Janelle Thompson, CRNA v. Genesis Fong

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JANELLE THOMPSON, CRNA, § No. 08-20-00059-CV

Appellant, § Appeal from the

v. § 41st Judicial District Court

GENESIS FONG, § of El Paso County, Texas

Appellee. § (TC# 2019DCV1550)
DISSENT

I respectfully dissent. In my view the appeal should be dismissed for want of jurisdiction,

hence my reluctance to simply concur in a judgment on the merits.

As required by section 74.351 of the Civil Practices and Remedies Code, Ms. Fong filed

two documents described as compliant expert reports within 120 days of when CRNA Thompson

filed her answer. TEX.CIV.PRAC.& REM.CODE ANN. § 74.351(a). Thompson timely objected to

the reports. At that point, the trial court could have found the reports compliant, which would have

entitled Thompson to challenge that ruling through an interlocutory appeal. Id. § 51.014(a)(9)

(allowance of appeal). Or, the trial court could have found the reports deficient and dismissed the

suit. See id. § 74.351(l). If it did so, Fong would have a right to appeal. Id. § 51.014(10). But

here, the trial court followed a third option and found the expert reports deficient but, allowed

Fong a thirty-day cure period. See id. § 74.351(c); § 74.351(l) (court may not dismiss case if report

represents an objective good faith effort to comply). While the legislature has granted us
jurisdiction to hear an interlocutory appeal from a trial court’s order denying all or a part of the

relief in a motion to dismiss, that same provision expressly states “that an appeal may not be taken

from an order granting an extension” to cure a defective expert report. Id. at 51.014(a)(9).

This statutory scheme generally precludes an appeal in a case such as this where the trial

court finds a report deficient but grants a cure period. In Ogletree v. Matthews, the Texas Supreme

Court held: “Thus, if a deficient report is served and the trial court grants a thirty-day extension,

that decision—even if coupled with a denial of a motion to dismiss—is not subject to appellate

review.” 262 S.W.3d 316, 321 (Tex. 2007). The Ogletree court’s majority opinion alluded to a

binary choice between situations where a plaintiff failed to file any kind of report, and one where

a deficient report was filed, but a cure period allowed. Justice Willett’s concurrence suggested

another prospect--a report so lacking in substance that it amounted to no report at all. Id. at 323

(Willett, concurring) (“In my view, there exists a third, albeit rare, category: a document so utterly

lacking that, no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at

all, even a deficient one. A document like this merits dismissal just like an absent report.”). By

way of example, he suggested a document like a medical or hospital record that the author “may

never have intended it as [an expert medical report].” Id. at 323. And the court was presented

with a concrete example of what Justice Willett envisioned the next year in Lewis v. Funderburk

when a plaintiff offered as an expert report what was essentially a thank you letter from one

physician to another that never accused anyone of malpractice. 253 S.W.3d 204, 206, 211 (Tex.

2008) (noting that fact but, resolving the case solely on whether the court of appeals had

jurisdiction to hear interlocutory appeal from challenge to the curative report later filed); see also

Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 754, 760-61 (Tex.App.--Houston

[1st Dist.] 2012, no pet.) (pro se plaintiff who offered as his section 74.351 expert reports a series

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of letters from health care providers only describing his medical condition, but making no

allegation against health care defendants).

The Texas Supreme Court closed the loop on the issue of whether a report could be deemed

effectively “no report” in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). There, the court

agreed that while “a document can be considered an expert report despite its deficiencies, the Act

does not suggest that a document utterly devoid of substantive content will qualify as an expert

report.” Id. at 549. But to distinguish between what is effectively “no report” from a merely

deficient report, the court posited this test: “we hold that a document qualifies as an expert report

if it contains a statement of opinion by an individual with expertise indicating that the claim

asserted by the plaintiff against the defendant has merit.” Id. The court describes this as a lenient

test that serves two purposes: avoiding multiple interlocutory appeals and allowing plaintiffs a

fair opportunity to show that their claim is not frivolous. 1

The report at issue in Scoresby was no doubt deficient. A neurologist alleged that two

surgeons were negligent, yet said little more than they violated the standard of care (without stating

what the standard required or how it was not met). Id. at 551. The neurologist’s report did not

attach a curriculum vitae as required by the statute. Id. It only marginally addressed causation

with a conclusory statement that bleeding from the surgery at issue led to further hospitalization

and paralysis. Id. Nonetheless, the court found the report “easily” met its new standard for what

might qualify as a “report”, albeit a deficient one. Id. at 557. 2

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Here for instance, Thompson could have challenged the corrected report or reports after they were filed, and if that
challenge was denied, she could have pursued an interlocutory appeal of that decision.

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In her reply brief, Thompson directs us to the more recent case of Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012),
but in that case the court only reaffirmed that Scoresby defines the correct test, and the Loaisiga court concluded the
report before it met the Scoresby test such that the trial court could grant a thirty-day extension. Id. at 261-62.

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 Procedurally, the court of appeals in Scoresby had dismissed the interlocutory appeal from

a trial court’s order that allowed a thirty-day cure period to correct the deficiencies. The Texas

Supreme Court affirmed that outcome, reiterating that when a report is filed, found deficient, but

not so deficient that it could not be cured, the “defendant cannot seek review of this ruling or

appeal the court's concomitant refusal to dismiss the claim before the thirty-day period has

expired.” Id. at 549 (footnotes omitted). In my view, that is what we deal with here.

For additional context, I set out the relevant portions of the two expert reports at issue.

Dr. Cecil Rene Arredondo, under the “Medical Facts” section of his two-page report, states:

During her labor, Ms. Fong had an epidural catheter placed for labor analgesia to
control pain. Postpartum, the catheter was unable to be removed. A lumbar CT
scan on 10/23/17 revealed the distal end of the catheter curled at the L3 posterior
epidural space.
On 10/23/17 the consulting neurosurgeon (Dr. Hanbali) noted the CT scan showed
the catheter curled and was stuck under the lamina at L2 - L3. He also noted a
history of several attempts at removal by the anesthetist and perhaps other
providers.
Ms. Fong's back was operated on 10/25/17 for exploration and removal of the
foreign body. Partial L2 and L3 laminectomies were performed but the catheter
could not be completely removed.
Under a “Standard of Care Discussion, the report continues:
Without commenting on the obstetrical medicine, it is a breach of the standard of
care to not properly place or remove an epidural catheter either before or after labor.
In fact, I have seen many epidural placements, but I have never encountered the
loss of the tip of the catheter such as was done here.
Without the benefit of additional information from the hospital chart to include a
note from the person placing the catheter, it is difficult to ascertain whether the
catheter was placed correctly or removed correctly. Be that as it may, it could have
been placed too vigorously or at an angle or too deep causing the catheter to coil
beneath the lamina. Either explanation is indicative of substandard catheter
placement and technique.
The second report, authored by Dr. Sabri E. Malek, contains the same opinions, many

repeated verbatim. The primary difference between the two reports is that Dr. Malek additionally

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criticizes Dr. Hanbali for the timing of the procedure to try to remove the catheter. In his “Findings

and Medical Facts” section, Dr. Malek states:

During her labor, Ms. Fong had a continuous labor epidural catheter placed for
labor pain management. Postpartum, the anesthetist failed to remove the catheter
and multiple attempts made by other providers failed as well including a spinal
surgeon exposing the patient to a critically invasive attempt where the risk at my
professional opinion outweigh the possible benefit. A lumbar CT scan on 10/23/17
revealed the distal end of the catheter curled at the L3 posterior epidural space, that
is where the entry point was originally indicating an incorrect threading of the
catheter, also the curling mentioned in the radiologist reports of scans indicate a
faulty threading and inappropriate placement of the catheter tip which should be
few spinal segments above the entry site.
On 10/23/17 the consulting neurosurgeon (Dr. Hanbali) noted the CT scan showed
the catheter curled and was stuck under the lamina at L2-L3. He also noted, as I
mentioned above in this report, a history of several attempts at removal by the
anesthetist and perhaps other providers.
His “Analysis regarding Standard for Care” section tracks that of Dr. Arredondo:

I have no comment regarding the obstetric medicine, however; it is a breach of the
standard of care to not properly place or remove an epidural catheter either before
or after labor. In fact, I have performed and seen many epidural placements for
labor pain and general and regional·anesthesia for all types of procedures and
surgeries as well as for placement for just labor pain in particular and general pain
for a wide range of conditions, but I have ever encountered the loss of the tip of the
catheter such as was done in the case of Mrs. Fong.
Without the benefit of additional information from the hospital chart to include a
note from the person placing the catheter, it is difficult to ascertain whether the
catheter was placed correctly or removed correctly. Be that as it may, it could have
been place too vigorously or at an angle or too deep causing the catheter to coil
beneath the lamina. Either explanation is indicative of substandard catheter
placement and technique.
Thompson urges that these reports amount to no report because they do not implicate her,

do not set out the standard of care, and do not allege how she breached it. I agree the reports are

deficient in all those regards, but not so deficient that the gaps cannot be filled.

There is no doubt both letter reports were intended to be reports that accused the person

who placed or attempted to remove the catheter of malpractice. They are not merely a medical

record or chance correspondence used as a poor substitute for a compliant medical report. In the
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section headings, the authors attempted to address each of the core requirements of a compliant

medical report. See TEX.CIV.PRAC.& REM.CODE ANN. § 74.351(r)(6) (an “expert report” is

statutorily defined to mean one that “provides a fair summary of the expert’s opinions” regarding

the standard of care, how the health care provider failed to meet that standard, and the causal

relationship between that failure and the injury claimed.). Thompson focuses on the language in

the analysis section that does not identify a specific breach of the standard of care and alludes to

further investigation (“Without the benefit of additional information from the hospital chart to

include a note from the person placing the catheter, it is difficult to ascertain whether the catheter

was placed correctly or removed correctly”). I read that statement in light of the background fact

sections that note that after the placement and removal efforts, the distal end of the catheter is

“curled at the L3 posterior epidural space.” According to Dr. Malek, this placement reflects an

incorrect threading of the catheter, and that the tip should have been a “few spinal segments above

the entry site.” To be sure, the significance of these details deserves a better explanation, but they

offer a firm opinion that a mistake was made. Moreover, the fact that two practitioners, with a

combined 67 years in practice had not seen a tip placement in this position offers some indicia the

claim potentially has merit.

The other major thread to Thompson’s argument is that neither report indicates who was

responsible for the breach of the standard of care. The issue as I understand is that one CRNA

placed the catheter and perhaps the other was involved in the initial efforts to remove it. The

medical chart is not a part of our record, but presumably both Thompson and Robledo appear in

the chart as involved with one or both functions. Both expert reports indicate that from the existing

medical record, the improper position of the catheter occurred either at its original placement, or

at the time of the attempted removal, and additional records are required to flesh out that opinion.

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This situation is not appreciably different from the report in Scoresby which named two defendant

doctors, but which did not attribute any specific act to either, as both were somehow involved in

the allegedly botched surgery.

In sum, this report meets at least the minimal standard for what may be called a report

under section 74.351 as described in Scoresby. And because the trial court determined it

defective, but curable, we are without jurisdiction to hear this appeal. TEX.CIV.PRAC.&

REM.CODE ANN. at § 51.014(a)(9). Hence, I cannot join the majority’s merit disposition, even if

it is limited to a waiver argument.

JEFF ALLEY, Justice

September 29, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.

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