Texas Judiciary Online - HTML Opinion

However, Dr. Marvin = further=20 argues that the facts recited in Dr. Martin=3Ds report contradict = Dr.=20 Martin=3Ds conclusion that, = under the=20 standard of care, Dr. Marvin should have arranged for a qualified=20 physician to conduct a physical examination. Dr. Marvin = contends=20 that Dr. Martin demonstrated only that, on February 2, Fithian was = experiencing an infection in her lungs and there are no facts = indicating=20 when peritonitis formed.^{^[9]} =20 Additionally, he notes Dr. Martin did not describe circumstances = such as a=20 CAT scan reflecting abnormalities in Fithian=3Ds abdomen or how an = infection=20 in her lungs could spread without detection by the CAT scan. = Dr.=20 Marvin contends the trial court must have made an=20 impermissible inference from information outside Dr.=20 Martin=3Ds expert report by = concluding=20 that Fithian suffered from peritonitis on February 2.

However, according to = Dr.=20 Martin, under the applicable standard of care, after observing = evidence of=20 post-operative infection, a qualified physician is required to = conduct a=20 physical examination to determine the potential source of the=20 infection. On February 2, Fithian=3Ds oral reports = regarding her=20 physical symptoms, her elevated white blood cell count, as well as = the CAT=20 scan and chest x-ray showing infiltrated lungs, atelectasis, and = probable=20 small pleural effusions, indicated she was experiencing = post-operative=20 infection. Additionally, Dr. Martin noted that an = intra-abdominal=20 infection may escape from abdominal lining and attack = extra-abdominal=20 tissues. Pursuant to the standard of care, when Fithian = presented=20 with evidence of an infection, Dr. Marvin, or another qualified = physician,=20 should have performed a physical exam. Dr. Martin opines = that Dr.=20 Marvin failed to comply with the applicable standard of care by = neglecting=20 to perform a physical exam.

After reviewing = Dr.=20 Martin=3Ds expert report, we = conclude=20 the trial court acted within its discretion by concluding that Dr. = Martin=20 provided a fair summary of the applicable standard of care and=20 sufficiently described the factual basis for his opinion that Dr. = Marvin=20 breached that standard. We overrule Dr. Marvin=3Ds second = issue.

The trial = court=3Ds order denying Dr.=20 Marvin=3Ds motion to dismiss = is=20 affirmed.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; = ; = =20

/s/ =20 Charles W. Seymore

Justice

Judgment rendered and = Memorandum Opinion filed July 1, 2008.

Panel consists of = Justices=20 Fowler, Frost, and Seymore.

^{^[1]} Fithian originally sued Dr. = Marvin and=20 Houston Community Hospital, Inc. d/b/a Renaissance Hospital, = Inc. =20 Subsequently, she non-suited her claims against Renaissance = Hospital,=20 Inc.

^{^[2]} The medical history outlined in = this=20 opinion is taken from Dr. Martin=3Ds report. We restate these facts solely = to provide=20 a background for disposition of this interlocutory appeal and for = no other=20 purpose.

^{^[3]} The collapse of all or part of a=20 lung.

^{^[4]} Excess fluid in the body cavity = surrounding=20 the lungs.

^{^[5]} A condition in which tissue = becomes firm=20 and solid rather than elastic due to the accumulation of fluids = and tissue=20 debris.

^{^[6]} An infection of the abdominal=20 cavity.

^{^[7]} The removal of dead, damaged, and = infected=20 tissue.

^{^[8]} Although his brief is somewhat = unclear, Dr.=20 Marvin seems to contend Dr. Martin=3Ds report was deficient because he failed = to=20 adequately explain the surgical procedures required to alleviate=20 Fithian=3Ds infection. We disagree. = Presumably,=20 Dr. Marvin contends that an expert, opining that a patient needs = surgery=20 to cure infection, lacks a factual basis for that opinion if he = fails to=20 describe the procedures for addressing the source of infection and = state=20 how the surgeon would treat any infection present at the time of = the=20 surgery. However, the source of Fithian=3Ds peritonitis was adequately described, = and we do=20 not agree that the statute requires Dr. Martin to detail the type = of=20 surgical procedures calculated to resolve all of = Fithian=3Ds physical injuries.

^{^[9]} Although Dr. Marvin raises this = specific=20 argument in the Acausation@ section of his brief, we address it = here because=20 this argument concerns the adequacy of the report regarding the = alleged=20 breach of the standard of=20 care.