Opinion =
issued=20
January 26, 2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-04-00918-CV
SYLVIA =
GRAY,=20
Appellant
V.
CHCA =
BAYSHORE L.P.=20
d/b/a BAYSHORE MEDICAL CENTER and IRA H. RAPP, M.D.,=20
Appellees
On =
Appeal from the=20
281st District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2003-65141
O P I =
N I O=20
N
<=
/SPAN>This=20
appeal arises from a medical malpractice claim brought by =
appellant,=20
Sylvia Gray, against appellees, CHCA Bayshore L.P. d/b/a Bayshore =
Medical=20
Center (Bayshore) and Ira H. Rapp, M.D. The trial court dismissed =
Gray=E2=80=99s=20
suit with prejudice after concluding that the expert report she =
filed=20
failed to satisfy the requirements set forth in section 74.351 of =
the=20
Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.351 (Vernon Supp. 2005). In her sole issue =
on appeal,=20
Gray argues that the trial court erred in finding that her expert =
report=20
did not comply with the statute.
<=
/SPAN>We=20
affirm.
BACKGROUND
<=
/SPAN>In=20
2001, Gray was admitted to Bayshore for surgical treatment of =
chronic=20
sinusitis and nasal septal deformity. For the surgery, Gray was=20
administered a general anesthetic by Dr. Rapp. Upon regaining=20
consciousness after the operation, Gray became aware of severe =
pain in her=20
left knee. Subsequent examination by an orthopedist and a =
neurologist=20
revealed a dislocation of the knee=E2=80=99s patella. Gray, age =
39, had no prior=20
history of knee injuries.
<=
/SPAN>In=20
November 2003, Gray brought suit against Bayshore, Dr. Rapp, and =
Phillip=20
A. Matorin, M.D., seeking to recover damages resulting from the =
injury to=20
her knee. ![3DFootnote](3D"")
Gray=E2=80=99s suit alleged that the =
injury was caused by=20
the flexing of her left leg during surgery and that the injury =
could have=20
been prevented had Dr. Rapp and the Bayshore=E2=80=99s nursing =
staff properly=20
monitored Gray=E2=80=99s extremities during the operation. In =
March 2004, Gray=20
filed the report of her medical expert, Dr. Richard F. Toussaint, =
M.D., as=20
required by section 74.351 of the Texas Civil Practice and =
Remedies Code.=20
See id. Both Bayshore and Dr. Rapp moved to dismiss =
Gray=E2=80=99s suit,=20
arguing that Dr. Toussaint=E2=80=99s expert report failed to =
comply with the=20
requirements of section 74.351. See id. The trial court =
then=20
granted Gray a 30-day extension to cure any deficiencies in her =
expert=20
report. See id. =C2=A7 74.351(c).
<=
/SPAN>Gray=20
filed her amended expert report in June 2004. The report, again by =
Dr.=20
Toussaint, reads in pertinent part:
Ms. Gray was administered a general =
anesthetic for=20
the sinus surgery by Ira H. Rapp, M.D. During the surgery, Ms. =
Gray=E2=80=99s=20
knees and arms had become flexed, and when she awoke from the =
anesthetic,=20
she noted severe pain upon attempting to move from a bedpan. She =
was noted=20
to have a negative history of knee injury. Ms. Gray was seen by =
John H.=20
Ownby, M.D., neurologist, and Ronald B. Heisey, M.D., orthopedist, =
who=20
upon subsequent workup of Ms. Gray=E2=80=99s knee pain determined =
that her left=20
patella had become dislocated.
Based on the forgoing and my education, =
training,=20
experience, and reasonable medical probability, it is my opinion =
that Dr.=20
Ira H. Rapp, M.D., Dr. Phillip A. Matorin, M.D., and the nursing =
staff of=20
Bayshore Medical Center breached the standard of care for failing =
to=20
properly monitor, treat, and prevent the resultant left knee =
injury and=20
dislocation of the left patella.
Based on the Texas definitions, Dr. Ira =
H. Rapp,=20
M.D., Dr. Phillip A. Matorin, M.D., and the Bayshore Medical =
Center=20
perioperative nursing staff were negligent by failing to properly =
monitor,=20
treat, and prevent Ms. Gray=E2=80=99s left patella dislocation. =
The negligence was=20
in the following:
1. Dr. Ira H. Rapp, M.D. failed to =
monitor the=20
positioning of Ms. Gray=E2=80=99s left knee to prevent the =
subsequent dislocation=20
of the patella while under a general anesthetic. The standard of =
care in=20
this circumstance would be for a physician to monitor the =
positioning of=20
the patient=E2=80=99s extremities to prevent injury during surgery =
and post=20
operatively.
2. The Bayshore Medical Center =
perioperative=20
nursing staff failed to monitor the positioning of Ms. =
Gray=E2=80=99s left knee to=20
prevent the subsequent dislocation of the patella while in the =
operating=20
room. The standard of care in this circumstance would be for the=20
perioperative nursing staff to monitor the positioning of the =
patient=E2=80=99s=20
extremities to prevent injury during surgery and post operatively. =
In the above instance, had Dr. Ira H. =
Rapp, M.D.,=20
Dr. Phillip A. Matorin, M.D., and the Bayshore Medical Center=20
perioperative nursing staff monitored and detected the flexing of =
Ms.=20
Gray=E2=80=99s arms and legs during general anesthesia in a timely =
fashion, then=20
in reasonable medical probability, the pain and suffering =
experienced by=20
Ms. Gray from the dislocated left patella would not have occurred =
along=20
with the resultant necessary treatments. The failure to monitor, =
detect,=20
diagnose, and timely treat a malpositioned left knee during a =
general=20
anesthetic was negligence and proximately caused the dislocated =
left=20
patella and subsequent pain and suffering experienced by Ms. Gray =
on=20
December 5, 2001.
This opinion is based on the available =
medical=20
records that you have provided for my review. I understand that =
negligence=20
is the failure to use ordinary care, failure to do what a =
physician, or=20
operating room nurse, of ordinary prudence would have done under =
the same=20
or similar circumstances. I also understand that proximate cause =
is a=20
cause which in a natural and continuous sequence produces an =
event, and=20
without which, such an event would not have occurred. I also =
understand=20
that in order to be a proximate cause, an act or omission =
complained of=20
must be such that a person using ordinary care would have foreseen =
that=20
the event, or some similar event, might reasonably result =
therefrom.=20
Based on these definitions, and on a =
reasonable=20
degree of medical probability, Dr. Ira H. Rapp, M.D., Dr. Phillip =
A.=20
Matorin, M.D., and the Bayshore Medical Center perioperative =
nursinng=20
staff failed to meet the standard of care when they neglected to =
monitor=20
and detect a malpositioned left knee resulting in a dislocated =
left=20
patella on December 5, 2001. The failure to monitor and detect the =
malpositioned left knee resulted in a dislocated left patella, =
severe pain=20
and suffering, and subsequent medical treatment. =
<=
/SPAN>After=20
receiving Gray=E2=80=99s amended expert report, Bayshore and Dr. =
Rapp again moved=20
to dismiss the suit, arguing that the report still did not comply =
with=20
section 74.351. After a hearing, appellees=E2=80=99 supplemental =
motions to=20
dismiss were granted, and Gray timely appealed. DISCUSSION
<=
/SPAN>In=20
her sole issue on appeal, Gray contends that the trial court erred =
in its=20
determination that Dr. Toussaint=E2=80=99s report did not comply =
with section=20
74.351 of the Civil Practice and Remedies Code. Specifically, she =
argues=20
that Dr. Toussaint=E2=80=99s report constituted an objective good =
faith effort to=20
comply with the requirements of section 74.351, and thus contends =
that the=20
trial court acted improperly in dismissing her suit. See =
id. =C2=A7=20
74.351(l) (stating that a court shall grant a challenge to an =
expert=20
report =E2=80=9Conly if it appears to the court, after hearing, =
that the report=20
does not represent an objective good faith effort=E2=80=9D at =
compliance).=20
<=
/SPAN>Standard=20
of Review
<=
/SPAN>We=20
review all section 74.351 rulings under an abuse of discretion =
standard.=20
Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 =
(Tex.=20
2001). A trial court abuses its discretion if it acts in an =
arbitrary or=20
unreasonable manner without reference to guiding rules or =
principles.=20
See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). =
When=20
reviewing matters committed to the trial court=E2=80=99s =
discretion, we may not=20
substitute our own judgment for that of the trial court. Walker =
v.=20
Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court does =
not abuse=20
its discretion merely because it decides a discretionary matter=20
differently than an appellate court would in a similar =
circumstance.=20
See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, =
241=E2=80=9342=20
(Tex. 1985).
<=
/SPAN>Section 74.351 of the Texas Civil =
Practice and=20
Remedies Code
<=
/SPAN>Pursuant=20
to section 74.351, medical malpractice plaintiffs must provide =
each=20
defendant physician and health care provider with an expert report =
or=20
voluntarily nonsuit the action. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.351. If a claimant timely furnishes an =
expert report, a=20
defendant may file a motion challenging the report=E2=80=99s =
adequacy. See=20
id. at =C2=A7 74.351(a). The trial court shall grant the =
motion only if it=20
appears, after hearing, that the report does not represent a good =
faith=20
effort to comply with the statutory definition of an expert =
report. See=20
id. =C2=A7 74.351(l). The statute defines an expert report as =
a written=20
report by an expert that provides, as to each defendant, a fair =
summary of=20
the expert=E2=80=99s opinions as of the date of the report =
regarding: (1)=20
applicable standards of care; (2) the manner in which the care =
provided=20
failed to meet the standards; and (3) the causal relationship =
between that=20
failure and the injury, harm, or damages claimed. See id. =
=C2=A7=20
74.351(r)(6); Palacios, 46 S.W.3d at 878=E2=80=9379. =
<=
/SPAN>Although=20
the report need not marshal all the plaintiff=E2=80=99s proof, it =
must include the=20
expert=E2=80=99s opinions on the three statutory =
elements=E2=80=93standard of care,=20
breach, and causation. See Palacios, 46 S.W.3d at =
878=E2=80=9379. In=20
detailing these elements, the report must provide enough =
information to=20
fulfill two purposes if it is to constitute a good faith effort. =
First,=20
the report must inform the defendant of the specific conduct the =
plaintiff=20
has called into question. Id. at 879. Second, the report =
must=20
provide a basis for the trial court to conclude that the claims =
have=20
merit. Id. A report that merely states the expert=E2=80=99s =
conclusions as=20
to the standard of care, breach, and causation does not fulfill =
these two=20
purposes. Id. The expert must explain the basis for his =
statements=20
and must link his conclusions to the facts. Bowie Mem=E2=80=99l =
Hosp. v.=20
Wright, 79 S.W.3d 48, 52 (Tex. 2002). Furthermore, in =
assessing the=20
report=E2=80=99s sufficiency, the trial court may not draw any =
inferences, and=20
must instead rely exclusively on the information contained within =
the=20
report=E2=80=99s four corners. See Palacios, 46 S.W.3d at =
879.=20
<=
/SPAN>Dr. Toussaint=E2=80=99s =
Report=20
<=
/SPAN>Dr.=20
Toussaint=E2=80=99s amended report essentially states that, as to =
both Bayshore=20
and Dr. Rapp: (1) the applicable standard of care required =
monitoring the=20
positioning of Gray=E2=80=99s extremities; (2) appellees failed to =
monitor the=20
positioning of Gray=E2=80=99s left knee; and (3) had appellees =
monitored the=20
knee=E2=80=99s position, Gray, within reasonable medical =
probability, would not=20
have suffered a dislocated patella. Although the report, at first =
glance,=20
thus appears to articulate the three statutorily required elements =
of an=20
expert report, we are compelled, under an abuse of discretion =
standard, to=20
conclude that the trial court did not act unreasonably in granting =
appellees=E2=80=99 motions to dismiss.
<=
/SPAN>The=20
supreme court held in Palacios that medical malpractice =
plaintiffs=20
must provide an expert report detailing standard of care, breach, =
and=20
causation as to each defendant. Id. Here, the report =
states,=20
without explanation, that a single standard of care applied to =
both=20
Bayshore and Dr. Rapp. While it is possible that an identical =
standard of=20
care regarding limb monitoring during and after surgery attaches =
to an=20
anesthesiologist (Dr. Rapp) and a perioperative nursing staff =
(Bayshore),=20
such generic statements, without more, can reasonably be deemed=20
conclusory. Conclusory statements regarding standard of care, =
breach, or=20
causation, do not constitute a good faith effort to comply with =
section=20
74.351 in that they fail to adequately inform each defendant of =
the=20
specific conduct called into question by the plaintiff=E2=80=99s =
claims.=20
See id.
<=
/SPAN>Similar=20
weaknesses undermine Dr. Toussaint=E2=80=99s report in regard to =
how appellees=20
breached the applicable standard of care. Whether a defendant =
breached the=20
standard of care due a patient cannot be determined without =
=E2=80=9Cspecific=20
information about what the defendant should have done =
differently.=E2=80=9D See=20
id. at 880. Here, Dr. Toussaint=E2=80=99s report contains only =
a general=20
statement that appellees failed to monitor Gray=E2=80=99s left =
knee properly. The=20
report provides no specific information concerning what actions =
appellees=20
should have taken in the event they observed Gray=E2=80=99s knee =
flexing. Indeed,=20
a literal reading of the report=E2=80=99s most direct statements =
concerning breach=20
leads to the conclusion that simply monitoring Gray=E2=80=99s =
extremities, and=20
taking no corrective action, would have prevented her injury. In =
view of=20
such general and conclusory statements concerning breach, we =
cannot=20
conclude that the trial court abused its discretion in dismissing =
Gray=E2=80=99s=20
suit.
See id. at 879. =
<=
/SPAN>Conclusory=20
statements also plague the report=E2=80=99s efforts to satisfy the =
statutory=20
element of causation. Specifically, Dr. Toussaint=E2=80=99s report =
does not state=20
with any specificity how appellees departure from the stated =
standard of=20
care caused Gray=E2=80=99s knee injury. Instead, the report =
provides only the=20
conclusory statement that the failure to monitor caused =
Gray=E2=80=99s injury. By=20
not fleshing out how appellees=E2=80=99 failure to monitor =
Gray=E2=80=99s extremities=20
caused her injury, the report does not convincingly tie the =
alleged=20
departure from the standard of care to specific facts of the case. =
Such a=20
failure has been found to be a sufficient reason for concluding =
that an=20
expert report is statutorily inadequate. See Bowie =
Mem=E2=80=99l=20
Hosp., 79 S.W.3d at 53.
<=
/SPAN>We=20
further note that the report appears to be inconsistent with =
respect to=20
the relationship among the standard of care, breach, and the cause =
of=20
Gray=E2=80=99s injury. Specific language in the report indicates =
that the=20
applicable standard of care breached by the defendants was =
=E2=80=9Cmonitor[ing]=20
the positioning of the patient=E2=80=99s extremities.=E2=80=9D The =
report then appears to=20
depart from this limited standard of care and breach, stating, =
=E2=80=9CThe=20
failure to monitor, detect, diagnose, and timely treat a=20
malpositioned left knee during general anesthetic was negligence, =
and=20
proximately caused the dislocated left patella.=E2=80=9D (Emphasis =
added.) The=20
report thus fails to put the appellees on notice as to who had =
what=20
responsibility and how that person or persons departed from the =
standard=20
of ordinary medical care of a patient under anaesthesia in failing =
to do=20
some specific act required by a person in that position, causing =
damage=20
that would not have happened had ordinary professional care been =
used.=20
Considering that the trial court is limited to the four corners of =
the=20
report in making its determination, one could reasonably conclude =
that the=20
conclusory language in the report, together with the inconsistency =
as to=20
appellant=E2=80=99s complaint, convinced the trial court that the =
report failed to=20
satisfactorily inform each appellee of the specific conduct being=20
challenged. Palacios, 46 S.W.3d at 878=E2=80=9379. =
<=
/SPAN>In=20
view of the conclusory, and at times inconsistent, statements =
within Dr.=20
Toussaint=E2=80=99s expert report, we cannot conclude that the =
trial court abused=20
its discretion in granting appellees=E2=80=99 motion for =
dismissal. We thus=20
overrule Gray=E2=80=99s sole issue on appeal.
CONCLUSIONWe affirm the trial =
court=E2=80=99s=20
order of dismissal.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Evelyn=20
V. Keyes
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Keyes, and=20
=
Hanks.
|