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NO. 12-07-00276-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS
DISTRICT

TYLER,
TEXAS

STUART SPITZER, M.D.,   §
APPEAL FROM THE 392ND

APPELLANT

V.

MADELON BERRY, INDIVIDUALLY      §
JUDICIAL DISTRICT COURT OF

AND AS PERSONAL
REPRESENTATIVE/

ADMINISTRATOR/EXECUTOR
OF

THE ESTATE OF TOMMY
BERRY,

APPELLEE   §
HENDERSON COUNTY, TEXAS

OPINION

Stuart Spitzer, M.D., appeals the trial court’s order denying
Spitzer’s motion to dismiss a medical malpractice lawsuit filed against
him by Madelon Berry.  In his
sole issue, Spitzer argues that the trial court erred in denying his
motion to dismiss.  We
affirm.

Background1

Berry
brought her lawsuit against Spitzer in both her individual capacity and on
behalf of the estate of Tommy Berry, her late husband.  On June 9, 2004, the decedent
underwent colonostomy reversal and hernia repair operations performed by
Spitzer.  After surgery,
Spitzer placed the decedent on an antibiotics regime, which was
discontinued on June 22, 2004.
Spitzer placed the decedent on a second antibiotics regime on June
26, 2004.  On July 2, 2004,
the decedent was transferred to another hospital and diagnosed with
sepsis.  The decedent died of
cardiopulmonary arrest on July 10, 2004.

Berry filed a medical malpractice lawsuit against Spitzer and
subsequently served Spitzer with a copy of an expert report written by
Louis F. Silverman, M.D., a board certified general and thoracic surgeon
practicing in Houston, Texas.
Spitzer objected to Silverman’s report and filed a motion to
dismiss based on the allegation that the report failed to meet the
requirements of an expert report under section 74.351 of the Texas Civil
Practice and Remedies Code.
The trial court denied Spitzer’s motion to dismiss.  This appeal
followed.

Expert
Report

In his sole issue, Spitzer argues that the trial court should have
dismissed Berry’s lawsuit against him, alleging that Berry failed to
timely provide him with an expert report meeting the requirements of
section 74.351 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351 (Vernon Supp. 2007).2
More specifically, Spitzer alleges that Dr. Silverman’s report
fails to sufficiently set forth a standard of care, a breach of that
standard, and a causal link between a breach and the decedent’s
death.

Standard of
Review

An appellate court reviews a trial court’s decision on a section
74.351 motion to dismiss for an abuse of discretion.  See Baylor Univ. Med. Ctr.
v. Rosa, 240 S.W.3d 565, 569 (Tex. App.–Dallas 2007, pet. filed)
(applying prior supreme court precedent interpreting an earlier
statute).  The abuse of
discretion standard applies when a trial court has discretion either to
grant or deny relief based on its factual determinations.  In re Doe, 19 S.W.3d
249, 253 (Tex. 2000) (citing Bocquet v. Herring, 972 S.W.2d
19, 20-21 (Tex. 1998)).  A
trial court abuses its discretion when its decision is arbitrary,
unreasonable, or without reference to any guiding rules or legal
principles.  K-Mart
Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (citing
Bocquet, 972 S.W.2d at 21).  “The mere fact that a trial judge
may decide a matter within his discretionary authority in a different
manner than an appellate judge in a similar circumstance does not
demonstrate that an abuse of discretion has occurred.”  Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).  However, “a trial court has no
discretion in determining what the law is or applying the law to the
facts.”  In re
Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (orig. proceeding); see
also F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,
694 (Tex. 2007) (“[F]ailing to correctly apply the law is an abuse of
discretion.”).

Failure to Serve a Section
74.351 Report

Texas Civil Practice and Remedies Code section 74.351 provides
that, within 120 days of suit, a plaintiff must serve expert reports for
each physician or health care provider against whom a liability claim is
asserted.  Ogletree v.
Matthews, No. 06-0502, 2007 Tex. LEXIS 1028, at *6 (Tex. Nov. 30,
2007) (citing Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a)).  These reports must identify the
“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.”
Ogletree, 2007 Tex. LEXIS 1028, at *6 (quoting Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6)).  If a
plaintiff does not serve a timely report,  a trial court shall grant the
defendant’s motion to dismiss the case with prejudice.  Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b); Ogletree, 2007 Tex. LEXIS 1028, at
*6-7.  An order that denies
all or part of the relief sought in such a motion may be immediately
appealed.  Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(9) (Vernon Supp. 2007) (authorizing interlocutory
appeal from order that “denies all or part of the relief sought by a
motion under Section 74.351(b)”); Ogletree, 2007 Tex. LEXIS
1028, at *7.

Sufficient and Deficient Expert
Reports

Section 74.351 defines an expert report as
follows:

“Expert report” means 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).  Where a report is sufficient, the
trial court must deny the defendant’s motion to dismiss and allow the
plaintiff’s claims to proceed.
See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351.  A sufficient report is one that
contains a “fair summary” of the standard of care, how that standard was
breached, and how that breach caused the injury in question.  Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6).  A
“fair summary” is “something less than a full statement” of the applicable
standard of care, how it was breached, and how that breach caused the
injury.  See Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
880 (Tex. 2001) (interpreting an earlier statute).  Nonetheless, “a fair summary must
set out what care was expected, but not given” and how that caused the
injury.  See id.
“The expert report
need not marshal every bit of the plaintiff’s evidence.” See
Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006)
(interpreting an earlier statute).
And a report’s adequacy does not depend on whether the expert uses
any particular “magic words.”  See Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 53 (Tex. 2002) (also interpreting an earlier
statute).  But a “fair
summary” is not a conclusory summary.  See id.

As noted by the supreme court, when a report is deemed not served
because it is deficient, the trial court retains discretion to grant a
thirty day extension to cure the deficiency.  Ogletree, 2007 Tex. LEXIS
1028, at *10 (citing Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(c)).  In the context of deficient
reports, section 74.351 mandates that “[a] 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 [as set
forth by section 74.351].” Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(l).  Where a report is deficient, but
one that still “represent[s] an objective good faith effort,” it is
something less than a sufficient expert report, see Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(c), but something more than mere conclusory
allegations.  See
Palacios, 46 S.W.3d at 879.

Addressing a previous, but similarly worded, version of the statute
in question, the supreme court has explained that,

[t]o
constitute a “good-faith effort,” the report must provide enough
information to fulfill two purposes: (1) it must inform the defendant of
the specific conduct the plaintiff has called into question, and (2) it
must provide a basis for the trial court to conclude that the claims have
merit.

Wright, 79 S.W.3d at 52 (citing
Palacios, 46 S.W.3d at 879).  An expert report that is both
deficient and still a “good faith effort” “need not marshal all the
plaintiff’s proof, but it must include the expert’s opinion on each of the
three elements that the [statute] identifies: standard of care, breach,
and causal relationship.”  See Wright, 79 S.W.3d at
52 (citing Palacios, 46 S.W.3d at 878).  A report that is a “good faith
effort” “cannot merely state the expert’s conclusions about these
elements.”  See
Wright, 79 S.W.3d at 52 (citing Palacios, 46
S.W.3d at 879).  “[R]ather,
the expert must explain the basis of his statements to link his
conclusions to the facts.”
See Wright, 79 S.W.3d at 52 (citing Earle v.
Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).  Because the statute focuses on
what the report discusses, the only information relevant to a
consideration of a report’s sufficiency and “good faith” nature “is within
the four corners of the document.”  See Palacios, 46 S.W.3d
at 878; see also Jernigan, 195 S.W.3d at 93;
Wright, 79 S.W.3d at 52.

Discussion

Dr. Silverman’s report reads in pertinent
part:

[The
decedent] . . . underwent [various surgical procedures] on June 9, 2004,
at East Texas Medical Center in Athens [performed] by Dr. Stuart
Spitzer.  His postoperative
course was complicated by impaired respiratory function, a result of his
known chronic obstructive pulmonary disease. . . . [A]ntibiotic therapy
was initiated on June 9, 2004, the day of his initial operation.  His respiratory status worsened,
and on June 14, he was started on [a steroid regime].  On June 16, 2004, intestinal
obstruction was diagnosed and [another surgical procedure was] carried out
by Dr. Spitzer.  His
postoperative course remained stormy and primarily was manifested as
respiratory and cardiopulmonary problems.  On June 22, 2004, . . . antibiotic
therapy was terminated and . . . steroid therapy continued.  On June 26, 2004, antibiotic
therapy was resumed . . . .
His condition remained relatively stable, [although] his
respiratory status remained worrisome, and he was transferred . . . to
East Texas Medical Center Specialty Hospital on July 2, 2004, for ongoing
respiratory care. . . . [O]n admission to East Texas Medical Center
Specialty Hospital, for the first time, wound drainage was noted. . . .
Despite vigorous therapy . . . sepsis progressed. . . . He succumbed to
sepsis, going into irreversible cardiopulmonary arrest.

The
standard of care for patients at risk of postoperative infection who are
receiving steroid therapy is to maintain appropriate antibiotic
coverage.  Steroids are known
to impair resistance to infection.
[The decedent] underwent an operative procedure, i.e., colon
surgery, where the risk of infection is significant.  He was further debilitated by the
need for a second operation to treat intestinal obstruction.  He required ongoing steroid
therapy for treatment of respiratory insufficiency.  His antibiotic therapy was
discontinued on June 22, 2004, and no antibiotic therapy was given until
June 26, 2004.  More
likely than not, this hiatus in antibiotic therapy allowed development and
progression of the infections that led to irreversible sepsis and
death.  Had his
antibiotic therapy been maintained, more likely than not, the lethal
infections would not have developed and his death secondary to
overwhelming sepsis not occurred.
Dr. Spitzer’s failure to maintain antibiotic therapy under these
circumstances is clearly below standard and was, in all reasonable medical
probability, a direct cause of [the decedent’s] demise. (emphasis
added)

Spitzer alleges that Dr. Silverman’s report fails to sufficiently
set forth a standard of care, a breach of that standard, and a causal link
between a breach and the decedent’s death.  As such, Spitzer argues that the
trial court should have dismissed Berry’s lawsuit against him.  We disagree.    Dr. Silverman’s report sets forth,
in detail, the circumstances leading to the decedent’s death and then sets
forth the applicable standard of care, how that standard was breached, and
how that breach caused the decedent’s death.  According to the report, the
applicable standard of care was that “antibiotic therapy [should have]
been maintained.”  The report
states that “Dr. Spitzer’s failure to maintain antibiotic therapy [was]
clearly below standard” under the circumstances of an individual who had
undergone colon surgery, then a second surgery, and whose resistance to
infection was impaired by steroid therapy.  As the report explains, “the risk
of infection is significant” where an individual has undergone colon
surgery.  Finally, the report
explains the causal relationship between that Spitzer’s failure to
maintain antibiotic therapy and the injury.  According to the report,

. . . this
hiatus in antibiotic therapy allowed development and progression of the
infections that led to irreversible sepsis and death.  Had his antibiotic therapy been
maintained  . . . , the lethal
infections would not have developed and his death secondary to
overwhelming sepsis not occurred.
Dr. Spitzer’s failure to maintain antibiotic therapy under these
circumstances is clearly below standard and was, in all reasonable medical
probability, a direct cause of [the decedent's] demise.

This report was not deficient under the statute. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6).
Consequently, the trial court did not abuse its discretion by
denying Spitzer’s motion to dismiss. See Honeycutt, 24
S.W.3d at 360.  Therefore, we
overrule Spitzer’s sole issue.
See Rosa, 240 S.W.3d at 569.

Disposition

We affirm the trial court’s order denying Spitzer’s
motion to dismiss.

BRIAN HOYLE

Justice

Opinion delivered February 22,
2008.

Panel consisted of Worthen, C.J., Griffith, J.,
and Hoyle, J.

(PUBLISH)

1 The facts
set forth below have been gleaned from the allegations contained within
Berry’s amended petition, Berry’s expert report, and Spitzer’s motion to
dismiss.  Our opinion should
not be construed as an evaluation of the veracity or merits of those
allegations.

2 Because it is unnecessary to do otherwise,
we have cited only the most current version of this statute in our
opinion.