Opinion issued June 9, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00230-CV

JULIE BOSTON, MICHAEL BOSTON, CARY SIMS, AND JONI CRABB, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DAVID FRANKLIN BOSTON, JR., DECEASED, Appellants

V.

BAYLOR COLLEGE OF MEDICINE, KATHLEEN LISCUM, M.D., JAVIER VASQUEZ, M.D., AND ALLISON STENG-WILSON, M.D., Appellees

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2002-50763

MEMORANDUM OPINION

          Appellants, Julie Boston, Michael Boston, Cary Sims, and Joni Crabb, Individually and on Behalf of the Estate of David Franklin Boston, Jr., Deceased, appeal the trial court’s dismissal of their lawsuit against appellees, Baylor College of Medicine, Kathleen Liscum, M.D., Javier Vasquez, M.D., and Allison Steng-Wilson, M.D., for failure to file an expert report that conformed to the requirements of former article 4590i of Texas Revised Civil Statutes. We affirm.

Background

          David Franklin Boston, Jr. (the “Decedent”) was admitted to Ben Taub Hospital with acute abdominal pain and was diagnosed as having appendicitis and, after a CT scan, a four-centimeter aortic aneurysm. The Decedent was treated for approximately 10 days and was discharged and given an appointment for an appendectomy to be performed four weeks later. The Decedent died two weeks after his discharge, and an autopsy report listed the cause of death as peritonitis due to a ruptured appendix and ruptured abdominal aortic aneurysm.

          Appellants sued Baylor College of Medicine and 14 physicians for negligence resulting in the Decedent’s death. In an effort to comply with section 13.01(d) of article 4590i, appellants filed a medical expert report by David C. Folkers, M.D. Dr. Folkers stated his qualifications as a general surgeon and his familiarity with the standards of care in treating patients with appendicitis. He then stated:

At Ben Taub, Mr. Boston was admitted apparently to the Green Surgery Team. From the records it is difficult to say which physicians are primarily responsible for making medical and surgical recommendations for Mr. Boston during his admission. Some of the physicians were residents of the Baylor College of Medicine. From the records the following physicians appear to have had some role in diagnosing appendicitis and in the decision making process to discharge Mr. Boston without having performed an appendectomy:

                    Kathleen Liscum, M.D.;

                    Javier Vasquez, Jr., M.D.;

                    Allison Steng Wilson, M.D.;

                    Bharat Guthikonda, M.D.;

                    Alfred Watson, M.D.;

                    Francisco J. Arraiza, M.D.;

                    Jay Bhama, M.D.;

                    Chase Conner, M.D.;

                    Mai Pham, M.D.; and

                    Thang Le, M.D.

On 7/25/00, Mr. Boston had a CT of the abdomen, which among other things revealed a 4-cm. abdominal aorta aneurysm.

On 8/4/00, Mr. Boston was discharged with a plan to perform appendectomy in four weeks.

On 8/17/00, Mr. Boston died. Autopsy shows peritonitis due to ruptured appendicitis and abdominal aortic aneurysm with rupture.

In my opinion, the peritonitis aggravated the pre-existing 4-cm. aortic aneurysm and caused the rupture. The likelihood of the 4-cm. aneurysm spontaneously rupturing is extremely unlikely. The peritonitis caused by the ruptured appendix more likely than not resulted in the rupture of the aneurysm.

I am familiar with the standard of care for a surgeon deciding whether to perform an appendectomy on a patient like Mr. Boston. With symptoms of acute abdominal pain that Mr. Boston had on 7/25/00, and the finding of an abdominal aortic aneurysm, surgery is immediately indicated. The standard of care was to perform surgery to remove the appendix and clear or drain any area of purulence from the ruptured appendix. This is the standard of care so as to avoid serious infection and possible death from contaminating the peritoneum from the ruptured appendix. The standard of care is not to wait a four-week period of time before performing the appendectomy. The Defendants violated the standard of care by failing to timely perform the appendectomy.

Had Mr. Boston had the appendectomy on or before 8/4/00, more likely than not his aneurysm would not have ruptured and taken his life.

          Almost 10 months after Dr. Folkers’s expert report was filed, defendants filed a motion to dismiss, asserting that the report was insufficient as a matter of law because it failed to address the standard of care, the deviation from the standard, and the causal link to the Decedent’s damages for each defendant. They argued that the report was merely a general claim of negligence. The trial court granted the motion and appellants filed this appeal.

Standard of Review

           We review a trial court's order dismissing a claim for failure to comply with the expert-report requirements in section 13.01(d) of article 4590i for abuse of discretion. See Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). Discussion

          Appellants bring a single issue on appeal, contending that the trial court abused its discretion in dismissing their lawsuit against appellees. Under this single issue, appellants make five separate arguments. We consider only the first as dispositive.

          Appellants complain that the trial court erred when it dismissed appellants’ claims against appellees because the expert report was a good faith attempt to satisfy the article 4590i requirements for all appellees. When considering a motion to dismiss under section 13.01(l) for failure to comply with section 13.01(d), “[t]he issue for the trial court is whether ‘the report’ represents a good-faith effort to comply with the statutory definition of an expert report.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Palacios, 46 S.W.3d at 878). To constitute a “good-faith effort,” the report must, for each defendant, provide “a fair summary of the expert’s opinions about the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury.” Palacios, 46 S.W.3d at 878. The report must provide enough information to fulfill two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question and (2) to provide a basis for the trial court to conclude that the claims have merit. Id. at 879. The only information relevant to the inquiry is contained within the four corners of the document. Id. at 878. The report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on each of the three elements that the Act identifies: standard of care, breach, and causal relationship. Id.

          In the instant case, the expert report states a single standard of care and a single breach against the three individual appellees as well as seven additional physicians who are not parties to this appeal. In the report, Dr. Folkers admits that he cannot determine which physicians were primarily responsible for making medical and surgical recommendations for the Decedent and recognizes that some of the physicians were residents of Baylor College of Medicine. Yet he does not specify which of the physicians are residents or their year of residency. In addition, he does not specify whether the 10 named physicians are all surgeons or whether some have other specialties. He states that the defendant physicians failed to meet the standard of care “by failing to timely perform the appendectomy,” even though some of the named physicians merely “had some role” in diagnosing the Decedent’s appendicitis. Furthermore, Dr. Folkers cannot say whether they were “responsible for making medical and surgical recommendations.”

          We hold that the information within the four corners of Dr. Folkers’s report does not inform the appellees of the specific conduct the appellants have called into question, nor does it provide the trial court a basis for determining that appellants’ claims have merit. Therefore, the report was not a good faith attempt to satisfy article 4590i, and the trial court did not abuse its discretion in granting the defendants’ motion to dismiss.

Conclusion

          Having determined that the trial court’s dismissal of appellants’ lawsuit was not an abuse of discretion, we need not address appellants’ argument that article 4590i does not mandate different standards of care or different facts as to each defendant. In addition, because appellants’ claims against Baylor College of Medicine were based on vicarious liability, we need not address appellants’ sub-issues with regard to Baylor.

          We affirm the trial court’s order of dismissal.

                                                             Sam Nuchia

                                                             Justice

Panel consists of Justices Nuchia, Keyes, and Bland.