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Affirmed and Memorandum Opinion filed July 26,=20 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-01102-CV

____________

 

DAMIAN=20 CHAUPIN, M.D., = Appellant

 

V.

 

MELISSA=20 SCHROEDER, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF ZANE = SCHROEDER,=20 DECEASED, ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF ZANE = SCHROEDER,=20 DECEASED, AND AS ADMINISTRATOR OF THE ESTATE OF ZANE SCHROEDER,=20 DECEASED, = Appellee

 

 

On Appeal from Probate Court No. 2

Harris County, = Texas

Trial Court Cause = No. 347,996-402

 

 

M E M O R=20 A N D U M   O P I N I O N

This is a=20 health care liability lawsuit governed by chapter 74 of the Texas = Civil=20 Practice & Remedies Code.  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 74.001-.507 (Vernon 2005 & Supp. 2006).  Damian Chaupin,=20 appellant and a defendant below, brings this interlocutory appeal = from the=20 trial court=3Ds denial=20 of his motion to dismiss, which was based on the alleged = inadequacy of the=20 preliminary expert report prepared by Robert Schoene and filed by=20 appellee/plaintiff, Melissa Schroeder, individually as wrongful = death=20 beneficiary of Zane Schroeder, deceased, on behalf of all wrongful = death=20 beneficiaries of Zane Schroeder, deceased, and as administrator of = the=20 estate of Zane Schroeder, deceased.  See id. = ' = 51.014=20 (Vernon Supp. 2006) (authorizing interlocutory appeal).  On = appeal,=20 Chaupin contends that (1) Schoene was not qualified to offer the = opinions=20 in the report, and (2) the report was inadequate regarding the = standard of=20 care, the alleged breach of the standard, and the causal = connection=20 between the alleged breach and the alleged damages.  We=20 affirm.

I. =20 Course of Events

On March=20 7, 2004, Zane Schroeder was admitted to Houston Northwest Medical = Center=20 complaining of severe back and abdominal pain and abdominal = tension.[1] =20 Chaupin examined him and concluded that he had a severe ileus, or=20 intestinal obstruction.[2] =20 Chaupin ordered a nasogastric tube placed and ordered Mr.=20 Schroeder=3Ds oxygen=20 levels monitored with a pulse oximeter.  He also instructed = that he=20 was to be notified if the levels fell below 94 percent.  = During the=20 night, Mr. Schroeder=3Ds=20 pulmonary rate was uneven and rapid.  He was placed on an = oxygen=20 mask, but even with supplemental oxygen, his oxygen levels = fluctuated=20 between 90-95 percent.  An X-ray taken the next morning = showed his=20 lungs to be hypoinflated, apparently due to an inability to take a = full=20 breath.

Chaupin=20 again examined Mr. Schroeder at 9:30 a.m., indicating in a = progress note=20 that he had oxygen levels at 93-96 percent.  He further = indicated=20 that he would re-examine the patient after a CT scan was = performed. =20 Dr. Bhavesh Bhatt, a pulmonologist, examined Mr. Schroeder at = 11:30,=20 noting oxygen levels of 90-92 percent.  He recommended = transfer to=20 the intensive care unit and ordered a stat (i.e., = immediate)=20 arterial blood gas test.  Subsequently, Dr. Jefy Mathew was = called to=20 evaluate Mr. Schroeder for respiratory failure.  When the = arterial=20 blood gas results arrived, Matthew decided to intubate due to = Aimpending=20 respiratory failure.@

After two=20 failed intubation attempts, the second of which apparently entered = the=20 esophagus, Mathew ordered a stat surgery and anesthesia = consult. =20 After a third failed intubation, cardiopulmonary resuscitation had = to be=20 performed.  At that point, Dr. Bethea, an anesthesiologist = and=20 emergency room physician, arrived and attempted one last = intubation.[3] =20 After this attempt also failed, Chaupin, who had also arrived, = performed a=20 cricothyroidotomy (an incision into the airway to assist = breathing), and=20 CPR continued.  Mr. Schroeder was pronounced dead at 1:50 = p.m. =20 An autopsy identified the cause of death as an air embolism and = stated=20 that the most likely source was the wound created by the=20 cricothyroidotomy.

II. =20 Schoene=3Ds=20 Report

Melissa=20 Schroeder (Aplaintiff/appellee@) filed=20 suit alleging negligence against Chaupin, Mathew, Bhatt, and = Houston=20 Northwest, among others.  Pursuant to chapter 74 of the Texas = Civil=20 Practice and Remedies Code, she served the report of Schoene, a=20 pulmonologist and internist, on each = defendant.

In his=20 report, Schoene listed extensive qualifications, including current = and=20 former teaching and practicing positions, as well as numerous = articles and=20 memberships, primarily focusing on pulmonary medicine.  He = stated=20 that he has been practicing medicine in an area relevant to this = case and=20 has trained and consulted with health care providers licensed in = the same=20 fields as doctors Mathew, Bhatt, and Chaupin.  He further = stated that=20 by virtue of his education, training, experience, and board=20 certifications, he is familiar with the accepted standards of care = for the=20 treatment at issue in this case.  Schoene=3Ds=20 curriculum vitae supports these assertions with the details of = numerous=20 teaching and practicing positions, extensive training, and = certifications=20 in internal medicine and pulmonary disease.

Among the=20 criticisms Schoene made in his report was that Chaupin had the = opportunity=20 to properly evaluate Mr. Schroeder and Ainstitute=20 routine and accepted medical interventions that would have, in = reasonable=20 medical probability, prevented his death.@  He=20 opined that pulse oximeters are often inaccurate and unreliable = because=20 they measure only oxygenation, not ventilation, and they cannot = detect=20 changes in oxygen tension until levels  fall low enough to = cause a=20 change in the saturation of the hemoglobin.  He states that = by the=20 time a blood gas was finally drawn on Mr. Schroeder, his pulse = oximeter=20 reading showed an oxygen level of 90.4 percent, when his actual = oxygen=20 level at the time was only 67.4 percent, well below the normal = level of=20 80-100 percent.  Further, the amount of carbon dioxide in the = blood=20 was elevated, and the pH was markedly = acidotic.

Based on=20 these assessments, Schoene opined that under the circumstances, = Chaupin=20 Afell below=20 the standard of care by relying on the inaccuracy of the pulse = oximeter=20 readings and not obtaining an arterial blood gas.@  Had=20 a blood gas been drawn earlier, according to Schoene, the = Atrue=20 nature of [Mr. Schroeder=3Ds] poor=20 pulmonary function and deteriorating status would have been = recognized and=20 he could have received more aggressive care for his worsening = ileus to=20 improve his respiratory status or a safe, well planned intubation = to=20 ensure proper oxygenation.@  He=20 further states that Chaupin violated the standard of care by = inaccurately=20 assessing Mr. Schroeder=3Ds=20 condition, suggesting Chaupin failed to correctly read  and = react to=20 vital signs and physical symptoms.  This failure to = accurately=20 assess, in turn led to Chaupin=3Ds failure=20 to (1) recognize that the attempts to decompress the ileus were = not=20 working and (2) immediately institute other medical procedures, = such as a=20 well-planned  intubation, that would have improved Mr.=20 Schroeder=3Ds=20 deteriorating condition before an emergency intubation became=20 necessary.

Further,=20 regarding causation, Schoene stated as follows:

 

In reasonable = medical=20 probability, by allowing Mr. Schroeder to sit around for 18 hours = before=20 an arterial blood gas was obtained, Dr. Chaupin allowed Mr. = Schroeder to=20 deteriorate to a point where the intubation became necessary. =  In=20 addition, Dr. Chaupin=3Ds failure to = decompress Mr.=20 Schroeder=3Ds abdomen caused = Mr.=20 Schroeder to suffer intense, unrelieved abdominal pain, with = expansion of=20 his intestines and stomach to the point where, in reasonable = medical=20 probability, it impeded his ability to achieve adequate = oxygenation and=20 ventilation by preventing his diaphragms from moving up and down = with his=20 breathing.  This caused his O2 saturation to drop, and, in = reasonable=20 medical probability, resulted in respiratory distress and the = failed=20 intubation attempts which led, in the natural sequence of events, = to Mr.=20 Schroeder=3Ds death.

. . . .

In this=20 case, it is especially distressing that not only did Mr. Schroeder = not=20 have to die, but his last 18 hours were spent in excruciating = pain. =20 Dr. Chaupin, Dr. Bhatt, Dr. Matthew [sic] and the Houston = Northwest=20 Medical Center, each had numerous opportunities to help Mr. = Schroeder and=20 save his life.  Instead, no one acted with any urgency during = his=20 hospitalization.  While his pain grew, his abdomen expanded = and=20 became more tense and swollen, his ileus worsened, and his = oxygenation=20 never reached normal levels.  As a result, Mr. Schroeder died = needlessly.

As stated,=20 the trial court denied Chaupin=3Ds motion=20 to dismiss based on Schoene=3Ds=20 qualifications and the adequacy of the report.

III. =20 Standards of Review

We utilize=20 an abuse of discretion standard in reviewing a trial = court=3Ds decision=20 on a motion to dismiss a case under section 74.351 of the Civil = Practice=20 and Remedies Code. Estate of Regis ex rel. McWashington v. = Harris=20 County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.CHouston=20 [14th Dist.] 2006, no pet.); see also Am. Transitional Care = Ctrs. of=20 Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) = (decided under=20 prior law).  Under section 74.351(l), a trial court should = grant a=20 motion challenging the adequacy of an expert report if the report = does not=20 represent an objective good faith effort to comply with the = definition of=20 an expert report in subsection (r)(6).  Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 74.351(l).  Subsection (r)(6) defines Aexpert=20 report@ = as a=20 written report providing a fair summary of the expert=3Ds opinions=20 regarding the standard of care, the manner in which the care = rendered by=20 the health care provider failed to meet the standard of care, and = the=20 causal relationship between that failure and the harm = claimed. =20 Id. ' = 74.351(r)(6).  Additionally, in order to provide an = acceptable=20 report, the expert must establish that he or she is qualified to = do=20 so.  Id. ' = 74.351(r)(5)(A).  To qualify as an expert on the issue of = whether a=20 physician departed from standards of medical care, the report and=20 curriculum vitae must demonstrate that he or she is a physician = who: =20 (1) is practicing medicine at the time such testimony is given or = was=20 practicing medicine at the time the claim arose; (2) has knowledge = of=20 accepted standards of medical care for the diagnosis, cure, or = treatment=20 of the illness, injury, or condition involved in the claim; and = (3) is=20 qualified on the basis of training or experience to offer an = expert=20 opinion regarding those accepted standards of medical care. =20 Id. = ' = 74.401(a).  In determining whether a witness is qualified on = the=20 basis of training or experience, the court must consider whether = the=20 witness: (1) is board certified or has other substantial training = or=20 experience in an area or medical practice relevant to the claim; = and (2)=20 is actively participating in rendering medical care relevant to = the=20 claim.  Id. ' = 74.401(c).

Ultimately,=20 to constitute a good faith effort, an expert=3Ds medical=20 liability report must establish the expert=3Ds=20 qualifications, the applicable standard of care, how that standard = was=20 breached by the particular actions of the defendant, and how that = breach=20 caused the damages claimed by the plaintiff.  See, e.g.,=20 Palacios, 46 S.W.3d at 878-79.  The report must do more = than=20 merely state the expert=3Ds=20 conclusions; it must be sufficiently explicit to: (1) inform the = defendant=20 of the specific conduct that is being called into question; and = (2)=20 provide a basis for the trial court to conclude that the=20 plaintiff=3Ds claims=20 have merit.  Id. at 879.

IV. =20 Schoene=3Ds=20 Qualifications

In his=20 first issue, Chaupin contends that Schoene was not qualified to = offer the=20 opinions contained in his report.  Specifically, Chaupin = asserts that=20 Schoene, a pulmonologist and internist, has demonstrated no = expertise=20 qualifying him to assess the conduct of Chaupin, a general = surgeon,=20 regarding treatment of a possible ileus with abdominal distension = and=20 pain.

Chaupin is=20 correct in noting that not every physician automatically qualifies = as an=20 expert in every area of medicine.  See Broders v. = Heise, 924=20 S.W.2d 148, 152 (Tex. 1996).  However, it is equally true = that to be=20 qualified as an expert in a particular case, a physician need not = be a=20 practitioner in the same specialty as the defendant.  See = id.=20 at 153; see also Blan v. Ali, 7 S.W.3d 741, 745 (Tex.=20 App.CHouston=20 [14th Dist.] 1999, no pet.).  Instead, the test is whether = the=20 offering party has established that the expert has knowledge, = skill,=20 experience, training, or education regarding the specific issue = before the=20 court that would qualify the expert to give an opinion on that = particular=20 subject.  Roberts v. Williamson, 111 S.W.3d 113, 121 = (Tex.=20 2003).  Specifically for preliminary expert reports under = chapter 74,=20 the report itself, together with the attached CV, must demonstrate = that=20 the physician has knowledge of accepted standards of medical care = for the=20 diagnosis, cure, or treatment of the illness, injury, or condition = involved in the claim and is qualified on the basis of training or = experience to offer an expert opinion regarding those accepted=20 standards.  See Tex.=20 Civ. Prac. & Rem. Code Ann. ' = 74.401(a).  If a particular subject is substantially = developed in=20 more than one medical field, a qualified physician in any of those = fields=20 may testify.  Broders, 924 S.W.2d at 152; Blan, = 7=20 S.W.3d at 745-46.  Furthermore, if the subject is common to = and=20 equally recognized and developed in all fields of practice, any = physician=20 familiar with the subject may testify as to the standard of = care. =20 E.g., Blan, 7 S.W.3d at = 745-46.

Chaupin=20 contends that the illness or condition at issue in this case is an = ileus.[4] =20 He states that surgeons treat ileus and pulmonologists do not; = thus,=20 according to Chaupin, Schoene cannot be qualified as an expert = regarding=20 Chaupin=3Ds=20 treatment of Mr. Schroeder=3Ds=20 ileus.  Schoene=3Ds report,=20 however, focuses on Chaupin=3Ds reliance=20 on a pulse oximeter to measure Mr. Schroeder=3Ds=20 oxygenation and his failure to order a more reliable arterial = blood gas=20 test.  He further criticizes Chaupin=3Ds failure=20 to re-evaluate Mr. Schroeder after a CT scan was performed and his = failure=20 to accurately assess Mr. Schroeder=3Ds vital=20 signs.  Schoene mentions the ileus both in the medical = history=20 section of the report and the causation section in the context of = its=20 being the cause of Mr. Schroeder=3Ds=20 respiratory distress.[5] =20 According to Schoene, although the ileus caused the onset of the=20 respiratory problems, Chaupin=3Ds failure=20 to utilize the proper blood gas test and failure to properly = evaluate and=20 assess the patient led to the emergency failed attempts to = intubate, which=20 led ultimately to Mr. Schroeder=3Ds=20 death.

Schoene=3Ds report=20 and CV adequately demonstrate that he poses sufficient expertise = regarding=20 the use of blood gas tests and the evaluation and assessment of = patients=20 undergoing pulmonary distress to opine regarding = Chaupin=3Ds conduct=20 in these matters.  In his report, Schoene listed numerous = teaching=20 and practicing positions, as well as articles and memberships, = primarily=20 focusing on internal and pulmonary medicine.  He stated that = he has=20 been practicing medicine in an area relevant to this case and has = trained=20 and consulted with health care providers licensed in the same = field as=20 Chaupin.  He further stated that by virtue of his education,=20 training, experience, and board certifications, he is familiar = with the=20 accepted standards of care for the treatment at issue in this = case. =20 Schoene=3Ds CV=20 generally supports these assertions.

In Blan=20 v. Ali, an expert opined in his report that the standard of = care he=20 described would apply to any physician treating a patient = suffering from a=20 stroke.  7 S.W.3d at 746.  Based on this assertion and = the=20 expert=3Ds=20 demonstrated training and experience in the treatment of strokes, = we held=20 that he was qualified to opine on the care provided to a stroke = victim by=20 a cardiologist and an emergency room physician.  Id. = at=20 747.  Schoene made similar statements in his report regarding = the use=20 of blood gas tests and the evaluation and assessment of Mr.=20 Schroeder=3Ds=20 condition. Chaupin, however, attempts to distinguish Blan = by=20 arguing that because the expert in that case was a neurologist, he = had=20 clear expertise on neurological conditions such as strokes, = whereas=20 Schoene does not have such obvious expertise regarding the = treatment of=20 ileus.  But again, it is Chaupin=3Ds=20 treatment of Mr. Schroeder=3Ds=20 pulmonary distress, not the treatment of the ileus, that is the = focus of=20 Schoene=3Ds=20 criticisms.  His stated qualifications support his expertise = in=20 making those statements, and Blan is closely analogous to = the=20 present case.

Similarly,=20 several courts have held that a physician with demonstrated = expertise in=20 treating infections could offer an opinion on the treatment of an=20 infection by a physician from a different specialty.  See, = e.g.,=20 McKowen v. Ragston, No. 01-06-00665-CV, 2007 WL 79330, at *10 = (Tex.=20 App.CHouston=20 [1st Dist.] Jan. 11, 2007, no pet.); Keeton v. Carrasco, 53 = S.W.3d=20 13, 25‑26 (Tex. App.CSan=20 Antonio 2001, pet. denied); Tennyson v. Phillips, No.=20 12‑02‑00154‑CV, 2004 WL 63158, at *8 (Tex. = App.CTyler=20 2004, pet. denied) (mem. op.).  As in Blan, the focus = in these=20 cases is on whether the physician-expert has demonstrated = expertise=20 regarding the subject matter at issue, not on whether he or she = has=20 expertise in the specialty of the defendant-physician.  = See=20 McKowen, 2007 WL 79330, at *10; Keeton, 53 S.W.3d at = 25‑26;=20 Tennyson, 2004 WL 63158, at *8.  Chaupin attempts to=20 distinguish these cases by pointing out that they each involved=20 post-operative care, not pre-operative care as in the present = case. =20 This distinction is not meaningful.  We believe that the = infection=20 treatment cases are very analogous to the present situation.  = Although Chaupin practices a different specialty than Schoene, the = physician-expert is qualified to opine on the=20 defendant-physician=3Ds conduct=20 because he has demonstrated expertise in the subject matter at = issue.[6]

Based on=20 the foregoing, we find that Chaupin=3Ds=20 arguments regarding Schoene=3Ds=20 qualifications are without merit.  Accordingly, we overrule=20 Chaupin=3Ds first=20 issue.

V. =20 Adequacy of Report

In his=20 second issue, Chaupin contends that even if Schoene is qualified = as an=20 expert in this case, his statements in the report are inadequate = to=20 establish the elements required under section 74.351.  To be=20 adequate, the report must state:  (1) the applicable = standards of=20 care; (2) the manner in which the defendant=3Ds conduct=20 breached the standards of care; and (3) the causal relationship = between=20 the breach and the claimed damages.  Palacios, 46 = S.W.3d at=20 878-79.  Specifically, Chaupin contends that the report is = inadequate=20 regarding:  (1) the standard of care relating to = Chaupin=3Ds use of=20 blood gas tests; (2) the causal relationship between the use of = blood gas=20 tests and the claimed damages; (3) the standard of care relating = to=20 evaluation and assessment of Mr. Schroeder; and (4) the standard = of care=20 and alleged breach of the standard relating to decompression of = Mr.=20 Schroeder=3Ds=20 abdomen.  We will examine each argument in turn.

A. =20 Blood Gas MonitoringCStandard=20 of Care

Regarding=20 the standard of care for blood gas monitoring, Chaupin asserts = that the=20 report does not contain any statement of the standard specifically = applicable to him (or to surgeons), but only includes general = statements=20 regarding Aany=20 physician.@ = However,=20 Schoene=3Ds=20 statements in the report are more specific than Chaupin = suggests. =20 Schoene provides significant detail and explanation regarding the = proper=20 use of pulse oximeters and arterial blood gas tests, including why = the=20 latter is preferable to the former under circumstances such as = those=20 presented in the treatment of Mr. Schroeder.  It is true that = among=20 his comments on the standard of care, Schoene says:  = AThe=20 standard of care for any physician taking care of a patient = with=20 pulse oximeter readings of 88-94% while on 100% non-rebreather = mask=20 requires the physician to obtain arterial blood gases to determine = the=20 patient=3Ds true=20 pulmonary status.@ =20 (emphasis added).  Notwithstanding the use of the = Aany=20 physician@ = language=20 of which Chaupin complains, the report is quite specific to = Chaupin and=20 the situation he faced in treating Mr. Schroeder and is not a = generic=20 description of amorphous standards.  Schoene=3Ds=20 statements must also be read in light of his qualifications, as = stated in=20 the report and attached CV, which include the assertions that = Schoene has=20 been practicing medicine in an area relevant to Mr. = Schroeder=3Ds=20 treatment, has trained and consulted with health care providers = licensed=20 in the same field as Chaupin, and is familiar (by virtue of his = education,=20 training, experience, and board certifications) with the accepted=20 standards of care for the treatment at issue in this=20 case.

Furthermore,=20 we reject Chaupin=3Ds=20 suggestion that a report may be deemed inadequate simply because = it states=20 that Aany=20 physician@ = would=20 have certain knowledge or expertise.  As we stated in=20 Blan:  ADespite=20 the fact that we live in a world of niche medical practices and = multilayer=20 specializations, there are certain standards of medical care that = apply to=20 multiple schools of practice and any medical doctor.@  7=20 S.W.3d at 746; see also In re Stacy K. Boone, P.A., 223 = S.W.3d 398,=20 405-06 (Tex. App.CAmarillo=20 2006, orig. proc.) (finding expert report was adequate on standard = of care=20 for multiple defendants where each defendant was involved in the = same type=20 of care and expert clearly stated and explained that the standard = was the=20 same for each).

Chaupin=20 cites Olveda v. Sepulveda, 141 S.W.3d 679 (Tex. = App.CSan=20 Antonio 2004, pet. denied), and  Gray v. CHCA Bayshore = L.P.,=20 189 S.W.3d 855 (Tex. App.CHouston=20 [1st Dist.] 2006, no pet.), for the proposition that it is = improper to=20 apply global standards of care to different health care = providers. =20 However, these cases are distinguishable from the present = case.  In=20 Olveda, the court does say that A[i]t is=20 not enough . . . to state that all physicians should be able to = diagnose=20 [a particular illness].@  141=20 S.W.3d at 682.  However, the point that the court is making = is not=20 that such a statement renders the report inadequate on standard of = care,=20 but that such a statement does not convert the opining physician = into an=20 expert on the conduct of the defendant-physician, absent proof = that the=20 expert was qualified based on knowledge, skill, experience, = training, or=20 education.  See id.  Olveda turns on=20 qualifications, not standard of care.  As discussed above, = Schoene=20 has stated that he is qualified based on his education, training,=20 experience, and board certifications to opine regarding=20 Chaupin=3Ds care of=20 Mr. Schroeder, and he has trained and consulted with health care = providers=20 licensed in the same field as Chaupin.  Schoene=3Ds CV also=20 supports these statements.

In=20 Gray, the expert opined, without explanation, that an = identical=20 standard of care applied to both the anesthesiologist and the = nursing=20 staff who cared for the patient in question.  189 S.W.3d at=20 859.  The court held that A[w]hile it=20 is possible that an identical standard of care applied to both . . = . such=20 generic statements, without more, can reasonably be deemed=20 conclusory.@  =20 Id.  The court also emphasized the abuse of discretion = standard, stating that the trial court did not act unreasonably in = granting the motions to dismiss.  Id.  Here,=20 Schoene=3Ds report=20 is not merely conclusory regarding the standard of care on blood = gas=20 testing.  As stated above, Schoene opined in some detail as = to the=20 appropriate use of pulse oximeters and arterial blood gases.  = Accordingly, Gray is distinguishable from the present = case. =20 Chaupin=3Ds=20 arguments regarding the adequacy of the report in addressing the = standard=20 of care relating to blood gas monitoring are without = merit.

B. =20 Blood Gas MonitoringCCausation

Chaupin=20 next argues that Schoene=3Ds=20 statements regarding causation, as related to the blood gas tests, = are=20 inadequate.  First, Chaupin asserts that Schoene=3Ds blood=20 gas-related causation statements are Aconclusory=20 and [do] not establish that any breach in this regard by Dr. = Chaupin=20 caused the injury in question.@ =20 Chaupin then isolates one point from Schoene=3Ds report=20 as being conclusory:  where Schoene states that had an = arterial blood=20 gas been drawn earlier, Athe true=20 nature of [Schroeder=3Ds] poor=20 pulmonary function and deteriorating status would have been = recognized and=20 he could have received more aggressive care for his worsening = ileus to=20 improve his respiratory status.@ =20 This statement in itself could be considered conclusory, at least = in=20 regard to what Amore=20 aggressive care@ = might=20 entail.  In its context, however, it loses its conclusory=20 nature:  the statement is made in the ADeviations=20 from the Standard of Care@ = section=20 of the report and not in the ACausation@ = section=20 (discussed in more detail below), and Chaupin neglects to mention = the last=20 phrase in the quoted sentence, which reads: Aor a safe,=20 well planned intubation to ensure proper oxygenation.@ =20 This concluding phrase provides a specific measure that, according = to=20 Schoene, should have been undertaken had the true nature of Mr.=20 Schroeder=3Ds=20 pulmonary function been known by use of an arterial blood gas = rather than=20 a pulse oximeter.[7] =20 Chaupin=3Ds=20 isolation of this one partial sentence does not demonstrate that=20 Schoene=3Ds opinions=20 were deficient regarding causation.

Chaupin=20 further argues that there exists an analytical gap Ain Dr.=20 Schoene=3Ds=20 explanation of how Dr. Chaupin=3Ds care=20 caused this patient to aspirate his vomitus, or how Dr. Chaupin = violated a=20 standard of care . . . which caused the vomiting, aspiration, or=20 death.@ =20 Chaupin does not, however, point to any specific language in the = report as=20 demonstrating such a gap.  To the contrary, reading=20 Schoene=3Ds report=20 as a whole, it is clear that he is opining that = Chaupin=3Ds failure=20 to use the proper blood gas test under the circumstances and = failure to=20 properly evaluate and assess Mr. Schroeder=3Ds=20 condition allowed Mr. Schroeder=3Ds=20 condition to deteriorate to the point where an emergency = intubation became=20 necessary.  Schoene explains at length how difficult and = dangerous=20 the emergency intubation attempts were and how they, in turn, led = to Mr.=20 Schroeder=3Ds=20 aspirating his vomitus, which led directly to his = death.

Additionally,=20 Chaupin argues that Athe=20 statement that the outcome >could=3D = have been=20 affected by Dr. Chaupin is insufficiently [sic] conclusory and=20 broad.@  He=20 further contends that this language, amounting to no more than a=20 suggestion of increased risk, does not describe an actionable tort = in=20 Texas, citing Kramer v. Lewisville Memorial Hospital, 858 = S.W.2d=20 397, 405-06 (Tex. 1993).  Chaupin does not, however, identify = the=20 Acould@ = language=20 that he is referencing.  Schoene states in the report that as = a=20 result of Chaupin=3Ds actions=20 and inactions (as well as those of others), AMr.=20 Schroeder died needlessly.@  He=20 opines that by not using the appropriate blood gas test and by not = properly evaluating and assessing Mr. Schroeder=3Ds=20 condition, Chaupin allowed Mr. Schroeder to deteriorate to a point = at=20 which the emergency intubation attempts became necessary.  = Based on=20 these specific statements, and the report as a whole, we do not = find the=20 causation statements to be overbroad or = conclusory.

Lastly,=20 Chaupin complains that Schoene failed to rule out other factors = beyond=20 Chaupin=3Ds control=20 as causes of Mr. Schroeder=3Ds=20 damages.  Such an opinion is not required.  This case is = not on=20 appeal from a final trial or from the grant of summary = judgment.  In=20 a preliminary expert report, the expert is charged with = identifying=20 standards, breach thereof, and causation.  Palacios, = 46 S.W.3d=20 at 878-79.  Chaupin does not cite any cases, and we are aware = of=20 none, further requiring the expert (beyond an affirmative = explanation of=20 causation) to rule out other possible causes not yet raised in the = case.  Furthermore, in his report, Schoene did in fact = discuss at=20 length other conduct by other care givers that Schoene believes = also=20 proximately caused the claimed damages.  More than one act = and more=20 than one actor can be proximate causes of the same damages.  = See,=20 e.g., Morrell v. Finke, 184 S.W.3d 257, 284  (Tex.=20 App.CFort Worth=20 2005, pet. abated) (A[A]ll=20 persons whose negligent conduct contributes to the injury, = proximately=20 causing it are liable.@) (citing=20 Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.=20 1992)).

C. =20 Evaluation and AssessmentCStandard=20 of Care

Chaupin=20 next attacks Schoene=3Ds=20 statement that A[t]he=20 standard of care requires any physician caring for a patient to = accurately=20 evaluate and assess the patient in order to institute necessary = medical=20 interventions.@ =20 Chaupin argues that this sentence:  (1) contains an = impermissibly=20 broad statement of the standard of care; (2) provides no factual=20 description of what should have been done to evaluate or assess = the=20 patient in this case; and (3) does not contain a proper statement = of the=20 legal standard because it is not based on Aordinary=20 care.@ =20 However, this sentence must be read in the broader context of the = report,=20 not in isolation.  Immediately prior to this sentence, and in = the=20 same paragraph, Schoene criticizes Chaupin=3Ds failure=20 to re-evaluate Schroeder after the CT scan was performed as well = as=20 Chaupin=3Ds alleged=20 notation of inaccurate vital signs.  It is thus clear from = the=20 context that Schoene is talking about re-evaluating Schroeder = after the CT=20 scan (and in light of the results) and assessing his vital = signs. =20 Schoene is not making a completely unfocused generalization about=20 evaluating and assessing a patient as Chaupin suggests.  = Furthermore,=20 contrary to Chaupin=3Ds second=20 assumption, it is clear from this context that Schoene is basing = his=20 statement of the standard of care on the facts of the case at=20 hand.

Lastly,=20 there is no requirement of magic words such as Aordinary=20 care@ = in=20 chapter 74.  There is nothing in the report to suggest that = when=20 Schoene states that Athe=20 standard of care requires . . .@ = he is=20 referencing any standard other than that of ordinary care. =20 Accordingly, we find Chaupin=3Ds=20 arguments regarding Schoene=3Ds=20 Aevaluate=20 and assess@ = language=20 to be without merit.

D. =20 Perceived Decompression Criticism

Lastly,=20 Chaupin points out that in the causation section of the report, = Schoene=20 appears to make allegations regarding Chaupin=3Ds=20 treatment of Mr. Schroeder=3Ds=20 ileus.  Specifically, Schoene states as follows:

Dr.=20 Chaupin=3Ds failure=20 to decompress Mr. Schroeder=3Ds abdomen=20 caused Mr. Schroeder to suffer intense, unrelieved abdominal pain, = with=20 expansion of his intestines and stomach to the point where, in = reasonable=20 medical probability, it impeded his ability to achieve adequate=20 oxygenation and ventilation by preventing his diaphragms from = moving up=20 and down with his breathing.  This caused his O2 saturation = to drop,=20 and, in reasonable medical probability, resulted in respiratory = distress=20 and the failed intubation attempts which led, in the natural = sequence of=20 events, to Mr. Schroeder=3Ds=20 death.

Considering=20 the report as a whole, it was logical for the trial court to = conclude that=20 the accusations being made by Schoene are that Chaupin breached = the=20 standard of care by failing to order an arterial blood gas when he = should=20 have, by failing to reevaluate Mr. Schroeder after the CT scan, = and by=20 failing to accurately record his vital signs.  The mention of = the=20 failure to decompress, included in the causation section, is an=20 explanation as to why Mr. Schroeder was in such distress.  In = other=20 words, Mr. Schroeder=3Ds=20 breathing problems, according to Schoene, were a result of his = discomfort=20 from the ileus.  Because he did not take required measures, = Chaupin=20 apparently did not realize the extent of Mr. Schroeder=3Ds=20 respiratory distress, and his failure to relieve the ileus led to = Mr.=20 Schroeder=3Ds=20 inability to adequately fill his lungs.  These failures, = according to=20 Schoene, ultimately led to Mr. Schroeder=3Ds=20 death.  The discussion of the respiratory distress would be=20 incomplete without mention of the unrelieved ileus because it was = the=20 cause of the respiratory distress.  Accordingly, we find=20 Chaupin=3Ds=20 arguments regarding Schoene=3Ds=20 perceived decompression criticism to be without merit.  We = overrule=20 appellant=3Ds second=20 issue.

We affirm=20 the trial court=3Ds=20 judgment.

 

 

 

 

 

 

/s/     =20 Adele Hedges

Chief = Justice

 

 

 

 

 

Judgment=20 rendered and Memorandum Opinion filed July 26, 2007.

Panel=20 consists of Chief Justice Hedges and Justices Fowler and=20 Edelman.


[1]  These background facts are = derived from=20 Schoene=3Ds report and are for purposes of this = appeal=20 only.  Prior to arrival at Houston Northwest, Mr. Schroeder = had=20 previously undergone a procedure at another hospital for treatment = of=20 chronic lower back pain.  Subsequently, but prior to = admission to=20 Houston Northwest, Mr. Schroeder made two appearances at the = emergency=20 room at Cypress Fairbanks Medical Center.  On the second = appearance,=20 he was transferred to Houston Northwest.

[2]  AIleus,@ or Aparalytic ileus,@ results when intestinal contents back = up because=20 of a failure of peristalsis, or normal involuntary intestinal=20 contractions.  Webster=3Ds Third = International=20 Dictionary 1125, 1682=20 (1993).

[3]  Bethea was not a defendant below, = and his=20 first name does not appear in the record.

[4]  Chaupin supports this assertion = by citing=20 to plaintiff/appellee=3Ds petition, wherein it is alleged that = Chaupin=20 failed to properly treat the ileus and failed to timely decompress = and=20 examine Mr. Schroeder for surgery.  In assessing the = sufficiency of a=20 preliminary medical report under chapter 74, a court is not to = draw=20 outside inferences but must instead rely exclusively on the = information=20 contained within the four corners of the report.  = Gray v. CHCA = Bayshore=20 L.P., 189=20 S.W.3d 855, 859 (Tex. App.CHouston [1st Dist.] = 2006, no=20 pet.) (citing Palacios,=20 46 S.W.3d at 879).  However, the petition also alleges that = Chaupin=20 failed to properly assess Mr. Schroeder=3Ds condition, an allegation that would = appear to=20 encompass failure to use the proper blood gas test, as well as = failure to=20 properly evaluate Mr. Schroeder=3Ds worsening state.

Additionally, Chaupin does not discuss = whether=20 internists treat ileus or whether Schoene=3Ds board certification in internal = medicine, along=20 with his stated experience and training, would qualify him to = opine=20 regarding treatment of that condition.  However, because of = our=20 reading of the report as opining primarily on pulmonary issues, we = need=20 not decide this additional point.

[5]  This reading of = Shoene=3Ds report (as not focusing on the = treatment of=20 ileus) is the interpretation put forth by the plaintiff/appellee = in the=20 trial court and on appeal.  In other words, = plaintiff/appellee is not=20 asserting that the report specifically covers treatment of the=20 ileus.

[6]  Although Schoene=3Ds comments stray to some degree into = criticism of=20 the ileus treatment, particularly when he suggests that Chaupin = could have=20 relieved Mr. Schroeder=3Ds respiratory distress by properly = decompressing=20 his abdomen, the focus of the report is clearly on the diagnosis = and=20 treatment of the respiratory condition.  Indeed, Schoene also = suggests Mr. Schroeder=3Ds distress could have been relieved by a = well-planned, non-emergency intubation.  Accordingly, we need = not and=20 do not resolve the question of whether Schoene has demonstrated = the=20 requisite qualifications to opine regarding the treatment of = ileus. =20 See n.4 supra.

[7]  It further should be noted that = at no point=20 does Chaupin specifically argue that Schoene=3Ds statements regarding breach of = the=20 standard of care (as related to the blood gas tests) are=20 = inadequate.

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