Reversed =
and Remanded=20
and Majority and Dissenting Opinions filed October 11, 2007.
In The
Fourteenth Court=20
of Appeals
____________
NO.=20
14-06-00962-CV
____________
WALGREEN COMPANY, =
Appellant
V.
CYNTHIA HIEGER AND ROY C. HIEGER, BOTH=20
INDIVIDUALLY AND AS NEXT FRIEND OF DAVID C. HIEGER, A MINOR,=20
Appellees
On Appeal from the =
281st=20
District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-79787
M A J O R I T =
Y =20
O P I N I O N
This appeal pertains =
to a=20
health care liability suit brought by appellees, Cynthia Hieger =
and Roy C.=20
Hieger, individually and as next friend of their minor son David =
C. Hieger=20
(collectively Athe =
Hiegers@), against appellant, =
Walgreen=20
Co. The=20
trial court denied Walgreen=3Ds motion to dismiss =
based on=20
inadequate expert reports. In its sole issue, Walgreen =
contends the=20
trial court erred in denying its motion to dismiss because the=20
Hiegers=3D expert reports did =
not=20
adequately address causation. We agree, and therefore we =
reverse the=20
trial court=3Ds judgment and remand =
for=20
further proceedings.
Background
Cynthia =
Hieger=3Ds physician =
prescribed Paxil=20
CR, an antidepressant, and she filled the prescription at a =
Walgreens=20
pharmacy. In October 2003, she obtained a refill and =
immediately=20
began taking medicine from the refill container. However, =
the=20
tablets in the container were not Paxil CR but were Ambien, a =
sleep=20
medication. A Walgreens pharmacy employee had placed the =
label for=20
the Paxil CR prescription over a label for Ambien.
The Hiegers filed =
their health=20
care liability claim on December 21, 2005, alleging Walgreen =
incorrectly=20
refilled Ms. Hieger=3Ds prescription for =
Paxil CR=20
with Ambien. Hieger alleged that the abrupt discontinuation =
of Paxil=20
CR, combined with the effects of taking Ambien during the day, =
caused her=20
to suffer Asevere and =
excruciating pain,=20
migraines, nausea, irritability, super-sensitivity to light and =
sound,=20
anxiety, fear, nightmares, inability to perform household =
functions,=20
inability to stand-up, irrational behavior and to suffer very =
severe=20
depression.@
On April 20, 2006, =
the 120th=20
day after filing suit, the Hiegers filed an expert report by Diane =
B.=20
Ginsburg, a registered pharmacist and clinical professor and =
assistant=20
dean for student affairs at the College of Pharmacy at the =
University of=20
Texas at Austin. Walgreen objected to Ginsburg=3Ds expert report and =
moved to=20
dismiss pursuant to Texas Civil Practice and Remedies Code section =
74.351=20
arguing (1) Ginsburg=3Ds report was =
inadequate because=20
it did not address causation and (2) Ginsburg, as a pharmacist, =
was not=20
qualified to render a causation opinion.
The Hiegers responded =
and=20
requested a thirty-day extension to file an additional expert =
report=20
pursuant to Texas Civil Practice and Remedies Code section=20
74.351(c). The trial court granted the extension, and the =
Hiegers=20
filed an expert report by Dr. Reed Young, a doctor licensed in =
Texas who=20
is board certified in adult neurology and sleep medication. =
Walgreen=20
filed another motion to dismiss, arguing that Dr. =
Young=3Ds expert report did =
not=20
adequately address causation, which the trial court denied. =
Walgreen=20
now appeals the trial court=3Ds denial of this =
second motion=20
to dismiss.
Analysis
In its sole issue, =
Walgreen=20
contends the trial court erred by denying its second motion to =
dismiss=20
because the Hiegers did not present adequate expert opinion =
regarding=20
causation. We review a trial court=3Ds ruling as to the =
adequacy of=20
an expert report under an abuse of discretion standard. =
Am.=20
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d =
873, 878=20
(Tex. 2001). A trial court abuses its discretion if it acts =
in an=20
arbitrary or unreasonable manner or without reference to guiding =
rules or=20
principles. See Garcia v. Martinez, 988 S.W.2d 219, =
222 (Tex.=20
1999). Though we may not substitute our judgment for that of =
the=20
trial court in reviewing factual matters or matters committed =
solely to=20
the trial court=3Ds discretion, the =
trial court=20
has no discretion in determining what the law is or in =
applying the=20
law to the facts. See Walker v. Packer, 827 S.W.2d =
833,=20
839B40 (Tex. 1992). =
Thus, the=20
trial court=3Ds failure to apply or =
analyze=20
the law correctly is an abuse of discretion. Id. at=20
840.
Pursuant to section =
74.351 of=20
the 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=20
Ann. ' 74.351(a) (Vernon =
Supp.=20
2006). A defendant may then file a motion challenging the =
adequacy=20
of the report, and the trial court Ashall =
grant@ the motion if it =
appears that=20
the report does not represent a good faith effort to comply with =
the=20
statutory definition of an expert report. See id.=20
'' 74.351(a), =
(l) (Vernon=20
Supp. 2006). In determining whether the report represents a =
good=20
faith effort, the trial court=3Ds inquiry is limited =
to the=20
four corners of the report. See Palacios, 46 S.W.3d =
at 878.=20
The statute defines =
an expert=20
report as a written report by an expert that provides a fair =
summary of=20
the expert=3Ds opinions as of the =
date of=20
the report regarding the applicable standard of care, the manner =
in which=20
that standard was breached, and the causal relationship between =
that=20
breach and the injury, harm, or damages claimed. See =
Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' 74.351(r)(6) (Vernon =
Supp.=20
2006); Palacios, 46 S.W.3d at 878B79. Although a =
plaintiff=20
need not marshal all of her proof and need not fulfill the same=20
requirements as the evidence offered in a summary judgment =
proceeding, the=20
expert=3Ds report must include =
opinions=20
on the three statutory elementsCstandard of care, =
breach, and=20
causation. See Palacios, 46 S.W.3d at =
878B79.
Walgreen contends Dr. =
Young=3Ds report does not =
provide a=20
fair summary of the alleged causal relationship between the =
incorrectly=20
refilled prescription and Ms. Hieger=3Ds alleged injuries. =20
Relative to causation, Dr. Young=3Ds report states as=20
follows:
Paxil is an antidepressant with =
anxiolytic=20
properties. It is prescribed for rheumatic pain syndromes =
and=20
clearly has a central action against pain. In my own =
experience,=20
when Paxil is stopped abruptly, the patient can go through a very=20
uncomfortable period of worse depression, worse pain, and marked =
anxiety=20
and hyper reactivity.
Ambien, like Halcion, can cause peculiar =
side=20
effects if someone takes it and tries to stay awake for awhile;=20
specifically they can act somewhat psychotic. =
I was told by the =
patient that=20
in October, 2003, a prescription for Paxil was miss-filled [sic] =
with=20
Ambien and miss-labeled [sic]. As applied to these events, =
when=20
[C]ynthia Hieger suddenly ceased taking her Paxil and began taking =
Ambien=20
for daytime use, her complaints of psychosis, hypersensitivity,=20
jitteriness, and increased pain are consistent with the =
known side=20
effects of each medication.
(emphasis =
added). =20
Walgreen argues that the language Aconsistent =
with@ does not demonstrate =
a causal=20
connection because language indicating that Ms. Hieger=3Ds symptoms are =
Aconsistent =
with@ the known side =
effects of the=20
medications is not the same as saying the symptoms were in fact =
caused by=20
the medication. We agree. Though an=20
expert is not required to use Amagical=20
words@ =
in=20
expressing her opinion and expert reports are not held to the same =
standard as summary judgment evidence, a plaintiff still must =
present an=20
expert opinion on each element required by the statute, including=20
causation. See Tex.=20
Civ. Prac. & Rem. Code Ann. ' =
74.351(r)(6); Bowie =
Mem=3Dl Hosp. v.=20
Wright, 79=20
S.W.3d 48, 53 (Tex. 2002); Palacios, 46=20
S.W.3d at 878B79. =20
A description of only a possibility of causation does not =
constitute a=20
good-faith effort to comply with the statute. See =
Bowie, 79=20
S.W.3d at 53 (holding that expert report opining about =
Athe=20
possibility of a better outcome@ =
was=20
insufficient to meet expert report statute); Estate of Allen v. =
Polly=20
Ryon Hosp. Auth., No. 01-04-00151-CV, 2005 WL 497291, at *3, 5 =
(Tex.=20
App.CHouston=20
[1st Dist.] Mar. 3, 2005, no pet.) (mem. op.) (finding that expert =
report=20
discussing what was Amore=20
likely@ =
or=20
Acould have=20
contributed@ =
constituted mere possibilities and thus were not statements of =
causation);=20
Hutchinson v. Montemayor, 144 S.W.3d 614, 617B18 (Tex.=20
App.CSan=20
Antonio 2004, no pet.) (concluding that expert report discussing =
that=20
injury Amay have=20
been avoided@ =
was=20
insufficient to meet statute); see also Smith v.=20
Landry=3Ds Crab=20
Shack, Inc., 183=20
S.W.3d 512, 514B15 (Tex.=20
App.CHouston=20
[14th Dist.] 2006, no pet.) (affirming summary judgment for =
defendant=20
because plaintiff=3Ds=20
expert=3Ds opinion=20
that her illness was Aconsistent=20
with@ =
food=20
poisoning constituted no evidence of causation). Dr.=20
Young=3Ds report=20
states only that Ms. Hieger=3Ds symptoms=20
are Aconsistent=20
with@ =
the known=20
side effects of the medication and thus expresses an opinion on a=20
possibility, not an ultimate opinion on causation. See =
Smith,=20
183 S.W.3d at 515 (stating that expert opinion that =
plaintiff=3Ds illness=20
was Aconsistent=20
with@ =
food=20
poisoning Adid not=20
express any ultimate opinion (in reasonable medical probability or =
otherwise) that [plaintiff=3Ds food=20
poisoning] was caused by the food she ate at the =
restaurant@). =20
Thus, we hold that the trial court abused its discretion in =
failing to=20
dismiss the case.
Accordingly, we =
sustain=20
Walgreen=3Ds sole issue and =
reverse the=20
trial court=3Ds judgment. We =
remand=20
with instructions for the trial court to dismiss this case with =
prejudice=20
and for other proceedings consistent with this opinion. =
See=20
Tex. Civ. Prac. =
& Rem.=20
Code Ann. ' 74.351(b) =
(Vernon Supp.=20
2006).
/s/ =20
Leslie B. Yates
Justice
Judgment rendered and =
Majority=20
and Dissenting Opinions filed October 11, 2007.
Panel consists of =
Justices=20
Yates, Frost, and Seymore (Seymore, J., =
dissenting).
Appellant notes that its name is=20
incorrectly listed as AWalgreen Company@ in the case caption.
The dissent is correct that under =
section=20
74.351(i), expert reports may be considered together in =
determining=20
whether the plaintiff has provided adequate expert opinion =
regarding the=20
standard of care, breach, and causation. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' 74.351(i) (Vernon Supp. 2006). =
However,=20
because Diane Ginsburg is not a physician, she is not qualified to =
give an=20
expert opinion regarding causation. See id.=20
' 74.403(a) (Vernon 2005) (stating that =
only a=20
physician is qualified to render causation opinions in health care =
liability claims); Randalls Food & Drugs, L.P. v. =
Kocurek, No.=20
14-05-01184-CV, 2006 WL 2771872, at *3 (Tex. App.CHouston [14th Dist.] Sept. 28, 2006, no =
pet.)=20
(mem. op.) (holding expert with master=3Ds degree in microbiology and Ph.D. in =
toxicology=20
not qualified to provide expert opinion on causation in =
pharmaceutical=20
misfill case because she was not a physician). Thus, =
although we=20
agree that Ginsburg=3Ds report can be considered regarding the =
other=20
statutory elements, we consider only Dr. Young=3Ds report in determining whether the =
Hiegers have=20
met their statutory obligation as to the element of=20
=
causation. |