Nancy Jo Rodriguez v. the Walgreen Company and Sara Elizabeth McGuire

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ACCEPTED 03-14-00765-CV 4402607 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/6/2015 2:11:03 PM JEFFREY D. KYLE CLERK NO. 03–14–00765–CV IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AT AUSTIN AUSTIN, TEXAS 3/6/2015 2:11:03 PM JEFFREY D. KYLE NANCY JO RODRIGUEZ, Clerk APPELLANT, V. THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE, APPELLEES. On Appeal from the 419th District Court Travis County, Texas BRIEF OF APPELLEES JUDITH R. BLAKEWAY State Bar No. 02434400 judith.blakeway@strasburger.com CYNTHIA DAY GRIMES State Bar No. 11436600 Cynthia.Grimes@strasburger.com STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215 (210) 250-6003 Telephone (210) 258-2706 Facsimile ATTORNEYS FOR APPELLEES 1751449.6/SPSA/87282/0138/030615 Identity of Parties and Counsel In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellees provide the following complete list of all parties and counsel to the trial court’s order that forms the basis of this appeal. Party Trial Counsel NANCY JO RODRIGUEZ Lannie Todd Kelly Appellant State Bar No. 24035049 THE CARLSON LAW FIRM, P.C. 11606 N. IH–35 Austin, TX 78753 Telephone: (512) 346–5688 Facsimile: (512) 719–4362 tkelly@carlsonattorneys.com THE WALGREEN COMPANY, INC. CYNTHIA DAY GRIMES and State Bar No. 11436600 SARA ELIZABETH MCGUIRE Cynthia.Grimes@strasburger.com Appellees STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215 (210) 250-6003 Telephone (210) 258-2706 Facsimile Trial Counsel JUDITH R. BLAKEWAY State Bar No. 02434400 judith.blakeway@strasburger.com CYNTHIA DAY GRIMES State Bar No. 11436600 Cynthia.Grimes@strasburger.com STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215 (210) 250-6003 Telephone (210) 258-2706 Facsimile Appellate Counsel ii 1751449.6/SPSA/87282/0138/030615 VIVEK GOSWAMI, M.D. and Chris Knudsen AUSTIN HEART, PLLC State Bar No. 24041268 Defendants (not parties to this cknudsen@serpejones.com appeal) nandrews@serpejones.com Nicole Andrews State Bar No. 00792335 SERPE JONES ANDREWS CALLENDER & BELL, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 (713) 452–4400 Telephone (713) 452–4499 Facsimile ST. DAVID’S HEALTH CARE Missy Atwood PARTNERSHIP State Bar No. 01428020 Defendant (not a party to this GERMER, BEAMAN & BROWN, PLLC appeal) 301 Congress Avenue, Suite 1700 Austin, Texas 78701 (512) 472–0288 Telephone (512) 472–0721 Facsimile matwood@germer-austin.com iii 1751449.6/SPSA/87282/0138/030615 Table of Contents Identity of Parties and Counsel ................................................................................. ii Table of Contents ......................................................................................................iv Table of Authorities ..................................................................................................vi Statement of the Case................................................................................................. 1 Issue Presented ........................................................................................................... 1 Did the trial court abuse its discretion in dismissing Plaintiff’s claims against Walgreen and McGuire? ..................................................................... 1 Statement of Facts ...................................................................................................... 1 Summary of Argument .............................................................................................. 4 Standard of Review .................................................................................................... 6 Argument.................................................................................................................... 8 I. A Chapter 74 report must be from a qualified expert and address in non–conclusory terms the standard of care, breach and causation. ........................................................................................ 8 II. The trial court did not abuse its discretion in dismissing claims against Walgreen and McGuire. ............................................................ 9 A. Mr. Hardy’s report is deficient.................................................... 9 1. Mr. Hardy’s opinion is speculative and conclusory. ........ 9 2. Mr. Hardy is statutorily disqualified from addressing causation. ...................................................... 11 3. Mr. Hardy’s report fails to distinguish between multiple defendants......................................................... 13 4. Mr. Hardy is not qualified as a practicing pharmacist. ...................................................................... 14 iv 1751449.6/SPSA/87282/0138/030615 B. Dr. Breall’s expert report is deficient. ...................................... 15 1. Dr. Breall’s report does not even mention Walgreen or McGuire. .................................................... 16 2. Dr. Breall’s report is speculative and conclusory. .......... 17 3. Dr. Breall is not qualified to testify to the standard of care for a pharmacy or pharmacist. ............................ 19 Conclusion ............................................................................................................... 19 Certificate of Service ............................................................................................... 21 Certificate of Compliance ........................................................................................ 21 Appendix .................................................................................................................. 22 1. Order dated December 3, 2014 ........................................................... 22 2. Mr. Hardy’s CV and report ................................................................. 22 3. Dr. Breall’s CV and report .................................................................. 22 4. TEX. CIV. PRAC. & REM. CODE §74.351 .............................................. 22 5. TEX. CIV. PRAC. & REM. CODE §74.402 .............................................. 22 v 1751449.6/SPSA/87282/0138/030615 Table of Authorities Page(s) CASES American Transitional Care Centers of Texas Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001).......................................................................6, 7, 8, 9 Apodaca v. Russo, 228 S.W.3d 252 (Tex. App.–Austin 2007, no pet.) ............................................ 17 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (Tex. App.–Austin 2007, no pet.) ................................13, 14, 17 Austin Regional Clinic v. Power, 2012 Tex. App. LEXIS 5242 (Austin 2012, no pet.).......................................... 17 Bogar v. Esparza, 257 S.W.3d 354 (Tex. App.–Austin 2008, no pet.) ............................................ 17 Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)...............................................................7, 9, 12, 13, 18 Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) .............................................................................. 15 Constancio v. Bray, 266 S.W.3d 149 (Tex. App.–Austin 2008, no pet.) ............................................ 18 Cooper v. Arizpe, No. 04–07–00743, 2008 Tex. App. LEXIS 2506 (Tex. App.–San Antonio, April. 9, 2008, pet. denied) .................................................................. 10 Doades v. Syed, 94 S.W.3d 664 (Tex. App.–San Antonio 2002, no pet.) .................................... 13 Estate of Allen v. Polly Ryon Hosp. Auth., No. 01–04–00151–CV, 2005 Tex. App. LEXIS 1691 (Tex. App.– Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) ....................................... 12 Fung v. Fischer, 365 S.W.3d 507 (Tex. App.–Austin 2012), overruled in part by Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) .........................................10, 16 vi 1751449.6/SPSA/87282/0138/030615 Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) ................................................................................ 7 Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006)...........................................................................6, 7, 9 Kocerek v. Colby, No. 03–13–0057–CV, 2014 Tex. App. LEXIS 9336 (Tex. App.–Austin 2014, no pet.) ...................................................................................................... 18 Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703 (Tex. 1970) .............................................................................. 12 McMenemy v. Holden, No. 14–07–00365–CV, 2007 Tex. App. LEXIS 8830 (Tex. App.– Houston [14th Dist.] Nov. 1, 2007, pet. denied) (mem. op.) .............................. 12 Murphy v. Mendoza, 234 S.W.3d 23 (Tex. App.–El Paso 2007, no pet.) ............................................ 11 Perez v. Daughters of Charity Health Servs. of Austin, No. 03–08–00200–CV, 2008 WL 4531558 (Tex. App.–Austin, Oct. 10, 2008, no pet.) (mem. op.).................................................................................... 18 Reddy v. Hebner, 435 S.W.3d 323 (Tex. App.–Austin 2014, pet. filed) ........................................ 16 Rittmer v. Garza, 65 S.W.3d 718 (Tex. App.–Houston [14th Dist.] 2001, no pet.) ....................... 13 Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) ............................................................................ 7, 9 Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) ................................................................................ 9 Smith v. Wilson, 368 S.W.3d 574 (Tex. App.–Austin 2012, no pet.) ........................................ 7, 18 Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241 (Tex. App.–Corpus Christi 2004, no pet.) ............................... 14 vii 1751449.6/SPSA/87282/0138/030615 Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (Tex. App.–El Paso 2011, no pet.) .......................................... 14 Walgreen Co. v. Hieger, 243 S.W.3d 183 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) ............... 12 Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003)................................................................................... 7 STATUTES TEX. CIV. PRAC. & REM. CODE 74.001(a)(10) .......................................................... 15 TEX. CIV. PRAC. & REM. CODE § 74.351 .................................................................... 8 TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i)..................................................... 16 TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) ...................................................13, 18 TEX. CIV. PRAC. & REM. CODE § 74.402 ..................................................................... 19 TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1)–(3) .................................................. 14 TEX. CIV. PRAC. & REM. CODE § 74.402(c) ............................................................. 15 TEX. CIV. PRAC. & REM. CODE § 74.403(a).............................................................. 11 viii 1751449.6/SPSA/87282/0138/030615 Statement of the Case This is an interlocutory appeal from an order dismissing a health care liability claim against Walgreen and its pharmacist McGuire for failure to serve adequate expert reports. Ms. Rodriguez claims that the district court abused its discretion in concluding that she failed to serve expert reports that comply with Chapter 74 of the Texas Civil Practice and Remedies Code. Issue Presented Did the trial court abuse its discretion in dismissing Plaintiff’s claims against Walgreen and McGuire? Statement of Facts Ms. Rodriguez sued her cardiologist, Dr. Goswami, Walgreen and its pharmacist, McGuire, claiming that Defendants were negligent because after Dr. Kessler (who was in the same group as Dr. Goswami) advised that Pradaxa be discontinued, Walgreen continued to fill a prescription previously issued by Dr. Goswami. C.R. 6. Dr. Goswami issued the prescription on February 14, 2012, C.R. 335, with a prescription refill on March 16, 2012. C.R. 336. Ms. Rodriguez alleged that continued use of Pradaxa caused her to be admitted to the hospital with hypertension, acute kidney injury and gastrointestinal bleeding. C.R. 6. In support of her claim, she served reports from Jeffrey Hardy, Pharm. D., M.S., C.R. 39–42, and Dr. Jeffrey Breall, a professor of clinical medicine. C.R. 43–44. 1751449.6/SPSA/87282/0138/030615 Mr. Hardy opined that Walgreen, McGuire and a pharmacist with the initials MDD breached the applicable standard of care because (1) they failed to verify whether the prescription previously written by Dr. Goswami for Pradaxa should be continued and (2) dispensed a prescription for Pradaxa after Dr. Kessler indicated that it be discontinued. His report stated: Standards of Care The standard of care required to fill Ms. Rodriguez’s dabigatran etexilate (PRADAXA) prescription are as follows:  Pharmacists have a duty to contact the prescribing physician if patient harm is possible to validate the prescription  Pharmacists are responsible for ensuring a prescription is accurately communicated and dispensed as intended by the prescriber  Pharmacists are responsible for communicating with the prescribing physician to validate continuation of therapy when no refills remain on a prescription Breach of Standard of Care Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD breached the applicable standards of care. Specifically, Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD conduct fell below the standard of care by:  Continuing to dispense a prescription for dabigatran etexilate (PRADAXA) after the prescribing physician indicated it should be discontinued; and 1751449.6/SPSA/87282/0138/030615 2  Failing to verify if the prescription for dabigatran etexilate (PRADAXA) should be continued with the prescribing physician Walgreens, Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD should have provided Ms. Rodriguez with the care and treatment in the standard of care paragraph above. However, this expected care was not provided to Ms. Rodriguez as set forth in the preceding paragraph. C.R. 40–41. Plaintiff did not offer Mr. Hardy’s opinion as to causation, but instead relied on the report of Dr. Breall. C.R. 359; R.R. 32. Dr. Breall’s report did not mention Walgreen or McGuire; it was instead directed solely to the conduct of Dr. Goswami. C.R. 44. Dr. Breall stated the following about causation: Failure to discontinue the use of Pradaxa was a direct cause of her subsequent acute admission to the hospital with hypotension, acute kidney injury and apparent gastrointestinal bleeding – known side effects of the over–use of Pradaxa. Ms. Rodriguez’s entire hospitalization was attributable to the failure to stop Pradaxa therapy as ordered by Dr. Kessler. More likely than not, had the Pradaxa medication been discontinued as requested, Ms. Rodriguez’s hospitalization would never have needed to take place. C.R. 44. Walgreen and McGuire objected to both reports, C.R. 64–74, and moved to dismiss. C.R. 212–20. The trial court granted their motion. C.R. 375–76. Ms. Rodriguez appeals. Supp. C.R. 3–4. 1751449.6/SPSA/87282/0138/030615 3 Summary of Argument The trial court did not abuse its discretion in dismissing Ms. Rodriguez’s claims against Walgreen and McGuire. Her experts were not shown to be qualified and their reports failed to implicate Walgreen or its pharmacists. Neither expert provided a factual basis for his opinions. Both reports were based on the unstated assumption that Walgreen and McGuire knew Dr. Kessler had instructed Ms. Rodriguez to discontinue Pradaxa. Even when read together, there was no report that implicated the conduct of Walgreen or its pharmacists because Mr. Hardy was incompetent to render a report as to causation and Dr. Breall never even mentioned Walgreen or McGuire in his report. The trial court’s dismissal should be affirmed. The trial court did not abuse its discretion in finding Mr. Hardy’s report deficient. First, his report is conclusory ––he fails to provide any facts to support his conclusion about why Walgreen and its pharmacists failed to meet the standard of care. He does not recite any facts about the date of Dr. Kessler’s advice to stop Pradaxa, to whom the instruction may have been communicated, whether Walgreen or its pharmacists ever had any notice of the advice, the circumstances under which Walgreen continued to refill her Pradaxa prescription, or any other relevant facts. If Walgreen received the prescription written by Dr. Goswami, C.R. 335, and the five refills of Pradaxa, C.R. 336, and was not aware of Dr. Kessler’s subsequent indication to stop using Pradaxa, there would be no 1751449.6/SPSA/87282/0138/030615 4 reason for Walgreen to refuse to refill her prescription using the prescription it had on file. Nevertheless, Mr. Hardy’s report does not even mention the fact that Walgreen had a prescription refill that predated the hospital admission during which Dr. Kessler said to stop Pradaxa. Nor does it mention whether Walgreen or McGuire were ever informed of Dr. Kessler’s instruction. Second, Mr. Hardy was statutorily disqualified from testifying to causation. Ms. Rodriguez concedes that Mr. Hardy was unqualified to render an opinion regarding causation; only a physician may render opinions regarding causation. Nevertheless, Ms. Rodriguez asserts that when Mr. Hardy’s report is read in conjunction with Dr. Breall’s report, the causation requirement is satisfied. While it is true that the expert report requirement may be satisfied by utilizing more than one expert report, Dr. Breall’s report does not supply the missing causation. Dr. Breall’s report does not even mention Walgreen or its pharmacists much less identify any conduct, act or omission attributable to them. Third, when a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant’s acts and the plaintiff’s injury. A claimant must provide each defendant with an expert report that sets forth the manner in which the care rendered by that defendant failed to meet the standard of care and 1751449.6/SPSA/87282/0138/030615 5 the causal relationship between that failure and the injuries claimed. This Mr. Hardy and Dr. Breall failed to do. Fourth, Mr. Hardy was not qualified. There is nothing in the four corners of his report to indicate that he was a practicing pharmacist filling prescriptions at the time the claim arose or when he made his report. The trial court did not abuse its discretion in finding that Dr. Breall’s report does not bridge the gaps in Mr. Hardy’s report. First, his report does not even mention Walgreen or McGuire much less recite any facts that Walgreen’s pharmacists were on notice of Dr. Kessler’s instruction. Second, his report is speculative and conclusory on the issue of causation. It fails to identify the prescription used by Ms. Rodriguez after Dr. Kessler said to stop using Pradaxa, the circumstances under which Walgreen continued to refill the prescription, or how doing so contributed to Ms. Rodriguez’s injury. Third, Dr. Breall is not qualified to testify to the standard of care for a pharmacist. The trial court’s dismissal should be affirmed. Standard of Review A trial court’s rulings on motions to dismiss health care liability claims are reviewed for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); American Transitional Care Centers of Texas Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion by rendering an 1751449.6/SPSA/87282/0138/030615 6 arbitrary and unreasonable decision lacking support in the facts or circumstances of the case or by acting in an arbitrary or unreasonable manner without reference to guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (plurality op.) When reviewing matters committed to the trial court’s discretion, an appellate court may not substitute its 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. Id.; see also Jelinek v. Casas, 328 S.W.3d 526, 542 (Tex. 2010) (Jefferson, C.J., dissenting) (“The dividing line between a sufficient and an inadequate report is impossible to draw precisely. We have said, therefore, that the determination must be made in the first instance by the trial court, and review of that decision asks not how an appellate court would have resolved that issue, but instead whether the trial court abused its discretion.”) (citing Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003)). But if an expert report contains only conclusions about the statutory elements, a trial court has “no discretion but to conclude . . . that the report does not represent a good–faith effort” to satisfy the statute. Palacios, 46 S.W.3d at 877, 880; Smith v. Wilson, 368 S.W.3d 574 (Tex. App.–Austin 2012, no pet.). 1751449.6/SPSA/87282/0138/030615 7 Argument I. A Chapter 74 report must be from a qualified expert and address in non–conclusory terms the standard of care, breach and causation. Pursuant to Section 74.351, medical–malpractice plaintiffs must provide each defendant health care provider with an expert report or voluntarily nonsuit the action. TEX. CIV. PRAC. & REM. CODE §74.351. If a claimant timely furnishes an expert report, a defendant may file a motion challenging the report’s adequacy. Id. The trial court shall grant the motion only if it appears, after hearing, that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See id. §74.351(l). The statute defines an expert report as a written report by an expert that provides, as to each defendant, a fair summary of the expert’s opinions, as of the date of the report, regarding: (1) the applicable standards of care; (2) the manner in which the care provided failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id. §74.351(r)(6). Although the report need not marshal all the plaintiff’s proof, it must include the expert’s opinions on the three statutory elements––standard of care, breach and causation. See Palacios, 46 S.W.3d at 878. In detailing these elements, the report must provide enough information to fulfill two purposes: first, it must inform the defendant of the specific conduct the plaintiff has called into question, and, second, it must provide a basis for the trial court to conclude that the claims have merit. 1751449.6/SPSA/87282/0138/030615 8 Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios, 46 S.W.3d at 879). A report that merely states the expert’s conclusions as to the standard of care, breach, and causation does not fulfill these two purposes. Id. A report that omits one or more of these required elements, or states the expert’s opinions as merely conclusions without supporting facts, is insufficient to constitute a “good faith effort” at compliance with Chapter 74. See Samlowski v. Wooten, 332 S.W.3d 404, 409–10 (Tex. 2011); Jernigan v. Langley, 195 S.W.3d 91, 93–94 (Tex. 2006) (affirming trial court’s dismissal of suit because expert reports omitted any allegation about how doctor breached standard of care and causation); Bowie Mem’l Hosp., 79 S.W.3d at 52. (“[T]he expert must explain the basis of his statements and link his conclusions to the facts.”) Furthermore, in assessing a report’s sufficiency, a trial court may not draw any inferences, and instead must rely exclusively on the information contained within the report’s four corners. See Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios, 46 S.W.3d at 878). II. The trial court did not abuse its discretion in dismissing claims against Walgreen and McGuire. A. Mr. Hardy’s report is deficient. 1. Mr. Hardy’s opinion is speculative and conclusory. Mr. Hardy’s report is speculative because it relies on the assumption that Walgreen and McGuire were aware of Dr. Kessler’s advice to discontinue the use 1751449.6/SPSA/87282/0138/030615 9 of Pradaxa. It fails to make a causal link between an allegedly breached standard of care and injury by requiring an inference that if Walgreen and McGuire had known of Dr. Kessler’s advice, then Ms. Rodriguez’s outcome would have been different. His opinions all hinge on Walgreen and McGuire knowing of Dr. Kessler’s advice. Yet there is nothing in Mr. Hardy’s report that affirmatively shows that Walgreen and McGuire were aware of the information that is identified as key to their liability. Any breach of the standard of care discussed in Mr. Hardy’s report is entirely dependent on what Defendants knew and when. Yet Mr. Hardy’s report is silent on these crucial facts. Further, Mr. Hardy’s report says Walgreen should have contacted the prescribing physician––Dr. Goswami. But there is no indication that at that time Dr. Goswami even knew of Dr. Kessler’s advice or would have communicated it to Walgreen or McGuire. By relying on assumptions instead of facts, the report provides no basis for a trial court to conclude that the claims against Defendants have merit. Fung v. Fischer, 365 S.W.3d 507, 533 (Tex. App.–Austin 2012), overruled in part by Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (finding that report that depended on unsupported assumptions about what a defendant knew and when he knew it was speculative); Cooper v. Arizpe, No. 04–07–00743, 2008 Tex. App. LEXIS 2506 at *9–10 (Tex. App.–San Antonio, April. 9, 2008, pet. denied) (holding that report that relied on assumption that notes were in chart was 1751449.6/SPSA/87282/0138/030615 10 conclusory and speculative); Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex. App.– El Paso 2007, no pet.) (holding that expert’s opinion as to breach of the standard of care was speculative and conclusory as it was unsupported by facts in report’s four corners and relied on assumption). Mr. Hardy’s opinions regarding Walgreen’s negligence, breach of the standard of care, and causation––which depend on unsupported assumptions as to what Walgreen and McGuire knew and when they knew it––are conclusory and speculative at best. They do not provide a basis for the court to conclude that Ms. Rodriguez’s healthcare liability claim against Walgreen and McGuire has merit. 2. Mr. Hardy is statutorily disqualified from addressing causation. Mr. Hardy, Pharm. D., M.S., is a pharmacist and not a medical doctor. Only a physician can render an opinion on causation. TEX. CIV. PRAC. & REM. CODE §74.403(a). Therefore, Mr. Hardy, by statute, cannot render an opinion on causation. Moreover, Mr. Hardy’s statement of causation is entirely conclusory in that it fails to explain the relationship between the alleged injuries and the failure to act according to the standard of care. He simply states “…It is clear that the long-term use of dabigatran etexilate (Pradaxa) as dispensed by Walgreens and Sara Elizabeth McGuire (pharmacist), and pharmacist with initials MDD caused 1751449.6/SPSA/87282/0138/030615 11 Ms. Rodriguez’s acute kidney injury, anemia, and gastrointestinal bleeding (which have led to her long-term clinical demise and medical injuries).” C.R. 42. The causal connection in healthcare malpractice suits must be made “beyond the point of conjecture” and “must show more than a possibility” to warrant submission of the issue to a jury. Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703, 706 (Tex. 1970); see Bowie Mem’l Hosp., 79 S.W.3d at 53. Reports providing a “description of only a possibility of causation do not constitute a good–faith effort to comply with the statute.” Walgreen Co. v. Hieger, 243 S.W.3d 183, 186– 87 (Tex. App.–Houston [14th Dist.] 2007, pet. denied) (holding that expert report stating claimant had symptoms “consistent with” known side effects of medication was insufficient to demonstrate causal link); see McMenemy v. Holden, No. 14– 07–00365–CV, 2007 Tex. App. LEXIS 8830, at *15–16 (Tex. App.–Houston [14th Dist.] Nov. 1, 2007, pet. denied) (mem. op.) (concluding that expert’s report expressing uncertainty about possibility of positive outcome for patient failed to make causal link indicating plaintiffs’ claim had merit); Estate of Allen v. Polly Ryon Hosp. Auth., No. 01–04–00151–CV, 2005 Tex. App. LEXIS 1691, at *16–17 (Tex. App.–Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) (holding that expert’s report failed to meet statutory causation requirement by opining merely that breach of standard of care “could have contributed” to decline in claimant’s condition). 1751449.6/SPSA/87282/0138/030615 12 Further, a court may not fill in gaps in a report by drawing inferences or guessing what the expert meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.–Austin 2007, no pet.). Instead, the report must include the required information within its four corners. Bowie Mem’l Hosp., 79 S.W.3d at 53. This Mr. Hardy’s report fails to do. The trial court thus did not abuse its discretion in finding it inadequate. 3. Mr. Hardy’s report fails to distinguish between multiple defendants. Also, Mr. Hardy’s report does not separately set out the alleged acts of negligence and causal connection for each of the multiple defendants. When a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant’s individual acts and the injury. See TEX. CIV. PRAC. & REM. CODE §74.351(r)(6) (a claimant must provide each defendant with an expert report that sets forth the manner in which the care rendered failed to meet the standard of care and the causal relationship between that failure and the injuries claimed); Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex. App.–San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23 (Tex. App.–Houston [14th Dist.] 2001, no pet.). An expert report may not assert that multiple defendants are all negligent for failing to meet the standard of care without providing an explanation of how each defendant breached the standard of care and how that breach caused or contributed 1751449.6/SPSA/87282/0138/030615 13 to cause the injury. Austin Heart, 228 S.W.3d at 282-83 (finding deficient expert report that was “silent as to whether a single physician, multiple physicians, or all physicians’ mentioned in the report failed to meet the standard of care and caused injury to [the patient]”); Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (Tex. App.–El Paso 2011, no pet.) (finding deficient expert report that failed to state who among multiple defendants caused the injuries); Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 245–46 (Tex. App.–Corpus Christi 2004, no pet.) (finding deficient expert report that failed “to state what each defendant should have done in order to meet the standard of care, what each defendant failed to do, and how such failure led to [the patient’s] death”). Because Mr. Hardy’s report does not explain what conduct, act or omissions are attributable to which of the defendants, it is deficient, and the trial court did not abuse its discretion in finding it did not satisfy the statutory requirements. 4. Mr. Hardy is not qualified as a practicing pharmacist. A person may qualify as an expert witness on whether a health care provider departed from accepted standards of care only if, at the time the claim arose or at the time the testimony is given, he is practicing the same type of care or treatment as the defendant, and is qualified by training or experience. TEX. CIV. PRAC. & REM. CODE §74.402(b)(1)–(3). In determining whether a witness is qualified, a court considers whether the witness (1) is certified by the licensing agency, and 1751449.6/SPSA/87282/0138/030615 14 (2) is actively practicing health care in rendering health care services relevant to the claim. TEX. CIV. PRAC. & REM. CODE §74.402(c). “Health care” is defined as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient’s medical care, treatment, or confinement.” TEX. CIV. PRAC. & REM. CODE 74.001(a)(10). A plaintiff offering medical testimony must establish that the expert has expertise regarding “the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). The analysis focuses on “the very matter” on which the expert is to give an opinion. Id. Here, there is no showing in the four corners of his report that Mr. Hardy is practicing and rendering health care in “the very matter” on which he is giving an opinion. Mr. Hardy’s CV shows only that he is involved in pharmacy “information technology.” There is no showing that he was, at the pertinent times, filling prescriptions for patients. Nothing in the four corners of Mr. Hardy’s report indicates that he is qualified to opine on the standard of care, breach or causation. B. Dr. Breall’s expert report is deficient. Conceding that Mr. Hardy is prohibited by statute from stating any opinions on causation, Ms. Rodriguez still asserts that when Mr. Hardy’s report is read in conjunction with the report provided by Dr. Breall, causation is found. While it is 1751449.6/SPSA/87282/0138/030615 15 true that the expert report requirement may be satisfied by utilizing more than one expert report, and thus, a court may read those reports together to supply missing elements, see TEX. CIV. PRAC. & REM. CODE ANN. §74.351(i), Dr. Breall’s report does not supply the missing causation. 1. Dr. Breall’s report does not even mention Walgreen or McGuire. Dr. Breall does not mention Walgreen or McGuire, does not discuss any standard of care pertaining to Walgreen or McGuire, and does not discuss any causal connection between anything done or failed to be done by Walgreen or McGuire and the injuries sustained by Ms. Rodriguez. In fact, the report does not mention Walgreen or McGuire at all; instead, the report discusses only Dr. Goswami. His report thus does not constitute an expert report as required to maintain a suit against Walgreen and McGuire. Accordingly, the trial court was correct to grant the motion to dismiss. When a defendant is not identified within the four corners of a report, the report is, for that reason alone, deficient as to that defendant because it requires the reader to infer or make an educated guess as to whose actions caused the injuries. See Reddy v. Hebner, 435 S.W.3d 323, 328 (Tex. App.–Austin 2014, pet. filed) (finding report that did not mention doctor or discuss how doctor’s treatment did not meet the standard of care, did not constitute a good-faith effort to comply with the statutory requirements); Fung v. Fischer, 365 S.W.3d 507, 529 (Tex. App.– 1751449.6/SPSA/87282/0138/030615 16 Austin 2012, no pet.) overruled on other grounds by Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (concluding that report did not implicate defendant when it did not allege breach by defendant or any causal link between defendant’s breach and injury); Austin Regional Clinic v. Power, 2012 Tex. App. LEXIS 5242 (Austin 2012, no pet.) (concluding that trial court abused its discretion by denying motion to dismiss claims against certain defendant when the expert report did not mention that defendant); see also Bogar v. Esparza, 257 S.W.3d 354, 363 (Tex. App.–Austin 2008, no pet.); Austin Heart P.A. v. Webb, 228 S.W.3d 276, 281 (Tex. App.–Austin 2007, no pet.); Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex. App.–Austin 2007, no pet.). Dr. Breall’s report falls below the minimal standard and thus does not constitute an expert report as required to maintain a suit against Walgreen and McGuire. 2. Dr. Breall’s report is speculative and conclusory. Like Mr. Hardy’s, Dr. Breall’s report would have to be based on the assumption that Walgreen and McGuire––although they are never mentioned–– knew about Dr. Kessler’s advice to stop Pradaxa. But there is nothing in his report about to whom the advice was communicated, whether the prescription that was used by Ms. Rodriguez predated the advice, or any other circumstances under which Ms. Rodriguez continued to refill her prescription. Dr. Breall simply does not provide facts to establish the causal link between Walgreen’s alleged breach 1751449.6/SPSA/87282/0138/030615 17 and Ms. Rodriguez’s injuries, one of the required statutory elements of an expert report. See TEX. CIV. PRAC. & REM. CODE §74.351(r)(6). “To avoid being conclusory, an expert must explain the basis of the statements to link his conclusions to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). This Court has consistently required more than what Dr. Breall has provided in terms of expert testimony on causation. See Kocerek v. Colby, No. 03–13– 0057–CV, 2014 Tex. App. LEXIS 9336 (Tex. App.–Austin 2014, no pet.)(holding insufficient expert report that failed to show specific actions defendant did or did not take would have prevented patient’s injuries); Smith v. Wilson, 368 S.W.3d 574, 578 (Tex. App.–Austin 2012, no pet.)(holding that expert failed to show how doctor’s alleged breach of standard of care caused patient to commit suicide); Constancio v. Bray, 266 S.W.3d 149, 157–58 (Tex. App.–Austin 2008, no pet.) (holding insufficient expert report that alleged that breach of standard of care by doctor caused patient’s death when report did not explain how increased monitoring of patient, detection of hypoxemia, and other consequence would have prevented patient’s death); Perez v. Daughters of Charity Health Servs. of Austin, No. 03–08–00200–CV, 2008 WL 4531558, at *4 (Tex. App.–Austin, Oct. 10, 2008, no pet.) (mem. op.) (concluding expert report insufficient on causation because it did not link hospital’s actions to patient’s death or any cause of death 1751449.6/SPSA/87282/0138/030615 18 and did not identify any specific injury that would have been prevented had hospital complied with standard of care). To find Dr. Breall’s report sufficient on causation, the trial court would have had to make inferences beyond the four corners of his report, which it could not do. For this additional reason, the trial court was correct to grant the motion to dismiss. 3. Dr. Breall is not qualified to testify to the standard of care for a pharmacy or pharmacist. An expert report must demonstrate within the four corners of the report that the purported expert is qualified to testify about the particular matters for which the opinion is offered. TEX. CIV. PRAC. & REM. CODE §74.351, 74.402. Dr. Breall is not a pharmacist qualified on the basis of training or experience to offer an expert report regarding accepted standards for a pharmacy or pharmacist. Because he is not qualified to give opinions as to the standard of care, he cannot connect any breaches of the standard of care with the damages claimed. Therefore, the Court’s dismissal of Ms. Rodriguez’s claims against Walgreen and McGuire was correct. CONCLUSION The trial court was correct in dismissing the claims against Walgreen and McGuire. Its order should be affirmed. 1751449.6/SPSA/87282/0138/030615 19 Respectfully submitted, /s/ Judith R. Blakeway JUDITH R. BLAKEWAY State Bar No. 02434400 judith.blakeway@strasburger.com CYNTHIA DAY GRIMES State Bar No. 11436600 Cynthia.Grimes@strasburger.com STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215 (210) 250-6003 Telephone (210) 258-2706 Facsimile ATTORNEYS FOR APPELLEES THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE 1751449.6/SPSA/87282/0138/030615 20 CERTIFICATE OF SERVICE Pursuant to E-Filing Standing Order, I certify that on March 6, 2015, I electronically filed the foregoing with the Clerk of Court using the EFile.TXCourts.gov electronic filing system which will send notification of such filing to the following: Lannie Todd Kelly State Bar No. 24035049 THE CARLSON LAW FIRM, P.C. 11606 N. IH–35 Austin, TX 78753 Telephone: (512) 346–5688 Facsimile: (512) 719–4362 tkelly@carlsonattorneys.com Attorneys for Appellant Nancy Jo Rodriguez /s/ Judith R. Blakeway JUDITH R. BLAKEWAY CERTIFICATE OF COMPLIANCE In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Brief of Appellees contains no more than 4,460 words. /s/ Judith R. Blakeway JUDITH R. BLAKEWAY 1751449.6/SPSA/87282/0138/030615 21 NO. 03–14–00765–CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN NANCY JO RODRIGUEZ APPELLANT, V. THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE APPELLEES. On Appeal from the 419th District Court Travis County, Texas APPENDIX 1. Order dated December 3, 2014 2. Mr. Hardy’s CV and report 3. Dr. Breall’s CV and report 4. TEX. CIV. PRAC. & REM. CODE §74.351 5. TEX. CIV. PRAC. & REM. CODE §74.402 1751449.6/SPSA/87282/0138/030615 22 APPENDIX 1 DEC-03-2014 14:56 P.002/006 FHed In The District Court of Travis County, Texas DEC 03 2014 {If1- CAUSE NO. D-l-GN-000903 AL ' :~l1 fa:' _M. a; Clark Amalia RJdriguez.Mendo NANCY.TO RODRIGUEZ § IN THE DISTRICT COURT OF § PLAINTIFF, § § vs, § § TRAVIS COUNTY, TEXAS THE WALGREEN COMPANY, SARA § ELIZA6ETH MCGUIRE, AUSTIN HEART § PLLC, sr. DAVID'S HEALTH CARE § PARTNERSHIP, DA YID 1