Lockhart, MD v. Guyden (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Sharp)  
(ILA, denial of motion to dismiss found error, sufficiency of expert report in
HCLC suit, wrongful death)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Sharp    
Before Justices Taft, Bland and Sharp  
01-08-00983-CV  Christopher Lockhart, M.D. v. Normell W. Guyden, Individually and as Heir to the
Estate of Natalie J. Guyden, Deceased  
Appeal from 113th District Court of Harris County
Trial Court Judge:
Hon. Patricia Hancock

MEMORANDUM OPINION

     The issue in this interlocutory appeal is whether the trial court abused its discretion by denying a
doctor’s motion to dismiss health-care-liability claims. Appellant Christopher Lockhart, M.D. moved to
dismiss appellee Normell W. Guyden’s medical-malpractice and wrongful-death claims on the ground
that Guyden did not file a sufficient expert report.  
                         
Guyden is suing individually and as heir to the Estate of Natalie J. Guyden,deceased.


Close See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l) (Vernon Supp. 2008). The trial court
denied the motion to dismiss. We reverse.

     For the purposes of reviewing the sufficiency of the expert report, the relevant facts as stated in the
report are that the patient, Natalie Guyden, was taken to a hospital in Denton, Texas after she nearly
drowned. Natalie was treated at the hospital for acute respiratory and renal failure, pneumonia,
diabetes mellitus, and anoxic encephalopathy. After almost two months in the hospital, Natalie’s
condition generally improved; however, she developed a urinary tract infection (UTI).

     Notwithstanding the infection, on June 15, 2006, Natalie was transferred by ambulance to a long-
term-care facility in Houston. She arrived at Courtyard Convalescent Center at approximately noon on
June 15. By 10:30 pm., her fever was 101.2○ and there was blood in her urine. By midnight, her
temperature rose to 102.8○, which rose further by 1:30 a.m. on June 16 to 103.7○. The nursing notes
indicated that Dr. Lockhart’s answering service was called at that time and again at 2:50 a.m.
concerning Natalie’s temperature.

     The nursing notes for 4:00 a.m. further indicated that Dr. Lockhart could not be contacted. Natalie
refused to eat her breakfast and lunch, and when her family arrived around 12:15 p.m., Natalie’s
mother said Natalie “didn’t look right.” Natalie was not breathing, and the staff began cardiopulmonary
resuscitation. Paramedics were called, and they arrived at 1:25 p.m. The paramedics pronounced
Natalie dead at 1:30 p.m. Dr. Lockhart signed the death certificate, which listed the cause of death as
urosepsis.

     The relevant portion of the expert report follows:

The standards of medical care applicable under the circumstances beginning on or around the hours of
0130 on June 16, 2006 dictate that a physician has the duty to timely respond to an “after-office-hours”
page because it may be a result of an acute deterioration of his long-term care hospitalized patient’s
condition. The standards of care applicable under the circumstances beginning on or around the hours
of 0200 on June 16, 2006 dictate that a physician has the duty to timely evaluate and treat his long
term care hospitalized patient for sepsis. The standards of medical care applicable under the
circumstances beginning on or around the hours of 0230 on June 16, 2006 dictate that a physician has
the duty to timely transfer his long term care hospitalized patient for the treatment of urosepsis.

The standards of medical care applicable under the circumstances, including the fact that as an
accepting physician Dr. Lockhart knew or should have known that Natalie Guyden had a UTI beginning
on or around the hours of 0130 on June 16, 2006 when paged by the Center’s staff dictate that Dr.
Lockhart had the duty to timely respond within approximately 30 minutes in order to evaluate and treat
the acute deterioration of the patient’s condition. The standards of medical care applicable under the
circumstances beginning on or around the hours of 0200 on June 16, 2006 dictate that Dr. Lockhart
had the duty to evaluate and treat Natalie for sepsis. The standards of medical care applicable under
the circumstances beginning on or around the hours of 0230 on June 16, 2006 dictate that Dr.
Lockhart had the duty to consider timely transfer Natalie to an acute care facility for the treatment of
urosepsis.

In contrast, the medical records document that Dr. Lockhart did not timely respond to the page by the
Center’s staff. There is no evidence that he responded to any of the calls made to him by the staff at
the Center on June 16, 2006. Consequently Dr. Lockhart did not timely evaluate and treat Natalie for
sepsis nor timely transfer Natalie to an acute care facility. Thus, it is my medical professional opinion
that Dr. Lockhart’s medical care with respect to the treatment of Natalie’s UTI represents medical
negligence.

Furthermore based on my qualifications discussed above and in my CV, the medical science discussed
in the “general section” above, the medical facts summarized above, that but for the negligence of Dr.
Lockhart as set forth in this section, Natalie Guyden would not have suffered from and died from
progressive urosepsis. That is, more likely than not had Dr. Lockhart timely and appropriately
responded to the multiple pages allegedly made by the nursing staff at the Center after Natalie Guyden’
s condition had acutely changed in the early morning hours of June 16, 2006, the patient would have
been transferred in a timely manner to an acute care facility for the appropriate and indicated treatment
of her urosepsis as detailed above in the “General” section and elsewhere. Consequently, Natalie
Guyden would not have died from urosepsis. Thus, it is my professional opinion to a reasonable degree
of medical probability that Dr. Lockhart’s negligent medical care was a proximate cause of Natalie
Guyden’s injuries from a urinary tract infection and her death from urosepsis.

     Lockhart’s motion to dismiss was based on the following objections to the expert report: (1) it does
not expressly address monitoring Natalie’s “worsening condition, chest retractions, pulse rate, and
oxygen saturations”; (2) it assumes that the pages to Dr. Lockhart’s answering service were forwarded
to Dr. Lockhart and received by him; (3) it assumes that a 30-minute response time to a page is
required; (4) it does not establish that the medical records from the Denton hospital indicated that
Natalie had a UTI when she was discharged and transferred; (5) it speculates that if Lockhart had
diagnosed Natalie in the early morning of June 16, that (a) Natalie would have been admitted to an
acute-care facility, (b) she was stable enough to be transferred, and (c) acute-care treatment would
have saved Natalie’s life; and (6) it does not address whether Natalie was 50% or more likely to die,
notwithstanding any action by Dr. Lockhart. After a nonevidentiary hearing, the trial court denied
Lockhart’s motion to dismiss.

     Lockhart’s single issue on appeal is that the trial court abused its discretion in denying the motion
to dismiss because Normell Guyden did not file an expert report that was an objective, good-faith effort
to comply with Civil Practice and Remedies Code section 74.351(r)(6) and American Transitional Care
Centers., Inc. v. Palacios. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2008)
(stating “court shall grant a motion challenging the adequacy of an expert report only if it appears to the
court, after hearing, that the report does not represent an objective good faith effort to comply with the
definition of an expert report in Subsection (r)(6).”), § 74.351(r)(6) (Vernon Supp. 2008) (requiring “a
fair summary of the expert’s opinions as of the date of the report regarding applicable standards of
care, the manner in which the care rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury, harm, or damages
claimed.”); Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

     The only information relevant to our inquiry is within the four corners of the report. Palacios, 46 S.W.
3d at 878. A report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on
each of the elements identified in the statute. Id. In setting out the expert’s opinions on each of those
elements, the report must provide enough information to fulfill two purposes to constitute a good-faith
effort. Id. at 879. First, the report must inform the defendant of the specific conduct that the plaintiff has
called into question. Id. Second, and equally important, the report must provide a basis for the trial
court to conclude that the claims have merit. Id.

     On appeal, Lockhart specifically attacks the trial court’s order on each of the objections he raised in
the trial court. Without deciding the validity of each of Lockhart’s objections, we agree that the expert
report is conclusory on the specific opinion that Lockhart was negligent in not timely transferring Natalie
and that this negligence proximately caused her death:

That is, more likely than not had Dr. Lockhart timely and appropriately responded to the multiple pages
allegedly made by the nursing staff at the Center after Natalie Guyden’s condition had acutely changed
in the early morning hours of June 16, 2006, the patient would have been transferred in a timely
manner to an acute care facility for the appropriate and indicated treatment of her urosepsis as
detailed above in the “General” section and elsewhere. Consequently, Natalie Guyden would not have
died from urosepsis.

The expert report states that Lockhart had a duty to transfer Natalie to an acute-care facility at
approximately 2:30 a.m.

     The expert report concludes that Natalie would have lived had she been transferred to an acute-
care facility. The only discussion in the expert report of the course of treatment for urosepsis, however,
is a general one:

If not appropriately treated in a timely manner, urosepsis can progress to severe sepsis with multiple
organ dysfunction including metabolic acidosis and/or septic shock culminating in cardiovascular
collapse, multiple organ failure and death. However, timely and appropriate treatment with broad-
spectrum antibiotics, most especially antibiotics with proven antimicrobial efficacy based on C & S
results, along with cardiovascular support and protection from vital end organ damage from sepsis,
more likely than not, will prevent death in patients such as Natalie Guyden.

The expert report states Natalie should have been transferred at 2:30 a.m., and she was pronounced
dead 11 hours later at 1:30 p.m. Nowhere in the expert report is there a specific discussion of, and
expert opinion stating, whether Natalie’s death would more likely than not have been prevented in that
11-hour period with proper medical diagnosis and treatment. For example, there is no discussion of
how that information could have become available to Dr. Lockhart or of what the course of treatment at
an acute-care facility would have been during that 11-hour time frame, as opposed to the care she was
given or not given at the long-term-care facility, other than a reference to broad spectrum antibiotics
and “protection from vital end organ [kidney, lungs, and heart] damages from sepsis.” Because the
expert report does not contain a fair summary of the basis for an opinion that Dr. Lockhart’s alleged
negligence proximately caused Natalie’s death so as to conclude that the claim against Dr. Lockhart
has merit, it is deficient as to Dr. Lockhart. See Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d
860, 864 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also IHS Acquisition No. 140, Inc. v. Travis,
No. 13-07-00481-CV, slip op. at 13 (Tex. App.—Corpus Christi Apr. 24, 2008, pet. denied)
(memorandum opinion) (“an expert report provides a ‘fair summary’ of causation if it explicates what a
nursing home (or physician) should have done but did not do, and then explains that the inattention
caused otherwise treatable medical conditions to become fatally unmanageable.”); CHCA Mainland, L.
P. v. Wheeler, No. 09-07-00634-CV (Tex. App.—Beaumont Apr. 10, 2008, no pet.) (memorandum
opinion).

     Accordingly, we hold the trial court abused its discretion by denying Lockhart’s motion to dismiss,
sustain Lockhart’s single issue on appeal, and reverse the trial court’s order. The Clerk of this Court is
directed to issue the mandate immediately to allow further proceedings in the trial court, including
whether to grant a 30-day extension of time for Normell Guyden to file an amended expert report. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp. 2008); Tex. R. App. P. 18.6 (expediting
issuance of mandate in accelerated appeals).

                                                        Jim Sharp

                                                        Justice

Panel consists of Justices Bland, Sharp, and Taft.  
                         

Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on April 21, 2009.