Affirmed and Opinion filed November 6, =
2007.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-07-00328-CV
_______________
ANIL B. PATEL, M.D., =
Appellant
V.
GEORGE H. WILLIAMS, ON BEHALF OF THE =
ESTATE OF=20
FRANCES M. MITCHELL AND ON BEHALF OF ALL WRONGFUL DEATH =
BENEFICIARIES,=20
Appellee
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On Appeal from the =
240th District=20
Court
Fort Bend County, =
Texas
Trial Court Cause No.=20
06-CV-151204
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O P I N I =
O=20
N
This appeal pertains =
to a=20
health care liability suit brought by appellee, George H. =
Williams, on=20
Behalf of the Estate of Frances M. Mitchell and on Behalf of all =
Wrongful=20
Death Beneficiaries, against appellant, Dr. Anil B. Patel. =
The trial=20
court denied appellant=3Ds motion to dismiss, =
and this=20
interlocutory appeal followed. In his sole issue, appellant =
contends=20
the trial court erred in denying his motion to dismiss because=20
appellee=3Ds expert report was=20
insufficient as a matter of law. =
I.=20
Background
On February 11, 2005, =
Frances=20
Mitchell, who suffered from dementia related to =
Alzheimer=3Ds Disease, was =
hospitalized=20
after she fractured and displaced her left hip. On March 8, =
2005,=20
Dr. Anil Patel discharged her to the Sugar Land Health Care Center =
where=20
he would be Mitchell=3Ds treating =
physician. To=20
treat Mitchell=3Ds dementia, Dr. Patel =
prescribed Risperdal, a psychotropic drug with side effects =
including=20
restlessness or a need to keep moving. Dr. Patel continued =
the=20
Risperdal treatment after George Williams, a family member of=20
Mitchell=3Ds, withheld consent =
to the use=20
of the drug.
While at the Sugar =
Land Health=20
Care Center, Mitchell received nutrition through a gastrostomy =
tube. =20
On March 27, 2005, nurses noted that Mitchell was very agitated =
and=20
pulling on her gastrostomy tube, which she eventually =
dislodged. =20
Sugar Land Health Care Center nurses improperly reinserted the =
tube. =20
Mitchell suffered leakage of gastric contents into the peritoneum =
as a=20
direct consequence of the improperly inserted gastrostomy =
tube. This=20
leakage resulted in the formation of an abscess. Mitchell =
required=20
multiple operations to address the abscess and infection stemming =
from the=20
improperly inserted tube. She died on May 22, 2005. =
The death=20
certificate identified the cause of death as small cut gangrene =
with the=20
underlying cause of mesenteric artery thrombosis. =
George Williams filed =
suit=20
against Dr. Patel and Sugar Land Health Care Center asserting that =
their=20
negligence and gross negligence resulted in Mitchell=3Ds death. =
Pursuant to=20
section 74.351 of the Civil Practice and Remedies Code, Williams =
served=20
Dr. Michael Zeitlin=3Ds expert report on =
Dr. Patel=20
and Sugar Land Health Care Center. Dr. Patel filed a motion =
to=20
dismiss, contending Dr. Zeitlin=3Ds report was not =
sufficient to=20
fulfill the requirements of section 74.351. The trial court =
denied=20
the motion, and this appeal followed.
II.=20
Analysis
In one issue, Dr. =
Patel=20
contends Dr. Zeitlin=3Ds report failed to =
state the=20
applicable standard of care and is conclusory and speculative =
regarding=20
the element of causation. We disagree.
We review a trial=20
court=3Ds ruling regarding =
the adequacy=20
of an expert report for abuse of discretion. Am. =
Transitional=20
Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). =
A trial=20
court commits an abuse of discretion if it acts in an arbitrary or =
unreasonable manner without reference to guiding rules or=20
principles. See Bowie Mem=3Dl Hosp. v.=20
Wright, 79=20
S.W.3d 48, 52 (Tex. 2002). We may not substitute our =
judgment for=20
that of the trial court when reviewing matters committed to the =
trial=20
court=3Ds discretion. =
Walker=20
v. Packer, 827 S.W.2d 833, 839B40 (Tex.=20
1992).
Under section 74.351 =
of the=20
Civil Practice and Remedies Code, health care liability claimants =
must=20
provide an expert report to the defendant no later than 120 days =
after=20
filing the original petition. See Tex. Civ. Prac. & Rem. =
Code Ann.=20
' 74.351(a) (Vernon =
Supp.=20
2006). A defendant may file a motion challenging the =
adequacy of the=20
report, and the trial court Ashall =
grant@ the motion only if =
it appears=20
that the report does not represent a good faith effort to comply =
with the=20
statutory definition of an expert report. See Tex. Civ. Prac. & Rem. =
Code Ann.=20
'' 74.351(a), (l) =
(Vernon Supp.=20
2006). In determining whether the report represents a good =
faith=20
effort, the trial court=3Ds inquiry is limited =
to the=20
four corners of the report, and no inferences may be drawn from=20
information outside the report. See Palacios, 46 =
S.W.3d at=20
878. An expert report is defined as a written report by an =
expert=20
that provides a fair summary of the expert=3Ds opinions regarding: =
(1) the=20
applicable standard of care; (2) the manner in which the care =
provided=20
failed to meet that standard; and (3) the causal relationship =
between that=20
failure and the injury, harm, or damages claimed. =
See=20
Tex. Civ. Prac. =
& Rem.=20
Code Ann. ' 74.351(r)(6) (Vernon =
Supp.=20
2006); Palacios, 46 S.W.3d at 878B79. In =
compliance with=20
these standards, the expert report must incorporate enough =
information to=20
fulfill two purposes: (1) the report must inform the defendant of =
the=20
specific conduct the plaintiff has called into question; and (2) =
the=20
report must provide a basis for the trial court to conclude the =
claims are=20
meritorious. Palacios, 46 S.W.3d at 879. =
A=20
report merely expressing the expert=3Ds conclusions about =
the=20
standard of care, breach, and causation fails to fulfill these=20
purposes. Id. The expert must explain the basis =
for his=20
statements and must link his conclusions to the facts. =20
Wright, 79 S.W.3d at 52. However, to avoid dismissal, =
a=20
plaintiff need not present all the evidence necessary to litigate =
the=20
merits of her case. Palacios, 46 S.W.3d at 879. =
The=20
report may be informal in that the information need not fulfill =
the same=20
requirements as the evidence offered in a summary-judgment =
proceeding or=20
at trial. Id. Moreover, the expert is not =
required to=20
express the causal relationship in terms of any Amagical@ words. =
Wright, 79=20
S.W.3d at 53.
A.=20
Standard of=20
Care
Dr. Patel first =
contends the=20
report did not comply with section 74.351 because Dr. Zeitlin did =
not=20
state the applicable standard of care. Although Dr.=20
Zeitlin=3Ds report could have =
been more=20
artfully written, we conclude it provided Dr. Patel with a fair =
summary of=20
the standards of care applicable to him. We acknowledge that =
Dr.=20
Zeitlin did not segregate his statements regarding standards of =
care from=20
the other section 74.351 elements. However, no particular =
format is=20
required under section 74.351. The statute simply requires =
that the=20
report provide a fair summary of the expert=3Ds opinion as to the =
applicable=20
standard of care. See Tex. Civ. Prac. & Rem. =
Code Ann.=20
' =
74.351(r)(6). =20
Throughout the report, Dr. Zeitlin imbedded a number of standards =
of care=20
directly applicable to Dr. Patel. First, Dr. Zeitlin stated, =
A[t]he standard of =
care requires=20
the family to consent to the prescription of psychotropic=20
drugs.@ This standard =
sets out a=20
simple rule whereby a reasonable physician may not continue a =
course of=20
treatment using psychotropic drugs if the patient=3Ds family fails to =
give its=20
consent to the treatment. Additionally, Dr. Zeitlin stated,=20
ARisperdal was not the =
appropriate drug for Ms. Mitchell. The FDA approved =
Risperdal to=20
treat schizophrenia . . . . Risperdal was not approved by =
the FDA to=20
treat dementia related to Alzheimers.@ Similar to =
statements of=20
causation, there is nothing in section 74.351 requiring standards =
of care=20
to be described using any specific terms, phrases, or magic =
words. =20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. ' 74.351(r)(6); see =
also=20
Wright, 79 S.W.3d at 52 (stating an expert report need not =
contain=20
certain magical words to satisfy section 74.351's causation=20
requirement). Although Dr. Zeitlin=3Ds statement did not =
include any=20
words or phrases such as Athe standard of care=20
is,@ this statement =
described =20
standards of care under which a reasonable physician should not, =
as a=20
general proposition, prescribe the wrong drug for his patients; =
nor should=20
a reasonable physician prescribe the drug Risperdal, specifically, =
to=20
treat dementia related to Alzheimer=3Ds Disease. This =
standard=20
was applicable to Dr. Patel as Mitchell=3Ds treating physician. =
To find an abuse of =
discretion,=20
we must conclude the trial court acted in an arbitrary or =
unreasonable=20
manner without reference to guiding rules or principles. =
See=20
Wright, 79 S.W.3d at 52. Reasonable people may differ in =
determining what is required to provide a fair summary of the =
applicable=20
standard of care, or any other section 74.351(r)(6) element. =
As=20
such, unless the trial court=3Ds decision is =
arbitrary or=20
unreasonable, we may not substitute our judgment for that of the =
trial=20
court when reviewing matters committed to the trial =
court=3Ds discretion. =
See=20
Walker, 827 S.W.2d at 839B40. While we =
might=20
disagree as to whether Dr. Zeitlin=3Ds report provided a =
fair=20
summary regarding each applicable standard of care, we cannot =
conclude the=20
trial court=3Ds decision was =
arbitrary or=20
unreasonable. Therefore, the trial court did not abuse its=20
discretion in finding that appellee satisfied the standard of care =
requirement of section 74.351.
B.=20
Causation
Dr. Patel further =
contends Dr.=20
Zeitlin failed to comply with section 74.351 because his opinions=20
regarding the causal relationship between Dr. Patel=3Ds breach of the =
standard of=20
care and the alleged injuries were conclusory and =
speculative. We=20
disagree. It is our considered opinion the trial court did =
not abuse=20
its discretion in finding that Dr. Zeitlin sufficiently outlined =
the=20
required causal facts.
In his report, Dr. =
Zeitlin=20
presented a chain of events beginning with Dr. Patel=3Ds prescription of =
Risperdal to=20
Mitchell and ending with her death. Dr. Zeitlin stated that =
Dr.=20
Patel prescribed Risperdal to a patient for whom the drug was not=20
appropriate and continued the medication after the family refused =
to=20
consent to the treatment. He referenced nurses notes dated =
March 27,=20
2005 that described Mitchell as agitated and pulling on her =
gastrostomy=20
tube, behavior consistent with the side effects of =
Risperdal. Dr.=20
Zeitlin noted, after Mitchell removed her gastrostomy tube, =
nurses,=20
without consulting the treating physician, improperly re-inserted =
the=20
tube. The nurses=3D actions caused =
formula to=20
enter Mitchell=3Ds body but fail to =
enter her=20
stomach. This formula leakage led to abscess and infection,=20
requiring surgery. Although not stated with absolute =
clarity,=20
Dr. Zeitlin concluded that Mitchell=3Ds death from small =
cut gangrene=20
and mesenteric artery thrombosis resulted from either the earlier =
abscess=20
and infection or complications from multiple surgeries. It =
is Dr.=20
Zeitlin=3Ds opinion that Dr.=20
Patel=3Ds decision to treat=20
Mitchell=3Ds dementia with =
Risperdal began=20
a chain of events ultimately culminating in Mitchell=3Ds death. While =
there are=20
many links in this chain of causation, we cannot conclude that Dr. =
Zeitlin=3Ds report is =
insufficient to=20
fulfill the requirements of section 74.351. =
The two-fold purpose =
of an=20
expert report under section 74.351 is to inform the defendant of =
the=20
specific conduct the plaintiff has called into question, and to =
provide a=20
basis for the trial court to conclude that the claims have merit. =
See=20
Palacios, 46 S.W.3d at 878B79. Pursuant to =
this=20
standard, we hold Dr. Zeitlin=3Ds report was =
sufficient to=20
notify Dr. Patel regarding the specific conduct complained of, and =
provided a basis for the trial court to conclude the claims have =
potential=20
merit. Therefore, we conclude the trial court acted within its =
discretion=20
in finding that Dr. Zeitlin=3Ds report sufficiently =
addressed=20
the element of causation.
Appellant=3Ds sole issue is =
overruled.=20
Accordingly, the trial court=3Ds order signed March =
29, 2007=20
is affirmed.
/s/ =20
Charles W. Seymore
Justice
Judgment rendered and =
Opinion=20
filed November 6, 2007.
Panel consists of =
Chief Justice=20
Hedges, and Justices Anderson and Seymore.
Appellee sued Dr. Patel and Sugar =
Land=20
Health Care, LP D/B/A Sugar Land Health Care Center, =
however, =20
Sugar Land Health Care, LP did not challenge the sufficiency of=20
appellee=3Ds expert report in the trial =
court. =20
Therefore, this opinion pertains to Dr. Patel=20
=
alone. |