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Affirmed and Memorandum Opinion filed April 8, = 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-07-00784-CV

____________

 

PATRICIA D.=20 SALVATO, M.D. AND DIVERSIFIED MEDICAL PRACTICES, = PA, = Appellants

 

V.

 

FAUSTINA=20 ANGELO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ARTHUR = LEON=20 ANGELO, JR., DECEASED, LUCAS ANGELO, SOFIA ANGELO, ARTHUR ANGELO, = SR. AND=20 CONNIE ANGELO, = Appellees

 

 

On Appeal from the = 281st District Court

Harris County, = Texas

Trial Court Cause = No. 2007-02024

 

 

M E M O R=20 A N D U M  O P I N I O N

In this=20 interlocutory appeal, appellants Patricia D. Salvato, M.D. and = Diversified=20 Medical Practices, PA (collectively ADr.=20 Salvato@) appeal=20 the trial court=3Ds denial=20 of a motion to dismiss a medical malpractice action.  See = Tex.=20 Civ. Prac. & Rem. Code Ann. ' = 74.351=20 (Vernon 2005).  Dr. Salvato contends the expert report served = by=20 appellees Faustina Angelo, individually and as representative of = the=20 estate of Arthur Leon Angelo, Jr., deceased, Lucas  Angelo, = Sofia=20 Angelo, Arthur Angelo, Sr., and Connie Angelo (collectively = AAngelo@) was=20 insufficient.  Finding no abuse of discretion, we = affirm.

I.=20 Background

On=20 December 14, 2000, Arthur Angelo, a body-builder with a history of = anabolic steroid use, came to Dr. Salvato for treatment of low=20 testosterone levels and generalized anxiety disorder.  Mr. = Angelo was=20 informed that he could receive prescriptions for anabolic steroids = only if=20 he joined a clinical study being conducted by Dr. Salvato focusing = on the=20 efficacy of anabolic steroids in HIV/AIDS patients suffering from = wasting=20 syndrome.  Mr. Angelo volunteered and was enrolled as a = member of the=20 control group in Dr. Salvato=3Ds clinical=20 study.  The initial study included the prescription of = anabolic=20 steroids and human growth hormone over a nine-month period, = beginning on=20 December 14, 2000.  Following the initial nine-month study, = Dr.=20 Salvato enrolled Mr. Angelo in extensions over the next several=20 years.  In addition to anabolic steroids and human growth = hormone,=20 Dr. Salvato also prescribed Valium to Mr. Angelo for=20 pain.    

Mr. Angelo=20 exhibited side effects of steroid use during the study, including=20 hypertension, testicular atrophy, worsening anxiety, and = insomnia. =20 Mr. Angelo also complained of chest discomfort and exhibited signs = of left=20 ventricular hypertrophy in ECG readings that showed elevated QRS = voltage=20 attributable to left ventricular hypertrophy.[1] =20 Dr. Salvato continued to prescribe anabolic steroids and human = growth=20 hormones to Mr. Angelo.

Mr. Angelo=20 last communicated with Dr. Salvato concerning his treatment = sometime=20 between March 1, 2004 and September 7, 2004.  Mr. Angelo was = found=20 dead in his home on October 31, 2004.  Mr. Angelo=3Ds death=20 was attributed to hypertensive and atherosclerotic cardiovascular=20 disease.[2] =20

Suit was=20 filed on January 11, 2007, contending that Dr. Salvato was = negligent in=20 prescribing medications which were inappropriate, unlawful, and = not in=20 accordance with the standards of medical care in and around Harris = County,=20 Texas at the time.  It was further alleged that these acts = and=20 omissions were the proximate cause of Arthur Angelo=3Ds=20 death.

Pursuant=20 to statute, an expert report from Nancy Campbell, M.D. was timely = served=20 on May 3, 2007.  See Tex. Civ. Prac. & Rem. Code = Ann.=20 '' = 74.351,=20 74.401 (Vernon 2005).  In that report, Dr. Campbell opined = that Dr.=20 Salvato departed from the normal standard of care by (1) failing = to obtain=20 IRB approval[3]=20 and continuing review of the clinical study; (2) failing to = maintain an=20 adverse event log; (3) failing to maintain records of proper = oversight and=20 monitoring by another party; (4) continuing to prescribe anabolic = steroids=20 for more than three years despite the appearance of known side = effects of=20 anabolic steroid use in Mr. Angelo=3Ds=20 examinations; (5) failing to conduct necessary lab work related to = known=20 side effects of anabolic steroid use; and (6) failing to conduct = further=20 tests when medical examinations indicated and Mr. Angelo reported = signs of=20 heart disease.  Dr. Campbell further opined that Dr.=20 Salvato=3Ds=20 continued prescription of anabolic steroids led to cardiomegaly[4]=20 with left ventricular hypertrophy and stenosis of 70% of the left = anterior=20 descending coronary artery, which in turn led to Mr. = Angelo=3Ds death=20 from hypertensive and atherosclerotic cardiovascular = disease.

Dr.=20 Salvato moved to dismiss Angelo=3Ds suit in=20 trial court under section 74.351(b).[5]  =20 The trial court denied the motion to dismiss.

Dr.=20 Salvato contends on appeal that Dr. Campbell=3Ds expert=20 report does not satisfy sections 74.351 and 74.401.  Dr. = Salvato=20 contends that (1) Dr. Campbell is not qualified to opine on key = issues in=20 this case; and (2) Dr. Campbell=3Ds report=20 is deficient because it is conclusory with regard to the standard = of care=20 and causation.

II.=20 Appellate Jurisdiction =

We first=20 consider this court=3Ds=20 appellate jurisdiction.  This is a question of law reviewed = de=20 novo.  State v. Holland, 221 S.W.3d 639, 642 (Tex. = 2007). 

When, as=20 here, a trial court has not signed a final and appealable order, = we may=20 not proceed unless an interlocutory appeal is allowed.  = Tex.=20 A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 = (Tex.=20 2007).  When reviewing a statutory grant of interlocutory = appellate=20 jurisdiction, we look to the legislature=3Ds intent=20 as expressed in the statute=3Ds plain=20 words and consider disputed provisions in context.  See=20 id.; Tex. Dep=3Dt of=20 Transp. v. Needham, 82=20 S.W.3d 314, 318 (Tex. 2002).  Civil Practice and Remedies = Code=20 section 51.014 governs appeals from interlocutory orders; it = should be=20 strictly construed as Aa narrow=20 exception to the general rule that only final judgments and orders = are=20 appealable.@ =20 Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 = (Tex.=20 2001).

Section=20 51.014(a)(9) allows an immediate appeal from an interlocutory = order that=20 Adenies all=20 or part of the relief sought by motion under section 74.351(b), = except=20 that an appeal may not be taken from an order granting an = extension under=20 Section 74.351.@[6]  =20 Tex. Civ. Prac. & Rem. Code Ann. ' = 51.014(a)(9) (Vernon Supp. 2007).  In turn, section 74.351(b) = states:=20

(b) If, as to a = defendant=20 physician or health care provider, an expert report has not been = served=20 within the period specified by Subsection (a), the court, on the = motion of=20 the affected physician or health care provider, shall, subject to=20 Subsection (c), enter an order that:

(1) awards to the = affected=20 physician or health care provider reasonable attorney=3Ds fees and costs of = court=20 incurred by the physician or health care provider; and

(2) dismisses the = claim with=20 respect to the physician or health care provider, with prejudice = to the=20 refiling of the claim.

 

Tex. Civ.=20 Prac. & Rem. Code Ann. ' = 74.351(b)=20 (Vernon Supp. 2007).

Angelo=20 argues that an interlocutory appeal is not available for the = denial of Dr.=20 Salvato=3Ds motion=20 to dismiss.  Angelo seizes on this statement from Dr.=20 Salvato=3Ds brief:=20 AThis=20 interlocutory appeal seeks relief from the August 6, 2007 denial = of=20 Appellants=3D = Motion to=20 Dismiss filed pursuant to Tex. Civ. Prac. & Rem. Code = ' = 74.351(c)=20 for failure to serve a competent expert report as required by = ' = 74.351(a)=20 in this healthcare liability claim.@ =20 Based on this statement, Angelo contends that Dr. Salvato = challenged the=20 sufficiency of Dr. Campbell=3Ds report=20 only under section 74.351(c). Angelo seeks dismissal of this = appeal,=20 arguing that the interlocutory appeal statute authorizes immediate = appellate review of an order denying dismissal under section = 74.351(b)=20 based on the failure to file a report B = but not=20 an order denying dismissal under  section 74.351(c) based on = the=20 filing of a deficient report.

Angelo=3Ds argument=20 fails for two reasons.  First, Dr. Salvato specifically = invoked=20 section 74.351(b) in the motion to dismiss filed in the trial = court. =20 Second, this court already has held that the denial of a motion to = dismiss=20 based upon an assertedly deficient report under section 74.351(c) = is=20 appealable under section 51.014(a)(9), reasoning that A[a]n=20 expert report >has not=20 been served, for purposes of section 74.351(b), if elements of the = report=20 are found to be deficient.=3D@ = Group=20 v. Vicento, 164 S.W.3d 724, 726 n.2 (Tex. App.CHouston=20 [14th Dist.] 2005, pet. filed).  Therefore, this court has=20 jurisdiction to review the denial of Dr. Salvato=3Ds motion=20 to dismiss a timely served but allegedly deficient expert = report.[7]

III.=20 Sufficiency of the Expert Report

A. =20 Standard of Review

Dr.=20 Salvato contends the trial court erred in failing to dismiss the = case with=20 prejudice because Angelo=3Ds expert=20 report from Dr. Campbell is deficient.  Dr. Salvato contends = the=20 report is deficient because Dr. Campbell is not qualified to opine = in this=20 case, and because portions of her expert report are conclusory.=20

We review=20 a trial court=3Ds=20 determination under section 74.351 for abuse of discretion. =20 Larson v. Dowing, 197 S.W.3d 303, 304-305 (Tex. 2006);=20 Mem=3Dl Herman=20 Healthcare Sys. v. Burrell, 230 S.W.3d=20 755, 757 (Tex. App.CHouston=20 [14th Dist.] 2007, no pet.).  Similarly, we review a trial=20 court=3Ds ruling=20 regarding the adequacy of an expert report for abuse of = discretion. =20 Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 = S.W.3d=20 873, 877 (Tex. 2001); Group, 164 S.W.3d at 727.  A = trial court=20 commits an abuse of discretion when it acts in an arbitrary or=20 unreasonable manner without reference to guiding rules or=20 principles.  See Dowing, 197 S.W.3d at 304-305; = Jernigan v.=20 Langley, 195 S.W.3d 91, 94 (Tex. 2006).  Under this = standard, an=20 appellate court may not substitute its judgment for that of the = trial=20 court.  Gray v. CHCA Bayshore L.P., 189 S.W.3d = 855, 858=20 (Tex. App.CHouston=20 [1st Dist.] 2006, no pet.).

Analysis=20 of expert qualifications under section 74.351 is limited to the = four=20 corners of the expert=3Ds report=20 and the expert=3Ds=20 curriculum vitae.  See Palacios, 46 S.W.3d at 878;=20 Mem=3Dl Herman=20 Healthcare Sys., 230=20 S.W.3d at 758; Gray, 189 S.W.3d at 859.  = Qualifications=20 cannot be inferred, but must be present in the expert = report.  See=20 Olveda v. Supulveda, 141 S.W.3d 679, 683 (Tex. = App.CSan=20 Antonio 2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, = 19=20 (Tex. App.CDallas=20 2003, pet. denied).  To be qualified to provide opinion = testimony=20 regarding whether a physician departed from the accepted standard = of=20 health care, an expert must satisfy section 74.401.  See = Tex.=20 Civ. Prac. & Rem. Code Ann. ' = 74.351(r)(5)(A) (Vernon 2005).  Section 74.401 = provides:

(a) In a suit = involving a=20 health care liability claim against a physician for injury to or = death of=20 a patient, a person may qualify as an expert witness on the issue = of=20 whether the physician departed from accepted standards of medical = care=20 only if the person is a physician who:

(1) is practicing = medicine at=20 the time such testimony is given or was practicing medicine at the = time=20 the claim arose;

(2) has knowledge = of accepted=20 standards of medical care for the diagnosis, care, or treatment of = the=20 illness, injury, or condition involved in the claim; = and

(3) is qualified on = the basis=20 of training or experience to offer an expert opinion regarding = those=20 accepted standards of medical care.

 

Tex. Civ.=20 Prac. & Rem. Code Ann. ' = 74.401(a)=20 (Vernon 2005).

Under=20 section 74.351, health care liability claimants must provide an = expert=20 report to the defendant no later than 120 days after filing the = original=20 petition.  See Tex. Civ. Prac. & Rem. Code Ann.=20 ' = 74.351(a)=20 (Vernon Supp. 2007).  A defendant may file a motion = challenging the=20 adequacy of the report; the trial court  should grant the = motion only=20 when it appears that the report does not represent a good faith = effort to=20 comply with the statutory definition of an expert report.  = See=20 Tex. Civ. Prac. & Rem. Code Ann. ' = 74.351(l)=20 (Vernon Supp. 2007).

When=20 determining if a good faith effort has been made, the trial court = is=20 limited to the four corners of the report and cannot consider = extrinsic=20 evidence.  See Palacios, 46 S.W.3d at 878;=20 Mem=3Dl Herman=20 Healthcare Sys., 230=20 S.W.3d at 758; Gray, 189 S.W.3d at 859 (Ain=20 assessing the report=3Ds=20 sufficiency, the trial court may not draw any inferences, and must = instead=20 rely exclusively on the information contained within the=20 report=3Ds four=20 corners@). =20 An expert report must provide a fair summary of the = expert=3Ds opinion=20 regarding (1) the applicable standard of care; (2) the manner in = which the=20 care provided failed to meet that standard; and  (3) the = causal=20 relationship between the failure and the injury, harm or damages=20 claimed.  See Tex. Civ. Prac. & Rem. Code Ann.=20 ' = 74.351(r)(6) (Vernon Supp. 2007); Patel, 237 S.W.3d at = 904. =20

To satisfy=20 these standards, the expert report must include enough information = to=20 satisfy two requirements.  The report must (1) inform the = defendant=20 of the specific conduct the plaintiff has called into question; = and (2)=20 provide a basis for the trial court to conclude the claims are=20 meritorious.  Palacios, 46 S.W.3d at 879; Patel, = 237=20 S.W.3d at 904.  AA report=20 merely expressing the expert=3Ds=20 conclusions concerning the standard of care, breach, and causation = fails=20 to fulfill these purposes.@ = Patel,=20 237 S.W.3d at 904 (citing Palacios, 46 S.W.3d at = 879). =20 The expert=3Ds report=20 need not identify all evidence necessary to litigate the merits of = the=20 plaintiff=3Ds case,=20 but it must link the expert=3Ds opinions=20 on these elements to the facts in the case.  Wright, = 79 S.W.3d=20 at 52; Palacios, 46 S.W.3d at 879. 

B. =20 Dr. Campbell=3Ds=20 Qualifications

Angelo=20 contends that Dr. Salvato was negligent in prescribing anabolic = steroids=20 to Mr. Angelo as part of her clinical study of the effects of = anabolic=20 steroids on HIV/AIDS patients suffering from wasting = syndrome. =20 Angelo further contends that these acts and omissions were the = proximate=20 cause of Mr. Angelo=3Ds death.=20 Angelo relies on Dr. Campbell to support these = contentions.  =20

Angelo=20 retained Dr. Campbell to review the medial records from Dr.=20 Salvato=3Ds office,=20 the autopsy report from the medical examiner, and the death=20 certificate.  Based upon these records, and her experience, = training,=20 knowledge, and qualifications as a physician, Dr. Campbell opined = that Dr.=20 Salvato departed from the normal standard of care by (1) failing = to obtain=20 IRB approval and continuing review of the clinical study; (2) = failing to=20 maintain an adverse event log; (3) failing to maintain records of = proper=20 oversight and monitoring by another party; (4) continuing to = prescribe=20 anabolic steroids to Mr. Angelo for more than 40 months despite = the=20 appearance of known side effects of anabolic steroid use; (5) = failing to=20 conduct necessary lab work related to known side-effects of = anabolic=20 steroid use; and (6) failing to conduct further tests when medical = examinations indicated and Mr. Angelo reported signs of heart=20 disease.  Dr. Campbell further opined that Dr. = Salvato=3Ds=20 continued prescription of anabolic steroids led to cardiomegaly = with left=20 ventricular hypertrophy and stenosis of 70% of the left anterior=20 descending coronary artery; this in turn caused Mr. = Angelo=3Ds death=20 from hypertensive and atherosclerotic cardiovascular = disease.

Under=20 section 74.401(a), only a physician can opine as an expert against = another=20 physician.  It does not follow, however, that every physician = is a=20 qualified expert. See Broders v. Heise, 924 S.W.2d 148, 152 = (Tex.=20 1996).  While Aexpert=20 qualifications should not be too narrowly drawn . . . given the = increasing=20 specialization and technical nature of medicine, there is no = validity, if=20 there ever was, to the notion that every licensed medical doctor = should be=20 automatically qualified to testify as an expert on every medical=20 question.@ =20 Larson, 197 S.W.3d at 305 (citing Broders, 924 = S.W.2d at=20 152).  However, when a subject matter is common to and = equally=20 recognized in all fields of practice, any physician familiar with = the=20 subject may testify as to the standard of care.  See Keo = v.=20 Vu, 76 S.W.3d 725, 732 (Tex. App.CHouston=20 [1st Dist.] 2002, pet. denied).  Likewise, where two fields = of=20 medicine overlap, and a procedure is common to more than one = field, a=20 physician in one of these fields may opine as to the standard of = care for=20 that procedure in the other field.  Id. =20

Dr.=20 Campbell=3Ds=20 curriculum vitae recites that she spent three years in residency = at=20 Memorial Hospital Southwest, and that she has been board certified = in=20 family practice for more than 13 years.  She states that her = opinions=20 in the report are based upon her experience, training, knowledge, = and=20 qualifications as a physician.  As a board certified family=20 practitioner who has been an active staff member of Memorial = Hospital=20 Southwest for more than a decade,  has been Medical Director = of=20 Brenco Research, and has conducted more than 100 clinical studies, = Dr.=20 Campbell  has experience in treating patients with a wide = range of=20 maladies.  Dr. Campbell described her knowledge regarding the = standard of care governing clinical studies like the one conducted = by Dr.=20 Salvato, and regarding the monitoring of cardiovascular health for = each=20 participant as part of the overseeing physician=3Ds=20 responsibility. We cannot say that the trial court abused its = discretion=20 in concluding that Dr. Campbell demonstrated sufficient = qualifications to=20 opine about standards of care in connection with monitoring the = health,=20 including cardiovascular health, of patients participating in = clinical=20 studies.

Dr.=20 Salvato concedes that Dr. Campbell may be qualified to opine about = the=20 standard of care governing Dr. Salvato=3Ds research=20 methodology and findings.  Dr. Salvato nonetheless maintains = that Dr.=20 Campbell is not qualified to opine about standards of care = governing the=20 prescribing of anabolic steroids or about cardiovascular = disease. =20 Dr. Salvato contends that Dr. Campbell is not a cardiologist and = lacks=20 other experience that would qualify her to give expert testimony = on the=20 treatment of cardiovascular disease; Dr. Salvato also emphasizes = that Dr.=20 Campbell is not an endocrinologist, and asserts that she is not = otherwise=20 qualified to testify about the side effects of anabolic = steroids. =20 While Dr. Salvato concedes that some family practitioners might be = qualified to opine about steroid use or cardiovascular disease, = Dr.=20 Salvato contends that Dr. Campbell=3Ds=20 curriculum vita and report fail to establish her particular = experience or=20 qualifications to opine on these areas of medical=20 expertise.      Dr. Salvato=3Ds=20 contentions fall short of establishing an abuse of = discretion. =20 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.@ =20 Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.CHouston=20 [14th Dist.] 1999, no pet.).

The facts=20 in Blan are instructive.  The physician at issue = properly was=20 able to opine about the standard of care for a stroke patient, and = was not=20 purporting to offer expert medical opinions peculiar to the field = of=20 cardiology.  For that reason, the trial court in Blan = abused=20 its discretion by excluding the expert=3Ds=20 testimony about the standard of care when his testimony concerned = a matter=20 common to all physicians.  Id.; see also McKowen v. = Ragston, __ S.W.3d __, 2007 WL79330, at *5 (Tex. = App.CHouston=20 [1st Dist.] Jan. 11, 2007, no pet.) (when Athe=20 subject of inquiry is common to and equally recognized and = developed in=20 all fields of practice, then any physician familiar with the = subject may=20 testify as to standard of care@)=20 (citing Sears v. Cooper, 574 S.W.2d 612, 614 (Tex. = App.CHouston=20 [14th Dist.] 1978, writ ref=3Dd =20 n.r.e.)). 

Here, the=20 trial court acted within its discretion by applying this teaching = and=20 concluding that Dr. Campbell is qualified to opine about specific = areas=20 B = such as=20 the conduct of a clinical study and cardiac health B = that are=20 common to multiple fields of practice.

Dr.=20 Campbell=3Ds=20 curriculum vitae and report also provide a reasonable basis for = the trial=20 court to have concluded that Dr. Campbell is qualified to opine = about the=20 effects of hormones.  Dr. Salvato acknowledged at oral = argument that=20 one need not necessarily be an endocrinologist to address issues = regarding=20 the effects of hormones.  Dr. Campbell=3Ds =20 curriculum vitae demonstrates experience with clinical studies = involving=20 hormone-related research.  These studies include research = regarding=20 the prescription of Eclomiphene to treat low testosterone in men = and=20 parathyroid hormone studies in women.  Thus, while Dr. = Campbell is=20 not an endocrinologist, she provides sufficient evidence of her = knowledge=20 in connection with studies prescribing and monitoring hormones in=20 patients.  See McKowen , __ S.W.3d __, 2007 WL79330, = at *5=20 (AA medical=20 witness from one practice area may be qualified to testify if he = has=20 practical knowledge of what is customarily done by other = practitioners=20 under circumstances similar to those at issue in the = case@);=20 Blan, 7 S.W.3d at 745 (the emphasis is on the = plaintiff=3Ds=20 condition, not the defendant=3Ds=20 expertise, and physician expert need not be a specialist to = opine).=20

The trial=20 court found that Dr. Campbell is qualified to opine as an expert = on=20 medical treatment of Mr. Angelo.  The trial court=3Ds decision=20 comported with guiding principles and rules governing sufficiency = of=20 expert reports.  The trial court acted within its = discretion. =20 See Larson, 197 S.W.3d at 304-05 (Aexpert=20 qualifications should not be too narrowly drawn;@ = in a=20 close call, the decision as to whether expert testimony qualifies = must go=20 to the trial court).

We=20 overrule Dr. Salvato=3Ds first=20 issue.

C. =20 Standard of Care and Causation

Dr.=20 Salvato argues next that the expert report is deficient.  Dr. = Salvato=20 argues that Dr. Campbell=3Ds report=20 does not set forth the standard of care for conducting a clinical = study or=20 for prescribing anabolic steroids.  Dr. Salvato claims that = Dr.=20 Campbell=3Ds report=20 does not Aconvincingly=20 tie the alleged departure from the standard of care to specific = facts of=20 the case.@  Dr.=20 Salvato argues that because Dr. Campbell=3Ds report=20 does not set forth a standard of review, it does not inform Dr. = Salvato as=20 to how he breached that standard of care.  Dr. Salvato also = contends=20 that Dr. Campbell=3Ds report=20 does not link the allegations of negligence to the damages Angelo=20 claims.  Dr. Salvato therefore concludes that Dr.=20 Campbell=3Ds opinions=20 concerning causation are impermissibly = conclusory.

An expert=20 report need not marshal all of the plaintiff=3Ds proof,=20 but it must include the expert=3Ds opinions=20 on the three statutory elements B = standard=20 of care, breach, and causation. Gray, 189 S.W.3d at=20 859.  Likewise, a trial court shall grant a motion = challenging the=20 adequacy of a report only if it appears to the court that the = report does=20 not represent a good faith effort to comply with the definition of = an=20 expert report in section 74.351(r)(6).  See Tex. Civ. = Prac.=20 & Rem. Code ' = 74.351(l)=20 (Vernon Supp. 2007); Palacios, 46 S.W.3d at 879 (if any of = the=20 three statutory elements are missing, the report is not a good = faith=20 effort).  An expert report must provide enough information to = fulfill=20 two purposes to constitute an objective good faith effort.  = The=20 report must inform the defendant of the specific conduct the = plaintiff has=20 called into question, and it must provide a basis for the trial = judge to=20 conclude the claims have merit.  See Palacios, 46 = S.W.3d at=20 878-79; Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, = 916-17=20 (Tex. App.CDallas=20 2007, pet. filed); Gray, 189 S.W.3d at 859. =20

Applying=20 these precepts in light of the standard of review, we conclude = that the=20 trial court acted within its discretion in concluding that Dr.=20 Campbell=3Ds report=20 provided sufficient specificity regarding the standard of care and = causation.  

Dr.=20 Campbell=3Ds report=20 addresses the standard of care required for a clinical study in = which the=20 physician is prescribing a medication with known side = effects.  Dr.=20 Campbell describes the proper conduct of a clinical study, noting = the=20 FDA=3Ds=20 requirement of IRB approval of any clinical study; the need for = oversight;=20 the need to monitor the patient=3Ds health;=20 the need to record potential adverse effects; the preeminence of = patient=20 health throughout; the need to determine the cause of apparent = adverse=20 health indicators; and the need to withdraw a patient from a study = when=20 that patient demonstrates indicators of adverse health.  Dr. = Campbell=20 opines as to the standard of care required for any doctor = prescribing=20 medicine to a patient, especially with heart disease symptoms like = those=20 exhibited by Mr. Angelo, including the need for further tests, = proper=20 diagnosis, and cessation of the test medication.

Dr.=20 Campbell opined that Dr. Salvato=3Ds=20 continued prescription of anabolic steroids when Mr. Angelo was=20 experiencing Aknown=20 toxic side-effects of those steroids@ = was a=20 breach of the standard of care for a doctor conducting a clinical = study=20 and having the obligation to put the health of the participant=20 first.  Dr. Campbell=3Ds report=20 gives Dr. Salvato adequate notice of the alleged breaches of the = standard=20 of care in her treatment of Mr. Angelo during his participation in = Dr.=20 Salvato=3Ds clinical=20 study.  See Palacios, 46 S.W.3d at 878-79; = Biggs, 237=20 S.W.3d at 916-17; Gray, 189 S.W.3d at=20 859.

Dr.=20 Campbell=3Ds report=20 does not state conclusions without reference to the underlying = facts upon=20 which she has premised her opinion.  Patel, 237 S.W.3d = at 904=20 (citing Palacios, 46 S.W.3d at 879).  She links each = element=20 of the standard of care in the treatment of a participant in a = clinical=20 study to the facts of the case, noting where and how Dr. Salvato = departed=20 from that standard of care. Dr. Campbell opined that Dr. Salvato = failed to=20 correctly monitor Mr. Angelo.  As an example, she focused on = Dr.=20 Salvato=3Ds failure=20 to monitor Mr. Angelo=3Ds lipid=20 levels in light of the known increase in lipid levels associated = with=20 anabolic steroid use that were noted in Dr. Salvato=3Ds=20 notes.  Dr. Campbell opined that Dr. Salvato assessed Mr.=20 Angelo=3Ds lipid=20 levels in 2001, but then failed to do so for the following three=20 years.  Dr. Campbell noted that Dr. Salvato failed to monitor = lipid=20 levels even while aware that it was important for cardiac health = to watch=20 them.  Dr. Campbell=3Ds report=20 noted that Mr. Angelo suffered chest pains, elevated blood = pressure, and=20 increased QRS voltage, all symptoms of heart disease.  Dr.=20 Salvato=3Ds notes=20 also revealed that Mr. Angelo complained of worsening anxiety, = insomnia,=20 and testicular atrophy, all known side effects of anabolic steroid = abuse.  Dr. Campbell noted that no adverse event log was = maintained;=20 that symptoms of cardiac disease were overlooked or mis-diagnosed; = and=20 that Mr. Angelo was prescribed additional steroids.  Even = when Mr.=20 Angelo was diagnosed with hypertension, Dr. Salvato continued to = prescribe=20 anabolic steroids to Mr. Angelo in violation of the standard of = care=20 associated with a clinical study and the prescription of a drug. = The trial=20 court acted within its discretion in concluding that these = opinions=20 suffice to identify specific conduct and to provide a basis for = concluding=20 the claims have merit.

As to=20 causation, Dr. Campbell opines that the warning signs of cardiac = disease=20 should have led Dr. Salvato to (1) exclude Mr. Angelo from the = study; (2)=20 cease prescribing anabolic steroids to Mr. Angelo once adverse = health=20 indicators were noted; and (3) conduct further cardiovascular = evaluation=20 to properly diagnose left ventricular hypertrophy, an = abnormality =20 related to the abuse of anabolic steroids. Dr. Campbell opines = that these=20 failures, and the continued prescription of anabolic steroids, = caused the=20 left ventricular hypertrophy and related chronic hypertension that = proximately caused Mr. Angelo=3Ds death=20 B = which the=20 autopsy attributed to cardiac disease. According to Dr.=20 Campbell=3Ds report,=20 Dr. Salvato failed to accurately monitor Mr. Angelo=3Ds health=20 and withdraw him from the study given the harm that the anabolic = steroids=20 were causing.

The trial=20 court found that Dr. Campbell=3Ds report=20 was sufficient to apprise Dr. Salvato of the specific conduct = Angelo=20 alleges was a departure from the standard of care, and the basis = for=20 establishing a causal link between the departures and Mr.=20 Angelo=3Ds death.=20 Gray, 189 S.W.3d at 859.  The trial = court=3Ds decision=20 was within the scope of its discretion. Larson, 197 S.W.3d = at=20 304-05; see also Mem=3Dl Herman=20 Healthcare Sys., 230=20 S.W.3d at 757.

We=20 overrule Dr. Salvato=3Ds second=20 issue.

IV.=20 Conclusion

The trial=20 court found that Dr. Campbell=3Ds report,=20 coupled with her curriculum vitae, provided a sufficient basis to = conclude=20 she is qualified to offer expert testimony in this case. The trial = court=20 concluded that the requisite specificity regarding standard of = care and=20 causation are present in Dr. Campbell=3Ds=20 report.  The trial court acted within its discretion in so=20 doing.

The trial=20 court=3Ds order is=20 affirmed.

 

 

/s/       =20 William J. Boyce

Justice

 

Judgment rendered and = Memorandum Opinion filed April 8, 2008.

Panel consists of = Chief Justice=20 Hedges, and Justices Anderson and Boyce.


[1]  The QRS complex is a structure on = the=20 electrocardiogram (ECG) that corresponds to the Q, R, and S waves=20 representing the depolarization of the ventricles. A proper ECG = reading=20 can measure the rate and regularity of heartbeats, as well as = determine=20 the size and position of the chambers.  This enables a = practitioner=20 to assess the presence of any damage to the heart and the effects = of drugs=20 or devices to regulate the heart.  Elevated QRS readings have = been=20 linked to left ventricular hypertrophy B a condition that may occur naturally = but also has=20 been linked to certain conditions.  Left ventricular = hypertrophy is a=20 thickening of the muscle on the left ventricle of the heart, and = has been=20 linked to aortic stenosis (a malfunction of the valve between the = left=20 ventricle and the aorta which impedes blood flow); aortic = insufficiency=20 (a  malfunction of the valve between the left ventricle and = the aorta=20 which allows blood to flow in the wrong direction); and = hypertension=20 (chronic high blood pressure).

[2]  Atherosclerotic=20 cardiovascular disease is a = disease=20 that affects the arterial blood vessels, often referred to as = Ahardening@ or Afurring@ of the arteries.

[3]  All clinical studies are required = to have=20 Institutional Review Board (IRB) approval before commencing.  = Universities and medical establishments that conduct clinical = trials=20 appoint knowledgeable individuals to sit on these boards and to = screen all=20 trials to insure that they are ethical, protective of the health = of the=20 individuals, and conducted in accordance with solid methodological = standards.

[4]  Cardiomegaly is a medical = condition wherein=20 the heart is enlarged.

[5]  Defendants=3D motion to dismiss, filed June 7, 2007, = sought=20 dismissal pursuant to Texas Civil = Practice and=20 Remedies Code section 74.351(b); the motion did not assert that = Angelo=20 failed to file a report, but rather that Angelo failed to file a=20 Acompetent expert = report by a=20 qualified expert.@   

[6]  Section = 51.014(a)(10) also=20 allows an interlocutory appeal from the granting of a motion to = dismiss=20 under section 74.351(l), = which=20 provides that a court Ashall grant a motion challenging the = adequacy of=20 an expert report only if it appears to the court, after hearing, = that the=20 report does not represents an objective good faith effort to = comply with=20 the definition of an expert report in Subsection = (r)(6).@ See = Tex. Civ. Prac. = & Rem.=20 Code ' 74.351(l) (Vernon = Supp.=20 2007).

[7]  The following decisions adopt=20 Group=3Ds reasoning or employ similar = reasoning:=20 CHCA Mainland, L.P. v. Burkhalter, 228 S.W.3d 221, = 224B25 (Tex. App.CHouston [1st Dist.] 2007, no pet.); = HealthSouth=20 Corp. v. Searcy, 227 S.W.3d 907, 908 (Tex. App.CDallas 2007, no pet.); Sides v. = Guevara,=20 ___ S.W.3d ___, 2007 WL 2456882, at *2 (Tex. App.CEl Paso Aug. 30, 2007, no pet.).  = Other=20 decisions conclude there is no appellate jurisdiction under these=20 circumstances.  See, e.g., Jain v. Stafford, 214 = S.W.3d 94, 97=20 (Tex. App.CFort Worth 2006, no pet.); Lewis v.=20 Funderburk, 191 S.W.3d 756, 759 (Tex. App.CWaco , 2006, pet. granted). The = Texas=20 Supreme Court has not decided this issue, which is pending before = the=20 court in=20 Funderburk.

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