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In The

Court of Appeals

Ninth District of Texas at
Beaumont

____________________

NO. 09-06-136 CV

____________________

MANUEL HABABAG, M.D.,
Appellant

V.

MARY GARCIA, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE

OF THE ESTATE OF MELANY AVILA, DECEASED, ET AL.,
Appellee

On Appeal from the 58th District Court

Jefferson County, Texas

Trial Cause No. A-175,506

MEMORANDUM OPINION

Appellee
Mary Garcia
(1) sued appellant Manuel Hababag, M.D. and other defendants for
alleged medical malpractice. Hababag filed a motion to dismiss that
challenged appellee's expert report. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(l) (Vernon Supp. 2006). The trial court
denied Hababag's motion to dismiss. We reverse and remand.

Background

Garcia
alleged that the negligence of Hababag and other defendants resulted in
the death of Melany Avila, Garcia's twenty-year-old mentally retarded
daughter, who resided at a long-term care facility. Garcia asserted that
Avila was prescribed Zyprexa (olanzapine), which is an antipsychotic drug,
and lithium, which is a drug used to treat bipolar and manic-depression
disorder. According to Garcia, Melany died of Olanzapine toxicity on
September 2, 2003. Garcia maintains that Hababag and the other defendants
were negligent in their care of Avila, and that their negligence
proximately caused her death.

The report
by Garcia's expert, toxicologist Dr. Thomas L. Kurt, states that the
autopsy report revealed that Melany Avila died of Olanzapine toxicity, and
a toxicology report appended to the autopsy report stated Avila's blood
olanzapine level was 1.1 mg/L. According to Dr. Kurt, 1.1 mg/L of
olanzapine is a fatal level.

The report
states that despite an increase in Avila's dosage of lithium, and the fact
that "lithium is known as a medication with a narrow therapeutic to toxic
ratio where frequent therapeutic blood monitoring is required[,]"
follow-up therapeutic blood monitoring was not ordered. Kurt's report also
stated that on July 11, 2003, Avila's dosage of Zyprexa was increased to
twenty milligrams per day. Furthermore, Kurt opines that "lithium drug
interaction is known with neuroleptics (olanzapine, Zyprexa) at high doses
of the neuroleptic drug[.]" Kurt states that "it is not diagnostically
clear [] why Melany Avila was being prescribed and dispensed Lithium,
which is a medication strictly for bipolar or manic-depression disorder,
because no such diagnosis existed in her records. Nor [] is it clear why
she was being prescribed and dispensed the antipsychotic, neuroleptic,
olanzapine (Zyprexa), which is for psychotic disorders, without a
psychotic diagnosis." At the conclusion of the report, Kurt opined as
follows:

[d]eficient
care at Golden Triangle Living Centers, Inc., contributed to the demise of
Melany Avila. . . . This was caused by medications which were administered
to Melany Avila by Golden Triangle Living Centers, Inc. which were found .
. . to be the cause of her death. Namely, fatal levels were found of
olanzapine (Zyprexa), . . . and [] this level was found to be markedly
high and well above therapeutic levels even when rechecked several months
later after deterioration with time had occurred.

In an
addendum to his report, Kurt noted that after Avila's dosage of lithium
was increased, her blood level of lithium tripled or quadrupled, and he
opined that this fact "strongly indicates that drug interaction was going
on that was missed by not ordering therapeutic drug monitoring of . . .
her olanzeprine [sic] (Zyprexa) and lithium blood levels two weeks after
the physician drug orders increasing these doses." The addendum also
stated that Kurt agreed with the paragraphs of Garcia's petition entitled
"Facts" and "General Negligence and Other Causes of Action." In the
section of the addendum entitled "Conclusions," Kurt stated that
"physician orders for increases in both olanzepreine [sic] (Zyprexa) and
lithium occurred, . . . without indications for such increases in her
records." In a second addendum to his report, Kurt noted that Hababag was
among "[t]hose providing [Avila] physician care, as in her diagnoses,
prescriptive physician orders for medications and laboratory test ordering
or the lack thereof for therapeutic drug monitoring[.]"

After Kurt
provided the expert report, Hababag filed a motion to dismiss, in which he
asserted that the report failed to implicate any aspect of Hababag's care
and treatment of Avila; Kurt was not qualified to give an expert opinion
regarding the standard of care for a family medicine physician; and Kurt's
report did not provide a basis for the trial court to conclude that
Garcia's claims against Hababag have any merit. In her response to the
motion to dismiss, Garcia requested a thirty-day extension of time in the
event the trial court found the report deficient. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp. 2006). The trial
court entered an order denying the motion to dismiss, and Hababag then
filed this interlocutory appeal. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(9) (Vernon Supp. 2006).

Hababag's Issue

In his sole
issue, Hababag contends the trial court abused its discretion by denying
his motion to dismiss. As sub-issues, Hababag asserts that Kurt is not
qualified to give an expert opinion as to the standard of care for a
family practice physician; that Kurt's report does not sufficiently
describe the standard of care for a family practice physician or explain
how Hababag breached a standard of care; and Kurt's report did not provide
a basis for the trial court to conclude that Garcia's claims against
Hababag have merit.

We review a
trial court's decision regarding the adequacy of an expert report under an
abuse of discretion standard. Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles." Bowie Mem'l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also
abuses its discretion if it fails to analyze or apply the law correctly.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

A plaintiff
asserting a health care liability claim must provide each defendant
physician and health care provider with an expert report no later than the
120th day after filing suit. Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 10.01, sec. 74.351(a), 2003 Tex. Gen. Laws 847, 875 (current
version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp.
2006)). The statute defines "expert report" as

a written
report by an expert that provides 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.

Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2006). If a
plaintiff furnishes the required report within the time permitted, the
defendant may file a motion challenging the report. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(l).

The statute
provides that the trial 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)."
Id. When determining whether the report represents a good-faith
effort, the trial court's inquiry is limited to the four corners of the
report. Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at
878. To constitute a good-faith effort, the report "must discuss the
standard of care, breach, and causation with sufficient specificity to
inform the defendant of the conduct the plaintiff has called into question
and to provide a basis for the trial court to conclude that the claims
have merit." Palacios, 46 S.W.3d at 875. When a plaintiff sues
more than one defendant, the expert report must set forth the standard of
care for each defendant and explain the causal relationship between each
defendant's individual acts and the injury. See Doades v. Syed,
94 S.W.3d 664, 671-72 (Tex. App.--San Antonio 2002, no pet.); Rittmer
v. Garza, 65 S.W.3d 718, 722-23 (Tex. App.--Houston [14th Dist.]
2001, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6)
(A claimant must provide each defendant with an expert report that sets
forth the manner in which the care rendered failed to meet the standards
of care and the causal relationship between that failure and the injuries
claimed.). A report that omits any of the statutory elements is not a
good-faith effort. Palacios, 46 S.W.3d at 879.

Kurt's
report states that Hababag was among "[t]hose providing [Avila] physician
care, as in her diagnoses, prescriptive physician orders for medications
and laboratory test ordering or the lack thereof for therapeutic drug
monitoring[,]" and asserts that the lack of such monitoring after Avila's
dosages of lithium and Zyprexa were increased caused the interaction
between the two drugs to be "missed." The report also states that Avila
was prescribed lithium and Zyprexa despite the lack of a diagnosis
supporting the administration of such medications. However, the report
does not set forth the applicable standards of care for Hababag.
(2) In addition, the report fails to explain the causal
relationship between Hababag's treatment of Avila and the damages alleged.
Because of these inadequacies, the report does not meet the requirements
of the statute, and it does not provide a basis for the trial court to
determine that Garcia's claims have merit. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875,
879. Therefore, the trial court abused its discretion in failing to
dismiss Garcia's claims.
(3) We sustain Hababag's issue. We reverse the trial court's
order denying Hababag's motion to dismiss and remand this cause for the
trial court to address Garcia's request for a thirty-day extension of
time.
(4) See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(c).

REVERSED
AND REMANDED.

STEVE MCKEITHEN

Chief Justice

Submitted on September 7, 2006

Opinion Delivered October 26, 2006

Before
McKeithen, C.J., Gaultney and Kreger, JJ.

1. Garcia sued individually and as personal
representative of the estate of decedent Melany Avila.

2. We use the term "report" to refer collectively to
Kurt's original report and the addenda thereto.

3. In his brief, Hababag seeks an award of costs.
Because we are remanding the case to the trial court to address Garcia's
request for an extension of time to provide an adequate report, a
determination of entitlement to costs would be premature.

4. Because we have determined that Kurt's report
failed to state the standard of care, did not explain how Hababag's
conduct resulted in the injuries alleged, and did not provide a basis for
the trial court to determine that Garcia's claims have merit, we need not
decide whether the report includes sufficient information demonstrating
that Kurt was qualified to give an expert opinion regarding the standard
of care for a family
physician.