Austin Heart, P.A. v. Webb

• Decision Date: 09 May 2007
• Docket Number: No. 03-06-00607-CV.,03-06-00607-CV.
• Citation: 228 S.W.3d 276
• Parties: AUSTIN HEART, P.A. and David J. Kessler, M.D., Appellants, v. Christian L. WEBB and Marilou Webb, Appellees.
• Court: Texas Court of Appeals

228 S.W.3d 276

AUSTIN HEART, P.A. and David J. Kessler, M.D., Appellants, v. Christian L. WEBB and Marilou Webb, Appellees.

No. 03-06-00607-CV.

Court of Appeals of Texas, Austin.

May 9, 2007.

Robert L. Hargett, Emily J. Davenport, Davis & Wilkerson, P.C., Austin, for appellant.

James L. Wright, Watts Law Firm, L.L.P., Austin, for appellee.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

G. ALAN WALDROP, Justice.

Austin Heart, P.A. and David J. Kessler, M.D. appeal the district court's order denying their motion to dismiss Christian and Marilou Webb's medical malpractice claims. Austin Heart and Dr. Kessler contend that the expert report served on them pursuant to civil practice and remedies code section 74.351 did not comply with the statute because it did not sufficiently identify either Austin Heart or Dr. Kessler as the parties responsible for the alleged breach of the standard of care or the cause of the alleged injury to Mr. Webb. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2005 & Supp.2006). We agree that the plaintiffs' expert report was deficient and that the district court erred in denying the motion to dismiss. However, we are of the view that the cure provisions of section 74.351(c) are designed to allow the plaintiffs an opportunity to address and correct the defect. Consequently, we reverse the district court's order denying the motion to dismiss and remand this cause to the district court to consider whether a 30-day extension of the deadline for serving the report to allow the plaintiffs to address the deficiency is appropriate.

The Webbs sued Austin Heart and Dr. Kessler in January of 2006 alleging that Dr. Kessler failed to "diagnose and treat the medical condition which caused [Mr. Webb's] severe palpitations and resulting associated health conditions." The palpitations and other symptoms described by the Webbs were related to Mr. Webb's pacemaker. On May 31, 2006, the Webbs filed and served the expert report and curriculum vitae of Dr. Alan E. Cororve pursuant to the requirements of section 74.351 of the civil practice and remedies code setting forth Dr. Cororve's opinions regarding Mr. Webb's treatment for his problems with his pacemaker. Austin Heart and Dr. Kessler filed a motion to dismiss on June 21, 2006, claiming that Dr. Cororve's report did not identify either Dr. Kessler or Austin Heart as the parties responsible for breaching the standard of care or causing Mr. Webb injury and, therefore, the report was not a timely report as to them. In response, the Webbs claimed that the report was sufficient as written and, in the alternative, filed a motion for a 30-day extension to cure in the event the court found the report deficient.

The district court initially granted the motion to dismiss on August 22, 2006, and did not grant a 30-day extension to allow the plaintiffs to attempt to cure the deficiency. The Webbs filed a motion for rehearing and a motion for new trial on September 15, 2006, arguing that the court had misinterpreted case law relating to what constitutes a sufficient report under section 74.351 and that Dr. Cororve's report was sufficient. They also re-urged their request for a 30-day extension to cure in the event the court denied their motion for rehearing. The district court then reversed its original ruling, granted the motion for rehearing, and entered an order denying the motion to dismiss. This appeal followed.

Section 74.351 requires a claimant pursuing a health care liability claim to serve one or more expert reports on each party no later than the 120th day after the filing of the original petition. Id. § 74.351(a). The expert report must provide "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." Id. § 74.351(r)(6). A court shall grant a motion challenging the adequacy of a report only if the report "does not represent an objective good faith effort to comply" with the definition of "expert report" in the statute. Id. § 74.351(l). To 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. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)).

The Texas Supreme Court has also stated that a report need not marshal all of the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in section 74.351. Palacios, 46 S.W.3d at 878. A report cannot merely state the expert's conclusions about the statutory elements. Id. at 879. "Rather, the expert must explain the basis of his statements to link his conclusions to the facts." Bowie Memorial, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). In addition, since the statute focuses on what is required in the report, the only information relevant to determining whether a report complies with the statute is "within the four corners of the document." Palacios, 46 S.W.3d at 878. This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. See Bowie Memorial, 79 S.W.3d at 53 ("The report must include the required information within its four corners."); see also Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

We review a district court's ruling on a motion to dismiss under section 74.351 for an abuse of discretion. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Id. at 242. However, a trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

In a single issue, Austin Heart and Dr. Kessler argue that section 74.351(b) mandates dismissal of the Webbs' lawsuit. Their argument is straightforward: Read literally, without any inferences or reliance on information outside of its four corners, Dr. Cororve's report does not identify either Dr. Kessler or Austin Heart as having breached the standard of care or having caused Mr. Webb injury. The Webbs respond that, while the sections of Dr. Cororve's report relating to the breach of the standard of care and causation do not identify any specific physicians, the meaning of the report read as a whole is apparent and reveals that Dr. Cororve is referring to Mr. Webb's treatment by Dr. Kessler.

Dr. Cororve's two and one-half page report is divided into five sections — "Qualifications," "Materials Reviewed and Background," "Standard of Care," "Standard of care not met," and "Causation." In the section titled Materials Reviewed and Background, Dr. Cororve lists the various medical records he reviewed.¹ He then sets out selected portions of these records detailing the relevant aspects of Mr. Webb's history of treatment for a trial fibrillation and palpitations over a period of nearly four years beginning with the placement of his pacemaker in November 2001. This review of Mr. Webb's treatment history includes a number of references to Dr. Kessler's office notes, comments by Dr. Kessler in those notes, complaints by Mr. Webb contained in the notes, a reference to the office notes of a Dr. George Rodgers, an email from Mr. Webb to Dr. Kessler, a response email from Dr. Rodgers,² and a general statement that "[Mr. Webb] was seen by various physicians, including several electrophysiological consultations." The background section concludes with the observation that "[f]urther evaluation eventually documented diaphragmatic stimulation and a new right ventricular lead was placed on September 7, 2005. The patient was subsequently discharged in excellent condition."³ The background section of the report offers no opinions regarding the appropriateness of the treatment or the responses of the physicians to Mr. Webb's complaints. It is strictly a recitation of historical material contained in the medical records reviewed by Dr. Cororve.

The report then concludes with the following three sections:

Standard of Care

The standard of care in a patient such as this requires more intensive investigation as to the source of a patient's symptoms and subsequent corrective actions to ameliorate the problem. Attempts at adjusting the ventricular pacing outputs should routinely be attempted and would most likely have pinpointed the problem much earlier. This standard of care was not met.

Standard of care not met

The diagnostic and corrective action eventually taken, specifically the increase in the ventricular pacing output, should have been implemented much sooner.

Causation

Had the corrective action described occurred, Mr. Webb would not have undergone the physical and mental problem(s) he had and could have continued his normal lifestyle much earlier than he did.

Dr. Kessler and Austin Heart point to these sections and argue that, while they may articulate an opinion on the breach of the standard of care and on causation, the sections do not identify Dr. Kessler as breaching the standard of care or causing injury.⁴ The Webbs concede that these sections do not...