickoncken.com
238 Westcott
Houston, Texas 77007
Tel: 713/869-2900
Fax: 713/869-6699

Appellee Charles F. Luberger

Appellees' Counsel Mr. John J. I 394 S.W.3d 254 (Tex. App. - El Paso 2012, no pet.). In Clapp, the expert opined

that if a "nasal-gastric" tnbe had been placed before surgery, the stomach contents

would have been emptied and this would have prevented aspiration that led to

pneumonia, which in tnrn led to ARDS, multi-organ failure and death. Id. at 261. The

Court concluded that, though broad and sweeping in scope, in essence the expert was

31
simply concluding that one event caused the other without explaining how the

Defendants' alleged negligence caused those events. Id. at 261-262.

Appellee's experts likewise simply conclude (to the extent that they even make

conclusions) that there were injuries without any explanation of how any alleged

negligence caused those damages. The Fajolu report does not directly say that any

specific act or omission of Appellant proximately caused injuries or damages. The

Fajolu report merely states that cutting the common bile duct led to subsequent pain

and procedures-it does not give any opinion that, in reasonable medical probability,

some specific act or omission did, in fact, proximately cause injury or damage.

Other laparoscopic cholecystectomy cases are illuminating. Compare the report

in the case at bar to the one in Schmidt v. Escareno, No. 09-11-00662-CV, 2012 WL

759063 (rex. App. - Beaumont, 2012, no pet.) (mem. op.), also involving a transected

common bile duct. In Schmidt, the Plaintiffs expert opined the standard of care

required use of a technique surgeons use to obtain what he referred to as the "critical

view" allowing the surgeon to visualize the structures to be clipped and cut as part of

the laparoscopic cholecystectomy and to be able to identify abnormal anatomy, and

that Dr. Schmidt did not "utilize cholangiography to conclusively identify the cystic

duct before dividing any structures." Id. at *3. The expert stated that:

• The Defendant "apparently just relied on the appearance of the
'cystic duct,'-gallbladder junction, which is quite dangerous, as
this may be deceiving, particularly in the presence of severe
inflammation such as that described by Dr. Schmidt."

32
 • Obtaining a "critical view" of the structures attached to the
gallbladder, "alone or with cholangiography[,J will usually enable
the surgeon to conclusively identify these structures, and if it does
not, the surgeon can then convert to the open procedure so that
conclusive identification can be made prior to dividing the ducts,
thus avoiding injuries such as Mr. Escareno's which are the result
of misidentification of the anatomy."
• "[mJore likely than not, had Dr. Schmidt employed any or all of
these techniques, he would have avoided misidentifying the
common bile duct as the cystic duct and thus avoided ttansecring
the common bile duct."

Id.

According to Dr. Leitman's report in Schmidt, even if Escareno's anatomy was

not normal, "use of the above-referenced techniques would have allowed for a better

view of the anatomy ... so that [Dr. Schmidt] could definitively identify the structures

before proceeding." Id. at *8. Dr. Leitman's report concluded that had the standards he

described been followed, "the injuries described herein would not have occurred." Id.

These are the kinds of details missing from either of Appellee's expert reports 6,

details that, if present, could have given the trial court discretion to deny Appellant's

Motion to Dismiss.

This Court has also previously analyzed at least one other Chapter 74 appeal of

an expert report in a laparoscopic cholecystectomy case. In Lopez v. Sinha, 2006 WL

2669355 (Tex. App. - Houston [14'h Dist.] 2006,110 pet.) (mem. op.), this Court found

6 Note also that Dr. Leitman's report in Schmidt consisted of seven single-spaced pages that identified
five standards of care applying to the Defendant and six ways these standards of care were breached,
with over a full page of opinions addressing proximate cause. In the case at bar, by contrast, Dr.
Iqbal's report was less than one page and did not identify any specific standard of care or breach and
did not address any causal connection between any unspecified breach and any injuries.

33
the report deficient because although it discussed the result of what happened after the

alleged negligence, it did not include specific information about what the Defendant

should have done to achieve the desired result, how he failed to follow any specific

procedure and what the Defendant should have done to achieve that result. ld. at *4.

Appellee's expert reports suffer from the same fatal omissions as the report in

Sinha and it was an abuse of discretion to not dismiss this lawsuit.

Appellee's experts reports leave Appellant in the very position the expert report

requirement of Chapter 74 was created to avoid: Appellant is forced to defend a case

in which Appellee alleges that negligence caused injuries, without any specifics

connecting Appellant's alleged negligence to the injuries made the basis of the suit.

B. The harshness of the result is not a reason to deny dismissal.

Although the consequences might be seemingly harsh, the Supreme Court in

Samlowski noted that

"Wooten was not ambushed; she knew exactly what Dr. Sarnlowski's
objection was and had adequate opportunity to show the trial court that
the alleged defect in Dr. Patman's report was curable-if it was. She
failed to either fIle a supplemental report attempting to address Dr.
Sarnlowski's objection or present other such evidence at the hearing."

S amlowski, 332 S.W.3d at 424 (J. Johnson, dissenting).

In Women's Clinic of South Texas, the Court noted that the Plaintiff was on notice

of the potential deficiencies in her report and acted at her own risk in failing to remedy

those alleged deficiencies by serving an amended report within the thirty-day extension

period granted by the trial court. According to tlle Court,

34
 "a health care liability plaintiff is allowed one thirty-day extension to cure
deficiencies in her otherwise timely-served expert report. See TEX. CIY.
PRAC. & REM. CODE ANN. § 74.351 (c). Alonzo requested her
extension at the October 28, 2009 hearing, the trial court granted it in its
November 5, 2009 order, and Alonzo took full advantage of it to produce
Dr. Thompson's CV outside the 120-day deadline for serving her expert
report. Further, in its objections and motion to dismiss, the Clinic
specified the other 7 alleged deficiencies in the report, namely that the
expert report failed to set out the required standard of care, breach, and
causation elements and that Dr. Thompson's qualifications to author an
expert report as to the Clinic were not established. Thus, Alonzo was on
notice of the potential deficiencies in her report and acted at her own risk
in failing to remedy those alleged deficiencies by serving an amended
report within the thirty-day extension period granted by the trial court."

Women's Clinic of South Texas v. Alonzo, 2011 WL 1106698 at *3 (Tex. App. - Corpus

Christi 2011, no pet.) (mem.op.).

In Ledesma v. Shashoua, No. 03-05-00454-CV (Tex. App. - Austin, May 23, 2008,

pet. den.) (mem. op.), the Court likened the extension provisions in Chapter 74 to

being given an opportunity to replead with special exceptions:

"The intent behind this extension is analogous to the purpose of special
exceptions to civil pleadings, which is to "compel clarification of
pleadings when the pleadings are not clear or sufficiently specific or fail
to plead a cause of action." .... When a trial court sustains special
exceptions, it must give the pleader an opportunity to amend the
pleading, unless the defect cannot be cured. The expert-report
requirement and the extension allowed by section 74.351(c), much like
the concept of special exceptions and the opportunity to amend
pleadings, should be used as procedural tools to help clarify the issues in
complex litigation, rather than as a statutory trap for the unwary in what
might otherwise be a meritorious claim."

Id. at *10 (J., Henson, Dissenting Opinion on Motion for Reconsideration en bane).

35
 Appellant made specific objections to Appellee's expert report in his Chapter 74

Objections and Motion to Dismiss, noting, among other things that

1. the report failed to set forth a specific standard of care for Appellant;
2. the report failed to set forth specific violations of the standard of Gire by
Appellant;
3. the report failed to properly address proximate cause, and;
4. Appellee did not establish that his expert witness was qualified to address
proximate cause.

(1 CR 29; 45; 1RR 4). As with the Plaintiffs in Sam!owski and Alonzo, Appellee was not

ambushed; he knew what was deficient about the report and sought and received an

extension to cure those deficiencies. Appellant should not be penalized because

Appellee failed to utilize the thirty-day extension to cure those deficiencies.

C. Conclusion: Appellee's expert reports were inadequate even after the
extension to cure and the court abused its discretion by not dismissing
Appellee's suit.

In Samlowski, the plurality Op1n10n announced a new requirement when a

motion for extension is denied:

"The claimant must therefore be prepared to cure a deficient expert
report whether or not the trial court grants the claimant's motion [for a
thirty-day extension]. When, as in this -case, the trial court simultaneously
finds the expert report deficient, denies a motion to cure, and dismisses
the underlying health care liability claim, the claimant must move the
court to reconsider and promptly fix any problems with the report. This
should further be done within the statutory, thirty-day period, thereby
demonstrating that the report would have been cured had the extension
been granted."

Samlowski, 332 S.W.3d at 411.

36
 Thus, when a Motion for Extension is denied, a claimant must now flle a

curative expert report within thirty days in order to later be able to argue that the trial

court abused its discretion. How can we demand less from claimants who have

actually prevailed in their request for a thirty-day extension and reward them for not

curing the expert report during those thirty days?

Appellees' experts' reports were inadequate and they failed to cure the

deficiencies. Their claims against Appellants should be dismissed.

VI. Appellant is entitled to Attorneys' Fees and Costs.

Since Appellee failed to comply with the strict requirements of Chapter 74, an

award of attorneys' fees is also mandatory. Tex. Civ. Prac. & Rem. Code §74.351 (b).

Appellant seeks remand for consideration of the fees and expenses to which he is

entitled.

CONCLUSION AND PRAYER

The trial court abused its discretion when it failed to dismiss Appellee's lawsuit

and instead granted Appellee a thirty-day extension to cure deficiencies in an expert

that was so incomplete that it was "no report" as to Appellant. Appellee's expert

report was not merely inadequate, it was not capable of cure since it did not address

any of the statutorily required elements (standard of care, breach, or proximate cause)

and further was from a witness who was not qualified. The trial court had 110

discretion to do anything other than dismiss Appellee's lawsuit.

37
 The trial court also abused its discretion in failing to dismiss after Appellee fIled

an attempted curative report since it too failed to meet the strict requirements of

Chapter 74.

Accordingly, Appellant respectfully prays that this Court reverse the trial court's

decision, dismiss Appellee's claims with prejudice and Order attorneys' fees and costs

be awarded pursuant to Chapter 74. Further, Appellant requests any other and further

relief to which he is justly entitled.

Respectfully submitted,

UZICK & ONCKEN, P.e.

By: _ _ _ _ _ _ _ _ _ _ _ _ __
Roger A. Berger
SBOT: 02192400
rberger@uzickoncken.com
Jeffrey H. Uzick
SBOT: 20419200
jhu@uzickoncken.com
238 Westcott
Houston, Texas 77007
(713) 869-2900
FAX: (713) 869-6699
Counsel for Appellant
Kevin D. Wheeler, M.D.

38
 CERTIFICATE OF SERVICE

Pursuant to TEX. R. CIV. P. 21a and TEX. R. App. P. 25.1 (e), I hereby certify that
a true and correct copy of the foregoing instrument has been served upon Appellees'
counsel by certified mail, return receipt requested.

John J. Itilti!fi4J9,iip~ii
·;flt~~'!W.~M~·~Q;!(!W~?\'i\)t;11N~ t~W!1I'tiifl<)"'~ijltihl4lh.fji)~A\ii!tillj·~Pii; .

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~-{~~~
:~~r:Ji:~;d;g[i~~~I~~~~~;~:t~~::~~~:Z~~:!i~~1)~~~n~¥t:!~~j;~t~:=~·;Z~·~::~~:~:~
i~~8V,~t&~Y9f-'l\~~~~\t~:~~f~~t~

16
10/0$(2014 13: 54 FAX law fiI"lll t,!J0004/0008

Ofuwole Fajo!u, M.D., FAC.S.
Thoracic andCel).cral Surgery
5.015 Kelvin Avenue
Woodtand Hills, CA 91364

O~1\,ber 8, 2014

John r. KJevenhagenlll
6:;63 Woodway, Suite 300
Houston. T"xas 77057

Re: CharJes F. Luberger.

Dear Mr. Kl~venhagen:
I have reviewed the medical recQrds from Memorlal City Sl-Itgica\ Assocja«:s, including
the intraoperative images, Md St. Luke's Hospital for Mr. Lubetger. 1 am a Board Certified
surgeon itl active pl1ll-'lice, 1n Woodlan4 Hills, California since 1985. I have treaJed patients such
as Mr. Lilberger who suffi:r from liall bJadd<:f problems. J haveperfonned laparoOOopic gall
bledder removal surgery on patients jUst like Mr, Luberger hundreds oftim¢ r amfamiliar with
the $1lilldard of car;e retfUil:ed for Dr. Wheeler's treatment of Mr. Luher.g.er. 1 am qualified and
fa:miliar with the standard of care hy education, !:mining andexporlflncc to assess th(> qtjality of
care provided to such patients to I'\'nder an ""p~rt ,?plnion regarding such care.

My credentials afe detilile<:l in the I1.ttached tv, but in SllltltlJliII)', I eatnel;! my medical
degree from Calcutta Medica! College. at CalC\\tta University in India. ! then served general
Sllfgery residencies at Lagos Univ=ity TetlPhi"g Hospital, Harlem Hospital ill New York and
Columbia Presbyterian HQspital witl:1 Columbia UniVersity. I foUov.'ed that with a cardiothoraoic
Burget)' reslde\1Cy at long Island Jewish Hospital In New York.

I tun licensed to practice. medicine in California lind. my license is recorded with the
appropriate authorities.

Mr. Luberger presented to Dr. Kevin D. Who"ler at Memorial City Surgical Associates·
for gal! bladder disease, which was confinned by radiographic studies. Mr~ Luberger was
schoo\lled for Ii laparoscopisc cholecystectomy on June 14. 21))2. Duri"g the surgery, the
common bi1~ duct was transected and the procedure was cOllverted to a Japm'otomy. Dr. Wheel!'r
fushioned a ROUic-e&-Yh"Paticojejunostomy in an att!'mpt to repair me ~age. The treldmem
il>!ldered by Dr. Wheeler was below the standard of care, :;pecifi:ca!ly refuting to the common bile
duct injury. In treating Mr. Luberger, the standard of care reqlIired Pt. Wheeler to cru¢fully
iMnt,iIy the biniif.)' ;met anatomy, gpecifically the cystic QUct, and only cut the cySlic duct to
remOVe the gallbladder. He .feli below the standard of care in. cutting the common bile duct.

66
 law !lrm ~ 000$/0008

r am familiar with the standard of eate applica\}le to Dr. Wheeler for troatingpatients (ike
Mr. LtlberZer basoo on my education, experience, lrainlng and attendlng so;:minars as well as my
review of curr(>nt peer reviewed literature regarding proper technique for Japaroswpi$c
cholecystectomies. PleMe see my CV afumhed. Moreover, I have pelfornwd this speeific
operationhondreds of times on patien(s jUl;t like Mr. Luberger, and am fumiliar with standard ,,(
care required. I am intimately familiar with the management of patients similar to and Ilke Mr.
Luberger. r have admitted, followed and treated numerous patients with the same or similar
wllditlons as Mr. Lubergct.

The standard of ¢aTe required Dr. Wheeler to carefully identify the common bile duct and
to not cut it. He violated the standard of care regarding Mr. Luberger by failing to properly
identify the biliary lInatomy and by cuttiltg common bile dw:t.

Instead, Ilie treatment for Mr. Lubergcr should bave included properly identifying the
llllatol11Y, aV9iding cutting the common bUe duct, and only cutting the cystic duot to
lapar()scoplc,111y reOloVe the gallbladder. If he had avoided cutting tbe ,"ommon bile duct, in
reasonable medical probability, Mr. Luberger'sptocedllre would not have had to. be co\lverted. to
an open surgery- [laparotomy) and the R,>UJ(-en-Y hepaticojE3Moslomy WOl,lld not bave been
needed. Also, in reasonable medical pwbability, Mr. Lliberger's post operative cholangiogtruns,
livex: ;furlction tests, subsequent months of abdominal pain and subsequent surgical procedures
(including the biliary drainage catheters) would Mt nave ooeurred.

As Ii consBquen!'.e of these errors, Ilie substandard cate of Dr. Wheeler caused Mr.
Lulx-'1'ger pefmlUJent sewing, additional pain and additional otherwise unneeded surgi!lal
prO.ceVures. Dr. Wheeler's sllbstart(!ard CllI'1} re.whed in additional injury to Mr. Luberger's
abdomilla] area, which but tbr the common bile duct injury, would not have occu.rwd.

OI\lWolePajolu, M.D., FAC's.

67
 Page I

V.T.C.A., Civil Practice & Remedies Code § 74.351

c Effective: September 01, 2005

Vernon's Texas Statutes and Codes Annotated Currentness
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
K~ Chapter 74. Medical Liability (Refs & Annos)
'@lSubchapterH. Procedural Provisions (Refs & Annos)

.. § 74.351. Expert Report

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was
filed, serve On each party or the party's attorney one or mOre expert reports, with a curriculum vitae of each expert
listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for
serving the report may be extended by written agreement of the affected patties. Each defendant physician or health
care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report
not later than the 21 st day after the date it was served, failing which all objections are waived.

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period
specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to
Subsection ( c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by
the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the
claim.

(c) If an expert repOlt 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. If the
claimant does not receive notice of the court's ruling granting the extension until after the I20-day deadline has passed,
then the 30-day extension shall run fTom the date the plaintiff first received the notice.

[Subsections (d)-(h) reserved]

(i) Notwithstanding any other provision of this section, a claimant may satisfY any requirement of this section for
serving an expert report by serving reports of separate expelts regarding different physicians or health care providers
or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability
and causation. Nothing in this section shall be construed to mean that a single expert must 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.

G) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than an
issue relating to liability or causation.

(k) Subject to Subsection (t), an expert report served under this section:

(1) is not admissible in evidence by any party;

(2) shall not be used in a deposition, trial, or other proceeding; and

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
 Page 2

V.T.C.A., Civil Practice & Remedies Code § 74.351

(3) shall not be referred to by any party during the course of the action for any purpose.

(I) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after
hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert
report in Subsection (r)(6).

[Subsections (m)-(q) reserved]

(r) In this section:

(I) "Affected parties" means the claimant aud the physician or health care provider who are directly affected by an
act or agreement required or permitted by this section and does not include other palties to an action who are not
directly affected by that particular act or agrecment.

(2) "Claim" means a health care liability claim.

[(3) reserved]

(4) "Defendant" means a physician or health care provider against whom a health care liability claim is asserted.
The term includes a third-party defendant, cross-defendant, or counterdefendant.

(5) "Expert" means:

(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testifY under the requirements of Section 74.401;

(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from
accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402;

(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care in any health care liability claim,
a physiCian who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence;

(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or
physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence; or

(E) with respect to a person giving opinion testimony about the causal relationship between the injury, hal'm, or
damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist or
physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence.

(6) "Expert report" means a written report by an expert that provides a fair summary ofthe expert's opinions as ofthe
date of the report regarding applicable standards of care, the marmer 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.

(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a
health care liability claim is stayed except for the acquisition by the claimant of information, including medical or
hospital records or other documents or tangible things, related to the patient's health care through:

(I) written discovery as defined in Rule 192.7. Texas Rules of Civil Procedure;

© 2006 Thomson/West. No Claim to Orig. U.S. Gov!. Works.
 Page 3

V.T.C.A., Civil Practice & Remedies Code § 74.351

(2) depositions on written questions under Rule 200. Texas Rules of Civil Procedure; and

(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.

(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service
requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are
waived.

(u) Notwithstanding any other provision ofthis section, after a claim is filed all claimants, collectively, may take not
more than two depositions before the expert report is served as required by Subsection (a).

CREDIT(S)

Added by Acts 2003. 78th Leg., ch. 204. § 10.01, eff. Sept. I. 2003. Amended by Acts 2005. 79th Leg., ch. 635. § 1.
eff. Sept. 1, 2005.

HISTORICAL AND STATUTORY NOTES

2006 Electronic Pocket Part Update

2005 Legislation

Acts 2005, 79th Leg., ch. 635, in subsec. (a), in the first sentence substituted "the original petition was filed" for "the
claim was filed".

Section 2 of Acts 2005, 79th Leg., ch. 635 provides:

"This Act applies only to a cause of action that accrues on or after the effective date Oftllis Act. An action that accrued
before the effective date of this Act is governed by the law applicable to the action immediately before the effective
date ofthis Act, and that law is continued in effect for that purpose."

2005 Main Volume

Prior Laws:
Acts 1993, 73rd Leg., ch. 625, § 3.
Acts 1995, 74th Leg., ch. 140, § 1.
Vernon's Ann.Civ.St. art. 4590i, § 13.01.

© 2006 ThomsonlWest. No Claim to Orig. U.S. Gov!. Works.