Opinion issued June 18,=20
2009
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO.=20
01-08-00588-CV
____________
KEVIN RITTGER, M.D.,=20
Appellant
V.
VIRGINIA LOU DANOS, INDIVIDUALLY AND AS =
NEXT=20
FRIEND OF RYAN COCHRAN, A MINOR, Appellees
On Appeal from the =
55th=20
District Court
Harris County,=20
Texas
Trial Court Cause =
No.=20
2005-34257
O P I N I O N
In this interlocutory appeal, appellant, =
Kevin=20
Rittger, M.D., challenges the trial court=E2=80=99s order denying =
his motion to=20
dismiss the medical malpractice claims made against him by =
appellee, Lou=20
Virginia Danos, individually and as next friend of Ryan Cochran, a =
minor.=20
In his sole issue, Rittger contends that the trial court erred by =
not=20
dismissing the suit on the ground that Danos submitted expert =
reports that=20
did not satisfy the requirements of Chapter 74 of the Texas Civil =
Practice=20
and Remedies Code. We affirm.I.=20
Background
<=
/SPAN>On=20
May 30, 2003, Danos, who was 28-weeks pregnant with her second =
child, went=20
to St. John Hospital=E2=80=99s emergency room complaining of right =
arm numbness.=20
Rittger, the emergency room physician, obtained a CT scan of her =
head and=20
called for a consultation by Danos=E2=80=99s obstetrician, Dr. =
Victor Patel. Dr.=20
Patel evaluated Danos and ordered a neurological examination. =
Before the=20
scheduled neurological exam could take place, Patel discharged =
Danos with=20
a diagnosis of =E2=80=9Cgeneralized anxiety.=E2=80=9D Two days =
later, Danos went to=20
Memorial Hermann Hospital with weakness of her right upper and =
lower=20
extremities. Medical Professionals there found that she had =
experienced a=20
left middle cerebral artery (=E2=80=9CMCA=E2=80=9D) stroke due to =
a clot at the=20
bifurcation of the left MCA.
<=
/SPAN>Danos=20
sued Rittger and other healthcare providers for medical=20
negligence. ![3DFootnote=20](3D"http://www.1stcoa.courts.state.tx.us/opinions/080588f/footnoteicon=)
Pursuant to section 74.351 of the Texas =
Civil=20
Practice and Remedies Code,
Danos timely filed expert reports from =
Dave David,=20
M.D., an obstetrician, and Frank Baker, M.D., an emergency room =
physician.=20
Dr. David=E2=80=99s report did not address the care provided by =
Rittger. Rittger=20
objected to the sufficiency of Baker=E2=80=99s report and moved to =
dismiss. The=20
trial court ruled that the report did not comply with section =
74.351 and=20
gave Danos 30 days to cure the deficiency.
Within the 30 days, Danos served a new =
report from=20
Baker as well as a report from John Meyer, M.D., a neurological =
expert not=20
previously designated. The trial court found that Baker, although=20
qualified to opine on the standard of care and its breach, failed =
to show=20
the nexus between the negligence and the injury. The trial court =
further=20
found that, section 74.351(c) did not permit Danos to serve a =
report from=20
a new expert. The trial court dismissed Danos=E2=80=99s case and =
awarded Rittger=20
$10,000 in attorney=E2=80=99s fees.
<=
/SPAN>Danos=20
appealed the dismissal of her case to this court, and a panel of =
this=20
court affirmed the judgment of the trial court. Danos v. =
Rittger,=20
253 S.W.3d 294, 295 (Tex. App.=E2=80=94Houston [1st Dist.] 2007, =
pet. granted).=20
The Supreme Court reversed, holding that section 74.351(a) allows =
a=20
claimant to cure a deficiency in a report by serving a report from =
a=20
separate expert during the 30-day cure period. Danos v. =
Rittger,=20
253 S.W.3d 215 (Tex. 2008). The Supreme Court remanded the case to =
the=20
trial court to consider the adequacy of Dr. Meyer=E2=80=99s expert =
report.=20
Id. at 215=E2=80=9316. Following an oral hearing, the trial =
court denied=20
Rittger=E2=80=99s motion to dismiss, and this interlocutory appeal =
followed.=20
<=
/SPAN>On=20
appeal, Rittger reasserts his challenges to the adequacy of the=20
plaintiff=E2=80=99s expert reports, claiming that the reports of =
Baker and Meyer,=20
considered together or separately, fail to satisfy Chapter 74's=20
requirements. Rittger also seeks =
remand on=20
the issue of attorney=E2=80=99s fees.
II. Medical Expert=20
Reports
A. Standard=20
of Review
=
We review all section 74.351 rulings =
under an=20
abuse of discretion standard. Am. Transitional Care Centers v.=20
Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses =
its=20
discretion if it acts in an arbitrary or unreasonable manner =
without=20
reference to guiding rules or principles. See Garcia v. =
Martinez,=20
988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed =
to the=20
trial court=E2=80=99s discretion, we may not substitute our own =
judgment for that=20
of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 =
(Tex.=20
1992). A trial court does not abuse its discretion merely because =
it=20
decides a discretionary matter differently than an appellate court =
would=20
in a similar circumstance. See Downer v. Aquamarine Operators,=20
Inc., 701 S.W.2d 238, 242 (Tex. 1985).
<=
/SPAN>Although=20
we may defer to the trial court=E2=80=99s factual determinations, =
we review=20
questions of law de novo. Rittmer v. Garza, 65 S.W.3d 718, =
722=20
(Tex. App.=E2=80=94Houston [14th Dist.] 2001, no pet.). To the =
extent resolution=20
of the issue before the trial court requires interpretation of the =
statute=20
itself, we apply a de novo standard. Buck v. Blum, 130 =
S.W.3d 285,=20
290 (Tex. App.=E2=80=94Houston [14th Dist.] 2004, no =
pet.).
<=
/SPAN>In=20
reviewing whether an expert report complies with Chapter 74.351, =
we=20
evaluate whether the report =E2=80=9Crepresents a good-faith =
effort=E2=80=9D to comply=20
with the statute. Strom v. Mem=E2=80=99l Hermann Hosp. =
Sys., 110 S.W.3d=20
216, 221 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, pet. =
denied). In making this=20
evaluation, we must look only at the information that is contained =
within=20
the four corners of the report. Bowie Mem=E2=80=99l Hosp. v. =
Wright, 79=20
S.W.3d 48, 53 (Tex. 2002).
B. Chapter=20
74 Expert Report Requirements
<=
/SPAN>Pursuant=20
to section 74.351, medical-malpractice plaintiffs must provide =
each=20
defendant physician and health care provider with an expert report =
or=20
voluntarily nonsuit the action. Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.351(a) (Vernon Supp. 2008). If a claimant =
timely=20
furnishes an expert report, a defendant may file a motion =
challenging the=20
report=E2=80=99s adequacy. Id. The trial court shall grant =
the motion only=20
if it appears, after hearing, that the report does not represent a =
good=20
faith effort to comply with the statutory definition of an expert =
report.=20
See id. =C2=A7 74.351(1). The statute defines an expert =
report as a=20
written report by an expert that provides, as to each defendant, a =
fair=20
summary of the expert=E2=80=99s opinions as of the date of the =
report regarding:=20
(1) applicable standards of care; (2) the manner in which the care =
provided failed to meet the standards; and (3) the causal =
relationship=20
between that failure and the injury, harm, or damages claimed. =
See=20
id. =C2=A7 74.351(r)(6); Palacios, 46 S.W.3d at=20
877.
<=
/SPAN>Although=20
the report need not marshall all the plaintiff=E2=80=99s proof, it =
must include=20
the expert=E2=80=99s opinions on the three statutory =
elements=E2=80=94standard of care,=20
breach, and causation. See Palacios, 46 S.W.3d at 878; =
Gray v.=20
CHCA Bayshore, L.P., 189 S.W.3d 855, 859 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2006, no pet.). In detailing these elements, the report =
must=20
provide enough information to fulfill two purposes if it is to =
constitute=20
a good faith effort. First, the report must inform the defendant =
of the=20
specific conduct the plaintiff has called into question. =
Palacios,=20
46 S.W.3d at 879. Second, the report must provide a basis for the =
trial=20
court to conclude that the claims have merit. Id. A report =
that=20
merely states the expert=E2=80=99s conclusions as to the standard =
of care, breach,=20
and causation does not fulfill these two purposes. Id. The =
expert=20
must explain the basis for his statements and link his conclusions =
to the=20
facts. Bowie, 79 S.W.3d at 52 (citing Earle v. =
Ratliff, 998=20
S.W.2d 882, 890 (Tex. 1999)). Furthermore, in assessing the =
report=E2=80=99s=20
sufficiency, the trial court may not draw any inferences, and =
instead=20
must rely =
exclusively on the=20
information contained within the report=E2=80=99s four corners. =
See=20
Palacios, 46 S.W.3d at 878.
C. Adequacy=20
of Experts=E2=80=99 Reports
=
Reading=20
both the Baker and Meyer reports together, we conclude that the =
documents=20
satisfy all three elements under Palacios. Specifically, =
they=20
identify the standard of care, describe the conduct that allegedly =
breached that standard, and identified a causal relationship =
between the=20
alleged breach and Danos=E2=80=99s injury.
<=
/SPAN>1. Dr.=20
Baker=E2=80=99s Reports
=
First,=20
we review the adequacy of Dr. Baker=E2=80=99s reports as it =
pertains to the=20
standard of care for Rittger and the breach of that standard. The =
initial=20
report by Baker collectively addressed the negligence of Rittger =
and=20
others. Specifically, the report alleged that:
Dr. Rittger and =
Dr. V. Patel=20
deviated from the standard of care by failing to diagnose TIA =
[transient=20
ischemic attack] and by failing to admit the patient for further=20
evaluation and treatment of her TIA. That evaluation should have =
initially=20
consisted of laboratory work such as a CBC with platelet count,=20
prothrombin time, and partial thromboplastin time in an effort to =
explore=20
hypercoagulabile states, an echocardiogram looking for cardiac =
sources of=20
emboli, and a carotid Dopplar ultrasound to evaluate the patient =
for=20
carotid sources of emboli, and, if warranted, an MIR/MRA for =
further=20
evaluation. It is well-known that pregnancy predisposes patients =
to=20
thrombo-embolic phenomenon including TIA=E2=80=99s and strokes. =
This is because=20
physiologic states associated with elevated estrogen and =
progesterone=20
levels such as pregnancy and the use of birth control pills cause=20
hypercoagulabile states that are associated with increased =
clotting=20
resulting in strokes [sic] and other thrombo-embolic phenomenon. =
Failure=20
to make the diagnosis of TIA and to formulate a plan to treat =
Virginia=20
Danos was a deviation from the standard of care and causally =
related to=20
her subsequent stroke.
=
.=20
. .
With a reasonable =
degree of=20
medical certainty, had she been admitted and treated, her TIA =
would not=20
have progressed to a left MCA stroke.
=
In=20
the second report, Baker added the following =
paragraph:
Virginia Danos was =
pregnant=20
at the time of this incident and, because of her pregnancy, she =
had=20
elevated estrogen and progesterone levels. As a direct result, she =
was=20
predisposed to thrombo-embolic events including TIA=E2=80=99s and =
strokes. Dr.=20
Rittger and Dr. V. Patel should have recognized that she was =
predisposed=20
to these thrombo-embolic events because of her elevated estrogen =
and=20
progesterone levels. High suspicions should have led them to =
diagnose TIA=20
which should have resulted in admission for further evaluation and =
treatment.
=
Dr.=20
Baker=E2=80=99s reports detail the standard of care to which=20
Rittger was required to =
conform and=20
the breach of that standard. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.351(r)(6). The reports provide =
Rittger with a fair summary of Baker=E2=80=99s =
opinions=20
concerning the standard of care and how Rittger failed to meet =
that=20
standard of care. Palacios, 46 S.W.3d at 880. Nevertheless, =
Rittger argues that the reports are =
insufficient because=20
Baker collectively referenced Rittger and Patel in =
discussing the=20
standard of care. We disagree.
=
Appellees=20
are not required to specifically state the same standard of care =
for each=20
individual physician practicing on the same patient when each =
physician=20
owes the same duties to the patient. In re Boone, 223 =
S.W.3d 398,=20
405=E2=80=9306 (Tex. App.=E2=80=94Amarillo 2006, no pet.) (holding =
expert report=20
sufficient with same standard of care for multiple defendants when =
each=20
defendant was performing same duties on same patient); Romero =
v.=20
Lieberman, 232 S.W.3d 385, 391=E2=80=9392 (Tex. =
App.=E2=80=94Dallas 2007, no pet.)=20
(defendants=E2=80=99 argument that expert report was insufficient =
because they=20
were not given individual standards of care and were being held to =
=E2=80=9Cone=20
size fits all=E2=80=9D standard were unmeritorious as each =
physician owed same=20
duties and were held to same standard).
=
Rittger relies on Taylor v. Christus Spohn =
Health=20
System Corp. and Rittmer v. Garza to support his =
contention=20
that Baker=E2=80=99s reports are inadequate as to the standard of =
care and breach=20
because it collectively refers to a group of doctors rather than =
setting=20
forth individual standards as to Rittiger. See Taylor v. =
Christus Spohn=20
Health Sys. Corp., 169 S.W.3d 241, 243 (Tex. =
App.=E2=80=94Corpus Christ 2005,=20
no pet); Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex. =
App.=E2=80=94Houston=20
[14th Dist. 2001, no pet.). We find both Taylor and =
Rittmer=20
distinguishable.
<=
/SPAN>In=20
Taylor, the defendants included a hospital, a =
doctors=E2=80=99 association,=20
an emergency room physician, and a cardiologist, and the expert =
failed to=20
state what each defendant should have done to meet the standard of =
care=20
and failed to do, and how the failure led to the patients death.=20
Taylor, 169 S.W.3d at 243. Here, Baker=E2=80=99s report =
comments on the=20
failure of a uniform duty owed by both doctors to the same =
patient. And,=20
also unlike Taylor, Baker specifically names the individual =
doctors, identifies their specific negligent actions, and =
discusses their=20
failures according to the uniform standard of care that both =
doctors owed=20
to Danos.
<=
/SPAN>In=20
Rittmer, the plaintiff conceded her report failed to set =
out=20
specific standards of care for two distinct specialists=E2=80=94an =
oncologist=20
performing a mastectomy and a plastic surgeon performing =
reconstructive=20
surgery. Rittmer, 65 S.W.3d at 722. This is distinct from =
Baker=E2=80=99s=20
articulation of a standard of care for a duty owed to a patient in =
an=20
emergency room setting.
<=
/SPAN>Rittger argues further =
that Baker=E2=80=99s=20
report failed to specify what particular actions or what =
additional=20
specific care Rittger should have provided Danos. On the =
contrary,=20
Baker=E2=80=99s supplemental report indicates that, upon =
recognizing the high risk=20
of TIA and stroke present during pregnancy, Rittger and Patel =
should have=20
admitted Danos for further evaluation and treatment. =
<=
/SPAN>For=20
the foregoing reasons, we conclude that Baker=E2=80=99s report =
provides a=20
sufficiently specific standard of care and specifically identifies =
the=20
breach of that standard of care for an emergency room physician. =
Thus,=20
Baker=E2=80=99s reports meet the first and second prongs of=20
Palacios.
<=
/SPAN>2. Dr.=20
Meyer=E2=80=99s Report
<=
/SPAN>Next,=20
we review Dr. Meyer=E2=80=99s report to determine whether it =
sufficiently links=20
the alleged breaches of the standard of care with Danos=E2=80=99s =
injuries.=20
Meyer=E2=80=99s report reads, in pertinent part:
Dr. Rittger and Dr. Patel and the triage =
staff at=20
Christus St. John Hospital all fell below [the] standard of care =
for not=20
admitting [Danos] and working her up for probable stroke with =
diagnosis of=20
left middle cerebral artery impending thrombosis or stroke due to =
toxemia=20
of pregnancy.
. . .
Christus St. John Hospital and the =
conduct of ER=20
Triage nurse, C. Southard, RN, Kevin Rittger, MD, John Gillespie, =
MD and=20
Victor Patel, MD were all negligent and all fell below the =
standard of=20
care in their treatment of Lou Virginia Danos by not admitting her =
to the=20
hospital with diagnosis of impending stroke and treating her with=20
anti-platelet drugs, control of her BP and treatment of her =
eclampsia or=20
toxemia of pregnancy and arranging for immediate Caesarian Section =
by=20
delivering her child for prevention of complications or =
pre-eclampsia or=20
toxemia pregnancy.
As a result, Ms. Virginia Danos suffered =
from=20
thrombosis of her left middle cerebral artery as a complication of =
toxemia=20
of pregnancy, which if treated early, [the] stroke would have been =
prevented and she would have remained neurologically normal. Apart =
from=20
termination of pregnancy by Caesarian section, control of her =
elevated=20
blood pressure, plus treatment with anti-platelet drugs would have =
all=20
been indicated to prevent her stroke.
<=
/SPAN>We=20
conclude that Meyer=E2=80=99s report is sufficient to establish =
causation because=20
it links Rittger=E2=80=99s alleged =
breaches of the=20
standard of care with Danos=E2=80=99s injuries. Meyer =
unequivocally states that=20
Danos suffered neurological injury as the result of =
appellant=E2=80=99s breach of=20
the standard of care. Meyer reaches this conclusion after he sets =
forth=20
the pertinent standard of care and how Danos=E2=80=99s injury =
could have been=20
prevented.
=
Nevertheless,=20
Rittger contends that Meyer=E2=80=99s report is =
conclusory as to=20
causation. We disagree. Meyer causally links =
Rittger=E2=80=99s failure =
to admit and=20
treat Danos for her pregnancy-related toxemia directly to =
Danos=E2=80=99s thrombosis of=20
her left middle cerebral artery and thus provides a sufficient =
basis for=20
his opinion. Consequently, we conclude that Meyer=E2=80=99s report =
satisfies the=20
third prong of Palacios. =
D. Qualifications=20
of Experts
=
Section=20
74.351 defines an =E2=80=9Cexpert=E2=80=9D with respect to a =
person opining as to whether=20
a physician departed from accepted standards of medical care, as =
one who=20
is qualified to testify under the requirements of Section 74.401.=20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7 74.351(r)(5)(A) (Vernon Supp. 2008). =
Section=20
74.401 states that a physician is qualified to give such testimony =
against=20
a physician if he: (1) is practicing medicine at the time such =
testimony=20
is given or was practicing medicine at the time the claim arose; =
(2) has=20
knowledge of accepted standards of medical care for the diagnosis, =
care,=20
or treatment of the illness, injury, or condition involved in the =
claim;=20
and (3) is qualified on the basis of training or experience to =
offer an=20
expert opinion regarding those accepted standards of medical care. =
Tex. Civ. Prac. Rem. Code =
Ann. =C2=A7=20
74.401(a) (Vernon 2005).
=
When=20
determining whether a witness is qualified on the basis of =
training or=20
experience, the court considers whether, =E2=80=9Cat the time the =
claim arose or=20
at the time the testimony is given, the witness (1) is board =
certified or=20
has other substantial training or experience in an area of medical =
practice relevant to the claim and (2) is actively practicing =
medicine in=20
rendering medical care services relevant to the claim.=E2=80=9D =
Id. =C2=A7=20
74.401(c) (Vernon 2005).
=
The=20
expert testifying in a medical malpractice case need not be a =
specialist=20
in the particular branch of the profession for which testimony is =
offered;=20
the statute setting out the requisite qualifications focuses not =
on the=20
defendant doctor=E2=80=99s area of expertise, but on the condition =
involved in the=20
claim. Blan v. Ali, 7 S.W.3d 741, 745 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 1999, no pet.).
<=
/SPAN>1. Dr.=20
Baker
=
Baker=20
is board certified in emergency medicine. As such, he has the =
training and=20
experience to testify concerning the appropriate standard of care =
for an=20
emergency room physician. Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 74.401(a)(3) (Vernon=20
2005). Rittger does not dispute that Baker is =
qualified=20
to testify regarding the standard of care and breach. =
Danos, 253=20
S.W.3d at 299.
<=
/SPAN>2. Dr.=20
Meyer
=
Rittger=20
argues that neither Meyer=E2=80=99s report nor his curriculum =
vitae qualify Meyer,=20
a neurologist, to provide an opinion on the pertinent standard of =
care or=20
breach thereof by Rittger as an emergency room physician. Danos, =
as the=20
expert=E2=80=99s proponent, has the burden to show that Meyer is =
qualified and=20
that Meyer=E2=80=99s =
report satisfies the=20
statutory requirements. Mem=E2=80=99l Hermann Healthcare Sys. =
v. Burrell,=20
230 S.W.3d 755, 757 (Tex. App.=E2=80=94Houston [14th Dist.] 2007, =
no pet.). No=20
definitive guidelines exist for determining whether a =
witness=E2=80=99s education,=20
experience, skill, or training qualify him as an expert. =
Id. at=20
762.
=
As=20
a board-certified neurologist and professor in Baylor College of=20
Medicine=E2=80=99s Department of Neurology, Meyer has =
knowledge of=20
the accepted standards of care for brain trauma. Where a =
particular=20
subject of inquiry is common to and equally developed in all =
fields of=20
practice, and the prospective medical expert witness has practical =
knowledge of what is usually and customarily done by a =
practitioner under=20
circumstances similar to those which confronted the practitioner =
charged=20
with malpractice, the witness is qualified to testify. Simpson =
v.=20
Glenn, 537 S.W.2d 114, 117 (Tex. App.=E2=80=94Amarillo 1976, =
writ ref=E2=80=99d=20
n.r.e.). The treatment of patients with brain trauma is common in =
the=20
field of neurology; therefore Dr. Meyer qualifies as an expert. =
The fact=20
that Danos was pregnant when she experienced her stroke or that =
she=20
presented herself in an emergency room setting does not require =
that Dr.=20
Meyer be an obstetrician or emergency room physician. Dr. Meyer is =
shown=20
to be sufficiently competent and qualified to testify as to the =
care of=20
patients with stroke as a complication of =
pregnancy-related toxemia. =
See=20
Simpson, 537 S.W.2d at 116=E2=80=9318 (concluding that general =
physician=20
qualified to testify as expert against physician specializing in=20
obstetrics and gynecology).III.=20
Conclusion
=
The=20
expert reports, considered together, satisfy the requirements =
provided in=20
Palacios by informing the appellant of the specific conduct =
called=20
into question and giving the trial court a basis to conclude =
whether or=20
not the claims have merit. See Palacios, 46 S.W.3d at 879. =
The=20
reports comply with section 74.351 by detailing the standard of =
care to=20
which Rittiger was required to conform, the breach of that =
standard, and=20
causation. See Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 74.351(r)(6); =
Palacios, 46=20
S.W.3d at 878. Based on the standards articulated in =
Palacios, we=20
conclude that Danos made a good faith effort to comply with the =
statute=20
and that the trial court did not err in overruling =
Rittiger=E2=80=99s objections=20
to the expert reports. Accordingly, we hold that the trial court =
did not=20
abuse its discretion in denying Rittiger=E2=80=99s motion to =
dismiss. We overrule=20
Rittiger=E2=80=99s issue on appeal and affirm the order that =
denied Rittiger=E2=80=99s=20
motion to dismiss.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Keyes, Hanks, and Bland.
Publish. =
See Tex. R. App. P. 47.2=20
(b).
|
![3Dseal.gif=20](3D"http://www.1stcoa.courts.state.tx.us/opinions/080588f/seal.gif"=20)